Description
specially qualified, and try or hear such cause or matter wholly or par-
tially with the assistance of such assessor or assessors.
(2.) The remuneration, if any, to be paid to such assessor or assessors
shall be determined by the Court.
(16.) Any person shall have power to assign personal property now by
law assignable, including chattels real, directly to himself and another
person or other persons or company or corporation, by the like means as
he might assign the same to another.
'Cause' means any action, suit, or other original proceeding
between a plaintiff and a defendant:
'Action' means a civil proceeding commenced by writ of summons
or in such other manner as is prescribed by this Code:
'Cause of action' in actions founded on contract does not
necessarily mean the whole cause of action, but a cause of action
shall be deemed to have arisen within the jurisdiction if the contract
was made therein, though the breach may have occurred elsewhere,
and also if the breach occurred within the jurisdiction, though the
contract may have been made elsewhere:
'Matter' includes every proceeding in the Court not in a cause:
'Originating summons' means every summons other than a
summons in a pending cause or matter:
'Party' includes every person served with notice of or attending
andy proceeding, although not named on the record:
'Judgment' includes decree:
'Judgment creditor' means any person in whose favour a judgment
or order capable of execution has been given or made, and includes
any person to whom such judgment or order has been transferred:
'Judgment debtor' means any person against whom a judgment
or order has been given or made:
'Receiver' includes a consignee or manaaager appointed by or under
an order of the Court.
(3.) Subject to the provisions of any statute, rule, or order relating
thereto, nothing in this Code shall
(1) affect the rights, privleges, or remedies of the Crown further or
otherwise than is herein expressly enacted in that behalf; or
(2) affect the existing jurisdiction or powers of the COurt further of
otherwise than is herein expressly enacted in that behalf; or
(3) affect the practice or procedure of the Court prescribed by any
statute for the time being in force relating to
(a.) causes or matters testamentary; or
(b.) causes or matters in bankruptcy; or
(c.) causes or matters in its Admirelty jurisdiction; or
(d.) the incorporation, regulation, and winding-up of trading com-
panies and other associations.
(4.) In all cases with respect to which no provision is made by this
Code, the Rules of Practice for the time being in force in the Supreme
Court in England shall be deemed to be in force in the Court, subject to
their applicability and with such modifications as the circumstances may
require.
(5.) This Code is divided into Parts and Chapters, as follows:
PART I.-ACTIONS IN GENERAL
Chapter 1.-Institution of Action.
Chapter 2.-Parties.
Chapter 3.-Joinder of Causes of Action.
Chapter 4.-Pleadings.
Chapter 5.-Amendment.
Chapter 6.-Discovery, Inspection, and Admissions.
Chapter 7.-Issues, Inquiries, and Accounts.
Chapter 8.-Special Case.
Chapter 9.-Issues of Fact without Pleadings.
Chapter10.-Interlocutory Proceedingss.
Chapter11.-Preliminaries of Trial.
Chapter12.-Trial.
Chapter13.-Evidence.
Chapter14.-Judement.
Chapter15.-Costs.
Chapter16.-Execution.
PART II.-SPECIAL ACTIONS AND PROCEEDINGS.
Chapter17.-Foreign Attachment.
Chapter18.-Action against the Government.
Chapter19.-Action by or against Firm, etc.
Chapter20.-Action by or against Pauper.
Chapter21.-Action for Recovery of Immovable Property.
Chapter22.-Mandamus.
Chapter23.-Interpleader.
Chapter24.-Reference to Arbitration.
PART III.-PROVISIONAL REMEDIES
Chapter25.-Arrest and Attachment before Judement.
Chapter26.-Temporary Injunction.
Chapter27.-Receiver.
PART IV.-Appeal
Chapter28.-Appeal to the Full Court.
Chapter29.-Appeal to the King-in-COuncil.
PART V.-MISCELLANEOUS MATTERS.
Chapter30.-Business in Chambers.
Chapter31.-Various Provisions.
(6.) All civil proceedings in the Court heretofore called suits shall
hereafter be called actions, and shall be instituted and carried on in the
manner hereinafter prescribed.
PART I.
ACTIONS IN GENERAL.
CHAPTERI.
INSTITUTION OF ACTION.
Writ of Summons.
(7.) Subject to the provisions hereinafter contained with respect to the
institution of special actions and proceedings, every action in the Court
shall be commenced by a writ of summons.
(8.) (1.) The writ shall be prepared by the plaintiff or his solicitor.
It shall be written or printed, or partly written and partlly printed, and
shall specify the name, description, and place of abode of the plaintiff
and of the defendant, so far as they can be ascertained, the subject-
matter of the claim, and the relief or remedy required in the action.
(2.) If the plaintiff sues, or the defendant is sued, in a representative
capacity, the writ shall specify such capacity.
(9.) The writ shall bear date on the day on which it is issued, and
shall be tested in the name of the Chief Justice.
(10.) (1) The plaintiff or his solicitor shall, on presenting the writ
for sealing, leave with the Registrar a copy of the writ and all the
indorsements thereon.
(2.) Such copy shall be signed by or in the name of the plaintiff's
solicitor or aby the plaintiff if he sues in person.
(11.) The Registrar shall file the copy of the writ, and an entry of the
filing thereof shall be made in the Cause-Book, and the action shall be
distinguished by the date of the year and a number.
(12.) The Writ shall be signed by the Registrar and sealed with the Seal
of the Court, and shall thereupon be deemed to be issued.
(13.) No writ for service out of the jurisdiction shall be issued without
the leave of the Court.
(14.) Any alteration in the writ before service, without the leave of
the Registrar or of the Court, shall render the writ void.
(15.) (1.)If service of the writ has not been effected within twelve
months from the date thereof, the writ shall become void: Provided
that the Court may, before the expiration of the then current period,
in its discretion, from time to time renew the operation of the writ for
a further period not exceeding six months at one time.
(2.) A writ so renewed shall remain in force and be available to
prevent the operation of any statute whereby the time for the com-
mencement of the action may be limited, and for all other purposes,
from the date of the issuing of the original writ.
(16.) The production of a writ of summons purporting to be sealed
with the Seal of the Court, showing the same to have been renewed in
manner aforesaid, shall be sufficient evidence for all purposes of its
having been so renewed and of the commencement of the action as on
the date of the original issue of the writ.
(17.) Where a writ of summons of which production is necessary has
been lost, the Court, on being satisfied of the loss and of the correctness
of a copy of the writ, may order that such copy shall be sealed and
served and have effect in lieu of the original writ.
(18.) Nothing hereinbefore contained with respect to a writ of sum-
mons shall be deemed to apply to proceedings which may now be heard
on petition without preliminary service on any party, but all petitions
shall be subject to the rules hereinafter contained with respect to plead-
ing and to the form and contents of a statement of claim, so far as they
are applicable to the subject-matter thereof.
Specially Indorsed Writ.
(19.) In any action where the plaintiff seeks only to recover a debt or
liquidated demand in money payable by the defendant, with or without
interest, arising
(1.) on a contract, express or implied, (ass, for instance, on a abill of
exchange, promissory note, or cheque, or other simple contract
debt); or
(2.) on a bond or contract under seal for payment of a liquidated
amount of money; or
(3.) on a statute where the sum sought to be recovered is a fixed
sum of money or in the nature of a debt other than a penalty; or
(4.) on a guarantee, whether under seal or not, where the claim
against the principal is in respect of a debt or liquidated demand
only; or
(5.) on a trust,
the writ of summons may, at the option of the plaintiff, be specially in-
dorsed with a statement of his claim or of the relief or remedy to which
he claims to be entitled.
(20.) In any action for the recovery of immovable property, with or
without a claim for rent or mesne profits, by a landlord against a tenant
whose term has expired or has been duly determined by notice to quit,
or against any person claiming under such tenant, the writ of summons
may, at the option of the plaintiff, be specially indorsed with a state-
ment of his claim or of the relief or remedy to which he claims to be
entitled.
(21.) (1.) here the plaintiff's claim is for a debt or liquidated
demand only, the indorsement, besides stating the nature of the claim,
shall state the amount claimed for debt or in respect of such demand,
and for any interest thereon payable by law or under any contract,
express or implied, and for costs reespectively, and shall further state
that, on payment thereof within four days after service, or, in case of a
writ not for service within the jurisdiction, within the time allowed for
appearance, further proceedings will be stayed.
(2.) The defendant may, notwithstanding such payment, have the
costs taxed, and if more than one-sixth shall be disallowed, the plaintiff's
solicitor shall pay the costs of tazation.
(22.) In default of appearance to a specially indorsed writ, the plain-
tiff, on satisfying the Court that the writ was duly served, shall be
entitled to judement for any sum not exceeding the sum indorsed on the
writ, together with interest at the rate specified, if any, or, if no rate is
specified, at the rate for the time being fixed by the Court, to the date
of the judgment, and costs, or that the person whose title is asserted in
the writ shall recover possession of the immovable property, and costs:
Provided that the Court may, nevertheless, on such terms as may seem
just, gibe leave to the defendant to appear and defend the action on an
application supported by satisfactory affidavits accounting for his non-
appearance and disclosing a defence on the merits.
(23.) (1.) Where the defendant appears to a specially indorsed writ,
the plaintiff may, on filing an affdavit made by himself or by any other
person who can swear positively to the facts, verifying the cause of
action and the amount claimed, if any, and stating that in his belief
there is no defence to the action, take out a summons calling upon the
defendant to show cause why the plaintiff should not proceed to judg-
ment and execution.
(2.) On the hearing of such summons, the Court shallmake such
order, and on such terms and conditions, if any, as may be just and
proper.
(3.) If it appears to the Court that any defendant has a good defence
to or ought to be permitted to defend the action, and that any other
defendant has not such defence and ought not to be permitted to defend,
the former may be permitted to defend, and the plaintiff may be allowed
to proceed to judgment and execution against the latter, without pre-
judice to his right to proceed with action against the former.
24-(1) in like manner, in cases of ordinary account as in the case
of a partnership, or executorship, or ordinary trust account, where
nothing more is required in the first instance than an account, the writ
may be specially indorsed with a claim for such account, and in default
of appearance, or after apperance, unless the defendant satisfies the
court that there is really some preliminary question to be tried, an
order for the proper account, with all necessary inquires and directions
now usual in similar cases, shall be forthwith made.
(2) the application for such order shall be made by summons and be
supported by an affidavit, when necessary, filed on behalf of the plaintiff,
stating concisely the grounds of his claim to an account. the application
may be made at any time after the time for entering an appearance
has expired.
Councurrent Writs.
25-(1) the plaintiff in any action may, at the time of or at any
time during twelve months after the issuing of the original writ of
summons, issue one or more concurrent writ or wirts, each concurrent
writ to bear teste of the same day as the original writ, and to be marked
by the Registrar with the word 'concurrent' and the date of issuing
the concurrent writ: Provided that such concurrent writ or writs shall
only be in force for the period during which the original writ in the
action may be in force.
(2) A writ for service within the furisdiction may be issued and
marked as a concurrent writ with one for service out of the jurisdiction;
and a writ for service out of the jurisdiction may be issued and marked
as a concurrent writ with one for service within the jurisdiction.
Originating Summons.
26 An originating summons shall be prepared by the applicant or
his solicitor, and shall be signed by the registrar and sealed with the
Seal of the Court, and shall thereupon be deemed to be issued.
27 The applicant or his solicitor shall leave with the registrar a
copy of the summons signed by the applicant or by or in the name of
his solicitor, and such copy shall be filed by the registrar.
28-(1) every party served with an originating summons shall,
before he is heard, enter an appearance in the Registry.
(2) A party so served may appear at any time before the hearing of
the summons.
(3) If he appears at any time after the time limited by the summons
or appearance, he shall not, unless the Court otherwise orders, be entitled to any further time for any purpose than if he had appeared
according to the summons.
29-(1) the day and hour for attendance under an originating
summons shall, after apearance, be fixed by notice, sealed with the
Seal of the Court.
(2) The notice shall be served on the defendant or respondent by
delivering a copy thereof at the address for service named in the
memorandum of appearance of such defendant or respondent not less
than four days before the return day.
Provisions relating to Solicitors.
30-(1) Every solicitor whose name is indorsed on a writ of
summons shall, on demand in writing made by or on behalf of any
defendant who has been served therewith or has appeared thereto,
declare forthwith in writing whether such writ has been issued by him
or with his authority or privity.
(2) If such solicitor delares that the writ was not issued by him or
with his authority or privity, all proceddings upon the same shall be
stayed, and no further proceedings shall be taken thereupon without
leave of the Court.
31 A part suing or defending by a solicitor shall be liberty to
change his solicitor in any cause or matter, without an order for that
purpose, upon notice in writing of such change being filed in the
Registry; but until such notice is filed and a copy thereof served on the
opposite party, the former solicitor shall be considered the solicitor of
the party until the conclusion of the cause or matter.
Service of Process in General.
32 No sercie in an action or other proceeding shall be made on
Sunday, Christmas Day, or good Friday.
33 Unless in any case the Court thinks it proper otherwise to direct,
service shall be personal, that is, the document to be served shall be
delivered to the person to be served: Provided always that where the
duly authorized solicitor of the person to be served undertakes to accept
service on behalf of his client, service on such solicitor shall be equivalent
to personal service on the client, and all further sercie in the
action or proceeding may be made by delivering the document to ge
served to such solictor or by leaving the same at his place of business.
34-(1) Where it is made to appear to the Court that for any
reason prompt personal service of any document of which service is required cannot conveniently be effected, the Court may order tha
service be effected-
(a) by delivery of the document to be served, together with the
order for service, to some adult inmate at the usual or last
known place of abode or business within the Colony of the
person to be served; or
(b) by delivery thereof to some agent within the Colony of the
person to be served, or to some other person within the Colony
through whom it appears to the Court that there is a reasonable
probability that the document and order served will come to the
knowledge of the person to be served; or
(c) by advertisement thereof in one or more newspapers published
in the colony; or
(d) by notice thereof put up at the Court Huse, or at some other
place of public resort, or at the usual or last know place of
abode or business within the colony of the person to served; or
(e) in any two or more of these modes.
(2) Every application for an order for such service shall be supported
by an afdavit setting forth the grounds on which the application is
made.
Service of Process in Particular cases.
35 When the action or other proceeding is against a person in the
service of the Government, the Court may transmit a copy of the
document to be servedd to the head of the department in which the
defendant is employed, for the purpose of being served on him, if it
appears to the Court that the document may most conveniently be so
served.
36 when the action or other proceeding is against a British corporation
or a company authorized to se and be sued in the name of an
officer or trustee, the document may be served by giving it to any
director, seretary, or other principal officer, or by leaving it at the
office, of the coporation or company.
37 When the action or other proceeding is against a foregin
corporation or company having an office and carrying on business in
the colony, the document may be served by giving it to the principal
officer, or by leaving it at the office, of the corporation or company
within the colony.
38 When the action or other proceeding is against a husband and
his wife, the document shall be served on both, unless the Court otherwise
orders. 39 when the action or other proceeding is against an infant, the
document may be served on his father or guardian or, if there is no
father or guardian, then on the person with whom the infant resides or
under whose care he is: Provided that the Court may order that service
made or to be made on the infant shall be deemed good service.
40 when the action or other proceeding is against a person residing
out of the jurisdiciton, but carrying on business in the Colony in his
own name or under the name of a firm through a duly authorized agent,
the document may be served by giving it to such agent, and such
service shall be equivalent to personal service on the defendant.
42-(1) Service out of the jurisdiction may be allowed by the
Court whenever-
(a) the whole subject-matter of the action is immovable property
situation within the jurisdiction (with or without rents or profits);
or
(b) any act, deed, will, contract, obligation, or liability affecting
immovable property siutate within the jurisdiction is sought to
be construed, rectified, set aside, or enforced in the action; or
(c) any relief is shought against any person domiciled or ordinarily
resident within the jurisdiction; or
(d) the action is for the administration of the personal estate of
any deceased person who at the time of his death was domiciled
within the jurisdiction, or for the execution (as to property situate
within the jurisdiction) of the trusts of any written instrument,
of which the person to be served is a trustee, which ought to be
executed according to the law of the Colony; or
(e) the action is on a contract and the cause of action has arisen
within the jurisdiction; or
(f) any injunction is sought as to anything to be done within the
jurisdiction, or any nuisance with the jurisdiction is sought to
be prevented or removed, whether damages are or are not also
sought in respect thereof; or
(g) any person out of the jurisdiction is a necessary or proper
party to an action properly brought against some other person
duly served within the jurisdiction.
(2) Every application for leave to serve a writ of summons on a
defendant out of the jurisdiction shall be supported by affavit or other evidence, stating that, in the belief of the deponent, the plaintiff has a
good cause of action, and showing in what place or country such
defendant is or probably may be found and the grounds on which the
application is made; and no such leave shall be granted unless it is
made sufficiently to appear to the Court that the case is a proper one for
service out of the jurisdiction under this section.
(3) Any order giving leave to effect such service shall limit a time
after the service within which the defenant is to enter an appearance,
such time to depend on the place or country where or within which the
writ is to be served.
Variation of Order for Service, etc.
43 Any order for service may from time to time be varied by the
Court with respect to the mode of service directed by the order, as occasion
may require.
44 Where the service of process by the Bailiff will be attended with
expense, he shall not(except by direction of the Registrar or by order of
the Court) be bound to effect the same, unless the reasonable expenses
thereof have been previously tendered to him by the party requiring such
service; and such expenses shall be costs in the cause or matter.
Summoning Defendant.
45-(1) The plaintiff shall cause a copy of the writ of summons to
be served on the defendant, and such copy shall contain a memorandum
indorsed thereon requiring the defendant to enter an appearance to the
action within eight days from the day of such service, or, in case of
service out of the jurisdiction, within such time as the Court may have
ordered.
(2) The person serving the writ shall, within three days at most
after such service, indorse on the writ the day of the month and week
of the service thereof, otherwise the plaintiff shall not be at liberty,
in case of nono-appearance, to procedd by default; and every affidavit
of service of the writ shall mention the day on which the indorsement
was made. This sub-section shall apply to substituted as well as other
service.
(3) The writ shall, withing eight days after the service thereof or, in
case of service out of the jurisdiction, within such time as the Court
may have ordered, be returned into the Registry and filed therein.
Appearance of Defendant.
46 The defendant shall, within eight days from the day of service
on him of the writ of summons or, in case of service out of the juris- diction, within such time as the Court may have ordered, cause an
appearance to the action to be entered for him in the Registry.
47 In every case of service of a writ of summons out of the juris-
diction, the entry of appearance therto shall specify the name and
address of some solicitor, agent, or other person within the jurisdiction
on whom substituted service of all further process against the defendant
in the action may be effected while the defendant remains out of the
jurisdiction, and, in default thereof, the Court may proceed with the
action as if no appearance had been entered.
48 Where an action is brought by a plaintiff residing out ofthe
jurisdiction, and it is made to appear, by affidavit or otherwise, to the
satisfaction of the Court, that the defendant has a bona fide claim against
the plaintiff which can be conveniently tried by the Court, it shall be
lawful for the Court, in its discretion, to stay proceedings in the action
so brought by the absent plaintiff until he has entered an appearance to
any cross-action brought by the defendant against him in respect of
such claim, on such terms as may seem just.
49 The defendant before appearing shall be at liberty, without
obtaining an order to enter or entering a conditional appearance, to
serve notice of motion to set aside the service on him of the writ of
summons or to discharge the order authorizing such service.
Default of Appearance.
50-(1) If the defendant fails to enter an appearance within the
time hereinbefore limited in that behalf, and it is proved, to the
satisfaction of the court, that the writ was duly served, the court may
give leave to the plaintiff to proceed with the action ex parte.
(2) The plaintiff may therupon file his statement of claim, and
apply forthwith to have the cause set down for trial.
51 If the defenant enters an appearance at any time before the trial
of the action, he may, on such terms as the Court may direct as to the
payment of costs or otherwise, be heard in answer to the action, in like
manner as if he had duly entered an appearance within the time limited
as aforesaid.
52 When the cause has been called on, the Court may proceed to
try it ex parte, and may, on the evidence adduced by the plaintiff,
give such judgment as may appear to be just; but it shall not be
obligatory on the Court to decide ex parte in the absence of the defendant,
and it shall be in the discretion of the Court to issue a warrant to
arrest him and detain him till another day appointed for the trial of the cause, and in the meanwhile to attach all or any of his property within
the jurisdiciton.
53 where a defendant or respondent to an originating summons
fails to appear within the time limited in that behalf, the plaintiff or
applicant may apply to the Court for an appointment for the hearing
of the summons, and, on being satisfied that no appearance has been
entered, the Court shall appointed a time for the hearing of the summons,
on such conditions, if any, as it may think fit.
CHAPTER II.
PARTIES.
Parties in General.
54 All persons may be joined in one action as plaintiffs, in whom
any right to relief in respect of or arising out of the same transaction
or series of transactions is alleged to exist, whether jointly, severaly, or
in the alternative, where if such persons brought separate actions any
common question of law or fact would arise; and judgment may be
given for such one or more of the plaintiffs as may be found to be
entitled to relief, for such relief as he or they may be entitled to, without
any amendment: Provided that if, on the application of any
defendant, it appears that such joinder may embarrass or delay the
trial of the action, the Court may be expedient. but the defendant, though unsuccessful,
shall be entitled to his costs occasioned by so joining any person
who is not found to be entitled to relief, unles the Court in disposing
of the costs otherwise directs.
55 Where an action has been commenced in the name of the wrong
person as plaintiff, or where it is doubtful whether it has been commenced
in the name of the right plaintiff, the Court may, if satisfied
that it has been so commenced through a bona fide mistake and that it
is necessary for the determination of the real matter in dispute to do so,
order any other person to be substituted or added as plaintiff, on such
terms as may be just.
56 Where in an action any person has been improperly or unnecessarily
joined as a co-plaintiff, and a defendant has set up a counterclaim
or set-off, he may obtain the benefit thereof by establishing his counter-
claim or set-off as against the parties other than the co-plaintiff so
joined, notwithstanding the misjoinder of such plaintiff or any proceeding
consequent thereon.
57-(1) All persons may be joined as defendants against whom the
right to any relief is alleged to exist, whether jointly, serverally, or in the alternative; and judgment may be given agains such one or more
of the defendants as may be found to be liable, according to their
respective liabilities, without any amendment.
(2) It shall not be necessary that every defendant shall be interested
as to all the relief prayed for or as to every cause of action included n
any proceeding against him; but the Court may make such order as
may appear just to prevent any defendant from being embarrassed or
put to expnse by being required to attend any proceedings in which he
may have no interest.
(3) The plaintiff may, at his option, join as parties to the same
action all or any of the persons severally, or jointly and severally, liable
on any one contract, including parties to bills of exchange and promissory notes.
58 Where the plaintiff is in doubt as to the person from whom he is
entitled to redress, he may, in such manner as is hereinafter mentioned,
join tow or more defendants, to the intent that the quesiton as to which,
if any, of the defendants is liable, and to what extent, may be determined
as between all parties.
59-(1) Trustees, executors, and administrators may sue and be
sued on behalf of or as representing the property or estate of which
they are trustees or representatives, without joining any of the persons
beneficially interested in the trust or estate, and shall be considered as
representing such persons; but the Cour may, at any stage of the
proceedings, order any of such persons to be made parties, either in
addition to or in lieu of the previously existing parties.
(2) this section shall apply to trustees, executors, and administrators
sued in proceedings to enforece a security by foreclosure or otherwise.
60 In any action for the prevention of waste or otherwise for the
protection of property, one person may sue on behalf or for the benefit
of himself and all persons having the same interest.
61 Where ther are numerous persons having the same interest in
one cause or matter, one or more of such persons may sue or be sued, or
may be authorized by the Court to defend, in such cause or matter, on
behalf or for the benefit of all persons so interested.
62 Where, in proceedings concerning a trust, a compromise is
proposed and some of the persons interested in the compromise are not
parties to the proceedings, but there are other persons in the same
interest before the Court and assenting to the compromise, the Court, if
satisfied that the compromise will be for the benefit of the absent
persons and that to require service on such persons would cause
unreasonable expense or delay, may approve the compromise and order that the same shall be binding on the absent persons, and they shall be
bound accordingly, except where the order has been obtained by fraud
or non-disclosure of material facts.
63-(1) No cause or matter shall be defeated by reason of the
misjoinder or non-joinder of parties, and the Court may in every cause
or matter deal with the matter in controversy so far as regards the
rights and interests of the parties actually before it.
(2) The Court may, at any stage of the proceedings, either on or
wihtou the application of either party and on such terms as may appear
to the Court to be just, order that the names of any parties improperly
joined, whether as plaintiffs or as defendants, be struck out, and that
the names of any parties, whether plaintiffs or defendants, who ought
to have been joined, or whose presence before the Court may be necessary
in order to enable the Court effectually and completely to adjudicate
upon and settle all the questions involved in the cause or matter, be added.
(3) No person shall be added as a plaintiff suing without a next
friend, or as the next friend of a plaintiff under any disability, without
his own consent in writing therto.
(4) Every party whose name is so added as a defendant shall be
served with a writ of summons, and the proceedings as against such
party shall be deemed to have begun only on the service of such writ.
64 any applicatio to add, or strike out, or substitute a plaintiff or
defendant may be made to the Court at any time before trial by motion
or summons, or at the trial of the action in a summary manner.
65 where a defendant is added or substituted, the plaintiff shall,
unless otherwise ordered by the Court, amend the writ of summons and
the copy thereof on the file, and serve such new defendant with such
amended writ in the same manner as an original defendant is served.
66-(1) Where there are more plaintiffs than one, any one or more
of them may be authorized by any other of them to appear, plead, or
act for such other in any action or other proceeding under this Code.
(2) In like manner, where there are more defendants than one, any
one or more of them may be authorized by any other of them to appear,
plead, or act for such other in any such actioon or proceeding.
(3) In every such case the authority shall be in writing signed by
the party giving it, and shall be filed in the Registry.
Persons under Disability.
67 An infant may sue as plaintiff by his next friend, in the manner
heretofore practised, and may, in like manner, defend any action by his
guardian appointed for that purpose. 68 Where a lunatic or person of unsound mind, not so found by
inquisition, might formerly have sued as plaintiff or would have been
liable to be sued as defendant in any suit, he may sue as plaintiff in any
action by his committee or next friend, and may defend any action by
his committee or guardian appointed for that purpose.
69-(1) where default is made by a defendant in entering an
appearance to an action, after due service of the writ of summons, and
it appears to the Court that he is an infant or a person of unsound mind,
not so found by inquisition, so that he is unable of himself to defend the
action, the Court may, on the application of the plaintiff or of its own
motion, appoint some fit person to be guardian of the defendant for the
purpose of the action, by whom he may defend the same.
(2) No such order shall be made except on notice, after expiration of
the time for appearance and four days at least before the day named in
the notice for the hearing of the application; and such notice shall be
left at the dwelling house of the person with whom or under whose care
the defendant was at the time of service of the wirt of summons, and
shall also, in the case of an infant not residing with or under the care of
his father or guardian, be served on or left at the dwelling house of his
fater or gurardian, unless the Court thinks fit to dispense with such
last-mentioned service.
70-(1) an infant shall not enter an appearance except by his
guardian ad litem.
(2) No order for the appintment of such guardian shall be necessary,
but the solicitor applying to enter such appearance shall make and file
an affidavit for that purpose.
71-(1) Every infant served with a petition or notice of motion, or
sumons in a matter, shall appear on the hearing thereof by a guardian
ad litem in all cases in which the appointment of a special guardian is
not provided for.
(2) No order for the appointment of such guardian shall be necessary,
but the solicitor by whom he appears shall previously make and file an
affidavit as mentioned in the last proceeding section.
72 Before the name of any person shall be used in any action as
next friend of any infant or other party or as relator, such person shall
sign a written authority to the solicitor for that purpose, and the
authority shall be filed in the Registry.
73 In any cause or matter to which any infant or person of unsound
mind, whether so found by inquisition or not, or person under any other
disability, is a party, any consent as to the made of taking evidence or as to any other procedure shall, if given, with the consent of the
Court, by the next friend, guardian, committee, or other person acting
on behalf of the person under disability, have the same force and effect
as if such party were under no dissability and had given such consent:
Provided that no such consent by any committee of a lunatic shall be
valid as between him and the lunatic unless given with the special
sanction of the Chief Justice.
Administrations and Trusts.
74-(1) In any case in which the right of an heir-at-law, or the
next of kin, or a class depends upon the constrauction which the Court
may put upon an instrument, and it is not known or is difficult to
ascertain who is or are such heir-at-law, next of kin, or class, and the
Court considers that, in order to save expense or for some other reason,
it will be convenient to have the questons of construction determined
before such heir-at-law, next of kin, or class has or have been ascertained
by means of inquiry or otherwise, the Court may appoint one or
more person to represent such heir-at-law or to represent all or any of
such next of kin or class, and the judgment of the Court shall be bind-
ing on the person or persons so represented.
(2) In any other case in which an heir-at-law, or any next of kin, or
a class is or are represented in any proceedings, the Court may, if,
having regard to the nature and extent of the interest of such persons
or of any of them, it appears expedient on account of the difficulty of
ascertaining such persons or in order to save expense, appoint one or
more persons to represent such heir-at-law or to represent all or any of
such next of kin or class, and the judgment of the court shall be bind-
ing on the person or persons so represented.
75 any residuary legatee or next of kin entitled to a judgement or
order for the administration of the personal estate of a deceased person
may have the same without serving the remaining residuary legatees or
next of kin.
76 Any legatee interested in a legacy charged upon immovable property,
any any person interested in the proceeds of immovable property
directed to be sold, and who may be entitled to a judgment or order ofr
the administration of the estate of a deceased person, may have the
same without serving any other legatee or person interested in the pro-
ceeds of the property.
77 Any residuary devisee or heir entitled to the like judgment or
order may have the same without serving any co-residuary devisee or
co-heir. 78 any one of several cestuis que trustent under any deed or instru-
ment entitled to a judgment or order for the execution ofthe trusts of
the deed or instrument may have the same without serving any ohter cestui que trust.
79 Any executor, administrator, or trustee entitled thereto may have
a judgment or order against any one legatee, next of kin, or cestui que
trust for the administration of the estate or the execution of the trust.
80 The Court may require any person to be made a party to any
action or other proceeding, and may give the conduct of the action r
proceeding to such person as it may think fit, and may mke such order
in any particular case as it may think just for placing the defendant on
the record on the same footing in regard to costs as other parties having
a common interest with him in the matters in quesiton.
81-(1) Where, in any action for the administration of the estate
of a deceased person, or for the execution of the trusts of any deed or
instrument, or for the partition or sale of any immovable property, a
judgment or order has been pronounced or made-
(a) for the making of inquiries; or
(b) for the taking of accounts; or
(c) affecting the rights or interests of persons not parties to the action,
the Court may direct that any persons interest in the estate, or under
the turst, or in the immovable property shall be served with notice of
the judgment or order; and after such notice such persons shall be
bound by the proceedings, in the same manner as if they had originally
been made parties, and shall be at liberty to attend the proceedings
under the judgment or order.
(2) Any person so served may, within one month after such service,
apply to the Court to discharge, vary, or add to the judgment or order.
(3) It shall not be necessary for any person served with notice of
any judgement or order to obtain an order for liberty to attend the pro-
ceedings under such judgment or order, but such person shall be at
liberty to attend the proceedings on entering an appearance in the
Registry in the same manner, and subject to the same provisions, as a
defendant entering an appearance.
(4) A memorandum of the service on any person of notice of the
judgment or order in any action under this section shall be entered in
the registry, on due proof by affidavit of such service.
(5) Notice of a judgment or order served pursuant to this section
shall be entitled in the action, and there shall be indorsed thereon a
memorandum of such notice. (6) Notice of a judgment or order on an infant or person of unsound
mind, not so found by inquisition, shall be served in the same manner
as a writ of summons in an action.
82 In any cause or matter to execute the trusts of a will, it shall not
be necessary to make the heir-at-law a party where he desires to have the
will established against him.
83 If in any cause or matter it appears to the Court that any
deceased person who was interested in the matter in question has no
legal personal representative, the Court may proceed in the absence of
any person representing the estate of the decesed person, or may
appoint some person to represent his estate for all the purposes of the
cause or matter, on such notice to such person, if any, as the Court may
think fit, either specially or generally by public advertisement, and the
order so made, and any order consequent thereon, shall bind the estate
of the deceased person in the same manner in evry respect as if a duly
constituted legal personal representative of the deceased person had been
a party to the cause or matter.
84-(1) In any cause or matter for the administration of the estate
of a deceased person, no party other than the executor or administrator
shall, except by leave of the Court, be entitled to appear, either in Court or in
Chambers, on the claim of any person in respect of any debt
or liability.
(2) The Court may direct r give liberty to any other party to the
cause or matter to appear, either in addition to or in the place of the
executor or administrator, on such terms as to costs or otherwise as it
may think fit.
third Party Procedure.
85-(1) Where a defenant claims to be entitled to contribution or
indemnity over against any person not a party to the action, he may,
by leave of the Court, issue a notice (hereinafter called the third-party
notice) to that effect, sealed with the Seal of he Court.
(2) A copy of such notice shall be filed in the Registry, and shall be
served on such person in the same manner as a writ of summons in
a action.
(3) the notice shall state the nature and grounds of the claim, and
shall, unless otherwise ordered by the court, be served within the time
limited for filing the statment of defence of such defendant.
(4) With the notice there shall be served a copy of the statement of claim. 86-(1) If a person, not a party to the action, who is served as
mentioned in the last preceding section (hereinafter called the third
party) desires to dispute the plaintiff's claim in the action as against the
defendant on whose behalf the notice has been given or his own liability
to the defendant, the third party must enter an appearance in the action
within eight days from the service of the notice.
(2) In default of his so doing, he shall be deemed to admit the
validity of any judgment obtained against such defendant, whether
obtained by consent or otherwise, an his own liablity to contribute or
indemenify, as the case may be, to the extent claimed in the third-party
notice: Provided that a person so served and failing to appear within
the said period of eight days may apply to the Court for leave to appear,
and such leave may be given on such terms, if any, as the Court may
think just.
87 Where a third party makes default in entering an appearance in
the action, in case the defendant giving the notice suffers judgment by
default, he shall be entitled, at any time after satisfaction of the judg-
ment against himself or before such satisfaction, by leave of the Coiurt,
to enter judgment against the third party to the extent of the con-
tribution or indemnity claimed in the third-party notice: Provided that
it shall be lawful for the Court to set aside or vary such judgment on
such terms as may seem just.
88-(1) Where a third party makes default in entering an appear-
ance in the action, in the case the action is tried and results in favour of the
plaintiff, the court may, at or after the trial, enter such judgement as the
nature of the case may require for the defendant giving the notice
against the third party: Provicedthat execution thereof shall not be
issued withut leave of the Court until after satisfaction by such defendant
of the judgment against him.
(2) If the action is finally decided in the plaintiff's favour otherwise
than by trial, the court may, on application by motion or summons, as
the cae may be, order such judgment as the nature of the case may
required to be entered for the defendant giving the notice against the
third party at any time after satisfaction by such defendant of the judg-
ment against him.
89 Where a third party enters an appearance in the action, the
defendant giving the notice may apply to the court for directions, and
the Court, on the hearing of such application, may, if it is satisfied that
there is a question proper to be tried as to the liability of the third party
to make the contribution or indemnity claimed, in whole or in part,
order the question of such liablity, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the
trial of the action, as the Court may direct; and, if it is not so satisfied,
may order such judgment as the nature of the case may require to be
entered in favour of the defendant giving the notice against the third
party.
90 The Court, on the hearing of the application mentioned in the last
preceding section, may, if it appears desirable to do so, give the
third party liberty to defend the action, on such terms as may be just,
or to appear at the trial and take such part therein as may be jsut,
and generally may order such proceedings to be taken, documents to be
delivered, or amendments to be made, and give such directions, as the
Court may think proper for having the question most onvenietnly
determined, and as to the mode and extent in or to which the third party
shall be bound or made liable by the judgment in the action.
91 the Court may decide all questions of costs as between a third
party and the other parties to the action, and may order any one or more
to pay the costs of any other or others, or give such direction as to costs
as the justice of the case may require.
92 Where a defendant claims to be entitled to contribution or
indemnity against any other defendant to the action, a notice may be
issued and the same procedure shall be adopted, for the determination
of such questions between the defendants, as would be issued and taken
against such other defendant if such last-mentioned defendant were a
third party; but nothing herein contained shall prejudice the rights
of the plaintiff against any defendant in the action.
Change of Parties by Marriage, etc.
93 a cause or matter shall not become abated by reason of the
marriage, death, or bankruptcy of any of the parties, if the cause of
action survives or continues, and shall not become defective by the
conveyance, assignment, creation, or devolution of any estate or title
pendente lite; and, whether the cause of action surivies or not, there
shall be no abatement by reason of the death of either party between
the verdict or finding of the issues of fact and the judgment, but judg-
ment may in such case be entered, notwithstanding the death.
94 In case of the marriage, death, or bankruptcy, or devolution of
estate by operation of law, of any party to a cause or matter, the Court
may, if it is deemed necessary for the complete settlement of all the
questions involved, order that the husband, personal representative,
trustee, or other successor in interest, if any, of such party be made a
party or be served with notice in such manner and form as is herein- after prescribed, and on such terms as the Court may think just, and shall
make such order for the disposal of the cause or matter as may be just.
95 In case of the conveyance, assignment, creation, or devolution of
any estate or title pendente lite, the cause or matter may be continued
by or against the person to or upon whom such estate or title has come
or devolved.
96 Where by reson of marriage, death, or bankruptcy, or any other
event occurring after the commencement of a cause or matter and
causing a change or transmission of interest or liaility, or by reason of
any person interested coming into existence after the commencemetn of
the cause or matter, it becomes necessary or desirable that any person
not already a party should be made a party or that any person already
a party should be made a party in another capacity, an order that the
proceedings shall becarried on between the continuing parties and such
new party or parties may be obtained ex parte on application to the
Court, upon an affidavit of such change or transmision of interest or
liability or of such person interested having come into existence.
97-(1) an order obtained under the last proceeding section shall,
unless the court otherwise directs, be served on the continuing party
or parties or their solicitors, and also on each such new party, unless the
person making the application is himself the only new party.
(2) the order shall from the time of such service, subject, neverthe-
less, to the next two succeeding sections, be binding on the persons
served therewith, and every person served therewith who is not already
a party to the cause or matter shall be bound to enter an appearance
thereto within the same time and in the same manner as if he had been
served with a writ of summons in an action.
98 Where any person being under no disability or under no dis-
ability other than coverture, or being under any disability other than
coverture but having a guradian ad litem in the cause or matter, is
served with an order to carry on proceedings under section 96, such
person may apply to the Court to discharge or vary such order at any
time within twelve days from the service thereof.
99 Where any person being under any disability other than cover-
ture, and not having a guardian ad litem in the cause or matter, is
served with an order to carry on proceedings under section 96, such
person may apply to the Court to discharge or vary such order at any
time within twelve days from the appointment of a guradian ad litem
for such person, and until such period of twelve days has expired such
order shall have no force or effect as against such last-mentioned person. 100 When the plaintiff or defendant in a cause or matter dies, and
the cause of action survives, but the person entitled to proceed fails to
proceed, the defendant (or the person aginst whom the cause or matter
may continued) may apply by summons to compel the plaintiff (or
the person entitled to proceed) to proceed within such time as may be
ordered; and, in default of such proceeding, judgment may be netered
for the defendant or, as the case may be, for the person against whom
the cause or matter might have been continued; and in such case, if the
plaintiff has died, execution may issue as in the case provided for by
section 390.
101 Where any cause or matter becomes abated or in the case of any
such change of interest a is in this Chapter provided for, the solicitor
for the plaintiff or the person having the conduct of the cause or matter,
as the case may be, shall dertify the fact to the Registrar, who shall
cause an entry thereof to be made in the Cause-Book opposite to the
name of such cause or matte.
102 Where any cause or matter has been standing for one year in
the Cause-book marked as 'abated,' or standing over generally, such
cause or matter at the expiration of the year shall be struck out of the
Cause-book.
CHAPTER III.
JOINDER OF CAUSES OF ACTION.
103 Subject to the following sections of this Chapter, the plaintiff
may unite in the same action several causes of action, but if it appears
to the Court that any such causes of action cannot be conveniently tried
or disposed of together, the Court may order separte trials of any of
such causes of action to be had or may make such other order as may
be necessary or expedient for the separate disposal thereof.
104 no cause of action shall, except by leave of the Court, be joined with
an action for the recovery of immovalbe property, except claims
in respecto fmesne profits, or arrears of rent, or double value in respect
of the premises claimed or any part thereof, and damages for breach of
any contract under which the same or any part thereof are held or for
any wrong or injury to the premises claimed: Provided that nothing in
this Chapter shall prevent any plaintiff in an action for foreclosure or
redemption from asking for or obtaining an order against the defendant
for delivery of the mortgaged property to the plaintiff on or after the
order absolute for foreclosure or redemption, as the case may be, and
such an action for forecloure or redemption and such delivery of
possession shall not be deemed an action for the recovery of immovable property within the meaning of this Chapter: Provided, also, that in
case any mortgage security is foreclosed by reason of the default to
redeem by any plaintiff in a redemption action, the defendant in whose
favour such foreclosure has taken place may, by motion or summons,
apply to the Court for an order for the delvery to him of possessions of
the mortgaged property, and such order may be made thereupon as the
justice of the case may require.
105 Claims by a turstee in bankruptcy as such shall not, except by
leave of the court, be joined with any claim by him in any other
capacity.
106 Claims by or against husband and wife may be joined with
claims by or against either of them separately.
107 Claims by or against an executor or administrator as such may
be joined with claims by or against him personally, provided the last-
mentioned claimes are alleged to arise with reference to the estate in
respect of which the plaintiff or defendant sues or is sued as executor
or administrator.
108 Claims by plaintiffs jointly may be joined with claimes by them
or any of them separately against the same defendant.
109 the last three preceeding sections shall be subject to sections
103 and 110.
110-(1) Any defendant alleging that the plaintiff has united in
the same action several causes of action which cannot be conveniently
disposed of together may at any time apply to the Court for any order
confining the action to such of the causes of action as may be conveniently
disposed of together.
(2) If, on the hearing of such application, it appears to the Court
that the causes of action are such as cannot all be conveniently disposed
of together, the Court may order any such causes of action to be
excluded and consequential amendments to be made, and may make
such order as to costs as may be just.
CHAPTER IV.
PLEADINGS.
General Rules of Pleading.
111 The following rules of pleading shall be used in the Court.
112-(1) Every pleading shall contain, and contain only, a state-
ment in a summary form of the material factos on which the party plead- ing relies for his claim or defence, as the case may be; but not the
evidence by which they are to be proved.
(2) It shall, when necessary, be divided into paragraphs, numbered
consecutively, and each paragraph shall, as nearly as may be, contain a
separate and distinct statment or allegation.
(3) Dates, sums, and numbers shall be expressed in figures and not
in words.
113 Signature of counsel shall not be necessary; but where a pleading
has been settled by counsel it shall be signed by him; and, if not so
settled, it shall be signed by the solicitor, or by the party, if the sues or
defends in person.
114 In all cases in which the party pleading relies on any misrepre-
sentation, fraud, breach of trust, wilful default, or undue influence and
in all other cases in which particulars may be necessary, particulars (with
dates and items if necessary) shall be stated i nthe pleading: Provided
that if the particulars are debt, expenses, or damages, and exceed
three folios, the fact must be so stated, with a reference to full parti-
culars already delivered or to be delivered with the pleading.
115 a further and better statemetn of the nature of the claim or
defence, or further and better partuculars of any matter stated in any
pleading, notice, or written proceeding requiring particulars, may in all
cases be ordered, on such terms as to costs and otherwise as may be
just.
116-(1) The party at whose instance any particulars have been
delivered under an order of the Court shall, unless the order otherwise
provides, have the same lenght of time for pleading after the delvery
of the particulars that he had at the return of the summons.
(2) Except as in this section provided, an order for particulars shall
not, unless the order otherwise provides, operates as a stay of proceedings
or give any extension of time.
117 Nothing in this Code shall affect the right of any defendant to
plead not guilty by statute; and every defence of not guilty by statute
shall have the same effect as a plea of not guilty by statute has hereto-
fore had: Provided that if the defendant so pleads, he shall not plead any
other defence to the same cause of action, without the leave of the Court.
118 Every allegation of fact in any pleading, not being a petition or
summons, if not denied specifically or by necessary implication, or stated
to be not admitted, in the pleading of the opposite party, shall be taken
be admitted, except as against an infant, lunatic, or person of unsound
mind not so found by inquisition.
119 Any condition precedent the performance or occurrence of
which is intended to be contested shall be distinctly specified in his
pleading by the plaintiff or defendant, as the case may be; and, subject
thereto, an averment ofthe performance or occurrence of all conditions
precedent necessary for the case of the plaintiff or defendant shall be
implied in his pleading.
120 The defendant or plaintiff, as the case may be, must raise by
his pleading all matters which show the action or counterclaim not to be
maintainable or that the transaction is either void or voidanble in point
of law, and all such ground s of defence or eply, as the case may be,
as if not raised would be likely to take the opposite party by surprise
or would raise issues of fact not arising out of the proceeding pleadings,
as for instance, fraud, statute of limitations, release, payment, perform-
ance, factos showing illegality either by statue or common law, or the
Statue of Frauds.
121 No pleading, not being a petition or summons, shall, except by
way of amendment, raise any new ground of claim or contain any
allegation of fact inconsistent with the previous peleadings of the party
pleading the saem.
122 It shall not be sufficient for a defendant in his statement of
defence to deny generally the grounds alleged by the statemetn of
claim, or for a plaintiff in his answer to a countercliam to deny generally
the grounds alleged in the counterclaim, but each party must deal
specifically with each allegation of fact of which he does not admit the
turth, except damages.
123-(1) the plaintiff by his reply, if any, may join isssue upon
the statment of defence, and each party in his pleading, if any, subsequent
to reply may join issue upon the previous pleading.
(2) such joinder of issue shall operate as a denial of evry material
allegation of fact in the pleading upon which issue is joined, but it may
except any facts which the party may be willing to admit, and shall
then operate as a denial of the facts not so admitted.
124 When a party in any pleading denies an allegation of fact in
the previous pleading of the opposite party, he must not do so evasively,
but answer the point of substance. Thus, if it is alleged that he received
a certain sum of money, it shall not be sufficient to deny that he
received that particular amount, but he must deny that he received that
sum or any part thereof, or else set out how much he received. And if
an allegation is made with divers circumstances, it shall not be suficient
to deny it along with those circumstances. 125 Where a contract, promise, or agreement is alleged in any
pleding, a bare denial of the same by the opposite party shall be
contrused only as a denial in fact of the express contract, promise, or
agreement alleged, or of the matters of fact from which the same may
be implied by law, and not a denial of the legality or sufficiency in
law of such contract, promise, or agreement, whether with reference to
the Statute of Frauds or otherwise.
126 Where the contents of any document are material, it shall be
sufficient in any pleading to state the effect thereof as briefly as possible,
without setting out the whole our any part thereof, unless the precise
words of the document or any part thereof are material.
127 Where it is material to allege malice, fraudulent intention,
knowledge, or other condition of the mind of any person, it shall be
sufficient to allege the same as a fact without setting out the circum-
stances from which the same is to be inferred.
128 Where it is material to allege notice to any person of any fact,
matter, or think, it shall be sufficient to allege such notice as a fact,
unless the form or the precise terms of such notice, or the circumstances
from which such notice is to be inferred, is or are material.
129-(1) When any contract or any relation between any persons
is to be implied from a series of letters or conversations or otherwise
from a number of circumstances, it shall be sufficient to allege such
contract or relation as a fact, and to refer generally to such letters,
conversations, or circumstances without setting them out in detail.
(2) If, in any such case, the person so pleading desires to rely in the
alternative upon more contracts or relations than one as to be implied
from such circumstances, he may state the same in the alternative.
130 neither party need in any pleading allege any matter of fact
which the law presumes in his favour or as to which the burden of
proof lies upon the other siede, unless the same has first been specifically
denied, as, for example, consideration for a bill of exchange, where the
plaintiff sues only on the bill and not for the consideration as a sub-
stantive ground of claim.
131 No technical objection shall be raised to any pleading on the
ground of any alleged want of form.
132 The Court may, at any stage of the proceedings, order to be
struck out or amended any matter in any indorsement or pleading
which may be unnecessary or scandalous or which may tned to prejudice,
embarrass, or delay the fair trial of the action; and may in any such case, if it thinks fit, order the costs of the application to be paid as
between solicitor and client.
133 Where the circumstances of the case appear to require it, the
Court may, on the application of the opposite party or of its own motion,
order any party to verify his pleading, or any part thereof, upon oath
or by affidavit.
134 Every pleading shall be as brief as the nature of the case will
admit, and the Registrar, in taxing the costs of the action, shall at the
instance of any party, or may of his own motion, inquire into any un-
necessary prolixity, and order the costs occasioned by such prolixity to
be borne by the party chargeable with the same.
Statement of Claim.
135-(1) After the appearance of the defendant to the action, or
in case of his non-appearance, then by leave of the Court, the plaintiff
may file in the Registry a statement of his claim and of the relief or
rememdy required in the action.
(2) At any time after his appearance to the action, the defendant
may give notice in writing to the plaintiff or his solicitor requiring him
to file his statement of claim; and the plaintiff shall, unless otherwise
ordered by the Court, file his statement of claim within five weekds from
the time of his receiving such notice.
(3) In no case where the defendant has appeared shall a statement
of claim be filed more than six weeks after the appearance has been en-
tered, unless otherwise ordered by the Court.
136 The statement of claim shall specify the name, description, and
place of abode of the plaintiff and of the defendant, so far as they can
be ascertained, and shall correspond in those particulars with the writ
of summons.
137 The statement of claim may alter, modify, or extend the plain-
tiff's claim without any amendment of the indorsement of the writ of
summons.
138-(1) The statement of claim shall state specifically the relief
which the plaintiff claims, either simply or in the alternative, and it
shall not be necessary to ask for general or other relief, which may
always be given, as the Court may think just, to the same extent as if
it had been asked for.
(2) The same rule shall apply to any relief claimed by the defendant
in his statement of defence and to any counterclaim made by him. 139-(1) Where the plaintiff seeks relief i nrespect of several dis-
tinct claims or causes of complaint founded upon separte and distinct
grounds, they shall be stated, as far as may be, separately and distinctly.
(2) The same rule shall apply where the defendant relies upon several
distinct grounds of defence, set-off, or counterclaim founded upon sep-
arate and distinct facts.
Service of Statement of Claim.
140 After the filing of the sttatement of claim, the plaintiff shall forth-
with cause a copy thereof under the Seal of the Court to be served on the
defendant, and such copy shall contain a memorandum indorsed thereon
requiring the defendant to file a statement of defence to the statemetn
of claim within three weeks from the day of such service or, in a case
of service out of the jurisdiction, within such time as the Court may
have ordered: Provided that no such service of the statement of claim
shall be required to be made on any defendant who has failed to enter
an appearance and as against whom the plaintiff has obtained the leave
of the Court to proceed with his action ex parte.
141 Where service of the writ of summons is directed to be made
out of the jurisdiction, the Court may order that the statement of claim
be filed forthwith and that a copy thereof under the Seal of the Court
be served on the defendant concurrently with the writ.
Staying Proceedings for Defect in Statment of Claim.
142 Where a statement of claim is defective on the face of it by
reason of non-compliance with any provision of this Code, the Court may,
either on the application of the defendant or of its own motion, make an
order to stay proceedings in the action until the defect is remedied.
Statment of Defence.
143 The defendant shall file in the Registry a statement of defence
to the statement of claim within three weeks from the date of the service
thereof or, in a case of srvice out of the jurisdiction, within such time
as the Court may have ordered.
144-(1) the defendant may apply to the Court for further time to
file his statement of defence, on a summons stating the further time
required.
(2) the application, unless it is consented to, must be supported by
affidavit, or, if the Court in its discretion permits, by oral evidence upon
oath, showing that there is reasonable ground for the application and
that is not made for the purpose of delay. 145-(1) If the defendant neglects to file a statement of defence
within the time or further time allowed, as the case may be, he shall
not be at liberty to file a statement of defence without the leave of the
Court or the consent of the plaintiff.
(2) The Court may grant such leave, on such terms as may seem
just, by order made on the application of the defendant.
146-(1) The statment of defence must deny all such material
allegations in the statment of claim as the defendant intends to deny
at the trial.
(2) In an action for a debt or liquidated demand in money comprised
in section 19, a mere denial of the debt shall be inadmissible.
(3) In an action upon a bill of exchange, promissory note, or cheque,
a defence in denial must deny some matter of fact, as, for example, the
drawing, making, indorsing, accepting, or notice of dishonour of the
bill or note.
147 No denail or defence shall be necessary as to damages claimed
or their amount; but they shall be deemed to be put in issue in all
cases, unless expressly admitted.
148 Where the Court is of opinion that any allegation of fact denied
or not admitted by the statement of defence ought to have been admitted,
the court may make such order as may be just with respect to any
extra costs occasioned by its having been denied or not admitted.
149 Where a party pleads the general issue, intending to give the
special matter in evidence by virtue of an Act of Parliament or Ordi-
nance, he shall insert in the margin of his pleading the words 'by
statute' together with the year of the reign in which the Act of Par-
liament on which he relies was passed, and also the chapter and section
of such Act or the year, number, and section of the Ordinance on which
he relies, as the cse may be, and shall specify whether such Act or
Ordinance is public or otherwise; otherwise such defence shall be taken
not to have been pleaded by virtue of an Act of Parliament of Ordinance.
150 No plea or defence shall be pleaded in abatement.
151 After the filing of the statement of defence, thedefendant shall
forthwith cause a copy thereof under the Seal of the Court to be served
on the plaintiff.
Certain Special Defences.
152 With a defence setting up a tneder before action, the sum of
money alleged to have been tenered must be brought into Court. 153 Where an action is brought to recover a debt or damages, any
defendant may, before or at the time of filing his statement of defence
or at any later time by leave of the Court, pay into Court a sum of
money by way of satisfaction, which shall be taken to admit the claim
or cause of action in respect of which the payment is made; or he may,
with a defence denying liability, (except in an action or counterclaim
for libel or slander), pay money into Court, which shall be subject to
the provisions of section 157: Provided that, in an action on a bond
under the Act of Parliament 8 and a9 William III, Chapter 11, entitled
'An Act for the better preventing Frivolous and Vexatious Suits,'
payment into Court shall be admissible to particular breaches only and
not to the whole action.
154 Payment into Court shall shall be signified in the statment of de-
fence, and the claim or cause of action in satisfaction of which such
payment is made shall be specified therein.
155 If the defendant pays money into Court before filing his state-
ment of defence, he shall serve on the plaintiff a notice in writing
specifying both the fact that he has paid in such money and also the
claim or cause of action in respect of which such payment has been
made.
156 In the following cases of payment into Court under this Chapter,
namely,-
(1) when payment into Court is made before the filing of the state-
ment of defence;
(2) when the liability of the defendant, in respect of the claim or
cause of action in satisfaction of which the payment into Court has
been made, is not denied in the statement of defence; and
(3) when payment into Court is made with a defence setting up a
tender of the sum paid,
the money paid into Court shall be paid out to the plaintiff on his
request or to hissolicitor on the plaintiff's written authority, unless the
Court otherwise orders.
157 When the liability of the defendant, in respect of the claim or
cause of action in satisfaction of which the payment into Court has
been made, is denied in the statement of defence, the following rules
shall apply:-
(1) the plaintiff may accept, in stisfaction of the claim or cause of
action in respect of which the payment into Court has been made,
the sum so paid in, in which case he shall be entitled to ahve the
money paid out to him as hereinafter provided, notwithstanding
the defendant's denial of liability, whereupon all further proceed- ings in respect of such claim or cause of action, except as to costs,
shall be stayed; or the plaintiff may refuse to accept the moeny in
satisfaction, in which case the money shall remain in Court subject
to the provisions hereinafter contained;
(2) if the plaintiff accepts the sum so paid in, he shal, after service
on the defendant of a notice in writing accepting the sum paid in
in satisfaction of the claim or cause of action i respect of which
it has been paid in, be entitled to have the money paid out to
himself on request or to his solicitor on the plaintiff's written
authority, unless the court otherwise orders;
(3) if the plaintiff does not accept, in satisfaction of the claim or
cause of action in respect of which the payment into Court has
been made, the sum so paid in, but proceeds with the action in
respect of such claim or cause of action or any part thereof, the
money shall remain in Court and be subject to the order of the
Court, and shall not be paid out of Court except in pursuance of
an order of the Court;
(4) if the plaintiff proceeds with the action in respect of such claim
or cause of action, or any part thereof, and recovers less than the
amount paid into Court, the sum paid in shall be applied, so far as
may be necessary, in satisfaction of the plaintiff's claim, and the
balance, if any, shall, under such order, be repaid to the defendant;
and
(5) if the plaintiff proceeds with the action in respect of such claim
or cuase of action and the defendant succeeds in respect thereof,
the whole sum paid in shall, nder such order, be repaid to the
defendant.
158 The plaintiff, when payment into Court is made before the
filing of the statement of defence, may, within four days after the
receipt of notice of such payment, or, when such payment is first
signified in the statement of defence, may within four days after service
of the statement of defence, accept in satisfaaction of the claim or cause
of action in respect of which such payment has been made the sum so
paid in, in which case he shall give notice to the defendant accordingly,
and shall be at liberty, in case the entire claim or cause of action is
thereby satisfied, to tax his costs after the expiration of four days from
the service of such notice, unless the Court otherwise orders, and, in
case of non-payment of the costs within forty-eight hours after such
taxation, to sign judgment for his costs so taxed.
159 Where money is paid into Court in two or more actions which
are consolidated, and the plaintiff proceeds to trial in one, and fails, the
money paid in and the costs in all the actions shall be dealt with under the provisions of this Chapter relating to payment into Court and tender
in the same manner as in the action tried.
160 Where a cause or matter is tried by the Court with a jury, no
communication to the jury shall be made, until after the verdict has
been given, either of the fact that money has been paid into Court or of
the amount paid in. The jury shall be required to find the amount of
the debt or damages, as the case may be, without reference to any pay-ment
into Court.
161-(1) A defence of set-off to a claim for money, whether in
debt or in damages, must be accompanied by a statment of the parti-
culars of the set-off.
(2) If it is pleaded as a sole defence, it must also, unless it extends
to the whole amount of the plaintiff's claim, be accompanied by pay-
ment into Court of the amount to which, on the defendant's showing,
the plaintiff is entitled; and, in default of such payment, the defendant
shall be liable to bear the costs of the action, even if he succeeds in his
defence to the extent of the set-off pleaded.
Counterclaim.
162 Where the defendant raises a defence by way of set-off which,
in the opinion of the Court, is not admissible as set-off, the Court may,
either before or at the trial, on his application, give him liberty to with-
draw such defence and to made a counterclaim or bring a cross-action;
and may make such order for the trial of the action and the counter-
claim or cross-action, together or otherwise, and in such manner and on
such terms as to costs and other matters, as may seem just.
163-(1) Where a defendant in his statement of defence raises any
specific defence, and it appears to the Court that, on such defence being
established, he may be entitled to relief against the plaintiff in respect
of the subject-matter of the action, the Court may, on the application
of the defendant either before or at the trial, if under the circumstances
of the case it thinks fit, give liberty to the defendant to file a counter-
claim by a cross-statement of claim in the same action, asking for relief
against the plaintiff, either alone or along with other persons; and may
make such order for the conduct and trial of the action and the counter-
claim, together or otherwise, and in such manner and on such terms as
to costs and other matters, as may seem jsut.
(2) the Court may, if in any cae it thinks fit, require the plaintiff
to give security, the satisfaction of the Court, by deposit or otherwise,
to abide by and perform the decision of the Court n the counterclaim. 164 Any person not originally a party to the action who is served
with a counterclaim must appear thereto as if he had been served with
a writ of summons in an action.
165 Any person named as a party to a counterclaim may file a state-
ment of defence thereto within the time within which he might file a
statement of defence if it were a statement of claim.
166 When a counterclaim is pleaded, a statement of defence thereto
shall be subject to the rules applicable to statments of defence.
167 If in any case in which the defendant sets up a counterclaim
the action of the plaintiff is stayed, discontinued, or dismissed, the
counterclaim may nevertheless be proceeded with.
Reply and Subsequent Pleadings.
168-(1) The plaintiff shall file in the Registry his reply, if any,
within three weeks from the date of the service of the statement of
defence or of the last of the statements of defence.
(2) No pleading subsequent to reply shall be pleaded without the
leave of the Court, and then only on such terms as the Court may
think fit.
Default of Pleading.
169-(1) If the plaintiff does not file a reply, or any party does not
file any subsequent pleading, within the time allowed for that purpose,
the pleadings shall be deemed to be closed at the expiration of that
period, and all the material statments of fact in the pleading last filed
shall be deemed to have been denied and put in issue.
(2) In any case in which issues arise in an action other than
between plaintiff and defendant, if any party to any such issue makes
default in filing any pleading, the opposite party may apply to be
Court for such judgment, if any, as upon the pleadings he may appear
to be entitled to; and the Court may order judgement to be entered
accordingly or may make such other order as may be necessary to do
complete justice between the parties.
Matters arising pending the Action.
170-(1) Any ground of defence which has arisen after action
brought, but before the defendant has filed his statement of defence
and before the time limited for his doing so has expired, may be raised
by the defendant in his statement of defence, either alone or together
with nay other ground of defence. (2) If, after a statement of defence hasbeen filed, any ground of
defence arises to any set-off alleged therein by the defendant, it may be
raised by the plaintiff in his reply, if any, either alone or together with
any other ground of reply.
171 Where any ground of defence arises after the defendant has
filed his statement of defence or after the time limited for his doing so
has expired, the defendant may, and where any ground of defence to
any set-off or counterclaim arises after reply, if any, or after the time
limited for filing a reply, if any, has expired, the plaintiff may, within
eight days after such ground of defence has arisen or at any subsequent
time by leave of the Court, file a further statement of defence or further
reply, as the case may be , setting forth the same.
172 Where the defendant, in his statement of defence or in a fur-
ther statement of defence as in the last preceding section mentioned,
alleges any ground of defence which has arisen after the commencement
of the action, the plaintiff may file a confession of such defence, and
may thereupon sign judgment for his costs up to the time of the plead-
ing of such defence, unless the court, either before or after the filing
of such confession, otherwise orders.
Proceedings in lieu of Demurrer.
173 No demurrer shall be allowed in any action or other proceeding.
174 Any party shall be entitled to raise by his pleding any point
of law, and any point so raised shall be disposed of by the Court at or
after the trial, provided that, by consent of the parties or by order of
the Court on the application of any party, the same may be set down
for hearing and disposed of at any time before the trial.
175 If, in the opinion of the Court, the decision of such point of
law substantially disposes of the whole action or of any distinct cause
of action, ground of defence, set-off, counterclaim, or reply therein, the
Court may thereupon dismiss the action or make such other order there-
in as may be just.
176 The Court may order any pleading to be struck out, on the ground
that it discloses no reasonable cause of action or defence, and in
any such case, or in case of the action or defence being shown by the
pleadings to be frivolous or vexatious, the Court may order the action
to be stayed or dismissed, or judgment to be entered accordingly, as
may be just. 177 No action or other proceeding shall be open to objection on the
ground that a merely declaratory judgement or order is sought thereby;
and the court may make binding delcarations of right wheter any
consequential relief is or could be claimed or not.
CHAPTER V.
AMENDMENT.
178 The Court may, at any stage of the proceedings, allow either
party to alter or amend his indorsement or pleading or particulars, in
such manner and on such terms as may be just, and all such amend-
ments shall be made as may be necessary for the purpose of determining
the real questions in controvesy between the parties.
179 Application for leave to amend may be made by either party to
the Court, and such amendment may be allowed on such terms as to
costs or otherwise as may be just.
180 The statement of claim may be amended at any time before the
statment of defence has been filed, by leave of the Court obtained
ex parte.
181 Where the plaintiff considers the contents of the statement of
defence to be such as to render an amendment of the statment of claim
necessary or desirable, he may obtain ex parte an order to amend the
statement of claim, on satisfying the Court that the amendment is not
intended for the purose of delay or vexation, but is considered to be
material for the plaintiff's case.
182 If a party who has obtained an order for leave to amend does
not amend accordingly within the time limited for that purpose by the
order, or, if no time is therby limited, then within fourteen days from
the date of the order, such order to amend shall, on the expiration of
such limited time as aforesaid or of such fourteen days, as the case
may be, become ipso facto void, unless the time is exteended by the
Court.
183 Whenever any indorsement, pleading, or particulars is or are
amended, the same when amended shall be marked with the date of the
order, if any, under which the same is or are amended, and of the
day on which such amendment is made, in manner following, viz.,
'Amended the day of , 19 , pursuant to order of
dated the day of , 19 .'
184 Whenever any indorsement, pleading, or particulars is or are
amended, such amended document shall be filed within the time allowed for amending the same, and a copy thereof under the Seal of the Court
shall forthwith be served on the opposite party.
185 Any clerical mistake in any judgment or order, or any error
arising therein from any accidental slip or omission, may at any time
be corrected by the Court, on motion or summons, without an appeal.
186 The Court may at any time, and on such terms as to costs
or otherwise as the Court may think just, amend any defect or error in
any proceedings, and all necessary amendments shall be made for the
purpose of determining the real question or issue raised by or depending
on the proceedings.
CHAPTER VI.
DISCOVERY, INSPECTION, AND ADMISSIONS.
Discovery.
187 In any cause or matter the plaintiff or defendant may, by leave
of the Court, deliver interrogatories in writing for the examinaion of
the opposite parties or any one or more of such parties, and such inter-
rogatories when delivered shall have a note at the foot thereof, stating
which of such interrogatories each of such persons is required to answer:
Provided that no party without an order for that purpose: Provided, also,
that interrogatories which do not relate to any matters in question in
the cause or matter shall be deemed irrelevant, notwithstanding that
they might be admissible on the oral cross-examination of a witness.
188-(1) On an application for leave to deliver interrogatories, the
particular interrogatories proposed to be delivered shall be submitted
to the Court.
(2) In deciding upon such application, the Court shall take into
account any offer which may be made by the party sought to be inter-
rogated to deliver particulars, or to make admissions, or to produce
documents relating to the matters in question or any of them, and leave
shall be given as to such only of the interrogatories submitted as the
Court may consider necessary either for disosing fairly of the cause or
matter or for saving costs.
189 In adjusting the costs of the cause or matter, inquiry shall, at
the instance of any party, be made into the propriety of exhibiting such
interrogatories, and if it is the opinion of the taxing officer or of the
Court, either with or without an application for inquiry, that such
interrogatories have been exhibited unreasonably, vexatiously, or at
improper length, the cost occasioned by the said interrogatories and
the answers thereto shall be paid in any event by the party in fault. 190 If any party to a cause or matter is a bod corporate or a
joint stock company, whether incorporated or not, or any other body of
persons empowered by law to sue or be sued, whether in its own name
or in the name of any oficer or other person, any opposite party may
apply to the Court for an order allowing him to deliver interrogatories
to any member or officer of such corporation, company, or body, and an
order may be made accordingly.
191-(1) Any interrogatories may be set aside on the ground that
they ahve been exhibited unreasonably or vexatiously, or struck out on
the ground that they are prolix, oppressive, unnecessar, or scandalous.
(2) Any application for this purpose may be made within seven days
after service of the interrogatories.
192 Interrogatories shall be answered by affidavit to be filed within
ten days or within such other time as the Court may allow.
193 Any objection to answering any one or more of several inter-
rogatories on the ground that it or they is or are scandalous or irrelevant
or not bona fide for the purpose of the cause or matter, or that the
matters inquired into are not sufficiently material at that stage, or on
any other ground, may be taken in the affidavit in answer.
194 No exception shall be taken to any affidavit in answer to inter-
rogatories, but the sufficiency or otherwise of any such affidavit objected
to as insufficient shall be determined by the Court on summons.
195 If any person interrogated omits to answer or answers insuffi-
ciently, the party interrogating may apply to the Court for an order
requiring him to answer or to answer further, as the case may be, and
an order may be made requiring him to answer or answer further, either
by affidavit or by viva voce examination, as the Court may direct.
196-(1) Any party may, without filing any affidavit, apply to the
Court for an order directing any other party to any cause or matter to
make discovery upon oath of the documents which are or have been in
his possession or power, relaing to any matter in question therein.
(2) On the hearing of such application, the Court may either refuse
or adjourn the same, if satisfied that such discovery is not necesssary or
not necessary at that stage of the cause or matter, or make such order,
either generally or limited to certain classes of documents, as may, in
its discretion, be thought fit: Providied that discovery shall not be
ordered when and so far as the Court is of opinion that it is not necessary
either for disposing fairly of the cause or matter or for saving
costs.
(3) the affidavit to be made by the party against whom such order has been made shall specify which, if any, of the documents therein
mentioned he objects to produce and on waht grounds.
197-(1) The Court may, on the application of any party to a cause
or matter, at any time, and whether an affidavit of documents has or
has not already been ordered or made, make an order rquiring any
other party to state by affidavit whether any one or more specific docu-
ments, to be specified in the application, is or are or has or have at any
time been in his possession or power; and, if not then in his possession,
when he parted with the same and what has become thereof.
(2) Such applciation shall be made on an affidavit stating that, in
the belief of the deponent, the party against whom the application is
made has, or has at some time had, in his possession or power, the document
or documents specified in the application, and that it or they
relates or relate to the matters in question in the cause or matter or to some
of them.
198 It shall be lawful for the Court, at any timeduring the pend-
ency of any cause or matter, to order the production by any party
thereto, upon oath, of such of the documents in his possession or power,
relating to any matter in question in such cause or matter, as the Court
may think right; and the Court may deal with such documents, when
produced, in such manner as may appear just.
Inspection.
199-(1) Every party to a cause or matter shall be entitled, at any
time, by notice in writing, to give notice to any other party, in whose
pleadings, particulars, or affidavits reference is made to any document,
to produce such document for the inspection of the party giving such
notice or of his solicitor, and to permit him or his solicitor to take copies
thereof.
(2) Any party who does not comply with such notice shall not after-
wards be at liberty to put any such document in evidence on his behalf
in such cause or matter, unless he satisfies the Court that such document
relates only to his own title, he being a defendant in the cause or matter,
or that he had some other cause or excuse which the Court may deem
sufficient for not complying with such notice; in which case the Court
may allow the same to be put in evidence, on such terms as to costs and
otherwise as the court may think it.
200 The party to whom such notice is given shall, within two days
from the receipt of such notice, if all the documents therein referred to
have been set forth by him in an affidavit for the discovery of documents,
or, if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt
of such notice, delvier to the paty giving the same a notice stating a
time, within three days from the delivery therof, at which the documents,
or such of them ashe does not object to produce, may be inspected
at the office of his solicitor, or, in the case of bankers' books, or other
books of accounts or books in constant use for the purposes of any trade
or business, at their usual place of custody, and stating which, if any, of
the documents he objects to produce and on what grounds.
201-(1) If the party served with notice under the last preceding
section omits to give such notice of a time for inspection, or objects to
give inspection, or offers inspection elsewhere than at the office of his
solicitor, the Court may, on the application of the party desiring it,
make an order for inspection in such place and in such manner as it
may think fit: Provided that the order shall not be made when and so
far as the Court is of opinion that it is not necessary either for disposing
fairly of the cause or matter or for saving costs.
(2) Any application to inspect documents, except such as are referred
to in the pleadings, particulars, or affidavit of documents, shall
be fonded on an affidavit showing of what documents inspection is
sought, that the party applying is entitled to inspec them, and that they
are in the possession or power of the other party. The Court shall not
make such order for inspection of such documents when and so far as
the Court is of opinion that it is not necessary either for disposing fairly
of the cause or matter or for saving costs.
202 Where inspection of any business book is applied for, the Court
may, if it thinks fit, instead of ordering inspection of the original book,
order a copy of any entries therein to be furnished and verified by the
affavit of some person who has examined the cop with the original
entries, and such affidavit shall state whether or not there are in the
original book any and what erasures, interlineations, or alterations:
Provided that, notwithstanding that such copy has been supplied, the
Court may order inspection of the book from which the copy was made.
203 Where, on an application for an order for inspection, privilege
is claimed for any document, it shall be lawful for the Court to inspect
the document for the purpose of deciding as to the validity of the claim
of privilege.
Discovery and Inspection.
204 If the party from whom discovery of any kind or inspection is
sought objects to the same or any part threeof, the court may, if satis-
fied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute i the cause or matter,
or that for any other resaon it is desirable that any issue or question in
dispute in the cause or matter should be determined before deciding on
the right to the discovery or inspection, order that such issue or question
be determined first, and reserve the question as to the discovery or in-
spection.
205-(1) if any party fails to comply with any order to answer
interrogatories or for discovery jor inspection of documents, he shall be
liable to attachemtn.
(2) He shall also, if a plaintiff, be liable to have his action dismissed
for want of prosecution, and, if a defendant, to have his statement of
defence, if any, struck out, and to be placed in the same position as if
he had not defended, and the party interrogating or applying may
apply to the court for an order to that effect, and an order may be made
accordingly.
206-(1) Service of an order for interrogatories or discovery or
inspection made against any party on his solicitor shall be sufficient
the order; but the party against whom the application for an attachemtn
is made may show in answer to the application that he has had no
notice or knowledge of the order.
(2) A solicitor, on whom an order against any party for interroga-
tories or discovery or inspection is served under this section, who
neglects without reasonable excuse to give notice thereof to his client
shall be liable to attachment.
207 Any party may, at the trial of a cuase, matter, or issue, use in
evidence any one or more of the answers or any part of an answer of
the opposite party to interrogatories, without putting in the others or
the whole of such answer: Provided that in such case the Judge may
look at the whole of the answers, and if he is of opinion that any others
of them are so conneced with those put in that the last-mentioned
ansers ought not to be used without them, he may direct them to be
put in.
208 In any action against or by a Bailiff in respect of any matter
connected with the execution of his office, the Court may, on the application
of either party, order that the affidavit to be made in answer
either to interrogatories or to an order for discovery shall be made by
the officer actually concerned.
209 The preceding provisions of this Chapter shall apply to infant
plaintiffs and defendants and to their next friends an guardians ad litem. Admissions, etc.
210 Any party may give notice, by his pleading or otherwise in
writing, that he admits the truth of the whole or any part of the case
of any other party.
211-(1) Any party may call upon any other party to admit any
document, saving all just exceptions; and in case of refusal or neglect
to admit, afte such notice, the costs of proving such document shall be
paid by the party so refusing or neglecting, whatever the result of the
casue or matter may be, unless at the trial or hearing the Court certifies
that the refusal or neglect to admit was reasonable, or unless the Court
at any time otherwise orders or directs.
(2) No costs of provding any document shall be allowed unless such
notice is given, except where the omission to given the notice is, in the
opinion of the taxing officer, a saving of expense.
212 Any party may, by notice in writing, at any time not later than
seven days befor the day on which a cause, matter, or issue is to be tried
or heard, call on any other party to admit, for the puroses of the cause,
matter, or issue only, any specific fact or facts mentioned in such notice;
and in case of refusal or neglect to admit the same within four days
after service of such notice, or within such further time as may be
allowed by the Court, the costs of proving such fact or factos shall be
paid by the party so refusing or neglecting, whatever the result of the
cause, matter, or isssue may be, unless at the trial or hearing the Court
certifies that the refusal or neglect to admit was reasonable, or unless
the Court at any time otherwise orders or directs: Provided that any
admission made in pursuance of such notice is to be deemed to be made
only for the purposes of the particular cause, matter, or issue, and not
as an admission to be used against the party on any other occasion or in
favour of any person other than the party giving the notice: Providied,
also, that the Court may at any time allow any party to amend or
withdraw any admission so made, on such terms as may be just.
213 An affidavit of the solicitor or his clerk of the due signature of
any admission made in pursuance of any notice to admit documents or
facts shall be sufficient eveidence of such admission, if evidence thereof
is required.
214 Any party may, at any stage of a cause or matter, where ad-
missions of fact have been made, either on te pleadings or otherwise,
apply to the Court for such judgment or order as upon such dmissions
he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may, on such application,
give such judgment or make such order as the Court may think
just.
215 An affidavit of the solicitor or his clerk of the service of any
notice to produce or admit and of the time when it was served, with a
copy of the notice to produce, shall in all cases be sufficient evidence of
the service of the notice and of the time when it was served.
216 If a notice to produce or admit comprises documents which are
not necessary, the costs occasioned thereby shall be borne by the party
giving such notice.
CHAPTER VII.
ISSUES, INQUIRIES, AND ACCOUNTS.
Issues.
217 Where in any cause or matter it appears to the Court that the
issues of fact in dispute are not sufficiently defined, the parties may be
directed to prepare issues, and such issues shall, if the parties differ, be
settled by the Court.
218 It shall be in the discretion of the Court to direct which issues
shall be first disposed of.
219 At any time before the decision of the cause or matter, the
Court may either amend the issues or frame additional issues, on such
terms as it may think fit.
Direction for Inquiries or Accounts.
220 The Court may, at any stage of a cause or matter, direct any
necessary inquires or accounts to be made or taken, notwithstanding
that it may appear that threr is some special or further relief sought or
some special issue to be tried, as to which it may be proper that the
cause or matter should proceed in the usual manner.
221 The Court may, either by the judgment or order directing an
account to be taken or by any subsequent order, give special directions
with regard to the mde in which the account is to be taken or vouched,
and in partiuclar may direct tha, in taking the account, the books of
account in which the accounts in question have been kept shall be taken
as prima facie evidence of the truth of the matters therein contained,
with liberty to the paries interested to take such objections thereto as
they may be advised. 222-(1) Where any account is directed to be taken, the account-
ing party, unless the Court otherwise directs, shall make out his accont
and verify the same by affidavit.
(2) The items on each side of the account shall be numbered con-
secutively, and the account shall be referred to by the affidavit as an
exhibit and be left in the Judge's Chambers or with the Registrar or
any refere, as the case may be.
223 Upon the taking of any account, the Court may direct that the
vouchers shall be produced at the office of the solicitor of the accounting
party or at any other convenient place, and that only such items as shall
be contested or surcharged shall be brought before the Judge in Cham-
bers or the Registrar or referee, as the case may be.
224 any party seeking to charge any accounting party beyond what
he has by his account admitted to have received shall give notice there-
of to the accounting party, stating, so far as he is able, the amount
sought to be cahrged and the particulars thereof in a short and succinct
manner.
225 Every judgment or order for general account of the personal
estate of a testator or intestate shall contain a direction for an inquiry
what parts, if any, of such person al estate are outstanding or undisposed
of, unless the Court otherwise directs.
226 Where by any judgment or order, whether made in Court or in
Chambers, any accounts are directed to be taken or inquiries to be
made, each such direction shall be numbered so that, as far as may be,
each distinct account and inquiry may be designated by a number.
227 In taking any account directed by any judgment or order, all
just allowances shall be made without any direction for that purose.
228-(1) If it appears to the Court, on the representation of the
Registrar or otherwise, that there is any undue delay in the prosectuion
of any accounts or inquiries or in any other proceedings under any
judgment or order, the Court may require the party having the conduct
of the proceedings, or any other party, to explain the delay, and may
thereupon make such order with regard to expediting the proceedings,
or the conduct thereof, or the stay thereof, and as to the costs of the
proceedings, as the circumstances of the case may require.
(2) For the purposes aforesaid, any party or the Registrar may be
directed to summon the persons whose atttendance is required, and to
conduct any proceedings, and to carry out any directions which may be
given; and any costs of the Registrar shall be paid by such parties or
out of such funds as the Court may direct. CHAPTER VIII.
SPECIAL CASE.
229-(1) The parties to any cause or matter may concur in stating
any question of law arising therein in the form of a speical case for the
opinion of the Court.
(2) The case shall be divided into paragraphs numbered consecu-
tively, and shall state concisely such facts and documents as may be
necessary to enable the Court to decide the questions raised thereby.
(3) On the argument of the case, the Court and the parties shall be
at liberty to refer to the whole contents of such documents, and the
Court shall be at liberty to draw from the facts and documents stated in
the case any infreence, whether of fact or of law, which might have
been drawn therefrom if proved at a trial or hearing.
230 If it appears to the Court that there is in any cause or matter
a qustion of law, which it would be convenient to have decided before
any evidence is given or any question or issue of fact is tried, or before
any reference is made to an arbitrator or otherwise, the Court may make
an order accordingly, and may direct such question of law to be raised
for the opinion of theCourt, either by special case or in such other
manner as the Court may deem expedient; and all such further pro-
ceedings as the decision of such question of law may render unnecessary
may thereupon be stayed.
231 Every special case shall be prepared by the plaintiff and signed
by the several parties or their counsel or solicitors, and shall be filed in
the Registry by the plaintiff.
232-(1) No special case in any cause or matter to which a married
woman (not being a party thereto in respect of here separate property or
of any separate right of action by or against her), infant, or person of
unsound mind, not so found by inquisition, is a party shall be set down
for argument wihtout the leave of the Court.
(2) The application for such leave must be supported by sufficient
evidence that the statements contained in such special case, so far as the
same affect the interest of such married woman, infant, or person of
unsound mind, are true.
233 Either party may enter a special case for argument by deliver-
ing to the Registrar a memorandum of entry, but subject to the provi-
sions of the last preceding section.
234-(1) The parties to a special case may, if they think fit, enter
into an agreement in writing (which shall not be subject to any stamp
duty) that, on the judgment of the Court being given in the afirmative
or negative of the questions of law raised by the special case,-
(a) a sum of money, fixed by the parties or to be ascertained by the
Court or in such manner as the Court may direct, shall be paid
by one of the parties to the other of them; or
(b) some property, movalbe or immovable, specified in the agreement,
shall be delivered by one of the parties to the other of them; or
one or more of the parties shall do or perform, or shall refrain
from doing or performing, some partiuclar act specified in the
agreement,
either with or without costs of the cause or matter or with the costs left
to the discretion of the Court.
(2) Where the agreement is for the delivery of some property, mov-
able or immovable, or for the doing or performing or the refraining from
doing or performing some particular act, the estimated value of the pro-
perty to be delivered, or to which the act specified has reference, shall
be stated in the agreement.
235 Upon the decision of the Court on such questions the judgment
of the Court may be entered accordingly, with or wihtout costs, as the
case may be, and execution may issue upon such judgment forthwith,
unless otherwise agreed or unless stayed on appeal.
236-(1) It shall be lawful for persons interested or claiming to be
interested in any question cognizable in the Court as to the construction
of any Act of Parliament, Ordinance, will, deed, or other instrument in
writing, or anything therein contained, or as to the title or evidence of
title to any movable or immovable property contracted to be sold or other-
wise dealt with, or as to the parties to or the form of any deed or instru-
ment for carrying any such contract into effect, or as to any toher matter
falling within the equitable jurisdiciton fo the Court ormade sjubject to
the jurisdiction or authority of the Court by any statute, not being one
of the statues relating to bankruptcy, and including among such persons
all lunatics, married women, and infants, to concur in stating such ques-
tion in the form of a special case for the opinion of the Court, and it
shall also be lawful for all trustees, executors, and administrators to
concur in such case.
(2) It shall be lawful for the Court, on the hearing of any such special
case, to determine the questions raised therein or any of them, and by a
judgment to declare its opinion thereon and, so far as the case admits of
the same, upon the right involved therein, without proceeding to adminis-
ter any relief consequent upon such declaration.
(3) Every such declaration of the Court contained in any such judg-
ment shall have the same force and effect as such delcaration would have had, and shall be binding to the same extent as such declaration would
have been, if contained in a judgment given in an action between the
same parties: Provided that if, on the hearing of any such special case,
the Court is of opinion that the questions raised thereby or any of them
cannot properly be decided upon such case, the Court may refuse to
decide the same.
(4) Every trustee, executor, administrator, or other person making
any payment or doing any act in conformity with the declaration con-
tained in any judgment given upon any such special case shall in all
respects be as fully and effectually protected and indemnified by such
declaration as if such payment had been made or act done under or in
pursuance of the express order of the Court made in an action between
the same parties, save only as to any rights or claims of any person in
respect of matters not determined by such declaration.
237 This Chapter shall apply to every special case stated in a cause
or matter, or in any proceeding incidental thereto, whether under this
Code or otherwise.
CHAPTER IX.
ISSUES OF FACT WITHUT PLEADINGS.
238-(1) When the parties to any cause or matter are agreed as to
the questions of fact to be decided between them, they may, after writ
issued and before judgment, by consent and order of the Court, proceed
to the trial of any such questions of fact without formal pleadings.
(2) Such questions may be stated for trial in an issue, and such issue
may be entered for trial and tried in the same manner as any issue joined
in an ordinary action, and the proceedings shall be under the control and
jurisdiction of the Court in the same way as the proceedings in an action.
239-(1) In any such case the parties may, if they think fit, enter
into an agreement in writing (which shall not be subject to any stamp
duty) that, on the judgment of the Court being given in the affirmative
or negative of the questions of fact stated in the issue,-
(a) a sum of money, fixed by the parties or to be ascertained by
the Court or in such manner as the Court may direct, shall be
paid by one of the parties to the other of them; or
(b) some property, movalbe or immovable, specified in the agree-
ment, shall be delivered by one of the parties to the other of
them; or
(c) one or move of the parties shall do or perform, or shall refrain
from doing or performing, some particular act specified in the
agreement,
either with or without costs of the cause or matter or with the costs
left to the discretion of the Court. (2) Where the agreement is for the delivery of some property, mov-
able or immovable, or for the doing or performing or the refraining
from doing or performing some particular act, the estimated value of the
property to be delivered, or to which the act specified has reference,
shall be state in the agreement.
240 Upon the finding of the Court on such questions the judgment
of the Court may be entered accordingly, with or wihtout costs, as the
case may be, and execution may issue upon such judgment forthwith,
unless otherwise agreed, or unless the Court otherwise orders for the
purpose of giving either party an opportunity for moving to set aside
the finding or for a new trial.
241 The proceedings upon any such issue may be recorded at the
instance of either party, and the judgement, whether actually recorded
or not, shall have the same effect as any other judgment in a contested
action.
CHAPTER X.
INTERLOCUTORY PROCEEDINGS.
Interlocutory Application.
242-(1) Interlocutory applications may be made at any state of
an action or other proceeding.
(2) They shall be made either by motion in Court or by summons in
Chambers, and shall be entitled in the action or other proceeding.
(3) Subject to the provisions of this Code and to any general rules
or orders of the Court or into Chambers, as the case may be.
(4) In every motion or summons the statute and the particular pro-
visions thereof, if any, under which it is brought shall be stated in the
margin.
Motion.
243 Any party to an action or other proceeding who desires to move
the Court for an order shall file in the Registry a written motion-paper
distinctly stating the terms of the order asked for.
244 The motion may in its terms ask for an order directing more
than one thing to be done, and may also be in an alternative form,
asking that one or another order made, so only that the whole order
asked or be therein substantially expressed.
245 If the motion-paper contains any matter by way of argument
or other matter except the proper particulars of the motion itself, the Court may direct the motion-paper to be amended, and make no order
thereon until it is amended accordingly by the striking out of such
agrument or other matter.
246-(1) There shall be filed with the motion paper, or as soon
thereafter as possible, all affidavits on which the part moving intends
to rely.
(2) No other evidence shall be used in support of the motion except
by leave of the Court.
247 The party filing the motion-paper may move the Court, in a
case of urgency, at any time while the Court is sitting and not engaged
in hearing any other matter.
248 Subject to any special provisions regulating any particular
case, every motion shall be made ex parte in the first instance, unless
the Court gives leave to give a notice of motion for a certain day.
249-(1) On a motion ex parte the party moving shall apply either
for an immediate absolute order of the Court in the terms of the mo-
tion-paper on his own showing and evidence, or for an order to the
opposite party to appear on a certain day and show cause why an order
should not be made in the terms of the motion-paper.
(2) Any party moving the court ex parte may support his motion by
argument addressed to the Court on the facts put in evidence by the
affidavits filed in support of the motion; and no party to the action or
proceeding, although present in Court, other than the party moving, shall,
except by leave of the Court, be entitled to be then heard.
250 On a motion coming on for hearing, the Court may allow the
motion-paper to be amended and additional evidence to be produced by
affidavit, or may direct the motion to stand over.
251 If at the hearing it appears to the Court, on the evidence adduced
in support of the motion or on any additional evidence which the Court
may allow to be adduced in support threof, that the party moving is
entitled to an order, absolute or to show cause, different from the order
asked for, and the party moving is willing to take such different order,
the Court may make an order accordingly.
252 Where an order is made on a motion ex parte, any party
affected by it may, within ten days after service of it or within such
further time as the Court may allow, apply to the Court by motion to
vary or discharge it; and the court, on notice to the party who has
obtained the order, may either refuse to vary or discharge it or vary
or discharge it with or without imposing terms as to costs or security
or other things as may seem just. 253 The provisions of the next five succeeding sections shall apply,
with the necessary modifications, in every case where notice of motion
has been served on a party.
Order to show Cause.
254 An order to show cause shall specify a day when cause is to be
shown, to be called the return-day of the order, which shall ordinarily
be not less than four days after service of the order.
255 A person served with an order to show cause may, before the
return-day, file affidavits contradicting the evidence used in obtaining
the order, or setting forth other facts on which he relies to induce the
Court to discharge the order
256 On the return-day, if the person served with the ordered does not
appear, and the Court is not satisfied that the service of the order on all
proper parties has been duly effected, the Court may enlarge the time
and direct further service, or make such other order as may seem just.
257 If the person served with the order appears, or the Court is
satisfied that service of the order on all proper parties has been duly
effected, the Court may proceed with the hearing of the motion.
258 On the hearing, the Court may either discharge the order, or
make it absolute, or permit further affidavits to be filed in support of or
against it, and may modify the terms of the order so as to meet the
merits of the case.
Summons.
259-(1) Any party to an action or other proceeding who desires
to ask the Court in Chambers for an order shall file in the Registry a
copy of the summons which it is desired should be issued for that
purpose.
(2) Such copy shall be signed by the party or by or in the name of
his solicitor.
260 The Registrar may therupon issue a summons, setting forth
the nature of the application and ordering the person to whom it is
directed to appear at the time and place directed by the Registrar and
specified in the summons.
261 On the return-day of the summons, if the person to whom the
summons is directed appears or, in his absence, on proof of service of
the summons on the person to whom it is directed, the Court may, on the
application of the person obtaining the summons, consider and deal with
the application in a summary way, and make such order as may be just. Evidence in Interlocutory Proceedings.
262 The evidence at the hearing of any interlocutory or other
application in a cause or matter shall generally be by affidavit.
263 The Court may, on the application of any party, order the
attendance before it for cross-examination of any person making an affidavit.
264-(1) The Court may, if it thinks it expedient, summon any
person to attend to produce any document before it or to be examined
viva voce by or before it, in like manner as at the trial of an action.
(2) Such ntocie as the Court in each case may think resonable shall
be given to the person summoned and to such persons (being parties to
the cause or matter or otherwise interested) as the Court may consider
entitled to inspect the document to be produced, or to examine the person
summoned, or to be present at his examination, as the case may be.
(3) The evidence of a witness on any such examination, or on any
cross-examination under the last preceding section, shall be taken in like
manner, as nearly as may be, as at the trial of an action.
Interlocutory Order.
265 When by any contract a prima facie case of liability is established,
and there is alleged as matter of defence a right to be relieved wholly or
partially from such liability, the Court may make an order for the
preservation or interim cstody of the subject-matter of the litigation,
or may orde that the amount in dispute be brought into Court or
otherwise secured.
266 It shall be lawful for the Court, on the application of any party
to a cause or matter, to make any order for the sale, by any person
named in such order and in such manner and on such terms as the Court
may think desirable, of any godds, wares, or mearchandise which may be
of a perishable nature or likely to be injured by keeping, or which for
any other just and sufficient reason it may be desirable to have sold at
once.
267 It shall be lawful for the Court, on the application of any party
to a cause or matter and on such terms as may be just, to make any
order for the detention, preservation, or inspection of any proerty or
thing, being the subject of such cause or matter or as to which any
question may arise therein, and for all or any of the purposes aforesaid
to authorize any person to enter upon or into any land or building in
the possession of any party to such cause or matter, and for all or any
of the purposes aforesaid to authorize any samples to be taken, or any observation to be made or experiment to be tried, which may be necessary
or expedient for the purpose of obtaining full information or evidence.
268 It shall be lawful for any Judge by whom any cause or matter
may tried or heard with or without a jury, or before whom any cause
or matter may be brought by way of appeal, to inspect any property or
thing concerning which any question may arise therein.
269 The provisions of section 267 shall apply to inspection by a
jury, and in such case the Court may make all such orders upon the
Registrar or other person as may be necessary to procure the attendance
of a special or common jury at such time and place and in such manner
as it may think fit.
270-(1) An application for an order under section 10 of the Law
Amendment Ordinance, 1901, or under section 266 or section 267 of
this Code, may be made to the Court by any party. If the application
is by the plaintiff for an order under the said section 10, it may be
made either ex parte or with ntoice, and if it is by any other party, then
sections, it may be made after notice to the defendant at any time after
the issue of the writ of summons, and if it is by any other party, then
on notice to the plaintiff and at any time after appearance by the party
making the application.
(2) An application for an order under section 265 may be made by
the plaintiff at any time after his right thereto appears from the plead-
ings, or, if there are no pleadings, is made to appear by affidavit or
otherwise, to the satisfaction of the Court.
271 Where an action is brought to recover, or a defendant seeks by
way of counterclaim to recover, specific property other than immovable
property, and the party from whom such recovery is sought does not
dispute the title of the party seeking to recover the same, but claims to
retain the property by virtue of a lien or otherwise as security for any
sum of money, the Court may, at any time after such last-mentioned
claim appears fro mthe pleadings, or, if there are no pleadings, by
affidavit or otherwise, to the satisfaction of the Court, order that the
party claiming to recover the property be at liberty to pay into Court,
to abide the event of the action, the amount of money in respect of
which the lien or security is claimed, and such further sum, if any, for
interest and costs as the Court may direct, and that, on such payment
into Court being made, the property claimed be given up to the party
claimming it.
272 Where any immovable or movable property forms the subject
of any proceedings in the Court, and the Court is satisfied that the same will be more than suficient to answer all the claims thereon which
ought to be provided for in such procedings, the Court may, at any
time after the commencement of the proceedings, allow to the parties
interested therein, or any one or more of them, the whole or part of the
annual income of the immovable property, or a part of the movable
property or the whole or part of the income thereof, up to such time as
the Court may direct.
273 Where, in an action for the administration of the estate of a
deceased person or the execution of the trusts of a written instrument,
a sale is ordered of any property vested in any executor, administrator,
or trustee, the conduct of such sale shall be given to such executor,
administrator, or trustee, unless the Court otherwise directs.
274 Every order, when drawn up, shall be dated the day of the
week, month, and year on which it was made, unles the Court other-
wise directs, and shall take effect accordingly.
Stay of Proceedings.
275 No notice of motion or summons shall operate as a stay of
proceedings, except by direction or order of the Court, and in such case
it shall so operate from the time of the service thereof on the opposite
party.
Dismissal of Action for Want of Prosecution.
276-(1) If the plaintiff,-
(a) being bound to file a statement of claim, does not file and serve
the same within the time allowed for that purpose; or
(b) does not obtain an order for setting down the cause for trial
within one month from the time at which he might first apply
for such an order,
the defendant may apply by summons for an order to dismiss the action
for want of prosecution.
(2) On such application, the Court may, if it thinks fit, make an
order dismissing the action, or may make such other order and on such
terms as to the Court may seem just.
CHAPTER XI.
PRELIMINARIES OF TRIAL.
Setting down Cause for Trial.
277 No cause shall be set down for trial without an order of the
Court first obtained on summons. 278 At the expiration of the time allowed for filing a statement of
defence, and whether such statement has been filed or not, the Court
may, on the application of the plaintiff, order the cause to be set down
for trial.
279 An order to set down the cause for trial may be made on the
application of the defendant, if it appears to the Court, having regard to
the state of the pleadings, that the cause is ready to be tried, and that
there has been delay on the part of the plaintiff in obtaining an order
for setting down the cause, for which the plaintiff has no reasonable
excuse (as the absence or illness of a material witness), and that the
defendant is prejudieced, or may reasonably be expected to be prejudiced,
by such delay.
Postponement of Trial.
280-(1) The Court may at any time, on a summons taken out by
any party thereto, postpone the trial of a cause set down, on being satis-
fied by evidence upon oath that the postponement will have the effect of
better ensuring the trial and determination on the merits of the questions
in issue between the parties.
(2) The postponement may be for such time and on such terms, if
any as the Court may think fit.
281 Where any such application is made on the ground of the
absence from the Colony of a witness, the Court shall require to be
satisfied that his evidence is material and that he is likely to return to
the Colony and given evidence within a reasonable time.
282 Where any such application is made for the purpose of enabling
the party apply to obtain the evidence of a witness resident out
of the jurisdiction, the Court shall require to be satisfied that the evidence
of the witness is material, and that he is permanently residing out
of the jurisdcition or does not intend to come within the jurisdcition
within a reasonable time.
General Trial List and Trial Paper.
283 There shall be kept by the Registrar a genral trial list of
causes and a trial paper.
284-(1) When a cause is set down for trial it shall be placed in
the general tiral list, and shall be transferred to the trial pepert strictly in
its order, according as the general trial list becomes exhausted.
(2) The regular order shall in no case be departed from wihtout
the special direction of the Court. 285 When a cause is about to be transferred from the general trial
list to the trial paper, notice of such transfer shall be served on the
parties, and, unless the Court in any particular case directs otherwise,
not less than ten days shall be allowed between the service of such
notice and the day of trial.
286 When any cause has been specially directed by the Court to be
tried on a particular day or out of its ordinary turn, the name of the
cause shall be placed in the trial paper with the words 'by order'
subjoined.
287 In case of the postponement of the trial of any cause from the
day appointed in the trial paper by resaon of the proceding causes in the
trial paper not having been got through, or under any order of the Court
made during the sitting on that day, no further notice to either party of
the postponement day shall be rquisite, unless otherwise ordered by the
Court.
Modes of Trial.
288-(1) The summons for setting down the cause for trial shall
specify the mode of trial desired by the party making the application.
(2) On the hearing of the summons, the Court shall make such order
as to the made of trial as it may think fit, but subject to the provisions
hereafter in this Chapter contained.
289 In any action of libel, slander, false imprisonment, malicious
prosecution, seduction, or breach of promise of marriage, the plaintiff or
the defendant may, in the summons or on the hearing of the summons,
as the case may be signify his desire to have the issues of fact tried by
the Court with a jury, and thereupon the same shall be so tried.
290-(1) Causes or matters which would, previously to the commencement
of the Hongkong Code of Civil Procedure, have been heard
withut a jury, unless the Court othersie orders.
(2) The Court may, if it appears desirable, direct a trial without a
jury of any question or issue of fact, or partly of fact and partly of law,
arising in any cause or matter which , previously to the commencement
of the Hongkong Code of Civil Procedure, could, without any consent
of parties, have been heard without a jury.
(3) The Court may direct the trial wihtou a jury of any cause,
matter, or issue requiring any prolonged examination of documents or
accounts, or any scientific or local investigation, which cannot, in the
opinion of the Court, conveniently be made with a jury. 291 In any other cause or matter, on the application of any party
thereto or a trial by the Court with a jury of the cause or matter or of
any issue of fact, an order shall be made for such trial accordingly.
292 In every cause or matter, unless under the provisions of the last
preceding section a trail by the Court with a jury is ordered or under
section 289 either party has signified a desire to have a trial by the Court
with a jury, the mode of trial shall be by the Court without a jury:
Provided that in any such case the Court may at any time order any
cause, matter, or issue to be tried by the Court with a jury, or by the
Court sitting with assessors, or by a referee with or without assessors.
293 Subject to the provisions of the last five preceding sections, the
Court may, in any cause or matter, at any time or from time to time
order that different questions of fact arising therein be tried by different
modes of trial or that one or more questions of fact be tried before the
others, and may appoint the places for such trials, and in all case may
order that one or more issues of fact be tried before any other or others.
294 In any case where an order might be made or has been made
for a trial by the Court with or without a jury, the Chief Justice may
order that such trial shall be by the Full Court with or withut a jury,
as th case may be.
295 All the existing statues relating to juries shall be deemed to
continue in fill force and effect so far as the same may not be incon-
sistent with any provision of this Code.
CHAPTER XII.
TRIAL.
Non-Attendance of Parties.
296 When a cause is called on for trial, if neither party appears, the
Court may, if it thinks fit, strike the cause out of the trial paper.
297 If the plaintiff does not appear but the defendant apears, the Court,
on being satisfied that the plaintiff has received notice of trial,
shall, unless it sees good reson to the contrary, strike the cause out of
the trial paper, and make such order as o costs in favour of the defendant
as may seem just.
298 If the plaintiff appears but the defendant does not appear, the
Court shall, before trying the cause, inqure into the service of the writ
of summons, of the statement of claim, and of notice of trial on the
defendant. 299 If it is not satisfied as to the service on every party, the Court
shall direct such further serive to be made as it may think fit, and shall
adjourn the trial of the cause for that purpose.
300 Where the defendant does not file a statement of defence, the
plaintiff at the trial must open his case, and adduce evidence in support
of it, and take such judgment as to the Court may seem just, and the
defendant shall not be entitled to be heard at the trial, without the
special leave of the Court, and then only to such extent and in such
manner as the Court may permit.
301 If it is satisfied that the defendant has been duly served with the
writ of summons, the statment of claim, and notice of trial, the Court
may proceed to try the cause notiwhtstanding the absene of the defendant,
and may, on the evidence adduced by the plaintiff, give such
judgment as may seem just. The Court, however, shall not be bound
to do so, but may, if it thinks fit, order the trial to stand over to a
further day, on such terms as may seem just, and direct fresh notice to
be given to the defendant.
302 In any case where the plaintiff has obtained leaved proceed ex
parte for want of appearance to the writ of summons, and in all other
cases where the Court tries a cause and judgment is given in the absence
of and against any defendant, the Court may afterwards, if it thinks fit,
on such terms as may seem just, set aside the judgment and re-try the
cause, on its being etablished by evidence upon oath, to the satisfaction
of the Court, that the defendant's absence was not wilful and that he has
a defence on the merits.
303-(1) Where a case has been struck out of the trial paper by
reason of the absence of the plaintiff, the Court may, on the application
of the defendant, made within seven days after such striking out, make
an order on the plaintiff to show cause why a day should not be fixed
for the peremptory trial of the cause; and, on the return to that order, if no
sufficient cause is shown, the Court shall fix a day accordingly, with such
notice of trail and on such other terms as may seem just.
(2) If no such application is made, the cause may be restored, with
leave of the Court.
(3) On such leave being obtained, the cause shall be set down again
at the bottom of the general trial list, and be transferred in its regular
turn to the trial paper.
304 Where a cause has been once struck out, and has been a second
time set down, and has come into the trial paper, and on the day fixed
for the trial the plaintiff, having received due notice thereof, fails to appear when the cause is called on, the defendant shall be entitled to
judgment dismissing the action, but if he has a counterclaim, then he
may prove such counterclaim so far as the burden of proof lies upon him.
Order of Proceedings at Trial.
305 The order of proceedings at the trial of a cause shall be as follows:-
(1) the plaintiff shall read the pleadings or state the substance thereof,
as the Court may direct;
(2) the party upon whom the burden of proof lies shall begin; he
shall address the Court and open his case;
(3) the party beginning shall then produce his evidence and examine
his witnesses in chief;
(4) when the party beginning has concluded his evidence, he shall ask
the other party if he intends to produce evidence (in which term is
included evidence by affidavit or taken by commission or on deposition,
and documentary evidence not already read or taken as read);
if answered in the negative, he shall be entitled to sum up the
evidence already given and comment thereon; but if answered
in the affirmative, he shall wait for his general reply;
(5) when the party beginning has concluded his case, the other party
shall be at liberty to address the Court, and to produce his evidence
and examine his witnesses in cheif, and to sum up the evidence
already given and comment thereon;
(6) if no evidence is produced by the latter party, the party begin-
ning shall have no right to reply, unless he has been prevented from
summing up his case by the statement of the other party of his intention
to produce evidence;
(7) the case on both sides shall then be considered closed;
(8) if the party opposed to the party beginning produces evidence,
the party beginning shall be at liberty to reply generally on the
whole case, or he may produce fresh evidence in reply to the evidence
given on the other side, on points material to the determination of
the issues or any of them, but not on collateral matters;
(9) where evidence in reply is tendered and allowed to be given, the
party against whom the same has been adduced shall be at liberty
to address the Court, and the party beginning shall be entitled to
the general reply; and
(10) each witness after examination-in-chief shall be subject to cross-
examination by the other party and to re-examination by the party
calling him, and after re-examination may be questioned by the
Court, and shall not be recalled or further questioned, except by
leave of the Court. 306 The Court shall take a note of the viva voce evidence, and shall
put down the terms of any particular question or answer, if there appears
to be any special reason for doing so.
307 The Court may record on the notes of evidence such remarks
as it thinks material respecting the demeanour of any witness while
under examination.
308-(1) Any party to a cause shall be entitled, on application to
the Registrar and on payment of the prescribed fee, to have an office
copy of the notes of evidence taken in such cause or of any portion
thereof.
(2) On application by any other person and on reasonable cause
being shwon for such aplication, the Court may order that such person
shall, on payment of the prescribed fee, have an office copy of the notes
of evidence taken in such cause or of any portion thereof: Provided
that, on granting any such application, the Court may impose such
terms as to publication or other the said notes as the Court may
think proper.
(3) An office copy of the notes of evidence taken in any cause shall be
admissible, saving all just exceptions, in the same or any other cause
as evidence that viva voce evidence was given before the court as therein
appearing.
309-(1) Any objection to evidnece must be taken at the time
when the question objected to is put, or, in case of documentary evidence,
when the same is about to be put in, and must be argued and decided
at the time.
(2) Where a question put to a witness is objected to, the Court, unless
the objection appears to be frivolous, shall take a note of the quesiton
and objection, if required by either party, and shall mention on the notes
whetehr the question was allowed to be put or not, and the answer to it,
if allowed.
310 Where any evidence is by affidavit or has been taken by commission
or on deposition, the party adducing the same may read and
comment on it, either immediatley after his opening or after the viva
voce evidence on his part has been concluded.
311 Documentary evidence must be put in and read, or taken as
read by consent.
312 Every document put in evidence shall be marked by the officer
of the Court at the time, and shall be retained by the Court during the
trial, and returned to the party who put it in, or from whose custody it
came, immediately after the judgment, unless it is impounded by order
of the Court. 313-(1) Where the evidence adduced at the trial varies substantially
from the allegations of the respective parties in the pleadings, it shall
be in the discretion of the Court to allow the pleadings to be amended,
so as to make the pleadings correspond with the evidence.
(2) The Court may allow such amendment on such terms as to
adjournment, costs, and other things as may seem just, so as to avoid
surprise and injury to any party.
314 In an action for libel or slander, in which the defendant does
not by his statement of defence assert the truth of the statement
complained of, the defendant shall not be entitled on the trial to give
evidence in chief, with a view to mitigation of damages, as to the
circumstances under which the libel or slander was published or as to the
character of the plaintiff, without the leave of the Court, unless he has,
seven days at least before the trial, furnished particulars to the plaintiff
of the matters as to which he intends to give evidence.
Incidental Powers of the Court.
315-(1) The Court may at the trial, without the consent of parties,
direct a nonsuit or judgment for the plaintiff or defendant to be entered,
or it may reserve any point of law, or direct judgment to be entered
subject to a special case to be stated for the opinion of the Court.
(2) Every such point of law so reserved and every such special case
shall be heard before the Full Court.
(3) The Court may order any such point of law so reserved to be set
down for argument without any previus application.
(4) The provisions of Chapter 8 shall, with the necessary modifications,
apply to every such special case.
Withdrawal from the Settlement of Action.
316-(1) If the plaintiff, at any time before final judgment, satisfies
the Court that there are sufficient grounds for permitting him to withdraw
from the action, with liberty to bring a fresh action for the same cause
of action, it shall be competent to the Court to grant such permission,
on such terms as to costs or otherwise as may seem just.
(2) In any such fresh action the plaintiff shall be bound by the rules
for the limitation of actions in the same manner as if the first action had
not been brought.
(3) If the plaintiff withdraws from the action without such permission,
he shall be precluded from bringing a fresh action for the same cause of
action. 317-(1) If an action is settled by mutual agreement or compromise
or if the defendant satisfies the plaintiff in respect of the subjec-matter
of the action, the agreement, compromise, or satisfaction shall be recorded,
and the action shall be disposed of in accordance therewith.
(2) Notice of such agreement, compromise, or satisfaction shall be
given by the plaintiff, or, if a solicitor is employed, by his solicitor, to
the Registrar, together with such particulars as may be required of him,
within one week after the same has been made, and, in default thereof,
the plaintiff or his solicitor, as the case may be, shall be deemed guilty
of a contempt of Court, and shall be liable to be proceeded against and
punished accordingly.
CHAPTER XIII.
EVIDENCE.
Evidence in General.
318 The existing rules of evidence shall continue in full force and
effect so far as they are not modified by any provisions of this Code.
Evidence de bene esse.
319-(1) Where the circumstances of the case appear to the Court
so to require, the Court may take the evidence of any witness or person
at any time in the course of the proceedings in any cause before the
trial of the cause, or may order that such evidence shall be taken by the
Registrar or by any other person, and at any place.
(2) The evidence shall be taken, as nearly as may be, in the same
way as evidence at the trial of an action, and then the note of the
evidence shall be read over to the witness and tendered to him for signature;
and if he refuses to sign it, the Court, or the Registrar, or such
other person, as the case may be shall add a note of his refusal, and the
evidence may be used as if he had signed it.
320 If in any case the Court so orders, there shall be issued a
request to examine witnesses in lieu of a commission as provided for by
any Ordinance for the time being in force relating to evidence.
321 Evidence may be taken in like manner, on the application of any
person before action brought, where it is shown upon oath, to the satisfaction
of the Court, that the person applying has good reason to
apprehend that an action will be brought against him in the Court, and
that some person, within the jurisdiction at the time of the application,
can give material evidence respecting the subject of the apprehended
action, but is about to leave the jurisdiction, or that from some other
cause the person applying will lose the benefit of his evidence if it is not at once taken: Provided that the Court may, on granting such application,
impose any terms or conditions with respect to the examination of
any such witness and the admission of his evidence as to the Court may
seem reasonable.
322 The Court may in any cause, at any stage of the proceedings,
ordere theattendance of any person for the purpose of producing any
document named in the order which the Court may think fit to be
produced: Provided that no person shall be compelled to produce under
any such order any document which he could not be compelled to produce
at the trial.
323 Every person who wilfully disobeys any order requiring his
attendance for the purpose of being examined or producing any document
shall be deemed guilty of contempt of Court, and shall be liable to
be proceeded against and punished accordingly.
324 Where any person is ordered to be examined before any officer
of the Court or before any person appointed for the purpose, the person
taking the examination shall be furnished by the party on whose application
the order was made with a copy of the writ and pleadings, if any,
or with a copy of the documents necessary to inform the person taking
the examination of the questions at issue between the parties.
325 Where the examination of any witness is taken under the
provisions hereinbefore contained, th deposition so taken shall be
returned to and kept in the Registry; and office copies of such deposition
may be given out to any person interested who may apply for the same.
326 Where any such examination is taken by the Registrar or by
some other person, he may, and, if need be, he shall, make to the Court
a special report with regard to such examination and the absence or
conduct of any witness or other person thereon or relating thereto; and
the Court may direct such proceedings and make such order as upon the
report it may think just.
327 Except there by this Code otherwise provided or directed by
the Court, no deposition shall be given in evidence at the trial fo the
cause without the consent of the party against whom the same is offered,
unless the Court is satisfied that the deponent-
(1) is dead; or
(2) is beyond the jurisdiciton of the court; or
(3) is unable from sickness or other infirmity to attend the trial,
in any of which cases the deposition, certified by the Court or under the
hand of the person taking the examination, as the case may be, shall be admissible in evidence, saving all just exceptions, without proof of the
signature to such certificate.
Affidavits.
328-(1) Every affidavit used in the Court shall be in the English
language.
(2) It shall be drawn up in the first person, and shall be divided into
paragraphs numbered consecutively; and each paragraph shall, as nearly
as may be, be confined to a distinct portion ofthe subject.
(3) It shall state the description and true place of abode of the deponent.
(4) It shall contain, and contain only, a statement of facts and
circumstances to which the witness swears, either on his own personal
knowledge or from information which he believes to be true.
(5) Where the belief in the truth of the matter of fact sworn to arises
from information received from another person, the name of such person
shall be stated.
329 Where there are any interlineations, alterations, or erasures, so
that the affidavit proposed to be sworn is illegible or difficult to read, or
is, in the judgment of the officer before whom it is proposed to be sworn,
so written as to give any facility for being added to or in any way
farudulently altered, the officer may refuse to take the affidavit in its
existing form, and may require it to be re-written in a clear, legible, and
unobjectionable manner.
330 No affidavit having in the the body or jurat thereof any interlineation,
alteration, or erasure shall, without leave of the Court, be read or
made use of in any matter depending in the Court unless the interlination
or alteration (other than by erasure) is authenticated by the initials
of the officer taking the affidavit, or, in the case of an erasure, unless the
words or figures appearing at the time of taking the affidavit to be
written on the erasure are re-written and signed or initialled in the
margin of the affidavit by the officer taking it.
331 Any affidavit sworn before any judge, officer, or other person in
the United Kingdom or in any British possession authorized to take
affidavits, or before any commissioner duly authorized by the Supreme
Court to take affidavits in the United Kingdom or in any British
possession, may be used in the Court in all cases where affidavits are
admissible.
332 Any affidavit sworn in any foreign parts out of His Majesty's
dominions before a judge or magistrate, being authenticated by the official seal of the court to which he is attached or of such magistrate, or before
a public notary or a British consular officer, may be used in the Court
in all cases where affidavits are admissible.
333 The fact that an affidavit purports to have been sworn in the
manner prescribed by one of the last two preceding sections shall be
prima facie evidence of the seal or signature, as the case may be, of any
such court, judge, magistrate, commissioner, or other officer or person
therein mentioned appended or subscribed to such affidavit, and of the
authority of such court, judge, magistrate, commissioner, or other officer
or person to administer oaths.
334 The Court may receive any affidavit sworn for the purpose of
being used in any cause, notwithstanding any defect by misdescription
of parties or otherwise in the title or jurat or any other irregularity in
the form thereof, and may direct a memorandum to be made on the
document that it has been so received.
335 An affidavit shall not be admittedby the Court which is proved
to have been sworn before the person on whose behalf the same is offered,
or before his solicitor, or before a partner or clerk of his solicitor.
336 A defective or erroneous affidavit may be amended and re-sworn,
by leave of theCourt, on such terms as to time, costs, or otherwise as
may seem reasonable.
337 Before an affidavit is used the original must be filed in the
Registry; and the original, or an officer copy thereof, shall alone be
recognized for any purpose in the Court
Evidence at Trial.
338 The Court may, in its discretion, permit that the evidence in any
cause, or as to any particular matter in a cause, be taken by affidavit or
that affidavits of any witnesses be read at the trial: Provided that every
witness making an affidavit so received shall be liable to cross-examination
in open Court, unles the Court directs the cross-examination to
take place in any other manner.
339 The Court may, in its discretion, if the interests of justice appear
absolutely so to require, admit an affidavit in evidence although it is
shown that the party against whom the affidavit is offered in evidence
has had or will have no opportunity of cross-examining the person who
has made the affidavit.
340 No affidavit of any witness shall be read at the trial under the
provisions hereinbefore contained, except in pursuance of an order of the Court obtained on summons before trial, unless the Court thinks fit
under the circumstances otherwise to direct, on such terms a may seem
just.
341-(1) If a witness is asked any question relating to a matter not
relevant to the cause, except in so far as it affects the credit of the
witness by injuring his character, the Court shall decide whether or not
the winess shall be compelled to answer it, and may, if it thinks fit, warn
the witness that he is not obliged to answer it.
(2) No such question shall be asked unless the person asking it has
reasonable grounds for believing that the imputation which it conveys is
well founded.
(3) The Court may forbid any question or inquiry which it regards
as indecent or scandalous, although such question or inquiry may have
some bearing on the questions before the Court, unless it relates to facts
in issue or to matters necessary to be known in order to determine
whether or not the facts in issue existed.
(4) The Court shall forbid any question to a witness which appears to
it to be intended o insult or annoy or which, though proper in itself,
appears to the Court to be needlessly offensive in form.
342 Where any person who might give evidence in any cuase is dead,
or insane, or unavoidably absent at the time when his evidence might be
taken, or, for any reason considered sufficient by the Court, cannot appear
to give evidence in the cause, the Court may, if it thinks fit, receive proof
of any evidence given by him in any former judicial proceeding:
Provided that the sjubject-matter of such former judicial proceeding was
substantially the same as that of the existing cause, and that the parties
to the existing cause were parties to it or bound by it, and in it had
cross-examined, or had an opportunity of cross-examining, the witness of
whose evidence proof is so to be given.
343 All evidence taken at the trial of any cause may be used in any
subsequent proceedings in the same cause.
344 The provisions of Chapters 12 and 13 shall, with the necessary
modifications, apply in respect of any petition or matter and in respect
of the hearing thereof.
CHAPTER XIV.
JUDGMENT.
345 When the cause is tried by the Court with a jury, the verdict
shall be recorded and judgment shall be entered up by the Registrar as
the Court may direct. 346-(1) When the cause is tried by the Court without a jury, the
judgment shall be pronounced in open Court, unless the Court otherwise
directs, or it may be read by the Registrar, if so ordered.
(2) A Judge may pronounce a judgment written by his predecessor
or colleague but not pronounced.
347 If the judgment of the Court is reserved at the trial, parties
to the action shall be summoned to hear judgment, unless the Court at
the trial states the day on which judgment will be delivered, in which
case no summons to hear judgment shall be issued.
348-(1) All parties shall be deemed to have notice of any judgment
if the same is pronounced at the trial or hearing of the cause or matte.
(2) All parties duly served with notice to attond and hear judgment
shall be deemed to have notice of the judgment when pronounced.
349 A minute of every judgment or order, whether final or inter-
locutory, shall be made by the Registrar or a clerk of the Court, and
every such minute shall have the same force and effect as a judgment or
order of the Court: Provided that the Court may in any cause or matter,
on the application of any party, order a formal judgment or order to be
drawn up.
350 Whenever the Court delivers a written judgment, the original,
or a copy thereof signed by the Judge, shall be filed in the action or other
proceeding.
351 When the action is for a sum of money due to the plaintiff, the
Court may, in the judgment, order interest, at such rate as the Court
may think proper, to be paid on the principal sum adjudged from the
commencement of the action; and further interest, at such rate as may
for the time being be fixed by the Court, shall be recovereable on the
aggregate sum so adjudged, from the date of the judgment to the date
of payment.
352 In any judgment for the payment of money, the Court may, for
any sufficient reason, order taht teh amount shall be paid by instalments,
with or without interest thereon, and that, in default of payment of any
instalment as and when due, execution may issue for for the payemtn of the
balance of the amount then remaining due.
353 In any case in which the Court has jurisdiction to entertain an
application fro an injunction against a breach of any convenant, contract,
or agreement, or against the commission or continuance of an wrongful
act, or for the specific performance of any covenant, contract, or agree- ment, it shall be lawful for the Court, if it thinks fit, to award damages
to the party injured, either in addition to or in substitution for such
injuction or specific performance, and such damages may be assessed in
such manner as the Court may direct.
254-(1) in any action in which it appears to the Court that the
amount of damages sought to be recovered by the plaintiff is substantially
a matter of calculation, the court may direct that the amount for which
final judgment is to be signed shall be ascertained by the Registrar or
by such other person as the court may appoint.
(2) under any such direction, the attendance of witnesses and the production
of documents before the registrar or such other person may be compelled by subpoena.
(3) it shall be lawful for the registrar or such other person to
adjourn the inquiry from time to time, as occasion may require.
(4) the registrar or such other person shall indorse on the rule or
order or referring the amount of damages to him the amount found by
him, and shall deliver the rule or ordre, with such indorsement, to the
plaintiff; and such and the like proceedings may thereupon be had, as to
taxation of costs, signing judgment, and otherwise, as on the finding of
a jury.
355 In any action where the plaintiff revoers a sum of money, the
amount to which he is entitled may be awarded to him by the judgement
generally, without any distinction being therein made as to whether such
sum is recovered by way of a debt or of damages.
356-(1) if the defendant has been allowed to set off any demand
against the claim of the plaintiff, the judgment shall state what amount
is due to the plaintiff and what amount, if any, is due to the defendant,
and shall be for the recovery of any sum which shall appear to be due to
either part.
(2) Similar provisions shall apply in the case of a counterclaim.
(3) the judgment of the Court with respect to any sum awarded to
the defendant shall have the same effect and be subject to the same rules
as if such sum had been claimed by the defendant in a separte action
against the plaintiff.
357 Every judgment made in any cause or matter requiring any
person to do an act thereby ordered shall state the time, or the time
after service of the judgment, within which the act is to be done, and on
the copy of the judgment which is served on the person required to obey
the same there shall be indorsed a memorandum in the words or to the
effect following, namely,-
'if you, the within-named c.d., neglect to obey this judgment by the time therein limited, you will be liable to process of execution for
the purpose of compelling you to obey the said judgment.'
order of the court.
358 every order of the court in any cause or matter shall have the
same force and effect as a judgment of the court, and may be enforced
by and against all person affected or bound thereby, subject to the saem
rules and in the same manner as a judgment to the same effect.
CHAPTER XV.
COSTS.
359 the costs of every action, and of each particular proceeding
therein, and of every proceeding before the Court, including the administration
of an estate or trust, shall be in the discretion of the Court;
and the court shall have full power to award and apportion costs in
any manner it may deem proper: provided that nothing herein contained
shall deprive any executor, administrator, trustee, or mortgagee
who has not unreasonably instituted, or carried on, or resisted any pro-
ceedings of any right to costs out of a particulars estate or fund to
which he would be entitled according to the rules acted upon in the
equity jurisdiction of the Court previously to the commencement of the
Hongkong Code of Civil Procedure: Provided, also, that where any
action, cause, matter, or issue is tried with a jury, the costs shall follow
the event, unless the Court for good cause otherwise orders.
360 where issues in fact and in law are reaised upon a claim or
counterclaim, the costs of the several issues respectively, both in fact and
in law, shall, unless the court otherwise orders, follow the event.
361 under the denomination of costs are included the whole of the
expenses reasonably incurred by either party on account of the action or
other proceeding, and in enforcing the judgment or order made therein,
such as the expense of summoning the parties and witnesses and of other
process and of procuring copies of documents, fees and costs of counsel
and solicitor, fees and costs of special juries, charges of witnesses, and
expenses of commissioners, either in taking evidence or in investigating
accounts.
362-(1) so far as the scale of court fees and fees and costs of
counsel and solicitor for the time being in use in the court may be
incomplete, all questions relating to the amount and reasonableness of
such fees and costs shall be referred to the registrar, who is hereby
empowered to determine the same on taxation, either with or without
reference to the said scale, having regard to the skill, labour, and responsibility involved, subject, nevertheless, to a review of such determination
by way of summary application to the court in chambers.
(2) the payment of the ocst allowed on such taxation or review
may be enforced in the same manner as if the same had been fixed by
any general rule or order of the court.
363-(1) the court may, if in any case it thinks fit, require any
party to an action or other proceeding, either at the commencement or
at any time during the progress thereof, to give security for costs, and,
in the case of a plaintiff, may stay proceedings until such security has be
given.
(2) a plaintiff ordinarily resident out of the jurisdiction may be
required to give security for costs, although he may be temporarily
resident within the jurisdiction.
(3) the security shall be of such amount, and be given at such times,
and in such manner and form as the court may direct.
(4) where a bond is to be given as security, it shall, unless thecourt
otherwise directs, be given to the party or person in whose favour the
security is ordered to be given.
364-(1) in the event of the plaintiff who has been required to give
security for costs not giving it within the time fixed for that purpose,
the court may dismiss the action unless the plaintiff is permitted to withdraw
from the action or shows good cause why such time should be
extended, in which case the court may extend it.
(2) where an action is dismissed under this section, the plaintiff may
apply to the court to set the dismissal aside, and if it is proved, to the
satisfaction of the court, that he was prevented by any sufficient cause
from giving the security within the time fixed for that purpose, the
court may set aside the dismissal, on such terms as to security, costs, or
otherwise as it may think fit.
(3) the dismissal shall not be set aside unless the plaintiff has served
the defendant with notice in writing of his appliction.
365 the court may direct that eh costs payable to one party by
another shall be set off against a sum which is admitted or is found in
the action or other proceeding to be due from the former to the latter.
366 unless the court otherwise orders, interest on costs, at such
rate as may for the time being be fixed by the court, shall be recover-
able as costs from the date of judgment to the date of payment.
367 the court may in any case direct that costs, with or wihout
interest, shall be paid out of or charged upon the subject-matter of the
action or other proceeding. 368-(1) in every case where costs would be recoverable by or
from a private party, they shall be recoverable by or from the crown.
(2) all crown fees payable under this code or under any ordinance
relating to the court, and all costs payable by or to the crown (except
in admiralty cases), shall be paid in current dollars only.
CHAPTER XVI.
EXECUTION.
Investigation as to Property of Judgment Debtor.
369-(1) where a judgment directing payment of money remains
wholly or in part unsatisfied, (whethr a writ of execution has issued or
not), the judgment creditor may apply to the court or a summons requiring
the judgment debtor to appear before the court and be examined
respecting his ability to make the payment directed; and the court
shall, unless it sees good reason to the contrary, issue such summons.
(2) On the appearance of the judgment debtor, he may be examined
upon oath by or on behalf of the judgment creditor, and by the court,
with respect to his ability to make the payment directed, and for the
discovery of property applicable to such payment, and so to the disposal
which he may have made for any property.
(3) the judgment debtor shall be bound to produce, upon oath or
otherwise as the court may think fit, all bookds, papers, and documents
in his possession or power relating to property applicable to such payment.
(4) whether the judgment debtor so appears or not, the udgment
creditor and all other witnesses whom the ocurt thinks requisite may be
examined upon oath or otherwise, as the court may think fit, resepcting
the matters aforesaid.
(5) the court may, if it thinks fit, adjourn the hearing of the
summons from time to time, and require from the judgment debtor such
security for his appearance at the adjourned hearing as may seem proper,
and, in default of his finding security, may, by warrant, cmmit him to
prision, there to remain until the adjournedhearing, unless sooner discharged.
(6) the court may, on such investigation as aforesaid, make an
interim order for the protection of any proerty applicable to the
payment directed as it may think expedient.
modes of enforcing judgment.
370 if the judgment is for immovable property, the party who has
obtained the judgment shall be put in possession of the property, if
necessary, by the bailiff. 371 if the judgment is for money, it may be enforeced by the
imprisonment of the party against whom it has been given, or by the
attachment and sale of his property, or by both imprisonment and
attachment and sale, if necessary; and if such party is other than a
defendant, the judgment may be enforced against him in the same
manner as a judgment may be enforced against a defendant.
372 if the judgment is against a party as the representative of a
decesed person, and such judgment is for money to be paid out of the
property of the decesed person, it may be executed by the attachment
and sale of any such property, or, if no such property can be found and
the defendant fails to satisfy the court that he has duly applied such
property of the deceased person as may be proved to have come into
his possession, the judgment may be executed against the defendant to
the extent of the property not duly applied by him, in the same manner
as if the judgment had been against him personally.
373 if the judgment is for any specifice movable or for the specifice
performance of any contract or ohter partiuclar act, it may be enforced
by the seizure, if practicable, of the specific movable and the delivery
thereof to the party to whom it has been adudged, or by impisonment
of the party against whom the judgment has been given, or by attaching
his property and keeping the same under attachment until the
further order of the court, or by both imprisonment and attachment,
if necessary; or, if alternative damages have been awarded, by levying
such damages in the mode provided for the execution of a judgment
for money.
374 if the judgment is for the execution of a deed or for the
indorsement of a negotiable instrument, and the party ordered to execute
or indorse such deed or instrument refules or neglects to do so, any
party interested in ahving the same executed or indorsed may prepare
a deed or indorsement of the instrument in accordance with the terms of
the judgment and tender the same to the court for execution upon
the proper stamp, if any, required by law, and the execution or indorsement
thereof by the registrar shall have the same effect as the execution or
indorsement thereof by the party ordered to execute or indorse.
375 where a person has become liable as surety for the performance
of a judgment or of any part thereof, the judgment may be executed
against him to the extent to which he has rendered himself liable, in the
same manner as a judgment may be enforced against a judgment debtor.
376 any person, not being a party to a cuase or matter, who obtains
any order or in whose favour any order is made shall be entitled to
enforce obedience to such order by the same process as if he were a
party to such cause or matter; and any person, not being a party to a
cause or matte, against whom obedience to any judgment or order
may be enforced shall be liable to the same process for enforcing
obedience to such judgment or order as if he were a party to such cause
or matter.
general rules relating to execution.
377 the following property is liable to attachment and sale in
execution of a judgment, namely, land, houses, goods, money, bank
notes, cheques, bills of exchange, promissory notes, governemtn securities,
bonds, or other securities for money, debts, shares in the cpaital or joint
staock of any public company or corrporation, and all other property
whatsoever, whether movable or immovable, belonging to the judgment
debtor, and whether the same is held in his own name or by another
person in trust for him or on his behalf.
378 all moneys payable under a judgment on which a writ of
execution has been issued shall be paid into court, unless the court
otherwise directs.
379 as between the original parties to a judgment, execution may
issue at any time within six years from the recovery of the judgment.
380 a writ of execution, if unexecuted, shall remain in force for one
year only from its issue, unless renewed in the manner hereinafter
provided; but such writ may, at any time before its expiration, by leave
of the court, be renewed by the party issuing it for one year from the
date of such renewal, and so on from time to time during the continuance
of the renewed writ, either by being marked by the registrar with the
seal of the court an with the date of the day, month, and year of such
renewal or by such party giving awritten notice of renewal to the
bailiff, signedd by the party or his solicitor and marked in like manner;
and a writ of execution so renewed shall have effect, and be entitled to
priority, according to the time of the original issue thereof.
381 the production of a writ of execution or of the notice renewing
the same, purporting to be marked as in the last preceding section mentioned,
showing the same to have been renewed, shall be sufficient
evidence of its having been so renewed.
382 upon any judgment for the recovery or payment of a sum of
money and costs, there may be, at the election of the party entitled
thereto, either one writ or separate writs of execution for the recovery
of the sum and for the recovery of the coss, but asecond writ shall
only be for costs. 383 if there are cross-judgments between the sae parties for the
payment of money, excution shall be taken ourt by that party only who
has obtained a judgment for the larger sum and for so such only as
may remain after deducting the smaller sum, and satisfaction for the
smaller sum shall be entered on the judgment for the large sum as well
as satisfaction on the judgment for the smaller sum, and, if both sums
are equal, satisfaction shall be entered on both judgments.
384 in every case of execution the party entitled to execution may
levy the costs, fees, and expenses of execution over and above the sum
recovered.
385 all quesions relating to the amount of any mesne profits which
by the terms of the judgment may have been reserved for adjustment in
the execution of the judgment or of any mesne profits or interest which
may be payable in respect of the subject-matter of the action betwwen
the date of the institution of the action and the execution of the judgment,
as well as all questions relating to sums alleged to have been paid
in satisfaction of the judgment or the like, and all other questions arising
between the parties to the action in which the judgment was given, and
relating to the execution of the judgment, shall be determined by order
of the court.
immediate execution.
386-(1) the court may, at the time of giving judgment, on the
verbeal application of the party in whose favour the judgment is given,
order immediate execution thereof without the issue of a writ of execution,
except as to so much as relates to the costs, and that the judgment
shall be executed as to the costs as soon as the amount thereof has been
ascertained by taxation.
(2) in any such case the party obtaining the order for immediate
execution shall, as soon thereafter as practicable, comply with the
requirements of the next succeeding section.
application for execution in ordinary cases.
387-(1) subject to the provisions of the last preceding section,
when any party who has obtained a judgement is desirous of enforcing
the same, he shall file in the court a prcecipe for a writ of execution.
(2)the prcecipe shall contain the title of the action, the reference to
the record, the date of the judgment and of the order, if any, directing
the execution to be issued, and the names of the parties against whom,
or of the firm against whose property, the execution is to be issued; and shall be signed by or in the name of the solicitor of the party issuingit,
or by the party issuing it, if he does so in person.
388 the registrar, on receiving any application for execution containing
the particulars hereinbefore mentioned, shall make a note of the
application and of the date on which it is made.
389 the registrar may at any time take the direction of the court
as to any application for execution and in th meanwhile refuse to issue
the writ.
application for leave to issue execution.
390(1) in the following cases, namely,-
(a) where six years have elapsed since the judgment, or any change
has taken place by death or otherwise in the parties entitled or
liable to execution;
(b) where a husband is entitled or liable to execution upon a judg-
ment for or against his wife;
(c) where a party is entitled to execution upon a judgment of
assets in futuro; and
(d) where a party is entitled to execution against any of the
shareholders of a joint stock company upon a judgment recorded
against a public officer or ther person representing such company,
the party alleging himself to be entitled to execution may apply to the
court for leave to issue execution accordingly.
(2) the court shall thereupon issue a notice to the person against
whom execution is applied for, requireing him to show cause, within a
limited period to be fixed by the court, why the judgment should not be
executed against him: provided that no such notice shall be necessary
in consequence of an interval of more than six years having elapsed since
the judgemtn, if the application is made within one year from the date
of the last order obtained on any previous application for execution:
provided, also, that no such notice shall be necessary in consequence of
the application being against the legal representative of an original party,
if, on a previous application for execution against the same person, the
court has ordered execution to issue against him.
(3) when such notice is issued, if the person to whom it is issued
does not appear, or does not show sufficient cause, to the satisfaction of
the court, why the judgment should not be forth with executed, the
court may, if it is satisfied that the party applying is entitled to
execution, orer the judgment to the executed accordingly. if the
person to whom the notice is issued appears and offers any objection to
the execution of the judgment, the court shall make such order as in
the circumstances of the case may seem just. 391(1) if a judgment has been given jointly in fovavour of more
person than one, any one or more of such persons, or his or their
representatives, may apply to the court for leave to issue execution on
the whole judgment for the benefit of them all, or, where any of them
has died, for the benefit of the survivors and of the representative in
interest of the deceased person.
(2) if the court grants such leave, it shall make such order as it
may think fit for protecting the interests of the persons who have not
joined in the application.
stay of execution.
392 no proceeding by audita querela shall hereafter be used; but
any judgment debtor may apply to the court for a stay of execution or
other relief against such judgment, on the ground of facts which have
arisen too late to be pleaded; and the court may give such relief and
on such terms as may be jsut.
393 whenever an action is pending in the court aganst a party
who has obtained a previous judgment of the court by the person
against whom the judgment was given, the court may, if it apears
just and reasonable to do so, stay execution of the judgment, either
absolutely or on such terms as may seem just, until judgement has been
givien in the pending action.
issue of execution.
394(1) on the application of the person who has obtained any
judgment, the registrar shall, subject to the provisions of this code,
issue the proper writ for the execution of the judgment.
(2) every writ of execution shall bear date of the day on which it
is issued.
395 all writs of execution shall be issued in the order of aplication
for the same, unless the court otherwise directs.
execution of judgment for immovable property.
396(1) if, in the execution of a judgment for immovable property,
the bailiff is resisted or obstructed by any person, the person who has
obtained the judgment may apply to the court at any time within one
month from the time of such resistance or obstruction.
(2) the court shall thereupon fix a day for investigating the complaint,
and shall summon the person against whom the complaint is
made to answer the same.
(3) if on the investifation it appears to the court that the resistance or obstruction was occasioned by the judgment debtor or by some person
at his instigation, on the ground that the property is not included in the
judgment or on any other ground, the court shall inquire into the matter
of the complaint, and shall make such order as in the circumstances of
the case may seem just.
(4) if on the investigation the court is satisfied that the resistance
or obstruction complained of was without any just cause, and that the
person who has obtained the judgment is still resisted or obstructed in
obtaining effectual possession of the property adjudged to him by the
judgment, by the judgment debtor or by some person at his instigation,
the court may, at the instance of the person who has obtained the judgment
and without prejudice to any proceedings to which the judgment
debtor or suhc other person may be liable for such resistance or obstruction,
commit the judgment debtor or such other person to prison for such
period, not exceeding thirty days, as may be necessary to prevent the
continuance of such resistance or obstruction.
(5) if on the investigation it appears to the court that the resistance
or obstruction complained of was occasioned by any person, other than
th judgment debtor, claiming bona fide to be in possession of the
property on his own account or on account of some person other than
the judgment debtor, the claim shall be numbered and registered as an
action between the person who has obtained the judgment as plaintiff
and the claimant as defendant; and the court shall, without prejudice
to any proceedings to which the claimant may be liable for such resistance
or obstruction, proceed to investigate the claim in the same manner
and with the like powers as if an action for the property had been
brought by the person who has obtained the judgment against the
claimant, and shall make such orderfor staying execution of the judgment,
or for executing the same, as in the circumstances of the case
may seem fit.
397(1) if any person other than the judgment debtor is dispossessed
of any immovable property in execution of a judgment, and such
person disputes the right of the person who has obtained the judgment
to dispossess him of such property under the judgment on the ground
that the property wa bona fide in his possession on his own account or
on account of some person other than the defendant, and that it is not
inculded in the judgment or, if it is included in the judgment, that he
was not a party to the action in which the judgment was given, he may
apply to the Court within one month from the date of such dispossession.
(2) if, after such investigation of the facts of the case as it may
think proper, it appears to the court that there is probable cause for
making the application, the application shall be numbered and registered as an action between the applicant as plaintiff and the person who has
obtained the judgment as defendant, the court shall proceed to
investigate the matter in dispute in th same manner and with the like
powers as if an action for the property had been brought by the
applicant against the person who has obtained the judgment.
398 the decision of the court under the provisions contained in
either of the last two preceding sections shall be given in a summary
manner and shall be of the same force and effect as a judgment in an
ordinary action; and no fresh action shall be entertained between the
same parties or persons claiming under them in respect of the same
cause of action.
execution of judgment of money by attachment
of property other tahn debts.
399 if the judgment is for money, and the amount thereof is to be
leived from the property of the judgment debtor, the court shall cause
the property to be attached in the manner hereinafter prescribed.
400(1) where the property consits of movable prperty in the
possession of the judgment debtor, the attachment shall be made by
actual seizure, and the bailiff shall keep the same in his custody and
shall be responsible for the due custody thereof
(2) where the property consists of movable property to which the
judgment debtor is entitled subject to a lien or right of some other
person to the immediate possession thereof, the attachment shall be
made by a written order prohibiting the person in possession from
giving over the property to the judgment debtor or to any other
person.
401 where the property consists of immovable property or any
interet therein, either at law or in equity, the attachment shall be made
by a written order prohibiting the judgment debtor from alienating the
property by sale, gift, or in any other way, and all other person from
receiving the same by purchase, gift, or in any other way.
402 where the proerty consists of shares in any public company or
corporation, the attachment shall be made by a written order prohibiting
the person in whose name the shares are standing from making any
transfer of the shares or receiving payment of any dividends thereon,
and the manager, secretary, or other proper officer of the company or
corporation from permitting any such transfer or making any such
payment, until the further order of the court. 403 where the property consists of a negotiable instrument, the
attachemtn shall be made by actual seizure, and the bailiff shall bring
the same into court, such instrument shall be held subject to the
further order of the court.
404 property in the custody or under the control of any public
officer in his official capacity shall be liable to attachment with the
consent in writing of the attorney genreal, and in such case the order
of attachment shall be served on such public officer.
405 property in custodia legis shall be liable to attachment by leave
of the court, and in such case the order of attachment shall be served
on the registrar.
406(1) in the case of movalbe property not in the possession of
the judgment debtor, an office copy of the prohibitory order shall be
elivered to or served on the person in possession of the property.
(2) in the case of immovable property or any interest therein, an
office copy of the prohibitory order shall be delivered to or served on
the defendant, and, if such property or interest is registered in the
land office, shall be registered in the land office under the land
registration ordinance, 1844.
(3) in the case of shares in any public company or corporation, an
office copy of the prophibitory order shall be delivered to or served on
the manager, secretary, or other proper officer of the company or corporation.
407 after an attachment has been made by actual seizure or by
prohibitory order as aforesaid, and, in the case of an attachment by
prohibitory order, after it has been duly intimated and made known in
manner aforesaid, any alienation without leave of the court of the
property attched, whether by sale, gift, or in any other way, and any
transfer or payment of the shares or dividends to the judgment debtor
or any other person, during the continuance of the attchment, shall be
null and void.
408 in any case of attachment of property other than debts, the
court may, at any time during the attachment, direct that any part of
the property so attached which consists of money or bank notes, or a
sufficient part thereof, shall be paid cover to the party applying for
execution of the judgment, and that any part of the property so attached
which does not consist of money or bank notes hsall, so far as may
be necessary for the satisfaction of the judgment, be sold, and that
the money which may be realized by such sale, or asufficient part
thereof, shall be paid to such party. 409(1) where the property attached consists of immovable
property, the court may appoint a manager of such property, with
power to collect the rents or other profits and receipts of such property,
and to execute such deeds or other instruments in writing as may be
necessary for the purpose, and to pay and apply such rents, profits, and
receipts towards the payment of the amount of the judgment and costs.
(2) in any case in which a manager is appointed under this section,
such manager shall be bound to render from time to time due and
proper acconts of his receipts and disbursements, as the court may
direct.
410(1) where the proerty attached consists of immovable pro-
perty, if the judgment debtor satisfies the court that there is reasonable
ground to believe that the amount of the judgment may be raised by the
mortgage of the property, or by letting it on lease, or by disposing by
private sale of a portion of it or of any other property belonging to the
judgment debtor, the court may, on the application of the judgment
debtor, postpone the sale of the property for such period as it may
think fit, in order to enable the judgment debtor to reaise the amount.
(2) if the judgment debtor is absent from the colony, and it appears,
to the satisfaction of the court, that the sale of any of his property
which has been attached, consisting of immovable property or any
interest therein, is objectionable, and that satisfaction of the judgment
may be made wihtin a reasonable period by a temporary alienation of
such property, the court may, of its own motion, instead of proceeding
to a sale of such property, order that provision be made for the satisfaction
of the judgment by mortgage of such property, and may authorize
the registrar, if necessary, to execute the mortgage deed in lieu of the
judgment debtor and any other necessary parties, and may make such
order in relation to such mortgage as may be requisite to carry out this
provision; and the execution of such mortgage deed by the registrar
shall have the same effect as the execution thereof by the judgment
debtor and any other necessary parties.
411 if in any case the amount of the judgment, with all costs,
charges, and expenses incurred by the attachment, is paid into court,
or if satisfaction of the judgment is other made, the attachment
shall be withdrawn; and such steps shall be taken as may be necessary
for staying futher proceedings in execution of the judgment.
execution of judgment of money by attachment of debts.
412(1) the court may, on the ex parte application of any person
who has obtained a judgement for money, either before or after any oral examination of the judgment debtor, and upon an affidavit by himself
or his solicitor stating that judgment has been recovered, and that it
is still unsatisfied, and to what amount, and that nay other person is
indebted to the judgment debtor andis iwhtin the jurisdiction, order
that all debts due or accuring from such third person (hereafter in this
chapter called the garnishee) to the judgment debtor shall be attached
to answer the judgment.
(2) by a subsequent order it may be ordered that the garnishee shall
appear before the court to show cause why he should not pay to the
person who has obtained the judgment the debt due or accruing from
him to the judgment debtor or so much thereof as may be sufficient to
satisfy the judgment.
413 service of an order that debts due or accruing to a judgment
debtor shall be attached, or notice thereof to the garnishee, in such
manner as the court may direct, shall bind such debts in the hands of
the garnishee.
414(1) on such service or notice, the garnishee may forhtwith
pay into court the amount due from him to the judgment debtor or an
amount equal to the judgment.
(2) on such payment being made, the court may make such order
as it may think proper for the disposal of the amount paid into court.
415 if the garnishee does not forthwith pay into court the amount
due from him to the judgment debtor, or an amount equal to the judgment,
and does not dispute thedebt due orclaimed to be due from him
to such debtor, or if he does not appear upon summons, the court may
order execution to issue, and it may issue accordingly, without any
previous writ or porcess, to levy the amount due from the garnishee or
so much thereof as may be sufficient to satisfy the judgemtn.
416 if the garnishee disputes his liability, the court, instead of
making an order that execution shall issue, may order that any issue or
question necessary for determining his liability shall be tried or determined
in any manner in which any issue or question in an action may
be tried or determined.
417(1) where, in any proceeding to obtain an attachment of a
debt, it is suggested by the garnishee that the debt sought to be attached
belongs to some third person or that some third person has a lien or
charge upon it, the court may order such third person to appear and
state the nature and particulars of his claim upon such debt.
(2) after hearing the allegations of any third person under such
order, and of any other person whom, by the same or by subsequent order, the court may order to appear, or in case of such third person
not appearing when ordered, the court may order execution to issue to
levy the amount due from the garnishee or so much thereof as may be
sufficient to satisfy the judgment, or any issue or question to be tried or
determined according to the last preceding section, and may bar the
claim of such third person or make such other order as the court may
think fit, on such terms, in all cases, with respect to the lien or charge,
if any, of such third person, and to costs, as the court may think just.
418 payment made by or execution levied upon the garnishee under
any such proceeding as aforesaid shall be a valid discharge to him as
against the judgment debtor as to the amount paid or levied, although
such proceeding may be set aside or the judgment reversed.
419 in any case of attachment of debts the court may direct taht
the debts so attached shall, so far as may be necessary to satisfy the
judgment, be sold, and that the money which may be realized by such
sale, or a sufficient part thereof, shall be paid to the judgment creditors.
420(1) in any case of attchment of debts the court may appoint
a manager of such debts, with power to sue for such debts and to
execute such deeds or other instruments in writing as may be necessary
for the purpose, and to pay and apply the proceeds of such debts
towards the payment of the amount of the judgment and costs.
(2) in any case in which a manager is appointed under this section,
such manager shall be bound to render from time to time due and
proper accounts of his receipts and disbursements, as the court may direct.
421 there shall be kept by the registrar a debt attachement book,
and in such book entries shall be made of the attachment and proceddings
thereon, with names, dates, and statements of the amount recovered, and
otherwise; an copies of any entries mde therein may be taken by any
person, on application to the registrar and on payment of the prescribed
fee.
422 the costs of any application for an attachment of debts, and of
any proceedings arising from or incidental to such application, shall be
i nthe discretion of the court.
claim to attached property.
423(1) in the event of any claim being preferred to, or objection
offered against the sale of, any movable or immovable property which
has been attached in execution of a judgment or under any order for
attachment made before judgment, as not liable to be sold in execution of the judgment, the court shall, subject to the proviso hereinafter con-
tained, proceed to investigate the same, with the like powers as if the
claimant had been originally made a defendant to the action.
(2) if on the investigation it appears to the court that the property
was not in the possession of the judgment debtor or of some person in
trust for him, or in the occupancy of some person paying rent to him,
at the time when the property ws attached, or that, being in the possession
of the judgment debtr at such time, it was so in his possession
not on his own account or as his own property but on account of or in
trust for some other person, the court shall make an order for releasing
the property from attachment.
(3) if on the investigation it appears to the court that the property
was in the possession of the judgment debtor on his own account or as
his own property and not on account of or in trust for any other person,
or was in the possession of some person in trust for him, or in the
occupancy of some person paying rent to him, at the time when the
property was attached, the court shall disallow the claim. the party
against whom such order of disallowance is made shall be at liaberty to
bring an action to establish his right at any time within three months
from the date of the order.
(4) any such claim or objection shall be made at the earlies opport-
tunity, by notice in writing filed in the registry and supported by
affidavit; and if the property to which the claim or objection applies
has been advertised for sale, the sale may (if it appears necessary) be
postponed for the purpose of making the investigation: Provided that
no such investigation shall be made if it appears that the making of the
claim or objection was designedly and unnecessarily delayed, with a
view to obstruct the ends of justtice, and in such case the claimant shall
be left to prosecute his claim, if he thinks fit, by an action in the
ordinanry way.
424 whre movable property has been taken in execution under the
process of the court, and nay claimant alleges that he is entitled, under
a bill of sale or otherwise, to the property by way of security for debt,
the court may order the sale of the whole or a part thereof, and direct
the application of the proceeds of the sale in such manner and upon such
terms as may be just.
425(1) where a claim is made to or in respect of any movable
property taken in execution under the process of the court it shall be
in writing, and on the receipt of the claim the bailiff shall forthwith
give notice thereof to the execution creditor, and the execution creditor
shall, within four days after receiving the notice, give to the
bailiff that he admist or disputes the claim. (2) if the execution creditor admits the claim, and gives notice as
directed by this secion, he shall only be liable to the bailiff for any fees
and expenses incurred prior to the receipt of the notice admitting the
claim.
426 when the execution creditor has given notice to the bailiff that
he admits the claim, the bailiff may thereupon withdraw from possession
of the property claimed, and may apply for an order protecting him form
any action in respect of the seizure and possesson of the property, and
the court may make any such order as may be jsut and reasonable in
respect of the same: provided that the cliamant shall receive notice of
such intended application, and, if he desires it, may attend the hearing of
the same, and if he attends, the court may, in and for the purposes of
such application, make all such orders as to costs as may be sjust and
reasonable.
sale of property in execution of judgment.
427 every sale in execution of a judgment shall be made under the
direction of the registrar, and shall be conducted according to such
orders, if any, as the court may make on the application of any party
concerned, and shall be made by public auction: provided that the
court may in any case authorize the sale to be made in such other
manner as it may deem advisable.
428 at any time within tne days from the date of sale of any
immovable property in execution of a judgment, application may be
made to the court to set aside the sale on the grund of any material
irregularity in the conduct of the sale, but no such sale shall be set
aside on the ground of such irregularity unless the applicant proves, to
the satisfaction of teh court, that he has sustained substantial injury by
reason of such irreguarlity.
429(1) if no such application is made, the sale shall be deemed
absoluet.
(2) if such application is made and the objection is disallowed, the
court shall make an order confirming the sale.
(3) if such application is made and the objection is allowed, the
court shall make an order setting aside the sale for irregularity.
430 whenever a sale of immovable property is set aside for irregularity,
the purchaser shall be entitled to receive back any maoney deposited
or paid by him on account of such sale, with or wihtout interest,
to be paid by such parties and in such manner as it may appaear proper
to the court to direct. 431(1) after a sale of immovable property has become absolute
in manner aforesaid, the court shall grant a certificate to the person
who has been declared the purchaser at such sale to the effect that he
has purchased the right, title, and interest of the judgment debtor in
the property sold.
(2) such certificate shall be liable to the same stamp duty as an
assignment of the same property, and, when duly stamped as aforesaid,
shall be taken and deemed to be a valid transfer of such right, title, and
interest, and may be registered in the land office under the land
registration ordinance, 1844.
432(1) where the property sold consists of immovable property
in the occupancy of the judgment debtor, or of some person on his
behalf, or of some person claiming under a title created by the judgment
debtor subsequently to the attachment of the property, the court shall,
on the application of the purchaser, order delibery of the proeprty to be
made by putting the party to whom the property has been sold , or any
person whom he may appoint to receive delivery on his behalf, in
possession thereof, and, if necessary, by removing any person who may
refuse to vacate the same.
(2) where the property sold consists of immovable property in the
occupancy of any other person entitled to occupy the same, the court
shall, on the application of the purchaser, order delivery thereof to be
made by affixing a copy of the certificate of sale in some conspicuous
plcae on the property or at the court house.
433(1) if the purchaser of any immovable proerty sold in execution
of a judgment is, notwithstanding the order of the court, resisted
or obstructed in obtaining possession of the property, the provisions of
this chapter relating to resistance or obstruction to the execution of a
judgment for immovable proeprty shall be applicable in the case of such
resistance or obstruction.
(2) if it appears that the resistance or obstruction to the delivery of
possession was occasioned by any person other than the judgment debtor
claiming a right to the possession of the property osld as proprietor,
mortgagee, lessee, or under any other title, or if, in the delivery of
possession to the purchaser, any such person claiming as aforesaid is
dispossessed, the court, on the complaint of the purchaser or of such
person claiming as aforesaid, if made within one month from the date of
such resistance or obruction or of such dispossession, as the case may
be, shall inquire into the matter of the complaint and make such order
as may be proper in the circumstances of the case.
(3) the person against whom any such order is made shall be at liberty to bring an action to establish his right at any time within three
months from the date of the order.
434(1) where the property sold consists of movable property in the
possession of the judgment debtor, or to the immediate possession of
which the judgment debtor is entitled, and of which actual seizure has
been made, the property shall be delivered to the purchaser.
(2) where the property sold consists of movable property to which
the judgment debtor is entitled subject to a lien or right of any person
to the immediate possession thereof, the delivery to the purchaser shall,
as far as practicable, be made by the bailiff giving notice to the person
in possession prohibiting him from delivering possession of the property
to any person except the purchaser.
435 where the property sold consists of debts, not being negotiable
instruments, or of shares in any public company or corporation, the
court shall, on the application of the purchaser, make an order prohibiting
the judgment debtor from receiving the debts and his debtor from
making payment thereof to any person except the purchaser, or prohibiting
the person in whose name the shares are standing from making any
transfer of the shares to any person except the purchaser or receiving
payment of any dividends thereon, and the manager, secretary, or other
proeprt officer of the company or corporation from permitting any such
transfer or making any such payment to any person except the purchaser.
436 where the property sold consists of a negotiable instrument of
which actual seizure has been made, the same shall be delivered to the
purchaser.
437(1) if the execution of a transfer by any person in whose
name any share in a public company or corporation is standing, or the
indorsement by any person of any negotiable instrument, or the execution
by any person of any deed or other instrument relating to immovable
property or any interest therein, is lawfully required to give effect to
any sale in execution of a judgment, the registrar, with the sanction of
the court, may-
(a) execute such transfer; or
(b) indorse such negotiable instrument; or
(c) execute such deed or other instrument.
(2) the execution of such transfer, the indorsement of such negotiable
instrument, and the execution of such deed or other instrument by the
registrar shall have the same effect as the execution and the indorsement
by the person whose execution or indorsement is so as aforesaid required.
(3) until the exectuion of such transfer or the indorsement of such negotiable instrument, the court may, by order, appoint some person to
receive any dividend or interest due in respect of any such share or
negotiable instrument.
execution of judgment for money by imprisonment.
438 no person shall be imprisoned in execution of a judgment for
a longer period than one year, or for a longer period that six months
if the judgment is for the payment of money not exceeding five hundred
dollars, or for a longer period than three months if the judgment is for
thepayment of moeny not exceeding one hundred dollars.
439 when a judgment debtor is committed to prison in execution of
the judgment, the court shall fix whatever monthly allowance it may
think sufficient for his subsistence, not exceeding 25 cents per
diem, which shall be paid by the person at whose instance the judgment
has been executed to the superintendent of the gaol by monthly payments
in advance, before the first day of each month, the 1st payment
made to be for such portion of the current month as may remain unexpired
before the judgment debtor is committed to prison.
440(1) in case of the serious illness of any person imprisoned in
execution of a judgment, it shall be lawful for the court, on the certificate
of the surgeon of the gaol in which he is confined or of the chief
medical officer of the government, to make an order for the removal of
the judgment debtor to the government civil hospital, and for his
treatment there under custody until further order.
(2) in any such case the period of the judgment debtor's stay in
hospital shall be counted as part of his term of imprisonment, and his
subsistence money shall be paid as if no such order had been made.
441 every person imprisoned in execution of a judgment shall be
released at any time on the judgment being fully satisfied, or at the
request of the person at whose instance the judgment has been executed,
or on such person omitting to pay his subsistence money.
442 all sums paid by a plaintiff for the subsistence of a person
imprisoned in execution of a judgment shall be added to the costs of the
judgment, and shall be recovereable by the attachment and sale of the
property of the judgment debtor; but the judgment debtor shall not be
detained in custody or arrested on account of any sum so paid.
443(1) any person imprisoned in execution of a judgment may at any
time apply to the court for his discharge.
(2) the application shall contain a full account of all property of whatever nature belonging to the applicant, whether in expectancy or in
possession, and whether held exclusively himself, or jointly with
others, or by others in trust for him (except the necessary wearing
apparel of himself and his family and the necessary implements of his
trade), and of the places respectively where such property is to be found;
and the application shall be signed by the applicant and verified by
affidavit.
(3) on the application being mae, the court shall cause the judgment
creditor to be furnished with a copy thereof, and shall fix a
reasonable period within which the judgment creditor may cause the
whole or any part of such property to be attached and sold, or may
appear on the hearing of the application and make proof that the judgment
debtor's inability to satisfy the judgment is attributable to unjustifiable
extravagance in living or that the judgment debtor, for the
purpose of procuring his discharge wihtout satisfying the judgment, has
wilfully concealed property or his right or interest therein, or fraudulently
transferred or removed property, or committed any other act of
bad faith.
(4) if after such investigation as it may think proper on the application,
the court is of opinion that the judgment debtor should be set at
liberty, it shall make an order to that effect, but otherwise the ocurt
shall retain the judgment debtor in prison, unless he has already been in
prison on account of the judgment for the full term for which he is
liable to imprisonment.
444 when any person imprisoned in execution of a judgment has
been once discharged he shall not again be imprisoned on account of the
same judgment, but his proerty shall continue liable, under the ordinary
rules, to attachment and sale until the judgment is fully satisfied.
committal for disobedience to judgments.
445(1) where any person is guilty of wilful disobedience to a
judgment, the person who has obtained the judgment shall be entitled to
apply to the court for an order directed to the person who has disobeyed
the judgment to show cause why he should not be punished for the
disobedience.
(2) the court, unless it sees good reason to the contrary, shall, on
such application, make an order accordingly.
(3) the court shall not grant the order except on evidence upon oath
or by affidavit establishing such a case as, if uncontradicted and unexplained,
would justify the immediate committal of the person disobeying
the judgment.
446 an office copy of the order and of the deposition or affidavit
upon which the order was granted shall be served on the person to whom
the order is directed.
447 on the return-day of the order, if the person to whom it is
directed does not attend and does not establish a sufficient excuse for
not attending, and if the court is satisfied that the order has been duly
served, or if such person attends and does not show cause, to the satisfaction
of the court, why he should not be punished for the disobedience,
the court may issue a warrant for his committal to prison.
448 the court may enlarge the time for the return to the order, or
may, on the return of it and under circumstances which would strictly
justify the immediate committal of the person guilty of the disobedience,
direct that the warrant for his committal to prison shall issue only after
a certain time and in the event of his continued disobedience at that time
to the judgment to respect of which he has been guilty of disobedience.
449 a person committed for disobedience to a jugment shall be
liable to be detained in custody until he has obeyed the judgment in all
things which are to be immediately performed and given such security
as the court may think fit to obey the other parts of the judgment, if
any, at the future times thereby appointed, or, in case of his no longer
having the power to obey the judgment, then until he has been imprisoned
for such time or until he has paid such fine as the Court may direct.
450 if a mandamus, granted in an action or otherwise, or a mandatory order,
injunction, or judgment for the specific performance of any
contract is not complied with, the court, besides or instead of proceedings
against the disobedient party for contempt, may direct that the act
required to be done may be done, so ar as practicable, by the party by
whom the mandamus, order, injunction, or judgment has been obtained,
or by some other person appointed by the court, at the ocst of the
disobedient party, and, upon the act being done, the expenses incurred
may be ascertained in such manner as the court may direct, and execution
may issue for the amount so ascertained, and costs.
451 any judgment against a corporation which is wilfully disobeyed
may, by leave of the court, be enforced by sequentration against the
corporate property, or by committal of the directors or other officers
thereof, or by writ of sequentration against their property. PART II.
SPECIAL ACTIONS AND PROCEEDINGS.
CHAPTER XVII.
FOREIGN ATTACHMENT.
452 proceedings by foreign attachment may be taken in the manner
hereinafter prescribed in any aciton, provided that the cause of action
arose within the jurisdiction.
453(1) on the filing in court by the plaintiff in any such action
of an affidavit to the following effect; that is to say,-
(a) that the cause of action arose within the the jurisdiction;
(b) that the plaintiff has taken out a writ of summons against the
defendant, but that the defendant is absent from the colony or
that there is probable cause to believe that the defendant is concealing
himself to evade proceedings; and
(c) that the defendant is beneficially entitled to movable property
within the jurisdcition in the custody or under the control of any
other person within the jurisdiction, or that such other person
(hereafter in this chapter called the garnishee) is indebted to the
defendant, or that the defendant is beneficially entitled to immovable
property, or to any interest therein, within the jurisdiction,
and on the giving of the bond hereinafter mentioned, the registrar may
issue a writ of general attachment against all the property, movable and
immovable, of the defendant within the jurisdiction.
(2) the writ shall be called a writ of foreign attachment, and shall
be made returnable not less than fourteen days after the date thereof,
except by speical leave of the court.
454 absence from the colony shall, for the purpose of proceedings
by foreign attachment, be taken to be absence for the time being,
whether the defendant has ever been within the colony or not.
455(1) before the writ shall issue the plaintiff or some person
on his behalf shall enter into a bond, with one or more sufficient sureties
to be approved by teh registrar, in a penal sum equal to twice the
amount of the claim or in any less sum by special leave of the court,
the condition of which said bond shall be taht in case the defendant shall,
at any time within the period hereinafter limited in that behalf, cause
the writ to be set aside or any judgment which may be given in the
action to be reversed or varied, the plaintiff will pay to the defendant
all such sums of money, damages, costs, and charges as the court may order and award on account of or in relation to the action and the
attachment, or either of them: provided that the court shall not award
a larger amount of damages than it is competent to award in an action
for damages, and such award shall bar any action for damages in
respect of the action and attachment.
(2) the bond shall be in such form and given to such person as the
court may, from time to time or in any partiuclar case, approve and
direct, and shall be entered into before the registrar and deposited in
the registry.
456(1) if in any case it is made to appear to the satisfaction of
the court, by affidavit or otherwise, that under the circumstances it is
expedient that the writ should issue forthwith and before the bond has
been entered into, the court may order the writ to issue accordingly,
on such terms as it may think fit, and by the same order shall limit the
time, not exceedng seven days from the date of the issue of the writ,
within which the bond must be entered into and deposited as aforesadi.
(2) if default is made in complying with the requirements of the
order within the time thereby limited, the court may dissolve the writ,
and thereupon may award damages and costs to the defendant in the
manner hereinbefore provided in the case of a writ being set aside or a
judgment in the action being reversed or varied.
457 every writ against movable property shall be executed by the
bailiff.
458(1) where two or more writs issue at the suit of different
plaintiff, they shall take priority respectively according to the date and
time at which they reach the hands of the bailiff for execution.
(2) no such writ shall take priority over a writ of execution in an
action pending at the date of such writ of foreign attachment.
(3) the bailiff shall indorse on every such writ thedate and time of
the same coming to his hands for execution.
459 property in the custody or under the control of any public
officer in his official capacity shall be liable to attachment with the
consent in writing of the atorney general, and in such case the writ
shall be served on such public officer.
461 Property in custodia legis shall be liable to attachment by
leave of the court, and in such case the writ shall be served on the
registrar.
461 from the time of the service on the garnishee of the writ, all
property whatsoever within the jurisdiction, other than immovable prperty or nay interest therein, to which the defendant mentioned in
the writ is then beneficially entitled, whether solely or jointly with
others, and which is in the custody or under the control of the garnishee,
and all debts then due or accruing from the garnishee to the defendant,
shall, to the extent of the defendant's interest therein, and
subject to crown debts, and to any bona filde prior title thereto or
lien or charge thereon, and to the rights and pwoers of prior incumbrancers,
be attached in the hands of the garnishee to satisfy the claim
of the plaintiff.
462(1) where the defendant is beneficially entitled to immovable
property or to any interest therein, a memorial containg a copy of
the writ shall be registered in the land office under the land registration
ordinance, 1844.
(2) in case the writ is dissolved or the judgment in the action is
satisfied, a certificate to that effect, under the hand of the Registrar and
the seal of the court, may be registered at the land office, and thereupon
the memorial shall be deemed to have been cancelled.
(3) the fees payable to the land office shall be for the registration
of such memorial one dollar and for the filing of such certificate one
dollar, and no other fees shall be payable to the land office in respect
thereof.
463 from the time of the registration in the land office of the
memorial of the writ, all immovable propeerty within the jurisdiction, or
any interest therein, to which the defendant mentioned in the writ is
then beneficially entitled, whether solely or jointly with others, shall, to
the extent of his interest therein, and subject to crown debts, and to
any bona fide prior title thereto or lien or charge thereon, and to the
rights and powers of prior incumbrancers, be attached to satisfy the
claim of the plaintiff.
464 the court may, at any time before judgment, on such grounds
as it may deem sufficient, order any property, other than immovable
property or any interest therein, attached under the writ to be sold in
such manner as it may direct and the net proceeds to be paid into court.
465 any garnishee who, without the leave or order of the court, at
any time after the service of the writ and before the writ is dissolved,-
(1) knowingly and wilfully parts with the custody or control of any
property attached in his hands; or
(2) removes the same out of the jurisdiction of the court; or
(3) sells or otherwise disposes of the same; or
(4) pays over any debt due by him to the defendant, excepting only
to or to the use of the plaintiff, shall pay such damages to the plaintiff as the court may award, and
shall further be deemed guilty of a contempt of court and shall be
liable to be proceeded against and punished accordingly: provided that
the court shall not award a larger amount of damages than it is competent
to award in an action for damages, and such award shall bar any
action for damages in respect of the act done by the garnishee.
466 in any case where it is made to appear to the satisfaction of the
registrar, by affidavit or otherwise, that there is reasonable cause to
believe that any property attached is in danger of being removed out of
the jurisdiction or of being sold or otherwise disposed of, the registrar
and detain the same subject to the order of the court; and the bailiff
shall thereupon seize and detain such property accordingly.
467 notice of the issue of the writ shall be inserted twice in the
gazette and twice in some local newspaper, unless the court shall,
by reason of the defendant having entered an appearance or on any other
ground, dispense with the publication of such notice.
468 in any case where the place of residence of the defendant out
of the jurisdiction is known, the court may, if it thinks fit, on the
application of the garnishee or of any friend or agent of the defendant
or of its own motion, and on such terms as it may deem reasonable,
order that notice of the writ be served on the defendant out of the
jurisdiction, and that further proceedings be stayed until the further
order of the court, but withut prejudice to the attachment under the
writ.
469 after the issue of the writ, (but subject to the provisions of the
last preceding section), the plaintiff may forhterwith file his statment of
claim, and, upon such day after the return of the writ as the court may
appoint, may proceed to establish his claim as in an ordinary action in
which there has been due service of the writ of summons and leave has
been obtained to proceed ex parte.
470(1) on the trial of the action, the court shall proceed to
inquire and determine whether in fact the plaintiff's case is within the
provisions of this chapter and whether the plaintiff has established his
claim ,and shall pronounce judgment accordingly; and if the plaintiff
obtains judgment, the court may, at the same or any subsequent sitting,
examine or permit the plaintiff to examine the garnishee or any other
person, and determine what property, movable or immovable, is liable.
to attachment under the writ.
(2) if the garnishee, either on such examination or by notice in
writing filed in the registry at any time after the attachment, disputes
the liability of the property to attachment, the court may order that
any issue or question necessary for determining such liability shall be
tried and determined in any manner in which any issue or question in
an action may be tried and determined. on such examination and at
such trial or determination, the garnishee may be represented by counsel
and solicitor.
(3) the court may, at the instance of any person interested in the
inquiry or of its own motion, summon any person whom it may think
necessary and examine him in relation to such property as aforesaid,
and may require the garnishee, as well as any person summoned as
aforesaid, to produce all deeds and documents in his possession or power
relating to such proerty.
(4) if the plaintiff obtains judgment, the court may, at the time of
pronouncing judgment in favour of the plaintiff or at any subsequent
sitting, order that execution shall issue against all or any part of the
property attached which the court may have declared to e liable to
satisfy the plaintiff's claim; and all the provisions of this code relating
to execution of judgment in an ordinary action shall apply to the execution
so ordered.
(5) if the plaintiff fails to obtain judgment, the court shall thereupon
dissolve the writ.
471 where there are two or more claimants to any goods laden on
board of any ship, and the ship is attached in an action against the ship-
owner for the non-delivery of the goods, the court may think proper, and order the
goods to be landed and warehoused in custodia legis, without prejudice
to the master's lien thereon, and may dissolve the attachment against
the ship and make such orders as may be necessary for the determination
of the rights of the claimants, on such terms to security and other
matters as may seem just.
472 where there are two or more claimants to any property attached
under a writ or to any interest therein, the court may, in its discretion,
summon before it all the claimants, and may make such orders for the
ascertaining of their respective rights and for the custody of the property
in the meanwhile as it may think fit, either under this chapter or under
the provisions of this code relating to claims to attached property or to
interpleader proceedings.
473 the court may stay proceedings in any action commenced
against a garnishee under the provisions of this chapther in respect of
property attached in his hands, on such terms as may seem just. 474 the court, at any time before judgment, on being satisfied, by
affidavit or otherwise, that the defendant has a substantial ground of
defence, either wholly or in part, to the action on the merits, may give
leave to the defendant to defend the action, withtout prejudice to the
attachment under the writ.
475 the defendant may, at any time before any property attached
in the section has been sold in satisfaction of the plaintiff's claim, apply
to the court, upon notice of motion, for an order to dissolve the writ as
to the whole or any part of the property attached, on asecurity being
given to anser the plaintiff's claim, and the court may make such
order, either absolutely or on such terms as may seem just, and in the
meanwhile may stay or postpone any sale.
476 the defendant may, at any time within twelve months from the
date of the judgment, notwithstanding that the property attached, or
any part thereof, may have been sold in satisfaction of the plaintiff's
claim, apply to the court, upon notice of motion, for an order to set
aside the judgment and for the retrial of the action and for leave to
defend the same; and if it appears to the court that the defendant had
no notice or knowledge of the action and could not resonably have
made an earlier application to the court, and that he had, at the time of
the obtaining of the judgment, and still has, a substantial ground of
defence, either wholly or in part, to the action on the merits, it shall be
lawful for the court to grant such order on such terms as may seem
jsut.
477 the dissolving of any writ, or the reversal or setting aside of
any judgment given under this chapter or of any subsequent procedings,
shall not affect the title of any bona fide purchaser for valuable
consideration of any property sold in satisfaction of the plaintiff's claim.
CHAPTER XVIII.
ACTION AGAINST THE GOVERNMENT.
478 any claim against the government of the colony, of the same
nature as claims wihtin the provisions of the petitions of right act,
1860, of the imperial parliament, may, with the consent in writing of
the governor, be prefered in the ocurt in an action instituted by the
claimant as plaintiff against the attorney general as defendant.
479 in any such case it shall not be necessary forthe plaintiff to
issue a writ of summons, but the action shall be commenced by the filing
of a statement of claim and the service thereof on the crown solicitor. 480(1) on the application of the crown solicitor, the registrar
shall deliver to him the original statement of claim for submission to the
governor.
(2) if the governor grants his consent as aforesaid, such consent
shall be indorsed on the statement of claim, which shall then be returned
by the crown solicitor to the registrarr.
(3) in such case the action may, subject to the provisions of this
chapter, proceed and be carried on under the ordinary procedure provided
by this code.
481 all other documents, notices, or proceedings in the action which ,
in an ordinary action, would be required to be served on the defendant
shall be served on the crown solicitor.
482 whenever in any such action judgment is given against the
government, no execution shall issue thereon, but a copy of the judgment,
under the seal of the court, shall be transmitted by the court to
the governor.
CHAPTER XIX.
ACTION BY OR AGAINST FIRM, ETC.
483(1) any 2 or more persons claiming or being liable as co-
partners and carrying on business within the jurisdiction may sue or
be sued in the name of the respective firms, if any, of which such persons
were co-partners at the time ofthe accruing of the cause of action.
(2) any party to an action may in such case apply by summons to the
court for a statement of the names and addresses of the persons who
were, at the time of the accruing of the cause of action, co-partners in
any such firm, to be furnished in such manner, and verified upon oath
or otherwise, as the court may direct.
484(1) where a writ is sued out by partners in the name of their
firm, the plaintiffs or their solicitors shall, on demand in writing by or
on behalf of the defendant, forthwith declare in writing the names and
addresses of all the persons constituting the firm on whose behalf the
action is brought.
(2) if the plaintiffs or their solicitors fail to comply with such demand,
all proceedings in the action may, on an aplication for that purpose, be
stayed, on such terms as the court may direct.
(3) when the names of the partners are so declared, the action shall
proceed in the same manner, and the same consequences in all respects
shall follow, as if they had been named as the plaintiffs in the writ; but
all the proceedings shall nevertheless continue in the name of the firm. 485(1) where persons are sued as partners in the name of their
firm, the writ shall be served either on any one or more of the partners
or at the principal place within the jurisdiction of the business of the
partnership on any person having at the time of service the control or
management of the partnership business there.
(2) subject to the provisions of this chapter, such service shall be
deemed good service on the firm s0o sued, whether any of the members
thereof are out of the jurisdiciton or not, and no leave to issue a writ
against them shall be necessary: provided that, in the case of a co-partnership
which has been dissolved to the knowledge of the plaintiff before
the commencement of the action, the writ shall be served on every person
within the jurisdcition sought to be made liable.
486(1) where a writ is issued against a firm, and is served as
directed by the last preceding section, every person on whom it is served
may be informed by notice in writing, given at the time of such service,
whether he is served as a partner, or as a person having the control or
management of the partnership business, or in both characters.
(2) in default of such notice, the person served shall be deemed to
be served as a partner.
487 where persons are sued as partners in the name of their firm,
they shall appear individually in their own names; but all subsequent
proceedings shall nevertheless continue in the name of the firm.
488 where a writ is issued against a firm and is served on a person
having the control or management of the partnership busines, no appearance
by him shall be necessary, unless he is a member of the firm sued.
489 any person served as a partner may enter an apperarance under
protest, denying that he is a partner, but such appearance shall not
preclude the plaintiff from otherwise serving the firm, and obtaining
judgment against the firm in default of appearance, if no partner has
entered an appearance i nthe ordinary form.
490(1) where judgment is given against a firm, execution may issue-
(a) against any property of the partnership within the jurisdiction;
(b) against any person who has appeared in his own name under
section 487 or section 488, or who has admitted, either on the
pleadings or at the trial, that he is a partner, or who has been
adjudged to be a partner; and
(c) against any person who has been individually served, as a partner,
with the writ of summons, and has failed to appear.
(2) if the party who has obtained judgment claims to be entitled to issue exectuion against any other person as being a member of the firm,
he may apply to the court for leave to do so; and the court may give
such leave if the liability is not disputed, or, if the liability is disputed,
may order that the liability of such person be tried and dtermined in
any manner in which any issue or question in an action may be tried and
determined.
(3) execpt as against any proeprty of the partnership, a judgment
against a firm shall not render liable, release, or otherwise affect any
member thereof who was out of the jurisdiction when the writ was issued,
and who has not apeared to the writ, unles the writ has been served
on him out of the jurisdiction with the leave of the court or he has been
served within the jurisdiction after the writ was issued.
491(1) debts owing from a firm carrying on business within the
jurisdiction may be atached under chapter 16, although one or more
memembers of such firm may be resident abroad, provided that any person
having thecontrol or management of the partnership business or any
member of the firm within the jurisdiction is served with the garnishee
order.
(2) an appearance by any member pursuant to an order shall be a
sufficient appearance by the firm.
492 the provisions of this chapter shall apply to actions between a
firm and one or more of its members and to actions between firms
having one or more members in common, provided such firm or firms
carry on business within the jurisdiction, but no execution shall be
issued in any such action without the leave of the court, and, on an
application for leave to issue such execution, all such accounts and
inquiries may be directed to be taken and made, and directions given,
as may seem just.
493 any person carrying on business within the jurisdiction in a
name or style other than his own name may be sued i nsuch name or
style as if it were a firm name; and, so far as the nature of the case
will permit, all the provisions of this chapter relating to proceedings
against firms shall apply
CHAPTER XX
ACTION BY OR AGAINST PAUPER.
494(1) any poor person, before commencing or defending any
action or other procceeding in the court in his own right or become
poor during the progress thereof, may apply to the court by petition
for leave to sue or defend as a pauper.
(2) the petition shall be supported by an affidavit of the petitioneer and 2 householders living in his neighbourhood r other responsible
persons that he is not possessed for property to the amount of fifty dollars
in value, his wearing apparel and the subject-matter of the action or
proceeding only execpted.
495(1) the court shall thereupon assign a counsel and solicitor
to consider the petitioner's case.
(2) the petitioner shall lay a case before cunsel for his opinion
whether or not he has reasonable grunds for suing or defending.
496(1) no person shall be admitted to sue or defend as a pauper
unless the cae laid before counsel for his opinion and his opinion
thereon, with an affidavit of the party, or his solicitor, that the case
contains a full and true statement of all the material facts to the best
of his knowledge and belief, and with a certificate, signed by counsel,
that he has considered the case and believes the petitioner to have
a good cause of action or defence, as the case may be, is produced
before the court.
(2) if these condidtions are complied with, the court may order that
the petitioner shall be admitted to sue or defend, as the case may be, as
a pauper.
497 where a person is admitted to sue or defend as a pauper, the
court may, if necessary, assign a counsel or solicitor, or both, to assist
him.
498(1) no fee shall be payable by a pauper to his counsel or
solicitor.
(2) a person admitted to sue or defend as apauper shall not be liable
to any court fee: provided that if such person succeeds and costs are
adjudged to be paid by his opponent, then his counsel and solicitor shall
be entitled to and shall receive all such fees as the registrar may allow
to them on taxation, and such court fees as would in other cases be
chargeable shall be charged and recovered.
499 a counsel or solicitor assigned under this chapter shall not be
at liberty to refuse his assistance unles he satisfies the court that he
has some good reason for refusing.
500(1) while a person sues or defends as a pauper, no person
shall take, or agree to take, or seek to obtain from him any fee, profit,
or reward for the conduct of his business in the court.
(2) every person who takes, or agrees to take, or seeks to obtain any
such fee, profit, or reward shall be deemed guility of a contempt of
court, and shall be liable to be proceeded against and punished accordingly. 501 if any person admitted to sue or defend as a pauper-
(1) gives, or agrees to give, any such fee, profit, or reward; or
(2) becomes of ability during the progress of the action or proceeding;
or
(3) misbehaves himself therein by any vexatious or improper conduct or
proceeding; or
(4) wilfully delays the action or proceeding,
he shall be fortherwith dispaupered, and shall not be afterwards admitted
again in the same action or proceeding to sue or defend as a pauper.
502(1) No motion-paper or notice of motion shall be filed or summons
issued, and no peititon shall be presented, on behalf of any person
admitted to sue or defend as a pauper, except for the discharge of his
solicitor, unels it is signed by his solicitor, if any.
(2) it shall be the duty of the solicitor assigned to a person admitted
to sue or defend as a pauper to take care that no notice is served, or
summons issued, or petition presented, without good cause.
CHAPTER XXI.
ACTION FOR RECOVERY OF IMMOVABLE PROPERTY.
503 in an action for the recovery of immovable property, service of
the writ of summons may, in case of vacant possession, when it cannot
otherwise be effected, be made by posting a copy of the writ upon the
door of the dwelling house or other conspicuous part of the property.
504 the attorney general may lawfully institute and prosecute in
his own name an action for recovering unto thecrown any immovable
property claimed by the crow and whereof thecrow is not in actual
possession.
505 any person not named as a defendant in a writ ofsummons for
the recover of immovable property may, by leave of the court, appear
and defend, on filing an affidavit showing that he is in possession of the
property either by himself or by his tenant.
506 any person appearing to defend an action for the recovery of
immovable property as landlord, in respect of property whereof he is in
possession only by his tenant, shall state in his appearance that he appears
as landlord.
507 where a person not named as defendant in a writ of summons
for the recovery of immovable proeprty has obtained leave of the court
to appear and defend, he shall enter an appearance, according to the
provisions of chapter 1, entitled in the action against the party named in the writ as deendant, and shall forthwith give notice of such appearance
to the plaintiff's solicitor or to the plaintiff if he sues in person,
and shall in all subsequent proceedings be named as a party defendant
to the action.
508(1) any person appearing to a writ of summons for the recovery
of immovable property shall be at liberty to limit his defence to
a part only of the proeprty mentioned in the writ, describing that part
with reasonable certainty in his memorandum of appearance, or in a
notice entitled in the action and signed by him or his solicitor.
(2) such notice shall be served within four days after appearance;
and an appearance where the defence is not so limited shall be deemed
an appearance to defend for the whole property.
509 no defendant in an action for the recovery of immovable property who is
in possessin by himself or by his tenant need plead his
titled, unless his defence depend on an equitable estate or right or he
claims relief on any equitable groudn against any right or title asserted
by the plaintiff. But, except in the cases hereinbefore mentioned, it
shall be sufficient to state by way of defence that he is so in possession,
and it shall be taken to be implied in such statement that he denies, or
does admit, the allegations of fact contained in the plaintiff's statement
of claim. He may, nevertheless, rely on any ground of defence
which he can prove, except as hereebefore mentioned.
action of ejectment.
510 every tenant to whom any writ in ejectment is delivered, or to
whose knowledge it comes, shall forthwith give notice thereof to his
landlord or his agent, under penalty of forfeiting the value of three years'
improved or rack rent of the premises demised or held in the possession
of such tenant to the person of whom he holds, to be recovered by action
in any court having jurisdiction for th amount.
511(1) in all cases between landlord and tenant, as often as it
happens that one half-year's rent is in arrear, and the landlord or lessor
to whom the same is due has right by law to re-enter for the non-payment
thereof, the landlord or lessor may, wihtout any formal demand
or re-entry, serve a writ in ejectment for the recovery of the demised
premises; or in case the same cannot be legally served, or no tenant is
in actual possession of the premises, then the landlord or lessor may affix
a copy thereof upon the door of any demised messuage, which service
shall stand in the place and stead of a demand and re-entry; and if it is
made to appear to the court at the trial that half a year's rent was due
before the writ was served, and that no sufficient distress was to be
found on the demised premises, countervailing the arrears then due, and
that the landlord or lessor had power to re-enter, then the landlord or
lessor shall recover judgment and execution in the same manner as if
the rent in arrear had been legally demanded and a re-entr made.
(2) in case the lessee or his assignee, or other person claiming or
deriving under the lease, permits and suffers judgment to be had and
recovered on such trial in ejectment, and execution to be executed theeon,
wihtout paying the rent and arrears, together with full costs, and
without proceeding for relief on equitale grounds within six months
after such execution executed, then the lessee, his assignee, and all other
persons claimning and deriving under he lease shall be arred and foreclosed
from all relief or remedy in law or equity, other than by bringing
an appeal against such judgment; and the landlaord or lessor shall from
thenceforth hold the dmised premises discharged from such lease:
provided that noting herein contained shall extend to bar the right of
any mortgagee of the lease, or any part thereof, he is not in possession,
if such mortgage, within 6 months after such judgment obtained and
execution executed, pays all rent in arrear and all costs and damages
sustained by the lessor or person entitled to the remained or reversion
as aforesaid, and performs all the covenants and agreements which, on
the part and behalf of the first lessee, are and ought to be performed.
512(1) in case the lessee or his assignee, or other person claiming
any right, title, or interest in law or equity of, in, or to the lease, within
the time aforesaid, applies to the court for relief on equitable gorounds,
such person shall not be entitled to a stay of the proceedings on such
ejectment, unless, within forty days next after a full and perfect answer
to such application has been made by the claimant in such ejectment, he
pays into court such sum of money as the landlord or lessor in his answer
swears to be due and in arrear over and above all jsut allowances, and
also the costs taxed in the said action, there to remain until the trial of
the cause, or to be paid out to the landlord or lessor on good security,
subject to the judgment of the court.
(2) in case such application for relief on equitable grounds is made
within the time aforesaid and after execution is executed, the landlord
or lessor shall be accountable only for so much and no more as he may
really and bona fide, without fraud, deceit, or wilful neglect, make of
the demised premises from the time of his entering into the actual
possession thereof; and if what is so made by the landlord or lessor
happens to be less than the rent reserved on the lease, then the lessee or
his assignee, before he shall be rstored to his possession, shall pay to
the landlord or lessor the amount by which the money so made by him
fell short of the reserved rent for the time the landlord or lessor held
the demised premises.
513 if the lessee or his assignee, at any time before the trial in such
ejectment, pays or tenders to the landlord or lessor, his executors or
administrators, or his or their solicitor in the cause, or pays into court,
all the rent and arrears, together with the costs, then all further
proceedings on the ejectment shall cease and be discontinued; and if
the lessee, his executors, administrators, or assigns, on such application
as aforesaid, is or are delieved on equitable grounds, he and they shall
have, hold, and enjoy the demised premises according to the lease
thereof made, wihtout any new lease.
514(1) where the term or interest of any tenant holding under a
lease or agreement in writing any immovable property for any term or
number of years certain, or from year to year, has expired o nbeen determined,
either by the landlord or tenant, by regular ntoice to quit,
and the tenant, or any person holding or claiming by or under him,
refuses to deliver up possession accordingly, after lawful demand in
writing made and signed by the landlord or his agent and served personally
on or left at the dwelling house or usual plcae of abode of such
tenant or person, an the landlord thereupon proceeds by action of ejectment
for the recovery possession, it shall be lawful for him, at the
foot of the writ in ejectment, to address a notice to such tneant or person
requiring him to find such bail, if ordered by the court, and for
such purposes as are hereinafter next specified.
(2) on the appearance of the party or, in case of non-appearance, on
an affidavit of service of the writ and notice, it shall be laawful for the
landlord, on his producing the lease or agreement or some counterpart or
duplicate thereof, and proving the execution of the same by affidavit,
and upon affidavit that the premises have been actually enjoyed under
such lease or agreement, and that the premises have been actually enjoyed under
or been dtermined by regular notice to quit, as the case may be, and
that possession has been lawfully demanded in manner aforesaid, to
apply to the court, by motion or summons, for such tnant or person to
show cause, wihtin a time to be fixed by the court on a consideration of
the situation of the premises, why such tneant or person whould not enter
into a recognizance by himself and two sufficient sureties in a reasonable
sum conditioned to pay the damages and cost which may be recovered
by the claimant in the action; and it shall be lawful for the court, upon
cause shown or upon affidavit of the service of the motion or summons
in case no cause is shown, to order such tenant or person, wihtin a time
to be fixed on a consideration of all the circumstances, to find such
bail, with such conditions and in such manner as may be specified
in the order.
(3) if such tenant or person refuses or neglects to comply with the order and lays no ground to induce the court to enlarge the time for
obeying the same, then the landlord, on filing a affidavit that the order
has been made and served and not complied with, shall be at liberty to sign
judgment for recovery of possession and costs.
515 where it appears, on the trial of any ejectment at the suit of a
landlord agaiinst a tenant, that the tenant or his attorney has been served
with due notice of trial, the court shall, whether the defendant appears
at the trial or not, permit the claimant on the trial, after proof of his
right to recover possession of the whole or any part of the premises
mentioned in the writ in ejectment, to go into evidence of the mesne
profits thereof which ahve or might have accrued from the day of the
expiration or determination of the tenant's interest in teh same down to
the time ofthe judgment given in the cause or to some preceding day
to be specially mentioned therein; and the court or jury on the trial
finding for the claimant shall in such case give it judgment or their
verdict upon th whole matter both as to the recovery of the whole or
any part of the premises and also as to the amount of damages to be
paid for such mesne pofits; and in such case he landlord shall have
judgment within the time hereinbefore provided, not only for the recovery
of possession and costs, but also for the mesne profits found by the
court or jury: provide that nothing hereinbefore contained shall be
constured to bar any such landlord from bringing any action for the
mesne profits which may accrue from the judgment or verdict, or the
day so specified therein, down to the day of the delivery of possession of
the premises recovered in the ejectment.
516 nothing in this chapter shall be construed to prejudice or affect
any other right of action or remedy which a landlord may possess in any
of the cases hereinbefore provided for, otherwise than as hereinbefore
expressly enacted.
CHAPTER XXII.
MANDAMUS.
action of mandamus.
517 the plaintiff in any action may indorse on the writ of summons
a notice that the plaintiff intends to claim a writ of mandamus, and the
plaintiff may thereupon claim in the statement of claim, either together
with any other demand which may be enforced in such action or separately,
a writ of mandamus commanding the defendant to fulfil any duty
in the fulfilment of which the plaintiff is personally interested.
518 the statement of cklaim in any such action shall set forth sufficient
grounds on which the claim is founded, and shall set forth that
the plaintiff is personally interest therein, and that he sustains, or may sustain, damage by the non-performance of such duty, and that performance
thereof has been demanded by him and refused or omitted.
519 the proceedings in any such action shall be the same in all respects,
as nearly as may be, as in an oridinary action for the recovery
of damages.
520(1) in case judgment is given for the plaintiff that a mandamus
do issue, the court may, if it thinks fit, issue a peremptory writ of
mandamus to the defendant, commanding him forhtwith, or within such
time as the court may direct, to perform the duty to be enforced, and
such writ, may, in case of disobedience, be enforced by committal.
(2) the court may, on sufficient cause shown, extend the time for the
performance of the duty.
521 the writ of mandamus need not contain any recitals, but shall
simply command the performance of the duty, and in other respects
shall be in the form of an ordinary writ of execution, execpt that it shall
be directed to the party and not to the bailiff and be returnable forthwith;
and no return it may, on sufficient grounds, be allowed by the court,
either on or iwhtout terms, as to the court may seem just.
prerogative writ of mandamus.
522 nothing in this chapter shall affect the jurisdicition of the court
to grant prerogative writs of mandamus; nor shall any writ of mandamus
issued out of the court be invalid by reason of the right of the prosecutor
to proceed by action of mandamus under this chapter.
523 on application by motion for a prergative writ of mandamus,
the rule may in all cases be absolute in the first instance, if the court
thinks fit; and the writ may bear teste on the day of its issuing, and may
be made returnable forhtwith, but time to retrun it may, on sufficient
grounds, be allowed by the court, either on or without terms, as to the
court may seem just.
524 the provisions of this code, so far as they are applicable, shall
apply to the pleadings and proceedings on a prerogative writ of mandamus
issued by the court.
CHAPTER XXIII.
INTERPLEADER.
525 relief by way of interpleader may be granted-
(1) where the person seeking relief (in this chapter called the applicant) is
under liability for any debt or movable property for or in respect of which he is, orexpects to be, sued by two or more parties
(in this chapter called the claimants) making adverse claims thereto; and
(2) where the applicant is the bailiff and claim is made to any movable
property taken or intended to be taken in execution under any
process, or to the proceeds or value of any such movable proeprty,
by any person other than the person against whom the process issued.
526 the applicant must satisfy the court, by affidavit or otherwise,-
(1) that the applicant claims no interest in the subject-matter in dispute,
other than for charges or costs; and
(2) that the applicant does not collude with any of the claimants; and
(3) that the applicant, except where he is the bailiff and has seized
movable property and has withdrawn from possession in consequence
of the execution creditor admitting the claim of the claimant, is
willing to pay or transfer the subject-matter into court or to dispose
of it as the court may direct.
527 the applicant shall not be disentitled to relief by reason only
that thetitles of the cliamants have not a common origin, bu are adverse
to and independent of one another.
528 where the applicant is a defendant, application for relief may
be made at any time after service of the writ of summons.
529 the applicant may take out a summons calling on the claimants
to appear and state the nautre and particulars of their claims, and either
to maintain or relinquish them.
530 if the application is made by the defendant in an action, the
court may stay all further proceedings in the action.
531 if the claimants appear in pursuance of the summons, the court
may order either that any claimant be made a defendant in any action
already commenced i nrespect of the subject-matter in dispute in lieu of
or i naddition to the applicant or that an issue between the claimants be
stated an tried, and in the latter case may direct which of the claimants
is to be plaintiff and which defendant.
532 the court may, with the consent of both claimants or on the
request of any claimant, if, having regard to the value of the subject-
matter in dispute, it seems desirable to do so, dispose of the merits of
their claims and decide the same in a summary manner and on such
terms as may be just.
533 where the question raised by the claims is a question law
and the facts are not in dispute, the court may either decide the question without directing the trial of an issue or order that a special case be
stated for the opinion of the court.
534 if a claimant, having been duly served with a summons calling
on him to appear and maintain or relinquish his claim, does not appear
in pursuance of the summons or, having appeared, refuses or neglects to
comply with any order made after his appearance, the court may make
an order declaring him and all persons claiming under him for ever
barred against the applicant and persons claiming under him, but the
order shall not affect the rights of the claimants as between themselves.
535 except where otherwise provided by statute, the judgment in
any action or on any issue ordered to be tried or stated in an interpleader
proceeding, and the decision of the court in a summary way, under
section 532, shall be final and conclusive against the claimants and all
persons claiming under them, except by special leave of the court or of
the full ocurt.
536 chapter 6 and 12 shall, with the necessary modifications, apply
to an interpleader issue; and the court may finally dispose of the whole
matter of the interpleader proceedings, including all costs not otherwise
provided for.
537 the court may, in or for the purposes of any interpleader proceedings,
make all such orders as to costs and all other matters as may
be jsut and reasonable.
CHAPTER XXIV.
REFERENCE TO ARBITRATION.
538 in this chapter, unless the context otherwise requires, 'submission'
means a written agreement to submit present or future differences
to arbitration, whether an arbitrator is named therein or not.
reference by consent of court.
539 a submission, unless a contrary intention is expressed therein,
shall be irrevocable, except by leave of the court, and shall have the
same effect i nall respects as if it had been made an order of court.
540 a submission, unless a contrary intention is expressed therein,
shall be deemed to include the provisions hereinafter set forth, so far as
they applicable to the reference under the submission; that is to
say,-
(1) if no other mode of reference is provided, the reference shall be
to a single arbitrator;
(2) if the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which
they have power to make an award;
(3) the arbitrators shall make their award in writing within three
months after entereing on the reference, or afteer having been called
on to act by notice in writing from any party to the submission,
or on or befroe any alter day to which the arbitrators, by any
writing signed by them, may fro mtime to time enlarge the time
for making the award;
(4) if the arbitrators have allowed their time or extended time to
expire without making an award, or have delivered to any party to
the submission or to the umpire a notice in writing stating that
they cannot agree, the umpire may forthwith enter on reference
in lieu of the arbitrators;
(5) the umpir shall make his award within three months after the
original or extended time appointed for making the award of the
arbitrators has expired, or on or before any later day to which the
umpire, by any writing signed by him, may from time to time
enlarge the time for making the award;
(6) the parties to the reference, and all persons claiming through or
under them respectively, shall, subject to any legal object, submit
to the examined by the arbitrators or umpire, upon oath, in
relation to the matters in dispute, and shall, subject as aforesaid,
produce before the arbitrators or umpire all books, deed, papers,
accounts, writings, and documents i ntheir possession or power
respectively which may be required or called for, and do all other
things which, during the proceedings on the reference, the arbitrators or
umpire may require;
(7) the witnesses on the reference shall, if the arbitrators or umpire
think fit, be examined upon oath;
(8) the award to be made by the arbitrators or umpire shall be final
and binding on the parties and the persons claiming through or
under them respectively; and
(9) the costs of the reference and awaard shall be in the discretion of
the arbitrators or umpire, who may direct to and by whom and in
what manner those costs or any part thereof shall be paid, and may
award costs to be paid as between solicitor and client, and such
costs shall be taxed by the Registrar.
541 if any party to a submission, or any person claiming through
or under him, commences any legal proceedings in the court against
any other party to the submission, or any person claiming through or
under him, in respect of any matter agreed to be referred, any party to
such legal proceedings may, at any time after appearance and before
filing any pleading or taking any other step in the proceedings, apply to the court to stay the proceedings, and the court, if its is satisfied that
there is not sufficient reason why the matter should not be referred in
accordance with the submission, and that the applicant was, at the time
when the proceedings were commenced, and still remains, ready and
willing to do all things necessary to the proper conduct of the arbitration,
may make an order staying the proceedings accordingly.
542(1) in any of the following cases,-
(a) where a submission provides that the reference shall be to a
single arbitrator, and all the parties do not, after differences have
arisen, concur in the appointment of an arbitrator;
(b) if an appointed arbitrator refuses to act, or is incapable of acting,
or dies, and the submission does not shwo that it was intended
that the vacancy should not be supplied, and the prties do not
supply the vacancy;
(c) where the parties or two arbitrators are at liberty to appoint an
umpire or third arbitrator and do not appoint him; and
(d) where an appointed umpire or third arbitrator refuses to act, or
is incapable of acting, or dies, and the submission does not show
that it was intended that the vacancy should not be supplied, and
the parties or arbitrators do not supply the vacancy,
any party may serve the other parties or the arbitraotrs, as the case may
be, with a written notice to appoint an arbitrator, umpire, or third arbitrator.
(2) if the appointment is not made within seven clear days after the
service of the notice, the court may, on application by the aprty who
gave the notice, appoint an arbitrator, umpire, or third arbitrator, who
shall have the like powers to act in the reference and make an award as
if he had been appointed by consent of all parties.
543 where a submission provides taht the reference shall be to two
arbitrators, one to be appointed by each party, then, unless the submission
expresses a contrary intention,-
(1) if either of the appointed arbitrators refusese to act, or is incapable
of acting, or dies, the party who appointed him may appoint a
new arbitrator in his place; and
(2) if, on such a reference, one party fails to appoint an arbitrator,
either originally or by way of substitution as aforesaid, for seven
clear days after the other party, having appointed his arbitrator,
has served the party making default with notice to make the appointment,
the party who has appointed an arbitrator may appoint that
arbitrator to act as sole arbitrator in the reference, and his award
shall be binding on both parties as if he had been appointed by
consent: provided that the court may set aside any appointment made in
pursuance of this section.
544(1) arbitrators or umpire acting under a submission shall,
unless the submission expresses a contrary intention, have power-
(a) to administer oaths to the parties and winesses appearing; and
(b) to state an award as to the whole or part thereof in the form of
a special case for the opinion of the court; and
(c) to correct in an award any clerical mistake or error arising from
any accidental slip or omission.
(2) the arbitrators or umpire acting under a submission shall also
have such authority, and shall conduct the reference in such manner, as
is hereinafter mentioned; that is to say,-
(a) they may hold the proceedings on the reference at or adjourn
them to any place which they may deem most convenient, and
have any inspection or view which they may deem expedient
for the better disposal of the controversy before them;
(b) evidence shall be taken on the reference, and the attendance of
witnesses may be enforced by subpoena, and the proceedings on the
reference shall be conducted in the same manner, as nearly as circumstances
will admit, as trials are conducted before the court;
(c) they shall have the same authority with respect to discovery and
production of documents, and in the conduct of the reference, as
the court;
(d) nothing in this section shall authorize them to commit any person
to prison or to enforce any order by committal or otherwise; and
(e) when they make an award, they shall immediately thereafter
cause notice thereof to be given in writing to all the parties to the
refeerence before them.
545 any party to a submission may sue out a writ of subpoena ad
testificandun or a writ of subpoena duces tecum, but no person shall be
compelled under any such writ to produce any document which he could
not be compelled to produce on the trial of an action.
546 the time for making an award may from time to time be enlarged
by order of the court, whether the time for making the award has
expired or not.
547(1) in all cases of reference to arbitration, the court may from
time to time remit the matters referred, or any of them, to the reconsideration
of th arbitrators or umpire.
(2) where an award is remitted, the arbitrators or umpire shall,
unless the order otherwise directs, make their award within three months
after date of the order. 548(1) where an arbitrator or umpire has misconducted himself,
the ocurt may remvoe him.
(2) where an arbitrator or umpire has misconducted himself, or an
arbitration or award has been improperly procured, the court may set
aside the award.
549 an application to set aside an award may be made within one
month after such award has been made and published to the parties.
550(1) an award may, by leave of the court, be enforced in the
same manner as a judgment or order of the court to the same effect.
(2) an award may, by leave of the ocurt and on such terms as may
be just, be enforced at any time, though the time for applying to set it
aside has not elapsed.
reference under order of court.
551(1) subject to the provisions of this code and to any right to
have particular cases tried by a jury, the court may refer any question
arising in any cause or matter (other than a crminal proceeding by the
crwon) for inquiry and report to a special referee.
(2) the report of a special referee may be adopted wholly or
partially by the court, and, if so adopted, may be enforced in the same
manner as a judgment or order ofthe court to the same effect.
552 in any cause or matter (other than a crminal proceeding by the
crwon),-
(1) if all the parites interested who are not under disability consent;
or
(2) if the cause or matter requries any prolonged examination of
documents or any sientific or local investigation which cannot, in
the opinion of the court, conveniently be made before a jury or
conducted by the court through its other ordinary officers; or
(3) if the quesiton in dispute consists wholly or in part of matters of
account,
the court may at any time order the whole cause or matter, or any
question or issue of fact arising therein, to be tried before a special
referee or arbitrator respectively agreed on by the parties or before an
officer of the court.
553 in every case of reference to a special referee or arbitrator or
to an officer of the court udner an order of the court in any cause or
matter, the special referee or arbitrator shall be deemed to be an officer
of the court, and such special referee, arbitrator, or officer shall have
such authority, and shall conduct the reference in such manner, as is
hereinafter mentioned; that is to say,- (1) he may, subject to the order of the court, hold the trial at or
adjourn it to any place which he may deem most convenient, and
have any inspection or view which he may deem expedient for the
better disposal of the controversy before him. if he is appointed
by an order of the ocurt, he shall,unless otherwise directed by the
court, proceed with the trial de die in diem, in a similar manner as
in an action tried with a jury;
(2) subject to any order to be made by the court, evidence shall be
taken at the trial, and the attendance of witnesses may be enforced
by subpoena, and the trial shall be conducted in th same manner,
as nearly as circumstances will admit, as trials are conducted before
the court;
(3) subject to any such order as last aforesaid, he shall have the same
authority with respect to discovery and production of documents
and in the conduct of the trial or reference, and the same power to
direct that judgment be entered for any or either party, as the court;
(4) nothing in this section shall authorize him to commit any person
to prison or to enforce any order by commttal or otherwise;
(5) he may, before the conclusion of the trial before him or by his
report or awrd under the reference made to him, submit any
question arising therein for the decision of the court, or state any
facts specially, with power to the court to draw inferences therefrom,
and in any such case the order to be made on such submission or
statement shall be entered as the court may direct; and the court
shall have power to require any explanation or reasons from him
and to remit the cause or matter, or any part thereof, for re-trial or
further consideration to him or to any other special referee, arbitrator,
or officer of the court; or the court may decide the question
referred to him on the evidence taken before him, either with or
without additional evidence as the court may direct;
(6) when he makes a report or award, he shall immediately thereafter
cause notice thereof to be given in writing to all the parties to the
trial or reference before him;
(7) where a report or award has been made in a cause or matter, the
further consderation of which has been adjourned, it shall be lawful
for any party, on the hearing of such further consideration, without
notice of motion or summons, to apply to the court to adopt the
report or award, or without leave of the court to give not less than
four days' notice of motion, to come on with the further consideration,
to vary the report or to remit the cause or matter or any part
thereof for re-trial or further consideration to the same or any other
special referee, arbitrator, or officer of the court;
(8) where a report or award has been made in a cause or matter, the further consideration of which has not been adjourned, it shall be
lawful for any party, by an eight days' notice of motion, to apply
to the court to adopt and carry into effect the report or award, or
to vary the report or award, or to remit the cause or matter or any
part thereof for re-trial or further consideration to the same or any
other special referee, arbitrator, or officer of the court; and
(9) he may, subject to any directions in the order of reference,
exercise the same discretion as to costs as the court could have
exercised.
554 where at the trial a special referee, arbitrator, or officer of the
court abstains from directing any judgment to be entered, the plaintiff
may set down a motion for judgment. if he does not set down such a
motion and give notice thereof to the other parties within ten days after
the trial, any defendant may set down a motion for judgment, and give
notice thereof to the other parties.
555 where at the trial a special referee, arbitrator, or officer of the
court directs that any judgment be entered, and party may move to set
aside such judgment, and to enter any other judgment, on the ground
that, upon the finding as entered, the judgment so directed is wrong.
556 the report or award of any special referee, arbitrator, or officer
of the court on any such reference shall, unless set aside by the court,
be equivalent to the verdict of a jury.
557 the remuneration to be paid to any special referee, arbitrator,
or officer of the court to whom any matter is referred under an order of
the court shall be determined by the court.
558 the court shall, as to any reference under an order of the court,
have all the powers which are by this chapter conferred on the court
as to a reference by consent out of court.
general provisions.
559(1) the court may order that a writ of subpoena ad testificandum
or of subpoena duces tecum shall issue to compel the attendance
before a special referee, or before any arbitrator, umpire, or officer of
the court, of a witness wherever he may be within the colony.
(2) the court may also order that a writ of habeas corpus ad
testificandum shall issue to bring up a prisoner for examination before a
special referee or before any arbitrator, umpire, or officer of the court.
560 any special referee, arbitrator, or umpire or officer of the court
may, at any stage of the proceedings under a reference, and shall, if so directed by the court, state in the form of a special case for the
opinion of the court any question of law arising in the course of the
reference.
561 any order made under this chapter may be made on such
terms as to costs, or otherwise, as the authority making the order thinks just.
562 every person who wilfully and corruptly gives false evidence
before any special referee, arbitrator, or umpire or officer of the court
shall be guilty of perjury, as if the evidence had been given in oper
court, and may be dealt with, prosecuted, and punished accordingly.
563 this chapter shall, execpt as in this chapter expressly mentioned,
apply to any arbitration to which his majesty the king is a
party; but nothing in this chapter shall empower the court to order
any proceedings to which his majesty is a party, or any question ror
issue in any such proceedings, to be tried before any special referee,
arbitrator, or officer without the consent of his majesty, or shall affect
the law as to costs payable by the crown.
564 this chapter shall apply to every arbitration under any ordinance
passed before or after the commencement of this code as if the
arbitration were pursuant to a submission, except in so far as this chapter
is inconsistent wiht the ordinance regulating the arbitration or wiht
any rules or procedure authorized or recognized by that ordinance.
565 this chapter shall not affect any arbitration pending at the
commencement of this code, but shall apply to any arbitration commenced
after the commencement of this code under any agreement or
order made before the commencement of this code.
PART III.
PROVISIONAL REMEDIES.
CHAPTER XXV.
ARREST AND ATTCHMENT BEFORE JUDGMENT.
arrest of absconding defendant.
566 if in any action, not being an action for the recovery of immovable
property, the defendant is about to leave the jurisdiction of the
court, or has disposed of or removed from the jurisdiction of the court
his property or any part thereof, the plaintiff may, either at the institution of
the action or at any time thereafter until final judgment, apply
to the court to call upon the defendant to furnish sufficient security for his appearance to answer any judgment that may be given against him
in the action.
567 if the court, after making such investigation as it may consider
necessary, is of opinion that there is probable cause for believing that
the defendant is about to leave the jurisdiction or that he has disposed
of or removed from the jurisdiction property or any part thereof, and
that in either case, by reason thereof, the execution of any judgment
that may be given against him in the action is likely to be obstructed or
delayed, it shall be lawful for the court to issue a warrant to the bailiff
enjoining him to bring the defendant before the court that he may show
cause why he should not give security for his appearance to answer any
judgment that may be given against him in the action.
568(1) if the defendant shows such cause, the warrant shall be
discharged and the defendant be released.
(2) if the defendant fails to show such cause, the court shall order
him to give sufficient bail for his appearance at any time when called
upon while the action is pending and until the execution of any judgment
that may be given against him in the action.
(3) the surety or sureties giving such bail shall undertake, in default
of such appearance, to pay any sum of money that may be adjudged
against the defendant in the action, with costs.
(4) if the defendant offers, in lieu of giving bail, to deposit in court
a sum of money or other valuable property, sufficient to answer any sum
of money that may be adjudged against him in the action, with costs,
the court may accept such deposit in lieu of bail.
569(1) if the defendant complies with the order of the court, the
warrant shall be discharged and the defendant be released.
(2) if the defendant does not comply with the order of the court, he
may be committed to prison until the decision of the action, or, if judgment
is given against him, until the execution of the judgment or until
the further order of the court.
570 a defendant who has given bail for his appearance, or who has
been committed to prison for default in giving such bail, may at any
time apply to the court for the discharge of his bail or for his release
from prison, as the case may be, on the ground that the plaintiff has not
used due diligence in the prosecution of the action, and, on the hearing
of the application, the court may make such order as may seem just.
571(1) if it appears to the court that the arrest of the defendant
was applied for on insufficient grounds, or if the action is dismissed or
judgment is given against the plaintiff by default or otherwise, and it
appears to the court that there was no probable ground for insituting
the action, the court may, on the application of the defendant, made
either before or at the time of the pronouncing of the judgment, award
against the plaintiff such amount, not execeeding one thousand dollars,
as it may deem a resaonable compensation to the defendant for any injury
or loss which he may have sustained by reason of the arrest: providied
that the court shall not award a larger sum by way of compensation
under this section than it is competent to the court to award in an action
for damages.
(2) an award of compensation under this section shall bar any action
for damages i nrespect of the arrest.
interim attachment of property of defendant.
572(1) if in any action the defendant, with intent to obstruct or
delay the execution of any judgment that may be given agaisnt him in
the action, is about to dispose of his property or any part thereof, or to
remove any such property from the jurisdiction of the court, the plaintiff
may, either at the institution of the action or at any time thereafter
until final judgment, apply to the court to call upon the defendant to
furnish sufficient security to produce and place at the disposal of the
court, when required, his property, or the value of the same, or such
portion thereof as may be sufficient to answer any judgment that may
be given agaisnt him in the action, adn, in the event of his failing to
furnish such security, to direct that any property, movable or immovable,
belonging to thedefendant shall be attached until the further order of
the court.
(2) the application shall contain a specification of the property
required to be attached, and the estimated value thereof, so far as the
plaintiff can reasonably ascertain the same.
(3) there shall be filed with the application an affidavit to the effect
that the defendant is about to dispose of or remove his property or some
part thereof, with such intent as aforesaid.
573(1) if the court, after making such investigation as it may
consider necessary, is of opinion that there is probable cause for believing
that the defendant is about to dispose of or remove his property or some
part thereof, with such intent as aforesaid, it shall be lawful for the
court to issue a warrant to the bailiff commanding him to call upon
the defendant, within a time to be fixed by the court, either to furnish
security, in such sum as may be specified in the order, to produce and
place at the disposal of the court, when required, the said property, or
the value of the same, or such portion thereof as may be sufficient to
answer any judgment that may be given against him in the action, or to appear before the court and show cause why he shuld not furnish
such security.
(2) the court may also in the warrant direct the attachment until
further order of the whole or any portion of the property of the defendant
within the colony.
(3) the attachment shall be made, according to the nature of teh
property to be attached, in the manner prescribed in chapter 16 for
the attachment of property in execution of a judgment for money.
574(1) if the defendant shows such cause or furnishes the required
security within the time fixed by the court, and the property
specified in the appliciation, or any portion thereof, has been attached,
the court shall order the attachment to be withdrawn.
(2) if the defendant fails to show such cause or to furnish the
required security within the time fixed by the court, the court may
direct that the property specified in the application, if not already
attached, or such portion thereof as may be sufficient to anser any
judgment that may be given against the defendant in the action, shall
be attached until the further order of the court.
(3) the attachment shall be made, according to the nature of the
property to be attached, in the manner prescribed in chapter 16 for the
attachment of property in execution of a judgment for money.
575 the attachment shall not affect the rights of any person not
being parties to the action, and in the event of any claim being preferred
to the property attached before judgment, such claim shall be
investigated in the manner prescribed in chapter 16 for the investigation
of claims to proeprty attached in execution of a judgment.
576 in any case of attachment before judgment, the court shall at
any time remove the same on the defendant furnishing the required
security, together with security for the costs of the attachment.
577(1) if it appears to the court that the attachment was applied
for on insufficient grounds, or if the action is dismissed or judgment is
given agaisnt the plaintiff by default or otherwise, and it appears to the
court that there was no probable ground for instituting the action, the
court may, on the application of the defendant, made either before or
at the tiem of the pronouncing of the judgment, award against the
plaintiff such amount, not exceeding one thousand dollars, as it may
deem a reasonable compensation to the defendant for any injury or loss
which he may have sustained by reason of the attachment: Provided
that the court shall not award a larger sum by way of compensation
under this section than it is competent to the court to award in an
action for damages. (2) an award of compensation under this section shall bar any
action for damages in respect of the attachment.
arrest and detention of ship.
578 where the extreme urgency or other peculiar circumstances of
the case appear to the court so to require, it shall be lawful for the
court, on the application of the plaintiff in any action or of its own motion,
by warrant under the seal of the court, to stop theclearance or to
order the arrest and detention by the bailiff of any ship about to leave
the colony (other than a ship enjoying immunity from civil process),
and such clearance shall be stopped or the ship arrested and detained
accordingly: provided that no such warrant shall be issued at the
instance of any plaintiff unless the application for the issue thereof
is supported by an affidavit of the facts.
579 the court may at any time release a ship detained udner the
last preceding section, on such terms as it may think just.
580(1) if it appears to the court that the warrrant was applied
for a insufficient grounds, or if the action is dismissed or judgment is
given against the plaintiff by default or otherwise, and it appears to teh
court that there was no probable ground for instituting the action, the
court may, either before or at the time of the pronouncing of teh judgment,
award against the plaintiff such amount, not exceeding one thousand
dollars, as it may deem a reasonable compensation for any injury or
loss occasioned by the issue of the warrant, and such compensation shall
be paid to such parties as the court may direct: provided taht the court
shall not award a larger sum by way of compensation under this section
than it is competent to the court to award in an action for damages.
(2) an award of compensation udner this section shal bar any action
for damages in respect of the arrest and dtention of the ship.
CHAPTER XXVI.
TEMPORARY INJUNCTION.
581(1) in any action in which it is shown, to the staisfaction of
the court, that any property in dispute in the action is in danger of
being wasted, damaged, or alienated by any party to the action, it shall
be lawful for the court to issue an injunction to such party, commanding
him to refrain from doing the particular act complained of, or to give
such other order for the purpose of staying and preventing him from
wasting, damaging, or alienating the property as to the court may seem fit. (2) in case of disobedience, the injunction may be enforced by the
committal to prison ofthe person disobeying it.
582(1) in any action for retrainging the defendant from the
commission of any breach of contract or other injury, and whether the
same is accompanied by any claim for damages or not, it shall be lawful
for the plaintiff, at any time after the commencement of the action and
whether before or after judgment, to apply to the court for an injunction
to restrain the defendant from the repetition or continuance of the
breach of contract or injury complained of, or the commission of any
breach of contract or injury of a like kind arising out of the same contract
or relating to the same property or right.
(2) the injunction may be granted by the court on such terms as to
the duration of the injunction, keeping an account, giving security, or
otherwise, as may seem just.
(3) in case of disobedience, the injuction may be enforced by the
committal to prison of the person disobeying it.
583 the court shall in all case s under this chapter, except where
it appears that the object of granting an injunction would be defected
by the delay, before granting an injunction, direct notice of the application
for the same to be given to the opposite party.
584 an injunction directed to a public company or corporation shall
be binding not only on the company or corporation itself but also on all
members and officers of the company or corporation whose personal
action it seeks to restrain.
585 any order for an injunction made under this chapter may, on
application made for that purpose by any party affected by the order, be
discharged or varied or set aside by the court, on such term as may
seem just.
586(1) if it appears to the court that the injunction was applied
for on insufficient grounds, or if the action is dismissed or judgment is
given against the glintiff by default or otherwise, and it appears to the
court that there was no probable ground for instituting the action, the
court may, on the application of the defendant, made either before or
at the time of the pronouncing of the judgment, award against the
plaintiff such amount, not exceeding one thousand dollars, as it may
deem a reasonable compensation to the defendant for any injury or loss
which he may have sustained by the issue of the injunction: provided
that the court shall not award a larger sum by way of compensation
under this section than it is competent to the court to award in an action
for damages. (2) an award of compensation unde this section shall bar any
action for damages in respect of the issue of the injunction.
CHAPTER XXVII.
RECEIVER.
587 whenever it appears to the court to be necessary for the
realization, preservation, or better custody or management of any property,
the subject of an action or other proceeding or under attachment,
the court may appoint a receiver of such proerty, and, if necessary,
order all or any of the following things, namely,-
(1) the remvoal of the person in whose possession or custody the
property may be from the possession or custody thereof;
(2) the commitment of such property to the custody or management
of such receiver; and
(3) the granting to such receiver of all such powers as to bringing
and defending actions and other proceedings, and for the realization,
management, protection, preservation, and improvement of
the property, for the collection of the rents and profits thereof, for
the application and disposal of such rents and profits, and for the
execution of instruments in writing as the owner himself has, or
such of those powers as the court thinks fit.
588 in every case in which an application is made for the appointment
of a receiver by way of equitable execution, the court, in determining
whether it is just and convenient that such appointment should
be made, shall have regard to the amount of the debt claimed by the
applicant, to the amount which may probably be obtained by the receiver,
and to the probable costs of his appointment, and may, if it thinks fit,
direct any inquiries on these or other matters before making the appointment.
589 where an order is made directing a receiver to be appointed,
the person to be appointed shall, nless otherwise ordered, first give
security, to be allowed by thecourt and taken before the registrar,
duly to account for what he shall receive as such receiver and to pay
the same as teh court may direct; and the person so to be appointed
shall, unless otherwise ordered, be allowed a proper salary or allowance
by way of fees or commissions or otherwise, as the court may think fit.
590 where any judgment or order is pronounced or made in court
appointing a person therein named to be receiver, the court may
adjourn to chambers the cause or matter then pending, in order that
the person named as receiver may give security as in the last preceding section mentioned, and may thereupon direct such judgment or order to
be drawn up.
591(1) when a receiver is appointed with a direction that he
shall pass accounts, the court shall fix the days upon which he shall
(annually or at longer or shorter periods) leave and pass such accounts,
and also the days upon which he shall pay the balances appearing due
on the acconts so left, or such part thereof as may be certified as
proper to be paid by him: provided that the court may, on good cause
shown, enlarge any such period.
(2) if any such reciver neglects to leave and pass his acocunts and
pay the balances thereof at the times so fixed or enlarged for that
purpose as aforesaid, the court may from time to time, when his subsequent
accounts are produced to be examined and passed, disallow the
salary or allowance therin claimed by such receiver, and may also, if
it thinks it, charge him with interest at the rate for the time being
fixed by the court upon the balnances so neglected to be paid by him
during the time the same may appear to heave remained in his hands.
592(1) every such reciver shall leave with the registrar his
account, together with an affidavit verifying the same.
(2) an appointment shall thereupon obtained by the plaintif or
the person having the conduct of the cause or matter for the purpose of
passing such account.
593 in cae of such receiver failing to leave such account or
affidavit, or to pass such account, or to make any payment or otherwise,
the receiver or the parties, or any of them, may be required to attend at
chambers to show cause why such account or affidavit has not been left,
or such account passed, or such payment made, or any other proper
proceeding taken, and thereupon such directions as may be proper may
be given at chambers or by adjournment into court, including the
discharge of any receiver and the appointment of another an paymetn of costs.
PART IV.
APPEALS.
CHAPTER XXVIII.
APPEAL TO THE FULL COURT.
594 the right of appeal from decisions of the judges of the court
is regulated by section 23 of the supreme court ordinance, 1873.
595(1) from and after the commencement of this code, every
motion for a new trial or to set aside a verdict, finding, or judgment, in
any cause or matter in which there has been a trial thereof or of any
issue therein with a jury shall be heard and dtermined by the full
court and not by the court.
(2) this section shall extend to every such motion of which notice
may have been given, whether before or after the commencement of this
code, but which has not been heard before the commencement of this
code.
596 the full court may in any cause or matter, on such terms as
may seem just, order a new trial, with or without a stay of proceedings.
597(1) any application for a new trial shall be made made on notice of
motion filed not later than fourteen days after the date of the verdict;
and no rule nisi, order to show cause, or formal proceeding other than
such notice of motion shall be made or taken.
(2) the notice shall state the grounds of the application and whetehr
all or part only of the judgment or verdict is complained of.
(3) the notice shall not of itself operate as a stay of proceedings;
but any money in court in the cause or matter shall be retained to abide
the result of the motion or the further order of the full court.
(4) after the expiartion of such fourteen days, and application fro
such new trial shall not be admitted, except by special leave of the full
cour, on such terms as may seem just.
598(1) a new trial may be granted on the ground of the discovery
of new matter or evidence which was not within the knowledge
of the applicant, or could not have been adduced by him, at the trial.
(2) a new trial shall not be granted on the ground of misdirection
or of the improper admission or rejection of evidence, or because the
verdict of the jury was not taken upon a question which the court at
the trial was not asked to leave to them, unless in the opinion of the
full court some substantial wrong or miscarriage has been thereby
occasioned in the trial; and if it appears to the court that such wrong
or miscarriage affects part only of the matter in controversy or some
or one only of the parties, the full court may give final judgment as to
part thereof or as to some or one only of the parties, and direct a new
trial as to the other part only or as to the other party or parties.
(3) a new trial shall not be granted by reason of the ruling of the
court that the stamp upon any document is sufficient or that the document
does not require a stamp.
599 a new trial may be ordered on any question, whatever may be
the grunds for the new trial, without interfering with the finding or
decision on any other quesiton. 600 on any motion for a new trial, the full court shall have power
to order a nonsuit or verdict to be entered, altherough no leave has been
reserved at the trial.
601 in every order for a new trial or to enter a nonsuit or verdict,
the grounds on which the order has been made shall be shortly stated
therein.
602 when a new trial is granted on the ground that the verdict was
agaisnt evidence, the costs of the first trial shall abide the event, unless
the full court otherwise orders.
603(1) on an order for a new trial, either party may, if he is
entitled thereto under the provisions of chapter 11, demand a jury for
the second trial, though the first was without a jury.
(2) the full court may, if it thinks fit, make it a condition of granting
a new trail that the trial shall be with a jury.
604 when an application for a new trial is granted, a note thereof
shall be made in the cause-book, and the full court shall give such
order in regard thereto as it may deem proepr in the circumstances of
the case.
605 no order made by the court by the consent of parties or as to
costs only, which by law are left to the discretion of the court, shall be
subject to any appeal, except by leave of the court.
606(1) no appeal to the full court from any decision of the court
shall, except by special leae of the full court, be brought after
the expiration of six months.
(2) the period of six months shall be calculated from the time when
the decision was pronounced.
(3) such deposit or other security for the costs to be occasioned by
an appeal shall be made or given as may be directed under special circumstances
by the full court.
607(1) every appeal to the full court from a decision of the
court shall be by way of re-hearing and shall be brought by notice of
motion in a summary way, and no peition, case, or other ormal porceeding,
other tahn such notice of motion, shall be necessary.
(2) the appellant may by the notice of motion appeal from the whole
or any part of any decision, and the notice of motion shall state whether
the whole or part only of such decision is complained of, and in the
latter case shall specify such part.
608(1) the notice of motion shall be served on all parties directly
affected by the appeal, and it shall not be necessary to serve parties not so affected; but the full court may direct the notice of motion to be
served on all or any parties to the action or other proceeding or on any
person not a party, and in the meantime may postpone or adjourn the
hearing of the appeal on such terms as may be just, and may give such
judgment and make such order as might have been given or made if
the persons served with such notice had been originally parties.
(2) the notice of motion may be amended at any time as the full
court may think fit.
609 the notice of motion shall be a 14 days' notice.
610(1) the full court shall have all the powers and duties as to
admendment and in all other respect of the court, togetehr with full
discretionary power to receive further evidence upon quesiton of fact,
such evidence to be either by oral examination in court, by affidavit, or
by deposition take before the registrar or a commissioner.
(2) such further evidence may be given without special leave on
any interlocutory application, or in any case as to matters which have
occured after the date of the decision from which the appeal is brought.
(3) on any appeal from a judgment after the trial or hearing of any cause
or matter on the merits, such further evidence (save as to matters
subsequent as aforesaid) shall be admitted on special grounds only, and
not without special leave of the full court.
(4) the full court shall have power to draw inferences of fact, and
to give any judgment and make any order which ought to have been
made, and to make such further or other order as the case may require.
(5) the pwoers aroresaid may be exercised by the full court, notwithstanding
that the notice of motion may be that part only of the decision may be
reversed or varied, and such powers may also be exercised
in favour of all or any of the respondents or parties, although such
respondents or parties may not have appealed from or complained of the
decision.
611 if, on the hearing of an appeal, it appears to the full cort
that a new trial ought to be had, it shall be lawful for the full court, if
it thinks fit, to order that the verdict and judgment or the judgment, as
teh case may be, shall be set aside, and that a new trial shall be had.
612 the full court shall have power to make such order as to the
whole or any part of the costs of the appeal as may be just.
613(1) it shall not, under any circumstances, be necessary for a
respondent to give notice of motion by wasy of cross appeal, but is a
respondent intends, on the hearing of the appeal, to contend that the
decision of the court should be varied, he shall, within the time specified in the next succeding seciton or such tiem as may be prescribed by
special order, give notice of such intention to any aprites who may be
affected by such contention.
(2) the omission to give such notice shall not diminish the powers of
the full court, buy may, in the discretion of the full court, be ground
for an adjournment of the appeal or for a special order as to costs.
614 subject to any special order which may be made by the full
court, notice by a respondent under the last preceding section shall be
an eight days' notice.
615 the party appealing from a judgment or order shall leave with
the registrar a copy of the notice of motion to be filed, and teh registrar
shall thereupon set down the appeal by entering the same in the propr
list of appeals, and it shall come on to be heard according to its orer in
such list, unless the full court otherwise directs, but so as not to come
into the paper for hearing before the day neamed in the notice of motion.
616 when any question of fact is involved in an appeal, the evidence
taken in the court bearing on such qeustion shall, subject to any speical
order, be brught before the full court as follows:-
(1) as to any evidence taken by affidavit, by the production of the
affidavits; and
(2) as to any evidence given orally, by the production of the judge's
notes or such other mateials as the full court may deem expedient.
617 not less than 5 days before the day fixed for thehearing of
the appeal the appellant shall deliver to each of the judges a complete
transcript of the proceedings inthe case.
618 if, on the hearing of an appeal, any question arises as to the
ruling or direction of the judge to a jury or assessors, the full court
shall have regard to verified notes or other evidence and to such other
materials as the full court may deem expedient.
619 no interlocutory order or rule from which there has been no
appeal shall operate so as to bar or prejudice the full court from giving
such decision upon the appeal as may be just.
620 an appeal shall not operate as a stay of execution or of proceedings
under the decision appealed from, except so far as the court or the
full court may order; and no intermediate act or proceeding shall be
invalidated, except so far as the court or the full court may direct.
621 every application to the full court incidental to an appeal shall
be by motion, and the provisions of chapter 10 relating to motions shall
apply thereto. 622 on any appeal from a decision of the court interest at the rate
for the time being fixed by the court for such time as execution has
been delayed by the appeal shall be allowed, unless the full court
otherwise orders, and the registrar may compute such interest without
any order for that purpose.
CHAPTER XXIX.
APPEAL TO THE KING-IN-COUNCIL.
623the right of appeal from decisions of the full court to his
majesty-in-council and the procedure on such appeals are regulated by
and royal instructions or other orders or directions issued by his majesty
in that behalf and for the time being in force and by the practice
of the judicial committe of his majest's privy council for the time
being in force.
PART V.
MISCELLANEOUS MATTERS.
CHAPTER XXX.
BUSINESS IN CHAMBEERS.
general provisions.
624 in any proceeding in chamber any party may, if he so desires,
be represented by counsel.
625(1) the course of proceeding in chambers shall ordinarily be
the same as the course of proceeding in court upon motions.
(2) copies, abstracts, or extracts of or from accounts, deeds, or other
documents and pedigrees and concise statements shall, if directed, be
supplied for the use of the court, and, where so directed, copies shall be
delivered to the other parties.
(3) no copies shall be made of any deed or other document where
the original can be brought in, unless the court other wise directs.
626 at the time when any summons is obtained, and entry thereof
shall be made in the summons book, stating the date on which the
summons is issued, the name of the cause or matter, and by what party,
and shortly for what purpose such summons is obtained, and at what
time such summons is returnable.
administrations and trusts.
627 the executor or administrators of a deceased person or any of
them, and the trustees under any deed or instrument or any of them,
and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law of a deceased person, or as
cestui que trust under the trust of any deed or instrument, or as claiming
by assignment or otherwise under any such creditor or other person as
aforesaid, may take out, as of course, and originating summons returnable
in chambers for such relief of the nature or kind following as may by
the summons be specified and as the circumstances of the case may require;
that is to say, the determination, without an administration of the
estate or trust, of any of the following questions or matters:-
(1) any question affecting the rights or interests of the person claiming
to be creidtor, devisee, legatee, next of kin, heir-at law, or cestui
que trust;
(2) the asceertainment of any class of creditors, devisees, legatees, next
of kin, or others;
(3) the furnishing of any particular accounts by the executors or
admininstrators or trusteees, and the vouching, when necessary, of
such accounts;
(4) the payment into court of any money in the hands of the executors
or administrators or trustees;
(5) a direction to the executors or administrators or trustees to do or
abstain from doing any particular act in their character as such
executors or administrators or trustees;
(6) the approval of any sale, purchase, compromise, or other transaction; and
(7) the determination of any question arising in the administration
of the estate or trust.
628 any of the person mentioned in thelast preceding section may
in like manner apply for and obtain an order for-
(1) the administration of the personal estate of the deceased person;
(2) the administration of the real estate of the deceased person; and
(3) the administration of the trust.
629 the persons to be served with the summons under the last two
preceding sections in the first instance shall be the following; that is to
say,-
(1) where the summons is taken out by an executor or administrator
or trustee,-
(a) fro the determination of any question under sub-section(1),
(5), (6), or (7) of section 627, the persons, or one of the persons,
whose rights or interests are sought to be affected;
(b) for the dtermination of any question under sub-section (2) of
section 627, and memeber or alleged member of the class;
(c) for the determination of any question under sub-secion(3) of
section 627, any person interested in taking such accounts; (d) for the determination of any quesion under sub-section(4) of
section 627, any person interested in such money;
(3) for relief under sub-section (1) of the last preceding section,
the residuary legatees, or next of kin, or some of them;
(f) for relief under sub-section(2) of the last preceding section,
the residuary devisees, or heirs, or some of them;
(g) for relief under sub-section(3) of the last preceding section,
the cestuis que trustent, or some of them; and
(h) if there are more than one executor or administrator or trustee,
and they do not all concur in taking out the summons, those who
do not concur; and
(2) where the summons is taken out by any person other than the
executors or administrators or trustees, the said executors or administrators or
trustees.
630 the court may direct such other persons to be served with the
summons as it may think fit.
631 the application shall be supported by such evidence as the court
may require, and such directions may be given as the court may think
proepr for the trial of any questions arising thereout.
632 it shall be lawful for the court upon such summons to pronounce
such judgment as the nature of the cae may require.
633 the court may give any special directions relating to the carriage
or execution of the judgment, or the service theeof on persons not
parties, as it may think just.
634 it shall not be obligatory on the court to pronounce or make a
judgment or order, whether on summons or otherwise, for the administration
of the estate of any deceased person or of any trust, if the question
between the parties can be properly determined without such judgment or
order.
635 on an application for administration or execution of trusts by a
creditor or beneficiaary under a will, intestacy, or deed of trust where on
accounts or insufficient accounts have been rendered, the court may, in
addition to any other powers vested in it,-
(1) order that the application shall stand over for a certain time, and
that the executors or administrators or trustees shall render to
the applicant a proper statment of their acconts with an intimation
that, if that is not done, they may be made to pay the costs of the
proceedings; or,
(2) when necessary, to prevent proceedings by other crediotrs or
by persons beneficially interested, make the usual judgment or order for administration, with a proviso that no proceedings are to be taken
under such judgment or order without the special leave of the court.
636 the issue of a summons under section 627 shall not interfere
with or control any power or discretion vested in any executor or administrator or
trustee, except so far as such interference or control may
necessarily be involved in the particular relief sought.
637 any of the following applications under the trustee ordinance,
1901, may be made by summons:-
(1) an application for the appointment of an ew trustee, with or
without a vesting or othe consequential order;
(2) an application for a vesting or other order consequential on the
appointment of a new trustee; and
(3) an application for a vesting or other consequential order in any
case where a judgment or order has been given or made for the
sale, conveyance, or trnasfer of any land or stock or for the suing
for or recovering any chose in action.
charitable trusts.
638(1) where the appointment or removal of any trustee, or
any other relief, order, or direction relating to any charity of which the
gross annual income for the time being exceeds three hundred dollars, is
deemed desirable, it shall be lawful for any person mentioned in the next
succeeding section to make application by summons (withut any information,
action, or petition) to the court in chambers for such relief,
order, or direction as the nature of the case may require.
(2) the court may proceed upon and dispose of such application in
chambers, unless it thinks fit otherwise to direct, and shall and may
have and exercise thereupon all such jurisdiction, power, and authority,
and make such orders and give such directions relating to the matter of
such application, as might now beexercised, made, or given by the court
in an action regularly instituted, or upon petition, as the case may require:
provided that it shall be lawful for the court, where under the
circumstances of any such application it may seem fit, to direct that, for
obtaining the relief, order, or direction sought for by such application,
an information, action, or petition, as the case may require, shall be
brought or presented and prosecuted, and to abstain from further proceeding on such
application.
639 an application under the last preceding section may be made
by the attorney general, or by all or any one or more of the trustees or
persons administering or claiming to administer, or interested in, the
charity which is the subject of the application, or by any two or more inhabitants of any city, town, village, or place within which the charity
is administered or applicable.
640 it shall be lawful for the attorney general, acting ex officio, to
make applicaation by petition to the court with respect to any charity
under the provisions of the act of parliament 52 george III chapter
101, entitled 'an act to provide a summary remedy in cases of abuses
of trusts created for charitable purposes.'
sale, forcelosure, and redemption.
641(1) any person entitled to redeem mortgaged property may have
a judgment or order for sale instead of for redemption in an action
or other proceeding brought by him either for redemption alone, or for
sale alone, or for redemption or sale in the alternative.
(2) in any action or other proceeding, whether for foreclosure, or for
redemption, or for sale, or for the raising and payment in any manner
of mortgage money, the court, on the rquest of the mortgagee or of
any person interested either in the mortgage money or in the right of
redemption, and notwithstanding the dissent of any other person, and
notwithstanding that the mortgagee or any person so inteested does not
appear in the action or proceeding, and without allowing any time for
redemption or for payment of any mortgage money, may, if it thinks fit,
direct a slae of the mortgaged property, on such terms as it thinks just,
including, if it thinks fit, the deposit in court of a reasonable sum, fixed
by the court, to meet the expensese of sale and to secure performance
of the terms.
(3) but, in any action or other proceeding brought by a person interested
in the right of redemption and seeking a sale, the court may, on
the application of any defendant, direct the plaintiff to give such security
for costs as the court thinks fit, and may give theconduct of the sale to
any defendant, and may give such directions as it thinks fit respecting
the costs of the defendants or any of them.
(4) in any sale under this section the court may, if it thinks fit,
direct a sale wihtout previously determining the priorities of incumbrancers.
642 if, in any cause or matter relating to immovable property, it
appears necessary or expedient that the property or any part thereof
should be sold, the court may order the same to be sold, and any party
bound by the order and in possession of the property, or in receipt of
the rents and profits thereof, shall be compelled to deliver up such
possession or receipt to the purchaser or such other person as may be
directed by the order. 643 where an action of ejectment is brought by any mortgagee,
his heirs, executors, administraotrs, or assigns, for the recovery of the
possession of any morgaged immovable property, and no action is then
depending in the court for or touching the foreclosing or redeeming of
the mortgaged property, if the person having right to redeem the mortgaged
property, and who appears and becomes defendant in the action,
at any time pending the action, pays to the mortgagee, or, in case of
his refusal, pays into court, all the principal money and interest due on
the mortgage, and also all such costs as have been expended in any
action upon the mortgage, (such money for principal, interest, and
costs to be ascertained and computed by the registrar), the money so
paid to the mortgagee or into court shall be deemed and taken to be in
full satisfaction and discharge of the mortgage; and the court shall
discharge such mortgagor or defendant of and from the same accordingly,
and shall, by orer, comel the morgagee, at the costs and
charges of the mortagor, to assign, surrender, or re-convey the mortgaged
property and such estate and interest as the mortgagee has
therein, and deliver up all deeds, evidences, and writings in his custody
relating to the title of the mortgaged proeprty to the mortgagor who
has paid such money, his heirs, executors, or administrators, or to such
other person or persons as he or they may for that purpose nominate or
appoint.
644 nothing in the last preceding section shall extend to any case
where the person against whom the redemption is prayed, by writing
under his hand or the hand of his agent or solicitor, to bedelivered,
before the money is paid into court, to the solicitor for the other side,
insists either taht the party paying a redemption has not a right to
redeem or that the premises are chargeable wiht other or different principal
sums than what appear on the face of the mortgage or are admitted on
the other side; or to any case where the right of redemption to
the mortgaged property in question in any action is controverted or
questioned by or between different defendants in the same action; or
shall be any prejudice to any subsequent mortgage or incumbrance.
645 any mortgagee or mortgagor, whether legal or equitable, or
any paerson entitled to or haing property subject to a legal or equitable
charge, or any eprson having the right to foreclose or redeem any
mortgage, whether legal or equitable, amy take out as the course an
originating summons, returnable in chambers, for such relief of the
nature or kind following as may by the summons be specified and as
the circumstances of the case may require; that is to say, sale, foreclosure,
delivery of possession by the mortgagor, redemption, re-conveyance, or
delivery of possession by the mortgagee.
646 the persons to beserved wiht the summons under the last
preceding section shall be such persns as would be the proper defendants
to an action for the like relief as that specified by the summons
assistance of experts.
647(1) a judge in chambers may, in such way as he thinks fit,
obtain the assistance of any accountant, merchant, engineer, actuary, or
other scientific person, the better to enable any matter at once to be
determined, and he may act upon the certificate of any such person.
(2) the allowances in respect of fees to such person shall be
regulated by the registrar, subject to any appeal to the judge, whose
decision shall be final.
proceedings relating to infants, etc.
648 on any aplication for the appintment of a guardian of an
infant and for an allowance for the mantenance of an infant, the
evidence shall show-
(1) the age of the infant;
(2) the nature and maount of the infant's fortune and income; and
(3) what relations the infant has.
649 at any time during the proceedings in chambers udner any
judgment or order, the judge may, if he thinks fit, require a guardian
ad litem to be appointed for any infant or person of unsound mind, not
so found by inquisition, who has been served wiht notice of such judgment or
order.
attendances.
650(1) where, at any time during the prosecution of a judgment
or order, it appears to the ocurt, wit respect to the whole or any portion
of the proceedings, that the interests of the parties can be classified, the
court may require the parties constituting each or any class to be represented
by the same solicitor, and may direct what parties may attend
all or any part of the proceedings.
(2) where the parties constituting any class cannot agree upon the
solicitor to represent them, the court may nominate such solicitor for
the purpose of the proceedings before it.
(3) where any one of the parties constituting such class declines to
authorize the solicitor so nominated to act for him, and insists upon being
represented by a different solicitor, such party shall personally pay the
costs of his own solicitor of and relating to the proceedings before the
court, with respect to which the nomination has been made, and all such futher costs as may be occasioned to any of the parties by his being
represented by a different solicitor from the solicitor so nominated.
651 whenever in any proceeding in chambers the same solicitor is
employed for two or more parties, the cot may, in its discretion, require
that any of th said parties shall be represented before it by a separate
solicitor, and adjourn such proceedings until such party is sos represented.
652 any of the parties other thatn those who have directed to
attend may attend at their own expense, and on paying the costs, if any,
occasioned by such attendance, or, if they think fit, they may apply b
summons for liberty to attend at the expense of the estate or to have
the conduct of the action, either in adition to or i substitution for any
of the parties who have been directed to attend.
653 an order shall be drawn up, on a summons to be taken out by
the plaintiff or the party having the conduct of the action, stating the
parties who have been directed to attend and such of them, if any, as
have elected to attend at their own expense, and such order shall be
recited in the registrar's certificate.
advertisements for claimants and creditors.
654 where a judgment is given or made, whether in court
or in chambers, directing an account of debts, claims, or liabilities, or
an inquiry for heirs, next of kin, or other unascertained persons, unless
otherwise ordered, all persons who do not com in and prove their claims
within the time which may be fixed for that purpose by adveertisement
shall be excluded from the benefit of the judgment or order.
655 where an advertisement is required for the purpose of any
proceeding in chambers, a peremptory advertisement, and only one, shall
be issued, unless for any special reason it may be thought necessary to
issue a second advertisement or further advertisements, and any advertisement
may be repeated as many time es and in such papers as may be
directed.
656 the advertisement for claimants shall be prepared by the party
prosecuting the judgment or order and submitted to the registrar for
approval, and, when aproved, shall be signed by him, and such advertisement
shall be published in the gazette.
657 the advertisement for creditors shall be prepared and signed by
the solicitor of the party prosecuting the judgment or order, and such
advertisement shall be published in the gazette. 658(1) an advertisement for claimants or creditor shall fix a
time wihtin which each claimant, not being a creditor, is to come in and
prove his claim, and within which each creditor is to sent to the executor
or administrator of the deceased person, or to such other party as the
court may direct, or to his solicitor, to be named and described in
the advertisement, the name and address of such creditor, and the full
particulars of his claim, and a statment of his account and the nature
of th security, if any, held by him.
(2) at the time of directing suxh advertisement, a time shall be fixed
for adjudicating on the claims.
659 no creditor need make any affidavit or attend in support of his
claim(except to produce his security), unless he is served wiht a notice
requiring him to do so as hereinafter provided.
660 every creditor shall produce the security, if any, held by him
before the court at such time as may be specified in the advertisement
for that purpose, being the time appointed for adjudicating on
the claims, and every creditor shall, if required, by notice in writing to
be given by the executor or administrator of the deceased person or by
such other party as the court may direct, produce all other deeds and
documents necessary to substantiate his claim before the court at such
time as may be specified in such notice.
661 in case any creditor refuses or neglects to comply wiht the requirements
of th lat preceding section, he shall not be allow any
costs of proving his claim, unless the court otherwise directs.
662 the executor or administrator of the deceased person, or such
other party as the court may direct, shall examine the claims of creditors
sent in pursuant to the advertisement, nd shall ascertain, so far
as he is able, to which of such claims the estate of the deceased person
is justly liable; and he shall, at least 7 days prior to the time appointed
for adjudication, file an affidavit, to be made by the executor or
administrator, or one of the executors or administrators, or such other
party, either alone or jointly wiht his solicitor or other competent
person, or otherwise, as the court may direct, verifying a list of the
claims, particulars of which have been sent in pursuant to the advertisement,
and stating to which of such claims, or parts thereof respectively,
the estate of the deceased person is, in the opinion of the deponent,
justly liable, and his belief that such claims, or parts thereof respectively,
are justly due and proper to be allowed, and the reasons for such belief.
663 in case the court thinks fit so to direct, the making of the
affidavit referred to in the last preceding section shall be postponed till after the day appointed for adjudication, and shall then be subject to
such directions as the court may give.
664 where, on the day appointed for adjudication, any of the claims
remain undisposed of, an adjournment day for hearing such claims shall
be fixed, and, where further evidence is to be adduced, a time may be
named wihtin which the evidence on both sides is to be closed, and
directions may be given as to the mode in hich such evidence is to be
adduced.
665 at the time appointed for adjudication, or at any adjournment
thereof, the court may, in its discretion, allow any of the claims, or any
part thereof respectively, without proof by the creidtors, and direct
such investigation of all or any of the claims not allowed, and rquire
such furhter particulars, information, or evidence relating thereto as it
may think fit, and may, if it thinks fit, requrie any creditor to attend
and prove his claim or any part thereof; and the adjudication on such
claims as are not then allowed shall be adjourned to a time to be then
fixed.
666(1) notice shall be given by the executor or administrator,
or such other party as the court may direct, to every creditor whose
claim, or any part thereof, has been allowed wihtut proof by the creditor,
of such allowance, and to every such creditor as the court may
direct to attend and prove his claim or such part thereof as is not
allowed by a time to be named in such notice, not being less than seven
days after such notice, and to attend at a time to be therein named,
being the time to which the adjudication thereon has been adjuourned.
(2) in case any creditor does not comply with such notice, his claim,
or such part thereof as aforesaid, shall be disallowed.
667 after the time fixed by th advertisement no claims shall be
received (except as hereinbefore provided in case of an adjournment),
unless the court thinks fit to give speical leave, on application amde by
summons, and then on such terms and conditions as to costs and otherwise
as the court may think fit.
668 a creidtor who has come in and established his debt in chambers
under any judgment or order shall be entitled to the costs of so establishing
his debt, and the sum to be allowed for such costs shall be fixed
by the court, unless it thinks fit to direct the taxation thereof; and the
amount of such costs, or the sum allowed in respect theeof shall be
added to the deb so eestablihsed.
669 a list of all claims allowed shall, when required by the court,
be made out and left in the registry by the person who examines the
claims. 670 every notice by this chapter required to be given to claimants
or creditors shall, unless the court otherwise directs, be ser ed on the
claimant or creditor at the adress given in the claim sent in by him
pursuant to the advertisement, or, in case such claimant or creditor has
employed a solicitor, on such solicitor at the address given by him.
interest.
671 where a judgment or order is given or made directing an
account of the debts of a deceased person, unless otherwise ordered, interest
shall be computed on such debts a to such of them as carry interest
after the reate they respectively carry, and as to all others at the
rate fr the time being fixed by the court, from the date of th judgment
or order.
672 a creditor whose debt does not carry interest, who coes in and
establishes teh same in chaambers under a judgment or order, shall be
entitled to interst on his debt, at therate for the time being fixed by the
court, from the date of the judgment or order, out of ny assets which
may remain after satisfying the costs of the caause or matter, the debts
established, and the interest of such debts as by law carry interest.
673 where a judgment or order is given or made directing an
account of legacies, interst shall be computed on such legacies, after the
rate for the time being fixed by the court, from the end of one year after
the testator's death, unless otherwise ordered, or unless any other time
of payment or rate of interest is directed by the will, and in that case
according to the will.
certificate of the registrar.
674(1) the directions to be given for or relating to any proceedings
before the registrar shall requrie no partiuclar form, but the result
of such proceedings shall be stated in the shape of a concise certificate
shall be deemed to be approved and adopted by the judge.
675 the certificate of the registrar shall not, unless the circumstances
of th case render it necessary, set out the judgment or order or any
documents or evidence or reasons, but shall refer to the judgment or
order, docments, and evidence, or particular paragraphs thereof, so that
it may appear upon what the result stated in the certificate is founded. 676(1) where an account is directed, the certificate shall state
the result of such account, and not set the same out by way of schedule,
but shall refer to the account verified by the affidavit filed, and shall
specify by the numbers attached to the items in the account which, if
any, of such items have been disallowed or varied, and shall state what
additions, if any, have been made by way of surcharge or otherwise,
and where the account verified by the affidavit has been so altered, such
transcript may be required to be made by the party prosecuting the
judgment or order, and shall then be referred to b the certificate.
(2) the account and the transcipt, if any, referred to by the certificate
shall be filed therewith.
(3) no copy of any such account shall be required to be taken by
any party.
677 any party may, before the proceedings before the registrar are
concluded, take the opinion of the court upon any matter arising in the
course of the proceedins without any fresh summons for the purpose.
678 every certificate, wiht the account, if any, to be filed therewith,
shall be filed in the registry, and shall thereupon be binding on all
parties to the proceedings, unless discharged or varied on application by
summons.
679 any application to discharge or vary a certificate shall be made
before the expiration of 21 days after filing thereof.
680 the court may, if the special circmstances of the case require
it, on application by motion or summons for the purpose, direct a certificate
to be discharged or varied at any time after the saem has become
binding on the parties.
further consideration.
681(1) where any matter originating in chambers has, at the
original or any subsequent hearing, been adjourned for further consideration
in chambers, such matter may be brought on for furhter consideration
by a summons to be taken out by the party having the conduct of
the matter, after the expiration of 14 days and with 21 days
from the filing of the registrar's certificate, and after the expiration
of such 21 days by a summons to be taken out by any other party.
(2) such summons shall be in the following form:-
'that this matter, the furhter considerion whereof was adjourned
by the order of the day of , 19 , may be further considered,'
and shall be sered 10 days before the return. (3) this section shall not apply to any matter the further consdieration whereof
has, at the original or any subsequent hearing, been adjourned
into court.
registering and drawing up of orders.
682 notes shall be kept of all proceedings in chambers, with proepr
dates, so that all such proceedings in each cuase or matter may apear
consecutively and in chronological order, with a short statement of the
questions or points decided or ruled at every hearing.
683 every order made in chambers shall, unless the court otherwise
directs, be drawn up or settled and signed by the registrar; and
all orders so drawn up shall be filed in the registry.
684 an order signed by the registrar, or a note or memorandum
indorsed on the summons upon which any such order was made and
signed or initalled by the judge, shall be sufficient evidence of the
order having been made.
685 the court may in any case, if it thinks fit, direct that any of
the powers and duties conferred and imposed on the court by the preceding
provisions of this chapter shall be exercised and performed by
the registrar, but subject to the right of the paries to bring any
particular point before the court.
CHAPTER XXXI.
VARIOUS PROVISIONS.
sittings of the court.
686 the court may, in its discretion, appoint any day or days from
time to time for the trial and hearing of causes and matters, as circumstances may require.
687 the sittings of the court for the trial and hearing of causes
and matters shall ordinarily by public; but the court may, if it thinks
fit, try or hear any partiuclar cause or matters in the presence only of
the parties and their counsel and solicitors and the officers of the court.
688 subject to any special arrangements for any partiuclar day,
the business of the day at any sitting of the court shall be taken, as
nearly as circumstances permit, in the following order:-
(1) at thecommencement of the sitting, judgments shall be delivered
in cuases or matters standing over for that purpose and appearing
for judgment in the trial paper; (2) ex parte motions or motins by consent shall then be taken in
the order in which the motion papers have been filed;
(3) opposed motions on notice, and orders to show cause returnable
on that day, shall then be taken, in the order in which these
matters respecively stand in the trial paper; and
(4) the causes in the trial paper shall then be called on, in their
order, unless the court sees fit to vary that order.
seal of the court.
689 every writ, summons, warrant, judgment rule, order, notice,
and other document issuing from the court shall be sealed wiht the seal
of the court, and be returned for the purpose of being filed in the
registry.
cause-book.
690(1) the registrar shall keep a bok called the casue-book,
which shall contain a register of the proceedings in all action brought
in the court.
(2) every action or other proceeding, however instituted, under the
provision of this code shall be numbered in each year according to the
order in which the same is commenced.
certain general powers of the court.
691 the court may, if it thinks it expedient for the inteests of
justice, postpone oradjourn the trial or hearing of any cause, matter,
proceeding, or application for such time and on such terms, if any, as
it may think just.
692 where any immovable or movable property forms the subject
of any proceedings in the court, and the court is satisfied that the same
will be more than sufficient to answer all the claims thereon which
ought to be provided for in such proceedings, the court may, at
any time after the commencement of the proceedings, allow to the parties
interested therein, or to any one or or more of them, the whole or a part
of the annual income of the immovable properrty, or a part of the
movable property, or the whole or a part of the income thereof, up to
such time as the court may direct.
693 whenever it appears to the court(except when sitting in its
admiralty jurisdiction) that allowances of any kind, as fixed by former
statues, ought generally or in any particualr case to be increased or
lessened in proortion to the value of money within this colony, or the
fluctuations theeof, or the difference of currency, it shall be lawful for the court to authorize or direct the same respectively to be so increased
or lessened accordingly.
summary application in certain case
694 all proceedings in cases within the operation of section 504 of
the merchant shipping act, 1894, of the imperial parliament, and of
any enactments passed or to be passed for amending the same, shall be
by summary application to the court and by way of motion supported
by affidavit; and the court shall, if it thinks fit, by rule or order, give
such relief as by the said section any such competent court as is mentioned in
the act has power to give.
irregularity in proceedings.
695 non-compliance with any of the provisions of this code, or with
any ruleof practice for the time being in force, shall not render any
proceeding void unless the court so directs, but such proceeding may
be set aside either wholly or in part as irregular, or amended, or otherwise
dealt with in such manner and on such terms as the court may
think fit.
696 no application to set aside any proceeding for irregularity shall
be allowed unless made within a reasonable time, nor if the party
applying has taken any fresh step after knowledge of the irregularity.
697 where an application is made to set aside any proceeding for
irregularity, the several objections to be insisted upon shall be stated in
the summons or notice of motion.
698 when a summons is taken out to set aside any process or proceeding
for irregularity wiht costs, and the summons is dismissed
generally without any special direction as to costs, it is to be understood
as dismissed with costs.
provisions relating to time
699(1) nothing in this code shall affect the power of the court
to enlarge or abridge the time appointed or allowed for the doing of
any act or the taking of any proceeding on such terms as justice may
require.
(2) where the court is by this code or otherwise authorized to
appoint the time for the doing of any act or the taking of any proceeding,
or to enlarge the time appointed or allowed for that purpose by this code or otherwise,
the court may furhter enlarge any time so appointed or enlarged by it, on such terms as may seem just, whether
the application for furhter enlargement is made before or after the
expiration of the time already allowed: provided that no such furhter
enlargement shall be made unless it apears to the court to be required
for the purposes of justice, and not sought merely for delay.
700 the time for filing or amending any pleading, answer, or other
document may be enlarged by consent in writing, without application to
the court.
701(1) where, by this code, or by any special order, or by the
course of the court, any limited time from or after any date or event is
appointed or allowed for the doing of any act or the taking of any proceeding,
and such time is not limited by hours, the computation of such
limited time shall not include the day of such date or of the happening
of such event, but shall commence at the beginning of the next following
day, and the act or proceeding must be done or taken at leatest on the last
day of such limited time, according to such computation.
(2) where the limited time so appointed or allowed is lesss than six
days, the following days shall not be reckoned in the computation of
such time, namely, sunday, good friday, monday and tuesday in
easter week, christmas day, and the day next before and the day next
after christmas day, and any public holiday or day set apart as a fast
or thanksgiving day.
(3) where the limited time so appointed or allowed expires on one
of the days last mentioned, he act or proceeding shall beconsidered as
done or taken in due time if done or taken on the next day afterwards
that is not one of the last-mentioned days.
(4) the day on which an order that a plaintiff shall gvie security for
costs is served, and the time thenceforward until and including the day
on which such security is given, shall not be reckoned in the computation
of the time allowedd to the defendant for filing his statement of defence.
(5) nothing in the preceding provisions relating to time shall affect
the provisions of the supreme court (vacations) ordinance, 1898.
commissioners for oaths.
702(1) the chief justice may from time to time, by a commission
signedby him, appoint fit and proper persons to be commissioners to
administer oaths and take declarations, affirmations, and attestations of
honour in the court, and may revoke any such appointment.
(2) every person so appointed shall be styled a commissioner for
oaths, and shall have all the powers and discahrge all the duties which
now belong to the office of a commissioner to administer oaths. 703 every person who, being an officer of or performing duties in
relation to the court, is for the time being so authorized by the court or
by or in pursuance of any rules or orders regulating the procedure of teh
court, and every person who is directed to take an examination is any
cause or matter in the court, shall have authority to administer any oath
or take any affidavit required for any purpose connected with his duties.
attachment.
704 no writ of attachment shall be issued without the leave of the
court, to be applied for on notice to the party against whom the attachment
is to be issued.
705 a writ of attachment shall have the same effect as a writ of attachment
issued out of the court in its equirty jurisdiction formerly had.
706 no judge, magistrate, or other judicial officer shall be liable to
arrest under civil process while going to, presiding in, or returning from
his court.
saving.
707 nothing in this code shall affect the provisions of the act of
parliament 8 & 9 william III, chapter 11, entitled 'an act for the
better preventing frivolous and vexatious suits,' as to the assignment
or suggestion of breaches or as to judgment for a penalty as security
for damages in respect of further breaches.
publication of notices.
708 in any case in which the publication of any notice is required
under the provisions of this code, the same may be made by advertisement
in the gazette, unless otherwise provided by this code or otherwise
ordered by the court.
forms.
709(1) the forms contained in the schedule to this code may be
ussed in the cases to which they repsectively have reference, with such
variations and additions as the circumstances of the particular case may
require, and shall, as regards the form thereof, be valid and sufficient.
(2) the chief justice may from time to time later the said forms or
any of them or substitute other forms for them or any of them; and
every such altered or substituted form shall be published in the gazette.
(3) so far as the said forms may be incomplete, all forms at present
in use in the court, wiht such variations and additions as the circmstances
of the particular case may require, amy be used for the purpose of carrying out the provisions of this code, and shall, as regards the
form thereof, be valid and sufficent.
temporary provisions.
710(1) this code shall apply, so far as may be practicable, to all
proceedings taken after it comes into operation in all causes and matters
then pending.
(2) if in any case a question arises as to such application, such question
shall be determined by the court in a summary manner.
SCHEDULE.
FORMS
TABLE OF FORMS.
1 writ of summons.
2 specially indorsed writ of summons.
3 originating summons inter partes.
4 originating summons not inter partes.
5 exparte originating summons.
6 notice of appointment to hear originating summons.
7 writ of summons for service out of the jurisdiction.
8 specially indorsed writ of summons for service out of the jurisdiction.
9 memorandum of appearance.
10 affdavit for entry of apearance as guardian.
11 memorandum of notice of judgment[or order.].
12 third pary notice.
13 summons for third party directions.
14 order for third party directions.
15 statement of claim.
16 statement of defence.
17 counterclaim.
18 reply.
19 statment of defence, including an objection in point of law.
20 interrogatories.
21 answer to interogatories.
22 affidavit as to documents.
23 entry of special case.
24 notice of motion.
25 summons inter partes.
26 ex parte summons.
27 order.
28 proecipe for writ of execution of judgment for immovable property.
29 writ of execution of judgment for immovable property.
30 writ of execution of judgment for for money by attachment of property. 31 prohibitory order for attachment of movable property in execution.
32 prohibitory order for attachment of immovable property in execution.
33 affidavit in support of garnishee order.
34 garnishee order attaching debt.
35 garnishee order absolute.
36 order for judgment creditor to appear on hearing of application by
prisoner for debt to be discharged.
37 order for discharge of prisoner for debt from prison.
38 writ offoreign attachment.
39 bond in case of foreign attachment.
40 affidavit on interpleader.
41 order for issue of warrant for arrest of absconding defendant.
42 warrant for arrest of abscondingdefendant.
43 order for giving of bail by absconding defendant.
44 bail-bond f absconding defendant.
45 warrant for bailiff to call upon defendant to give security to produce
property.
46 advertisement for claimants not being creditors.
47 advertisement for creditors.
48 cause-book.
FORMS.
FORM NO 1.
Writ of summons.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
edward the seventh, by the grace of god, &c.
to C.D., of
we command you that within 8 days after service of this writ on
you, inclusive of theday of such service, you cause an appearance to be
entered for you in an action at the suit of A.B.; and take notice that, in
default of your so doing, the court may give leave to the plaintiff to proceed
ex parte.
witness the honourable , chief justice of our said
court, the day of , 19 . memorandum to be subscribed on the writ.
NOTE.-this writ is to be served within 12 calendar months from the
date thereof, or, if renewed, within 6 calendar months from the date of the
last renewal, including the day of such date, and not afterwards.
the defendant may appear hereto by entering an appearance, either personally
or by solicitor, at the registry of the supreme court in victoria,
hongkong.
indorsements to be made on the writ before the issue thereof.
statement of claim.
the plaintiff's claim is1
this writ was issued by the plaintiff, who resides at2 ,[or
this writ was issed by E.F., solicitor for the plaintiff, who resides at2
].
indorsements to be made on the writ before the service thereof.
this writ was served by me at on the defendant C.D.
on day, the day of , 19 .
indorsed the day of , 19 .
(Signed)
(Address)
FORM NO. 2.
Specially indorsed writ of summons.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
edward the seventh, by the grace of god, &c.
to C.D., of
we command you that within 8 days after service of this writ on
you, inclusive of the day of such service, you cause an appearance to be
entered for you in an action at the suit of A.B.; and take notice that, in
default of your so doing, the plaintiff may proceed therein, and judgment may
be given in your absence.
witness the honourable , chief justice of our said
court, the day of , 19 . memorandum to be subscribed on the writ.
NOTE.-this writ is to be served within 12 calendar months from the
date thereof, or, if renewed, within 7 calendar months from the date of the
last renewal, including the day of such date, and not afterwards.
the defendant may appear hereto by entering an appearance, either personally
or by solicitor, at the registry of the supreme court in victoria,
hongkong.
indorsements to be made on the writ before the issue thereof.
statement of claim.
the plaintiff's claim is1
Particulars.
(signed.)
and the sum of $ for costs. if the amount claimed is paid to the
plaintiff or h solicitor or agent within 4 days from the service hereof,
further proceedings will be stayed.
this writ was issued by the plaintiff, who resides at2 ,[or
this writ was issed by E.F., solicitor for the plaintiff, who resides at2
].
indorsements to be made on the writ before the service thereof.
this writ was served by me at on the defendant C.D.
on day, the day of , 19 .
indorsed the day of , 19 .
(Signed)
(Address)
FORM NO. 3.
originating summons inter partes.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.1
Let C.D., of , within 8 days after the service of this
summons on him, inclusive of the day of such service, cause an appearance
to be entered for him to this summons, which is issued on the application of , of , who claim to be2 , for the determination
of the following questions3:-
dated the day of , 19 .
this summons was taken out by , of , solicitor for the
above-named
the defendant may appear hereto by entering an appearance, either
personally or by solicitor, at the registry of the supreme court in victoria,
hongkong.
NOTE.- if the defendant does not enter an appearance within the time and
at the place above mentioned, such order will be made and proceedings taken
as thecourt may think just and expedient.
FORM NO. 4.
originating summons not inter partes.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
in the matter of the trusts of the will of A.B.
and in the matter of the trustee ordinance, 1901.
[or as the case may be].
to , of
let , of , within 8 days after the service of this summons
on him, inclusive of the day of such service, cause an appearance to
be entered for him to this summons, which is issued on the application of
, of , for an order that1
date the day of , 19 .
this summons was taken out by , of , solicitor for the
above-named
the respondent may appear hereto by entering an appearance, either
personally or by solicitor, at the registry of the supreme court in victoria,
hongkong.
NOTE.- if the respondent does not enter an appearance within the time and
at the place above mentioned, such order will be made and proceedings taken
as thecourt may think just and expedient. FORM NO. 5.
Ex parte originating summons.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
in the matter of A.B., an infant.
to , of
let all parties concerned attend at the chambers of the honourable
, at teh supreme court, at o'clock m. on
day, the day of , 19 , on the hearing of an application
on the part of the above-named A.B., an infant, by C.D., his next friend,
that1
dated the day of , 19 .
this summons was taken out by , of , solicitor for the
applicant.
FORM NO.6.
note of appointment to hear originating summons.
[title as in form No.3 or form No.4.]
to , of1
take notice that you are required to attend at the chambers of the
honourable , at the supreme court, at o'clock m.
on
the originating summons issued herein on the day of ,
19 and that if you do not attend, either in person or by solicitor, at the
place and time mentioned, such order will made and proceedings taken as
the court may think just and expedient.
dated the day of , 19 .
(signed.)
solicitor for the plaintiff[or applicat].
FORM NO. 7.
writ summons for service out of the jurisdiction.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
edward the seventh, by the grace of god, &c. to C.D., of
we command you that within1 days after service of this writ on
you, inclusive of theday of such service, you cause an appearance to be
entered for you in an action at the suit of A.B.; and take notice that, in
default of your so doing, the court may give leave to the plaintiff to proceed
ex parte.
witness the honourable , chief justice of our said
court, the day of , 19 .
memorandum to be subscribed on the writ.
NOTE.-this writ is to be served within 12 calendar months from the
date thereof, or, if renewed, within 6 calendar months from the date of the
last renewal, including the day of such date, and not afterwards.
the defendant may appear hereto by entering an appearance, either personally
or by solicitor, at the registry of the supreme court in victoria,
hongkong.
indorsements to be made on the writ before the issue thereof.
statement of claim.
the plaintiff's claim is1
this writ was issued by the plaintiff, who resides at2 ,[or
this writ was issed by E.F., solicitor for the plaintiff, who resides at2
].
indorsements to be made on the writ before the service thereof.
this writ was served by me at on the defendant C.D.
on day, the day of , 19 .
indorsed the day of , 19 .
(Signed)
(Address)
NOTE.- this writ is to be used where the defendant, or all the defendants,
or one or more defendant or defendants is or are out of the jurisdiction.
FORM NO.8.
Specially indorsed writ of summons for service out of the jurisdiction.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
edward the seventh, by the grace of god, &c.
to C.D., of
we command you that within1 days after service of this writ on
you, inclusive of theday of such service, you cause an appearance to be
entered for you in an action at the suit of A.B.; and take notice that, in
default of your so doing, the court may give leave to the plaintiff to proceed
ex parte.
witness the honourable , chief justice of our said
court, the day of , 19 .
memorandum to be subscribed on the writ.
NOTE.-this writ is to be served within 12 calendar months from the
date thereof, or, if renewed, within 6 calendar months from the date of the
last renewal, including the day of such date, and not afterwards.
the defendant may appear hereto by entering an appearance, either personally
or by solicitor, at the registry of the supreme court in victoria,
hongkong.
indorsements to be made on the writ before the issue thereof.
statement of claim.
the plaintiff's claim is1
particulars.
(signed.)
and the sum of $ for cost. if the amount claimed is paid to the
plaintiff or h solicitor or agent within 2days from the service hereof,
further proceedings will be stayed.
this writ was issued by the plaintiff, who resides at3 ,[or
this writ was issed by E.F., solicitor for the plaintiff, who resides at3
].
indorsements to be made on the writ before the service thereof.
this writ was served by me at on the defendant C.D.
on day, the day of , 19 .
indorsed the day of , 19 .
(Signed)
(Address)
NOTE.- this writ is to be used where the defendant, or all the defendants,
or one or more defendant or defendants is or are out of the jurisdiction.
FORM NO.9.
Memorandum of apperance.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
enter an appearance for the defendant C.D. in this action.
dated the day of , 19 .
(signed.) C.D., of
[or E.F.,
solicitor for the defendant C.D.]
FORM NO. 10.
affidavit for entry of appearance as guardian.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
I, , of , make oath and say as follows:-
E.F., of , to the best of my knowledge, information, and belief, is
a fit and proper person to act as guardian ad litem of the above-named infant
defendant, and has no interest in the matters in question in this action[or
matter] adverse to that of the said infant, and theconsent of the said E.F.
to act as such guardian is hereto annexed.
sworn, &c.
[to this affidavit must be annexed the document signed by the guardian in
testimony of his consent to act.]
FORM NO. 11.
memorandum of notice of judgment [or order.]
take notice that, from the time of the service of this notice, you[or, as the
case may be, the infant or the person of unsound mind] will be bound by the proceedings in the above cause in the same manner as if you [or the said
infant or the said person of unsound mind] had been originally made a party,
and that you[or the said infant or the said person of unsound mind] may,
on entering an appearance at teh registry of the supreme court in victoria,
hongkong, attend the proceedings under the within-mentioned judgment [or
order], and that you [or the said infant or the said person of unsound mind] may,
within one month after the service of this notice, apply to the court to
add to the said judgment[or order].
FORM NO. 12.
third party notice.
action no. of 19 .
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
notice filed , 19 .
to E.F., of
take notice that this action has been brought by the plaintiff against the
defendant (as surety for M.N.), upon a bond conditioned for payment of
$2,000 and interest to the plaintiff.
the defendant claims to be entitled to contribution from you to the extent
of one-half of any sum which the plaintiff may recover against him, on the
ground that you are [his co-surety under the said bond; or also surtey for teh
said M.N., in respect of the said matter, under another bond made by you
in favour of the said plaintiff, dated the day of , 19 .])
or [as acceptor of a bill of exchange for $5,000, dated the day
of , 19 , drawn by you upon and accepted by the defendant,
an payable three months after date.
the defendant claims to be indemnified by you against liability under the
said bill, on the ground that it was accepted for you accomodation].
or [to recover damages ofr a breach of a contract for the sale and delivery
to the plaintiff of 1,000 tons of coal.
the defendant claims to be indemnified by you against liability in respect
of the said contract, or any breach thereof, on the ground that it was made
by him on your behalf and as you agent].
and take notice that, if you wish dispute the plaintiff's claim in this
action as against the defendant C.D. or your liability to the defendant C.D.,
you must cause an appearance to be entered for you within 8 days after the
service of this notice on you, inclusive of theday of such service. in default of your so appearing, you will be deemed to admit the validity
of any judgment obtained by the plaintiff against the defendant C.D., and
your own liability to contribute or indemnify to the extent herein claimed,
which may be summarily enforced against you pursuant to chapter 2 of the
code of civil procedure.
dated the day of , 19 .
(signed.) C.D., of
[or G.H.,
solicitor for the defendant C.D.]
NOTE.- appearance is to be entered at the registry of the supreme court
in victoria, hongkong.
FORM NO. 13.
summons for third party directions.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
let all parties concerned attend at the chambers of the honourable
, at teh supreme court, at o'clock m. on
day, the day of , 19 , on the hearing of an application
on the part of for an order for third party direction as follows:-that
the defendant file a statment of his claim against the said third party
within day from this date, who shall plead thereto within days;
and that the said 3rd party be at liberty to appear at the trial of this
action, and take such part as the court shall direct, and be bound by the
result of the trial; and that the question of the liability of the said third
party to indemnify the defendant be tried at the trial of this action, but
subssquent thereto.
dated the day of , 19 .
this summons was taken out by solicitor for the . FORM NO. 14.
Order for 3rd party directions.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
1in chambers.
upon hearing the solicitors for the plaintiff, defendant, and 3rd party,
it is ordered that the defendant file a statement of his claim against the
said 3rd party within days from this date, who shall plead thereto
within days; and that the said 3rd party be at liberty to appear
at the trial of this action, and take such part as the court shall direct,
and be bound by the result of the trial; and that the question of the
liability of the said 3rd party to indemnify the defendant be tried at the
trial of this action, but subsequent thereto; and that the costs of this application
be
dated the day of , 19 .
FORM NO. 15.
Statement of claim.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
Statement of claim.
the plaintiff's claim is for work done and materials provided by the plaintiff
for the defendant at his request.
particulars:-
1899. 1st january to 31st may. to rebuilding
house at victoria, as per cotract dated the $ c
24th december, 1898...................................5,400 00
to extras, as per account delivered................... 243 00
__________
5,643 00
paid on account.......................................3,000 00
____________
balance due...........................................2,643 00
to plaintiff also seeks to recover interest on the above balance fro mthe
31st may, 1899, till payment or judgment.
(signed.) FORM NO.16.
Statement of defence.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
statement of defence.
the defendant says that-
1 except as to $200, parcel of the money claimed, the architect did not
grant his certificate pursuant to the contract.
2 as to $200, parcel of the money claimed, teh defendant brings [or has
brought] into Court $200, and says that sum is enough to satisfy the plaintiff's
claim herein pleaded to.
(signed)
FORM NO. 17.
Counterclaim.
action no of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICITON.
Between A.B., plaintiff,
and C.D., Defendant.
Counterclaim.
the defendant says that-
1 the contract mentioned in the satement of claim herein contained
a clause whereby it was providied that the plaintiff should complete the
works by the 31st march, 1899, or in default pay to the defendant $10
a day for every subsequent day during which the works should remain
unfinished, and they so remained unfinished for 61 days to the 31st
may, 1899.
the defendant counterclaims $610.
(signed) FORM NO. 18.
Reply.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
Reply.
the plaintiff says that-
1 as to the 1st paragraph of the statement of defence, he joins
issue.
2 as to the second paragraph thereof, he accepts the $200 in
satisfaction.
the plaintiff as to the counterclaim says that-
3 the defendat waived the liquidated damages by ordering extras
and material alterations in the works.
4 the defendant waived the liquidated damages by preventing the
plaintiff from having access to the premises till a week after the agreed
time.
(singed)
NOTE.- the latter part of this form applies only where the counterclaim
has been filed before the reply.
FORM NO.19.
Statement of defence including an objection in point of law.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
Statement of defence.
the defendant says that-
1 the goods were not supplied to E.F. on the guarantee.
2 the defendant will object that the guarantee discloses a past consideration
on the face of it.
(signed) FORM NO.20.
Interrogatories.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., E.F., and G.H., defendant.
interrogatories on behalf of the above-named plaintiff[or defendant
C.D.] for the examination of the above-named defendants E.F. and G.H.
[or plaintiff].
1 did not, etc.
2 has not, etc.
etc., etc., etc.
[the defendant E.F. is required to answer the interrogatories numbered .]
the defendant G.H. is required to answer the interrogatories numbered .]
FORM NO.21.
Answer to interrogatories.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., E.F., and G.H., defendant.
the answer of the above-named defendant E.F. to interrogatories for his
examination by the above-named plaintiff.
in answer to the said interrogatories, I, the above-named E.F., make oath
and say as follows:-
sworn, &c.
FORM NO. 22.
affidavit as to documents.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION. Between A.B., plaintiff,
and
C.D., defendant.
I, the above-named defendant C.D., make oath and say as follows:-
1 I have in my possession or power the documents relating to the matters
in question in this action set forth in the first and second parts of the first
schedule hereto.
2 I object to produce the said documents set forth in the second part of the
said first schedule hereto.
3 the grounds[here state upon what grounds the objection is made, and
verify the facts as far as may be].
4 I have had, but have not now, in my possession or power the documents
relating to the matters in question in this action set forth in the second
schedule hereto.
5 the last-mentioned documents were last in my possession or power on
[state when].
6 the said last-mentioned documents [here sate what has become of the
last-mentioned documents, and in whose possession they now are].
7 according to the best of my knowledge, information, and belief, i have
not now and never had in my possession, cutody, or power, or in the
possession, custody, or power of my solicitors or agents, solictor or agent, or
in the possession, custody, or power of any other persons or person on my
behlaf, any deed, account, book of account, voucher, receipt, letter, memorandum,
paper, or writing, or any copy of or extract from any such document,
or any other document whatsoever, relating to the matters in question in
this action, or any ofthem, or wherein any entry has been made relative to
such matters, or any of them, other than and except the documents set forth
in the said first and second schedules hereto.
sworn, &c.
FORM NO. 23.
entry of speical case.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant. set down the dated the day of
, 19 , of Mr. , the
arbitrator in this for hearing as a special case.
dated the day of , 19 .
(Signed)
(Address)
FORM NO.24.
Notice of motion.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
to the registrar of the supreme court.
take notice that the court will be move at o'clock m.
on day, the day of , 19 , or so soon
thereafter as counsel can be heard, by Mr. , of counsel
dated the day of , 19 .
(signed) E.F.
solicitor for the
FORM NO. 25.
Summons inter partes.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
to , of
you are hereby summoned to appear before the honourable
, at his chambers at the supreme court at
o'clock m. on day, the day of , 19 , on the
hearing of an application on the part of1
and you are to take notice that if you do not appear the court may
consider and deal with the application in a summary way.
dated the day of , 19 .
this summons was taken out by , solicitor for FORM NO. 26.
Ex parte summons.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
application on the part of for leave to1
dated the day of , 19 .
this summons was taken out by , solicitor for
FORM NO. 27.
Order.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
1in chambers.
upon the application of , and upon hearing
, and upon reading the affidavit of
filed the day of , 19 , it is ordered that2
and that the costs of
this application be
dated the day of , 19 .
FORM NO. 28.
Praecipe for writ of execution of judgment for immovable property.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
to the registrar of the supreme court.
whereas the plaintiff A.B. is entitled, under a judgment in this action,
dated the day of , 19 , to immediate possession of the immovable property mentioned in the said judgment and is desirous of
enforcing the said judgment; I do hereby make application for the issue of
the proper writ of execution in that behalf, under the provisions of chapter
16 of the code of civil procedure.
dated the day of , 19 .
(signed) A.B., of
[or E.F.,
solicitor for the plaintiff A.B.]
FORM NO.29
Writ of execution of judgment for immovable property.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
edward the seventh, by the grace of god, &c.
whereas by a judgment in this action, dated the day of ,
19 , the plaintiff A.B. is entitled to the immediate possession of the
following immovable property now in the occupancy of ,
of , that is to say1:-
and whereas the said plaintiff is desirous of enforcing the said judgment
and has aplied for the proper writ of execution in that behalf: now, therefore,
we command you that you do forthwith put the said plaintiff in
possession of the said immovable property, and we do authorize you to
remove any person who may refuse to vacate the saem.
witness the honourable , chief justice of our said
court, the day of , 19 .
(signed)
registrar.
NOTE- this writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and mode
of execution. FORM NO.30.
Writ of execution of judgment for money by attachment of property.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
edward the seventh, by the grace of god, &c.
to the bailiff of our said court, greeting:
whereas the defendant C.D. has failed to satisfy a judgment for money
given against him in this action on the day of , 19 , in
favour of the plaintiff A.B. for the sum of $ , together with interest
at the rate of $ per centum per annum from the date of the said judgment,
and also for taxed costs to the amount of $ ; and whereas the
said plaintiff is desirous of enforcing the said judgment by the attachment of
the said defendant's proeprty, and has applied for the proper writ of execution
in that behalf: now, therefor, we command you that you do forhtwith
attach all the property, movable and immovable, of the said defendant within
the colony, or such part thereof as may be sufficient to satisfy the said judgment
and the expenses of the execution thereof, by actual seizure, or by the
service of prohibitory orders, according to the nature of the said property;
and we further command you that, as to so much of the said property
money or negotiable instruments, you do keep the same in your custody until
the further order of the court or until the sle thereof in satisfaction of the
said judgment; and we furhtercommand you that, in case you shall not be
able to find sufficient proeprty of the said defendant, or the said deffendant
shall fail to point out to you any property whereon to levy, you do forhtwith
arrest the said defendant and deliver him into the custody of thesuperintendent
of victoria gaol to be imprisoned therein as a prisoner for debt for the
period of unless he shall be sooner discharged from the said imprisonment
in due course of law.
and the court has fixed subsistence allowance at the rate of 25
cents a day.
witness the honourable , chief justice of our said
court, the day of , 19 .
(signed.)
registrar.
NOTE.- This writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and
mode of execution. FORM NO. 31.
Prohibitory Order for attachment of movable property in execution.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
to , of
whereas the defendant C.D. has failed to satisfy a judgment for money
given against him in this action on the day of , 19 , in
favour of the plaintiff A.B. for the sum of $ , together with interest
at the rate of $ per centum per annum from the date of the said judgment,
and also for taxed costs to the amount of $ ; and whereas a
writ of execution has been issued to enforce the said judgment by the
attachment of the said defendant's property: it is ordered that the said
defendant be and he is hereby prohibited and restrained, until the further
order of this court, from receiving from E.F., of ,
the following property in the possession of the said E.F., that is to say1:-
to which the said defendant is entitled, subject to any claim,
lien, or right ofthe said E.F.; and it is also ordered that the said E.F. be and
he is hereby prohibited and restrained, until the futher order of this court,
from deliveering the said proeprty to the said defendant or to any other person
or persons whomsoever.
witness the honourable , chief justice of our said
court, the day of , 19 .
(signed)
registrar.
NOTE.- This order is issued under section 400 of the code of civil procedure,
and any person who wilfully disobeys it is liable to be committed to
prison by the court.
NOTE- this writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and mode
of execution.
FORM NO. 32.
Prohibitory Order for attachment of immovable property in execution.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
to the defendant C.D.
whereas you have failed to satisfy a judgment for money given against
you in this court on the day of , 19 , in
favour of the plaintiff A.B. for the sum of $ , together with interest
at the rate of $ per centum per annum from the date of the said judgment,
and also for taxed costs to the amount of $ ; and whereas a
writ of execution has been issued to enforce the said judgment by the
attachment of your property; and whereas it is alleged that
certain lands, houses, or other immovable property belong to you: it is
ordered that you be and you are hereby prohibited and restrained, until
the furtheer order of this court, from alienating such lands, houses, or other
immovable property and particularly from alienating1 by sale,
gift, or in any other way whatsoever; and it is also ordered that all persons
be and they are hereby prohibited and restrained, until the further order of
this court, from acquiring or receiving any such property by purchase, gift,
or in any other way.
witness the honourable , chief justice of our said
court, the day of , 19 .
(signed)
registrar.
NOTE.- This order is issued under section 401 of the code of civil procedure,
and any person who wilfully disobeys it is liable to be committed to
prison by the court.
NOTE- this writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and mode
of execution.
FORM NO. 33.
affidavit in support of garnishee order.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
I, , of , the plaintiff in this action,
[or solicitor for the plaintiff in this action,] make oath and say as follows:-
1 by a judgment of the court given in this action, and dated the day
of , 19 , it was adjudged that I [or the said plaintiff] should recover against the defendant C.D. the sum of $ , together with interest
at the rate of $ per centum per annum from the date of the said judgment,
and costs to be taxed, and the said cossts were, by the registrar's
certificate dated the day of , 19 , allowed at $ .
2 the said judgment still remains unsatisfied to the extent of $ , and
interest amounting to $ .
3 1of is indebted to the said defendant in the sum
of $ or thereabouts.
4 the said is within the jurisdiction of this court.
sworn, &c.
FORM NO. 34.
Garnishee order attaching deb.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
1in chambers
upon hearing and upon reading the affidavit of
, file the day of , 19 , and
it is ordered that all debts owing or accruing due from the above-named
garnishee to the above-named judgment debtor be attached to answer a judgment
recovered against the said judgment debtor by the above-named
judgment creditor in the supreme court on the day of ,
19 , for the sum of $ , on which judgment the said sum of $
remain due and upaid; and it is further ordered that the said garnishee
attend the honourable in chambers on
day, the day of , 19 , at o'clock in the noon, on
application by the said judgment creditor that the said garnishee pay the
debt due from him to the said judgment debtor, or so much therof as
may be sufficient to satisfy the judgment; and that the costs of this application
be
dated the day of , 19 . FORM NO. 35.
Garnishee order absolute.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
1in chambers
upon hearing and upon reading the affidavit of
, file the day of , 19 , and the order
nisi made herein on the day of , 19 , whereby it was
ordered that all debts owing or accruing due from the above-named
garnishee to the above-named judgment debtor be attached to answer a judgment
recovered against the said judgment debtor by the above-named
judgment creditor in the supreme court on the day of ,
19 , for the sum of $ , on which judgment the said sum of $
remained due and upaid; it is ordeered that the said garnishee do forthwith pay the
said judgment creditor the debt due from him to the said judgment debtor, or so
much thereof as may be sufficient to satisfy the judgment, and that, in default
thereof, execution may issue for the same; and that the costs of this application be
dated the day of , 19 .
FORM NO.36.
Order for judgment creditor to appear on hearing of application by
prisoner for debt to be discharged.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
1in chambers
upon the application of the defendant, and upon hearing the solicitor for
the defendant, and upon reading the affidavit of the defendant, it is ordered
that the plaintif be furnished with a copy of the defendant's application for his discharge and of his affidavit filed in support of the same; and it is
furhter ordered that the plaintiff do appear before this honourable court in
chambers at o'clock m. on the day, the day of ,
19 , on the hearing of an application by the defendant to be discharged from
prison.
dated the day day of , 19 .
FORM NO.37.
Order for discharge of prisoner for debt from prison.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
to the superintendent of victoria gaol.
you are hereby authorized to discharge out of your custody the above-
named defendant so far as regards the execution in this cause.
dated the day day of , 19 .
by order of the court,
(signed)
registrar.
FORM NO.38.
Writ of Foreign attachment.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
E.F., garnishee.
edward the seventh, by the grace of god, &c.
we command you forthwith to attach all the property, movable and
immovable, of the defendant C.D. which shall be found within the
colony, and to return this writ into our said court on the day of
, 19 .
witness the honourable , chief justice of our said
court, the day of , 19 . indorsements to be made on the writ.
i hereby certify that this writ reached my hands for execution at
o'clock m. on day, the day of , 19 .
(signed)
bailiff.
this writ was served on E.F., of , garnishee, at o'clock
m. on day, the da of , 19 .
(signed)
bailiff.
a memorial ofthis writ was registered in the land office at o'clock
m. on day, the da of , 19 .
(signed)
FORM NO. 39.
Bond in case of foreign attachment.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
know all men by these presents that we, A.B., of , and E.F.,
of , are held and firmly bound unto C.D., of , in the
penal sum of dollars, to be paid to the said C.D. or his executors,
administrators, or assigns; for which payment to be made we joinly and
severally bind ourselves, and each and every of us, and our and every of our
respective heirs, executors, and administrators, firmly by these presents.
in witness whereof we have hereto set our hands and seals this day of
, in the year of our lord nineteen hundred and .
whereas an action has lately been instituted in the supreme court of
hongkong by the above-bounden A.B. as plaintiff against the said C.D. as
defendant; and whereas, under the provisions of chapter 17 of the code
of civiel procedure, a writ of foreign attachment has been issued [or is about to
issue] in the said action, on the application of the plaintiff, against all the
property, movable and immovable, of the defendant within the colony: now
the condition of this obligation is that is the defendant shall, at any time
within the period limited by the said provisions of the code of civil Procedure in that behalf, cause the said writ, or any other writ of foreign
attachment issued in the said action on the application of the plaintiff, to be
set aside, or any judgment which may be given in the said action to be
reversed or varied, and if the plaintiff, his executors or administrators, shall
thereupon forthwith pay or cause to be paid to the defendant, or his
executors, administrators, or assigns, all such sums of money, damages, costs,
and charges as the said court may order and award on account of or in
relation to the said action and the said writ of foreign attachment, or either
of them, then this obligation shall be void, otherwise it is to remain in full
force.
signed, sealed, and delivered
in the presence of
(signed)
A.B.[L.S.]
E.F.[L.S.]
FORM NO. 40
Affidavit on interpleader.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
I, C.D., of , the defendant in this action, make oath and
say as follows:-
1 the writ of summons herein was issued on the day of ,
19 , and was served on me on the day of 19 .
2 the action is brought to recover
the said 1in my possession, but I claim no interest
therein.
3 the right to the said subject-matter of this action has been and is claimed
2by one , who3
4 I do not in any manner collde with the said or
with the above-named plaintiff, but I am ready to bring into court or to pay
or dispose of the said in such manner as the court may
direct.
sworn, &c. FORM NO.41.
Order for issue of warrant for arrest of absconding defendant.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
upon the application of the plaintiff A.B., and upon hearing the solicitor
for the said plaintiff, and upon reading the affidavit of , filed
the day of , 19 , it is ordered that a warrant do issue
to the bailiff enjoining him to bring the defendant C.D. before the court in
order that he may show cause why he should not give security for his appearance
to answer any judgment that may be given against him in this action;
and it is further ordered that the bailiff be authorized to release the said defendant
upon payment by the said defendant to him ofthe sum of $ ,
being the amount of the plaintiff's claim herein, together with the sum of
$ for the costs of this action, and such sum as may be due to him for the
execution ofthe warrant; and it is further ordered that, in default of such
payment, the bailiff shall detain the said defendant until the further order of
the court.
dated the day of , 19 .
FORM NO. 42.
Warrant for arrest of absconding defendant.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
edward the seventh, by the grace of god, &c.
to the bailiff of our said court, greeting:
we command you forthwith to arrest the defendat C.D., pursuant to an
order made by our said court, and to bring him before our said court at
o'clock m., on day, the day of , 19 , in order
that he may show cause why he should not given against him in this action; and we
answer may judgment that may be given against him in this action; and we
authorize you to release the said defendant upon payment by him to you of
the sum of $ , being the amount of the plaintiff's claim herein, together
with the sum of $ for the costs of this action, and such sum as may be due to you for the execution hereof; and we furhter command you that, in
default of such payment, you detain the said defendant until the further
order of our said court.
witness the honourable , chief justice of our said
court, the day of , 19 .
(signed)
registrar.
OTE- this writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and mode
of execution.
FORM NO. 43.
order for giving of bail by absconding defendant.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
upon the application of the plaintiff A.B., and upon hearing the solicitor
for the said plaintiff, and upon reading the affidavit of , of
, it is ordered that the defendant C.D. do give bail in
the sum of $ , to the satisfaction of the registrar, for his appearance at
any time when called upon while this action is pending and until the execution
of any judgment that may be given against him in his action; and it is
furhter ordered that, in default of his so doing, the said defendant be committed
to prison until the decision of this action, or, if judgment is given
against him, until the execution of the judgment, or until the further order of the court.
dated the day of , 19 .
FORM NO. 44.
Bail-bond of absconding defendant.
know all men by these presents that we, C.D., of , E.F., of
, and G.H., of , are held and firly bound unto
A.B., of , in the sum of dollars, to be paid to the
said A.B. or his executors, administrators, or assigns; for which payment
to be made we jointly and serverally bind ourselves, and each and every of us,
and our and every of our respective heirs, executors, and administrators,
firmly by these presents. in witness whereof we have hereto set our hands
and seals this day of , in the year of our lord nineteen hundred and . now the condition of this obligatin is that if the
above-bounden C.D. shall appear in person before the supreme court of hongkong,
at any time when called upon while the action of the said A.B. against
the said C.D. in the original jurisdiction of the said court, being action
no. of 19 , is pending and until the execution of any judgment that
may be given against the said C.D. in the said action, or that if, in default
of such appearance, the said C.D. shall pay any sum of money that may be
adjudged against him in thesaid action, with costs, then this obligation shall
be void, otherwise it is to remain in full force.
signed, sealed, and delivered (signed.)
in the presence of C.D.[L.S.]
E.F.[L.S.]
G.H.[L.S.]
FORM NO. 45.
Warrant for bailiff to call upon defendant to give security to produce
property.
action no. of 19 .
IN THE SUPREME COURT OF HONGKONG,
ORIGINAL JURISDICTION.
Between A.B., plaintiff,
and
C.D., defendant.
edward the seventh, by the grace of god, &c.
to the bailiff of our said court, greeting:
we command you forthwith to call upon the defendant C.D. either by
day, the day of , 19 , to furnish security in the
sum of $ to produce and place at the disposal of our said court, when
required, his property or the value of the same, or such portion thereof as may
be sufficient to answer any judgment that may be given against him in this
action, or by the said day to appear before our said court and show cause
why he should not furnish such security; and we further command you, in
default of such security being given, to attach all the movable and immovable
property of the said defendant within the colony until the further order of
our said court.
witness the honourable , chief justice of our said
court, the day of , 19 .
(signed.)
registrar.
NOTE.- This writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and
mode of execution.
NOTE.- This writ is to be returned into the registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and
mode of execution. FORM NO.46.
Advertisement for Claimants not being Creditors.
pursuant to a judgment [or an order] of the supreme court made in [the
matter of the estate of A.B. and in] an action by C.D. against E.F., the
persons claiming to be next of kin to A.B., late of ,
who died in or abourt the month of , 19 , are, by their
solicitors, on or before the day of , 19 , to come in and
prove their claims at the chambers of , at the supreme court in
victoria, hongkong, or, in default thereof, they will be peremptorily excluded
from the benefit of the said judgment [or order].
the day of , 19 , at o'clock in the noon,
at the said chambers, is appointed for hearing and adjudicating upon the
claims.
dated the day of , 19 .
(signed)
registrar.
FORM NO. 47.
Advertisement for creditors.
pursuant to a judgment [or an order] of the supreme court made in [the
matter of the estate of A.B. and in] an action by C.D. against E.F., the
creditors of A.B., late of , who died in or about the month of
, 19 , are, on or before the day of , 19 , t
serve on G.H., the solicitor of the defendant C.D., the executor [ or administrator]
of the deceased [ or as may be directed], notice of their christain and
surnames, addresses, and descriptions, the full particulars oftheir claims, a
statement of their accounts, and the nature of the securities, if any, held by
them, or, in default thereof, they will be peremptorily exlcuded from the
benefit of the said judgment [or order].
every creditor holding any security is to produce the same before
, at his chamber at the supreme court in victoria, hongkong,
on the day of , 19 , at o'clock in the noon, being
the time appointed for hearing and adjudicating upon the claims.
dated the day of , 19 .
(signed)
registrar. ORDINANCES OF HONGKONG(CARRINGTON EDITION)
VOL. II
1891-1901
824 No.3] THE ORDINANCEES OF HONGKONG: [A.D. 1901.
840.txt Assignment to self and others. 22 & 23 Vict.c. 35 s. 21.
36 & 37 Vict. C. 66 s. 100. Ib. H.K. Code, s. 2. 36 & 37 Vict.c. 66 s. 100. O. 71 r. 1 A. 36 & 37 Vict.c. 66 s. 100. Ib. Indian Code, s. 2. O. 71 r. 1. Savings. H.K. Code, s. 3. Enactment, subject to the Code, of the English Rules of Court. New. Arrangement of the Code. New. Institution and carrying on of actions. H.K. Code, s. 5. Commencement of action with writ of summons. H.K. Code, s. 9(1.) Schedule: Form No. 1. Preparation and contents of writ. Ib.s.9 (2.) O. 5 r. 10. O. 3 r. 4. Date and teste of writ. H.K. Code, s. 9 (2.) Leaving of copy of writ. O. 5 r. 12. Filing and marking of copy of writ. Ib.r.13. Sealing and issue of writ. Ib.r.11. Writ for service out of jurisdiction. O. 2 r. 4. Alteration in writ. H.K. Code, s. 9(3.) Duration and renewal of writ. Ib.s.9(4.) O. 8. r.1. Evidence of renewal of writ. O. 8 r. 2. Case of lost writ. Ib.r.3. Saving as to proceedings on petition. H.K. Code, s. 9(5.) Right to indorse writ specially in action for debt or liquidated demand O. 3 r. 6. Schedule: Form No. 2. Right to indorse writ specially in action for immovable property. O. 3 r. 6. Schedule: Form No. 2. Nature of special indorsement. H.K. Code, s. 13 (1.) O. 3 r. 7. Procedure on default of appearance to specially indorsed writ. H.K. Code, s. 13 (1.) O. 13 rr. 3, 8. Procedure where defendant appears to specially indorsed writ. H.K. Code, s. 13 (2.) O. 14 r. 5 Right to indorse writ specially in case of ordinary account, and procedure thereon. H.K. Code, s. 13 (3.) O. 3 r. 8. O. 15. Issue and marking of concurrent writs. O. 6 r. 1. Issue of originating summons. O. 54 r. 4 B. Schedule: Forms Nos. 3, 4, and 5. Filing of copy of originating summons. Ib. Appearance to originating summons. Ib.r.4c. Attendance under originating summons. O. 54 r. 4D. Schedule: Form No. 6. Disclosure by solicitor whose name is indorsed on writ. O. 7 r. 1. Change of solicitors. Ib.r.3. Prohibition of service on Sunday, etc. H.K. Code, s. 8 (1.) General rule as to mode of service. Ib.s.8 (2.) Special modes of service, by order of the Court. H.K. Code, s. 8 (3.) O. 10. Service on defendant in public service. H.K. Code, s. 8 (4.) service on British corporation, etc. Ib.s.8 (5.) Service on foreign corporation, etc. Ib.s.8 (6.) Service on husband and wife. O. 9 r. 3. Service on infant. O. 9 r. 4. Service on lunatic, etc. Ib.r.5. Service on defendant residing out of jurisdiction, etc. H.K. Code, s. 8 (7.) Service out of jurisdiction. O. 11 or 1. Schedule: Form Nos. 7 and 8. Ib.r.4. O. 11 r. 5. Power to vary order for service. H.K. Code, s. 8 (10.) Expenses of service by Bailiff. Ib.s.8 (11.) Service and return of writ. Ib.s.10. O. 9 r. 15. H.K. Code, s. 10. Appearance in general. Ib.s.11. Schedule: Form No. 9. Appearance in case of defendant out of jurisdiction. H.K. Code, s. 11. Cross-action against absent plaintiff. Ib.s. 95. Liberty to move to set aside service of writ before appearance. O. 12 r. 30. Leave to proceed ex parte in case of non-appearance. H.K. Code, s. 12(1.) Subsequent appearance. Ib.s.12 (2.) Trial ex parte. Ib.s.12 (3.) Procedure on default of appearance to originating summons. O. 13 r. 15. General rules as to joinder of persons as plaintiffs. O. 16 r. 1. Case of action commenced in name of wrong plaintiff. Ib.r.2. Case of counterclaim where a plaintiff is wrongly joined. Ib.r.3. General rules as to joinder of person as defendants. O. 16 r. 4. Ib.r.5. Ib.r.6. Case of plaintiff in doubt as to person from whom he is entitled to redress. Ib.r.7. Action by or against trustees, executors, and administrators. Ib.r.8. Action for prevention of waste, etc. Ib.r.37. Case of numerous persons having same interest. Ib.r.9. Power to approve compromise in absence of some of the persons interested. Ib.r.9A. Misjoinder and non-joinder of parties. O. 16 r. 11. Application to add, or strike out, or substitute parties. Ib.r.12. Procedure where defendant added or substituted. Ib.r.13. Appearance, etc., by one party for another. Indian Code, s. 35. Action by or against infant. O. 16 r. 16. Action by or against lunatic, etc. O. 16 r. 17. Appointment of guardian ad litem for infant or person of unsound mind, after default in appearance to action. H.K. Code, s. 15. Appearance by infant. O. 16 r. 18. Schedule: Form No. 10. Guardian ad litem of infant. Ib.r. 19. Filing of authority of next friend or relator. Ib.r.20. Consent of person under disability to procedure. Ib.r.21. Representation of heir-at-law, next of kin, or class. O. 16 r. 32 (a.) Ib.r.32 (b.) Administration at suit of residuary legatee, etc. Ib.r.33. Administration at suit of legatee, etc. Ib.r.34. Administration at suit of residuary devisee, etc. Ib.r.35. Execution of trust at suit of costui que trust. O. 16 r. 36. Administration at suit of executor, etc. Ib.r.38. Conduct of action or proceeding. Ib.r.39. Service of notice of judgment in action for administration of estate, etc., and effect thereof Ib.r.40. Ib.r.41. Ib.r.42. Ib.r.43. Schedule: Form No.11. O. 16 r. 44. Action to execute trusts of will. Ib.r.45. Case of no legal personal representative of deceased person interested in matter in question. Ib.r.46. Right to appear on claim against estate under administration. Ib.r.47. Right of defendant to give third-party notice, and filing and service thereof. Ib.r.48. Schedule: Form No. 12. Right of third party served to appear and dispute liability of defendant or of himself. O. 16 r. 49. Procedure where third party does not appear, and judgment is suffered by default. Ib.r.50. Procedure where third party does not appear, and action is decided in favour of plaintiff. Ib.r.51. Application for directions where third party appears. Ib.r.52. Schedule: Form No. 13. Directions which may be given where third party appears. O. 16 r. 53. Schedule: Form No. 14. Decision of questions of costs. Ib.r.54. Case of defendant claiming contribution or indemnity against co-defendant. Ib.r.55. Cause not to abate by reason of marriage, etc., of party if cause of action survives, nor to become defective by conveyance of estate, etc. O. 17 r. 1. Service of notice on husband, etc., in case of marriage, etc., of party. Ib.r.2. Continuance of cause by or against successor in title. O. 17 r. 3. Order to carry on proceedings in case of marriage, etc., causing change of interest. Ib.r.4. Service of order and effect thereof. Ib.r.5. Application to discharge or vary order by person not under disability, etc. Ib.r.6. Application to discharge or vary order by person under disability. Ib.r.7. Procedure where plaintiff or defendant dies, and person entitled to proceed fails to do so. O. 17 r. 8. Entry of abatement, etc., in Cause-Book. Ib.r.9. Striking out of cause abated, etc., for a year. Ib.r.10. General rule as to joinder in one action of several causes of action. O. 18 r. 1. Rule as to joinder of other causes of action for recovery of immovable property. Ib.r.2. Claims by trustee in bankruptcy. O. 18 r. 3. Claims by or against husband and wife. Ib.r.4. Claims by or against executor or administrator. Ib.r.5. Claims by joint plaintiffs. Ib.r.6. Provision as to ss. 106-8. Ib.r.7. Remedy of defendant for misjoinder of causes of action. Ib.rr.8, 9. Rules of pleading. O. 19 r. 1. Form of pleading. Ib.r.4. Signature of pleading. O. 19 r. 4. Particulars to be given in case of misrepresentation, fraud, etc. Ib.r.6. Ordering of further and better particulars. Ib.r.7. Time for pleading after delivery of particulars. Ib.r.8. Plea of not guilty by statute Ib.r.12. Admission of fact not specifically denied. Ib.r.13. Condition precedent to be specified in certain cases. O. 19 r. 14. Pleading to raise all grounds of defence or reply. Ib.r.15. Prohibition of departure in pleading Ib.r.16. Obligation to deal specifically with allegation not admitted. Ib.r.17. Joinder of issue. Ib.r.18. Evasive denial. Ib.r.19. Effect of bare denial of contract, etc. O. 19 r. 20. Mode of stating document. Ib.r.21. Mode of alleging malice, etc. Ib.r.22. Mode of alleging notice. Ib.r.23. Mode of alleging contract or relation to be implied from letters, etc. Ib.r.24. Presumption of law. Ib.r.25. Technical objection. Ib.r.26. Striking out or amending of pleading. Ib.r.27. Verification of pleading. H.K. Code, ss. 24 (9.), 33 (16.) Costs of prolix pleading. O. 19 r. 2. Filing of statement of claim. H.K. Code, s. 24(1.) Schedule: Form No. 15. O. 20 r. 1(b.), (c.) Ib.r.1 (d.) Description of parties. H.K. Code, s. 24 (1.) Claim beyond indorsement on writ. O. 20 r. 4. Mode of stating prayer for relief. Ib.r.6. Mode of stating distinct claims. Service of statement of claim on defendant who has appeared. H.K. Code, s. 29(1.) Power to order service forthwith where writ to be served out of jurisdiction. Ib.s.29 (2.) Power to stay proceedings where statement of claim is defective. Ib.s.30. Time for filing statement of defence. Ib.s.33 (1.) Schedule: Form No. 16. Application for extension of time. Ib.s. 33(1.), (2.) Filing statement of defence after expiration of time H.K. Code, s. 33 (4.), (5.), (6.) Mode of denying allegations made in statement of claim. Ib.s.33(9.) O.21 rr. 1, 2. No denial necessary as to damages. Ib.r.4. Costs of allegation improperly denied or not admitted. Ib.r.9. Plea of general issue. Ib.r.19. Plea in abatement. Ib.r.20. Service of statement of defence on plaintiff. New. Defence of tender before action. O. 22 r. 3. Payment into Court in satisfaction of claim, or with denial of liability. O. 22 r. 1. Pleading of payment into Court. Ib.r.2. Payment into Court before defence. Ib.r.4. Payment over to certain cases of money paid into Court. Ib.r.5. Procedure where payment into Court is made with denial of defendant's liability. Ib.r.6. Acceptance of sum paid into Court before defence. O. 22 r. 7. Payment into Court in consolidated action. Ib.r.8. Payment into Court not to be communicated to the jury. O. 22 r. 22. Defence of set-off to claim for money. H.K. Code, s. 36 (1.) Making of counterclaim, etc., in lieu of setoff. Ib.s.36(2.) Cases in which counterclaim may be allowed, and procedure thereon. Ib.s.37. Schedule: Form No. 17. Appearance by third party to counterclaim. O. 21 r. 13. Time for reply to counterclaim. Ib.r.14. Statement of defence to counterclaim. O. 23 r.4. Continuance of counterclaim. O. 21 r. 16. Filing of reply and rule as to pleadings. O. 23 r. 1. Schedule: Form No. 18. Ib.r.2. Close of pleadings on default, and default of third party in pleading. O. 27 r. 13. Ib.r.14. Pleading matter arising before statement of defence or reply. H.K. Code, s. 63. O. 24 r. 1. Pleading matter arising after statement of defence or reply. Ib.r.2. Confession of defence founded on matter arising pending the action. Ib.r.3. Abolition of demurrer. O. 25 r. 1. Right of party to raise point of law by pleading, and procedure thereon. Ib.r.2. Schedule: Form No. 19. Dismissal of action, etc., on point of law. Ib.r.3. Striking out pleading where no reasonable cause of action disclosed, etc. Ib.r.4. Declaratory judgment or order. O. 25 r. 5. Amendment of indorsement, etc, O. 28 r. 1. Application for leave to amend. Ib.r.6. Right of amendment ex parte. H.K. Code, s. 32 (5.) Amendment of statement of claim after defence. Ib.s.39 (2.) Failure to amend after order. O. 28 r. 7. Date of order and date of amendment to be marked. Ib.r.9. Filing and service of amended pleading. O. 28 r. 10. Correction of clerical mistake in judgment, etc. Ib.r.11. General power to amend. Ib.r.12. Discovery by interrogatories. O. 31 r. 1. Decision on interrogatories to be delivered. Ib.r.2. Schedule: Form No. 20. Costs of interrogatories. Ib.r.3. Interrogatories for corporation or company. O. 31 r. 5. Setting aside interrogatories. Ib.r.7. Answer to interrogatories. Ib.r.8. Schedule: Form No. 21. Objections to interrogatories by answer. Ib.r.6. Objection to affidavit in answer. Ib.r.10. Order to answer or answer further. Ib.r.11. Application for discovery of documents. Ib.r.12. Ib.r.13. Schedule: Form No. 22. Discovery of specific documents. O. 31 r. 19A. Production of documents. Ib.r.14. Inspection of document referred to in pleadings, etc. Ib.r.15. Time and place for inspection when notice for inspection given. Ib.r.17. Application for inspection. O. 31 r. 18. Order for verified copies of entries in business book. Ib.r.19A. Claim of privilege. Ib. Premature discovery or inspection. Ib.r.20. Non-compliance with order for discovery or inspection. O. 31 r. 21. Service of order on solicitor. Ib.r.22. Ib.r.23. Using answer to interrogatories at trial. Ib.r.24. Discovery against Bailiff. Ib.r.28. Discovery by or against infant, etc. Ib.r.29. Notice of admission. O. 32 r. 1. Notice to admit document. Ib.r.2. Notice to admit fact. Ib.r.4. Evidence of admission. Ib.r.7. Judgement or order upon admissions of facts. Ib.r.6. Evidence of service of notice. O. 32 r. 8. Costs of unnecessary notice. Ib.r.9. Preparation of issues of fact. O. 33 r. 1. Order of disposal of issues. H.K. Code, s. 40(3.) Amendment of or addition to issues. Ib.s.40(4.) General power to direct inquires and accounts. Ib.s. 13 (4.) O. 33 r. 2. Giving of special directions as to mode of taking account. Ib.r.3. Mode of making up account. O. 33 r. 4. Mode of vouching account. Ib.r.4A. Surcharge. Ib.r.5. Inquiry as to outstanding personal estate. Ib.r.6. Numbering of accounts and inquiries. Ib.r.7. Rule as to just allowances. Ib.r.8. Expediting proceedings in case of undue delay Ib.r.9. Statement of special case on question of law, by concurrence of parties. O. 34 r. 1. Statement of special case on question of law, by order of the Court. Ib.r.2. Preparation signing, and filing of special case. Ib.r.3. Leave to set down special case where person under disability is party. Ib.r.4. Entry of special case for argument. Ib.r.5. Schedule: Form No. 23. Agreement of parties for payment of money, etc., on decision of special case. O. 34 r. 6. H.K. Code, s. 88. Judgement and execution on decision. O. 34 r. 6. Power for persons interested in question as to construction of Act of Parliament, etc., to concur in stating special case for opinion of the Court, and procedure thereon. 13 & 14 Vict. c. 35 s. 1. Ib.s.14. 13 & 14 Vict.c. 35 s. 15. Application of Chapter 8. O. 34 r. 7. Trial of questions of fact agree upon between parties. Ib.r.9. Agreement of parties for payment of money, etc., on decision of questions. Ib.r.10. H.K. Code, s. 88. Judgment and execution on decision. O. 34 r. 11. Record of proceedings. Ib.r.12. Modes of making inter-locutory application. H.K. Code, s. 42. Filing of motion-paper. Ib.s.43 (1.) Schedule: Form No. 24. Terms of motion. Ib.s.43(2.) Amendment of motion paper. H.K. Code, s. 43 (3.) Affidavits in support of motion. Ib.s.43 (4.), (5.) Time of moving in case of urgency. Ib.s.43 (6.) Motion to be ex parte of on notice. Ib.s.43 (7.) Proceedings on motion ex parts. Ib.s. 43 (8.), (9.) Power of amendment, etc., at hearing. Ib.s.43 (10.) Power to make order different from order asked for. Ib.s.43 (11.) Application to vary or discharge order made on motion ex parte. Ib.s.43 (12.) Procedure where notice of motion served. New. Return-day of order. H.K. Code, s. 44 (1.) filing of counter affidavits. Ib.s.44 (2.) Non-appearance of person served with order. Ib.s.44 (3.) Appearance of person served with order. Ib.s.44 (4.) General powers of the Court on hearing. Ib.s.44 (5.) Filing of application for summons. Ib.s.45 (1.), (2.) Schedule: Form Nos. 25 and 26. Issue of summons. Ib.s.45 (3.) Proceedings on return-day of summons. Ib.s.45 (4.) Schedule: Form No. 27. Taking of evidence by affidavit. H.K Code, s. 46 (1.) Cross-examination of person making affidavit. O. 38 r. 1. Taking of evidence viva voce. H.K. Code, s. 46. Preservation, etc., of subject-matter of disputed contract. O. 50 r. 1. Sale of perishable goods, etc. Ib.r.2. Detention, preservation, or inspection of property the subject of cause or matter. Ib.r.3. Inspection by Judge. O. 50 r. 4. Inspection by jury. Ib.r.5. Application for order of mandamus, etc. Ib.r.6. No. 2 of 1901. Ib.r.7. Order for recovery of specific property, other than immovable property subject to lien, etc. Ib.r.8. Allowance of income of property pendente lite. O. 50 r. 9. Conduct of sale of trust estate. Ib.r.10. Date of order when drawn up. O. 52 r. 13. Operation of notice of motion, etc., as stay of proceedings. H.K. Code, s. 47 (1.) Application to dismiss action for want of prosecution. Ib.s.49. O. 27 r. 1. Order for setting down. H.K. Code, s. 48 (1.) Order for setting down on application of plaintiff. H.K. Code, s. 48 (2.) Order for setting down on application of defendant. Ib.s.48 (3.) General power to postpone trial of cause. Ib.s. 50 (1.) O. 36 r. 34. Application for postponement for absent witness. H.K. Code, s. 50 (2.) Application for postponement for evidence of jurisdiction. Ib.s.50 (3.) Keeping of general trial list and trial paper. Ib.s.51 (1.) Transfer of cause from general trial list to trial paper. Ib.s.51 (2.), (3.) Notice to parties of transfer of cause. H.K. Code, s. 51 (4.) Taking cause out of turn. Ib.s.51 (5.) Notice of postponement of trial not necessary in certain cases. Ib.s.51 (6.) Order as to mode of trial. Ib.s. 53 (2.), (3.) Right to trial by jury in action libel, etc., O. 36 r. 2. Trial without jury. Ib.r.3. Repealed by this Ordinance. Ib.r.4. Ib.r.5. Order for trial with jury. O. 36 r. 6. Mode of trial in case not expressly provided for. Ib.r.7. Provision for different modes of trial of different questions. Ib.r.8.Trial by the Full Court. New. Saving of existing statutes relating to juries. H.K. Code, s. 53 (7.) See Ordinance No. 7 of 1887. Default of appearance by both parties. Ib.s. 61 (1.) Default of appearance by plaintiff. Ib.s. 61 (2.) Default of appearance by defendant. Ib.s. 61 (3.) Adjournment for further service. H.K. Code, s. 61 (4.) Procedure where no statement of defence filed. Ib.s. 33 (3.) Trial ex parte. Ib.s. 61 (5.) Re-trial of cause for absent defendant in certain cases. Ib.s. 61 (6.) Procedure where cause struck out for absence of plaintiff. Ib.s.61 (7.) New. Default of appearance by plaintiff a second time. H.K. Code, s. 61 (8.) O. 36 r. 32. General order of proceedings at trial of cause. H.K. Code, s. 62 (1.)-(10.) Taking of notes of evidence. H.K. Code, s. 62 (11.) Recording of remarks on demeanour of witness. Indian Code, s. 188. Use of notes of evidence. New. Taking of objection to evidence. H.K. Code, s. 62 (13.), (14.) Putting in of evidence by affidavits, etc. Ib.s.62 (15.) Reading of documentary evidence. Ib.s. 62 (16.) Marking and disposal of document put in evidence. Ib.s. 62 (17.) Amendment of pleadings to correspond with evidence. H.K. Code, s. 62 (18.), (19.) Evidence in mitigation of damages in action for libel or slander. O. 36 r. 37. Power of the Court to direct nonsuit, etc. H.K. Code, s. 65 (1.)-(4.) Withdrawal of plaintiff from action. Ib.s.66 (1.). Settlement of action by mutual agreement, etc. H.K. Code, s. 66 (2.), (3.) Continuance of existing rules of evidence, except as modified. Ib.s. 54 (1.) Taking and use evidence de bene esse. Ib.s. 57 (1.), (2.) O. 37 r. 5. Letter of request. Ib.r.6A. See Ordinance No. 2 of 1889. Taking and use of evidence before action brought. H.K. Code, s. 57 (3.) Order for attendance of person to produce document. O. 37 r. 7. Disobedience of order for attendance. Ib.r.8. Copy of pleadings for examiner. Ib.r.10. Custody of deposition taken on examination. Ord. No. 6 of 1855 s. 39. Report of examiner on examination, and proceedings thereon. Ib.s. 40. O. 37 r. 17. Use of deposition taken on examination. Ib.r.18. Rules as to form and substance of affidavit. H.K. Code, s. 56 (1.)-(4.) O.38 rr. 7, 8. Re-writing of defective affidavit. H.K. Code, s. 56 (5.) Alteration in affidavit. O. 38 r. 12. Swearing of affidavit in the King's dominions, and use thereof. H.K. Code, s. 56 (6.) Swearing of affidavit out of the King's dominions, and use thereof. H.K. Code, s. 56 (7.) Presumption in favour of affidavit purporting to have been sworn abroad. Ib.s. 56 (8.) Use of defective affidavit. O. 38 r. 14. Exclusion of affidavit sworn before party, etc. H.K. Code, s. 56 (10.) Re-swearing of defective affidavit. Ib.s. 56 (11.) Filing and use of original affidavit. Ib.s. 56 (12.) Taking of evidence by affidavit. Ib.s. 54 (2.) Power to admit affidavit of person not cross-examined. Ib.s.55 (3.) Requirement of order of Court for admission of affidavit. H.K. Code, s. 55(4.) Rules as to examination of witnesses. Ib.s.55 (7.)-(10.) Admissibility in certain cases of evidence of witness given in former judicial proceeding. Ib.s.58. Use of evidence in subsequent proceedings. O. 37 r. 25. Application of provisions as to trial, etc., to hearing. New. Recording of verdict, etc. H.K. Code, s. 67 (1.) Pronouncement of judgment. H.K. Code, s. 67 (1.) Indian Code, s. 199. Reserved judgment. H.K. Code, s. 6 (2.) Notice of judgment. Ib.s. 67 (3.), (4.) Minute of judgment or order and formal judgment or order. Ord. No. 8 of 1890. Filing of written judgment. H.K. Code, s. 67 (10.) Rules as to awarding of interest in judgment. Ib.s. 67 (6.). Payment of judgment debt by instalments. Ib.s.67(7.) Power to award damages in addition to or in substitution for injunction, etc. Ord. No. 3 of 1861 s. 1. Inquiry for ascertaining amount of damages in certain cases. Ord. No. 6 of 1855 s. 79. Sum of money to be awarded generally. Ib.s.80. Judgment in case of set-off and counterclaim for money. H.K. Code, s. 67 (8.) Indorsement to be made on judgment requiring act to be done within limited time. O. 41 r. 5. Effect and enforcement of order of the Court. O. 42 r. 24. H.K. Code, s. 80. General power of the Court as to costs. Ib.s.94 (1.) O. 65 r. 1. Repealed by this Ordinance. Costs of issues in fact and in law Ib.r.2. Definition of costs. H.K. Code s. 94(2.) Taxation of costs in matters not provided for. Ib.s.94(3.) Giving of security for costs. H.K. Code, s. 94 (4.) O. 65 r. 6 A. Ib.r.6. Ib.r.7. Effect of failure of plaintiff to give security for costs. Indian Code, s. 381. Set-off for costs. Ib.s.221. Interest on costs. New. Payment of costs out of subject-matter. Indian Code, s. 222. Costs payable by or to the Crown, etc. Ord. No. 4 of 1857 s. 3. Ord. No. 3 of 1858 s. 16. Summons to judgment debtor to appear and be examined as to his ability to pay judgment debt, and proceedings thereon. H.K. Code, s. 69. Judgment for immovable property. Ib.s.70 (1.) Judgment for money. H.K. Code, s. 70 (3.) Judgment for money against representative of deceased person. Ib.s. 70 (5.) Judgement for specific movable or for specific performance of contract or act. Ib.s. 70 (2.) Judgement for execution of deed or indorsement of negotiable instrument. Ib.s.70 (4.) Case of surety for performance of judgment. Ib.s.70 (6.) Order for or against person not party. O. 42 r. 26. Description of property liable to attachment and sale in execution of judgment. H.K. Code, s. 70 (7.) Payment of moneys into Court. Ib.s.70 (8.) Period within which execution may issue. O. 42 r. 22. Duration and renewal of writ. Ib.r.20. Evidence of renewal of writ. Ib.r.21. Separate writs for money recovered and for costs. Ib.r.18. Execution in case of cross-judgments for money. H.K. Code, s. 72 (2.) Levying expenses of execution. O. 42 r. 15. Determination of questions as to mesne profits and other matters. H.K. Code, s. 79 (8.) Power of the Court to order immediate execution. Ib.s.71. Filing of prceceipe for writ of execution. Ib.s. 72 (I.) O. 42 r. 12. Schedule: Form No. 28. Making note of application for execution. H.K. Code, s. 72 (6.) Taking direction of the Court as to application. Ib.s. 72 (7.) Application for leave to issue execution in certain cases, and proceedings thereon. Ib.s.73. O. 42 r. 23. Application for leave to issue execution by one of several persons entitled. Indian Code, s. 231. Staying execution on ground of new facts. O. 42 r. 27. Staying execution on previous judgment where action pending between same parties. H.K. Code, s. 72 (3.) Issue and date of writ. Ib.s.74. O.42 r. 14. Order of issue of writs. H.K. Code, s. 72 (8.) Procedure where resistance is offered to execution of judgment for immovable property. Ib.s.75 (1.)-(4.) Schedule: Form No. 29. Procedure where person other than judgment debtor disputes right to dispossess him of immovable property under judgment. H.K. Code, s. 75 (5.) Effect of decision under ss. 396, 397. H.K. Code, s. 75 (6.) Levy of execution on judgment for money. Ib.s.76 (1.) Schedule: Form No. 30. Attachment of movable property. Ib.s.76 (2.), (3.) Schedule: Form No. 31. Attachment of immovable property Ib.s.76 (4.) Schedule: Form No. 32. Attachment of shares in public company. Ib.s.76 (5.) Attachment of negotiable instrument. H.K. Code, s. 75 (7.) Attachment of property in custody of public officer. Ib.s.76 (6.) Attachment of property in custodia legis. Ib. Service of prohibitory order. Ib.s.76 (8.) No. 1 of 1844. Nullity of alienation, etc., of property after attachment. Ib.s. 76 (9.) Payment of money or proceeds of property attached to judgment creditor. Ib.s.76 (11.) Appointment of manager of immovable property attached. H.K. Code, s. 76 (12.) Raising of judgment debt by mortgage, etc., of immovable property attached. Ib.s. 76 (12.), (13.) Withdrawal of attachment on satisfaction of judgment. Ib.s.76 (14.) Order for attachment of debts due to judgment debtor. O. 45 r.1. Schedule: Forms Nos. 33 and 34. Effect of service of order of attachment. Ib.r.2. Payment into Court by garnishee. H.K. Code, s. 76 (10.) Issue of execution against garnishee. O. 45 r. 3. Schedule: Form No. 35. Trial of question of liability of garnishee. Ib.r.4. Claim or lien of third person to or on debt, and proceedings thereon. Ib.rr. 5, 6. Effect of payment by or execution on garnishee. O. 45 r. 7. Payment of proceeds of debts attached to judgment creditor. H.K. Code, s. 76 (11.) Appointment of manager of debts attached. Ib.s.76 (12.) Keeping of Debt Attachment Book. O. 45 r. 8. Costs of proceedings for attachment. Ib.r.9. Investigation of claim to attached property, and order thereon. H.K. Code, s. 77. Power to order sale of movable property taken in execution and claimed by thire party. O. 57 r. 12. Giving of notice by Bailiff of claim to movable property taken in execution. Ib.r.16. Withdrawal by Bailiff on admission of claim. O. 67 r. 16A. Conduct and mode of sale in execution. H.K. Code, s. 78 (1.) Application to set aside sale of immovable property for irregularity. Ib.s.78 (2.) Sale of immovable property made absolute, confirmed, or set aside. Ib.s.78 (3.) Repayment of deposit, etc., when sale of immovable property is set aside. Ib.s.78 (4.) Granting of certificate to purchaser when sale of immovable property becomes absolute, and effect thereof. H.K. Code, s. 78 (5.) No.1 of 1844. Delivery to purchaser of immovable property sold in execution. Ib.s. 78 (8.) (9.) Procedure where resistance is offered to purchaser of immovable property sold in execution. Ib.s. 78 (13.), (14.) Delivery to purchaser of movable property sold in execution. H.K. Code, s. 78 (6.), (7.) Prohibitory order in case of debts and shares sold in execution. Ib.s.78 (10.) Delivery of negotiable instrument sold in execution. Ib.s.78 (11.) Execution of transfer of share, etc. Ib.s. 78 (12.) Duration of imprisonment for debt. H.K. Code, s. 79 (3.) Subsistence allowance to prisoner for debt. Ib.s. 79 (1.) Removal to hospital of prisoner for debt in case of serious illness. Ib.s.79 (2.) Release of prisoner for debt. Ib.s.79 (3.) Recovery of amount of subsistence money. Ib.s.79 (4.) Application of prisoner for debt for discharge, and proceedings thereon. H.K. Code, s. 79 (5.), (6.) Schedule: Form No. 36. Schedule: Form No. 37. Effect of discharge of prisoner for debt. Ib.s.79 (7.) Granting of order on person disobeying judgment to show cause why he should not be punished. Ib.s. 81 (1.), (2.) Service of order, etc. H.K. Code, s. 81 (3.) Proceedings on return-day of order. Ib.s.81 (4.) Enlargement of time for return to order, and making of conditional order of committal. Ib.s. 81 (5.) Duration of detention of person committed. Ib.s.81 (6.) Power to order act directed to be done at expense of party refusing to do it. O. 42 r. 30. Enforcement of judgment against disobedient corporation. Ib.r.31. Proceedings by foreign attachment. H.K. Code, s. 82 (1.) Issue of writ of foreign attachment. Ib.s. 82 (2.) Schedule: Form No. 38. Meaning of term ''absence from the Colony.' Ib.s.82 (3.) Giving of bond by plaintiff before issue of writ. Ib.s.82 (4.), (5.) Schedule: Form No. 39. Power to the Court to order issue of writ before execution of bond. H.K. Code, s. 82 (5.) Execution of writ against movable property. Ib.s.82 (6.) Priority of writs. Ib.s. 82 (7.) New. Attachment of property in custody of public officer. Ib.s.82 (8.) Attachment of property in custodia legis. Ib. Effect of service of writ on garnishee as regards movable property. H.K. Code, s. 82 (11.) Execution of writ against immovable property. Ib.s. 82 (9.) No.1 of 1844. Effect of registration of memorial of writ on immovable property. Ib.82 (10.) Sale of movable property attached under writ. Ib.s.82 (12.) Punishment of garnishee disposing, without leave, of property attached. Ib.s.82 (13). Seizure of attached property in danger of being removed, etc. H.K. Code s. 82 (14.) Publication of notice of issue of writ. Ib.s. 82 (15.) Service of notice of writ on defendant. Ib.s.82 (16.) Filing of statement of claim, and proceedings thereafter. Ib.s. 82 (17.) Proceedings at trial of action. Ib.s. 82 (18.), (21.) Attachment of ship in case of adverse claims to goods laden on board. H.K. Code, s. 82 (22.) Procedure where several claims to property attached. Ib.s.82 (23.) Staying proceedings against garnishee. Ib.s.82 (24.) Giving leave to defendant to defend action. H.K. Code, s. 82 (25.) Application by defendant to dissolve attachment. Ib.s. 82 (26.) Application by defendant to set aside judgement, etc. Ib.s. 82 (27.) Saving of rights of bona fide purchaser of property in case of dissolving of writ, etc. Ib.s.82 (28.) Mode of preferring claim against Government of the Colony Ib.s.83 (1.) 23 & 24 Vict.c. 34. Commencement of action. Ib.s.83 (2.) Consent of Governor, and procedure thereafter. H.K. Code, s. 83 (3.) Service of documents in action. Ib.s. 82 (4.) Procedure where judgment given against Government. Ib.s. 83 (5.) Right and liability of partners to sue and be sued in firm name, and disclosure of names of partners. O. 48 A r. 1. Disclosure of name of partners in action brought by firm. Ib.r.2. Service on partners used in name of firm. O. 48 A r. 3. Notice of capacity in which person is served. Ib.r.4. Appearance of partners. Ib.r.5. Non-necessity of appearance by manager served. Ib.r.6. Appearance under protest of person served as partner. Ib.r.7. Execution of judgment against firm. Ib.r.8. Attachment of debts owing from firm. O. 48 A r. 9. Application of provisions of Chapter 19 to action between co-partners. Ib.r.10. Application of provisions of Chapter 19 to person trading as firm. Ib.r.11. Application by poor person to sue or defend as pauper. H.K. Code, s. 86 (1.) Assignment of counsel and solicitor to consider case. H.K. Code, s. 86 (1.) O. 16 r. 23. Order for admission to sue or defend as pauper. H.K. Code, s. 86 (1.) O. 16 r. 24. Assignment of counsel and solicitor to assist pauper. Ib.r.26. Exemption of pauper from payment of fees. H.K. Code, s. 86 (4.) O. 16 rr. 24, 25. Duty of counsel of solicitor as signed to act. Ib.r.26. Punishment of person taking fee from pauper. Ib.r.27. Dispaupering of pauper. H.K. Code, s. 86 (5.) O. 16 r. 28. Duty of solicitor of pauper as to signing of documents. Ib.rr. 29, 30. Service of writ of summons in case of vacant possession. O. 9 r. 9. Action for recovery of immovable property to the Crown. Ord. No. 5 of 1856 s. 9. Appearance by person in possession. O. 12 r. 25. Appearance by landlord. Ib.r.26. Procedure where person not named as defendant appears. Ib.r.27. Limitation of defence to part of property. O. 12 r. 28. Plea of possession. O. 21 r. 21. Duty of tenant to give notice to landlord of writ in ejectment. 15 & 16 Vict.c. 76 s. 209. Proceedings in ejectment by landlord against tenant for non-payment of rent. Ib.s.210. Limitation of right of lessee to relief on equitable grounds. 15 & 16 Vict.c.76 s. 211. Discontinuance of proceedings in ejectment on payment of rent and costs. 15 & 16 Vict.c. 76 s. 212. Ejectment by landlord against tenant holding over after expiration of term or determination of tenancy by notice to quit. Ib.s.213. Power on trial of ejectment by landlord against tenant to give damages for meane profits. 15 & 16 Vict.c. 76 s. 214. Saving of other remedies of landlord. Ib.s.215. See also Ord. No. 6 of 1855 ss. 59-65. Right of plaintiff to claim man-damns by indorsement on writ. H.K. Code, s. 85 (1.) Setting forth of grounds for man-damus in statement of claim. H.K. Code, s. 85 (2.) Proceedings in action claiming mandamus. Ib.s.85 (3.) Issue of peremptory writ of mandamus. Ib.s.85 (4.) Nature of writ and return thereto. Ib.s. 85 (5.) Saving of prerogative writ of mandamus. 17 & 18 Vict.c. 125 s. 75. Acceleration of proceedings for prerogative writ. Ib.s.76. Procedure on prerogative writ. Ib.s.77. Cases in which relief by interpleader granted. O. 57 r. 1. Matters to be proved by applicant. Ib.r.2. Schedule: Form No. 40. Adverse titles of claimants. Ib.r.3. Making of application by defendant. Ib.r.4. Summons by applicant. Ib.r.5. Stay of action. Ib.r.6. Order upon summons. Ib.r.7. Disposal of claims in summary manner. Ib.r.8. Decision of question of law. O. 57 r. 9. Failure of claimant to appear or refusal to comply with order. Ib.r.10. Finality of order. Ib.r.11. Application of Chapters 6 and 12. Ib.r.13. General powers of the Court in interpleader proceedings. Ib.r.15. Interpretation of term. 52 & 53 Vict.c. 49 s. 27. Effect of submission. Ib.s.1. Provisions implied in submission. Ib.s.2 and First Schedule. Power for the Court to stay legal proceedings where there is a submission. 52 & 53 Vict.c.49 s. 4. Appointment in certain cases of arbitrator, etc. 52 & 53 Vict.c. 49 s. 5. Power for parties in certain cases to supply vacancy among arbitrators. Ib.s.6. Powers of arbitrator on umpire, and procedure on reference. 52 & 53 Vict.c. 49 s. 7. O.36 r. 48. Ib.r.49. Ib.r.50. Ib.r.51. Ib.r.53. Suing not of subpoena. 52 & 53 Vict.c. 49 s. 8. Enlargement of time for making award. Ib.s.9. Permitting of award. Ib.s.10. Misconduct of arbitrator or umpire. 52 & 53 Vict.c.49 s. 11. Application to set aside award. O.64 r.14. Enforcement of award. 52 & 53 Vict.c.49 s.12. O.42 r. 31A. Reference of question arising in cause or matter for inquiry and report by referee, etc. 52 & 53 Vict.c. 49 s. 13. Reference of cause or matter, or of question therein, for trial before referee, etc. Ib.s.14. Powers of referee, and procedure on reference. Ib.s.15(1.) O.36 r. 48. Ib.s.49. Ib.r.50. Ib.r.51. Ib.r.52. Ib.r.53. Ib.r.54. Ib.r.55. O.36 r.55B. Judgment to be entered by referee. O.40 r.2. Setting aside judgment of referee. Ib.r.6. Effect of report or award. 52 & 53 Vict.c. 49 s. 15(2.) Remuneration of referee, etc. Ib.s.15(3.) Powers of the Court as to reference. Ib.s.16. Compelling attendance of witness before referee, etc. Ib.s.18. Statement of special case pending reference. 52 & 53 Vict.c 49 s. 19. Costs. Ib.s.20. Punishment for perjury. Ib.s.22. The Crown to be bound by Chapter 24. Ib.s.23. Application of Chapter 24 to references under statutory powers. Ib.s.24. Saving as to pending arbitrations. Ib.s.25. Application for taking security for appearance of defendant in certain cases. H.K. Code, s. 16(1.) Issue of warrant for bringing defendant before the Court to show cause why he should not give security. H.K. Code, s. 16(2.) Schedule: Forms Nos. 41 and 42. Showing cause, and procedure thereon. Ib.s.16(3.), (4.) Schedule: Form No. 43. Schedule: Form No. 44. Release or committal to custody of defendant. Ib.s.16(5.) Application by defendant for discharge of bail or for release from prison. New. Power to award limited compensation to de- fendant for unjustifiable arrest. H.K. Code, s. 16(6.) Application for taking security from defendant or for attachment of his property in certain cases. Ib.s.17 (1.), (2.) Issue of warrant requirement defendant to furnish security or to appear and show cause, and attaching his property. Ib.s.17(3.), (5.) Schedule: Form No. 45. Showing cause, and procedure thereon. H.K. Code, s. 17(4.), (5.) Saving of rights of other persons under attachment. Ib.s.17(6.) Removal of attachment on furnishing of security. Ib.s.17(7.) Power to award limited compensation to defendant for unjustifiable attachment. Ib.s.17(8.) Arrest and detention of ship in special circumstances. H.K. Code, s. 19(1.) Release of ship under detention. Ib.s.19(3.) Power to award limited compensation for unjustifiable arrest and detention. Ib.s.19(2.) Granting of injunction to stay waste, damage, or alienation of property. Ib.s.18(1.) Granting of injunction to restrain breach of contract or other injury. H.K. Code, s.18(2.) Giving notice of application for injunction. Indian Code, s. 494. Effect of injunction directed to company or corporation. Ib.s.495. Discharge, etc., of order for injunction. Ib.s.496. Power to award limited compensation to defendant for unjustifiable injunction. H.K. Code, s. 18(4.) Appointment of receiver of property in dispute and powers of receiver. H.K. Code, s. 18(1.) Appointment of receiver by way of execution. O. 50 r. 15A. Giving of security by, and salary of, receiver. Ib.r.16. Adjournment of order for receiver into Chambers or giving of security. O. 50 r. 17. Fixing of times for leaving and passing accounts and paying balances. Ib.r.18. Leaving and passing account. Ib.r.20. Proceedings on default made in leaving or passing account, etc. Ib.r.21. Right of appeal from decisions of Judges. No.3 of 1873. Motions for new trial to be heard by the Full Court. Jud. Act, 1890, s. 1. General power to order new trial. H.K. Code, s. 68(1.) Application for new trial. Ib.s.68(2.)-(4.) O. 39 r. 3. Grounds for granting or refusing new trial. H.K. Code, s. 68(7.) O. 39 r. 6. Ib.r.8. Power to order new trial on any one question. Ib.r.7. Power to order non-suit, etc. H.K. Code, s. 65(5.) Order for new trial, etc. Ord. No. 6 of 1855 s. 27. Costs of first trial where new trial ordered. Ib.s. 28. Right to jury on second trial. H.K. Code, s. 68 (5.), (6.) Recording of grant of application for new trial. Ib.s.68(8.) Restriction on right of appeal. 36 & 37 Vict.c. 66 s. 49. Limit of time for appealing from decision, and security for costs. O. 58 r. 15. Appeal to be by re-hearing on motion. O. 58 r. 1. Service of notice of motion for appeal, etc. O. 58 r. 2. Length of notice of motion. Ib.r.3. General powers of the Full Court in hearin appeal. Ib.r.4. Power to order new trial Ib.r.5. Power as to costs. Ib.r.4. Notice of appeal by respondent. Ib.r.6. Length of notice by respondent. O. 58 r. 7. Setting down appeal. Ib.r.8. Evidence on appeal as to question of fact. Ib.r.11. Transcript of proceedings. New. Evidence as to direction of Judge to jury or assessors. O. 58 r. 13. Interlocutory order not to prejudice appeal. Ib.r.14. Stay of proceedings. Ib.r.16. Mode of making incidental application. Ib.r.18. Interest where execution delayed by appeal. O. 58 r. 19. Right of appeal from decisions of the Full Court, and procedure thereon. Counsel in Chambers. O. 55 r. 1A. Course of proceeding in Chambers. Ib.r.37. Entry of summons in Summons Book. Ib.r.38. Determination on originating summons of questions relating to estate of deceased person or to express trust. O. 55 r. 3. Making of order on orginating summons for administration of estate of deceased person or of trust. Ib.r.4. Persons to be served with orginating summons. Ib.r.5. Service on other persons. O. 55 r. 6. Evidence on support of application. Ib.r.7. Judgment upon summons. Ib.r.8. Carriage and service of judgment. Ib.r.9. Right of the Court to refuse to order administration. Ib.r.10. Orders which may be made on application for administration, or execution of trusts, where no accounts or insufficient accounts have been rendered. Ib.r.10A. Interference with discretion of executor, etc. O. 55 r. 12. Application by summons under Trustee Ordinance, 1901. No. 5 of 1901. Ib.r.13A. Application in Chambers for relief relating to charity with annual income exceeding 4300. 16 & 17 Vict.c. 137 s. 28. Persons by whom application relating to charity may be made. 16 & 17 Vict.c. 137 s. 43. Power to Attorney General to apply to the Court under 52 Geo. 3c. 101. Ib. Power to order sale instead of foreclosure of mortgaged property, etc. 44 & 45 Vict.c.41 s. 25. Power to order sale of immovable property generally. O. 51 r. 1. Right of mortgagor in ejectment by mortgagee to pay mortgage money, etc. and to have re-conveyance. 15 & 16 Vict.c. 76 s. 219. Cases excepted from operation of section 643. Ib.s.220. Originating summons for sale, foreclosure, etc. O.55 r. 5A. Persons to be served with summons. O. 55 r. 5B. Power to Judge to obtain assistance of accountant, etc. Ib.r.19. 15 & 16 Vict.c. 80 s. 43. Evidence on application for appointment of guardian and for maintenance. O. 55 r. 25. Appointment of guardian ad litem in proceedings in Chambers. Ib.r.27. Classifying interest of parties. Ib.r.40. Requiring separate solicitor to represent parties. O. 55 r. 41. Attendance of parties not directed to attended. Ib.r.42. Drawing up of order stating parties who have been directed to attend. Ib.r.43. Exclusion of claimants not coming in to prove within time fixed. Ib.r.44. Number of advertisements. Ib.r.45. Advertisement for claimants. Ib.r.46. Schedule: Form No. 46. Advertisement for creditors. Ib.r.46A. Schedule: Form No. 47. Particulars of advertisment. O. 55 r. 47. Non-necessity of affidavit or attendance by creditor. Ib.r.49. Duty of creditor to produce security, if any, and, if required, evidence of debt. Ib.r.50.Effect of creditor refusing to produce security, etc. Ib.r.51. Examination and verification of claims. Ib.r.52. Postponement of affidavit verifying claims. O. 55 r. 53. Adjournment of hearing of claims. Ib.r.54. Adjudication on claims. Ib.r.55. Giving of notice to creditor of claim allowed or not allowed. Ib.r.56. Claims after expiration of time fixed. Ib.r.57. Costs of creditor establishing debt. Ib.r.58. List of claims allowed. Ib.r.59. Service of notice to claimant or creditor. O. 55 r. 61. Computation of interest on debt carrying interest. Ib.r.62. Allowance of interest on debt not carrying interest. Ib.r.63. Interest on legacy. Ib.r.64. Nature of certificate. Ib.r.65. Reference in certificate to judgement, etc. Ib.r.66. Contents of certificate in case of account. O. 55 r. 68. Taking opinion of the Court. Ib.r.69. Effect of certificate. Ib.r.70. Application to discharge or vary certificate. Ib. Power to discharge or vary certificate at any time. Ib.r.71. Further consideration of matter originating in Chambers. Ib.r.72. Keeping of notes of proceedings in Chambers. O. 55 r. 73. Drawing up and entering of order. Ib.r.74. Evidence of order. Ib.r.74A. Delegation of powers and duties. New. Appointment of sittings. H.K. Code, s. 52(2.) General publicity of sittings. Ib.s.52(3.) Order of business at sitting. Ib.s.52(4.) Sealing and filing of documents. H.K. Code, s. 96. Keeping and form of Cause-Book. Ib.s.6. Schedule: Form No. 48. General power of adjournment. Ib.s.90. O. 36 r. 34. Power to allow income of property pendente lite. O. 50 r. 9. Increase or lessening of statutory allowances. Ord. No. 3 of 1858 s. 10. Proceedings for limiting shipowner's responsibility. 57 & 58 Vict.c. 60. Ord. No. 5 of 1856 s. 5. Effect of non-compliance with the Code, etc. O. 70 r. 1. Time for applying to set aside proceeding for irregularity. Ib.r.2. Statement of grounds of application. Ib.r.3. Costs on dismissal of summons to set aside proceeding. Ib.r.4. Power to enlarge or abridge time for doing act or taking proceeding. H.K. Code, s. 92. Enlargement of time by consent. O. 64 r. 8. Rules for computation of time limited for doing act or taking proceeding. H.K. Code, s. 93. No. 5 of 1898. Appointment, powers etc., of Commissioners for Oaths. 16 & 17 Vict.c. 78 ss. 1-5 and 52 & 53 Vict.c. 10 s. 1. Powers of certain officers of the Court, etc., to administer oaths. 52 & 53 Vict.c. 10 s. 2. Application for leave to issue writ of attachment. O. 44 r. 2. Effect of writ of attachment. IB.r.1. Limited privilege of judicial officer from arrest. Indian Code, s. 642. Saving of certain provisions of 8 & 9 Will. 3 c. 11. Ord. No. 6 of 1855 s. 81. General mode of publishing notice. H.K. Code, s. 97. Use of forms. Schedule. Ib.s.98. Application of the Code to pending causes and matters. R.S.C. ad init. Section 709. Section 7. App. A, Part I, Form 1. 1 State con-concisely the nature of the claim. 2 Mention the city, town, or village, and also the name of the street and number of the house, if any. Section 19. App. A, Part I, Form 2. 1 State concisely the nature of the claim. 2 Mention the city, town or village, and also the name of the street and number of the house, if any. Section 26. App. K, Form 1A. 1 If the question to be determined arises in the administration of an estate or a trust, entitle it also in the matter of the estate or trust. 2 State concisely the nature of the claim. 3 State the questions. Section 26. App. K, Form 1B. 1 State the object of the application. Section 26. App. K, Form 1H. 1 State the object of the application. Section 29. App. K, Form 1F. 1 Insert the name of the defendant or respondent. Section 42. App. A, Part I, Form 5. 1 Insert the number of days directed by the Court. 1 State concisely the nature of the claim. 2 Mention the city, town, or village, and also the name of the street and number of the house, if any. Section 42. App. A, Part I, Form 6. 1 Insert the number of days directed by the Court. 1 State concisely the nature of the claim. 2 Insert the number of day directed by the Court. 3 Mention the city, town, or village, and also the name of the street and number of the house, if any. Section 46. App. A, Part II, Form 1. Section 70. App. A, Part II, Form 8. Section 81. App. G, Form 28. Section 85. App. B, Part II, Form 1. Section 89. App. K, Form 4 E. Section 90. App. K, Form 4 F. 1 Mention the Judge. Section 135. App. E, Sec. II. Section 143. App. E, Sec. II. Section 163. App. E, Sec. II. Section 168. App. E, Sec. II. Section 174. App. E, Sec. III. Section 188. App. B, Sec. II. Form 6. Section 192. App. B, Sec. II. Form 7. Section 196. App. B, Part II, Form 8. Section 233. App. G, Form 25. Section 243. App. B, Part II. Form 18. 1 State the object of the motion. Section 259. 1 State the object of the application. Section 259. 1 State the object of the application. Section 261. App. K, Form 2. 1 Mention the Judge. 2 State the nature of the order. Section 387. Section 396. 1 Describe the property and its situation. Section 399. Section 400. 1 Describe the property. Section 401. 1 Describe the particular immovable property and its situation. Section 412. App. B, Part II. Form 25. 1 Insert name, address, and description of garnishee. Section 412. App. K, Form 39. 1 Mention the Judge. Section 415. App. K, Form 40. 1 Mention the Judge. Section 443. 1 Mention the Judge. Section 443. Section 453. Section 455. Section 526. App. B, Part II, Form 26. 1 'is' or 'are.' 2 If the claim is in writing, make in writing an exhibit. 3 State expectation of suit, or that he has already sued. Section 567. Section 567. Section 568. Section 568. Section 578. Section 656. App. L, Form 2. Section 65 App. L, Form 3.