Description
ORDINANCE No. 6 or 1855.
Common Lato Procedure.
No. 6 of 186.
An Ordinance for the Amendment of the Civil Administration
of Justice.
[25'th August, 1855.1
WHEREAS it is expedient that the practice and procedure of the
Supreme Court should be amended, and that certain provisions
of 'Tlae Common Law Procedure Act, 1852,' and °` The Common Lazo
Procedure Act, 1854,' be adopted: Be it therefore enacted and ordained
by His Excellency the Governor of Ijonnkona, with the advice of the
Legislative Council thereof, as follows
Trial without Jury.-Arbilration.
1. The parties to guy cause may, by consent in writing, signed by Court
»lay>uy
couseni., try
them or their attornies or agents, as the case may be, leave the decision
questions of
of any issue of fact to the Court, provided that the Court, upon a rule
to fact.
show cause, shall, in its discretion, think fit to allow such trial; and
such
issue of fact may thereupon be tried and determined, and damages
assessed where necessary, in open Court, either in term or vacation, by
the Court; and the verdict of such Court shall be of the same effect as
the verdict of a jury, save that it shall not be questioned upon the
ground
of being against the wei,;ht of evidence; and the proceedings upon and
Title.
See 0-1-d. ~Yo,
' qf xSS6, nnn
o>u.'.IMo. M of
rsaa.]
l'tcgmplo.
1:> c, 16
Viet. c. ili.
17 & 18
Viet. c. tab.
after such trial, as to the power of the Court, the evidence, and other-
wise, shall be the same as in the case of trial by jury.
2. If it be made appear, at any tune after the issuing of a writ,
no
Court to
(commencement of action,) to the satisfaction of the Court, upon the
direct
arbitration
application of either party, that the matter in dispute consists wholly
or before trial.,
in part of matters of mere account which cannot conveniently be tried
in the ordinary -way, it shall be lawful for such Court, upon such appli-
cation, if it think fit, to decide such hatter in a summary manner, or to
order that such matter, either wholly or in part, be referred to an arbi-
trator appointed by the parties, or to an officer of the Court, upon such -
terms as to costs and otherwise as such Court shall think reasonable; and
the decision or order of such Court, or the award or certificate of such
referee, shall be enforceable by the same process as the finding of a jury
upon the matter referred.
. ` 3: If it shall appear to the Court that the allowance or disallowance
of any particular item or items in such account depends upon a question
of law fit to be decided by the Court, or upon a question of fact fit to
be
Special case
may be
stated, find
question of
fact tried.
oRDZNANCE.No. s oF 1855.
Common Law Procedure.
decided by a jury, or by the Court upon the consent of both parties as
hereinbefore provided, it shall be lawful for such Court to direct a case
to be stated, or an issue or issues to be tried ; and the decision of the
Court upon such case and the finding of the jury or Court upon such: _
issue or issues, shall be taken and acted on by the arbitrator as
conclu-:.
live.
Arbitrator 4. It shall be lawful for the arbitrator upon any compulsory
refer-
may state
special case. ence as hereinbefure provided, or upon any reference by
consent of par.
ties where the submission is or may be made a rule of Court, if he shall
think fit, and if it is not provided to the contrary, to state his award,
as
to the whole or any part thereof, in the form of a special case for the
opi-
nion of the Court, and when an action is referred, judgment, if so
ordered,
may be entered according to the opinion of the Court.
Power to
Court to
direct
arbitration, at
time of trial,
when. issues of
fact are left
to its decision.
Proceedings
before and
pnhyEr of snElt
arbitrator,
15, If upon the trial o£ any issue of fact by the Court, it shall appear
to the Court that the questions arising thereon involve matter of account
which cannot conveniently be tried before it, it shall be lawful for it,
at,
its discretion, to order that such matter of account be referred to an ar-
bitrator appointed by the parties, or to an officer of the Court, upon
such
terms as to costs, and otherwise, as such Court shall think reasonable;
and the award or certificate of such referee shall have the same effect
as-.
hereinbefore provided as to the award or certificate of a referee before
trial; and it shall be competent for the Court to proceed to try and dis--
pose of any other matter in question, not referred, in like manner as if
no reference had been made.
6. The proceedings upon 'any such arbitration as aforesaid shall,
except otherwise directed hereby, or by the submission or document au--
thorizing the reference, be conducted in like manner, and subject to the.
same rules and enactments, as to the power of the arbitrator, and of the,
Court, the attendance of witnesses, the production of documents, enfor-`
cin; or setting aside the award, and otherwise, as upon a reference m`ade°
by consent under a rule of Court or Judge's order.
7. In any case where reference shall be made to arbitration 'as:
Power to send
back to
arbitrator. aforesaid, the Court shall have power at any time, and from,
time to time,
to remit the matters referred, or any or either of them, to the
reconsider-
ation and redetermination of the said arbitrator, upon such terms as to
:hosts-
and otherwise, as to the said Court may seem proper.
ORDINANCE No. 6 of 1855.
Common Law Procedure.
$. All applications to set aside any award made on a compulsory
reference hereinbefore provided for, shall and may be made within the
first seven days of the term nest following the publication of the award
to the parties, whether made in vacation or term ;and if no such
application
is made, or if no rule is granted thereon, or if any rule granted thereon
is
afterwards discharged, such award shall be final between the parties.
Application
to set aside
the ward.
fSe Ord.
s qt rsss
s. i.]
9. Any award made on a compulsory reference hereinbefore provided
Enforcing
award within
for, by the authority of the Court, on such terms as to it may seem
period for
reasonable, may be enforced at any time after seven days from the time
agiae.
of publication, notwithstanding that the time for moving to set it aside
has not elapsed.
10. Whenever the parties to any deed or instrument in writing to
be hereafter made or executed, or any of them, shall agree that any then
existing or future differences between them or any of them shall be
referred to arbitration and any one or more of the parties so agreeing, or
any person or persons claiming through or under him or them, shall
nevertheless commence any action at law or suit. in equity against the
other party or parties, or any of them, or against any person or persons
claiminD through or under him or them in respect of the matters so agreed
to be referred, or any of them, it shall be lawful for the Court, on
appli-
cation by the defendant or defendants, or any of them, after appearance
and before plea or answer, upon being satisfied that no sufficient reason
exists why such matters cannot be or ought not to be referred to arbitra-
tion according to slick agreement as aforesaid, and that the defendant was
at the time of the bring inn of such action or suit, and still is, ready
and
willing to join and concur in all acts necessary and proper for causing
such matters so to be decided by arbitration, to make a rule or order
staying all proceedings in such action or suit, on such terms as to costs
and otherwise as to such Court may seem fit; provided always, that any
such rule or order may at any time afterwards be discharged or varied as
justice may require.
11. If, in any case of arbitration, the document authorizing the re-
ference provide that the reference shall be to a single arbitrator, and
all
the parties do not, after differences have arisen, concur in the appoint-
ment of an arbitrator; or if any appointed arbitrator refuse to act, or
become incapable of acting, or die, and the ternis of such document do
not sherv that it was intended that such vacancy should not be supplied,
If action
commenced
by one party
after all have-
agreed to
arbitration,
Court may
stay procecd-
ings.
On failure of
parties or
arbitrators;
Court may -
appointsingle.
arbitrator or
umpire.
ORDINANCE `No. 6 of 1855.
Common Lazv Procedure.
When
reference is
to two arbi-
trators, and
tine party fail
to appoint,
ather party
may appoint
.arbitrator to
net Mne.
'fwo arbitra-
tors may
.rtpi3oittt
1ttttPire.
and the parties do not concur in appointing a new one; or if where the
parties or two arbitrators are at liberty to appoint an umpire or third
ar-
bitrator, such parties or arbitrators do not appoint an umpire or third
arbitrator; or if any appointed umpire or third arbitrator refuse to act,
or
become incapable of acting, or die, and the terms of the document author-
izing the reference do not skew that it was intended that such a vacancy
should not be supplied, and the parties or arbitrators respectively do not
appoint a new one; then in every such instance, any party may serve
the remaining parties or the arbitrators, as the case may be, with a
written notice to appoint an arbitrator, umpire, or third arbitrator
respect-
ively; and if within seven clear days after such notice shall have been
served, no arbitrator, umpire, or third arbitrator be appointed, it shall
be
lawful for the Court, upon summons to be taken out by the party having
served such notice as aforesaid, to appoint an arbitrator, umpire, or
third
arbitrator, as the case may be, and such arbitrator, umpire, and third
arbitrator respectively shall have the like power to act in the reference
and
make, an award as if he had been appointed by consent of all parties.
12. When the reference is, or is intended to be,, to two arbitrators,
one appointed by each party, it shall be lawful for either party, in the
case
of the death, refusal to act, or incapacity of any arbitrator appointed by
him, to substitute a new arbitrator, unless the document authorizing the
reference show that it was intended that the vacancy should not be
supplied;
and i£ on such a reference one party fail to appoint an' arbitrator,
either
originally or by way of substitution as aforesaid, for seven clear days
after
the other party shall have appointed an arbitrator, and shall have served
the party so failing to appoint with notice in writing to make the
appoint-
ment, the party who has appointed an arbitrator may appoint such arbi-
trator to act as sole arbitrator in the reference and an award made by him
shall be binding on both parties, as if tile appointment had been by con-,
sent; provided, however, that the Court inlay revoke such appointment, on
such terms as shall seem just.
13.' When the reference is to two arbitrators, and the terms of the
document authorizing it do not show that it was intended that there
--sbould
not be an umpire, or provide otherwise for the appointment of an mnpire,
the two arbitrators may appoint au umpire at any time within the period
during which they have power to make an award, unless they be=called
upon by notice as aforesaid to make the appointment sooner.
ORDINANCE:-NO. 6 or 185.5.
Common Law Procedure.
14. The arbitrator acting under any such document or compulsory
order or reference as aforesaid, or -under any order referring the award
back, shall make his award under his hand, and (unless such document
or order respectively shall contain a different limit of time) within
three
rnontbs after he shall have been appointed, and shall have entered on the
reference, or shall have been called upon to act by a notice in writing
from any party; but the parties may by consent in writing enlarge the
term for making the award; and it shall be lawful for the Court for good
cause to be stated in the rule or order for enlargement, from time to time
to enlarge the term for making the award; and if no period be stated for
the enlargement in such consent or order for enlargement, it shall be
deemed
to be an enlargement for one month; and in any case where an umpire shall
have been appointed, it shall be lawful for him to enter on the reference
in lieu of the arbitrators, if the latter shall have allowed their time
or their
extended time to expire without making an award, or shall have deliver-
ed to any party, or to the umpire, a notice in writing stating that they
cannot agree.
15. When any award made on such submission, document, or order
of reference as aforesaid, directs that possession of any lands or
tenements
capable of being the subject of an action of ejectment shall be delivered
to any party, either forthwith or at any future time, or that any such
party
is entitled to the possession of any such lands or tenements, .it shall be
lawful for the Court to order any party to the reference who shall be in
possession of any such lands or tenements, or any person in possession of
the same claiming under or put in possession by him since the making of
the document authorizing the reference, to deliver possession of the same
to the party entitled thereto, pursuant to the award, and such rule or
order to deliver possession shall have the effect of a judgment in
ejectment
against every such party or person named in it, and execution may issue,
and, possession shall be delivered by the sheriff as on a judgment in
ej ectrnent.
16. Every agreement or submission to arbitration by consent,
whether by deed or instrument in writing not under seal, may be made
a rule of Court, on the application of any party thereto, unless such
agreement or submission contain words purporting that the parties intend
that it should not be made a rule of Court.
Award to be
made in three
months unless,
parties or
Court enlaraE
time.
Rule to
deliver poases-
lion of land
pursuant to
award, to be
enforced as a
judgment ill
ejectment.
Agreement- or,
submission': iii.
writing may
.
be made role.
of Court, uxr- -
less a contial~y'
intention
appear.
'rower to
adjourn trial.
Affirmation
instead of oath
-to certain cases.
1j rd. No. 2 of
8
Sfalemcet
Instead of oath
by Chinese.
i See Ord, So. 2 qr
lsooj
Persons making
a false affirma-
tion or state-
ment, subject to
same punish-
ment as for por-
Jury.
[.See Ord, No. 2 of
186011
How far a laity
way tliscrodit
his own witness.
[Ezreir<led to
criminal cases Gry
Ordinaiace :fo. 5
of x850.]
ORDINANCE ` No. 6 of 1835.
Common Law Procedure.
Trial.
17. It shall be lawful for the Court, at the trial of any cause where
it may deem it right for the purpose of justice, to order an adjournment
fur such time, and subject to such terms and conditions as to costs, and
otherwise, as the said Court may think fit.
18. If any person, not being a native of China, called as a witness, or
required or
desiring to make an affidavit or deposition, shall refuse, or be
unwilling from alleged
conscientious motives, to be sworn, it shall be lawful for the Court or
other presiding
officer, or person qualified to take affidavits or depositions, upon
being satisfied of the
sincerity of such objection, to permit such person, instead of being
sworn, to make his
or her solemn affirmation or declaration in the words following;
videlicet.
I A. B., do solemnly, sincerely, and truly affirm and declare, that the
taking
of any oath is, according to my religious belief, unlawful; and I do
solemnly, sincerely, and truly affirm and declare, &c.'
which solemn affirmation and declaration shall be of the same force and
effect as if
such person had taken an oath in the usual form. [Repealed by Ordinance
No. 2 of
z889.]
19. If any person, being a native of China, called as a witness, or
required or
desiring to make an affidavit or deposition, shall refuse or be unwilling
to be sworn, it
shall be lawful for the Court or other presiding officer, or person
qualified to take
affidavits or depositions, if it or ho shall think fit, after having duly
cautioned or
caused to be cautioned him or her to speak the truth, to permit such
person, instead of
being sworn, to make his or her statement, which statement shall be of
the same force
and effect as if such person had taken an oath in the usual form.
[Repealed by
Ordinance No. 2 of 1889.]
20. If any person, not being a native of China, making such solemn
affirmation
or declaration, or if any person, being a native of China, making such
statement, shall
wilfully, falsely and corruptly affirm, declare, or state any matter or
thing which, if the
same had been swore in the usual form, would have amounted to wilful and
corrupt
perjury, every such person so offending shall incur the same penalties as
by the laws
and ordinances of this Colony are or may be enacted or.provided against
persons
convicted of wilful and corrupt perjury. [Repealed by Ordinance No. 2 of
1889.E
Witnesses.
21. A party producing a witness shall not be allowed to impeach his
credit by
general evidence of bad character, but he may, in case the witness shall
in the opinion
of the Court prove adverse, contradict him by other evidence, or by leave
of the Court
prove that he has made at other times a statement inconsistent with his
present
testimony; but before such last mentioned proof can be given, the
circumstances of the
supposed statement, sufficient to designate the particular occasion, must
be mentioned
to the witness, and he must be asked whether or not he bas made such
statement.
[Repealed by Ordinance No. 2 of 1889.1
ORDINANCE -No. G or 1855.
Common Law Procedure.
22. If a witness, civil or criminal, upon cross-examination as to a
former statement
made by him relative to the subject matter of the cause, and inconsistent
with his
present testimony, does not distinctly admit that he has made such
statement, proof
may be given that lie did in fact make it; but before such proof can be
given, the
.circumstances of the supposed statement, sufficient to designate the
particular occasion,
must be mentioned to the witness, and he must be asked whether or not he
has made
-such statement. [Repealed by Ordinance No. 2 of 1889. j
23. A witness may be cross-examined as to previous statements made by him
in
writing or reduced into writing, relative to the subject matter of the
cause, without
such writing being shown to him ; but if it is intended to contradict
such witness by
the writing, his attention must, before such contradictory proof can be
given, be called
to those parts of the writing which are to be used for the purpose of so
contradicting
him: Provided always, that it shall be competent for the Court, at any
time during
the trial, to require the production of the writing for its inspection,
and the said Court
may thereupon make such use of it for the purposes of the trial as it
shall think fit.
.Repealed by Ordinance No. Q of 1889.]
2¢. A witness in any cause may be questioned as to whether he has been
convicted
of any felony or misdemeanor, and, upon being so questioned, if be either
denies the
fact, or refuses to answer, it shall be lawful for the opposite party to
prove such
conviction ; and a certificate containing the substance and effect only
(omitting the
formal part) of the indictment and conviction for such offence,
purporting to be signed
by the clerk of the Court, or other officer having; the custody of the
records of the Court
where, the offender was convicted, or by the deputy of such clerk or
officer, shall, upon
proof of the identity of the person, be sufficient evidence of the said
conviction,
without proof of the signature or official character of the person
appearing to have
signed the same. [Repealed by Ordinance No. 2 of 1889.]
25. It shall not be necessary to prove by the attesting witness any
instrument to
the validity of which attestation is not requisite ; and such instrument
may be proved
by admission, or otherwise, as if there bad been no attesting witness
thereto. [Repealed
-by Ordinance No. 2 of 1889.
26. Comparison of a disputed writing with any writing proved to the
satisfaction
of the Court to be genuine shall be permitted to be made by witnesses;
and such
writings, and the evidence of witnesses respecting the same, may be
submitted to the
Court and jury as evidence of the genuineness, or otherwise, of the
writing in dispute.
[Repealed by Ordinance No. 2 of 1889.]
27. In every rule nisi for a new, trial, or to enter a verdict or
non- GloLiilato
be stated in
suit, the grounds upon which such rule shall have been granted shall
be r,Llenisifor
new trial.
shortly stated therein. tEa~tended as
abovc.J
2$. When a new trial is granted on the ground that the verdict Payment of
costs upon
was against evidence, the cost of the first trial shall abide the
event, new trial oil
matter of .
unless the Court shall otherwise order. facts.
[lfxtended a*
above.]
Proof of contra-
dictory xtate-
ments of adverse
witness.
[k,ctended as
above.)
Cross-examina-
tion as to pre-
vious statewents.
in writing.
[Extended as
above.]
1'reof of iwecionx
conviction of a
witness nmy 1>0
given.
[T.xrended as
above.)
Attesting
witness neod not
Lo called, except
in certain case..
[-Extended as
above.]
Comparison of
disputed ivritiiiX.
[Extended as
above.]
ORDINANCIJ~ No. G of 185-5.
Common Law Procedure.
Motions, ~c.
AffiaavitH on, 29. Upon motions founded upon affidavits, it shall be
lawful for -
new matter.
lExtandea a$ either party, with leave of the Court, to make affidavits in
answer to the -
affidavits of the opposite party, upon any new matter arising out of such
affidavits, subject to all such rules as shall hereafter be made
respecting.
such affidavits.
Power to
colut to
direct oral
examinations
of witnesses.
[Extended as
above.]
Proceedings
before and
npon such
examination.
[1'4v. 4, 0.22.;
tr,xaaxiination
of Pei-on who
refuses to
make an
affidavit.
30. Upon the hearing of any motion or summons, it shall be lawful
for the Court, at its discretion and upon such terms as it shall think
rea-
sonable; from time to time to order such documents as it may think fit
to be produced, and such witnesses it may think necessary to appear,.
and be examined viz,c2 voce, either before such Court or before the Re-
gistrar,: and upon hearing such evidence; or reading the report of such
Registrar, to make such rule or order as may be just.
$i. The Court may, by such rule or order, or any subsequent rule
or order, command the attendance of the witnesses named therein, for the
purpose o£ being examined, or the production of any writings or other
documents to be mentioned in such rule or order; and such rule or order-
shall be proceeded upon In the same manner, and shall have the same
force and effect, as a rule of Court under an Act passed in the first
year -
of the reign of Hislate Majesty King William the Fourth, intituled' An Act
to enable Courts of Law to order the examination of Witnesses upon Inter-
rogatories or otherwise;' and it shall be lawful for the Court or
Reaistrar-
to adjourn the examination from time to time as occasion may require
and the proceedings -upon such examination shall be conducted and the
depositions taken down, as nearly as may be in the mode nosy in use~
with respect to the viva voce examination of witnesses under the said Act.
32. Any party to any civil action or other civil proceeding in Court
requiring the affidavit of a person who refuses to maize an affidavit,,may
apply by summons for an order-to such person to appear and be examined.
upon oath before the Court or Registrar, to whom it may be most con-
venient to refer such examination, as to the matters concerning which he
has refused to make an affidavit ; and the Court may, if it think fit,
make
such order for the attendance of such person before the person therein
appointed to take such examination, for the purpose of being examined,
as aforesaid, and for the production of any writings or documents to bee
mentioned in such order, and may thereupon impose such terms as to,
such examination, and the costs of the application and proceedings there-
in, as it shall think just.
ORDINANCE ho. 6 of 1854.
Common Law Procedure.
33. Such order shall be proceeded upon in like manner as an order
made under the hereinbefore mentioned Act passed in the first year of
the reign of his late Majesty King William the Fourth, and the elami-
~nation thereon shall be conducted, and the depositions taken down and
returned, as nearly as may be in the mode now used on vivc2 voce ez-
.aminations under the said Act of Parliament.
34. Upon the application of either party to any cause or other civil
proceeding in Court, upon an affidavit of such party of his belief that
any
document, to the production of which lie is entitled for the purpose of
-discovery or otherwise, is in the possession or power of the opposite
party,
-it shall be lawful for the Court to order that the party against whom
such application is, made, or if such party is a body corporate, that some
-officer to be named of such body corporate, shall answer on affidavit,
stating what documents he or they has or have in his or their possession
or poorer relating to the matters in dispute, or what he knows as to the
custody they or any of them are in, and whether he or they objects or
object (and if so on what grounds,) to the production of such as are in
his or their possession or power; and upon such affidavit being made, the
-Court inay make such further order thereon as shall be just.
36. In all causes in Court, by order of the Court, the plaintiff may
with the declaration, and the defendant may with the plea, or either of
them by leave of the Court may, at any other time, deliver to the opposite
party or his attorney, ( provided such party, if not a body corporate,
would be liable to be called and examined as a witness upon such matter,)
interrogatories in writing upon any matter as to which discovery may be
sought, and require such party, or in the case of a body corporate any of
,.the officers of such body corporate, within ten days to answer the
questions
in writing by affidavit, to be sworn and filed in the ordinary way; and
.any party or officer omitting, without just cause, sufficiently to answer
.all questions as to which a, discovery may be sought within the above
time, or such extended time as the Court shall allow, shall be deemed to
have committed a contempt of the Court, and shall be liable to be
.;proceeded against accordingly.
36. The application for such order shall be made upon an affidavit
-of the party proposing to interrogate, and his attorney or agent, or in
the
ease of a body corporate, of their attorney or agent, stating that the
-deponents or deponent believe or believes that the party proposing to
Proceedings
upon order
for eaamipA-
tion.
Discovery o£
documents.
Power to
deliver
written
interrogato-
TieS to 0r>
posite party.
Affidavits br-,
posing to,-; -,
interrogate --
and his
-
attorney.
Oral exami-
nation of
parties, when
to he allowed,
DGl)Ofi1t16T)S
upon such
examination
to be returned
to Registrar's
office.
Ic w. a, c. 22.E
Examiner to
make report
to tl:e Court,
ORDINANCE No. 6 of 1855.
Common Law Procedure.
interrogate, whether plaintiff or defendant, will derive material benefit
in
the cause from the discovery which he seeks, that there is a hood cause
o£ action or defence upon the merits, and, if the application be made on.
the part of the defendant, that the discovery is not sought for the
purpose
of delay; provided that where it shall happen, from unavoidable=
circumstances, that the plaintiff or defendant cannot join in such
affidavit,.
the Court may, if it think fit, upon affidavit of such circumstances by
which..
the party is prevented from so joining therein, allow and order that the
interrobatories may be delivered without such affidavit.
3'J. In case of omission, without just cause, to answer sufficiently-
such written interrogatories, it shall be lawful for the Court, at its
discre-
tion, to direct an oral examination of the interrogated party, as to such
point as they or he may direct, before the Court or Registrar; and the
Court may, by such rule or order, or any subsequent rule or order, com-
mand the attendance of such party or parties before the person appointed
to take such examination, for the purpose of being orally examined as
aforesaid, or the production of any writings or other documents to be~
mentioned in such rule or order, and may impose therein such terms.as
to such examination, and the costs of the application, and of the proceed-
ings thereon, and otherwise, as to such Court shall seem just.
Proceedings $$. Such rule or order shall have the same force and effect,
and may
upon such
rule or order. be proceeded upon in like manner, as an order made under
the said here--
inbefore mentioned Act passed in the first year of the reign of His late-
Majesty King William the Fourth.
39. Whenever, by virtue of this Ordinance, an examination of any
witness or witnesses has been taken before the Court or before the Regis-
trar, the depositions taken down by such examiner shall be returned to-
and kept in the Registrar's office of the Court; and office copies of such
depositions may be given out, and the depositions may be otherwise used,
in the same manner as in the case of depositions taken under the herein-
before mentioned Act passed in the first year of the reign of His late Ma-
jesty Kin,; William the Fourth.
40. It shall be lawful for the Registrar named in any such rule or-
order as aforesaid for taking examinations under this Ordinance, and be,
is hereby required to make, if need be, a special report to the Court
touch-
in; such examination, and the conduct or absence of any witness or other-
person thereon or relating thereto; and the Court is hereby authorized to~
ORDINANCE No. G of 1845.
Common Law 1'roeedure.
institute such' proceedings and make such order and orders upon .such
report as justice may require, and as may be instituted and made in any
case of contempt of the Court.
41. The costs of every application for any rule or order to be made
for the examination of witnesses by virtue of this Ordinance, and of the
rule or order and proceedings thereon, shall be in the discretion of the
Court.
Jury.
42. Either party shall be at liberty to apply to the Court or Judge
zngpeeti'n
by jury, by
for a rule or order for the inspection by the jury. or by himself or by
his 1>~rtieq, or by
witnesses, of any real or personal property, the inspection of which may
~''t'°'Se~.
be material to the proper determination of the question in dispute; and
it shall be lawful for the Court, if it think fit, to make such rule or
order
upon such terms as to costs arid otherwise as such Court may direct.
[Extended to criminal cases by Ordinance No. 5 of 1856.]
43. It shall be lawful for the Court to make such rules or orders
upon the sheriff or other person as may be necessary to procure the at-
tendance of a special or common jury for the trial of any cause or matter
depending in such Court, at such time and place and in such manner as
the said Court may think fit. (Extended as in last section.
Revivor.
44. With respect to proceedings for the revival of ,judgments and
Proceedings
other proceedings by and against persons not parties to the record, it
shall t° revive.
be lawful that during the lives of the parties to a judgment, or those of
them during whose lives execution may at present issue within a year
and a day, without a scire facias, and within six years from the recovery
of the judgment, execution may issue without a revival of the judgment.
45. In cases where it shall become necessary to revive a judgment
iud;rneut to
be received
by reason either of lapse of time or of a change by death or otherwise of
by suggestion.
the parties entitled or liable to execution, the party alleging himself to
be entitled to execution may either sue out a writ of revivor in the form
hereinafter mentioned, or apply to the Court for leave to enter a
suggestion,
upon the roll to the effect that it manifestly appears to the Court that
such
party is entitled to have execution of the judgment and to issue execution
thereupon, such leave to be granted by the Court upon a rule to shew
cause, and which rule may .be in the form to this -Ordinance annexed
marked r1.,
The costs of
rule and exa-
mination to be
in discretion
of the Court.
Rule or order
for sum-
nioning jury.
Writ of
revivor, and
proceedings
thereunder.
Writs of .sa-imc
Jicaiua.
[$ae,yw.a,
c. 11.1
Notice.
Writ of
revLvor bow
procured.
ORDINANCE No. 6 of 1855.
Common Law Procedure.
~,pvlioatson 46. Upon such application, in case it manifestly appears that
the
fa'sugges-
party making the same is entitled to execution, the Court shall allow
such suaestion as aforesaid to be entered in the form to this Ordinance
annexed marked B, and execution to issue thereupon, and shall order
whether or not the costs of such application shall be paid to the party
making the same, and in case it does not manifestly so appear, the Court
shall discharge the rule with or without costs: Provided nevertheless,
that in such last mentioned case, the party making such application shall.
be at liberty to proceed by writ or revivor or action upon the judgment.
47. The writ of revivor shall be directed to the party called upon
to show cause why execution should not be awarded, and shall bear teste
on the day of its issuing; and after reciting the reason why such writ
has become necessary, it shall call upon the party to w horn it is
directed
to appear within eight days after service thereof in the Supreme Court.
to show cause why the party at whose instance such writ has been issued
should not have execution against the party to whom such writ is directed,
and it shall hive notice that, in default of appearance, the party issuing
such Writ may proceed to execution; and such writ may be in the form
C, to this Ordinance annexed, and may be served and otherwise proceeded
upon, whether in term or vacation, in the same manner as a writ of sum-
mons, and the pleadings and proceedings upon such writ and the rights of
the parties respectively to costs shall be the same as in an ordinary
action.
48. All writs of scire fczcias issued out of the Supreme Court against
bail on a recognizance; against members of a joint stock company or other
body, upon a judgment recorded against a public officer or other person
sued as representing such company or body, or against such company or
body itself; by or against a husband to have execution of judgment for or
against a Wife; for restitution after reversal or appeal ; upon suggestion
of further breaches after judgment for any penal sum, pursuant to the
Statute passed in tile Session of Parliament held in the eighth and ninth
years of the reign of His late Majesty Ding William the Third, entitled
'An Act for the better preventing frivolous and vexatious ,suits' shall
be tested, directed, and proceeded upon, in like manner as writs of
revivor.
49. Notice in writing to the plaintiff, his attorney or agent, shall
be sufficient appearance to a writ of revivor.
50. A writ of revivor to revive a judgmelit less than ten years old
shall be allowed without any rule or order; if more than ten years olds
ORDINANCE \'o. G of 1855.
Common Law Procedzere.
not without a rule of Court or Judge's order; nor if more than fifteen,
without a rule to show cause.
Judgment Debtors.
51. It shall be lawful for any creditor who has obtained a judgment
in the Supreme Court, to apply to the said Court for a rule or order that
the judgment debtor should be orally examined as to any. and what debts
are owing to hint, before the Registrar of the said Court, or such other
person as the said Court shall appoint; and the said Court shall make
such rule or order for the examination of such judgment debtor, and for
the production of any books or documents, and the examination shall be
conducted in the same manner, as in the case of an oral examination of
an opposite party before the Registrar under this Ordinance.
52. It shall be lawful for the said Court, upon the ex pane appli-
cation of such judjment creditor, either before or after such oral examin-
ation, and upon affidavit by himself or his attorney stating that judgment
had been recovered, and that it is still unsatisfied, and to what amount,
and that any other person is indebted to the judgment debtor, and is
within the jurisdiction of the Court, to order that all debts owing or
accruing from such third person (hereinafter called garnishee) to the
jndbment debtor, shall be attached to answer the judgment debt ; and by
the same, or any subsequent order, it may be ordered that the garnishee
shall appear before the Court or Registrar, as the Court shall appoint, to
shew cause why he should not pay the judgment creditor the debt due
from him to the judgment debtor, or so much thereof as may be sufficient
to satisfy the judgment debt.
Examination
of judgment
debtor as to
debts due to
him.
Court, m
order an
attachment
of debts.
53. Service of an order that debts due or accruing, to the j udgment
order for
debtor shall be attached, on notice thereof to the garnishee, in such
manner . attachment to
bind debts.
as.the Court shall direct, shall bind such debts in his hands.
54. If the garnishee does not forthwith pay into Court the amount
due from him to the judgment debtor, or an amount equal to the j udbment
debt, and does not dispute the debt due or claimed to be due from him to
the judgment debtor, or if he does not appear upon summons, then this
Court may order execution to issue, and it may be sued forth accordingly,
without any previous writ or process, to levy the amount due from such
garnishee towards satisfaction of the judgment debt.
Proceedings
to levy
amount due
from garni-
shee to
judgment
debtor. -
Action for
mandamxs to
enforce the
performance
of, duties.
ORDINANCE No.' 6 or 1855.
Common Law Procedure.
-Cnurt may
allow judg- 55, If the garnishee disputes his liability, the Court,
instead of
rnent creditor making an order that execution shall issue, may order that
the judgment
to sue garni-
shee. creditor shall be at liberty to proceed against the garnishee by
writ,
calling upon him to spew cause why there should not be execution against
trim for the alleged debt, or for the amount due to the judgment debtor,
if less than the judgment debt, and for cost of suit; and the proceedings
on such suit shall be the same, as nearly as may be, as upon a writ of
revivor.
Garnishee fig, Payment made by or execution levied upon the garnishee under
.discharged.
any such proceeding as aforesaid shall be a valid discharge to him as
against the judgment debtor to the amount paid or levied, although such
proceeding may be set aside or the judgment reversed.
Attachment 5'J, There shall be kept in the Registrar's office a Debt
Attachment
book to be
kept by the Book, and in such book entries shall be made of the attachment
and
Registrar.
proceedings thereon, with names, dates, and statements of the amount
recovered and otherwise; and copies of any entries made therein may be
taken by any person, upon application to the Registrar.
,Costs of 5$, '1.'he costs of any application for an attachment of debt
under
application. this Ordinance, and of any proceedings arising from or
incidental to such
application, shall be in the discretion of the Court.
59. The plaintiff in any action, (except replevin and ejectment)
may endorse upon the writ and copy to be served, a notice that the
plaintiff intends to claim a writ of rnandainzt,s, and the plaintiff may
thereupon claim in the declaration, either together with any other demand
which may now be enforced in such action, or separately, a writ of manda-
rrau.s commanding the defendant to fulfil any duty in the fulfilment of
which
tire plaintiff is personally interested.
Declaration 60. The declaration in such action shall set forth sufficient
grounds
in action for
->r~andar~t~s. . upon which such claim is founded, and shall set forth
that the plaintiff
is personally interested 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 neglected.
61. The pleadings and other proceedings in any action in which a
Proceedings
upon claim
for -Iytanda- writ of mandamus is claimed shall be the same in all
respects,. as nearly
vans.
as may be, and costs shall be recoverable by either party, as in an
ordinary
action for the recovery of damages.
ORDINANCE No. 6or 1855.
Common Law Procedure.
62. In case judgment shall be given to the plaintiff that a mandamus
auag,net
and execu-
do issue, it shall be lawful for the Court, if it shall see fit, besides
issuing tun.
execution in the ordinary way for the costs and damages, also to issue a
peremptory writ of an.andaanus to the defendant, commanding him forth-
with to perform the duty to be enforced.
63. The writ need not recite the declaration or other proceedings, Norm
of her-
(..inptory writ.
nor the matter therein stated, but shall simply command the
performance ts~ o-,d.
of the duty, and in other respects shall be in the form of an ordinary ,7
('frsss
writ of execution, except that it shall be directed to the party and not
to
the sheriff, and may be issued in term or vacation and returnable
forthwith ; and no return thereto, except that of compliance, shall be
.allowed, but time to return it may; upon sufficient grounds, be allowed
.by the Court, either with or without terms.
64. The writ of mandamus so issued as aforesaid shall have the r.froct (,f
wr;L
nY mnnda.iaiix
same force and effect as a peremptory writ of mandamm, and in case of
,zna 1wo(:cefr-
711Y9 t(1
disobedience, m'ay be enforced by attachment. ont(»w(: it.
65. The Court rnay, upon application by the plaintiff, besides or
instead of procecdinn against the disobedient party by attachment, direct
that the act required to be done may be done by the plaintiff, or some
other person appointed by the Court, at the expense of the defendant;
^nd upon the act being done, the amount of such expense may be ascer-
tained by the Court, either by writ of inquiry or reference to the
Registrar
as the Court may order; and the Court may order payment of the amount
of such expenses and costs, and enforce payment thereof by execution.
66. The Court shall have power, if it see fit so to do, upon the Delivery
of
application of the plaintiff in any action for the detention of any
chattel, cnlttcls.
to order that execution shall issue for the return of the chattel
detained,
without giving the defendant the option of retaining such chattel upon
paying the value~assessed, or otherwise agreed upon, and that if the said
chattel cannot be found, and unless the Court should otherwise order,
the sheriff shall distrain the defendant by all his lands and chattels
till
the defendant render such chattel, or, at the option of the plaintiff,
that
he cause to be made of the defendant's hoods the assessed value of such
-chattel; provided that the plaintifF shall, either by the same or a
separate
writ of execution, be entitled to have made of the defendant's goods the
-damaaes, costs, and interest in such action.
Court may
order the act
to he dolle, at
flic expense
of the
Vefen<lan t.
Form of writ
of summon
and ondorse-
ment thereon.
Form of.
proceedings
smcl of
judgment.
ORDINANCE No. 6 of 1855.
Common Law Procedure.
Injunction.
-claim of writ g J. In all cases of breach of contract or other injury,
where the
of injunction.
party injured is entitled to maintain and has brought an action, he may,
in like case and manner as hereinbefore provided with respect to
mandamus,:
claim a writ of injunction against the repetition or continuance of such
breach o£ contract or other injury, or the committal of any breach of-
contract or injury of a like hind, arisinb out of the same contract, or~
relating to the same property or right, and he may also in the same
action.
include a claim for damages or other redress.
6$, The writ of summons in such action shall be in the same form
as the writ of summons in any personal action, but on every such writ
and copy thereof there shall be endorsed a notice, that in default of
appearance the plaintiff may, besides proceeding to j udgment and exe-
cution for damages and costs, apply for and obtain a writ of injunction.
69. The proceedings in such action shall be the same, as newly as.
may be, and subject to the line control, as the proceedings in an action
to obtain a mandamus under the provisions hereinbefore'contained; and
in such action judgment may be given that the writ of injunction do or'
do not issue, as justice may require ; and in case of disobedience, such:
writ of injunction may be enforced by attachment by the Court.
Writ of 'JQ, It shall be lawful for the plaintiff, at any time after the
cow-
ininnetion
ifi~y be mencement of the action, and whether before or after judgment, to
apply
applied for tit
ally, stage ac ex parte to the Court for a writ o£ injunction to restrain
the defendant in
the cause' such action from the repetition or continuance of the wrongful
act or
breach of contract complained of, or the committal 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; and such writ may be granted or
denied by the Court upon such terms as to the duration of the writ,
heaping an account, giving security, or otherwise, as to such Court shall
seem reasonable and just; and in case of disobedience, such writ maybe-
enforced by attachment by the Court.
xqn;taulo 71. It shall be lawful for the defendant or plaintiff in any
cause in
cicfcnce may
0o pleaded. Court in which, i£ j udgment were obtained, he would be
entitled to relief
against such judgment on equitable grounds, to plead the facts which.
entitle him to such relief by way of defence, and the Court is hereby
empowered to receive such defence by way of plea; provided that . such
plea shall begin with the words 'For defence on equitable grounds;'- or-
words to the like effect.
ORDINANCE No. 6 of 1855.
Common Law Procedure.
72. Any such matter which, if it arose before or during the time Equitable
defence after
for 'pleading, would be an answer to the action by way of plea, may, if
it judgment.
:arise after the lapse of the period during which it could be pleaded, be
-set up by way of auditci quereld.
7$. The plaintiff may reply, in answer to any plea of the defendant,
Equitable
rciilic;~tic,u.
facts which avoid such plea upon equitable grounds; provided that such
replication shall begin with the words ' For replication on equitable
grounds,' or words to the like effect.
`l4. Provided always, that in case it shall appear to the Court, that
Co»rtmay
strike out
.any such equitable plea or equitable replication cannot be dealt with by
equitable
plea or
:a Court of Law so as to do justice between the parties, it shall be
lawful replication.
for such Court to order the same to be struck out on such terms as to
costs and otherwise as to such Court may seem reasonable.
75. In case of any action founded upon a bill of exchange or other Actions
lost instrn-
negotiable instrument, it shall be lawful for the Court to order that the
ment,,.
loss of such instrument shall not be set up, provided an indemnity is
given, to the satisfaction of the Court or Registrar, against the claims
of
:any other person upon such negotiable instrument.
'l6. The Court may, upon summary application by rule or order,
exercise such and the like jurisdiction as may, under the provisions of an
Act of Parliament made arid passed in the fifty-third year of the reign of
His Majesty King George the 'third, intituled an 'Act to limit the Re-
sponsibility of Ship Owners in certain cases,' be exercised by any Court
of Equity.
'l7. Any person who shall upon any examination upon oath or affirmation,
or rulseevidcwe.
statement, or in any affidavit in proceedings under this Ordinance,
wilfully and corruptly
give false evidence, or wilfully and corruptly, swear or affirm any thing
which shall be
false, being convicted thereof, shall be liable to the penalties of
wilful and corrupt
perjury. [Repealed by Ordinance No. 2 of ,1889.]
Jurisdiction
uncles ship,
owners Art.
[' nR. G. 3., c.
1ss.]
Judgncent by Default, 4,c.
7$. With respect to judgment by default and the mode of ascertain-
ing the amount to be recovered thereupon, be it further enacted and
ordained, that no rule to compute shall be necessary or used; .and that,
in actions where the plaintiff' seeks to recover a debt or liquidate
demand
in money, judgment by default shall be final.
Rule to
compute
abolished,
Judgment aiy
default for
liquidated -
demands -
final.
Inquiry o£
damages may
be directed to
take place
before the
Registrar.
ORDINANCE No. 6. of 1855.
Common Law Procedure.
79. In actions in which it shall appear to the Court that the amount
of damages sought to be recovered by the plaintiff is substantially a
rnat--
ter of calculation, it shall not be necessary to issue a writ of injuiry,
but
the Court rnay direct that the amount, for which final judgment is to be
si ;ned, shall be ascertained by the Registrar of the Supreme Court; and
the attendance of witnesses and the production of documents before such
Registrar may be compelled by subpcma, in the same manner as before a
jury upon a writ of inquiry; and it shall be lawful for such Registrar to
adjourn the inquiry from time to time, as occasion may require; and the
Registrar shall endorse upon the rule or order for referring the amount
of damages to him, the amount found by him, and shall deliver the rule
or order, with such endorsement, to the plaintiff; and such and the like
proceedings may thereupon be had as to taxation of costs, signing judg-
ment, and otherwise, as upon the finding of a jury upon a writ of inquiry.
Judgment 80. In all actions where the plaintiff recovers a sum. of money,
the
for Irloney
demand amount to which lie is entitled may be awarded to him by the,
judgment.
-without
dNtinetion generally, without any distinction being therein made as to
whether such:
between debt
and darnages. suln IS recovered by way of a debt or damages.
Saying as to 81. Nothing in this Ordinance contained shall in any way
affect the
;8 c;9 on$ot provisions of a certain Act of Parliament passed in the
Session of Parlia-
e, li.l menu holden in the eighth and ninth years of the reign of His
Majesty
King William the Third, intituled 'An Act for the better preventing fri-
volous and vexatious suits,' or to the assignment or suggestion of brea-
ches, or as to judgment for a penalty as a security for damages in respect
of further breaches.
Abatement.
Action not to 82. With respect to the effect of death, marriage,
bankruptcy, or-
db'Ite 1>y
ne'Ittt.insolvency upon the proceedings in an action; be it further
enacted and.
.
ordained, that the death of a plaintiff or defendant shall not cause an
action to abate, but it may be continued as hereinafter mentioned.
In case of 83. If there be two or more plaintiffs or defendants, and one
or more
death of one
or more of of them should die, if the cause of action survive to the
remaining plain-
sevel;d
plaintiff, Or tiff or plaintiffs, or against the remaining defendant or
defendants, the -
defendants. action shall not thereby abate; but such death being suggested
on the:
record, the action shall proceed at the suit of the remakiing plaintiff or
plaintiffs against the remaining defendant or defendants.
ORDINANCE No. 6 of ls55.
Common laxv Procedure.
84. In the case of the death of a sole plaintiff or sole remaining
'plaintiff, the legal representative of such plaintiff may, by leave of
the
Court, enter a suggestion of the death, and that he is such legal
represen-
tative, and the action shall thereupon proceed; and, if such suggestion be
made before the trial, the truth of such suggestion shall be tried
thereat,
A
together with the title of the dead plaintiff, and such judgment shall
follow
upon the verdict in favor of or against the person making such suggestion,
as if such person were originally the plaintiff.
85. In case of the death of a sole defendant or sole remaining defend-
ant; where the action survives, the plaintiff may make a suggestion,
either,
in any of the pleadings, if the cause has not arrived at issue, or in a
cop;
of the issue, if it has so arrived; of the death, and that a person
therein
named is the executor or administrator of the deceased; and may there-
upon serve such executor or administrator with a copy of the writ and
suggestion, and with a notice, signed by the'plaintiff or his attorney,
re-
quiring such executor or administrator to appear within eight days after
service of the notice, inclusive of the day of such service, and that in
default of his so doing the plaintiff may sign judgment against him as
such
executor or administrator; and the same proceedings rnay ensue in case
of non-appearance after such notice as upon a writ against such executor
or administrator in respect of the cause for which the action was brought;
and in case no pleadings have taken place before the death, the suggestion
shall form part of the declaration, and the declaration and suggestion may
be served together, and the new defendant shall plead thereto at the same
,.time; and in case the plaintiff shall have declared, but the defendant
shall
not have pleaded, before the death, the new defendant shall plead at the
same time to the declaration and suggestion; -and in case the defendant
shall have pleaded before the death, the new defendant shall be at liberty
to plead to the suggestion, only by way of denial, or such plea as may be
appropriate to or rendered necessary by his character of executor or ad-
ministrator, unless by leave of the Court he should be permitted to plead
fresh matter in answer to the declaration; and in case the defendant shall
have pleaded before the death, but the pleadings shall not have arrived at
issue, the new defendant, besides pleading to the suggestion, shall
continue
the pleadings to issue in the same manner as the deceased might have
done, and the pleadings upon the declaration and. upon the suggestion
shall be tried together; and in case the plaintiff shall recover, he
shall be
entitled to the like judment in respect of the debt or suln sought to be-
0
Tn case of sole-
plslntiff.
Upon death r
of sole or sole
snrvlving
defenclftnt.
X26
ORDINANCE No. 6 of 185.
Common Law Procedure.
recovered, and in respect of the costs prior to the suggestion, and i~
spect of the costs of the suggestion, and subsequent thereto he shall be:
entitled to the like judgment as in an action originally commenced.
against the executor or administrator.
Death $6, The death of either party betty een .verdict and judgment shall
between
verdict and not hereafter be alleged for error so as such judgment be
entered within
judgment.
two terms after such verdict.
In case o£
death after
interlocutory
and before
final judg-
ment.
$7. If the plaintiff in any action happen to die after an interlocutory
judgment and before a final judgment obtained therein, the action shall
not thereby abate, if it might be originally prosecuted or maintained by
the executor or administrator of such plaintiff; and if the defendant die
after such interlocutory judgment and before a final judgment obtained
therein, the action shall not thereby abate if it might be originally pro-
secuted or maintained against the executor or administrator of such de-
fendant; and the plaintiff, or, if he be dead after such interlocutory
judg-
ment) his executors or administrators, may have a writ of rev ivor in the
form C to this Ordinance annexed, or to the like effect, against the
defend-
ant, if living after such interlocutory judgment, or if he be dead, then
against his executors or administrators, to spew cause why damages in
such action should not be assessed and recovered by him or them; and
if such defendant his executors or administrators shall appear at the
return
of such writ, and not skew or allege any matter sufficient to arrest the
final judgment, or shall make default, a writ o£ inquiry of damages shall
be thereupon awarded, or the amount for which final judgment is to be
signed, shall be referred to the Registrar or other officer of the Supreme
Court as, hereinbe£ore provided; and upon the return of the writ, or de-
livery of the order with the amount endorsed thereon to the plaintiff, his
executors or administrators, judgment final shall be given for the said
plaintiff, his executors or administrators, prosecuting such writ of
revivor
against such defendant, his executors or administrators, respectively.
Marriage not $$. The marriage of a woman plaintiff or defendant shall not
cause
to abate -
action, the action to abate, but the action may notwithstanding be
proceeded with
to judgment; and such judgment may be executed against the wife alone,.
or by suggestion or writ o£ revivor pursuant to this Ordinance, judgment
may be obtained against the husband and wife, and execution issue thereon;
and in case of a judgment for the wife, execution may be issued there-
upon bar the authority of the husband without any writ of revivor or sua=
ORDINANCE No. 6 of 1855.
Common Law Procedure.
gestion; and if in any such action the wife shall sue or defend by
attorney
appointed by her when sole, such attorney shall have authority to continue
the action or defence, unless such authority be countermanded by the
husband and the attorney charmed according to the practice of the Court.
89. The banl~ruptcy or insolvency of the plaintiff in any action
which the assignees might maintain for the benefit of the creditors, shall
not be pleaded in bar to such action unless the assignees shall decline to
continue and give security for the costs thereof upon an order of the
Court
to be obtained for that purpose within such reasonable time as the Court
may order, but the proceedings may be stayed until such election is made;
and in case the assignees neglect or refuse to continue the action, and
give
such security within the time limited by the order, the defendant may,
within eight days after such neglect or refusal, plead the bankruptcy or
insolvency.
90. Where an action would, but for the provisions of this Ordinance, To
compel
coutiiiuancc
abate by reason of the death of either party, the defendant, or person
oioabandon-
mont of action
against whom the action may be so continued, may apply by summons 'in
case of
to compel the personal representatives of the plaintiff to proceed within
`le°''.
such time as the Court shall order; and in default of such proceeding,
the defendant shall be entitled to enter a sugnestion of such default, and
of the representative character of the person by or against whom the
action
may be proceeded with, as the case may be, and to have judgment for the
costs of the action and suoaestion against the plaintiff, or against the
per-
son entitled to proceed in his room, as the case may be, and in tile
latter
case to be levied of the goods of the testator or intestate.
327
Bankruptcy
or insolvency
of plaintiff,
when not to
abate action.
Bjectment.
91. If any person shall grin; any action of ejectment after a prior
action of ejectment for the same premises has been or shall have been
unsuccessfully brought by such person, or by any person through or
under whom he claims, against the same defendant, or against any person
through or under whom he defends, the Court may, if it think fit, on the
application of the defendant at any time after such defendant has appeared
to the writ, order that the plaintiff shall give to the defendant security
for the payment of the defendant's costs, and that all further proceedings
in the cause shall be stayed until such security be given, whether the
prior action has been or shall have been disposed of by discontinuance or
by non-suit, or by judgment for the defendant.
Claimant in
second
ejectment for
same premises
against same
defendant
may be
ordered to
give security
for costs.
ORDINANCE No. 6 of 1855.
Common Law Procedure.
Amendments.
Amendments.
92. It shall be lawful for the Court at all times to amend all defects
and errors in any proceedings under this Ordinance, whether there is any-
thing in writing to amend by or not, and whether the defect or error be
that of the party applying to amend or not ; and all such amendments:
may be made with or without costs; and upon such terms as to the Court
may seem fit ; and all such amendments as may be necessary for the
purpose of determining in the existing suit the real question in
controversy
between the parties, shall be so made, if duly applied for. [Latended to
criminal cases by Ordinance A'o. 5 of 1856.]
FORMS REFERRED TO.
A.
Forms of liule or Summons where a judgment Creditor applies
jbr execution against a judgment Debtor.
(Formal parts as at present.) -
C. D. show cause why A. B. (or as the case may be) should not be at
liberty to enter.
a suggestion upon the roll in an action wherein the said A. B. was
plaintiff and the' said C. D, was defendant and wherein the said A. B,
obtained judgment for
against the said (:. D. on the day of
that it manifestly appears to the Court that the said A. B. is untitled
to have execution
of the said judgment and to issue execution thereupon, and why the said
C. D. should
not hay to the said A. B. the costs of this application to be taxed. .
NOTE.-The above form may be modified according to circumstances.
B.
Form of Suggestion that a judgment Creditor is entitled to execution
against the judgment Debtor.
And now on the day of it is suggested and manifestly appeals
to the Court that the said A. B. (or C. D. as executor of the last will
and of testament.
of the said A. B, deceased, or as the case may be) is entitled to have
execution of the -
judgment aforesaid against the said E. F. (or against G. H. as executor
of the last
will and testament of the said E. F., or as the case may be). Therefore
it is considered
by the Court that the said A. B. (or C. D, as such executor as aforesaid,
or as the ea8e
may be) ought to have execution of the said judgment against the said E.
F. (or against
G. H. as such executor as aforesaid, or as the case ,may be).
Common Law Procedure.
C.
Form of Writ of Revivor.
Victoria, by the Grace of God, &c., to E. F. of
greeting:
We command you, that within eight days after the service of .this writ
upon you,
inclusive of. the day of such service, you appear in the Supreme Court of
Hongkong to
show cause why A. B. (or C. D. as executor of the last will and testament
of the said
A.. B. deceased, or as the case may be) should not have execution against
you (if against
.a reyresentative, here state such capacity, as the case may be) of a
judgment whereby the
said A. B. (or as the case may be) on the day of
Court recovered against you (or as the case may be)
in the said
and take notice that
in default of your so doing, the said A. B. (or as the case may be) may
proceed to
.execution.
Witness, &c.
Title. [See Ord. No. 5 of 1856, and Ord. No. 13 of 1873.]
Preamble. 15 & 16 Vict. c. 76. 17 &18 Vict. c. 125.
Court may, by consent, try questions of fact.
Power to Court to direct arbitration before trial.
Special case may be stated, and question of fact tried.
Arbitrator may state special case.
Power to Court to direct arbitration at time of trial, when issues of fact are left toits decision.
Proceedings before and power of such arbitrator.
Power to send back to arbitrator.
Application to set saide the award.
[See Ord. No. 3 of 1858 s.1.]
Enforcing award within period for setting same aside.
If action commenced by one party after all have agreed to arbitration, Court may stay proceedings.
On failure of parties or arbitrators, Court may appoint single arbitrator or umpire.
When refernerce is to two arbitrators, and one party fail to appoint, other party may appoint arbitrator to act alone.
Two arbitrators may appoint umpire.
Award to be made in three months unless parties or Court enlarge time.
Rule to deliver possession of land pursuant to award, to be enforced as a judgment in ejectment.
Agreement or submission in writing may be made rule of Court, unless a contrary intention appear.
Power to adjourn trial.
Affirmation instead of oath in certain cases. [See Ord. No. 2 of 1860.]
Statement instead of oath by Chinese. [See Ord. No. 2 of 1860.]
Perosns making a false affirmation or statement, subject to same punishment as for perjury. [See Ord. No. 2 of 1860.]
How far a party may discredit his own witness. [Extended to criminal cases by Ordinance No. 5 of 1856.] Proof of contradictory statements of adverse witness. [Extended as above.]
Cross-examination as to previous statments in writing. [Extended as above.]
Proof of previous conviction of a witness may be given .[Extended as above.]
Attesting witness need not be called, except in certain cases. [Extended as above.]
Comparsion of disputed writing. [Extended as above.]
Grounds to be stated in rule nisi for new trial. [Extended as above.]
Payment of costs upon new trial on matter of facts. [Extended as above.]
Affidavits on new matte. [Extended as above.]
Power to Court to direct oral examinations of witnesses. [Extended as above.]
Proceedings before and upon such examination.
[1 W. 4, c.22.]
Examination of person who refuses to make an affidavit.
Proceedings upon order for examination.
Discovery of documents.
Power to deliver written interrogatories to opposite party.
Affidavits by party proposing to interrogate and his attorney.
Oral examination of parties, when to be allowed.
Proceedings upon such rule or order.
Depositions upon such examination to be returned to Registrar's office.
[1 W. 4, c.22.]
Examiner to make report to the Court.
The costs of rule and examination to be in discretion of the Court.
Inspection by jury, by parties, or by witnesses.
Rule or order for summoning jury.
Proceedings to revive.
Judgment to be received by suggestion.
Application for suggestion.
Writ of revivor, and proceedings thereunder.
Writs of scire facias.
[8 & 9 W. 3, c.11.]
Notice.
Writ of revivor how procured.
Examination of judgment debtor as to debts due to him.
Court may order an attachment of debts.
Order for attachment to bind debts.
Proceedings to levy amount due from garnishee to judgment debtor.
Court may allow judgment creditor to sue garmishee.
Garnishee discharged.
Attachment book to be kept by the Registrar.
Costs of application.
Action for mandamus to enforce the performance of duties.
Declaration in action for mandamus.
Proceedings upon claim for mandamus.
Judgment and execution.
Form of peremptory writ. [See Ord. No. 3 of 1858 s. 1.]
Effect of writ of mandamus and proceedings to enforce it.
Court may order the act to be done at the expense of the defendant.
Delivery of specific chattels.
Claim of writ of injunction.
Form of writ of summons and endorsement thereon.
Form of proceedings and of judgment.
Writ of injunction may be applied for at any stage of the cause.
Equitable defence may be pleaded.
Equitable defence after judgment.
Equitable replication.
Court may strike out equitable plea or replicatoin.
Actions on lost instruments.
Jurisdiction under Shipowners Ac. [53. G. 3., c. 159.]
False evidence.
Rule to compute abolished.
Judgment by default for liquidated demands final.
Inquiry of damages may be directed to take place before the Reigstrar.
Judgment for money demands without distinction between debt and damages.
Saving as to certain provisions of [8 & 9 W. 3, c.11.]
Action not to abate by death.
In case of death of one or more of several plaintiffs or defendants.
In case of sole plaintiff.
Upon death of sole or sole surviving defendant.
Death between verdict and judgment.
In case of death after interlocutory and before final judgment.
Marriage not to abate action.
Bankruptcy or insolveney of plaintiff, when not to abate action.
To compel continuance or abandonment of action in case of death.
Claimant in second ejectment for same premises against same defendant may be ordered to give security for costs.
Amendments.
364