CODE OF CIVIL PROCEDURE AND RULES OF COURT
Title
CODE OF CIVIL PROCEDURE AND RULES OF COURT
Description
60. On taking a recognizance or bond whether one or more
than one recognizor or obligor, and whether
entered into by all at one time or not 8.00
61. On assignment of a bond ........4.00
62. By a Commissioner on taking bail 16.00
63. On a commitment ................4.00
64. On registering in the Registry a power of attorney for
a King's ship, generally and a copy thereof for the
accountant general of the Navy .....24.00
65. On registering same specially ..8.00
66. On taking accounts by the Registrar in naval prize
matters ........................... 4.00
67. On an inspection of the Register of Bail Bonds l^
CODE OF CIVIL PROCEDURE AND
RULES OF COURT.
ARRANGEMENT OF ORDERS AND RULES.
PART I.-INTRODUCTORY.
Page.
Order 1 . ............... ... ... 44-45
PART II-ACTIONS IN GENERAL.
Order II.-Institution of Action.
Writ of summons ....................... ... ... ... ... 45-47
Specially indorsed writ .................. 1 ... 47-50
Concurrent writs ...................... ... ... ... ... 50
Originating summons ................... ... ... ... ... 51
Provisions relating to solicitors ........ ... ... ... ... 51-52
Service of process in general ............ ... ... ... 52
Service of process in particular cases ... ... ... ... ... 53-54
Service out of the jurisdiction ....... ... ... ... ... ... 54
Service of process for foreign tribunals ... ... ... ... 57-58
Variation of order for service, etc . ... ... ... ... ... 59
Summoning defendant ...................... ... ... ... 59.
Appearance of defendant .................. ... ... ... ... 60
Default of appearance .................... ... ... ... ... 60-61
Order III-Parties.
Parties in general .................... ... ... ... ... 61-64
Persons under disability .............. ... ... ... ... 65-66
Administrations and trusts ............ ... ... ... 66-69
Third party procedure .................... ... ... 70-74
Change of parties by marriage, etc. 74-76
Order IV-Joinder of Causes of Action ... 77-78
Order V-Pleadings.
Rules..................................... Page.
1-23..................General rules of pleading ... ... ... ... ... 78- 82
24-28................Statement of claim ..... ... ... ... ... ... ... ... 83
29-30.....................Service of statement of claim ... ... ... ... ... ... 84
31 Slaying proceedings for defect in statement of claim ... 84
32-40................Statement of defence ... ... ... ... ... ... ... ... 84~ 86
41-48.....................Payment into and out of court ... ... ... ... ... ... 86- 89
49-54..........Counterclaim ................. ... ... ... ... ... ... ... 89- 90
55 Reply and subsequent pleadings ......... ... ... ... 90
56 Default of pleading .................... ... ... ... ... 90
57-59.......................Matters arising pending the action ... ... ... ... ... 91
60-64.......................Proceedings in lieu of demurrer . ... ... ... ... 92
1- 9 Order VI-Amendment ............. 92- 94
Order VII.-Discovery, *cry
V Inspection and Admission.
1-12...........Discovery ............... ... ... ... ... ... ... ... 94- 97
13-17..........Inspection ......1 ...... ... ... ... ... ... ... ... 97- 98
18-23.................Discovery and inspection ... ... ... ... ... ... ... 99-100
-24-30............Admissions, etc . ........... ... ... ... ... ... ... 100-101
Order VIII.-Issues, Inquiries and Accounts.
1- 3........Issues ....................... ... . 101-102
4-12......................Direction for inquiries or accounts ... ... ... 102-103
1- 9......................Order IX-Special Case ... ... ... 104-107
1- 4 Order X.-Issues of Fact Without Pleadings ... 107
Order XI.-Interlocutory Proceedings.
1 Interlocutory application .............. ... ... ... ... 107
2-12........Motion ........................... ... .. ... ... ... 108-109
13-17.................Order to show cause ... ... ... ... ... ... ... 110
18-20. Summons...... 110-111
21-23 Evidence in interlocutory proceedings ... ... ... ... ... ill
24-32...............Interlocutory order ... ... ... ... ... ... . 111-113
33 Stay of proceedings ..... ... 113
34 Dismissal of action for want of prosecution ... 114
Order XII.-Preliminarics of Trial.
1- 3 Setting down cause for trial ... ... ... ... ... ... ... 11,4
4- 6 Postponement of trial ... ... .... ... ... ... ... ... ... 114-115
7-11 General trial paper ... ... ... ... ... ... ... ... ...
12-19............Modes of trial ...
... ... ... ... ... ... ... ... 116-117
Order XIII-Trial.
1- 9 Non-attendance of parties ... ... 1 ... ... ... ... ... ... 117-119
10-19 Order of proceedings at trial ... ... ... ... ... ... ... 119-122
20 Incidental powers of the court ... ... ... ... ... ... ... 122
21-22 Withdrawal from and settlement of action ... ... ... ... 123
Order XIV.-Evidence.
Ruled.................................... Page.
1 Evidence in general .................... ... ... 123
2-11................Evidence de bene esse ... ... ... 124-127
lo-ol........Affidavits .................... ... ... ... ... ... 127-129
22-28........Evidence at trial ............. ... ... ... ... ... ... ... 129-131
1-13 Order XV-Judgment ... ... ... ... 131-133
14 Order of the court ..................... ... ... ... ... 134
1-10 Order X1 I-Costs............ ... 134-136
Order XVII-Execution.
1 Investigation as to property of judgment debtor ... ... 136
2- 8....................Modes of enforcing judgment ... ... ... ... ... ... 137-139
9-17......................General rules relating to execution ... .... ... ... ... 139-140
18 Immediate execution ................ ... ... .. ... ... 140
19-20 Application for execution in ordinary cases ... ... ... ... 141
21-22 Application for leave to issue execution ... ... ... ... 141-142
23-24............Stay of execution ..... ... ... ... ... ... ... ... ... 143
25-26............Issue of execution .... ... ... ... ... ... ... ... ... 143
27-29 Execution of judgment for immovable property ... ... ... 143-145
30-42 Execution of judgment for money by attachment of property
other than debts ................ ... ... ... ... ... 145-148
43-53...................................Execution of judgment for money by attachment of debts 148-151
54-57...................Claim to attached property ... ... ... ... ... ... 151-152
58-69...........................Sale of property in execution of judgment ... ... ... .153-156
70-76................................Execution of judgment for money by imprisonment ... 157-159
77-83........................Committal for disobedience to judgment ... ... .... ... 159-160
PART III.-SPECIAL ACTIONS AND PROCEEDINGS.
1-26 Order XVIII.-Foreign Attachment 161-167
1- 5 Order XIX-Action by or against the Government 167-169
1-11 Order XX.-Action by or against form etc. 169-172
1_ 9 Order XXI.-Action by or against pauper 172-174
1- 7 Order XXII.-Action for Recovery of Immovable Property. 174-175
8-14...............Action of ejectment .... ... ... ... ... ... ... ... 175-179
Order XXIII.-Mandamus
l_ 5...............Action of mandamus ..... ... ... ... ... ... ... ... 179-180
6- 8....................Prerogative writ of mandamus ... ... ... ... 180-181
1-13....................Order.......XXIV.-Interpleader ... ... ...
181-183
Rules. Page.
1 Order XXV-Reference to Arbitration 184
2-13.......................Reference by consent out of court ... ... ... 184-188
14-21.....................Reference under order of court ... ... ... ... ... 188-191
22-26........General ............... ... .... ... ... ... ... 191-192
PART IV.-PROVISIONAL REMEDIES.
Order XXVI-Arrest and Attachment Before Judgment
1_ 6......................Arrest of absconding defendant ... ... ... ... ... 192-195
7-12..............................Interim 'attachment of property of defendant ... ... 195-197
13-15....................Arrest and d2tention of ship ... ... ... ... ... ... 197-198
Order XXVIL-Temporary Injunction 198-199
1- 7 Order XXVIII-Receiver .......200-202
PART V--APPEALS.
1-28 Order XXIX.-Appeal to the Full Court ... ... 202-207
PART VL-MISCELLANEOUS.
Order XXX-Business in Chambers.
1- 2.........General .............. ... ...... ... ... * --- *** *** 207-208
3-13..................Administrations and trusts ... ... ... ... ... ... ... 208-211
14-16.............Charitable trusts ..... ... ... ... ... ... ... ... ... 211-212
17-22 Sale, forpelosure, and redemption ... ... ... ... ---* --- 212-214
23 Assistance of experts .................. .... ... ... ... 215
24-25.......................Proceedings relating to infants, etc . ... ... ... ... ... 215
26-29...........Attendances ..... ... ... ... ... ... ... --- *--- *** 215-216.
30-45.........................Claims of creditors and other claimants ... ... ... ... 216-220
46-48........Interest ................... ... ... ... ... ... ... ... 220-221
49-55..................Certificate of the Registrar ... .... ... ... ... ... ... 221-222
56 Further consideration .................. ... ... ... ... 222
57-59.........................Registering and drawing up of orders ... ... ... ... 223
Order XXXL-Yarious Provisions.
1- 3................Sittings of the court ... ... ... ... ... ... 223-224
4 Seal of the court .......... ......... ... ... .. ... ... 224
5 Cause-Book ......................... ... ... ... ... ... 224
6- 7 Certain general powers of the court ... ... ... ... ... 224-225
8 Summary application in certain cases. ... ... ... ... 225
9-12 Irregularity in proceedings......... ... ... ... ... ... 225
13-15 Provisions relating to time ... ... ... ... ... ... ... 226
16-17 Commissioners for oaths 227
18-20 Attachment ... ... ... ... ... ... ... ... ... ... .... 227
21 Saving ... ... ... 1 ... ... ... ... ... .. 1 ... ... 228
22 Publication of notices ... ... ... ... ... ... ... ... ... 228
23 Forms ... ... ... ... ... ... ... ... ... ... 228
SCHEDULE.
(By virtue and. in exercise of their powers an(fer sub-
) of section 4 of the
paragraph. (vi) of paragraph (a
Revised Edition of the Laws Ordinance, 1948, and of
subsection (2) of section 9 thereof, the Commissioners of
Lau, Revision oinitted the Code of Civil Procedure
from the revised edition of Ordinances and included the
same hereunder as rules made under the . principal
Ordinance.)
CODE OF CIVIL PROCEDURE
AND RULES OF COURT.
(Cap. 4, section 37).
(Ordinance NO. 3 Of 1873).
List July, 1901.]
PART 1.
INTRODUCTORY.
ORDER 1.
1. These rules may be cited as the Code of Civil
Procedure, and reference to rWes of court shall be deemed
to refer to the provisions hereof. ES, l.]
2. In these rules-
'bailifP' means a bailiff of the court and includes any person
lawfully authorized to execute the process of the court;
41cause oP action' in actions founded on contract does not
iieces&-trily 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;
'judgment' includes decree ;
'judgment creditor' means any person in whose favour a
judgment or order capable of execution has been given
b
or made, and includes any person to whorn such judg-
ment pr order has been transferred ;
'judgment debtor' means any person against whom a
judgment or order has been given or made;
4toriginating summons' means every summons other than a
summons in a pending cause or matter;
'party' includes every person served with notice of or
attending any proceeding, although not named on the
record;
'principal Ordinance' means the Supreme Court Ordinance;
4'receiver' includes a consignee or manager appointed by
or under an order of the court;
'Registrar' means the Registrar of the court.
'Registry' means the Registry of the court;
.1within the jtji-isdictioii' means within the Colony. [s. 2.
3. Nothing in these rules shall affect-
(a)the rights, privileges or remedies of the Crown, or
the existing jurisdiction or powers of the court,
further orjotherwise than is herein expressly enacted
in that behalf; or
(b)the practice or procedure of the court prescribed by
any enactment relating to-
(i) causes or matters ' testamentary or in bank-
ruptcy or in its Admiralty jurisdiction; or
(ii) the incorporation, regulation and winding up
of companies and other associations. [s. 3.
4. In all cases with respect to which no provis ' ion is
made in these rules, 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 ci rcti rn stances rnay require :
Provided that where an), subject dealt with in such Rules
of Practice is provided for wholly or in part in these rules,
the English rule shall be deerned not to bc'iii force in the
court. [S. 4. ]
5. All civil proceedings in the court shall be called
actions, in(] shall be. instituted -and carried on in the manner
hereinafter prescribed.
PART 11.
ACTIONS IN GENERAL.
ORDER 11.
INSTITUTION OF ACTION.
Writ of suminons.
1. 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. [S. 7. ]
2. (1) The writ shall be prepared by the plaintiff or
his solicitor. It shall be written or printed, or partly writtell
and partly printed, and shall specify the nanie, description
and place of.abode of the plaintiff and of the defendant, so
far as they can be ascertained, the subject-inatter 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. [s. s.
3.The writ shall bear date on the day on which it is
issued, and shall be tested in the name of the Chief
justice. [S. 9.1
4. (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 by the plaintiff if he sues in
person. [s. 10.]
5.The Registrar shall file the copy of the writ, and an
entry of the filing thereof shall be rnade in the Cause Book,
and the action shall be distinguished by the date of the.year
and a number. [S. 11.1
6.The writ shall be.signed by the Registrar and sealed
with the seal of the court, and shall thereupon be deemed
to be issued. [s. 12.]
7.No writ for service out of the jurisdiction, or of
which notice is to be given out of the jurisdiction, shall be
issued without the leave of the court. ES. 13.1
8. Any alteratioii in the writ before without
the leave of the Registrar or of the court, shall render the
writ void. [s. 14.]
9. (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 i-nay, before the expiration
of the then current period, in its discretion, fronn time to
time renew the operation of the writ for a further period
riot exceeding six rrionths at one time.
(2) A writ so renewed shall remain in force and be
available to prevent the operation of any enactment whereby
the tirne for the commencement of the action may be limited,
and for all other purposes, from the date of the issuing of
the original writ. ES. 15.1
10. The production of a writ of summons purporting
to be scaled with the seal of the court, showing the same
to have been renewed in mann'er 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. [s. 16.1
11. 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. [s. 17.]
12. Nothing hereinbefore con(aine d with respect to a
writ of summons shall be deemed to apply to proceedings
which may now be heard on petition without preliminary
service oil any par(y, bkit all petitions shall be subject to
the rules hereinafter contained with respect to pleading and
to the form and contents of a statement of claim, so far as
they are applicable to the subject-matter thereof. [S. 18.1
Specially indo7sed writ.
13. In any action where the plaintiff seeks only to
recover a debt or liquidated demand in money payable by
the defenda-t, with or without interest, arising-
(a)on a contract, express or implied (as, for instance,
oil a bill of exchange, promissory note, or cheque,
or other simple contract debt); or
(b)oil a bond or contract under seal for payment of a
liquidated amount of money; or
(c)oil any enactment 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
(d)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
(e) on a trust,
the writ of summons may, at the option of the plaintiff, be
specially indorsed with a statement of his claim or of the
relief or remedy to which he claims to be entitled. [s. 19. ]
14. 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 terni has expired or
has been duly determined by notice to quit, or against any
person claiming under such tenant, the writ of summons
rnay, at the option of the plaintiff, be specially indorsed with
a statement of his claim or of the relief or remedy to which
he claims to be entitled. [S. 20.]
15. (1) Where 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 respectively, 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 be dis
allowed, the plaintiff's solicitor shall pay the costs of
taxation. [S. 21. ]
16. Where an action for the recovery of money lent by
a money-lender or for the enforcement of any agreement
or security relating to any such money is brought by the
lender or an assignee, the indorsement on the writ shall state
in addition to any other particulars the fact that at the time
of making the loan or contract the plaintiff or (in an action
by an assignee) the original assignor was a registered money-
lender under the Money-lenders Ordinance, and if the writ
be specially indorsed under rule 13 of this Order, shall also
state-
(a)the date on which tile loan was made, or where the
action is brought on an agreement or security given
in consideration of the renewal of former loans, the
date on which each such loan was made;
(b) the amount actually lent to the borrower;
(c)the rate of interest charged on the amount actually
lent ;
(d)the amounts paid by way of interest and the periods
in respect of which and the dates on- which each
SLIC11 payment was made;
(e)the aniount of principal repaid and the date or dates
of payment;
every otlier amount paid by the borrower to the
lender in respect of the loan or loans as the case
may be, whether as premium or otherwise;
(g) the amount of principal due and unpaid; and
(ib) the amount of interest due and unpaid. [S. 21A.]
17. In default of appearance to a specially indorsed
writ, the plaintiff, on satisfying the court that the writ was
duly served, sliall be entitled to judgnient for any sum not
exceeding. the sum indorsed on the writ, together with
interest it the rate specified, if any, or if no rate is specified,
at the rate fixed by the court, to the date of 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 in actions by a money-lender or an
assignee for the recovery of money lent by the money-lender
or the enforcement of any agreement or security relating
to any such money, the court may exercise the powers of
the court under subsection, (i) Of Section 2 of - the Money-
lenders Ordinance: Provided also that the court may,
nevertheless, on such terms <is may seem just, give 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. [s. 22.
18. (1) Where the defendant appears to a specially
indorsed writ, the plaintiff may, on filing an affidavit 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 judgment and execution.
(2) On.the hearing of such summons, the court shall
make such order, and on such terms and conditions, if any,
as may be just,
(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
proc eed to judgment and execution against the latter, with-.
out prejudice to his right to proceed with his action against
the former. [s. 23.
19. .(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 appearance, 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 inquiries
and directions now usual in similar cases, shall be made
forthwith.
(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. [s. 24.
Concurrent writs.
20 (1) The plaintiff in any action may, at the time of
or at any time during twelve months after die issuing of the
ori ginal writ of summons, issue one or more concurrent writ
or writs, each concurrent writ to bear teste of the same da),
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 jurisdiction may be
iSSLied and marked as a concurrent writ with one for service,
or whereof notice in lieu of service is to be given, out of the
jurisdiction ; and a writ for service, or whereof notice in lieu
of service is to be given, out of the jurisdiction, may be
issued and marked as a concurrent writ with one for service
within the jurisdiction.
21. 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, a rid shall
thereupon be deemed to be issued. [S. 26.
22. 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. [s. 27. ]
. 23. (1) Every party served with an originating sum-
mons shall, before lie 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 for appearance, he shall not, unless the court
otherwise orders, be entitled to any further time for any
purpose than if lie had appeared according to the
summons. [s. 28.
24. (1) The day and hour for attendance under an
originating suninions shall, after appearance, 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. [s. 29.1
Provisions relating to solicitors.
25. (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 declares that the writ was not issued
by him or with his authority or privity, all proceedings upon
the same shall be stayed, and no further proceedings shall
be taken thereupon without leave of the court. [S. 30.1
26. A pariy suing or defending by a solicitor shall be
at liberty to change his solicitor in any cause or matter, with-
out 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. [s. 31.
Service of process in geiieral.
27. No service in an action or other proceeding shall be
made on Sunday, Christmas Day or Good Friday. [s. 32.]
28. Unless in any case the court thinks it proper other
wise 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 service in the
action or proceeding may be made by delivering the docu
ment to be served to such solicitor or by leaving the same
at his place of business. [s. 33. ]
29. (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 that 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 know-
ledge 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 house, or at
some other place of public resort, or at the usual or
last-known place of abode or business within the
Colony of the person to be served; or
(c) in any two or more or these modes.
(2) Every application for an order for such service shall
be supported by an affidavit setting forth the grounds on
which the application is made. [s. 34. ]
Service of process in particttlar cases.
30. When the action or other proceeding is against a
person in the service of the Government, the Registrar may
transmit a copy of the document to be served 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. [s. 35.]
31. When the action or other proceeding is against a
company or corporation created by charter or letters patent,
or by 'or under any Ordinance, which has its principal
officer or its principal office or its principal place of business
or registered office in the Colony, authorized to sue and be
sued in the nanic of an officer or trustee, the document
may be served by giving it to any director, secretary, or
other principal officer, or by leaving it at the office, of the
corporation or company.
32. When the action or other proceeding is against
any corporation or company which does not fall within the
provisions of rule 31 of this Order, but which has an office
and carries 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. [s. 37.
33. When the action or other proceeding is against a
husband and his wife, the document shall bc served on
both, unless the court otherwise orders. [s. 38. ]
34. When the action or other proceeding is against
h tl ^
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 inade on the infant shall be deemed good
service. [s. 39.
35. When the action or other proceeding is against
a lunatic or person of unsound mind not so found by
inquisition, the document may, unless the court otherwise
orders, be served on the committee of the lunatic or on
the person with whom the person ot' unsound niind resides
or under whose care he is. [S. 40.
36. When the action or other proceeding is against
a person residing out of the jurisdiction, but carrying on
business in the Colony in his own name or under the
name of a firm through a dully authorized agent, the docu-
ment may be served by giving it to such agent, and such
service shall be equivalent to personal service on the
defendant. ES, 41.
Service out of the jurisdiction.
37. (1) Service out of the jurisdiction of a writ of
summons or notice of a writ of sun-inions may be allowed
by the court whenever-
(a)the whole subject-matter of the action is immovable
property situate within the jurisdiction (with or
without rents or profits) ot, the , perpetuation of
testimony relating to land within the jurisdiction
or
(b)any act, deed, will, contract, obligation or liability,
affecting immovable property situate within the
jurisdiction is sought to be construed, rectified, set
aside or enforced in the action; or
(c)any relief is sought 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
the action is founded on a tort committed within
the jurisdiction; or
(g)any injunction is sought as to anything to be done
within the jurisdiction, or any nuisance within the
jurisdiction is sought to be prevented or removed,
whether damages are or are not also sought in
respect thereof ; or
(ib) any person out of the jurisdiction is a ' necessary
or proper party to an action properly brought
against sorne other person duly served within the
jurisdiction ; or
(i)the action is brought under the Carriage by Air
Act, 1932.
(2) Every application for leave to serve a writ of
summons or notice of a writ of summons on a defendant
out of the jurisdiction shall be supported by affidavit 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 whether such defendant is a B'ritish subject
or not, and the grounds on which the application is made;
and no such leave shall be granted unless it is made suffi-
ciently 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 efTect such service shall
Iii-nit a time after the service within which the defendant
is to enter an appearance, such time to depend on the
place or country where or within which the writ is to be
served.
(4) When the defendant is neither a British subject
nor . in British dominions, notice of writ in the prescribed
form and not the writ itself, is to be served upon him.
(5) Where leave is given under this rule to serve
notice of a writ of summons out of the jurisdiction, such
notice shall be served in the manner in which writs ot
summons are served; and whenever in this Code a writ of
summons and service of a writ or' summons out of the
jurisdiction is referred to, it shall be held to apply, nbutall's
inutandis, where the defendant is not a British subject, to
notice of a writ and the serving of notice of a writ of
summons respectively.
(6) This rule shall apply to writs of sun-inions and
notices of. writs of summons in probate actions.
(7) The court or a judge may direct that any stillilliolls,
order or notice shall be served on any party or person in a
foreign country and the procedure prescribed by this section
with, reference to service of notice of a writ of summons shall
apply to the service of any summons, order or notice so
directed to be served.
(8) ' Where leave is given to serve notice of a writ of
summons or other document, in any foreign country to which
Order X1, rule 8, of the Rules of the Supreme Court in
England has by order of the Lord Chancellor been applied,
the following procedure shall be adopted-
(a)the notice to be served shall be sealed with the seal
of the court and shall be forwarded by the judge
to the Colonial Secretary, together with a copy
thereof translated into the language of the country
in which service is to be effected, and with a i-eqtiest
that the necessary steps be taken for the further
transmission of the same, through the proper
channels, to the Government of the country in
which leave to serve notice of the writ has been
given.' Such request shall be in the prescribed
form ;
(b)the party bespeaking a copy of notice of writ for
service under this section shall, at the time of
bespeaking the same, file a prxcipe in the
prescribed form ;
(c)an official certificate, or declaration upon oath, or
otherwise, transmitted through the diplomatic
channel by the Government or court of a foreign
country to which this rule applies, to the Supreme
Court, shall, provided that it certifies or declares the
notice of the writ to have been personally served
ol- to have been duly served upon the defendant in
accordance with the 1,1W Of Such foreign country, or
,,~,oi-ds to that effect, be deemed to be sufficient proof
of stich-service, and shall be filed of record as, and
be equivalent to, an affidavit of service within the
requirements of this section in that behalf
(d)where an official certificate or declaration transmitted
to the Supreme Court in manner provided in para-
graph (c) certifies ol- declares that efforts to serve
a notice of writ have been without effect, the court
or a judge. may, upon the ex parte application of
the plaintiff, order that the plaintiff be at liberty to
bespeak a request for substituted service & such
notice. Such order shall be in the prescribed form ;
(e) a request for substituted service of a notice of writ
under this rule rnay be bespoken by the plaintiff at
the Registry upon filing a prcecipe in the prescribed
form, and the notice of writ and copy of the same,
and the order shall be sealed and transmitted to the
Colonial Secretary in manner aforesaid together with
a request ill the prescribed form. [s. 42. 1
Service of process for forelg,n triburtals.
38. Where ill ally civil or commercial matter pending
1.-)efoi.e a court ol- tribmial of a foreign country a letter of
rcqtiest from stich court or tribunal for service on ally person
in this Colony of' any process or citation in such matter is
transmitted to the Stipreme Court by the Colonial Secretary
with all intimation that it is desirable that effect should be
given to the same, the following procedure shall be
adopted-
(a)the of request for service shall be acconipallied
by a translation thereof ill the English language,
and by two copies of the process or citation to be
served, and two copies thereof ill the I-English
kinguage
(b)service of the process or citation shall be effected by
the bailiff;
(c)such service shall be effected by delivering to and
leaving with the person to be served one copy of
the process to be served, and one copy of the trans-
lation thereof, in accordance with the practice of the
court regulating service of process ;
(d)after service has been effected the bailiff shall return
'Lo the Registrar one copy of the process, together
with an affidavit of service, and particulars of charges
for the cost of effecting such service;
(e)the Registrar shall certify the correcttiess of the
charcres or such other amount as sliall be properly
payable for the cost of effecting service. A col)~, of
such charges and certificate shall be forwarded to
the Colonial 'Secretary;
the Registrar shall send to the Colonial Secretary
the letter of request for service received from the
foreign country, together with a copy of the affidavit
of service, with a certificate appended thereto duly
scaled with the seal of the court. Such certificate
shall be in the prescribed form;
(g) upon the application of the Attorney General, the
court or a judge may make ail such orders for
substituted service or otherwise as may be necessary
to give effect to this section. [S. 42A.]
39. Where in.any civil or commercial matter pending
before a court or tribunal in any foreign country with which
a convention on that behalf has been or shall be made and
applied to Hong Kong, a request for service of any docu-
ment on a person in the Colony is received by the Registrar
from the consular or other authority of such country the
following procedure shall, subject to any special provisions
contained in the convention, be adopted-
(a)the service shall be effected by delivery of the
original or a copy of the document, as indicated in
the request, and the copy of the translation, to the
party or person to be served in person by the.
bailiff;
(b)no court fees shall be charged in respect of the
service. The particulars of charges of the bailiff
shall be submitted to the Registrar who shall certify
the am-)unt properly payable in respect thereof;
(c)the Registrar shall transmit to the consular or other
autliority making the request a certificate establish-
ing the fact and the date of the service in person, or
indicating the reasons for which it- has riot been
possible to effect it, and at the same time sliall notify
to the said consular or other authoritf the aniount
of the charges certified under paragraph (b)
hereof. [8. 42B.]
Variation of order for service, etc.
40. Any order for service may be varied by the court
with respect to the i-node of service directea by the order, as
occasion may require., [S. 43.
41. Where the service of process by the bailiff will be
attended with expense, he 'shall riot (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. 44.]
42. (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 a&ion 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 non-appearance, to proceed
by default; and every affidavit of service of the writ shall
mention the day on which the indorsement was made. This
sub-rule shall apply to substituted as well as other service.
(3) The writ shall, within eight days after the service
thereof or, in case of service out of the jurisdiction, within
such tirne as the court may have ordered, be returned into
the Registry and filed therein. [S. 45.]
Appearaizc~e of defendant.
43. 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 jurisdiction, within such time as the court
may have ordered, cause an appearance to the action to be
entered for him in the Registry. [S. 46. ]
44. In every case of service of a writ of summons out
of the jurisdiction, the entry of appearance thereto shall
specify the name. and address of some solicitor, agent or
other person within the jurisdiction on whoni 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. [s. 47.]
45. Where an action is brought by a plaintiff residing
out of the jurisdiction, and it is made to appear, by affidavit
or other ' wise, to the satisfaction of the court, that the
defendantlas 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 fie 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. [S. 48.]
46. The defendant before appearing sliall be at liberty,
without obtaining an order to enter or entering a conditional
appearance, to apply by summons to set aside the service on
him of the writ of summons or to discharge the order
authorizing such service. [s. 49.]
Default of appearance.
47. (1) If the defendant fails to enter in ,ipl)c,,ii.ztiice
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 thereupon file his statement of
claim, and apply forthwi;h to have the cause set down for
trial. . [s 50.]
48. If the defendant 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 tns,,~,er to the action, in like manner as if lie
had duly entered an appearance within the time limited as
aforesaid. Is. 51.]
49. When the cause has been called on, the court may
proceed to try it ex parle and may on the evidence adduced
by the plaintiff give such judgment as may appear to be
just:Provided that in actions by a money-lender or an
assignee for the recovery of money lent by the money-lender
or the enforcement of any agreement or security relating to
'111), such money, the court may exercise the powers of the
court under subsection (i) of section 2 of the Money-lenders
Ordinance. [s. 52.]
50. 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 appoint a time for the'hearing of the summons,
on such conditions, if any, as it may think fit. [s. 53.1
ORDER 111.
PARTIES.
llartlies lit general.
1. All persons may be joined in one action as plaintiffs,
in whom any right to relief in respect of or arising out of
the sanic transaction or series of transactions is alleged to
exist, whether jointly, severally, 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
order separate trials or make such other order as 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, unless the court in
disposing of the costs otherwise directs. [s. 54.
2.Where an action has been cornmenced.in the nanie
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 com
menced 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. [s. 55.1
3.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, lie may obtain the benefit
thereof by establishing his counterclaim or set-off as against
the parties other than the co-plaintiff so joined, notwith
standing the misjoinder of such plaintiff or any proceeding
consequent thereon. [s. 56. ]
4. (1) All persons may be joined as d ' efendants against
whom the right to any relief is alleged to exist, whether
jointly, severally, or in the alternative ; and judgment may
be given against such one or more of the defendants as may
be found to be liable, according to their respective liabilities,
without any amendment.
(i) 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 in 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 expense by
being required to attend any proceeding in which lie 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 ~ne contract, including parties
to bills of exchange and promissory notes. [S. 57. ]
5.Where the plaintiff is in doubt as.to theperson from
whorn lie is entitled to redress, he may, in such manner as is
hereinafter mentioned, Join two or more defendants, to the
intent that the question as to which, if any, of the defendants
is liable, and to what extent, may be determined as between
all parties. [S. 58.1
6. (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 ally of the persons beneficially interested in the trust
ol- estate, and shall be considered as representing such
persons -, but the court may, at any stage of the proceedings,
order any of such persons to be made parties, either in addi-
tion to or ill lieu of the previously existing parties.
(2) This rule shall apply to trustees, executors and
;idnii.iiisti-~t(oi-s sued ill proceedings to enforce a security by
foreclosure or Otherwise. [s. 59. ]
7.Ill any action for the pi-e\,entioii of waste ol- other-
wise- for the protection of property, one person may sue on
behalf or for the benefit of Iiiniself and all persons lii~!iiig
thesame interest. [s. 60.1
8. there are nujilel-ous persolls having Ille s',Inle
interest ill one cause or matter, one or more of such persons
may sue or be sued, ol- may be authorized by the court to
defend, in such cause or matter, oil behalf or for the benefit
of all persons so interested. ES. 61. j
9. Where, ill proceedings concerning a trust, a corn-
proniisc is proposed and sonic of the persons interested in the
conipromise are no', parties to the proceedings. ' but there are
other persons ill the sarne interest before the court and
,ass(, 11
ntin- to 111e compromise, the court, if satisfied t at the
compromise will be for the benefit of the absent persons and
that to require service )il such persons would cause unreason-
able expense or delay, may approve the compromise and
order that the same sliall be binding on the absent persons,,
and they shall be bound accordingly, except where the order
has been obtained by fraud 'or non-disclosurc of niaterial
facts. [S. 62.]
10. (1). No cause or matter shall be defeated by reason
of the misjoinder or non-joinder of parties, and the court nlay
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 proceedirl-s,
either on or without the application of either party wid on
such terms as may appear to the court to be just, order that
the narnes 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 shdll be added as a plaimiff suing without
a next friend, or as the next friend of a plaintiff tinder arly
disability, without his own consent in writirl- thereto.
b
(4) Ever), 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 bc deemed to have begun onl - v.
on the service of such writ. [s. 61]
11. Any application to add, or strike out, or substitute
a plaintiff or defendant may be rnade to the court at ail ' v
time before trial by motion or summons, Or al tile trial of
the action in a summary manner. [S. 64. ]
12. Where a defendant is added ol- substituted, the
plaintiff shall, unless otherwise ordered by the court,
the writ of summons and the cop), thereof on the file, aild
,Se]-VC such new defendalit with such alliended writ ill 1 he
same manner as ,in original defendant is served, and the
proceedings shall be continued as if the new defendant had
originally been made a defendant. [s. 6S.]
13. (1) where there are morc piaintin's thn One, mi),
one or more of them, may be authorized by aiiy other of
them to appear, plead or act for such other in iiiy action ol*
other proceeding under these rules.
(2) In like manner, where there are more defendants
tlian one, any one or more of them may be authorized by
any other of thern to appear, plead or act for such other in
any such action or proceeding.
(3) In every such case the authority shall be in writing
signed bv the party giving it, and shall be filed in the
Registry. [S. 66.
Persons 'under (11Sability.
14. An infan( may sue as plaintiff by his next friend, in
the manner heretofore practised, and may, in like manner,
defend any action by his gnardian appointed for that
purpose. [S. 67.1
15. Where a lunatic or person of unsound mind, not so
found by inquisition, might fori-nerly have sued as plaintiff
or would have been liable to be sued,as defendant in any
suit, lie may sue as plaintiff in any action by his committee
ot- next friend, and may defend any action by his committee
ot- guardian appointed for that purpose. [S. 68.1
16. (1) Where default is made by a defendant in enter-
ing an appearance to an action, after due service of the writ
of summons, and it appears to the court that lie is an infant
ol- a pet-son of unsound rnind, not so found by inquisition,
so that lit, is unable of himself to defend the action, the
court may, on the application of the plaintiff. or of its own
inotion, appoint sonic fit person to be guardian of the
defendant for ilic purpose of the action, by whom lie may
defend the same.
(2) No such order shall be made except oil 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 line person with whom or under whose care the
defendant was at the time of service of the writ 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 oil or
left at the dwell ing-house of his father or guardian, unless
the court thinks fit to dispense with such last-mentioned
service. [S. 69.1
17. (1) An infant shall not enter anexcept
by his guardian ad litenb.
(2) No order for the appointment of such guardian shall
be necessary, but the solicitor applying to en ter such appear-
ance shall make and file an affidavit for that purpose.
[s. 70.]
18. (1) Every infant served with a petition or notice of
motion, or summons in a matter, shall appear on the flearing
thereof by a guardian ad litem in all cases in which the
appointment of a special guardian is riot provided for.
(2) No order fo r the appointment of such guardian sliall
be necessary, but the solicitor by whom fie appears shall
previously make and file an affidavit as mentioned in rule 17
of this Order. [S. 71.
19. Before the name of any person shall be used in in),-
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.
[s. 72. ]
20. 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 mode of taking evidence. or as to any other procedure
shall, if given with the consent of the court by ihe 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 disability and had
given such consent :Provided thal. no such consent bY anY
committee of a Junatic shall be valid as between hill] and
the lunatic unless given with the special sanction of the
Chief justice. [s. 73.]
A(tniin.istrtitions and trusts.
21. (1) In any. case in which the right of ,in heir-at-law,
or the next of kin, or a class depends upon the construction
which the court may put upon an instrument, and it is not
kno-~s,ii 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 ol- for some other reason, it will be
coil vell iclit to have the questions of construction determined
before sucIl lleir-at-law, next of kin, or class has or have
been ascertained by means of inquiry or otherwise, the court
rnay appoi'iit one or more persons to represent such heir-at-
law, ol- to represent all or any of such next of kin or class,
and the judgment of the court shall be binding oil the person
ol- persons so
(2) In ally other case in whicli an licii--at-liw, or any
next of kill, or a class is or are represented in any proceed
ings, th,. court may, if, having regard to the nature and
extent of the interest of such persons or of any of them,
it appears expedient oil account. of the difficulty of ascertain
ing such persons ol- in order to save expense, appoint one
ol- more persons to represent such heir-at-law, or to represent
all or '11) ' y of such next of kin ol- class, and the judgment
of flie Court shall be binding oil t,l)e person ol- persons so
represented. [S. 74. ]
22. Ail), residual- legatee or next of kill entitled to a
judgment or order for the administration of the-personal
estate ofa deceased person may have the same without serving
the remaining residuary legatees or next of kin. [s. 75. ]
23. Any legatee interested in a legacy charged upon
immovable property, and any person interested in the pro-
ceeds of immovable property directed to be sold, and who
may be entitled to a judgment or order for the administra-
tion of the estate of a deceased person, rnay have the same
without serving ally other, legatee or person interested in
the proceeds of the property. [S. 76.
24. Any residuary devisee or heir entitled to the like
judgment or order may have the same without serving any
co-residuary devisee or co-fieir. [S. 77.]
25. Ai13, one of several cestuis que trust under any deed
ol- instrument entitled to a jud-ment or order for the execti-
Z21
lion of the trusts of the deed or instrument may have the
same without serving ally other cestuis que trust. [S. 78.]
26. Any executor, administrator or trustee entitled
thereto may have a judgment or order against any one
1 t:l
legatee, next of kin or cestuis que trust for the administration
of the estate or the execution of the trust. [s. 79.1
27. The court may require any person to be inade i
party to any action or other proceeding, and rnas, give the
conduct of the 'action or proceeding to such person as it
may think fit, and may make such order in anY
case as it may think just for placing the defendant oil the
record on the same footing in regard to costs is other
h
having a common interest with him in the inatters in
question. [s. so. ]
28. (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, i 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 riot
parties to the action,
the court may direct that any persons interested. in the
estate, or under the trust, 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 ha*d originally been made
parties, and shall be at liberty,, to attend the proceedlings
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 judgment or order to obtain an order for liberty
to attend the proceedings tinder such judgment or order'
but such person shall be at liberty to attend the. proccedings
on entering an appearance in the Registry in the sarne
rnanner, 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 judgnient or order on in infant or person
of unsound mind, not so found by inquisition, shall be
served in the same manner as a writ of suninions in in
action.
[S. 81.]
29. 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,
but the plaintiff shall be at liberty to niake the heir-at-law
a party where lie desires to have the will established against
him. [8. 82.]
30. (1) 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 deceased person, or may appoint some
person to represent his estate for all the purposes of the
cause or mattter, on such notice to such persons, 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 every respect as if a duly
constituted legal personal representative of the deceased
person had been a party to the cause or matter.
(2) 'estate' in this and in all other rules shall have the
same meaning as in the Probates and Administration
Ordinance. [s. 81]
31. (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, oil the
claim of any person not a party to the cause or matter
against the estate of the deceased person in respect of any
debt or liability.
(2) The court may direct or 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 stich
terms as to costs or otherwise as it may think fit.
Third party procedure.
32. (1) Where in any action a defendant claims as
against any person not already a party to the action (here-
inafter called the third-party)-
(a) that he is entitled tocontribution or indemnity, or
(b)that he, is entitled to any relief or remedy relating
to or connected with the original subject matter of
the action and substantially the same as some relief
or remedy claimed by the plaintiff, or
(c)that any question or issue relating to or connected
with the said subject-matter is substantially the same
as some question or issue arising between the plaintiff
and the defendant and shotild properly be deler-
mined not only as between the plaintiff and the
defendant but as between the plaintiff and defendant
and the third party or between any or either of
them,
the court may give leave to the defendant to issue and serve
a third party notice.
(2) The court may give leave to issue and serve a
third party notice on an ex Parte application supported by
affidavit, or, where the court directs a summons to the
plaintiff to be issned, upon the hearing of the summons.
[s. 85.]
33. (1) The notice shall state the nature and grounds
of the claim or the nature of the question or issue sought
to be determined and the nature and extent of any relief or
remedy claimed. It shall be in one of the prescribed fornis
and shall be scaled and served on the third party in the
sarne manner is a writ of surrinions is sealed and served.
(2) The notice shall, unless otherwise ordered by the
court, be served within the time limited for delivering the
defence or, where the notice is served bv a defendant to a
counterclaim, the reply, and with it there shall be served
a copy of the writ of summons or originating summons and -
of any pleadings delivered in the action. [s. 86. ]
34. The third party shall, as from the time of the
service upon him of the notice, be a party to the action with
the sarne rights in respect of his defence against any claim
made against him and otherwise as if he had been duly
sued in the ordinary way by the defendant. [S. 87.
35. The third party may enter an appearance in the
action within eight days from service or within such further
time as may be directed by the court and specified in the
notice : Provided that a third party failing to appear within
such time may apply to the court for leave to appear, and
Such leave may be given upon such terms, if any, as the
court may think fit. [s. 88.
36. If a third party duly served with a third party notice
does not enter an appearance or makes default in delivering
any pleading which he has been ordered to deliver, he shall
be deemed to admit the validity of and shall be bound by
any udgnient given in the Action, whether by consent or
otherwise, and by any decision therein on any question
specified in the notice ; and when contribution or indemnity
or other relief or remedy is clairned against him in the notice,
he shall be deemed to admit his liability in respect of such
contribution or indemity or other relief or remedy. [s. 89.]
37. Where a third party makes default in entering an
appearance or delivering any pleading which he has been
ordered to deliver and the defendant giving the notice suffers
judgment by default, such defendant shall be entitled- at
any time, after satisfaction of the judgment against himself,
or before such satisfaction by leave of the court, to enter
judgment against the third party to the extent of any con
tribution or indemnity claimed in the third party notice, or
by leave of the court to enter such judgment in respect of
any other relief or remedy claimed as the court shall direct :
Provided that it shall be lawful for the court to set aside or
vary such judgment against the third party upon such
terms as may seem just. [S. 90. ]
38. (1) If the third party enters an appearance the
defendant giving notice may, after serving notice of the
intended application upon the plaintiff, the third party and
any other defendant, apply to the court for directions, and
the court may-
(a)where the liability of the third party to the defend-
ant giving the notice is established on the hearing
of the application, order Such judgment as the
nature of the case may require to be entered against
the third party in favour of the defendant giving
the notice, or
(b)if satisfied that there is a question or issue proper
to be tried as between the plaintiff and the defendant
and the third party or between any or either of thein
as to the liability of the defendant to the plaintiff
or as to the liability of the third party to make any
contribution or indemnity claimed, in whole or in
part, or as to any other relief or remedy clainied
in the notice by the defendant or that a question or
issue stated in the notice should be determined not
only as between the plaintiff and the defendant bi-it
ns between the plaintiff, the defendant and the third
party or any or either of them, order such question
or issue to be tried in stich manner as the court
may direct, or
(c) dismiss the application.
(2) Any directions given pur suant to this section may
be given either before or after any judgment has been
signed by the plaintiff against the defendant in the action,
and may be varied from time to time and may be rescinded.
(3) The third party proceedings may at any time be
set aside by the court. [S. 91. ]
39. The court upon the hearing of the application for
directions may, if it appear desirable to do so, give the
third party liberty to defend the action, either alone or jointly
with the original defendant, upon such terms as may be
just, or to appear at the trial and take such part therein as
may be just, and generally may order such proceedings to
be taken, pleadings or documents to be delivered, or amend-
ments to be made, and give Such directions as to the court
may appear proper for having the question and the rights
and liabilities of the parties most conveniently determined
and enforced and as to the mode and extent in or to which
the third party shall be bound or made liable by the decision
or judgment in the action. [S. 92. ]
49. (1) Where the action is tried, the court may, at or
after the trial, enter such Judgment as the nature of the case
may require for or against the defendant giving the notice
against or for the third party, and may grant to the defendant
or to the third party any relief or remedy which might pro-
perly have been granted if the third party had been made a
defendant to an action duly instituted against him by the
defendant : Provided that execution shall not be issued
without leave of the court until after satisfaction by the
defendant of the judgment against him.
(2) Where the action is decided otherwise than by trial,
the court may, on application by motion or summons, make
such order as the nature of the case may require, and, where
the plaintiff has recovered Judgment against the defendant,
may order such judgment as may be just to be entered for
or against the defendant giving notice against or for the
third party. [s. 92A.]
41. The court may decide all questions of costs as
between a third party and other parties to the action, and
may order any one or more of thern to pay the costs of any
other, or others, or give such directions as to costs as the
justice of the ease may require. [S. 92B.]
42. (1) Where a third party makes as against any
person not already a party to the action such a claim as is
defined in rule 32 Of this Order, the provisions of rules 32
to 44 of this Order regulating the rights and procedure as
between the defendant and the third party shall apply
mutatis mutandis as between the third party and such other
person, and the court may give leave to such third party to
issue a third party notice, and rules 32 to 41 of this Order shall
apply mutatis mutandis, and the expressions 'third party
notice' and 'third party' shall apply to and include every
notice so issued and every person served with such notice
respectively.
(2) Where a person served with a notice under this
section by a third party in turn makes such a claim as is
defined in rule 32 of this Order against another person not
already a party to the action, rules 32 to 44 Of this Order as
applied by this rule shall have effect as regards such further
person and any other further person or persons so served
and so on successively. [s. 92C.]
43. (1) Where a defendant claims against another
defendant-
(a) that he is entitled to contribution or indemnity, or
(b)that he is entitled to any relief or remedy relating
to or connected with the original subject-matter of
the action and substantially the same as some relief
or reniedy claimed by the plaintiff, or
(c)that any question or issue relating to or connected
with the said subject-matter is substantially the
same as some question or issue arising between the
plaintiff and the defendant making the claim and
should properly be determined not only as between
the plaintiff and the defendant making the claim but
as between the plaintiff and that defendant and
another defendant or between any or either of them,
the defendant making the claim may without any leave issue
and serve on such other defendant a notice making such
claim or specifying such question or issue.
(2) No appearance to such notice shall be necessary and
the same procedure shall be adopted for the determination
of such claim, question or issue between the defendants as
Avould be appropriate under rules 32 to 44 of this Order if
he were a third party.
(3) Nothing herein contained shall prejudice the rights
of the plaintiff against any defendant to the action. [s. 92 D.]
44. In rules 32 to 43 of this Order the words 'plaintiff'
and 'defendant' respectively shall include a plaintiff and a
defendant to a counterclaim. [s. 92E.]
Change of parties by marriage, etc.
45. 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 survives or not, there shall be no abate-
ment by reason of the death of either party between the
verdict orfinding of. the issues of fact and the judgment,
but judgment may in such case be entered, notwithstanding
the death. [s. 93.]
46. In case of the marriage, death or bankruptcy, or
devolution of estate by operation of law, of any party toa
cause or matter, the court may, if it is deemed necessary for
the complete settleinent 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
hereinafter prescribed, and on such terms as the court may
think just, and shall inake such order for the disposal of
the cause or matter as may be just. [S. 94. ]
47. 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. [s. 95.
48. Where by reason 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 liability, or by reason of any person interested
coming into existence after the commencement 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 be carried 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 transmission of interest or
liability or of such person interested having come into
existence. [S. 96.]
49. (1) An order obtained under rule 48 Of this Order
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 applica-
tion is himself the only new party.
(2) The order shall from the time of such service,
subject nevertheless to rules 50 and 51 of this Order, 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
if he had been the same time and in the same manner as
served with a writ of summons in an action. [s. 97.]
50. Where any person being under no disability or
under no disability other than coverture, or being under any
disability other than coverture but having a guardian ad litem
in the cause or matter, is served with an order to carry on
proceedings under rule 48 of this Order, such person may
apply to the court to discharge or vary such order at any
time within twelve days from the service thereof. [s. 98.]
51. Where any person being under any disabillity other
than coverture, and not having a guardian ad litem ill the
cause or matter, is served with an order to carry oil Pro
ceedings under rule 48 of this Order, such person may apply
to the court to discharge or vary such order at any time
within twelve days from the appointment of a guardian
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. [s. 99.]
52. When the plaintiff or defendant iry a cause or matter
dies, andthe cause of action survives, but the person entitled
to proceed fails lo proceed, the defendant (or the person
against whom the cause or matter may be 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 entered 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, execu-
tion may issue As in the case provided for by rule 21 Of
Order XVII. [s. 100.]
53. Where may cause or matter beconles abated or in the
case of any such change of interest as is in this Order pro-
vided for, the solicitor for the plaintiff or the person
the conduct of the cause or matter, as the case may be, shall
certify the fart to the Registrar, who shall cause an entry
thereof to be made in the Cause-Book opposite to the name
of such cause or matter. [S. 101.]
54. MThere 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 it the expiration of the
year shall be struck out of the Cause-Book. [S. 102.]
ORDER IV.
JOINDER OF CAUSES OF ACTION.
1 . Subject to the following sections of this Order, 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 separate trials of any of such causes of action
to he had or may make such other order as may be necessary
or expedient for the separate disposal thereof. [s. 101]
2.No cause of action shall, except by leave of the
court, be joined with an action for the recovery of immovable
property, except claims in respect of inesne 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 clainied and except also
claims for payment of principal money or interest secured
by or for any other relief in respect of mortgage or charge
of such land :Provided that nothing in this Order shall
prevent any plaintiff in an action for foreclosure or redemp-
tion 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
foreclosure or redemption and for such delivery of possession
shall not be deemed an action for the recovery of immovable
property within the meaning of this Order : 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 delivery to him of possession of the mort-
gaged property, and such order may be made thereupon as
the justice of the case may require. [s. 104.]
3. Claims by a trustee in bankruptcy as such shall not,
except by leave of the court, be joined with any claim by
him in any other capacity. [S. 106.]
4. Claims by or against husband and wife may be
joined with claims by or against either of them separately.
[S. 106.]
5. Claims by or against an executor or administrator
as such may be joined with claims by or against him per
sonally, provided the last-mentioned claims 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. [S. 107.]
6.Claims by plaintiffs jointly may be Joined with
claims by them or any of them separately against the same
defendant. [S. 108.]
7. Rules 4, 5 and 6 of this Order shall be subject to
rules 1 and 8 of this Order. [s. 109.]
8. (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 an 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 of 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. [s. 110. ]
ORDER V.
PLEADINGS.
General rules of pleading.
1. The following rules of pleading Shall be used in the
court.
2. (1) Every pleading shall contain, and contain only,
a statement in a Summary form of the material facts on which
the party pleading 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 statement or
allegation.
(3) Dates, sums and numbers, shall be expressed in
figures and not in words. [s. 112.]
3.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 he sues or defends in
person. [s. 113.]
4.In all cases in which the party pleading relies on
any misrepresentation, 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 in the pleading : Provided that
if the particulars are of debt, expenses or damages,. and
exceed three folios, the fact must be so stated, with a reference
to full particulars already delivered or to be delivered with
the pleading. [s. 114.]
5. A further and better statement of the nature of the
claim or defence, or further and better particulars 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. [S. 115.]
6. (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 length of time
for pleading after the delivery of the particulars that he had
at thi, return of the summons.
(2) Except as in this section provided, an order for
particulars shall not, unless the. order otherwise provides,
operate as a stay of proceedings or give any extension of
time. [s. 116]
7. Nothing in these rules shall affect the right of any
defendant to plead not guilty by statute or Ordinance; and
every such defence shall have the same effect as a plea of
not guilty by statute has in England : 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. [s. 117.]
8. Every allegation of fact in any pleading, not being
a petition or summons, it not denied specifically or by
necessary implication, or stated to be not admitted, in the
pleading of the opposite party, shall be taken to be admitted,
except as against an infant, lunatic or person of unsound
mind not so found by inquisition. [S. 118.]
9.Any condition precedent the performance or occur-
rence 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 of the
performance or occurrence of all conditions precedent neces
sary for the case of the plaintiff or defendant shall be
implied in his pleading. [S. 119.]
10. 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 transac
tion is either void or voidable in point of law, and all
such grounds of defence or reply, 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 preceding pleadings, as for instance fraud, statute of
limitations, release, payment, performance, facts showing
illegality either by statute or Ordinance or common law,
or the Statute of Frauds. [s. 120.]
11. 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 pleadings of the party pleading the same.
[S. 121.]
12. It shall not be sufficient for a defendant in his
statement of defence to deny generally the grounds alleged
by the statement of claim, or for a plaintiff in his answer
to a Counterclaim 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 truth, except damages. [s. 122.]
13. (1) The plaintiff by his reply, if any, may join
issue upon the statementof 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
every 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. [5. 123.]
14. When a party in any pleading denies an allega
tion of fact in the previous pleading of the opposite party,
he must not do so evasively but answer the point of sub
stance, 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 sufficient to deny it
along with those circumstances. [S. 124.]
15. Where a contract, promise or agreement is alleged
in any pleading, a bare denial of the same by the opposite
party shall be construed 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 as 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. [s. 125.]
16. 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
or any part thereof, unless the precise words of the docu-
ment or any part thereof are material. [s. 126.]
17. 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
withot it setting out the circumstances from which the same
is to be inferred. [S. 127.]
18. Where it is material to allege notice to any person
of any fact, matter or thing, 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. [s. 128]
19. (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. [s. 129.]
20. 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 side,
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 considera
tion as a substantive ground of claim. [s. 130. ]
21. No technical objection shall be raised to any
pleading on the ground of any alleged want of form.
22. The court may, at any stage of the proceedings,
order to be struck out or amended any matter in any
scandalous or pleading which may be unnecessary or
scandalous or which may tend 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. [s. 132. ]
23. 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 unnecessary prolixity
and order the costs occasioned by such prolixity to be borne
by the party chargeable with the same. [s. 134.]
Statement of claim.
24. (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 remedy 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 otheirwise ordered by the court,
file his statement of claim within five weeks from the time
of his receiving such notice.
(3) Where leave to defend is given under rule iS or
19 of Order II, it shall not be necessary to file a further
statement of claim unless otherwise ordered at the hearing
of the summons for Judgment. [s. 135.
25. 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.
[S. 136.]
26. The statement of claim may alter, modify or
extend the plaintiff's claim without any amendment of the
indorsement of the writ of summons. [s. 137.]
27. (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. [S. 138.]
28. (1) Where the plaintiff seeks relief in respect of
several distinct clainis or causes of complaint founded upon
separate 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 separate and distinct facts.
[s. 139.]
Service of statement of claim.
29. After the filing of the statement of claim the
plaintiff shall forthwith 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 statement
of claim within three weeks from the day of such service
or, in a case of service out of the jurisdiction, within such
Oine as the court may have oidered: Provided that no
such service of the statement of claim shall be required
to be made on any defendant who has failed to enter all
appearance and as against whom the plaintiff lias obtained
the leave of the court to proceed with his action ex parte.
[S. 140.]
30. Where seivice of the writ of summons is directed
to be made out of the jurisdiction 1he court may order that
the statement of claim be filed forthwith and that a copy,
there of under the seal of the court be served on the defen-
dant concurrently with the writ. [S. 141]
Staytvg proceedings for defect in statement of claim.
31. Where a statement of claim is defective on the
face of it by reason of non-compliance with any provision
of these rules, 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 rernedled.
[S. 142.]
Slatement of defence.
32. The defendant shall file in the Registry a state-
ment of defence to the statement of claim within three
weeks from the date of the service thereof or, in a case of
service out of the jurisdiction, within such time as the
court may have ordered. [S. 143. ]
33. (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 it is not
made for the purpose of delay. [S. 144.]
34. (1) If the defendant neglects to file a staternent
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. [s. 145.]
35. (1) The statement of defence must deny, all such
material allegations in the statement of claim as the defen-
dant intends to deny at the trial.
(2) In an action for a debt or liquidated demand. in
money comprised in rule 13 of Order II, 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
or fact, as, for example, the drawing, making, indorsing,
accepting or notice of dishonour of the bill or note.
[S. 146.]
36. No denial 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.
[s. 147.]
37. 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 occa-
sioned by its having been denied or not admitted. [S. 14S.]
38. Where a party pleads the general issue, intending
to give the special matter in evidence by virtue of an Act
of Parliament or Ordinance, he shall insert in the margin
of his pleading the words 'by statute' or 'by Ordinance',
as the case may be, together with the year of the reign
in which the Act of Parliament 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 case 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 or Ordinance. [S. 149.]
39. No plea or defence shall be pleaded in abatem
ment. [S. 150.]
40. After the filing of the statement of defence the
defendant shall forthwith cause a copy thereof tinder the
seal of the court to be served on the plaintiff. [S. 151.]
Payment into and out of court.
41. (1) In any action for a debt or damages or in
an Admiralty action the defendant may at any time after
appearance upon notice to the plaintiff pay into court a
sum of money in satisfaction of the claim or (where several
causes of action are joined in one action) in satisfaction
of one or more of the causes of action Provided that
with a defence setting up tender before action the sum of
money alleged to have been tendered must be brought into
court.
(2) Where the money is paid into court in satisfaction
of one or more of several causes of action the notice shall
specify the cause or causes of action in respect of which
payment is made and the sum paid in respect of ench such
cause of action unless the court otherwise orders.
(3) The notice shall be in the prescribed form, and
shall state whether liability is admitted or denied and
receipt of the notice shall be acknowledged in writing by
the plaintiff within three days. [s. 152. ]
42. (1) Where money is paid into court under rule
41 of this Order the plaintiff may within seven days of
the receipt of the notice of payment into court or, where
more than one payment into court has been made, within
seven days of the receipt of the notice of the last payment
into court, accept the whole sum or any one or more of
the specified sums in satisfaction of the claim or in satis-
faction of the cause or causes of action to which the
specified sum or sums relate, by giving notice to the
defendant in the prescribed form; and thereupon he shall
be entitled to receive payment of the accepted sum or sums
in satisfaction as aforesaid.
(2) Payment shall be made to the plaintiff or on his
written authority to his solicitor, and thereupon proceed-
ings in tthe action or in respect of the specified cause or
causes of action (as the case may be) shall be stayed.
(3) If the plaintiff accepts money paid into court in
satisfaction of his claim, or if he accepts a sum or sums
paid in respect of one or more of specified causes of action,
and gives notice that he abandons the other cause or causes
of action, he may, after four days from payment out and
unless the court otherwise orders, tax his costs incurred to
the time of payment into court, and forty-eight hours after
taxation may sign judgment for his taxed costs.
(4) A plaintiff in an action for libel or slander who
takes money out of court may apply by summons in cham-
bers for leave to make in open court a statement in terms
approved by a judge.
This rule does not apply to Admiralty actions or
to an action or cause of action to which a defence of tender
before action is pleaded. [s. 151]
43. If the whole of the money in court is not taken
out under rule 42 of this Order, the money remaining. in
court shall not be paid ou, except in satisfaction of the
claim or specified cause or causes of action in respect of
which it was paid in and in pursuance of an order of the
cou rt, which may be made at any time before, at or after
trial.. [S. 154.]
44. (1) Money may be paid into court under rule 41
of this Order by one or more of several defendants sued
jointly or in the alternative, upon notice to the
defendant or defendants.
(2) If the plaintiff elects within seven days after receipt
of notice of payment into court to accept the sum or sums
paid into court, he shall give notice in the prescribed form
to each defendant.
(3) Thereupon all further proceedings in the action or
in respect of the specified cause or causes of action (as the
case may be) shall be stayed, and the money shall not be
paid out except in pursuance of an order of the court deal
ing with the whole costs of the action or cause or catises
of action (as the case may be). [S. 155.]
45. A plaintiff or other person made defendant to a
counterclaim may, pay money, into court in accordance with
rules 41 to 44 Of this Order, with the necessary modifica-
tions. [S. 156.]
46. Except in in action to which a defence of tender
before action is pleaded or in which a plea under the
Defamation and Libel Ordinance, has been filed, no state
ment of the fact that money has been paid into court
under rules 41 to 44 of this Order shall be inserted in the
pleadings and no communication of that fact shall af the
trial of any action be made to the court or jury until all
questions of liability and amount of debt or damages have
been decided, but the court shall, in exercising its dis
cretion as to costs, take into account both the fact that
money has been paid into court and the amount of such
payment. [s. 157.]
47. Money paid into court. under an order of the court
shall not be paid out of court except in pursuance of an
order of the court : Provided that, where before the delivery
of defence money has been paid into court by the defendant
pursuant to an order under the provisions of rule 18 of
Order II, he may (unless the court otherwise orders) by
notice in writing appropriate the whole or any part of such
money, and any additional payment if necessary, to the
whole or any specified portion of the plaintiff's claim, or if
he pleads tender may by his pleading appropriate the
whole or any part of the money in court as payment into
court of the money alleged to have been tendered; and the
money so appropriated shall thereupon be deemed to be
money, paid into court pursuant to rules 41 to 46 of this
Order relating to money paid into court, or money paid
into court with a plea of tender as the case may be, and
shall be subject in all respects thereto. [s. 158]
48. (1) A defence of set-off to a claim for money,
whether in debt or in damages, must be accompanied by a
s(atenient of the particulars 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 payment 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.
49. 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 withdraw such defence and
to make 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. [s. 162.]
50. (1) Where a defendant in his statement of defence
raises any specific defence and it appears to the court that,
on such defence being establish&ed, 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 defen-
dant either before or at the trial, if in the circumstances of
the case it thinks fit, give liberty to the defendant to file a
counterclaim 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 counterclaim together
or otherwise and in such manner and on such terms as to
costs and other matters, as may seem just.
(2) The court may, if in any case it thinks fit, require
the plaintiff to give security to the satisfaction of the court,
by deposit or otherwise, to abide by and perform the decision
of the court on the counterclaim. [s. 163.]
51. Any person not originally a party to the action
who is served with a counterclaim must appear thereto as
if lie had been served' with a writ of summons in an
action. [S. 164.]
52. Any person named as a party to a countercla im may
file a statement of defence thereto within the time within
which he might file a statement of defence if it were a state
ment of claim. [S. 165.]
53. When a counterclaim is pleaded a statement of
defence thereto shall be subject to the rules applicable to
statements of defence. [5. 166.]
54. If in any case in which the defendant sets up a
counterclaim the action of the plaintiff is stayed, dis
continued or dismissed, the counterclaim may nevertheless
be proceeded with. [S. 167.]
Reply and subsequent pleadings.
55. (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. [S. 168.]
Default of pleading.
56. (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
statements 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 the court for such judgment, if any, as
upon the pleadings he may appear to be entitled to; and
the court may order judgment to be entered accordingly or
may make such other order as may be necessary to do com-
plete justice between the parties. [s. 169.]
Matters arising pending the action.
57. (1) Any ground of defence which has arisen after
action brought, but before the defendant has filed his state-
ment 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 any other ground
of defence.
(2) If, after a statement of defence has been 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. [S. 170.]
58. 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 state
ment of defence or further reply, as the case may be, setting
forth the same. [S. 171.]
59. Where the defendant, in his statement of defence
or in a further statement of defence as mentioned in rule 58
of this Order, 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 judg-
ment for his costs up to the time of the pleading of such
defence, unless the court, either before or after the filing of
such confession, otherwise orders. [s. 172.]
Proceedings in lieu of demurrer.
60. No demurrer shall be allowed in any action or other
proceeding. [s. 173.]
61. Any party shall be entitled to raise by his pleading
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 applica
tion of any party, the san-ie rnay be set down for hearing and
disposed of at any time before the trial. [S. 174.]
62. 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 dis
miss the action or make such other order therein as may
be just. [S. 175.]
63. 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. [S. 176.]
64. No action or other proceeding shall be open to
objection on the ground that a merely declaratory judgment
or order is sought thereby; and the court nia), inake binding
declarations of right whether any consequential relief is or
could be claimed or not. [S. 177.]
ORDER VI.
AMENDMENT.
1. 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 amendments shall be made as may be
necessary for the purpose of determining the real questions
in controversy between the parties. [S. 178.]
2. 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. [S. 179.]
3.The statement of claim M' ay be amended at any time
before the statement of defence has been filed, by leave of
the Court obtained ex Parte. [s. 180.]
4.Where the plaintiff considers the contents of the
statement of defence to be such as to render an amendment
of the statement 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 purpose of delay or vexation but is considered to be
material for the plaintiff's case. [S. 181.]
5.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 thereby
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 extended by
the court. [8. 182.]
6. 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 so amended and of the day on which such amend-
ment is made, in manner following, viz.- 'Amended the
day of ,19 pursuant to order
of dated the day of
19 [s. 183.]
7. 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. [S.184.]
8. Any clerical mistake in any judgment or order, or
any error arising therein from any accidental slip or omis-
sion, may at any time be corrected by the court, on motion
or summons without an appeal. [s. 185. ]
9.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. [8. 186.]
ORDER VII
DiSCOVERY, INSPECTION AND ADMISSIONS.
Discovery.
1.In any cause or matter the plaintiff or defendant
may, by leave of the court, deliver interrogatories in writing
for the examination of the opposite parties or any one or
more of such parties, and such. interrogatories 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 shall deliver more than
one set of interrogatories to the same 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. [S. 187.]
2. (1) On an application for leave to deliver interro-
gatories, 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 interrogated to deliver particulars, or to make
admissions, or to produce documents relating to any matter
in question, and leave shall be given as to such only of the
interrogatories submitted as the court may consider neces-
sary either for disposing fairly of the cause or matter or for
saving costs. [S. 188.]
3.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 interroga-
tories have been exhibited unreasonably, vexatiously or at
improper length, the costs occasioned by the said interro
gatories and the answers thereto shall be paid in any event
by the party in fault. [S. 189.]
4. If any party to a cause or matter is a body 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 officer
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. [S. 190.]
5. (I) Any interrogatories may be set aside on the
ground that they have been exhibited unreasonably or
vexatiously, or struck out on the ground that they are prolix,
oppressive, unnecessary or scandalous.
(2) Any application for this purpose may be rnade
within seven days after service of the interroga-
tories. [s. 191.]
6. Interrogatories shall be answered by affidavit to be
filed within ten days or within such other time as the court
may allow. [s. 192.]
7. Any objection to answering any one or more of
several interrogatories 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. [s. 193.]
8. No exception shall be taken to any affidavit in
answer to interrogatories, but the sufficiency or otherwise of
any such affidavit objected to as insufficient shall be deter-
mined by the court on summons. [8. 194.]
9.If any person interrogated omits to answer or
answers insufficiently, the party interrogating may apply
to the court for an order requiring him to answer or to
answer further, as the casemay be, and an order may be
made requiring hirn to answer or answer further, either
by affidavit or by viva voce examination, as the court may
direct. [S. 195.]
10. (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, relating 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 dis-
covery is not necessary, 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: Provided 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 what grounds. [s. 196.]
11. (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 requiring any other party to state by affidavit
whether any one or more specific documents, 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 posses-
sion, when he parted with the same and what has become
thereof.
(2) Such application 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 sorne of them. [S. 197.]
12. It shall be lawful for the court at any time during
the pendency 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. [S. 198.]
Inspection.
13. (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 docu-
ment 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 afterwarcls be at liberty to put any such docu
nient 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 temis as to costs and otherwise as the
court may think fit. [S. 199.]
14. 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 document 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, deliver to the party
giving the same a notice stating a time within three days
from the delivery thereof at which the documents, or such
of them as he 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 account 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 docu-
inents he objects to produce and on what grounds. [s. 200.]
15. (1) If the party served with notice under the
preceding rule omits to give such notice of a time for
inspection, or objects to give inspection, or offers inspec-
tion elsewhere than at the office of his solicitor, the court
may, on the application of the party desiring it, rnake an
order for inspection in such place and in such nianner as
it may, think fit : Provided that the order shall not be
inade 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 affidavils
of the party against whom the application is made or dis-
closed in his affidavit of documents, shall be founded on
an affidavit showing of what documents inspection is
sought, that the party applying is entitled to inspect thein,
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. [s. 201.]
16. Where inspection of any business book is applied
for the court may, if it thinks fit, instead of ordering inspec
tion of the original book, order a copy of any entries therein
to be furnished and verified by the affidavit of some person
who has examified the copy 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. [s. 202. ]
17. Where on a n 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. [s. 203. ]
Discovery and inspection.
18. If the party from whom discovery of any kind or
inspection is sought objects to the same or any part thereof,
the court may, if satisfied that the right to the discovery or
inspection sought depends on the determination of any issue
or question in dispute in the cause or matter or that for any
offier reason it is desirable that any issue or question in
dispute in the cause or matter should be determined before
deciding on the riglw to the discovery or inspection, order
that such issue or question be determined first and reserve
the question as to the discovery or inspection. [s. 204.
19. (1) If any party fails to comply with any order to
answer interrogatories or for discovery or inspection of docu-
merits, he shall be Jiable to attachment.
(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 statenient of defence, if any, struck out and to
bc placed in the sarne position as if lie 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.
[s. 205.]
20. (1) Service of an order for interrogatories or dis-
covery or inspection made against any party on his solicitor
shall be sufficient service to found an application for an
attachment for disobedience to the order; but the party
against whom the application for an attachment 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 interrogatories 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 attach-
ment. [s. 206.]
21. Any party may at the trial of a cause, 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 connected with those put in that the last-
mentioned answer ought not to be used without them, he
may direct them to be put in. [s. 207.]
22 . In any action against or by the bailiff in respect of
any matter connected with the execution of his office the
court may, on the application of either party, oreler that the
affidavit to be made in answer either to interrogatories or
to in order for discovery shall be made by the officer actually
concerned. [s. 208.]
23. The preceding provisions of this Order shall apply
to infant plaintiffs and defendants and to their next friends
and guardians ad litem. [S. 209. ]
Admissions, etc.
24. 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. [s. 210.]
25. (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 after such notice, the costs of
proving such document shall, be paid by the party so refusing
or neglecting, whatever the result of the cause or matter rnav
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 proving any document shall be allowed
unless such notice is given, except where the omission to
give the notice is in the opinion of the taxing officer, a
saving of expense. [s. 211.]
26. Any party may, by notice in writing, at any time
not later than seven days before the day on which a cause,
matter or issue is to be tried or heard, call on any other
party to admit, for the purposes 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 facts shall be paid by the party so refusing or
neglecting, whatever the result of the cause, matter or issue
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 : Provided
also that the court may, at any time allow any party to amend
or withdraw any admissions so made, on such terms as may
bc just. [S. 212.]
27. 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 evidence of
such admission, if evidence thereof is required. [S. 213.]
28. Any party may at any stage of a cause or matter,
where admissions of fact have been made either on the
pleadings or otherwise, apply to the court for such judgment
or order as upon such admissions 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. [s. 214.]
29. 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. [S. 215.]
30. If a notice to produce or admit comprises documents
which are not necessarv the costs occasioned thereby shall
be, borne by the party giving such notice. [S. 216.]
ORDER VIII.
ISSUES, INQUIRIES AND ACCOUNTS.
Issues.
1. 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. [s. 217.]
2. It shall be in the discretion of the court to direct
which issues shall be first disposed of.
3. At any time before (he decision of (he callse or
matter the court may either amend the issues or frame addi-
tional issues, on such terms as it may think fit. [5. 219.]
Direction for inquiries or accounts.
4. The court inay at any stage of a cause or matter
direct any necessary inquiries or accounts to be made or
taken, notwithstanding that it may appear thit there 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. [s. 220.]
5. 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 mode in which
the account is to be taken or Vouched and in particular may
direct that, 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 parties interested to take such
objections thereto as they may be advised. [S. 221.]
6. (1) Where any account is directed to be taken the
accounting party, unless the court otherwise directs, shall
make out his account and verify the sanie by affidavit.
(2) The iterns on each side of the account shall he
numbered consecutively, 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 referee, as the case
may be. [S. 222.]
7. 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 sur-
charged shall be brought before the judge in chambers or
the Registrar or referee, as the case may be. [s. 223.]
8. Any party seeking to charge any accounting party
beyond what he has by his, account admitted to have re-
ceived shall give notice thereof to the accounting party,
stating so far as he is able the amount sought to be charged
and the particulars thereof in a short and succinct manner.
[s. 224.]
9. Every judgment or order for a general account of
the personal estate of a testator or intestate shall contain a
direction for an inquiry as to what parts, if any, of such
personal estate are outstanding or undisposed of, unless the
court otherwise directs. [s. 225. ]
10. Where by any judgment or order, whether made
in court or in chambers, any accounts are directed to be
taken or inquiries to be maae, each such direction shall he
numbered so that, as far as may be, each distinct account
and inquiry may be designated by a number. [s. 226.]
11. In taking any account directed by any judgment
or order all just allowances shall be made without any direc-
tion for that purpose. [s. 227.]
12. (1) If it appears to the court, on the representation
of the Registrar or otherwise, that there is any undue delay
in the prosecution 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 Re-
gistrar may be directed to summon the persons whoseattend-
ance 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 ot out of such
funds as the court may direct. [S. 228. ]
ORDER IX.
SPECIAL CASE.
1 . (1) The parties to any cause or matter may concur
in stating any question of law arising therein in the form
of a special case for the opinion of the court.
(2) The case shall be divided into paragraphs number-
ed consecutively, and shall state concisely such facts and
documents as rnay 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 inference,
whether of fact or of law, which might have been drawn
therefrom if proved at a trial or hearing. [S. 229.]
2. If it appears to the court that there is in any cause
or matter a question of law which it would be convenient
to have decided before any evidence is given or any ques-
tion or issue of fact is tried or before any reference is made
to an arbitrator or otherwise, the court may make all order
accordingly and may direct such question of law to be
raised for the opinion of the court, either by special case
or in such manner as the court may deem expedient, and
all such further proceedings as the decision of such ques-
tion of law may render unnecessary may thereupon be
Stayed. [S. 230.]
3. Every Special case shall be prepared by the plaintiff
and signed by the several parties or their counsel or solici-
tors, and shall be filed in the Registry by the plaintiff.
[s. 231.]
4. (1) No special case in any cause or matter to
which a married woman (not being a party thereto in respect
of her 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 without 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 wornan, infant or person of unsound mind, are
trile. [s. 232.
5. Either party may enter a specialcase for
argument by delivering to the Registrar a memorandum of
entry, but subject to the provisions of rule 4 Of this Order.
[S. 233.]
6. (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 affirmative or negative of the
questions of law raised by the special case-
(a) a sum of money, fixed by the parties or to be as-
certained by the court or in such manner as the
court rnay direct, shall be paid by one of the parties
to the other of them ; or
some property, movable or immovable, specified in
the agreement shall be delivered by one of the
parties to the other of them ; or
(c)one or more of the parties shall do or perform, or
shall refrain frorn doing or performing, some parti-
cular 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, movable or immovable, or for the doing or per-
forming 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 stated in the agreement. [S. 234.]
7. Upon the decision of the court on such questions
the judgment of the court may be entered accordingly, with
or without costs as the case rnay be, and execution may
issue upon such judgment forthwith unless otherwise
agreed or unless stayed on appeal. [S. 235. ]
8. (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 otherxise dealt with, or as to the parties to or
the form of any deed or instrument for carrying any such
contract into effect, or as to any other matter falling within
the equitable jurisdiction of the court or made subject to the
jurisdiction or authority of the court by any enactment not
being an Ordinance relating to bankruptcy, and including
among such persons all lunatics, married women and infants,
to concur id stating such question 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 ralsed
therein or any of them, and by a judgment t o declare its
opinion thereon and, so far as the case admits of the same,
upon the right involved therein, without proceeding to
administer any relief consequent upon such declaration.
(3) Every such declaration of the court contained in any
such judgment shall have the sarne force and effect as such
declaration 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 thern 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 contained 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. [s. 236. ]
9.This Order shall apply to every special case stated
in a cause or matter, or in any proceeding incidental thereto,
whether under these rules or otherwise. [s. 237.]
ORDER X.
ISSUES OF FACT WITHOUT PLEADINGS.
1. (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 que stions 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 sarne
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.
[S. 238.]
2. In any such case the provisions of rule 6 of
Order IX shall apply as if the case were a special case under
that rule. [s. 239.]
3.Upon the finding of the court on such questions the
judgnient of the court may be, entered accordingly, with or
without 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. [s. 240.]
4. The proceedings upon any such issue may be
recorded at the instance of either party, and the judgment,
wheffier actually recorded or not, shall have the same effect
as any other judgment in a contested action. [S. 241.]
ORDER XI
INTERLOCUTORY PROCEEDINGS.
Interlocutory applicalion.
1 . (1) Interlocutory applications may be made at any
stage of in 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 these rules and to any
general rules or orders of the court, the court shall in each
case decide whether the application is a proper one to be
made by motion in court or by summons in chambers and
may, at or before the hearing, if it thinks fit, remove the
same into court or into chambers, as the case may be.
(4) In every motion or summons the enactment and the
particular provisions thereof, if any, under which it is
brought shall be stated in the margin. [s. 242. ]
2. Any party to in action or other procceding who
desires to move the court for in order shall file in the
Registry a written motion-paper distinctly stating the ternis
of the order asked for. [s. 243. ]
3. 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 be
made, so only that the whole order asked for be therein
substantially expressed. [S. 244.]
4. 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 argunient or other
matter. [s. 245. ]
5. (1) There shall be filed with the motion-paper, or
as soon thereafter as possible, all affidavits on which the
party moving intends to rely.
(2) No other evidence shall be used in support of the
motion except by leave of the court. [S. 246. ]
6. 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.
[s. 247.]
7.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. [S. 248.]
8. (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 motion-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. [s. 249.]
9. 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. [s. 250.]
10. 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 thereof, 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.
[s. 251.]
11. Where an order is made on a motion exparte, 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. [S. 252.]
12. The provisions of rules 13 to 17 of this Order shall
apply, with the necessary modifications, in every case where
notice of motion has been served on a party. [s. 253.]
Order to show cause.
13. 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. [S. 254.]
14. 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. [S. 255.]
15. On the return-day if the person served with the
order 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.
[S. 256.]
16. 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. [s. 257.]
17. 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. [s. 258. ]
Summons.
18. (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. [S. 259. ]
19. The Registrar may thereupon 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.
[s. 260.]
20. 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 appli-
cation in a summary way and make such order as may be
just. [s. 261.]
Evidence in interlocutory proceedings.
21. The evidence at the hearing of any interlocutory
or other application in a cause or matter shall generally be
by affidavit. [s. 262.]
22. The court may, on the application of any party,
order the attendance before it for cross-examination of any
person making an affidavit. [s. 263.]
23. (1) The court may, if it thinks it expedient, sum-
mon any person to attend to produce any document before
it or to be examined viva voce by or before it, in like man-
ner as at the trial of an action.
(2) Such notice as the court in each case may think
reasonable shall be given to the person summoned and to
such persons (being parties to the cause or matter or other-
wise 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 tinder rule 22 of this Order
shall be taken in like manner, as nearly as may be, as at
the trial of an action. [s. 264.]
Inlerlocutory order.
24. 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
custody of the subject-matter of the litigation or may order
that the amount in dispute be brought into court or otherwise
secured. [s. 265.]
25. 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
goods, wares or merchandise 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. [s. 266.]
26. It shall be lawful for the court, on the applic ation
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 property 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. [S. 267.]
27. It shall be lawful for any judge by whom any cause
or matter may be tried or heard with or without a jury, or
before whom any cause or matter may be brought by way of
appeaJ, to inspect any property or thing concerring which
any question may arise therein. [s. 268.]
28. The provisions of rule 26 of this Order 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. [S. 269.]
29. (1) An application for an order under section II of
the Ordinance, or under rule 25 or 26 of this Order, may be
made to the court by any party. If the application is by
the plaintiff for an order under the said section, if may be
made either ex parte orwith notice, and if for an order under
the said rules, 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 rule 24 of this
Order may be made by the plaintiff at any time after his
right thereto appears from the pleadings or, if there are no
pleadings, is made to appear by affidavit or otherwise, to
the satisfaction of the court. [s. 270.]
30. Where an action is brought to recover, or a defend
ant 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 from the pleadings or, if there are no plead
ings, 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 claiming it. [S. 271.]
31. 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. [s. 273.]
32. Every order, when drawn up, shall be date d the day
of the week, month and year on which it was made, unless
the court otherwise directs, and shall take effect accordingly.
[s. 274.]
Stay of Proceedings.
33. 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. [S. 275.]
Dismissal of action for want of prosecution.
34. (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.
[s. 276.]
ORDER XII.
PRELIMINARIES OF TRIAL.
Setting down cause for trial.
1.No cause shall be set down for trial without an
order of the court obtained on summons. [s. 277.]
2. 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. [s. 278.]
3. 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 (such as the absence or illness of a material witness)
and that the defendant is prejudiced, ormay reasonably be
expected to be prejudiced, by such delay. [S. 279.]
Postponement of trial.
4. (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 satisfied 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. [s. 280.]
5. Where any such application is made on the ground
of the absence froni 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 give evidence
within a reasonable time. [s. 281.]
C. Where any such application is made for the pur-
pose of enabling the party applying 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
jurisdiction or does not intend to come within the jurisdic.-
tion within a reasonable time. [S. 282.]
General trial list and trial paper.
7.There shall be kept by the Registrar a general trial
list of causes and a trial paper. [s. 283. ]
8. (1) When a cause is set down for trial it shall be
placed in the general trial list and shall be transferred to
the trial paper strictly in its order according as the general,
trial list becomes exhausted.
(2) The regular order shall in no case be departed
from Without the special direction of the court. [S. 284.]
9.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. [S. 285.]
10. When any cause has been specially directed by
the court to be tried on a particular day or out of its ordin-
ary turn, the name of the cause shall be placed in the trial
paper with the words 'by order' subjoined. [s. 286.]
11. In case of the postponement of the trial of any
cause from the day appointed in the trial paper by reason
of the preceding causes in the trial paper not having been
disposed of, or under any order of the court rnade during
the sitting on that day, no further notice to either party
of the postponement day shall be requisite, unless other
wise ordered by the court. [S. 287.]
Modes of trial.
12. (1) The summons for setting down the cause for
trial shall specify the mode of trial desired by the party
making the application.
(g) On the hearing of the summons the court shall
make such order as to the mode of trial as it may think fit
but subject to the provisions hereafter contained in this
order. [s. 288.]
13. 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. [s. 289.]
14. (1) Causes or matters which would, previously to
the 13th day of October, 1873, have been heard by the court
in its equitable jurisdiction shall be tried by the court with-
out a jury unless the court otfierwise 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 13th day of October, 1873,
could without any consent of parties have been beard with-
out a jury.
(3) The court may direct the trial without 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. [s. 290.]
15. In any other cause or matter, on the application
of any party thereto for 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. [s. 291.]
16. In every cause or matter, unless under the pro
visions of rule 15 of this Order a trial by the court with
a jury is ordered or under rule 13 of this Order 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. [s. 292.]
17. Subject to the provisions of rules 12 to 16 of this
Order 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 cases
may order that one or more issues of fact be tried before
any other or others.
[s. 293.]
18. 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 without a jury, as the, case may be.
[s. 294.]
19. All existing enactments relating to juries s hall be
deemed to continue in full force and effect so far as the
same may not be inconsistent with any provision of these
rules. [s. 295.]
ORDER XIII.
TRIAL.
Non-attendance of parties.
1. 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. [S. 296. ]
2.If the plaintiff does not appear but the defendant
appears, the court on being satisfied that the plaintiff has
received notice of trial shall, unless it sees good reason to
the contrary, strike the cause out of the trial paper and
make such order as to costs in favour of the defendant as
may seem just. [s. 297. ]
3. If the plaintiff appears but the defendant does not
appear, the court shall before trying the cause inquire into
the service of the writ of summons, of the statement of
claim and of notice of trial on the defendant. [S. 298.]
4.If it is not satisfied as to the service on every party,
the court shall direct such further service to he made as it
may think fit and shall adjourn the trial of the cause for
that purpose. [s. 299.]
5. 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 : Provided that in actions
by a money-lender or an assignee for the recovery of money
lent by the money-lender or the enforcement of any agree-
ment or security relating to any such money, the court may
exercise the powers of the court under subsection (1) of
section 2 of the Money-lenders Ordinance. [s. 300.]
6. If it is satisfied that the defendant has been duly
served with the writ of summons, the statement of claim and
notice of trial, the court may proceed to try, the cause
notwithstanding the absence 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. [s. 301.]
7. In any case where the plaintiff has obtained leave to
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 tbinks fit, on such
terms as may Seem just, set aside the udgment and re-try
the cause on its being established by evidence upon oath, to
the satisfaction of the court, that the defendant's absence
was not wilful and that lie has a defence on the merits.
[s. 302.]
8. (1) Where a cause 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 accord-
ingly, with such notice of trial 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. [s. 303]
9. Where a cause has been otice 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. [s. 304. ]
Order of proceedings at trial.
10. The order of proceedings at the trial of a cause shall
be as follows---
(a)the plaintiff shall read the pleadings or state the
substance thereof, as the court may direct ;
(b)the party upon whorn the burden of proof lies shall
begin ; he shall address the court and open his case ;
(c)the party beginning shall then produce his evidence
and examine his witnesses in chief;
(d)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 i n the negative
lie 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;
(e)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 chief and to sum up the evidence already
given and comment thereon;
(f) if no evidence is produced by the latter party the
party beginning shall have no right to reply, unless
lie has been prevented from summing up his case
by the statement of the other party of his intention
to produce evidence;
(g)the case on both sides shall then be considered
closed;
(h)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;
(i)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
(j) 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. - [s 305. ]
11. The court shall take a note of the viva voce vidence
and shall put down the terms of any particular question or
answer if there appears to be any special reason for
doing so. [s. 306.]
12. The court may record on the notes of evidence such
remarks as it thinks material respecting the demeanour of
any witness while tinder examination. [s. 307.]
13. (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 reason-
able cause being shown for such application, 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 use of the said notes as the court may
think proper.
(3) An office copy of the notes of evidence taken in any
cause shall be admissabie, 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. [s. 308.]
14. (T) Any objection to evidence 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 derided 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 question and objection, if required by
either party, and shall mention on the notes whether the
question was allowed to be put or not and the answer to it,
if allowed. [s. 309.]
15. 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 immediately
after his opetiing or after the viva voce evidence on his
part has been concluded. [S. 310.]
16. Documentary evidence must be put in and read,
or taken as read by consent. [s. 311.]
17. 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. [s. 312. ]
18. (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. [S. 313.]
19. 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 entided 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. [s. 314.]
Incidental powers of the court.
20. (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 previous
application.
(4) The provisions of Order IX shall, with the neces-
sary modifications, apply to every such special case.
[s. 315.]
Withdrawal from and settlement of action.
21 (1) If the plaintiff at any time before final judg-
ment 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. [S. 316.]
22. (1) If in action is settled by mutual agreement
or compromise or if the defendant satisfies the plaintiff in
respect of the subject-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 satisfac-
tion shall be given by the plaintiff or, if a solicitor is
employed, by his solicitor to the Registrar, together with
stich 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. [s. 317.]
ORDER XIV.
EVIDENCE.
Evidence in general.
1. The existing rules of evidence shall continue in
full force and effect so far as they are not modified by
any provisions of these rules. [S. 318.]
Evidence de bene esse.
2. (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 Regis-
trar 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.
[s. 319.]
3. If in any case the court so orders, there shall be
issued a request to examine witnesses in lieu of a com-
mission as provided for by any Ordinance relating to
evidence. [s. 320.]
4. 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
sonic 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 juris-
diction, 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. [s. 321.]
5. The court may in any causei at any stage of the
proceedings, order the attendance 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. [S. 322. ]
6. 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 con-
tempt of court and shall be liable to be proceeded against
and punished accordingly. [S. 323.]
7.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 examina
tion shali 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. [S. 324. ]
8. Where the examination of any witness is taken
tinder the provisions hereinbefore contained the 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.
[S. 325.]
9.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. [s. 326.]
10. (1) Where under Part IV of the Evidence Ordin-
ance, or section 24 of the Extradition Act, 1870, any civil
or commercial matter or any criminal matter is pending
before a court or tribunal of a foreign country and it is
made to appear to the court or a judge by commission
rogaloire, or letter of request (both of which are in this
section referred to as letter of request), or other evidence
as hereinafter provided, that such court or tribunal is
desirous of obtaining the testimony in relation to such
matter of ariv witness within the jurisdiction, the court or
judge may, on the ex Parte application of any person shown
to be duly authorized to make the application on behalf
of such foreign court or tribunal, and on production of the
letter of request, or of a certificate signed in the manner
and certifying to the effect mentioned in section 45 of the
Evidence Ordinance, or such other evidence as the court
or judge may require, make such order as may be neces-
sary to give effect to the intention of the enactments above
mentioned in conformity with section 44 Of the said
Evidence Ordinance.
(2) An order made under this rule shall be in the
prescribed form.
(3) The examination may be oidered to be taken before
any fit and proper person nominated by the person apply-
ing, or such other qualified person as to the court or judge
may seem fit.
(4) Unless otherwise provided in the order for examina-
tion, the person before whom the examination is taken shall
on its completion forward the same to the Registrar who
on receipt thereof shall append thereto a certificate, in the
prescribed form, duly scaled with the seal of the court,
and shall forward the depositions so certified and the letter
of request, if any, to the Colonial Secretary for transmission
to the foreign court or tribunal requiring the same or, where
the foreign court or tribunal so desires, for transmission
to the consul or other official of the foreign Government
in the Colony.
(5) An order made under this section may, if the court
or judge thinks fit, direct the said examination to be taken
in such manner as may be requested by the letter of request
or therein signified to be in accordance with the practice
or requirements of the foreign court or tribunal, or which
may, for the same reason, be requested by the applicant
for such order. But in the absence of any such special
directions the examination shall be taken in accordance with
the practice of the court.
(6) Where a letter of request, as mentioned in this
section, is transmitted to the court by the Governor with
an intimation that it is desirable that effect should be given
to the same without requiring an application to be made
to the court by the agents in Hong Kong of any of the
parties to the action or matter in the foreign country, the
Registrar shall transmit the same to the Attorney General
who may thereupon make such applications and take such
steps as may be necessary to give effect to such letter of
request, in accordance with this section.
(7) The provisions of this section shall apply, mulatis
mutandis, to applications under section 43 of the Evidence
Ordinance, for the purpose of giving effect to any letter
of request from any of His Majesty's courts or tribunals
of competent jurisdiction outside the Colony. [s. 326A.]
11. Except where by these rules otherwise provided or
directed by the court, no deposition shall be given in
evidence at the trial of the cause without the consent of
the party against whom the same is offered unless the court
is satisded that the deponent-
(a) is dead, or
(b) is beyond the jurisdiction of the court; or
(c)is unable from sickness or other infirmity to attend
the trial,
in any of which cases the dpposition, certified by the court
or tinder 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. [s. 327.]
Affidavits.
12. (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
eac b paragraph shall, as nearly as may be, be confined
to a distinct portion of the 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 he 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. [s. 328.]
13. 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
fraudulently 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.
[s. 329.]
14. No affidavit having in 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 interlineation or altera
tion (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. [S. 330.]
15. Any affidavit sworn in the United Kingdom, any
British possession or any place under the dominion of His
Majesty in foreign parts before any judge, officer or other
person duly authorized or before anycommissioner
authorized by the Supreme Court, to take affidavits in the
United Kingdom, such British possession or place respec-
tively, may be used in the court in all cases where affidavits
are admissible. [s. 331.]
16. Ariv. 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 foreign court
to which he is attached or of such magistrate, or before
a notary public or a British consular officer, may be used
in the court in all cases where affidavits are admissible.
[s. 332.]
17. The fact that an affidavit purports to have been
sworn in the manner prescribed by rule 15 or 16 of this
Order shall be prima facie evidence of the seal or signa-
ture, as the case may be, of any such court, judge, magis-
trate, commisgioner or other officer or person therein
mentioned, appended or subscribed to such affidavit, and
of the authority of such court, judge, magistrate, commis-
sioner or other officer or person to administer oaths.
[S. 333.]
18. The court may receive any affidavit sworn for the
purpose of being used in any cause, notwitlistanding 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. [s. 334.]
19. An affidavit shall not be admitted by 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. [S. 335. ]
20. A defective or erroneous affidavit may be amended
and re-sworn, by leave of the court, on such terms as to
time, costs or otherwise.as may seem reasonable. [s. 336.]
21. Before an affidavit is used the original must be
filed in the Registry; and the original, or an office copy
thereof, shall alone be recognized for any purpose in the
court. [s. 337.]
Evidence at trial.
22. The court may, in its discretion, allow the evidence
in any cause, or as to any particular matter in a cause,
to 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 uniess the court directs the cross-examination
to take place in any other manner. [s. 338.]
23. 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. [s. 339.]
24. 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 in the circumstances
otherwise to direct, on such terms as may seem just.
[s. 340.]
25. (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 witness 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 to insult or annoy or
which, though proper in itself, appears to the court to be
needlessly offensive in form. [S. 341. ]
26. Where any person who might give evidence in any
cause is dead or insane or unavoidably absent at the time
when his evidence might be taken or, for any reason con-
sidered 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 proceed-
ing: Provided that the subject-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. [s. 342.]
27. All evidence taken at the trial of any cause may
be used in any subsequent proceedings in the same cause.
[s. 343.]
28. The provisions of Orders XIII and XIV shall,
with the necessary modifications, apply in respect of any
petition or matter and in respect of the hearing thereof.
[s. 344.]
ORDER XV.
JUDGMENT.
1 . 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. [S. 345.]
2. (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. [s. 346.]
3.If the judgment of the court is reserved at the trial
the court shall either then or on some subsequent day cause
the parties to be informed of the day on which judgment
will be delivered. [S. 347.]
4. (1) All parties shall be deemed to have had notice
of any judgment if the same is pronounced at the trial or
bearing of the cause or matter.
(2) All parties duly informed of the day on which
judgment will be delivered shall be deemed to have had
notice of the judgment when pronounced. [s. 348.]
5. A minute of every judgment or order, whether final
or interlocutory, 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: Pro-
vided that the court may, on good cause shown, in any
cause or matter, on the application of any party, order a
formal judgment or order to be drawn up. [S. 349.]
6. 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. [S. 350.]
7. 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 to the date of the judgment, in addition to any in-
terest adjudged on such principal sum for any period prior
to the commencement of the action; and further interest, at
such rate as may for the time being be fixed by the court,
shall be recoverable on the aggregate sum so adjudged,
from the date of the judgment to the date of payment.
[s. 351.]
8. In any judgment for the payment of money the
court may for any sufficient reason order that the amount
shall be paid by instalments, with or without interest there-
on, and that, in default of payment of any instalment as
and when due, execution may issue for the payment of the
balance of the amount then remaining due. [s. 352. ]
9. In any case in which the court has jurisdiction to
entertain an application for an injunction against a breach
of any covenant, contract or agreement, or against the
commission or continuance of any 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 injunction or specific performance, and
such damages may be assessed in such manner as the
court may direct. [s. 353.]
10. (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 wit-
nessess and the production of documents before the Re-
gistrar or such other person may be compelled by sub-
poena.
(3) It shall be lawful for the Registrar or such other
person to adjourn the inquiry as occasion may require.
(4) The Registrar or such other person shall indorse
on 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 indorsement, to the plaintiff; and such
and the like proceedings may thereupon be had as to taxa
tion of costs, signing judgment and otherwise, as on the
finding of a jury. [s. 354. ]
11. In any action where the plaintiff recovers a sum
of money the amount to which he is entitled may be award
ed to him by the judgment generally without any distinc
tion being therein made as to whether such sum is recover
ed by way of a debt or of damages. [S. 355. ]
12. (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 party.
(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 separate action against the plaintiff.
[s. 356.]
13. 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-
'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 com-
pelling you to obey the said judgment.' [s. 357.]
Order of the court.
14. 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 persons
affected or bound thereby, subject to the same rules and
in the same manner as a judgment to the same effect.
[8. 358.]
ORDER XVI.
COSTS.
1. 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 con-
tained shall deprive any executor, administrator, trustee or
mortgagee who has not unreasonably instituted or carried
on or resisted any proceedings of any right to costs out
of a particular 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 13th day of October, 1873 :
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. [s. 359.]
2. Where issnes in fact and in law are raised upon
a claim or counterclaim the costs of the several issues res-
pectively, both in fact and in law, shall, unless the court
otherwise orders, follow the event. [s. 360.]
3. 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 commis-
sioners, either in taking evidence or in investigating
accounts. [S. 361.]
4. (1) All questions relating to fees and costs shall be
determined by the Registrar on taxation in accordance witil
the scale of court fees and costs of counsel and solicitor for
the time being in use in the court, subject to a review by,
the court by way of summary application in chambers.
(2) So far as such scale may be incomplete, all questions
relating to the amount and reasonableness of fees and costs
shall be determined by the Registrar 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 the court by way of
summary application in chambers.
(3) The payment of the costs 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.
[s. 362.]
(i) The court may, if in any case it thinks fit,
require any party to an action or other proceeding, e ither
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 been
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 the court otherwise ffirects, be given to the party or
person in whose favour the security is ordered to be
given. [s. 363.]
6. (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 lie 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 application. [S. 364.]
7.The court may direct that the 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 froni the former to the latter. [s. 365. ]
8.Unless the court otherwise orders interest on costs,
at such rate as may for the time being be fixed by the court,
shall be recoverable as costs from the date of judgment to
the date of payment. [S. 366.]
9. The court may in any case direct that costs, with or
without interest, shall be paid out of or charged upon the
subject-matter of the action or other Proceeding. [s. 367.]
10. In every case where costs would be recoverable by
or from a private party they shall be recoverable by or from
the Crown. [s. 368.]
Abstract
(20 of 1948) Fraser, Ord. 3 of 1901. Ord. 15 of 1946. Ord. 25 of 1949. Ord. 24 of 1950. Citation. Interpretation. 36 & 37 Vict, c. 66, s. 100. Indian Code, s. 2. O. 71, r. 1A. 36 & 37 Vict, c. 66, s. 100. (Cap. 4.) O. 71, r. 1. 36 & 37 Vict, c. 66, s. 100. Saving. Limited introduction of English rules. Institution and carrying on of actions. Actions to begin with writ of summons. Schedule. Form 1. Preparation and contents of writ. O. 5, r. 10. O. 3, r. 4. Date and teste of writ. Leaving of copy of writ. O. 5, r. 12. Filling and marking of copy of writ. O. 5, r. 13. Sealing and issue of writ. O. 5, r. 11. Writ or notice for service out of jurisdiction. O. 2, r. 4. Alteration in writ. Duration and renewal of writ. O. 5, r. 1. Evidence of renewal of writ. O. 8, r. 2. Case of lost writ. O. 8, r. 3. Savings as to proceedings on petition. H.K. Code, s. 9(5). Right to indorse writ specially in action for debt or liquidated demand. O. 8, r. 6. [r. 13 cont.] Schedule, Form 2. Right to indorse writ specially in action for immovable property. O. 3, r. 6. Nature of special endorsement. O. 3, r. 7. Endorsement in actions by money-lenders. O. 3, r. 10. (Cap. 163.) Procedure on default of appearance to specially indorsed writ. O. 13, rr. 3, 8. O. 13, rr. 3, 16. (Cap. 163.) Procedure where defendant appears to specially indorsed writ. [r. 18 cont.] O. 14, r. 5. Right to indorse writ specially in case of ordinary account, and procedure thereon. O. 14, r. 5. O, 15. Issue and marking of concurrent writs. O. 6, r. 1. Concurrent writs for service within and without the jurisdiction. O. 6, r. 2. Issue of originating summons. O. 54, r. 4B. Schedule. Forms 3, 4, 5. Filling of copy of originating summons. O. 54, r. 4B. Appearance to originating summons. O. 54, r. 4C. Attendance under originating O. 54, r. 4D. Schedule, Form 6. Disclosure by solicitor whose name. [r. 25 cont.] is indorsed on writ. O. 7, r. 1. Change of solicitors. O. 7, r. 2. Prohibition of service on Sunday, etc. General rule as to mode of service. Special modes of service by order of the court. [cf. O. 9, r. 2. O. 67, r. 6.] O. 10. Service on defendant in public service. Service on certain corporations. Service on other corporations. Service on husband and wife. O. 9, r. 3. Service on infant, O.9, r. 4. Service on lunatic. O. 9, r. 5. Service on agent of defendant out of jurisdiction. Service out of the jurisdiction. O. 11, r. 1. Schedule. Forms 7, 8. 22 & 23 Geo. 5, c. 36. O. 11, r. 4. O. 11, r. 5. O. 11, r. 6. Schedule, Form 9. [r. 37 cont.] O. 11, r. 7. O. 11, r. 3. O. 11, r. 8A. O. 11, r. 8. Schedule, Form 10. Schedule, Form 11. Schedule. Form 13. Schedule. Form 11. Schedule. Form 12. Service of process for foreign court: letter of request. O. 11, r. 9. [r. 38 cont.] Schedule, Form 14. O. 11, r. 10. Procedure in cases where a convention applies. O. 11, r. 13. Power to vary order for service. Expenses of service by the bailiff. Service and return of writ. O. 9, r. 15. Appearance in general. Schedule, Form 15. Appearance in case of defendant out of jurisdiction. Cross-action against absent plaintiff. Motion to set aside service before appearance. O. 12, r. 30. Leave to proceed ex prate in case of non-appearance. Subsequent appearance. Trial ex parts. O. 13, rr. 3, 16. (Cap. 163.) 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. [r. 1 cont.] Case of action commenced in name of wrong plaintiff. O. 16, r. 2. Case of counterclaim where a plaintiff is wrongly joined. O. 16, r. 3. General rules as to joinder of persons as defendant. O. 16, r. 4. O. 16, r. 5. O. 16, r. 6. Case of plaintiff in doubt as to person from whom he is entitled to redress. O. 16, r. 7. Action by or against trustees. Executors and administrators. O. 16, r. 8. Action for prevention of waste, etc. O. 16, r. 37. Case of numerous persons having same interest. O. 16, r. 9. Power to approve compromise in absence of some of the persons interested. O. 16, r. 9A. Misjoinder and non-joinder of parties. O. 16, r. 11. Application to add, or strike out, or substitute parties. O. 16, r. 12. Procedure where defendant added or substituted. O. 16, 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. Appearance by infant, O. 16, r. 18. Schedule, Form 16. Guardian ad litem of infant. O. 16, r. 19. Filling of authority by next friend or relator. O. 16, r. 20. Consent of person under disability to procedure. O. 16, r. 21. Representation of heir-at-law, next of kin, or class. O. 16, r. 32(a). O. 16, r. 32(b). Administration at suit of residuary legatee, etc. O. 16, r. 33. Administration at suit of legatee, etc., O. 16, r. 34. Administration at suit of residuary devisee, etc. O. 16, r. 35. Execution of trust at suit of cestui que trust. O. 16, r. 36. Administration at suit of executor, etc. O. 16, r. 38. Conduct of action or proceeding. O. 16, r. 39. Service of notice of judgment in action for administration of estate, etc. and effect thereof. O. 16, r. 40. O. 16, r. 41. O. 16, r. 42. O, 16 , r. 43. Schedule Form 17. O, 16 , r. 44. Action to execute trusts of will. O, 16 , r. 45. Case where no legal personal representative of deceased person interested in matter in question. O, 16 , r. 46. Meaning of estate. (Cap. 10) Right to appear on claim against estate under administration. O, 16, r. 47. [r. 31 cont.] Third party notice. O, 16A, r. 1. Form and issue of notice. O, 16A, r. 2. Schedule Forms 18, 19. Effect of notice. O, 16A, r. 3. Appearance. O, 16A, r. 4. Default by third party. O, 16A, r. 5. Defendant's remedy. O, 16A, r. 6. Third party directions. O, 16A, r. 7. [r. 38 cont.] Leave to defend. O, 16A, r. 8. At trial. O, 16A, r. 9. Costs. O, 16A, r. 10. Fourth and subsequent parties. O, 16A, r. 11. Co-defend-ants. O, 16A, r. 12. Counter-claim. O, 16A, r. 13. 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. O, 17, 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. O, 17, r. 4. Service of order and effect thereof. O, 17, r. 5. Application to discharge or vary order by person under no disability, etc. O, 17, r. 6. Application to discharge or vary order by person under disability. O, 17, 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. O, 17, r. 9. Striking out of cause abated, etc., for a year. O, 17, 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 with action for recovery of immovable property. O, 18, r. 2. Claims by trustee in bankruptcy. O, 18, r. 3. Claims by or against husband and wife. O, 18, r. 4. Claims by or against executor or administrator. O, 18, r. 5. Claims by joint plaintiffs. O, 18, r. 6. Provision as to rr. 4 to 6. O, 18, r. 7. Remedy of defendant for misjoinder of causes of action. O, 18, rr. 8, 9. Rules of pleading. O, 19, r. 1. Form of pleading. O, 19, r. 4. Signature of pleading. O, 19, r. 4. Particulars to be given in case of misrepresentation, fraud, etc. O, 19, r. 6. Ordering of further and better particulars. O, 19, r. 7. Time for pleading after delivery of particulars. O, 19, r. 8. Plea of not guilty by statute or Ordinance. O, 19, r. 12. [s. 7 cont.] Admission of fact not specifically denied. O, 19, r. 13. Condition precedent to be specified in certain cases. O, 19, r. 14. Pleading to raise all grounds of defence or reply. O, 19, r. 15. 29 Car. 2, c. 3. Prohibition of departure in pleading. O, 19, r. 16. Obligation to deal specifically with allegation not admitted. O, 19, r. 17. Joinder of issue. O, 19, r. 18. Evasive denial. O, 19, r. 19. Effect of bare denial of contract, etc. O, 19, r. 20. 29 Car. 2, c. 3. Mode of stating document. O, 19, r. 21. Mode of alleging malice, etc. O, 19, r. 22. Mode of alleging notice. O, 19, r. 23. Mode of alleging contract or relation to be implied from letters, etc. O, 19, r. 24. Presumption of law. O, 19, r. 25. Technical objection. O, 19, r. 26. Striking our or amending or pleading. O, 19, r. 27. Costs of prolix pleading. O, 19, r. 2. Filling of statement of claim. O, 20, r. 1(b). Schedule Form 22. Description of parties. Claim beyond indorsement on writ. O, 19, r. 4. Mode of stating prayer for relief. O, 19, r. 6. Mode of stating distinct claims. O, 19, r. 7. [r. 28 cont.] Service of statement of claim on defendant who has appeared. Power to order service forthwith where writ to be served out of jurisdiction. Power to stay proceedings where statement of claim is defective. Time for filing statement of defence. Schedule. Form 23. Application for extension of time. Filing statement of defence after expiration of time. Mode of denying allegations made in statement of claim. O, 21, rr. 1, 2. No denial necessary as to damages. O, 21, r. 4. Costs of allegation improperly denied or not admitted. O, 21, r. 9. Plea of general issue. O, 21, r. 19. Plea in abatement. O, 21, r. 20. Service of statement of defence on plaintiff. Payment into court. O, 22, r. 1. Specific causes of action. Notice. Schedule. Form 24. Plaintiff may take out money. O, 22, r. 2. Schedule. Form 25. Plaintiff may tax costs. Money remaining in court. O, 22, r. 3. Several defendants. O, 22, r. 4. [r. 44 cont.] Schedule. Form 25. Count-claim. O, 22, r. 5. Non-disclosure of payment into court. O, 22, r. 6. (Cap. 21.) Money paid into court. Under order. O, 22, r. 8. Defence of set-off to claim for money. Making of counter-claim, etc., in lieu of set-off. Cases in which counterclaim may be allowed, and procedure thereon. Schedule Form 26. [r. 50 cont.] Appearance by third party to counter-claim. O, 21, r. 13. Time for reply to counter-claim. O, 21, r. 14. Statement of defence to counter-claim. Continuance of counter-claim. O, 21, r. 16. Filing of reply and subsequent pleadings. Schedule. Form 27. Close of pleadings on default, and default of third party in pleading. O, 27, rr. 13, 14. Pleading matter arising before statement defence or reply. O, 24, r. 1. Pleading matter arising after statement of defence or reply. O, 24, r. 2. Confession of defence founded on matter arising pending the action. O, 24, r. 3. Abolition of demurrer. O, 25, r. 1. Right of party to raise point of law by pleading, and procedure thereon. O, 25, r. 2. Schedule. Form 28. Dismissal of action, etc., on point of law. O, 25, r. 3. Striking out pleading where no reasonable cause of action disclosed, etc. O, 25, r. 4. Declaratory judgment or order. O, 25, r. 5. Amendment of indorsement, etc. O, 28, r. 1. Application for leave to amend. O, 28, r. 6. Right of amendment ex parte. Amendment of statement of claim after defence. Failure to amend after order. O, 28, r. 7. Date of order and date of amendment to be marked. O, 28, r. 9. Filling and service of amended pleading. O, 28, r. 10. Correction of clerical mistake in judgment, etc. O, 28, r. 11. General power to amend. O, 28, r. 12. Discovery by inter-rogatories. O, 31, r. 1. Decision on interrogatories to be delivered. O, 31, r. 2. Schedule. Form 29. Costs of interro-gatories. O, 31, r. 3. Interrogatories for corporation or company. O, 31, r. 5. Setting aside inter-rogatories. Answer to interrogatories. O, 31, r. 8. Schedule. Form 30. Objections to inter-rogatories by answer. O, 31, r. 6. Objection to affidavit in answer. Order to answer or answer further. O, 31, r. 11. Application for discovery of documents. O, 31, r. 13. Schedule. Form 31. Discovery of specific documents. O, 31, rr. 19A (3). Production of documents. O, 31, r. 14. Inspection of document referred to in pleadings, etc. O, 31, r. 15. Time and place for inspection when notice for inspection given. O, 31, r. 17. [r. 14 cont.] Application for inspection. O, 31, r. 18. Order for verified copies of entries in business book. O, 31, r. 19A (1). Claim of privilege. O, 31, r. 19A (2). {Premature discovery or inspection. O, 31, r. 20. Non-compliance with order for discovery or inspection. O, 31, r. 21. Service of order on solicitor. O, 31, r. 22. O, 31, r. 23. Using answer to interrogatories at trial. O, 31, r. 24. [r. 21 cont.] Discovery against bailiff. O, 31, r. 28. Discovery by or against infant, etc. O, 31, r. 29. Notice of admission. O, 32, r. 1. Notice of admit document. O, 32, r. 2. Notice to admit fact. O, 32, r. 4. Evidence of admission. O, 32, r. 7. Judgment or order upon admissions of fact. O, 32, r. 6. Evidence of service of notice. O, 32, r. 8. Costs of unnecessary notice. O, 32, r. 9. Preparation of issues of fact. O, 33, r. 1. [r. 1 cont.] Order of disposal of issues. Amendment of or addition to issues. General power to direct inquires and accounts. O, 33, r. 2. Giving of special directions as to mode of taking account. O, 33, r. 3. Mode of making up account. O, 33, r. 4. Mode of vouching account. O, 33, r. 4A. Surcharge. O, 33, r. 5. Inquiry as to outstanding personal estate. O, 33, r. 6. Numbering of accounts and inquiries. O, 33, r. 7. Rule as to just allowances. O, 33, r. 8. Expediting proceedings in case of undue delay. O, 33, 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. O, 34, r. 2. Preparation. Signing and filing or special cases. O, 34, r. 3. Leave to set down special case where person under disability is party. O, 34, r. 3. Entry of special case. O, 34, r. 5. Schedule. Form 32. Agreement of parties for payment of money, etc., on decision of special case. O, 34, r. 6. Judgment and execution on decision. O, 34, r. 6. Power for persons interested in question as to construction of enactment, etc., to concur in stating special case for opinion of the court, and procedure thereon. 13 & 14 Vict, c, 35, ss. 1, 14, 15. application of order IX. O, 34, r. 7. Trial of questions of fact agreed upon between parties. O. 34, r. 9. Agreement subject to decision. Judgment and execution on decision. O. 34, r. 11. Record of proceedings. O. 34, r. 12. Modes of making interlocutory application. [r. 1 cont.] Filling of motion-paper. Schedule. Form 33. Terms of motion. Amendment of motion-paper. Affidavits in support of motion. Time of moving in case of urgency. Motion to be ex parte or on notice. Proceedings on motion ex parte. Power of amendment, etc., at hearing. Power to make order different from order asked for. Application to vary or discharge order made on motion ex parte. Procedure where notice of motion served. Return-day of order. Filing of counter affidavits. Non-appearance or person served with order. Appearance of person served with order. General power of the court on hearing. Filing of application for summons. Schedule. Forms 34, 35. Issue of summons. Proceedings on return-day of summons. Schedule Form 36. Taking of evidence by affidavit. Cross-examination of person making affidavit. O, 38, r. 1. Taking of evidence viva voce. Preservation, etc., of subject-matter of disputed contract. O, 50, r. 1. Sale of perishable goods, etc. O, 50, r. 2. Detention, preservation or inspection of property the subject of cause or matter. O, 50, r. 3. Inspection by judge. O, 50, r. 4. Inspection by jury. O, 50, r. 5. Application for order of mandamus, etc. O, 50, r. 6. O, 50, r. 7. Order for recovery of specific property, other than immovable property subject to lien, etc. O, 50, r. 8. Conduct of sale of trust estate. O, 50, r. 10. Date of order when drawn up. O, 50, r. 13. Operation of notice of motion, etc., as stay of proceedings. Application to dismiss action for want of prosecution. Order for setting down. Order for setting down on application of plaintiff. Order for setting down on application of defendant. General power to postpone trial of cause. O, 36, r. 34 Application for post-ponement for absent witness. Application for postponement for evidence of witness out of jurisdiction. Keeping of general trial list and trial paper. Transfer of cause from general trial list to trial paper. Notice to parties of transfer of cause. Taking cause out of turn. Notice of postponement of trial not necessary in certain cases. Order as to mode of trial. Right to trial by jury in action of libel, etc., trial without jury. O, 36, r, 3. O, 36, r, 4. O, 36, r, 5. Order for trial with jury. O, 36, r, 6. Mode of trial in cases not expressly provided for. O, 36, r, 2. Provision for different modes of trial for different questions. O, 36, r, 7. Trial by the Full Court. Saving of existing laws relating to juries. Default of appearance by both parties. Default of appearance by plaintiff. Default of appearance by defendant. Adjournment for further service. Procedure where no statement of defences filed. O, 27, rr. 2, 16. (Cap. 163). Trial ex parte. Re-trial of cause for absent defendant in certain cases. Procedure where cause struck out for absence of plaintiff. Default of appearance by plaintiff a second time. O, 36, r. 32. General order of proceedings at trial of cause. [r. 10 cont.] Notes of evidence. Remarks on demeanour of witness. Indian Code, s. 188. Use of notes of evidence. Objections to evidence. Putting in of evidence, by affidavits, etc. Reading of documentary evidence. Marking and disposal of document put in evidence. Amendment of pleadings to correspond with evidence. Evidence in mitigation of damages in action for libel or stander. O, 36, r. 37. Power of the court to direct non-suit, etc. Withdrawal of plaintiff from action. Settlement of action by mutual agreement, etc. Existing rules of evidence. Taking and use of evidence de bene esse. O, 37, r. 5. Letter of request. O, 37, r. 6A. Taking and use of evidence before action brought. Order for attendance of person to produce document. O, 37, r. 7. Disobedience to order for attendance. O, 37, r. 8. Copy of pleadings for examiner. O, 37, r. 10. Custody of deposition taken on examination. Report of examiner on examination, and proceedings thereon. O, 37, r. 17. Procedure for obtaining evidence in the Colony for use in foreign tribunal. O, 37, rr. 54 to 60. (Cap. 8.) 33 & 34 Vict, c. 52, [r. 10 cont.] Schedule. Form 58. Schedule. Form 59. (Cap. 8). Use of deposition taken on examination. O, 37, r. 18. Rules as to form and substance of affidavit. O. 38, rr. 7, 8. Re-writing of defective affidavit. Alteration in affidavit. O, 38, r. 12. Affidavits sworn in the King's dominions, etc., Affidavit sworn out of the king's dominions. Presumption in favour of affidavits purporting to have been sworn abroad. Use of defective affidavit. O, 38, r. 14. Exclusion of affidavit sworn before party, etc. Re-swearing of defective affidavit. Filing and use of original affidavit. Receiving evidence by affidavit. Power to admit affidavit of person not cross-examined. Order of court for admission of affidavit. Rules as to examination of witnesses. Admissibility in certain cases of evidence of witness given in former judicial proceeding. Use of evidence in subsequent proceedings. O, 37, r, 25. Orders XIII and XIV to apply to hearing of petition. Recording of verdict, etc. Pronouncement of judgement. Indian Code, s. 199. Reserved, judgment. Notice of judgment. Minute and formal judgment or order. Filing of written judgment. Rules as to awarding of interest in judgment. Payment of judgment debt by instalments. Power to award damages in addition to or in substitution for in junction, etc. Inquiry for ascertaining amount of damages in certain cases. Sum of money to be awarded generally. Judgment in case of set-off and counter-claim for money. 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. General power of the court as to costs. O, 65, r. 1. Costs of issues in fact and in law. Definition of costs. Taxation of costs. Security for costs. O, 65, r. 6A. O, 65, r. 6. O, 65, r. 7. Effect of failure of plaintiff to give security for costs. Indian Code, s. 381. [r. 6 cont.] Set-off for costs. Indian Code, s. 221. Interest on costs. Payment of costs out of subject-matter. Indian Code, s. 222. Costs payable by or to the Crown. Summons to judgment debtor to appear and be examined as to his ability to pay judgment debt, and proceedings thereon. Judgment for immovable property. Judgment for money. Judgment for money against representative of deceased person. Judgment for specific movable or for specific performance of contract or act. Judgment for execution of deed or indorsement of negotiable instrument. Case of surety for performance of judgment. Order for or against person not a party. O, 42, r, 26. Description of property liable to attachment and sale in execution of judgment. Payment of moneys into court. Period within which execution may issue. O, 42, r, 22. Duration and renewal of writ. O, 42, r, 20. Evidence of renewal of writ. O, 42, r, 21. Separate writs for money recovered and for costs. O, 42, r, 18. Execution in case of cross-judgments for money. Levying expenses of execution. O, 42, r, 15. Determination of questions as to mesne profits and other matters. Power of the court to order immediate execution. Procedure in case of order for immediate execution. Filing of praecipe for writ of execution. O, 42, r. 12. Schedule. Form 37. Note of application for execution. Application for leave to issue execution in certain cases, and proceedings thereon. O, 42, r, 23. [r. 21 cont.] 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. Issue and date of writ. O, 42, r, 14. Order of issue of writs. Procedure where resistance is offered to execution of judgment for immovable property. schedule. Form 38. [r. 27 cont.] Procedure where person other than judgment debtor disputes right to dispossess him of immovable property under judgment. Effect of decision under rule 27 or 28. Levy of execution on judgment for money. Schedule. Form 39. Attachment of movable property. Schedule. Form 40. [r. 31 cont.] Attachment of immovable property. Schedule. Form 41. Attachment of shares in public company. Attachment of negotiable instrument. Attachment of property in custody of public officer. Attachment of property in custodia legis. Service of prohibitory order. (Cap. 128.) Nullity of alienation, etc., of property after attachment. Payment of money or proceeds of property attached to judgment creditor. Appointment of manager of immovable property attached. Raising of judgment debt by mortgage, etc., of immovable property attached. Withdrawal of attachment on satisfaction of judgment. Order for attachment of debts due to judgment debtor. O, 45, r, 1. Schedule. Forms 42, 43. Effect of service of order of attachment. O, 45, r, 2. Payment into court by garnishee. Issue of execution against garnishee. O, 45, r, 3. Schedule. Form 44. Trial of question of liability of garnishee. O, 45, r, 4. [r. 47 cont.] Claim or lien of third person to or on debt, and proceedings thereon. O, 45, r, 5, 6. Effect of payment by or execution on garnishee. O, 45, r, 7. Payment to judgment creditor of proceeds of debts attached. Appointment of manager of debts attached. Debt Attachment Book. O, 45, r, 8. Costs of proceedings for attachment. O, 45, r, 9. Investigation of claim to attached property, and other thereon. [r. 54 cont.] Power to order sale of movable property taken in execution and claimed by third party. O, 45, r, 12. Giving of notice by the baliff of claim to movable property taken in execution. O, 45, r, 16. Withdrawal by the baliff on admission of claim. O, 45, r, 16A. Conduct and mode of sale in execution. Effect of sales in execution without notice of claim by third party. 3 & 4 Geo. 5, c. 34, s. 15. (Cap. 6.) Application to set aside sale of immovable property for irregularity. [r. 60 cont.] Sale of immovable property made absolute, confirmed or set aside. Repayment of deposit, etc., when sale of immovable property is set aside. Granting of certificate to purchaser when sale of immovable property becomes absolute. (Cap. 128.) Delivery to purchaser of immovable property sold in execution. Procedure where resistance is offered to purchaser of immovable property sold in execution. Delivery to purchaser of movable property sold in execution. [r. 66 cont.] Prohibitory order in case of debts and shares sold in execution. Negotiable instruments. Execution of transfer of share, etc. Duration of imprisonment for debt. Support and maintenance allowance to prisoner for debt. Ord, 15/46, s. 2. Removal to hospital of prisoner for debt in case of serious illness. Release of prisoner for debt. Recovery of amount of support and maintenance money. Application of prisoner for debt for discharge. Schedule. Form 45. Schedule. Form 46. Effect of discharge of prisoner for debt. Order on person disobeying judgment to show cause why he should not be punished. Service of order, etc., Proceedings on return-day of order. [r. 79 cont.] Enlargement of time for return to order; conditional order of committal. Duration of detention of person committed. 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. O, 42, r. 31. Proceedings by foreign attachment. Issue of writ of foreign attachment. Schedule. Form 47. Meaning of absence from the Colony. Bond by plaintiff before issue of writ. Schedule. Form 48. Court may order issue of writ before execution of bond. Movable property. Priority of writs. Attachment of property in custody of public officer. Attachment of property in custodia legis. Effect of service of writ on garnishee as regards movable property. Execution of writ against immovable property. (Cap. 128.) Effect of registration of memorial of writ on immovable property. Sale of movable property attached under writ. Punishment of garnishee disposing, without leave, of property attached. Seizure of attached property in danger of being removed, etc. Publication of notice of issue of writ. Service of notice of writ on defendant. Filing of statement of claim, and proceedings thereafter. Proceedings at trial of action. [r. 19 cont.] Attachment of ship in case of adverse claims to goods laden on board. Procedure where several claims to property attached. Staying proceedings against garnishee. Giving leave to defendant to defend action. Application by defendant to dissolve attachment. Application by defendant to set aside judgment, etc., Saving of rights of bona fide purchaser of property in case writ dissolved. Crown suits to be in the name of the Attorney General. [r. 1 cont.] Mode of preferring claim against Government. 23 & 24 Vict, c. 34. Consent of Governor, and procedure thereafter. Service of documents in action. Procedure where judgment given against Government. Right and liability of partners to sue and be sued in firm name, and disclosure of names of partners. O, 48A, r. 1. Disclosure of names of partners in action by firm. O, 48A, r. 2. Service on partners sued in name of firm. O, 48A, r. 3. [r. 3 cont.] Notice of capacity in which person is served. O, 48A, r. 4. Appearance of partners. O, 48A, r. 5. Manager served need not appear. O, 48A, r. 6. Appearance under protest of person served as partner. O, 48A, r. 7. Execution of judgment against firm. O, 48A, r. 8. Attachment of debts owing form firm. O, 48A, r. 9. Application of Order XX to actions between co-partners. O, 48A, r. 10. [r. 10 cont.] Application of Order XX to person trading as firm. O, 48A, r, 11. [cf. O. 16, rr. 22 to 31H.] Application by poor person to sue or defend as pauper. Assignment of counsel and solicitor to consider case. Order for admission to sue or defend as pauper. Assignment of counsel and solicitor to assist pauper. Exemption of pauper from fees. [cf. O. 16, r. 28.] Duty to act, [cf. O. 16, r. 30(3).] Punishment of person taking fee from pauper. [cf. O. 16, r. 28.] Dispaupering of pauper. [r. 8 cont.] Duty of solicitor of pauper as to signing of documents. O, 16, r, 31D. Service of writ of summons in case of vacant possession. O. 9, r. 9. Action for recovery of immovable property to the Crown. Appearance by person in possession. O. 12, r. 25. Appearance by landlord. O. 12, r. 26. Procedure where person not named as defendant appears. O. 12, r. 27. Limitation of defence to part of property. O. 12, r. 28. Plea of possession. O. 12, 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. 15 & 16 Vict, c. 76, 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 detemina- [r. 12 cont.] tion of tenancy by notice to quit. 15 & 16 Vict, c. 76, s. 213. Power on trial of ejectment by landlord against tenant to give damages for mesne profits. 15 & 16 Vict, c. 76, s. 214. Saving of other remedies of landlord. 15 & 16 Vict, c. 76, s. 218. Right of plaintiff to claim mandamus by indorsement on writ. [r. 1 cont.] Setting forth or grounds for mandamus in statement of claim. Proceedings in action claiming mandamus. Issue of peremptory writ of mandamus. Nature of writ and return thereon. Saving of prerogative writ of mandamus. 17 & 18 Vict, c. 125, s. 75. Acceleration of proceedings for prerogative writ. 17 & 18 Vict, c. 125, s. 76. Procedure on prerogative writ. 17 & 18 Vict, c. 125, s. 77. Cases in which relief by interpleader granted. O, 57, r. 1. Matters to be proved by applicant. O, 57, r. 2. Schedule. form 49. [r. 2 cont.] Adverse titles of claimants. O, 57, r. 3. Application by defendant. O, 57, r. 4. Summons by applicant. O, 57, r. 5. Stay of action. O, 57, r. 6. Order upon summons. O, 57, r. 7. Disposal of claims in summary manner. O, 57, r. 8. Decision on question of law. O, 57, r. 9. Failure of claimant to appear or refusal to comply with order. O, 57, r. 10. Appeals in interpleader. O, 57, r. 11. Application of Orders VII and XIII. O, 57, r. 13. General powers of the court in interpleader proceedings. O, 57, r. 15. Interpretation if 'sub-mission' 52 & 53 Vict, c. 49, s. 27. Effect of submission. 52 & 53 Vict, c. 49, s. 1. Provisions implied in submission. 52 & 53 Vict, c. 49, s. 2. And First Schedule. Power of 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. 52 & 53 Vict, c. 49, s. 6. Powers of arbitrator or umpire and procedure on reference. 52 & 53 Vict, c. 49, s. 7. O, 36, r. 48. O, 36, r. 49. O, 36, r. 50. O, 36, r. 51. O, 36, r. 52. Suing out of subpoena. 52 & 53 Vict, c. 49, s. 8. Enlargement of time for making award. 52 & 53 Vict, c. 49, s. 9. Remitting of award. 52 & 53 Vict, c. 49, s. 10. Misconduct or arbitrator or umpire. 52 & 53 Vict, c. 49, s. 11. Application to set said award. 52 & 53 Vict, c. 49, s. 12. O, 42, r, 31A. Reference for report. 15 & 16 Geo. 5, c. 49, s. 88. Reference for trial. 15 & 16 Geo. 5, c. 49, s. 89. Powers of referee, and procedure on reference. 15 & 16 Geo. 5, c. 49, s. 90(1). O, 36, r. 48. O, 36, r. 49. [r. 16 cont.] O, 36, r. 50. O, 36, r. 51. O, 36, r. 52. O, 36, r. 53. O, 36, r. 54. O, 36, r. 55. O, 36, r. 55B. Judgment to be entered by referee. Setting aside judgment of referee. Effect of report or award. 15 & 16 Geo. 5, c. 49, s. 90(2). Remuneration of referee etc,. 15 & 16 Geo. 5, c. 49, s. 90(3). Powers of the court as to reference. 15 & 16 Geo. 5, c. 49, s. 91. Compelling attendance of witness before referee, etc. [r. 22 cont.] 52 & 53 Vict, c. 49, s. 18. Statement of special case pending reference. 52 & 53 Vict, c. 49, s. 19. Costs. 52 & 53 Vict, c. 49, s. 20. The crown to be bound by order XXV. 52 & 53 Vict, c. 49, s. 23. Application of Order XXV, to references under statutory powers. 52 & 53 Vict, c. 49, s. 24. Application for taking security for appearance of defendant in certain cases. Issue of warrant for bringing defendant before the court to show cause why he should not give security. Schedule. Forms 50, 51. Showing cause, and procedure thereon. Schedule. Form 52. Schedule. Form 53. Release or committal to custody of defendant. [r. 4 cont.] Support and maintenance of defendant in prison to be paid by plaintiff. Ord. 24/50, Schedule. Application Ly defendant for discharge of bail or of release form prison. Power to award limited compensation to defendant for unjustifiable arrest. Application for taking security from defendant or for attachment of his property in certain cases. Issue of warrant requiring to furnish security or to appear and show cause, and attaching his property. Schedule. Form 54. Showing cause, and procedure thereon. Saving of rights of other persons under attachment. Removal of attachment on furnishing of security. Power to award limited compensation to defendant for unjustifiable attachment. Arrest and detention of ship in special circumstances. Release of ship under detention. Power to award limited compensation for unjustifiable arrest and detention. Granting of injunction to stay waste, damage or alienation of property. Granting of injunction to restrain breach of contract or other injury. Giving notice of application for injunction. Indian Code, s. 494. Effect of injunction directed to company or corporation. Indian Code, s. 495. Discharge, etc., of order for injunction. Indian Code, s. 496. Power to award limited compensation to defendant for unjustifiable injunction. [r. 6 cont.] Appointment of receiver of property in dispute and powers of receiver. Appointment of receiver by way of execution. O, 50, r. 15A. Giving of security by, and salary of, receiver. O, 50, r. 16. Adjournment of order for receiver into chambers for giving of security. O, 50, r. 17. Fixing of timers for leaving and passing accounts and paying balances. O, 50, r. 18. Leaving and passing account. O, 50, r. 20. Proceedings on default made in leaving or passing account, etc. O, 50, r. 21. Motions for new trial. 15 & 16 Geo, 5, c. 49, s. 30. General power to order new trial. Application for new trial. O, 39, r. 3. Grounds for granting or refusing new trial. O, 39, r . 6. O, 39, r . 8. Power to order new trial on any one question. O, 39, r . 7. Power to order non-suit, etc. Order for new trial, etc. Costs of first trial where new trial ordered. Right to jury on second trial. [r. 9 cont] Recording of grant of application for new trial. Restriction on appeals. 15 & 16 Geo. 5, c. 49, s. 31(1)(h). Limit of time for appeals: 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. O, 58, r. 3. General powers of the Full Court in hearing appeal. O, 58, r. 4. Power to order new trial. O, 58, r. 5. [r. 17 cont.] Power as to costs. O, 58, r. 4. Notice of appeal by respondent. O, 58, r. 6. Length of notice by respondent. O, 58, r. 7. Setting down appeal. O, 58, r. 8. Evidence on appeal as to question of fact. O, 58, r. 11. Transcript of proceedings. Evidence as to direction of or questions by judge. O, 58, r. 13. Interlocutory order not to prejudice appeal. O, 58, r. 14. Stay of proceedings. O, 58, r. 16. Mode of making incidental application. O, 58, r. 18. Interest where execution delayed by appeal. O, 58, r. 19. Counsel in chambers. O, 55, r. 1A. [r. 1 cont.] Course of preceding in chambers. O, 55, r. 37. Determination on originating summons of questions relating to estate of deceased person or to express trust. O, 55, r. 3. Order on originating summons for administration of estate or of trust. O. 55, r. 4. Persons to be served with originating summons. O, 55, r. 5. [r. 5 cont.] Service on other persons. O, 55, r. 6. Evidence in support of application. O, 55, r. 7. Judgment upon summons. O, 55, r. 8. Carriage and service of judgment. O, 55, r. 9. Right of the court to refuse to order administration. O, 55, r. 10. Orders on application for administration, or execution of trust, where no sufficient accounts have been rendered. O, 55, r. 10A. Interference with discretion of executor, etc. O, 55, r. 12. Application by summons under Cap. 29. Application in chambers for relief relating to charity with annual income exceeding $300, 16 & 17 Vict, c. 137, s. 28. [r. 14 cont.] By whom application relating to charity may be made. 16 & 17 Vict, c. 137, s. 43. Attorney General may apply under 52 Geo. 3, c. 101. 16 & 17 Vict, c. 137, s. 43. Sale of mortgaged property in action for redemption or foreclosure. 15 Geo. 5, c. 20, s. 91. Power to order sale of immovable property generally. O, 51, r, 1. Right of mortgagor in effacement by mortgagee to pay mortgage money, etc., and to have re-convey-ance. 15 & 16 Vict, c. 76, s. 219. [r. 19 cont.] Cases excepted from operation of rule 19. 15 & 16 Vict, c. 76, 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. O, 55, r. 19. Evidence on application for appointment of guardian and for maintenance. O, 55, r. 25. Appointment of guardian ad litem in proceedings in chambers. O, 55, r. 27. Classifying interests of parties. O, 55, r. 40. [r. 26 cont.] Court may require separate solicitor to represent parties. O, 55, r. 41. Attendance of parties not directed to attend. O, 55, r. 42. Drawing up of order stating parties who have been directed to attend. O, 55, r. 43. Advertisements. O, 55, r. 44. By whom preparted and signed. O, 55, r. 45. Substance and form of advertisements. O, 55, r. 46. Claimants not sending particulars of claims excluded. O, 55, r. 47. Service of notices on claimants. O, 55, r. 48. [r. 34 cont.] Claimants to produce documents if required. O, 55, r. 49. Claimants' affidavits. O, 55, r. 50. Examination and verification of claims. O, 55, r. 51. Adjudication on claims. O, 55, r. 52. Adjournment. Further evidence. O, 55, r. 53. Notice of claims allowed or disallowed. O, 55, r. 54. Unless served with notice claimant need not attend. Costs. O, 55, r. 55. [r. 41 cont.] List of claims allowed. O, 55, r. 56. Affidavit verifying claims. O, 55, r. 58. Adjudication on claims. O, 55, r. 59. Claimants who have established their claims to be served with notice of judgment. O, 55, r. 60. Computation of interest on debt carrying interest. O, 55, r. 62. Allowance of interest on debt not carrying. O, 55, r. 63. Interest on legacy. O, 55, r. 64. Nature of certificate. O, 55, r. 65. Reference in certificate to judgment, etc. O, 55, r. 66. Contents of certificate in case of account. O, 55, r. 68. [r. 51 cont.] Taking opinion of the court. O, 55, r. 69. Effect of certificate. O, 55, r. 70. Application to discharge or vary certificate. O, 55, r. 70. Power to discharge or vary certificate. O, 55, r. 71. Further consideration of matter originating in chambers. O, 55, r. 72. Keeping of notes of proceedings in chambers. O, 55, r. 73. Drawing up and entering of order. O, 55, r. 74. Evidence of order. O, 55, r. 74A. Appointment of sittings. General publicity of sittings [4. 2 cont.] Order of business at sitting. Sealing and filing of documents. Keeping of Cause-Book. Schedule. Form 57. General power of adjournment. O, 36, r. 34. Power to allow income of property, pendent lite. O, 50, r. 9. Proceedings for limiting ship-owner's responsibility. 57 & 58 Vict, c. 60. Effect of non-compliance with the rules. O, 70, r. 1. Time for applying to set aside proceeding for irregularity. O, 70, r. 2. Statement of grounds of application. O, 70, r. 3. Costs on dismissal of summons to set aside proceeding. O, 70, r. 4. Power to enlarge or abridge time for doing act or taking proceeding. Enlargement of time by consent. O, 64, r. 8. Rules for computation of time limited for doing act or taking proceeding. (Cap. 149.) Appointment of commissioners for oaths. 52 & 53 Vict, c. 10, s. 1. Officers of the court, to administer oaths. 52 & 53 Vict, c. 10, s. 2. Application of leave to issue writ of attachment. O, 44, r. 2. Effect of writ of attachment. O, 44, r. 1. Privilege of judicial officer from arrest. Indian Code, s. 642. Saving of certain provisions of 8 & 9 Will, 3, c. 11. General mode of publishing notice. Forms. Schedule. R.S.C., App. A, Part I, No. 1. (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. R.S.C., App. A, Part I, No. 1. (2) 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. R.S.C. App. K, No. 1A. (1) If the question to be determined arises in the administration of an estate or a trust, intitule it also in the matter of the estate or trust. (2) State concisely the nature of the claim. (3) State the questions. R.S.C. App. K, No. 1B. (1) State the object of the application. R.S.C. App. K, No. 1H. (1) State the object of the application. R.S.C. App. K, No. 1F. (1) Insert the name of the defendant or respondent. R.S.C., App. A, Part I, No. 5. R.S.C. App. A, Part I, No. 6. Insert number of days according to the order. If notice of the writ is to be served, insert 'of notice'. Insert number of days according to the order. If notice is to be served, insert 'of notice'. R.S.C. App. A, Part I, No. 9. R.S.C. App. A, Part I, No. 10A. R.S.C. App. A, Part I, No. 10B. R.S.C. App. A, Part I, No. 10C. R.S.C. App. K, No. 20A. R.S.C. App. A, Part II, No. 1. R.S.C. App. A, Part II, No. 8. R.S.C. App. G, No. 28. R.S.C. App. B, Part II, No. 1. R.S.C. App. B, Part II, No. 1A. R.S.C., App. K, No. 4E. 1 R.S.C., App. K, No. 4F. (1) Mention the judge. R.S.C., App. E, Sec. II. R.S.C., App. E, Sec, II. R.S.C., App. B, Part II. NO. 3. R.S.C., App. B, Part II, No. 4. R.S.C., App. E, Sec.II. R.S.C., App. E, Sec. II. R.S.C., App. E, Sec. III. No.1. R.S.C., App. B, Part II No. 6. R.S.C., App. B, Part II, No. 7. R.S.C. App. B, Part II, No. 8. R.S.C., App, G, No. 25. R.S.C., App. B, Part II, No, 18. (1) State the object of the motion.(1) State the object of the application. (1) State the object of the application. R.S.C., App.K, No.2. (1) Mention the judge. (2) State the nature of the order. (1) Describe the property and its situation. (1) Describe the property. (1) Describe the particular immovable property and its situation. R.S.C., App. B, Part II, No.25. (1) Insert name, address and description of garnishee. R.S.C., App. K, No. 39. (1) Insert name, address and description of judgment debtor.(2) Mention the judge. R.S.C.,App. K, No. 40. (1) Mention the judge. (1) Mention the judge. R.S.C., App. B, Part II, No. 26. (1)'is'or 'are'(2) If the claim is in writing, make the writing an exhibit,(3)State expectation of suit, or that he has already sued. R.S.C., App, L, No,2. R.S.C., App. L, No,3. (a) Name of judge, (b) Description of foreign tribunal.( c) Name and description of the Ambassador, Minister, Diplomatic Agent or Consul of the foreign country.(d) Name of foreign country. (e)Name of witnesses. (f) Name and address of examiner.(g)Place appointed for examination.(h)Description of document, if any, required to be produced. Ord, 6 of 1896, s.2, Schedule. Interpretation. /Metadata>
Extent
ORDER XVII.
EXECUTION.
Investigation as to property of judgment debtor.
1. (1) Where a judgment directing payment of money
remains wholly or in part unsatisfied (whether a writ of
execution has issued or not) the judgment creditor may apply,
to the court for 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 tobis ability to make
the payment directed, and for the discovery of property
applicable to such payment, and as to the disposal which he
may have made of any property-
(3) The judgment debtor shall be bound to produce,
upon oath or otherwise as the court may think fit, all books,
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
judgment creditor and all other witnesses whom the court
thinks requisite may be examined upon oath or otherwise, as
the court may think fit, respecting 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, commit him to prison,
there to remain until the adjourned bearing unless sooner
discharged.
(6) The court may on such investigation as aforesaid
make an interim order for the protection of any property
applicable to the payment directed as it may think
expedient. [s. 369.]
Modes of enforcing judgment.
2.If the judgment is for immovable property the part),
who has obtained the judgment shall be put in possession of
the property, if necessary, by the bailiff. [s. 370.]
3. If the judgment is for money, it may be enforced
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 judg-
ment may be enforced against a defendant. [s. 371]
4. If the judgment is against a party as the represen-
tative of a deceased person and such judgment is for money
to be paid out of the property of the deceased 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 conic 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. [S. 372.]
5. If the judgment is for any specific movable or for
the specific performance of any contract or other particular
act, it may be enforced by the seizure, if practicable, of the
specilic movable and the delivery thereof to the party to
whom it has been adjudged, or by imprisonment 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 darnages have
been awarded, by levying such daniages in the mode pro-
vided for the execution of a judgment for money. [S. 373.]
6. 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 refuses
or neglects to do so, any party interested in having 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. [s. 374.]
7. Where a person has become liable as surety for the
performance of a judgment or of any part thereof the judg-
ment 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.
[s. 375.]
8. Any person, not being a party to a cause 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
matter, 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.[s. 376.]
General rules relating to execution.
9.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, government securities, bonds, or other securities for
money, debts, shares in the capital or joint stock of any
public company or corporation, and all other property what
soever, 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. [S. 377. ]
10. 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. [s. 378.]
11. As between the original parties to a judgment,
execution rnay issue at any time within six years from the
recovery of the judgment. [s. 379. ]
12. 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 tirne during the continuance
of the renewed writ, either by being marked by the Registrar
with the seal of the court and with the date of the day, month
and year of such renewal or by such party giving a written
notice of renewal to the bailiff, signed 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. [s. 380.]
13. The production of a writ of execution, or of the
notice renewing the same, purporting to be marked as
mentioned in rule 12 of this Order showing the same to have
been renewed, shall he sufficient evidence of its having been
so renewed. [s. 381.]
14. 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 costs, but a second writ shall only be for costs. [s. 382.]
15. If there are cross-judgments between the same
parties for the payment of money execution shall be taken
out by that party only who has obtained a judgment for the
larger sum and for so much only as may remain after
deducting the smaller sum, and satisfaction for the smaller
sum shall be entered on the judgment for the larger 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. [s. 383.]
16. 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. [s. 384.]
17. All questions 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 between the date of
the institution of the action and the execution of the Judg-
ment, 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 exectition
of the judgment, shall be determined by order of the
court. [s. 385.]
Immediate execution.
18. (1) The court may at the time of giving judgment,
on the verbal 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) The order for immediate execution s hall be in
writing and shall be sufficient authority to the bailiff to
proceed at once to execution of the judgment by seizure of
the person of the party against whom judgment is given :
Provided that the party obtaining the order shall as soon
thereafter as practicable comply with the requirements of
rule ig of this Order : Provided further that, if the party
against whom the order has been made satisfies the judge
that lie has sufficient means and intends to satisfy the judg-
ment, the judge may discharge the order for immediate
execution. [s. 386. ]
Application for execution in ordinary cases.
19. (1) Subject to the provisions of the preceding rule,
when any party who has obtained a judgment is desirous of
enforcing the same he shall file in the court a praecipe for a
writ of execution.
(2) The prxcipe 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 issuing
it or by the party issuing it, if he does so in person. [s. 387.]
20. 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. [s. 388 ]
Application for leave to issue execution.
21. (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 judgment for or against his wife;
(c)where a party is entitled to execution upon a judg-
ment 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
other 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, requiring
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 judgment if the application is made with-
in 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 forthwith executed, the court may, if it is
satisfied that the party, applying is entitled to execution,
order the judgment to be 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. [s. 390.]
22. (1) If a judgment has been given jointly in
favour of more persons 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. [s. 391.]
Stay of execution.
23. No proceeding by audita querela shafl 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 acts which have arisen too late to be
pleaded ; and the court rnay give such relief and on such
terms as may be just. [s. 392.]
24. Whenever an action is pending in the court
against 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 appears just and reasonable to
do so, stay execution of the judgment, either absolutely or
on such terms as may seem just, until judgment has been
given in the pending action. [s. 393.]
Issue of execution.
25. (1) On the application of the person who has
obtained any Judgment, the Registrar shall, subject to the
provisions of these rules issue the proper writ for the execu-
tion of the judgment.
(2) Every writ of execution shall bear date of the day
on which it is issued. [s. 394.]
26. All writs of execution shall be issued in the order
of application for the same, unless the court otherwise
directs. [s. 395.]
Execution of judgment for immovable Property.
27. (1) If in the execution of a judgment for immov-
able 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 ne month from the
time of such resistance or obstruction.
(2) The court shall thereupon fix a day for investigat-
ing the complaint and shall summon the person against
whom the complaint is made to answer the same,
(3) If on the investigation it appears to the court that
the resistance or obstruction was occasioned by the judg-
ment 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 judg-
nient is still resisted or obstructed in obtaining effectual
possession of the property adjudged to him by the judg-
ment, 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 such
other person may be liable for such resistance or obstruc-
tion, 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 the 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 judg-
ment debtor, the claim shall be numbered and registered as
an action between the person who has obtained the judg-
ment 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 obtsruc-
tion, 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 judg-
ment against the claimant and shall make such order for
staying execution of the judgment, or for executing the
same, as in the circumstances of the case may seem fit.
[s. 396.]
28. (1) Af any person other than th e 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 pro-
perty was bona fide in his possession on his own account
or on account of some person other than the defendant and
that it is not included 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, lie 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 applica
tion shall be numbered and registered as an action between
the applicant as plaintiff and the person who has obtained
the judgment as defendant and the court shall proceed to
investigate the matter in dispute in the 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 juagment. [S. 397. ]
29. The decision of the court under the provisions con-
tained in rule 27 or 28 of this Order shall be given in a sum-
mary 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 claim-
ing under them in respect of the same cause of action.
[s. 398.]
Execution of judgment for money by attachment
of Property other than debts.
30. If the judgment is for money and the amount there
of is to be levied from the property of the judgment debtor,
the court shall cause the property to be attached in the
manner hereinafter prescribed. [s. 399.]
(i) Where the property consists of movable pro-
perty in the possession of the judgment debtor the attach-
ment 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.
[S. 400.]
32. Where the property consists of immovable property
or any interest therein, either at law orin equity, the attach-
ment 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 persons from receiving
the same by purchase, gift or in any other way. [s. 401. ]
33. Where the property 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.
[s. 402.]
34. Where the property consists of a negotiable instru-
ment the attachment shall be made by actual seizure and the
bailiff shall bring the same into court and such instrument
shall be held subject to the further order of the court.
[S. 403]
35. Property in the custody or under the control of any
public officer in his official capacity shall be liable to attach-
ment with the consent in writing of the Attorney General
and in such case the order of attachment shall be served on
such public officer. [s. 404.]
36. Property in custodia legis shall be liable to attach-
ment by leave of the court and in such case the order of
attachment shall be served on the Registrar. [S. 405.]
37. (1) In the case of movable property not in the
possession of the judgment debtor an office copy of the
prohibitory order shall be delivered 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.
(3) In the case of shares in any public company or
corporation an office copy of the prohibitory order shall be
delivered to or served on the manager, secretary or other
proper officer of the company or c6rporation. [s. 406.]
38. 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 aliena-
tion without leave of the court of the property attached,
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 attach-
ment, shall be null and void. [S. 407.]
39. 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 over to the party applying for execution of the judg-
ment, and that any, part of the property so attached which
does not consist of money or bank notes shall, 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 a
sufficient part thereof, shall be paid to such party. [s. 408.]
40. (1) Where the property attached consists of im-
movable 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 accounts of his receipts and disburse-
ments, as the court may direct. [S. 409.]
41. (1) Where the property attached consists of immov-
able property, 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 raise 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 within 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
aInd 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 orders 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.
[S. 410.]
42. 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 theJudgment is otherwise
made, the attachment shall be withdrawn; and such steps.
shall be taken as may be necessary for staying further pro-
ceedings in execution of the judgment.[s. 411.]
Execution of fudgment for money by attachment of debts.
43. (1) The court may, on the ex parte application of
any person who has obtained a judgment 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 any other person is indebted
to the judgment debtor and is within the jurisdiction, order
that all debts due or accruing from such third person (here-
after in this Chapter called the garnishee) to the judgment
debtor shall be attached to answer the judgment.
(2) By the same or any 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.
(3) At least three days before the day of hearing the
order nisi shall be served on the garnishee and, unless
otherwise ordered, on the judgment debtor or his solicitor,
at least three days before the day of hearing. [s. 412.]
44. 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. [S. 411]
45. (1) On such service or notice the garnishee may
forthwith 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. [s. 414.]
46. 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 the
debt due or claimed 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 process, to levy the amount due from the
garnishee or so much thereof as may be sufficient to satisfy
the judgment. [s. 415.]
47. 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. [s. 416.]
48. (1) Where in any proceeding to obtain an attach-
ment 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 any 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 rule 47 of this Order, 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. [s. 417.]
49. 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. [s. 418.]
50. In any case of attachment of debts the court may
direct that 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 creditor. [s. 419.]
51. (1) In any case of attachment 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. [S. 420.]
52. There shall be kept by the Registrar a Debt Attach
ment Book and in such book entries shall be made of the
attachment and 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 on
application to the Registrar and on payment of the prescribed
fee. [[s. 421.]
53. The costs of any application for an attachment
of debts and of any proceedings arising from or incidental.
to such application shall be in the digcretion of the
court. [s. 422.]
Claim to attached Property.
54. (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 herein-
after contained, 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 was attached, or that, being in the possession of
the judgment debtor 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 liberty 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
earliest opportunity, 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 pur-
pose 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 justice and in
such case the claimant shall be left to prosecute his claim,
if he thinks fit, by an action in the ordinary way. [s. 423.]
55. Where movable property has been taken in execution
under the process of the court and any 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. [s. 424.]
56. (1) Where a claim is made to or in respect of any
movablepropery 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 notice to the bailiff that he
admits or disputes the claim.
(2) If the execution creditor admits the claim and gives
notice as directed by this rule, he shall only be liable to the
bailiff for any fees and expenses incurred prior to the receipt
of the notice admitting the claim. [S. 425.]
57. 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 from any action in respect
of the seizure and possession of the property, and the court
may make any such order as may be just and. reasonable in
respect of the same : Provided that the claimant 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 just and reasonable.
[S. 426.]
Sale of properly in execution of judgment.
58. 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. [S. 427. ]
59. Where any goods in the possession of an execution
debtor at the time of seizure by the bailiff or other officer
charged with the enforcement of a writ, warrant or other
process of execution are sold by such bailiff or other officer
without any claim having been made to the same, the
purchaser of the goods so sold shall acquire a good title to
the goods so sold and no person shall be entitled to recover
against the bailiff or other officer, or anyone lawfully acting
under the authority of either of them, except as provided
by section 46 of the Bankruptcy Ordinance, for any sale
of such goods or for paying over the proceeds thereof prior
to the receipt of a claim to the said goods, unless it is proved
that the person from whom recovery is sought had notice or
might by making reasonable inquiry have ascertained that
the goods were not the property of the execution debtor :
Provided that nothing in this section contained shall affect
the right of any claimant who may prove that at the time
of sale he had a title to any goods so seized and sold to any
remedy to which he may be entitled against any person
other than such bailiff or other officer or purchaser as
aforesaid. [s. 427A.]
60. At any time within ten 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 ground 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 satis-
faction of the court that he has sustained substantial injury
by reason of such irregularity. [S. 428. ]
61. (1) If no such application is made the sale shall be
deemed absolute.
(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. [S. 429.]
62. Whenever a sale of immovable property is set aside
for irregularity the purchaser shall be entitled to receive
back any money deposited or paid by him on account of
such sale, with or without interest, to be paid by such
parties and in such manner as it may appear to the court
proper to direct. [S. 430.]
63. (1) After a sale of immovable property has become
absolute in manner aforesaid the court shall grant a certi-
ficate 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 apd, 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.
[S. 431.]
64. (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 applica-
tion of the purchaser, order delivery of the property 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 sonic conspicuous place on
the property or at the court house. [S. 432.]
65. (1) If the purchaser of any immovable property 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 Order relating to
resistance or obstruction to the execution of the judgment
for immovable property 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 sold as proprietor, mortgagee, lessee, or
under any other title, or if in the delivery of possession to
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 obstruction 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. [s. 431]
66. (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 pro-
perty 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 lar as prac-
ticable 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. [s. 434.]
67. 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 frorn
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 proper officer of the
company or corporation from permitting any such transfer
or making any such payment to any person except the
purchaser. [S. 435. ]
68. Where the property sold consists of a negotiable
instrument of which actual seizure has been made the same
shall be delivered to the purchaser. [s. 436.]
69. (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 ex ecution 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 required as aforesaid.
(3) Until the execution of such transfer or the indorse-
ment 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. [s. 437.]
Execution of judgment for money by imprisonment.
70. No person shall be imprisoned in execution of a
judgment for a longer period than one year, or for a longer
period than six months if the judgment is for the payment
of nioney not exceeding five hundred dollars, or for a longer
period than three months if the Judgment is for the payment
of money not exceeding one hundred dollars. [S. 438. ]
71. 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 support and
maintenance, not exceeding five dollars per diem, which shall
be paid by the person at whose instance the judgment has
been executed to the Commissioner of Prisons by monthly
payments in advance, before the first day of each month,
the first payment rnade to be for such portion of the current
month as may remain unexpired before the Judgment debtor
is committed to prison. [s. 439. ]
72. (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 prison in
which he is confined or of the chief medical officer of the
Government, to make an order for the removal of the judg-
ment debtor to the Queen Mary Hospital and for his
treatment there tinder 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 terin of
imprisonment and his support and maintenance money shall
be paid as if no such order had been made. [s. 440.]
73. 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 support and maintenance money. [s. 441.]
74. All sums paid by a plaintiff for the support and
maintenance of a person imprisoned in execution of a judg-
ment shall be added to the costs of the judgment and shall
be recoverable by the attachment and sale of the property
of the judgment debtor; but the judgment debtor shall not
be detained in custoely or arrested on account of any sum
so paid. [S. 442.]
75. (1) Any person imprisoned in execution of a judg-
ment may at any time make written application 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 by himself or jointly with others, or by others
in trust for him (except the necessary wearing apparel of
hiniself 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 verilled by affidavit and shall be forwarded
by the applicant's solicitor or, if he has no solicitor, by the
Commissioner of Prisons, to the Registrar.
(3) On the application being received the Registrar shall
forthwith bring it to the notice of the court, and 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 signify his intention
of appearing and opposing 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 dis-
charge without satisfying the judgnient, has wilfully con-
cealed property or his right or interest therein, or fraudulent-
ly transferred or removed property, or committed any other
act of bad faith : Provided always that the jud-ment credi-
tor shall not be allowed to appear and oppose the applica-
tion unless within the period fixed as aforesaid he shall have
signified in writing to the Registrar his intention of so
appearing and opposing the application.
(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, or if the judgment creditor
has not signified his intention as aforesaid, it shall order the
release of the judgment debtor, but otherwise the court 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. [S. 443.]
76. When any person imprisoned in execution of a
judgment has been once discharged he shall not again be im-
prisoned on account of the same judgment, but his property
shall continue liable, under the ordinary rules, to attachment
and sale until the judgment is fully satisfied.
[S. 444.]
Committal for disobedience to judgment.
77. (1) Where any person is guilty of wilful dis-
obedience to a judgment the person wholas 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 dis-
obedience.
(2) The court, unless it sees good reason to the con-
trary, 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.
[S. 445. ]
78. 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. [s. 446.]
79. On the return-day of the order, if the person to
whom it is directed does not attend and does not establish a
stifficient 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 disobedience, the court
may issue a warrant for his committal to prison. [S. 447.]
80. The court may enlarge the time for the return to the
order or may, on the return of it and in 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 tinie and
in the event of his continued disobedience at that time to
the judgment in respect of which he has been guilty of
disobedience. [S. 448. ]
81. A person committed for disobedience to a judg
ment shall be liable to be detained in custody until be has
obeyed the judgment in all things which are to be imme-
diately 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. [s. 449.]
82. If a mandamus, granted in an action or otherwise,
or a mandatory order, injunction or judginent 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 re-
quired to be done may be done so far as practicable by the
party by whom the mandamus, order, injunction or judg-
ment has been obtained or by some other person appointed
by the court, at the cost of the disobedient party and upon
the act being done, the expenses incurred may be ascertain-
ed in such manner as the court may direct and execution
may issue for the amount so ascertained, and costs.
[s. 450.]
83. Any judgment against a corporation which is wil-
fully disobeyed may, by leave of the court, be enforced by
sequestration against the corporate property, or by com-
mittal of the directors or other officers thereof, or by writ
of sequestration against their property. [S. 451]
PART III.
SPECIAL ACTIONS AND PROCEEDINGS.
ORDER XVIII.
FOREIGN ATTACHMENT.
1. Proceedings by foreign attachment may be taken
in the manner hereinafter prescribed in any action, provided
lhat tile cause of action arose within the jurisdiction.
[S. 452. ]
2. (1) On the filing in court by the plaintiff in any
such action of an affidavit to the following effect-
(a)that the cause of action arose within the jurisdic-
tion ;
(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 mov-
able property within the jurisdiction in the custody
or under the control of any other person within the
Jurisdiction, or that such other person (hereafter in
this Order called the garnishee) is indebted to the
defendant, or that the defendant is beneficially en-
titled 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 attach
ment and shall be made returnable not less than fourteen
days after the date thereof except by special leave of the
court. [s. 453. ]
3. 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. [s. 454. ]
4. (1) Before the writ issues, the plaintiff or some
person on his behalf shall enter into a bond, with one or
more sufficient sureties to be approved by, the 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 that, in case the defendant, at any
time within the period hereinafter limited in that behalf,
causes 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 attachinent.
(2) The bond shall be in such forni and given to such
person as the court may from time to time or in any parti-
cular case approve and direct, and shall be entered into
before the Registrar and deposited in the Registry. [s. 455.]
5. (1) If in any case it is made to appear to the satis-
faction of the court, by affidavit or otherwise, that in 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 linlit
the time, not exceeding seven days from the date of the
issue of the writ, within which the bond inust be entered
into and deposited as aforesaid.
(2) If default is rnade in complying with the require-
merits 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 herein-
before provided in the case of a writ being set aside or a
judgment in the action being reversed or varied. [s. 456.]
6. Every writ against movable property shall be
executed by the bailiff. [S. 457.]
7. (1) Where two or more writs issue at the suit of
different plaintiffs they shall take priority respectively accord-
ing 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
the date and time of the same coming to his hands for
execution. [S. 458.]
8. 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
General and in such case the writ shall be served on such
public officer. [s. 459.]
9.Property in custodia legis shall be liable to attach-
ment by leave of the court and in such case the writ shall
be served on the Registrar. [S. 460.]
10. From the time of the service on the garnishee of
the writ all property whatsoever, within the jurisdiction,
other than immovable property or any 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 ot- tinder 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 fide
prior title thereto or lien or charge thereon and to the rights
and powers of prior incumbrancers, be attached in the hands
of the garnishee to satisfy the claim of the plaintiff. [S. 461.]
(1) Where the defendant is beneficially entitled to
immovable property or to any interest therein, a memorial
containing a copy, of the writ shall be registered in the Land
Office under the Land Registration Ordinance.
(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
in the Land Office, and thereupon the memorial shall be
deemed to have been cancelled. [s. 462. ]
12. From the time of the registration in the Land Office
of the memorial of the writ all immovable property 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. [S. 463]
13. 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. [s. 464.]
14. 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-
(a)knowingly and wilfully parts with the custody or
control of any property attached in his hands; or
(b)removes the same out of the jurisdiction of the
court; or
(c) sells or otherwise disposes of the same; or
(d)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. [S. 465.]
15. 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 may, by
an order in writing, direct the bailiff to seize such property
and detain the same subject to the order of the court; and
the bailiff shall thereupon seize and detain such property
accordingly. [S. 466.]
16. Notice of the issue of the writ shall be inserted twice
in the Gazette and twice in some local newspaper, unless
the court, by reason of the defendant having entered an
appearance or on any other ground, dispenses with the
publication of such notice. [S. 467. ]
17. 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 tile 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 wifliout prejudice to the attachment under
the writ. [S. 468. ]
18. After the issue of the writ (but subject to the
provisions of rule 17 of this Order) the plaintiff may forth-
with file his staterrient 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 flas been due service of the writ of summons and leave
has been obtained to proceed ex Parte. [S. 469.]
19. (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 Order and whether the plaintiff
has established his claim, and shall pronounce judgment
accordingly; and if the plaintiff obtains judgment the court
may, at the sarne 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 attach-
ment, the court may order that any issue or question necessary
for determining such liability shall be tried and determinined
in any Tanner 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 property.
(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 tile
court may have declared to be liable to satisfy the plaintiff's
claim ; and all the provisions of these rules relating to execu-
tion 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. [s. 470. ]
20. Wbere there are two or more claimants to any goods
laden on board of any ship and the ship is attached in all
action against the shipowner for the non-delivery of the
goods, the court may stay the proceedings on such terms
as the court may think proper and order the goods to be
landed and warehoused in custadia 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 as to security and other matters as may seem
just. [S. 471.]
21. 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 Order
or under the provisions of these rules relating to claims to
attached property or to interpleader proceedings. [S. 472.]
22. The court may stay proceedings in any action com-
menced against a garnishee under the provisions of this
Order in respect of property attached in his hands, on such
terms as may seem just. [S. 473. ]
23. 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 thedefendant to
defend the action, without prejudice to the attachment tinder
the writ. [S. 474.]
24. The defendant may, at ally time before any property
attached in the action has been soid in satisfaction of the
plaintiff's claim, apply to the court, upon notice of motion,
for an ordor to dissolve the writ as to the whole or any part
of the property attached, on security being given to answer
the plaintiff's claim, and the court may niake such order,
either absolutely or on such terms as may seem just, and in
the meanwhile may stay or postpone any sale. [S. 475. ]
25. The defendant may at any time within twelve
months from the date of judgment, notwithstanding that the
property attached or ally 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 re-trial 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 reasonably
have made an earlier appli cation to the court, and that he
had at the action 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
just. [S. 476.]
26. The dissolving of any writ or the reversal or setting
aside of any judgment given tinder this Order or of any
subsequent proceedings shall not aflect the title of any
bona fide purchaser for valuable consideration of any
property sold in satisfaction of the plaintiff's claim. [s. 477.]
ORDER XIX.
ACTION BY OR AGAINST THE GOVERNAILNT.
1. The Attorney General may lawfully commence and
prosecute in his own name any action or other civil
proceedings in respect of any claim made by the Crown, or
by the Governor or Government, or by any officer of the
Government in his official capacity, against a defendant
whether Che cause of action arises out of contract or tort or
otherwise : Provided always that this rule shall not affect
the commencement or prosecution of any proceedings in
respect of which any enactment provides that such proceed-
ings shall be taken in the name of some public officer other
than the Attorney General. [s. 478.]
2. (1) Any claim against the Government of the
same nature as claims within the provisions of the Petitions
of Right Act, 1860, may be preferred in the court in an
action instituted by the claimant as plaintiff against the
Attorney General as defendant.
(2) In any Such case it shall not be necessary for the
plaintiff to issue a writ of summons but the action shall be
commenced by the filing of a statement of claim and the
service of a sealed copy thereof on the Attorney General.
[s. 479.]
3. (1) On the application of the Attorney General,
the Registrar shall deliver to him the original statement of
claim for submission to the Governor, whose consent shall
be necessary to the continuance of the action. Such con-
sent may be withheld upon such grounds as would justify
the Attorney General of England in refusing his fiat.
(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 Attorney General to the
Registrar.
(3) In such case the action may, subject to the pro-
visions of this Order, proceed and be carried on under the
ordinary, procedure provided by these rules. [S. 480.]
4. 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 Attorney
General. [s. 481. ]
5. Whenever in any such action judgment is given
against the Government no execution shall issuethereon
but a copy of the judgment, tinder the seal of the court,
shall be transmitted by the court to the Governor. [s. 482.]
ORDER XX.
ACTION BY OR AGAINST FIRM, ETC.
1. (1) Any two 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 re spec-
tive firms, if any, of which such persons were co-partners at
the time of the 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 accru-
ing of the canse. of action co-partners in any such firm to be
furnished in stich manner, and verified upon oath or other-
wise, as the court may direct. [s. 483.]
2. (1) Wliere a writ is sued out by partners in the
name of their firm the plaintfiffs or their solicitors shall, on
demand in writing by or on behalf of the defendant, forth-
with 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 stich demand all proceedings in the action may, on an
application for that purpose, be stayed, on such terms as
the court may direct.
(3) When the names of the partners a re 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 pro-
ceedings shall nevertheless continue in the name of the
firm. [S. 484.]
3. (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
the jurisdiction of the business of the partnership on any
person having at the tirne of service the control or manage-
ment of the partnership business there.
( 2) Subject to the provisions of this Order, such ser
vice shall be deemed good service on the firm so sued,
whether any of the members thereof are out of the juris-
diction 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 jurisdiction
sought to be made liable. [s. 485. ]
4. (1) Where a writ is issued against a firm and is
served as directed by rule 3 of this Order, 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. [s. 486.1]
5. 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. [s. 487.]
6. Where a writ is issued agaiiist a firm and is served
on a person liaving the control or management of the part-
nership business, no appearance by him shall be necessary
unless he is a member of the firm sued. [S. 488. ]
7. Any person served as a partner nlay enter an
appearance under protest, denying that he is a partner, but
such appearance shall not preclude the plaintiff from other-
wise serving the firm and obtaining judgment against the
firm in default of appearance if no partner has entered an
appearance in the ordinary form. [s. 489.]
8. (1) Where judgment is given against a firm execu-
tion may issue-
(a)against any property of the partnership within the
jurisdiction ;
(b)against any person who has appeared in his own
name under rules 5 or 6 of this Order, 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 execution against any other person lis
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 deter-
rnined in any manner in which any issue or question, in an
action may be tried and determined.
(3) Except as against any property 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 bas not
appeared to the writ, unless 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. [s. 490.]
9. (1) Debts owing from a firm carrying on business
within the jurisdiction may be attached under Order XVII
although one or more members of such firm may be resident
abroad, provided that any person having the control or
management of the partnership business or any rnember of
the firm within the Jurisdiction is served with the garnishee
order.
(2) An appearance by any niember pursuant to an
order shall be sufficient appcarance by the firm. [S. 491.]
10. The provisions of this Order 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
abroad, provided such firm or firins 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 executionall such
accounts and inquiries may be directed to be taken and
made, and directions given, as may seem just. [s. 492.]
11. Any person carrying on business within the juris-
diction in a name or style other than his own name may
be sued in such 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 Order relating to proceedings against
firms shall apply. [S. 493.]
ORDER XXI.
ACTION BY OR AGAINST PAUPER.
(i) Any Poor person, before commencing or
defending any action or other proceeding in the court in
his own right or becoming 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 in affidavit of
the petitioner and two householders living in his neighbour-
hood or other responsible persons that he is not possessed
of property to the. amount of fifty dollars in value, his
wearing apparel and the subject-matter of the action or
proceeding only excepted. [s, 494.]
2. (1) The court shall thereupon assign a counsel
and solicitor to consider the petitioner's case.
(2) The petitioner shall lay a case before counsel for
his opinion whether or not he has reasonable grounds for
suing or defending. [S. 495. ]
3. (1) No person shall be admitted to sue or defend
as a pauper unless the case 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 know-
ledge 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 conditions 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. [s. 496.]
4.Where a person is admittecl to sue or defend as
a pauper the court may, if necessary, assign a counsel or
solicitor, or both, to assist him. [S. 497. ]
5. (1) No fee shall be payable by a pauper to his
counsel or solicitor.
(2) A person admitted to sue or defend as a pauper
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 thern on taxation, and such court fees as would
in other cases be chargeable shall be charged and
recovered. [s. 498. ]
6. A counsel or solicitor assigned under this Order
shall not be at liberty to refuse his assistance unless he
satisfies the court that he has some good reason for
refusing. [S. 499.]
7. (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
guilty of a contempt of court and shall be liable to be
proceeded against and punished accordingly. [S. 500.]
8. If any person admitted to sue or defend as a
pauper-
(a)gives or agrees to give any such fee, profit or
reward; or
(b)becomes of ability during the progress of the action
or proceeding; or
(c)misbehaves himself therein by any vexatious or
improper conduct or proceeding; or
(d) wilfully delays the action or proceeding,
he shall be forthwith dispaupered and shall not be after-
wards admitted again in the same action or proceeding to
sue or defend as a pauper. [s. 501. ]
9. (1) No motion-paper or notice of motion shall be
filed or summons issued, and no petition shall be presented,
on behalf of any person admitted to sue or defend as a
pauper, except for the discharge of his solicitor, unless it
is signed by his solicitor, if any.
(2) It shall he 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. [s. 502.]
ORDER XXII.
ACTION FOR RECOVERY OF IMMOVABLE, PROPERTY.
1. In an action for the recovery of immovable pro-
perty 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. [s. 503.]
2. The Attorney General may lawfully institute and
prosecute in his own name an action for recovering unto
the Crown any immovable property claimed by the Crown
and whereof the Crown is not in actual possession. [s. 504.]
3. Any person not named as a defendant in a writ
of summons for the recovery of immovable property may
by leave of the court, appear and defend, on filing an
affirlavit showing that he is in possession of the property
either by himself or by his tenant.[S. 505.]
4. 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.
[S. 506. ]
5. Where a person not named as defendant in a writ
of summons for the recovery of immovable property has
obtained leave of the court to appear and defend, he shall
enter an appearance, according to the provisions of Order
II, entitled in the action against the party named in the
writ as defendant, and shall forthwith give notice of such
appearance to the plaintiff's solicitor or to the plaintiff if
he sties in person, and shall in all subsequent proceedings
be named as a party defendant to the action. [S. 507.]
6. (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 property men-
tioned 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 in appearance where the defence is not
so limited shall be deemed an appearance to defend-for the
whole property. [S. 508.]
7. No defendant in an action for the recovery of
immovable property who is in possession by himself or by
his tenant need plead his title, unless he is in possession
by virtue of a lease or tenancy granted by the plaintiff or
his predecessor in title, or unless his defence depends on an
equitable estate or right or he claims relief on any equitable
ground 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 not 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 hereinbefore mentioned. [s. 509.]
Action of ejectment.
8. 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 the amount.
[s. 510.]
9. (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, without 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
sorved, 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 rriessuage, 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 year's rent was due before the writ was served, and
that no sufficient distress was to be found on the dernised
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-entry 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 excution to be-executed thereon, without paying the
rent and arrears, together with full costs, and without pro-
ceeding for relief on equitable grounds within six months
after such execution executed, then the lessee, his assignee
and all other persons claiming and deriving under the lease
shall be barred and foreclosed from all relief or remedy in
law or equity, other than by bringing an appeal against
such judgment ; and the landlord or lessor shall from thence-
forth hold the demised premises discharged from such lease :
Provided that nothing herein contained shall extend to bar
the right of any mortgagee of the lease, or any part thereof,
who is not in possession, if such mortgagee within six 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 remainder 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. [s. 511.]
10. (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 grounds, 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 applica-
tion 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 just 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 fie may really and boita fide,
without fraud, deceit or wilful neglect, make of the demised
premises from the time of his entering into the actual posses-
sion 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 is restored to his posses-
sion, 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.
[s. 512.]
11. 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 proceed
ings 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 relieved on equit
able grounds, he and they shall have, hold and enjoy the
demised premises according to the lease. thereof made,
without any new lease. [s. 513.]
12. (1) Where the term or interest of any tenant hold-
ing 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 or been determined, either by the
landlord or tenant, by regular notice to quit, and the tenant,
or a ny person holding or claiming by or under him, re-
fuses 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 place of abode of such tenant or person,
and the landlord thereupon proceeds by action of ejectment
for the recovery of possession, it shall be lawful for him,
at the foot of the writ in ejectment, to address a notice to
such tenant or person requiring him to find such bail, if
ordered by the court, an d for such purposes as are here-
inafter 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 lawful for the landlord, on his producing the
lease or agreement or some counterpart or duplicate there-
of, 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 interest of the
tenant has expired or been determined 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 tenant or person
to show cause, within a time to be fixed by the court on a
consideration of the situation of the premises, why such
tenant or person should not enter into a recognizance by
himself and two sufficient sureties in a reasonable surn
conditioned to pay the damages and costs 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, within 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 an 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.
[S. 514. ]
13. Where it appears, on the trial of any ejectment at
the suit of a landlord against 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 pre
mises mentioned in the writ in ejectment, to go into evid
etice of the mesne profits thereof which have or might have
accrued from tile day of the expiration or determination of
(fie teilant's interest in the same down to the time of the
judgment given iri the cause or to some preceding day to
be specially mentioned therein ; and the court or jury oil
the trial finding for the claimant shall in such case give its
judgment or their verdict upon the 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 profits; and in such case the 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 : Provided that
nothing hereinbefore contained shall be construed 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 de
livery of possession of the premises recovered in the eject
ment. [S. 515.]
14. Nothing in this Order shall be construed to pre-
judice 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 en-
acted. [s. 516.]
ORDER XXIII,
MANDAMUS.
Action of mandamus.
1. 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. [s. 517.]
2. The statemont of claim in any such action shall
set forth sufficient grounds on which the claim is founded,
and shall set forth that the plaintiff is personally interested
therein, and that lie 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. [s.518]
3. The proceedings in any such action shall be the
same in all respects, as nearly as may be, as in an ordinary
action for recovery of damages. [S. 519.]
4. (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, corn-
manding him forthwith, or within such time as. the court
may direct, to perform the duly to be enforced, and such
writ may, in case of disobedience, be enforced by corn-
mittal.
(2) The court may, on sufficient cause shown, extend
the time for the performance of the duty. [S. 520.]
5. The writ of mandamus need not contain any
recitals, but shall simply command the performance of the
duly, and in other respects shall be in the form of an
ordinary writ of execution, except that it shall be directed
to the party and not to the bailiff and be returnable forth-
with ; and no return thereto, except that of compliance,
shall be allowed, but time to return it may, on sufficient
grounds, be allowed by the court, either on or without
terms, as to the court may seem just. [S. 521. ]
Prerogative writ of mandamus.
6. Nothing in this Order shall affect the jurisdiction
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 Order. [s. 522.]
7.On application by motion for a prerogative 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 return
able forthwith, but time to return it may, on sufficient
grounds, be allowed by the court, either on or without
terms, as to the court may seem just. [S. 523.]
8. The provisions of these rules, so far as they are
applicable, shall apply to the pleadings and proceedings
on a prerogalive writ of viandamus issued by the court.
[S. 524.]
ORDER XXIV.
INTERPLEADER.
1. Relief by way of interpleader may be granted--
(a)where the person seeking relief (in this Order
cafled the applicant) is under liability for any debt
or movable property for or in respect of which lie
is, or expects to be, sued by two or more parties
(in this Order called the claimants) making adverse
claims thereto; and
(b) where the applicant is the bailiff and claim is made
to any movable property taken or intended to be
Jaken in execution under any process, or to the
proceeds or value of any such movable property,
by any person other than the person against whom
the process issued. [S. 525.]
2. The applicant must satisfy the court, by affidavit
or otherwise-
(a) that the applicant claims no interest in the subject-
matter in dispute, other than for charges or costs;
and
(b)that the applicant does not collude with any of the
claimants; and
(c)that file applicant, except where he is the bailiff
and has seized movable property and has with-
drawn 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. [S. 526.]
3.The applicant shall not be disentitled to relief by
reason only that the titles of the claimants have not a
common origin but are adverse to and independent of one
another. [s. 527.]
4. Where the applicant is a defendant application for
relief may be made at any time after service of the writ
of summons. [S. 528.]
5.The applicant may take out a summons calling on
the claimants to appear and state the nature and parli
culars of their claims, and either to maintain or relinquish
them. [S. 529.]
6. If the application is made by the defendant in
an action the court may stay all further proceedings in the
action. [s. 530.]
7. If the claimants appear in pursuance of the sum-
mons the court may order either that any claimant be made,
a defendant in any action already commenced in respect of
the subject-matter in dispute in lieu of or in addition to
the applicant or that an issue between the claimants be
stated and tried, and in the latter case may direct Miich of
the claimants is to be plaintiff and which defendant.
[s. 531.]
8.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. [s. 532.]
9. Where the question raised by the claims is a ques-
tion of 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. [s. 533.]
10. If a claimant, having beer duly served with a
summons calling on him to appear and maintain or relin-
quish his claim, does not appear in pursuance of the
suinnions 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 claim-
ing under him, but the order shall not affect the rights of
the clainianis as between themselves. [S. 534.]
11. (1) The decision of the court in a summary way
under rule 8 of this Order and the decision of the court
on a question of law under rule 9 of this Order shall be
final and conclusive against the claimants, and all persons
claiming under them unless leave to appeal is given by
the court or by the Full Court.
(2) Where an interpleader issue is tried by a judge
alone in appeal shall lie from an decision arrived at or
any judgment directed by the judge.
(3) Where an interpleader issue is tried by a judge
with a jury, an application for a new trial or to set aside
the verdict, finding or judgment may be made.
(4) Where the court or a judge tries an interpleader
issue and finally disposes of the whole matter under rule
12 of this Order, an appeal shall lie from the decision or
judgment.
(5) Any appeal under this section shall be to the Full
Court and shall be deemed to be interlocutory. [s. 535.]
12. Orders VII and XIII shall, with the necessary
modifications, apply to an interpleader issue; and the
court may finally dispose of the whole matter of the inter
pleader proceedings,including all costs not otherwise
provided for. [s. 536.]
13. The court may, in or for the purposes of any inter
pleader proceedings, make all such orders as to costs and
all other matters as may be just and reasonable. [s. 537.]
ORDER XXV.
REFERENCE TO ARBITRATION.
1. In this Order, 'submission' means a written
agreement to submit present or future differences to arbitra-
tion, whether an arbitrator is named therein or not. [5. 538.]
Reference by consent out of court.
2. A submission, unless a contrary intention is
expressed therein, shall be irrevocable, except by leave of
the court, and shall have the same ellect in all respects
as if it had been made an order of court. [s. 539.]
3. A submission, unless a contrary intention is
expressed therein, shall be deemed to include the provisions
hereinafter set forth so far as they are applicable to the.
reference under the submission-
(a)if no other mode of reference is provided the refer-
ence shall be to a single arbitrator;
(b)if the reference is to two arbitrators, the two
arbitrators may appoint an umpire at ally time
within the period during which they have power
to make an award;
(c)the arbitrators shall make their award in writing
within three months after entering-on the reference,
or after having been called on to act by notice in
writing from any party to the submission, or on
or before any later day to which the arbitrators,
by any writing signed by them, may from time to
time enlarge the time for making the award;
(d)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 the refer-
ence in lieu of the arbitrators;
(e)the umpire shall make his award within three
months after the original or extended time appoint-
ed for making the award of the arbitrators has
expired, or on or before any later day to wflich
the umpire, by any writing signed by him, may
from time to time enlarge the time for making the
award.,
the parties to the reference, and all persons claim-
ing through or under them respectively, shall,
SUbject to any legal objection, submit to be
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, deeds, papers, accounts,
writings and documents in their possession or
power respectively which may be required or called
for, and do all other things which, during the pro-
ceedings on the reference, the arbitrators or umpire
may require;
(g)the witnesses on the reference shall, if the arbitrators
or unipire think fit, be examined upon oath ;
(h)the award to be made by the arbitrators or urnpire
shall be final and binding on the parties and the
persons claiming through or under them respective-
ly; and
(i) the costs of the reference and award shall be in the
discretion of the arbitrators or umpire, who rnay
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. [s. 540.]
4. If any party to a submission, or any person claim-
ing 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 pro-
ceedings, apply to the court to stay the proceedings, and
the court, if it 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 proceed-
ings accordingly. [S. 541.]
5. (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 appoint-
ment of an arbitrator;
(b)if an appointed 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 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 arbitrators, 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 applica
tion by the party 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. [S. 542.]
6. Where a submission , provides that tile reference
shall be to two arbitrators, one to be appointed by each
party, then, unless the submission expresses a contrary
intention-
(a)if either of the appointed arbitrators refuses to act,
or is incapable of acting, or dies, the party, who
appointed him may appoint a new arbitrator in his
place; and
(b)if, on such a reference, one party fails to appoint
an arbitrator either originally or by way of sub-
stitution 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 oil 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. [s. 543. ]
7. (1) The arbitrators or umpire acting under a sub-
mission shall unless the submission expresses a contrary
intention have power---
(a)to administer oaths to the parties and witnesses
appearing; and
(b)to state an award as to the whole or part thereof in
the forni 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 --
(a) they may hold the proceedings on the reference at
or adjourn thern to any place which they may deem
most convenient, and have any inspection or view
which they may deem expedient for the better dis-
posal of the controversy before them ;
(b)evidence shall be taken on the reference, and the
attendance of witnesses may be enforced by sub-
peena, 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.
(3) Nothing in this section shall authorize them to
commit any person to prison or to enforce any order by
committal or otherwise.
(4) When they make an award they shall immediately
thereafter cause notice thereof to be given in writing to all
the parties to the reference before them. [s. 544.]
8. Any party to a submission may sue out a writ of
subpwna ad lestificandum or a writ of subpoena duces lecum,
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. [S. 545.]
9. 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. [s. 546.]
10. (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 the arbitrators or umpire.
(2) Where, an award is remitted the arbitrat ors or
umpire shall, unless the order otherwise directs, rnake their
award within three. months after the date of the order.
[S. 547.]
11. (1) Where an arbitrator or umpire has miscon-
ducted himself the court may remove him.
(2) Where an arbitrator or urnpire has misconducted
hiniself, or an arbitration or award has been improperly
procured, the court may set aside the award. [s. 548. ]
12. An application to set aside an award may be made
within one month after such award has been made and
published to the parties. [s. 549.]
13. (1) An award may, by leave of the court, be en-
forced in the sarne manner as a judgment or order of
court to the same effect.
(2) An award may, by leave of the court 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. [s. 550.]
Reference under order of court.
14. (1) Subject to the provisions of these' rules and to
any right to have particular cases tried by a jury, the court
may refer to a special referee for inquiry or report any
question arising in any cause or matter, other than a criminal
proceeding by. the Crown.
(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 of the
court to the same effect. [S. 551. ]
15. In any cause or matter, other than a criminal pro-
cceding by the Crown-
(a)if all the parties interested who are riot under
disability consent; or
(b)if the cause or matter requires any prolonged
examination of documents or any scientific or local
investigation which cannot, in the opinion of the
court, conveniently be made before a jury or con-
ducted by the court through its other ordinary
officers; or
(c)if the question 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 all officer of the court. [S. 552.]
16. In every case of reference to a special referee or
arbitrator or to an officer of the court under 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 sliall conduct the reference in such manner, as is
hereinafter mentioned-
(a) he may, subject to the order of the court, hold the
trial at or adjourn it to any place which he may
deern 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 court he shall, unless
offierwise directed by the court, proceed with the
trial de die in diem, in a similar manner as in an
action tried with a jury;
(b)subject to any order to be made by the court,
evidence shall be taken at the trial, and the attend-
ance oF witnesses may be enforced by subpoena,
and the trial shall be conducted in the same manner,
as nearly as circumstances will admit, as trials are
conducted before,the court;
(c)subject to any such order as last aforesaid, lie 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 parly, as
the court;
(d)nothing in this rule shall authorize him to commit
any person to prison or to enforce any order by
committal or otherwise;
(e)he may, before the conclusion of the trial before
him, or by his report or award 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;
(f) when he makes a report or award he shall imme-
diately thereafter cause notice thereof to be given
in writing to all the parties to the trial or reference
before him ;
(g)where a report or award has been made in a cause
or matter, the further consideration 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 leive 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 considera-
tion to the same or any other special referee,
arbitrator or officer of the court;
(h)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.
(i)he may, subject to any directions in the order of
reference, exercise the same discretion as to costs
as the court could have exercised. [S. 553. ]
17. 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 judg-
ment. 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.
[S. 554.]
18. Where at the trial a special referee, arbitrator or
officer of the court directs that any judgment be entered,
any 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.
[S. 555.]
19. 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. [s. 556. ]
20. 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. [S. 557.]
21. The court shall, as to any reference under an. order
of the court, have all the powers which are by this Order
conferred on the court as to a reference by consent out of
court. [s. 558.]
General.
22. (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 arbitra-
tor, 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 testlificandum shall issue to bring up a prisoner for
examination before a special referee or before any arbitrator,
umpire or officer of the court. [S. 559. ]
23. Any special referee, arbitrator, or umpire or officer
of the court may, at any stage of the proceedings tinder a
reference, and shall, if so directed by the court, stale in he
form of a special case for the opinion of the court any ques-
tion of law arising in the course of the reference. [s. 560. ]
24. Any order made under this Order may be made on
such terms as to costs, or otherwise, as the authority making
the order thinks just. [S. 561. ]
25. This Order shall, except as in this Order expressly
mentioned, apply to any arbitration to which His Majesty
the King is a party; but nothing in this Order shall empower
the court to order any proceedings to which His Majesty is
a party, or any question or issue in any such proceedings,
to be tried before any special referee, arbitrator or office
without the-consent of His Majesty, or shall affect the law
as to costs payable by the Crown. [S. 563.]
26.. This Order shall apply, to every arbitration under
any Ordinance as if the arbitration were pursuant to a
submission, except in so far as this Order is inconsistent
with the Ordinance regulating the arbitration or with any
rules or procedure authorized or recognized by that Ordin-
ance. [s. 564.]
PART IV.
PRIOVISIONAL REIMEDIES.
ORDER XXVI.
ARREST AND ATTACHMENT BEFORE JUDGMENT.
Arrest of absconding defeitdaiit.
1. 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 appearan * ce to answer any judgment that
may be given against him in the action. [S. 566.]
2. If the court, after making such investigation as it
may consider necessary, is of the 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 his 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
fie may show cause wily he should not give security for
his appearance to answer any judgment that may be given
against him in the action. [s. 567.]
3. (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 under-
take, in default of such appearance, to pay any surn 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 toanswer any sum of money that may be adjudged
against him in the action, with costs, tile court may accept
such deposit in lieu of bail. [S. 568.]
4. (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.
(3) When a defendant is committed to prison under
sub-rule (2) the court shall fix whatever monthly allowance
it may think sufficient for his support and maintenance, not
exceeding five dollars per diem, which shall be paid by the
plaintiff to the Commissioner of Prisons by monthly payments
in advance before the first day in each month, the first pay-
ment made to be for such portion of the current month as
may remain unexpired before the defendant is committed
to prison.
(4) Every defendant imprisoned under sub-rule (2) shall
be released at any time on the plaintiff omitting to pay his
support and maintenance money. [S. 569.]
5. (1) A defendant who has given bail for his appear-
ance, 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.
(2) The surety or sureties for the appearance of the
defendant or either or any of them may at any time apply
to a judge to be discharged from his or their obligation.
On such application being made the judge shall summon
the defendant to appear; or, if necessary, he may issue a
warrant for his arrest in the first instance.
On the appearance of the defendant pursuant to the
summons or warrant or on his voluntary surrender, the
court shall direct the surety or sureties making application
under this section to be discharged from his or their obliga-
tion, and shall call upon the defendant to find security,
whereu pon the provisions of sub-rule (2) of rule 4 of this
Order shall again apply. [S. 570. ]
6. (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 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 deern a reasonable compensation to the
defendant for any injury or loss which he may have sustained
by reason of the arrest : Provided that the court shall not
award a larger sum by way of compensation under this rule
than it is competent to the court to award in an action for
damages.
(2) An award of compensation under this rule shall bar
any action for damages in respect of the arrest. [s. 571.]
Interim attachment of Property of defendant.
7. (1) If in any action the defendant, with intent to
obstruct or delay the execution of any judgment that may be
given against 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 against him in
the action, and, in the event of his failing to furnish such
security, to direct that any property, movable or immovable,
belonging to the defendant 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 affida-
vit to the effect that the defendant is about to dispose of or
remove his property or some part thereof, with such intent
as aforesaid.
[S. 572.]
8. (1) If the court, after making stich investigation
as it may consider necessary, is of opinion that there is
probable cause for believing that the defendant is aboutto
dispose of or remove his property or sorne 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 is 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 SUCII 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 should not furnish such security.
(2) The court may also in the warrant direct the at-
tachment until further order of the whole or any portion
of the property of the defendant within the Colony.
(3) The attachment shall be made, accotding to the
nature of the property to be attached, in the manner pre
scribed in Order XVII for the attachment of property in
execution of a judgment for money. [s. 573.]
9. (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 application, or any portion
thereof, has been attached, the court shall order the attach-
ment 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 answer 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 Order XVII for the attachment of property
in execution of a judgment for money. [s. 574.]
10. The attachment shall not affect the rights of any
persons 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 Order XVII for the investigation of claims to
property attached in execution of a judgment. [S. 575.]
11. 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. [s. 576. ]
12. (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 against 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 time of the pronouncing of the judgment,
award against the plaintiff such amount, not exceeding one
thousand dollars, as it may deem a reasonable compensa-
tion 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 rule than it is competent to the
court to award in in action for damages.
(2) An award of compensation under this rule shall
bar any, action for damages in respect of the attachment.
[S. 577.]
Arrest and detention of ship.
13. Where the extreme urgency or other peculiar cir-
cumstances 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 the clearance 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 ut the instance of any plain-
tiff unless the application for the issue thereof is Supported
by an affidavit of the facts. [s. 578.]
14. The court may at any time release a ship detained
under rule 13 of this Order, on such terms as it may think
just. [S. 579.]
15. (1) If it appears to the court that the warrant was
applied for on insufficient grounds, or if the action is dis-
missed or judgment is. given against 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,
either before or at the time of the pronouncing of the judg-
ment, award against the plaintiff such amount, not exceed-
ing 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 that the court
shall not award a larger sum by way of compensation under
this rule than it is competent to the court to award in an
action for damages.
(2) An award of compensation under this rule shall
bar any action for damages in respect of the arrest and
detention of the ship. [S. 580. ]
ORDER XXVII.
TEMPORARY INJUNCTION.
1 . (i) In any action in which it is shown to the satis-
faction 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 pre-
venting him from wasting, damaging or alienating the pro-
perty as to the court may seem fit.
(2) In case of disobedience the injunction may be en-
forced by the committal to prison of the person disobeying
it. [s. 581.]
2. (1) In any action for restraining the defendant
from the commission of any breach of contract or other in-
jury, 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 in-
junction to restrain the defendant from the repetition or con-
tinuance 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) 1n case of disobedience the injunction may be en-
forced by the committal to prison of the person disobeying
it. [s. 582.]
3. The court shall in all cases under this Order, except
where it appears that the object of granting an in-junction
would be defeated by the delay, before granting an injunc-
tion direct notice of the application for the same to be given
to the opposite party. [S. 583.]
4. An injunction directed to a public company or cor-
poration shall be binding not only on the company or cor-
poration itself but also on all members and officers of the
company or corporation whose personal action it seeks to
restrain. [S. 584.]
5. Any order for an injunction made under this Order
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 terms as may seem just. [S. 585. ]
6. (1) If it appears to the court that the injunction was
applied for on insufficient grounds, or if the action is dis-
missed or judgment is given against 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 time of the pronouncing of the judgment, award
against the plaintiff such amount, not exceeding one thou-
sand 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 compen-
sation under this rule than it is competent to the court to
award in an action for damages.
(2) An award of compensa tion under this rule shall bar
any action for damages in respect of the issue of the
injunction. [s. 586. ]
ORDER XXVIII
RECEIVER.
1 . Whenever it appears to the court to be necessary for
the realization, preservation, or better custody or manage-
ment of any property, the subject of an action or other
proceeding or under attachment, the court may appoinf a
receiver of such property and, if necessary, order all or
of the following. things-
(a) the removal of the person in whose possession or
custody the property may be from the possession oi-
custody thereof;
(b)the commitment of such property to the custody or
management of such receiver; and
(c)the granting to such receiver of all such powers as
to bringing and defending actions and other pro-
ceedings, 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 instru-
ments in writing, as the owner himself has, or such
of those powers as the court thinks fit. [s. 587.]
2. 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. [S. 588. ]
3. Where an order is made directing a receiver to be
appointed the person to be appointed shall, unless otherwise
ordered, first give security, to be allowed by the court and
taken before the, Registrar, duly to account for what he shall
receive as such receiver and to pay the same as the court may
direct ; and the person so to be appointed shall, unless other-
wise ordered, bc allowed a proper salary or allowance by
way, of fees or commissions or otherwise, as the court rnay
think fit. [s. 589.]
4. ViThere 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
niatter then pending, in order that the person named as
receiver may give security as mentioned in rule 3 of this
Order, and may thereupon direct such judgment or order
to be drawn up. [S. 690.]
5. (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 accounts 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 receiver neglects to leave and pass his
accounts and pay the balances thereof at the times so fixed
or enlarged for thal 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
therein claimed by such receiver and may also, if it thinks
fit, charge him with interest at the rate for the time being
fixed by the court upon the balances so neglected to be paid
by him during the time the same may appear to have
remained in his hands. [s. 591. ]
6. (1) Every such receiver shall leave with the.
Registrar his account together with an affidavit verifying the
same.
(2) An appointment shall thereupon be obtained by the
plaintiff or the person having the conduct of the cause or
matter for the purpose of passing such account.[S. 592.]
7. In case of any 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 and payment of costs. [s. 593. ]
PART V.
APPEALS.
ORDER XXIX
APPEAL TO THE FULL COURT.
1. 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 any issue therein with a jury
shall be heard and determined by the Full Court. [S. 594.]
2.The Full Court may in any cause or matter, on
such terms as may seem just, order a new trial, with or
withouta stay of proccedings. [S. 595.]
3. (1) Any application for a new trial shall be 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 whether 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 expiration of such fourteen , days an
application for such new trial shall not be admitted, except
by special leave of the Full Court on Such terms as may
seem just. [S. 597. ]
4. (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 Full Court
that such wrong or miscarriage affects part only of the
matter in controversy, or sorne or one only of the parties,
the Full Court may give final judgment as to part thereof or
as to some or one oifly qf 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.
[s. 598.]
5.A new trial may be ordered on any question,
whatever may be the grounds for the new trial, without
interfering with the finding or decision on any other
question [S. 599. ]
6. On any motion for a new trial the Full Court shall
have power to order a nonsuit or verdict to be entered, at-
though no leave has been reserved at the trial. [S. 600. ]
7. 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. [S. 601.]
8. When a new trial is granted on the ground that the
verdict was against evidence the costs of the first trial shall
abide the event, unless the Full Court otherwise orders.
[s. 602.]
9. (1) On an order for a new trial either party may,
if he is entitled thereto under the provisions of Order XII,
dernand a jury for the second trial, though the first was
without a jury.
(2) The Full Court may, if it thinks fit, niake it a con-
dition of granting a new trial that the trial shall be with a
jury. [s. 603.]
10. When an application for a new trial is grailted a
note thereof shall be rnade in the Cause-Book and the Full
Court shall give such order in regard thereto as it may deem
proper in the circumstances of the case. [S. 604.]
11. No order made by the court by the consent of
parties or as to costs only which by law are left to the dis
cretion of the court shall be subject to any appeal, except
by leave of the court. [s. 605. ]
12. (1) No appeal to the Full Court from any decision
of the court shall, except by special leave 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 niade or given as may be
directed in special circumstances by the Full Court.
[s. 606. ]
13. (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
petition, case or other formal proceeding, other than such
notice of motion, shall be necessary.
(2) The appellant nidy 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. [S. 607.]
14. (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. [5. 608.]
15. The notice of motion shall be a fourteen days'
notice. [S. 609.]
16. (1) The Full Court shall have all the powers and
duties as to amendment and in all other respects of the
court, together with full discretionary power to receive fur-
ther evidence upon questions of fact, such evidence to be
either by oral examination in court, by affidavit or by de-
position taken 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 occurred 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 powers aforesaid 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 respondeds
or parties may not have appealed from or complained of the
decision. [s. 610.]
17. If on the hearing of an appeal it appears to the Full
Court 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 the case may be, shall be
set aside and that a new trial shall be had. [s. 611. ]
18. 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. [S. 612. ]
19. (1) It shall not in any circumstances be necessary
for a respondent to give notice of motion by way of cross
appeal but if 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 rule 20 of this
Order or such time as may be prescribed by special order,
give notice of such intention to any parties who may be
affected by such contention.
(2) The omission to give such notice shall not diminish
the powers of the Full Court but may, in the discretion of
the Full Court, be ground for an adjournment of the appeal
or for a special order as to costs. [s. 613.]
20. Subject to any special order which may be made
by the Full Court, notice by a respondent under rule io
of this Order shall be an eight days' notice.
21. The party appealing from a judgment or order
shall leave with the Registrar a copy of the notice of motion
to be filed, and the Registrar shall thereupon set down the
appeal by entering the same in the proper list of appeals,
and it shall come on to be heard according to its order in
such list, unless the Full Court otherwise directs, but so as
not to come into the paper for hearing before the day named
in the notice of motion. Is. 615.]
22. When any question of fact is involved in an appeal
the evidence taken in the court bearing on such question
shall, subject to any special order, be brought before the
Full Court-
(a)as to any evidence taken by affidavit, by the pro-
duction of the affidavits; and
(b)as to any evidence given orally, by the production
of the judge's notes, or such other materials as the
Full Court may deem expedient. [S. 616.]
23. Not less than five days before the day fixed for the
hearing of the appeal the appellant shall deliver to each of
the judges a complete transcript of the proceedings in the
case. [s. 617.]
24. If on the hearing of an appeal any question arises
as to the ruling or direction of the judge to a jury or
questions put to nssessors, the Full Court shall have regard
to verified notes or other evidence and to such other
materials as the Full Court may deem expedient. [s. 618.]
25. 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. [s. 619.]
26. 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. [s. 620.]
27. Every application to the Full Court incidental to
an appeal shall be by motion and the provisions of Order
XI relating to motions shall apply thereto. [s. 621.]
28. 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. [s. 622.]
PART VI.
IMISCELLANEOUS.
ORDER XXX.
BUSINESS IN CHAMBERS.
General.
1. In any proceeding in chambers any party may, if
he so desires, be represented by counsel : Provided that he
shall not be allowed his costs in respect of counsel's fees
unless the judge certifies that the case is lit for counsel.
[S. 624.]
2. (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 state-
ments 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 offier
document where the original can be brought in, unless the
court otherwise directs. [s. 625.]
Administrations and trusts.
3. The executors or administrators of a deceased
person or any of them, and the trustees under any deed
or instrument of 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 ol instru-
ment, or as claiming by assignment Or Otherwise Under any
such creditor or other person as aforesaid, may take out,
as of course, an originating summons returnable in cham-
bers 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-
(a)any question affecting the rights or interests of the
person claiming to be creditor, devisee, legatee,
next of kin, heir-at-law or cestid que trust ;
(b)the ascertainment of any class of creditors, devisees,
legatees, next of kin or others;
(c)the furnishing of any particular accounts by the
executors or administrators or trustees, and the
vouching, when necessary, of such accounts;
(d)the payment into court of any money in the hands
of the executors or administrators or trustees;
(e)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 adminis-
trators or trustees;
(f) the approval of any sale, purchase, compromise or
other transaction ; and
(g) any question arising in the administration of the
estate or trust. [s. 627.]
4. Any of the persons mentioned in rule 3 of this
Order may in like manner apply for and obtain an order
for the administration of-
(a) the personal estate of the deceased person;
(b) the real estate of the deceased person; and
(c) Ihe trust. [s. 628.]
5. The persons to be served with the summons under
rules 3 and 4 of this Order shall in the First instance be
the following-
(a) where the summons is taken out by an executor
or administrator or trustee
(i) for the determination of any question
under paragraphs (a), (e), (f) or (g) of rule 3-
the persons or one of the persons whose rights or
interests are sought to be affected;
(ii) For the determination of any question
under paragraph (b) Of rule 3-any member or
alieged member of the class;
(iii) for the determination of any question
under paragraph (c) of rule 3-any person
interested in taking such accounts;
(iv) for the determination of any question
under paragraph (d) of rule 3-any person
interested in such money;
(v) for relief under paragraph (a) of rule 4
-the residuary legatees, or next of kin, or some.
of them ;
(vi) for relief under paragraph (b) of rule 4-
the residuary devisees, or heirs, or some of them;
(vii) for relief under paragraph (c) of rule 4-
the cestui qui trust, or some of them;
(viii) if there be 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
(b) where the summons is taken out by any person
other than the executors or administrators or
trustees-the said executors or administrators or
trustees. [s. 629.]
6. The court may direct such other persons to be
served with the summons as it may think fit. [s. 630.]
7. The application shall be supported by such
evidence as the court may require, and such directions may
be given as the court may. think proper for the trial of
any questions arising there out. [S. 631.]
8. It shall be lawful for the court upon such summons
to pronounce such judgment as the nature of the case may
require. [s. 632.]
9. The court may give any special directions relating
to the carriage or execution of the judgment, or the service
thereof on persons not parties, as it may think just.
[S. 631]
10. It shall not be obligatory on the court to Pro
nounce 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 questions between
the parties can be properly determined without such judg
ment or order. [s. 634.]
11. On an application for administration or execution
of trusts by a creditor or beneficiary under a will, intestacy
or deed of trust where no accounts or insufficient accounts
have been rendered, the court may, in addition to any other
powers vested in it-
(a)order that the application shall stand over for a
certain time, and that the executors or administra-
tors or trustees shall render to the applicant a
proper statement of their accounts, with an intima-
tion that, if that is not done, they may be rnade
to pay the costs of the proceedings; or
(b) when necessary to prevent proceedings by other
creditors 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. [S. 635.]
12. The issue of a summons under rule 3 of this Order
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. [S. 636.]
13. Any of the following applications under the
Trustee Ordinance, may be made by summons-
(a)for the appointment of a new trustee, with or
without a vesting or other consequential. order;
(b)for a vesting or other order consequential on the
appointment of a new trustee; and
(c) for a vesting or other consequential order in any
case where aJudgment or order has been given
or inade for the sale, conveyance or transfer of any
land or stock or for the suing for or recovering
any chose in action. [S. 637.]
Charitable trusts.
14. (1) Where the appointment or removal of any
trustee, or any other rOlief, 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 rule 15 of
this Order to make application by summons (without 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 be exercised, 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. in the circumstances of any
such application it may seem fit, to direct that, for obtain-
ing the relief, order or direction sought for by such
application, an information, action or petition, as the case
may require, shall be brought or presenued and pro-
secuted, and to abstain from further proceeding on such
application.
[S. 638.]
15. An qpplication under rule 14 Of this Order may
be made by the Attorney General, or by all or any one
or rnore of the trustees or persons administering or claim-
ing to administer, or interested in, the cloarity which is
the subject of the application, or by two or more inhabit-
ants of any city, town, village or place within which the
charity is administered or applicable.[S. 639.]
16. It shall be lawful for the Attorney General, acting
ex officio, to make application by petition to the court with
respect to any charity under the provisions of the Charities
Procedure Act, 1812. [s. 640.]
Sale, foreclosure and redemption.
17. (1) Any person entitled to redeem mortgaged pro-
perty 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 sale or redemption in the alternative.
(2) In any action or other proceeding, whether for
foreclosure, or for redemption, or for sale, or for the ralsing
and payment in any manner of mortgage money, the court
on the request of the mortgagee or of any person interested
either in the mortgage money or in the right of
and notwithstanding that-
(a) any other person dissents; or
(b)the mortgagee or any person so interested does not
appear in the action,
and without allowing any time for redemption or for pay-
ment of any mortgage money, may direct a sale of the
mortgaged property, on such terms as it thinks fit, includ-
ing the deposit in court of a reasonable sum, fixed by the
court, to meet the expenses of sale and to secure perform-
ance 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 the conduct of the sale to
any defendant, and may give such directions as it thinks
fit respecting the costs of the defendants or any of thein.
(4) In any case within this section the court may, if
it thinks fit, direct a sale without previously determining
the priorities of incumbrancers. [S. 641. ]
18. If in any cause or matter relating to immovable
property it appears necessary or expedient that the pro-
perty 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 stich possession or receipt to the purchaser or such other
person as may be directed by the order. [s. 642.]
19. Where in action of ejectment is brought by any
mortgagee, his heirs, executors, administrators or assigns,
for the recovery, of the possession of any mortgaged im-
movable, property, and no action is then depending in the
court for or louching the foreclosing or redeeming of the
rnortgaged 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 prin-
cipal, 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 satis-
faction and discharge of the mortgage; and the court shall
discharge such mortgagor or defendant of and from the
same, accordingly, and shall, by order, compel the mort-
gagee, at the costs and charges of the mortgagor, 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, property to the mort-
gagor who has paid such money, his heirs, executors or
administrators, or to such person or persons as he or they
may for that purpose nominate or appoint. [s. 643.]
20. Nothing in rule 19 of this Order shall extend to
any case where the person against whorn the redemption
is prayed, by writing under his hand or the hand of his
agent or solicitor, to be delivered, before the money is paid
into court, to the solicitor for the other side, insists either
that the party praying a redempfion has not a right to
redeem or that the premises are chargeable with 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 pro
perty 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. [s. 644. ]
21. An mortgagee or mortgagor, whether legal or
equitable, or any person entitled to or having property
subject to a legal or equitable charge, or any person having
the right to foreclose or redeem any mortgage, whether
legal or equitable, may take out as of 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-
payment of moneys secured by the mortgage, or
charge, sale, foreclosure, delivery of possession,
whether before or after foreclosure, by the mortgagor,
redemption, reconveyance, delivery of possession by
the mortgagee. [s. 645.]
22. The persons to be served with the summons under
rule 21 of this order shall be such persons as would be
the proper defendants to an action for the like relief as
that specified by the summons. [S. 646. ]
Assistance of experts.
23. (1) A judge in chambers may, in such way as he
thinks fit, and, with the consent of all parties, in any action
and at any time before judgment, 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 fie may act upon the certificate of
any such person.
(2) The allowances in respect bf fees to such person
shall be regulated by the Registrar, subject to an appeal
to the judge, whose decision shall be final. [S. 647. ]
Proceedings relating to infants, etc.
24. On any application for the appointment of a
guardian of an infant and for an allowance for the main-
tenance of an infant the evidence shall show-
(a) the age of the infant;
(b)Ihe nature and amount of the infant's fortune and
income; and
(c) what relations the infant has. [s. 648.]
25. At any time during the proceedings in chambers
under 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 inquisi-
tion, who has been served with notice of such Judgment
or order. [S. 649.]
Attendances.
26. (1) Where at any time during the prosecution of
a. judgment or order it appears to the court, with 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 further costs as may be occasioned to any of
the parties by his being represented by a different solicitor
from the solicitor so nominated. [S. 650.]
27. Whenever in any proceeding in chambers the
same solicitor is employed for two or more parties the
court may, in its discretion, require that any of the said
parties shall be represented before it by a separate solicitor,
and adJourn such proceedings until such party is so repre
sented. [S. 651.]
28. Any of the parties other than those who have been
directed to attend may attend at their own expense and on
paying the costs, if any, occasioned by such
or, if they think fit, they may apply by summons for liberily
to attend at the expense of the estate or to have the
conduct of the action, either in addition to or in substitu-
tion for any of the parties who have been, directed to
attend. [s. 652. ]
29. An order shall be drawn up, on a summon 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. [s. 653.]
Claims of creditors aitd other claimaiits.
30. Where a judeyinent or order is given or made,
whether in court or in chambers, directing an account of
debts, claims or liabilities, or all inquiry for heirs, next of
kin or other unascertained persons, the court way direct
an advertisement or advertisements for creditors or other
claimants to be issued. [s. 654. ]
31. (1) Every advertisement for creditors shall be pre-
pared by the party prosecuting the judgment or order and
signed by his solicitor.
(2) Every advertisement for claimants other than
creditors shall be prepared by the party prosecuting the
judgment or order and submitted to the Registrar for
approval.
(3) Every advertisement for claimants or creditors shall
be published in the Gazette.
32. Every advertisement for claimants or creditors shall
fix a time within which each claimant or creditor shall send
to such person as the court may direct, to be narned and
described in the advertisement, the narne and address of such
claimant or creditor and the full particulars of his claim.
Noice of the time appointed for adjudicating on the claims
shall be inserted in the advertisement and at such appoint
nient and at any adjournment thereof (subject in the case
of creditors tp the provisions of rule 40 Of this Order) every
claimant: shall attend personally or by his solicitor to support
his claini. The advertisement shall contain a direction that
a claimant or creditor not residing in this Colony must send
with particulars of his claim the narne and address of a person
in this Colony to whom notices to the claimant or creditor
can be sent .Any such claimant or creditor not complying
with this direction shall not be entitled to receive any further
notice and in the case of any claimant or creditor camplying
therewith a notice to the narne and address mentioned by
him shall be equivalent to a notice sent to the claimant or
creditor himself. [S. 656. ]
33. Claimants who do not send full particulars of their
claims to the person narned and within the time fixed by the
advertisement shall be excluded from the benefit of the judg
nient or order wiless the court upon application made by
summons otherwise orders. Any such order may be made
upon such terms and conditions as to costs and otherwise
as the court thinks fit. [S. 657. ]
34. Every notice by this Order required or by the court
directed to be given to or served upon claimants or creditors
shall, unless the court otherwise directs, be deemed sufficient-
ly given and served if transmitted pre-paid by registered
post addressed to the claimant or creditor at the address
given in the claim sent in by him pursuant to the advertise-
ment, or in case such claimant or creditor is represented by
a solicitor, to such solicitor at the address given by him.
[s. 658.]
35. Every claimant or creditor shall, if required by
notice in writing given by such party as the court may
direct, produce all deeds and documents necessary to sub
stantiate his claim before the court at such time as may be
specified in such notice. [s. 659.]
36. Claimants required to file affidavits under rules 37
to 45 of this Order inclusive shall serve a copy on the person
to whom particulars of claims are to be sent. [s. 660.]
37. The court may direct the Registrar to examine the
claims of persons claiming to be creditors sent in pursuant to
the advertisement, and the Registrar shall ascertain, so far
as he is able, to which of such claims the estate of the
deceased is justly liable and shall, at least seven clear days
before the time appointed for adjudication or within such
other time as the court may direct, file a report together
with an affidavit made by the executors or administrators of
the deceased or by the person to whom claims are required
by the advertisement to be sent (or by such person or persons
as the court may direct) verifying lists-
(a)of claims which have been sent in pursuant to the
advertisement ;
(b)of claims which have been received by the executors
or administrators or any of them, other than claims
sent in pursuant to the advertisement ;
(c)of sums of money which were or may have been due
and owing by the deceased at the time of his death
and are or may be still due and owing and which
have come to the knowledge of the executors or
administrators or any of them, but in respect of
which no claim has been received or sent in as
aforesaid.
The report shall state to which of such claims or sums
of money or parts thereof respectively the estate of the
deceased is in the opinion of the Registrar justly liable, and
his belief that such claims or sums of money or parts thereof
respectively are justly due and proper to be allowed and the
reasons for such belief. [s. 661.]
38. When adjudicating upon the claims of persons
claiming to be creditors the court in its discretion may allow
any of such claims, or any part thereof respectively, without
proof by the claimants, and may direct all or any of the
claims not so allowed to be investigated in such manner as
it may think fit, and may require any further particulars,
information, or evidence, relating to such claims, and may
require any claimant to attend and prove his claim, or any
part thereof, and may adjourn the adjudication upon such
claims as are not then allowed. [s. 662. ]
39. Where on the day appointed for adjudicating upon
the claims of persons claiming to be creditors any of such
claims are adjourned or remain undisposed of, another day
for adjudicating upon such claims shall be fixed, and where
further evidence is to be adduced, the times for filing evidence
in support of and in opposition to the claims may be fixed,
and in that case. tile proceedings shall be adjourned until the
evidence is completed. [S. 661.]
40. Notice of allowance shall be given by such party as
the court, may direct to every creditor whose claim, or any
part thereof, has been allowed. Notice shall be given by
such party, as aforesaid to every person claiming to be a
creditor whose claim or any part thereof has not been allowed
to 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 mentioned, being the time appointed for adjudicating
on the claim ; and in case the claimant does not comply with
such notice, his claim, or such part thereof as aforesaid, may
be disallowed. No person claiming to be a creditor need
make any affidavit nor attend in support of his claim (except
to produce his security) unless he is served with a notice
requiring him to do so. Every person claiming to be a
creditor shall produce the security (if any) held by him
before the court at such time as shall be specified in the
advertisement for adjudicating on the claims. [s. 664.]
41. The court may allow a creditor who has established
his debt in chambers under any judgment or order 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 thereof, shall be ackled to the
debt so established. The court may order a clainiant to
pay the costs of any ?arty or parties incurred in opposing
any claim or my part of a claim which the clairnant flas
failed to establish. [S. 665.]
42. A list of creditors' claims allmved shall, when
required by the court, be made out and left with the
by such party as the court may direct. [s. 666.]
43. In the case of clainiants other than creditors such
party as the court may direct shall, at least seven clear days
before the time appointed for adJudication or within such
time as the court may direct, file an affidavit to be made by
the executors or administrators of the deceased or by the
trustees and in each case by the person to whoni clainis are
required by the advertisement to be sent (Or by such persons
as the court may direct) verifying lists of the claims, the parti-
culars of which have corne to the knowledge of the executors,
admi n istra tors or trustees or any of thern or which have been
sent in pursuant to the advertisement.[s. 667.]
44. At the time appointed for adjudicating upon the
claims of claimants other than creditors the times for filing
evidence in support of and in opposition to the claims may
be fixed, and in that case the proceedings shall be
until the evidence is completed. [S. 668.]
45. Where a claimant other than creditor has
established his claim he shall, if not already a party, and
Unless the court otherwise directs, be served with notice of
the judgment or order pursuant to sub-rule (i) of rule 28 Of
Order III, and when he has been so served and has entered
an appearance he shall, unless the court otherwise directs, be
entitled as part of his costs of action (if allowed) to costs
properly incurred in proving his claim previously to his
having entered an appearance. [s. 669.]
46. Where a judgment or order is given or inade direct-
ing in account of the debts of a deceased person, unless
otherwise ordered, interest shall be computed on such debts
as to such of them as carry interest after the rate they res-
pectively carry, and as to all others at the rate for the time
being fixed by the court, from the date of the judgment or
order. [s. 671. ]
47. A creditor whose debt dose not carry interest, who
comes in and establishes the same in chambers under a judg
ment or order, shall be entitled to interest on his debt, at
the rate for the time being fixed by the court, from the date
of the judgment or order, out of any assets which may re
main after satisfying the costs of the cause or matter, the
debts established, and the interest of such debts as by law
carry interest. [s. 672. ]
48. Where a judgment or order is given or made direc-
ing an account of legacies, interest 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 pay-
ment or rate of interest is directed by the will, and in that
case according to the will. [S. 673.]
Cerlificale of the Registrar.
49. (1) The directions to be given for or relating to any
proceedings before the Registrar shall require no particular
form, but the result of such proceedings shall be stated in
the shape of a concise certificate to the judge.
(2) It shall not be necessary for the judge to sign the
certificate, and unless an order to discharge or vary the
same is made the certificate shall be deemed to be approved
and adopted by the judge. [s. 674. ]
50. The certificate of the Registrar shall not, unless the
circumstances of the 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, documents, and
evidence, or particular paragraphs thereof, so that it may
appear upon what. the result stated in the certificate is
founded. [S. 675. ]
51. (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 that it is necessary to have a fair trans-
cript of the account as altered, such transcript may be re-
quired to be made by the party prosecuting the judgment or
order, and shall then be referred to by the certificate.
(2) The account and the transcript, 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. [S. 676.]
52. Any party may, before the proceedings before the
Registr ar are concluded, take the opinion of the court upon
any matter arising in the Course of the proceedings without
any fresh summons for the purpose. [S. 677. ]
53. Every certificate, with the account, if any, to be
filed therewith, shall be filed in the Registry, and shall there-
upon be binding on all parties to the proceedings, unless
discharged or varied on application by summons. [S. 678.]
54. Any application to discharge or vary a certificate
shall be made before the expiration of twenty-one days after
the filing thereof. [s. 679. ]
55. The court may, if the special circumstances of the
case require it, on application by motion or stimi-noiis for
the purpose, direct a certificate to be discharged or varied at
any time after the same has become binding on the parties.
[S. 680.]
Further consideration.
56. (1) Where any matter originating in chambers
has, at the original or any subsequent hearing, been ad-
journed for further consideration in chambers, such
may be brought on for further consideration by a summons
to be taken out by the party having the conduct of the
matter, after the expiration of fourteen days and within
twenty-one days from the filing of the Registrar's certificate,
and after the expiration of such twenty-one days by a sum-
mons to be taken out by 'any other party.
(2) Such summons shall be, in the following form-
That this matter, the furthei, consideration where-
of was adjourned by the order of the day
of ' 19 , may be furthei, coitsidered.',
Wid shall bc served ten davs before the return.
(3) This section shall not apply to any matter the
further consideration whereof has, at the original or any.
subsequent hearing, been adjourned into court. [S. 681 ]
Registering and drawing up of oiders.
57. Notes shall be kept of all proceedings in chambers,
with proper dates, so that all such proceedings in each cause
or matter may appear consecutively and in chronological
order, with a short statement of the questions or points de
cided or ruled at every hearing. [s. 682.]
58. 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. [s. 683.]
59. 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 initialled by the judge,
shall be sufficient evidence of the order having been made.
[s. 684.]
ORDER XXXI
VARIOUS PROVISIONS.
Sittings of the court.
1 . The.court may, in its discretion, appoint any day
for the trial and hearing of causes a nd matters, as circum-
stances may require. [S. 686]
2. The sittings of the court for the trial and hearing of
causes and matters shall ordinarily be public; but the court
may try or hear any particular cause or matter in the pre-
sence only of the parties and their counsel and solicitors and
the officers of the court. [s. 687. ]
3. Subject to any special arrangements for any parti-
cular day, the business of the day at any sitting of the
court shall be taken, as nearly as circumstances permit, in
the following order-
(a)at the commencement of the sitting, judgments
shall be delivered in causes or inatters standing
over for that purpose and appearing for judgment
in the trial paper;
(b)ex parte motions or motions by consent shall then
be taken in the order in which the motion papers
have been filed;
(c)opposed motions on notice, and orders to show
cause returnable on that day, shall then be taken,
in the order in which these matters respectively
stand in the trial paper; and
(d) the causes in the trial paper shall then be called on,
in their order, unless the court sees fit to vary that
order. [s. 688.]
Seal of the court.
4. Every writ, summons, warrant, judgment, rule,
order, notice and other document issuing from the court
shall be scaled with the seal of the court and be returned for
the purpose of being filed in the Registry. [s. 689.]
Cause-Book.
5. (1) The Registrar shall keep a book called the
Cause-Book which sliall contain a register of the proceedings
in all actions brought in the court.
(2) Every action or other proceeding, however instituted,
under the provisions of these rules, shall be nunibered in
each year according to the order in which the same is
commenced. [S. 690.]
Certain general powers of the court,
6. The court may, if it thinks it expedient for the
interests of justice, postpone or adjourn 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. [s. 691. ]
7. 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 commence-
ment of the proceedings, allow to the parties interested
therein, or to any one or more of them, tile whole or a part
of the annual income of the immovable property, or a part
of the movable property, or the whole or a part of the
income thereof, up to such tinne as the.court may direct.
[S. 692.]
Summary application in certain cases.
8. All proceedings in cases within section 504 Of the
Merchant Shipping Act, 1894, shall be by summary applica-
tion to the court and by way of motion supported by affidavit;
and Ihe court shall, if it thinks fit, by rule or order, give such
relief as by the said section any such competent court ,is is
mentioned in the Act has power to give. [S. 694.]
Irregularity in proceedings.
9. Non-compliance with any of the provisions of these
rules, or with any rule of practice for the time being in
force, shall riot 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. [S. 695.]
10. No application to sel. 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. [S. 696. ]
11. Where an application is made to set aside any pro-
ceeding for irregularity the several objections to be insisted
upon shall be stated in the summons or notice of motion.
[S. 697.]
12. When a sun-inions is taken out to set aside any
process or proceeding for irregularity with costs, and the
summons is dismissed generally without any special direction
as to costs, it is to be understood as dismissed with costs.
[s. 698.]
Piovisions relating to time.
13. (1) Nothing in these rules 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 these rules 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 these rules or
otherwise, the court may further enlarge any time so
appointed or enlarged by it, on such terms as may seem
just, whether tht. application for further enlargement is made
before or after the expiration of the time already allowed :
Provided that no such further enlargement shall be made
unless it appears to the court to be required for the purposes
of justice and not sought merely for delay, [S. 699.]
14. The time for filing or amending any pleading,
answer or other document may be enlarged by consent in
writing, without application to the court. [S. 700.]
15. (1) Where by these rules, 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 liappening
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 latest on the last day of such limited time, accord
ing to such computation.
(2) Where the limited time so appointed or allowed is
less than six days, general holidays, as defined by the
Holidays Ordinance, shall not be reckoned in tfie computa-
tion of. such time.
(3) Where the limited time so appointed or allowed
expires on one of the days last-mentioned, the act or proceed-
ing shall be considered 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
give security for costs is served, and the time thenceforward
until and including the day on which such security is given,
shalt not be reckoned in the computation of the time allowed
to the defendant for filing his statement of defence.
(5) Nothing in this rule shall affect the provisions of
sections 24 tO 26 of the Ordinance.[S. 701.]
Commissioners for oaths.
16. (1) The Chief justice may, by a commission signed
by 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 com-
missioner for oaths and shall have all the powers and dis-
charge all the duties which now belong to the office of a
commissioner to administer oaths. [S. 702.]
17. 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 the court, and every
person directed to take an examination in any cause or
rnafter in the court, shall have authority to administer ariv
oath or take any affidavit required for any purpose connected
with his duties. [S. 703.]
Attachment.
18. 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. [s. 704.]
A writ of attachment shall have the same effect as
a writ of attachment issued out of the court in its equity
jurisdiction formerly bad. [s. 705.]
20. No judge, magistrate or other judicial officer shall
be liable to arrest under civil process while going to, presid-
ing in or returning from his court. [S. 706. ]
Saving.
21. Nothing in this Code shall atfect the provisions of.
the Act 8 & 9 William 3, chapter II, as to the assignment or
suggestion of breaches or as to judgment for a penalty, as
a security for damages in respect of further breaches.
[S. 707.]
Publication of notices.
22. In any case in which the publication of any notice is
required under the provisions of these rules, the same any
be made by advertisement in the Gazette, unless otherwise
provided by these rules or otherwise ordered by tile
court. [S. 708.]
Forms.
23. (1) The forms contained in the Schedule may, be
used in the cases to which they respectively 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 alter any of the said forms
or substitute other forms therefor; 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, with such variations and
additions as the circumstances of the particular case may
require, may be used for the purpose of carrying out the
provisions of these rules, and shall, as regards the form
thereof, be valid and sufficient. [S. 709.]
SCHEDULE.
TABLE oF FORMS.[O. XXXI,r. 23.]
Form. Page.
1. Writ of summons ... ... ... ... ... ... ... ... ... 230
2. Specially indorsed writ of summons ... ... ... ... ... 231
3. Originating summons inter partes ... ... ... ... ... 232
4. Originating summons not inter partes ... ... ... ... 232
5. Ex parte originating summons ... ... ... ... ... ... 233
6. Notice of appointment to hear originating summons ... 233
7. Writ for service out of the jurisdiction, or where notice
in lieu of service is to be given out of the jurisdiction 234
Form. Page.
8. Specially indorsed writ for service out of. the jurisdiction 235
9. Notice of writ in lieu of service to be given out of the
jurisdiction ... ... ... ... ... ... ... ... ... ... 236
10. Lqtter forwarding request for service abroad ... ... ... 236
11. Request for service of notice abroad ... ... ... ... ... 237
12. Letter forwarding request for substituted service ... ... 23713. Order giving liberty to bespeak request for substituted
service abroad ... ... ... ... ... ... ... ... ... 237
14. Certificate of service of foreign process ... ... ... ... 238
15. Memorandum of appearance ... ... ... ... ... ... ... 238
16. Afflidavit for entry of appearance as guardian ... ... ... 239
17. Memorandum of notice of judgment [or order] ... ... 23918. Third party notice claiming indemnity or contribution or
18. other relief or remedy .... ... ... ... ... ... ... 239
19. Third party notice when question or issue to be determined 240
20. Summons for third party directions ... ... ... ... ... 241
21. Order for third party directions ... ... ... ... ... ... 242
22. Statement of claim ... ... ... ... .... ... ... ... ... 242
23. Statement of defence ... ... ... ... ... ... ... ... 243
24. Notice of payment into court ... ... ... ... ... ... 243
25. Acceptance of sum paid into court ... ... ... ... ... 244
26. Counterclaim ... ... ... ... ... ... ... ... ... ... 244
27. Reply ... ... ... ... ... ... ... ... ... ... ... ... 24528. Statement of defence including an objection in point of
28. law ... ... ... ... ... ... ... ... ... ... ... ... 24,5
29. Interrogatories ... ... ... ... ... ... ... ... ... ... 246
30. Answer to interrogatories ... ... ... ... ... ... ... 246
3 1. Affidavit as to documents ... ... . . * ... ... ... . ... 246
32. Entry of special case . 1 . ... ... ... ... ... ... ... 247
33. Notice of motion ... ... ... ... ...---... ... . . * 248
34. Summons inter partes ... ... ... ... ... ... ... ... 248
35. Ex parte summons ... ... ... ... ... ... ... ... . ... 249
36. Order ... ... ... ... ... ... ... ... ... ... ... ... 24937. Precipe for writ of execution of judgment for immovable
37. property ... ... ... ... ... ... ... ... ... ... ... 249
38. Writ of execution of judgment for immovable property 250
39. Writ of execution of judgment for money by attachment
of property ... ... ... ... ..... ... ... 251
40. Prohibitory order for attachment o~ m**o*va~ic property in
execution ......................... ... ... 252
41. Prohibitory order for attachment of immovable property
in execution ......*** ........ ... 252
42. Affidavit in support of garnishee order ... ... ... ... 253
43. Garnishee order attaching debt ... ... ... ... ... ... 254
44. Garnishee order absolute ... ... : * . ... ... ... 255
45. Notice to judgment creditor of appli tio
ea n y prisoner for
debt to be discharged 255
46. Order for discharge of prisoner for debt from prison ... 256
47. Writ of foreign attachment ... ... ... ... ... ... ... 256
48. Bond in case of foreign attachment ... ... ... ... ... 257
49. Affidavit on interpleader ... ... ... ... ... ... ... ... 25850. Order for issue of warrant for arrest of absconding
defendant ... ... ... ... ... ... ... ... ... ... 258
51. Warrant for arrest of absconding defendant ... ... ... 259
52. Order for giving of bail by absconding defendant ... ... 260
53. Bail-bond of absconding defendant ... ... ... ... ... 26054. Warrant for bailiff to call upon defendant to give security
to produce property ... ... ... ... ... ... ... ... 261
55. Advertisement for creditors ... ...261
56. Advertisement for claimants other than creditors ... ... 262
57. Cause-Book ... ... ... ... ... ... ... ... ... ... 263
58. Order for examination of witness in the Colony in virtue
of a letter of request from a foreign court ... ... ... 264
59. Certificate of Registrar forwarding depositions ... ... 265
FORMS.
Form 1. [O, II, r. 1.]
Writ of summons.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc.
To C.D., of
We command you that within eight days after the service of
this Writ on you, exclusive 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 court may give
leave to the plaintiff to proceed ex parte.
Witness His Honour 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 twelve calendar months
from the date thereof, or if renewed, within six calendar months
from the date of the last renewal, including the day of such date.
and not afterwards.
The defendant (or defendants) may appear hereto by entering
an appearance (or appearances), either personally or by solicitor, at
the Registry of the Suprerne -Court- in Victoria-, Hong Kong.
Indorsement to be made on the writ before issue thereof.
The plaintiff's claim is (1).
This writ was issued by the plaintiff, who resides at (2)
[or This writ was issued by E.F., solicitor for the plaintiff, who
resides at (2), ]
Indorsement to be made on the writ after 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 2. [O. II, rr. 13,14.]
Sl)ecially indorsed writ of summons.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God. etc.
To C.D., of
We command you that within-eight days after the service of
this writ on you, exclusive 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 His Honour 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 twelve calendar months
from the date thereof or, if renewed, within six calendar months
from the date of the last renewal, including the day of such date,
and not afterwards.
. The defendant way appear hereto by entering an appearance,
either personally or by solicitor, at the Registry of the Supreme
Court in Victoria, Hong Kong.
Indorsements to be made on the writ before the issue thereof.
Statement of claim.
The plaintiff's claim is (1).
Particulars.
(Signed)
And the sum of $ for costs.If the amount claimed is
paid to the plaintiff or hsolicitor or agent within four days
from the service hereof, further proceedings will be stayed.
This writ was issued by the plaintiff, who resides at (2)
[or This writ was issued by E.F., solicitor for the plaintiff, who
resides at (2)
Indorsement to be made on the writ after service thereof.
This writ was served by me aton the defendant C.D.
on day, the day of
Indorsed the day of 19
(Sixned)
(Address)
FORM 3. [O. 11, r. 21.]
Originating summons inter partes.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., PlaintifY,
and
C.D., Defendant. (1)
Let C. D., of within eight days after the service of
this summons on him, exclusive 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 claims
to be (2) for the determination of the following
questions (3)-
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, Hong Kong.
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 the court may think just and expedient.
FORM 4. [O. II, r. 21.]
Originating summons not inter partes.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
In the matter of the trusts of the will of A.B.
And in the matter of the Trustee Ordinance (Chapter 29 of the
Revised Edition).
[or as the case may be].
To of
Let of within eight days after the
service of this summons on him exclusive of the day of such service,
cause an appearance to be entered for him to this summons, which is
issued on the application of offor an order
that (1)
Dated 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, Hong Kong.
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 the court may think just and expedient.
FORm 5. [O. 11, r. 21.]
EX parte originating summons.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
In the matter of A.B., an infant.
To ' of
Let all parties concerned attend at the chambers of His Honour
, at the 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, that (1)
Dated the day of 19
This summons.was taken out by of
solicitor. for the applicant.
FoRm 6. [O. 11, r. 24.]
Notice of appointment to hear originating summons.
[Title as in Form 3 or 4.]
To (1) ' of
Take notice that you are required to attend at the chambers of
His Honour, at the Supreme Court, at o'clock
m. on day, the day of , 19 for
the hearing of 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 aria time mentioned, such
order will be made and proceedings taken as the court may think just
and expedient.
Dated the day of 19
(Signed)
Solicitor for the plaintig [or applicant].
FORM 7. [O. 11, r. 37.]
Writ for service out of the jurisdiction, or where notice in lieu of
service is to be given out of the jurisdiction.
[Title, etc.] (a)
George the Sixth, by the Grace of God, etc.
To C.D., of
We command you, C.D., that within
[here insert the number of days directed by the court or judge
ordering the service or notice] after the service of this writ [or notice
of this writ, as the case may be] on you, exclusive of the day of such
service, you do cause an appearance to be entered for, you in the
jurisdiction of the Supreme Court of Hong Kong 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, etc.
Memorandum. to be subscribed on the writ.
N.B.-This writ is to be served within twelve calendar months
from the date hereof, or if renewed, within six calendar months from
the date of the last renewal, including the day of such date, and not
afterwards.
The defendant [or defendants] may appear hereto by entering an
appearance [or appearances] either personally or by solicitor, at the
Registry of the Supreme Court, Hong Kong.
Indorsements to be made on the writ before issue thereof.
The plaintiff's claim is for, etc.
This writ was issued by the plaintiff who resides at
or This writ was issued by E.F., of whose address for
service is ' solicitor for the said plaintiff, who resides
at or This writ was issued.by G.H., of
whose address for service is , agent for of
, solicitor for the said plaintiff. who resides at
[inention the city, town or village and also the name of the street
and number of the house of the plaintiff's res'dence, if any].
N.B-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.
When the defendant to be served is not a British subject, and is
not in British dominions, notice of the writ, and not the writ itself,
is to be served upon him.
Indorsements to be made on the writ (b) after service thereof.
This writ was served by me at on the defendant
on the day of 19
Indorsed the day of 19
(Signed)
(Address)
Notes-(a) If the action is for administration the writ must be
headed 'In the matter of the estate of deceased'.
If it is a debenture holder's action the writ must be headed 'In the
matter of Company'.
(b) Within three days.
[Note-The above indorsement 'N.B.' must be on any con-
current writ for service out of the jurisdiction, or of which notice is
to be served out of the jurisdiction. The indorsement 'N.B.' need
not be made on a writ against defendants domiciled abroad but whom
it is intended to serve within the jurisdiction.]
FoRm 8. [O. 11, r. 37.]
Specially indorsed writ for service out of the jurisdiction.
[Title.]
George the Sixth, by the Grace of God, etc., to of
, in the of
We command you, that within* days after servicet of this
writ on you, exclusive of the day of such service, you cause an appear-
ance to be entered for you in an action at the suit of
And take notice that in default of your so doing the plaintiff may
proceed therein and judgment be given in your absence.
Witness, etc.
N.B-This writ is to be used, etc. [as in Form 7, supra].
Appearance is to be entered at the Registry of the Supreme
Court, Hong Kong.
'Statement of claim.
The plaintiff's claim is
Particulars-
Place of trial
(Signed)
And $ or such sum as may be allowed on taxation] for
costs. If the amount claimed is paid to the plaintiff or h
solicitor or agent within days from service hereof,
further proceedings will be stayed.
This writ was issued, etc. [see Form 7 supra].
This writ [or Notice of this writ] was served, etc.
N.B.-This writ is to be used, [as in Form 7 supra].
FoRm 9. [O. 11, r. 37 M.]
Notice of writ in lieu of service to be given out of the jurisdiction.
[Title, etc.]
To GM., of
Take notice, that A.B.,of has commenced an action
against you, G.H., in thejurisdiction of the Supreme
Court of Hong Kong by writ of that court, dated the day of
' 19 ; which writ is indorsed as follows [copy
in full the indorsements], and you are required within days
after the receipt of this notice, exclusive of the day of such receipt,
to defend the said action by causing an appearance to be entered
for you in the said court to the said action; and in default of your
so doing the said A.B. may proceed therein, and judgment may be
given in your absence.
You may appear to the said writ by entering an appearance
personally or by your solicitor at the Registry of the Supreme Court,
Hong Kong.
(Signed)
A.B. of etc.
or Z.Y. of etc.
Solicitor for A.B.
N.B.-This notice is to be used where the person to be served is
not a British subject and is not in British dominions.
FoRm 10. [O. 11, r. 317 (8).]
Letter forwarding request for serveic abroad,
The Chief Justice of the Supreme Court of Hong. Kong presents
his compliments to the Colonial Secretary and begs to enclose a notice
of a writ of summons issued in an action of
versus pursuant to order out of the Supreme
Court of Hong Kong in order that necessary steps may be taken to
ensure its transmission to the proper authorities in [name of country]
with the request that the same may be served personally upon [name
of defendant to be served] against whom proceedings have been taken
in the said Supreme Court, and with the further request that such
evidence of the service of the same upon the said defendant may be
officially certified to the said Supreme Court, or declared upon oath
or otherwise in such manner as is consistent with the usage or
practice of the courts of [name of country] in proving service of
legal process.
The Chief Justice begs further to request that in the event of
efforts to effect personal service of the said notice of writ proving
ineffectual the Government or Court of the said country be requested
to certify the same to the said Supreme Court.
FORM 11. [0. 11, r. 37 (8).]
Requcst for service of notice abroad.
[Title, etc.]
I [or We] hereby request that a notice of writ of summons in
this action be transmitted through the proper channel to [name of
country] for service [or substituted service] on the defendant
[naming him] at [address of defendant] or elsewhere in [name of
country]. ,
And I [or we] hereby personally undertake to be responsible for
all expenses incurred by the Colonial Secretary in respect of the
service hereby requested, and on receiving due notification of the
amount of such expenses I [or we] undertake to pay the same to the
Chief Clerk at the Colonial Secretary's Office and to produce the
receipt for such payment to the proper officer of the Supreme Court.
Dated, etc. (Signature of solicitor.)
FORM 12. [0. 11, r. 37 (8).]
Letter forwarding request for substituted service.
[Title, etc.]
The Chief Justice of the Supreme Court presents his compli-
ments to the Colonial Secretary and begs to enclose a notice of a
writ of summons in the case of versusin which
the plaintiff has obtained an order of the Supreme Court (which is
also enclosed) giving leave to bespeak a request that the said notice
of writ may be served by substituted service on the defendant
at in [name of country].
The Chief Justice requests that the said notice of writ and order
may be forwarded 10 the proper authority in [name of country]
with the request that the same may be transmitted by post addressed
to the defendant at (the last-known place
of abode or the place of business) of the said defendant, or there
delivered in such manner as may be consistent with the usage or
practice of the Courts of [name of country] for service of legal
process where personal service cannot be effected; and with the
further request that the same may be officially certified to the
Supreme Court of Hong Kong or declared upon oath, or otherwise,
in such manner as is consistent with the practice of the courts of
[name of country] in proving service of legal process.
FORM 13. [O. 11, r. 37 (8).]
Order giving liberty to bespeak request for substituted service abroad.
[Title, etc.]
Upon reading. the [certificate, declaration, or as the case may
be, describing the same.]
It is ordered that the plaintiff be at liberty to bespeak a request
for substituted service of notice of the writ of summons herein on
the defendant at , or elsewhere in
[nane of country] and that the said defendant have
days after such substituted service within which to enter appear-
arice.
Dated the day of 19
FoRm 14. [O. 11, r. 38.]
Certificate of service of foreign process.
Registrar of the Supreme Court of
Hong Kong hereby certify that the documents annexed hereto are
as follows-
(1) the original letter of request for service of process received
from the foreign court [or tribunal] at in the
of in the matter of versus and:
(2) the process received with such letter of request, and:
(3) the evidence of service uponthe person named
in such letter of request,
And I certify that such service so proved, and the proof thereof,
are such as are required by the law and practice of the Supreme
Court of Hong Kong regulating the service of legal process in Hong
Kong and the proof thereof.
And I certify that the cost of effecting such service, as duly
certified by the taxing officer of the Supreme Court of Hong Kong,
amounts to the sum of
Dated the day of 19
(Signed) Registrar.
FORm 15. [O. 11, r. 43.]
Memorandum of appearance.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D.. Defendant.
Enter an appearance for the defendant C.D., in this actio-.
Dated the day of 19
(Signed) C.D., of
[or E.F.,
Solicitor for the defendant C.D.]
FORm 16. [O. 111, r. 17.]
Affidavit for entry of appearance as guardian.
Action No. of 19,
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
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 the consent of the said E.F. to act as such guardian
is hereto annexed.
Sworn, etc.
[To this affidavit must be annexed the document signed by the
guardian in te3tiinony of his consent to act.]
FORM 17. [O. 111, r. 28.]
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 the Registry of the Supreme Court in Victoria, Hong
Kong, attend the proceedings under the within-mentioned judgment
[or order], and that you For 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 18. [O. 111, 33.]
Third party notice claiming indemnity or contribution or other
relief or remedy.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
and
E.F., Third party.
Third party notice.
Issued pursuant to the order of His Honour
dated the day of ' 19
To E.F., of
Take notice that this action has been brought by the plaintiff
against the defendant. In it the plaintiff claims against the defend-
ant [here state concisely the nature of the plaintiff's claim] as
appears by the indorsement on the writ of summons [or statement
of claim] a copy whereof is delivered herewith.
The defendant claims against you [here state concisely the
nature of the claim against the third party as for instance to be
indemnified against the plaintiff's claim and the costs of this action
or contribution to the extent of (one half) of the plaintiff's claim or
the following relief or remedy namely1 on the grounds
that [state concisely the grounds of the claim against the third
party].
And take notice that if you wish to dispute the plaintiff's claim
against the defendant, or the defendant's claim against you, you
must cause an appearance to be entered for you within eight days
after the service of this notice upon you.
In default of your entering such appearance, you will be deemed
to admit the plaintiff's claim against the defendant and the defen-
dant's claim against you and your liability to [indemnify the de-
fendant or to contribute to the extent claimed or to stating
the relief or remedy sought] and the validity of any judgment that
may be given in the action and you will be bound by such judgment
and such judgment may be enforced against you pursuant to Order
III of the Code of Civil Procedure.
Dated the day of 19
(Signed)
Solicitors for the defendant.
Appearance is to be entered at the Registry of the Supreme
Court in Victoria, Hong Kong.
Fopm 19. [O. 111, r. 33.]
Third party notice when question or issue to be determined.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINALJURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant,
and
E.F., Third party.
Thirdparty notice.
Issued pursuant to the order of His Honour
dated the day of 19
To E.F., of
Take notice that this action has been brought by the plaintiff
against the defendant. In it the plaintiff claims against the de-
fendant [here state concisely the nature of the plaintiff's claim] as
appears by the indorsement on the writ of summons [or statement
of claim] a copy whereof is delivered herewith.
The defendant claims that the following question or issue, viz.
[here state concisely the question or issue to be determined] should
be determined not only as between the plaintiff and the defendant
but as between the plaintiff and the defendant and yourself.
And take notice that if you wish to be heard on the said question
or issue or to dispute the defendant's liability to the plaintiff or
your liability to the defendant you must cause an appearance to be
entered for you within eight days after service of this notice.
In default of your so doing you will be deemed to admit the
validity of and will be bound by any decision or judgment arrived
at or given in this action on the said question or issue and to admit
any consequent liability of yourself and judgment may be given
against you and enforced pursuant to Order III of the Code of
Civil Procedure.
Dated the day of 19
(Signed)
Solicitors for the defendant.
Appearance is to be entered at the Registry of the Supreme
Court in Victoria, Hong Kong.
FORM 20. [O. Ill, r. 38.
Summons for third party directions.
Action No. of 19
IN THP SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To of
Let all parties concerned attend at the chambers of His Honour
, at the Supreme Court, at o'clock in. on
day,the day of 19 on the hearing
of an application on the part offor an order for
third party directions as follows-that the defendant file a state
ment of his claim against the third party within days from
this date, who shall plead thereto within days; and that
the said third 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 subsequent thereto..
Dated the day of 19
This summons was taken out by solicitor for
FORm 21. [O. Ill, r. 39.]
Order for third party directions.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
(1) in chambers.
Upon hearing the solicitors for the plaintiff, defendant, and third,
party,
It is ordered that the defendant file a statement of his claim
against the said third party within days from this date, who
shall plead thereto within days; and that the said third
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 liability of the said third 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 22. [O. V, r. 24.]
Statement of claim.
Action No. o f 1.9
IN THE SUPREME COURT OF HONG KONG,
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-
1950. 1st January to 31st May. To rebuilding house $ c.
at Victoria, as per contract dated the 24th
December, 1949 ..............5,400.00
To extras, as per account delivered 243.00
.............................5,643.00
Paid on account delivered ...........3,000.00
Balance due .................2,643.00
The plaintiff also seeks to recover interest on the above balance
from the 31st May, 1950, till payment or judgment.
(Signed)
FORm 23. [O. V, r. 32.]
Statement of defence.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
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, the defendant
brings [or has brought] into court $200, and says that that sum
is enough to satisfy the plaintiff's claim herein pleaded to.
(Signed)
FORm 24. [O. V, r. 41 (3).]
Notice of papnent into court.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D. and E.F., Defendants.
Take notice that the defendant has paid into court
$ , and says that [ part of] that sum is enough to
satisfy the plaintifr's claim [for and $ the other part of
that sum is enough to satisfy the plaintiff's claim for 1 and
admits [but denies] liability therefor.
Dated the day of 19
(Signed)
Solicitor for the defendant C.D.
To the plaintifr's solicitor
[and to solicitor for the defendant E.F.].
[To be filled in by the Registrar.]
Received the above sum of dollars cents
into court in this action.
Dated the day of 19
FORM 25. [O. V, rr. 42(1),44(2).]
Acceptance of sum, paid into court.
Action No. of 19
IN THE SUPREME COURT Or HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D. and E.F., Defendants.
Take notice that the plaintiff accepts the sum of $ paid
by the defendant [C.D.] into court in satisfaction of the claim in
respect of which it was paid in [and abandons his other claims in
this action].
Dated the day of 19
(Signed)
Plaintiff's solicitor.
To Solicitor for the defendant C.D. [and
Solicitor for the defendant E.F.]
FORm 26. [O. V, r. 50.]
Counterclaim.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
Counterclaim.
The defendant says that-
1. The contract mentioned in the statement of claim herein
contained a clause whereby it was provided that the plaintiff should
complete the wdrks by the 31st March, 1950, 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, 1950.
The defendant counterclaims $610.
(Signed)
FORM 27. [O. V, r. 55.]
Reply.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
Reply.
The plaintiff says that-
1. As to the first 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 defendant 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.
(Signed)
Note-The latter part of this form applies only where the
counterclaim has been filed before the reply.
FoRm 28. [O. V, r. 61.]
Statement of defence including an objection in point of law.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 29. [O. VII, r. 2.]
Interrogatories.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff.
and
C.D., E.F., and G.H., Defendants.
Interrogatories on behalf of the above-named plaintiff [or de-
fendant 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 30. [O. VII, r. 6.]
Answer to interrogatories.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., E.F., and G.H., Defendants,
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, etc.
FORm 31. [O. VII, r. 10.]
Affidavit as to documents.
Action' No. of 19
IN THE SUPREME COURT or HONG KONG,
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 state 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, custody
or power, or in the possession, custody or power of my solicitors
or agents, solicitor or agent, or in the possession, custody or power
of any other persons or person on my behalf, 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 of them, 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, etc.
FORM 32. [O. IX, r. 5.]
Entry of Rpecial case.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 33. [O. XI, r. 2.]
Notice of motion.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To the Registrar of the Supreme Court.
Take notice that the court will be moved at o'clock M.
on day, the day of 19 or so soon
thereafter as counsel can be heard, by Mr. counsel
for the , that (1)
Dated.the day of 19
(Signed) E.F.
Solicitor for the
FORm 34. [O. XI, r. 18.]
Summons inter partes.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To of
You are hereby summoned to appear before His Honour
, 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 of (1)
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 35. [O. XI r. 18.]
Ex parte summons.
Action No.of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
Application on the part offor leave to .(1)
Dated the day of 19
This summons was taken out by solicitor for
FoRm. 36. [0. XI, r. 20.]
Order.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
(1) in chambers.
Upon the application of , and upon hearing
, and upon reading the affidavit of ,
filed the day of 19 It is ordered that (2)
and that the costs of
this application be
Dated the day of 19
FORm 37. [O. XVII, r. 19.]
Praccipe for writ of execution of judgment for immovable property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 the immediate
possession of the immovable property mentioned in the said judg-
ment 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 Order XVII of the Code of Civil
Procedure.
Dated the day of 19
(Signed) A.B., of
For E.F.,
Solicitor for the plaintiff, A.B.]
FORm 38. [O. XVII, r. 27.]
Writ of execution of judgment for immovable property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc.
To the bailiff of Our said Court, greeting:
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 say (1)-
And Whereas the said plaintiff is desirous of enforcing the said
judgment and has applied for the proper writ of execution in that
behalf: Now, therefore, We command you that you dD 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 same.
Witness His Honour Chief Justice of Our said
court, theday 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 39. [O. XVII, r. 30.]
Writ of execution of judgement for money by attachment of property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc:
To the bailiff of Our said Court, greeting:
Whereas the defendant C.D. has failed tg 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 thereon at the rate of
$ per cent per annunt 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 property, and has. applied for
the proper writ of execution in that behalf: Now, therefore, We
command you that you do forthwith 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 attached under this writ by actual seizure as shall
consist of money or negotiable instruments, you do pay and deposit
the same respectively into court, and that, as to such part thereof
attached as aforesaid as shall riot consist of money or, negotiable
instruments, you do keep the same in your custody until the further
order of the court or until the sale thereof in satisfaction of the said
judgment; and We further command you that, in case you shall not
be able to find sufficient property of the said defendant, or the said
defendant shall fail to point out to you any property whereon to
levy, you do forthwith arrest the said defendant and deliver him
into the custody of the Commissioner of Prisons to be kept in a
prison 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 support and maintenance allowance at
the rate of a day.
Witness His Honour Chief Justice of the 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 40. [O. XVII, r. 31.]
Prohibitory order for attachment of movable property in execution.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To of
Whereas the defendant C.D. has failed tg 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 thereon at the rate of
$ per cent 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 the court, from receiving
from E.F., of , the following property in the
possession of the said E.F., that is to say (1)-
to which the said defendant is entitled, subject to any claim, lien
or right of the said E.F.; and it is also ordered that the said E.F.
be and he is hereby prohibited and restrained, until the further order
of the court, from delivering the said property to the said defendant
or to any other person or persons whomsoever.
Witness His Honour Chief Justice of Our said.
Court, the day of , 19
(Signed)
Note-This order is issued under rule 31 of Order XVII 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 order is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thereon of the date and mode of execution.
FORM 41. [O. XVII r. 32.]
Prohibitory order for attachment of immovable property
in execution. '
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 thereon at the rate of $ per cent 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 further
order of this court, from alienating such lands, houses or other
immovable property, and particularly from alienating (1)
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 His Honour Chief Justice of Our said
Court, theday of 19
(Signed) Registrar.
Note-This order is issued under rule 32 of order XVII 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 order is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thereon of the date and mode of execution.
Fonm 42. [O. XVII, r. 43.]
Affidavit in support of garnishee order.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant,
I, of , the plaintiff in this action,
for 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 thereon at the rate of
$ per cent per annum from the date of the said judgment,
and costs to be taxed, and the said costs were, by the Registrar's
certificate dated the day of 19 allowed
at S
2. The said judgment still remains unsatisfied to the extent of
$ , and interest amounting to $
3. (1) of is indebted to the said defendant
in the sum of $ or thereabouts.
4. The said is within the jurisdiction of this court.
Sworn, etc.
FORm 43. [O. XVII, r. 43.]
Garnishee order attaching debt.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Judgment creditor,
and
(1) C.D., Judgment debtor.
E.F., Garnishee.
(2) in chambers.
Upon bearing and upon reading the affidavit
of filed 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
$ remains due and unpaid; and it is further ordered that the
said garnishee attend His Honourin chambers on
day, the day of 19 , at
o'clock in the noon, on an application by the said judgment
creditor that the said garnishee pay the debt due from him to the said
judgment debtor, or so much thereof as may be sufficient to satisfy
the judgment; and that the costs of this application be
Dated the day of 19
Indorsements to be made on the order before issue thereof.
If the garnishee does not dispute the debt claimed to be due from
him to the judgment debtor, he may pay into court the amount due
from him to the judgment debtor or an amount equal to the sum
remaining due and unpaid on the judgment as stated within.
Unless entirely satisfied that the judgment debtor is in fact the
person or firm to whom he is indebted, the garnishee should attend
in chambers on the day and at the time named in the within-written
Order.
If the garnishee does not either pay into court or attend on the
day named within, the court may in his absence order execution to
issue.
FORM 4 [O. XVII, r. 46.]
Garnishee order absolute.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Judgment creditor,
and
C.D., Judgment debtor.
E.F., Garnishee.
(1) in chambers.
Upon hearing , and upon reading the affidavit of
, filed 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 should
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
unpaid. It is ordered that the said garnishee do forthwith pay the
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 45. [O. XVII, r. 75.]
Notice to judgment creditor of application by prisoner for debt
to be discharged.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.'
Between A.B., Plaintiff,
and
C.D., Defendant.
(1) in chambers.
To A.B., and solicitor.
Take notice that this Honourable Court will, at o'clock M.
on day, the day of 19 , hear an
application by the defendant to be discharged from prison.
And take notice that you will not be allowed to appear and oppose
the application unless you have, before o'clock m. on
day, the day of , 19 , signified in writing
to me your intention of so appearing and opposing the application.
(Signed) Registrar.
FORM 46. [O. XVII, r. 75.]
Order for discharge of prisoner for debt front prison.
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., PlaintifY,
and
C.D., Defendant.
To the Commissioner of Prisons.
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 of ' 19
By order of the court,
(Signed) Registrar.
FORM 47. [O. XVII, r. 2.]
Writ of foreign attachment.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
E.F., Garnishee.
George the Sixth, by the Grace of God, etc.
To the bailiff of Our said Court, greeting:
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 His..Honour 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.P., of , garnishee, at
o'clock m. on day, the day of 19
(Signed) Bailiff.
A memorial of this writ was registered in the Land Office at
o'clock m. o n day, the day of 19
(Signed)
Fonm 48. [O. XVIII, r. 4.]
Bond in case of foreign attachment.
Action No. of 19
IN THE SUPRFME COURT OP HONG KONG,
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 jointly 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 Hong
Kong by the above-bounden A.B., as plaintiff against the said C.D.,
as defendant; and whereas, under the provisions of Order XVIII of
the Code of Civil 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 if 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 49. [O. XXIV, r. 2.]
Affidavit on interpleader.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 (1) in my possession, but
I claim no interest therein.
3. The right to the said subject-matter of this action has been
and is claimed (2) by one , who (3)
4. I do not in any manner collude 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, etc.
FORM 50. . [O. XXVI, r. 2.]
Order of issue of warrant for arrest of absconding defendant,
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 hirn 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 him for the execution of the 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 51. [O. XXVI, r. 2.]
Warrant for arrest of absconding defendant.
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God. etc.
To the bailiff of Our said Court, greeting:
We command you forthwith to arrest the defendant C.D. pur-
suant 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 give security for his appearance to answer any 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 claims 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
further command you that, in default of such payment, you detain
the said defendant until the further order of Oursaid Court.
Witness His Honour Chief Justice of Our said
Court, theday of ' 19
(Signed) Registrar.
Note-This warrant is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thereon of the date and mode of execution.
FORM 52. [0, XXVI, r. 3.]
Order for giving of bail by absconding defendant.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 this action; and it is further 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 53. [O. XXVI, r. 3.]
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 firmly
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 severally bind our
selves, 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 seats this
day of, in the Year of Our Lord Nineteen Hundred
and Now the condition of this obligation is that if the
above-bounden C.D. shall appear in person before the Supreme Court
of Hong Kong, 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
the said action, with costs, then this obligation shall be void, otherwise
it is to remain in full force.
Signed, sealed, and delivered
in the presence of (Signed)
C.D. [L.S.1
E.F. [L.S.1
G.H, [L.S.1
FORm 54. [O. XXVI, r. 8.]
Warrant for bailiff to call upon defendant to give security
to produce property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION,
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc.
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 His Honour Chief Justice of Our said
Court, theday of 19
(Signed) Registrar.
Note-This warrant is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thercon of the date and mode of execution. .
FORM 55. [O. XXX, r. 32.]
Advertisement for creditors.
A.B. DECEASED. Pursuant to a judgment [or an order] of
the Supreme Court dated the way of ' 19
and made in an action In the matter of the estate of A.B. deceased,
8. against P. No. of 19 the creditors of A.B. (late
of who died on the day of ,
19 ), are on or before the day of '19 , to send
to ' of , their full Christian and
surnames, addresses and descriptions, the full particulars of their
claims. a statement of their accounts and the nature of the securities
(if any) held by them, or in default thereof they will be excluded
from the benefit of the said judgment [or order] unless the court on
application otherwise orders. Every claimant holding any security
is to produce the same before at his chambers at
the Supreme Court in Victoria, Hong Kong, on the day of
' 19 , at o'clock in thenoon, being the
time appointed for adjudicating upon the claims.
A claimant not residing in this Colony must send with particularS
of his claim the name and address of a person in this Colony to whom
notices to the claimant can be sent.
Dated the day of 19
[Signature and address of the solicitor of the party prosecuting
the judgment or order, stating on whose behalf he is acting.]
FORM 50. [O. XXX, r.22.]
Advertisement for claimants other than creditors.
A.B. DECEASED.Pursuant to a judgment [or an order] of
the Supreme Court dated the day of ' 19 , and
made in an action In the matter of the estate of A.B. deceased (late
of who died on the day of
19 S. against P. , No. of 19 whereby the
following inquiry was [or inquiries were] directed, viz.:
[Set out inquiry or inquiries.]
Notice is hereby given that all persons claiming to be entitled
under the said inquiry [or inquiries] are on or before the day of
' 19 , to send to ' of , their
full Christian and surnames, addresses and descriptions, and full
particulars of their claims, or in default thereof they will be excluded
from the benefit of the said judgment [or order] unless the court on
application otherwise orders. day the day of ,
19 , at o'clock in the noon is the time appointed for
adjudicating upon the claims before at his chambers
in the Supreme Court in Victoria, Hong Kong.
A claimant not residing in this Colony must send with particulars
of his claim the name and address of a person in this Colony to whom
notices to the claimant can be sent.
Dated the day of 19
(Signed) Registrar.
FORM 57. [O. XXXI, r.5.]
Course-Book.
CAUSE-BOOK FOR THE YEAR 19
FORm 58. [O. XIV, r. 10.]
Order for examination of witness in the Colony in virtue of a
letter of request from a foreign court.
(a) in chambers.
In the matter of the Evidence Ordinance (Chapter 8 of the
Revised Edition).
And in the matter of a civil (or commercial or criminal] proceed-
ing now pending before (b)
intituled as follows-
Between
and Plaintiff.
Defendant.
Upon reading the affidavit (if any) of , filed the
day of '19 , and the certificate that proceedings are pending in the (b)
in (d)
and that such court is desirous of obtaining the testimony of (e)
It is ordered that the said witness [or witnesses]
do attend before (f)
who is hereby appointed examiner herein, at (g)
on the day of 19 at o'clock, or such
other day and time as the said examiner may appoint, and do
there submit to be examined upon oath, or affirmation, touching the
testimony so required as aforesaid, and do then and there produce
(h).
And it is further ordered that the said examiner do take down
in writing the evidence of the said witness, or witnesses, according
to the rules and practice of the Supreme Court pertaining to the
examination and cross-examination of witnesses (or as may be other-
wise directed); and do cause each and every such witness to sign his or
her depositions in his, the said examiner's, presence; and do sign the
depositions taken in pursuance of this order, and when so completed
do transmit the same, together with this order, to the Registrar,
Supreme Court, Hong Kong, for transmission to the president of the
said tribunal desiring the evidence of such witness or witnesses.
Dated the day of 19
FORM 59. [O. XIV, r. 10.]
Certificate of Registrar forwarding depositions.
Registrar of the Supreme Court of Hong Kong,
I, hereby certify that the documents annexed hereto are (1) the original
order of the Supreme Court of Hong Kong dated the day of
19 made in the matter of pending
in the at in the of
directing the examination of certain witnesses to be taken before
, and (2) the examination and depositions
taken by the saidpursuant to the said order, and
duly signed and completed by him on the day of
19
Dated the day of 19
SUPREME COURT (ADMIRALTY PROCEDURE)
RULES.
(CaP. 4, section 37).
(Ordinance.No. 3 Of 1873).
[1st September, 1896.]
General.
1 . In these rules-
'action' means any action, cause suit, or other proceed-
ing instituted in the court;
'cotirt' means the Supreme Court of Hong Kong and in-
cludes any judge thereof, whether sitting in court or in
chambers; ,
'defendant' includes the defendant's solicitor, if lie
appears by a solicitor;
'party' includes the party's solicitor, if he sues or appears
by a solicitor;
'Plaintiff' includes the plaintiff's solicitor if he sues by a
solicitor;
'Registrar' means the Registrar of the court;
'Registry' means the Registry of the court;
'ship' includes every description of vessel used in naviga-
tion not propelled by oars only.
(20 of 1948) Fraser, Ord. 3 of 1901. Ord. 15 of 1946. Ord. 25 of 1949. Ord. 24 of 1950. Citation. Interpretation. 36 & 37 Vict, c. 66, s. 100. Indian Code, s. 2. O. 71, r. 1A. 36 & 37 Vict, c. 66, s. 100. (Cap. 4.) O. 71, r. 1. 36 & 37 Vict, c. 66, s. 100. Saving. Limited introduction of English rules. Institution and carrying on of actions. Actions to begin with writ of summons. Schedule. Form 1. Preparation and contents of writ. O. 5, r. 10. O. 3, r. 4. Date and teste of writ. Leaving of copy of writ. O. 5, r. 12. Filling and marking of copy of writ. O. 5, r. 13. Sealing and issue of writ. O. 5, r. 11. Writ or notice for service out of jurisdiction. O. 2, r. 4. Alteration in writ. Duration and renewal of writ. O. 5, r. 1. Evidence of renewal of writ. O. 8, r. 2. Case of lost writ. O. 8, r. 3. Savings as to proceedings on petition. H.K. Code, s. 9(5). Right to indorse writ specially in action for debt or liquidated demand. O. 8, r. 6. [r. 13 cont.] Schedule, Form 2. Right to indorse writ specially in action for immovable property. O. 3, r. 6. Nature of special endorsement. O. 3, r. 7. Endorsement in actions by money-lenders. O. 3, r. 10. (Cap. 163.) Procedure on default of appearance to specially indorsed writ. O. 13, rr. 3, 8. O. 13, rr. 3, 16. (Cap. 163.) Procedure where defendant appears to specially indorsed writ. [r. 18 cont.] O. 14, r. 5. Right to indorse writ specially in case of ordinary account, and procedure thereon. O. 14, r. 5. O, 15. Issue and marking of concurrent writs. O. 6, r. 1. Concurrent writs for service within and without the jurisdiction. O. 6, r. 2. Issue of originating summons. O. 54, r. 4B. Schedule. Forms 3, 4, 5. Filling of copy of originating summons. O. 54, r. 4B. Appearance to originating summons. O. 54, r. 4C. Attendance under originating O. 54, r. 4D. Schedule, Form 6. Disclosure by solicitor whose name. [r. 25 cont.] is indorsed on writ. O. 7, r. 1. Change of solicitors. O. 7, r. 2. Prohibition of service on Sunday, etc. General rule as to mode of service. Special modes of service by order of the court. [cf. O. 9, r. 2. O. 67, r. 6.] O. 10. Service on defendant in public service. Service on certain corporations. Service on other corporations. Service on husband and wife. O. 9, r. 3. Service on infant, O.9, r. 4. Service on lunatic. O. 9, r. 5. Service on agent of defendant out of jurisdiction. Service out of the jurisdiction. O. 11, r. 1. Schedule. Forms 7, 8. 22 & 23 Geo. 5, c. 36. O. 11, r. 4. O. 11, r. 5. O. 11, r. 6. Schedule, Form 9. [r. 37 cont.] O. 11, r. 7. O. 11, r. 3. O. 11, r. 8A. O. 11, r. 8. Schedule, Form 10. Schedule, Form 11. Schedule. Form 13. Schedule. Form 11. Schedule. Form 12. Service of process for foreign court: letter of request. O. 11, r. 9. [r. 38 cont.] Schedule, Form 14. O. 11, r. 10. Procedure in cases where a convention applies. O. 11, r. 13. Power to vary order for service. Expenses of service by the bailiff. Service and return of writ. O. 9, r. 15. Appearance in general. Schedule, Form 15. Appearance in case of defendant out of jurisdiction. Cross-action against absent plaintiff. Motion to set aside service before appearance. O. 12, r. 30. Leave to proceed ex prate in case of non-appearance. Subsequent appearance. Trial ex parts. O. 13, rr. 3, 16. (Cap. 163.) 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. [r. 1 cont.] Case of action commenced in name of wrong plaintiff. O. 16, r. 2. Case of counterclaim where a plaintiff is wrongly joined. O. 16, r. 3. General rules as to joinder of persons as defendant. O. 16, r. 4. O. 16, r. 5. O. 16, r. 6. Case of plaintiff in doubt as to person from whom he is entitled to redress. O. 16, r. 7. Action by or against trustees. Executors and administrators. O. 16, r. 8. Action for prevention of waste, etc. O. 16, r. 37. Case of numerous persons having same interest. O. 16, r. 9. Power to approve compromise in absence of some of the persons interested. O. 16, r. 9A. Misjoinder and non-joinder of parties. O. 16, r. 11. Application to add, or strike out, or substitute parties. O. 16, r. 12. Procedure where defendant added or substituted. O. 16, 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. Appearance by infant, O. 16, r. 18. Schedule, Form 16. Guardian ad litem of infant. O. 16, r. 19. Filling of authority by next friend or relator. O. 16, r. 20. Consent of person under disability to procedure. O. 16, r. 21. Representation of heir-at-law, next of kin, or class. O. 16, r. 32(a). O. 16, r. 32(b). Administration at suit of residuary legatee, etc. O. 16, r. 33. Administration at suit of legatee, etc., O. 16, r. 34. Administration at suit of residuary devisee, etc. O. 16, r. 35. Execution of trust at suit of cestui que trust. O. 16, r. 36. Administration at suit of executor, etc. O. 16, r. 38. Conduct of action or proceeding. O. 16, r. 39. Service of notice of judgment in action for administration of estate, etc. and effect thereof. O. 16, r. 40. O. 16, r. 41. O. 16, r. 42. O, 16 , r. 43. Schedule Form 17. O, 16 , r. 44. Action to execute trusts of will. O, 16 , r. 45. Case where no legal personal representative of deceased person interested in matter in question. O, 16 , r. 46. Meaning of estate. (Cap. 10) Right to appear on claim against estate under administration. O, 16, r. 47. [r. 31 cont.] Third party notice. O, 16A, r. 1. Form and issue of notice. O, 16A, r. 2. Schedule Forms 18, 19. Effect of notice. O, 16A, r. 3. Appearance. O, 16A, r. 4. Default by third party. O, 16A, r. 5. Defendant's remedy. O, 16A, r. 6. Third party directions. O, 16A, r. 7. [r. 38 cont.] Leave to defend. O, 16A, r. 8. At trial. O, 16A, r. 9. Costs. O, 16A, r. 10. Fourth and subsequent parties. O, 16A, r. 11. Co-defend-ants. O, 16A, r. 12. Counter-claim. O, 16A, r. 13. 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. O, 17, 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. O, 17, r. 4. Service of order and effect thereof. O, 17, r. 5. Application to discharge or vary order by person under no disability, etc. O, 17, r. 6. Application to discharge or vary order by person under disability. O, 17, 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. O, 17, r. 9. Striking out of cause abated, etc., for a year. O, 17, 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 with action for recovery of immovable property. O, 18, r. 2. Claims by trustee in bankruptcy. O, 18, r. 3. Claims by or against husband and wife. O, 18, r. 4. Claims by or against executor or administrator. O, 18, r. 5. Claims by joint plaintiffs. O, 18, r. 6. Provision as to rr. 4 to 6. O, 18, r. 7. Remedy of defendant for misjoinder of causes of action. O, 18, rr. 8, 9. Rules of pleading. O, 19, r. 1. Form of pleading. O, 19, r. 4. Signature of pleading. O, 19, r. 4. Particulars to be given in case of misrepresentation, fraud, etc. O, 19, r. 6. Ordering of further and better particulars. O, 19, r. 7. Time for pleading after delivery of particulars. O, 19, r. 8. Plea of not guilty by statute or Ordinance. O, 19, r. 12. [s. 7 cont.] Admission of fact not specifically denied. O, 19, r. 13. Condition precedent to be specified in certain cases. O, 19, r. 14. Pleading to raise all grounds of defence or reply. O, 19, r. 15. 29 Car. 2, c. 3. Prohibition of departure in pleading. O, 19, r. 16. Obligation to deal specifically with allegation not admitted. O, 19, r. 17. Joinder of issue. O, 19, r. 18. Evasive denial. O, 19, r. 19. Effect of bare denial of contract, etc. O, 19, r. 20. 29 Car. 2, c. 3. Mode of stating document. O, 19, r. 21. Mode of alleging malice, etc. O, 19, r. 22. Mode of alleging notice. O, 19, r. 23. Mode of alleging contract or relation to be implied from letters, etc. O, 19, r. 24. Presumption of law. O, 19, r. 25. Technical objection. O, 19, r. 26. Striking our or amending or pleading. O, 19, r. 27. Costs of prolix pleading. O, 19, r. 2. Filling of statement of claim. O, 20, r. 1(b). Schedule Form 22. Description of parties. Claim beyond indorsement on writ. O, 19, r. 4. Mode of stating prayer for relief. O, 19, r. 6. Mode of stating distinct claims. O, 19, r. 7. [r. 28 cont.] Service of statement of claim on defendant who has appeared. Power to order service forthwith where writ to be served out of jurisdiction. Power to stay proceedings where statement of claim is defective. Time for filing statement of defence. Schedule. Form 23. Application for extension of time. Filing statement of defence after expiration of time. Mode of denying allegations made in statement of claim. O, 21, rr. 1, 2. No denial necessary as to damages. O, 21, r. 4. Costs of allegation improperly denied or not admitted. O, 21, r. 9. Plea of general issue. O, 21, r. 19. Plea in abatement. O, 21, r. 20. Service of statement of defence on plaintiff. Payment into court. O, 22, r. 1. Specific causes of action. Notice. Schedule. Form 24. Plaintiff may take out money. O, 22, r. 2. Schedule. Form 25. Plaintiff may tax costs. Money remaining in court. O, 22, r. 3. Several defendants. O, 22, r. 4. [r. 44 cont.] Schedule. Form 25. Count-claim. O, 22, r. 5. Non-disclosure of payment into court. O, 22, r. 6. (Cap. 21.) Money paid into court. Under order. O, 22, r. 8. Defence of set-off to claim for money. Making of counter-claim, etc., in lieu of set-off. Cases in which counterclaim may be allowed, and procedure thereon. Schedule Form 26. [r. 50 cont.] Appearance by third party to counter-claim. O, 21, r. 13. Time for reply to counter-claim. O, 21, r. 14. Statement of defence to counter-claim. Continuance of counter-claim. O, 21, r. 16. Filing of reply and subsequent pleadings. Schedule. Form 27. Close of pleadings on default, and default of third party in pleading. O, 27, rr. 13, 14. Pleading matter arising before statement defence or reply. O, 24, r. 1. Pleading matter arising after statement of defence or reply. O, 24, r. 2. Confession of defence founded on matter arising pending the action. O, 24, r. 3. Abolition of demurrer. O, 25, r. 1. Right of party to raise point of law by pleading, and procedure thereon. O, 25, r. 2. Schedule. Form 28. Dismissal of action, etc., on point of law. O, 25, r. 3. Striking out pleading where no reasonable cause of action disclosed, etc. O, 25, r. 4. Declaratory judgment or order. O, 25, r. 5. Amendment of indorsement, etc. O, 28, r. 1. Application for leave to amend. O, 28, r. 6. Right of amendment ex parte. Amendment of statement of claim after defence. Failure to amend after order. O, 28, r. 7. Date of order and date of amendment to be marked. O, 28, r. 9. Filling and service of amended pleading. O, 28, r. 10. Correction of clerical mistake in judgment, etc. O, 28, r. 11. General power to amend. O, 28, r. 12. Discovery by inter-rogatories. O, 31, r. 1. Decision on interrogatories to be delivered. O, 31, r. 2. Schedule. Form 29. Costs of interro-gatories. O, 31, r. 3. Interrogatories for corporation or company. O, 31, r. 5. Setting aside inter-rogatories. Answer to interrogatories. O, 31, r. 8. Schedule. Form 30. Objections to inter-rogatories by answer. O, 31, r. 6. Objection to affidavit in answer. Order to answer or answer further. O, 31, r. 11. Application for discovery of documents. O, 31, r. 13. Schedule. Form 31. Discovery of specific documents. O, 31, rr. 19A (3). Production of documents. O, 31, r. 14. Inspection of document referred to in pleadings, etc. O, 31, r. 15. Time and place for inspection when notice for inspection given. O, 31, r. 17. [r. 14 cont.] Application for inspection. O, 31, r. 18. Order for verified copies of entries in business book. O, 31, r. 19A (1). Claim of privilege. O, 31, r. 19A (2). {Premature discovery or inspection. O, 31, r. 20. Non-compliance with order for discovery or inspection. O, 31, r. 21. Service of order on solicitor. O, 31, r. 22. O, 31, r. 23. Using answer to interrogatories at trial. O, 31, r. 24. [r. 21 cont.] Discovery against bailiff. O, 31, r. 28. Discovery by or against infant, etc. O, 31, r. 29. Notice of admission. O, 32, r. 1. Notice of admit document. O, 32, r. 2. Notice to admit fact. O, 32, r. 4. Evidence of admission. O, 32, r. 7. Judgment or order upon admissions of fact. O, 32, r. 6. Evidence of service of notice. O, 32, r. 8. Costs of unnecessary notice. O, 32, r. 9. Preparation of issues of fact. O, 33, r. 1. [r. 1 cont.] Order of disposal of issues. Amendment of or addition to issues. General power to direct inquires and accounts. O, 33, r. 2. Giving of special directions as to mode of taking account. O, 33, r. 3. Mode of making up account. O, 33, r. 4. Mode of vouching account. O, 33, r. 4A. Surcharge. O, 33, r. 5. Inquiry as to outstanding personal estate. O, 33, r. 6. Numbering of accounts and inquiries. O, 33, r. 7. Rule as to just allowances. O, 33, r. 8. Expediting proceedings in case of undue delay. O, 33, 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. O, 34, r. 2. Preparation. Signing and filing or special cases. O, 34, r. 3. Leave to set down special case where person under disability is party. O, 34, r. 3. Entry of special case. O, 34, r. 5. Schedule. Form 32. Agreement of parties for payment of money, etc., on decision of special case. O, 34, r. 6. Judgment and execution on decision. O, 34, r. 6. Power for persons interested in question as to construction of enactment, etc., to concur in stating special case for opinion of the court, and procedure thereon. 13 & 14 Vict, c, 35, ss. 1, 14, 15. application of order IX. O, 34, r. 7. Trial of questions of fact agreed upon between parties. O. 34, r. 9. Agreement subject to decision. Judgment and execution on decision. O. 34, r. 11. Record of proceedings. O. 34, r. 12. Modes of making interlocutory application. [r. 1 cont.] Filling of motion-paper. Schedule. Form 33. Terms of motion. Amendment of motion-paper. Affidavits in support of motion. Time of moving in case of urgency. Motion to be ex parte or on notice. Proceedings on motion ex parte. Power of amendment, etc., at hearing. Power to make order different from order asked for. Application to vary or discharge order made on motion ex parte. Procedure where notice of motion served. Return-day of order. Filing of counter affidavits. Non-appearance or person served with order. Appearance of person served with order. General power of the court on hearing. Filing of application for summons. Schedule. Forms 34, 35. Issue of summons. Proceedings on return-day of summons. Schedule Form 36. Taking of evidence by affidavit. Cross-examination of person making affidavit. O, 38, r. 1. Taking of evidence viva voce. Preservation, etc., of subject-matter of disputed contract. O, 50, r. 1. Sale of perishable goods, etc. O, 50, r. 2. Detention, preservation or inspection of property the subject of cause or matter. O, 50, r. 3. Inspection by judge. O, 50, r. 4. Inspection by jury. O, 50, r. 5. Application for order of mandamus, etc. O, 50, r. 6. O, 50, r. 7. Order for recovery of specific property, other than immovable property subject to lien, etc. O, 50, r. 8. Conduct of sale of trust estate. O, 50, r. 10. Date of order when drawn up. O, 50, r. 13. Operation of notice of motion, etc., as stay of proceedings. Application to dismiss action for want of prosecution. Order for setting down. Order for setting down on application of plaintiff. Order for setting down on application of defendant. General power to postpone trial of cause. O, 36, r. 34 Application for post-ponement for absent witness. Application for postponement for evidence of witness out of jurisdiction. Keeping of general trial list and trial paper. Transfer of cause from general trial list to trial paper. Notice to parties of transfer of cause. Taking cause out of turn. Notice of postponement of trial not necessary in certain cases. Order as to mode of trial. Right to trial by jury in action of libel, etc., trial without jury. O, 36, r, 3. O, 36, r, 4. O, 36, r, 5. Order for trial with jury. O, 36, r, 6. Mode of trial in cases not expressly provided for. O, 36, r, 2. Provision for different modes of trial for different questions. O, 36, r, 7. Trial by the Full Court. Saving of existing laws relating to juries. Default of appearance by both parties. Default of appearance by plaintiff. Default of appearance by defendant. Adjournment for further service. Procedure where no statement of defences filed. O, 27, rr. 2, 16. (Cap. 163). Trial ex parte. Re-trial of cause for absent defendant in certain cases. Procedure where cause struck out for absence of plaintiff. Default of appearance by plaintiff a second time. O, 36, r. 32. General order of proceedings at trial of cause. [r. 10 cont.] Notes of evidence. Remarks on demeanour of witness. Indian Code, s. 188. Use of notes of evidence. Objections to evidence. Putting in of evidence, by affidavits, etc. Reading of documentary evidence. Marking and disposal of document put in evidence. Amendment of pleadings to correspond with evidence. Evidence in mitigation of damages in action for libel or stander. O, 36, r. 37. Power of the court to direct non-suit, etc. Withdrawal of plaintiff from action. Settlement of action by mutual agreement, etc. Existing rules of evidence. Taking and use of evidence de bene esse. O, 37, r. 5. Letter of request. O, 37, r. 6A. Taking and use of evidence before action brought. Order for attendance of person to produce document. O, 37, r. 7. Disobedience to order for attendance. O, 37, r. 8. Copy of pleadings for examiner. O, 37, r. 10. Custody of deposition taken on examination. Report of examiner on examination, and proceedings thereon. O, 37, r. 17. Procedure for obtaining evidence in the Colony for use in foreign tribunal. O, 37, rr. 54 to 60. (Cap. 8.) 33 & 34 Vict, c. 52, [r. 10 cont.] Schedule. Form 58. Schedule. Form 59. (Cap. 8). Use of deposition taken on examination. O, 37, r. 18. Rules as to form and substance of affidavit. O. 38, rr. 7, 8. Re-writing of defective affidavit. Alteration in affidavit. O, 38, r. 12. Affidavits sworn in the King's dominions, etc., Affidavit sworn out of the king's dominions. Presumption in favour of affidavits purporting to have been sworn abroad. Use of defective affidavit. O, 38, r. 14. Exclusion of affidavit sworn before party, etc. Re-swearing of defective affidavit. Filing and use of original affidavit. Receiving evidence by affidavit. Power to admit affidavit of person not cross-examined. Order of court for admission of affidavit. Rules as to examination of witnesses. Admissibility in certain cases of evidence of witness given in former judicial proceeding. Use of evidence in subsequent proceedings. O, 37, r, 25. Orders XIII and XIV to apply to hearing of petition. Recording of verdict, etc. Pronouncement of judgement. Indian Code, s. 199. Reserved, judgment. Notice of judgment. Minute and formal judgment or order. Filing of written judgment. Rules as to awarding of interest in judgment. Payment of judgment debt by instalments. Power to award damages in addition to or in substitution for in junction, etc. Inquiry for ascertaining amount of damages in certain cases. Sum of money to be awarded generally. Judgment in case of set-off and counter-claim for money. 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. General power of the court as to costs. O, 65, r. 1. Costs of issues in fact and in law. Definition of costs. Taxation of costs. Security for costs. O, 65, r. 6A. O, 65, r. 6. O, 65, r. 7. Effect of failure of plaintiff to give security for costs. Indian Code, s. 381. [r. 6 cont.] Set-off for costs. Indian Code, s. 221. Interest on costs. Payment of costs out of subject-matter. Indian Code, s. 222. Costs payable by or to the Crown. Summons to judgment debtor to appear and be examined as to his ability to pay judgment debt, and proceedings thereon. Judgment for immovable property. Judgment for money. Judgment for money against representative of deceased person. Judgment for specific movable or for specific performance of contract or act. Judgment for execution of deed or indorsement of negotiable instrument. Case of surety for performance of judgment. Order for or against person not a party. O, 42, r, 26. Description of property liable to attachment and sale in execution of judgment. Payment of moneys into court. Period within which execution may issue. O, 42, r, 22. Duration and renewal of writ. O, 42, r, 20. Evidence of renewal of writ. O, 42, r, 21. Separate writs for money recovered and for costs. O, 42, r, 18. Execution in case of cross-judgments for money. Levying expenses of execution. O, 42, r, 15. Determination of questions as to mesne profits and other matters. Power of the court to order immediate execution. Procedure in case of order for immediate execution. Filing of praecipe for writ of execution. O, 42, r. 12. Schedule. Form 37. Note of application for execution. Application for leave to issue execution in certain cases, and proceedings thereon. O, 42, r, 23. [r. 21 cont.] 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. Issue and date of writ. O, 42, r, 14. Order of issue of writs. Procedure where resistance is offered to execution of judgment for immovable property. schedule. Form 38. [r. 27 cont.] Procedure where person other than judgment debtor disputes right to dispossess him of immovable property under judgment. Effect of decision under rule 27 or 28. Levy of execution on judgment for money. Schedule. Form 39. Attachment of movable property. Schedule. Form 40. [r. 31 cont.] Attachment of immovable property. Schedule. Form 41. Attachment of shares in public company. Attachment of negotiable instrument. Attachment of property in custody of public officer. Attachment of property in custodia legis. Service of prohibitory order. (Cap. 128.) Nullity of alienation, etc., of property after attachment. Payment of money or proceeds of property attached to judgment creditor. Appointment of manager of immovable property attached. Raising of judgment debt by mortgage, etc., of immovable property attached. Withdrawal of attachment on satisfaction of judgment. Order for attachment of debts due to judgment debtor. O, 45, r, 1. Schedule. Forms 42, 43. Effect of service of order of attachment. O, 45, r, 2. Payment into court by garnishee. Issue of execution against garnishee. O, 45, r, 3. Schedule. Form 44. Trial of question of liability of garnishee. O, 45, r, 4. [r. 47 cont.] Claim or lien of third person to or on debt, and proceedings thereon. O, 45, r, 5, 6. Effect of payment by or execution on garnishee. O, 45, r, 7. Payment to judgment creditor of proceeds of debts attached. Appointment of manager of debts attached. Debt Attachment Book. O, 45, r, 8. Costs of proceedings for attachment. O, 45, r, 9. Investigation of claim to attached property, and other thereon. [r. 54 cont.] Power to order sale of movable property taken in execution and claimed by third party. O, 45, r, 12. Giving of notice by the baliff of claim to movable property taken in execution. O, 45, r, 16. Withdrawal by the baliff on admission of claim. O, 45, r, 16A. Conduct and mode of sale in execution. Effect of sales in execution without notice of claim by third party. 3 & 4 Geo. 5, c. 34, s. 15. (Cap. 6.) Application to set aside sale of immovable property for irregularity. [r. 60 cont.] Sale of immovable property made absolute, confirmed or set aside. Repayment of deposit, etc., when sale of immovable property is set aside. Granting of certificate to purchaser when sale of immovable property becomes absolute. (Cap. 128.) Delivery to purchaser of immovable property sold in execution. Procedure where resistance is offered to purchaser of immovable property sold in execution. Delivery to purchaser of movable property sold in execution. [r. 66 cont.] Prohibitory order in case of debts and shares sold in execution. Negotiable instruments. Execution of transfer of share, etc. Duration of imprisonment for debt. Support and maintenance allowance to prisoner for debt. Ord, 15/46, s. 2. Removal to hospital of prisoner for debt in case of serious illness. Release of prisoner for debt. Recovery of amount of support and maintenance money. Application of prisoner for debt for discharge. Schedule. Form 45. Schedule. Form 46. Effect of discharge of prisoner for debt. Order on person disobeying judgment to show cause why he should not be punished. Service of order, etc., Proceedings on return-day of order. [r. 79 cont.] Enlargement of time for return to order; conditional order of committal. Duration of detention of person committed. 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. O, 42, r. 31. Proceedings by foreign attachment. Issue of writ of foreign attachment. Schedule. Form 47. Meaning of absence from the Colony. Bond by plaintiff before issue of writ. Schedule. Form 48. Court may order issue of writ before execution of bond. Movable property. Priority of writs. Attachment of property in custody of public officer. Attachment of property in custodia legis. Effect of service of writ on garnishee as regards movable property. Execution of writ against immovable property. (Cap. 128.) Effect of registration of memorial of writ on immovable property. Sale of movable property attached under writ. Punishment of garnishee disposing, without leave, of property attached. Seizure of attached property in danger of being removed, etc. Publication of notice of issue of writ. Service of notice of writ on defendant. Filing of statement of claim, and proceedings thereafter. Proceedings at trial of action. [r. 19 cont.] Attachment of ship in case of adverse claims to goods laden on board. Procedure where several claims to property attached. Staying proceedings against garnishee. Giving leave to defendant to defend action. Application by defendant to dissolve attachment. Application by defendant to set aside judgment, etc., Saving of rights of bona fide purchaser of property in case writ dissolved. Crown suits to be in the name of the Attorney General. [r. 1 cont.] Mode of preferring claim against Government. 23 & 24 Vict, c. 34. Consent of Governor, and procedure thereafter. Service of documents in action. Procedure where judgment given against Government. Right and liability of partners to sue and be sued in firm name, and disclosure of names of partners. O, 48A, r. 1. Disclosure of names of partners in action by firm. O, 48A, r. 2. Service on partners sued in name of firm. O, 48A, r. 3. [r. 3 cont.] Notice of capacity in which person is served. O, 48A, r. 4. Appearance of partners. O, 48A, r. 5. Manager served need not appear. O, 48A, r. 6. Appearance under protest of person served as partner. O, 48A, r. 7. Execution of judgment against firm. O, 48A, r. 8. Attachment of debts owing form firm. O, 48A, r. 9. Application of Order XX to actions between co-partners. O, 48A, r. 10. [r. 10 cont.] Application of Order XX to person trading as firm. O, 48A, r, 11. [cf. O. 16, rr. 22 to 31H.] Application by poor person to sue or defend as pauper. Assignment of counsel and solicitor to consider case. Order for admission to sue or defend as pauper. Assignment of counsel and solicitor to assist pauper. Exemption of pauper from fees. [cf. O. 16, r. 28.] Duty to act, [cf. O. 16, r. 30(3).] Punishment of person taking fee from pauper. [cf. O. 16, r. 28.] Dispaupering of pauper. [r. 8 cont.] Duty of solicitor of pauper as to signing of documents. O, 16, r, 31D. Service of writ of summons in case of vacant possession. O. 9, r. 9. Action for recovery of immovable property to the Crown. Appearance by person in possession. O. 12, r. 25. Appearance by landlord. O. 12, r. 26. Procedure where person not named as defendant appears. O. 12, r. 27. Limitation of defence to part of property. O. 12, r. 28. Plea of possession. O. 12, 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. 15 & 16 Vict, c. 76, 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 detemina- [r. 12 cont.] tion of tenancy by notice to quit. 15 & 16 Vict, c. 76, s. 213. Power on trial of ejectment by landlord against tenant to give damages for mesne profits. 15 & 16 Vict, c. 76, s. 214. Saving of other remedies of landlord. 15 & 16 Vict, c. 76, s. 218. Right of plaintiff to claim mandamus by indorsement on writ. [r. 1 cont.] Setting forth or grounds for mandamus in statement of claim. Proceedings in action claiming mandamus. Issue of peremptory writ of mandamus. Nature of writ and return thereon. Saving of prerogative writ of mandamus. 17 & 18 Vict, c. 125, s. 75. Acceleration of proceedings for prerogative writ. 17 & 18 Vict, c. 125, s. 76. Procedure on prerogative writ. 17 & 18 Vict, c. 125, s. 77. Cases in which relief by interpleader granted. O, 57, r. 1. Matters to be proved by applicant. O, 57, r. 2. Schedule. form 49. [r. 2 cont.] Adverse titles of claimants. O, 57, r. 3. Application by defendant. O, 57, r. 4. Summons by applicant. O, 57, r. 5. Stay of action. O, 57, r. 6. Order upon summons. O, 57, r. 7. Disposal of claims in summary manner. O, 57, r. 8. Decision on question of law. O, 57, r. 9. Failure of claimant to appear or refusal to comply with order. O, 57, r. 10. Appeals in interpleader. O, 57, r. 11. Application of Orders VII and XIII. O, 57, r. 13. General powers of the court in interpleader proceedings. O, 57, r. 15. Interpretation if 'sub-mission' 52 & 53 Vict, c. 49, s. 27. Effect of submission. 52 & 53 Vict, c. 49, s. 1. Provisions implied in submission. 52 & 53 Vict, c. 49, s. 2. And First Schedule. Power of 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. 52 & 53 Vict, c. 49, s. 6. Powers of arbitrator or umpire and procedure on reference. 52 & 53 Vict, c. 49, s. 7. O, 36, r. 48. O, 36, r. 49. O, 36, r. 50. O, 36, r. 51. O, 36, r. 52. Suing out of subpoena. 52 & 53 Vict, c. 49, s. 8. Enlargement of time for making award. 52 & 53 Vict, c. 49, s. 9. Remitting of award. 52 & 53 Vict, c. 49, s. 10. Misconduct or arbitrator or umpire. 52 & 53 Vict, c. 49, s. 11. Application to set said award. 52 & 53 Vict, c. 49, s. 12. O, 42, r, 31A. Reference for report. 15 & 16 Geo. 5, c. 49, s. 88. Reference for trial. 15 & 16 Geo. 5, c. 49, s. 89. Powers of referee, and procedure on reference. 15 & 16 Geo. 5, c. 49, s. 90(1). O, 36, r. 48. O, 36, r. 49. [r. 16 cont.] O, 36, r. 50. O, 36, r. 51. O, 36, r. 52. O, 36, r. 53. O, 36, r. 54. O, 36, r. 55. O, 36, r. 55B. Judgment to be entered by referee. Setting aside judgment of referee. Effect of report or award. 15 & 16 Geo. 5, c. 49, s. 90(2). Remuneration of referee etc,. 15 & 16 Geo. 5, c. 49, s. 90(3). Powers of the court as to reference. 15 & 16 Geo. 5, c. 49, s. 91. Compelling attendance of witness before referee, etc. [r. 22 cont.] 52 & 53 Vict, c. 49, s. 18. Statement of special case pending reference. 52 & 53 Vict, c. 49, s. 19. Costs. 52 & 53 Vict, c. 49, s. 20. The crown to be bound by order XXV. 52 & 53 Vict, c. 49, s. 23. Application of Order XXV, to references under statutory powers. 52 & 53 Vict, c. 49, s. 24. Application for taking security for appearance of defendant in certain cases. Issue of warrant for bringing defendant before the court to show cause why he should not give security. Schedule. Forms 50, 51. Showing cause, and procedure thereon. Schedule. Form 52. Schedule. Form 53. Release or committal to custody of defendant. [r. 4 cont.] Support and maintenance of defendant in prison to be paid by plaintiff. Ord. 24/50, Schedule. Application Ly defendant for discharge of bail or of release form prison. Power to award limited compensation to defendant for unjustifiable arrest. Application for taking security from defendant or for attachment of his property in certain cases. Issue of warrant requiring to furnish security or to appear and show cause, and attaching his property. Schedule. Form 54. Showing cause, and procedure thereon. Saving of rights of other persons under attachment. Removal of attachment on furnishing of security. Power to award limited compensation to defendant for unjustifiable attachment. Arrest and detention of ship in special circumstances. Release of ship under detention. Power to award limited compensation for unjustifiable arrest and detention. Granting of injunction to stay waste, damage or alienation of property. Granting of injunction to restrain breach of contract or other injury. Giving notice of application for injunction. Indian Code, s. 494. Effect of injunction directed to company or corporation. Indian Code, s. 495. Discharge, etc., of order for injunction. Indian Code, s. 496. Power to award limited compensation to defendant for unjustifiable injunction. [r. 6 cont.] Appointment of receiver of property in dispute and powers of receiver. Appointment of receiver by way of execution. O, 50, r. 15A. Giving of security by, and salary of, receiver. O, 50, r. 16. Adjournment of order for receiver into chambers for giving of security. O, 50, r. 17. Fixing of timers for leaving and passing accounts and paying balances. O, 50, r. 18. Leaving and passing account. O, 50, r. 20. Proceedings on default made in leaving or passing account, etc. O, 50, r. 21. Motions for new trial. 15 & 16 Geo, 5, c. 49, s. 30. General power to order new trial. Application for new trial. O, 39, r. 3. Grounds for granting or refusing new trial. O, 39, r . 6. O, 39, r . 8. Power to order new trial on any one question. O, 39, r . 7. Power to order non-suit, etc. Order for new trial, etc. Costs of first trial where new trial ordered. Right to jury on second trial. [r. 9 cont] Recording of grant of application for new trial. Restriction on appeals. 15 & 16 Geo. 5, c. 49, s. 31(1)(h). Limit of time for appeals: 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. O, 58, r. 3. General powers of the Full Court in hearing appeal. O, 58, r. 4. Power to order new trial. O, 58, r. 5. [r. 17 cont.] Power as to costs. O, 58, r. 4. Notice of appeal by respondent. O, 58, r. 6. Length of notice by respondent. O, 58, r. 7. Setting down appeal. O, 58, r. 8. Evidence on appeal as to question of fact. O, 58, r. 11. Transcript of proceedings. Evidence as to direction of or questions by judge. O, 58, r. 13. Interlocutory order not to prejudice appeal. O, 58, r. 14. Stay of proceedings. O, 58, r. 16. Mode of making incidental application. O, 58, r. 18. Interest where execution delayed by appeal. O, 58, r. 19. Counsel in chambers. O, 55, r. 1A. [r. 1 cont.] Course of preceding in chambers. O, 55, r. 37. Determination on originating summons of questions relating to estate of deceased person or to express trust. O, 55, r. 3. Order on originating summons for administration of estate or of trust. O. 55, r. 4. Persons to be served with originating summons. O, 55, r. 5. [r. 5 cont.] Service on other persons. O, 55, r. 6. Evidence in support of application. O, 55, r. 7. Judgment upon summons. O, 55, r. 8. Carriage and service of judgment. O, 55, r. 9. Right of the court to refuse to order administration. O, 55, r. 10. Orders on application for administration, or execution of trust, where no sufficient accounts have been rendered. O, 55, r. 10A. Interference with discretion of executor, etc. O, 55, r. 12. Application by summons under Cap. 29. Application in chambers for relief relating to charity with annual income exceeding $300, 16 & 17 Vict, c. 137, s. 28. [r. 14 cont.] By whom application relating to charity may be made. 16 & 17 Vict, c. 137, s. 43. Attorney General may apply under 52 Geo. 3, c. 101. 16 & 17 Vict, c. 137, s. 43. Sale of mortgaged property in action for redemption or foreclosure. 15 Geo. 5, c. 20, s. 91. Power to order sale of immovable property generally. O, 51, r, 1. Right of mortgagor in effacement by mortgagee to pay mortgage money, etc., and to have re-convey-ance. 15 & 16 Vict, c. 76, s. 219. [r. 19 cont.] Cases excepted from operation of rule 19. 15 & 16 Vict, c. 76, 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. O, 55, r. 19. Evidence on application for appointment of guardian and for maintenance. O, 55, r. 25. Appointment of guardian ad litem in proceedings in chambers. O, 55, r. 27. Classifying interests of parties. O, 55, r. 40. [r. 26 cont.] Court may require separate solicitor to represent parties. O, 55, r. 41. Attendance of parties not directed to attend. O, 55, r. 42. Drawing up of order stating parties who have been directed to attend. O, 55, r. 43. Advertisements. O, 55, r. 44. By whom preparted and signed. O, 55, r. 45. Substance and form of advertisements. O, 55, r. 46. Claimants not sending particulars of claims excluded. O, 55, r. 47. Service of notices on claimants. O, 55, r. 48. [r. 34 cont.] Claimants to produce documents if required. O, 55, r. 49. Claimants' affidavits. O, 55, r. 50. Examination and verification of claims. O, 55, r. 51. Adjudication on claims. O, 55, r. 52. Adjournment. Further evidence. O, 55, r. 53. Notice of claims allowed or disallowed. O, 55, r. 54. Unless served with notice claimant need not attend. Costs. O, 55, r. 55. [r. 41 cont.] List of claims allowed. O, 55, r. 56. Affidavit verifying claims. O, 55, r. 58. Adjudication on claims. O, 55, r. 59. Claimants who have established their claims to be served with notice of judgment. O, 55, r. 60. Computation of interest on debt carrying interest. O, 55, r. 62. Allowance of interest on debt not carrying. O, 55, r. 63. Interest on legacy. O, 55, r. 64. Nature of certificate. O, 55, r. 65. Reference in certificate to judgment, etc. O, 55, r. 66. Contents of certificate in case of account. O, 55, r. 68. [r. 51 cont.] Taking opinion of the court. O, 55, r. 69. Effect of certificate. O, 55, r. 70. Application to discharge or vary certificate. O, 55, r. 70. Power to discharge or vary certificate. O, 55, r. 71. Further consideration of matter originating in chambers. O, 55, r. 72. Keeping of notes of proceedings in chambers. O, 55, r. 73. Drawing up and entering of order. O, 55, r. 74. Evidence of order. O, 55, r. 74A. Appointment of sittings. General publicity of sittings [4. 2 cont.] Order of business at sitting. Sealing and filing of documents. Keeping of Cause-Book. Schedule. Form 57. General power of adjournment. O, 36, r. 34. Power to allow income of property, pendent lite. O, 50, r. 9. Proceedings for limiting ship-owner's responsibility. 57 & 58 Vict, c. 60. Effect of non-compliance with the rules. O, 70, r. 1. Time for applying to set aside proceeding for irregularity. O, 70, r. 2. Statement of grounds of application. O, 70, r. 3. Costs on dismissal of summons to set aside proceeding. O, 70, r. 4. Power to enlarge or abridge time for doing act or taking proceeding. Enlargement of time by consent. O, 64, r. 8. Rules for computation of time limited for doing act or taking proceeding. (Cap. 149.) Appointment of commissioners for oaths. 52 & 53 Vict, c. 10, s. 1. Officers of the court, to administer oaths. 52 & 53 Vict, c. 10, s. 2. Application of leave to issue writ of attachment. O, 44, r. 2. Effect of writ of attachment. O, 44, r. 1. Privilege of judicial officer from arrest. Indian Code, s. 642. Saving of certain provisions of 8 & 9 Will, 3, c. 11. General mode of publishing notice. Forms. Schedule. R.S.C., App. A, Part I, No. 1. (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. R.S.C., App. A, Part I, No. 1. (2) 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. R.S.C. App. K, No. 1A. (1) If the question to be determined arises in the administration of an estate or a trust, intitule it also in the matter of the estate or trust. (2) State concisely the nature of the claim. (3) State the questions. R.S.C. App. K, No. 1B. (1) State the object of the application. R.S.C. App. K, No. 1H. (1) State the object of the application. R.S.C. App. K, No. 1F. (1) Insert the name of the defendant or respondent. R.S.C., App. A, Part I, No. 5. R.S.C. App. A, Part I, No. 6. Insert number of days according to the order. If notice of the writ is to be served, insert 'of notice'. Insert number of days according to the order. If notice is to be served, insert 'of notice'. R.S.C. App. A, Part I, No. 9. R.S.C. App. A, Part I, No. 10A. R.S.C. App. A, Part I, No. 10B. R.S.C. App. A, Part I, No. 10C. R.S.C. App. K, No. 20A. R.S.C. App. A, Part II, No. 1. R.S.C. App. A, Part II, No. 8. R.S.C. App. G, No. 28. R.S.C. App. B, Part II, No. 1. R.S.C. App. B, Part II, No. 1A. R.S.C., App. K, No. 4E. 1 R.S.C., App. K, No. 4F. (1) Mention the judge. R.S.C., App. E, Sec. II. R.S.C., App. E, Sec, II. R.S.C., App. B, Part II. NO. 3. R.S.C., App. B, Part II, No. 4. R.S.C., App. E, Sec.II. R.S.C., App. E, Sec. II. R.S.C., App. E, Sec. III. No.1. R.S.C., App. B, Part II No. 6. R.S.C., App. B, Part II, No. 7. R.S.C. App. B, Part II, No. 8. R.S.C., App, G, No. 25. R.S.C., App. B, Part II, No, 18. (1) State the object of the motion.(1) State the object of the application. (1) State the object of the application. R.S.C., App.K, No.2. (1) Mention the judge. (2) State the nature of the order. (1) Describe the property and its situation. (1) Describe the property. (1) Describe the particular immovable property and its situation. R.S.C., App. B, Part II, No.25. (1) Insert name, address and description of garnishee. R.S.C., App. K, No. 39. (1) Insert name, address and description of judgment debtor.(2) Mention the judge. R.S.C.,App. K, No. 40. (1) Mention the judge. (1) Mention the judge. R.S.C., App. B, Part II, No. 26. (1)'is'or 'are'(2) If the claim is in writing, make the writing an exhibit,(3)State expectation of suit, or that he has already sued. R.S.C., App, L, No,2. R.S.C., App. L, No,3. (a) Name of judge, (b) Description of foreign tribunal.( c) Name and description of the Ambassador, Minister, Diplomatic Agent or Consul of the foreign country.(d) Name of foreign country. (e)Name of witnesses. (f) Name and address of examiner.(g)Place appointed for examination.(h)Description of document, if any, required to be produced. Ord, 6 of 1896, s.2, Schedule. Interpretation.
EXECUTION.
Investigation as to property of judgment debtor.
1. (1) Where a judgment directing payment of money
remains wholly or in part unsatisfied (whether a writ of
execution has issued or not) the judgment creditor may apply,
to the court for 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 tobis ability to make
the payment directed, and for the discovery of property
applicable to such payment, and as to the disposal which he
may have made of any property-
(3) The judgment debtor shall be bound to produce,
upon oath or otherwise as the court may think fit, all books,
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
judgment creditor and all other witnesses whom the court
thinks requisite may be examined upon oath or otherwise, as
the court may think fit, respecting 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, commit him to prison,
there to remain until the adjourned bearing unless sooner
discharged.
(6) The court may on such investigation as aforesaid
make an interim order for the protection of any property
applicable to the payment directed as it may think
expedient. [s. 369.]
Modes of enforcing judgment.
2.If the judgment is for immovable property the part),
who has obtained the judgment shall be put in possession of
the property, if necessary, by the bailiff. [s. 370.]
3. If the judgment is for money, it may be enforced
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 judg-
ment may be enforced against a defendant. [s. 371]
4. If the judgment is against a party as the represen-
tative of a deceased person and such judgment is for money
to be paid out of the property of the deceased 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 conic 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. [S. 372.]
5. If the judgment is for any specific movable or for
the specific performance of any contract or other particular
act, it may be enforced by the seizure, if practicable, of the
specilic movable and the delivery thereof to the party to
whom it has been adjudged, or by imprisonment 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 darnages have
been awarded, by levying such daniages in the mode pro-
vided for the execution of a judgment for money. [S. 373.]
6. 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 refuses
or neglects to do so, any party interested in having 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. [s. 374.]
7. Where a person has become liable as surety for the
performance of a judgment or of any part thereof the judg-
ment 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.
[s. 375.]
8. Any person, not being a party to a cause 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
matter, 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.[s. 376.]
General rules relating to execution.
9.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, government securities, bonds, or other securities for
money, debts, shares in the capital or joint stock of any
public company or corporation, and all other property what
soever, 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. [S. 377. ]
10. 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. [s. 378.]
11. As between the original parties to a judgment,
execution rnay issue at any time within six years from the
recovery of the judgment. [s. 379. ]
12. 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 tirne during the continuance
of the renewed writ, either by being marked by the Registrar
with the seal of the court and with the date of the day, month
and year of such renewal or by such party giving a written
notice of renewal to the bailiff, signed 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. [s. 380.]
13. The production of a writ of execution, or of the
notice renewing the same, purporting to be marked as
mentioned in rule 12 of this Order showing the same to have
been renewed, shall he sufficient evidence of its having been
so renewed. [s. 381.]
14. 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 costs, but a second writ shall only be for costs. [s. 382.]
15. If there are cross-judgments between the same
parties for the payment of money execution shall be taken
out by that party only who has obtained a judgment for the
larger sum and for so much only as may remain after
deducting the smaller sum, and satisfaction for the smaller
sum shall be entered on the judgment for the larger 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. [s. 383.]
16. 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. [s. 384.]
17. All questions 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 between the date of
the institution of the action and the execution of the Judg-
ment, 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 exectition
of the judgment, shall be determined by order of the
court. [s. 385.]
Immediate execution.
18. (1) The court may at the time of giving judgment,
on the verbal 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) The order for immediate execution s hall be in
writing and shall be sufficient authority to the bailiff to
proceed at once to execution of the judgment by seizure of
the person of the party against whom judgment is given :
Provided that the party obtaining the order shall as soon
thereafter as practicable comply with the requirements of
rule ig of this Order : Provided further that, if the party
against whom the order has been made satisfies the judge
that lie has sufficient means and intends to satisfy the judg-
ment, the judge may discharge the order for immediate
execution. [s. 386. ]
Application for execution in ordinary cases.
19. (1) Subject to the provisions of the preceding rule,
when any party who has obtained a judgment is desirous of
enforcing the same he shall file in the court a praecipe for a
writ of execution.
(2) The prxcipe 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 issuing
it or by the party issuing it, if he does so in person. [s. 387.]
20. 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. [s. 388 ]
Application for leave to issue execution.
21. (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 judgment for or against his wife;
(c)where a party is entitled to execution upon a judg-
ment 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
other 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, requiring
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 judgment if the application is made with-
in 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 forthwith executed, the court may, if it is
satisfied that the party, applying is entitled to execution,
order the judgment to be 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. [s. 390.]
22. (1) If a judgment has been given jointly in
favour of more persons 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. [s. 391.]
Stay of execution.
23. No proceeding by audita querela shafl 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 acts which have arisen too late to be
pleaded ; and the court rnay give such relief and on such
terms as may be just. [s. 392.]
24. Whenever an action is pending in the court
against 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 appears just and reasonable to
do so, stay execution of the judgment, either absolutely or
on such terms as may seem just, until judgment has been
given in the pending action. [s. 393.]
Issue of execution.
25. (1) On the application of the person who has
obtained any Judgment, the Registrar shall, subject to the
provisions of these rules issue the proper writ for the execu-
tion of the judgment.
(2) Every writ of execution shall bear date of the day
on which it is issued. [s. 394.]
26. All writs of execution shall be issued in the order
of application for the same, unless the court otherwise
directs. [s. 395.]
Execution of judgment for immovable Property.
27. (1) If in the execution of a judgment for immov-
able 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 ne month from the
time of such resistance or obstruction.
(2) The court shall thereupon fix a day for investigat-
ing the complaint and shall summon the person against
whom the complaint is made to answer the same,
(3) If on the investigation it appears to the court that
the resistance or obstruction was occasioned by the judg-
ment 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 judg-
nient is still resisted or obstructed in obtaining effectual
possession of the property adjudged to him by the judg-
ment, 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 such
other person may be liable for such resistance or obstruc-
tion, 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 the 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 judg-
ment debtor, the claim shall be numbered and registered as
an action between the person who has obtained the judg-
ment 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 obtsruc-
tion, 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 judg-
ment against the claimant and shall make such order for
staying execution of the judgment, or for executing the
same, as in the circumstances of the case may seem fit.
[s. 396.]
28. (1) Af any person other than th e 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 pro-
perty was bona fide in his possession on his own account
or on account of some person other than the defendant and
that it is not included 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, lie 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 applica
tion shall be numbered and registered as an action between
the applicant as plaintiff and the person who has obtained
the judgment as defendant and the court shall proceed to
investigate the matter in dispute in the 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 juagment. [S. 397. ]
29. The decision of the court under the provisions con-
tained in rule 27 or 28 of this Order shall be given in a sum-
mary 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 claim-
ing under them in respect of the same cause of action.
[s. 398.]
Execution of judgment for money by attachment
of Property other than debts.
30. If the judgment is for money and the amount there
of is to be levied from the property of the judgment debtor,
the court shall cause the property to be attached in the
manner hereinafter prescribed. [s. 399.]
(i) Where the property consists of movable pro-
perty in the possession of the judgment debtor the attach-
ment 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.
[S. 400.]
32. Where the property consists of immovable property
or any interest therein, either at law orin equity, the attach-
ment 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 persons from receiving
the same by purchase, gift or in any other way. [s. 401. ]
33. Where the property 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.
[s. 402.]
34. Where the property consists of a negotiable instru-
ment the attachment shall be made by actual seizure and the
bailiff shall bring the same into court and such instrument
shall be held subject to the further order of the court.
[S. 403]
35. Property in the custody or under the control of any
public officer in his official capacity shall be liable to attach-
ment with the consent in writing of the Attorney General
and in such case the order of attachment shall be served on
such public officer. [s. 404.]
36. Property in custodia legis shall be liable to attach-
ment by leave of the court and in such case the order of
attachment shall be served on the Registrar. [S. 405.]
37. (1) In the case of movable property not in the
possession of the judgment debtor an office copy of the
prohibitory order shall be delivered 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.
(3) In the case of shares in any public company or
corporation an office copy of the prohibitory order shall be
delivered to or served on the manager, secretary or other
proper officer of the company or c6rporation. [s. 406.]
38. 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 aliena-
tion without leave of the court of the property attached,
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 attach-
ment, shall be null and void. [S. 407.]
39. 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 over to the party applying for execution of the judg-
ment, and that any, part of the property so attached which
does not consist of money or bank notes shall, 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 a
sufficient part thereof, shall be paid to such party. [s. 408.]
40. (1) Where the property attached consists of im-
movable 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 accounts of his receipts and disburse-
ments, as the court may direct. [S. 409.]
41. (1) Where the property attached consists of immov-
able property, 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 raise 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 within 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
aInd 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 orders 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.
[S. 410.]
42. 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 theJudgment is otherwise
made, the attachment shall be withdrawn; and such steps.
shall be taken as may be necessary for staying further pro-
ceedings in execution of the judgment.[s. 411.]
Execution of fudgment for money by attachment of debts.
43. (1) The court may, on the ex parte application of
any person who has obtained a judgment 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 any other person is indebted
to the judgment debtor and is within the jurisdiction, order
that all debts due or accruing from such third person (here-
after in this Chapter called the garnishee) to the judgment
debtor shall be attached to answer the judgment.
(2) By the same or any 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.
(3) At least three days before the day of hearing the
order nisi shall be served on the garnishee and, unless
otherwise ordered, on the judgment debtor or his solicitor,
at least three days before the day of hearing. [s. 412.]
44. 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. [S. 411]
45. (1) On such service or notice the garnishee may
forthwith 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. [s. 414.]
46. 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 the
debt due or claimed 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 process, to levy the amount due from the
garnishee or so much thereof as may be sufficient to satisfy
the judgment. [s. 415.]
47. 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. [s. 416.]
48. (1) Where in any proceeding to obtain an attach-
ment 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 any 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 rule 47 of this Order, 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. [s. 417.]
49. 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. [s. 418.]
50. In any case of attachment of debts the court may
direct that 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 creditor. [s. 419.]
51. (1) In any case of attachment 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. [S. 420.]
52. There shall be kept by the Registrar a Debt Attach
ment Book and in such book entries shall be made of the
attachment and 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 on
application to the Registrar and on payment of the prescribed
fee. [[s. 421.]
53. The costs of any application for an attachment
of debts and of any proceedings arising from or incidental.
to such application shall be in the digcretion of the
court. [s. 422.]
Claim to attached Property.
54. (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 herein-
after contained, 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 was attached, or that, being in the possession of
the judgment debtor 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 liberty 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
earliest opportunity, 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 pur-
pose 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 justice and in
such case the claimant shall be left to prosecute his claim,
if he thinks fit, by an action in the ordinary way. [s. 423.]
55. Where movable property has been taken in execution
under the process of the court and any 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. [s. 424.]
56. (1) Where a claim is made to or in respect of any
movablepropery 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 notice to the bailiff that he
admits or disputes the claim.
(2) If the execution creditor admits the claim and gives
notice as directed by this rule, he shall only be liable to the
bailiff for any fees and expenses incurred prior to the receipt
of the notice admitting the claim. [S. 425.]
57. 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 from any action in respect
of the seizure and possession of the property, and the court
may make any such order as may be just and. reasonable in
respect of the same : Provided that the claimant 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 just and reasonable.
[S. 426.]
Sale of properly in execution of judgment.
58. 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. [S. 427. ]
59. Where any goods in the possession of an execution
debtor at the time of seizure by the bailiff or other officer
charged with the enforcement of a writ, warrant or other
process of execution are sold by such bailiff or other officer
without any claim having been made to the same, the
purchaser of the goods so sold shall acquire a good title to
the goods so sold and no person shall be entitled to recover
against the bailiff or other officer, or anyone lawfully acting
under the authority of either of them, except as provided
by section 46 of the Bankruptcy Ordinance, for any sale
of such goods or for paying over the proceeds thereof prior
to the receipt of a claim to the said goods, unless it is proved
that the person from whom recovery is sought had notice or
might by making reasonable inquiry have ascertained that
the goods were not the property of the execution debtor :
Provided that nothing in this section contained shall affect
the right of any claimant who may prove that at the time
of sale he had a title to any goods so seized and sold to any
remedy to which he may be entitled against any person
other than such bailiff or other officer or purchaser as
aforesaid. [s. 427A.]
60. At any time within ten 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 ground 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 satis-
faction of the court that he has sustained substantial injury
by reason of such irregularity. [S. 428. ]
61. (1) If no such application is made the sale shall be
deemed absolute.
(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. [S. 429.]
62. Whenever a sale of immovable property is set aside
for irregularity the purchaser shall be entitled to receive
back any money deposited or paid by him on account of
such sale, with or without interest, to be paid by such
parties and in such manner as it may appear to the court
proper to direct. [S. 430.]
63. (1) After a sale of immovable property has become
absolute in manner aforesaid the court shall grant a certi-
ficate 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 apd, 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.
[S. 431.]
64. (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 applica-
tion of the purchaser, order delivery of the property 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 sonic conspicuous place on
the property or at the court house. [S. 432.]
65. (1) If the purchaser of any immovable property 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 Order relating to
resistance or obstruction to the execution of the judgment
for immovable property 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 sold as proprietor, mortgagee, lessee, or
under any other title, or if in the delivery of possession to
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 obstruction 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. [s. 431]
66. (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 pro-
perty 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 lar as prac-
ticable 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. [s. 434.]
67. 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 frorn
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 proper officer of the
company or corporation from permitting any such transfer
or making any such payment to any person except the
purchaser. [S. 435. ]
68. Where the property sold consists of a negotiable
instrument of which actual seizure has been made the same
shall be delivered to the purchaser. [s. 436.]
69. (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 ex ecution 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 required as aforesaid.
(3) Until the execution of such transfer or the indorse-
ment 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. [s. 437.]
Execution of judgment for money by imprisonment.
70. No person shall be imprisoned in execution of a
judgment for a longer period than one year, or for a longer
period than six months if the judgment is for the payment
of nioney not exceeding five hundred dollars, or for a longer
period than three months if the Judgment is for the payment
of money not exceeding one hundred dollars. [S. 438. ]
71. 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 support and
maintenance, not exceeding five dollars per diem, which shall
be paid by the person at whose instance the judgment has
been executed to the Commissioner of Prisons by monthly
payments in advance, before the first day of each month,
the first payment rnade to be for such portion of the current
month as may remain unexpired before the Judgment debtor
is committed to prison. [s. 439. ]
72. (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 prison in
which he is confined or of the chief medical officer of the
Government, to make an order for the removal of the judg-
ment debtor to the Queen Mary Hospital and for his
treatment there tinder 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 terin of
imprisonment and his support and maintenance money shall
be paid as if no such order had been made. [s. 440.]
73. 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 support and maintenance money. [s. 441.]
74. All sums paid by a plaintiff for the support and
maintenance of a person imprisoned in execution of a judg-
ment shall be added to the costs of the judgment and shall
be recoverable by the attachment and sale of the property
of the judgment debtor; but the judgment debtor shall not
be detained in custoely or arrested on account of any sum
so paid. [S. 442.]
75. (1) Any person imprisoned in execution of a judg-
ment may at any time make written application 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 by himself or jointly with others, or by others
in trust for him (except the necessary wearing apparel of
hiniself 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 verilled by affidavit and shall be forwarded
by the applicant's solicitor or, if he has no solicitor, by the
Commissioner of Prisons, to the Registrar.
(3) On the application being received the Registrar shall
forthwith bring it to the notice of the court, and 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 signify his intention
of appearing and opposing 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 dis-
charge without satisfying the judgnient, has wilfully con-
cealed property or his right or interest therein, or fraudulent-
ly transferred or removed property, or committed any other
act of bad faith : Provided always that the jud-ment credi-
tor shall not be allowed to appear and oppose the applica-
tion unless within the period fixed as aforesaid he shall have
signified in writing to the Registrar his intention of so
appearing and opposing the application.
(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, or if the judgment creditor
has not signified his intention as aforesaid, it shall order the
release of the judgment debtor, but otherwise the court 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. [S. 443.]
76. When any person imprisoned in execution of a
judgment has been once discharged he shall not again be im-
prisoned on account of the same judgment, but his property
shall continue liable, under the ordinary rules, to attachment
and sale until the judgment is fully satisfied.
[S. 444.]
Committal for disobedience to judgment.
77. (1) Where any person is guilty of wilful dis-
obedience to a judgment the person wholas 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 dis-
obedience.
(2) The court, unless it sees good reason to the con-
trary, 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.
[S. 445. ]
78. 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. [s. 446.]
79. On the return-day of the order, if the person to
whom it is directed does not attend and does not establish a
stifficient 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 disobedience, the court
may issue a warrant for his committal to prison. [S. 447.]
80. The court may enlarge the time for the return to the
order or may, on the return of it and in 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 tinie and
in the event of his continued disobedience at that time to
the judgment in respect of which he has been guilty of
disobedience. [S. 448. ]
81. A person committed for disobedience to a judg
ment shall be liable to be detained in custody until be has
obeyed the judgment in all things which are to be imme-
diately 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. [s. 449.]
82. If a mandamus, granted in an action or otherwise,
or a mandatory order, injunction or judginent 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 re-
quired to be done may be done so far as practicable by the
party by whom the mandamus, order, injunction or judg-
ment has been obtained or by some other person appointed
by the court, at the cost of the disobedient party and upon
the act being done, the expenses incurred may be ascertain-
ed in such manner as the court may direct and execution
may issue for the amount so ascertained, and costs.
[s. 450.]
83. Any judgment against a corporation which is wil-
fully disobeyed may, by leave of the court, be enforced by
sequestration against the corporate property, or by com-
mittal of the directors or other officers thereof, or by writ
of sequestration against their property. [S. 451]
PART III.
SPECIAL ACTIONS AND PROCEEDINGS.
ORDER XVIII.
FOREIGN ATTACHMENT.
1. Proceedings by foreign attachment may be taken
in the manner hereinafter prescribed in any action, provided
lhat tile cause of action arose within the jurisdiction.
[S. 452. ]
2. (1) On the filing in court by the plaintiff in any
such action of an affidavit to the following effect-
(a)that the cause of action arose within the jurisdic-
tion ;
(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 mov-
able property within the jurisdiction in the custody
or under the control of any other person within the
Jurisdiction, or that such other person (hereafter in
this Order called the garnishee) is indebted to the
defendant, or that the defendant is beneficially en-
titled 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 attach
ment and shall be made returnable not less than fourteen
days after the date thereof except by special leave of the
court. [s. 453. ]
3. 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. [s. 454. ]
4. (1) Before the writ issues, the plaintiff or some
person on his behalf shall enter into a bond, with one or
more sufficient sureties to be approved by, the 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 that, in case the defendant, at any
time within the period hereinafter limited in that behalf,
causes 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 attachinent.
(2) The bond shall be in such forni and given to such
person as the court may from time to time or in any parti-
cular case approve and direct, and shall be entered into
before the Registrar and deposited in the Registry. [s. 455.]
5. (1) If in any case it is made to appear to the satis-
faction of the court, by affidavit or otherwise, that in 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 linlit
the time, not exceeding seven days from the date of the
issue of the writ, within which the bond inust be entered
into and deposited as aforesaid.
(2) If default is rnade in complying with the require-
merits 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 herein-
before provided in the case of a writ being set aside or a
judgment in the action being reversed or varied. [s. 456.]
6. Every writ against movable property shall be
executed by the bailiff. [S. 457.]
7. (1) Where two or more writs issue at the suit of
different plaintiffs they shall take priority respectively accord-
ing 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
the date and time of the same coming to his hands for
execution. [S. 458.]
8. 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
General and in such case the writ shall be served on such
public officer. [s. 459.]
9.Property in custodia legis shall be liable to attach-
ment by leave of the court and in such case the writ shall
be served on the Registrar. [S. 460.]
10. From the time of the service on the garnishee of
the writ all property whatsoever, within the jurisdiction,
other than immovable property or any 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 ot- tinder 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 fide
prior title thereto or lien or charge thereon and to the rights
and powers of prior incumbrancers, be attached in the hands
of the garnishee to satisfy the claim of the plaintiff. [S. 461.]
(1) Where the defendant is beneficially entitled to
immovable property or to any interest therein, a memorial
containing a copy, of the writ shall be registered in the Land
Office under the Land Registration Ordinance.
(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
in the Land Office, and thereupon the memorial shall be
deemed to have been cancelled. [s. 462. ]
12. From the time of the registration in the Land Office
of the memorial of the writ all immovable property 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. [S. 463]
13. 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. [s. 464.]
14. 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-
(a)knowingly and wilfully parts with the custody or
control of any property attached in his hands; or
(b)removes the same out of the jurisdiction of the
court; or
(c) sells or otherwise disposes of the same; or
(d)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. [S. 465.]
15. 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 may, by
an order in writing, direct the bailiff to seize such property
and detain the same subject to the order of the court; and
the bailiff shall thereupon seize and detain such property
accordingly. [S. 466.]
16. Notice of the issue of the writ shall be inserted twice
in the Gazette and twice in some local newspaper, unless
the court, by reason of the defendant having entered an
appearance or on any other ground, dispenses with the
publication of such notice. [S. 467. ]
17. 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 tile 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 wifliout prejudice to the attachment under
the writ. [S. 468. ]
18. After the issue of the writ (but subject to the
provisions of rule 17 of this Order) the plaintiff may forth-
with file his staterrient 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 flas been due service of the writ of summons and leave
has been obtained to proceed ex Parte. [S. 469.]
19. (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 Order and whether the plaintiff
has established his claim, and shall pronounce judgment
accordingly; and if the plaintiff obtains judgment the court
may, at the sarne 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 attach-
ment, the court may order that any issue or question necessary
for determining such liability shall be tried and determinined
in any Tanner 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 property.
(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 tile
court may have declared to be liable to satisfy the plaintiff's
claim ; and all the provisions of these rules relating to execu-
tion 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. [s. 470. ]
20. Wbere there are two or more claimants to any goods
laden on board of any ship and the ship is attached in all
action against the shipowner for the non-delivery of the
goods, the court may stay the proceedings on such terms
as the court may think proper and order the goods to be
landed and warehoused in custadia 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 as to security and other matters as may seem
just. [S. 471.]
21. 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 Order
or under the provisions of these rules relating to claims to
attached property or to interpleader proceedings. [S. 472.]
22. The court may stay proceedings in any action com-
menced against a garnishee under the provisions of this
Order in respect of property attached in his hands, on such
terms as may seem just. [S. 473. ]
23. 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 thedefendant to
defend the action, without prejudice to the attachment tinder
the writ. [S. 474.]
24. The defendant may, at ally time before any property
attached in the action has been soid in satisfaction of the
plaintiff's claim, apply to the court, upon notice of motion,
for an ordor to dissolve the writ as to the whole or any part
of the property attached, on security being given to answer
the plaintiff's claim, and the court may niake such order,
either absolutely or on such terms as may seem just, and in
the meanwhile may stay or postpone any sale. [S. 475. ]
25. The defendant may at any time within twelve
months from the date of judgment, notwithstanding that the
property attached or ally 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 re-trial 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 reasonably
have made an earlier appli cation to the court, and that he
had at the action 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
just. [S. 476.]
26. The dissolving of any writ or the reversal or setting
aside of any judgment given tinder this Order or of any
subsequent proceedings shall not aflect the title of any
bona fide purchaser for valuable consideration of any
property sold in satisfaction of the plaintiff's claim. [s. 477.]
ORDER XIX.
ACTION BY OR AGAINST THE GOVERNAILNT.
1. The Attorney General may lawfully commence and
prosecute in his own name any action or other civil
proceedings in respect of any claim made by the Crown, or
by the Governor or Government, or by any officer of the
Government in his official capacity, against a defendant
whether Che cause of action arises out of contract or tort or
otherwise : Provided always that this rule shall not affect
the commencement or prosecution of any proceedings in
respect of which any enactment provides that such proceed-
ings shall be taken in the name of some public officer other
than the Attorney General. [s. 478.]
2. (1) Any claim against the Government of the
same nature as claims within the provisions of the Petitions
of Right Act, 1860, may be preferred in the court in an
action instituted by the claimant as plaintiff against the
Attorney General as defendant.
(2) In any Such case it shall not be necessary for the
plaintiff to issue a writ of summons but the action shall be
commenced by the filing of a statement of claim and the
service of a sealed copy thereof on the Attorney General.
[s. 479.]
3. (1) On the application of the Attorney General,
the Registrar shall deliver to him the original statement of
claim for submission to the Governor, whose consent shall
be necessary to the continuance of the action. Such con-
sent may be withheld upon such grounds as would justify
the Attorney General of England in refusing his fiat.
(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 Attorney General to the
Registrar.
(3) In such case the action may, subject to the pro-
visions of this Order, proceed and be carried on under the
ordinary, procedure provided by these rules. [S. 480.]
4. 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 Attorney
General. [s. 481. ]
5. Whenever in any such action judgment is given
against the Government no execution shall issuethereon
but a copy of the judgment, tinder the seal of the court,
shall be transmitted by the court to the Governor. [s. 482.]
ORDER XX.
ACTION BY OR AGAINST FIRM, ETC.
1. (1) Any two 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 re spec-
tive firms, if any, of which such persons were co-partners at
the time of the 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 accru-
ing of the canse. of action co-partners in any such firm to be
furnished in stich manner, and verified upon oath or other-
wise, as the court may direct. [s. 483.]
2. (1) Wliere a writ is sued out by partners in the
name of their firm the plaintfiffs or their solicitors shall, on
demand in writing by or on behalf of the defendant, forth-
with 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 stich demand all proceedings in the action may, on an
application for that purpose, be stayed, on such terms as
the court may direct.
(3) When the names of the partners a re 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 pro-
ceedings shall nevertheless continue in the name of the
firm. [S. 484.]
3. (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
the jurisdiction of the business of the partnership on any
person having at the tirne of service the control or manage-
ment of the partnership business there.
( 2) Subject to the provisions of this Order, such ser
vice shall be deemed good service on the firm so sued,
whether any of the members thereof are out of the juris-
diction 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 jurisdiction
sought to be made liable. [s. 485. ]
4. (1) Where a writ is issued against a firm and is
served as directed by rule 3 of this Order, 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. [s. 486.1]
5. 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. [s. 487.]
6. Where a writ is issued agaiiist a firm and is served
on a person liaving the control or management of the part-
nership business, no appearance by him shall be necessary
unless he is a member of the firm sued. [S. 488. ]
7. Any person served as a partner nlay enter an
appearance under protest, denying that he is a partner, but
such appearance shall not preclude the plaintiff from other-
wise serving the firm and obtaining judgment against the
firm in default of appearance if no partner has entered an
appearance in the ordinary form. [s. 489.]
8. (1) Where judgment is given against a firm execu-
tion may issue-
(a)against any property of the partnership within the
jurisdiction ;
(b)against any person who has appeared in his own
name under rules 5 or 6 of this Order, 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 execution against any other person lis
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 deter-
rnined in any manner in which any issue or question, in an
action may be tried and determined.
(3) Except as against any property 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 bas not
appeared to the writ, unless 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. [s. 490.]
9. (1) Debts owing from a firm carrying on business
within the jurisdiction may be attached under Order XVII
although one or more members of such firm may be resident
abroad, provided that any person having the control or
management of the partnership business or any rnember of
the firm within the Jurisdiction is served with the garnishee
order.
(2) An appearance by any niember pursuant to an
order shall be sufficient appcarance by the firm. [S. 491.]
10. The provisions of this Order 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
abroad, provided such firm or firins 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 executionall such
accounts and inquiries may be directed to be taken and
made, and directions given, as may seem just. [s. 492.]
11. Any person carrying on business within the juris-
diction in a name or style other than his own name may
be sued in such 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 Order relating to proceedings against
firms shall apply. [S. 493.]
ORDER XXI.
ACTION BY OR AGAINST PAUPER.
(i) Any Poor person, before commencing or
defending any action or other proceeding in the court in
his own right or becoming 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 in affidavit of
the petitioner and two householders living in his neighbour-
hood or other responsible persons that he is not possessed
of property to the. amount of fifty dollars in value, his
wearing apparel and the subject-matter of the action or
proceeding only excepted. [s, 494.]
2. (1) The court shall thereupon assign a counsel
and solicitor to consider the petitioner's case.
(2) The petitioner shall lay a case before counsel for
his opinion whether or not he has reasonable grounds for
suing or defending. [S. 495. ]
3. (1) No person shall be admitted to sue or defend
as a pauper unless the case 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 know-
ledge 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 conditions 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. [s. 496.]
4.Where a person is admittecl to sue or defend as
a pauper the court may, if necessary, assign a counsel or
solicitor, or both, to assist him. [S. 497. ]
5. (1) No fee shall be payable by a pauper to his
counsel or solicitor.
(2) A person admitted to sue or defend as a pauper
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 thern on taxation, and such court fees as would
in other cases be chargeable shall be charged and
recovered. [s. 498. ]
6. A counsel or solicitor assigned under this Order
shall not be at liberty to refuse his assistance unless he
satisfies the court that he has some good reason for
refusing. [S. 499.]
7. (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
guilty of a contempt of court and shall be liable to be
proceeded against and punished accordingly. [S. 500.]
8. If any person admitted to sue or defend as a
pauper-
(a)gives or agrees to give any such fee, profit or
reward; or
(b)becomes of ability during the progress of the action
or proceeding; or
(c)misbehaves himself therein by any vexatious or
improper conduct or proceeding; or
(d) wilfully delays the action or proceeding,
he shall be forthwith dispaupered and shall not be after-
wards admitted again in the same action or proceeding to
sue or defend as a pauper. [s. 501. ]
9. (1) No motion-paper or notice of motion shall be
filed or summons issued, and no petition shall be presented,
on behalf of any person admitted to sue or defend as a
pauper, except for the discharge of his solicitor, unless it
is signed by his solicitor, if any.
(2) It shall he 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. [s. 502.]
ORDER XXII.
ACTION FOR RECOVERY OF IMMOVABLE, PROPERTY.
1. In an action for the recovery of immovable pro-
perty 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. [s. 503.]
2. The Attorney General may lawfully institute and
prosecute in his own name an action for recovering unto
the Crown any immovable property claimed by the Crown
and whereof the Crown is not in actual possession. [s. 504.]
3. Any person not named as a defendant in a writ
of summons for the recovery of immovable property may
by leave of the court, appear and defend, on filing an
affirlavit showing that he is in possession of the property
either by himself or by his tenant.[S. 505.]
4. 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.
[S. 506. ]
5. Where a person not named as defendant in a writ
of summons for the recovery of immovable property has
obtained leave of the court to appear and defend, he shall
enter an appearance, according to the provisions of Order
II, entitled in the action against the party named in the
writ as defendant, and shall forthwith give notice of such
appearance to the plaintiff's solicitor or to the plaintiff if
he sties in person, and shall in all subsequent proceedings
be named as a party defendant to the action. [S. 507.]
6. (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 property men-
tioned 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 in appearance where the defence is not
so limited shall be deemed an appearance to defend-for the
whole property. [S. 508.]
7. No defendant in an action for the recovery of
immovable property who is in possession by himself or by
his tenant need plead his title, unless he is in possession
by virtue of a lease or tenancy granted by the plaintiff or
his predecessor in title, or unless his defence depends on an
equitable estate or right or he claims relief on any equitable
ground 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 not 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 hereinbefore mentioned. [s. 509.]
Action of ejectment.
8. 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 the amount.
[s. 510.]
9. (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, without 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
sorved, 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 rriessuage, 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 year's rent was due before the writ was served, and
that no sufficient distress was to be found on the dernised
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-entry 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 excution to be-executed thereon, without paying the
rent and arrears, together with full costs, and without pro-
ceeding for relief on equitable grounds within six months
after such execution executed, then the lessee, his assignee
and all other persons claiming and deriving under the lease
shall be barred and foreclosed from all relief or remedy in
law or equity, other than by bringing an appeal against
such judgment ; and the landlord or lessor shall from thence-
forth hold the demised premises discharged from such lease :
Provided that nothing herein contained shall extend to bar
the right of any mortgagee of the lease, or any part thereof,
who is not in possession, if such mortgagee within six 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 remainder 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. [s. 511.]
10. (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 grounds, 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 applica-
tion 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 just 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 fie may really and boita fide,
without fraud, deceit or wilful neglect, make of the demised
premises from the time of his entering into the actual posses-
sion 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 is restored to his posses-
sion, 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.
[s. 512.]
11. 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 proceed
ings 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 relieved on equit
able grounds, he and they shall have, hold and enjoy the
demised premises according to the lease. thereof made,
without any new lease. [s. 513.]
12. (1) Where the term or interest of any tenant hold-
ing 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 or been determined, either by the
landlord or tenant, by regular notice to quit, and the tenant,
or a ny person holding or claiming by or under him, re-
fuses 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 place of abode of such tenant or person,
and the landlord thereupon proceeds by action of ejectment
for the recovery of possession, it shall be lawful for him,
at the foot of the writ in ejectment, to address a notice to
such tenant or person requiring him to find such bail, if
ordered by the court, an d for such purposes as are here-
inafter 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 lawful for the landlord, on his producing the
lease or agreement or some counterpart or duplicate there-
of, 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 interest of the
tenant has expired or been determined 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 tenant or person
to show cause, within a time to be fixed by the court on a
consideration of the situation of the premises, why such
tenant or person should not enter into a recognizance by
himself and two sufficient sureties in a reasonable surn
conditioned to pay the damages and costs 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, within 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 an 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.
[S. 514. ]
13. Where it appears, on the trial of any ejectment at
the suit of a landlord against 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 pre
mises mentioned in the writ in ejectment, to go into evid
etice of the mesne profits thereof which have or might have
accrued from tile day of the expiration or determination of
(fie teilant's interest in the same down to the time of the
judgment given iri the cause or to some preceding day to
be specially mentioned therein ; and the court or jury oil
the trial finding for the claimant shall in such case give its
judgment or their verdict upon the 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 profits; and in such case the 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 : Provided that
nothing hereinbefore contained shall be construed 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 de
livery of possession of the premises recovered in the eject
ment. [S. 515.]
14. Nothing in this Order shall be construed to pre-
judice 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 en-
acted. [s. 516.]
ORDER XXIII,
MANDAMUS.
Action of mandamus.
1. 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. [s. 517.]
2. The statemont of claim in any such action shall
set forth sufficient grounds on which the claim is founded,
and shall set forth that the plaintiff is personally interested
therein, and that lie 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. [s.518]
3. The proceedings in any such action shall be the
same in all respects, as nearly as may be, as in an ordinary
action for recovery of damages. [S. 519.]
4. (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, corn-
manding him forthwith, or within such time as. the court
may direct, to perform the duly to be enforced, and such
writ may, in case of disobedience, be enforced by corn-
mittal.
(2) The court may, on sufficient cause shown, extend
the time for the performance of the duty. [S. 520.]
5. The writ of mandamus need not contain any
recitals, but shall simply command the performance of the
duly, and in other respects shall be in the form of an
ordinary writ of execution, except that it shall be directed
to the party and not to the bailiff and be returnable forth-
with ; and no return thereto, except that of compliance,
shall be allowed, but time to return it may, on sufficient
grounds, be allowed by the court, either on or without
terms, as to the court may seem just. [S. 521. ]
Prerogative writ of mandamus.
6. Nothing in this Order shall affect the jurisdiction
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 Order. [s. 522.]
7.On application by motion for a prerogative 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 return
able forthwith, but time to return it may, on sufficient
grounds, be allowed by the court, either on or without
terms, as to the court may seem just. [S. 523.]
8. The provisions of these rules, so far as they are
applicable, shall apply to the pleadings and proceedings
on a prerogalive writ of viandamus issued by the court.
[S. 524.]
ORDER XXIV.
INTERPLEADER.
1. Relief by way of interpleader may be granted--
(a)where the person seeking relief (in this Order
cafled the applicant) is under liability for any debt
or movable property for or in respect of which lie
is, or expects to be, sued by two or more parties
(in this Order called the claimants) making adverse
claims thereto; and
(b) where the applicant is the bailiff and claim is made
to any movable property taken or intended to be
Jaken in execution under any process, or to the
proceeds or value of any such movable property,
by any person other than the person against whom
the process issued. [S. 525.]
2. The applicant must satisfy the court, by affidavit
or otherwise-
(a) that the applicant claims no interest in the subject-
matter in dispute, other than for charges or costs;
and
(b)that the applicant does not collude with any of the
claimants; and
(c)that file applicant, except where he is the bailiff
and has seized movable property and has with-
drawn 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. [S. 526.]
3.The applicant shall not be disentitled to relief by
reason only that the titles of the claimants have not a
common origin but are adverse to and independent of one
another. [s. 527.]
4. Where the applicant is a defendant application for
relief may be made at any time after service of the writ
of summons. [S. 528.]
5.The applicant may take out a summons calling on
the claimants to appear and state the nature and parli
culars of their claims, and either to maintain or relinquish
them. [S. 529.]
6. If the application is made by the defendant in
an action the court may stay all further proceedings in the
action. [s. 530.]
7. If the claimants appear in pursuance of the sum-
mons the court may order either that any claimant be made,
a defendant in any action already commenced in respect of
the subject-matter in dispute in lieu of or in addition to
the applicant or that an issue between the claimants be
stated and tried, and in the latter case may direct Miich of
the claimants is to be plaintiff and which defendant.
[s. 531.]
8.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. [s. 532.]
9. Where the question raised by the claims is a ques-
tion of 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. [s. 533.]
10. If a claimant, having beer duly served with a
summons calling on him to appear and maintain or relin-
quish his claim, does not appear in pursuance of the
suinnions 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 claim-
ing under him, but the order shall not affect the rights of
the clainianis as between themselves. [S. 534.]
11. (1) The decision of the court in a summary way
under rule 8 of this Order and the decision of the court
on a question of law under rule 9 of this Order shall be
final and conclusive against the claimants, and all persons
claiming under them unless leave to appeal is given by
the court or by the Full Court.
(2) Where an interpleader issue is tried by a judge
alone in appeal shall lie from an decision arrived at or
any judgment directed by the judge.
(3) Where an interpleader issue is tried by a judge
with a jury, an application for a new trial or to set aside
the verdict, finding or judgment may be made.
(4) Where the court or a judge tries an interpleader
issue and finally disposes of the whole matter under rule
12 of this Order, an appeal shall lie from the decision or
judgment.
(5) Any appeal under this section shall be to the Full
Court and shall be deemed to be interlocutory. [s. 535.]
12. Orders VII and XIII shall, with the necessary
modifications, apply to an interpleader issue; and the
court may finally dispose of the whole matter of the inter
pleader proceedings,including all costs not otherwise
provided for. [s. 536.]
13. The court may, in or for the purposes of any inter
pleader proceedings, make all such orders as to costs and
all other matters as may be just and reasonable. [s. 537.]
ORDER XXV.
REFERENCE TO ARBITRATION.
1. In this Order, 'submission' means a written
agreement to submit present or future differences to arbitra-
tion, whether an arbitrator is named therein or not. [5. 538.]
Reference by consent out of court.
2. A submission, unless a contrary intention is
expressed therein, shall be irrevocable, except by leave of
the court, and shall have the same ellect in all respects
as if it had been made an order of court. [s. 539.]
3. A submission, unless a contrary intention is
expressed therein, shall be deemed to include the provisions
hereinafter set forth so far as they are applicable to the.
reference under the submission-
(a)if no other mode of reference is provided the refer-
ence shall be to a single arbitrator;
(b)if the reference is to two arbitrators, the two
arbitrators may appoint an umpire at ally time
within the period during which they have power
to make an award;
(c)the arbitrators shall make their award in writing
within three months after entering-on the reference,
or after having been called on to act by notice in
writing from any party to the submission, or on
or before any later day to which the arbitrators,
by any writing signed by them, may from time to
time enlarge the time for making the award;
(d)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 the refer-
ence in lieu of the arbitrators;
(e)the umpire shall make his award within three
months after the original or extended time appoint-
ed for making the award of the arbitrators has
expired, or on or before any later day to wflich
the umpire, by any writing signed by him, may
from time to time enlarge the time for making the
award.,
the parties to the reference, and all persons claim-
ing through or under them respectively, shall,
SUbject to any legal objection, submit to be
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, deeds, papers, accounts,
writings and documents in their possession or
power respectively which may be required or called
for, and do all other things which, during the pro-
ceedings on the reference, the arbitrators or umpire
may require;
(g)the witnesses on the reference shall, if the arbitrators
or unipire think fit, be examined upon oath ;
(h)the award to be made by the arbitrators or urnpire
shall be final and binding on the parties and the
persons claiming through or under them respective-
ly; and
(i) the costs of the reference and award shall be in the
discretion of the arbitrators or umpire, who rnay
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. [s. 540.]
4. If any party to a submission, or any person claim-
ing 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 pro-
ceedings, apply to the court to stay the proceedings, and
the court, if it 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 proceed-
ings accordingly. [S. 541.]
5. (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 appoint-
ment of an arbitrator;
(b)if an appointed 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 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 arbitrators, 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 applica
tion by the party 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. [S. 542.]
6. Where a submission , provides that tile reference
shall be to two arbitrators, one to be appointed by each
party, then, unless the submission expresses a contrary
intention-
(a)if either of the appointed arbitrators refuses to act,
or is incapable of acting, or dies, the party, who
appointed him may appoint a new arbitrator in his
place; and
(b)if, on such a reference, one party fails to appoint
an arbitrator either originally or by way of sub-
stitution 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 oil 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. [s. 543. ]
7. (1) The arbitrators or umpire acting under a sub-
mission shall unless the submission expresses a contrary
intention have power---
(a)to administer oaths to the parties and witnesses
appearing; and
(b)to state an award as to the whole or part thereof in
the forni 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 --
(a) they may hold the proceedings on the reference at
or adjourn thern to any place which they may deem
most convenient, and have any inspection or view
which they may deem expedient for the better dis-
posal of the controversy before them ;
(b)evidence shall be taken on the reference, and the
attendance of witnesses may be enforced by sub-
peena, 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.
(3) Nothing in this section shall authorize them to
commit any person to prison or to enforce any order by
committal or otherwise.
(4) When they make an award they shall immediately
thereafter cause notice thereof to be given in writing to all
the parties to the reference before them. [s. 544.]
8. Any party to a submission may sue out a writ of
subpwna ad lestificandum or a writ of subpoena duces lecum,
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. [S. 545.]
9. 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. [s. 546.]
10. (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 the arbitrators or umpire.
(2) Where, an award is remitted the arbitrat ors or
umpire shall, unless the order otherwise directs, rnake their
award within three. months after the date of the order.
[S. 547.]
11. (1) Where an arbitrator or umpire has miscon-
ducted himself the court may remove him.
(2) Where an arbitrator or urnpire has misconducted
hiniself, or an arbitration or award has been improperly
procured, the court may set aside the award. [s. 548. ]
12. An application to set aside an award may be made
within one month after such award has been made and
published to the parties. [s. 549.]
13. (1) An award may, by leave of the court, be en-
forced in the sarne manner as a judgment or order of
court to the same effect.
(2) An award may, by leave of the court 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. [s. 550.]
Reference under order of court.
14. (1) Subject to the provisions of these' rules and to
any right to have particular cases tried by a jury, the court
may refer to a special referee for inquiry or report any
question arising in any cause or matter, other than a criminal
proceeding by. the Crown.
(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 of the
court to the same effect. [S. 551. ]
15. In any cause or matter, other than a criminal pro-
cceding by the Crown-
(a)if all the parties interested who are riot under
disability consent; or
(b)if the cause or matter requires any prolonged
examination of documents or any scientific or local
investigation which cannot, in the opinion of the
court, conveniently be made before a jury or con-
ducted by the court through its other ordinary
officers; or
(c)if the question 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 all officer of the court. [S. 552.]
16. In every case of reference to a special referee or
arbitrator or to an officer of the court under 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 sliall conduct the reference in such manner, as is
hereinafter mentioned-
(a) he may, subject to the order of the court, hold the
trial at or adjourn it to any place which he may
deern 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 court he shall, unless
offierwise directed by the court, proceed with the
trial de die in diem, in a similar manner as in an
action tried with a jury;
(b)subject to any order to be made by the court,
evidence shall be taken at the trial, and the attend-
ance oF witnesses may be enforced by subpoena,
and the trial shall be conducted in the same manner,
as nearly as circumstances will admit, as trials are
conducted before,the court;
(c)subject to any such order as last aforesaid, lie 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 parly, as
the court;
(d)nothing in this rule shall authorize him to commit
any person to prison or to enforce any order by
committal or otherwise;
(e)he may, before the conclusion of the trial before
him, or by his report or award 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;
(f) when he makes a report or award he shall imme-
diately thereafter cause notice thereof to be given
in writing to all the parties to the trial or reference
before him ;
(g)where a report or award has been made in a cause
or matter, the further consideration 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 leive 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 considera-
tion to the same or any other special referee,
arbitrator or officer of the court;
(h)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.
(i)he may, subject to any directions in the order of
reference, exercise the same discretion as to costs
as the court could have exercised. [S. 553. ]
17. 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 judg-
ment. 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.
[S. 554.]
18. Where at the trial a special referee, arbitrator or
officer of the court directs that any judgment be entered,
any 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.
[S. 555.]
19. 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. [s. 556. ]
20. 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. [S. 557.]
21. The court shall, as to any reference under an. order
of the court, have all the powers which are by this Order
conferred on the court as to a reference by consent out of
court. [s. 558.]
General.
22. (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 arbitra-
tor, 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 testlificandum shall issue to bring up a prisoner for
examination before a special referee or before any arbitrator,
umpire or officer of the court. [S. 559. ]
23. Any special referee, arbitrator, or umpire or officer
of the court may, at any stage of the proceedings tinder a
reference, and shall, if so directed by the court, stale in he
form of a special case for the opinion of the court any ques-
tion of law arising in the course of the reference. [s. 560. ]
24. Any order made under this Order may be made on
such terms as to costs, or otherwise, as the authority making
the order thinks just. [S. 561. ]
25. This Order shall, except as in this Order expressly
mentioned, apply to any arbitration to which His Majesty
the King is a party; but nothing in this Order shall empower
the court to order any proceedings to which His Majesty is
a party, or any question or issue in any such proceedings,
to be tried before any special referee, arbitrator or office
without the-consent of His Majesty, or shall affect the law
as to costs payable by the Crown. [S. 563.]
26.. This Order shall apply, to every arbitration under
any Ordinance as if the arbitration were pursuant to a
submission, except in so far as this Order is inconsistent
with the Ordinance regulating the arbitration or with any
rules or procedure authorized or recognized by that Ordin-
ance. [s. 564.]
PART IV.
PRIOVISIONAL REIMEDIES.
ORDER XXVI.
ARREST AND ATTACHMENT BEFORE JUDGMENT.
Arrest of absconding defeitdaiit.
1. 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 appearan * ce to answer any judgment that
may be given against him in the action. [S. 566.]
2. If the court, after making such investigation as it
may consider necessary, is of the 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 his 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
fie may show cause wily he should not give security for
his appearance to answer any judgment that may be given
against him in the action. [s. 567.]
3. (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 under-
take, in default of such appearance, to pay any surn 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 toanswer any sum of money that may be adjudged
against him in the action, with costs, tile court may accept
such deposit in lieu of bail. [S. 568.]
4. (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.
(3) When a defendant is committed to prison under
sub-rule (2) the court shall fix whatever monthly allowance
it may think sufficient for his support and maintenance, not
exceeding five dollars per diem, which shall be paid by the
plaintiff to the Commissioner of Prisons by monthly payments
in advance before the first day in each month, the first pay-
ment made to be for such portion of the current month as
may remain unexpired before the defendant is committed
to prison.
(4) Every defendant imprisoned under sub-rule (2) shall
be released at any time on the plaintiff omitting to pay his
support and maintenance money. [S. 569.]
5. (1) A defendant who has given bail for his appear-
ance, 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.
(2) The surety or sureties for the appearance of the
defendant or either or any of them may at any time apply
to a judge to be discharged from his or their obligation.
On such application being made the judge shall summon
the defendant to appear; or, if necessary, he may issue a
warrant for his arrest in the first instance.
On the appearance of the defendant pursuant to the
summons or warrant or on his voluntary surrender, the
court shall direct the surety or sureties making application
under this section to be discharged from his or their obliga-
tion, and shall call upon the defendant to find security,
whereu pon the provisions of sub-rule (2) of rule 4 of this
Order shall again apply. [S. 570. ]
6. (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 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 deern a reasonable compensation to the
defendant for any injury or loss which he may have sustained
by reason of the arrest : Provided that the court shall not
award a larger sum by way of compensation under this rule
than it is competent to the court to award in an action for
damages.
(2) An award of compensation under this rule shall bar
any action for damages in respect of the arrest. [s. 571.]
Interim attachment of Property of defendant.
7. (1) If in any action the defendant, with intent to
obstruct or delay the execution of any judgment that may be
given against 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 against him in
the action, and, in the event of his failing to furnish such
security, to direct that any property, movable or immovable,
belonging to the defendant 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 affida-
vit to the effect that the defendant is about to dispose of or
remove his property or some part thereof, with such intent
as aforesaid.
[S. 572.]
8. (1) If the court, after making stich investigation
as it may consider necessary, is of opinion that there is
probable cause for believing that the defendant is aboutto
dispose of or remove his property or sorne 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 is 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 SUCII 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 should not furnish such security.
(2) The court may also in the warrant direct the at-
tachment until further order of the whole or any portion
of the property of the defendant within the Colony.
(3) The attachment shall be made, accotding to the
nature of the property to be attached, in the manner pre
scribed in Order XVII for the attachment of property in
execution of a judgment for money. [s. 573.]
9. (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 application, or any portion
thereof, has been attached, the court shall order the attach-
ment 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 answer 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 Order XVII for the attachment of property
in execution of a judgment for money. [s. 574.]
10. The attachment shall not affect the rights of any
persons 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 Order XVII for the investigation of claims to
property attached in execution of a judgment. [S. 575.]
11. 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. [s. 576. ]
12. (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 against 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 time of the pronouncing of the judgment,
award against the plaintiff such amount, not exceeding one
thousand dollars, as it may deem a reasonable compensa-
tion 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 rule than it is competent to the
court to award in in action for damages.
(2) An award of compensation under this rule shall
bar any, action for damages in respect of the attachment.
[S. 577.]
Arrest and detention of ship.
13. Where the extreme urgency or other peculiar cir-
cumstances 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 the clearance 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 ut the instance of any plain-
tiff unless the application for the issue thereof is Supported
by an affidavit of the facts. [s. 578.]
14. The court may at any time release a ship detained
under rule 13 of this Order, on such terms as it may think
just. [S. 579.]
15. (1) If it appears to the court that the warrant was
applied for on insufficient grounds, or if the action is dis-
missed or judgment is. given against 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,
either before or at the time of the pronouncing of the judg-
ment, award against the plaintiff such amount, not exceed-
ing 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 that the court
shall not award a larger sum by way of compensation under
this rule than it is competent to the court to award in an
action for damages.
(2) An award of compensation under this rule shall
bar any action for damages in respect of the arrest and
detention of the ship. [S. 580. ]
ORDER XXVII.
TEMPORARY INJUNCTION.
1 . (i) In any action in which it is shown to the satis-
faction 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 pre-
venting him from wasting, damaging or alienating the pro-
perty as to the court may seem fit.
(2) In case of disobedience the injunction may be en-
forced by the committal to prison of the person disobeying
it. [s. 581.]
2. (1) In any action for restraining the defendant
from the commission of any breach of contract or other in-
jury, 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 in-
junction to restrain the defendant from the repetition or con-
tinuance 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) 1n case of disobedience the injunction may be en-
forced by the committal to prison of the person disobeying
it. [s. 582.]
3. The court shall in all cases under this Order, except
where it appears that the object of granting an in-junction
would be defeated by the delay, before granting an injunc-
tion direct notice of the application for the same to be given
to the opposite party. [S. 583.]
4. An injunction directed to a public company or cor-
poration shall be binding not only on the company or cor-
poration itself but also on all members and officers of the
company or corporation whose personal action it seeks to
restrain. [S. 584.]
5. Any order for an injunction made under this Order
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 terms as may seem just. [S. 585. ]
6. (1) If it appears to the court that the injunction was
applied for on insufficient grounds, or if the action is dis-
missed or judgment is given against 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 time of the pronouncing of the judgment, award
against the plaintiff such amount, not exceeding one thou-
sand 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 compen-
sation under this rule than it is competent to the court to
award in an action for damages.
(2) An award of compensa tion under this rule shall bar
any action for damages in respect of the issue of the
injunction. [s. 586. ]
ORDER XXVIII
RECEIVER.
1 . Whenever it appears to the court to be necessary for
the realization, preservation, or better custody or manage-
ment of any property, the subject of an action or other
proceeding or under attachment, the court may appoinf a
receiver of such property and, if necessary, order all or
of the following. things-
(a) the removal of the person in whose possession or
custody the property may be from the possession oi-
custody thereof;
(b)the commitment of such property to the custody or
management of such receiver; and
(c)the granting to such receiver of all such powers as
to bringing and defending actions and other pro-
ceedings, 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 instru-
ments in writing, as the owner himself has, or such
of those powers as the court thinks fit. [s. 587.]
2. 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. [S. 588. ]
3. Where an order is made directing a receiver to be
appointed the person to be appointed shall, unless otherwise
ordered, first give security, to be allowed by the court and
taken before the, Registrar, duly to account for what he shall
receive as such receiver and to pay the same as the court may
direct ; and the person so to be appointed shall, unless other-
wise ordered, bc allowed a proper salary or allowance by
way, of fees or commissions or otherwise, as the court rnay
think fit. [s. 589.]
4. ViThere 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
niatter then pending, in order that the person named as
receiver may give security as mentioned in rule 3 of this
Order, and may thereupon direct such judgment or order
to be drawn up. [S. 690.]
5. (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 accounts 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 receiver neglects to leave and pass his
accounts and pay the balances thereof at the times so fixed
or enlarged for thal 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
therein claimed by such receiver and may also, if it thinks
fit, charge him with interest at the rate for the time being
fixed by the court upon the balances so neglected to be paid
by him during the time the same may appear to have
remained in his hands. [s. 591. ]
6. (1) Every such receiver shall leave with the.
Registrar his account together with an affidavit verifying the
same.
(2) An appointment shall thereupon be obtained by the
plaintiff or the person having the conduct of the cause or
matter for the purpose of passing such account.[S. 592.]
7. In case of any 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 and payment of costs. [s. 593. ]
PART V.
APPEALS.
ORDER XXIX
APPEAL TO THE FULL COURT.
1. 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 any issue therein with a jury
shall be heard and determined by the Full Court. [S. 594.]
2.The Full Court may in any cause or matter, on
such terms as may seem just, order a new trial, with or
withouta stay of proccedings. [S. 595.]
3. (1) Any application for a new trial shall be 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 whether 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 expiration of such fourteen , days an
application for such new trial shall not be admitted, except
by special leave of the Full Court on Such terms as may
seem just. [S. 597. ]
4. (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 Full Court
that such wrong or miscarriage affects part only of the
matter in controversy, or sorne or one only of the parties,
the Full Court may give final judgment as to part thereof or
as to some or one oifly qf 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.
[s. 598.]
5.A new trial may be ordered on any question,
whatever may be the grounds for the new trial, without
interfering with the finding or decision on any other
question [S. 599. ]
6. On any motion for a new trial the Full Court shall
have power to order a nonsuit or verdict to be entered, at-
though no leave has been reserved at the trial. [S. 600. ]
7. 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. [S. 601.]
8. When a new trial is granted on the ground that the
verdict was against evidence the costs of the first trial shall
abide the event, unless the Full Court otherwise orders.
[s. 602.]
9. (1) On an order for a new trial either party may,
if he is entitled thereto under the provisions of Order XII,
dernand a jury for the second trial, though the first was
without a jury.
(2) The Full Court may, if it thinks fit, niake it a con-
dition of granting a new trial that the trial shall be with a
jury. [s. 603.]
10. When an application for a new trial is grailted a
note thereof shall be rnade in the Cause-Book and the Full
Court shall give such order in regard thereto as it may deem
proper in the circumstances of the case. [S. 604.]
11. No order made by the court by the consent of
parties or as to costs only which by law are left to the dis
cretion of the court shall be subject to any appeal, except
by leave of the court. [s. 605. ]
12. (1) No appeal to the Full Court from any decision
of the court shall, except by special leave 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 niade or given as may be
directed in special circumstances by the Full Court.
[s. 606. ]
13. (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
petition, case or other formal proceeding, other than such
notice of motion, shall be necessary.
(2) The appellant nidy 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. [S. 607.]
14. (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. [5. 608.]
15. The notice of motion shall be a fourteen days'
notice. [S. 609.]
16. (1) The Full Court shall have all the powers and
duties as to amendment and in all other respects of the
court, together with full discretionary power to receive fur-
ther evidence upon questions of fact, such evidence to be
either by oral examination in court, by affidavit or by de-
position taken 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 occurred 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 powers aforesaid 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 respondeds
or parties may not have appealed from or complained of the
decision. [s. 610.]
17. If on the hearing of an appeal it appears to the Full
Court 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 the case may be, shall be
set aside and that a new trial shall be had. [s. 611. ]
18. 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. [S. 612. ]
19. (1) It shall not in any circumstances be necessary
for a respondent to give notice of motion by way of cross
appeal but if 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 rule 20 of this
Order or such time as may be prescribed by special order,
give notice of such intention to any parties who may be
affected by such contention.
(2) The omission to give such notice shall not diminish
the powers of the Full Court but may, in the discretion of
the Full Court, be ground for an adjournment of the appeal
or for a special order as to costs. [s. 613.]
20. Subject to any special order which may be made
by the Full Court, notice by a respondent under rule io
of this Order shall be an eight days' notice.
21. The party appealing from a judgment or order
shall leave with the Registrar a copy of the notice of motion
to be filed, and the Registrar shall thereupon set down the
appeal by entering the same in the proper list of appeals,
and it shall come on to be heard according to its order in
such list, unless the Full Court otherwise directs, but so as
not to come into the paper for hearing before the day named
in the notice of motion. Is. 615.]
22. When any question of fact is involved in an appeal
the evidence taken in the court bearing on such question
shall, subject to any special order, be brought before the
Full Court-
(a)as to any evidence taken by affidavit, by the pro-
duction of the affidavits; and
(b)as to any evidence given orally, by the production
of the judge's notes, or such other materials as the
Full Court may deem expedient. [S. 616.]
23. Not less than five days before the day fixed for the
hearing of the appeal the appellant shall deliver to each of
the judges a complete transcript of the proceedings in the
case. [s. 617.]
24. If on the hearing of an appeal any question arises
as to the ruling or direction of the judge to a jury or
questions put to nssessors, the Full Court shall have regard
to verified notes or other evidence and to such other
materials as the Full Court may deem expedient. [s. 618.]
25. 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. [s. 619.]
26. 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. [s. 620.]
27. Every application to the Full Court incidental to
an appeal shall be by motion and the provisions of Order
XI relating to motions shall apply thereto. [s. 621.]
28. 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. [s. 622.]
PART VI.
IMISCELLANEOUS.
ORDER XXX.
BUSINESS IN CHAMBERS.
General.
1. In any proceeding in chambers any party may, if
he so desires, be represented by counsel : Provided that he
shall not be allowed his costs in respect of counsel's fees
unless the judge certifies that the case is lit for counsel.
[S. 624.]
2. (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 state-
ments 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 offier
document where the original can be brought in, unless the
court otherwise directs. [s. 625.]
Administrations and trusts.
3. The executors or administrators of a deceased
person or any of them, and the trustees under any deed
or instrument of 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 ol instru-
ment, or as claiming by assignment Or Otherwise Under any
such creditor or other person as aforesaid, may take out,
as of course, an originating summons returnable in cham-
bers 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-
(a)any question affecting the rights or interests of the
person claiming to be creditor, devisee, legatee,
next of kin, heir-at-law or cestid que trust ;
(b)the ascertainment of any class of creditors, devisees,
legatees, next of kin or others;
(c)the furnishing of any particular accounts by the
executors or administrators or trustees, and the
vouching, when necessary, of such accounts;
(d)the payment into court of any money in the hands
of the executors or administrators or trustees;
(e)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 adminis-
trators or trustees;
(f) the approval of any sale, purchase, compromise or
other transaction ; and
(g) any question arising in the administration of the
estate or trust. [s. 627.]
4. Any of the persons mentioned in rule 3 of this
Order may in like manner apply for and obtain an order
for the administration of-
(a) the personal estate of the deceased person;
(b) the real estate of the deceased person; and
(c) Ihe trust. [s. 628.]
5. The persons to be served with the summons under
rules 3 and 4 of this Order shall in the First instance be
the following-
(a) where the summons is taken out by an executor
or administrator or trustee
(i) for the determination of any question
under paragraphs (a), (e), (f) or (g) of rule 3-
the persons or one of the persons whose rights or
interests are sought to be affected;
(ii) For the determination of any question
under paragraph (b) Of rule 3-any member or
alieged member of the class;
(iii) for the determination of any question
under paragraph (c) of rule 3-any person
interested in taking such accounts;
(iv) for the determination of any question
under paragraph (d) of rule 3-any person
interested in such money;
(v) for relief under paragraph (a) of rule 4
-the residuary legatees, or next of kin, or some.
of them ;
(vi) for relief under paragraph (b) of rule 4-
the residuary devisees, or heirs, or some of them;
(vii) for relief under paragraph (c) of rule 4-
the cestui qui trust, or some of them;
(viii) if there be 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
(b) where the summons is taken out by any person
other than the executors or administrators or
trustees-the said executors or administrators or
trustees. [s. 629.]
6. The court may direct such other persons to be
served with the summons as it may think fit. [s. 630.]
7. The application shall be supported by such
evidence as the court may require, and such directions may
be given as the court may. think proper for the trial of
any questions arising there out. [S. 631.]
8. It shall be lawful for the court upon such summons
to pronounce such judgment as the nature of the case may
require. [s. 632.]
9. The court may give any special directions relating
to the carriage or execution of the judgment, or the service
thereof on persons not parties, as it may think just.
[S. 631]
10. It shall not be obligatory on the court to Pro
nounce 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 questions between
the parties can be properly determined without such judg
ment or order. [s. 634.]
11. On an application for administration or execution
of trusts by a creditor or beneficiary under a will, intestacy
or deed of trust where no accounts or insufficient accounts
have been rendered, the court may, in addition to any other
powers vested in it-
(a)order that the application shall stand over for a
certain time, and that the executors or administra-
tors or trustees shall render to the applicant a
proper statement of their accounts, with an intima-
tion that, if that is not done, they may be rnade
to pay the costs of the proceedings; or
(b) when necessary to prevent proceedings by other
creditors 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. [S. 635.]
12. The issue of a summons under rule 3 of this Order
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. [S. 636.]
13. Any of the following applications under the
Trustee Ordinance, may be made by summons-
(a)for the appointment of a new trustee, with or
without a vesting or other consequential. order;
(b)for a vesting or other order consequential on the
appointment of a new trustee; and
(c) for a vesting or other consequential order in any
case where aJudgment or order has been given
or inade for the sale, conveyance or transfer of any
land or stock or for the suing for or recovering
any chose in action. [S. 637.]
Charitable trusts.
14. (1) Where the appointment or removal of any
trustee, or any other rOlief, 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 rule 15 of
this Order to make application by summons (without 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 be exercised, 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. in the circumstances of any
such application it may seem fit, to direct that, for obtain-
ing the relief, order or direction sought for by such
application, an information, action or petition, as the case
may require, shall be brought or presenued and pro-
secuted, and to abstain from further proceeding on such
application.
[S. 638.]
15. An qpplication under rule 14 Of this Order may
be made by the Attorney General, or by all or any one
or rnore of the trustees or persons administering or claim-
ing to administer, or interested in, the cloarity which is
the subject of the application, or by two or more inhabit-
ants of any city, town, village or place within which the
charity is administered or applicable.[S. 639.]
16. It shall be lawful for the Attorney General, acting
ex officio, to make application by petition to the court with
respect to any charity under the provisions of the Charities
Procedure Act, 1812. [s. 640.]
Sale, foreclosure and redemption.
17. (1) Any person entitled to redeem mortgaged pro-
perty 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 sale or redemption in the alternative.
(2) In any action or other proceeding, whether for
foreclosure, or for redemption, or for sale, or for the ralsing
and payment in any manner of mortgage money, the court
on the request of the mortgagee or of any person interested
either in the mortgage money or in the right of
and notwithstanding that-
(a) any other person dissents; or
(b)the mortgagee or any person so interested does not
appear in the action,
and without allowing any time for redemption or for pay-
ment of any mortgage money, may direct a sale of the
mortgaged property, on such terms as it thinks fit, includ-
ing the deposit in court of a reasonable sum, fixed by the
court, to meet the expenses of sale and to secure perform-
ance 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 the conduct of the sale to
any defendant, and may give such directions as it thinks
fit respecting the costs of the defendants or any of thein.
(4) In any case within this section the court may, if
it thinks fit, direct a sale without previously determining
the priorities of incumbrancers. [S. 641. ]
18. If in any cause or matter relating to immovable
property it appears necessary or expedient that the pro-
perty 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 stich possession or receipt to the purchaser or such other
person as may be directed by the order. [s. 642.]
19. Where in action of ejectment is brought by any
mortgagee, his heirs, executors, administrators or assigns,
for the recovery, of the possession of any mortgaged im-
movable, property, and no action is then depending in the
court for or louching the foreclosing or redeeming of the
rnortgaged 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 prin-
cipal, 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 satis-
faction and discharge of the mortgage; and the court shall
discharge such mortgagor or defendant of and from the
same, accordingly, and shall, by order, compel the mort-
gagee, at the costs and charges of the mortgagor, 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, property to the mort-
gagor who has paid such money, his heirs, executors or
administrators, or to such person or persons as he or they
may for that purpose nominate or appoint. [s. 643.]
20. Nothing in rule 19 of this Order shall extend to
any case where the person against whorn the redemption
is prayed, by writing under his hand or the hand of his
agent or solicitor, to be delivered, before the money is paid
into court, to the solicitor for the other side, insists either
that the party praying a redempfion has not a right to
redeem or that the premises are chargeable with 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 pro
perty 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. [s. 644. ]
21. An mortgagee or mortgagor, whether legal or
equitable, or any person entitled to or having property
subject to a legal or equitable charge, or any person having
the right to foreclose or redeem any mortgage, whether
legal or equitable, may take out as of 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-
payment of moneys secured by the mortgage, or
charge, sale, foreclosure, delivery of possession,
whether before or after foreclosure, by the mortgagor,
redemption, reconveyance, delivery of possession by
the mortgagee. [s. 645.]
22. The persons to be served with the summons under
rule 21 of this order shall be such persons as would be
the proper defendants to an action for the like relief as
that specified by the summons. [S. 646. ]
Assistance of experts.
23. (1) A judge in chambers may, in such way as he
thinks fit, and, with the consent of all parties, in any action
and at any time before judgment, 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 fie may act upon the certificate of
any such person.
(2) The allowances in respect bf fees to such person
shall be regulated by the Registrar, subject to an appeal
to the judge, whose decision shall be final. [S. 647. ]
Proceedings relating to infants, etc.
24. On any application for the appointment of a
guardian of an infant and for an allowance for the main-
tenance of an infant the evidence shall show-
(a) the age of the infant;
(b)Ihe nature and amount of the infant's fortune and
income; and
(c) what relations the infant has. [s. 648.]
25. At any time during the proceedings in chambers
under 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 inquisi-
tion, who has been served with notice of such Judgment
or order. [S. 649.]
Attendances.
26. (1) Where at any time during the prosecution of
a. judgment or order it appears to the court, with 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 further costs as may be occasioned to any of
the parties by his being represented by a different solicitor
from the solicitor so nominated. [S. 650.]
27. Whenever in any proceeding in chambers the
same solicitor is employed for two or more parties the
court may, in its discretion, require that any of the said
parties shall be represented before it by a separate solicitor,
and adJourn such proceedings until such party is so repre
sented. [S. 651.]
28. Any of the parties other than those who have been
directed to attend may attend at their own expense and on
paying the costs, if any, occasioned by such
or, if they think fit, they may apply by summons for liberily
to attend at the expense of the estate or to have the
conduct of the action, either in addition to or in substitu-
tion for any of the parties who have been, directed to
attend. [s. 652. ]
29. An order shall be drawn up, on a summon 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. [s. 653.]
Claims of creditors aitd other claimaiits.
30. Where a judeyinent or order is given or made,
whether in court or in chambers, directing an account of
debts, claims or liabilities, or all inquiry for heirs, next of
kin or other unascertained persons, the court way direct
an advertisement or advertisements for creditors or other
claimants to be issued. [s. 654. ]
31. (1) Every advertisement for creditors shall be pre-
pared by the party prosecuting the judgment or order and
signed by his solicitor.
(2) Every advertisement for claimants other than
creditors shall be prepared by the party prosecuting the
judgment or order and submitted to the Registrar for
approval.
(3) Every advertisement for claimants or creditors shall
be published in the Gazette.
32. Every advertisement for claimants or creditors shall
fix a time within which each claimant or creditor shall send
to such person as the court may direct, to be narned and
described in the advertisement, the narne and address of such
claimant or creditor and the full particulars of his claim.
Noice of the time appointed for adjudicating on the claims
shall be inserted in the advertisement and at such appoint
nient and at any adjournment thereof (subject in the case
of creditors tp the provisions of rule 40 Of this Order) every
claimant: shall attend personally or by his solicitor to support
his claini. The advertisement shall contain a direction that
a claimant or creditor not residing in this Colony must send
with particulars of his claim the narne and address of a person
in this Colony to whom notices to the claimant or creditor
can be sent .Any such claimant or creditor not complying
with this direction shall not be entitled to receive any further
notice and in the case of any claimant or creditor camplying
therewith a notice to the narne and address mentioned by
him shall be equivalent to a notice sent to the claimant or
creditor himself. [S. 656. ]
33. Claimants who do not send full particulars of their
claims to the person narned and within the time fixed by the
advertisement shall be excluded from the benefit of the judg
nient or order wiless the court upon application made by
summons otherwise orders. Any such order may be made
upon such terms and conditions as to costs and otherwise
as the court thinks fit. [S. 657. ]
34. Every notice by this Order required or by the court
directed to be given to or served upon claimants or creditors
shall, unless the court otherwise directs, be deemed sufficient-
ly given and served if transmitted pre-paid by registered
post addressed to the claimant or creditor at the address
given in the claim sent in by him pursuant to the advertise-
ment, or in case such claimant or creditor is represented by
a solicitor, to such solicitor at the address given by him.
[s. 658.]
35. Every claimant or creditor shall, if required by
notice in writing given by such party as the court may
direct, produce all deeds and documents necessary to sub
stantiate his claim before the court at such time as may be
specified in such notice. [s. 659.]
36. Claimants required to file affidavits under rules 37
to 45 of this Order inclusive shall serve a copy on the person
to whom particulars of claims are to be sent. [s. 660.]
37. The court may direct the Registrar to examine the
claims of persons claiming to be creditors sent in pursuant to
the advertisement, and the Registrar shall ascertain, so far
as he is able, to which of such claims the estate of the
deceased is justly liable and shall, at least seven clear days
before the time appointed for adjudication or within such
other time as the court may direct, file a report together
with an affidavit made by the executors or administrators of
the deceased or by the person to whom claims are required
by the advertisement to be sent (or by such person or persons
as the court may direct) verifying lists-
(a)of claims which have been sent in pursuant to the
advertisement ;
(b)of claims which have been received by the executors
or administrators or any of them, other than claims
sent in pursuant to the advertisement ;
(c)of sums of money which were or may have been due
and owing by the deceased at the time of his death
and are or may be still due and owing and which
have come to the knowledge of the executors or
administrators or any of them, but in respect of
which no claim has been received or sent in as
aforesaid.
The report shall state to which of such claims or sums
of money or parts thereof respectively the estate of the
deceased is in the opinion of the Registrar justly liable, and
his belief that such claims or sums of money or parts thereof
respectively are justly due and proper to be allowed and the
reasons for such belief. [s. 661.]
38. When adjudicating upon the claims of persons
claiming to be creditors the court in its discretion may allow
any of such claims, or any part thereof respectively, without
proof by the claimants, and may direct all or any of the
claims not so allowed to be investigated in such manner as
it may think fit, and may require any further particulars,
information, or evidence, relating to such claims, and may
require any claimant to attend and prove his claim, or any
part thereof, and may adjourn the adjudication upon such
claims as are not then allowed. [s. 662. ]
39. Where on the day appointed for adjudicating upon
the claims of persons claiming to be creditors any of such
claims are adjourned or remain undisposed of, another day
for adjudicating upon such claims shall be fixed, and where
further evidence is to be adduced, the times for filing evidence
in support of and in opposition to the claims may be fixed,
and in that case. tile proceedings shall be adjourned until the
evidence is completed. [S. 661.]
40. Notice of allowance shall be given by such party as
the court, may direct to every creditor whose claim, or any
part thereof, has been allowed. Notice shall be given by
such party, as aforesaid to every person claiming to be a
creditor whose claim or any part thereof has not been allowed
to 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 mentioned, being the time appointed for adjudicating
on the claim ; and in case the claimant does not comply with
such notice, his claim, or such part thereof as aforesaid, may
be disallowed. No person claiming to be a creditor need
make any affidavit nor attend in support of his claim (except
to produce his security) unless he is served with a notice
requiring him to do so. Every person claiming to be a
creditor shall produce the security (if any) held by him
before the court at such time as shall be specified in the
advertisement for adjudicating on the claims. [s. 664.]
41. The court may allow a creditor who has established
his debt in chambers under any judgment or order 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 thereof, shall be ackled to the
debt so established. The court may order a clainiant to
pay the costs of any ?arty or parties incurred in opposing
any claim or my part of a claim which the clairnant flas
failed to establish. [S. 665.]
42. A list of creditors' claims allmved shall, when
required by the court, be made out and left with the
by such party as the court may direct. [s. 666.]
43. In the case of clainiants other than creditors such
party as the court may direct shall, at least seven clear days
before the time appointed for adJudication or within such
time as the court may direct, file an affidavit to be made by
the executors or administrators of the deceased or by the
trustees and in each case by the person to whoni clainis are
required by the advertisement to be sent (Or by such persons
as the court may direct) verifying lists of the claims, the parti-
culars of which have corne to the knowledge of the executors,
admi n istra tors or trustees or any of thern or which have been
sent in pursuant to the advertisement.[s. 667.]
44. At the time appointed for adjudicating upon the
claims of claimants other than creditors the times for filing
evidence in support of and in opposition to the claims may
be fixed, and in that case the proceedings shall be
until the evidence is completed. [S. 668.]
45. Where a claimant other than creditor has
established his claim he shall, if not already a party, and
Unless the court otherwise directs, be served with notice of
the judgment or order pursuant to sub-rule (i) of rule 28 Of
Order III, and when he has been so served and has entered
an appearance he shall, unless the court otherwise directs, be
entitled as part of his costs of action (if allowed) to costs
properly incurred in proving his claim previously to his
having entered an appearance. [s. 669.]
46. Where a judgment or order is given or inade direct-
ing in account of the debts of a deceased person, unless
otherwise ordered, interest shall be computed on such debts
as to such of them as carry interest after the rate they res-
pectively carry, and as to all others at the rate for the time
being fixed by the court, from the date of the judgment or
order. [s. 671. ]
47. A creditor whose debt dose not carry interest, who
comes in and establishes the same in chambers under a judg
ment or order, shall be entitled to interest on his debt, at
the rate for the time being fixed by the court, from the date
of the judgment or order, out of any assets which may re
main after satisfying the costs of the cause or matter, the
debts established, and the interest of such debts as by law
carry interest. [s. 672. ]
48. Where a judgment or order is given or made direc-
ing an account of legacies, interest 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 pay-
ment or rate of interest is directed by the will, and in that
case according to the will. [S. 673.]
Cerlificale of the Registrar.
49. (1) The directions to be given for or relating to any
proceedings before the Registrar shall require no particular
form, but the result of such proceedings shall be stated in
the shape of a concise certificate to the judge.
(2) It shall not be necessary for the judge to sign the
certificate, and unless an order to discharge or vary the
same is made the certificate shall be deemed to be approved
and adopted by the judge. [s. 674. ]
50. The certificate of the Registrar shall not, unless the
circumstances of the 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, documents, and
evidence, or particular paragraphs thereof, so that it may
appear upon what. the result stated in the certificate is
founded. [S. 675. ]
51. (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 that it is necessary to have a fair trans-
cript of the account as altered, such transcript may be re-
quired to be made by the party prosecuting the judgment or
order, and shall then be referred to by the certificate.
(2) The account and the transcript, 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. [S. 676.]
52. Any party may, before the proceedings before the
Registr ar are concluded, take the opinion of the court upon
any matter arising in the Course of the proceedings without
any fresh summons for the purpose. [S. 677. ]
53. Every certificate, with the account, if any, to be
filed therewith, shall be filed in the Registry, and shall there-
upon be binding on all parties to the proceedings, unless
discharged or varied on application by summons. [S. 678.]
54. Any application to discharge or vary a certificate
shall be made before the expiration of twenty-one days after
the filing thereof. [s. 679. ]
55. The court may, if the special circumstances of the
case require it, on application by motion or stimi-noiis for
the purpose, direct a certificate to be discharged or varied at
any time after the same has become binding on the parties.
[S. 680.]
Further consideration.
56. (1) Where any matter originating in chambers
has, at the original or any subsequent hearing, been ad-
journed for further consideration in chambers, such
may be brought on for further consideration by a summons
to be taken out by the party having the conduct of the
matter, after the expiration of fourteen days and within
twenty-one days from the filing of the Registrar's certificate,
and after the expiration of such twenty-one days by a sum-
mons to be taken out by 'any other party.
(2) Such summons shall be, in the following form-
That this matter, the furthei, consideration where-
of was adjourned by the order of the day
of ' 19 , may be furthei, coitsidered.',
Wid shall bc served ten davs before the return.
(3) This section shall not apply to any matter the
further consideration whereof has, at the original or any.
subsequent hearing, been adjourned into court. [S. 681 ]
Registering and drawing up of oiders.
57. Notes shall be kept of all proceedings in chambers,
with proper dates, so that all such proceedings in each cause
or matter may appear consecutively and in chronological
order, with a short statement of the questions or points de
cided or ruled at every hearing. [s. 682.]
58. 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. [s. 683.]
59. 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 initialled by the judge,
shall be sufficient evidence of the order having been made.
[s. 684.]
ORDER XXXI
VARIOUS PROVISIONS.
Sittings of the court.
1 . The.court may, in its discretion, appoint any day
for the trial and hearing of causes a nd matters, as circum-
stances may require. [S. 686]
2. The sittings of the court for the trial and hearing of
causes and matters shall ordinarily be public; but the court
may try or hear any particular cause or matter in the pre-
sence only of the parties and their counsel and solicitors and
the officers of the court. [s. 687. ]
3. Subject to any special arrangements for any parti-
cular day, the business of the day at any sitting of the
court shall be taken, as nearly as circumstances permit, in
the following order-
(a)at the commencement of the sitting, judgments
shall be delivered in causes or inatters standing
over for that purpose and appearing for judgment
in the trial paper;
(b)ex parte motions or motions by consent shall then
be taken in the order in which the motion papers
have been filed;
(c)opposed motions on notice, and orders to show
cause returnable on that day, shall then be taken,
in the order in which these matters respectively
stand in the trial paper; and
(d) the causes in the trial paper shall then be called on,
in their order, unless the court sees fit to vary that
order. [s. 688.]
Seal of the court.
4. Every writ, summons, warrant, judgment, rule,
order, notice and other document issuing from the court
shall be scaled with the seal of the court and be returned for
the purpose of being filed in the Registry. [s. 689.]
Cause-Book.
5. (1) The Registrar shall keep a book called the
Cause-Book which sliall contain a register of the proceedings
in all actions brought in the court.
(2) Every action or other proceeding, however instituted,
under the provisions of these rules, shall be nunibered in
each year according to the order in which the same is
commenced. [S. 690.]
Certain general powers of the court,
6. The court may, if it thinks it expedient for the
interests of justice, postpone or adjourn 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. [s. 691. ]
7. 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 commence-
ment of the proceedings, allow to the parties interested
therein, or to any one or more of them, tile whole or a part
of the annual income of the immovable property, or a part
of the movable property, or the whole or a part of the
income thereof, up to such tinne as the.court may direct.
[S. 692.]
Summary application in certain cases.
8. All proceedings in cases within section 504 Of the
Merchant Shipping Act, 1894, shall be by summary applica-
tion to the court and by way of motion supported by affidavit;
and Ihe court shall, if it thinks fit, by rule or order, give such
relief as by the said section any such competent court ,is is
mentioned in the Act has power to give. [S. 694.]
Irregularity in proceedings.
9. Non-compliance with any of the provisions of these
rules, or with any rule of practice for the time being in
force, shall riot 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. [S. 695.]
10. No application to sel. 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. [S. 696. ]
11. Where an application is made to set aside any pro-
ceeding for irregularity the several objections to be insisted
upon shall be stated in the summons or notice of motion.
[S. 697.]
12. When a sun-inions is taken out to set aside any
process or proceeding for irregularity with costs, and the
summons is dismissed generally without any special direction
as to costs, it is to be understood as dismissed with costs.
[s. 698.]
Piovisions relating to time.
13. (1) Nothing in these rules 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 these rules 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 these rules or
otherwise, the court may further enlarge any time so
appointed or enlarged by it, on such terms as may seem
just, whether tht. application for further enlargement is made
before or after the expiration of the time already allowed :
Provided that no such further enlargement shall be made
unless it appears to the court to be required for the purposes
of justice and not sought merely for delay, [S. 699.]
14. The time for filing or amending any pleading,
answer or other document may be enlarged by consent in
writing, without application to the court. [S. 700.]
15. (1) Where by these rules, 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 liappening
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 latest on the last day of such limited time, accord
ing to such computation.
(2) Where the limited time so appointed or allowed is
less than six days, general holidays, as defined by the
Holidays Ordinance, shall not be reckoned in tfie computa-
tion of. such time.
(3) Where the limited time so appointed or allowed
expires on one of the days last-mentioned, the act or proceed-
ing shall be considered 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
give security for costs is served, and the time thenceforward
until and including the day on which such security is given,
shalt not be reckoned in the computation of the time allowed
to the defendant for filing his statement of defence.
(5) Nothing in this rule shall affect the provisions of
sections 24 tO 26 of the Ordinance.[S. 701.]
Commissioners for oaths.
16. (1) The Chief justice may, by a commission signed
by 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 com-
missioner for oaths and shall have all the powers and dis-
charge all the duties which now belong to the office of a
commissioner to administer oaths. [S. 702.]
17. 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 the court, and every
person directed to take an examination in any cause or
rnafter in the court, shall have authority to administer ariv
oath or take any affidavit required for any purpose connected
with his duties. [S. 703.]
Attachment.
18. 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. [s. 704.]
A writ of attachment shall have the same effect as
a writ of attachment issued out of the court in its equity
jurisdiction formerly bad. [s. 705.]
20. No judge, magistrate or other judicial officer shall
be liable to arrest under civil process while going to, presid-
ing in or returning from his court. [S. 706. ]
Saving.
21. Nothing in this Code shall atfect the provisions of.
the Act 8 & 9 William 3, chapter II, as to the assignment or
suggestion of breaches or as to judgment for a penalty, as
a security for damages in respect of further breaches.
[S. 707.]
Publication of notices.
22. In any case in which the publication of any notice is
required under the provisions of these rules, the same any
be made by advertisement in the Gazette, unless otherwise
provided by these rules or otherwise ordered by tile
court. [S. 708.]
Forms.
23. (1) The forms contained in the Schedule may, be
used in the cases to which they respectively 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 alter any of the said forms
or substitute other forms therefor; 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, with such variations and
additions as the circumstances of the particular case may
require, may be used for the purpose of carrying out the
provisions of these rules, and shall, as regards the form
thereof, be valid and sufficient. [S. 709.]
SCHEDULE.
TABLE oF FORMS.[O. XXXI,r. 23.]
Form. Page.
1. Writ of summons ... ... ... ... ... ... ... ... ... 230
2. Specially indorsed writ of summons ... ... ... ... ... 231
3. Originating summons inter partes ... ... ... ... ... 232
4. Originating summons not inter partes ... ... ... ... 232
5. Ex parte originating summons ... ... ... ... ... ... 233
6. Notice of appointment to hear originating summons ... 233
7. Writ for service out of the jurisdiction, or where notice
in lieu of service is to be given out of the jurisdiction 234
Form. Page.
8. Specially indorsed writ for service out of. the jurisdiction 235
9. Notice of writ in lieu of service to be given out of the
jurisdiction ... ... ... ... ... ... ... ... ... ... 236
10. Lqtter forwarding request for service abroad ... ... ... 236
11. Request for service of notice abroad ... ... ... ... ... 237
12. Letter forwarding request for substituted service ... ... 23713. Order giving liberty to bespeak request for substituted
service abroad ... ... ... ... ... ... ... ... ... 237
14. Certificate of service of foreign process ... ... ... ... 238
15. Memorandum of appearance ... ... ... ... ... ... ... 238
16. Afflidavit for entry of appearance as guardian ... ... ... 239
17. Memorandum of notice of judgment [or order] ... ... 23918. Third party notice claiming indemnity or contribution or
18. other relief or remedy .... ... ... ... ... ... ... 239
19. Third party notice when question or issue to be determined 240
20. Summons for third party directions ... ... ... ... ... 241
21. Order for third party directions ... ... ... ... ... ... 242
22. Statement of claim ... ... ... ... .... ... ... ... ... 242
23. Statement of defence ... ... ... ... ... ... ... ... 243
24. Notice of payment into court ... ... ... ... ... ... 243
25. Acceptance of sum paid into court ... ... ... ... ... 244
26. Counterclaim ... ... ... ... ... ... ... ... ... ... 244
27. Reply ... ... ... ... ... ... ... ... ... ... ... ... 24528. Statement of defence including an objection in point of
28. law ... ... ... ... ... ... ... ... ... ... ... ... 24,5
29. Interrogatories ... ... ... ... ... ... ... ... ... ... 246
30. Answer to interrogatories ... ... ... ... ... ... ... 246
3 1. Affidavit as to documents ... ... . . * ... ... ... . ... 246
32. Entry of special case . 1 . ... ... ... ... ... ... ... 247
33. Notice of motion ... ... ... ... ...---... ... . . * 248
34. Summons inter partes ... ... ... ... ... ... ... ... 248
35. Ex parte summons ... ... ... ... ... ... ... ... . ... 249
36. Order ... ... ... ... ... ... ... ... ... ... ... ... 24937. Precipe for writ of execution of judgment for immovable
37. property ... ... ... ... ... ... ... ... ... ... ... 249
38. Writ of execution of judgment for immovable property 250
39. Writ of execution of judgment for money by attachment
of property ... ... ... ... ..... ... ... 251
40. Prohibitory order for attachment o~ m**o*va~ic property in
execution ......................... ... ... 252
41. Prohibitory order for attachment of immovable property
in execution ......*** ........ ... 252
42. Affidavit in support of garnishee order ... ... ... ... 253
43. Garnishee order attaching debt ... ... ... ... ... ... 254
44. Garnishee order absolute ... ... : * . ... ... ... 255
45. Notice to judgment creditor of appli tio
ea n y prisoner for
debt to be discharged 255
46. Order for discharge of prisoner for debt from prison ... 256
47. Writ of foreign attachment ... ... ... ... ... ... ... 256
48. Bond in case of foreign attachment ... ... ... ... ... 257
49. Affidavit on interpleader ... ... ... ... ... ... ... ... 25850. Order for issue of warrant for arrest of absconding
defendant ... ... ... ... ... ... ... ... ... ... 258
51. Warrant for arrest of absconding defendant ... ... ... 259
52. Order for giving of bail by absconding defendant ... ... 260
53. Bail-bond of absconding defendant ... ... ... ... ... 26054. Warrant for bailiff to call upon defendant to give security
to produce property ... ... ... ... ... ... ... ... 261
55. Advertisement for creditors ... ...261
56. Advertisement for claimants other than creditors ... ... 262
57. Cause-Book ... ... ... ... ... ... ... ... ... ... 263
58. Order for examination of witness in the Colony in virtue
of a letter of request from a foreign court ... ... ... 264
59. Certificate of Registrar forwarding depositions ... ... 265
FORMS.
Form 1. [O, II, r. 1.]
Writ of summons.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc.
To C.D., of
We command you that within eight days after the service of
this Writ on you, exclusive 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 court may give
leave to the plaintiff to proceed ex parte.
Witness His Honour 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 twelve calendar months
from the date thereof, or if renewed, within six calendar months
from the date of the last renewal, including the day of such date.
and not afterwards.
The defendant (or defendants) may appear hereto by entering
an appearance (or appearances), either personally or by solicitor, at
the Registry of the Suprerne -Court- in Victoria-, Hong Kong.
Indorsement to be made on the writ before issue thereof.
The plaintiff's claim is (1).
This writ was issued by the plaintiff, who resides at (2)
[or This writ was issued by E.F., solicitor for the plaintiff, who
resides at (2), ]
Indorsement to be made on the writ after 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 2. [O. II, rr. 13,14.]
Sl)ecially indorsed writ of summons.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God. etc.
To C.D., of
We command you that within-eight days after the service of
this writ on you, exclusive 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 His Honour 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 twelve calendar months
from the date thereof or, if renewed, within six calendar months
from the date of the last renewal, including the day of such date,
and not afterwards.
. The defendant way appear hereto by entering an appearance,
either personally or by solicitor, at the Registry of the Supreme
Court in Victoria, Hong Kong.
Indorsements to be made on the writ before the issue thereof.
Statement of claim.
The plaintiff's claim is (1).
Particulars.
(Signed)
And the sum of $ for costs.If the amount claimed is
paid to the plaintiff or hsolicitor or agent within four days
from the service hereof, further proceedings will be stayed.
This writ was issued by the plaintiff, who resides at (2)
[or This writ was issued by E.F., solicitor for the plaintiff, who
resides at (2)
Indorsement to be made on the writ after service thereof.
This writ was served by me aton the defendant C.D.
on day, the day of
Indorsed the day of 19
(Sixned)
(Address)
FORM 3. [O. 11, r. 21.]
Originating summons inter partes.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., PlaintifY,
and
C.D., Defendant. (1)
Let C. D., of within eight days after the service of
this summons on him, exclusive 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 claims
to be (2) for the determination of the following
questions (3)-
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, Hong Kong.
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 the court may think just and expedient.
FORM 4. [O. II, r. 21.]
Originating summons not inter partes.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
In the matter of the trusts of the will of A.B.
And in the matter of the Trustee Ordinance (Chapter 29 of the
Revised Edition).
[or as the case may be].
To of
Let of within eight days after the
service of this summons on him exclusive of the day of such service,
cause an appearance to be entered for him to this summons, which is
issued on the application of offor an order
that (1)
Dated 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, Hong Kong.
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 the court may think just and expedient.
FORm 5. [O. 11, r. 21.]
EX parte originating summons.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
In the matter of A.B., an infant.
To ' of
Let all parties concerned attend at the chambers of His Honour
, at the 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, that (1)
Dated the day of 19
This summons.was taken out by of
solicitor. for the applicant.
FoRm 6. [O. 11, r. 24.]
Notice of appointment to hear originating summons.
[Title as in Form 3 or 4.]
To (1) ' of
Take notice that you are required to attend at the chambers of
His Honour, at the Supreme Court, at o'clock
m. on day, the day of , 19 for
the hearing of 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 aria time mentioned, such
order will be made and proceedings taken as the court may think just
and expedient.
Dated the day of 19
(Signed)
Solicitor for the plaintig [or applicant].
FORM 7. [O. 11, r. 37.]
Writ for service out of the jurisdiction, or where notice in lieu of
service is to be given out of the jurisdiction.
[Title, etc.] (a)
George the Sixth, by the Grace of God, etc.
To C.D., of
We command you, C.D., that within
[here insert the number of days directed by the court or judge
ordering the service or notice] after the service of this writ [or notice
of this writ, as the case may be] on you, exclusive of the day of such
service, you do cause an appearance to be entered for, you in the
jurisdiction of the Supreme Court of Hong Kong 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, etc.
Memorandum. to be subscribed on the writ.
N.B.-This writ is to be served within twelve calendar months
from the date hereof, or if renewed, within six calendar months from
the date of the last renewal, including the day of such date, and not
afterwards.
The defendant [or defendants] may appear hereto by entering an
appearance [or appearances] either personally or by solicitor, at the
Registry of the Supreme Court, Hong Kong.
Indorsements to be made on the writ before issue thereof.
The plaintiff's claim is for, etc.
This writ was issued by the plaintiff who resides at
or This writ was issued by E.F., of whose address for
service is ' solicitor for the said plaintiff, who resides
at or This writ was issued.by G.H., of
whose address for service is , agent for of
, solicitor for the said plaintiff. who resides at
[inention the city, town or village and also the name of the street
and number of the house of the plaintiff's res'dence, if any].
N.B-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.
When the defendant to be served is not a British subject, and is
not in British dominions, notice of the writ, and not the writ itself,
is to be served upon him.
Indorsements to be made on the writ (b) after service thereof.
This writ was served by me at on the defendant
on the day of 19
Indorsed the day of 19
(Signed)
(Address)
Notes-(a) If the action is for administration the writ must be
headed 'In the matter of the estate of deceased'.
If it is a debenture holder's action the writ must be headed 'In the
matter of Company'.
(b) Within three days.
[Note-The above indorsement 'N.B.' must be on any con-
current writ for service out of the jurisdiction, or of which notice is
to be served out of the jurisdiction. The indorsement 'N.B.' need
not be made on a writ against defendants domiciled abroad but whom
it is intended to serve within the jurisdiction.]
FoRm 8. [O. 11, r. 37.]
Specially indorsed writ for service out of the jurisdiction.
[Title.]
George the Sixth, by the Grace of God, etc., to of
, in the of
We command you, that within* days after servicet of this
writ on you, exclusive of the day of such service, you cause an appear-
ance to be entered for you in an action at the suit of
And take notice that in default of your so doing the plaintiff may
proceed therein and judgment be given in your absence.
Witness, etc.
N.B-This writ is to be used, etc. [as in Form 7, supra].
Appearance is to be entered at the Registry of the Supreme
Court, Hong Kong.
'Statement of claim.
The plaintiff's claim is
Particulars-
Place of trial
(Signed)
And $ or such sum as may be allowed on taxation] for
costs. If the amount claimed is paid to the plaintiff or h
solicitor or agent within days from service hereof,
further proceedings will be stayed.
This writ was issued, etc. [see Form 7 supra].
This writ [or Notice of this writ] was served, etc.
N.B.-This writ is to be used, [as in Form 7 supra].
FoRm 9. [O. 11, r. 37 M.]
Notice of writ in lieu of service to be given out of the jurisdiction.
[Title, etc.]
To GM., of
Take notice, that A.B.,of has commenced an action
against you, G.H., in thejurisdiction of the Supreme
Court of Hong Kong by writ of that court, dated the day of
' 19 ; which writ is indorsed as follows [copy
in full the indorsements], and you are required within days
after the receipt of this notice, exclusive of the day of such receipt,
to defend the said action by causing an appearance to be entered
for you in the said court to the said action; and in default of your
so doing the said A.B. may proceed therein, and judgment may be
given in your absence.
You may appear to the said writ by entering an appearance
personally or by your solicitor at the Registry of the Supreme Court,
Hong Kong.
(Signed)
A.B. of etc.
or Z.Y. of etc.
Solicitor for A.B.
N.B.-This notice is to be used where the person to be served is
not a British subject and is not in British dominions.
FoRm 10. [O. 11, r. 317 (8).]
Letter forwarding request for serveic abroad,
The Chief Justice of the Supreme Court of Hong. Kong presents
his compliments to the Colonial Secretary and begs to enclose a notice
of a writ of summons issued in an action of
versus pursuant to order out of the Supreme
Court of Hong Kong in order that necessary steps may be taken to
ensure its transmission to the proper authorities in [name of country]
with the request that the same may be served personally upon [name
of defendant to be served] against whom proceedings have been taken
in the said Supreme Court, and with the further request that such
evidence of the service of the same upon the said defendant may be
officially certified to the said Supreme Court, or declared upon oath
or otherwise in such manner as is consistent with the usage or
practice of the courts of [name of country] in proving service of
legal process.
The Chief Justice begs further to request that in the event of
efforts to effect personal service of the said notice of writ proving
ineffectual the Government or Court of the said country be requested
to certify the same to the said Supreme Court.
FORM 11. [0. 11, r. 37 (8).]
Requcst for service of notice abroad.
[Title, etc.]
I [or We] hereby request that a notice of writ of summons in
this action be transmitted through the proper channel to [name of
country] for service [or substituted service] on the defendant
[naming him] at [address of defendant] or elsewhere in [name of
country]. ,
And I [or we] hereby personally undertake to be responsible for
all expenses incurred by the Colonial Secretary in respect of the
service hereby requested, and on receiving due notification of the
amount of such expenses I [or we] undertake to pay the same to the
Chief Clerk at the Colonial Secretary's Office and to produce the
receipt for such payment to the proper officer of the Supreme Court.
Dated, etc. (Signature of solicitor.)
FORM 12. [0. 11, r. 37 (8).]
Letter forwarding request for substituted service.
[Title, etc.]
The Chief Justice of the Supreme Court presents his compli-
ments to the Colonial Secretary and begs to enclose a notice of a
writ of summons in the case of versusin which
the plaintiff has obtained an order of the Supreme Court (which is
also enclosed) giving leave to bespeak a request that the said notice
of writ may be served by substituted service on the defendant
at in [name of country].
The Chief Justice requests that the said notice of writ and order
may be forwarded 10 the proper authority in [name of country]
with the request that the same may be transmitted by post addressed
to the defendant at (the last-known place
of abode or the place of business) of the said defendant, or there
delivered in such manner as may be consistent with the usage or
practice of the Courts of [name of country] for service of legal
process where personal service cannot be effected; and with the
further request that the same may be officially certified to the
Supreme Court of Hong Kong or declared upon oath, or otherwise,
in such manner as is consistent with the practice of the courts of
[name of country] in proving service of legal process.
FORM 13. [O. 11, r. 37 (8).]
Order giving liberty to bespeak request for substituted service abroad.
[Title, etc.]
Upon reading. the [certificate, declaration, or as the case may
be, describing the same.]
It is ordered that the plaintiff be at liberty to bespeak a request
for substituted service of notice of the writ of summons herein on
the defendant at , or elsewhere in
[nane of country] and that the said defendant have
days after such substituted service within which to enter appear-
arice.
Dated the day of 19
FoRm 14. [O. 11, r. 38.]
Certificate of service of foreign process.
Registrar of the Supreme Court of
Hong Kong hereby certify that the documents annexed hereto are
as follows-
(1) the original letter of request for service of process received
from the foreign court [or tribunal] at in the
of in the matter of versus and:
(2) the process received with such letter of request, and:
(3) the evidence of service uponthe person named
in such letter of request,
And I certify that such service so proved, and the proof thereof,
are such as are required by the law and practice of the Supreme
Court of Hong Kong regulating the service of legal process in Hong
Kong and the proof thereof.
And I certify that the cost of effecting such service, as duly
certified by the taxing officer of the Supreme Court of Hong Kong,
amounts to the sum of
Dated the day of 19
(Signed) Registrar.
FORm 15. [O. 11, r. 43.]
Memorandum of appearance.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D.. Defendant.
Enter an appearance for the defendant C.D., in this actio-.
Dated the day of 19
(Signed) C.D., of
[or E.F.,
Solicitor for the defendant C.D.]
FORm 16. [O. 111, r. 17.]
Affidavit for entry of appearance as guardian.
Action No. of 19,
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
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 the consent of the said E.F. to act as such guardian
is hereto annexed.
Sworn, etc.
[To this affidavit must be annexed the document signed by the
guardian in te3tiinony of his consent to act.]
FORM 17. [O. 111, r. 28.]
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 the Registry of the Supreme Court in Victoria, Hong
Kong, attend the proceedings under the within-mentioned judgment
[or order], and that you For 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 18. [O. 111, 33.]
Third party notice claiming indemnity or contribution or other
relief or remedy.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
and
E.F., Third party.
Third party notice.
Issued pursuant to the order of His Honour
dated the day of ' 19
To E.F., of
Take notice that this action has been brought by the plaintiff
against the defendant. In it the plaintiff claims against the defend-
ant [here state concisely the nature of the plaintiff's claim] as
appears by the indorsement on the writ of summons [or statement
of claim] a copy whereof is delivered herewith.
The defendant claims against you [here state concisely the
nature of the claim against the third party as for instance to be
indemnified against the plaintiff's claim and the costs of this action
or contribution to the extent of (one half) of the plaintiff's claim or
the following relief or remedy namely1 on the grounds
that [state concisely the grounds of the claim against the third
party].
And take notice that if you wish to dispute the plaintiff's claim
against the defendant, or the defendant's claim against you, you
must cause an appearance to be entered for you within eight days
after the service of this notice upon you.
In default of your entering such appearance, you will be deemed
to admit the plaintiff's claim against the defendant and the defen-
dant's claim against you and your liability to [indemnify the de-
fendant or to contribute to the extent claimed or to stating
the relief or remedy sought] and the validity of any judgment that
may be given in the action and you will be bound by such judgment
and such judgment may be enforced against you pursuant to Order
III of the Code of Civil Procedure.
Dated the day of 19
(Signed)
Solicitors for the defendant.
Appearance is to be entered at the Registry of the Supreme
Court in Victoria, Hong Kong.
Fopm 19. [O. 111, r. 33.]
Third party notice when question or issue to be determined.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINALJURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant,
and
E.F., Third party.
Thirdparty notice.
Issued pursuant to the order of His Honour
dated the day of 19
To E.F., of
Take notice that this action has been brought by the plaintiff
against the defendant. In it the plaintiff claims against the de-
fendant [here state concisely the nature of the plaintiff's claim] as
appears by the indorsement on the writ of summons [or statement
of claim] a copy whereof is delivered herewith.
The defendant claims that the following question or issue, viz.
[here state concisely the question or issue to be determined] should
be determined not only as between the plaintiff and the defendant
but as between the plaintiff and the defendant and yourself.
And take notice that if you wish to be heard on the said question
or issue or to dispute the defendant's liability to the plaintiff or
your liability to the defendant you must cause an appearance to be
entered for you within eight days after service of this notice.
In default of your so doing you will be deemed to admit the
validity of and will be bound by any decision or judgment arrived
at or given in this action on the said question or issue and to admit
any consequent liability of yourself and judgment may be given
against you and enforced pursuant to Order III of the Code of
Civil Procedure.
Dated the day of 19
(Signed)
Solicitors for the defendant.
Appearance is to be entered at the Registry of the Supreme
Court in Victoria, Hong Kong.
FORM 20. [O. Ill, r. 38.
Summons for third party directions.
Action No. of 19
IN THP SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To of
Let all parties concerned attend at the chambers of His Honour
, at the Supreme Court, at o'clock in. on
day,the day of 19 on the hearing
of an application on the part offor an order for
third party directions as follows-that the defendant file a state
ment of his claim against the third party within days from
this date, who shall plead thereto within days; and that
the said third 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 subsequent thereto..
Dated the day of 19
This summons was taken out by solicitor for
FORm 21. [O. Ill, r. 39.]
Order for third party directions.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
(1) in chambers.
Upon hearing the solicitors for the plaintiff, defendant, and third,
party,
It is ordered that the defendant file a statement of his claim
against the said third party within days from this date, who
shall plead thereto within days; and that the said third
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 liability of the said third 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 22. [O. V, r. 24.]
Statement of claim.
Action No. o f 1.9
IN THE SUPREME COURT OF HONG KONG,
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-
1950. 1st January to 31st May. To rebuilding house $ c.
at Victoria, as per contract dated the 24th
December, 1949 ..............5,400.00
To extras, as per account delivered 243.00
.............................5,643.00
Paid on account delivered ...........3,000.00
Balance due .................2,643.00
The plaintiff also seeks to recover interest on the above balance
from the 31st May, 1950, till payment or judgment.
(Signed)
FORm 23. [O. V, r. 32.]
Statement of defence.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
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, the defendant
brings [or has brought] into court $200, and says that that sum
is enough to satisfy the plaintiff's claim herein pleaded to.
(Signed)
FORm 24. [O. V, r. 41 (3).]
Notice of papnent into court.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D. and E.F., Defendants.
Take notice that the defendant has paid into court
$ , and says that [ part of] that sum is enough to
satisfy the plaintifr's claim [for and $ the other part of
that sum is enough to satisfy the plaintiff's claim for 1 and
admits [but denies] liability therefor.
Dated the day of 19
(Signed)
Solicitor for the defendant C.D.
To the plaintifr's solicitor
[and to solicitor for the defendant E.F.].
[To be filled in by the Registrar.]
Received the above sum of dollars cents
into court in this action.
Dated the day of 19
FORM 25. [O. V, rr. 42(1),44(2).]
Acceptance of sum, paid into court.
Action No. of 19
IN THE SUPREME COURT Or HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D. and E.F., Defendants.
Take notice that the plaintiff accepts the sum of $ paid
by the defendant [C.D.] into court in satisfaction of the claim in
respect of which it was paid in [and abandons his other claims in
this action].
Dated the day of 19
(Signed)
Plaintiff's solicitor.
To Solicitor for the defendant C.D. [and
Solicitor for the defendant E.F.]
FORm 26. [O. V, r. 50.]
Counterclaim.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
Counterclaim.
The defendant says that-
1. The contract mentioned in the statement of claim herein
contained a clause whereby it was provided that the plaintiff should
complete the wdrks by the 31st March, 1950, 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, 1950.
The defendant counterclaims $610.
(Signed)
FORM 27. [O. V, r. 55.]
Reply.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
Reply.
The plaintiff says that-
1. As to the first 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 defendant 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.
(Signed)
Note-The latter part of this form applies only where the
counterclaim has been filed before the reply.
FoRm 28. [O. V, r. 61.]
Statement of defence including an objection in point of law.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 29. [O. VII, r. 2.]
Interrogatories.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff.
and
C.D., E.F., and G.H., Defendants.
Interrogatories on behalf of the above-named plaintiff [or de-
fendant 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 30. [O. VII, r. 6.]
Answer to interrogatories.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., E.F., and G.H., Defendants,
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, etc.
FORm 31. [O. VII, r. 10.]
Affidavit as to documents.
Action' No. of 19
IN THE SUPREME COURT or HONG KONG,
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 state 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, custody
or power, or in the possession, custody or power of my solicitors
or agents, solicitor or agent, or in the possession, custody or power
of any other persons or person on my behalf, 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 of them, 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, etc.
FORM 32. [O. IX, r. 5.]
Entry of Rpecial case.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 33. [O. XI, r. 2.]
Notice of motion.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To the Registrar of the Supreme Court.
Take notice that the court will be moved at o'clock M.
on day, the day of 19 or so soon
thereafter as counsel can be heard, by Mr. counsel
for the , that (1)
Dated.the day of 19
(Signed) E.F.
Solicitor for the
FORm 34. [O. XI, r. 18.]
Summons inter partes.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To of
You are hereby summoned to appear before His Honour
, 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 of (1)
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 35. [O. XI r. 18.]
Ex parte summons.
Action No.of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
Application on the part offor leave to .(1)
Dated the day of 19
This summons was taken out by solicitor for
FoRm. 36. [0. XI, r. 20.]
Order.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
(1) in chambers.
Upon the application of , and upon hearing
, and upon reading the affidavit of ,
filed the day of 19 It is ordered that (2)
and that the costs of
this application be
Dated the day of 19
FORm 37. [O. XVII, r. 19.]
Praccipe for writ of execution of judgment for immovable property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 the immediate
possession of the immovable property mentioned in the said judg-
ment 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 Order XVII of the Code of Civil
Procedure.
Dated the day of 19
(Signed) A.B., of
For E.F.,
Solicitor for the plaintiff, A.B.]
FORm 38. [O. XVII, r. 27.]
Writ of execution of judgment for immovable property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc.
To the bailiff of Our said Court, greeting:
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 say (1)-
And Whereas the said plaintiff is desirous of enforcing the said
judgment and has applied for the proper writ of execution in that
behalf: Now, therefore, We command you that you dD 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 same.
Witness His Honour Chief Justice of Our said
court, theday 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 39. [O. XVII, r. 30.]
Writ of execution of judgement for money by attachment of property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc:
To the bailiff of Our said Court, greeting:
Whereas the defendant C.D. has failed tg 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 thereon at the rate of
$ per cent per annunt 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 property, and has. applied for
the proper writ of execution in that behalf: Now, therefore, We
command you that you do forthwith 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 attached under this writ by actual seizure as shall
consist of money or negotiable instruments, you do pay and deposit
the same respectively into court, and that, as to such part thereof
attached as aforesaid as shall riot consist of money or, negotiable
instruments, you do keep the same in your custody until the further
order of the court or until the sale thereof in satisfaction of the said
judgment; and We further command you that, in case you shall not
be able to find sufficient property of the said defendant, or the said
defendant shall fail to point out to you any property whereon to
levy, you do forthwith arrest the said defendant and deliver him
into the custody of the Commissioner of Prisons to be kept in a
prison 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 support and maintenance allowance at
the rate of a day.
Witness His Honour Chief Justice of the 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 40. [O. XVII, r. 31.]
Prohibitory order for attachment of movable property in execution.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
To of
Whereas the defendant C.D. has failed tg 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 thereon at the rate of
$ per cent 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 the court, from receiving
from E.F., of , the following property in the
possession of the said E.F., that is to say (1)-
to which the said defendant is entitled, subject to any claim, lien
or right of the said E.F.; and it is also ordered that the said E.F.
be and he is hereby prohibited and restrained, until the further order
of the court, from delivering the said property to the said defendant
or to any other person or persons whomsoever.
Witness His Honour Chief Justice of Our said.
Court, the day of , 19
(Signed)
Note-This order is issued under rule 31 of Order XVII 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 order is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thereon of the date and mode of execution.
FORM 41. [O. XVII r. 32.]
Prohibitory order for attachment of immovable property
in execution. '
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 thereon at the rate of $ per cent 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 further
order of this court, from alienating such lands, houses or other
immovable property, and particularly from alienating (1)
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 His Honour Chief Justice of Our said
Court, theday of 19
(Signed) Registrar.
Note-This order is issued under rule 32 of order XVII 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 order is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thereon of the date and mode of execution.
Fonm 42. [O. XVII, r. 43.]
Affidavit in support of garnishee order.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant,
I, of , the plaintiff in this action,
for 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 thereon at the rate of
$ per cent per annum from the date of the said judgment,
and costs to be taxed, and the said costs were, by the Registrar's
certificate dated the day of 19 allowed
at S
2. The said judgment still remains unsatisfied to the extent of
$ , and interest amounting to $
3. (1) of is indebted to the said defendant
in the sum of $ or thereabouts.
4. The said is within the jurisdiction of this court.
Sworn, etc.
FORm 43. [O. XVII, r. 43.]
Garnishee order attaching debt.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Judgment creditor,
and
(1) C.D., Judgment debtor.
E.F., Garnishee.
(2) in chambers.
Upon bearing and upon reading the affidavit
of filed 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
$ remains due and unpaid; and it is further ordered that the
said garnishee attend His Honourin chambers on
day, the day of 19 , at
o'clock in the noon, on an application by the said judgment
creditor that the said garnishee pay the debt due from him to the said
judgment debtor, or so much thereof as may be sufficient to satisfy
the judgment; and that the costs of this application be
Dated the day of 19
Indorsements to be made on the order before issue thereof.
If the garnishee does not dispute the debt claimed to be due from
him to the judgment debtor, he may pay into court the amount due
from him to the judgment debtor or an amount equal to the sum
remaining due and unpaid on the judgment as stated within.
Unless entirely satisfied that the judgment debtor is in fact the
person or firm to whom he is indebted, the garnishee should attend
in chambers on the day and at the time named in the within-written
Order.
If the garnishee does not either pay into court or attend on the
day named within, the court may in his absence order execution to
issue.
FORM 4 [O. XVII, r. 46.]
Garnishee order absolute.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Judgment creditor,
and
C.D., Judgment debtor.
E.F., Garnishee.
(1) in chambers.
Upon hearing , and upon reading the affidavit of
, filed 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 should
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
unpaid. It is ordered that the said garnishee do forthwith pay the
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 45. [O. XVII, r. 75.]
Notice to judgment creditor of application by prisoner for debt
to be discharged.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.'
Between A.B., Plaintiff,
and
C.D., Defendant.
(1) in chambers.
To A.B., and solicitor.
Take notice that this Honourable Court will, at o'clock M.
on day, the day of 19 , hear an
application by the defendant to be discharged from prison.
And take notice that you will not be allowed to appear and oppose
the application unless you have, before o'clock m. on
day, the day of , 19 , signified in writing
to me your intention of so appearing and opposing the application.
(Signed) Registrar.
FORM 46. [O. XVII, r. 75.]
Order for discharge of prisoner for debt front prison.
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., PlaintifY,
and
C.D., Defendant.
To the Commissioner of Prisons.
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 of ' 19
By order of the court,
(Signed) Registrar.
FORM 47. [O. XVII, r. 2.]
Writ of foreign attachment.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
E.F., Garnishee.
George the Sixth, by the Grace of God, etc.
To the bailiff of Our said Court, greeting:
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 His..Honour 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.P., of , garnishee, at
o'clock m. on day, the day of 19
(Signed) Bailiff.
A memorial of this writ was registered in the Land Office at
o'clock m. o n day, the day of 19
(Signed)
Fonm 48. [O. XVIII, r. 4.]
Bond in case of foreign attachment.
Action No. of 19
IN THE SUPRFME COURT OP HONG KONG,
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 jointly 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 Hong
Kong by the above-bounden A.B., as plaintiff against the said C.D.,
as defendant; and whereas, under the provisions of Order XVIII of
the Code of Civil 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 if 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 49. [O. XXIV, r. 2.]
Affidavit on interpleader.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 (1) in my possession, but
I claim no interest therein.
3. The right to the said subject-matter of this action has been
and is claimed (2) by one , who (3)
4. I do not in any manner collude 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, etc.
FORM 50. . [O. XXVI, r. 2.]
Order of issue of warrant for arrest of absconding defendant,
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 hirn 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 him for the execution of the 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 51. [O. XXVI, r. 2.]
Warrant for arrest of absconding defendant.
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION.
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God. etc.
To the bailiff of Our said Court, greeting:
We command you forthwith to arrest the defendant C.D. pur-
suant 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 give security for his appearance to answer any 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 claims 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
further command you that, in default of such payment, you detain
the said defendant until the further order of Oursaid Court.
Witness His Honour Chief Justice of Our said
Court, theday of ' 19
(Signed) Registrar.
Note-This warrant is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thereon of the date and mode of execution.
FORM 52. [0, XXVI, r. 3.]
Order for giving of bail by absconding defendant.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
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 this action; and it is further 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 53. [O. XXVI, r. 3.]
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 firmly
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 severally bind our
selves, 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 seats this
day of, in the Year of Our Lord Nineteen Hundred
and Now the condition of this obligation is that if the
above-bounden C.D. shall appear in person before the Supreme Court
of Hong Kong, 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
the said action, with costs, then this obligation shall be void, otherwise
it is to remain in full force.
Signed, sealed, and delivered
in the presence of (Signed)
C.D. [L.S.1
E.F. [L.S.1
G.H, [L.S.1
FORm 54. [O. XXVI, r. 8.]
Warrant for bailiff to call upon defendant to give security
to produce property.
Action No. of 19
IN THE SUPREME COURT OF HONG KONG,
ORIGINAL JURISDICTION,
Between A.B., Plaintiff,
and
C.D., Defendant.
George the Sixth, by the Grace of God, etc.
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 His Honour Chief Justice of Our said
Court, theday of 19
(Signed) Registrar.
Note-This warrant is to be returned into the Registry im-
mediately after the execution thereof, with a memorandum indorsed
thercon of the date and mode of execution. .
FORM 55. [O. XXX, r. 32.]
Advertisement for creditors.
A.B. DECEASED. Pursuant to a judgment [or an order] of
the Supreme Court dated the way of ' 19
and made in an action In the matter of the estate of A.B. deceased,
8. against P. No. of 19 the creditors of A.B. (late
of who died on the day of ,
19 ), are on or before the day of '19 , to send
to ' of , their full Christian and
surnames, addresses and descriptions, the full particulars of their
claims. a statement of their accounts and the nature of the securities
(if any) held by them, or in default thereof they will be excluded
from the benefit of the said judgment [or order] unless the court on
application otherwise orders. Every claimant holding any security
is to produce the same before at his chambers at
the Supreme Court in Victoria, Hong Kong, on the day of
' 19 , at o'clock in thenoon, being the
time appointed for adjudicating upon the claims.
A claimant not residing in this Colony must send with particularS
of his claim the name and address of a person in this Colony to whom
notices to the claimant can be sent.
Dated the day of 19
[Signature and address of the solicitor of the party prosecuting
the judgment or order, stating on whose behalf he is acting.]
FORM 50. [O. XXX, r.22.]
Advertisement for claimants other than creditors.
A.B. DECEASED.Pursuant to a judgment [or an order] of
the Supreme Court dated the day of ' 19 , and
made in an action In the matter of the estate of A.B. deceased (late
of who died on the day of
19 S. against P. , No. of 19 whereby the
following inquiry was [or inquiries were] directed, viz.:
[Set out inquiry or inquiries.]
Notice is hereby given that all persons claiming to be entitled
under the said inquiry [or inquiries] are on or before the day of
' 19 , to send to ' of , their
full Christian and surnames, addresses and descriptions, and full
particulars of their claims, or in default thereof they will be excluded
from the benefit of the said judgment [or order] unless the court on
application otherwise orders. day the day of ,
19 , at o'clock in the noon is the time appointed for
adjudicating upon the claims before at his chambers
in the Supreme Court in Victoria, Hong Kong.
A claimant not residing in this Colony must send with particulars
of his claim the name and address of a person in this Colony to whom
notices to the claimant can be sent.
Dated the day of 19
(Signed) Registrar.
FORM 57. [O. XXXI, r.5.]
Course-Book.
CAUSE-BOOK FOR THE YEAR 19
FORm 58. [O. XIV, r. 10.]
Order for examination of witness in the Colony in virtue of a
letter of request from a foreign court.
(a) in chambers.
In the matter of the Evidence Ordinance (Chapter 8 of the
Revised Edition).
And in the matter of a civil (or commercial or criminal] proceed-
ing now pending before (b)
intituled as follows-
Between
and Plaintiff.
Defendant.
Upon reading the affidavit (if any) of , filed the
day of '19 , and the certificate that proceedings are pending in the (b)
in (d)
and that such court is desirous of obtaining the testimony of (e)
It is ordered that the said witness [or witnesses]
do attend before (f)
who is hereby appointed examiner herein, at (g)
on the day of 19 at o'clock, or such
other day and time as the said examiner may appoint, and do
there submit to be examined upon oath, or affirmation, touching the
testimony so required as aforesaid, and do then and there produce
(h).
And it is further ordered that the said examiner do take down
in writing the evidence of the said witness, or witnesses, according
to the rules and practice of the Supreme Court pertaining to the
examination and cross-examination of witnesses (or as may be other-
wise directed); and do cause each and every such witness to sign his or
her depositions in his, the said examiner's, presence; and do sign the
depositions taken in pursuance of this order, and when so completed
do transmit the same, together with this order, to the Registrar,
Supreme Court, Hong Kong, for transmission to the president of the
said tribunal desiring the evidence of such witness or witnesses.
Dated the day of 19
FORM 59. [O. XIV, r. 10.]
Certificate of Registrar forwarding depositions.
Registrar of the Supreme Court of Hong Kong,
I, hereby certify that the documents annexed hereto are (1) the original
order of the Supreme Court of Hong Kong dated the day of
19 made in the matter of pending
in the at in the of
directing the examination of certain witnesses to be taken before
, and (2) the examination and depositions
taken by the saidpursuant to the said order, and
duly signed and completed by him on the day of
19
Dated the day of 19
SUPREME COURT (ADMIRALTY PROCEDURE)
RULES.
(CaP. 4, section 37).
(Ordinance.No. 3 Of 1873).
[1st September, 1896.]
General.
1 . In these rules-
'action' means any action, cause suit, or other proceed-
ing instituted in the court;
'cotirt' means the Supreme Court of Hong Kong and in-
cludes any judge thereof, whether sitting in court or in
chambers; ,
'defendant' includes the defendant's solicitor, if lie
appears by a solicitor;
'party' includes the party's solicitor, if he sues or appears
by a solicitor;
'Plaintiff' includes the plaintiff's solicitor if he sues by a
solicitor;
'Registrar' means the Registrar of the court;
'Registry' means the Registry of the court;
'ship' includes every description of vessel used in naviga-
tion not propelled by oars only.
(20 of 1948) Fraser, Ord. 3 of 1901. Ord. 15 of 1946. Ord. 25 of 1949. Ord. 24 of 1950. Citation. Interpretation. 36 & 37 Vict, c. 66, s. 100. Indian Code, s. 2. O. 71, r. 1A. 36 & 37 Vict, c. 66, s. 100. (Cap. 4.) O. 71, r. 1. 36 & 37 Vict, c. 66, s. 100. Saving. Limited introduction of English rules. Institution and carrying on of actions. Actions to begin with writ of summons. Schedule. Form 1. Preparation and contents of writ. O. 5, r. 10. O. 3, r. 4. Date and teste of writ. Leaving of copy of writ. O. 5, r. 12. Filling and marking of copy of writ. O. 5, r. 13. Sealing and issue of writ. O. 5, r. 11. Writ or notice for service out of jurisdiction. O. 2, r. 4. Alteration in writ. Duration and renewal of writ. O. 5, r. 1. Evidence of renewal of writ. O. 8, r. 2. Case of lost writ. O. 8, r. 3. Savings as to proceedings on petition. H.K. Code, s. 9(5). Right to indorse writ specially in action for debt or liquidated demand. O. 8, r. 6. [r. 13 cont.] Schedule, Form 2. Right to indorse writ specially in action for immovable property. O. 3, r. 6. Nature of special endorsement. O. 3, r. 7. Endorsement in actions by money-lenders. O. 3, r. 10. (Cap. 163.) Procedure on default of appearance to specially indorsed writ. O. 13, rr. 3, 8. O. 13, rr. 3, 16. (Cap. 163.) Procedure where defendant appears to specially indorsed writ. [r. 18 cont.] O. 14, r. 5. Right to indorse writ specially in case of ordinary account, and procedure thereon. O. 14, r. 5. O, 15. Issue and marking of concurrent writs. O. 6, r. 1. Concurrent writs for service within and without the jurisdiction. O. 6, r. 2. Issue of originating summons. O. 54, r. 4B. Schedule. Forms 3, 4, 5. Filling of copy of originating summons. O. 54, r. 4B. Appearance to originating summons. O. 54, r. 4C. Attendance under originating O. 54, r. 4D. Schedule, Form 6. Disclosure by solicitor whose name. [r. 25 cont.] is indorsed on writ. O. 7, r. 1. Change of solicitors. O. 7, r. 2. Prohibition of service on Sunday, etc. General rule as to mode of service. Special modes of service by order of the court. [cf. O. 9, r. 2. O. 67, r. 6.] O. 10. Service on defendant in public service. Service on certain corporations. Service on other corporations. Service on husband and wife. O. 9, r. 3. Service on infant, O.9, r. 4. Service on lunatic. O. 9, r. 5. Service on agent of defendant out of jurisdiction. Service out of the jurisdiction. O. 11, r. 1. Schedule. Forms 7, 8. 22 & 23 Geo. 5, c. 36. O. 11, r. 4. O. 11, r. 5. O. 11, r. 6. Schedule, Form 9. [r. 37 cont.] O. 11, r. 7. O. 11, r. 3. O. 11, r. 8A. O. 11, r. 8. Schedule, Form 10. Schedule, Form 11. Schedule. Form 13. Schedule. Form 11. Schedule. Form 12. Service of process for foreign court: letter of request. O. 11, r. 9. [r. 38 cont.] Schedule, Form 14. O. 11, r. 10. Procedure in cases where a convention applies. O. 11, r. 13. Power to vary order for service. Expenses of service by the bailiff. Service and return of writ. O. 9, r. 15. Appearance in general. Schedule, Form 15. Appearance in case of defendant out of jurisdiction. Cross-action against absent plaintiff. Motion to set aside service before appearance. O. 12, r. 30. Leave to proceed ex prate in case of non-appearance. Subsequent appearance. Trial ex parts. O. 13, rr. 3, 16. (Cap. 163.) 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. [r. 1 cont.] Case of action commenced in name of wrong plaintiff. O. 16, r. 2. Case of counterclaim where a plaintiff is wrongly joined. O. 16, r. 3. General rules as to joinder of persons as defendant. O. 16, r. 4. O. 16, r. 5. O. 16, r. 6. Case of plaintiff in doubt as to person from whom he is entitled to redress. O. 16, r. 7. Action by or against trustees. Executors and administrators. O. 16, r. 8. Action for prevention of waste, etc. O. 16, r. 37. Case of numerous persons having same interest. O. 16, r. 9. Power to approve compromise in absence of some of the persons interested. O. 16, r. 9A. Misjoinder and non-joinder of parties. O. 16, r. 11. Application to add, or strike out, or substitute parties. O. 16, r. 12. Procedure where defendant added or substituted. O. 16, 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. Appearance by infant, O. 16, r. 18. Schedule, Form 16. Guardian ad litem of infant. O. 16, r. 19. Filling of authority by next friend or relator. O. 16, r. 20. Consent of person under disability to procedure. O. 16, r. 21. Representation of heir-at-law, next of kin, or class. O. 16, r. 32(a). O. 16, r. 32(b). Administration at suit of residuary legatee, etc. O. 16, r. 33. Administration at suit of legatee, etc., O. 16, r. 34. Administration at suit of residuary devisee, etc. O. 16, r. 35. Execution of trust at suit of cestui que trust. O. 16, r. 36. Administration at suit of executor, etc. O. 16, r. 38. Conduct of action or proceeding. O. 16, r. 39. Service of notice of judgment in action for administration of estate, etc. and effect thereof. O. 16, r. 40. O. 16, r. 41. O. 16, r. 42. O, 16 , r. 43. Schedule Form 17. O, 16 , r. 44. Action to execute trusts of will. O, 16 , r. 45. Case where no legal personal representative of deceased person interested in matter in question. O, 16 , r. 46. Meaning of estate. (Cap. 10) Right to appear on claim against estate under administration. O, 16, r. 47. [r. 31 cont.] Third party notice. O, 16A, r. 1. Form and issue of notice. O, 16A, r. 2. Schedule Forms 18, 19. Effect of notice. O, 16A, r. 3. Appearance. O, 16A, r. 4. Default by third party. O, 16A, r. 5. Defendant's remedy. O, 16A, r. 6. Third party directions. O, 16A, r. 7. [r. 38 cont.] Leave to defend. O, 16A, r. 8. At trial. O, 16A, r. 9. Costs. O, 16A, r. 10. Fourth and subsequent parties. O, 16A, r. 11. Co-defend-ants. O, 16A, r. 12. Counter-claim. O, 16A, r. 13. 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. O, 17, 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. O, 17, r. 4. Service of order and effect thereof. O, 17, r. 5. Application to discharge or vary order by person under no disability, etc. O, 17, r. 6. Application to discharge or vary order by person under disability. O, 17, 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. O, 17, r. 9. Striking out of cause abated, etc., for a year. O, 17, 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 with action for recovery of immovable property. O, 18, r. 2. Claims by trustee in bankruptcy. O, 18, r. 3. Claims by or against husband and wife. O, 18, r. 4. Claims by or against executor or administrator. O, 18, r. 5. Claims by joint plaintiffs. O, 18, r. 6. Provision as to rr. 4 to 6. O, 18, r. 7. Remedy of defendant for misjoinder of causes of action. O, 18, rr. 8, 9. Rules of pleading. O, 19, r. 1. Form of pleading. O, 19, r. 4. Signature of pleading. O, 19, r. 4. Particulars to be given in case of misrepresentation, fraud, etc. O, 19, r. 6. Ordering of further and better particulars. O, 19, r. 7. Time for pleading after delivery of particulars. O, 19, r. 8. Plea of not guilty by statute or Ordinance. O, 19, r. 12. [s. 7 cont.] Admission of fact not specifically denied. O, 19, r. 13. Condition precedent to be specified in certain cases. O, 19, r. 14. Pleading to raise all grounds of defence or reply. O, 19, r. 15. 29 Car. 2, c. 3. Prohibition of departure in pleading. O, 19, r. 16. Obligation to deal specifically with allegation not admitted. O, 19, r. 17. Joinder of issue. O, 19, r. 18. Evasive denial. O, 19, r. 19. Effect of bare denial of contract, etc. O, 19, r. 20. 29 Car. 2, c. 3. Mode of stating document. O, 19, r. 21. Mode of alleging malice, etc. O, 19, r. 22. Mode of alleging notice. O, 19, r. 23. Mode of alleging contract or relation to be implied from letters, etc. O, 19, r. 24. Presumption of law. O, 19, r. 25. Technical objection. O, 19, r. 26. Striking our or amending or pleading. O, 19, r. 27. Costs of prolix pleading. O, 19, r. 2. Filling of statement of claim. O, 20, r. 1(b). Schedule Form 22. Description of parties. Claim beyond indorsement on writ. O, 19, r. 4. Mode of stating prayer for relief. O, 19, r. 6. Mode of stating distinct claims. O, 19, r. 7. [r. 28 cont.] Service of statement of claim on defendant who has appeared. Power to order service forthwith where writ to be served out of jurisdiction. Power to stay proceedings where statement of claim is defective. Time for filing statement of defence. Schedule. Form 23. Application for extension of time. Filing statement of defence after expiration of time. Mode of denying allegations made in statement of claim. O, 21, rr. 1, 2. No denial necessary as to damages. O, 21, r. 4. Costs of allegation improperly denied or not admitted. O, 21, r. 9. Plea of general issue. O, 21, r. 19. Plea in abatement. O, 21, r. 20. Service of statement of defence on plaintiff. Payment into court. O, 22, r. 1. Specific causes of action. Notice. Schedule. Form 24. Plaintiff may take out money. O, 22, r. 2. Schedule. Form 25. Plaintiff may tax costs. Money remaining in court. O, 22, r. 3. Several defendants. O, 22, r. 4. [r. 44 cont.] Schedule. Form 25. Count-claim. O, 22, r. 5. Non-disclosure of payment into court. O, 22, r. 6. (Cap. 21.) Money paid into court. Under order. O, 22, r. 8. Defence of set-off to claim for money. Making of counter-claim, etc., in lieu of set-off. Cases in which counterclaim may be allowed, and procedure thereon. Schedule Form 26. [r. 50 cont.] Appearance by third party to counter-claim. O, 21, r. 13. Time for reply to counter-claim. O, 21, r. 14. Statement of defence to counter-claim. Continuance of counter-claim. O, 21, r. 16. Filing of reply and subsequent pleadings. Schedule. Form 27. Close of pleadings on default, and default of third party in pleading. O, 27, rr. 13, 14. Pleading matter arising before statement defence or reply. O, 24, r. 1. Pleading matter arising after statement of defence or reply. O, 24, r. 2. Confession of defence founded on matter arising pending the action. O, 24, r. 3. Abolition of demurrer. O, 25, r. 1. Right of party to raise point of law by pleading, and procedure thereon. O, 25, r. 2. Schedule. Form 28. Dismissal of action, etc., on point of law. O, 25, r. 3. Striking out pleading where no reasonable cause of action disclosed, etc. O, 25, r. 4. Declaratory judgment or order. O, 25, r. 5. Amendment of indorsement, etc. O, 28, r. 1. Application for leave to amend. O, 28, r. 6. Right of amendment ex parte. Amendment of statement of claim after defence. Failure to amend after order. O, 28, r. 7. Date of order and date of amendment to be marked. O, 28, r. 9. Filling and service of amended pleading. O, 28, r. 10. Correction of clerical mistake in judgment, etc. O, 28, r. 11. General power to amend. O, 28, r. 12. Discovery by inter-rogatories. O, 31, r. 1. Decision on interrogatories to be delivered. O, 31, r. 2. Schedule. Form 29. Costs of interro-gatories. O, 31, r. 3. Interrogatories for corporation or company. O, 31, r. 5. Setting aside inter-rogatories. Answer to interrogatories. O, 31, r. 8. Schedule. Form 30. Objections to inter-rogatories by answer. O, 31, r. 6. Objection to affidavit in answer. Order to answer or answer further. O, 31, r. 11. Application for discovery of documents. O, 31, r. 13. Schedule. Form 31. Discovery of specific documents. O, 31, rr. 19A (3). Production of documents. O, 31, r. 14. Inspection of document referred to in pleadings, etc. O, 31, r. 15. Time and place for inspection when notice for inspection given. O, 31, r. 17. [r. 14 cont.] Application for inspection. O, 31, r. 18. Order for verified copies of entries in business book. O, 31, r. 19A (1). Claim of privilege. O, 31, r. 19A (2). {Premature discovery or inspection. O, 31, r. 20. Non-compliance with order for discovery or inspection. O, 31, r. 21. Service of order on solicitor. O, 31, r. 22. O, 31, r. 23. Using answer to interrogatories at trial. O, 31, r. 24. [r. 21 cont.] Discovery against bailiff. O, 31, r. 28. Discovery by or against infant, etc. O, 31, r. 29. Notice of admission. O, 32, r. 1. Notice of admit document. O, 32, r. 2. Notice to admit fact. O, 32, r. 4. Evidence of admission. O, 32, r. 7. Judgment or order upon admissions of fact. O, 32, r. 6. Evidence of service of notice. O, 32, r. 8. Costs of unnecessary notice. O, 32, r. 9. Preparation of issues of fact. O, 33, r. 1. [r. 1 cont.] Order of disposal of issues. Amendment of or addition to issues. General power to direct inquires and accounts. O, 33, r. 2. Giving of special directions as to mode of taking account. O, 33, r. 3. Mode of making up account. O, 33, r. 4. Mode of vouching account. O, 33, r. 4A. Surcharge. O, 33, r. 5. Inquiry as to outstanding personal estate. O, 33, r. 6. Numbering of accounts and inquiries. O, 33, r. 7. Rule as to just allowances. O, 33, r. 8. Expediting proceedings in case of undue delay. O, 33, 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. O, 34, r. 2. Preparation. Signing and filing or special cases. O, 34, r. 3. Leave to set down special case where person under disability is party. O, 34, r. 3. Entry of special case. O, 34, r. 5. Schedule. Form 32. Agreement of parties for payment of money, etc., on decision of special case. O, 34, r. 6. Judgment and execution on decision. O, 34, r. 6. Power for persons interested in question as to construction of enactment, etc., to concur in stating special case for opinion of the court, and procedure thereon. 13 & 14 Vict, c, 35, ss. 1, 14, 15. application of order IX. O, 34, r. 7. Trial of questions of fact agreed upon between parties. O. 34, r. 9. Agreement subject to decision. Judgment and execution on decision. O. 34, r. 11. Record of proceedings. O. 34, r. 12. Modes of making interlocutory application. [r. 1 cont.] Filling of motion-paper. Schedule. Form 33. Terms of motion. Amendment of motion-paper. Affidavits in support of motion. Time of moving in case of urgency. Motion to be ex parte or on notice. Proceedings on motion ex parte. Power of amendment, etc., at hearing. Power to make order different from order asked for. Application to vary or discharge order made on motion ex parte. Procedure where notice of motion served. Return-day of order. Filing of counter affidavits. Non-appearance or person served with order. Appearance of person served with order. General power of the court on hearing. Filing of application for summons. Schedule. Forms 34, 35. Issue of summons. Proceedings on return-day of summons. Schedule Form 36. Taking of evidence by affidavit. Cross-examination of person making affidavit. O, 38, r. 1. Taking of evidence viva voce. Preservation, etc., of subject-matter of disputed contract. O, 50, r. 1. Sale of perishable goods, etc. O, 50, r. 2. Detention, preservation or inspection of property the subject of cause or matter. O, 50, r. 3. Inspection by judge. O, 50, r. 4. Inspection by jury. O, 50, r. 5. Application for order of mandamus, etc. O, 50, r. 6. O, 50, r. 7. Order for recovery of specific property, other than immovable property subject to lien, etc. O, 50, r. 8. Conduct of sale of trust estate. O, 50, r. 10. Date of order when drawn up. O, 50, r. 13. Operation of notice of motion, etc., as stay of proceedings. Application to dismiss action for want of prosecution. Order for setting down. Order for setting down on application of plaintiff. Order for setting down on application of defendant. General power to postpone trial of cause. O, 36, r. 34 Application for post-ponement for absent witness. Application for postponement for evidence of witness out of jurisdiction. Keeping of general trial list and trial paper. Transfer of cause from general trial list to trial paper. Notice to parties of transfer of cause. Taking cause out of turn. Notice of postponement of trial not necessary in certain cases. Order as to mode of trial. Right to trial by jury in action of libel, etc., trial without jury. O, 36, r, 3. O, 36, r, 4. O, 36, r, 5. Order for trial with jury. O, 36, r, 6. Mode of trial in cases not expressly provided for. O, 36, r, 2. Provision for different modes of trial for different questions. O, 36, r, 7. Trial by the Full Court. Saving of existing laws relating to juries. Default of appearance by both parties. Default of appearance by plaintiff. Default of appearance by defendant. Adjournment for further service. Procedure where no statement of defences filed. O, 27, rr. 2, 16. (Cap. 163). Trial ex parte. Re-trial of cause for absent defendant in certain cases. Procedure where cause struck out for absence of plaintiff. Default of appearance by plaintiff a second time. O, 36, r. 32. General order of proceedings at trial of cause. [r. 10 cont.] Notes of evidence. Remarks on demeanour of witness. Indian Code, s. 188. Use of notes of evidence. Objections to evidence. Putting in of evidence, by affidavits, etc. Reading of documentary evidence. Marking and disposal of document put in evidence. Amendment of pleadings to correspond with evidence. Evidence in mitigation of damages in action for libel or stander. O, 36, r. 37. Power of the court to direct non-suit, etc. Withdrawal of plaintiff from action. Settlement of action by mutual agreement, etc. Existing rules of evidence. Taking and use of evidence de bene esse. O, 37, r. 5. Letter of request. O, 37, r. 6A. Taking and use of evidence before action brought. Order for attendance of person to produce document. O, 37, r. 7. Disobedience to order for attendance. O, 37, r. 8. Copy of pleadings for examiner. O, 37, r. 10. Custody of deposition taken on examination. Report of examiner on examination, and proceedings thereon. O, 37, r. 17. Procedure for obtaining evidence in the Colony for use in foreign tribunal. O, 37, rr. 54 to 60. (Cap. 8.) 33 & 34 Vict, c. 52, [r. 10 cont.] Schedule. Form 58. Schedule. Form 59. (Cap. 8). Use of deposition taken on examination. O, 37, r. 18. Rules as to form and substance of affidavit. O. 38, rr. 7, 8. Re-writing of defective affidavit. Alteration in affidavit. O, 38, r. 12. Affidavits sworn in the King's dominions, etc., Affidavit sworn out of the king's dominions. Presumption in favour of affidavits purporting to have been sworn abroad. Use of defective affidavit. O, 38, r. 14. Exclusion of affidavit sworn before party, etc. Re-swearing of defective affidavit. Filing and use of original affidavit. Receiving evidence by affidavit. Power to admit affidavit of person not cross-examined. Order of court for admission of affidavit. Rules as to examination of witnesses. Admissibility in certain cases of evidence of witness given in former judicial proceeding. Use of evidence in subsequent proceedings. O, 37, r, 25. Orders XIII and XIV to apply to hearing of petition. Recording of verdict, etc. Pronouncement of judgement. Indian Code, s. 199. Reserved, judgment. Notice of judgment. Minute and formal judgment or order. Filing of written judgment. Rules as to awarding of interest in judgment. Payment of judgment debt by instalments. Power to award damages in addition to or in substitution for in junction, etc. Inquiry for ascertaining amount of damages in certain cases. Sum of money to be awarded generally. Judgment in case of set-off and counter-claim for money. 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. General power of the court as to costs. O, 65, r. 1. Costs of issues in fact and in law. Definition of costs. Taxation of costs. Security for costs. O, 65, r. 6A. O, 65, r. 6. O, 65, r. 7. Effect of failure of plaintiff to give security for costs. Indian Code, s. 381. [r. 6 cont.] Set-off for costs. Indian Code, s. 221. Interest on costs. Payment of costs out of subject-matter. Indian Code, s. 222. Costs payable by or to the Crown. Summons to judgment debtor to appear and be examined as to his ability to pay judgment debt, and proceedings thereon. Judgment for immovable property. Judgment for money. Judgment for money against representative of deceased person. Judgment for specific movable or for specific performance of contract or act. Judgment for execution of deed or indorsement of negotiable instrument. Case of surety for performance of judgment. Order for or against person not a party. O, 42, r, 26. Description of property liable to attachment and sale in execution of judgment. Payment of moneys into court. Period within which execution may issue. O, 42, r, 22. Duration and renewal of writ. O, 42, r, 20. Evidence of renewal of writ. O, 42, r, 21. Separate writs for money recovered and for costs. O, 42, r, 18. Execution in case of cross-judgments for money. Levying expenses of execution. O, 42, r, 15. Determination of questions as to mesne profits and other matters. Power of the court to order immediate execution. Procedure in case of order for immediate execution. Filing of praecipe for writ of execution. O, 42, r. 12. Schedule. Form 37. Note of application for execution. Application for leave to issue execution in certain cases, and proceedings thereon. O, 42, r, 23. [r. 21 cont.] 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. Issue and date of writ. O, 42, r, 14. Order of issue of writs. Procedure where resistance is offered to execution of judgment for immovable property. schedule. Form 38. [r. 27 cont.] Procedure where person other than judgment debtor disputes right to dispossess him of immovable property under judgment. Effect of decision under rule 27 or 28. Levy of execution on judgment for money. Schedule. Form 39. Attachment of movable property. Schedule. Form 40. [r. 31 cont.] Attachment of immovable property. Schedule. Form 41. Attachment of shares in public company. Attachment of negotiable instrument. Attachment of property in custody of public officer. Attachment of property in custodia legis. Service of prohibitory order. (Cap. 128.) Nullity of alienation, etc., of property after attachment. Payment of money or proceeds of property attached to judgment creditor. Appointment of manager of immovable property attached. Raising of judgment debt by mortgage, etc., of immovable property attached. Withdrawal of attachment on satisfaction of judgment. Order for attachment of debts due to judgment debtor. O, 45, r, 1. Schedule. Forms 42, 43. Effect of service of order of attachment. O, 45, r, 2. Payment into court by garnishee. Issue of execution against garnishee. O, 45, r, 3. Schedule. Form 44. Trial of question of liability of garnishee. O, 45, r, 4. [r. 47 cont.] Claim or lien of third person to or on debt, and proceedings thereon. O, 45, r, 5, 6. Effect of payment by or execution on garnishee. O, 45, r, 7. Payment to judgment creditor of proceeds of debts attached. Appointment of manager of debts attached. Debt Attachment Book. O, 45, r, 8. Costs of proceedings for attachment. O, 45, r, 9. Investigation of claim to attached property, and other thereon. [r. 54 cont.] Power to order sale of movable property taken in execution and claimed by third party. O, 45, r, 12. Giving of notice by the baliff of claim to movable property taken in execution. O, 45, r, 16. Withdrawal by the baliff on admission of claim. O, 45, r, 16A. Conduct and mode of sale in execution. Effect of sales in execution without notice of claim by third party. 3 & 4 Geo. 5, c. 34, s. 15. (Cap. 6.) Application to set aside sale of immovable property for irregularity. [r. 60 cont.] Sale of immovable property made absolute, confirmed or set aside. Repayment of deposit, etc., when sale of immovable property is set aside. Granting of certificate to purchaser when sale of immovable property becomes absolute. (Cap. 128.) Delivery to purchaser of immovable property sold in execution. Procedure where resistance is offered to purchaser of immovable property sold in execution. Delivery to purchaser of movable property sold in execution. [r. 66 cont.] Prohibitory order in case of debts and shares sold in execution. Negotiable instruments. Execution of transfer of share, etc. Duration of imprisonment for debt. Support and maintenance allowance to prisoner for debt. Ord, 15/46, s. 2. Removal to hospital of prisoner for debt in case of serious illness. Release of prisoner for debt. Recovery of amount of support and maintenance money. Application of prisoner for debt for discharge. Schedule. Form 45. Schedule. Form 46. Effect of discharge of prisoner for debt. Order on person disobeying judgment to show cause why he should not be punished. Service of order, etc., Proceedings on return-day of order. [r. 79 cont.] Enlargement of time for return to order; conditional order of committal. Duration of detention of person committed. 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. O, 42, r. 31. Proceedings by foreign attachment. Issue of writ of foreign attachment. Schedule. Form 47. Meaning of absence from the Colony. Bond by plaintiff before issue of writ. Schedule. Form 48. Court may order issue of writ before execution of bond. Movable property. Priority of writs. Attachment of property in custody of public officer. Attachment of property in custodia legis. Effect of service of writ on garnishee as regards movable property. Execution of writ against immovable property. (Cap. 128.) Effect of registration of memorial of writ on immovable property. Sale of movable property attached under writ. Punishment of garnishee disposing, without leave, of property attached. Seizure of attached property in danger of being removed, etc. Publication of notice of issue of writ. Service of notice of writ on defendant. Filing of statement of claim, and proceedings thereafter. Proceedings at trial of action. [r. 19 cont.] Attachment of ship in case of adverse claims to goods laden on board. Procedure where several claims to property attached. Staying proceedings against garnishee. Giving leave to defendant to defend action. Application by defendant to dissolve attachment. Application by defendant to set aside judgment, etc., Saving of rights of bona fide purchaser of property in case writ dissolved. Crown suits to be in the name of the Attorney General. [r. 1 cont.] Mode of preferring claim against Government. 23 & 24 Vict, c. 34. Consent of Governor, and procedure thereafter. Service of documents in action. Procedure where judgment given against Government. Right and liability of partners to sue and be sued in firm name, and disclosure of names of partners. O, 48A, r. 1. Disclosure of names of partners in action by firm. O, 48A, r. 2. Service on partners sued in name of firm. O, 48A, r. 3. [r. 3 cont.] Notice of capacity in which person is served. O, 48A, r. 4. Appearance of partners. O, 48A, r. 5. Manager served need not appear. O, 48A, r. 6. Appearance under protest of person served as partner. O, 48A, r. 7. Execution of judgment against firm. O, 48A, r. 8. Attachment of debts owing form firm. O, 48A, r. 9. Application of Order XX to actions between co-partners. O, 48A, r. 10. [r. 10 cont.] Application of Order XX to person trading as firm. O, 48A, r, 11. [cf. O. 16, rr. 22 to 31H.] Application by poor person to sue or defend as pauper. Assignment of counsel and solicitor to consider case. Order for admission to sue or defend as pauper. Assignment of counsel and solicitor to assist pauper. Exemption of pauper from fees. [cf. O. 16, r. 28.] Duty to act, [cf. O. 16, r. 30(3).] Punishment of person taking fee from pauper. [cf. O. 16, r. 28.] Dispaupering of pauper. [r. 8 cont.] Duty of solicitor of pauper as to signing of documents. O, 16, r, 31D. Service of writ of summons in case of vacant possession. O. 9, r. 9. Action for recovery of immovable property to the Crown. Appearance by person in possession. O. 12, r. 25. Appearance by landlord. O. 12, r. 26. Procedure where person not named as defendant appears. O. 12, r. 27. Limitation of defence to part of property. O. 12, r. 28. Plea of possession. O. 12, 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. 15 & 16 Vict, c. 76, 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 detemina- [r. 12 cont.] tion of tenancy by notice to quit. 15 & 16 Vict, c. 76, s. 213. Power on trial of ejectment by landlord against tenant to give damages for mesne profits. 15 & 16 Vict, c. 76, s. 214. Saving of other remedies of landlord. 15 & 16 Vict, c. 76, s. 218. Right of plaintiff to claim mandamus by indorsement on writ. [r. 1 cont.] Setting forth or grounds for mandamus in statement of claim. Proceedings in action claiming mandamus. Issue of peremptory writ of mandamus. Nature of writ and return thereon. Saving of prerogative writ of mandamus. 17 & 18 Vict, c. 125, s. 75. Acceleration of proceedings for prerogative writ. 17 & 18 Vict, c. 125, s. 76. Procedure on prerogative writ. 17 & 18 Vict, c. 125, s. 77. Cases in which relief by interpleader granted. O, 57, r. 1. Matters to be proved by applicant. O, 57, r. 2. Schedule. form 49. [r. 2 cont.] Adverse titles of claimants. O, 57, r. 3. Application by defendant. O, 57, r. 4. Summons by applicant. O, 57, r. 5. Stay of action. O, 57, r. 6. Order upon summons. O, 57, r. 7. Disposal of claims in summary manner. O, 57, r. 8. Decision on question of law. O, 57, r. 9. Failure of claimant to appear or refusal to comply with order. O, 57, r. 10. Appeals in interpleader. O, 57, r. 11. Application of Orders VII and XIII. O, 57, r. 13. General powers of the court in interpleader proceedings. O, 57, r. 15. Interpretation if 'sub-mission' 52 & 53 Vict, c. 49, s. 27. Effect of submission. 52 & 53 Vict, c. 49, s. 1. Provisions implied in submission. 52 & 53 Vict, c. 49, s. 2. And First Schedule. Power of 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. 52 & 53 Vict, c. 49, s. 6. Powers of arbitrator or umpire and procedure on reference. 52 & 53 Vict, c. 49, s. 7. O, 36, r. 48. O, 36, r. 49. O, 36, r. 50. O, 36, r. 51. O, 36, r. 52. Suing out of subpoena. 52 & 53 Vict, c. 49, s. 8. Enlargement of time for making award. 52 & 53 Vict, c. 49, s. 9. Remitting of award. 52 & 53 Vict, c. 49, s. 10. Misconduct or arbitrator or umpire. 52 & 53 Vict, c. 49, s. 11. Application to set said award. 52 & 53 Vict, c. 49, s. 12. O, 42, r, 31A. Reference for report. 15 & 16 Geo. 5, c. 49, s. 88. Reference for trial. 15 & 16 Geo. 5, c. 49, s. 89. Powers of referee, and procedure on reference. 15 & 16 Geo. 5, c. 49, s. 90(1). O, 36, r. 48. O, 36, r. 49. [r. 16 cont.] O, 36, r. 50. O, 36, r. 51. O, 36, r. 52. O, 36, r. 53. O, 36, r. 54. O, 36, r. 55. O, 36, r. 55B. Judgment to be entered by referee. Setting aside judgment of referee. Effect of report or award. 15 & 16 Geo. 5, c. 49, s. 90(2). Remuneration of referee etc,. 15 & 16 Geo. 5, c. 49, s. 90(3). Powers of the court as to reference. 15 & 16 Geo. 5, c. 49, s. 91. Compelling attendance of witness before referee, etc. [r. 22 cont.] 52 & 53 Vict, c. 49, s. 18. Statement of special case pending reference. 52 & 53 Vict, c. 49, s. 19. Costs. 52 & 53 Vict, c. 49, s. 20. The crown to be bound by order XXV. 52 & 53 Vict, c. 49, s. 23. Application of Order XXV, to references under statutory powers. 52 & 53 Vict, c. 49, s. 24. Application for taking security for appearance of defendant in certain cases. Issue of warrant for bringing defendant before the court to show cause why he should not give security. Schedule. Forms 50, 51. Showing cause, and procedure thereon. Schedule. Form 52. Schedule. Form 53. Release or committal to custody of defendant. [r. 4 cont.] Support and maintenance of defendant in prison to be paid by plaintiff. Ord. 24/50, Schedule. Application Ly defendant for discharge of bail or of release form prison. Power to award limited compensation to defendant for unjustifiable arrest. Application for taking security from defendant or for attachment of his property in certain cases. Issue of warrant requiring to furnish security or to appear and show cause, and attaching his property. Schedule. Form 54. Showing cause, and procedure thereon. Saving of rights of other persons under attachment. Removal of attachment on furnishing of security. Power to award limited compensation to defendant for unjustifiable attachment. Arrest and detention of ship in special circumstances. Release of ship under detention. Power to award limited compensation for unjustifiable arrest and detention. Granting of injunction to stay waste, damage or alienation of property. Granting of injunction to restrain breach of contract or other injury. Giving notice of application for injunction. Indian Code, s. 494. Effect of injunction directed to company or corporation. Indian Code, s. 495. Discharge, etc., of order for injunction. Indian Code, s. 496. Power to award limited compensation to defendant for unjustifiable injunction. [r. 6 cont.] Appointment of receiver of property in dispute and powers of receiver. Appointment of receiver by way of execution. O, 50, r. 15A. Giving of security by, and salary of, receiver. O, 50, r. 16. Adjournment of order for receiver into chambers for giving of security. O, 50, r. 17. Fixing of timers for leaving and passing accounts and paying balances. O, 50, r. 18. Leaving and passing account. O, 50, r. 20. Proceedings on default made in leaving or passing account, etc. O, 50, r. 21. Motions for new trial. 15 & 16 Geo, 5, c. 49, s. 30. General power to order new trial. Application for new trial. O, 39, r. 3. Grounds for granting or refusing new trial. O, 39, r . 6. O, 39, r . 8. Power to order new trial on any one question. O, 39, r . 7. Power to order non-suit, etc. Order for new trial, etc. Costs of first trial where new trial ordered. Right to jury on second trial. [r. 9 cont] Recording of grant of application for new trial. Restriction on appeals. 15 & 16 Geo. 5, c. 49, s. 31(1)(h). Limit of time for appeals: 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. O, 58, r. 3. General powers of the Full Court in hearing appeal. O, 58, r. 4. Power to order new trial. O, 58, r. 5. [r. 17 cont.] Power as to costs. O, 58, r. 4. Notice of appeal by respondent. O, 58, r. 6. Length of notice by respondent. O, 58, r. 7. Setting down appeal. O, 58, r. 8. Evidence on appeal as to question of fact. O, 58, r. 11. Transcript of proceedings. Evidence as to direction of or questions by judge. O, 58, r. 13. Interlocutory order not to prejudice appeal. O, 58, r. 14. Stay of proceedings. O, 58, r. 16. Mode of making incidental application. O, 58, r. 18. Interest where execution delayed by appeal. O, 58, r. 19. Counsel in chambers. O, 55, r. 1A. [r. 1 cont.] Course of preceding in chambers. O, 55, r. 37. Determination on originating summons of questions relating to estate of deceased person or to express trust. O, 55, r. 3. Order on originating summons for administration of estate or of trust. O. 55, r. 4. Persons to be served with originating summons. O, 55, r. 5. [r. 5 cont.] Service on other persons. O, 55, r. 6. Evidence in support of application. O, 55, r. 7. Judgment upon summons. O, 55, r. 8. Carriage and service of judgment. O, 55, r. 9. Right of the court to refuse to order administration. O, 55, r. 10. Orders on application for administration, or execution of trust, where no sufficient accounts have been rendered. O, 55, r. 10A. Interference with discretion of executor, etc. O, 55, r. 12. Application by summons under Cap. 29. Application in chambers for relief relating to charity with annual income exceeding $300, 16 & 17 Vict, c. 137, s. 28. [r. 14 cont.] By whom application relating to charity may be made. 16 & 17 Vict, c. 137, s. 43. Attorney General may apply under 52 Geo. 3, c. 101. 16 & 17 Vict, c. 137, s. 43. Sale of mortgaged property in action for redemption or foreclosure. 15 Geo. 5, c. 20, s. 91. Power to order sale of immovable property generally. O, 51, r, 1. Right of mortgagor in effacement by mortgagee to pay mortgage money, etc., and to have re-convey-ance. 15 & 16 Vict, c. 76, s. 219. [r. 19 cont.] Cases excepted from operation of rule 19. 15 & 16 Vict, c. 76, 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. O, 55, r. 19. Evidence on application for appointment of guardian and for maintenance. O, 55, r. 25. Appointment of guardian ad litem in proceedings in chambers. O, 55, r. 27. Classifying interests of parties. O, 55, r. 40. [r. 26 cont.] Court may require separate solicitor to represent parties. O, 55, r. 41. Attendance of parties not directed to attend. O, 55, r. 42. Drawing up of order stating parties who have been directed to attend. O, 55, r. 43. Advertisements. O, 55, r. 44. By whom preparted and signed. O, 55, r. 45. Substance and form of advertisements. O, 55, r. 46. Claimants not sending particulars of claims excluded. O, 55, r. 47. Service of notices on claimants. O, 55, r. 48. [r. 34 cont.] Claimants to produce documents if required. O, 55, r. 49. Claimants' affidavits. O, 55, r. 50. Examination and verification of claims. O, 55, r. 51. Adjudication on claims. O, 55, r. 52. Adjournment. Further evidence. O, 55, r. 53. Notice of claims allowed or disallowed. O, 55, r. 54. Unless served with notice claimant need not attend. Costs. O, 55, r. 55. [r. 41 cont.] List of claims allowed. O, 55, r. 56. Affidavit verifying claims. O, 55, r. 58. Adjudication on claims. O, 55, r. 59. Claimants who have established their claims to be served with notice of judgment. O, 55, r. 60. Computation of interest on debt carrying interest. O, 55, r. 62. Allowance of interest on debt not carrying. O, 55, r. 63. Interest on legacy. O, 55, r. 64. Nature of certificate. O, 55, r. 65. Reference in certificate to judgment, etc. O, 55, r. 66. Contents of certificate in case of account. O, 55, r. 68. [r. 51 cont.] Taking opinion of the court. O, 55, r. 69. Effect of certificate. O, 55, r. 70. Application to discharge or vary certificate. O, 55, r. 70. Power to discharge or vary certificate. O, 55, r. 71. Further consideration of matter originating in chambers. O, 55, r. 72. Keeping of notes of proceedings in chambers. O, 55, r. 73. Drawing up and entering of order. O, 55, r. 74. Evidence of order. O, 55, r. 74A. Appointment of sittings. General publicity of sittings [4. 2 cont.] Order of business at sitting. Sealing and filing of documents. Keeping of Cause-Book. Schedule. Form 57. General power of adjournment. O, 36, r. 34. Power to allow income of property, pendent lite. O, 50, r. 9. Proceedings for limiting ship-owner's responsibility. 57 & 58 Vict, c. 60. Effect of non-compliance with the rules. O, 70, r. 1. Time for applying to set aside proceeding for irregularity. O, 70, r. 2. Statement of grounds of application. O, 70, r. 3. Costs on dismissal of summons to set aside proceeding. O, 70, r. 4. Power to enlarge or abridge time for doing act or taking proceeding. Enlargement of time by consent. O, 64, r. 8. Rules for computation of time limited for doing act or taking proceeding. (Cap. 149.) Appointment of commissioners for oaths. 52 & 53 Vict, c. 10, s. 1. Officers of the court, to administer oaths. 52 & 53 Vict, c. 10, s. 2. Application of leave to issue writ of attachment. O, 44, r. 2. Effect of writ of attachment. O, 44, r. 1. Privilege of judicial officer from arrest. Indian Code, s. 642. Saving of certain provisions of 8 & 9 Will, 3, c. 11. General mode of publishing notice. Forms. Schedule. R.S.C., App. A, Part I, No. 1. (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. R.S.C., App. A, Part I, No. 1. (2) 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. R.S.C. App. K, No. 1A. (1) If the question to be determined arises in the administration of an estate or a trust, intitule it also in the matter of the estate or trust. (2) State concisely the nature of the claim. (3) State the questions. R.S.C. App. K, No. 1B. (1) State the object of the application. R.S.C. App. K, No. 1H. (1) State the object of the application. R.S.C. App. K, No. 1F. (1) Insert the name of the defendant or respondent. R.S.C., App. A, Part I, No. 5. R.S.C. App. A, Part I, No. 6. Insert number of days according to the order. If notice of the writ is to be served, insert 'of notice'. Insert number of days according to the order. If notice is to be served, insert 'of notice'. R.S.C. App. A, Part I, No. 9. R.S.C. App. A, Part I, No. 10A. R.S.C. App. A, Part I, No. 10B. R.S.C. App. A, Part I, No. 10C. R.S.C. App. K, No. 20A. R.S.C. App. A, Part II, No. 1. R.S.C. App. A, Part II, No. 8. R.S.C. App. G, No. 28. R.S.C. App. B, Part II, No. 1. R.S.C. App. B, Part II, No. 1A. R.S.C., App. K, No. 4E. 1 R.S.C., App. K, No. 4F. (1) Mention the judge. R.S.C., App. E, Sec. II. R.S.C., App. E, Sec, II. R.S.C., App. B, Part II. NO. 3. R.S.C., App. B, Part II, No. 4. R.S.C., App. E, Sec.II. R.S.C., App. E, Sec. II. R.S.C., App. E, Sec. III. No.1. R.S.C., App. B, Part II No. 6. R.S.C., App. B, Part II, No. 7. R.S.C. App. B, Part II, No. 8. R.S.C., App, G, No. 25. R.S.C., App. B, Part II, No, 18. (1) State the object of the motion.(1) State the object of the application. (1) State the object of the application. R.S.C., App.K, No.2. (1) Mention the judge. (2) State the nature of the order. (1) Describe the property and its situation. (1) Describe the property. (1) Describe the particular immovable property and its situation. R.S.C., App. B, Part II, No.25. (1) Insert name, address and description of garnishee. R.S.C., App. K, No. 39. (1) Insert name, address and description of judgment debtor.(2) Mention the judge. R.S.C.,App. K, No. 40. (1) Mention the judge. (1) Mention the judge. R.S.C., App. B, Part II, No. 26. (1)'is'or 'are'(2) If the claim is in writing, make the writing an exhibit,(3)State expectation of suit, or that he has already sued. R.S.C., App, L, No,2. R.S.C., App. L, No,3. (a) Name of judge, (b) Description of foreign tribunal.( c) Name and description of the Ambassador, Minister, Diplomatic Agent or Consul of the foreign country.(d) Name of foreign country. (e)Name of witnesses. (f) Name and address of examiner.(g)Place appointed for examination.(h)Description of document, if any, required to be produced. Ord, 6 of 1896, s.2, Schedule. Interpretation.
Identifier
https://oelawhk.lib.hku.hk/items/show/2176
Edition
1950
Volume
v7
Subsequent Cap No.
4
Number of Pages
226
Files
Collection
Historical Laws of Hong Kong Online
Citation
“CODE OF CIVIL PROCEDURE AND RULES OF COURT,” Historical Laws of Hong Kong Online, accessed April 25, 2025, https://oelawhk.lib.hku.hk/items/show/2176.
