« ZurückWeiter »
other persons who may have been summoned or required to and if no such application is made, or if no rule is granted attend at or for the trial of any cause before the said Lord thereon, or if any rule granted thereon is afterwards discharged, Chief Justice or Lord Chief Baron, as the case may be, shall such award shall be final between the parties. give their attendance at and for the trial thereof before such other
10. Any award made on a compulsory reference under this judge as may be sitting to try the same by virtue of this act ; act may, by authority of a judge, on such terms as to him may and it shall be lawful for the associates and other officers of the
seem reasonable, be enforced at any time after seven days from Lord Chief Justice or Lord Chief Baron, as the case may be, the time of publication, notwithstanding that the time for to appoint from time to time fit and proper persons, to be moving to set it aside has not elapsed. approved by the said Lord Chief Justice or Lord Chief Baron,
11. Whenever the parties to any deed or instrument in to attend for them and on their behalf respectively before such writing to be hereafter made or executed, or any of them, shall judge; and the trial of every cause which shall be so had by agree that any then existing or future differences between them virtue of this act shall, if necessary, be entered of record, as having been had before the judge by whom such cause in fact more of the parties so agreeing, or any person or persons
or any of them shall be referred to arbitration, and any one or was tried.
claiming through or under him or them, shall nevertheless 3. If it be made appear, at any time after the issuing of the commence any action at law or suit in equity against the other writ, to the satisfaction of the court or a judge, upon the ap- party or parties, or any of them, or against any person or perplication of either party, that the matter in dispute consists sons claiming through or under him or them in respect of the wholly or in part of matters of mere account which cannot matters so agreed to be referred, or any of them, it shall be conveniently be tried in the ordinary way, it shall be lawful lawful for the court in which action or suit is brought, or a judge for such court or judge, upon such application, if they or he thereof, on application by the defendant or defendants, or any think fit, to decide such matter in a summary manner, or to of them, after appearance, and before plea or answer, upon order that such matter, either wholly or in part, be referred to being satistied that no sufficient reason exists why such matters an arbitrator appointed by the parties, or to an officer of the cannot be or ought not to be referred to arbitration according court, or, in country causes, to the judge of any county court, to such agreement as aforesaid, and that the defendant was at upon such terms as to costs and otherwise as such court or the time of the bringing of such action or suit, and still is, judge shall think reasonable; and the decision or order of such ready and willing to join and concur in all acts necessary and court or judge, or the award or certificate of such referee, shall proper for causing such matters so to be decided by arbitrabe enforceable by the same process as the finding of a jury tion, to make a rule or order staying all proceedings in such upon the matter referred.
action or suit, on such terms, as to costs and otherwise, as to 4. If it shall appear to the court or a judge that the allow such court or judge may seem fit: provided always, that any ance or disallowance of any particular item or items in such such rule or order may at any time afterwards be discharged account depends upon a question of law fit to be decided by or varied, as justice may require. the court, or upon a question of fact fit to be decided by a jury,
12. If in any case of arbitration the document authorising or by a judge upon the consent of both parties as hereinbefore the reference provide that the reference shall be to a single provided, it shall be lawful for such court or judge to direct a arbitrator, and all the parties do not, after differences have case to be stated, or an issue or issues to be tried; and the de- arisen, concur in the appointment of an arbitrator ; or if any cision of the court upon such case, and the finding of the jury appointed arbitrator refuse to act, or become incapable of actor judge upon such issue or issues, shall be taken and acted ing, or die, and the terms of such document do not shew that upon by the arbitrator as conclusive.
it was intended that such vacancy should not be supplied, and 5. It shall be lawful for the arbitrator upon any compulsory the parties do not concur in appointing a new one; or if, reference under this act, or upon any reference by consent of where the parties or two arbitrators are at liberty to appoint parties where the submission is or may be made a rule or an umpire or third arbitrator, such parties or arbitrators do order of any of the superior courts of law or equity at West. not appoint an umpire or third arbitrator; or if any appointed minster, if he shall think fit, and if it is not provided to the umpire or third arbitrator refuse to act, or become incapable contrary, to state his award, as to the whole or any part there- of acting, or die, and the terms of the document authorising the of, in the form of a special case for the opinion of the court, reference do not shew that it was intended that such a vacancy and when an action is referred, judgment, if so ordered, may should not be supplied, and the parties or arbitrators respecbe entered according to the opinion of the court.
tively do not appoint a new one; then and in every such in6. If upon the trial of any issue of fact by a judge under stance any party may serve the remaining parties or the arbithis act it shall appear to the judge that the questions arising trators, as the case may be, with a written notice to appoint an thereon involve matter of account which cannot conveniently arbitrator, umpire, or third arbitrator respectively; and if be tried before him, it shall be lawful for him, at his discre- within seven clear days after such notice shall have been served tion, to order that such matter of account be referred to an no arbitrator, umpire, or third arbitrator be appointed, it shall arbitrator appointed by the parties, or to an officer of the court, be lawful for any judge of any of the superior courts of law or or, in country causes, to a judge of any county court, upon equity at Westminster, upon summons to be taken out by the such terms, as to costs and otherwise, as such judge shall think party having served such notice as aforesaid, to appoint an arreasonable ; and the award or certificate of such referee sball bitrator, umpire, or third arbitrator, as the case may be, and have the same effect as herein before provided as to the award such arbitrator, umpire, and third arbitrator respectively shall or certificate of a referee before trial; and it shall be compe- have the like power to act in the reference and make an award tent for the judge to proceed to try and dispose of any other as if he had been appointed by consent of all parties. matters in question, not referred, in like manner as if no 13. When the reference is, or is intended to be, to two arbi. reference had been made.
trators, one appointed by each party, it shall be lawful for either 7. The proceedings upon any such arbitration as aforesaid party, in the case of the death, refusal to act, or incapacity of shall, except otherwise directed hereby or by the submission any arbitrator appointed by him, to substitute a new arbitrator, or document authorising the reference, be conducted in like unless the document authorising the reference shew that it was manner, and subject to the same rules and enactments, as to intended that the vacancy should not be supplied ; and if on the power of the arbitrator and of the court, the attendance of such a reference one party fail to appoint an arbitrator, either witnesses, the production of documents, enforcing or setting originally or by way of substitution as aforesaid, for seven clear aside the award, and otherwise, as upon a reference made by days after the other party shall have appointed an arbitrator, consent under a rule of court or judge's order.
and shall have served the party so failing to appoint with notice 8. In any case where reference shall be made to arbitration in writing to make the appointment, the party who has apas aforesaid the court or a judge shall have power at any time, pointed an arbitrator may appoint such arbitrator to act as and from time to time, to remit the matters referred, or any sole arbitrator in the reference, and an award made by him or either of them, to the re-consideration and re-determination shall be binding on both parties as if the appointment had of the said arbitrator, upon such terms, as to costs and other been by consent : provided, however, that the court or a wise, as to the said court or judge may seem proper.
judge may revoke such appointment, on such terms as shall 9. All applications to set aside any award made on a com- seem just. pulsory reference under this act shall and may be made within 14. When the reference is to two arbitrators, and the terms the first seven days of the term next following the publication of the document authorising it do not shew that it was intended of the award to the parties, whether made in vacation or term; I that there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may appoint lawful for the court or judge, or other presiding officer, or an umpire at any time within the period during which they person qualified to take affidavits or depositions, upon being have power to make an award, unless they be called upon by satisfied of the sincerity of such objection, to permit such notice as aforesaid to make the appointment sooner.
person, instead of being sworn, to make his or her solemn 15. The arbitrator acting under any such document or com- affirmation or declaration in the words following; videlicet, pulsory crder of reference as aforesaid, or under any order re- “I, A. B., do solemnly, sincerely, and truly affirm and ferring the award back, shall make his award under his hand, declare, that the taking of any oath is, according to my reli. and (unless such document or order respectively shall contain gious belief, unlawful; and I do also solemnly, sincerely, and a different limit of time) within three months after he shall have truly affirm and declare" &c.: been appointed, and shall have entered on the reference, or which solemn affirmation and declaration shall be of the same shall have been called upon to act by a notice in writing from force and effect as if such person had taken an oath in the any party, but the parties may by consent in writing enlarge the usual form. term for making the award ; and it shall be lawful for the su. perior court of which such submission, document, or order is
21. If any person making such solemn affirmation or decla. or may be made a rule or order, or for any judge thereof, for ration shall wilfully, falsely, and corruptly affirm or declare good cause to be stated in the rule or order for enlargement, any matter or thing, which, if the same had been sworn in the from time to time to enlarge the term for making the award : jury, every such person so offending shall incur the same
usual form, would have amounted to wilful and corrupt per. and if no period be stated for the enlargement in such consent or order for enlargement, it shall be deemed to be an enlarge- penalties as by the laws and statutes of this kingdom are or ment for one month; and in any case where an umpire shall may be enacted or provided against persons convicted of wilful
and corrupt perjury. have been appointed it shall be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed
22. A party producing a witness shall not be allowed to their time or their extended time to expire without making an impeach bis credit by general evidence of bad character, but award, or shall have delivered to any party or to the umpire a
he may, in case the witness shall, in the opinion of the judge, notice in writing stating that they cannot agree.
prove adverse, contradict him by other evidence, or, by leare 16. When any award made on any such submission, docu- of the judge, prove that he has made at other times a statement, or order of reference as aforesaid directs that possession last- mentioned proof can be given, the circumstances of the
ment inconsistent with his present testimony; but before such of any lands or tenements capable of being the subject of an action of ejectment shall be delivered to any party, either forth. sion, must be mentioned to the witness, and he must be asked
supposed statement, sufficient to designate the particular occa. with or at any future time, or that any such party is entitled to the possession of any such lands or tenements, it shall be law. whether or not he has made such statement. ful for the court, of which the document authorising the refer.
23. If a witness, upon cross-examination as to a former ence is or is made a rule or order, to order any party to the statement made by him relative to the subject matter of the reference who shall be in possession of any such lands or tene
cause, and inconsistent with his present testimony, does not ments, or any person in possession of the same claiming under distinctly admit that he has made such statement, proof may or put in possession by him since the making of the document be given that he did in fact make it; but before such proof authorising the reference, to deliver possession of the same to
can be given, the circumstances of the supposed statement, the party entitled thereto, pursuant to the award, and such sufficient to designate the particular occasion, must be menrule or order to deliver possession shall have the effect of a
tioned to the witness, and he must be asked whether or not
be has made such statement. judgment in ejectment against every such party or person named in it, and execution may issue, and possession shall be
24. A witness may be cross-examined as to previous state. delivered by the sheriff as on a judgment in ejectment. ments made by him in writing, or reduced into writing, relative 17. Every agreement or submission to arbitration by con
to the subject matter of the cause, without such writing being sent, whether by deed or instrument in writing, not under shewn to him ; but if it is intended to contradict such witness seal, may be made a rule of any one of the superior courts of by the writing, his attention must, before such contradictory law or equity at Westminster, on the application of any party proof can be given, be called to those parts of the writing thereto, unless such agreement or submission contain words which are to be used for the purpose of so contradicting him: purporting that the parties intend that it should not be made a provided always, that it shall be competent for the judge, at rule of court; and if in any such agreement or submission it any time during the trial, to require the production of the is provided that the same shall or may be made a rule of one writing for his inspection, and he may thereupon make such in particular of such superior courts, it may be made a rule use of it for the purposes of the trial as he shall think fit. of that court only; and if, when there is no such provision, a 23. A witness in any cause may be questioned as to whether case be stated in the award for the opinion of one of the he has been convicted of any felony or misdemeanour, and, superior courts, and such court be specified in the award, and upon being so questioned, if he either denies the fact, or refuses the document authorising the reference have not, before the to answer, it shall be lawful for the opposite party to prove publication of the award to the parties, been made a rule of such conviction; and a certificate, containing the substance court, such document may be made a rule only of the court and effect only (omitting the formal part) of the indictment specified in the award ; and when in any case the document and conviction for such offence, purporting to be signed by authorising the reference is or has been made a rule or order the clerk of the court, or other officer having the custody of of any one of such superior courts, no other of such courts the records of the court where the offender was convicted, or shall have any jurisdiction to entertain any motion respecting by the deputy of such clerk or officer, (for which certificate a the arbitration or award.
fee of 5s., and no more, shall be demanded or taken), shall, 18. Upon the trial of any cause the addresses to the jury apon proof of the identity of the person, be sufficient evishall be regulated as follows :-The party who begins, or his dence of the said conviction, without proof of the signature or counsel, shall be allowed, in the event of his opponent not official character of the person appearing to have signed the announcing, at the close of the case of the party who begins, his intention to adduce evidence, to address the jury a second 26. It shall not be necessary to prove by the attesting wittime at the close of such case, for the purpose of summing up
ness any instrument to the validity of which attestation is not the evidence; and the party on the other side, or his counsel, requisite ; and such instrument may be proved by admission shall be allowed to open the case, and also to sum up the, or otherwise, as if there had been no attesting witness thereto. evidence, (if any); and the right to reply shall be the same as 27. Comparison of a disputed writing with any writing at present.
proved to the satisfaction of the judge to be genuine shall be 19. It shall be lawful for the court or judge, at the trial of permitted to be made by witnesses ; and such writings, and any cause, where they or he may deem it right, for the pur- the evidence of witnesses respecting the same, may be subposes of justice, to order an adjournment for such time, and mitted to the court and jury as evidence of the genuineness, or subject to such terms and conditions as to costs and otherwise, otherwise, of the writing in dispute. as they or he may think fit.
28. Upon the production of any document as evidence at 20. If any person called as a witness, or required or desiring the trial of any cause, it shall be the duty of the officer of the to make an affidavit or deposition, shall refuse or be unwilling court whose duty it is to read such document to call the attenfrom alleged conscientious motives to be sworn, it shall be' tion of the judge to any omission or insufficiency of the stamp;
and the document, if unstamped, or not sufficiently stamped, 38. Notice of appeal shall be a stay of execution, provided shall not be received in evidence until the whole or (as the bail to pay the sum recovered and costs, or to pay costs where case may be) the deficiency of the stamp duty, and the penalty the appellant was plaintiff below, be given, in like manner and required by statute, together with the additional penalty of 11., to the same amount as bail in error, within eight days after shall have been paid.
the decision complained of, or before execution delivered to 29. Such officer of the court shall, upon payment to him of the sheriff, the whole or (as the case may be) of the deficiency of the stamp 39. The appeal hereinbefore mentioned shall be upon a duty payable upon or in respect of such document, and of the case to be stated by the parties, (and in case of difference, to penalty required by statute, and of the additional penalty of be settled by the court or a judge of the court appealed from), il., give a receipt for the amount of the duty or deficiency in which case shall be set forth so much of the pleadings, which the judge shall determine to be payable, and also of the evidence, and the ruling or judgment objected to, as may be penalty, and thereupon such document shall be admissible in necessary to raise the question for the decision of the court of evidence, saving all just exceptions on other grounds; and an appeal. entry of the fact of such payment, and of the amount thereof, 40. When the appeal is from the refusal of the court below shall be made in a book kept by such officer ; and such officer to grant a rule to shew cause, and the court of appeal grant shall, at the end of each sittings or assizes, (as the case may such rule, such rule shall be argued and disposed of in the be), daly make a return to the Commissioners of the Inland court of appeal. Revenue of the monies, if any, which he has so received by way of duty or penalty, distinguishing between such monies, to have been given in the court below; and all such further
41. The court of appeal shall give such judgment as ought and stating the name of the cause and of the parties from proceedings may be taken thereupon as if the judgment had whom he received such monies, and the date, if any, and de- been given by the court in which the record originated. scription of the document, for the purpose of identifying the same; and he shall pay over the said monies to the Receiver
42. The court of appeal shall have power to adjudge payGeneral of the Inland Revenue, or to such person as the said ment of costs, and to order restitution ; and they shall have commissioners shall appoint or authorise to receive the same; the same powers as the court of error in respect of awarding and in case such officer sball neglect or refuse to furnish such process and otherwise. account, or to pay over any of the monies so received by him 43. Upon an award of a trial de novo by any one of the as aforesaid, he shall be liable to be proceeded against in the superior courts or by the court of error, upon matter appearmanner directed by the 8th section of the 13 & 14 Vict. (c. 97], ing upon the record, error may at once be brought ; and if the intituled " An Act to repeal certain Stamp Duties, and to judgment in such or any other case be affirmed in error, it grant others in lieu thereof, and to amend the Laws relating shall be lawful for the court of error to adjudge costs to the to the Stamp Duties;" and the said commissioners shall, upon defendant in error. request, and production of the receipt hereinbefore mentioned, 44. When a new trial is granted, on the ground that the cauze such documents to be stamped with the proper stamp verdict was against evidence, the costs of the first trial shall or stamps in respect of the sums so paid as aforesaid : pro- abide the event, unless the court shall otherwise order. vided always, that the aforesaid enactment shall not extend to 45. Upon motions founded upon affidavits it shall be lawful any document which cannot now be stamped after the execu- for either party, with leave of the court or a judge, to make tion thereof on payment of the duty and a penalty.
affidavits in answer to the affidavits of the opposite party, upon 30. No document made or required under the provisions of any new matter arising out of such affidavits, subject to all this act shall be liable to any stamp duty.
such rules as shall hereafter be made respecting such affidavits. 31. No new trial shall be granted by reason of the ruling of 46. Upon the hearing of any motion or summons it shall any judge that the stamp upon any document is sufficient, or be lawful for the court or judge, at their or his discretion, and that the document does not require a stamp.
upon such terms as they or he shall think reasonable, from time 32. Error may be brought upon a judgment upon a special to time to order such documents as they or he may think fit case iu the same manner as upon a judgment upon a special to be produced, and such witnesses as they or he may think verdict, unless the parties agree to the contrary; and the pro- necessary to appear, and be examined vivâ voce, either before ceedings for bringing a special case before the court of error such court or judge, or before the master, and upon hearing shall, as nearly as may be, be the same as in the case of a spe. such evidence, or reading the report of such master, to make cial verdict ; and the court of error shall either affirm the such rule or order as may be just. judgment or give the same judgment as ought to have been 47. The court or judge may by such rule or order, or any given in the court in which it was originally decided, the said subsequent rule or order, command the attendance of the witcourt of error being required to draw any inferences of fact nesses named therein, for the purpose of being examined, or the from the facts stated in such special case which the court production of any writings or other documents to be mentioned where it was originally decided ought to have drawn.
in such rule or order ; and such rule or order shall be pro. 33. In every rule nisi for a new trial, or to enter a verdict ceeded upon in the same manner, and shall have the same force or nonsuit, the grounds upon which such rule shall have been and effect, as a rule of the court under an act passed in the granted shall be shortly stated therein.
1 Will. 4, [c. 22), intituled “ An Act to enable Courts of Law 34. In all cases of rules to enter a verdict or nonsuit upon to order the Examination of Witnesses upon Interrogatories or a point reserved at the trial, if the rule to shew cause be refused otherwise ;' and it shall be lawful for the court, or judge, or or granted, and then discharged or made absolute, the party master to adjourn the examination from time to time, as occa. decided against may appeal.
sion may require ; and the proceedings upon such examination 35. In all cases of motions for a new trial upon the ground shall be conducted, and the depositions taken down, as nearly that the judge has not ruled according to law, if the rule to as may be, in the mode now in use with respect to the vivâ voce shew cause be refused, or, if granted, be then discharged or examination of witnesses under the last-mentioned act. made absolute, the party decided against may appeal, pro- 48. Any party to any civil action or other civil proceeding. vided any one of the judges dissent from the rule being re- in any of the superior courts, requiring the affidavit of a person fused, or, when granted, being discharged or made absolute, as who refuses to make an affidavit, may apply by summons for the case may be, or provided the court in its discretion think an order to such person to appear and be examined upon oath fit that an appeal should be allowed : provided, that where before a judge or master, to whom it may be most convenient the application for a new trial is upon matter of discretion to refer such examination, as to the matters concerning which only, as on the ground that the verdict was against the weight he has refused to make an affidavit ; and a judge may, if he of evidence or otherwise, no such appeal shall be allowed. think fit, make such order for the attendance of such person
36. The Court of Error, the Exchequer Chamber, and the before the person therein appointed to take such examination, House of Lords shall be courts of appeal for the purposes of for the purpose of being examined as aforesaid, and for the this act.
production of any writings or documents to be mentioned in 37. No appeal shall be allowed unless notice thereof be such order, and 'may therein impose such terms as to such given in writing to the opposite party or his attorney, and to examination, and the costs of the application and proceedings one of the masters of the court, within four days after the de- thereon, as he shall think just. çision complained of, or such further time as may be allowed 49. Such order shall be proceeded upon in like manner as by the court or a judge.
an order made under the hereinbefore-mentioned act passed in the 1 Will. 4, and the examination thereon shall be conducted, 56. It shall be lawful for every judge or master named in and the depositions taken down and returned, as nearly as any such rule or order as aforesaid for taking examinations may be, in the mode now used on vivâ voce examinations under this act, and he is hereby required, to make, if need be, under the said act of Parliament.
a special report to the court in which such proceedings are 50. Upon the application of either party to any cause or civil pending, touching such examination, and the conduct or absence proceeding in any of the superior courts, upon an affidavit by of any witness or other person thereon or relating thereto; and such party of his belief that any document, to the production the court is hereby authorised to institute such proceedings of which he is entitled for the purpose of discovery or other and make such order and orders upon such report as justice wise, is in the possession or power of the opposite party, it may require, and as may be instituted and made in any case of shall be lawful for the court or judge to order that the party contempt of the court. against whom such application is made, or if such party is a 57. The costs of every application for any rule or order to body corporate, that some officer to be named of such body be made for the examination of witnesses by virtue of this corporate, shall answer on affidavit, stating what documents he act, and of the rule or order and proceedings thereon, shall be or they has or have in his or their possession or power relating in the discretion of the court or judge by whom such rule or to the matters in dispute, or what he knows as to the custody order is made. they or any of them are in, and whether he or they objects or object (and if so, on what grounds) to the production of such
58. Either party shall be at liberty to apply to the court or as are in his or their possession or power ; and upon such affi.
a judge for a rule or order for the inspection by the jury, or by davit being made, the court or judge may make such further himself, or by his witnesses, of any real or personal property order thereon as shall be just.
the inspection of which may be material to the proper deter. 51. In all carises in any of the superior courts, by order of the court or a judge, if they or he think fit, to make such rule
mination of the question in dispute; and it shall be lawful for the court or a judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them by court or judge may direct : provided always, that nothing herein
or order, upon such terms as to costs and otherwise, as such leave of the court or a judge may, at any other time, deliver to contained shall affect the provisions of the Common-law the opposite party or his attorney (provided such party, if not Procedure Act, 1852, or any previous act, as to obtaining a a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any
view by a jury: provided also, that all rules and regulations matter as to which discovery may be sought, and require such the said last-mentioned act shall be held to apply to proceed.
now in force and applicable to the proceedings by view under party, or in the case of a body corporate any of the officers of ings for inspection by a jury under the provisions of this act, such body corporate, within ten days to answer the questions
or as near thereto as may be. in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause,
59. The several courts, or any judge thereof, may make all sufficiently to answer all questions as to which a discovery may
such rules or orders upon the sheriff or other person as may be be sought, within the above time, or such extended time as the necessary to procure the attendance of a special or common court or a judge shall allow, shall be deemed to have com- jury for the trial of any cause or matter depending in such mitted a contempt of the court, and shall be liable to be pro- courts, at such time and place and in such manner as they or ceeded against accordingly.
he may think fit. 52. The application for such order shall be made upon an
60. It shall be lawful for any creditor who has obtained a affidavit of the party proposing to interrogate, and his attorney judgment in any of the superior courts to apply to the court or agent, or, in the case of a body corporate, of their attorney or a judge for a rule or order that the judgment debtor should or agent, stating that the deponents or deponent believe or be orally examined as to any and what debts are owing to him believes that the party proposing to interrogate, whether plain before a master of the court, or such other person as the court tiff or defendant, will derive material benefit in the cause from or judge shall appoint; and the court or judge may make such the discovery which he seeks, that there is a good cause of rule or order for the examination of such judgment debtor, and action or defence upon the merits
, and, if the application be for the production of any books or documents, and the examade on the part of the defendant, that the discovery is not mination shall be conducted in the same manner as in the case sought for the purpose of delay : provided, that where it shall of an oral examination of an opposite party before a master happen, from unavoidable circumstances, that the plaintiff under this act. or defendant cannot join in such affidavit, the court or judge
61. It shall be lawful for a judge, upon the ex parte appli. may, if they or he think fit, upon affidavit of such circum. cation of such judgment creditor, either before or after such stances by which the party is prevented from so joining oral examination, and upon affidavit by himself or his attorney therein, allow and order that the interrogatories may be deli- stating that judgment has been recovered, and that it is stiil vered without such affidavit.
unsatisfied, and to what amount, and that any other person is 53. In case of omission, without just cause, to answer suf- indebted to the judgment debtor, and is within the jurisdiction, ficiently such written interrogatories, it shall be lawful for the to order that all debts owing or accruing from such third person court or a judge, at their or his discretion, to direct an oral (hereinafter called the garnishee) to the judgment debtor shall examination of the interrogated party, as to such points as be attached to answer the judgment debt; and by the same or they or he may direct, before a judge or master ; and the any subsequent order it may be ordered that the garnishee shall court or judge may by such rule or order, or any subsequent appear before the judge or a master of the court, as such judge rule or order, command the attendance of such party or par- shall appoint, to shew cause why he should not pay the judgties before the person appointed to take such examination, ment creditor the debt due from him to the judgment debtor, for the purpose of being orally examined as aforesaid, or the
or so much thereof as may be sufficient to satisfy the judgment production of any writings or other documents to be men
debt. tioned in such rule or order, and may impose therein such
62. Service of an order that debts due or accruing to the terms as to such examination, and the costs of the application, judgment debtor shall be attached, or notice thereof to the and of the proceedings thereon, and otherwise, as to such garnishee, in such manner as the judge shall direct, shall bind court or judge shall seem just.
such debts in his hands. 54. Such rule or order shall have the same force and 63. If the garnishee does not forthwith pay into court the effect, and may be proceeded upon in like manner, as an amount due from him to the judgment debtor, or an amount order made under the said hereinbefore-mentioned act passed equal to the judgment debt, and does not dispute the debt due in the 1 Will. 4.
or claimed to be due from him to the judgment debtor, or if he 55. Whenever, by virtue of this act, an examination of does not appear upon summons, then the judge may order any witness or witnesses has been taken before a judge of one execution to issue, and it may be sued forth accordingly, with. of the said superior courts, or before a master, the depositions out any previous writ or process, to levy the amount due from taken down by such examiner shall be returned to and kept such garnishee towards satisfaction of the judgment debt. in the master's office of the court in which the proceedings 64. If the garnishee disputes his liability, the judge, instead are pending; and office copies of such depositions may be of making an order that execution shall issue, may order that given out, and the depositions may be otherwise used, in the the judgment creditor shall be at liberty to proceed against the same manner as in the case of depositions taken under the garnishee by writ, calling upon him to shew cause why there hereinbefore-mentioned act passed in the 1 Will. [c. 22). should not be execution against him for the alleged debt, or
for the amount due to the judgment debtor, if less than the but time may be allowed to return it, by the court or a judge, judgment debt, and for costs of suit; and the proceedings either with or without terms. upon such suit shall be the same, as nearly as may be, as upon 77. The provisions of the Common-law Procedure Act, a writ of revivor issued under the Common-law Procedure Act, 1852, and of this act, so far as they are applicable, shall apply 1852.
to the pleadings and proceedings upon a prerogative writ of 65. Payment made by or execution levied upon the gar- mandamus issued by the Court of Queen's Bench. nishee under any such proceeding as aforesaid shall be a valid 78. The court or a judge shall have power, if they or he discharge to him as against the judgment debtor to the amount see fit so to do, upon the application of the plaintiff in any paid or levied, although such proceeding may be set aside action for the detention of any chattel, to order that execution or the judgment reversed.
sball issue for the return of the chattel detained, without giving 66. In each of the superior courts there shall be kept at the the defendant the option of retaining such chattel upon paying master's office a debt attachment book, and in such book entries the value assessed, and that if the said chattel cannot be found, shall be made of the attachment and proceedings thereon, with and unless the court or a judge should otherwise order, the names, dates, and statements of the amount recovered, and sheriff shall distrain the defendant by all bis lands and chattels otherwise ; and the mode of keeping such books shall be the in the said sheriff's bailiwick, till the defendant render such same in all the courts; and copies of any entries made therein chattel, or, at the option of the plaintiff, that he cause to may be taken by any person, upon application to any master. be made of the defendant's goods the assessed value of such
67. The costs of any application for an attachment of debt chattel : provided that the plaintiff shall, either by the same or under this act, and of any proceedings arising from or inci. a separate writ of execution, be entitled to have made of the dental to such application, shall be in the discretion of the defendant's goods the damages, costs, and interest in such court or a judge.
action. 68. The plaintiff in any action in any of the superior courts,
79. In all cases of breach of contract or other injury, where except replevin and ejectment, may indorse upon the writ and the party injured is entitled to maintain and has brought an copy to be served a notice that the plaintiff intends to claim a action, he may, in like case and manner as hereinbefore prowrit of mandamus, and the plaintiff may thereupon claim in vided with respect to mandamus, claim a writ of injunction the declaration, either together with any other demand which against the repetition or continuance of such breach of conmay now be enforced in such action, or separately, a writ of tract or other injury, or the committal of any breach of conmandamus commanding the defendant to fulál any duty in the tract or injury of a like kind, arising out of the same contract, fulfilment of which the plaintiff is personally interested.
or relating to the same property or right; and he may also in 69. The declaration in such action shall set forth sufficient the same action include a claim for damages or other redress. grounds upon which such claim is founded, and shall set forth
80. The writ of summons in such action shall be in the that the plaintiff is personally interested therein, and that he same form as the writ of summons in any personal action, but sustains or may sustain damage by the non-performance of on every such writ and copy thereof there shall be indorsed a such duty, and that performance thereof has been demanded notice, that in default of appearance the plaintiff may, besides by him, and refused or neglected.
proceeding to judgment and execution for damages and costs, 70. The pleadings and other proceedings in any action in apply for and obtain a writ of injunction. which a writ of mandamus is claimed shall be the same in all
81. The proceedings in such action shall be the same, as respects, as nearly as may be, and costs shall be recoverable nearly as may be, and subject to the like control, as the proby either party, as in an ordinary action for the recovery of ceedings in an action to obtain a mandamus under the providamages.
sions hereinbefore contained ; and in such action judgment may 71. In case judgment shall be given to the plaintiff that a
be given that the writ of injunction do or do not issue, as jusmandamus do issue, it shall be lawful for the court in which junction may be enforced by attachment by the court, or, when
tice may require ; and in case of disobedience, such writ of insuch judgment is given, if it shall see fit, besides issuing ere- such courts shall not be sitting, by a judge. cution in the ordinary way for the costs and damages, also to issue a peremptory writ of mandamus to the defendant, com
82. It shall be lawful for the plaintiff at any time after the manding him forthwith to perform the duty to be enforced.
commencement of the action, and whether before or after 72. The writ need not recite the declaration or other pro- of injunction to restrain the defendant in such action from the
judgment, to apply ex parte to the court or a judge for a writ ceedings, or the matter therein stated, but shall simply co mand the performance of the duty, and in other respects shall repetition or continuance of the wrongful act or breach of conbe in the form of an ordinary writ of execution, except that it or injury of a like kind, arising out of the same contract, or
tract complained of, or the committal of any breach of contract shall be directed to the party and not to the sheriff, and may relating to the same property or right; and such writ may be be issued in term or vacation, and returnable forthwith; and granted or denied by the court or judge upon such terms, as to no return thereto, except that of compliance, shall be allowed, the duration of the writ, keeping an account, giving security, but time to return it may, upon sufficient grounds, be allowed or otherwise, as to such court or judge shall seem reasonable by the court or a judge, either with or without terms.
and just; and in case of disobedience, such writ may be en73. The writ of mandamus so issued as aforesaid shall have forced by attachment by the court, or, when such courts shall the same force and effect as a peremptory writ of mandamus not be sitting, by a judge: provided always, that any order for issued out of the Court of Queen's Bench, and in case of dis- a writ of injunction made by a judge, or any writ issued by obedience may be enforced by attachment.
virtue thereof, may be discharged or varied or set aside by the 74. The court may, upon application by the plaintiff, be court, on application made thereto by any party dissatisfied sides or instead of proceeding against the disobedient party by with such order. attachment, direct that the act required to be done may be 83. It shall be lawful for the defendant or plaintiff in redone by the plaintiff, or some other person appointed by the plevin in any cause in any of the superior courts in which, if court, at the expense of the defendant; and upon the act being judgment were obtained, he would be entitled to relief against done, the amount of such expense may be ascertained by the such judgment on equitable grounds, to plead the facts woich court, either by writ of inquiry or reference to a master, as entitle him to such relief by way of defence, and the said the court or a judge may order; and the court may order pay- courts are hereby empowered to receive such defence by way ment of the amount of such expenses and costs, and enforce of plea: provided that such plea shall begin with the words, payment thereof by execution.
“For defence on equitable grounds," or words to the like 75. Nothing herein contained shall take away the jurisdic- effect. tion of the Court of Queen's Bench to grant writs of man- 84. Any such matter which, if it arose before or during the damus ; nor shall any writ of mandamus issued out of that time for pleading, would be an answer to the action by way of court be invalid by reason of the right of the prosecutor to plea, may, if it arise after the lapse of the period during proceed by action for mandamus under this act.
which it could be pleaded, be set up by way of auditâ querela. 76. Upon application by motion for any writ of mandamus 85. The plaintiff may reply, in answer to any plea of the in the Court of Queen's Bench, the rule may in all cases be defendant, facts which avoid such plea upon equitable grounds: absolute in the first instance, if the court shall think fit; and provided that such replication shall begin within the words, the writ may bear teste on the day of its issuing, and may be "For replication on equitable grounds," or words to the like made returnable forthwith, whether in term or in vacation, effect.