esse.
of
attendance is desirous to give in evidence. then the sand writ of subpœna shall be in the form in the schedule hereunto annexed, marked (No. 6.)
Examination
58. And be it further enacted and ordained, That when the testimony of any witnesses de bene esse is in danger of being lost, before the matter to which it relates can be made the subject of judicial investigation, either party desiring his testimony shall apply in term time to the Court, on motion, or in vacation, upon affidavit, to the Chief Justice, at chambers, setting forth the particular circumstances under which the same is made, that the said witness may be forthwith examined de bene esse, or conditionally, either before the Court, or before a commissioner to be appointed by the said Court for that purpose, according as such witness resides near to, or at a distance from Victoria; and the said Court, or Chief Justice, will thereupon make such order as the justice of the case may require.
Allowance of expenses and compensation to witnesses.
of
59.—And be it further enacted and ordained. That it shall and may be lawful to and for the said Supreme Court, in all proceedings therein, whether of a civil or criminal nature, to order and allow to all persons examined as witnesses in any such proceedings, such sum or sums of money as to the said Court shall seem fit as well for defraying the reasonable expenses of such witnesses, as for affording them a reasonable compensation for their loss of time.
Punishment
60. And be it further enacted and ordained, That if any person served with a subpoena to attend the said Court as a witness in any suit or action therein, or upon the trial of any indictment or information, shall refuse or neglect to attend the said Court pursuant to such Subpoena, or if any person shall be guilty of any contempt before the said Court, it shall be lawful for the said Court to punish any such person in a summary way, by fine, not exceeding One hundred Dollars, or by imprisonment for any time not exceeding two calendar months: Provided, that nothing herein contained shall affect or abridge the right of any Plaintiff or Defendant to proceed against any party for not appearing pursuant to his Subpoena, for the recovery of any special damage such Plaintiff or Defendant may have sustained by reason of the disobedience of any such party.
Perjury.
Court may order money to be paid by instalments,
Execution of Judgments, &c.
61.—And be it further enacted and ordained, That if in any suit or action, or in any proceeding connected therewith it shall appear to the Chief Justice of the said Supreme Court, that any person examined as a witness upon oath, or, if a Quaker, on affirmation, has committed wilful and corrupt perjury, or that any person in swearing or affirming, in any affidavit or affirmation required to be made before the said Chief Justice, has been guilty of the like offence, then, and in each and every such case, it shall and may be lawful for the said Chief Justice to direct a prosecution for perjury to be forthwith instituted against any such person so falsely swearing or affirming as aforesaid, in order that he or she may be punished according to law; or, where such perjury is committed by any person examined as a witness in open Court, it shall be lawful for the said Chief Justice, instead of directing such prosecution to be instituted as aforesaid, either to commit such witness, as for a contempt of the Court, to the prison of the said Court, for any time not exceeding two calendar months, or to fine such witness in any sum not exceeding One hundred Dollars: Provided, that where any person examined as a witness, or making any statement in the nature of an affidavit, shall be of Chinese origin or extraction, the powers hereinbefore given shall be in full force and operation, although no oath shall have been administered to such witness or person making such statement as aforesaid, or, if administered, notwithstanding any irregularity or want of form in the administration thereof.
62.—And be it further enacted and ordained, That it shall be lawful for the said Supreme Court to order and adjudge any sum of money recovered therein, in any action or suit whatsoever, to be paid at such time, or intervals of time, and in such portions, or instalments, as the circumstances of the case may render just and expedient: Provided, that the time within which any such sum of money shall be made payable, whether by instalments or otherwise, shall in no case, except with the consent of the Plaintiff, exceed six months from the time of making such order and adjudication as aforesaid; Provided also, that where the money so recovered shall be ordered to be paid by instalments, if the Defendant shall make default in payment of any of such instalments, the whole of the instalments then remaining unpaid shall become due, and the Plaintiff shall be at liberty to proceed for the recovery thereof, together with all costs, in the same manner as if no such order as aforesaid had been made.
63.—And be it further enacted and ordained, That the party in whose favour any final judgment, decree, or sentence of the said Court, in any civil suit or action, has been pronounced or given, where, by law, or by this Ordinance, there can be no appeal to Her Majesty in Council, or where, there being such right of appeal, no petition for leave to appeal is lodged within the time appointed for so doing, may, at his own risk, and without any leave for that purpose, sue out of the office of the Registrar of the said Court one or more writs, or processes for the execution thereof: Provided that no such writ or process shall issue against the immoveable property of any person, to raise any sum of money, debt, or damages, by the sale thereof, (except where by sentence of the Court such immoveable property may be declared to be specially liable to sale,) until any writ or process, which may have been issued against his moveable property, shall be first returned, and the Court shall perceive thereby that the said person has not sufficient moveable property to satisfy the exigency of the said writ or process; or, if no such writ or process shall have been issued, then until upon motion to the said Court for that purpose made, it shall appear to the satisfaction of the said Court, that the person, against whose immoveable property such writ or process is desired, has no moveable property which can be taken in execution of the sentence of the said Court, or not sufficient to satisfy the same: and no writ or process of execution shall issue for the levying and raising of any costs awarded by the said Court to any party, until the same shall have been taxed by the Registrar of the said Court; and, for that purpose, the Plaintiff or Defendant, or Attorney of the party obtaining any appointment for taxation from the Registrar, shall give due notice to the opposite party of such appointment, in order that he may be present thereat and the Registrar shall, in his taxation and allowances, pursue such instructions as shall from time to time be given to him by the Court for that purpose; and either party, feeling aggrieved by his decision, may apply to the Court, on motion, specifying the Items, charges, or allowances objected to, that the said Registrar may review his taxation.
&C.
64.—And be it further enacted and ordained, That the judgments, decrees, and orders of the said Chief Justice, shall be carried into execution in any district, or place, whatsoever within the said Colony and its Dependencies, where the Defendant, his goods or chattels, may be found or be met with.
Colony.
65.—Provided always, and be it further enacted and ordained, That no writ of execution against the goods, chattels, and effects of the Defendant, shall be executed at any time after sunset, nor before sunrise, and if any officer or person shall execute any such writ after sunset, or before sunrise, such officer or other person shall be subject and liable to a fine of not exceeding Fifty Dollars, which shall be set by the Chief Justice of the said Court, and enforced by distress and sale of the offender's goods.
66.—And be it further enacted and ordained, That all motions, or special applications to the Court, shall be supported by affidavits of the facts or circumstances upon which the same are made, which affidavits shall be sworn before the Chief Justice, or a Commissioner of the said Court.
MOTIONS.
67.—And be it further enacted and ordained, That all memorials, petitions, and special applications to the Court, shall be brought before the Court by motion, in manner appointed for motions by the Sixty-sixth section of this Ordinance; and all such memorials, petitions, or applications, shall be delivered to the Registrar, at his office, the day before the same are moved in Court, and the Registrar shall make a roll thereof, and call on the same in order; and no such memorials, petitions, or applications, shall be sent to the Chief Justice of the said Court.
68.—And be it further enacted and ordained, That the Governor, in his Executive Council, shall constitute and be a Court of Error and Appeal, to whom it shall be lawful for any party to appeal by writ of error, or petition, from any decision, decree, or order of the said Supreme Court, in all matters of Law and Equity, where the matter in dispute shall amount to the sum of One thousand five hundred Dollars, but not otherwise: Provided, that no such writ of error, or petition, shall be allowed after the expiration of fourteen days next after the decision, decree, or order of the said Supreme Court shall have been pronounced,
69.—And be it enacted and ordained, That any person or persons may appeal to Her Majesty, her Heirs, and Successors, in Council, from any judgment, decree, order, or sentence of the said Supreme Court, or of the said Court of Error, in such manner, within such time, and under and subject to such Rules, Regulations, and Limitations, as are hereinafter mentioned, that is to say, in case any judgment, decree, order, or sentence, shall be given or pronounced for, or in respect of, any sum or matter at issue above the amount or value of five thousand lawful current dollars of Hongkong, or in case such judgment, decree, order, or sentence, shall involve directly or indirectly, any claim, demand, or question to, or respecting property, or any civil right amounting to, or of the value of five thousand such dollars as aforesaid, (save and except where the matter in dispute shall relate to the taking or demanding of any duty payable to Her Majesty, or to any fee of office, or to any other matter or thing in which the Crown has an interest, or where rights in future may be bound, or to any general right or duty, in any of which cases an appeal shall lie, notwithstanding the value of the matter or thing in dispute shall not amount to Five thousand dollars,) the person or persons feeling aggrieved by any such judgment, decree, order, or sentence, may, within one calendar month next after the same shall have been pronounced, made, or given, apply to the said Court, by petition, for leave to appeal therefrom to Her Majesty, her Heirs, and Successors, in Council; and in case such leave to appeal shall be prayed by the party or parties, who is
WRIT OF ERROR
APPEAL.
130