CO129-007 - Sir John Davis - 1844 — Page 132

4

Time of Pleading.

the name and description of the party suing, and the right in which he sues; the name of the Defendant, and the right in which he is sued; the nature, extent, andgrounds of the cause of action, complaint, or demand, and such conclusions as, according to the form of each particular suit, or action, the Plaintiff shall by law be entitled to deduce therefrom; and if any argumentative or irrelevant inatter he stated in the declaration, or claim, the same being shown to the Court shall be struck out of the declaration or claim, with or without the payinent of costs, as the Court shall direct.

42. And be it further enacted and ordained, That in all cases where the Defendaut has appeared he shall plead, or answer, within eight days next after the filing of the Plaintiff's declaration or claim, and notice thereof served on the said Defendant or bis Attorney (unless upon application to the court, or to the Chief Justice at chambers, further time be granted to the Defendant for that purpose): Provided due notice to plead has been given to the Defendant, and provided also, that a written demand of plea, has been served by the Plaintiff or his Allomney on the opposite party after the expiration of the said eight days, and twenty four hours have elapsed after the service of the said demand; in default whereof the Defendant shall be barred from pleading or answering thereto, and the Plaintiff shall be at liberty to sign judgment: Requisites of ples, and in case the said Defendaut shall, within the time hereby limited, plead to the said declaration, he shall in his plea either admit, deuy, or confess and avoid, all the material facts alleged in the declaration or claim of the said Plaintiff, and shall clearly aud concisely state and set forth the same; and if any argumentative or irrelevant matter be stated in the said plea, the same being shown to the Court, shall be struck out of the plea, with or without payment of costs, as the Court shall direct. Declaration to be 43. And be it further enacted and ordained, That in all suits and actions where filed in Registrar's the Defendant, having been served with a copy of the writ or process therein, has not office if defendant appeared within the time prescribed by the same, the declaration or claim shall be filed do not appear.

by the Plaintiff or his Attorney in the office of the Registrar of the Court, having endorsed thereon “Filed for default of appearance, G. H Plaintiff's Attorney, No. Street, Victoria," or "A. B. of

Plaintiff," and a copy of the said

Within what time Plaintiff to Reply.

declaration or claim shall be served upon the said Defendant, or, in case he cannot be found, shall be left at his dwelling house or place of abode, together with a notice in writing subj ined thereto, and signed by the Plaintiff or his Attorney, and containing his address, informing the Defendant that the said declaration or claim has been filed by the Plaintiff on his default; and also containing a notice that the Defendant must plead, or answer thereto, within eight days after such service; and that in default thereof he will be debarred from pleading or answering thereto.

44-And be it further enacted and ordained, That the Plaintiff shail be at liberty, after the filing of the plea, answer, or demurrer, of the Defendant, forthwith to reply thereto, and shall be obliged to reply or answer thereto within eight days after the filing and notice thereof, unless upon application to the Court, or to the Chief Justice thereof at chambers, farther time be given to him for that purpose; and in d fault thereof, and after the expiration of twenty-four hours after a written demand of replication has been made and served by the Defendant or his Attorney, the Plaintiff shall be barred from replying or answering thereto, and the Defendant shall be at liberty to sign judgment of non, pros, in 45.-And be it further enacted and ordained, That if the replication of the -aid what cases and with- Plaintiff shall contain any new matter, the Defendant shall be allowed to rejoin to the in what time.

said replication, but not otherwise, unless with leave of the Court, or Chief Justice at chambers, for that purpose given; and sach rejoinder of the Defendant shall be filed, and notice thereof given, within eight days after the filing and notice of the replvation or auswer of the Plaintiff'; uoles upon application to the Court, or to the Chief Justice thereof, further time he given for that purpose; and in default thereof, and after the expiration of twenty four hours after a written demand thereof, the Defendant shall be barred from rejoining thereto, and the Plaintiff shall be at liberty to sign judment.

Rejoinder:

Judgment against 46. And be it further enacted and ordained, That whenever it shall happen that the plaintiff for not the Plaintiff, by his default, shall be barred from declaring or making claim, and that proceeding in the the Defendant, by reason of such default, shall be at liberty to sign Judgment against him for not proceeding in the said cause, such judgment shall be signed and entered in a book kept by the Registrar for that purpose: and thereupon the said Defendant shall proceed to tax the costs of the said cause against the Plaintiff.

cause.

medied.

Consequences of

47.-And be it further enacted and ordained, That whenever either party in the default and how re- cause shall, by his default, be barred from declaring or making claim pleading, answer- ing, replying, or joining, as the case may be, the pleadings therein shall be considered as closed: Provi led, however, that the party in default may, at any time before final judgment, by order of the Chief Justice of the said Court, purge his said default, and be admitted to d clare or make claim, plead, answer, reply, or rejoin, upon an affidavit of merits and other sufficient grounds, to the satisfaction of the said Chief Justice, upon such terms as the said Chief Justice shall impose.

Time to declare,

49.--And be it further en sted and ordained, That either party may, upon applica- tion to the Chief Justice of the said Court at chambers, obtain time to declare, or make or plead, &c., how claim, plead, answer, reply. or rejoin, or an order to amend the pleadings, or schedule obtained. thereto ammexed respectivele, upon sufficient cause shown to the satisfaction of the said Chief Justice, and upon such terms as he shall impose.

Pleadings to be

time of filing plead-

49 --And he it further enacted and ordained, That all pleadings, in any civil case, shall be signed by a Barrister, and filed with the Registrar of the said Court, within the signed by Counsel, office hours, on the day on which the same should, by any rule or practice of the said ings. Court,be filed, and either party in the cause may, at all reasonable times, search for such pleadings, and ask for, and obtain copies of the same, at his own expense.

Schedule of do.

50. And be it further enacted and ordained, That there shall be annexed to the de claration and pleadings, in every civil cause, a schedule of all documents or papers which cumentary evidence the Plaintiff and Defendant respectively propose to give in evidence upon the trial of the to be annexed to said cause, and inspection and copies of all such documents and papers shall be given, if pleadings. in the possession, or under the control, of either of the parties respectively, to the opposite party, or his Attorney, upou his request, and at his expense.

Setting aside pro-

51.And be it further enacted and ordained, That where any proceeding in a cause has beu irregular or improper, it shall be competent to the party complaining of the ceedings for Irregu- irregularity, before taking any further step therein, to apply to the Court, in term time, larity.

to set aside such proceeding, by a motion for a rule of Court, calling upon the o, posite party to show cause why the same should not be set aside for irregularit; and the Court, upon service of such rule, shall make such further order therein as shall seem fit.

52,-Aid he it further enacted and ordained, That where after the write a plead Setting down Cases ings in any suit or action are closed, and, the facts there. stated being admitted the for Argument. faw arising therefrom only is disputed, either party may set down the case for hearing

in the paper of cases for argument, upon giving seven days notice thereof to his opponent provinas to the day for argument; and for that purpose shall give a note thereof to the Registrar of the Court, containing the names of the Parties, their Counsel, and Attornies, four days at least before the day appointed for argument, and shall at the same time. deposit with the said Registrar, for the use of the Court, a written statement of the matters and points of law intended to be argued.

58.--And be it further enacted and ordained, That where after the written plead. Setting down Causes ings in any suit or action are closed, the facts therein stated, whether dependent upon for Trial. documentary evidence, or othervise, as well as the law applicable thereto, or the facts alone, are disputed, the Plaintiff may forthwith set down the cause in the paper of causes for trial; and for that purpose shall give a note thereof to the Registrar of the court, containing the names of the Parties, their Counsel and Attornies, four days at least before the day appointed for Trial: and in like manner the Defendant may set down the cause for trial, if the Plaintiff shall neglect to do so within the term next after that in which issue is joined.

54. And be it further enacted and ordained. That notice of trial shall be given by the party setting down the cause, to his opponent, seven days previous to the day of trial; but where it shall be made to appear to the Court, or to the Chief Justice thereof at chambers, upon the application of either party, that the witnesses in the said cause, or any of them, reside out of, or are absent from the said Colony, then it shall be lawful for the said Court, or for the said Chief Justice, to grant such further time for the trial of the said cause, as shall seem reasonable and proper.

Notice of trial.

Countermanding

55.-And be it further enacted and ordained, That the party giving notice of trial may, at any time before the day of trial, countèrmand the said notice, upon payment of notice of trial. the costs, if any, incurred by his giving such notice and countermand; such costs to be taxed by the Registrar.

WITNESSES--Sub-

56. And be it further enacted and ordained. That either party desiring the at- tendance of any person to give evidence on the trial of a cause, may, of right, without pœno, any prior proceeding whatsoever, take out from the office of the Registrar of the Court, one or more writs of subpœna for that purpose; each of which said writs of subpœna may contain the name of four persons, and service thereof upon any person therein nained, shall be made by delivering to him a copy of the said writ of subpœna, and at the same time showing him the original, aud informing him of the exigency thereof; and any person being so served with a copy of the said writ of subpo ia, a reasonable time before the day of trial, and his reasonable expenses having been paid, or tendered to him, and not having any lawful impediment, shall on his default, be liable to be attached, fined, and imprisoned, for his contempt of the process of the Court, without prejudice to any other claim or remedy the party aggrieved by his default may, by law, have against him on that account: and the said writ of subpoena shall, as near as may be, be in the form in the schedule hereunto annexed, marked (N°. 5.)

57. And be it further enacted and ordained, That if any witness shall have in his Subpana duces possession or control, any deed, instrument, or writing, which the party requiring his tecum.

129