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.
Setting down XXV. It is further ordered, That where after the written Causes for Trial. pleadings in any suit or action are closed, the facts therein stated, whether dependent upon documentary evidence or otherwise, 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 At- tornies, 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.
Notice of Trial.
Countermanding notice of Trial.
Witnesses-Sub-
pana.
XXVI. It is further ordered, 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.
XXVII. It is further ordered, That the party giving notice of trial may, at any time before the day of trial, countermand the said notice, upon payment of the costs, if any incurred, by his giving such notice and countermand; such costs to be taxed by the Registrar.
XXVIII. It is further ordered, That either party desiring the attendance of any person to give evidence on the trial of a cause, may take out, from the office of the Registrar of the Court, one or more writs of subpæna for that purpose, each of which said writs of subpæna may contain the name of four persons; and service thereof upon any person therein named shall be made by delivering to him a copy of the said writ of subpoena, and at the same time shewing him the original, and informing him of the exigency thereof; and any person being so served with a copy of the said writ of subpœna 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
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 No. 3.
XXIX. It is further ordered, That if any witness shall have in his possession or control, any deed, instrument, or writing, which the party requiring his attendance is desirous to give in evidence, then the said writ of subpæna shall be in the form in the schedule hereunto annexed, marked No. 4.
Subpæna duces
tecum.
esse.
XXX. It is further ordered, That when the testimony of Examination of any witness is in danger of being lost, before the matter to witnesses de bene which it relates can be made the subject of judicial in- vestigation, either party desiring his testimony may 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 such witness may be forthwith examined de bene esse, or conditionally, either before the Court, or before a commis- sioner 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.
Execution of
XXXI. It is further ordered, That the party in whose favour any final judgment, decree, or sentence of the said Judgments, &c. Court, in any civil suit or action, has been pronounced or given, 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 C
costs
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