Setting down
Causes Trial.
the Court, a written statement of the matters and points of law intended to be argued.
XXV. That where, after the written pleadings in any for 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, contain- ing the names of the Parties, their Counsel, and Attorneys, 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 noglect to do so within the term next after that in which issue is joined.
Notice of Trial.
XXVI. That notice of trial shall be given by the party setting down the cause, to his opponent, seven days pre- vious to the day of trial; but where it shall be made to appear to the Court, or to the Chief Justice or other Judge 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 or other Judge, to grant such further time for the trial of the said cause as shall seem reasonable and proper. XXVII. That the party giving notice of trial may, at ing notice of any time before the day of trial, counterinand the said notice, upon payment of the costs, if any incurred, by his riving such notice and counterman; such costs to be taxed by the Registrar.
Countermand-
Trial.
Witnesses - Subpa ne.
Halpana duces
TOGUIN
Examination
XXVIII. 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 subpera for that purpose, each of which said writs of subpang may contain the names 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 subpana, and at the same time shewing hin the original, and informing him of the oxigency thereof; and any person being so served with a copy of the said writ of subpone a reasonable time before the day of trini, 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 pre- judice 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 subporne shall, as near as may be, be in the form in the schedule hereunto annexed, marked No. 3.
XXIX. 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 evi- dence, then the said writ of subyang shall be in the form in the schedule hereunto annexed, marked No. 4.
XXX. That when the testimony of any witness is in of witnesses de danger of being lost before the matter to which it relates bene eye. can be made the subject of judicial investigation, either party desiring his testimony may apply in term time to the Court on motion, or in vacation, upon affidavit to the Chief Justice or other Judge 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 be- fore 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, or other Judge, will thereupou make such order as the justice of the case may require.
Execution of
XXXI. That the party in whose favour any final judg Julgments & ment, decree, or sentence of the said 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 of t
of the office of the Registrar of the said Court one or more writs or processcs for the execution thereof: Provided, that no such writ or process shall issue against the immo- veable 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 movible property to satisfy the exigency of the said writ or process; or if no such writ or process shall have been issued, then until mupon 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 pro- perty such writ or process is desired, has no moveable pro- perty which can be taken in execution of the sentence of the said Court, or not sufficient to satisfy the sane: 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 Regis- trar 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 therent; and the Registrar shall, in his taxation and allowances, be guided according to the practice of the Courts in England in such cases and according to the table of fees hereunto annexed; 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.
XXXII. That the judgments, decrees, and orders of Judgments, &c. the said Court, shall be carried into execution in any may be excent- district or place whatsoever within the said Colony and its ed anywhere Dependencies, where the Defendant, his goods or chattels, within the Co-
lony. may be found or be met with: Provided that no writ of
Levy on de- execution against the goods, chattels, and effects of the fendant's goods Defendant, shall be executed at any time after sunset, to be made be- nor before sunrise; and if any officer or person shall tween sunrise 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 aid Court, and enforced by distress and sale of the offen- der's goods.
and sunset.
Motions.
XXXIII. 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 affi- davits shall be sworn before a Judge or Commissioner of the said Court); and that all memorials and petitions shall Memorials, &c.
be brought before the Court upon motion, and 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 memorial or petition shall be sent to any Judge of the said Court, except by special permission.
3. PROCEEDINGS IN FORMA PAUPERIS, XXXIV, That any poor person, before commencing
Right to sue defend in
or defending any action or suit in the said Court in his or
wn right, or becoming poor during the progress thereof, forma Paupe- may apply to the Court on motion for leave to sue or ris. defend as a Pauper, which motion shall be supported an affidavit of the party so applying, and of two house- holders living in his neighbourhood, that he is not possessed
of property to the amount of Fifty Dollars in value, ex- cepting wearing apparel and the matter or thing claimed by him in the action or suit if he be Plaintiff, and there- upon it shall be referred to a Barrister of the said Court, or such other person as the Court shall appoint, to con- sider the said case; and upon the party so applying pro-
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DEXA
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