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CHAPTER VII.
PRELIMINARIES OF TRIAL-JURIES,
Setting down of Cause for Hearing.
XLVIII. No cause can be set down for hearing without order of the Court first S. R. 60, 61-63.
obtained.
2. At the expiration of the time allowed for answering, the plaintiff may apply ex parte for an order to set down the cause for hearing.
3. An order to set down the cause may be made on the application of the defendant by summons, if it appears to the Court, having regard to the state of the pleadings, that the cause is ready to be heard, and that there has been delay on the part of the plaintiff in obtaining an order for setting down the cause, for which the plaintiff has no reasonable excuse, (as the absence or illness of a material witness,) and that the defendant is prejudiced or may reasonably be expected to be prejudiced by such delay.
Dismissal for Want of Prosecution.
XLIX. Where the plaintiff does not obtain an order for setting down the cause within one month from the time at which he might first apply for such an order, the defendant may apply by motion for an order to dismiss the petition for want of prosecution.
2. On such application, the Court may, if it thinks fit, make an order dismissing the petition, or make such other order, or impose such terms as the Court thinks just and reasonable.
Postponement of Hearing.
S. R. 64.
L. The Court may at any time on a summons taken out by any party, postpone S. R. 65. the hearing of a cause set down, on being satisfied by evidence on oath that the post- ponement will have the effect of better ensuring the hearing and determination of the questions between the parties on the merits.
2. Where such an Application is made on the ground of the absence of a witness, the Court shall require to be satisfied that his evidence is material and that he is likely to return and give evidence within a reasonable time.
3. Where such an application is made for the purpose of enabling the party applying to obtain the evidence of a witness resident out of the jurisdiction, the Court shall require to be satisfied that the evidence of the witness is material, and that he is permanently residing out of the jurisdiction, or does not intend to come within the jurisdiction within a reasonable time. The party making such application must also apply for an order for the examination of such witness out of the jurisdiction, or for leave to use an affidavit to be made by such witness as evidence at the hearing.
Hearing List and Hearing Paper.
LI. There shall be kept a general hearing list for causes and a hearing paper. 2. When a cause is set down for hearing it shall be placed in the general hearing list, and shall be transferred to the hearing paper strictly in its turn and order, according as the general hearing list become exhausted.
3 The regular order shall in no case be departed from without special direction. 4. When a cause is about to be transferred from the general hearing list to the hearing paper, notice shall be served on the parties and unless the Court in any particular case direct otherwise, ten days shall be allowed between service of such notice and the day of hearing.
5. When any cause or matter has been specially directed by the Court to be heard on a particular day, or out of its ordinary turn, the name of the cause or matter shall be placed in the hearing paper with the words "by order” subjoined.
3. R. 71-74.
R. J. C. 13.
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6. In case of any adjournment of the hearing from the day appointed in the hearing paper by reason of the preceding causes in the hearing paper not having been got through, or under any order of the Court made during the sitting on that day, no further notice to either party of the adjournment day shall be requisite; and the adjournment day shall, unless otherwise ordered by the Court, be the next ordinary Court day,
Sittings of Court.
LII. The sittings of the Court for the hearing of causes shall be, where the amount of the business so warrants, held on fixed and stated days.
2. The Court may, at its discretion, appoint any other day or days from time to time for the hearing of causes, as circumstances require.
3. The sittings of the Court for the hearing of causes shall ordinarily be public; but the Court may, for a reason to be specified by it on the minutes, hear any particular cause or matter in the presence only of the parties and their legal advisers and the Officers of the Court.
4. Subject to special arrangements for any particular day, the business of the day shall be taken as nearly as circumstances permit in the following order:-
(a.) At the commencement of the sitting, judgments shall be delivered in matters standing over for that purpose and appearing for judgment in the paper; (b.) Ex parte motion and motions by consent shall next be taken, in the order in
which the motion-papers have been sent in;
(e.) Opposed motions on notice, and arguments on showing cause against orders returnable on that day, shall then be taken, in the order in which these matters respectively stand in the hearing paper;
(d.) The causes in the hearing paper shall then be called on, in their order,
unless the Court sees fit to vary the order.
Juries.
LIII. All suits shall be determined by the Court without a jury, unless the Court S. R. 81-89. shall otherwise direct of its own motion or or the application of either party.
2. Notice of application for a jury, must be filed seven days at least before the day of hearing.
R. J. C. 14.
S. R. C6-70.
S. R. 90.
3. Where notice of application for a jury has not been filed in due time, or if at the hearing both parties desire a jury, the Court may, on such terms as seem just, adjourn the hearing, in order that a jury may be summoned.
CHAPTER VIII,
EVIDENCE AT THE HEARING.
Oral Examination.
LIV. The evidence at the hearing of a suit shall, as a general rule, be by oral examination in open Court, according to the rules of evidence now in force in the Colony, so far as the saine are not inodified by this Code; but the Court shall have power to direct that the evidence in any case, or as to any particular matter at issue, should be taken by affidavit, or that affidavits of any witnesses may be read at the trial: Provided always that every witness making an affidavit so received shall be liable to cross- examination in open Court, unless the Court shall direct the cross-examination to take place in any other manner.
2. The Court may, in its discretion, if the interest of justice appear absolutely so to require (for reasons to be recorded in the minutes of proceedings), admit an affidavit in evidence although it is shown that the party against whom the affidavit is offered in evidence has had or will have no opportunity of cross-examining the person making the affidavit, on such terms, if any, as seem just.
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