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determination of the suit, may make an order on the plaintiff to show cause why a day should not be fixed for the peremptory hearing of the cause; and on the return to that order, if no cause or no sufficient cause be shown, the Court shall fix a day accordingly, upon such notice and other terms as seem just.
9. In case the plaintiff does not attend on the day so fixed. either in person or by counsel, the Court shall, unless it sees good reason to the contrary, dismiss the petition, which dismissal shall have the same effect as a dismissal on the merits at the hearing.
Order of Proceeding.
LX. The order of proceeding at the hearing of a cause shall be as follows:--- 1. The plaintiff shall state the pleadings.
2. The party on whom the burden of proof is thrown by the nature of the material issues or questious between the parties has the right to begin: he shall address the Court and open his case.
3. He shall then produce his evidence and examine his witnesses in chief.
4. When the party beginning has concluded his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative, he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative, he shall wait for his general reply.
5. When the party beginning has concluded his case, the other party shall be at liberty to address the Court, and to call evidence, and to sum up and comment thereon.
6. If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention to call evidence.
7. The case on both sides shall then be considered closed.
8. If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.
9. Where evidence in reply is tendered, and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the Court, and the party beginning shall be entitled to the general reply.
S. R. 93.
S. R. 94.
S. R. 84.
S. R. 272.
10. Each witness, after examination in chief, shall be subject to cross-examination S. R. 85-29. by the other party, and to examination by the party calling him, and after re-examina- tion may be questioned by the Court, and shall not be recalled or further questioned save through and by leave of the Court.
11. The Court shall take a note of the substance of the viva voce evidence in a narrative form, but shall put down the terms of any particular question or answer, if there appears any special reason for doing so.
12. No person shall be entitled as of right, at any time or for any purpose, to inspec- tion or a copy of the Court's notes.
13. All objections to evidence must be taken at the time the question objected to is put, or, in case of written evidence, when the same is about to be put in, and must be argued and decided at the time.
14. Where a question put to a witness is objected to, the Court, unless the objection appears frivolous, shall take a note of the question and objections, if required by either party, and shall mention on the notes whether the question was allowed to be put or not, and the answer to it, if put.
15. Where any evidence is by affidavit, or has been taken by commission, or on deposition, the party adducing the same my read and comment on it, either immediately after his opening or after the viva voce evidence on his part has been concluded,
16. Documentary evidence must be put in and read, or taken as read by consent. 17. Every document put in evidence shall be marked by the Court at the time, and shall be retained by the Court during the hearing, and returned to the party who put it in, or from whose custody it came, immediately after the judgment, unless it is impounded by order of the Court.
18. Where the evidence adduced at the hearing varies substantially from the alle- gations of the respective parties in the pleading, it shall be in the discretion of the Court to allow the pleadings to be amended.
1. C. 181-182.
R. J. C. 15.
S. R. 91-94.
1. C. 97-98.
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19. The Court may allow such amendment ou such terms as to adjournment, costs, and other things as seem just so as to avoid surprise and injury to any party; but all amendments necessary for the determination in the existing suit of the real question in controversy between the parties shall be made if duly applied for.
20. The Court may at the hearing order or allow, on such terms as seen just, the striking out or amendment of any pleading that appears so framed as to prejudice, embarrass, or delay the fair trial of the real questions in controversy between the parties.
Supplemental Statement.
LXI. Facts or circumstances occurring after the institution of a suit, may, by leave of the Court, be introduced by way of amendment into the petition or answer (as the case may require) at any stage of the proceedings, and the Court may nake such order as seems just respecting the proof of such facts or circumstances, or affording all parties concerned leave and opportunity to meet the statements so introduced.
Reference of Accounts.
LXII. In any suit or other judicial proceeding in which an investigation or adjustment of accounts may be necessary, it shall be lawful for the Court to appoint any competent person to be a Commissioner for the purpose of making such inves- tigation or adjustment, and to direct that the parties or their attorneys or counsel shall attend
upon the Commissioner during such investigation or adjustment. In all such cases, the Court shall furnish the Commissioner with such part of the proceedings and such detailed instructions as may appear necessary for his inforination and guidance; and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the enquiry, or also to report his own opinion on the point referred for his investigation. The proceedings of the Com- missioner shall be received in evidence in the case, unless the Court may have reason to be dissatisfied with them, in which case, the Court shall make such further enquiry as may be requisite, and shall pass such ultimate judgment or order as may appear to it to be right and proper in the circumstances of the case.
2. Whenever a commission is issued for an investigation into accounts, the Court, before issuing the commission, may order such sum as may be thought reasonable for the expenses of the commission to be paid into Court by the party at whose instance or for whose benefit the commission is issued.
Incidental Powers.
LXIII. The Court may at the trial, without consent of parties, reserve to itself Power to enter a nonsuit, or a verdict for the plaintiff or defendant, or may reserve any point of law or take a verdict subject to a special case to be stated for the opinion of the Court.
2. The Court may order any point of law reserved to be set down for argument without any previous application.
3. The Court shall, upon motion for a new trial, have power to order a nonsuit or verdict to be entered, although no leave has been reserved at the trial.
Withdrawal and Adjustment of Suits.
LXIV. If the plaintiff, at any time before final judgment, satisfy the Court that there are sufficient grounds for permitting him to withdraw from the suit with liberty to bring a fresh suit for the same matter, it shall be competent to the Court to grant such permission on such terms as to costs or otherwise as it may deem proper. In any such fresh suit, the plaintiff shall be bound by the rules for the limitation of actions in the same manner as if the first suit had not been brought. If the plaintiff withdraw from the suit without such permission, he shall be precluded from bringing a fresh suit for the same matter.
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