Directory_and_Chronicle_1896 — Page 347

CODE OF CIVIL PROCEDURE-HONGKONG

307

Court that the amendment is not intended for the purpose of delay or vexation, but because it is considered to be material for the plaintiff's case.

3.-Notice of the amendment shall be given to the defendant within Notice thereof. such time and in such manner as the Court in each case directs.

Settlement of Issues.

XL.-At any time b fore or at the hearing, the Court may, if it At or before thinks fit, on the application of any party, or of its own motion, proceed Hearing. to ascertain and det rmine what are the material questions in controversy between the parties, although the same are not distinctly or properly raised by the pleadings, and may reduce such questions into writing and settle them in the form of issues, which issues, when settled, may state questions of law on admitted facts, or questions of disputed fact, or ques- tions partly of the one kind and partly of the other.

Pleadings in

2. In settling issues, the Court may order or allow the striking out Amendment o or amendment of any pleading, or part of the pleadings, so that the pleadings framing Issues. may finally correspond with the issues settled, and may order or allow the striking out or amendment of any pleading, or part of a pleading, that appears to be so framed as to prejudice, embarrass, or delay the trial of the cause.

3. Where the application to the Court to settle issues is made at any How Application stage of the proceedings at which all parties are actually present before to be made. the Court, either in person or by counsel or attorney, or at the hearing, the application may be made viva voce, and may be disposed of at once, other- wise the application must be made and disposed of on summons.

It shall

be in the discretion of the Court to direct which issues shall be first dis- posed of.

additional

4. At any time before the decision of the case, the Court may amend Amended or the issues or frame additional issues on such terms as to it shall seem fit, des. and all such amendments as may be necessary for the purpose of determin- ing the real question or controversy between the parties shall be so made.

Interrogatories-Discovery-Unwilling Witness.

rogatories to

XLI. In all suits, the plaintiff an the defendant, or either of them, Power to deliver may, by order of the Court, deliver to the opposite party or his attorney written Inter- (provided such party, if not a body corporate, would b l'able to be called opposite Party. and examined as a witness upon such matter), interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate, any of the officers of such body corporate, within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a dis- covery may be sought within the above time, or such extended time as the Court shall allow, shall be deemed to have committed a contempt of the Court, and shall be liable to be proceeded against accordingly.

Party proposing

2.--The application for such order shall be made upon an affidavit of Affidavit by the party proposing to interrogate, and his attorney or agent, or, in the to interrogate case of a body corporate, of their attorney or agent, stating that the and his Attorney. deponent believes that the party proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery which he seeks, that there is a good cause of action or defence upon the merits, and, if the application be made on the part of the defendant, that the discovery is not sought for the purpose of delay: Provided that where it shall happen, from unavoidable circumstances, that the plaintiff or defendant cannot join in such affidavit, the Court may, if it think fit upon affidavit of such circumstances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit.