Directory_and_Chronicle_1908 — Page 397

324

Restoration of

cause to list for

plaintif

Non-appearance of plaintiff a second time,

Time for demand of or application for a jury. Appeal.

Adjournment for jury.

Order of proceeding.

RULES OF SUPREME COURT

79. Where a cause is struck out by reason of the absence of the plaintiff it shall not be restored without leave of the Court, until it has been set down again at the bottom of the general hearing list, and been transferred in its regular turn to the hearing paper.

80. Where a cause has been once struck out, and has been a second time set down, and has come into the hearing paper, and on the day fixed for the hearing the plaintiff, having received due notice thereof, fails to appear either in person or by counsel or attorney when the cause is called on, the Court, on the application of the defendant, and if the non-appearance of the plaintiff appears to be wilful and intended to harass the defendant, or to be likely to prejudice the defendant by preventing the hearing and 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 canse or no sufficient cause be shown, the Court shall fix a day accordingly, upon such notice and other terms as seem just.

In case the plaintiff does not appear on the day so fixed, either in person or by counsel or attorney, 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.

Jury

81. Notice of demand of a jury, or of application for a jury, must be filed seven days at least before the day of hearing

82. An appeal does not lie against the refusal of an application for a jury.

83. Where notice of demand of a jury has not been filed in due time, or if at the hearing both parties desire a jury, the Court may, on such terins as seem just, adjourn the hearing, in order that a jury may be summoned.

Proceeding at the Hearing

84. The order of proceeding at the hearing of a cause shall be as follows:

The plaintiff shall state the pleadings.

The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties has the right to begin ; he shall address the Court and open his case.

He shall then call his evidence and examine his witnesses in chief. 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 docu- mentary 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 bis general reply.

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 sua up and comment thereon.

If no evidence is called or read by the latter party, the party beginning (saving the right of the Crown) 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.

The case on both sides shall then be considered closed.

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.

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