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No. 2.

all actions on policies of assurance made after the passing of this Act 3 Vic.

Act. c. 33.

XXX. That if any person shall sue out any writ of error, upon

any judgment whatsoever given in any Court, in any action personal, Clauses of Stat.

and the Court of Error shall give judgment of the defendant thereextended.

on, then interest shall be allowed by the Court of Error, for such Interest to be

times as execution has been delayed by such writ of error for the allowed on all delaying thereof. Writs of Error for delay of execution. Executors sue XXXI. That in every action brought by any executor or admiing in right of nistrator, in right of the testator or intestate, such executor or the Testator to administrator shall, unless the Court in which such action is pay costs.

brought, or a Judge of any of the said superior Courts shall otherwise order, be liable to pay costs to the defendant in case of being nonsuited, or a verdict passing against the plaintiff, as in all other cases in which he would be liable if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be

recovered in like manner. Defendants XXXII. That where several persons shall be made defendants having a nolle

in any personal action, and any one or more of them shall have prosequi, or a verdict, shall a nolle prosequi entered as to him or them, or upon the trial of such have costs.

action, shall have a verdict pass for him or them, every such person shall have judgment for, and recover his reasonable costs, unless, in the case of a trial, the Judge before whom such cause shall be tried, shall certify upon the record, under his hand, that there was a rea

sonable cause for making such person a defendant in such action. Where nolle XXXIII. That where any nolle prosequi shall have been entered prosequi en

upon any count, or as to part of any declaration, the defendant shall tered upon any be entitled to, and have judgment for, and recover his reasonable Court, &c.

costs in that behalf. Plaintiff in XXXIV. That in all writs of scire facias, the plaintiff obtaining scire facias judgment on an award of execution shall recover his costs of suit, and plaintiff or defendant on

upon a judgment by default, as well as upon a judgment after plea demurrer, to

pleaded, or demurrer joined; and that where judgment shall be have costs. given, either for or against a plaintiff or demandant, or for or

against a defendant or tenant, upon any demurrer joined, in any action whatever, the party, in whose favour such judgment shall be

given, shall also have judgment to recover his costs in that behalf. Costs of Spe

XXXV. And whereas, It is provided in and by a statute passed cial Juries in

in the sixth year of the reign of His late Majesty, entitled “ An Act

for consolidating and amending the Law relative to Jurors and suit, 6 G. 4,

Juries,” that the person or party who shall apply for a special jury, shall pay the fees for striking such jury, and all the expenses occasioned by the trial of the cause by the same, and shall not have any further or other allowance for the same, upon taxation of costs than such person or party would be entitled unto, in case the cause had been tried by a common jury, unless the judge, before whom the cause is tried, shall, immediately after the verdict, certify under his hand, upon the back of the record, that the same was a cause proper to be tried by a special jury; And whereas, the said provision does not apply to cases in which the plaintiff has been nonsuited, and it is expedient that the judge should have such power of certifying as well when a plaintiff is nonsuited, as when he has a verdict against him; Be it, &c., That the said provision of the

case of non

c. 50.

c. 33.

Lessor may

said last-mentioned Act of Parliament, and everything therein con No. 2. tained, shall apply to cases in which the plaintiff shall be non Act 3 Vic. suited, as well as to cases in which a verdict shall pass against him. XXXVII. That it shall be lawful for the executors or adminis

Clauses of Stat.

extended. trators of any lessor or landlord to distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor Executors of or landlord in his lifetime, in like manner as such lessor or land

distrain for lord might have done in his lifetime.

arrears in his lifetime. XXXVIII. That such arrearages may be distrained for after the Arrears may end or determination of such term or lease, at will, in the same be distrained manner as if such term or lease had not been ended or determined : for within six

months after Provided, That such distress be made within the space of Six

determination calendar months after the determination of such term or lease, and of term. during the continuance of the possession of the tenant from whom such arrears became due : Provided also, That all and every the powers and provisions in the several statutes made, relating to distresses for rent, shall be applicable to the distresses so made, as aforesaid.

XXXIX. And whereas, it is expedient to render references to Submission to arbitration more effectual ; Be it, &c., That the power and authority arbitration by of any arbitrator, or umpire appointed by, or in pursuance of, any do not to be Rule of Court, or Judge's Order, or order of nisi prius in any action

revocable now brought, or which shall be hereafter brought, or by or in pur- without leave suance of any submission to reference containing an agreement of Court. that such submission shall be made a rule of any of His Majesty's Courts of record, shall not be revocable by any party, to such reference, without the leave of the Court, by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a Judge ; and the arbitrator or umpire shall, and may, and is hereby required to proceed with the reference, notwithstanding any such revocation, and to make such award, although the person making such revocation, shall not afterwards attend the reference; and that the Court or any Judge thereof, may, from time to time, enlarge the term for any such arbitrator making his award.

XL. That when any reference shall have been made, by any such Power to comrule or order as aforesaid, or by any submission containing such pel the attendagreement as aforesaid, it shall be lawful for the Court by which ance of witsuch rule or order shall be made, or which shall be mentioned in such agreement, or for any Judge, by rule or order to be made for that purpose, to command the attendance and examination of any person to be named, or the production of any documents to be mentioned in such rule or order : and the disobedience to any such rule or order shall be deemed a contempt of Court, if, in addition to the service of such rule or order, an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitrators, or by the umpire, before whom the attendance is required, shall also be served either together with or after the service of such rule or order : Provided always, that every person whose attendance shall be so required, shall be entitled to the like conduct money, and payment of expenses, and for loss of time, as for and upon attendance at any trial : Provided also, that the application made to such Court or Judge, for such rule or order, shall set forth the county where such witness is residing at the time, or


c. 33.

No. 2. satisfy such Court or Judge, that such person cannot be found : Act 3 Vic. Provided also, That no person shall be compelled to produce,

under any such rule or order, any writing or other document, that

he would not be compelled to produce at a trial, or to attend at Clauses of Stat.

more than two consecutive days, to be named in such order. extended.

XLI. That when in any rule or order of reference, or in any Power for the

submission to arbitration, containing an agreement that the submisarbitrators,

sion shall be made a rule of court, it shall be ordered or agreed under a Rule of Court, to

that the witnesses upon such reference shall be examined upon administer an oath, it shall be lawful for the arbitrator or umpire, or any one Oath.

arbitrator, and he or they are hereby authorized and required to administer an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath ; and if upon such oath or affirmation any person making the same, shall wilfully and corruptly give any false evidence, every person, so offending, shall be deemed and taken to be guilty of perjury, and shall be prosecuted and punished accordingly.

No. 3. Act 10 Vic.

c. 30.

No. 3.–10 Vic. ch. 30. An Act to enable Courts of Law to order

the Examination of Witnesses upon Interrogatories and

otherwise. (25th March, 1847.) HEREAS, great difficulties and delays may often be expe



actions depending in Courts of Law, by reason of the want of a competent power and authority in the said Courts to order and enforce the examination of witnesses, when the same may be required before the trial of a cause, in consequence of the permanent sick

ness or infirmity of such witnesses, and their consequent inability Commission

to attend such trial; for remedy whereof, May it, &c., That in all may issue for

actions depending in any of the Courts of Law of these islands, examination of when it shall appear on oath that a party required as a witness in persons unable from infirmity

the cause will be unable to attend the trial, from permanent sickto attend Court ness or other permanent infirmity, it shall and may be lawful to in person.

and for the Judges or presiding Judge of the said Court respectively, upon the application of any of the parties to such suit, to order the examination on oath upon interrogatories or otherwise, before the Prothonotary of the said Court, or other person or persons to be named in such order, of any witnesses within the jurisdiction of the Court where the action shall be depending, or to order a commission to issue for the examination of witnesses on oath, at any place or places out of such jurisdiction, by interrogatories, and by the same or any other subsequent order or orders, to give all such directions, touching the time, place, and manner of such examination and all other matters and circumstances connected with such

examinations, as may appear reasonable and just. Powers of II. That when any rule or order shall be made for the examinaJudge of Court tion of witnesses within the jurisdiction of the Court wherein the to command

action shall be depending, by authority of this Act, it shall be attendance of

lawful for the Court, or any Judge thereof, in and by the first rule persons to be examined as

or order to be made in the matter, or any subsequent rule or order, witnesses when to command the attendance of any person to be named in such

c. 30.

may in


rule or order, for the purpose of being examined, or the production No. 3. of any writings or other documents to be mentioned in such rule Act 10 Vic. or order, and to direct the attendance of any such person to be at his own place of abode or elsewhere, if necessary or convenient so

and where he to do; and the wilful disobedience of any such rule or order, shall

any be deemed a contempt of Court, and proceedings may be thereupon rule of Court had by attachment (the Judge's order being made a rule of Court, designate. before or at the time of the application for an attachment), if in addition to the service of the rule or order, an appointment of the time and place of attendance in obedience thereto, signed by the person or persons appointed to take the examination, or by one or more of such persons, shall be also served, together with or after the service of such rule or order : Provided always, that every person whose attendance shall be so required, shall be entitled to the like conduct money, and payment of expenses, and loss of time, as upon attendance at the trial : Provided also that no person shall be compelled to produce, under any such rule or order, any writing or other document that he would not be compellable to produce at a trial of the cause.

III. That it shall be lawful for all and every person, authorized Duty of persons to take the examination of witnesses, by any rule, order, or com

authorized to

examine witmission, made or issued in pursuance of this Act, and he and they are hereby authorized and required to take all such examinations upon the oath of the witnesses, or affirmation, in cases where affirmation may be allowed by law, instead of oath, to be administered by the person so authorized, or by any Judge of the Court, wherein the action shall be depending; and if upon such oath or affirmation, any person making the same shall wilfully and corruptly give any false evidence, every person so offending, shall be deemed and taken to be guilty of perjury, and shall and may be indicted and prosecuted for such offence.

IV. That it shall and may be lawful for the Prothonotary, or Persons auany other person to be named in every such rule or order, as afore- thorized to said, for taking any examination in pursuance thereof, and he and examine witthey are hereby required to make, if need be, a special report to specially rethe Court touching such examination, and the conduct or absence port relating of any witness, or other person thereon or relating thereto; and to such examithe Court is hereby authorized to institute such proceedings, and nation. make such order and orders, upon such report as justice may require, and as may be instituted and made in any case of contempt of the Court.

V. That the costs of every rule or order to be made for the Costs of rule. examination of witnesses, under any commission, or otherwise, by virtue of this Act, and of the proceedings thereupon, shall be costs in this cause, unless otherwise directed either by the Judge making such rule or order, or by the Judge before whom the cause may be tried, or by the Court.

VI. That no examination or deposition to be taken by virtue of Examinations this Act, shall be read in evidence at any trial, without the consent not to be read

in evidence exof the party against whom the same may be offered, unless it shall

cept the witness appear to the satisfaction of the Court, that the examinant or depo- is unable to itnent is beyond the jurisdiction of the Court, or dead, or unable tend personally, from permanent sickness, or other permanent infirmity, to attend the trial; in all, or any of which cases, the examination and depositions, certified under the hand of the Commissioner, Prothono

No. 3. tary, or other person taking the same, shall and may, without proof Act 10 Vic. of the signature to such certificate, be received and read in evi

dence, saving all just exceptions.

c. 30.

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Witnesses not deemed incapacitated from crime or interest.

No. 4.-10 Vic. ch. 32. An Act for improving the Law of Evidence.

(March 25th, 1847.) HEREAS, the inquiry after truth in Courts of Justice is

often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons who are appointed to decide upon them; and that such persons should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimony; Now, therefore, May it, &c., That no person offered as a witness, shall hereafter be excluded by reason of incapacity, from crime or interest, from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question, or any inquiry arising in any Court, or before any judge, jury, coroner, magistrate, officer, or person having, by law, or by consent of parties, authority to hear, receive, and examine evidence, but that every person so offered may, and shall be admitted, to give evidence on oath or solemn affirmation in those cases wherein affirmation may by law be receivable, notwithstanding, that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered may have been previously convicted of any crime or offence: Provided that this Act shall not render competent any party to any suit, action, or proceeding, individually named in the record, or any lessor of the plaintiff, or tenant of the premises sought to be recovered in ejectment, or the landlord, or the person in whose right any defendant in replevin, may take cognizance; or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons, respectively: Provided also, that this Act shall not repeal any provision in a certain Act passed in the first year of the reign of Her present Majesty, entitled, “ An Act for the amendment of the Laws with respect to Wills :” Provided, that in Courts of Equity any defendant to any cause, pending in any such Court, may be examined as a witness on the behalf of the plaintiff, or of any codefendant in any such cause, saving just exceptions; and that any interest which such defendant, so to be examined may have in the matters, or any of the matters in question in the cause, shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting, or tending to affect, the credit of such defendant as a witness.

II. That nothing in this Act shall apply to or affect any suit, action, or proceeding brought or commenced before the passing of this Act.





This Act not to affect any suit commenced from this Act.

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