Sec. 80. Every special case shall be signed by the parties, Signed by parties. be filed by any party. and may XX.-Motions. Sec. 81. A party desiring to obtain an order from the judge Notice of or surrogate shall file a notice of motion with the affidavits, if motion. any, on which he intends to rely. of motion Sec. 82. The notice of motion shall state the nature of the What notice order desired, the day on which the motion is to be made, and shall state. whether in court or in chambers. Sec. 83. Except by consent of the adverse party, or by order When notice of the judge or surrogate, the notice of motion shall be filed shall be filed. twenty-four hours at least before the time at which the motion is made. davits for Sec. 84. All the affidavits upon which a notice of motion is When affifounded must be filed before the service of the notice of motion ' notice must and affidavits in answer must be filed not later than the day be filed. before that appointed for the hearing of the motion. court. Sec. 85. No motion shall be made to the judge or surrogate Motion in in court save by counsel or by a party conducting his own cause in person. Solicitors may be heard on any motion before the Solicitors in judge or surrogate in chambers. chambers. Sec. 86. Any notice of motion may be transferred from the Notice of mochamber to the court list, or vice versa, as the judge or a surro- tion may be gate may direct. transferred. Sec. 87. When the motion comes on for hearing, the judge or Order may be surrogate, after hearing the parties, or, in the absence of any of made of proof them, on proof that the notice of motion has been duly served, notice. may make such order as to him shall seem fit. of service of Sec. 88. The judge or surrogate may, on due cause shown, Power to vary vary, or rescind any order previously made. or rescind. Sec. 89. No proceeding shall be defeated by any formal ob- Formal objecjection. tion. Sec. 90. All orders made by the judge or surrogate in cham- Effect of orbers shall have the force and effect of orders of the court. der in chambers. when writ Sec. 91. When the writ has been issued by the registrar all Hearing of applications in the cause to the court or in chambers shall be applications heard by the judge, unless he direct the same to be heard before issued by a surrogate. registrar. when writ When the writ has been issued by a deputy registrar all appli- Hearing of cations in the cause to the court or in chambers shall be heard by applications the surrogate residing nearest the place where such deputy regis- issued by a trar's office is, unless he direct the same to be heard before the deputy judge or another surrogate. registrar. Payment into court and fil ing of notice in case of tender. Filing of no notice by adverse party, accepting or rejecting. Suspense of XXI.-Tenders. Sec. 92. A party desiring to make a tender in satisfaction of the whole or any part of the adverse party's claim, shall pay into court the amount tendered by him, and shall file a notice of the terms on which the tender is made. A party may make a tender notwithstanding he has pleaded other grounds of defence. Sec. 93. Within a week from the filing of the notice of tender the adverse party shall file a notice, stating whether he accepts or rejects the tender, and if he shall not do so, he shall be held to have rejected it. Forms of notice of tender and of notice accepting or rejecting it will be found in schedule A hereto, Nos. 20 and 21. Sec. 94. Pending the acceptance or rejection of a tender, the proceedings. proceedings shall be suspended. Statutes of apply. Modes of giv XXII.-Evidence. Sec. 95. The statutes respecting witnesses and evidence in force in the Province of Ontario shall apply to trials and proceedings in the Maritime Court. Sec. 96. Evidence shall be given either by affidavit or by ing evidence. oral examination, or partly in one mode, and partly in another. motion and on Evidence on Sec. 97. Evidence on a motion shall in general be given by hearing, sub. affidavit, and at the hearing by the oral examination of witject to order nesses; but the mode or modes in which evidence shall be given, of judge or a either on any motion or at the hearing, may be determined either by consent of the parties, or by order of the judge or surrogate. surrogate. Order to at Sec. 98. The judge or surrogate may order any person who tend for cross- has made an affidavit in an action to attend for cross-examinaexamination. tion thereon before the judge or surrogate, or the registrar or deputy registrar, or before an examiner named in the order. The order and manner in which wit Sec. 99. Witnesses examined orally before the judge, surrogate, registrar or deputy registrar or examiner, shall be examined, cross-examined, and re-examined in such order as the judge, nesses may be examined, &c. surrogate, registrar or deputy registrar or examiner, may direct; and questions may be put to any witness by the judge, surrogate, registrar or deputy registrar or examiner, as the case may be. Examination Sec. 100. If any witness is examined by interpretation, such by interpreta interpretation shall be made by a sworn interpreter of the court, or by a person previously sworn according to the form in schedule A hereto, No. 22. tion. Copies of examinations, how obtained. Examination Sec. 101. The parties to the action shall, on payment of the regular fees, be entitled to have from the examiner certified copies of such depositions or any part thereof immediately after they have been taken. Sec. 102. Either solicitor in the action may apply to the viva voce may judge or surrogate to order the attendance of any witness for be ordered. examination viva voce at the hearing, although the witness may have already made an affidavit or been examined before the judge or surrogate, r an examiner or officer of the court. XXIII-Oaths. Sec. 103. The judge or surrogate may appoint any person to Judge or suradminister oaths in any particular proceeding in the Maritime rogate may Court. A form of appointment to administer oaths will be found appoint. in schedule A hereto, No. 23. XXIV.-Affidavits. Sec. 104. Every affidavit shall be divided into short para- To be divided graphs numbered consecutively, and shall be in the first person; into paraand the name, address and description of every person making bered. graphs numan affidavit shall be inserted therein. Sec. 105. The names of all the persons making an affidavit, Names, dates and the dates when, and the places where it is sworn, shall be and places in jurat. inserted in the jurat. or illiterate to Sec. 106. When an affidavit is made by any person who is Affidavit by blind, or who from his signature or other wise appears to be illit-person blind erate, the person before whom the affidavit is sworn shall certify be read over that the affidavit was read over to the deponent, and that the and certified. deponent appeared to understand the same, and made his mark or wrote his signature thereto in the presence of the person before whom the affidavit was sworn. tion, how Sec. 10%. When an affidavit is made by a person who does Affidavit by not speak the English language, the affidavit shall be taken down interpretaand read over to the deponent by interpretation either of a sworn made. interpreter of the court, or of a person previously sworn faithfully to interpret the affidavit. A form of jurat will be found in schedule A hercto, No. 24. Sec. 108. Affidavits may by permission of the judge or sur- Affidavits, rogate be used as evidence in an action, saving all just before whom exceptions: to be sworn. (a.) If sworn to, in the United Kingdom of Great Britain and In British terIreland, or in any British possession, before any person authorized ritory. to administer oaths in the said United Kingdom or in such possession respectively; (b.) If sworn to, in any place not being a part of Her Majesty's In foreign dominions, before a British minister, consul, vice-consul, or notary territory. public, or before a judge or magistrate the signature of such judge or magistrate being authenticated by the official seal of the court to which he is attached. Sec. 109. The reception of any affidavit as evidence may be When affiobjected to, if the affidavit has been sworn before the solicitor for davit may be objected to. the party on whose behalf it is offered, or before a partner or clerk of such solicitor. Certificate of proceedings in office of registry. Judge or sur nesses before trial under certain circumstances. XXV.-Certificate of State of Action. Sec. 110. Upon the application of any person the registrar or deputy registrar is to certify, as shortly as he conveniently can, the several proceedings had in his office in any action or matter, and the dates thereof. XXVI.-Examination of Witnesses before Trial. Sec. 111. The judge or surrogate may order that any witness, rogate may order examin- who cannot conveniently attend at the trial of the action or, if ation of wit in the opinion of the judge or surrogate it may be impossible or very difficult to procure his attendance at the trial, shall be examined previously thereto, before either the judge or surrogate, or the registrar or deputy registrar, who shall have power to adjourn the examination from time to time, and from place to place, if he shall think necessary. A form of order for examination of witnesses will be found in schedule A hereto, No. 25. Examination Sec. 112. If the witness cannot be conveniently examined before special examiner or a before the judge, surrogate or the registrar or deputy registrar, commissioner. the judge or surrogate may order that he shall be examined before a special examiner, and if the witness is beyond the limits of the Province of Ontario, the judge or surrogate may order that he shall be examined before a commissioner specially appointed for the purpose. Power to swear witnesses, Counsel fee tion. Sec. 113. The examiner or commissioner shall have power to swear any witnesses produced before him for examination, and to adjourn, if necessary, the examination from time to time, and from place to place. A form of commission to examine witnesses will be found in schedule A hereto, No. 26. Sec. 114. The parties, their counsel and solicitors, may attend on examina- the examination, but, if counsel attend, the fees of only one counsel on each side shall be allowed on taxation, except by order of the judge or surrogate. Evidence to be taken in writing and certified. Evidence to be lodged in Sec. 115. The evidence of every witness shall be taken down in writing, and shall be certified as correct by the judge, surrogate, registrar or deputy registrar, or by the examiner or commissioner, as the case may be. Sec. 116. The certified evidence shall be lodged in the regisregistry. try, or, if taken by commission, shall forthwith be transmitted Transmitted by the commissioner to the registry, together with his commission. to registry A form of return to commission to examine witnesses will be found in schedule A hereto, No. 27. Evidence may be filed by Sec. 117. As soon as the certified evidence has been received either party. in the registry, it may be taken up and filed by either party, and may be used as evidence in the action, saving all just exceptions. Examination taken in short-hand. XXVII.-Short-Hand. Sec. 118. In case of an examination before the trial or otherwise than at the trial of an action, if the examining party desires to have such examination taken in short-hand, he shall be entitled to have it so taken at the place of examination except when the judge or surrogate sees fit to order otherwise. and answer, Sec. 119. When an examination in an action or proceeding Examination in court or otherwise is taken by an examiner or other duly by question authorized person in short-hand the examination may be taken how to be down by question and answer; and in such case it shall not be taken. necessary for the depositions to be read over to or be signed by the person examined unless the judge or surrogate so directs where the examination is taken before the judge or surrogate, or in other cases unless any of the parties so desires. Sec. 120. A copy of the depositions so taken, certified by Copy of the person taking the same as correct shall for all purposes have depositions so the same effect as the original depositions in ordinary cases. taken. sworn. Sec. 121. Except in cases where the examiner himself takes Short-hand the examination in short-hand, the short-hand writer employed writer to be shall be previously sworn faithfully to report the evidence. A form of oath to be administered to the short-hand writer will be found in schedule A hereto, No. 28. reporter. Sec. 122. The judge may from time to time appoint under Appointment the seal of the court an official reporter of the court, and it shall of official be his duty to attend all sittings of the court at Toronto, (or elsewhere if required by the judge), and report in short-hand the evidence and proceedings at trials at such sittings. Sec. 123. The official reporter shall be entitled for his attend- Fees to official ance at court and for copies of evidence when ordered by either reporter. party or by the judge or surrogate to the fees set out in the table of fees in schedule В hereto. Sec. 124. Every official reporter shall before entering on the Oath of office duties of his office, take the following oath before the judge, and of official the same shall be filed in the registrar's office : I, A. B., do solemnly and sincerely promise and swear that I will faithfully report the depositions and evidence and proceedings in any case in which it may be my duty to act as official reporter. So help me God. reporter. evidence at Sec. 125. The judge or surrogate may direct the evidence at Short-hand any trial of an action to be taken in short-hand, and may make trial may be such order as to the costs of taking the same as to him shall seem ordered. just. XXVIII.--Printing. written Sec. 126. The judge or surrogate may order that the whole Printing of of the pleadings and written proofs, or any part thereof, shall be pleadings and printed before the trial; and the printing shall be in such form proofs. as the judge or surrogate shall order. Sec. 127. Preliminary acts, if printed, shall be printed in Preliminary parallel columns. acts. |