0. XXXV,

Fr. 32 36.

373 Authority of Referee.

in the same manner, as nearly as circumstances will admit, as trials are conducted before a Judge. O. 36. r. 49, (E).

32. Subject to any such order as last aforesaid, the referee (Cf. R. 648 (1). shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party as a Judge of the Court. A party may move the Judge by whom the order of reference was made to set aside such judgment, and to enter any other judgment, on the ground that upon the finding as entered the judgment is wrong. O. 36, r. 50; O. 40, r. 6, (E), am.

374

Referee not to commit or attach.

[Cf. R. 648 (1).

(0)].

375

Referee may submit question to Court or Judge.

[Cf. R. 651,(O)].

33. Nothing in these Rules contained shall authorize any referee to commit any person to prison, or to enforce any order by attachment or otherwise. O. 36, r. 51, (E).

34. The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the Court or Judge, or state any facts specially, with power to the Court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the Court may direct; and the Court shall have power to require any explanation or reasons from the referee, Referee or and to remit the cause or matter, or any part thereof, for re[Cf. R. 652,(O)]. trial or further consideration to the same or any other referee; or the Court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence, as the Court may direct. O. 36, r. 52, (E).

Court may remit cause to

decide it.

376

Rules 31-34 to

Official
Referees.

Application of 35. The preceding Rules 31 to 34 shall apply where applicable and not inconsistent with the Rules of Order XXXIII., where any cause or matter, or any question or issue of fact, is referred to an official referee. O. 36, r. 52a., (E).

377 Adoption or Variation of report of

Referee under 0. 64. r. 13.

36. Where under Rule 13 of Order 64, the report of the referee has been made in a cause or matter, the further consideration of which has been adjourned, it shall be lawful for any party, on the hearing of such further consideration, without notice of motion or summons, to apply to the Court or Judge to adopt the report, or without leave of the Court or a Judge to give not less than four days' notice of motion, to come on with the further consideration, to vary the report, or to remit the cause or matter, or any part thereof, for re-hear

ing or further consideration to the same or any other referee. O. 36, r. 54, (E).

0. XXXV. rr. 37 -39.

378

of report consideration

adjourned.

37. Where under Rule 13 of Order 64 the report of the Adoption, etc.. referee has been made in a cause or matter, the further con- where further sideration of which has not been adjourned, it shall be lawful of cause not for any party by an eight days' notice of motion to apply to the Court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee. O. 36, r. 55, (E).

379

reference to

Referee.

38. Where the whole of any cause or matter is referred Costs where to an official Referee under an order of Court, he may, sub- Official ject to any directions in the order, exercise the same discretion as to costs as the Court or a Judge could have exercised. O. 36, r. 55b., (E).

380

under an order

powers of an Official

Referee.

39. The provisions of the preceding Rules 30 to 38 shall Arbitrator apply, where any cause or matter, or any question or issue of to have the fact therein, is referred to an officer of the Court, or to a special referee or arbitrator. Provided that where the arbitrator is appointed otherwise than by an order of the Court, the provisions of Rule 30 as to sitting de die in diem shall not apply. 0.36, r. 55c., (E). See O. 40, r. 6a., (E).

ORDER XXXVI.

1.-Evidence Generally.

0. XXXVI, r. 1.

381

Evidence on rira roce

trial to be

[Cf. R. 483,(O)}.

1. In the absence of any agreement in writing between the solicitors of all parties, and subject to these Rules, the witnesses at the trial of any action, or at any assessment of damages, shall be examined viva voce, and in open Court, but the Court or a Judge may, at any time for sufficient reason, order that any particular fact or facts may be proved by affi- Affidavits. davit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or Judge may think reasonable, or that any witness, whose attendance in Court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a commis- Examination sioner or examiner; provided that, where it appears to the missioner. Court or a Judge that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. O., 0. 37, r. 1, (E).

before com

0. XXXVI,

rr. 2-6. 382

Evidence

causes or

matters.

2. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving taken in other all just exceptions, be read on ex parte applications by leave of the Court or a Judge, to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evidence giving two days' previous notice to the other parties of his intention to read such evidence. O. 37, r. 3, (E).

383 Certified copies of documents admissible in evidence. [Cf. R. 496, (O)].

384 Examination before trial of

3. Copies of all writs, records, pleadings, and documents filed with the proper officer shall be admissible in evidence in all causes and matters, and between all persons or parties, to the same extent as the original would be admissible, where certified by such officer to be true copies of the originals. O. 37, r. 4, (E), am.

II.-Examination of Witnesses.

4. When any of the witnesses necessary to be produced on infirm or aged the trial of any cause or matter, shall be infirm, aged or other

witnesses, or

witnesses un

or obliged to leave Province.

able to travel, wise unable to travel, or when any witness is obliged to leave the Province, it shall and may be lawful for the Court or a Judge on due notice given to the adverse party to be present (if h› sees fit), to order the examination before a Judge or any other person or persons named in such order, of such infirm or aged person or person unable to travel, or who is obliged to leave the Province. All such examinations so taken shall be certified under the hand and seal of the said Judge or other person taking the same, and closed up under the seal of the Judge or other person taking the same, indorsed with the title of the cause or matter in which the same were taken, and shall be received in evidence in such cause or matter, saving all just exceptions. C. S. 1903, c. 111, s. 262, am.

385 Witness in Province and able to travel at time of trial.

386 Reservation of exceptions.

5. If such witnesses shall at the time of the trial of the cause be in the Province and able to travel, they shall be required to give their testimony viva voce at such trial, in the same manner as if such depositions had not been taken. C. S. 1903, c. 111, s. 263.

6. All benefit of exceptions shall be reserved in the same manner as in producing witnesses for examination viva voce at the trial. C. S. 1903, c. 111, s. 264.

0. XXXVI, rr. 7-11.

387

Examination

within the

abroad.

499, (O)].

7. The Court or a Judge in any cause or matter where it shall appear necessary for the purposes of justice may make an order for the examination on oath, upon interrogatories or of witnesses otherwise, before the Court or Judge, or any officer of the Province or Court, or any other person or persons to be named in such (Cf. RR. 485, order, of any witnesses within the Province, or order a commission to issue under the seal of the Court, for the examination of witnesses on oath at any place or places out of the Province by interrogatories or otherwise, and by the same or any subsequent order or orders, to give all such directions touching the time, place and manner of such examination, as well within the Province as without, and all other matters and circumstances connected with such examination, and may empower any party to the cause or matter to give such deposition in evidence therein, on such terms as may seem just. C. S. 1903, c. 111, s. 265, am.; O. 37, r. 5, (E), am.

388

motion.

8. The notice of a motion for a commission to take evi- Notice of dence shall state the name and address of the commissioner proposed by the applicant; and if the opposite party desires to name a commissioner, he shall, on the return of the motion, give notice to the applicant of the name and address of such commissioner; and the order may direct the issue of the commission directed to the persons so named, or to such person as may seem proper. R. 501, (0).

389

shall Form of order

com

for a commis

sion and of

writ of com

9. An order for a commission to examine witnesses be in the Form No. 37, in Appendix K., and the writ of mission shall be in the Form No. 9, in Appendix J., with such mission. variations as the circumstances may require. O. 37, r. 6, (E).

390

on interroga

10. Where the examination is to take place upon written Examination interrogatories, the interrogatories in chief shall be delivered to tories. the opposite party (unless otherwise ordered) at least eight days before the issue of the commission; and the cross-interrogatories shall be delivered to the opposite party (unless otherwise ordered) within four days after the receipt of the interrogatories in chief; and in default of cross-interrogatories being so delivered, the opposite party may send the commission without cross-interrogatories. R. 503, (O).

391

execution of

11. Where notice of the execution of the commission is Notice of required to be served, forty-eight hours' notice shall be suffi- commission cient such notice shall be in writing, stating the time and

0. XXXVI,

9. XXX place of the intended examination, and shall be addressed to the person named for that purpose before the expiry of the time limited for mailing the commission, or as provided in the order; and service upon him, or upon a grown person at the address given shall be sufficient. If the name or address given proves to be illusory or fictitious, or if the party so notified fails to attend, pursuant to the notice, the commission may be executed ex parte. R. 504, (O).

392

Disobedience

by witness to

within

Province.

12. When any rule or order shall be made for the exambe examined ination of witnesses within the Province by authority of these Rules, the Court or Judge may, in and by the first rule or order made in the matter, or any subsequent order, command the attendance of any person to be named in such order for the purpose of being examined, or the production of any writings. or other documents to be mentioned in such rule 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 to do; and the wilful disobedience of any such rule or order shall be deemed a contempt of Court, and proceedings may be thereupon had by 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 Judge or person or persons appointed to take the examination, or by any one or more of such persons, shall be also served, together with or after the service of such rule or order; provided always, that the service of every such rule, order or appointment shall be by showing to the person whose attendance is required the original rule, order or appointment, and by delivering to such person a copy thereof; and also that every person whose attendance is so required shall be entitled to the like conduct money and payment for expenses, as upon attendance at a 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 compelled to produce at a trial of the cause. C. S. 1903, c. 111, s. 266, am.

393

Order for attendance of person to produce.

13. The Court or a Judge may in any cause, matter or motion, at any stage of the proceedings, order the attendance of any person for the purpose of oral examination or producing of any writings or other documents named in the order