0. XXXVI, rr. 36-38. 416 When Attorney-General should be defendant to action testimony. 36. In all actions to perpetuate testimony touching any honour, title, dignity, or office, or any other matter or thing in which the Crown may have any estate or interest, the Attorney-General may be made a defendant; and in all to perpetuate proceedings in which the depositions taken in any such action in which the Attorney-General was so made a defendant are offered in evidence, such depositions shall be admissible, notwithstanding any objection to such depositions upon the ground that the Crown was not a party to the action in which such depositions were taken. O. 37, r. 36, (E). 417 Witnesses. 418 Action not to be set down for trial. 37. Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose. O. 37, r. 37, (E). 38. No action to perpetuate the testimony of witnesses shall be set down for trial. O. 37, r. 38, (E). 0. XXXVII, rr. 1, 2. 419 Evidence on motions, etc., ORDER XXXVII. I.-Affidavits and Depositions. 1. Upon any motion, petition, or summons, evidence may by affidavits. be given by affidavit, but the Court or a Judge may, on the [RR. 489, 490, (O)].. 420 Cross-examination of deponent to application of either party, order the attendance for cross-examination of the person making any such affidavit. O. 38, r. 1, (E). 2. Any party or witness, on being duly served with an order of the Court or a Judge requiring him to attend at a [See 0. 36, r. 16 certain time and place to be cross-examined, and on payment affidavit. (2), ante]. of his reasonable expenses in the same manner as if he had been served with a writ of subpoena, shall be bound to attend according to the direction thereof, and shall be subject to like penalties for disobedience thereto, as if he had been duly served with a writ of subpana ad testificandum, and the expenses attending such cross-examination and re-examination shall be paid by the parties respectively in like manner as if the witness so to be cross-examined were the witness of the party cross-examining, and shall be costs in the cause of such parties respectively, unless the Court or Judge shall think fit to direct otherwise. C. S. 1903, c. 112, s. 94. rr. 3-7. 421Affidavits, in 3. Upon motions founded upon affidavits, it shall be law. XXXVII, ful for either party with leave of the Court or a Judge, to make affidavits in answer to the affidavits of the opposite reply. party upon any new matter arising out of such affidavits. Copies of all affidavits (except affidavits of service of process or service of any notice or other paper) and other writings intended to be used on any motion or petition of which notice has been given, shall be served on the opposite Within what party six days at least before the day on which such served. motion is to be made, or petition heard; copies of affidavits intended to be used in answer thereto, shall be served at least three days before such motion, and copies of affidavits in reply (which shall be confined to new matter alleged in the affidavits in answer) shall be served one day before such motion, beyond which no affidavit shall be allowed. C. S. 1903, c. 112, s. 106, part. time to be 422 affidavits. 4. Every affidavit shall be intituled in the cause or matter Title of in which it is sworn; but in every case in which there are (Cf. R. 320, (O)] more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiff's or defendants, as the case may be; and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed by the taxing officer. O. 38, r. 2, (E). 423 5. Affidavits shall be confined to the statement of facts Contents. within the knowledge of the deponent, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. O. 38, r. 3, (E), am.; R. 518, (O). 6. In an action or proceeding to which a corporation is a party, any affidavit required to be made by it, may be made by any officer, servant, or agent of the corporation having a knowledge of the facts required to be deposed to, and he shall state therein that he has such knowledge. R. 519, (O), am. 7. Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, otherwise the same shall not be held authentic, nor be admitted 424 Affidavits by corporation. officers for 0. XXXVII, to be filed without the leave of the Court or a Judge. O. 38,· rr. 8-14. 426 Form of affidavit. r. 5, (E), am. 8. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be, shall be confined to a distinct portion of the subject. Every paper annexed to an affidavit, save affidavits of service of [Cf. R. 516, (0)], writs of summons returned by the sheriff or other officer, shall be marked by the commissioner or officer taking the O. affidavit with his name or the initial letters of his name. 38, r. 7, (E), am.; C. S. 1903, c. 112, s. 106; R. 4, S. C. H. T. 1875; R. 4, S. C. M. T. 1847; R. 2. S. C. E. T. 1848. 427 Description and abode of deponent to be stated. (Cf. R. 516, (O)]. 428 Affidavit made by two 429 Affidavits to be filed. 9. Every affidavit shall state the description and true place of abode of deponent, and shall be signed by him. O. 38, r. 8, (E), am. 10. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the "above named" deponents. O. 38, r. 9, (E); R. 2, S. C. H. T. 1848. 11. [Cf. R. 523, (0)1. officer. 430 Scandalous matter. 12. Every affidavit used shall be filed with the proper The Court or a Judge may order to be struck out [Cf. R. 296, (O)] from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. O. 38, r. 11, (E). 431 Alterations. 432 Affidavits by illiterate or 13, No affidavit having in the jurat or body thereof any interlineations, alteration, or erasure, shall without leave of the Court or a Judge be read or made use of in any matter depending in Court unless the interlineation, or alteration or erasure is authenticated by the initials of the officer taking the affidavit. O. 38, r. 12, (E), am.; R. 520, (0). 14. Where an affidavit is sworn by any person unable to blind persons. Write or appearing to be illiterate or blind, the officer taking such affidavit shall certify in the jurat that the affidavit was [R. 521, (O)]. read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature or made his mark in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent. O. 38, r. 13, (E); R. 1, S. C. H. T. 1848. 0. XXXVII, rr. 15-20. 433 defective 15. The Court or a Judge may receive any affidavit sworn Admission of for the purpose of being used in any cause or matter, not- affidavit. withstanding any defect or misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof. O. 38, r. 14, (E), am. 434 to be sworn to tor of party. 16. No affidavit sworn before the solicitor acting for the Affidavit not party on whose behalf it is made, or before the clerk or before solici partner of such solicitor, shall be used; but this Rule shall (Cf. R. 522, (O)). not extend to an affidavit to hold to bail or to obtain an order for arrest. O. 38, rr. 16, 17, (E), am. II. Trial on Affidavit. 435 and delivering affidavits. 17. Within fourteen days after a consent for taking Time for filing evidence by affidavit as between the parties has been given, plaintiff's or within such time as the parties may agree upon, or the Court or a Judge may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor copies thereof. O. 38, r. 25, (E), am. 18. The defendant within ten days after delivery of such copies, or within such time as the parties may agree upon, or the Court or a Judge may allow, shall file his affidavits and deliver to the plaintiff or his solicitor copies thereof. O. 38, r. 26, (E), am. 436 Time for filing affidavits. and delivering defendant's reply. 437 19. Within five days after the expiration of the last- Affidavits in mentioned ten days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor copies thereof. O. 38, r. 27, (E), am. 438 20. When the evidence is taken by affidavit, any party Cross-examin ation of deponent. rr. 21, 22. O. XXXVII, desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed, a notice in writing, requiring the production of the deponent for crossexamination at the trial, such notice to be served at any time before the expiration of ten days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court or a Judge may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court or a Judge. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. O. 38, r. 28, (E), am. 439 Compelling attendance for ation. 21. The party to whom such notice as is mentioned in cross-examin- the last preceding rule is given shall be entitled to compel the attendance of the deponent for cross-examination in the same way as he might compel the attendance of a witness to be examined. O. 38, r. 29, (E). 440 Notice of trial. 0, XXXVIII, rr. 1, 2. 22. When the evidence under this Order is taken by affidavit, notice of trial shall be given at the same time after the close of the evidence as in other cases is by these Rules provided after the close of the pleadings: provided that other affidavits may be filed and delivered if all the parties interested consent thereto, or the Court or a Judge so order. O. 38, r. 30, (E), am. ORDER XXXVIII. 1 441 Motion for new trial, etc., with or with out a jury. [Cf. RR. 782, 783, (0)]. MOTION FOR NEW TRIAL. 1. Every motion for a new trial or to set aside a verdict, whether trial finding, or judgment, shall be made, where there has been a trial without a jury, by appeal to the Court of Appeal, and where there has been a trial, or any issue therein, with a jury, to the Court of Appeal, and upon the hearing of the motion where the trial has been without a jury, the Court shall have all such powers as are exercisable by it upon the hearing of an appeal. O. 39, rr. 1 and 2, (E), am. 442 Mode of application for new trial. 2. Every application for a new trial shall be by printed notice of motion to the opposite party or his solicitor, and no |