The Irish Jurist

37. The Court of Error, the Exchequer Chamber, and the House of Lords, shall be Courts of Appeal for the purposes of this Act.

spect of such document, and of the penalty required 36. In all cases of motions for a new trial upon by statute, and of the additional penalty of one pound, the ground that a ruling of the judge is against give a receipt for the amount of the duty or deficiency law, if the rule to show cause be refused, or if which the judge shall determine to be payable, and granted be then discharged or made absolute, the also of the penalty, and thereupon such document party decided against may appeal, provided any shall be admissible in evidence, saving all just ex- one of the judges dissent from the rule being receptions on other grounds; and an entry of the fact fused, or, when granted, being discharged or made of such payment and of the amount thereof shall be absolute, as the case may be, or, provided the court made in a book kept by such officer; and such offi- in its discretion think fit that an appeal should be cer shall, at the end of each sittings or Assizes (as allowed; provided that where the application for the case may be) duly make a return to the Com- a new trial be upon matter of discretion only, as missioners of the Inland Revenue of the monies, if on the ground that the verdict was against the any, which he has so received by way of duty or pe- weight of evidence or otherwise, no such appeal nalty, distinguishing between such monies, and stat- shall be allowed. ing the name of the cause and of the parties from whom he received such monies; and he shall pay over the said monies to the Receiver-General of the Inland Revenue, or to such person as the said Commissioners shall appoint or authorize to receive the same; and in case such officer shall neglect or refuse to furnish such account, or to pay over any of the monies so received by him as aforesaid, he shall be liable to be proceeded against in the manner directed by the eighth section of an Act passed in the session of Parliament holden in the thirteenth and fourteenth years of the reign of her present Majesty, intituled “An Act to repeal certain Stamp Duties, and to grant others in lieu thereof, and to amend the Laws relating to the Stamp Duties;" and the said Commissioners shall, upon request, and production of the receipt herein-before mentioned, cause such documents to be stamped with the proper stamp or stamps in respect of the sums so paid as aforesaid: Provided always, that the aforesaid enactment shall not extend to any document which cannot now be stamped after the execution thereof on payment of the duty and a penalty.

31. No document made or required under the provisions of this Act shall be liable to any stamp duty.

32. No new trial shall be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp.

33. Error may be brought upon a judgment upon a special case in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary; and the proceedings for bringing a special case before the Court of Error shall, as nearly as may be, be the same as in the case of a special verdict; and the Court of Error shall either affirm the judgment or give the same judgment as ought to have been given in the court in which it was originally decided, the said Court of Error being required to draw any inferences of fact from the facts stated in such special case which the court where it was originally decided ought to have drawn.

34. In every rule nisi for a new trial or to enter a verdict or nonsuit, the grounds upon which such rule shall have been granted shall be shortly stated therein.

35. In all cases of rules to enter a verdict or nonsuit upon a point reserved at the trial, if the rule to show cause be refused or granted and then discharged or made absolute, the party decided against may appeal.

38. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney, and to one of the Masters of the court, within four days after the decision complained of, or such further time as may be allowed by the court or a judge.

39. Notice of appeal shall be a stay of execution, provided bail to pay the sum recovered and costs be given, in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivered to the sheriff.

40. The appeal herein-before mentioned shall be upon a case to be stated by the parties, (and in case of difference, to be settled by the court or a judge of the court appealed from,) in which case shall be set forth so much of the pleadings, evidence, and the ruling or judgment objected to, as may be necessary to raise the question for the decision of the Court of Appeal.

41. When the appeal is from the refusal of the court below to grant a rule to show cause, and the Court of Appeal grant such rule, such rule shall be argued and disposed of in the Court of Appeal.

42. The Court of Appeal shall give such judgment as ought to have been given in the court below; and all such further proceedings may be taken thereupon as if the judgment had been given by the court in which the record originated.

43. The Court of Appeal shall have power to adjudge payment of costs, and to order restitution; and they shall have the same powers as the Court of Error in respect of awarding process and otherwise.

44. Upon an award of a trial de novo by any one of the Superior Courts or by the Court of Error, upon matter appearing upon the record, error may at once be brought; and if the judgment in such or any other case be affirmed in error, it shall be lawful for the Court of Error to adjudge costs to the defendant in error.

45. When a new trial is granted, on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the court shall otherwise order.

46. Upon motions founded upon affidavits it shall be lawful for either party, with leave of the court or a judge, to make affidavits in answer to the affidavits of the opposite party, upon any new

matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits.

47. Upon the hearing of any motion or summons it shall be lawful for the court or a judge, at their or his discretion, and upon such terms as they or he shall think reasonable, from time to time to order such documents as they or he may think fit to be produced, and such witnesses as they or he may think necessary to appear, and be examined vivâ voce, either before such court or judge, or before the Master, and upon hearing such evidence, or reading the report of such Master, to make such rule or order as may be just.

48. The court or judge may by such rule or order, or any subsequent rule or order, command the attendance of the witnesses named therein, for the purpose of being examined, or the production of any writings or other documents to be mentioned in such rule or order; and such rule or order shall be proceeded upon in the same manner, and shall have the same force and effect, as a rule of the court under an Act passed in the first year of the reign of his late Majesty King William the Fourth, intituled "An Act to enable Courts of Law to order the examination of witnesses upon interrogatories or otherwise;" and it shall be lawful for the court, or judge, or Master, to adjourn the examination from time to time as occasion may require; and the proceedings upon such examination shall be conducted, and the depositions taken down, as nearly as may be, in the mode now in use with respect to the vivâ voce examination of witnesses under the last-mentioned Act.

49. Any party to any civil action or other civil proceeding in any of the Superior Courts, requiring the affidavit of a person who refuses to make an affidavit, may apply by summons for an order to such person to appear and be examined upon oath before a judge or Master, to whom it may be most convenient to refer such examination, as to the matters concerning which he has refused to make an affidavit; and a judge may, if he think fit, make such order for the attendance of such person before the person therein appointed to take such examination, for the purpose of being examined as aforesaid, and for the production of any writings or documents to be mentioned in such order, and may therein impose such terms as to such examination, and the costs of the application and proceedings thereon, as he shall think just.

50. Such order shall be proceeded upon in like manner as an order made under the herein-before mentioned Act passed in the first year of the reign of his late Majesty King William the Fourth, and the examination thereon shall be conducted, and the depositions taken down and returned, as nearly as may be, in the mode now used on vivâ voce examinations under the said Act of Parliament.

51. Upon the application of either party to any cause or other civil proceeding in any of the Superior Courts, upon an affidavit by such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be lawful for the court or

judge to order that the party against whom such application is made shall answer on affidavit, stating what documents he has in his possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he objects (and if so, on what grounds,) to the production of such as are in his possession or power; and upon such affidavit being made to the court or judge may make such further order thereon as shall be just.

52. In all causes in any of the Superior Courts, by order of the court or judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them by leave of the court or a judge may, at any other time, deliver to the opposite party or his attorney (provided such party would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a judge shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly.

53. The application for such order shall be made upon an affidavit of the party proposing to interrogate, and his attorney or agent, stating that the deponents believe that the party proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery which he seeks, that there is a good cause of action or defence upon the merite, and, if the appli cation be made on the part of the defendant, that the discovery is not sought for the purpose of delay; provided that where it shall happen, from unavoidable circumstances, that the plaintiff or defendant cannot join in such affidavit, the court or judge may, if they or he think fit, upon affidavit of such circumstances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit.

54. In case of omission, without just cause, to answer sufficiently such written interrogatories, it shall be lawful for the court or a judge, at their or his discretion, to direct an oral examination of the interrogated party, as to such points as they or he may direct, before a judge or Master; and the court or judge may by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination, for the purpose of being orally examined as aforesaid, or the produc tion of any writings or other documents to be mientioned in such rule or order, and may impose therein such terms as to such examination, and the costs of the application, and of the proceedings thereon, and otherwise, as to such court or judge shall seem just.

55. Such rule or order shall have the same force and effect, and may be proceeded upon in like manner, as an order made under the said herein

before mentioned Act passed in the first year of the duction of any books or documents, and the exareign of his late Majesty King William the Fourth.mination shall be conducted in the same manner as 56. Whenever, by virtue of this Act, an exami- in the case of an oral examination of an opposite nation of any witness or witnesses has been taken party before a Master under this Act. before a judge of one of the said Superior Courts, or before a Master, the depositions taken down by such examiner shall be returned to and kept in the Master's office of the court in which the proceedings are pending; and office copies of such depositions may be given out, and the depositions may be otherwise used, in the same manner as in the case of depositions taken under the herein-before mentioned Act passed in the first year of the reigning or accruing from such third person (hereinafter of his late Majesty King William the Fourth.

62. It shall be lawful for a judge, upon the ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his attorney stating that judg ment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owcalled the garnishee) to the judgment debtor shall 57. It shall be lawful for every judge or Master be attached to answer the judgment debt; and by named in any such rule or order as aforesaid for the same or any subsequent order it may be ortaking examinations under this Act, and he is here- dered that the garnishee shall appear before the by required to make, if need be, a special report to judge or a Master of the court, as such judge shall the court in which such proceedings are pending, appoint, to show cause why he should not pay the touching such examination, and the conduct or ab-judgment creditor the debt due from him to the sence of any witness or other person thereon or re-judgment debtor, or so much thereof as may be lating thereto; and the court is hereby authorized sufficient to satisfy the judgment debt.

to institute such proceedings and make such order 63. Service of an order that debts due or accruand orders upon such report as justice may require,ing to the judgment debtor shall be attached, or and as may be instituted and made in any case of notice thereof to the garnishee, in such manner as contempt of the court. the judge shall direct, shall bind such debts in his hands.

58. The costs of every application for any rule or order to be made for the examination of witnesses by virtue of this Act, and of the rule or order and proceedings thereon, shall be in the discretion of the court or judge by whom such rule or order is made.

59. Either party shall be at liberty to apply to the court or a judge for a rule or oder for the inspection by the jury, or by himself, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper deter mination of the question in dispute; and it shall be lawful for the court or a judge, if they or he think fit, to make such rule or order, upon such terms as to costs and otherwise as such court or judge may direct Provided always, that nothing herein contained shall affect the provisions of the "Common Law Procedure Act, 1852," or any previous Act as to obtaining a view by a jury: provided also, that all rules and regulations now in force and applicable to the proceedings by view under the said last-mentioned Act shall be held to apply to proceedings for inspection by a jury under the provisions of this Act, or as near thereto as may be.

60. The several courts, or any judge thereof, may make all such rules or orders upon the sheriff or other person as may be necessary to procure the attendance of a special or common jury, for the trial of any cause or matter depending in such courts, at such time and place and in such manner as they or he may think fit.

61. It shall be lawful for any creditor who has obtained a judgment in any of the Superior Courts to apply to the court or a judge for a rule or or der that the judgment debtor should be orally examined as to any and what debts are owing to him, before a Master of the court or such other person as the court or judge shall appoint; and the court or judge may make such rule or order for the examination of such judgment debtor, and for the pro

64. If the garnishee does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the judge may order execution to issue, and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from such garnishee towards satisfaction of the judgment debt.

65. If the garnishee disputes his liability, the judge, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit; and the proceedings upon such suit shall be the same, as nearly as may be, as upon a writ of revi. vor issued under "The Common Law Procedur Act, 1852."

66. Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment debtor, to the amount paid or levied, although such proceeding may be set aside or the judgment reversed.

67. In each of the Superior Courts there shall be kept at the Master's Office a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise; and the mode of keeping such books shall be the same in all the courts; and copies of any entries made therein may be taken by any person, upon application to any Master.

68. The costs of any application for an attachment of debt under this Act, and of any proceed

ings arising from or incidental to such application, 77. Upon application by motion for any writ of shall be in the discretion of the court or a judge. mandamus in the Court of Queen's Bench, the rule 69. The plaintiff in any action in any of the Su-may in all cases be absolute in the first instance, perior Courts, except replevin and ejectment, may if the court shall think fit; and the writ may bear endorse upon the writ and copy to be served a no- teste on the day of its issuing, and may be made tice that the plaintiff intends to claim a writ of returnable forthwith, whether in term or in vacamandamus, and the plaintiff may thereupon claim tion, but time may be allowed to return it, by the in the declaration, either together with any other court or a judge, either with or without terms. demand which may now be enforced in such action, or separately, a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested.

70. The declaration in such action shall set forth sufficient grounds upon which such claim is founded, and shall set forth that the plaintiff is personally interested therein, and that he sustains or may sus. tain damage by the non-performance of such duty, and that performance thereof has been demanded by him, and refused or neglected.

71. The pleadings and other proceedings in any action in which a writ of mandamus is claimed shall be the same in all respects, as nearly as may be, and costs shall be recoverable by either party, as in an ordinary action for the recovery of damages. 72. In case judgment shall be given to the plaintiff that a mandamus do issue, it shall be lawful for the court in which such judgment is given, if it shall see fit, besides issuing execution in the ordinary way for the costs and damages, also to issue a peremptory writ of mandamus to the defendant, commanding him forthwith to perform the duty to be enforced.

73. The writ need not recite the declaration or other proceedings, or the matter therein stated, but shall simply command the performance of the duty, and in other respects shall be in the form of an ordinary writ of execution, except that it shall be directed to the party and not to the sheriff, and may be issued in term or vacation, and returnable forthwith; and no returu thereto, except that of compliance, shall be allowed, but time to return it may, upon sufficient grounds, be allowed by the court or a judge, either with or without terms.

74. The writ of mandamus so issued as aforesaid shall have the same force and effect as a peremptory writ of mandamus issued out of the Court of Queen's Bench, and in case of disobedience may be enforced by attachment.

75. The court may, upon application by the plaintiff, besides or instead of proceeding against the disobedient party by attachment, direct that the act required to be done may be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant; and upon the act being done, the amount of such expense may be ascertained by the court, either by writ of inquiry, or reference to a Master, as the court or a judge may order; and the court inay order payment of the amount of such expenses and costs, and enforce payment thereof by execution.

76. Nothing herein contained shall take away the jurisdiction of the Court of Queen's Bench to grant writs of mandamus; nor shall any writ of mandamus issued out of that court be invalid by reason of the right of the prosecutor to proceed by action for mandamus under this Act.

78. The provisions of "The Common Law Procedure Act, 1852," and of this Act, so far as they are applicable, shall apply to the pleadings and proceedings upon a prerogative writ of mandamus issued by the Court of Queen's Bench.

79. The court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, and that if the said chattel cannot be found, and unless the court or a judge shall otherwise order, the sheriff shall dis train the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defeudant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's goods the assessed value of such chattel; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defenant's goods the damages, costs, and interest in such action.

80. In all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner as herein-before provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract, or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right; and he may also in the same action include a claim for damages or other redress.

81. The writ of summons in such action shall be in the same form as the writ of summons in any personal action, but on every such writ and copy thereof there shall be endorsed a notice that in default of appearance the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain a writ of injunction.

82. The proceedings in such action shall be the same as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandamus under the provisions herein-before contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and thereupon the like proceedings may be taken to issue and enforce such writ as may now be taken upon a judgment in prohibition.

83. It shall be lawful for the plaintiff at any time after the commencement of the action, and whether before or after judgment, to apply ex parte to the court or a judge for a writ of injunction to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract complained of, or the committal of any breach