No. 2. Act 3 Vic. c. 33.

extended.

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

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 thereon, then interest shall be allowed by the Court of Error, for such times as execution has been delayed by such writ of error for the delaying thereof.

Interest to be allowed on all

Writs of Error for delay of execution.

Executors sue

the Testator to pay costs.

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 administrator shall, unless the Court in which such action is 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 having a nolle prosequi, or a verdict, shall have costs.

Where nolle prosequi en

XXXII. That where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial of such 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 reasonable cause for making such person a defendant in such action.

XXXIII. That where any nolle prosequi shall have been entered 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 costs in that behalf.

Court, &c.

Plaintiff in scire facias

and plaintiff or defendant on demurrer, to have costs.

Costs of Special Juries in case of nonsuit, 6 G. 4, c. 50.

XXXIV. That in all writs of scire facias, the plaintiff obtaining judgment on an award of execution shall recover his costs of suit, upon a judgment by default, as well as upon a judgment after plea pleaded, or demurrer joined; and that where judgment shall be 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.

XXXV. And whereas, It is provided in and by a statute passed in the sixth year of the reign of His late Majesty, entitled "An Act for consolidating and amending the Law relative to Jurors and 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

said last-mentioned Act of Parliament, and everything therein contained, shall apply to cases in which the plaintiff shall be nonsuited, as well as to cases in which a verdict shall pass against him.

or land

No. 2.

Act 3 Vic. c. 33.

Clauses of Stat. extended.

Lessor may

distrain for arrears in his lifetime.

Arrears may

be distrained

XXXVII. That it shall be lawful for the executors or administrators 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 lord might have done in his lifetime. XXXVIII. That such arrearages may be distrained for after the end or determination of such term or lease, at will, in the same manner as if such term or lease had not been ended or determined : Provided, That such distress be made within the space of Six calendar months after the determination of such term or lease, and 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 arbitration more effectual; Be it, &c., That the power and authority of any arbitrator, or umpire appointed by, or in pursuance of, any Rule of Court, or Judge's Order, or order of nisi prius in any action now brought, or which shall be hereafter brought, or by or in pursuance of any submission to reference containing an agreement 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.

for within six months after determination

of term.

Submission to arbitration by Rule of Court, &c., not to be revocable

without leave of Court.

nesses.

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

No. 2.

Act 3 Vic. c. 33.

Clauses of Stat. extended.

Power for the arbitrators, under a Rule of Court, to administer an Oath.

satisfy such Court or Judge, that such person cannot be found: 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 more than two consecutive days, to be named in such order.

XLI. That when in any rule or order of reference, or in any submission to arbitration, containing an agreement that the submission shall be made a rule of court, it shall be ordered or agreed that the witnesses upon such reference shall be examined upon oath, it shall be lawful for the arbitrator or umpire, or any one 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.

PREAMBLE.

Commission

may issue for examination of persons unable from infirmity to attend Court

in person.

Powers of

to command

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.)

W

HEREAS, great difficulties and delays may often be experienced, and sometimes a failure of justice take place in 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 sickness or infirmity of such witnesses, and their consequent inability to attend such trial; for remedy whereof, May it, &c., That in all actions depending in any of the Courts of Law of these islands, when it shall appear on oath that a party required as a witness in the cause will be unable to attend the trial, from permanent sickness or other permanent infirmity, it shall and may be lawful to 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.

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 action shall be depending, by authority of this Act, it shall be lawful for the Court, or any Judge thereof, in and by the first rule 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

attendance of persons to be examined as

No. 3. Act 10 Vic. c. 30.

and where he may in any

rule or 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 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 to take the examination of witnesses, by any rule, order, or commission, 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.

Duty of persons anthorized to examine wit

nesses.

Persons authorized to

examine witnesses, may

specially re

IV. That it shall and may be lawful for the Prothonotary, or any other person to be named in every such rule or order, as aforesaid, for taking any examination in pursuance thereof, and he and they are hereby required to make, if need be, a special report to the 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 tried, or by the Court.

be

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 tnent 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

tary, or other person mang the same, shall and may, without proof of the sans a men sercate, be received and read in evidence, saving all just excent ns.

51⁄2 4—10 Fe à 8 dade fr ingroeing the Law of Evidence. March 27th, 1947.)

HEREAS, the inquiry aber mità in Courts of Justice is often destructed by neapacities created by the present law, and it is desirable that fall infi rmation as to the facts in issue, both in eriminal and in evil cases, should be laid before the persons who are appointed to decode upon them: and that such persons should exercise their jalment in the creia of the witnesses adduced, and on the truth of their testimony: Now, therefore. May it, &c., That no person offered as a winess shall hereafter be excluded by reason of incapacity, fem ezime or merest, from giving evidence, either in person or by deposition, ecrding 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 Con 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 cath or scienin ammation in these cases wherein affirmation may by law he 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 cfence: Provided that this Act shall not render ecmpetent 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 lan-Lord, 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.