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such a cross-bill being filed, the plaintiff in the original suit, 158 16Vict. in his character of defendant to the cross-bill, became liable to the application of the same rules concerning the production of documents, as a defendant in any other case. (Dan. Ch. Pr., 1689, 2nd ed.)
XX. It shall be lawful for the court, upon the Upon appliapplication of any defendant in any suit, whether cation of de commenced by bill or by claim, but as to suits answer, commenced by bill where the defendant is required plaintiffray
be required to answer the plaintiff's bill(c), not until after he to produce has put in a full and sufficient answer to the bill, on oath. unless the court shall make any order to the contrary, to make an order for the production by the plaintiff in such suit, on oath, of such of the documents in his possession or power relating to the matters in question in the suit, as the court shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just.
(c) See ante, s. 12, p. 17, and pp. 20—22, n.
XXI. The practice of the said court, of issuing Practice of commissions to take pleas, answers, disclaimers, and missions to examinations in causes and matters pending in the take answers, said court shall, with respect to pleas, answers, dis- the jurisdicclaimers, and examinations taken within the juris- tion of the diction of the court, be and the same is hereby lished. abolished (d); and any such plea, answer, disclaimer, or examination may be filed without any further or other formality than is required in the swearing and filing of an affidavit.
(a) As to commissions to examine witnesses abroad, see Dan. Ch. Pr. 894—908, 2nd ed.
XXII. All pleas, answers, disclaimers, exami- Pleas, declanations, affidavits, declarations, affirmations, and rations, &c.
, attestations of honour in causes or matters depend- how to be ing in the High Court of Chancery, and also ac- taken in Scotknowledgments required for the purpose of enrolling land, Ireland, any deed in the said court, shall and may be sworn Islands, &c. and taken in Scotland or Ireland, or the Channel Islands, or in any colony, island, plantation, or
158 16Vict. place under the dominion of her Majesty in foreign c. 86. parts, before any judge, court, notary public, or
person lawfully authorized to administer oaths in such country, colony, island, plantation, or place respectively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions: and the judges and other officers of the said Court of Chancery shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, notary public, person, consul, or vice-consul attached, appended, or subscribed to any such pleas, answers, disclaimers, examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments, or
other documents to be used in the said court. Penalty for XXIII. All persons swearing, declaring, affirm falsely swear
ing, or attesting before any person authorized by this act to administer oaths and take declarations, affirmations, or attestations of honour shall be liable to all such penalties, punishments, and consequences for any wilful and corrupt false swearing, declaring, affirming, or attesting contained therein as if the matter sworn, declared, affirmed, or attested had been sworn, declared, affirmed, or attested before any court or persons now by law authorized to administer oaths, and take declarations, affirmations, or attestations
honour. Penalty for XXIV. If any person shall forge the signature nature or seal or the official seal of any such judge, notary public, of judge, &c.
or other person lawfully authorized to administer empowered to administer, oaths under this act, or shall tender in evidence
any plea, answer, disclaimer, examination, affidavit, or other judicial or official document with a false or counterfeit signature or seal of any such judge, court, notary public, or other person authorized as aforesaid attached or appended thereto, knowing the same signature or seal to be false or counterfeit, every such person shall be guilty of felony, and shall be liable to the same punishment as any offender under an act passed in the eighth and ninth years of the reign of her present Majesty, intituled An Act to facilitate the Admission in Evidence of certain official and other Documents (e).
oaths under this act.
(e) Persons convicted under this act are liable to trans- 158 16Vict. portation for seven years, or to imprisonment for any term not more than three nor less than one year with hard labour. (8 & 9 Vict. c. 113, s. 4.)
XXV. Pleas, answers, disclaimers, or examina- Answers, &c. tions, whether taken by commission out of the ju- without oath risdiction of the said court or otherwise, may be of messenger. filed without the oath of a messenger, and any alterations made therein previously to the taking thereof shall be authenticated according to the practice now in use with respect to affidavits.
XXVI. In suits in the said court commenced Issue may be by bill, where notice of motion for a decree or de- joined by
filing replicacretal order shall not have been given, or, having tion as at been given, where a decree or decretal order shall not have been made thereon, issue shall be joined by filing a replication in the form or to the effect of the replication now in use in the said court ($); and where a defendant shall not have been required to answer and shall not have answered the plaintiff's bill, he shall be considered to have traversed the case made by the bill (9).
(f) By the 93d Order of May, 1845, no subpæna to rejoin is Subpoena to hereafter to be issued, and only one replication is to be filed in rejoin aboeach cause, unless the court otherwise orders; and the replication is to be in the form set forth at the foot of this order, or as near thereto as circumstances admit and require; and, upon Cause at issue the filing of such replication, the cause is to be deemed to be upon filing completely at issue, and each defendant may, without any
replication. rule or order, proceed to examine his witnesses, and the plaintiff may in like manner proceed to examine his witnesses so soon as notice of the replication being filed has been duly served on all the defendants who have filed an answer or plea, or against whom a traversing note has been filed.
Form of Replication. “ Between A. B.
Defendants. “ The plaintiff in this cause hereby joins issue with the de- Form of refendant C. D. [all the defendants who have answered, or pleaded, plication. or against whom a traversing note has been filed), and will hear the cause on bill and answer against the defendant E. F. (all the defendants against whom the cause is to be heard on bill und answer), and on the order to take the bill as confessed against the defendant G. H. [as the cuse may be].”
158 16Vict. A replication should not be filed where the answer of any c. 86.
important defendant is required by the plaintiff. (Stinton v. Taylor, 4 Hare, 608; Heanley v. Abrahum, 5 Hare, 214; Wragg v. Wragg, 11 Jur. 701.) When any solicitor or party shall cause a replication to be filed, he shall, on the same day, give notice thereof to the solicitor of the adverse party, or to the adverse party himself, if he acts in person. (23rd Order, 26th October, 1842.)
(g) See 28th Order, 7th August, 1852.
XXVII. Where a defendant to a suit in the said not having been required court commenced by bill shall not have been re
quired to answer the bill and shall not have answering. may swered the same, such defendant shall be at liberty
to move to dismiss the bill for want of prosecution,
at such tiines, and under such circumstances, and prosecution.
subject to such restrictions as shall be in that behalf prescribed by any general order of the Lord Chancellor (h).
(h) As to dismissal of bill for want of prosecution, see 29th Order, 7th August, 1852; Orders, 114-118, 8 May, 1845 ; Dan. Ch. Pr., 767–780, 2nd ed.
to answer, and not an
move for dis. missal of bill for want of
Court may order particular wit
XXVIII. The mode of examining witnesses in and mode of causes in the said court, and all the practice of the examining
said court in relation thereto, so far as such practice shall be inconsistent with the mode hereinafter prescribed of examining such witnesses, and the practice in relation thereto, shall, from and after the time appointed for the commencement of this act, be abolished (i): provided always, that the court may,
if it shall think fit, order any particular witness or nesses to be witnesses within the jurisdiction of the said court, upon interro- or any witness or witnesses out of the jurisdiction gatories as
of the said court, to be examined upon interrogatories in the mode now practised in the said court, and that with respect to such witness or witnesses the practice of the said court in relation to the examination of witnesses shall continue in full force(j), save only so far as the same may be varied by any general order of the Lord Chancellor in that behalf, or by any order of the court with reference to any particular case.
(i) In suits in which issue shall have been joined on the 2nd November, 1852, the evidence to be used at the hearing
of the cause shall be taken according to the existing practice 158 16Vict of the court, unless the parties shall consent, or the court shall
c. 86. order that the same shall be taken in the mode prescribed by this act and the new orders. (39th Order, 7th August, 1852.)
(j) As to examination of witnesses, see Dan. Ch. Pr. 872–894, 2nd ed. XXIX. When
any suit commenced by bill shall Plaintiff, be at issue, the plaintiff shall, within such time where suits thereafter as shall be prescribed in that behalf by issue, may
give notice to any general order of the Lord Chancellor, give defendant to notice to the defendant that he desires that the evi- adduce evi
dence orally dence to be adduced in the cause shall be taken
or by affiorally or upon affidavit, as the case may be; and if davit. the plaintiff shall desire the evidence to be adduced upon affidavit, and the defendant, or some or one of the defendants, if more than one, shall not, within such time as shall be prescribed in that behalf by any general order of the Lord Chancellor, give notice to the plaintiff or his solicitor that he or they desire the evidence to be oral, the plaintiff and defendants respectively shall be at liberty to verify their respective cases by affidavit (k).
(k) See 31st Order, 7th August, 1852.
XXX. When any of the parties to any suit com- Evidence menced by bill desires that the evidence should be may be take: adduced orally, and gives notice thereof to the op- quired, but posite party as herein before provided, the same may in cershall be taken orally, in the manner hereinafter tain cases provided; provided, that if the evidence be required order, &c. to be oral merely by a party without a sufficient interest in the matters in question, the court may, upon application in a summary way, make such order as shall be just.
XXXI. All witnesses to be examined orally Witnesses to under the provisions of this act shall be so exa- by one of the mined by or before one of the examiners of the examiners of court (1), or by or before an examiner to be spe- the presence cially appointed by the court, the examiner being of the parties furnished by the plaintiff with a copy of the bill, and of the answer, if any, in the cause; and such examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses so examined orally shall be subject to
the court in