Judgment on such confession or agreement. Any such statement shall be signed in the presence of the clerk of a court, a solicitor, or a justice of the peace. 51. (1.) The clerk shall receive such statement of confession or agreement, and as soon as convenient thereafter send notice of any Cf. 27 Viet., No. 21, such confession to the plaintiff, and thereupon it shall not be necessary for the plaintiff otherwise to prove the debt or demand, or part thereof so confessed, or the debt or demand agreed upon. s. 39; 51 & 52 Vict., c. 43, s. 99. Proceedings by (2.) The clerk, in case of any such statement of confession or agreement, shall enter up judgment for the plaintiff for the debt or demand so confessed, or for the part thereof so confessed if the plaintiff is willing to accept such part in satisfaction of his claim, or for the amount and upon the terms and conditions agreed upon, as the case may be, and such judgment shall to all intents and purposes be the same as if it had been a judgment of the court. Parties. 52. In proceedings under this Act by a man and his wife for an husband and wife. injury done to the wife in respect of which she is necessarily joined as a co-plaintiff, the husband may add claims in his own right. N.S.W., 1901, No. 4, 8. 43. One of several persons jointly Cf. 27 Vict., No. 21, s. 16; In the case of the death of either of them, the action, so far only as relates to the causes of action, if any, which do not survive, shall abate. 53. The bankruptcy of the plaintiff in an action which the trustee might maintain for the benefit of the creditors shall not cause the action to abate, if the trustee elects to continue the action and to give security for the costs thereof within such reasonable time as the magistrate orders, but the hearing of the action may be adjourned until the election is made. If the trustee does not elect to continue the action and to give the security within the time limited by the order, the defendant may avail himself of the bankruptcy as a defence to the action. 54. When a plaintiff has a demand recoverable under this Act liable may be sued. against two or more persons jointly answerable, it shall be sufficient if any one or more of the persons is or are served with process, and judgment may be obtained and execution issued against the person or persons so served, notwithstanding that others jointly liable are not served or sued, or are not within the jurisdiction of the court. 51 & 52 Vict., c. 43, s. 97. Partners. Every such person against whom judgment is so obtained, and who has satisfied the whole or a part of the judgment, shall be entitled to demand and recover contribution from any other person jointly liable with him. 55. Any two or more persons claiming or being liable as Cf. 58 Vict., No. 13, partners may sue or be sued in the name of the respective firms, if s. 21. any any, of which such persons were partners at the time of the accruing of the cause of action; and in any such case any party to the action may apply for the names of the partners in any such firm, and the magistrate may order an affidavit to be filed stating the names and addresses of such partners. Any person carrying on business in the name of a firm apparently consisting of more than one person may be sued in the name of such firm. 56. An executor or administrator may sue and be sued Executors. 8. 14: in the same manner in which a person may sue or be sued 27 Vict., No. 21, in his own right, and in any such case judgment may be given 51 & 52 Vict., c. 43, and execution issued against the same persons against whom, and in s. 95. the same manner in which, judgment would be given or execution issued in the Supreme Court. 57. A person under the age of twenty-one years may sue by Infants. his next friend, and defend by a guardian ad litem. Provided that any minor may sue in his own name for wages or piecework, or for work or services as a clerk, servant, mechanic, or labourer, in the same manner as if he were of full age. Provided, also, that any minor above the age of eighteen years may sue or be sued without a next friend or guardian, upon any cause of action within the jurisdiction of the court in respect of which he might sue or be sued by next friend or guardian; and judgment may be given in any such action, and such proceedings may be had and taken as if the minor were of the full age of twentyone years. Joinder and Severance of Causes of Action. 58. Two or more causes of action, if by and against the same Joinder of causes of parties, may be joined in the same action; but if the magistrate is action. of opinion that the trial of different causes of action together would N.S.W., 1901, No. 4, be inexpedient or inconvenient, he may order separate trials to be had. 59. s. 42. s. 8.11; 3 Edw. VII., c. 42. A plaintiff shall not divide a cause of action for the purpose Splitting demands. of bringing two or more actions; but a plaintiff having a cause of cf. 27 Vict., No. 21, action for more than the amount for which a plaint might be entered may abandon the excess (which abandonment shall be stated when the plaint is entered), and thereupon the plaintiff may, on proving his case, recover to an amount not exceeding one hundred pounds, and the judgment of the court shall be in full discharge of all demands in respect of the cause of action, and entry of the judgment of the court shall be made accordingly. 8. 3. 60. If a defendant has given two or more bills of exchange, Splitting debt by promissory notes, bonds, or other securities, for a debt or sum giving bills, etc. originally 8. 45. N.S.W., 1901, No. 4, Magistrate may change venue. Cf. 51 & 52 Vict., c. 43, s. 85. Summons to witnesses. 27 Vict., No. 21, s. 78. Penalty on witnesses neglecting sum mons. 27 Vict., No. 21, s. 79; Cf. 51 & 52 Vict., c. 43, s. 111. Magistrate may cause arrest of originally exceeding one hundred pounds, the plaintiff may sue separately upon each of the securities not exceeding one hundred pounds as forming a distinct cause of action. Changing Venue. 61. (1.) If the magistrate is satisfied by either party to an action or matter pending in a court assigned to him that such action or matter can be more conveniently or fairly tried or heard in another court, he may order that the same be sent for trial to such other court. (2.) If a magistrate is interested in an action or matter pending in a court assigned to him, he shall either order the action or matter to be sent for trial or hearing to the nearest court which is not assigned to him, or shall adjourn the trial and order the same to be heard before another magistrate. (3.) The clerk of the court in which the action or matter was commenced shall forthwith transmit, to the clerk of the court to which it is sent, a certified copy of all the proceedings therein, and the magistrate of the last-mentioned court shall appoint a day for the trial or hearing, notice whereof shall be sent, by post or otherwise, by the clerk, to both parties. Means of obtaining Evidence. 62. A party to an action or matter may obtain, at the office of the clerk, summonses to witnesses, requiring them to attend at the trial, with or without a clause requiring the production of books, deeds, papers, and writings in their possession or control. 63. Any person summoned as a witness, either personally or in the prescribed manner, to whom at the same time payment or a tender of payment of his expenses is made on the prescribed scale, and who refuses or neglects, without sufficient cause, to appear or to produce any books, deeds, papers, or writings, required by the summons to be produced, and also every person present in court who is required to give evidence and who refuses to be sworn and give evidence, shall forfeit and pay such fine, not exceeding fifty pounds, as the magistrate shall direct. The whole or a part of the fine, as the magistrate thinks fit, after deducting the costs of levying it, shall be applicable toward indemnifying the party injured by the refusal or neglect, and the remainder shall be disposed of in the same manner in which other moneys recovered by the clerk of the court by which the fine was imposed are disposed of, but the fine shall not exempt the person from an action for disobeying the summons. 64. Instead of fining the person so refusing or neglecting to witness not attend- appear, the magistrate before whom the person should have appeared may, if good cause is not shown for his non-appearance, issue his ing on summons. Q., 1891, No. 33, s. 104. warrant warrant to bring and have the person at a time and place to be therein mentioned before the magistrate to testify what he knows concerning the matters in dispute in the action or matter in which he is summoned as a witness, and may adjourn the trial to that time and place. 65. (1.) Any party to an action or matter may call on any Notice to admit. other party thereto, by notice in the prescribed form, to admit any Vict. C.C. Act, fact or document, saving all just exceptions; and in case of refusal 1890, s. 76. or neglect to admit. the cost of proving the fact or document shall be paid by the party so neglecting or refusing, whatever the result of the action or matter may be, unless on the trial or hearing the magistrate shall certify that the refusal to admit was reasonable. 2.) An affidavit of a party or of the solicitor in any action Ibid., s. 77. or matter or his clerk of the signature of any admission made in pursuance of such notice and annexed to the affidavit shall be sufficient evidence of such admission. 66. Upon the application of any party to an action or matter, Discovery of docuthe magistrate may order that (a.) the party against whom such application is made; or ments. Cf. Vict. C.C. Act, 1890, s. 79. N.S.W., 1901, No. 4, (b.) if such party is a body corporate, some officer to be s. 69. shall answer, on affidavit, stating what documents he or they has or But discovery shall not be ordered when and so far as the magistrate is of opinion that it is not necessary either for disposing of the action or matter, or for saving costs. 67. Any party to an action or matter may, at any time, give notice in writing to any other party in whose particulars of claim, set off, counterclaim, or affidavits reference is made to any document, to produce such document for inspection of the party giving such notice, or his solicitor, and to permit copies thereof to be taken. A party not complying with such notice shall not afterwards be at liberty to put such document in evidence in such action or matter, unless he satisfies the magistrate that he had a cause or excuse, which the magistrate deems sufficient, for not complying with such notice, in which case the magistrate may allow the same to be put in evidence on such terms, if any, as he may think fit. 68. A magistrate shall, in the exercise of the powers conferred by the two last preceding sections, have and exercise the same power Inspection of docu ments. Cf. Vict. C.C. Act, Mode of enforcing discovery. Viet. C.C. Act, and 1890, s. 80. Examination de bene esse. N.S.W., 1901, No. 4, s. 70. Q., 1891, No. 33, s. 105. Trial. Proceedings at the and authority for compelling obedience to, and for punishing disobedience of orders made thereunder, as the Supreme Court, or a Judge thereof, may exercise for compelling obedience to, or punishing disobedience of, any such order. 69. (1.) A magistrate may, at any time after plaint filed, on the application of either party, supported by affidavit showing(4.) that the evidence of any specified witness, including either of the parties, is material in the action; and (b.) that such witness is absent from the State, or above one hundred miles from the place of trial, or unable from sickness or infirmity to attend at the hearing, or is about to quit the State or to go to some place beyond the said distance, take in court or in chambers, or authorise the clerk of any Local Court, or any justice of the peace, or legal practitioner, whether of Western Australia or elsewhere, to take, at some convenient place, the examination of such witness de bene esse. (2.) All evidence so taken shall be admissible at the hearing, subject to all just exceptions, unless it is proved that such witness is, at the time of the hearing, within a convenient distance of the court and able to attend. (3) In every case the opposite party shall have sufficient notice of the time and place appointed for taking such examination, and may cross-examine such witness in the usual manner. (4.) The magistrate may either direct the costs of taking such evidence to be paid by the party applying, or make the same costs in the cause. Trial. 70. The magistrate shall, in all actions or proceedings in the court, determine all questions of law and of fact. 71. On the return day the plaintiff shall appear, and thereupon trial when both the defendant shall be required to answer the plaint; and on answer being made in court the magistrate shall proceed to try the action and give judgment without further pleading or formal joinder of parties appear. 51 & 52 Vict., c. 43, 8. 79. Proceedings when plaintiff does not appear. issue. 72. If on the return day or upon any adjournment of the court or of the action the plaintiff does not appear, and the Cf. 27 Viet., No. 21, defendant appears, the plaintiff shall be nonsuited: s. 21; 51 & 52 Vict., c. 43, s. 88. But if the plaintiff does not appear when called upon, and the defendant appears and admits the cause of action to the full amount claimed, and pays the fees payable in the first instance by the plaintiff, the magistrate may proceed to give judgment as if the plaintiff had appeared. If |