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5. Any judgment obtained against any party in the absence SCHEDULE II. of such party may, on sufficient cause shown, be set aside by the Court upon such terms as may seem fit.
6. Any cause struck out may, by leave of the Court, be replaced on the cause list on such terms as to the Court may seem fit.
PROCEEDINGS AT THE HEARING.
1. The Order of Proceeding at the Hearing of a cause, in cases Where Statein which a statement of claims and of defence have been filed ments Filed. shall be as follows:
2. The party on whom the burden of proof is thrown by the Burden of nature of the material issues or questions between the parties, Proof. according as the Court may determine, has the right to begin. begin. He may state his case.
3. He shall then produce his evidence and examine his Evidence. witnesses-in-chief.
4. When the party beginning has concluded his evidence, he Summing-up. shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative he shall wait for his general reply.
5. When the party beginning has concluded his case, the other Case of other party shall be at liberty to state his case and to call evidence, and Party. to sum up and comment thereon.
6. If no evidence is called or read by the latter party, the party General beginning shall have no right to reply, unless he has been preReply. vented from summing up his case by the statement of the other party of his intention to call evidence.
7. The Case on both sides shall then be considered closed.
8. If the party opposed to the party beginning calls or reads Evidence in evidence, the party beginning shall be at liberty to reply generally Reply. on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.
9. Where evidence in reply is tendered and allowed to be Address given, the party against whom the same has been adduced shall thereon. be at liberty to address the Court, and the party beginning shall be entitled to the general reply.
10. Documentary evidence must be put in and read, or taken as Documentary read by consent.
11. If either party intends to use documents in evidence he must When Doculodge them with the Registrar at or previously to opening his case, together with a signed list of such documents, and he shall not
ments to be
SCHEDULE II. afterwards be at liberty to put in any documents or additional Ords. 35-37. documents unless it shall appear to the Court that there was sufficient reason for delaying their production.
12. Every document put in evidence shall be marked by the Officer of the Court at the time, and shall be retained by the Court during the hearing, and returned to the party who put it in, or from whose custody it came, immediately after the judgment, unless it is impounded by order of the Court.
13. In cases where written pleadings have not been filed, or the parties or either of them are incapable of understanding their effects with sufficient accuracy, the preceding Rules respecting the order of proceeding at the Hearing shall be varied by the Court so far as may be necessary. In particular, the statement of the Defendant in defence where he does not admit the whole cause of action, shall be heard immediately after the Plaintiff has concluded the statement of his claim and of the grounds thereof, and before any witnesses are examined, unless in any case the Court shall see reason to direct otherwise.
Disallowance of vexatious Questions.
Facts occurring after instituting Suit.
14. The Judge may in all cases disallow any question put in cross-examination which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter.
INQUIRIES AND ACCOUNTS.
1. In any cause or matter in which all parties interested, who are under no disability, consent thereto, and also without such consent Account may in any cause or matter requiring any prolonged examination of
be gated by Referee.
1. Facts or circumstances occurring after the institution of a Suit may by leave of the Court be stated at any stage of the proceedings previous to the conclusion of the Hearing, and the Court may make such order as seems just respecting the proof of such facts or circumstances, or for affording all parties concerned leave and opportunity to meet the statements so introduced.
documents or accounts or any scientific or local examination, which cannot in the opinion of the Court, having regard to the other business before it, conveniently be made by the Court in the usual manner, the Court may at any time, for reasons stated on the Minutes, on such terms as it may think proper, order any question or issue of fact, or any question of account arising therein, to be investigated or tried before a Referee, who shall be a District Commissioner or other competent person, to be agreed on between the parties or appointed by the Court.
2. In all such cases the Court shall furnish the Referee with SCHEDULE II. such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall Instructions direct the parties, if necessary, to attend upon the Referee during to Referee. the Inquiry. The Instructions shall specify whether the Referee is merely to transmit the proceedings which he may hold on the Inquiry, or also to report his own opinion on the point referred for his investigation.
3. The Court may at any stage of the proceedings direct any Court may such necessary inquiries or accounts to be made or taken notwith- direct standing that it may appear that there is some special or further Inquiries or relief sought for or some Special Issue to be tried, as to which it although not may be proper that the cause or matter should proceed in the exhaustive of ordinary manner.
4. The Referee may, subject to the Order of the Court, hold the General inquiry at or adjourn it to any place which he may deem most Powers of convenient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall so far as practicable proceed with the inquiry de die in diem.
5. Subject to any Order to be made by the Court ordering the Evidence. Inquiry, evidence shall be taken at any inquiry before a Referee, and the attendance of witnesses may be enforced by subpoena; and every such inquiry shall be conducted in the same manner as nearly as circumstances will admit as trials before a Judge of the Court, but not so as to make the tribunal of the Referee a public Court of Justice.
6. Subject to any such Order as last aforesaid, the Referee shall Referee's have the same authority in the conduct of any Inquiry as a Judge authority in the Inquiry. of the Court when presiding at any trial.
7. Nothing in these Rules contained shall authorize any Referee, Limitation in not being a District Commissioner, to commit any person to prison or to enforce any Order by attachment or otherwise; but the Court may, in respect of matters before a Referee, make any order of attachment or commitment it may consider necessary.
8. The Referee may before the conclusion of any inquiry before Referee may him, or by his report under the reference, submit any question report arising therein for the decision of the Court, or state any facts Facts specially.
9. The proceedings and report in writing of the Referee shall be received in evidence in the case unless the Court may have reason to be dissatisfied with them, and the Court shall have power to draw such inferences from the proceedings or report as shall be just.
specially. Effect of Report by
10. The Court shall have power to require any explanations or Powers of reasons from the Referee, and to remit the cause or matter or any Court. part thereof for further inquiry or consideration to the same or any other Referee, as often as may be necessary, and shall pass such ultimate Judgment or Order as may appear to be right and proper in the circumstances of the case.
Discontinuance of Suit.
Stay of subsequent Suit.
Non-suit where no Leave reserved.
1. If before the date fixed for hearing the Plaintiff desires to discontinue any Suit against all or any of the Defendants, or to withdraw any part of his claim, he shall give notice in writing to the Registrar and to every Defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice, such Defendant shall not be entitled to any further costs incurred in relation to the matter so discontinued or withdrawn other than those incurred prior to the receipt of such notice, unless the Court shall order otherwise; and such Defendant may apply to the Court ex parte for an Order against the Plaintiff for the costs incurred prior to the receipt of such notice, and the costs of the application. Such discontinuance or withdrawal shall not be a defence to any subsequent Suit. If in any other case the Plaintiff desires to discontinue any Suit, or to withdraw any part of his claim, or if a Defendant desires to discontinue or withdraw his counter-claim, or any part thereof, such discontinuance or withdrawal may, in the discretion of the Court, be allowed on such terms as to costs, and as to any subsequent Suit, and otherwise as to the Court may seem just.
2. If any subsequent Suit be brought before payment of the costs of a discontinued Suit for the same, or substantially the same, cause of action, the Court may order a stay of such subsequent Suit until such costs shall have been paid.
1. The Court may in any Suit without the consent of parties, non-suit the Plaintiff, where satisfactory evidence shall not be given entitling either the Plaintiff or Defendant to the judgment of the Court.
2. The Court may, upon motion for new trial, or review. of judgment, order a non-suit or judgment to be entered, although no leave has been reserved at the trial.
1. The Court may, without the consent of parties, direct a nonsuit or a judgment to be entered provisionally for the Plaintiff or Special Case. the Defendant, subject to any point of law which it may reserve for
further argument or consideration, or subject to a special case for the opinion of the Full Court.
2. Every such special case shall be jointly agreed upon by the SCHEDULE II. parties whenever practicable, and settled by the Court. Every such special case shall concisely state such facts and documents as Special Case. shall be necessary to enable the Full Court to decide the questions raised thereby. The Full Court shall be at liberty to draw any inference, whether of fact or law, which might have been drawn therefrom on the trial. The Full Court may send back such case for amendment if necessary, with any instruction it may deem requisite, and may require the Court below to certify its finding upon any question of fact arising in the Suit, and to receive further evidence if necessary, and may make such Order as it shall deem fit, and judgment in such Suit shall be entered in terms of such Order. But such judgment shall not, unless the parties shall so agree, preclude any of the parties to the Suit from bringing any appeal which he might otherwise under these Rules have brought from such judgment.
3. It shall not be necessary for the Full Court to hear any Procedure argument upon the special case; but if any of the parties so desire upon Special he may be heard thereon. If at or before the special case being settled in the Court below, any party to the Suit shall intimate to the Court his desire to be heard thereon in the Full Court, the Court below shall inform the Full Court, and the Full Court shall in such case cause notice to be given to the parties through the Court below, or otherwise as may seem most convenient, of the time and place at which they may be heard, and shall hear any of the parties who may then and there appear, and thereafter shall give judgment upon such special case, whether all or any of the parties shall have appeared or been heard or otherwise.
4. In the case of any Suit or matter before a District Com- In Cases missioner the present Order shall be read and construed as if in place District Comof the words "Full Court," wherever they occur, the words missioners. "Divisional Court" were substituted.
1. The decision or judgment in any Suit shall be delivered in Delivery of open Court, unless the Court otherwise so directs.
2. If the Court reserves judgment at the Hearing, parties to the Notice when Suit shall be served with notice to attend and hear judgment, Reserved. unless the Court at the Hearing states the day on which judgment will be delivered, in which case there shall be no further notice.
3. All parties shall be deemed to have notice of the decision or When Parties judgment if pronounced at the Hearing, and all parties served deemed to with notice to attend and hear judgment shall be deemed to have have had notice of the judgment when pronounced.
4. A Minute of every judgment, whether final or interlocutory, Minute of shall be made, and every such Minute shall be a Decree of the Julment: Court, and shall have the full force and effect of a formal Decree.