Enforcing attendance The attendance of witnesses and the production of of witness, documents, &c., is enforced by the usual writs of subpana ad testificandum and subpoena duces tecum (see 3 & 4 Vict. c. 65, s. 9). By A. C. Act, 1861, s. 21, service in any part of Great Britain and Ireland of either of these writs issued under the seal of the Court of Admiralty was as effectual as if the same had been served in England or Wales: this would apply to the Admiralty Division. The writ is issued from the registry. Costs. Evidence on affidavit. Examina tion of witnesses before officer of court or other person. The costs of material witnesses, who, though in attendance at the hearing, have not been called, are allowed (The Biddick, 38 L. J. Ad. 24; 19 L. T. N. S. 705), but not those of a receiver of wreck, when certified copies of the statements made before him would have answered all purposes (The Cromwell, L. R. 3 Ad. 316). 2. Upon any motion, petition, or summons, evidence may be given by affidavit; but the Court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit. 3. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. The principles of evidence stated in this rule must be strictly adhered to. As to filing, see next page. upon 4. The Court or a judge may, in a cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination oath before any officer of the Court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct. 389. Proceedings under this rule are still also regulated by ། 3a. Every affidavit shall be drawn up in the first person, and shall Form of affidavits. be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule. 3b. Every affidavit shall state the description and true place of Descripabode of the deponent. tion and address of 3c. In every affidavit made by two or more deponents the names deponent of the several persons making the affidavit shall be inserted in the to be jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the "above-named " deponents. behalf stated. Affidavits made by two or There more deponents. Affidavit to be filed. 3d. Every affidavit shall be filed in the Central Office. shall be appended to every affidavit a note showing on whose it is filed. 3e. No affidavit having in the jurat or body thereof any inter- Alteralineations, alteration, or erasure shall, without leave of the Court or tions in a Judge, be read or made use of in any matter depending in Court affidavits. unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or, if taken at the Central Office, either by his initials or by the stamp of that office, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the officer taking it. 3f. Where an affidavit is sworn by any person who appears to the Affidavits officer taking the affidavit to be illiterate, the officer shall certify in by illiterate perthe jurat that the affidavit was read in his presence to the deponent, sons. that the deponent seemed perfectly to understand it, and that the deponent made his or her signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and apparently perfectly understood by the deponent. of affida vits, and use of 3g. In cases in which by the present practice an original affidavit Stamping is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left with the proper officer in Court or in Chambers, office who shall send it to the Central Office. An office copy of an affi- copies. davit may in all cases be used, the original affidavit having been previously filed in the Central Office, and the copy duly authenticated with the seal of that office. Evidence by affidavit. Time. ORDER XXXVIII. EVIDENCE BY AFFIDAVIT. 1. Within fourteen days after a consent for taking evidence by affidavit as between the plaintiff and the defendant has been given, or within such time as the parties may agree upon or a judge in chambers may allow, the plaintiff shall file his affidavits, and deliver to the defendant or his solicitor a list thereof. 2. The defendant, within fourteen days after delivery of such list, or within such time as the parties may agree upon or a judge in chambers may allow, shall file his affidavits, and deliver to the plaintiff or his solicitor a list thereof. 3. Within seven days after the expiration of the said fourteen days or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof. Cross-ex- 4. When the evidence is taken by affidavit, any party desiring to amination. cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed, a notice in writing requiring the production of the deponent for cross-examination before the Court at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court or a judge may specially appoint: and, unless such deponent is produced accordingly, his affidavit shall not be used as evidence, unless by the special leave of the Court. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. 5. The party to whom such notice as is mentioned in the last preceding rule is given, shall be entitled to compel the attendance of the deponent for cross-examination, in the same way as he might compel the attendance of a witness to be examined. Printing 6. When the evidence in any action is, under this order, taken by evidence. affidavit, such evidence shall be printed; and the notice of trial shall be given at the same time or times after the close of the evidence as in other cases is by these rules provided, after the close of the pleadings. The filing mentioned in r. 1 is at the registry. ORDER XL. MOTION FOR JUDGMENT. 1. Except where by the Act or by these rules it is provided that Motion judgment may be obtained in any other manner, the judgment of the for judgCourt shall be obtained by motion for judgment. See remarks to O. xiii. (r. 10), and O. xxix. This rule, except, possibly, under the orders here referred to, has but little application to proceedings in the Admiralty Division. ment. down. 9. No action shall, except by leave of the Court or a judge, be set Time for down on motion for judgment after the expiration of one year from setting the time when the party seeking to set down the same first became entitled so to do. 10. Upon a motion for judgment, or for a new trial, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that if has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit. admission of fact. 11. Any party to an action may, at any stage thereof, apply to the Order on Court or a judge for such order as he may, upon any admissions of fact in the pleadings, be entitled to, without waiting for the determination of any other question between the parties. The foregoing rules of this order shall not apply to such applications; but any such application may be made by motion, so soon as the right of the party applying to the relief claimed has appeared from the pleadings. The Court or a judge may, on any such application, give such relief, subject to such terms, if any, as such Court or judge may think fit. The exercise of the power vested in the judge by this last rule is wholly in his discretion (Mellor v. Sidebottom, L. R. 5 Ch. D. 342; 46 L. J. Ch. 398; and for examples of the working of this rule see Turquand v. Wilson, L. R. 1 Ch. D. 85; 45 L. J. Ch. 103; and Martin v. Gale, 36 L. T. N. S. 357). This rule might be found useful in actions of possession, in suits between co-owners, and in actions as to mortgages. ORDER XLI. ENTRY OF JUDGMENT. Entry of 1. Every judgment shall be entered by the proper officer in the judgment. book to be kept for that purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the action other than any petition or summons; such copy shall be in print, except such parts (if any) of the pleadings as are by these rules permitted to be written: Provided that no copy need be delivered of any pleading a copy of which has been delivered on entering any previous judgment in such action. The Forms in Appendix (D.) hereto may be used, with such variations as circumstances may require. Date. The de cree. 2. Where any judgment is pronounced by the Court or a judge in Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, and the judgment shall take effect from that date. 3. In all cases not within the last preceding rule, the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date. 4. Where under the Act or these rules or otherwise it is provided that any judgment may be entered or signed upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and, if the same be regular and contain all that is by law required, he shall enter judgment accordingly. 5. Where by the Act or these rules or otherwise any judgment may be entered pursuant to any order or certificate or return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly. Judgment eo nomine is not entered in the Admiralty Division, but the decree of the judge is entered in a minute book. The last part of r. 1 of this order is, therefore, not applicable R. 3 would only apply in the very rare case |