LVII. Cross-examin.

to the record.

Any party so examined may be cross-examined on his own behalf, confining the explanation to points on which he has been examined, under the following order :

Evidence taken under Order L. may be rebutted by ation of party adverse testimony. Any party examined as therein provided may be further examined, on his own behalf, in relation to any matter respecting which he has been examined in chief. And, where one of several plaintiffs or defendants, who are joint contractors, or united in interest, has been so examined, any other plaintiff or defendant, so united in interest, may also be examined on his own behalf, or on behalf of those united with him in interest, to the same extent as the party actually examined. Provided nevertheless, that such explanatory examination must be proceeded with immediately after the examination in chief, and not at any future period, except by leave of the Court.

LVIII.

Party to record

moved to be taken pro confesso, or dis

missed.

The following Order provides some stringent remedies in the case of any party to the record neglecting to attend to be examined.

Any party refusing or neglecting to attend at the time not attending, and place appointed for his examination under Order L. is in contempt. may be punished as for a contempt; and it shall be lawful Bill may be for the party desiring such examination, in addition to any other remedy to which he may be entitled, to apply to the Court, upon motion, either to have the bill taken pro confesso, or to have it dismissed, according to circumstances; and it shall be competent to the Court, upon such application, to order either that the bill be taken pro confesso against the party making default, or that it be dismissed; and, where from the circumstances of the case such order cannot be made, consistently with the rights of other parties to the suit, then it shall be competent to the Court to make such order, as to enlarging the time for passing publication, or otherwise, as to the Court may seem just.

Evidence can

less the ex

Under the above Order 57, it might be supposed that the party examining an adverse party on the record necessarily subjects himself to the testimony that such witness may give in his own favour, if on the points on which he has been examined in chief. Under the follow

not be read un- ing (59) Order, however, the examining party, whether a amining party Plaintiff or a Defendant, may, if he is advised, omit to

read it.

read any part of the testimony, and then the explanatory evidence cannot be read against him. This places the

evidence merely on the same footing as any other evidence taken by a Plaintiff, when the Defendant can read the cross-examination if the examination in chief has been read. It differs from ordinary evidence taken by a Defendant, for that can be read by a Plaintiff if he thinks proper, whether the Defendant reads it or not. The following is the Order :

Where the examining party uses any portion of the evidence taken under Order L. (but not otherwise), then it shall be competent for those, against whom it is used, to put in the entire evidence so taken, as well that given in chief as that in explanation.

It frequently happens, that in the examination before a Master Extraordinary in the country, the evidence is but imperfectly taken down; and, previous to the new rules, this led to much serious inconvenience, for it was only under the most special circumstances, and indeed very rarely, that a witness could be recalled. The following rule renders the practice more reasonable.

Whenever the evidence in a cause or any part thereof has been taken before an examiner or commissioner, and it can be made to appear that it would be conducive to

LIX.

All evidence any part read.

may be read, if

LX.

Witness may be recalled, if

he has been

the ends of justice that any of the witnesses so examined imperfectly ex(whether parties to the record or not) should be examined amined before before the Court upon the hearing, it shall be competent Master Extrato any party concerned in interest, at any time after pubordinary. lication passed, to apply to the Court, by motion, supported by affidavit, for that purpose; and thereupon it shall be competent for the Court to make such order as under all the circumstances may seem just.

The time for taking the evidence is limited by the following Order :

The rules to produce witnesses and pass publication are henceforth to be discontinued. Publication is to pass without rule or order on the expiration of two months after the filing of the replication, unless such time expire in the long vacation, or is enlarged by order; but in the computation of the two months hereby allowed, or any enlargement of such time, the long vacation is not to count. If the time be enlarged by order, publication is to pass without rule or order on the expiration of such enlarged time, unless the time is further enlarged by order.

LXI.

Publication passed in two enlarged by months, unless

order.

The Orders under which the time for passing publica- Application to

cation is to the Master.

enlarge publi- tion, are the 181st Order of 1846, and the following Orders, ante page 42. The application is to the Master. The application must be made before the two months expire, or it would seem that the Master has not jurisdiction, for then publication has passed, and, if evidence is required, a special application must be made to the Court on motion, founded on special circumstances.

1850.

LXII.

By LXII. New Order all depositions are to be taken Deposition in down in the first person. This was already the rule. If the first person. the deposition were otherwise, they could be suppressed, or their reading objected to at the hearing.

LXIII. Examination

The following Order lays down some rules for the guidance of the Examiners in the country.

If the examination of witnesses cannot be completed in of witnesses in one day, and the circumstances of the case permit, the the country. examiner is to proceed de die in diem during six hours

of each day, between the hours of eight in the morning and six in the afternoon, until the witnesses for all parties are fully examined. Nevertheless the examiner may, if in his opinion the circumstances of the case require an adjournment, adjourn the proceedings from time to time, and from place to place, in such manner as he thinks proper; but he is in all cases to enter on the depositions any adjournment, and, where such adjournment is from place to place or otherwise than de die in diem, the cause or reason of such adjournment.

CHAPTER XII.

Setting Down the Cause.

Publication having passed, the cause is set down to be argued, as follows:

[1850.

LXIX.

cause.

Seven days' notice.

Whereas the present practice, that causes can only be entered for hearing during the sittings, is productive of delay and inconvenience: It is ordered that from hence- Setting down forth causes may be set down for hearing, and demurrers for argument, and the subpoenas ad audiendum judicium returnable on any day. The party setting down a cause to be heard must sue out a subpoena to hear judgment, which writ shall be tested on the day on which such cause shall have been set down, and shall be made returnable in one month from the test; it must be served on all necessary parties at least seven days before that on which it is returnable. So soon as any cause shall have been set down, it shall be entered by the Registrar on the list of causes for hearing, and shall be called on and heard on the day for which it shall have been so set down, or so soon thereafter as the causes standing before it shall have been disposed of.

The cause must be set down by the plaintiff, unless he neglect to set it down within four weeks after publication has passed, and in that case any defendant can, unless he desires to move to dismiss the Bill, set down the cause to be heard under the following Order :

If after publication passed the plaintiff neglects to set down the cause to be heard, any defendant, after the expiration of four weeks, may set the same down at his own request, instead of proceeding to dismiss the Bill for want of prosecution, and may obtain a subpoena to hear judgment, and serve the same on the parties to the cause.

E

1850. LXVI.

Defendant may set down cause after four weeks.

Arguing cause.

Question of necessity for time which elapses after publication and

hearing.

January, 1845. 116.

Proceedings on objections for want of parties.

On the day on which the subpoena to hear judgment is returnable, the party, who has set down the cause, calls it on, and can insist on its being argued in its turn, next after the other causes which stand for that day. If not called on, it is put down to the foot of the paper. Care should therefore be taken to have a cause called on, on the day for which it is set down, and, if the opposite party applies for and obtains a postponement under any special circumstances, get some other day peremptorily fixed by the Court for the argument. The Court has recently determined, that if, when a cause is called on in its turn, the parties are unprepared, it is to be struck out of the paper, and not again set down except on a special application, and on good cause shown.

It is submitted, that the month's time, during which, under the above Order, the defendant must wait before he can set down the cause, which it may often be desirable to do, instead of moving to dismiss, is too long; and that the practice which has obtained, namely of any party to the cause setting it down as soon as he pleases, after publication passed, would be more speedy and convenient. And also, that there is no necessity for the month's time between the setting down the cause and the day of arguThe subpoena, as has been seen, need be served only seven days before the hearing, although it must be taken out a month before. The plaintiff under this practice can cause two months to elapse after publication before the hearing.

ment.

The above Order 66 is like the 116th English Order of 1845, except that instead of the word parties the word plaintiff is used, and it has been held that under the English Order the co-defendants need not be served by the defendant who set the cause down. (6 Maddock 193). Our Order being differently worded, the defendant, who sets the cause down, must serve all the parties, defendants as well as plaintiff.

When the answer objects to the frame of the bill for want of proper parties Plaintiff or Defendant, the case