Equity Act of 1880 No 39a (NSW)
No. XVIII.
An Act to amend the Law respecting the Procedure and Practice of the Supreme Court in its Equitable Jurisdiction. [12th July, 1880.]
| BE i t enac ted by t h e Queen ' s | t he advice and consent of t he Legislat ive Council and Legis la t ive Assembly of N e w South | W a l e s | in | Pa r l i amen t | assembled | and by t h e |
Mos t Exce l l en t Majesty by and wi th
au tho r i t y of the same as follows :—
Jurisdiction of the Judge in Equity.
1. I t shall be lawful for t he Governor wi th t he advice of t he
Execu t ive Counci l to appoint one of the J u d g e s of t he Supreme Cour t
to be t he P r i m a r y J u d g e in E q u i t y hereinafter called t h e J u d g e and
| as such J u d g e to exercise | t he | jur isdict ion of | t h e said Cour t in | E q u i t y |
| A n d | the | Supreme | Cour t shal l be holden by t h e J u d g e so appointed |
2 I. for
for t h e de te rmina t ion of all proceedings in E q u i t y and the disposal of
mot ions and ma t t e r s in re la t ion there to respect ively and every decree or order of t h e J u d g e m a d e in E q u i t y (unless appealed from in m a n n e r hereinaf ter provided) shal l be as valid and b ind ing as if made by t h e
full Court .
2. I n case of t he absence from Sydney or illness of t he J u d g e
so appoin ted i t shal l be lawful for a n y of t h e o ther Judges (dur ing such absence or illness) to sit a lone a n d de termine all such m a t t e r s
as aforesaid in l ike m a n n e r as the J u d g e so being ill or absent m i g h t have done b u t subject nevertheless to t he l ike appeal .
3 . W h e r e v e r in th i s A c t the word " C o u r t " is used i t shal l be
t a k e n to m e a n t h e Cour t holden before t he J u d g e so appoin ted as
aforesaid or t h e J u d g e ac t i ng u n d e r the last preceding section in his
stead unless the con tex t shal l requi re a different const ruct ion. 4. I n any suit or proceeding in E q u i t y where in i t m a y be necessary to establish any legal t i t le or r i gh t as a foundat ion for relief t h e Cour t shal l itself de te rmine such t i t le or r i gh t w i thou t r equ i r ing t he part ies to proceed a t law to establish t h e same and whenever a n y ques t ion now cognizable only a t law shall arise in the course of any proceeding before h i m the J u d g e shall have cognizance thereof as completely as if t he same had arisen in a Cour t of L a w and shal l exercise in re la t ion to such t i t le r i gh t or ques t ion all t h e powers of
t h e Sup reme Cour t in its Common L a w Jur i sd ic t ion a n d no suit i n
E q u i t y shall be open to objection on t h e g round t h a t t he r emedy or appropr ia te remedy is in some other jurisdict ion.
5. I n any cause or m a t t e r t h e J u d g e may sit wi th t h e assistance
of any two other J u d g e s of t he S u p r e m e Cour t Provided always t h a t
in every such case whe re th ree J u d g e s sit t h e decision of t h e major i ty shall be t aken to be t h a t of t he full Cour t .
Statement of Claim.
6. After t h e commencemen t of th i s A c t all persons seeking
equ i tab le relief shal l ins tead of proceeding b y bi l l of compla in t file in
t he office of t h e Mas te r in E q u i t y a s t a t emen t of his case to be t e rmed t h e s t a t emen t of c la im which shall conta in as concisely as m a y be
a na r ra t ive of t he mate r ia l facts and c i rcumstances on w h i c h t h e
plaintiff relies b u t no t t he evidence by wh ich t h e y are to be proved such
nar ra t ive be ing divided in to pa rag raphs numbered consecutively a n d each pa ragraph conta in ing as nea r ly as m a y be a separa te and dist inct
s t a t emen t or a l legat ion a n d shal l p r a y specifically for t h e relief which t h e plaintiff m a y consider himself en t i t l ed to and also for general relief.
Parties.
7. I t shal l no t be competen t to any defendant to t a k e a n y
objection for w a n t of par t ies in a n y case to which the rules n e x t
here inaf ter set for th ex tend and such rules shall be t a k e n as p a r t of
t he law and prac t ice of t he Cour t and a n y law or pract ice inconsis tent
t he rewi th is hereby annul led .
Rule 1. A n y legatee devisee or n e x t of k in m a y wi thou t serving t h e r ema in ing legatees devisees or nex t of k in have a decree for t he adminis t ra t ion of t h e real and personal estate of a deceased person.
Rule 2. A n y one of several cestui que t rus t unde r any deed or
i n s t r u m e n t may w i t h o u t serving a n y o ther of such cestui que
t r u s t have a decree for t h e execut ion of the t rus t s of t h e deed or i n s t rumen t .
Rule
Mule 3 . I n al l cases of suits for t h e pro tec t ion of p roper ty p e n d i n g l i t igat ion and in all cases in t h e n a t u r e of waste one person m a y sue on behalf of himself and of all persons hav ing t h e same interest .
Mule 4.
A n y executor adminis t ra tor or t rus tee m a y obta in a decree agains t any one legatee n e x t of k in or cestui que t r u s t for
t h e adminis t ra t ion of t he estate or t h e execut ion of t h e t rus t s . Mule 5. I n all t h e above cases t h e Cour t if i t shall see fit m a y requ i re any other person or persons to be m a d e a pa r ty or part ies to t h e suit and m a y if it shall see fit give t h e conduc t of t h e suit to such person as it m a y deem proper a n d m a y m a k e such order in any par t i cu la r case as it may deem j u s t
for p lac ing the defendant on t he record on t h e same footing
in regard to costs as o ther par t ies h a v i n g a c o m m o n in teres t
w i th h i m in t h e ma t t e r s in quest ion. Mule 6. I n all t h e above cases t he persons who according to t he p resen t pract ice of the Cour t would be necessary par t ies to t he sui t shal l be served w i t h not ice of t h e decree and after such not ice they shall be bound by t h e proceedings in t h e same m a n n e r as if t hey had been originally made par t ies to t he suit a n d they m a y by a n order of course have l iber ty to a t t end
t h e proceedings unde r t h e decree and any pa r ty so served m a y wi th in such t ime as shall in t h a t behalf be prescribed b y t h e general order of t h e S u p r e m e Cour t apply to t h e Cour t to add to t h e decree.
Mule 7. I n all sui ts concern ing real or personal estate which is vested in t rus tees unde r a will se t t l ement or otherwise
such
t rus tees shall represent t he persons beneficially in teres ted
u n d e r t h e t ru s t in t h e same m a n n e r and to t he same ex ten t as t he executors or adminis t ra tors in sui ts concern ing personal es ta te represent t h e persons beneficially in teres ted in such personal es ta te and in such cases i t shal l n o t be necessary to m a k e t h e persons beneficially interested u n d e r t h e t rus t s
part ies to the suit b u t t he Cour t m a y upon considerat ion of
t he m a t t e r on t he hear ing if i t shall so t h i n k fit order such persons or a n y of t h e m to be made par t ies .
8. If in a n y suit or proceeding in E q u i t y i t shall appear to t h e
Cour t t h a t any deceased person who was in teres ted in t h e ma t t e r s in quest ion has no legal personal representat ive i t shal l be lawful for t h e Cour t e i ther to proceed wi thou t any person represent ing t h e estate of such deceased person or to appoin t some person to represent such
| as t h e Cour t shall t h i n k fit e i ther specially or general ly by publ ic | es ta te for t he purposes of t h e suit or proceeding on such not ice (if any) | ||||||
| adver t i sement and every order m a d e in reference to t h e m a t t e r and every order consequent t he reon shal l b ind t h e es ta te of such deceased person i n t he same m a n n e r as if there h a d been a duly const i tu ted legal personal representa t ive of such deceased person and such representa t ive h a d been a pa r ty to t h e sui t or proceeding and h a d appeared and sub | |||||||
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| 9. N o sui t shall be dismissed by reason only of t h e misjoinder of persons as plaintiffs b u t wherever it shall appear to t h e Cour t t h a t n o t w i t h s t a n d i n g t h e conflict of in teres t in t h e co-plaintiffs or t h e w a n t of in teres t in some of t h e plaintiffs or t he exis tence of some ground of defence affecting some or one of t he plaintiffs t h e plaintiffs or some or one of t h e m are or is ent i t led to relief t h e Cour t | |||||||
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| any as m a y be necessary and a t t h e hear ing before such a m e n d m e n t s are made may t rea t a n y one or more of t he plaintiffs as if he or t hey |
was
w a s or were a defendant or defendants in t h e suit and t h e o ther plaintiff or plaintiffs was or were t h e only plaintiff or plaintiffs on t h e record and where the re is a misjoinder of plaintiffs and the plaintiff h a v i n g a n in teres t has died leaving a plaintiff on t h e record wi thou t
a n in teres t t h e Cour t m a y a t t he bea r ing order t he cause to s t and revived as m a y appear j u s t a n d proceed to t h e decision of t he cause if i t shall see fit and m a y give such directions as to costs or o therwise as to t h e Court shall seem meet .
10. I t shall be lawful for t h e Cour t to adjudicate on quest ions t h e part ies interested in t h e p roper ty
ar is ing be tween par t ies no tw i th s t and ing t h a t they m a y be some only of
respect ing which t h e quest ion
m a y have arisen or t h a t t h e proper ty is comprised w i t h o ther p roper ty
in t he same i n s t r u m e n t w i thou t m a k i n g t h e o ther par t ies interested in
t h e p rope r ty or in teres ted unde r t h e same in s t rumen t par t ies to the suit and wi thou t requ i r ing t h e whole t rus t s and purposes of t he i n s t r u m e n t t o be executed u n d e r t h e direction of t he Cour t and wi thou t t ak ing the accounts of t h e t rus tees or o ther accoun t ing par t ies or ascer ta in ing t h e
par t icu la rs or a m o u n t of t h e proper ty t o u c h i n g which t h e quest ion m a y
h a v e arisen Provided always t h a t if t h e Cour t shall be of opinion t h a t
t h e appl icat ion is f r audu len t or collusive or for some o the r reason o u g h t
no t to be en te r ta ined i t m a y refuse to m a k e t h e order prayed.
1 1 . I t shall no t be necessary t h a t every defendant to the s ta te
m e n t of c laim shall be interested as to al l t h e relief t he reby prayed for b u t t h e Cour t m a y m a k e such order as m a y appear jus t to p reven t any defendant from be ing embarrassed or p u t to expense by be ing required to a t t end a n y proceedings in such sui t in wh ich he m a y have no interest .
12. Before t he n a m e of any person shall be used in any suit as
n e x t friend of a n y infant mar r ied w o m a n or o ther p a r t y or as re la tor in any in format ion such person shal l sign a w r i t t e n au thor i ty to t h e solicitor for t h a t purpose and such au tho r i t y shall be filed wi th t h e
s t a tement of c la im.
Service of Statement of Claim.
1 3 . N o wr i t of subpoena or o ther process to appear to and answer
any s t a t emen t of c la im shal l be requ i red b u t t h e defendant shal l be
served wi th a wr i t t en copy of such s t a t emen t of c la im according to
t h e pract ice now in force respec t ing t he service of bills of compla in t toge the r w i th an endorsement the reon in t h e form or to t he effect set
ou t in t h e First Schedule to th i s A c t w i t h such var ia t ions as c i rcum
stances m a y requi re s tamped wi th a p roper s t amp by one of t h e Clerks of t h e Supreme Court . 1 1 . The films' of a s t a t emen t of c laim shal l have t he same effect
as t h e filing of a bi l l of compla in t now has a n d the service upon the defendant of a wr i t t en copy of such s t a t emen t of c laim shal l have t h e same effect as t h e service of a bil l of compla in t now has .
Copies of Statement of Claim.
15 . The plaintiff in a n y suit i n E q u i t y ins t i tu ted after t he
commencemen t of th is A c t shal l deliver to t h e defendant or his solicitor u p o n appl ica t ion for t h e same such a n u m b e r of copies of t he
s t a t emen t of c laim as he shal l requi re upon be ing paid for t he same a t such r a t e as shall be prescribed b y any general ru le .
Amendment of Statement of Claim.
16. U p o n the a m e n d m e n t of any s t a t e m e n t of c la im the pro
visions hereinbefore contained w i t h respect to filing and serving and del ivering copies thereof shall so far as m a y be ex tend to t h e s t a t emen t
of claim as amended Provided t h a t where according to t h e present
pract ice
pract ice of the Court an a m e n d m e n t of a hil l m a y he m a d e w i t h o u t a new engrossment thereof or unde r such o ther c i rcumstances as shall he prescribed by a n y general ru le a s t a t emen t of c laim may be
| amended by wr i t t en a l tera t ions there in as | filed. |
Decree in Cases not Disputed.
17. If t h e defendant does no t dispute t h a t the plaintiff is ent i t led
| to t h e relief prayed | by his s t a t emen t | of c la im h e m a y appear | e i ther |
personal ly or by counsel or solicitor before t h e J u d g e s i t t ing in Chambers as hereinafter provided a t the t ime fixed by the endorsement on t h e s t a t emen t of c laim and m a y t h e n or at a future day to be appoin ted b y t h e J u d g e submi t to a decree or order as prayed or w i th such modification a n d variat ion as the J u d g e m a y direct and for t h a t purpose t he s t a t ements of fact in t he s t a t emen t of c laim shal l unless contradicted be t aken to be t rue and the defendant m a y give such evidence as h e m a y be advised and the J u d g e m a y call for such fur ther proof c i ther orally or by affidavit as he m a y t h i n k proper Provided t h a t t he J u d g e may if he t h inks fit refuse to m a k e any decree the reon a n d m a y m a k e such order w i th respect to t h e fu r the r prosecut ion of
| t h e sui t and t h e costs as t h e c i rcumstances of | t h e case m a y | requ i re . |
Appearance in Defence. 18. I f t he defendant does n o t admi t t h a t t he plaintiff is ent i t led
to t h e relief prayed he shall w h e n he enters an appearance to t h e s t a t emen t of c laim or a t such la te r period as t h e J u d g e shall allow
| file a m e m o r a n d u m to t he effect | t h a t he disputes the | plaintiff 's | c la im |
| and shall wi th in t h e t ime l imited by a general ru le in t h a t behalf | file |
| in | t h e office | of t he Mas te r in E q u i t y a demur re r plea or s t a t emen t | of |
| defence | to t h e s t a t emen t | of | c la im | b u t after t h a t t ime no | defendant |
| shall p u t in a demur re r plea or s t a t emen t | of | defence wi thou t leave of |
| t h e | J u d g e | Provided | t h a t | t he power | of t he | Court | to g r a n t | fur ther |
| t i m e for demur r ing p lead ing or defending upon t h e appl ica t ion | of | a n y |
| defendant shall r ema in in full force a n d t h a t | whe re t h e | J u d g e | shall |
| g r an t fur ther | t ime to a n y defendant | for demur r ing p leading or | s t a t ing |
| a defence t he plaintiff 's r i gh t to move for a decree | u n d e r t h e | provisions |
| here inaf ter | contained shall in t he m e a n t i m e be | suspended. |
Interrogatories and Statement of Defence.
19. N o interrogator ies shall hereaf ter be filed for t he examina-
t ion of any defendant except by leave of t he Cour t b u t every s t a t emen t
| of | defence shal l as heretofore be verified u p o n oa th . |
20. The s t a t emen t of defence shall s ta te all facts which con
s t i tu t e t h e g r o u n d of the defence toge ther wi th such s t a t ements as t h e defendant may t h i n k it necessary or advisable to set for th in ord inary l anguage a n d as concisely as is possible consis tent wi th clearness and shall be divided in to pa rag raphs n u m b e r e d consecut ively each pa rag raph con ta in ing as near ly as m a y be a separate and dist inct s ta tement a n d all facts s tated in the s t a tement of claim and not expressly and in t e rms denied in t he s t a t e m e n t of defence shall be deemed to be admi t ted for
| t h e purpose of t h e | suit . |
2 1 . A defendant may in his s t a t emen t of defence set off or set
u p b y way of counter -c la im against t he claim of t h e plaintiff any r igh t or c la im and such set-off or counter -c la im shal l have t he same effect as a s t a t emen t of c laim in a cross suit so as to enable t he Cour t to p ronounce a final j u d g m e n t in t h e same suit b o t h on the original and on t h e cross claim P u t t h e Cour t m a y on t h e appl icat ion of t h e plaintiff before t r ia l refuse permission to the defendant to avail h im self of such set-off or counter-c la im if in t h e opinion of the J u d g e such set-off or counter-c la im cannot be convenient ly disposed of in
| t h e pend ing suit or ough t not to be allowed. | 22. |
22. W h e r e in any sui t a set-off or counter -c la im is m a d e avail able as a defence aga ins t t h e plaintiff 's c la im t h e Cour t m a y if t h e balance is in favour of the defendant m a k e a decree in favour of t h e defendant for such balance or may otherwise ad judge to t he defendant
such relief as he may be ent i t led to upon t h e mer i t s of t h e case.
Defendant's Interrogatories.
23 . A n y defendant (bu t where he has been required to answer
in terrogator ies not un t i l af ter he shall have p u t in a sufficient answer there to) m a y in l ike manne r by leave of t he Cour t file in ter rogator ies for t h e examina t ion of t h e plaintiff to which interrogator ies shall be prefixed a concise s t a t emen t of t he subjects on which a discovery is sought and he shal l deliver a copy of such interrogatories to t h e plaintiff or his solicitor and such plaintiff shall on oath answer such interrogator ies and the pract ice wi th reference to except ing to answers for insufficiency or for scandal shall ex tend to answers pu t in to such interrogatories Provided tha t in de te rmin ing t h e mate r ia l i ty or
re levancy of any such answer or of any except ion the re to t h e Cour t
shall have regard to t he s t a t ements conta ined in t h e s t a tement of c la im
and in t he s t a t emen t of defence there to by t h e defendant exh ib i t ing such interrogatories Provided also t h a t a defendant if he shall t h i n k fit m a y ins tead of filing interrogatories for t h e examina t ion of t he
plaintiff ins t i tu te aga ins t h im a suit for the purpose of discovery. Exceptions.
24. Excep t in the case of answers to interrogator ies t he pract ice of except ing to s ta tements of defence for insufficiency and to s ta te men t s of claims s t a t ements of defence and o ther proceedings for imper t inence is hereby abolished Provided t h a t t he Cour t m a y direct
t he costs occasioned by any imper t inen t m a t t e r in t roduced into a n y
proceeding to be paid by t h e p a r t y in t roducing t h e same.
Production of Documents.
25. The Cour t m a y on t h e appl icat ion of t he plaintiff in any
suit m a k e an order for t h e p roduc t ion by any defendant on oa th ofsuch documents in his possession or power re la t ing to a n y m a t t e r in
ques t ion in t h e sui t as t h e Cour t shall t h i n k r igh t and the Mas te r in E q u i t y shall have t h e l ike power unde r references to h i m a n d t h e Cour t or Master (as t he case m a y be) may deal w i th such documen t s
w h e n produced in such m a n n e r as shal l appear j u s t .
26. The Court m a y on the appl icat ion of any defendant (bu t
where he has been requi red to answer in terrogator ies no t un t i l after he has p u t in a sufficient s t a tement of defence there to) m a k e a n order for t h e product ion by the plaintiff on oath of such documen t s in his possession or power re la t ing to any m a t t e r in quest ion in t h e sui t as
t h e Cour t shall t h i n k r igh t and the Mas te r in E q u i t y shall have t h e l ike power u n d e r references to h im and the Cour t or Mas te r (as t h e case m a y be) m a y deal wi th such documen t s w h e n produced in such
m a n n e r as shall appear jus t .
Want of Prosecution. 27. Every defendant m a y move to dismiss t h e suit for w a n t of
prosecut ion at such t imes and u n d e r such c i rcumstances and subject to such res t r ic t ions as shall be in t h a t behalf prescr ibed by any general rule.
Motion for Decree.
28. The plaintiff in any suit m a y a t a n y t ime after t he t i m e
al lowed t h e defendant for filing a s t a t emen t of defence has expired b u t before repl icat ion move the Cour t upon such not ice as shall be
prescr ibed
prescribed by a general ru le for such decree or decreta l order as he m a y th ink himself ent i t led to and the plaintiff and defendant respectively may file affidavits in suppor t of a n d in opposition to t h e mot ion so to be made and use t h e same on the hea r ing of such mot ion and if such motion be m a d e after a n answer to in terrogator ies filed in t h e cause t he s t a t e m e n t of defence shal l for t h e purposes of t he mot ion be t rea ted as an affidavit.
29. U p o n any such mot ion i t shall be discretionary wi th t he Cour t to g ran t or refuse t h e same a n d to give such directions wi th respect t o t h e fur ther prosecut ion of the suit as t h e c i rcumstances appear to requi re and t h e Cour t m a y m a k e such order as to costs as i t
| m a y | t h i n k | r igh t . |
Issue.
30. I n suits whe re not ice of mot ion for a decree or decretal order shall no t have been given or hav ing been given where a decree or decretal order shall no t have been made the reon issue shall be joined by filing a repl icat ion in the form or to t h e effect of t h e repl icat ion
| now in use in t h e | Cour t . |
Mode of Trial of Cause.
3 1 . The present mode of t a k i n g evidence before t h e Mas te r to
be used a t t h e hea r ing of t he cause after issue joined is hereby abolished and such evidence shal l hereafter be t aken by the oral examina t ion of witnesses a n d other proofs before t he J u d g e in open Cour t and the evidence m a y if e i ther pa r ty so requi re be t aken down by a shor thand wr i te r and the J u d g e shall have t h e same power of issuing or of au tho r i z ing the issue of subpoenas and of p u n i s h i n g part ies for non-a t t endance in obedience to any such subpoena as is now vested
| in t h e | Supreme Cour t in i ts Common | L a w | Jur i sd ic t ion . |
32. I n all cases in which the Cour t in E q u i t y has jurisdict ion
to en te r ta in a n appl icat ion for an in junc t ion agains t a b reach of any covenant con t rac t or ag reement or agains t t he commission or con t inuance of any wrongful act or for t he specific performance of any cont rac t covenant or agreement i t shall be lawful for t h e Cour t if it shall t h i n k fit to award damages to t h e pa r ty injured e i ther in addi t ion to or in subs t i tu t ion for such injunct ion or specific performance and such damages m a y be assessed in such m a n n e r as t h e Cour t shall direct .
33 . I t shall be lawful for t he Cour t if it shall t h i n k fit to cause
t he a m o u n t of such damages in any case to be assessed or any quest ion
of fact ar is ing in any suit or proceeding to be t r ied by a special
| or common j u r y before t he Cour t itself. |
3 1 . A n y quest ion of fact and any quest ion as to t he a m o u n t
| of damages which shal l be so ordered to be t r ied by a j u r y before | t h e |
| Cour t itself shall be reduced in to wr i t i ng in such form as t he | Cour t |
| shall di rect and a t t he tr ial t he j u r y shal l be sworn to t r y t h e | said |
| quest ion a n d a t r u e verdict to give the reon according to | t h e | evidence |
| and upon every such tr ial the Cour t shall have t h e same power | ju r i s |
| dict ion and au thor i ty as belong to any J u d g e of t he Supreme | Cour t |
| s i t t ing | a t | nisi | prius. |
35. The J u d g e m a y issue such precepts and m a k e such orders
| upon the Sheriff for p rocur ing the a t t endance of a special or | common |
| j u r y for the t r ia l of any such ques t ion of fact or | quest ion | of | damages |
| as m a y be made by t h e Supreme Cour t and m a y also m a k e | any | o ther |
orders in re la t ion there to which to h im may seem requis i te and every such j u r y shall be summoned s t ruck and called in l ike m a n n e r as if summoned for t he t r ia l of a cause in t he Supreme Cour t in i ts Common Law jur isdic t ion and general ly for all purposes of or auxi l ia ry to the t r ia l of questions by a ju ry a n d in respect of new trials t h e Judge
shal l
shall have t h e same jur isd ic t ion in all respects as belongs respect ively to t he Supreme Cour t in its Common L a w jur isdict ion or to a n y J u d g e thereof for t h e l ike purpose Provided t h a t from every order made by
t h e J u d g e on a n appl ica t ion for a new t r ia l t he r e shal l be t h e same r igh t of appeal as from any other order of t h e Cour t .
36. I t shal l be lawful for t h e Cour t to cause t he a m o u n t of such
damages in a n y case to be assessed or a n y quest ion of fact ar is ing in a n y sui t or proceeding to be t r ied before t he Court itself w i thou t a j u r y a n d to cause t h e evidence on t h e t r ia l of t h a t quest ion to be t a k e n by t h e oral examina t ion of witnesses and other proofs in open Cour t and a n y quest ion of fact and a n y quest ion as to t h e a m o u n t of damages which shal l be so ordered to be t r ied before t h e Cour t itself shal l be reduced in to wr i t i ng in such form as t h e Cour t shal l direct and the verdict of t h e J u d g e shall be of t h e same effect as t he verdict of a j u r y u n d e r th i s A c t and t h e proceedings upon and after such t r ia l as to t he power of t h e Cour t t he evidence a n d otherwise shall be t he same as in t h e case of a t r ia l by j u r y u n d e r th i s A c t Provided t h a t in t h e case
of a t r i a l unde r th i s section a n y person m a y app ly for a n e w t r i a l
e i ther to t h e J u d g e before w h o m t h e t r ia l was heard or by way of appeal to t h e full Court . 37 . I t shall be lawful for t he Cour t in any case where i t shall see fit t o cause any such quest ion of fact to be t r ied or t h e a m o u n t of such damages to be assessed b y a j u r y before any J u d g e of t he Supreme Cour t or in any Circui t Court .
38 . W h e n t h e evidence on bo th sides is closed and there has
been no t r ia l before a j u r y a m e m o r a n d u m to t h a t effect shall bo signed
b y t h e J u d g e a n d filed and the plaintiff m a y t he r eupon fo r thwi th
proceed to t h e hea r ing of t he cause unless t h e J u d g e shal l otherwise
order A n d t h e plaintiff shall w i thou t any such m e m o r a n d u m after the verdic t in case of t r ia l before a j u r y proceed to t h e hear ing on a day to be fixed by t h e J u d g e for t h a t purpose and i t shall n o t be necessary in any case to sue out a subpoena to hea r j u d g m e n t .
39. U p o n t h e h e a r i n g of any cause or m a t t e r t h e J u d g e m a y
requ i re t h e p roduc t ion and oral examina t ion before himself of a n y witness or pa r ty in t h e cause a n d m a y direct t he cost of and a t t end ing the produc t ion and examina t ion of such wi tness or pa r ty to be paid by such of t h e par t ies to t h e sui t or m a t t e r and in such manner as he m a y
t h i n k fit. Evidence.
40. The evidence to be used a t t h e hea r ing shal l be t a k e n in t he
same m a n n e r a n d be subject to t h e same rules and exceptions as a t a
t r ia l a t nisi prius Provided t h a t affidavits by pa r t i cu la r witnesses or
a s to pa r t i cu la r facts m a y b y consent or by leave of t he Cour t be used
on t h e hea r ing and such consent m a y if t h e Cour t shal l t h i n k fit bo
given b y or on t h e p a r t of ma r r i ed women or infants or o ther persons
u n d e r disability.
4 1 . The Cour t a t t h e h e a r i n g of a n y cause or of any fu r ther direct ions the re in m a y receive proof by affidavit of all proper par t ies be ing before t h e Cour t and of all ma t t e r s necessary to be proved for enab l ing the Cour t to order p a y m e n t of any money be long ing to a marr ied w o m a n and of al l such o ther ma t t e r s
no t direct ly in issue in t he cause as in t h e opinion of t h e Cour t m a y proper ly be so proved.
42. Eve ry wi tness w h o has m a d e a n affidavit in any cause or
m a t t e r before t h e Cour t shal l be subject to oral c ross-examinat ion i n t h e same m a n n e r as if t h e evidence given in his affidavit h a d been given b y h i m orally and m a y be r e -examined orally by the pa r ty us ing such affidavit a n d such witness shal l a t t end before t h e Cour t to be so examined u p o n receiving due not ice a n d p a y m e n t of his reasonable
expenses
| expenses | in l ike m a n n e r as if | lie h a d | been | du ly served w i t h a wr i t of |
subpoena ad testificandum a n d t h e expenses a t t end ing such examina t ion shall be paid by t h e par t ies respect ively in l ike m a n n e r as if t h e witness were t h e wi tness of the pa r ty cross-examining and shal l be deemed costs in t h e cause unless t h e Cour t shal l otherwise direct .
4 3 . I n any case in which all t h e par t ies are compe ten t to m a k e
admissions a n y pa r ty m a y call on any other p a r t y by not ice to admi t any documen t saving ail j u s t exceptions and in case of his not a d m i t t i n g t h e same t h e cost of proving the documen t shal l be paid by t h e p a r t y so neg lec t ing or refusing to admi t whatever the resul t of t h e cause unless t h e Cour t shal l otherwise order a n d no costs of proving any documen t shall bo al lowed unless such notice has been given except whe re t h e omission to give i t was in t he opinion of the Mas t e r a saving of expense .
44. I n every case where the Cour t shall deem it expedient so to do t h e Cour t m a y g ran t a commission or m a k e a n order a t any s tage of t h e cause for t h e examina t ion of witnesses e i ther oral ly or upon in ter rogator ies as t h e Cour t shall t h i n k fit and before such person or officer of t h e Cour t as i t shall for t h a t purpose appoint and every such examina t ion be ing du ly t aken and r e tu rned m a y bo read as evidence a t t h e tr ial or hea r ing accordingly Provided t h a t i t shall n o t be necessary to sue out any Commission for t he examina t ion of any witness w i th in t h e jur isdic t ion of t he Cour t and every officer or person appointed to examine any such witness by order of t h e Cour t shal l have the power of admin i s te r ing oaths and also such o ther powers as by t he order
| appoin t ing h i m m a y be | directed. |
45 . Al l pleadings examinat ions and affidavits in causes or ma t t e r s
in equ i ty m a y be sworn and t aken in any place out of th i s Colony under t h e dominion of H e r Majesty before a n y J u d g e No ta ry Pub l i c or person au thor ized to adminis ter oa ths a t such place or before any Br i t i sh Consul or Vice-Consul in any place out of H e r Majes ty ' s
| dominions | A n d judicia l notice shal l be t a k e n of t h e seal or | s igna ture |
| as | t h e case | m a y be | and | au thor i ty of | any such J u d g e | N o t a r y | P u b l i c |
person Consul or Vice-Consul .
46 . The J u d g e m a y in every case obtain t h e assistance of con
| veyanc ing counsel accoun tan t s | merchan t s engineers ac tuar ies or | o ther |
scientific persons t he bet ter to enable h im to de te rmine a n y m a t t e r a t issue in a n y cause or proceeding and to act upon t h e certificate of any such person The al lowance in respect of fees to such persons shall be
| r egu la t ed by t h e Mas te r | subject | to an appeal to t h e | J u d g e . |
47 . A n y p a r t y in any cause or m a t t e r m a y b y a subpoena
| requ i re t h e | a t t endance of | any witness before t h e | Cour t or Mas te r or |
| a n y person specially appoin ted for t h e purpose and m a y requi re | t h e |
produc t ion of any deed i n s t r u m e n t wr i t ing m a t t e r or t h i n g which such witness m a y be lawfully required to produce and m a y examine such wi tness orally for t h e purpose of us ing his evidence u p o n any mot ion pe t i t ion or o ther proceeding in l ike m a n n e r as such witness would be bound to a t t end and be examined wi th a view to t he hea r ing of a cause.
48. U p o n appl icat ion by mot ion or pet i t ion to t h e Court in any
suit depending there in for a n in junct ion or a receiver or to dissolve an in junct ion or discharge an order appoin t ing a receiver where t he defendant has filed an answer to interrogatories such answer shall for t he purpose of evidence on such mot ion or pet i t ion be regarded as an affidavit and affidavits m a y be received and read in opposi t ion there to .
49. I n cases whe re i t shall be necessary for any pa r ty to go into evidence subsequent ly to t he hea r ing or on any inqu i ry account or reference before t h e J u d g e or Mas te r such evidence shall be t a k e n in such m a n n e r as shall be prescribed by any general ru le of the Court .
2 K Declaratory
Declaratory Decree.
50. N o suit shal l he open to objection on the g round t h a t a merely declaratory decree is sough t
the reby a n d t h e Cour t m a y
m a k e
binding declarat ions of r i g h t w i thou t g ran t ing consequent ia l relief.
Formal Defects or Irregularities.
5 1 . N o proceeding shall be inval idated by any formal defect or
b y a n y i r regula r i ty unless t h e Cour t shall be of opinion t h a t subs tant ia l
injust ice has been caused by such defect or i r r egu la r i ty and t h a t such injust ice cannot be remedied by any order of t he Court .
Sale of Mortgaged Property.
52. I n any sui t for t h e foreclosure of t h e equ i ty of redempt ion i n any p rope r ty t he Cour t m a y upon the request of t h e mor tgagee or a n y subsequen t i ncumbrance or of t he mor tgago r or any person c la iming unde r t h e m respectively direct a sale of such p roper ty ins tead of a foreclosure on such t e rms as t h e Court may t h i n k fit and w i t h o u t previously de te rmin ing t h e priori t ies of incumbrances or giving t ime to redeem provided t h a t if such reques t be m a d e by a n y such subsequent
i ncumbrance r or by t h e mor tgagor or any person c la iming under t h e m respect ively t he Cour t shall no t direct any such sale w i t h o u t t h e consent
of t h e mor tgagee or t h e person c la iming u n d e r h i m unless t he pa r ty m a k i n g such reques t shal l deposit in Cour t a reasonable s u m to be fixed by t h e Cour t for t h e purpose of secur ing the per formance of such te rms as t he Cour t may t h i n k fit to impose on h im.
Account.
53 . I n all cases of account e i ther pa r ty m a y by consent or by leave of t he J u d g e file a S ta te of Facts before or a t t h e hea r ing of a n y cause pet i t ion mot ion or m a t t e r verified b y affidavit and where t h e a m o u n t is capable of being ascer tained w i t h o u t difficulty from the pleadings or evidence or by such S ta te of Facts t h e Cour t m a y adjust t h e same and decree accordingly w i t h o u t fu r the r inqu i ry or reference a n d where t he account canno t be so adjusted m a y give such special directions as m a y seem expedient w i th respect to t he mode in which t h e account shall be t a k e n or verified which directions m a y be given
e i ther by t he decree or order d i rect ing such account or by a n y subsequen t order and where i t shal l t h i n k fit so to do the Court m a y direct t h a t in t a k i n g t h e account t he books in which i t has been
k e p t or any of t h e m shall be t a k e n as prima facie evidence of t he
t r u t h of t h e ma t t e r s there in conta ined wi th l iber ty to t he par t ies interested to t ake such object ions there to as they may be advised.
Sale of Real Estate.
54. If in any sui t ins t i tu ted in re la t ion to rea l es ta te i t shall
appear to t he Cour t t h a t i t will be expedient t h a t t h e same or any p a r t thereof shal l be sold for t h e purposes of such sui t the Cour t m a y a t a n y t ime direct t h e same to be sold and such sale shal l be as valid as if directed to be m a d e by a decree or decre ta l order on t h e hea r ing a n d a n y pa r ty to t he sui t in possession of such es ta te or in receipt of t h e ren t s and profits thereof shall deliver u p such possession or receipt t o t h e purchaser or such other person as t h e Cour t shal l d i rect .
Application
Application of Income.
55. W h e r e a n y real or person proper ty is t h e subject of a n y
| proceeding in E q u i t y and the Cour t is satisfied | t h a t t h e | same will be |
more t h a n sufficient to answer all t h e claims the reon w h i c h o u g h t to be provided for in such proceeding t h e Cour t m a y a t any t ime after t h e commencemen t of such proceeding allow to t h e par t ies interested the re in or any of t h e m the whole or pa r t of t he a n n u a l income of such real p roper ty or a pa r t of such personal p roper ty or of t he income thereof u p to such t ime as t h e said Cour t shall direct and for t h a t
| purpose m a y m a k e such orders as m a y appear | expedient . |
Injunction.
56. T h e pract ice of t he Cour t wi th respect to in junct ions for
t he s tay of proceedings a t law shall so far as the n a t u r e of t he case will admi t be assimilated to t he prac t ice of the Cour t w i th respect to special in junct ions genera l ly and such in junct ions m a y be g ran ted upon
| in te r locutory appl icat ions | suppor ted | by affidavit | in l ike m a n n e r | as | in |
| t h e case of o ther special | in junct ions . |
57. A n in junc t ion m a y be g ran t ed or a receiver appoin ted by an
in ter locutory order of the Cour t in all cases in which i t shall appear to t h e Cour t t o be j u s t or convenient t h a t such order should be m a d e and whe the r there bo a p rayer for a n in junc t ion or receiver or no t a n d a n y such order m a y be m a d e e i ther uncondi t ional ly or upon such t e rms and conditions as t he Cour t shall t h i n k jus t a n d if an in junc t ion is asked e i ther before or a t or after t h e hea r ing of any cause or m a t t e r to p reven t a n y th rea tened or apprehended waste or t respass such in junct ion m a y be g ran ted if t h e Cour t shal l t h i n k fit w h e t h e r t he person against w h o m such in junct ion is sought is or is no t in possession u n d e r any c la im of t i t le or o therwise or (if ou t of possession)
| does or does no t | c la im a r i g h t t o do the ac t sought | to be res t ra ined |
| unde r any colour of t i t le and w h e t h e r | t h e | es ta tes | claimed | by bo th or |
by c i ther of t h e par t ies are legal or equi table .
58. N o wri t of in junct ion shal l hereafter be issued or any docquet be signed or filed as a t present b u t service upon a n y person of t h e decree or order d i rec t ing such in junc t ion or not ice thereof shal l have t he same effect as t he issuing of a wr i t of in junct ion a n d s igning and filing of a docquet and service of t h e wr i t upon such person a n d the reupon the plaintiff shall be ent i t led to all such remedies
| as he is en t i t led to unde r t h e present | pract ice. |
Abatement of Suit.
59. U p o n any suit becoming abated by dea th marr iage or other wise or defective by reason of some change or t ransmiss ion of interest or l iabili ty it shal l no t be necessary to file any n e w or supp lementa l s t a t emen t of c laim in order to obtain t h e usua l order to revive such sui t or t h e usua l decree or order to car ry on the proceedings b u t a n order to t he effect of t he usual order to revive or of t he usua l supp lementa l decree may be obtained as of course upon an allega t ion of t he aba t emen t of such suit or of t h e same hav ing become defective and of t h e change or t ransmission of interest or l iabil i ty and an order so obta ined w h e n served upon the pa r ty or part ies who according to t h e p resen t prac t ice would be defendant or defendants to a bill of revivor or supp lementa l bill shall from the t ime of service be b ind ing on such pa r ty or part ies in t h e same m a n n e r as if such order had been regula r ly obtained according to t he ex is t ing pract ice and such p a r t y or par t ies shall thencefor th become a p a r t y or par t ies to t h e suit and be bound to en te r a n appearance there to as if
he
he or they had been du ly served wi th process to appear to such a hill duly filed aga ins t h i m Provided t h a t t he p a r t y or part ies so served m a y wi th in such t i m e after service as shall be prescribed b y a n y general ru le in t h a t behalf app ly to t he Cour t to discharge such order on a n y g round wh ich wou ld have been open to h i m on a bi l l of revivor or supp lemen ta l bil l s ta t ing t he previous proceedings in t he
sui t and t h e alleged change or t ransmiss ion of in teres t or l iabi l i ty
a n d p r a y i n g the usua l relief consequent the reon Provided also t h a t if
a n y pa r ty so served is u n d e r disabili ty o ther t h a n cover ture such order shal l be of no effect as against such pa r ty u n t i l a gua rd ian ad litem shal l have been appointed for such pa r ty a n d such t ime shal l have elapsed thereaf ter as shal l be prescribed b y a n y general ru le .
Supplemental Statements.
60. I t shall no t be necessary to file a n y supp lementa l s t a t emen t
of c la im for t h e purpose only of s ta t ing facts which have occurred
after t h e ins t i tu t ion of t h e suit b u t such facts m a y be int roduced
by way of a m e n d m e n t into t he original s t a t emen t of c laim if t he
cause is o therwise in a s ta te to allow of an a m e n d m e n t in t h e s t a t emen t
of c laim a n d if n o t t h e plaintiff m a y s ta te such facts on t h e record in such m a n n e r and subject to such ru les w i th respect t o t h e proof thereof and affording t h e defendant an oppor tun i ty of answer ing t h e same as shal l be prescribed by any general ru le in t h a t behalf.
Judge Sitting in Chambers.
6 1 . Af ter t h e c o m m e n c e m e n t of th i s A c t t h e J u d g e shall
sit in Chambers for t he dispatch of such business in E q u i t y as in his opinion m a y advantageous ly and wi th propr ie ty be hea rd in Chambers and such J u d g e shall fix the t imes for so s i t t ing and w h e n
so s i t t ing shal l have t h e same powers a n d jur isdic t ion as in open Cour t . 62. The business to be disposed of b y t h e J u d g e in Chambers shal l consist of such of t he following as he shall t h i n k would be more convenient ly so disposed of namely—Appl ica t ions for t ime for leave to a m e n d for product ion of documents for de t e rmin ing the mode
of t r ia l a n d set t l ing t he quest ions to be t r ied appl icat ions re la t ing to
t h e conduc t of any suit or m a t t e r t h e guard ianship or ma in tenance of
infants m a t t e r s connected w i t h the m a n a g e m e n t of p roper ty and such
other ma t t e r s as t he J u d g e m a y from t ime to t ime see fit so to dispose of.
63 . The J u d g e whi le s i t t ing in open Cour t may ad journ for
hea r ing in Chambers or whi le s i t t ing in Chambers m a y adjourn for h e a r i n g in open Court a n y case before h i m which h e m a y t h i n k would be t t e r be hea rd in Chamber s or in open Cour t as t h e case m a y be.
6 1 . The course of proceeding in Chambers shal l be by s u m m o n s
and as nea r ly as m a y he accord ing to t h e forms observed b y J u d g e s of
t h e Sup reme Court s i t t ing in Chambers in proceedings a t law.
Decrees of Judge.
65. T h e decrees and orders of t h e J u d g e w h e t h e r s i t t ing in
open Cour t or in Chambers m a y be sett led by t h e J u d g e or he
m a y direct a n y such decree or order to be se t t led by t h e Mas t e r in E q u i t y a n d the J u d g e shal l in every case certify his approval thereof
u n d e r his h a n d A n d no w a r r a n t shall be t a k e n ou t to consider any
decree or order b u t t h e J u d g e or Mas te r shal l a t t h e t ime of se t t l ing
t h e decree or order direct w h a t proceedings shal l be t a k e n the reunde r
a n d t h e J u d g e shall direct w h a t inquir ies and proceedings shal l be
t a k e n before himself u n d e r t h e decree or order and w h a t before t h e Mas te r .
Proceedings
Proceedings before the Master.
60. T h e J u d g e or t h e full Cour t in cases u n d e r Appea l shal l
| have t he sole power to order w h a t mat te r s shall he inves t iga ted | before |
| the | Mas te r | in | E q u i t y | w i th | or | w i t h o u t | special | d i rect ion | a n d | w h a t |
m a t t e r s shall be hea rd and inves t igated by themselves respect ively and in every case unless t he J u d g e or such Cour t shal l o therwise direct t h e Mas t e r shall t a x costs a n d m a k e such inquir ies as have usual ly been prosecuted before t h e Mas t e r A n d t h e J u d g e shall give such aid and directions in any such inqu i ry as he m a y t h i n k fit subject to t h e r igh t of appeal and to t h e r igh t of every suitor to b r ing a n y par t i cu la r poin t
| before t he J u d g e | himself. |
67. T h e Mas te r in E q u i t y shall for t h e purpose of any proceed
ing before h i m have full power to issue adver t i sements to s u m m o n par t ies a n d witnesses to adminis te r oa ths to t a k e affidavits and also acknowledgments except those of mar r ied women and w h e n directed by t h e J u d g e or full Cour t to examine par t ies or witnesses orally or u p o n in ter rogator ies A n d every p a r t y a n d witness summoned by the Mas te r shal l be bound to a t t end such summons and shall for disobe dience thereof be liable to process of con tempt in l ike m a n n e r as for disobedience to or for defaul t of a t t endance in pu r suance of any order of t h e Supreme Cour t or on any wri t of subpoena a n d al l persons knowing ly swear ing or affirming falsely before t h e Mas te r shal l incur
| all t he penal t ies of | per jury . |
68. Directions by the J u d g e concerning any proceedings before t h e Mas te r shall no t requ i re a n y par t icu la r form a n d the resul t thereof shal l no t be embodied in a formal repor t b u t shall be s ta ted in a shor t certificate to t he J u d g e unless he shall otherwise direct A n d the approval of t h e J u d g e of any such certificate or repor t shall be signified unde r his hand .
69. N o except ion shal l lie to any certificate or repor t of t he
| M a s t e r after i t has been adopted and signed by t h e J u d g e b u t | any |
| p a r t y | m a y dur ing t h e proceeding before | t h e | Mas te r | or wi th in | such |
| t i m e after its conclusion as shall be fixed by any genera l ru le in | t h a t |
| behalf | t ake t he opinion | of | t h e J u d g e | on | any par t icu la r poin t or |
| m a t t e r arising in t h e course of the proceeding or upon t h e resu l t | of: |
t h e whole w h e n b r o u g h t to a conclusion W h e n so adopted and signed every such certificate a n d repor t shall be filed and shall thencefor th be b ind ing on all par t ies unless d ischarged or var ied by t h e Cour t upon appl icat ion wi th in such t ime as m a y be fixed by a n y general ru le Provided t h a t n o t h i n g here in shall pre judice t he power of t h e full
| Cour t s i t t ing in E q u i t y on Appea l to open a n y such certificate or repor t |
as any repor t of the Mas te r absolutely confirmed m a y now be opened.
Appeals.
70. A n y person feeling aggrieved by any decree or order of
| t h e J u d g e | may a t a n y t ime wi th in four teen | days | n e x t | after | the |
pronouncing of t h e same or wi th in such fu r ther t ime as t he J u d g e m a y allow enter a n appeal in t h e office of t he Cour t aga ins t such decree or order to t h e full Cour t subject to such general rules as shall be in t h a t behalf prescribed and every person so appeal ing shall wi th in fourteen days from the t ime of filing such appeal deposit i n t he hands of t h e Mas te r such sum not exceeding one hundred pounds as such Mas te r shal l direct or a t t h e option of t he person appeal ing shall deposit w i th such Mas te r a bond of two persons to be approved of by h i m in such s u m no t exceeding one hund red pounds as h e shall direct condit ioned to be void if t he appel lant shal l prosecute his appea l w i th all due dil igence and pay such costs as t h e Cour t shall adjudge which
said
said s u m of money or bond as t he case m a y be shall be he ld by t h e Mas te r subject to t h e order of the Cour t A n d if such sum of money or bond shall no t be deposited as aforesaid wi th in t h e period hereby provided such appeal shall be deemed to have been abandoned.
7 1 . Al l appeals unde r this Ac t shall be by way of re -hear ing and
shall be b rough t by not ice of appeal in a summary way and no pet i t ion or o ther formal proceeding o ther t h a n such not ice shall be necessary The appel lan t may by the notice appeal from the whole or any par t of any decree or order and such notice shall s ta te whe the r t he whole or p a r t only of such decree or order is complained of a n d in t h e l a t t e r case shall specify such par t .
72. T h e notice of appeal shall be served upon all par t ies direct ly affected by the appeal and it shall no t be necessary to serve part ies not so affected b u t t h e full Court m a y direct not ice of t he appeal to be served on all or any o ther part ies to t h e suit or upon a n y person or body corporate no t a par ty and in t h e mean t ime may postpone or ad journ t he hea r ing of t he appeal u p o n such t e rms as m a y seem ju s t and m a y m a k e such decree or order as m i g h t have been m a d e if t h e persons or bodies corporate served wi th such not ice had been originally part ies A n y notice of appea l may be amended a t any t ime as to t he full Court m a y seem fit.
73 . The full Cour t shall have all t he powers and dut ies as to a m e n d m e n t and otherwise of t he J u d g e toge the r wi th full dis cret ionary power to receive fu r the r evidence upon quest ions of fact such evidence to be e i ther by oral examina t ion in Cour t by affidavit or by deposit ion t a k e n before t he Mas te r or a Commissioner Such fur ther evidence may be given wi thou t special leave upon inter locutory appl ica t ions or in a n y case as to ma t t e r s which have occurred after t h e da te of t h e decree or order from which the appeal is b rough t U p o n appeals from a decree or order upon t h e mer i ts a t the t r ia l or hear ing of any cause or m a t t e r such fur ther evidence (save as afore said) shal l be admi t t ed on special g rounds only and not wi thout special leave of the Cour t The full Cour t shall have power to m a k e any decree or order which ought to have been made and such fur ther or o ther order as t h e case may require T h e powers aforesaid shall be exercised by the said Court no twi ths t and ing t h a t t he not ice of appeal may be tha t par t only of t he decision may be reversed or varied and such powers m a y also be exercised in favour of all or any of t he respondents or par t ies a l though such respondents or par t ies m a y not
have appealed from or complained of t h e decision The full Court shall have power to m a k e such order as to the whole or any p a r t of the costs of t h e appeal as may seem j u s t Provided always t h a t the full Court shall be deemed to be any n u m b e r of J u d g e s thereof not be ing less t h a n three . 74. I t shall no t u n d e r any c i rcumstances be necessary for a respondent to give not ice of cross appeal b u t if a respondent in tends u p o n t h e hea r ing of the appeal to con tend t h a t t h e decision of t h e Cour t below should be varied or al tered he shall wi th in such t ime as m a y be prescribed by any general ru le or by special order give notice of such in ten t ion to any par t ies w ho may be affected by such content ion The omission to give such not ice shall no t d iminish t h e powers by th i s A c t conferred upon the full Cour t b u t m a y in the discret ion of t h e Court be ground for a n ad jou rnmen t of t he appeal or for a special order as to costs.
75. Eve ry not ice of appeal shall s tay t he execut ion of proceedings
u p o n t h e decree or order appealed from unless the J u d g e shall direct such execut ion to be proceeded wi th Provided t h a t t he J u d g e m a y (subject never theless to appeal as from any other order) direct such decree or order to be carr ied in to execut ion and all proceedings to be
t aken
t aken the reupon as if no appeal had been entered which direction may be upon such t e rms as to securi ty or otherwise or absolutely wi thou t any t e r m s as to such J u d g e shal l seem fit.
76. The decrees and orders of t he Supreme Cour t on appeal
shall be set t led by the Mas te r as a t present and the Cour t m a y in any
decree or order direct w h a t if any accounts shall be t aken or inquir ies
| made before t h e J u d g e | and w h a t if a n y before t h e | Mas te r . |
77. The J u d g e m a y on t h e appl ica t ion of any pa r ty or a t his
own discretion and on such t e rms if any as he shall t h i n k fit to impose direct a rehear ing by the full Cour t of any cause pe t i t ion mot ion or m a t t e r before h i m and in such case i t shal l no t be necessary to give any not ice of appeal b u t no th ing here in shall pre judice t h e r i g h t of any pa r ty to appea l whe re t he J u d g e shall no t give any such direction.
78. The J u d g e or full Cour t shall in every case have power to
award costs as between solicitor and client.
79. N o t h i n g in th i s A c t shall bo construed to affect t he r i gh t
of a n y pa r ty to appeal to H e r Majes ty in Council f rom any such
decree or order or from any reversal or affirmance thereof.
Miscellaneous.
80. The J u d g e s of t he Supreme Cour t or any t h r ee of t h e m
m a y m a k e general rules for r egu la t ing t he t imes and form and mode of procedure and general ly t h e pract ice of t h e Cour t in respect of t h e several ma t te r s to which th is A c t relates and for fixing the a m o u n t of all fees and al lowances to officers of t he Court and solicitors in reference to such m a t t e r s and otherwise for t he effectual execut ion of this Act a n d of the in ten t ion and object thereof Provided t h a t t he rules of t he Supreme Cour t a t present in force in reference to such ma t t e r s or a n y of t h e m unt i l repealed or al tered by any such general ru le shal l con t inue in force.
8 1 . Al l rules m a d e under this Act shal l immedia te ly after t he
| m a k i n g thereof | be laid before bo th | Houses of | Pa r l i amen t if | t h e n |
| s i t t ing | or | if | no t w i th in t en days after t h e n e x t s i t t ing | thereof | and | if |
e i ther of t h e said Houses shall by a n y resolut ion passed wi th in th i r ty days after such rules have been laid before it resolve t h a t a n y such ru le or any par t thereof ough t not to cont inue in force t h e n such ru le or pa r t shall immedia te ly cease to be b inding.
82. I n t he construct ion of this Ac t t h e words " s ta tement of
| c l a i m " | shall include | " i n f o r m a t i o n " | and | t h e word | " a f f i d a v i t " | shall |
| include affirmation | s ta tu tory | declarat ion | and a t t e s t a t ion | of | honor . |
83 . This Ac t shall commence on t h e first day of Sep tember one
| A c t of 1880 " and after t h a t elate the several Ac ts and par ts of Acts | thousand e ight hund red and e ighty and may be cited as t he " E q u i t y |
| specified in t h e Second Schedule here to shall be repealed Provided t h a t such repeal shal l no t have the effect of reviving any pract ice procedure or penal t ies which had been abolished by the said Acts or a n y of t h e m or of inva l ida t ing any acts the reby author ized or validated. |
S C H E D U L E S .
S C H E D U L E S .
FIRST SCHEDULE.
Indorsement on Statement of Claim.
VICTORIA E . To the within named defendant A.B. (or where there is more than one defendant defendants A.B. and C.D.) greeting—"We command you (" and every one of you " where there is more than one defendant) that within days after the service hereof on you exclusive of the day of such service you cause an appearance to be entered for you in our Supreme Court in the office of the Master in Equity to the within statement of claim and that if you do not admit that the plaintiff is entitled to the relief within prayed you do at the same time of entering appearance file in the office of the Master in Equity a memorandum to the effect that you dispute the plaintiff's claim and further that if you do admit the plaintiff's claim you do on the eighth day after such appearance or so soon after as you can be heard attend either personally or by Council before the Judge in Equity at the Supreme Court House in King-street in the City of Sydney at ten of the clock in the forenoon and submit to such decree as is within prayed or as shall be just.
Witness the Honorable the Primary Judge at Sydney the
day of in the year of our Lord and in the year of our reign.
NOTE.—Appearances are to be entered at the office of the Master in Equity at the Court House in King-street aforesaid and if you cither neglect to enter your appearance or to file a memorandum as abovementioncd or personally or by counsel to attend at the place and time abovementioncd you will be subject to such order as the Court may think fit to make in your absence.
SECOND SCHEDULE.
Acts and parts of Acts repealed.
4 Victoria No. 22 sections 20 & 21. 5 Victoria No. 9 sections 12 & 13. 11 Victoria No. 22 the whole.
10 Victoria No. 13 the whole. 17 Victoria No. 7 the whole. 26 Victoria No. 12 section 37.
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