Supreme Court Procedure Act 1855 (SA)

No. 24.

An Act for the furthey Amendment qf the Process, Practice, and

Mode of Pleading of the &'upreme Court,

[Assented to, June 18, 1856.1

E it Enacted, by the Governor-in-Chief of the Province of

B South Australia, with the advice and consent of tho Legislative Council thereof, as follows:

1. The partics to any calisc may, by consent in writing signed by Judge may, by con-

them or their attorney as the case may be, leave the decision of any	qUeations	of
issue of facts to the Court, provided that the Court upon a rule to show cause, or a Judge on suinnions shall in their or his discretion think fit to allow such trial, or pravided the Judges of the Supreme Court shall, in pursuance of the power hereinafter given them, make any general rule or order dispensing with such allowance, either in all cases or in any particular class or r:lasses of cases, to be defined by such rule or order, and such issue of fact may thereupon be tried and determined and damages assessed where necessary in open Court, either in term or vacation, by any Judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other Judge or Judges of the said Court, and such Judge shall have the same power to order a reference in such cause as though the same had been tried before him by a jury, and the verdict of such Judge or Judges shall be of the same effect as the verdict of a jury save that it shall not be qnestioned on the ground of being against the wcight of evidence, and the proceedings upon and after such trial as to the power of thc Court or Judge, the evidence and otherwise
shall be the same as in the case of trial by jury.

2. If it be made annear, at a& time after the issuing of thc writ. Power t o. ~ o w t or

' Judge to direct mbi-

to the satisfaction of %e court k r a Judge, upon the &plication of tration before - trial.

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ather party, that the matter	te consists wholly or in part of
matters of mere account wh	ot conveniently be tried in the
ordinary way, it s h d be la	ch Court or Judge, upon such

application, if they or he	cide such matter in a surn-
mary manner, or to orde	ter either wholly or in part
be referred to an ctrbitr	ors and umpires, appointed

by the parties, or to an	urt, or in country causes to
any Special Magistrate,	s as to costs and otherwise
as such Court or Sudg	sonable, and thc decision

3" or order of such Chart ward or certificate of such

referee shall be enforc	~ ~ O C C S S	SS the finding of
a Jury upon the matte

Be	3. If it shall appear to the Cou	or Judge that the allowance or
on

disallowancc of any particular items in such account denends

upon a question df law, fit to	ecided by the Court, or upon a
question of fact, fit to be

the consent of both provided, it shall be

lawful for such Court to be stated, or an

issue or issues to be Court upon suc.11

case, and the	issue or issues,
shall be

Arbiba&ma~atUe

special case. 4, It shall be lawful for the rbitrator, upon any compulsory

reference under this Act, or upon	reference by consent of parties,
where the submission is or ma	made a rule or order of the

Supreme Court, if he shall	t, ancl if it is not yroviclccl to the
contrary, to state his	the whole or anv part thereof, in
the form of a special	opinion of the C~ourt; and when

an action is referred,	so ordered, may bc entered ac-
cording to the opinion

If action, cammeneed 5. Whenever the partie y deed or instrument in writing to

by ono party, after all b

bava agreed to arbi-	e hereafter made or exec	any of them, shall agree that any
Judge may stay

kration, court or then existing or future es between them, or. any of them,

pruceedinga shall be refcrrcd to arbit d: any one or more of the parties

so agreeing, or any pcr	rsons claiming through or under
him or them, shall, nev	mmencc any action-at-lam or suit
in equity against the ot	parties, or any ofthem, or agaixlst
any person or persons	rough or undcr him or them in
respect of the matters S	e refkrred to any of them, it shall
be lawful for the Cour	ch action or suit is brought, or a

Judge thereof, on ap	def'mtlant or tkfmdants, or any
of them, after appe	re plea or answer, upon being

satisfi~d that no su sts why such matters cannot be

or ought not to be tion, according to such agree-

ment as aforesaid,	dant was, at the time of' the
bringing of suc	11 is, ready and willing to join
and concur in all	oper for causing such matters
so to he decided	c a rule or order staying all
proceedings in	sizch terms as to costs, aud as

to such Court or Judge may seem fi Provided always, that any such rule or ordcr may at any time afterwards be discharged W

varied, as justice may require.

i

6. If, in any case of arbitration,

cument authorizing tlrc On failme:of parties

or arbitrators, Judge

reference provide that the reference s to a single arbitrator, ,, ,,, iUt

and all the parties do not after differ	ve arisen concur in the a l b l t r ~ f ~.
appointing of an arbitrator, or if ;in	tcd arbitrator refuse to ancl the terms of such /,+ c9:200
act, or become incapable of acting,
docunwnt do not slivw that it was i	iat such vacancy should -- 2- &A--%-
not he supplied, and the parties do	r in appointing a new ___C
one; or if; where the parties or	ators are at libc~rty to * 2 - & - 7 p 14. g
appoint an umpire or third arbitr	arties or arbitrators do

not appoint an umpire or thir	or if any apl)oiated
umpire or third arbitrator rcfu	become incapable of

a(*ting, or die, ancl the terms	ment authorizing the
reference do not show that it	that such a vacancy

should not Fc suppliccl, ancl the rbitrators respectively do not appoint a new one; then, in every such instance, any party may serve the remaining parties or arbitrators, as the case may be, with 21 written notice to appoint an arbitrator, :mpire, or third arbitrator respectively; and if within scren clear days after such noticc: shall have bcen served, no arbitrator, umpire, or third arbitrator be appointed, it shall he ul for any Judge of the

S u p m ~ c Court, upon bumrnons to be out by the party having

scrvcd such notice as aforesaid, to ap	n arbitrator, umpire, or
third arbitrator, as the case inay he;	h arbitrator, umpire, or

thiid iwbitrator respc~ctivcly shali ha ke power to act in the

refcrcnce and make an award as if h	n tippointcd by consent
of all parties.

'7. IVhen the refcrcncc is or is intcncleb to be to two arbitrators, When reference i u to

one appointed by each party, it shall be 1 for either party, in one party fail to ap-

the case of the death, refirsal to act, or	city of any arbitrlttor point, o t h ~ r	party
appointed by him, to substitute a new a	, unlcss tlw docsmcu t
autlmizing thc rei'erence dlow that i t	dcd that the vacancy

should not be supplied; and if, on s cc, one party fail to

appoint an arbitrator, either origir~al

of substitution, as

aforesaid, for seven clear days

appointed an arbitrator, and shall

to appoint with notice in writin

party who has appointed an arbit

to act as sole arbitrator in the r

him shall be binding on both par

intmerlt had been

m~: le by consent: Provided, ho may revoke snch appointment or

b. When the reference is to two arbitra rs, a i d the terms of the TWO arbitrators m y

document authorizing i t do not show that t was intencled that there	appoint umpire.
should not be an umpire, or provide othe wise for the appointment of' an umpire, the two arbitrators may appo n t an umpire at any time I within

I 24 I

b* within the period during which the have power to make an mrard, 1

1 unless they be called upon by n tice as aforesaid to make the

appointment sooner. #

I \

/\O	three months, unluas
Award to be made in 9. The arbitrator acting und such 4ocument or compulsory
parties or Court order of reference as aforcsai der any order referring the
5	enlarge. award back, shall make his r his hand and (unless such

document or order, respect a different limit of

time) within three months	have been appointed and
shall have entered on the r	all have been called upon:
to act by a notice in writ	arty, but the parties may,
by consent in writing, enl	r making the award, and

it shall be lawful for the	which such submission,
document,, or order is	a rule or order, or for
any Judge tlmcof, for	ed in thc rule or order

for enlargement, from the term for making

the award, and if no	e enlargement in such
consent or order for	eemed to be an enlarge-

ment for one month	an umpire shall have
been appointed it d	enter on the refercnce
in lieu of the arbitx	ave allowed their time
or their extended ti	ing an award, or shall
have delivered to	, a notice, in writing,
stating that they c

Rule to deliver pas-

aenvion of land, pur- 1 0. When any award made such submission, document, or

suant to award, to be order of reference, as aforesaid s that possession of' any lands

enforoedaa~jua~ment	in ejeetment.	or tenements, capable of bein	ect of an action of ejectment,
shall bc delivered to any pa	forthwith or at any future

tirnc, or that any such party is	the possession of any such
lands or tenements, it shall be	he Supreme Court to order

any party to the reference	e in possession of any smh
lands or tcncments, or any	session of the same claiming
under or put in possession	the making of the docunient
authorizing the refercncc,	sscssion of the same to the
party entitled thereto purs	ard, and such rule or order

to deliver possession shall of a jutlginent i n ejectment

against every such party	d in it, and execution may
issue and possession shall	he Sheriff as on a judgment

in ejectmcnt. *L*

Apeemeat or sub-

mission m writing, 11. Every agreement or mission to arbitration by consent,

nlap bo rule of whether by deed or in writing not under seal, may be

Co~~rt~unlcnaacon- made tt rule of

trary intentiorr appear. on the application of any party

thereto; unless or submission contain words pur-

porting that the parties intcn that it should not be made a rule of

Court. P

Speeches to JIW.

12. Upon the trial of any cause the addresses to the Jury shall be

regulated as foll~ws:-~J'he party who begins, or his connsel, shall

be allowed, in the event of his opponent not annomcing at the close

of

23. In every rule nisi for a new trial, or to enter a verdict, or non- Urounds to be stated

in ru le taisi for a new

Wit, the grounds upon which such rule shall have been granted	trial.
be shortly stated thcrein.

24. In all cases of rules to enter a verdict or nonsuit upon a point If rule nisi refused, party may appeal.

reserved at the trial, .if the rule to show cause be refused or granted, and then divharged or made absolute, the party decided against may, appeal to the Court of A p ~ a l. d1 -- -

25. In all cases of motions for a new trial, upon the ground

'the Judge has not ruled according to law, if the rule to show cause be refused, or, if granted, be then discharged or made --W- absolute, the party decided against may appeal to the Court of Appeal: Provided e'

that where the application for a new trial is upon matter o

cretion only, as on the ground that the verdict was against the fl-c-', L ~ * * J & z*+.*

' 3

weight of evidence, or otherwise, no such appeal shall be allowed. &fled

26. No appeal shall be allowcd unless notice thereof be given in Notice of appal.

writing to the opposite party, or his attorncy, and to the Master or one of the Masters of the Court, within four days after the decision complained of, or such further time as may be allowcd by the Court or a Judge.

27. Notice of appeal shall be a stay of execution, provided b a1 'l to Bail.

pay the sum recovered, and costs, or to pay costs where the appellant	L"-
was plaintiff below, be given in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivcrcd to the Sheriff.

28. The appeal hereinbefore mentioned shall be upon a case to be F O ~ of appeal.

stated by the parties (and in case of difference to be settled by the Court or a Judge of the Court appealed from), in which case shall be set forth so much of the pleadings, evidence, and the ruling or judgment objected to as may be necessary to raise the question for the decision of the Court of Appeal.

29. When the appeal is from the refusal of the Court bdow to Rule nisi granted on

grant a rule to show cause, and the Court of Appeal grant such rule, :!.ped,	&woSed
such rule shall be argued and disposed of' in the Court of Appeal.

30. The Court of Appeal - <A- shall, in all cases, whether in respect of Judgment court of r-J

appeals mamefi i re - or after this Act shall come inta$peratioLgive 'ppea1. G ~lfi- ?A. /id,/

such judgment as o u g E m a v e beFgiven in the Court below, and

/'

all such further proceedings may be taken thereupon as if the judg-

ment had been given by the Court in which the record originated.

31. The Court of Appeal shall have power to adjudge payment of Powers of Court of Appenl as to costa,

costs and to order restitution. and otherwise.

32. Upon an award of a trial de novo by the Supreme Court, or by Error award of

the Court of Appeal, upon matter appearing upon the record, an tria'jBmve*

appeal

to designate the particular occasion,

s, and he must be asked whether or

d

&m-examination arr

to pmv50m atsternmCn	18. A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without such writing being shown to him; but if it is intended to contradict such witness by the writing,
in writlug.

v. - . - .-. *-.- do--.

_.- .+- - ..his&tention muat, before such contradictory proof can be given, be -

cajled to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the Judge, at any time during the trial, to require the production of the writing for his inspection; and he may thereupon make such use of it, for the purposes of the trial, as he shail think fit.

proof of previoue

conviction of a wS.tneea

19. A witnem in any cause may be questioned as to whether he has been convicted of any felony or rnisdcmeanor; and upon being so questioned, if he either denies the fact, or refuses to answer, it shall be lawful for either party to prove such conviction; and a certifi- cate, containing the substance and effect only (omitting the formal part) of the indictment or information and conviction for such offence, purporting to be signed by the Clerk of the Court, or other officer hav- ing the custody of the record8 of the Court whe~e the offender was con- victed, or by the deputy of such Clerk or officer(for which certificate a fee of Five Shillings, and no more, shall be demanded or taken), shall,

may be given.

upon proof of the identity of the person, be sufficient evidence of the

said conviction, without proof of the signature or official character of

the person appearing to have signed the same.

nednot be

Atteetin5 witnw 20. It shall not be necessary to prove, by the attesting witness,

eroept in oertain

any instrument to the validity of which attestation is not requisite:

atwes.

and such instrument may be proved by admission or otherwise, as if

there had been no attesting witness thereto.

Camparkon OP &S-

21. Comparison of a disputed writing, with any writing, proved to made by witnesses, and such writings, and the evidence of witnesses

putd vcriting.

the satisfaction of the Judge to be genuine, shall be permitted to be

evidence of the genuineness or otherwise of the writing in dispute. respecting the same;may be submitted to the Court and Jury as

~ r m r m y b. bmsght 22. An appeal may be brought upon a judgment upon a special case, in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary; and the proceedings for bringing a special case before the Court of Appeal s ~ &, z,s nearly as may be, be the same as in the case of a special verdict; and the Court of Appeal shall either affirm the judgment, or give the same judgment as ought to have been given in the Court in qhich it was originally decided, the said Court of Error being required to draw my inferences of fact from the facts stated in such specid case which the Court where it was originally decided ought to have drawn.

on, on a special tme.

23. 1n every rule nisi for a new trial, or to enter a verdict, or non- suit, the grounds upon which such rule shall have been granted shall .,,	U X Q W ~ ~ ~, to be stated
in rule nioi for a new
be shortly stated therein.

24. In all cases of rules to enter a verdict or nonsuit upon a

reserved at the trial, if the rule to show cause be refused or gr

and then dis harged or made absolute, the party decided against

appeal to t 8 e Court of Appeal.

25. In all cases of motions for a new trial, upon the ground

the Judge has not ruled according to law, if the rule to show

be refused, or, if granted, be then discharged or made absol

party decided against may appeal to the Court of Appeal: Pr

that where thc application for a new trial is upon mjtter o

cretion only, as on the ground that the verdict was against the -&-J-

?! "-7

weight of evidence, or otherwise, no such appeal shall be allowed. /7 W 4 2

26. No appeal shall be allowed unless notice thereof be given in Notice of appeal.

writing to the opposite party, or his attorney, and to the Master or one of the Masters of the Court, within four days after the decision complained of, or such further time as may be allowed by the Court or a Judge.

27. Notice of appeal shall be a stay of execution, provided bail to Bail. W --

pay the sum recovered, and costs, or to pay costs where the appellant

was plaintiff below, be given in like manner and to the same amount

as bail in error, within eight days after the decision complained of,	I
or before execution delivered to the Sheriff.

28. The appeal hereinbefore mentioned shall be upon a case to be F O ~ of appeal.

stated by the parties (and in case of difference to be settled by the Court or a Judge of the Court appealed from), in which case shall be set forth so much of the pleadings, evidence, and the ruling or judgment objected to as may be necessary to mise the question for

the decision of the Court of Appeal.

29. When the appeal is from the refusal of the court below to Rule %g granted OII

grant a rule to show cause, and the Court of Appeal grant such rule, :!pea'?	how
such rule shall be argued and disposed of in the Court of Appeal.

30. Thc Court of A p ~ e a l shall, in all cases, whether in respect of Judgment Coult d /=>

a,~pea1s,rnade7jk6% - or a s r this Act shall come C_- intdoperatioggive -- . l -y~ / i lk'

such judgment as ought~oh-ave bezgiven in the Court below, and $11 such further proceedings may be taken thereupon as if the judg- ment had been given by the Court in which the record originated.

31. The Court of Appeal shall have power to adjudge payment of Powers of Court of Appeal as to cm19

costs and to order restitution. and otherwhr.

32. Upon an award of a trial de novo by the Supreme Court, or by Error ~ponawaxd

the Court of Appeal, upon matter appearing upon the record, an

appeal

appeal may at once be brought, and if the judgment in such or any

other case be ffimed on appeal, it shall be lawful for the Court of

Appal to adjudge COW to the defendant an such appeal. ;)1

hyrnent O ~ O O ~ ~ S U ~

hew tnQ m matter 33. When a new trial is granted on the ground that the verdict

of ~rct.

was against evidence, the costs of the first trial shall abide the event,

.unlesg the Court s h d otherwise order,

34. Upon motions founded upon affidavits, i t shall be l a d u l for either party with leave of the Court or a Judge, to make affidavits

in answer to the affidavits of the opposite party, upon any new matter

arising out of such affidavits, subject to all such rules as shall here*

after be made respecting such affidavits,

Pawer to Court or 35.

Upon the hearing of any motion or sammons, it shall be lamfid tefrns as they or he shall think reasonable, from time to time to order such documents, as they or he may think fit, to be produced, and such witnesses, as they or he may think necessary, to appear and be examined viva voce, either before such Court or Judge, or before the Master, and upon hearing such evidcnce, or reading the report of 8uch waBter, to make such rule or order as may be just.

Judge to dire& oral

examinatioha of	for the Court or Judge, at their or his discretion, and upon sbch
witnesses.
and upon such
hceedinga before	36. The Court or Judge may by such rule or order, or any sub- sequent rule or order, command thc attendance of thc witnesses named therein for the purpose of being examined, or the production
examinatibn.
of any writings or other documents to be mentioned in such rule or
order; and such rule or order shall be proceeded upon in the same manner, and shall have the same force and effcst as a rule of the Court, under an Act passed in the first year of the rcign of His late Majesty King William the Fourth, intituled "An ,4ct to enable Courts of Law to order the examination of Witnesses upon inter- rogatories, or otherwise;" and it shall be lawful for the Court, or Judge, or Master, to adjourn the examination from time to time as occasion may require, and the proceedings upon such examination shall be conductcd, and the depositions taken down, as nearly as niay be, in the mode now Jn use with respect to the viva voce examination
of witnesses under the last mentioned Act.
son who refuses to
Examination of per-	37. Any party to any c i d action or other civil proceeding in the Supreme Court requiring the affidavit of a person who refuscs to make an affidavit, may apply by summons for an order to such 3erson to appear and be examined upon oath before a Judge or Laster, to whom it may be most convenient to refer such examina- tion, as to matters concerning which he has refused to make an affidavit; and a Judge may, if' he think fit, make such order for the attendance of such person before the person therein appointed to take such examination, for the purpose of being examincd as aforesaid, and for the production of any writings or documents to
make an &davit.
be mentioned in such order, and may therein impose such terms as
to such examination, and thc costs of the application and pro- ceediltgs thereon, m he shall think just. 38. Such

arder made under the hereinbefore-mentioned Act passed in the first order of anamination 38. Such order shall be proceeded upon in like manner as Proe-dingsapan

year of the reign of His late Majesty King William the Fourth; and the examination thereon shall be conducted, and the depositions taken down and returned, as nearly as may be in the mode used on

oiva awe examinations under the said Act of Parliament.

e

39. Upon the application of either party ta ahy cause or other b i ~ ~ v e r y o f dwu-

civil proceeding in the Supreme Court, upon an affidavit by such ments.

party of his bdief that any document to the production of which

he is entitled, for the purpose of discovery or atherwise, is in the

possession or power of the opposite party, it shall be lawful for the Court or Judgc to ordcr that the party against whom such applicab tion is mhde, or if sach p r t y b a body corporate that some officer So be named by such body corporate, shall answer on affidavit stating what documents he or they has or have in his or their possession or power reking to the matters in dispute, or what he knows as bo the custody they or any of them are in, and whether hc or they objects or object (and, if so, on what grounds) to the pro- duction of such as are in his or their possession or power; and upon such affidavit being made, the Court or Judge may make such further order thereon as hall be jusk

40. In all causes in the Supreme Court, by order of the Court or Power b de1' i~e~ written interrogatorh

a Judge, the plaintiff may with the declaration, and the defendant, oPPolita

*

may with the plea, or either of them by leave of the &urt or a Judge, may at any other time deliver to the apposite party or his attorney (provided such party, if' not a body corporate, would be liable to be called upon and examined as a witness upon such matter) interrogatories in writing upon any matter as to which dimvery may be sought, and require such party, or in the case of a body rrorporate any of' the officers of such body corporate, within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery

contempt of Court, and shall be liable to be proceeded against	Court or a Judge shall allow, shall be deemed to have committed a may be sought, within the above time or such extended time as the
accordingly.

41. The application for m& order sh.all be made upon an afidavit Affidavits by party

of the party proposing to interrogate, and his attorney or agent, or ,,gate, aud proposing to m l e ~

in the case of a body corporate, of their attorney or agent, stating that afhmey-

thc deponents or dqohent believe or believes that the party pro-

posing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery which he seeks that there is a good cause of action or defence upon the merits; and if the application be made on the part of the defendant, that the discovery is not sought for the purpose of delay: Provided that where it shall happen from unavoidable circumstances that the plaintiff or defendant cannot join in such affidavit, the Court or

h 2 Judge

Judge may, if they or he think fit, upon affidavit of such circuin*

stances by which the party ie prevented from so joining thereia, allow and order that the interrogatories may be delivered without such affidavit.

Q& examination, of	42. In case of omission without just cause to answer sufficiently such written interrogatories, it shall be lawful for the Court or a Judge, at their or h b discretion, to direct an oral examination of the interrogated party as to such points as they or he may direct, before
dhwed.
a Judge or Master; and the Court or Judge may, by such rule or
order, or any subsequent rulc or order, corrlmand the attendance of such party or parties before the person appointed to take such ex- amination, for the purpose of being orally cxamincd as aforesaid, or the production of any writings or other documents to be men- tioned in such rule or order, and may impose therein such terms as to such examination, and the costs of the application, and of the proceedings thereon, and otherwise as to such Court or Judge shall

c seem just.

Proceedings upon 43. Such rule or order shall have the same force and effect, and

mCh Or

may be proceeded upon in like manner as an order made under the said hereinbcforc-mentioned Act, passed in the first year of the reign of His b te Majesty King Williarn the Fourth.

Depwitiuns upon such

examinations t o be 44. Whenever, by virtue of this Act, an examination of any wit- or before a Master, the depositions taken down by such examiner shall be returned to and kept in the Master's office of the said Court, and office copies of.such depositions may be given out, and the de- positions may be otherwise used in the same manner as in the case

to Master,s new or witnesses has been taken before a Judge of the said Court,

office.

X W. 4, C. 22.

of depositions taken under the hereinbefore-mentioned Act, passed

in the first year of the reign of His late Majesty King William the

Fourth.

Eraminer rney

45. I t shdl be lawful for every Judge or Master named in any such rule or order, as aforesaid, for taking examinations under this Act, and he is hereby required to make, if need be, a special report to t.he said Court touching such e~amina~tion and the conduct or absence of any witness or other persons thereon or relating thereto, and the Court is hereby authorized to institute such proceedings and make such order or orders upon such report &S justice may require, and as

wcfa l repod	the
cowt,

may be instituted and made in any case of contempt of Court. ,

C ' O S ~ ~ of Rtle and 46. The cost of every application for any rule or order to be made

the cliecretion ~f the bein for the examination of witnesses by virtue of this Act, and of the

court.	rule or order and proceedings thereon, sPdl be in the discretion of
the Court or .Judge by who& such rulk or order is made.

all be at liberty to apply to the Court or a

r for the inspection by the jury, or by him-

of any rcal or personal property, the inspec-

tion

%ion of which may be material to the proper determination of the question in dispute, and it shall be lawful for the Court or a Judge, if they sl~all think fit, to make such rule or order upon such terms, as to costs and otherwise, as such Court or Judge may direct: P r e vided always, that nothing herein contained shall affect the provision8 of the " Common Law Procedure Act, 1853," or any previous Act, as to obtaining a view by a jury: Provided also, that all rules and regulations now in force and applicable to the proceedings by view under the said la.st-mentiofied Act shall be held to apply to proceed- ings for inspection by a jury under the provisions of this Act, or as near thercto as may be.

48. The said Court or any Judge thereof, may make all such summoning f l d e or order Jury. fm

rules or orders upon the Sheriff, or other person, as may be necessary to procure the: attendance of a special or common jury for the trial of any cause or matter depending in such Court, at such time and place, and in such manner as they or he may think fit.

49, It shall be lawful for any creditor, who has obtained a judg- judgment Examinntinn debtor of as

merit in the said Court to apply to the Court, or a Judge, for a rule ,, debts due to hirn,

or order that the judgment debtor should be orally examined, as to

any and what debts are owing to him, before a Master of the Court

or such other person as thc Court or Judge shall appoint, and the

Court or Judge shall make such rule or order for the examination of such judgment debtor, and for the production of any books or docu- ments, and the exl~mination shall be conducted in the same manner as in the case of an oral examination of an opposite party before a Master under this Bct.

50. I t shall be lawful for a Judge, upon the e z parte application Judge attachment may order of debts. m

of such judgment creditor, either before or after such oral examina-

tion and upon affidavit, by himself or his attorney, stating that judg- ment has been recovered, and that i t is still unsati~fied, aud to what amount, and that any other pcrson is indebted to the judgment debtor and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the garnishee)	to the judgment debtor shall be attached to answer the judgment	debt, and, by the same or any subsequent order, it may be ordered
that the garnishee shall appear before the Judge or a Master of the Court, as such Judge shall appoint, to show cause why he should not pay the judgment creditor the debt due from him to the judgmest debtor or so much thereof as may be sufficient to justify the judg- ment debt.
ment debtor shall be attached, or notice thereof to the garnishee iin to bind debte. 51. Service of an order that debts due or accruing to the judg- order for attachme
such a manner as the Judge shall direct, shall bind auch debts in his hands.

52. If the garnishee does not forthwith pay into Court the amount Proceedings l e v

due from him to the judgment debtor, or an amount equal to the amount due from garniehee to judgment

judgment debtor,

judgment debt, md does not diwute the debt due or claimed to be

due from him to the judgment debtor, or if he does not apyearapon ~ummam, then the Judge may order execution to issue, and it map be sued &rth accordingly, without any previous writ or process to levy Ihe amount due from auch gsrnishee, towards satis6ction of the judgment debt.

Judge may allow 53. If the gamishee disputes hie liability, the Judge, instead of

judgment creditor to

sue g&&&	making a9 order that execution shall Issue, may order that the
judgment creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor if less than the judgment debt, and for costs of suit; and the proceedings upon such suit shall be the same as nearly may be as upon a writ of revivor under the "Common Law Procedure Act, 1853."
(fsmishce discharged.	54, Payment made by, or execution levied upon, the garnishee, under any such proceeding as aforesaid, shall be a valid discharge to him as against the judgment debtor, to the amount paid or levied, although such proceeding may be set aside or the judgment reversed.
attachment bookto	55. In the Supreme Court, there shall be kept at the Master's made of the attachment and proceedings thereon, with names, dates, a d statements of the amount recovered and otherwise, and copies of any entries made therein may be taken by any person upon appli- cation to the Master.
bok"tbythehtem	affice, a debt attachment book, and in such book entries shall be
of each Court.
COB^ ofapplio~tion.	56. The costs of any application for an attachment of debt under this Act, and of any proceedings arising from or incidental to such application, shall be in the discretion of the Court or a Judge.

for 57. The plaintiff, in any action in the Supreme Court, except mplevin and ejectment;, may endorse upon the writ and copy to be served a notice that the plaintiff intends to claim a writ of manda-

to he per-

formance of duties.

W, and the plaintiff may thereupon claim in the declaration, either	together with any other demand which now may be enforced in such
action, or aeparatdy, a writ of mandamus commanding the defendant to fdfil any duty in the fulfilment of which the plaintiff is personally interested.

The declaration in such action shall set forth sufficient grounds upon which such claim is founded, and shal set forth that the plain- tiff is personally interested therein, arid that he sustaina or may sustslin damage by the non-performance of such duty, and that per-

58.

~~,l,,,ti,, a	action
~ O T m a t i a k w.

formance thereof has been demanded by him and refused or neg-

lected.

59. The pleadings and other proceedings in any action in which

a -1; of w!zmda~tlm is claimed, shall be the same in all respects, as nearly

nearly as may be, and costs shall bc recoverable by either party, as

an ordinary action for the recovery of damages.

60. In case judgment shall be given to the plaintiff that a majr- ::$frtandex-

damus do issue, it sltall be lawful for the said Conrt, if it shall see fit,

besides issuing execution in the ordinary way for the costs and damages, also to issue a peremptory writ of nznndancus to the defen- dant comn~anding him forthwith to perform the duty to be enforced.

61. The writ need not recite the declaration or other proccedings, ~ o m of ~firemptoq

or the matter therein stated, but shall simply command thc perform- writ.

ance of thc duty, and in other respects shall bc in the form of an

ordinary writ of execution, except that it shall be directed to the

party and not to the Sheriff, and may be issued in term or vacation

and returnable forthwith, and no return thereto except that of corn-

pliance shall bc allowed, but time to return it may, upon sufficient

grounds, be allowed by the Court or a Judge either with or without

terms.

62. The writ of mandamus so issued as aforesaid, shall have the ~ f f o c t of writ of

mwcn'rcvrus, and pro-

balm force a id effect as a peremptory writ of ma?tdu,mus issued out uaedmga enfome it.

of the Court of Queen's Bench, at We~t~minster,	and in case of diso-
bedience may bc enforced by attachment.

63. The Court may, upon application by the plaintiff, besides or me court may oracr t h e act t o be done at

instead of proceeding against the disobedient party by attachment, nrponse of

dircct that the act req~uretll to be done m y be done by the plaintiff dtfeudant

or some other person apl~ointed by the Court at the expense of the defendant, and upon the act being done the arnoimt of such expense may bc ascertained by the Court either by writ of inquiry or reference to a Master as the Court or Juclgc may order, and thc Court may order payment of the amount of such expenses and costs, a i d enforcc payinent thereof' by cxecution.

64. Sothing herein contained shall take away the jurisctiction of Prcrrrwtive writ o f

the snid Court to grant writs of mandanzcs, nor shall any writ of pn"rved.

mnndamus issued out of the said Court be invalid by reason of the

right of the p~osccutor	to proceed by action fbr mnndamus under
this Act.

65. All the powers vested in the snid Court, in all cases where no rowor of Cowt to grant mccrdarnus ex-

elcction is imde to any corpomte office, under authority of n certain tcnrlrdto ~ l l caj.es ia

Ordinance No. 11 of 1849, '' To constitute a Municipal Corporation which d ~ t i o n s may

fail or bcconie void.

for the City oi'ddclaide," shall extend to and be enjoyed and exercised

by the said Court in all cases where any election to an office by

law authorized to be made shall not llave been made on thc day	i
appointed for such election or shall afterwards bccomc void.

66. Upon application by motion for any writ of mnndamus in the said Pmc:edi~g for pro-

. rogative wnt o f mnM-

Court, the rule may in all cases M t e in the first i e ~f ~ W M M avcalcratod.

the c-.cL----- Court ----V shall t h i n k a n d the writ may bear teste on t G T t 7

S 2 issuing

i.ssuiag and may be made returnable forthwith whether in term ar in vacation, but time may be allowed ta return it by the Court or a

Judge, either with or without terms, ;t

h e e d i q p o n p r e -	67, The	provisims	of	the	'' Supreme Comt Procedure	Amend-
rogative writ af %m-

saw*	ment A c t, ' b d of this Act so far as they are applicable, shdl apply to the pleadings and proceedings upon a prerogative writ of
rmaladarnu.~ issml by the said Court.

Rpm* of 68, The Con& or a Judge shall have pswer, if they or he

ehattehe.	see fit so to do, upon the application of the plaintif, in any action for the detention of any chattel, or order that execution shall issue for the yeturn of the chattels detained, without giving the defendant
the option of retaining such chattel upon paying the value asscssed;
and that if the said chattel cannot be found, and unless the Court or
s Judge should otherwise order, the Sheriff shall distrain the defend-
ant by d his lands and chattels, till the defendant render such chattel, or at the option of the plaintiff, that he came to be made of the defendant$ goods the assessed value of such chattel: Provided that'the plaintiff shall, eitha by the same or a separate writ of execution, be entitled to have made of the defendant's p o d s the damages, mats, and intereat, in such action.

C I G ~ of writ o l ~ 69. Ia all cases of breach of contract or other injury, where the

injunction.

party injared is entitled to maintain and has brought an action, he may in like case aud manner as hereinbcfore provider1 with respect to mandamzcs, claim a writ of injunetion against the repetition or continuance of such breach of contract or other injury, or the com- mittal of my breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right, and he may also in the same action inchde a claim for iattrnagcs or other redress,

Form of writ of

munmons, and en- 70. The writ of summons in such action shall be in the same as

aol+)znegc there*.	the writ of summons in any personal action; but on any such writ and copy thereof there shall be endorsed a notice, that, in default of appearance, the plaintiff may, besides proceeding to judgment and
junction. execution for damages and costs, apply for and obtain a writ of in-

P O ~ of prowed- 7 l. The proceedings in such action shall be the same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain ca, mandamus under the provisions hereinbefore con- tained; and in such action, judgment may be given that thc writ of injunction do or do not issue as justice may require; and in case of disobedience, such writ of injunction may be enforced by attachment by the Court, ox when snch Court shall not be sitting, by a Judge.

aria of judgment.

Writ of inju;t&itisn 72, It shall be lawful for the plaintiff, at any time after the com-

nap be applisd for et mencement of the action, and whether before or after judgment, to apply

,, ,, b

WW.

ex pwte to the Gout or ra Judge for a writ of injunction to restrain

the

the defendant in such action, for the repetition or continuance of the wrongful act or breach of contract complained of, or the committal of any breach of contract, or injury of a like kind, arising out of the same contract, or relating to the same property or right; and ~ u c h

writ may be granted or denied by the Court or Judge, upon such terms, as to the duration of the writ, keeping an account, giving security, or otherwise, as to such Court or Judge shall seem reason- able and just; and in case of disobedience, such writ may be enforced by attachment by the Court, or when such Courts shall not be sitting, by a Judge: Provided always, that any order for a writ of injunction made by a Judge, or any writ issued by virtue thereof, may be dis- charged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order.

73. Any matter which, if it arose before or during the time for Equitable defcnce

pleading, would afford an equitable defence to any action, may, if' it after judgment.

arise after the lapse of the period during which it could be pleaded,

be set up by way of auditn querela.

74. The provision contained in the " Supreme Court Procedure $ l ~ ~ ~ ~ f; t ~

Amendment Act," that in every action in the Supreme Court, it shall Procedure ~ ~ t -

be lawfix1 for any defendant, by leave of the said Court or any Judge authorizke o ~ i t a b l e d"f i9p-+3r-2 4

thereof, to avail himself of any dcferlce in equity to the claim sought -, .-W--

cLA -

to be enforced by such action, shall apply, and shall be taken and F '

construed to have applied to actions of ejectment, as well as to all	-	s, 7 5 r C c 7 +p3
other actions.

75. The plaintiff may reply in answer to any plea of the defendant, Eq~itablere~licati~nm

kcts which avoid such plea upon equitable grounds, provided that such replication sllall begin with the words, '"or replication on equitable grounds," or words to the like effect.

76. In case of any action founded upon a bill of exchange, or other Artio~ls on lost isstru- ments.

negotiable instrument, it shall be lawful fox the Court or a Judge to order that the loss of such instrument shall not be set up, provided

an indemnity is given to the satisfaction of the Court, or Judge, or a

instrument. Master, against the claims of any other person, upon such negotiable mary application, by rule or order, exercise such and the like juris- Shipowner's Act. 77. The Supreme Court, or any Judge thereof, may, upon sum- Jufisdictionundor

diction as may, under the provisions of an Act of Parliament, made and passed in the fifty-third year of the reigrr of His Majesty King George the Third, intituled " An Act to Limit the Responsibility of 63 G. 3. c. 159.

Shipownersin certain cases," be exercised by thc said Court, under and by virtue of its Equitable Jurisdiction.

78. Any person who shall, upon any examination upon oath or affirmation, or in any affidavit in proceedings under this Act, wilfully and corruptly give false evidence, or wilfully and corruptly swear or	cvidench
affirm anything which shall be false, being convicted thereof shall be
liable to the penalties of wilful and corrupt perjury.

79, Proceedings

~ ~ ~ P ~ ~ o n j u d g -

ment of asscta m 79. Praceedings against executors upon a judgmcnt of assets in

~ F C ~ I W ~.	fu&ro	may be had and taken in the manner provides by the " Su- preme Court Procedure Amendment Act" as to writs of revivor?
TocompelooIltinumce

Where an actian wauld, but for the provisions of the " Suprcme tbe death of either party, and in which the proceedings may be re- vived and continued under that Act, the defendant, or peraon qpinst whom the action may be continued, may apply by snmmons to com-

or abandonmentof $0.

actioninoa~of rleath. Court Procedure Amendment Act," have abated by rcasan of

pel the plaintiff, or other pcrson entitlcd to proceed with the action

in the room of the plbintiff, to proceed according to the provisions of the said Act within such time as the Judge shall order; and in de- fault of R U C ~ proceeding, the defendant, or other person against whom the action may be continued as afbreaaid, shall be entitled to cnter a suggestion of such default, and of the representative chi~rac-

ter of the person by or against whom the action may Be with, as the case may be, and to h:tve jnilgment for the costs of the action and suggestion against the plaintiff, or against thc person entitled to proceed in his room, as the case may bc, and in the latter case to be levied of the goods of the tcstator or intestate.

Claimant, in swmd

ejcctmcnt for same 81. If any pcrson shall bring an action of ejectment after ix prior

premises agahst the action of ejcctment fbr the same premises has been or shall hate

anme defuncli~nt, may

be ordered to give

been unsuccessfully brought by such person, or hy nuy person through

security fur costs.

or under whom he claims, against the same &&ndant, or against any person through or under whom he tlepencls, the Court or a Judge may, if they or he think fit, on the application of the defendant, at any time after such defcxlrllant lms ;ippcarcd to the writ, order tlmt the plaintiff shall givc to the dcfendmlt security for the pnyment of the defendant's costs, and that dl fnrthcr pro&cd- ings in the cause shall be stayed until such security be given, whether the prior action has been or shall have bccn disposed OS by discontinuance, or by nonsuit, or by judgment f01* the dcfkndant.

Amondmenta.

82. I t shall belawful for the said Snpreme Corrrt and evcry Judge tlwrc-

of, and for any Judge sitting at r~isipr-izc.s,at all tiirles to anlend all dcf'ects

and errors in any proceedings under the provisions of this Act, whether

defect or error be that of the pitrty applying to amend or not, and all there is anything in writing to a~rielld by or not, nnrl whetller the

such amendinents may be made with o~ ~vitllont costs, and upon such terms as to the Court or Judge may seem fit; anci all such amend- ments as may be necessary for the purpose of determining it1 the existing suit the red qqnestian in controversy between the parties shall be so made if duly applied h r.

R ~ n e r ~ R u l e ~ n ~ ~ ~	83. It shall be lawful for thc Jnrlges of	the s i d Courts from time
made by the Judges.

to time to make all such Qcneral Ii+ules and Orders for the effectual

execution of this Act, and of the intention and object thereof, a ~ d

for fixing the costs to bc allowed for and in respect of the matters

herein contained, and the performance thereof, as in their judgrneut

shall be necessary and proper: Provided that nothing herein con-

tained

tained ahall be construed to restrain the authority or limit the juris- diction of the said Court or of the Judges thereof, to make Eules or Orders, or otherwise to regulate and dispose of the business therein,

84. Such new or altered wits and forms of proceedings may be ~ & f ~ ~ ! ~ ~ ~ & R ,

issued, entered, and taken, as may by the Judges of the said Court

be deemed necessary or expedient for giving effect to the provisions

hereinbefore contained, and in such forms as the Judges shall from time to time think fit tb order; and such writs and prozeedings shall be acted upon and enforccd in such and the same manner as writs and proceedings of the said Court are now acted upon and enforced, or as near thereto as the circumstances of the case will admit; and any existing writ or proceeding, the form of which shall be ill any manner altered in pursuance of this Act, shall neverthekm be of the same force and virtue as if no alteration had been made therein, except so far as the effect thereof may be varied by this Act.

85. I n citing this Act in any instrument, document, or proceeding, Short titk of Act.

it shall be sufficient to use the expression " The Supreme Court

Procedure Act, 1855.''

86. This Act shall commence and come into operation on the first ammncemect of - - -- -0

Act.

day of August next. . -

- /m.

- -

%

ABELAXDB : Printed by authority, by W. C.