ORDER IN COUNCIL.

COMMON LAW PROCEDURE ACT, 1854.

At the Court at Windsor, the 18th day of November, 1867.

PRESENT:

The Queen's most Excellent Majesty in Council.

WHEREAS by "The Common Law Procedure Act, 1854," it is enacted that it shall be lawful for her Majesty, from time to time, by an order in council, to direct that all or any part of the provisions of the said act shall apply to all or any court or courts of record in England and Wales, and that within one month after such order shall have been made and published in the "London Gazette" such provision shall extend and apply in manner directed by such order, and that any such order may be, in like manner, from time to time annulled; and that in and by such order her Majesty may direct by whom any powers or duties incident to the provisions applied under the said act shall and may be exercised with respect to matters in such court or courts, and may make any orders or regulations which may be deemed requisite for carrying into operation in such court or courts the provisions so applied:

And whereas it has seemed fit to her Majesty, by and with the advice of her privy council, that certain of the provisions of the said act should be extended and applied to all the courts of record established under the provisions of "The County Courts Act, 1846," and also to the city of London court of record as constituted by "The County Courts Act, 1867:"

Now, therefore, her Majesty, by and with the advice aforesaid, is pleased to order, and it is hereby ordered, that the provisions contained in sections fifty, fifty-one, fifty-two, fifty-three, fifty-four, sixty, sixty-one, sixty-two, sixty-three, sixty-four, sixty-five, sixty-six, sixty-seven, eighty-three, eighty-four, eighty-five, and eighty-six of "The Common Law Procedure Act, 1854," shall apply to the said courts of record.

And her Majesty is further pleased, by and with the advice aforesaid, to direct that the powers and duties incident to the above-mentioned provisions of "The Common Law Procedure Act, 1854," with respect to matters in the said courts of record, shall and may be exercised by the judges of the said courts respectively, or their respective deputies, and to order that the statutes, rules of practice, orders, and forms in force and used in the said courts of record shall be adopted with reference to proceedings had in such courts under the above-mentioned provisions of "The Common Law Procedure Act, 1854," so far as the same are applicable, mutatis mutandis. (Signed) ARTHUR HELPS.

COMMON LAW PROCEDURE, 1854.

COMMON LAW PROCEDURE ACT, 1854.

Power to adjourn trial.

Affirmation instead of oath in certain cases.

Persons making a false aflirmation to be subject to

17 & 18 VICT. CAP. 125.

An Act for the further Amendment of the Process, Practice, and Mode of Pleading in and enlarging the Jurisdiction of the Superior Courts of Common Law at Westminster, and of the Superior Courts of Common Law of the Counties Palatine of Lancaster and Durham.

[12th August, 1854.]

XIX. It shall be lawful for the court or judge, at the trial of any cause, where they or he may deem it right for the purposes of justice, to order an adjournment for such time, and subject to such terms and conditions, as to costs and otherwise, as they or he may think fit.

XX. If any person called as a witness, or required or desiring to make an affidavit or deposition, shall refuse or be unwilling from alleged conscientious motives to be sworn, it shall be lawful for the court or judge or other presiding officer, or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following; videlicet,

"I, A. B., do solemnly, sincerely, and truly affirm and declare, that the "taking of any oath is, according to my religious belief, unlawful; and I "do also solemnly, sincerely, and truly affirm and declare, &c."

Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form.

XXI. If any person making such solemn affirmation or declaration shall wilfully, falsely, and corruptly affirm or declare any matter or thing, the same punish- which, if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so offending shall incur the same penalties as by the laws and statutes of this kingdom are or may be enacted or provided against persons convicted of wilful and corrupt perjury.

ment as for per

jury.

How far a party

own witness.

XXII. A party producing a witness shall not be allowed to impeach may discredit his his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

ments of adverse

XXIII. If a witness, upon cross-examination as to a former statement Proof of contramade by him relative to the subject-matter of the cause, and inconsistent dictory statewith his present testimony, does not distinctly admit that he has made witness. such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

statements in writing.

XXIV. A witness may be cross-examined as to previous statements Cross-examinamade by him in writing, or reduced into writing, relative to the subject- tion as to previous matter of the cause without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called 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 shall think fit.

XXV. A witness in any cause may be questioned as to whether he has been convicted of any felony or misdemeanor, and, upon being so questioned, if he either denies the fact or refuses to answer, it shall be lawful for the opposite party to prove such conviction; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where the offender was convicted, 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, 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.

Proof of previous

conviction of a witness may be given.

XXVI. It shall not be necessary to prove by the attesting witness any Attesting witness instrument to the validity of which attestation is not requisite; and such need not be called, instrument may be proved by admission or otherwise, as if there had been except in certain no attesting witness thereto.

cases.

XXVII. Comparison of a disputed writing with any writing proved to Comparison of the satisfaction of the judge to be genuine shall be permitted to be made by disputed writing. witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.

XXVIII. Upon the production of any document as evidence at the trial of any cause, it shall be the duty of the officer of the court whose duty it is to read such document to call the attention of the judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence until the whole or (as the case may be) the deficiency of the stamp duty, and the penalty required by statute, together with the additional penalty of one pound, shall have been paid.

XXIX. Such officer of the court shall, upon payment to him of the whole or (as the case may be) of the deficiency of the stamp duty payable upon or in respect of such document, and of the penalty required by statute, and of the additional penalty of one pound, give a receipt for the amount of the duty or deficiency which the judge shall determine to be payable, and also of the penalty, and thereupon such document shall be admissible in evidence, saving all just exceptions on other grounds; and an entry of the fact 3 D

P.N.

Provision for stamping docu

ments at the trial.

Officer of the

court to receive the duty and penalty.

13 & 14 Vict. c. 97.

No document under this act to require a stamp.

No new trial for ruling as to stamp.

Discovery of documents.

Power to deliver

party.

of such payment and of the amount thereof shall be made in a book kept by such officer; and such officer shall, at the end of each sittings or assizes (as the case may be), duly make a return to the commissioners of the inland revenue of the moneys, if any, which he has so received by way of duty or penalty, distinguishing between such moneys, and stating the name of the cause and of the parties from whom he received such moneys, and the date, if any, and description of the document for the purpose of identifying the same; and he shall pay over the said moneys to the receiver-general of the inland revenue, or to such person as the said commissioners shall appoint or authorize to receive the same; and in case such officer shall neglect or refuse to furnish such account, or to pay over any of the moneys so received by him as aforesaid, he shall be liable to be proceeded against in the man. ner directed by the eighth section of an act passed in the session of parliament holden in the thirteenth and fourteenth years of the reign of her present Majesty, intituled "An Act to repeal certain Stamp Duties, and to grant others in lieu thereof, and to amend the Laws relating to the Stamp Duties;" and the said commissioners shall, upon request, and production of the receipt hereinbefore mentioned, cause such documents to be stamped with the proper stamp or stamps in respect of the sums so paid as aforesaid: provided always, that the aforesaid enactment shall not extend to any document which cannot now be stamped after the execution thereof on payment of the duty and a penalty.

XXX. No document made or required under the provisions of this act shall be liable to any stamp duty.

XXXI. No new trial shall be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp.

L. Upon the application of either party to any cause or other civil proceeding in any of the superior courts, upon an affidavit by such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be lawful for the court or judge to order that the party against whom such application is made, or if such party is a body corporate that some officer to be named of such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so, on what grounds) to the production 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 shall be just.

LI. In all causes in any of the superior courts, by order of the court or a written interroga- judge, the plaintiff may, with the declaration, and the defendant may with tories to opposite the plea, or either of them by leave of the court or a judge may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate 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 may be sought within the above time, or such extended time as the court or a judge shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly.

Affidavits by

party proposing to

LII. The application for such order shall be made upon an affidavit of

the party proposing to interrogate, and his attorney or agent, or, in the case interrogate, and of a body corporate, of their attorney or agent, stating that the deponents or his attorney. deponent believe or believes that the party proposing 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 judge may, if they or he think fit, upon affidavit of such circumstances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit.

LIII. 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 his discretion, to direct an oral examination of the interrogated party, as to such points as they or he may direct, before a judge or master; and the court or judge may by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination, for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned 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 seem just.

Oral examination

of parties, when

to be allowed.

LIV. Such rule or order shall have the same force and effect, and may Proceedings upon be proceeded upon in like manner, as an order made under the said herein- such rule or before mentioned act passed in the first year of the reign of his late Majesty king William the Fourth.

order.

as to debts due to

LX. It shall be lawful for any creditor who has obtained a judgment in Examination of any of the superior courts to apply to the court or a judge for a rule or order judgment debtor that the judgment debtor should be orally examined as to any and what him. debts are owing to him before a master of the court, or such other person as the court or judge shall appoint; and the court or judge may make such rule or order for the examination of such judgment debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner, as in the case of an oral examination of an opposite party before a master under this act.

debts.

LXI. It shall be lawful for a judge, upon the ex parte application of such Judge may order judgment creditor, either before or after such oral examination, and upon an attachment of affidavit by himself or his attorney stating that judgment has been recovered, and that it is still unsatified, and to what amount, and that any other person 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 judg ment 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 judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt.

LXII. Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the judge shall direct, shall bind such debts in his hands.

LXVIII. If the garnishee does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the

Order for attachment to bind debts.

Proceedings to

levy amount due from garnishee to judgment debtor.