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Section. 4 Acts done hereunder good and 6 Nothing herein to affect Commis' valid.
sions issued out of the Court for 5 Informality in title, &c. may be examination of witnesses. waived by Judge.
7 Signature or seal of officer need
not be proved. 1. The Lieutenant Governor in Council, by one or more Commission or Commissions under his hand and seal, from time to time, shall and may empower such and so many persons as he may think fit and necessary, to administer oaths and take and receive affidavits, declarations and affirmations in the United Kingdom of Great Britain and Ireland, or in any Colony or dependency thereof, or in any Foreign State or Country, or in any Province of the Dominion of Canada, in or concerning any cause, matter or thing depending in or in any wise concerning any proceeding had or to be had in Her Majesty's Supreme Court of Judicature on the Law or Equity side thereof, or in any County Court, or in any Probate Court, or in any Court of Record in this Province whether now existing or hereafter to be constituted.
2. The Commissioners so to be appointed shall be styled Commissioners for taking affidavits in and for the Courts in the Province of New Brunswick.
3. In addition to the Commissioners mentioned in Section one ofthis Chapter,the several officials and persons authorized in and by Section six of Chapter 74, of 'Registry of Deeds and other instruments,' to take the proof or acknowlegment of the execution of any conveyance out of the Province, are hereby authorized and empowered to take and administer oaths and receive affidavits, declarations and affirmations in or concerning any cause, matter or thing depending in or concerning any proceeding had or to be had in any of the Courts mentioned in Section one of this Chapter,in the several places where they are authorized to take such proof or acknowledgment; provided that when any person shall take or receive any oath, affidavit, declaration or affirmation under the authority of this Section, his act shall be certified or authenticated in the same manner and with the same formality in all respects as though such act were the taking by him of the proof or acknowledgment of a conveyance.
4. All oaths, affirmations, affidavits or declarations administered, sworn, affirmed, made, taken or received under the
authority of this Chapter, shall be as good, valid and effec'tual, and shall be of like force and effect to all intents and purposes as if the same had been administered, sworn, affirmed, made, taken or received within this Province, and by or before a person or official competent and duly authorized for such purpose within the Province.
5. No informality in the entitling or heading, or other formal requisities of any affidavit, declaration or affirmation made, taken or sworn to out of the Province under the authority of this Chapter, shall be any objection to its reception in evidence, if the Court or Judge before whom it is tendered think proper to receire it. , 6. Nothing herein shall be construed as affecting proceedings under Commissions issued out of any Court for the examination of witnesses out of the Province, or as in any way altering the practice thereunder.
7. Any affidavit, oath, declaration or affirmation made, administered, sworn or affirmed under the provisions of this Chapter, may be used or admitted in evidence without proof of any signature or seal and signature attached thereto, being the signature or seal and signature of the person whose sig. nature or seal and signature the same purports to be, or of the official character of such person.
CHAPTER 37. PROCEEDINGS AND PRACTICE IN THE SUPREME COURT. Section.
Section. 1 Process and proceedings.
13 Time writs shall be in force : 2 Writ of summons.
writs may be continued ; writ of 3 What to contain ; cause of action summons.
not named in writ. [bear. 14 Suits commenced under former 4 What date and teste writ shall practice may be continued 5. Writ by whom endorsed.
hereunder. 6 Special endorsement, when made
Absentees. on writ.
15 Suminons for person out of juris7 Service of summons, how made. diction of Court, being a British 8 Writ issued against Corporations, subject, how served ; time for on whom served.
appearance by defendant; when 9 Summons against non-residents, Judge may allow plaintiff to prohow served.
ceed in action; proviso. 10 Service of summons during tem- 16 Summons for persons not British porary absence, how served;
subjects, out of jurisdiction of proviso.
Court, how served. 11 Sheriff to endorse date of delivery 17 Writ for service within jurisdic. of writ and service.
tion may issue as “concurrent 12 When “ concurrent writs " shall writ" with writ out of jurisdicissue and be in force.
Section. 18 Affidavits relative to defendant Joinder of causes of Action.
out of jurisdiction, before whom 40 What causes of action may be sworn.
joined ; exceptions. Writ of Capias.
41 In cause of action accruing to 19 Process to hold to bail.
wife, husband may add claims of 20 Writ to whom directed and how his own ; proviso as to abateendorsed.
nenton death of either plaintiff. 21 Time capias shall be in force; Language and form of Pleadings capias inay be continued.
in general. 22 Time concurrent writs shall be in 42 What statements shall be omitted force,
43 Declaration, &c. to be entitled of 23 Form of notice to defendant to proper Court, time, &c. be subscribed on writ.
44 Profert, effect of 24 Writ and copies to whom deliver. 45 Party pleading in answer may set
ed; plaintiff, &c. may order ar- out whole or part of document
rest of one or more defendants. referred to. 23 On service of writ, Sheriff, &c. to 46 Plaintiff or defendant may aver
leave copy with each person performance of conditions prece. served.
dent generally; general denial 26 When defendant shall not be ar of performance not allowed. rested.
47 Form of pleading; when depar27 When plaintiff, after action com ture permissible.
menced, may sue out writ of Time and manner of declaring. capias.
48 When plaintiff shall be deemed Render.
out of Court 28 Manner in which render shall be 49 Form of declaration. made; proviso.
50 Form of declaration when plain29 When person in custody may be tift, after plea in abatement, rendered in Supreme Court.
amends before going to trial, or 30 How special bail put in; plaintiff's brings fresh suit.
proceedings after special bail. 51 Name of County in margin to be 31 Special bail on render; relief. the venue. Miscellaneous provisions respect. 52 When and how plaintiff to declare ing Writs.
against defendant in custody. 32 Omission to endorse necessary 53 When plaintiff may declare de
matter on writ not to make it bene esse.
- on the case, when declaration 33 One writ issued for another by valid.
mistake may be amended on ap- 55 In actions of libel and slander, plication to Judge.
what plaintiff may aver. Appearance.
Pleas and subsequent Pleading. 34 Mode of appearance.
56 When signature of Counsel re. 35 Defendant on appearance to give quired.
his address; effect giving illusory 57 When defendant is within jurisdic. or no address.
tion, time of pleading in bar, &c. 36 Appearance by plaintiff for de- 58 Notice to plead sufficient without fendant not necessary.
rule; demand of pleas necessary. 37 When plaintitf may, on non-ap- 59 Special traverses and express,
pearance to writ with special in colour not necessary. dorsement, sign judgment;Judge 60 In plea, &c. certain allegations may let in defendant to defend not necessary.
(plea. after final judgment.
61 Form of plea, avowry, &c.; second 38 When in case of non appearance 62 Defence after commencement of
to writ not specially indorsed, action, how pleaded.
61 Plea of defence after cominence. 39 In case of one or more of several ment of action, how pleaded ;
defendants not appearing, when proviso.
Section. 66 When money may be paid into Misnomer, mis-joinder and nonCourt; what actions excepted.
joinder of parties. 67 Money to whom paid.
95 In personal actions, plea in abate68 Form of plea, when money is paid m ent for misnomer not allowed; into Court.
exceptions. 69 What plaintiff' may reply to plea 96 When Court, &c. may order perof payment into Court.
son to be joined as plaintiff in 70 Plea good in substance on breach cause, or struck out.
of contracts and wrongs; when 97 When mis joinder or non-joinder form not to affect.
may be amended on trial or as 71 Pleas of payment and set off, &c. sessment of damages.
when construed distinctively; 98 When annendment made, liability how verdict taken thereon.
of person added. 72 When defendant may traverse 99 When and on what terms plaintiff
either generally or separately. may amend writ, &c. without 73 How plaintiff may traverse whole order and proceed with action.
of plea or subsequent pleading. 100 Court or Judge may, in case 74 Defendant may deny whole or joinder of too many defendants, part of replication, &c.
order names to be struck out. 75 Joinder of issue and effect thereof 101 In action of contract, when non76 When and how parties inay plead joinder co-defendant pleaded,
and demur to saine pleading. how plaintiff inay anend. 77 When and how plaintift may plead 102 In action against joint obligor
in answer to several inatters. 78 Rule of Court to pay in money, or or plaintiff to amend, unless party
plead several matters; not neces. omitted reside within Province. sary.
[gether. 103 When defendants shall be enti. 79 Pleas which may be pleaded to tled as against plaintiff to costs 80 New assignment, to what pleaded after plea in abatement and what it shall state.
amendment; when plaintiffshall 81 What shall not be pleaded to new be entitled' to judgment and assignment; exceptions.
costs, &c. in like case. 82 In amendment of pleading, no Trials, Judgments, and Writs of new notice to plead necessary.
Inquiry. 83 Rules of pleading.
104 Trial by proviso, on what record. Equitable Defences.
105 Rule for assessinent of damages 81 Plea for relief on equitable or judgment unnecessary.
• grounds, what to state. 106 Judgment by default, when final. 85 Reply to plea for relief.
107 When writ of inquiry may be 86 If plea cannot be dealt with by made returnable; how and when
Court, Judge may strike out. judgment signed thereon. 87 When sections 81, 85 and 86 shall 108 If signing judgment is postpon. come in force.
ed and afterwards signed, of Dilatory Pleas.
what date judgment to be enter. 88 Pleading framed to delay trial, ed of record. what Judge may order.
109 All judgments to be entered of Demurrers.
record on day when signed. 89 Demurrer allowable.
110 Entry of continuances not to be 90 Form of demurrer; statement of made in pleadings or on record.
grounds; effects of frivolous 111 Amount recoverable by plaintiff, statement.
how awarded. 91 Form of joinder in demurrer. 112 How and when judgments on 92 In issue joined on demurrer, postea may be signed.
Court may give judgment accord. 113 When Court may order judgment ing to very right; error in form vacated and execution stayed. not to affect.
114 Clerk of the Pleas to make 93 When pleading not deemed in- docket of judgigents; how and
sufficient for defects formerly when judgment not to bind real ground for special demurrer. estate unless docketed. Particulars.
115 In what actions damages may be 94 When demand of particulars shall assessed by the Court or Judge
have same effect as Judge's order. without Jury; proviso.
Section. 116 When and in what cases judg- judgment entered within two
ment to remain as security for terms.
141 When action shall not abate by 117 When defendant may have jury reason of death of plaintiff or to assess damage; proviso.
defendant after interlocutory 118 When jury or Court may allow and before final judgment.
interest on debts or suis cer. 142 When writ of revivor may be had tain.
143 When final judgment may be 119 When in trover, trespass, and given on writ.
actions on policies of insurance, 144 Marriage not to abate action ; jury may give damages in the proceedings in such case. nature of interest.
145 When and how on death parties 120 Where verdict has been given may be compelled to proceed
and final judgment delayed, with action.
Court may allow interest. 146 On failure to continue action, 121 On what judgments interest defendant may have judgment recoverable.
for costs. 122 Proceedings against joint debtors Revival of Judgments and other Executions.
proceedings by and against per: 123 Where executions niay be di- sons not parties to the Record. rected.
147 When and how judgment may be 124 When executions to be tested. revived. 1:35 During lives of parties,execution 148 Leave, by whom and how
Inay be issued within 15 years. granted. 126 Executions may issue on judg- 149 When applicant entitled to exe.
ment heretofore signed on sum... cution, what order made; when mary side.
Court may discharge rule; pro. Offer to suffer Judgment by default. viso. 127 When and in what actions offer 150 Writ of revivor, to whom direct.
to suffer judgment may be made. ed; teste, and how proceeded 128 When defendant may have with. judgment for costs.
151 Venue, where laid. 129 Where causes of action joined, 152 When judgment is less than ten
defendant may offer to suffer years old, no rule necessary; over judgment as to one or more.
ten years, rule or order required. 130 If other not accepted, when de- 153 Proceedings against executors,
fendant or plaintiff shall be al how taken on judgment of assets lowed costs.
in futuro. 131 Offer not accepted, to be no evi.
Scire Facias. dence against party making it. 154 Writ to whom directed, and how Effect of death or marriage upon serve.l.
the proceedings in action. 155 What proceedings abolished. 132 Death not to abate action. 156 Provisions as to return. 133 Effect of death of one or more 157 When defendant in Province, or plaintiffs or defendants.
has a known place of abode there 134 In case of death of sole plaintiff, in, writ how served.
representative may continue ac. 158 When defendant out of Province, tion.
and has no place of abode there135 In case of death of sole defend i n, writ how served.
ant, proceedings may be con- 159 Good service of writ, effect of.
tinued against executors, &c. 160 Proceedings necessary when 136 What proceedings may be had service cannot be effected as
in case of non-appearance of above.
Amendments. 137 When suggestion of death shall 161 Amendments, when allowed.
form part of declaratior. 162 On trial, Court or Judge to allow. 138 What new defendant shall plead 163 In cases of variance instead of
if no plea given before death. amending, power of Court or 139 If pleadings have not arrived at Judge to direct finding of facts. issue,new defendant to continue;
Initials. plaintiff shall recover costs. 164 Abbreviatione of names, when 140 Death between verdict and judg. allowed.
ment not be alleged for error if