Evidence by affidavit.

Time.

amination.

ORDER XXXVIII.

EVIDENCE BY AFFIDAVIT.

1. Within fourteen days after a consent for taking evidence by affidavit as between the plaintiff and the defendant has been given, or within such time as the parties may agree upon or a judge in chambers may allow, the plaintiff shall file his affidavits, and deliver to the defendant or his solicitor a list thereof.

2. The defendant, within fourteen days after delivery of such list, or within such time as the parties may agree upon or a judge in chambers may allow, shall file his affidavits, and deliver to the plaintiff or his solicitor a list thereof.

3. Within seven days after the expiration of the said fourteen days or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof. Cross-ex- 4. When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed, a notice in writing requiring the production of the deponent for cross-examination before the Court at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court or a judge may specially appoint: and, unless such deponent is produced accordingly, his affidavit shall not be used as evidence, unless by the special leave of the Court. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production.

5. The party to whom such notice as is mentioned in the last preceding rule is given, shall be entitled to compel the attendance of the deponent for cross-examination, in the same way as he might compel the attendance of a witness to be examined.

Printing 6. When the evidence in any action is, under this order, taken by evidence. affidavit, such evidence shall be printed; and the notice of trial shall be given at the same time or times after the close of the evidence as in other cases is by these rules provided, after the close of the pleadings.

The filing mentioned in r. 1 is at the registry.

ORDER XL.

MOTION FOR JUDGMENT.

1. Except where by the Act or by these rules it is provided that Motion judgment may be obtained in any other manner, the judgment of the for judg Court shall be obtained by motion for judgment.

See remarks to O. xiii. (r. 10), and O. xxix. This rule, except, possibly, under the orders here referred to, has but little application to proceedings in the Admiralty Division.

ment.

down.

9. No action shall, except by leave of the Court or a judge, be set Time for down on motion for judgment after the expiration of one year from setting the time when the party seeking to set down the same first became entitled so to do.

10. Upon a motion for judgment, or for a new trial, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that if has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit.

of fact.

11. Any party to an action may, at any stage thereof, apply to the Order on Court or a judge for such order as he may, upon any admissions of admission fact in the pleadings, be entitled to, without waiting for the determination of any other question between the parties. The foregoing rules of this order shall not apply to such applications; but any such application may be made by motion, so soon as the right of the party applying to the relief claimed has appeared from the pleadings. The Court or a judge may, on any such application, give such relief, subject to such terms, if any, as such Court or judge may think fit.

The exercise of the power vested in the judge by this last rule is wholly in his discretion (Mellor v. Sidebottom, L. R. 5 Ch. D. 342; 46 L. J. Ch. 398; and for examples of the working of this rule see Turquand v. Wilson, L. R. 1 Ch. D. 85; 45 L. J. Ch. 103; and Martin v. Gale, 36 L. T. N. S. 357). This rule might be found useful in actions of

possession, in suits between co-owners, and in actions as to mortgages.

ORDER XLI.

ENTRY OF JUDGMENT.

Entry of 1. Every judgment shall be entered by the proper officer in the judgment. book to be kept for that purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the action other than any petition or summons; such copy shall be in print, except such parts (if any) of the pleadings as are by these rules permitted to be written: Provided that no copy need be delivered of any pleading a copy of which has been delivered on entering any previous judgment in such action. The Forms in Appendix (D.) hereto may be used, with such variations as circumstances may require.

Date.

The de

cree.

2. Where any judgment is pronounced by the Court or a judge in Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, and the judgment shall take effect from that date.

3. In all cases not within the last preceding rule, the entry of judg ment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date.

4. Where under the Act or these rules or otherwise it is provided that any judgment may be entered or signed upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and, if the same be regular and contain all that is by law required, he shall enter judgment accordingly.

5. Where by the Act or these rules or otherwise any judgment may be entered pursuant to any order or certificate or return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly.

Judgment eo nomine is not entered in the Admiralty Division, but the decree of the judge is entered in a minute book. The last part of r. 1 of this order is, therefore, not applicable R. 3 would only apply in the very rare case

of a judgment by default in an action in personam, when, it would seem, that the claim in the writ or statement of claim would take the place of the decree.

In actions of salvage, wages, and necessaries, interest at Interest. the rate of 4 per cent. runs on the amount awarded, from the date of entering judgment; and such amount is a judgment debt within O. xlii., r. 14, since by s. 76, J. A. 1873, the statute 1 & 2 Vict. c. 110, s. 17, applies to Admiralty actions (The Jones Brothers, 37 L. T. N. S. 164; 3 Asp. M. C. N. S. 478).

As to interest in damage and bottomry actions, see ante, Part I., Damage and Bottomry, pp. 57, 91.

in action in rem

has not

The following remarks describe the practice subsequent to the decree:-When judgment is pronounced for a claim Judgment in an action in rem where bail has not been given, the parties usually settle the matter out of Court, and consent where bail to a release of the res, otherwise it will be sold and the been proceeds paid by the marshal into the registry. If it is given necessary to sell the property, a commission for appraisement and sale must be obtained at the registry in pursuance of the decree. If the res has already been appraised a further appraisement is unnecessary; and, as to official appraisement, see ante, O. v., r. 11, p. 153, and in that case a commission for sale only is required upon the filing of Sale. the usual præcipe. The commission, with a præcipe for execution, must be left at the marshal's office.

The following rules from A. C. R. 1859 are then applicable :

124. Every commission for the appraisement or sale of property Sale by under the decree of the Court shall, unless the judge shall otherwise the order, be executed by the marshal or his substitutes.

marshal.

into Court.

125. The marshal shall pay into Court the gross proceeds of sale Payment of any property which shall have been sold by him, and shall at the of proceds same time bring into the registry the account of sale, with vouchers in support thereof, for taxation by the registrar.

126. Any person interested in the proceeds may be heard before Objection the registrar on the taxation of the marshal's account of expenses, to mar

shal's

expenses.

Where bail has been

given.

and an objection to the taxation shall be heard in the same manner as an objection to the taxation of a solicitor's bill of costs.

The marshal fixes the time and place of sale, which is duly made known by advertisement; and at such time as announced the property is sold by auction. But, if it is to the interest of the parties concerned, the marshal may sell the res by private contract. If at the auction the biddings do not reach the appraised value, the property cannot be sold, but an order must be obtained from the judge for leave to sell it for a smaller sum. On the production of a bill of sale by the marshal, and an office copy of the order of the Court, the purchaser will obtain a new register of the ship and a perfect title to the property, whilst any one who may have claims against it must enforce them against the proceeds in the registry.1

Where one party obtains the sale of a vessel, which is for the benefit of several claimants, the costs of such sale are the first charge on the proceeds (The Panthea, 25 L. T. N. S. 389; 1 Mar. L. C. N. S. 133).

Where bail has been given, if the amount for which the decree is made is not paid, together with the taxed costs, into the registry, the plaintiff must obtain an order from the judge, ordering the defendant and his sureties to pay the amount by a certain day. If this is not done, the plaintiff should sue out a writ of execution in the shape of a fi. fa., under O. xlii., r. 15, or for a writ of attachment under O. xlii. and O. xliv. For the procedure as to these writs, see the above Orders.

Where the property has not been arrested nor bail given, the procedure will be the same as in the last mentioned case, except that there are no sureties to proceed against.

If a reference has been ordered, proceedings to enforce payment cannot be taken until the report is filed.

1 Proceeds in the registry cannot be attached by process out of the Mayor's Court (The Albert Cresby, Lush. 101).