person disa

officer or

who shall

2. In case any person liable on any execution shall In case any be dissatisfied as to the amount of poundage fees or tisfied with expenses of execution that may be claimed from him charges or under the tariff of fees and allowances then in force, or apply to any judge on nounder this Act, he may, before or after payment there-tice to the of, apply to the Court of Queen's Bench, or to any judge other party thereof, and if upon a statement of the whole facts the adjust the said Court of Queen's Bench, or any judge thereof, af-dispute and ter notice to the party claiming, and to whom has been per order. paid the poundage fees or expenses is of opinion that said poundage fees or expenses or any of them is or are unreasonable, notwithstanding the same is or are cording to the tariff of this or any future Act, the same shall be reduced or ordered to be refunded, upon such terms as to costs or otherwise as the Court of Queen's Bench or a judge may think fit to impose.

make the pro

A
may issue in

any case

or without a

clause.

LXXIV. Any of the parties to an action or suit or to a subpoena an arbitration or reference ordered under this Act, may mise or obtain from the clerk of the court in which the action matter with is brought or the arbitration or reference ordered, a duces tecum subpoena with or without a clause for the production of books, papers and writings, requiring any witness within the Province, and served with a copy of the subœna therein, to attend at a specified court or arbi- Clerk to give tration, the place and time of such attendance being copies of specified in such subpoena, and the copy served; and subpoena. the clerk shall, when requested by any party requiring such subpoena, or his agent, give copies of such sub

pœna.

of

and the same

ed by any

LXXV. Any number of names may be inserted in Any number such subpoena and service thereof may be made by be inserted in any literate person, and proof of the due service there- such subpoena of, together with the tender or payment of expenses, may be servmay be made by affidavit sworn before any judge or literate perany clerk of any court, or before any person au- money-how thorized to take affidavits in the Court of Queen's served and Bench; and proof of service may be received by any proved. judge either orally or by affidavit.

son, conduct

service how

with Penalty for

LXXVI. Every person served with a copy of a sub- How served. pena, either personally or by a copy thereof being left for him at his usual place of abode or business some reasonable and grown up member of his family, subpoena or or servant, or person engaged in his employ and

disobeying

for refusing

living to give eviwith

dence.

Application of fine.

In actions ex contractu judge may receive in

evidence the

plaintiff or defendant

and the affidavit of any person resi

sion or out of

with him, and to whom or for whom at the same time a tender or payment of his lawful expenses is made, or the same is left for him along with the said copy, who refuses or neglects, without sufficient cause, to obey the subpoena, and also every person called upon in court to give evidence, who refuses to be sworn (or to affirm where affirmation by law is allowed), or to give evidence, shall pay such fine as the judge shall impose not to exceed one hundred dollars, and shall, by verbal or witten order of the judge, to be noted by the clerk in his procedure book, be in addition liable to imprisonment for any term not exceeding thirty days; and such fine shall be levied and collected with costs, in the same manner as fines imposed on jurymen for nonattendance, and the whole or any part of such fine, in the discretion of the judge, after deducting the costs, if any, shall be applicable towards indemnifying the party injured by such refusal or neglect, and the remainder thereof, or the whole shall be paid to the Treasurer of the Province and form part of the Law Society Fund.

LXXVII. In any action for a debt or demand, not being for tort. the judge, on being satisfied of their general correctness, may receive in evidence the books of books of the the plaintiff, or, in case of a defence of set-off or of payment, the books of the defendant; and he may also receive in evidence the affidavit or affirmation of dent out of the any party or witness resident without the limits of the judicial divi- judicial division in which the action is brought, or out the Province of the Province, but he shall only give such weight to and mayor all such proof as he thinks it in each particular case is gatories to be entitled to; and before pronouncing judgment he may require any such witness or party to answer on oath or affirmation any interrogatories that may be filed in the suit, or he may, where it is reasonably practicable, require the said witness or party to appear before the court, and to submit to a viva voce examination and cross-examination, and may, from time to time, postpone the final decision of the cause for that purpose.

der

administered

and answered or require the witness to

appear personnally.

Affidavits

before whom may be

sworn.

LXXVIII. All affidavits to be used in any county court or before any of the judges thereof may be sworn before any of the said judges or before any clerk of any of the said courts, or before this deputy or before any commissioner for taking affidavits in the Queen's

Bench

Bench, or before any county judge in any Province of Canada, or before any judge of any Superior Court in Canada, or before any commissioner appointed to take affidavits out of this Province to be used in this Province, or before any mayor of any incorporated city or town elsewhere, verified by the signature of such mayor and attested by the corporate seal of the city or town.

ing-how to

LXXIX. In case any person in any examination wil- False swearfully and corruptly swears (or affirms) falsely in any be dealt with. matter where an oath, affidavit, or affirmation is required or allowed in this Act, he shall be liable to be ordered into custody and to be prosecuted for the said offence according to law.

of judge to be

delivered.

preserve judg

LXXX. The judge in every case heard before him, How decision shall openly in court, and as soon as may be after the pronounced. hearing, pronounce his decision; but, if he is not pre- If postponed pared to pronounce his decision instanter, he may post- how to be pone judgment, and at a subsequent time may deliver, Clerk to file his judgment in writing at the clerk's office or send it away and in writing to the said clerk by post or otherwise; and ment if in the clerk shall file away and preserve the said judg- enter Judg ment and permit all parties to examine the same and ment in proto take copies thereof, and he shall forthwith enter such judgment in his procedure book, and such judg ment shall be as effectual as if pronounced in open court at the trial.

writing and

cedure book.

ment judge

stay oc exe

point times

which it is

LXXXI. In any judgment any judge may order the In any judg stay of execution for a given time, or the time or times, may order and the proportions in which any sum and costs re-cution or apcovered in judgment in any county court shall be paid into court or to the party entitled to the same, or any other order in respect of the said judgment and the payment thereof he may think, under the circumstances, reasonable and proper.

to paid.

2 months sent of the

LXXXII. But in the cases mentioned in the next Stay not over preceding section, without the consent of the party without conentitled to receive the said monies, the execution shall other party. not he stayed over two months; but in case it at any time shall be made to appear to the judge who gave such judgment, by affidavit or otherwise, that any defendant is unable, from sickness or other sufficient

cause

For proper cause execu

tion may be

stayed for any time judge may

think it, but

as soon as

disability of judgment debtor re

cause, to pay or discharge the debt or damages recovered against him, or any instalment thereof, ordered to be paid as aforesaid, the judge may suspend or stay any judgment, order or execution, given made or issued in such action, for such time, and on such terms as he thinks fit, and so on from time to time, until it appears moved, stay by the like proof, that such temporary cause of disability has ceased; and all orders in this and the next preceding section may be made verbally by the judge to the clerk, who shall enter the same in his procedure book, in the cause; provided always that the judge may make any such order in writing, the purport of which shall be entered by the clerk in his procedure book as aforesaid.

to be with

drawn.

Judge may

with consent of both parties make

arbitration.

verbally in

LXXXIII. The judge may, in any case. with the consent of both parties to the action or their agents, reference to order the same with or without other matters in dispute between the parties of the proper competence of May be made the county court, to be referred to arbitration to such person or persons and in such manner and on such duty of clerk. terms as he thinks reasonable and just, and such order may be made by the said judge verbally in open court, and the clerk shall enter the same in his procedure book, or the judge may make such order in writing and the clerk shall enter the purport thereof in his procedure book as aforesaid.

open court

Compulsory arbitration in

certain cases.

LXXXIV. The judge may in any case of mere account, or consisting chiefly of account, refer the same to an arbitrator to be named by him, or to the clerk of the court, to make an award therein, or to report thereon, with such terms and conditions as to costs and all other matters as he shall think proper; and upon the Mode of pro- report being completed it shall be filed in the office of the clerk, who shall notify the parties thereof by post or otherwise, and the parties shall attend at the next sitting of the court before the judge, who shall upon such report and upon hearing the case, pronounce judg ment in the cause, and the form of the order of reference and of the award may be after the forms in the schedule of forms to this Act.

cedure.

Report-judg

ment-clerk LXXXV. In the case of any reference to arbitration to notify par- the award so soon as made shall be filed with the clerk, to be entered who shall notify by post or otherwise the parties

ties of award

thereof

unless within

he desires to contest the

to be entered

thereof, and, unless otherwise provided in the terms of as judgment reference, the said award shall be entered as a judg- 6 days notified ment of the said court in the said cause, and shall be by either that as binding and as effectual as if given by any judge, award, in unless the clerk shall within six days after the filing which case of the said award, and after notice given as aforesaid for trial at be notified by either party that he desires to contest the said award, in which case it shall be entered on the trial list and come on for hearing before the judge at the next ensuing sittings of the court, when the judge shall hear the case and modify or set aside or affirm the said award, or refer the same back for further consideration, or pronounce final judgment in the

case.

next court.

revoke refe

LXXXVI. Any judge before whom the case was Judge may tried, may, on application to him, revoke any such re- rence. ference, and make any order respecting the future disposition of the cause he may think the facts disclosed will warrant.

LXXXVII. Any of such arbitrators or referees may Arbitrators, administer oaths to the parties and all witnesses to be to admiexamined before them.

ters oaths.

disposition of

In case plain

not appear

ment of costs

LXXXVIII. The costs of any action or proceeding, Costs in the not otherwise provided for, shall be paid by or appor- the judge. tioned between the parties, in such manner as the presiding judge shall think fit; and in cases where the plaintiff does not appear in person or by some person a his on his behalf, or, appearing, does not make proof of his agent does demand to the satisfaction of the judge, he may award judge may to the defendant such costs and such further sum of give judg money, by way of satisfaction for his trouble and at- and expenses tendance, as he thinks proper, to be entered of judg ment against the plaintiff, and to be recovered as provided for in the case of other judgments under this Act; and, in default of any special directions, the costs in all cases shall abide the event of the action, and execution may issue for the recovery thereof in like manner as for any debt adjudged into judgment by a judge in the said court.

against him.

actions to

LXXXIX. No costs shall be recoverable in any suit No costs in brought in any court in this Province for the recovery recover a of any sum or sums awarded by judgment or judg- a judgment of

ments

judgment on

this court.