Straits Settlements.

The acts and ordinances of the Legislative council of the Straits Settlements, from the 1st April 1867 to the 7th March 1898 .. online

. (page 60 of 98)
Online LibraryStraits SettlementsThe acts and ordinances of the Legislative council of the Straits Settlements, from the 1st April 1867 to the 7th March 1898 .. → online text (page 60 of 98)
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purposes aforesaid, to. authorise any person or persons to enter upon
or into any land or building, in the possession of any pai"ty to such
suit,' and, for all or any of the purposes aforesaid, to authori&e any
samples to be taken, or any observations to be made or experiments
tcJ be tried, which may seem necessary or expedient for the purpose
of obtaining fnll information or evidence.

* — • 1 ■ - . ■ — ■ ■ ■

f Section 3U0 repealed by Ordinance VIII. of 1880, section 96.



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CIVIL PROCEDURE. ^ [V. OF 187^.] i 507

304. An application for an order under Section 301 may be Application
made by the plaintiff at any time after his right thereto appears for order,
from the pleadings ; or, if tliere be no pleadings, is made to appear, ^ ^52/5.
by affidavit or otherwise, to the satisfaction of the Court.

Specific Chattel.

305. Where a suit is brought to recover, or a defendant in his Recorery
statement of defence seeks by way of counter-claim to recover, of specific
specific property other than land, and the party from whom such Lien thereon
recovery is sought does not dispute the title of the party seeking to how dealt
recover the same, but claims to retain the property by virtue of a ^^^- .
lien, or otherwise, as security for any sum of money, the Court ' '
may, at any time after such last-mentioned claim appears from the
pleadings, or, if there be no pleadings, by afiidavit or otherwise to

the satisfaction of the Court, order thai the party claiming to
recover the property be at liberty to pay into ^Cpurt, to abide the
event of the suit the amount of money in respect of which the lien
or security is claimed, and such further sum . (if any) for interest
and costs as the Court may direct, and that upon such payment
into Court being made, the property claimed be given up to the
party claiming it.

Sale of Lands.

306. If after a suit sjiall have been instituted in relation to Sale of lands
nny immoveable property, it shall appear to the Court that it will ^**F purposes of
be necessary or expedient that the said immoveable property, or *^ '

any portion thereof should be sold for the purposes of such suit, it

shall be lawful for the said Court; to direct the same to be sold at ....

any time after the institution of"* the suiti and such sale shall be

as valid to all intents and purposes as if directed to be made by a

decree or decretal order on the hearing of such suit ; and any party

to the suit in possession of such estate, or in the receipt of the rents

and profits thereof, shall be ordered to deliver up such possession

or receipt to the purchaser or such other person as the Court shall

direct.

Income of Surplus Pboperty.

307. Where any real or personal property shall form the Annual income
subject of any proceedings, and the Court shall be satisfied that ^^ surplus
the same will be more than sufficient to answer all the claims sui?*may be
thereon which ought to he provided for in any pending suit, it paid.

shall be lawful for the Court at any time after the comipencemett
of such proceedings to allow to the parties interested- therein, or any
one or more of them, the whole or part of the annual income of such
property, up to such lime as the Court shall direct, and for that
purpose to make such orderts as* may appear to the Court necessary
» or expedient.



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608 [V. OF 1878] CIVIL PROCEDURE.

CHAPTER XXVL

Interpleader and Trustees.

Belief from 308. Any defendant, in any suit or proceeding, and although

adTene claims. fj^Q titles of the claimants have not a common origin, but are
adverse to and independent of one another, may apply to tbe
Court, by summons supported by affidavit, showing that such
defendant does not claim any interest in the subject-matter of the
suit, but that tbe right thereto is claimed, or supposed to belong to
some other party who has sued or is expected to sue for the same,
and that such defendant does not in any manner collude with such
other party, but is ready to bring into Court, or to pay or dispose
of the subject-matter of the suit in such manner as the Court may
direct, calling upon such other party to appear, and to state the
nature and particulars of his claim, and maintain or relinqaish the
same, and if he maintains it, the Court may order him to be sub-
stituted for the original defendant or, with the consent of tiie
plaintiff and such other party, may dispose of the question between
them in a summsiry manner, and the Court may order any moneys
or property to be paid into or deposited in Court pending the
decision of any question between the paHies,

Belief of Trustees.

Paying money into Court.

Affidavit on 309. Any Trustee, Executor, Administrator or other person

appli^ti^to applying for an order to pay, or deliver, money or property to tbe
Ocd^IvTof Accountant-Qeneral of the Court, under Part IIL of the Civil Law
1878, Ordinance, 1878, shall, before applying for such order, file an

affidavit, intituled in the matter of the Ordinance and in the matter
of the trust, and setting forth,

(a.) his own name and address, and an address for service on
him of any petition, notice or proceeding relating to the trust
fund;

(b.) the amount of money or securities, or a description and
the value of the property, which he proposes and* pay or deposit in
Court to the credit of the trust ;

(c.) a short description of the trust, and of the instrument creating
it, according to the best of his knowledge and belief ;

(d.) the names of the persons interested in, or entitled to, the
fund or property, to the best of his knowledge and belief;

(e.) the submission of the party applying to answer all such
inquiries, relating to the application of the money, securities or
property, paid in or deposited under the Ordinance, as tbe Court
or the Judge in Chambers may think proper to make or direct ;
and,

(f.) in the case of money, whether it is, or is not, in the opinion
of the party applying, necessary or desirable that the same should
be invested in the meantime.

* So iu orJginaL

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CIVIL PROCEDURE. [V. OF 187S.] 509

310. The party applying may move for an order ex parte ; and, Order ex
upon an order being made, shall forthwith give notice thereof to P*"*-
the several persons named in his affidavit, as interested in or
entitled to the fund. If any of such persons shall not be within the Notice to per-
jurisdietion of the Court, or their place of residence shall be un- ^^ interested,
known to the party applying, the C!ourt shall give such directions

for service of, or notice of, the order, by advertisement or otherwise,
as the Court shall think fit.

Every order made upon any such petition shall have the same EAsetof
authority and effect, and shall be enforced and subject to re-hearing Order,
and appeal, in the same manner as if the same had been made in a
suit regularly instituted in the Court ; and, if it shall appear that. Suits when to
any such trust fund cannot be safely distributed, without the ^ instituted,
institution of one or more suit or suits, the Court may direct any
such suit or suits to be instituted.

Paying money out.

311. Applications for orders respecting trust monies, securities Applications
or property paid in, or deposited in. Court, shall be by petition, to ^^ ^y

be presented in a summary way, by such party or parties as to the ^^^ ^°'
Court shall appear to be competent and necessary in that behalf.

Costs.

312. Upon any such application the Court shall, unless it shall Order for
be of opinion that the payment into Court was improper or un- *^^*^*
necessary, make such order for payment, out of the fund, of the

costs of such payment in or deposit ; and if no application for
payment out, or dealing with the fund, be made within six months
from the date of the order, the party paying in or depositing may
apply, by summons in Chambers, for such order as may seem
expedient for his costs.



PART V.

THE TRIAL OF CAUSES.
CHAPTER XXVn

Trials.
Sittings of the Court.



Motions for

313. Sittings of the Court for hearing motions for judgment, for judgment,
assessment of damages, for trial:^ of undefended cases, for granting Jf^^J^
Probate and Administration, and for the Bankruptcy business of undefended'
the Court, shall be held weekly at Singapore and Penang, com- causes. Pro-
mencing on such day of each week as the Court may fix. BMkroDtcy

All other trials shall be taken at Sittings of the Court to be held weekly,
monthly, at such times ^ the Court may fix, at as reguletr intervals other trials.



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510



[V. OF 1878.]



.CIVIL PROCEDUBB,



Proviso.



Malacca.



Notice.



Trials without
Jury.

86/2.



Setting down
suit for
hearing.

36/3.
Cause List.



Length of
notice.
86/9.



as may be practicable, with reference to the other business of the
Court.

Provided always that when there is only one Judge of the Court,
present in the execution of the duties of his office as Judge, such
Sittings shall not be held when the Judge is unavoidably absent in
the execution of the duties of his office at another Settlement^ nor,
ijxcept by direction of the Court, when the Court is engaged in the
Criminal Jurisdiction.

Trials shall be held at Malaga after each Criminal Assizes : and
at such other times as the presence of a Judge of the Supreme
Court, in the execution of the duties of his office of Judge, may
permit.

Notice of the days for Sittings of the Court under this Section
shall be affixed, on the outer door of the Court House, within a
reasonable time before each of such Sittings, and shall be otherwise
published ii^ such manner as the Court may direct.

314. AH Civil suits shall be heard and determined before one or
more Judges of the Supreme Court, without a Jury.

Trial op Causes.

315. Upon the close of the pleadings, or in case the defendant
shall have appeared and stated that he does not require a statement
of claim, and none shall have been delivered within the time limited
by Section 142, the Registrar shall enter the suit in the Cause
last ; and the plaintiff may, set down the same on the Trial List
for trial, at the next or any subsequent monthly Sitting ot the
Court for the trial of causes, subject to any order of the Court for
the earlier hearing or postponement thereof.

316. Ten days* . notice of trial shall be given, qnless the party
to whom it is givei^ has consented to take short notice qf trial,,
and shall be suflBcient in all cases, unless other wijse ordered by the
Court.*



Short notice. 317. Short notice of trial shall be 4 days' notice.



Assessment of
damages.



Notice of
trial by
defendant.
86/4.



318. In cases when the trial is for the assessment of damages
only if the defendant is not within the Colony or Settlement at the
time the notice is to be served, or if, for any oijier reason, service
cannot conveniently be effected, the Court may make an order for
substituted service of the notice, or may dispense with service of
the notice.

319. If the plaintiff does not t ..... within
six weeks after the close of the pleadings, or within such extended
time as the Court may allow, give notice of trial, the defendant
may, before notice of trial given by the plaintiff, give notice of.
trial; and set down the cause for trial in the same manner as is
provided by Section 315 in the case of a plaintiff.



* As to countermanding notice of trial, see Bole 1, Order 1, August 1879, Gorem-
ment Gazette of January 9, 1880, i . 14.
t As amended bjr Ordinance ^m. -of 1^80r8ecriwi20r - - . - f,.



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aVIL PROCEDURE. [V. OF 1878.] 511

320. Causes may, by consent of the parties, be set down for Consent.
trial at any weekly sittings of the Court.

A copy. of the Trial List for each weekly and monthly sitting Trial List,
shall be affixed on the outer door of the Court House.

Consolidation.

321. Suits may be consolidated by order of the Court, in the 51/4.
manner in use in England.

Cause called on.

322. All causes shall be heard in the order in which they shall Order of
have been set down for trial, on the trial list, unless the Court shall ^^^^f 2.
otherwise arrange ; but, by consent of the parties, signified in open
Court, or by the production to the proper officer of a consent in
writing, signed by the parties or their solicitors, any cause may be
wholly withdrawn from the list, or its position changed to the
bottom of the list;or to any intermediate position in thd list beyond

the fifth subsequent cause.

323. Causes not fully tried and disposed of' at any sittings shall Bemanets.
be held to be reraanets, and need not be set down anew, nor need
further notice of trial be given ; such remanets shalf be entered by^

the Registrar at the head of the next weekly or monthly trial list
as the case may be.

324. In'caseany suit entered in the Cause Book shall not have Court may
been proceeded with, and disposed of, within twelve months from !j"^® ^^ ^
the date of the appearance to the writ of summons, the same shall gulu^not pro-
be struck out of the Cause Book,* and shall not be restored without ceeded with,
leave of the Court.

Absence.

325. If, when a suit is called on for trial, the defendant appears, Non-attend-
and the plaintiff does not appear, the defendant, if he has no a°<^« ?^
counter-claim may, with the leave of the Court, be entitled to ^ '"se/ig,
judgment dismissing the suit, but if he has a counter-claim, then

he may, w:ith the leave of the Court, prove such claim, so far as the
burden of proof lies' upon him, or the Court may, in either case,
make such order as shall seem just.

326. If, when a suit is called on for trial, the plaintiff appears, Non-attcnd-
and the defend'ant ddes riot tippear, then, with the leave of the J°ce of
Court, the plaintiff may prove 'his claim, so far tis the burden of ^ ^ae^is!
proof lies upon him.

Accounts and Inquiries.

327. The Court may, at any stage of the proceedings in a cause Accounts and
or matter, order that any books or documents may be produced, i°q"^"ea

or direct that any necessary inquiries or accounts be made or taken althoi^li .
by the Registrar or other Officer, notwithstanding that' it may further relief

. _, — U — ^ : sought.

L . . . *- « Book " m the- orignml, but probablj ** List " tras intended. 38.

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512



[V. OF 1878.]



CIVIL PaOCEDTIRE.



appear that there is some special or further relief sought for, or
some special issue to be tried, as to which it may be proper that
the cause or matter should proceed in the ordinary manner ; and
in any such case the Registrar or Officer shall proceed to carry all
such directions into effect in the mauner prescribed ; and his report
in writing as to the resujit of such accounts or inquiries, may be
acted upon, or referred back, by the Court, as to the Court shall
seem fit.



Jadgment ex
parte may be
eet aside.
86/20.



Court to
direct wbat
jadgment
to be entered.
Form 82.
88/22 A.

Permiftdon.



Trials as in
England.



Judgment.

332. Any verdict or judgment obtained where one party does
not appear at the trial, may be set aside by the Coiirt upon such
terms as may seem fit, upon an application made within one month
after the trial.

333. Upon the trial of a suit, the Court may, at or after such
trial, direct that judgment be entered for any or either party, or
may adjourn the case for fuHher consideration, or may state the
finding of the Court on the issues of fact, and leave any party to
move for judgment.

No jadgment shall be entered after a trial without the permission
of the Court.

334. Trials of suits shall, as far as regards the examination of
witnesses and speeches of Counsel, be conducted as in the High
Court of Justice in England.



Obtained on
motion for
order to sbow
cause.
89/1 A.



Service of
order.

39/2.

Grounds of
new trial.
39/3.



CHAPTER XXVIIL

New Triau
Motion for New Trial.

335. A party desirous of obtaining a new trial, of any cause
or matter on which a judgment has been ^ven, must apply for
the same to the Court, by motion for an order calling upon the
opposite party to show cause, at the expiration of eight days from
the date of the order, or so soon after as the case can be heaiti, why
a new trial should not be directed. Such motion shall be made
within eight days after the end of the sittings in which the
hearing took place^ or within such extended time as the Court may
allow.

336. A copy of such order shall be served on the opposite party,
within four days from the time of the same being made.

337. No new trial shall be granted except on the ground of
surprise, or where it appears to the Court that there is probable
reason to believe that there has been, for some reason beyond the

t Sections 328, 8S9, 830, and 331 repealed by Ordinance XIII. of 1890.



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CIVIL PROCEDURE. [V. OF 1878.] 513

control of the applicant, a manifest miscarriage of justice ; provided
always that in suits which, under the former practice of the Court
would have been instituted in the Equity side of the Court, where
a decree directs the performance of several acts, or contains several
declaratiotis or directions, it shall be lawful for the Court to order
a rehearing, upon any one or more of such declarations or directions,
when the same do not go to the main issues of the suit, if there
is a manifest error upon the face of the decree, or if the question
raised by the declaration or direction, in respect of which a
rehearing is a*5ked, was not fully argued or gone into in evidence
at the time of trial ; or the Court may, upon the hearing of the
application for such rehearing, order the decree to be then and
there amended without any rehearing. And if the Court shall
ofder any such rehearing upon any such declaration or direction,
no fresh evidence shall be taken, unless the Court shall so order.

338. A new trial may be ordered on any question in a suit, Mav be
whatever be the grounds for the new trial, without interfering with gi'anted as to
the finding or decision upon any other question. qSestions*'^^

only.

339. An order to show cause shall be a stay of proceedings in Order when
the suit, unless the Court shall order that it shall not be so, as to ^^ operate as
the whole or any part of the suit. c^ing^^ ,

89/5.



CHAPTER XXIX.

Of Judgments in General.

Minute.

340. When judgment, final or interlocutory, is entered for judgment
default of appearance or pleading, or under an order to enter ^o^ entered^
judgment, the party entering such judgment shall deliver to the

proper oflScer a minute thereof, in the prescribed form ; the minute
shall thereupon be filed, with a note thereon of the date of entry,
whereupon such judgment shall be deemed to be duly entered,
and the particulars of the judgment shall be entered in the proper
book.

341. When any judgment, final or interlocutory, is given by the Minute of
Coui't, a minute thereof shall be made by the officer, at the time Judgment
when the judgment is given.

342. Whenever the Court shall deliver a written judgment, the Written
original or a copy thereof, signed by the Judge, shall be filed in the "^^^^^^^
suit or other proceeding.

Instalments.

343. In all judgments for the payment of money, wher<^ the Payr^ent by
amount sued for does not exceed $500 the Court may, for any iiistaiment$.
sufficient reason, and upon such terms, as to secunty or otherwise,

U p. 6781. K K



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514



[V. OP 1878.]



aVIL PROCKDUBE.



as to the Court may seem just, order that the amount shall be
paid by instalments with or without interest.

Balance on Set-off or Countee-claim.

Judgment for 344. Where in any suit a set-off or counter-claim is estabMed,

of iTV'or *** as a defence against the plaintiff's claim, the Court may, if the

oouDter claim. l>alance is in favour of the defendant, give judgment for the

22 10. defendant for such balance, or may otherwise adjudge to the

defendant such relief as he may be entitled to upon the merits of

the case



Judgment bj
conff ssion or
by consent
of parties.
Form 13.



Recording of
Judgment or
Order.

Alphabetical
index.



C0NFE55SI0N OR CONSENT.

345. Judgment by confession or by consent of parties may be
entered up at any time. In every such case a memorandum of
such confession or consent, and of the particulars of the judgment
to be entered, shall be signed, by the parties in the presence of the
Registrar, or by their solicitors, authorized in writing thereto, and
filed in Court

Decree Book.

346. Every final judgment or order of the Court, and every
judgment by default, or by confession, or by consent of the parties
shall be recorded in a book to be kept by the Kcgistrar for the
purpose, and to be called the Decree Book ; and the Kegistrar shall
keep an alphabetical index thereof.

Decree.

Settling decree. 347. If the judgment is otiher than for the payment of money,
or delivery of any chattel, or the possession of land, or of nonsuit,
or judgment for the defendant, cr for costs, the Registrar shall by
notice in writing summon the parties or their solicitors before
him to settle the draft of the judgment or decree : and, if any
pai ty shall be then dissatisfied with the terms of the prc^weed
decree as finally settled, he shall state his objections in terms,
whereupon the Registrar shall adjourn the appointment to settle
the judgment or decree into Court, or to the Court in Cbambei?,
for a day then, or subsequently, by notice to the parties, to be
named by him.

348. The Registrar, whenever applied to for a decree of the
Court, shall issue an office copy or office copies of the decree, taken
from the Decree Book, under the seal of the Court ; everv copy of
a decree so sealed and issued by the Registrar shall be held to he
of the same validity as the original decree in the Decree Book, till
shewn to be incorrectly copied.

349. Every final judgment or order, and every judgment by
default or by confession or by consent of parties, shall be dated in
the Decree Book, as of the day on which the same was pronounced
or entered up, as the case may be, and shall take effect from thet
date.



OflRcfc copies
of Decrees.



Dating of
Jadgment or
Order.
41/2.



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civil procedure. [y. of 1878.] 616

Lis Pendens.

350. No lis pendens shall bind a purchaser or mortgagee without Not to bind
express notice thereof, unless and until a memorandum or minute, a purchaser
containing the following particulars shall be left with the Registrar ^thout^**^
at the Settlement or Settlements where the property is situate, that notice, onleM
is to say, the name and the usual or last known place of abode, and registered,
the title, trade, or profession of the person whose estate is intended ^ ^^ J^^'
to be affected thereby, and the Court, the title of the suit or
information, and the-day when the writ of summons or information

was filed, and a description (with reasonable certainty) of the
property to be affected by such lis pendens.

351. The Registrar shall forthwith enter the said particulara, Entry in Book.
with the date on which the same were delivered to him, in a book,

to be called the Register of Lis Pendens, to be' kept for the purpose,
and such book shall be open for search at any time without fee
Such lis pendens shall remain in force for the period of one year Duration,
from the date of the entry thereof in such book ; but it shall be
lawful for the Court, on the application of the Plaintiff or other
party interested, to order the entry to be renewed, from time to
time, for such period, not exceeding one year, as the Court may
think fit ; and, upon any such order being made, the particulars
shall be entered anew in the said book, with a note that the same Benewal
have been so entered by order of the Court, and of the period for
which the same is to remain in force.

352. Any such entry of a lis pendens may be discharged upon a Entry how
memorandum in writing signed by the party entering the same, di«c^*^««<^'
in the presence of and attested by the Registrar or a Solicitor of

the Court ; and the Court may, upon the application by summons
of any person interested in the property affected by any Us pendens,
order such lis pendens to be discharged, if the suit or information
shall appear to be concluded, or if the plaintiff" shall not prosecute
the same with due diligence, or if, for any other reason, it shall
seem right that the same should be discharged.



Online LibraryStraits SettlementsThe acts and ordinances of the Legislative council of the Straits Settlements, from the 1st April 1867 to the 7th March 1898 .. → online text (page 60 of 98)