London Gazette a notice that on a day in such notice named (being not less than four weeks after the first insertion of such notice in the London Gazette) the Court will be moved that the Information may be taken pro confesso against such defendant, and the Informant must upon the hearing of such motion satisfy the Court that such defendant ought, under the provisions of the second clause of this Rule, to be deemed to have absconded to avoid or to have refused to obey the process of the Court, and that such notice of motion has been inserted in the London Gazette at least once in every entire week (reckoned from Sunday morning to Saturday evening) which shall have elapsed between the time of the first insertion thereof and the time for which the said notice is given; and the Court, if so satisfied, and if an answer has not been filed, may, if it so think fit, order the Information to be taken pro confesso against such defendant, either immediately or at such time or upon such further notice as under the circumstances of the case the Court may think proper.

5. Any defendant, being in custody for want of his Answer and submitting to have the Information taken pro confesso against him, may apply to the Court upon motion, with notice to be served on the Informant, to be discharged out of custody, and thereupon the Court may order the Information to be taken pro confesso against such defendant, and may order him to be discharged out of custody upon such terms as appear to be just, unless it appears, from the nature of the Informant's case, or otherwise to the satisfaction of the Court, that justice cannot be done to the Informant without discovery or further discovery from such defendant.

6. No cause in which an order is made that an Information be taken pro confesso against a defendant shall be heard on the same day on which the order is made, but the cause shall be set down to be heard, and the Court, if it so think fit, may appoint a special day for the hearing thereof.

7. A defendant against whom an order to take an Information pro confesso is made may appear at the hearing of the cause, and where he waives all objection to the order, but not otherwise, he may be heard to argue the case upon the merits as stated in the information.

8. Upon the hearing of a cause in which an Information has been ordered to be taken pro confesso, such decree shall be made as to the Court shall seem just; and in the case of any defendant who has appeared at the hearing, and waived all objection to such order to take the Information pro confesso, or against whom

the order has been made after appearance by himself or his own solicitor, or upon notice served on him, or after the execution of a writ of attachment against him, the decrce shall be absolute.

9. In pronouncing the decree the Court may, either upon the case stated in the information, or upon that case and a motion by the Informant for the purpose, as the case may require, order a receiver of the real and personal estate of the defendant against whom the Information has been ordered to be taken pro confesso to be appointed, with the usual directions, or direct a sequestration of such real and personal estate to be issued, and may (if it appear to be just) direct payment to be made out of such real or personal estate of such sum of money as at the hearing or any subsequent stage of the cause the Informant shall appear to be entitled to.

10. A decree founded on an Information taken pro confesso is to be entered as other decrees.

11. After a decree founded on an Information taken pro confesso has been entered, an office copy thereof shall (unless the Court shall dispense with service thereof) be served on the defendant against whom the order to take the Information pro confesso was made, or his solicitor; and where the decree is not absolute, under the 8th clause of this Rule, such defendant or his solicitor shall be at the same time served with a notice to the effect that if such defendant desires permission to answer the Informant's information, and set aside the decree, application for that purpose must be made to the Court within the time specified in the notice, or that otherwise such defendant will be absolutely excluded from making any such application.

12. Where such notice as is mentioned in the last preceding clause of this Rule is to be served within the jurisdiction of the Court, the time therein specified for such application to be made by the defendant shall be 14 clear days after the service of such notice, or in case the Court be not sitting at the expiration of such 14 clear days, then on the first day of the term next following the expiration of such 14 clear days; but where such notice is to be served out of the jurisdiction of the Court such time shall be specially appointed by the Court, on the ex parte application of the Informant.

13. No proceeding shall be taken, and no receiver appointed under the decree, nor any sequestrator under any sequestration issued in pursuance thereof, shall take possession of or in any manner intermeddle with any part of the

real or personal estate of a defendant, and no other process shall issue to compel performance of the decree, without leave of the Court or a Judge, to be obtained after notice served on such defendant or his solicitor, unless the Court or a Judge shall dispense with such

service.

14. Any defendant waiving all objection to take the Information pro confesso, and submitting to pay such costs as the Court may direct, may, before inrolment of the decree, have the cause re-heard upon the merits stated in the information, the petition for re-hearing being signed by counsel as other petitions for re-hearing.

15. Where a decree is not absolute, under the 8th clause of this Rule, the Court may order the same to be made absolute, on the motion of the Informant made,

(1.) After the expiration of three weeks from the service of a copy of the decree on a defendant, where the decree has been served within the jurisdiction:

(2.) After the expiration of the time limited by the notice provided for by the 11th clause of this Rule, where the decree has been served without the jurisdiction: (3.) After the expiration of three years from the date of the decree, where a defendant has not been served with a copy thereof: And such order may be made either on the first hearing of such motion, or on the expiration of any further time which the Court may, on the hearing of such motion, allow to the defendant for moving for leave to answer the Information.

16. Where the decree is not absolute, under the 8th clause, and has not been made absolute, under the 15th clause of this Rule, and a defendant has a case upon merits not appearing in the Information, he may apply to the Court by motion, supported by an affidavit stating such case, and submitting to such terms with respect to costs and otherwise as the Court may think reasonable, for leave to answer the information; and the Court, if satisfied that such case is proper to be submitted to the judgment of the Court, may, if it think fit and upon such terms as seem just, vacate the inrolment (if any) of the decree, and permit such defendant to answer the Information; and where permission is so given to put in an answer, leave may be given to file a separate replication to such answer, and issue may be joined, and witnesses examined, and such proceedings had as if the decree had not been made, and no proceedings against such defendant had been had in the

cause.

17. The rights and liabilities of any defen

dant under a decree made upon an Information taken pro confesso shall extend to the representatives of any deceased defendant, and to any persons claiming under any person who was defendant, at the time when the decree was pronounced; and with reference to the altered state of parties and any new interests acquired, the Court may, upon motion served in such manner and supported by such evidence as under the circumstances of the case the Court may deem sufficient, permit such proceedings to be taken as the nature and circumstances of the case require, for the purpose of having the decree (if absolute) duly executed, or for the purpose of having the matter of the decree (if not absolute) duly considered, and the rights of the parties duly ascertained and determined.

RULE VIII. TRAVERSING NOTE.

[Consolidated Chancery Orders, XIII. 1; 29 Law J. Rep. (N.S.) page 16.]

1. After the expiration of the time allowed to a defendant to plead, answer, or demur (not demurring alone) to any Information, whether original or amended before answer, which he has been required to answer, if such defendant has not filed any plea, answer, or demurrer, the informant may, if he think fit, file a note at the Queen's Remembrancer's office to the following effect: "The Informant intends to proceed with the cause as if the defendant had filed an answer traversing the case made by the Information."

[Ibid. XIII. 2; 29 Law J. Rep. (N.S.) page 16.]

2. After the expiration of the time allowed to a defendant to plead, answer, or demur (not demurring alone) to an Information, amended after answer, which he has been required to answer, if such defendant has not filed any plea, answer, or demurrer, the informant may, if he think fit, file at the Queen's Remembrancer's office a note to the following effect: "The Informant intends to proceed with the cause as if the defendant had filed an answer traversing the allegations introduced into the Information by amendment."

[Ibid. XIII. 3; 29 Law J. Rep. (N.S.) page 16.]

3. After the expiration of the time allowed to a defendant to put in his further answer to any information, if such defendant shall not have put in any further answer the informant may, if he think fit, file at the Queen's Remembrancer's office a note to the following effect: "The Informant intends to proceed with the cause as if the defendant had filed a further answer traversing

[Ibid. XIII. 4; 29 Law J. Rep. (N.S.) page 16.]

4. Where a demurrer or plea to the whole Information is overruled, the Informant, if he does not require an answer, may, if he think fit, immediately file his note in manner directed by the first or second clause of this rule, as the case may require, and with the same effect, unless the Court, upon overruling such demurrer or plea, gives time to the defendant to plead, answer, or demur, and in such case, if the defendant does not file any plea, answer, or demurrer within the time so allowed by the Court, the Informant, if he does not then require an answer, may, if he think fit, on the expiration of such time, file such note.

[Ibid. XIII. 5; 29 Law J. Rep. (N.S.) page 16.]

5. A traversing note having been filed, a copy thereof shall be served on the defendant against whom the same was filed.

[Ibid. XIII. 6; 29 Law J. Rep. (N.S.) page 16.]

6. The filing of a traversing note, and due service of a copy thereof, shall have the same effect as if the defendant against whom such note is filed had filed a full answer, or further answer, traversing the whole Information, or those parts of it to which the note relates, on the day on which the note was filed.

7. A defendant, after service of the copy of the traversing note filed against him as aforesaid, shall not plead, answer, or demur to the Information, or put in any further answer thereto, without the special leave of the Court or a Judge, and the cause shall stand in the same situation as if such defendant had filed a full answer or further answer to the Information on the day on which the note was filed.

RULE IX.

REPLICATION AND JOINING ISSUE. [Consolidated Chancery Orders, XVII. 2; 29 Law J. Rep. (N.S.) page 18.]

1. No subpoena to rejoin shall hereafter be issued, and only one replication shall be filed in each cause unless the Court or a Judge shall otherwise direct, and the replication shall be in the form set forth at the end of this rule, or as near thereto as circumstances admit, and upon the filing of such replication the cause shall be deemed to be completely at issue, and each defendant may without any rule or order NEW SERIES, 35.-COM. Law (EXCHEQ.)

Informant may in like manner proceed to verify his case by evidence, as soon as notice of the replication having been filed has been duly served on all the defendants who have filed an answer or plea, or against whom a traversing note has been filed, or who have not been required to answer and have not answered the Information.

The Informant hereby joins issue with the defendants [all the defendants who have answered or pleaded, or against whom a traversing note has been filed, or who have not been required to answer and have not answered the Information], and will hear the cause on information and answer against the defendants [all the defendants against whom the cause is to be heard on information and answer], and on the order to take the Information pro confesso against the defendants [all the defendants against whom the Information is to be taken pro confesso].

RULE X. EVIDENCE.

[Consolidated Chancery Orders, Sect. VIII.; 15 & 16 Vict. c. 86. s. 28.]

1. The mode of examining witnesses now in force, and all the practice of the Court in relation thereto so far as the same are inconsistent with these Rules, shall, from and after the time appointed for these Rules to come into operation, be abolished; provided always, that the Court or a Judge may, if it shall seem fit, order any particular witness or witnesses within the jurisdiction of the Court, or any witness or witnesses out of the jurisdiction of the Court, to be examined upon interrogatories in the mode now in force, or in such other mode as the Court or a Judge may direct; and that with respect to such witness or witnesses the practice of the Court in relation to the examination of witnesses shall continue in force, save only so far as the same may be varied by any order of the Court or a Judge in reference to any particular case.

[Order, 5th February, 1861, rule 3; 30 Law J. Rep. (N.S.) page 2.]

2. The Informant or any defendant, may at any time within fourteen days after issue has been joined in a cause, apply to a Judge by a

B

summons to be served on the opposite party for an order that the evidence as to any facts or issues (such facts and issues to be distinctly and concisely specified in the summons) may be taken viva voce at the hearing of the cause, and the Judge may, if he shall so think fit, make an order that the evidence as to such facts and issues or any of them shall be taken viva voce at the hearing accordingly; and the facts and issues as to which any such order shall direct that the evidence shall be taken viva voce at the hearing shall be distinctly and concisely specified in such order. And where any such order shall have been made, the examination in chief, as well as the cross-examination and reexamination, shall be taken before the Court at the hearing as to the facts and issues specified in such order; and no adffiavit shall be admissible at the hearing in respect of any fact or issue which shall be included in any such order as aforesaid.

3. Except as to facts or issues included in any order directing evidence to be taken viva voce at the hearing under the first clause of this Rule, each party shall be at liberty to verify his case by affidavit.

4. A Judge may, if he think fit, upon the application of either party, by summons served on the opposite party, order that any particular witness or witnesses shall be examined orally before an examiner specially appointed by the Judge for that purpose, whether the evidence of such witness or witnesses relate to any facts and issues specified in an order under the second clause of this Rule, or not; and witnesses so examined shall be subject to crossexamination and re-examination; and such examination, cross-examination, and re-examination shall be conducted as nearly as may be in the mode now in use in Courts of common law with respect to a witness about to go abroad, and not expected to be present at the trial of a cause, but subject to such directions as may be given by the Judge in any particular

case.

[Order, 5th February, 1861, rule 5; 30 Law J. Rep. (N.S.) page 2.-Exchequer Rules, 1860, 119.]

5. The evidence in chief on both sides in any cause taken before the hearing, to be used at the hearing (including the examination, crossexamination, and re-examination of any witness before a special examiner, under any such order as mentioned in the last preceding clause of this Rule), shall be closed within eight weeks after issue joined, unless the time is enlarged by special order; and no evidence subsequently taken shall be admissible without special leave of the Court or a Judge.

[Consolidated Chancery Orders, XVIII.1; 29 Law J. Rep. (N.S.) page 19.-Exchequer Rules, 1860, 121.]

6. All affidavits made in a cause, whether for the purpose of being used at the hearing or otherwise, shall be taken and expressed in the first person of the deponent, and all affidavits shall be filed in the Queen's Remembrancer's office; and affidavits to be used at the hearing of a cause shall be so filed before the time of closing evidence.

[15 & 16 Vict. c. 86. s. 37.]

7. Every affidavit in a cause shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject.

[Ibid. XIX. 12; 29 Law J. Rep. (N.S.) page 20.]

8. No affidavit filed before issue joined in any cause shall, without special leave of the Court or a Judge, be received at the hearing thereof, unless within one month after issue joined notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf. [Order, 5th February, 1861, rule 19; 30 Law J. Rep. (N.S.) page 3.]

9. Where any party has filed an affidavit intended to be used at the hearing of a cause, any opposite party desiring to cross-examine the witness who has made such affidavit may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the witness for cross-examination before the Court at the hearing, such notice to be served within 14 days next after closing the evidence; but a Judge, on the application of the party filing such affidavit, by summons served on the opposite party, may, if the circumstances of the case in his opinion render it expedient, make an order giving the party filing such affidavit liberty to produce such witness for cross-examination at a time named in such order, before an examiner specially appointed by the Judge, instead of at the hearing. Unless such witness is produced accordingly at the hearing, or, if such order as last aforesaid have been made, then at the time named in such order, such affidavit shall not be used as evidence without the leave of the Court. The party producing such witness shall be entitled to demand the expenses thereof in the first instance from the party requiring such production, but such expenses shall ultimately be borne as the Court shall direct. The witness, when produced and cross-examined, shall be subject to oral re-examination on behalf of the party by whom his affidavit was filed.

Rep. (N.S.) page 4.]

10. Where any such notice as is mentioned in the last preceding clause is given, the party to whom it is given shall be entitled to compel the attendance of the witness for cross-examination, in the same way as he might compel the attendance of a witness to be examined on his behalf.

11. The attendance of a witness, whether before the Court or a special examiner, may be compelled, either by an order of a Judge, in the same manner as in courts of Common Law, or by a subpoena ad testificandum or subpana duces tecum, which may be in the form mentioned at the foot of this Rule, with such variations as circumstances may require.

[15 & 16 Vict. c. 86. s. 34.]

12. When the examination or cross-examination of witnesses before a special examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Queen's Remembrancer's office, to be there filed.

[Order, 5th February, 1861, rule 22; 29 Law J. Rep. (N.S.) page 4.]

13. Any party to a cause requiring the attendance of any person before the Court for the purpose of being examined shall give to the opposite party 48 hours' notice at least of his intention to examine such witness or person, such notice to contain the name and description of the person, unless the Court or a Judge shall in any case think fit to dispense with such notice.

[15 & 16 Vict. c. 86. s. 29.]

14. Upon the hearing of any cause, the Court, if it shall see fit to do so, may require the production and oral examination before itself of any witness or party in the cause, and may direct the costs of and attending the production and examination of such witness or party to be paid in such manner as it may think fit.

[15 & 16 Vict. c. 86. s. 41.]

15. In cases where it shall be necessary for any party to go into evidence subsequently to the hearing of a cause, such evidence may be taken by affidavit, but subject to any special directions which may be given by the Court or a Judge in any particular case.

page 83.]

16. Affidavits to be filed in the office of the Queen's Remembrancer, whether for the purpose of being used on an interlocutory application, or at the hearing of a cause, or otherwise, are to be written on foolscap paper bookwise: Provided nevertheless, that the Queen's Remembrancer may receive and file affidavits written otherwise than as here directed, if in his opinion the circumstances of the case render such reception and filing desirable or necessary.

[15 & 16 Vict. c. 86. s. 59.]

17. Upon applications by motion to the Court in any suit depending therein for an injunction, or to dissolve an injunction, the answer of the defendant shall, for the purpose of evidence on such motions, be regarded merely as an affidavit of the defendant, and affidavits may be received and read in opposition thereto.

Form of Subpoena referred to in Clause 11 of the preceding Rule.

VICTORIA, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith: To greeting.

We command you [and every of you], That, all excuses ceasing, you do personally be and appear before [Our trusty and well-beloved The Barons of Our Court of Exchequer at Westminster, at such times as the bearer hereof shall by notice in writing appoint], [or

an examiner specially appointed for the examination of witnesses in Our Exchequer, at such times and places as the bearer hereof shall by notice in writing appoint], to testify the truth according to your knowledge in a certain cause depending in Our said Court of Exchequer, wherein is Informant

[and

and

plaintiff, or and and others are plaintiffs], and others or another] is [or are] defendant [or defendants] on the part of the that you then and there bring with you and produce ], and hereof

fail not at your peril. Witness, &c.

RULE XI.

[and

SETTING DOWN FOR HEARING.
[Consolidated Chancery Orders, XXI. 1;
29 Law J. Rep. (N.S.) page 20.]

1. Within eight weeks after the evidence has been closed, the Informant is to set down the cause, and obtain and serve on the solicitor