Civil Code of the Hawaiian Islands

CHAPTER XXV.

OF THE PRACTICE OF COURTS OF RECORD.

ARTICLE XLVI—OF CIVIL SUITS.

§1099. Every civil action hereafter to be tried in any of the courts of record in this Kingdom, shall be commenced by petition, which petition shall be verified by the oath of the plaintiff, or some one on his behalf, deposing to the best of his knowledge and belief.

§1100. In all suits for the recovery of money upon evidences of indebtedness, or vouchers certain or computable by the court, that is to say: upon promissory notes, bills of exchange, drafts, orders; bonds and other instrument, parol or specialty, the plaintiff in person, or by his attorney, shall file a petition for process, addressed to the Chief Judge or Justice of the court, in substance as follows:

The undersigned claims of ____________ _____________, residing at _____________, Island of _____________, _______________ dollars, upon (a note or other evidence of debt, as the case may be) dated _______________, payable on ______________, with _______________ interest from _________________. Said defendant has neglected and refused to pay the same until this date, (and in case of fraud or concealment, or other collusive or deceptive circumstances attendant upon the contracting or the non-payment of the debt, here insert the same according to the circumstances).

Wherefore, the undersigned asks the process of this court to cite the said defendant to appear and answer to this demand.

Dated _______ day of ____________, 18_____. _____________

Plaintiff, or Plaintiff’s Attorney

§1101. Upon the filing of such petition, in case no fraudulent circumstances be alleged by the plaintiff, the clerk shall issue, under the seal of the court, a summons addressed to the Marshal or his deputy, which may be in the following form:

You are commanded to summon ___________ ____________, defendant, in case he shall file written answer within twenty days after service thereof, to be and appear before the Supreme Court, (or Circuit Court for the _________ judicial circuit, as the case may be) at the __________ term thereof, to be holden at __________, in the Island of ___________ , on the ______ day of ________ next, at ______ o’clock A.M., to show cause why the claim of ______________ ____________, plaintiff, should not be awarded to him pursuant to the tenor of his annexed petition. And have you then there this writ with full return of your proceedings thereon.

Witness, ______ ________ _______, Esquire,

Chief Justice of the Supreme Court, at Honolulu,

This______ day of _______, A.D. 18 _____

(Seal) ______________ ________________, Clerk

§1102. Every summons issued under the seal of a court of record, shall be served by the marshal or his deputy, upon the defendant, by the delivery to him of a certified copy thereof, and of the plaintiff’s petition, to which petition shall always be annexed a literal copy of the voucher upon which it is predicated, (if any there be) or in case the defendant cannot be found, by leaving such certified copy with some agent or person transacting the business of the defendant, or at the defendant’s last place of residence.

§1103. If the defendant was never an inhabitant of the Kingdom (but has property situated within the same), or has removed therefrom, and the fact shall appear by affidavit to the satisfaction of the court, or a judge thereof at chambers, and it shall in like manner appear that a cause of action exists against such defendant, or that he is a necessary or proper party to the action, such court or judge may grant an order, that the serve be made by publication of the summons.

§1104. Such order shall direct the publication to be made in the Government Gazette, for such length of time as may be deemed reasonable, not less than three months. In case the residence of the defendant is known, the court or judge shall, in addition to the publication, direct a copy of the summons and petition to be forthwith deposited in the post-office, addressed to the defendant, at his place of residence. When publication is ordered, personal service of a copy of the summons and petition, out of the Kingdom, shall be equivalent to publication and deposit in the post-office. In either case, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.

§1105. It shall be necessary to join as defendants in a civil action, all the joint and several, or joint makers of promissory notes, or drawers of drafts, bills of exchange, or orders, or joint and several obligors, lessees, or parties of the first or second part to covenants, agreements and contracts, in suing for non-payment, non-acceptance, or non-fulfillment thereof, but it shall in no case be necessary to serve all the joint parties sued with process. Service of process upon one of several defendants at law, shall be legal service upon all for the purposes of appearance in court, and judgment may be entered against all such co-defendants thereon: provided, however, that no execution shall issue against the sole property of any joint defendant on whom process was not duly served as aforesaid.

§1106. It shall be incumbent upon every defendant served with process of summons as hereinbefore provided, within the time specified in the summons or order of publication, to file with the clerk of the court, an answer to the plaintiff’s demand, either admitting all the facts stated in the petition to be true, and denying that they are sufficient in law to support the plaintiff’s demand, which shall form an issue of law to be determined by the court, or denying the truth of the facts stated in the petition, which shall form an issue of fact to be determined by the jury. After either of these answers, there shall be no further pleading.

Section 1106 of the Civil Code shall be, and the same is hereby amended, by adding thereto the following words:

Provided that in all cases where the defendant is sued as the maker, drawer, acceptor or endorser of any banker’s cheque, promissory note, bill of exchange, or other negotiable security, he shall not be allowed to file an answer unless he shall file therewith an affidavit made by himself or by some person cognizant of the facts, on his behalf, that the defendant has a good defense to the action on the merits, and stating some substantial ground of defense to the action, if such action be commenced within six months after the dishonor of the instrument on which the action is brought.

§1107. Under the second answer mentioned in the last preceding section, the defendant may give in evidence, as a defense to any civil action, any matter of law or fact whatever.

§1108. The respective courts of record shall have power to make such general and special rules, and orders, respecting notice to the opposing party, of matters intended to be given in evidence by either party to a suit, as shall be necessary to prevent surprise, and to afford an opportunity for preparation for trial.

§1109. In case the defendant does not put in an answer to the petition as hereinbefore required, the plaintiff may prove service of the summons by personal delivery or otherwise, and default in answering, by the clerk’s certificate, and shall thereupon be entitled to demand and receive of the court, or judge at chambers, an order declaring the defendant in default, and authorizing the clerk, if the demand be upon a promissory note or any other voucher contemplated by section 1100, to assess the amount of the plaintiff’s claim, principal, damages and interest, ad to enter up judgment therefor and for the costs.

§1110. In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time designated in the order of publication, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court or judge at chambers shall thereupon require proof to be made of the demand mentioned in the complaint, and shall require the plaintiff or his agent to be examined on oath, respecting any payments that may have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which is entitled to recover.

§1111. In case the defendant shall put in an answer denying the truth of the facts set forth in the plaintiff’s petition, which answer shall be called the general issue, the clerk shall enroll the cause upon the calendar of civil causes triable in the court in which the action was commenced.

§1112. In case the defendant shall put in an answer admitting the facts stated in the petition to be true, and denying that they are sufficient in law to support the plaintiff’s demand, which answer shall be called a demurrer, the plaintiff shall join therein within twenty days on pain of being defaulted, and may apply to a judge at chambers for a hearing and decision of the issue.

§1113. The judge so applied to shall have power to cite the defendant, appoint a day for argument, cite witnesses to prove collateral facts involved, and to decide the issue, subject to exceptions by either party.

§1114. If either party take exception to the decision of the judge at chambers, the cause may be placed upon the calendar of motions, with the decision of the judge at chambers, to be re-considered by the court in term time, at the cost of the party losing.

§1115. If no exceptions be taken at chambers to the judge’s decision of a question of law, and no question of fact remains to be decided at the term, the judge shall make an order to the clerk to enter up the judgment awarded by him upon the issue, which shall be valid, subject to an appeal to the court in banco.

ACTIONS UPON UNLIQUIDATED DEMANDS, &C.

§1116. In all civil cases involving unliquidated demands constructive, implied, suppositious or hypothetical right on the part of the government, or of any private person, corporation or other party, being plaintiff, to recover money or damages pursuant to the words, or the spirit or intent of any law heretofore, now, or hereafter to be passed, or of any instrument in writing signed by any party, or of any verbal understanding, contract or agreement, or in consequence of any injury direct or consequential to the party plaintiff, or to his property, real or personal, or to his character, or his feelings, the plaintiff in person, or by attorney, shall file with the clerk of the court, a petition for process, in substance as follows:

The Undersigned claims of ______________ _________________, defendant, residing at _______________, Island of __________________, the sum of ______________ dollars, for damages resulting to him (or as the case may be) for injury done by said defendant to (the person, the property, the character or the feelings of the plaintiff, taken in to his possession and converted to his use, (or occupation, as the case may be) the following property, viz.: (here set forth the property wrongfully in the defendant’s possession, whether real or personal, and if personal, the articles by name or description, and if real, the metes, bounds, quantity and locality thereof, with the kind of title claimed by the plaintiff) valued at __________ dollars, or if in ejectment, state in lieu of the value, to the damage of said plaintiff ___________ dollars.

Wherefore, the plaintiff asks the process of this court, to cite the said defendant to appear and answer this complaint before a jury of the country, at the _________ term of this court, unless sooner disposed of by judicial authority, and that the plaintiff may have restitution of said property, with damages for its detention (or as the case may be).

§1117. In all cases contemplated by the last preceding section, the plaintiff may, according to circumstances, include in his petition, an allegation that the defendant is secreting his property, or disposing of the same, or colluding so to do, or is about to depart the Kingdom, or is damaging or wasting the said property, and thereupon ask for process of attachment, or injunction, or personal arrest, against the defendant, as such plaintiff may judge proper to ask in the premises.

§1118. In actions to recover at law any specific property, real or personal, or any specific share or interest, or right to property, real or personal in kind, as in cases of replevin, or of ejectment, the plaintiff in person, or by attorney, shall file with the clerk of the court, a petition for process, which may be in the following form:

The undersigned complains of __________, defendant, residing at ______, Island of _______, that he has unjustly, and contrary to law and the rights of the plaintiff, taken in to his possession and converted to his use, (or occupation, as the case may be) the following property, viz: (here set forth the property wrongfully in the defendant’s possession whether real or personal, and if personal, the articles by name or description, and if real, the metes, bounds, quantity and locality thereof, with the kind of title claimed by the plaintiff) valued at ___ dollars, or if ejectment, state in lieu of the value, to the damage of said plaintiff ___ dollars.

Wherefore, the plaintiff asks the process of this court, to cite the said defendant to appear and answer this complaint before a jury of the country, at the ___ term of this court, unless sooner disposed of by judicial authority, and that the plaintiff may have restitution of said property, with damages for its detention (or as the case may be).

§1119. In cases of ejectment, under the last preceding section, the plaintiff may, according to circumstances, allege in his petition, that there is danger the defendant or some one for him, will commit destruction of tenements or other property, on the premises in controversy, pendente lite, and thereupon ask for process of injunction or other restraining process of the court, as such plaintiff may judge proper to ask.

§1120. In every such case in which process of constraint to the person or property of a defendant is prayed for, no such process shall issue until the plaintiff or some one on his behalf, shall have filed a bond conditioned for the reimbursement to the defendant of all costs, charges and damages sustained by him in consequence of the suit, in case the plaintiff fail to sustain his action. Upon the filing of the petition and bond, any judge of the court at chambers, may sanction a constraining writ, by endorsing thereon his written allowance, without which no executive judicial officer shall be justified in the seizure, constraint, restraint or commitment of a defendant, or in the seizure, attachment, removal, detention or injunction of his property, real or personal.

§1121. If the judge deem it proper that the defendant, or any of several defendants, should be heard before granting an injunction, he may grant an order requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may in the meantime be restrained.

§1122. In case the petition contains no prayer for constraining process, the clerk shall issue a summons, addressed to the marshal or his deputy, which may be in the following form:

You are commanded to summon _____________ _______________, defendant, in case he shall file written answer within twenty days after service thereof, to be and appear before the Supreme Court, (or circuit court for the ___________ judicial circuit) at the ________ term thereof, to be holden at _________, on the __________ day of __________ next, at _________ o’clock a.m., to show cause why the claim of ________ ____________, plaintiff, should not be awarded to him pursuant to the tenor of his annexed petition. And have you then there this writ with full return of your proceedings thereon.

Witness, ______ __________, Esquire

Chief Justice of the Supreme Court, at Honolulu

This ___ day of ______, 18___

____________ ________, Clerk.

§1123. In case the petition contains a prayer for process of constraint against the defendant, or his property, and the plaintiff has filed with the clerk a bond as prescribed in section 1120, approved by a judge at chambers, and the judge has allowed the constraining process, the clerk may issue a summons in the form prescribed in the last preceding section, with an additional clause after the words “annexed petition,” as follows:

And you are further commanded to arrest the said defendant and commit him to prison, unless he shall give bond to answer as aforesaid, (or to attach and keep safely the said personal property until judgment of restitution be awarded or refused, or to enjoin the said defendant under penalty of ___ dollars, not to sell, mortgage, lease or rent the said real property, lands and tenements, until the dissolution of such injunction by competent judicial authority).

§1124. In all cases of attachment, sequestration or injunction of real property, the officer serving the writ shall, in addition to personal delivery of a copy thereof to the defendant, post upon the premises a copy of the process, and a notice of the day and hour when attached, sequestrated or enjoined, and shall also give notice thereof in the Government Gazette. All after-leases, mortgages, sales, bequests, assignments, trust or other conveyances of said property, until the dissolution of the process, shall be void in law as against the plaintiff in such cases.

§1125. All persons residing or being in this Kingdom shall be personally responsible in damages, for trespass or injury, whether direct or consequential, to the person or property of others, or to their waives, children under majority, or wards, by such offending party, or by his wife, or his child under majority, or by his command, or by his animals, domitae or ferae naturae; and the party aggrieved may prosecute therefor in the proper courts.

§1126. Upon failure of any party defendant, after having been served with the process prescribed in sections 1101 and 1122, to answer the complaint within twenty days after service, the plaintiff in the action, upon proof to a judge at chambers, shall be entitled to an order for judgment by default, debarring the defendant from the right to answer. The judge or the court shall have power, however, to open the default, in their discretion, for good and sufficient reasons.

§1127. The clerk shall, after such default, enter the cause upon the calendar of assessments to be made ex parte at the term, upon sole adduction of plaintiff’s evidence, without admitting the defendant to rebut the same: provided, however, that the defendant may in person, or by counsel, cross-examine the plaintiff’s witnesses, and address the jury in mitigation of damages.

§1128. The measure of damages in all cases contemplated by section 1116, shall be according to the true legal interpretation of the court upon the law, instrument, contract or agreement; and in all cases of injury, direct or consequential, to the plaintiff in person, or his wife, child or servant, or to his, her, or their character or feelings, or to his property, real or personal, the measure of damages shall be determined by the jury.

§1129. In actions of ejectment to enforce the right of possession of lands, it shall be sufficient to serve the party in actual possession thereof, though he be not the adverse claimant, or if no one be in actual possession at the time, to post a copy of the process, and notice to the party claiming adversely, in some conspicuous place upon the premises, at least thirty days before the first day of the term of the court at which the case is to be tried.

§1130. Issues of fact arising in any suit, contemplated by sections 1100 and 1116, shall be tried by a jury, unless a jury trial be waived by the parties with the consent of the court.

TRIAL BY REFEREE

§1131. In all cases of complication, and in cases involving long accounts, the court may, upon the written application of either party showing satisfactory cause, or of its own motion, appoint competent referees, as provided in section 841, to hear and decide upon the facts and merits of the case, reporting their decision to the court: provided, however, that this provision shall not extend to any case contemplated by sections 1116 and 1118.

§1132. Referees so appointed shall be sworn to the faithful and speedy investigation of, and to an honest award upon, the matters submitted to them. All persons residing for the time being within the jurisdiction of the court, and liable to serve as jurors, shall be liable to serve as referees upon appointment.

§1133. Either party may take exception to the decision of the referees, upon a question of law, and it shall be the duty of the referees to note such exception.

§1134. The report of referees in any cause shall be signed by them, or a majority of them. They shall file it with the clerk of the court by whom they were appointed, and such clerk shall notify the parties.

§1135. The party in whose favor the report shall have been made, shall, within ten days after being notified by the clerk, move the court, or a judge at chambers, giving at least forty-eight hours notice of such motion to the opposite party, for judgment of confirmation, which the court or judge shall grant or refuse upon hearing the parties, or upon default of the opposite party to appear, after proper notice of such motion.

§1136. Either party may except to the decision of a judge at chambers upon the report of referees, file the grounds of his exception with the clerk of the court in arrest of judgment, and require such decision to be reported to the court upon the calendar of motions, for reconsideration. If confirmation be awarded or refused bya circuit court, either party may except and take an appeal to the Supreme Court, upon filing his exceptions with the clerk of the circuit court in arrest of judgment, within five days after the rendition of its decision.

TRIAL BY THE COURT.

§1137. The parties to a civil suit may, with the consent of the court, waive the right to a trial by jury, either by written consent, or by oral consent in open court entered on the minutes.

§1138. In such case the court shall hear and decide the cause, both as to the facts and the law, and its decision shall be rendered in writing. If the taking of an account be necessary to enable the court to complete its judgment, a reference may be ordered for that purpose.

§1139. Any party deeming himself aggrieved by the decision of a circuit court, on a question of law, in any such case, may appeal therefrom to the Supreme Court, upon filing written notice of such appeal with the clerk of the circuit court, within five days after the rendition of its decision.

SUBMITTING A CASE WITHOUT ACTION.

§1140. Parties to a question in difference, which might be the subject of a civil action in the Supreme Court, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to the Justice of the Supreme Court, either in term time or in vacation. But it must appear by affidavit, that the controversy is real, and the proceedings in good faith, to determine the rights of the parties.

§1141. The justices, or a majority of them, shall thereupon hear and determine the case, and render judgment thereon, in writing, as if an action were depending.

§1142. Judgment shall be entered in such case, as in ordinary civil actions. The case, the submission, and the written decision, shall constitute the record.

§1143. The judgment shall be final, and may be enforced in the same manner as if it had been rendered in an action.

UNITING SEVERAL CAUSES OF ACTION.

§1144. The plaintiff in a civil suit may unite several causes of action in the same complaint, when they all arise out of:

1. Contracts, express or implied; or,

2. Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; or,

3. Claims to recover specific personal property, with or without damages for withholding thereof; or,

4. Claims against a trustee, by virtue of a contract, or by operation of law; or,

5. Injuries to character; or,

6. Injuries to the person; or,

7. Injuries to property. But the causes of action so united shall all belong to one only of these classes, and shall affect all the parties to the action, and shall be separately stated.

8. Every holder of a banker’s cheque, promissory note, bill of exchange, or other negotiable security, may join as defendants in any action for the recovery of the amount secured by any such instrument all or any of the antecedent parties to the same, whether maker, drawer, acceptor, or endorser.

AMENDMENTS.

§1145. Whenever a plaintiff in any action shall have mistaken the form of action suited to his claim, the court, on motion, shall permit amendments to be made on such terms as it shall adjudge reasonable; and the court may, in furtherance of justice and on the like terms, allow any petition or other pleading to be amended in any matter of mere form, or by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.

SET-OFF AND TENDER.

§1146. It shall be competent to the defendant in any civil action to plead an offset of like kind and denomination, existing in the same right, between him and the plaintiff, or having made a legal tender of money in full payment of the plaintiffs demand, to please such tender, and bring the amount thereof into court in bar of further interest and costs, after such tender.

§1147. If the demand set off is founded on a bond or other contract having a penalty, no more shall be set off than the sum equitably due.

§1148. If there are several plaintiffs, the demand set off shall be due from them all jointly; if there are several defendants, the demand set off shall be due to them all jointly, except as is provided in the following section.

§1149. When the person with whom a contract is made, has a dormant partner, and a suit is brought on such contract, by or against such partners jointly, any debt, due to or from the person with whom such contract was made, may be set off in like manner, as if such dormant partner had not been joined in the suit.

§1150. When an action has been brought by one person in trust, or for the use of another, the defendant may set off any demand against the person for whose use or benefit the action is brought, in like manner as if that person were the plaintiff in the suit.

§1151. The plaintiff shall be entitled to every ground of defense against such set off, of which he might have availed himself, in an action brought against him on the same ground.

§1152. The statute limiting personal actions, if applicable to the set off, shall be applied in the same manner, as if an action thereon had been commenced at the time when the plaintiff’s action was commenced.

DEPOSIT IN COURT, &C.

§1153. When it is admitted, by the pleading or examination of a party, that he has in his possession, or under his control, any money, or other thing, capable of delivery, which, being the subject of the litigation, is help by him as trustee for another party, or which belongs, or is due, to another party, the court may order the same, upon motion, to be deposited in court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the court.

§1154. Whenever in exercise of its authority a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience, may make an order requiring the marshal, or any of his deputies to take the money or thing, and deposit or deliver it in conformity with the direction of the court.

TO PROVIDE FOR THE DEPOSIT OF CERTAIN MONEYS IN THE PUBLIC TREASURY.

Section 1. Whenever any money shall be paid into, or deposited in, any court of this Kingdom, to abide the ascertainment of the right to such money, or the determination or suit, the court shall have power, upon the application of any party interested, or without such application, to order such money to be deposited in the public treasure, subject to the further order of the court.

Section 2. Every administrator, guardian, receiver, or other fiduciary appointed by judicial authority, may be required by order of any court of justice having jurisdiction of the subject matter, about which such fiduciary is employed, upon the application of any party interested, or without such application, to deposit any money accruing in his hands in virtue of his trust, in the public treasury subject to the further order of some competent court or justice.

Section 3. The provisions of this Act shall not be held to affect the power vested by will in any executor or guardian.

JUDGMENT AND EXECUTION.

§1155. Judgment shall be entered by the clerk, without motion, immediately upon the rendition of a verdict, or of a judgment of the court in banco, or of a judge at chambers, and execution may issue thereon at any time thereafter, when called for, unless notice is given at the time of rendering the verdict, or judgment, of a motion for a new trial and the filing of a bill of exceptions and bond, as provided by statute, within ten days after the rendition of such verdict or judgment: provided, that execution may issue within ten days, even though such notice be given, when good and sufficient cause can be shown therefor. The provisions of this section shall not affect the right of appeal.

NEW TRIAL

§1156. Any party against whom a verdict or judgment is rendered, as set forth in the last preceding section, may, upon filing a sufficient bond of security, conditioned for the payment of all costs of motion in case he fail to sustain the same, and that he will not to the detriment of the plaintiff in the action, remove or otherwise dispose of any property he may have liable to execution on such judgment, and upon giving notice of said motion and the grounds thereof to the opposite party, move the court at any time within the ten days after rendition of verdict or judgment, for a new trial, for any cause for which by law a new trial may and ought to be granted. The filing of the bill of exceptions and bond shall operate as a stay of execution, until the motion is determined.

WRIT OF ERROR

§1157. Any party deeming himself aggrieved by the decision of a police justice, or of a circuit judge at chambers, or of any justice of the Supreme Court, or by the verdict of a jury in any civil suit, may at any time before the execution thereon is fully satisfied, within six months after the rendition of judgment, file with the clerk of the Supreme Court his reasons for deeming himself aggrieved, assigning the causes of error in such decision or verdict.

§1158. Such party may, upon service of copy of such assignment of errors, and tender of error bond of security, conditioned for the payment of costs in case he fail to sustain his application, and that he will not to the detriment of the adverse party, remove or otherwise dispose of any property he may have liable to execution on the judgment, and upon at least ten days notice to the adverse party or his counsel, apply to any justice of the Supreme Court, for a writ of error to be issued to the court below, or to the clerk of the Supreme Court, as the case may be, commanding such court or clerk to certify up the record and proceedings had in the cause, that the errors may be corrected.

§1159. Upon the return of the writ with the record sent up, the Supreme Court may grant an order to the adverse party to join in error on pain of reversal of the former judgment; and, after hearing the parties, or such f them as may attend for that purpose, shall thereupon give judgment, either affirming or reversing, or modifying the former judgment, or remanding the cause for a new trial.

§1160. Every writ of error shall operate as a stay of execution, before the actual sale of property and satisfaction of judgment, and no executive judicial officer shall, after notice, proceed to satisfy an execution the judgment in regard to which has been removed by writ of error: provided, that such stay shall not release property under actual levy at the time if the former judgment be affirmed by the Supreme Court.

MISCELLANEOUS PROVISONS.

§1161. The several courts of record may, from time to time, make such rules as they may deem necessary, for the guidance of their respective clerks in making up calendars of the causes, civil and criminal, coming on for trial in said courts.

§1162. Causes placed upon the calendar shall be taken up and disposed of in the order in which they stand, unless postponed by the court at the request of the plaintiff or the defendant.

§1163. When a cause is reached upon the calendar, the plaintiff shall be called by the clerk, and if the plaintiff be not present, nor represented by counsel who is present, or if he or his counsel being present, decline to answer when so called, he may be declared non-suit with costs. If, upon calling the plaintiff, he does not appear, and the defendant having joined issue does not appear, or answer when called, the court may order judgment by default to be entered against such defendant, and allow the plaintiff to proceed ex parte before the court or jury, and the verdict of the jury of decision of the court, shall be rendered on such ex parte showing, unless good cause appear to the court for postponing the case.

§1164. At the trial of every civil suit, the plaintiff shall have the right to open the case, and first to introduce his witnesses and vouchers, and he shall also have the right to sum up the entire evidence, and close the debate after the defendant has fully ceased. The defendant may cross-examine the plaintiff’s witnesses, and he shall have the right to introduce his witnesses of defense, when the plaintiff has rested his cause. The plaintiff may, in turn, cross-examine the defendant’s witnesses. When all the evidence has closed, the defendant shall sum up his defense to the court or jury: provided, that the Justices of the Supreme Court may, by standing rule, modify the application of the foregoing provisions, should it appear expedient to do so.

§1165. Whenever two or more actions are pending at one time between the same parties, and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated into one.

§1166. The time within which an act is to be done, as provided in any part of this chapter, shall be computed by excluding the first day, and including the last. If the last day be Sunday, it shall be excluded.

§1167. When a cause of action has arisen in any foreign country, and by the laws thereof an action thereon cannot there be maintained against a person, by reason of the lapse of time, an action thereon shall not be maintained against him in this Kingdom, except in favor of a domiciled resident thereof, who has held the cause of action from the time it accrued.

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