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Parties may appeal to the oath, of each, other, &c.
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102. The parties, plaintiff and defendant, shall in all ejectment and other cases be mutually at liberty to appeal each to the oath of the other, provided that a notice in writing be served on the party so intended to be examined at least three days previous to the commencement of the sessions; but the assistant barrister or judge on appeal may dispense with the examination of any party in any case in which he may think it expedient so to do; and if he shall deem it to be a case in which he ought not to dispense with the oath of such party, it shall be lawful for such assistant barrister or judge on appeal, in case of the non-attendance of any plaintiff, either to dismiss the process without prejudice, or to nil the same, or in case of the non-attendance of any defendant, and the plaintiff thereby failing to prove his case, to impose on such defendant a fine not exceeding five pounds, to be recovered by civil bill: Provided always, that in case a defendant shall by such notice require the attendance at the hearing of the civil bill of any plaintiff therein who shall reside out of the jurisdiction wherein such civil bill is to be heard, he shall at the time of the service of such notice pay or tender to such plaintiff his reasonable expences (the reasonableness thereof to be determined by the assistant barrister or judge upon appeal); and in the event of the defendant’s omitting so to do, such plaintiff so residing out of the jurisdiction shall be excused from attendance in compliance with such notice, and the cause shall proceed and be determined as if no such notice had been served; but in the event of such expences having been paid or tendered, and of the non-attendance of the plaintiff, or of his attendance and of the plaintiff’s case being dismissed, the sum paid to the plaintiff shall be added to the ordinary costs of such dismiss: Provided also, that it shall be lawful for the assistant barrister to examine on oath any party who shall be in court, although no notice may have been served upon such party.
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