atorn^U Cam Bt\\xixii library KEN7944.551920"'™"'""-"'"'^ ^mmmm'liS^m"'' '"'«* °f '"e Sup \.. \.. THE JUDICATURE ACT AND ( -^i^ RULES OF THE SUPREME COURT OF NOVA SCOTIA (chapter 32 OF THE ACTS OF 1919) CROWN RULES. RULES FOR APPEALS TO THE JUDICIAL COMMITTEE OP THE PRIVY COUNCIL. RULES OF THE SUPREME COURT OF NOVA SCOTIA MADE UNDER AND BY VIRTUE OF THE NOVA SCOTIA CONTROVERTED ELECTIONS ACT. RULES OF THE SUPREME COURT OF NOVA SCOTIA MADE UNDER AND BY VIRTUE OF THE DOMINION CONTROVERTED ELECTIONS ACT. RULES UNDER THE WINDING UP ACT (Canada). HALIFAX. NOVA SCOTIA: COMMISSrONER OF PUBLIC WORKS AND MINES, KINGS PRINTER 1920 COPYKIGHT : CaKADA. 1920. BY THE CaESWELL Co., LIMITED. OCT \^\ 1933 TABLE OF CONTENTS PAGE The Judicature Act 1-24 Rules of the Supreme Court 25-386 APPENDIX "A." Crown Rules 387-444 APPENDIX " B." Rules for appeals to the Judicial Committee of the Privy Council. 445-456 APPENDIX " C." Rules of the (Supreme Court of Nova Scotia under the Nova Scotia Controverted Elections Act 457-480 APPENDIX " D." Rules of the Supreme Court of Nova Scotia under the Dominion Controverted Elections Act 481-503 APPENDIX "E." Rules under the Winding-up Act (Canada) 505-514 ,-r „ I MacCallum Grant. MovA Scotia. ) GEORGE THE FIFTH, by the Grace of '--^•'^•J God of the United Kingdom of Great Feed. F. Mathers, Britain and Ireland and of the British Deputy Dominions beyond the Seas, King, Attorney-General . Defender of the Faith, Em.peror of India. To all to whom these presents shall come or Avhom the same may in any wise concern, Greeting : A PROCLAMATION. WHEEEAS in and by Section 55 of Chapter 32 of the Acts passed by the Legislature of Nova Scotia in the session thereof held in the year of Our Lord One Thousand Nine Hundred and Nineteen, and in the ninth and tenth years of Our Eeign, entitled "An Act to amend and consolidate the Judicature Act, the Rules of the Supreme Court and amend- ments thereof," it is enacted as follows: — 55. This Act shall come into force on, from and after and not before such day as the Governor in Council prders and declares by proclamation. And Whereas it is deemed expedient that the said Act should come into force on, from and after the first day of November in the year of Our Lord One Thousand Nine Hundred and Twenty; Now Know Ye that We by and with the ad^dce of Our Executive Council for Nova Scotia do by this Our Proclama- tion order and declare that the said Act shall come into force on, from and after the first day of November One Thousand Nine Hundred and Twenty, of which all persons concerned are to take notice and govern themselves accordingly. In Testimony whereof We have caused these Our Letters to be made patent and the Great Seal of Nova. Scotia to be hereunto affixed. Witness MacCallum Grant, Esquire, Lieu- tenant-Governor of Nova Scotia. At Our Government House in Our City of Halifax this twenty-fourth day of Sep- tember, in the year of Our Lord One Thousand Nine Hundred and Twenty, and in the Twelfth year of Our Reign. By Command, G. H. MURRAY, Provincial Secretary. Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016954806 Statutes of Nova Scotia, 1919 CHAPTER 32 An Act to Amend and Consolidate the Judicature Act and the Rules of the Supreme Court and Amendments thereof. (Passed the 17th day of May, A.D. 1919.) Be it enacted hy the Governor, Council, and Assembly, as follows : 1. This Act may be cited as " The Judicature short tuie Act." E. S., c. 155. s. 1. INTERPEETATION. 2. In this Act, and in the Rules of the Supreme interpreta- Court, unless the context otherwise requires, the ''"^ °' *°""^' following expressions shall have or include the meanings in this section mentioned, that is to say : (1.) "Rules " inqludes " Rules of Court," and both include Forms. (2.) "Cause " includes any action, suit, or other original proceeding between a plaintiff and a defendant. (3.) " Suit " includes action. (4.) " Action " means a civil proceeding com- menced by writ, or in such other manner as is pre- scribed by Rules of Court; but does not include a criminal proceeding by the Crown. (5.) "Plaintiff " includes every person asking any relief (otherwise than by way of counterclaim as a defendant) against any other person by any form of proceeding, whether the same is taken by action, suit, petition, motion, summons, or other- wise. (6.) " Petitioner " includes every person mak- ing any application to the Court, either by petition, motion, or summons, otherwise than as against any defendant. S.N.S. 1 li JUDICATUEE ACT. E.S., c. 32. (7.) "Defendant" includes every person served with any writ of summons or process, or served with notice of, or entitled to attend, any pro- ceedings. (8.) " Party " includes every person served with notice of, or attending, any proceeding, although not named on the record ; and includes a body cor- porate or politic. (9.) " Matter " includes every proceeding in the C'ourt, not in a cause. (10.) " Pleading " includes every petition or summons, and also includes the statement in writing of the claim or demand of any plaintiff, and of the defence or the counterclaim of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant, and of the defendant 's reply to such reply. (11.) " Judgment " includes decree. (12.) " Order " includes rule. (13.) " Oath " includes solemn affirmation and statutory declaration. (14.) " Existing " means existing at the time of this Act coming into force. (15.) " This Act " means the portion of this Act exclusive of the rules. E. S., c. 155, s. 2'. CONSTITUTION OF THE SUPEEME COURT. Constitution 3. The Supremc Court of Nova Scotia as con- court.^'^™° stituted before this Act, a Court of common law and equity, and po;ssessing original and appellate juris- diction in civil and in criminal cases, shall continue under the aforesaid name to constitute one Supreme Court of Judicature for Nova Scotia. E. S., c. 155, s. 3. SEAL. Seal. 4. The Grovernor-in-Council may from time to time determine and declare the seal to be used in the Supreme Court, and by which its proceedings shall be certified and authenticated; and until an- other seal for the Supreme Court is established, the existing seal in use in the Supreme Court may be used therefor. E. S., c. 155, s. 4. JUDICATURE ACT. JUDGES. E.S.,C.32. 5. The Bench of the Supreme Court shall be Bencii of oomposed of a Chief Justice and six other Judges, cXf^^ including the Judge in Equity. E. S., c. 155, s. 5. 6. No person shall be appointed a Judge of the J^ff.^'^ ^j^*"- Snpreme Court unless he has been a resident bar- rister of the Province for ten years, and has been practising as such for five years before such ap- pointment, or has held office as a county court judge in the Province. R. S., c. 155, s. 6. 7. The Judges of the Supreme Court shall hold fn^/^o'^'^^"**- no other offices under Government, except those of the local Judge in Admiralty of the Exchequer Court and the Judge Ordinary of the Court for Divorce and Matrimonial Causes. E. S., c. 155, s. 7. 8. The persons hereafter appointed to fill the J^dge^.^^ap-^^ places of the Chief Justice, Judge in Equity and other Judges of the Supreme Court, and their suc- cessors respectively, are to be appointed by the authority mentioned in the British North America Act, and with the same title as heretofore. E. S., c. 155, s. 8. - 9. Save as in this Act is otherwise expressly Judges to provided, all the Judges of the Supreme Court men- po^ers!""'^ tioned, and their successors, shall have in all re- spects equal power, authority and jurisdiction. E. S., c. 155, s. 9. 10. The Chief Justice for the time being of the ^Me' J^s^^ Supreme Court shall be entitled to precedence over ence oi all the other Judges thereof. E. S., c. 155, s. 10. 11. The Judges of the Supreme Court and their J»dg^s^pje- respective successors in office shall be entitled to ° * ^ have, and shall have, precedence next after the Chief Justice, according to seniority of appointment. R. S., c. 155, c. 11. OATH OF JUSTICES. 12. The oath to be taken by the Judges to be ^^^^1'^^°''*'^ hereafter appointed shall be the following: — " I do soleranly and sincerely promise and swear, that I will duly and faithfully, and to the best of my skill JUDICATUEE ACT. E.S., c. 32. and knowledge, execute the powers and trusts re- posed in me as . So help me Grod." R. S. c. 155, s, 12. 13. The oath shall be administered to the Chief Justice and the other Judges by the Lieutenant- Governor, or such person as is appointed by him to administer the same; or by any person who is ap- pointed by the Governor-General to administer oaths of office. E. S., c. 155, s. 13. Judges, oath by -whom ad ministered. Powers of Supreme Court. .TURISDICTION OF THE STJPKBME COXJET. Supreme 14. (1.) The Suprcmc Court of Nova Scotia diction of. shall coutinue to be a court of record, and, subject to the provisions of this Act, shall continue to have and exercise the jurisdiction which at the time of the coming into force of this Act, was vested in, or capable of being exercised by such Court. Jurisdiction (2.) The Suprcme Court shall also have juris- u"n(ier'°euiity dlctiou lu actious to Tccover a debt or liquidated demand in money which is under eighty dollars and not less than twenty dollars, and may try and dispose of the same as other actions. R. S., c. 155, s. 14. 15. The Supreme Court shall have within this Province the same powers as were formerly exer- cised by His Majesty's Courts of King's Bench, Common Pleas, Exchequer and Chancery, in Eng- land ; and also such and the same powers as were on the first day of October, A. D. 1884, exercised in Eng- land by Her Majesty's Court of Appeal and by Her Majesty's High Court of Justice, excepting those which were exercised solely by the Probate, Divorce, and Admiralty Division in respect to causes and matters within its exclusive cognizance, and except- ing those powers which were specially conferred by statutes relating to bankruptcy. R. S., c. 155, s. 15. 16. The jurisdiction of the Supreme Court shall include (subject to the exceptions hereinafter con- tained) the jurisdiction which, immediately preced- ing the coming into force of this Act, was vested in or capable of being exercised by all or any one or more of the Judges of the said Supreme Court of Nova Scotia, sitting in Court or Chambers, or else- where, when acting as Judges in pursuance of any Jurisdiction to include former juris- diction of Court and Judge- JDDICATUKE ACT. 5 statute or law, and all powers given to any such E.S., c. 32. Court, or to any such Judges, by any statute or law, and also all ministerial powers, duties and authori- ties incident to any and every part of the jurisdic- tion aforesaid, as well civil as criminal. R. S., c. 155, s. 16. IV. The jurisdiction of the Supreme Court shall f^^^^. f^ f be exercised in the manner provided in this Act, or iuri^diotfon. by Eules of the Supreme Court ; and where no spe- cial provisions are contained in this Act or in any such Rules of Court with reference thereto, it shall be exercised, as nearlj^ as may be, in the same man- ner as the same might have been exercised prior to the first day of October, A.D. 1884. E. S., c. 155, s. 17. RULES or LAW. 18. In every civil cause or matter commenced ^aw^ and in the Supreme Court, law and equity shall be ad- concurrently ministered therein, according to the Rules follow- ing :— (1.) If any plaintiff or petitioner claims to be '^i^jtabie entitled to any equitable estate or right, or to relief "s^^^ "laim- upon any equitable ground against any deed, instru- ti«e. ment or contract, or against any right, title, or claim whatsoever, asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right which heretofore could only have been given by a Court of Equity, the Supreme Court and every Judge thereof shall give to such plaintiff or petitioner such and the same re- lief as ought to have been given by the Court of the Equity Judge or the High Court of Chancery in England when the same existed, in a suit or proceed- ings for the same or the like purpose properly insti- tuted before the first day of October, A. D. 1884. (2.) If any defendant claims to be entitled to any Eqnitabie equitable estate or right, or to relief upon any equi- ?fghts ciLm- table ground against any deed, instrument or con- lan?.^ '^^'^"" tract, or against any right, title or claim, asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said Supreme Court and every Judge b JUDICATUKB ACT. E.S., c. 33. thereof shall give to every equitable estate, right or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect by way of defence against the claim of such plaintiff or peti- tioner as the Court of the Equity Judge or said Court of Chancery ought to have given, if the same or the like matters had beon relied on by way of defence in any suit or proceeding instituted in either of these Courts, for the same or the like purpose, before the first day of October, A.D. 1884. Counter- (3.) The Supreme Court and every Judge there- tMid parties, of shall also have power to grant to any defendant in respect to any equitable estate or right, or other matter of equity, and also in respect to any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff or petitioner as such defendant has properly claimed by his plead- ing, and as the said Court or any Judge thereof might grant in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who has been duly served with notice in writing of such claim, pursuant to any rule of Court or any order of the Court, as might pro- perly be granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect to his defence against such claim as if he had been duly sued in the ordinary way by such defendant. Enj't^abie ^^^ (4,) The Supreme Court and every Judge there- ing incident- of shall recognlze and take notice of all equitable estates, titles and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court of the Equity Judge, or the said Court of Chancery, would have recognized, and taken notice of the same, in any suit or proceeding duly instituted therein before the first day of October, A.D. 1884. JUDICATURE ACT. (5.) No cause or proceeding at any time pending E.S., c. 33. in the Supreme Court shall be restrained by prohi- , ...... , ., . . . , . , n '' . Prohibition, bition or mjunetion, but every matter of equity on iniunotion, which an injunction against the prosecution of any sfa^instead such cause or proceeding might have been obtained prior to the first day of October, A. D. 1884, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto. Provided always that nothing in this Act contained shall dis- able the Supreme Court or any Judge thereof from directing a stay of proceedings in any cause or mat- ter pending before the said Court or Judge if it or he thinks fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, prior to the first day of October, A. D. 1884, to apply to the Court or a Judge to restrain the prosecution thereof, or who is entitled to enforce by attachment or otherwise any judgment, decree, rule or order, contrary to which all or any part of the proceedings in such cause or matter have been taken, may apply to the Supreme Court or any Judge thereof by motion in a summary way for a stay of proceedings in such cause or matter, either gener- ally, or so far as is necessary for the purposes of justice; and the Court or Judge shall thereupon make such order as shall be just. (6.) Subject to the aforesaid provisions for giv Legai, cus- ing effect to equitable rights and other matters of BtXtLy" equity in manner aforesaid, and to the other express recognized. " provisions of this Act, the Supreme Court and every Judge thereof shall recognize and give effect to all legal claims and demands, and all estates, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to prior to the first day of October, A.D. 1884, by the Supreme Court either at law or in equity. (7). The Supreme Court in the exercise of the Finai deter- jurisdiction vested in it in every cause or matter Sfmatfers i.. pending before it, shall have power to grant, and ^'^t'-o^^^^y- shall grant either absolutely or on .such reasonable terms and conditions as to such court seems just, all such remedies whatsoever as any of the parties JUDICATUEE ACl. E.S.,c. 32 statute of limitationfj inapplicable to express trusts. Equitable waste. Merger. Suits for pos- session of land by- mortgagor. Assignment of debts and choses in action. thereto appear to be entitled to in respect to any and every legal or equitable claim properly brought for- ward by them respectively in such cause or matter, so that as far as possible all matters so in contro- versy between the said parties respectively may be completely and finally determined, and all multipli- city of legal proceedings concerning any of such matters avoided. E. S., c. 155, s. 18. 19. (1.) No claim of a cestui que trust against his trustee, for any property held on any express trust, or in respect of any breach of such trust, sliall be held to be barred by any statute of limitation. (2). An estate for life without impeachment of waste shall not confer or be deemed to have con- ferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right ex- pressly appears by the instrument creating such estate. (3. ) There shall not be any merger by operation of law only of any estate the beneficial interest in which would not prior to the first day of October, A. D. 1884, have been deemed merged or extinguished in equity. (4.) A mortgagor entitled for the time being to the possession or the receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof has been given by the mort- gagee, may sue for such possession, or for the re- covery of such rents or profits, or to prevent injury or recover damages in respect to any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person, and in that case he may sue jointly with such other person. (5.) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall JUDICATUBE ACT. 9 be and be deemed to have been effectual in law (sub- E.S., c. 32. ject to all equities which would have been entitled to priority over the right of the assignee if this sub- section had not been enacted), to pass and transfer the legal right to such debt or ohose in action from the date of such notice, and all legal and other reme- dies for the same and the power to give a good dis- charge for the same, without the concurrence of the assignor. (6.) In case of an assignment of a debt or other Dispated as- ohose in action, if the debtor, trustee, or other person S^Tnl "' liable in respect to such debt or chose in action, has a^Tn, ran- had notice that such assignment is disputed by the ails^to fntS- assignor or any one claiming under him, or of any p'^=''^- other opposing or conflicting claims to such debt or chose in action, he may if he thinks fit call upon the several persons making claim thereto to interplead concerning the same, or he may if he thinks fit pay the same into the Supreme Court, upon obtaining a Judge's order therefor, to abide the determination of the Supreme Court in respect thereto. (7.) Every person who, being surety for the sureties to debt or duty of another, or being liable with another melTt o"/ dfSt for any debt or duty, pays such debt or performs di'e^a up"n such duty, shall be entitled to have assigned to him p»y™™*- or to a trustee for him, every judgment, specialty, or other security which is held by the creditor in respect to such debt or duty, whether such judg- ment, specialty, or other security, is or is not deemed at law to be satisfied by the payment of the debt or performance of the duty; and such person shall be entitled ito stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a pro- per indemnity, to use the name, of the creditor in any action or other proceeding in order to obtain from the principal debtor, or any co-surety, co-con- tractor, or co-debtor, as the case may be, indemnifi- cation for the advances made and the loss sustained by the person who has so paid such debt or per- formed such duty; and such payment or perform- ance so made by such surety shall not be a defence to such action or other proceeding by him: Pro- vided always, that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other 10 JUDICATUEE ACT. R.S.,e. 32. stipulations Qot of the essence of the contract. Mandamus, injunctions, and receivers. Custody of infants. Conflict be- tween law and equity. co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last men- tioned person is justly liable. (8.) Stipulations in contracts, as to time or otherwise, which would not before the first day of October, A.D. 1884', have been deemed to be, or to have become, of the essence of such contracts in a Court of Equity, shall receive in the Supreme Court the same construction and effect as they would pre- viously thereto have received in equity. (9.) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court, in all cases in which it appears to the Court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and con- ditions as the Court thinks just ; and if an injunction is asked, either before or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted if the Court thinks fit, whether the per- son against whom such injunction is sought is, or is not, in possession under any claim of title or other- wise, or (if out of possession) does or does not claim a right to do the act sought to be restrained, under any color of title; and whether the estates claimed by both or by either of the parties are legal or equitable. (10.) In questions relating to the custody and education of infants, the rules of equity shall pre- vail. (11.) Generally, in all matters not hereinbefore particularly mentioned, in which there is any con- flict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail. E. S., c. 155, s. 19. SITTINGS AND mSTRIBUTION OF BUSINESS. Abolition of terms. 20. The legal year shall not be divided into terms SO far as relates to the administration of justice; and there shall not be terms applicable to any sitting JUDICATURE ACT. 11 or business of the Supreme Court, but in all cases in E.S.,c. 32. ■which, under the law existing prior to the first day of October, A.D. 1684, the terms into which the legal year was divided were used as a measure for deter- mining the time at or within which any act was re- quired to be done, the same may continue to be re- ferred to for the same or the like purpose, unless and until provision is otherwise made by any lawful authority. R. S., c. 155, s. 20. 21. Subject to rules of court, the Supreme Court court may and the Judges thereof, shall have power to sit and time. act at any time and at any place, for the transaction of any part of the business of such Court or of such Judge, or for the discharge of any duty which by any statute or otherwise, is required to be dis- charged. R. S., c. 155, s. 21. 22. All causes and matters in the Supreme Court Distribution shall be distributed among the several Judges there- °' ^'^^™^^^- of in such manner as is from time to time determined by any rules of court, or orders of transfer, to be made under the authority of this Act. Every docu- ment by which any cause or matter is commenced in the Supreme Court shall be marked with the name of the said court. It shall not be necessary in order to confer jurisdiction on any Judge that any rule of court or order of transfer be made. R. S., c. 155, s. 22. 23. All interlocutory and other steps and pro- interlocutory ceedings in or before the Supreme Court, in any tteps" itln cause or matter subsequent to the commencement "^'*^ ^^ ''"'^^■ thereof, shall be dealt with and disposed of under and by virtue of the Rules of Court in that behalf. R. S., c. 155, s. 2'3. 24. A Judge for the trial of an election petition Mai of dec- • • n / / rm -fcT o( J ■ /^ X ^10^ petitions under the provisions of " The Nova Scotia Contro- verted Elections Act, ' ' shall be selected by the judges of the Supreme Court in such manner as is pro- vided by any rules of court to be made for that pur- pose, subject to the approval of the Grovernor-in- Council. R. S., c. 155, s. 24. 25. (1.) Every action and proceeding in the Business as Supreme Court, and all business arising out oi the tUMe to^be same, except as hereinafter provided, shall so far as by ^a 'single ' judge. 12 JUDICATUEE ACT. E.S., c. 33. is practicable and convenient, be heard, determined and disposed of before a single Judge. (2.) A judge sitting elsewhere than in the Su- preme Court 111 banco shall decide all questions coming properly before him, but may reserve any case, or any point in any case, for the consideration of the Supreme Court in banco. (3.) In all such cases any Judge sitting in Court shall be deemed to constitute a court. E. S., c. 155, s. 25. Judge to de- cide but may reserve a case. Judge to constitute court. SITTINGS AT HALIFAX. at'^Hliifix^^ 26. (1.) There shall he two regular sittings of the Court in Halifax, in each year, for the trial of civil causes, one to commence on the third Tuesday of April, and the other to commence on the fourth Tuesday of October. (2.) Each of such sittings shall, unless all the causes for trial are sooner disposed of, continue for four weeks. (3.) During such sittings trials may be proceeded with simultaneously in the several court rooms, and the docket may be divided, or the causes called, in such way as the Court directs, but so as to ensure, as far as possible, each cause being tried according to its seniority. (4.) No more than ten causes shall be called for trial in one court room in one day. E. S., c. 155, s. 26. 27. There shall be two sittings of the Court for the disposal of criminal cases, one on the third Tues- day of March, and the other on the tirst Tuesday of October, in each year, to be continued until all the business is disposed of. Such sittings shall be at- tended by the Grrand Jury, and all other persons whose duty it is to attend the sittings of the Court in connection witli the criminal business. E. S., c. 155, s. 27. Criminal tings at Halifax. Circuits, division of. CIRCUITS. 28. There shall be as heretofore five circuits in the Province : The Midland, the Southern, the West- ern, the Eastern, and the Cape Breton Circuit. JUDICATUEE ACT. 13 The Midland Circuit shall include the Counties E.S., c. 32. of Hants, Colchester, and Cumberland. The Southern Circuit shall include the Counties of Lunenburg, Queens, Shelburne, and Yarmouth. The Western Circuit shall include the Counties of Digby, Annapolis, and Kings. The Eastern Circuit shall include the Counties of Pictou, Antigonish, and Gruysborough. The Cape Breton Circuit shall include the Coun- ties of Richmond, Inverness, Victoria, and Cape Breton. R. S., c. 155, s. 28. 29. The Supreme Court shall sit in the several and™iIo'e*oT'' counties for the trial of causes and issues, whether they are legal or equitable, and whether they are to be heard and determined with or without a jury, as follows, that is to say : — MIDLAND CIRCUIT. At Windsor — On the last Tuesday of May, and on the Tuesday before the last Tuesday of Sep- tember. COLCHESTER. At Truro — On the first Tuesday of June, and on the first Tuesday of October. CUMBEELAND. At Amherst — On the third Tuesday of June, and the second Tuesday of October. SOTJTHEEN CIRCUIT. LUNENBURG. At Lunenburg — On the last Tuesday of May. At Bridgewater — On the second Tuesday of Oc- tober. QUEENS. At Liverpool — On the second Tuesday of June, and on the first Tuesday of October. SHELBURNE. At Barrington — On the third Tuesday of June. 14 JUDIOATDKE ACT. E.S., c. 32. At Shelburne — On the last Tuesday of Septem- ber. YARMOUTH. At Yarmouth — On the fourth Tuesday of June. At Tusket Village — On the Tuesday before the last Tuesday of September. WESTERN CIRCUIT. At Dighy — On the second Tuesday of June. At Glare — On the last Tuesday of September. ANNAPOLIS. At Bridgetown — On the third Tuesday of June. At Annapolis — On the first Tuesday of October. KINGS. At Kentville — On the first Tuesday of June, and on the second Tuesday of October. EASTERN CIRCUIT. GUYSBOROUGH. At Guyshorough-^On the last Tuesday of May, and the first Tuesday of October. ANTIGONISH. At Antigonish — On the first Tuesday of June, and second Tuesday of October. PICTOU. At Pict-ou — On the second Tuesday of June, and the third Tuesday of October. CAPE BRETON CIRCUIT. RICHMOND. At Arichat — On the third Tuesday of May and the fourth Tuesday of September. INVERNESS. At Port Hood — On the second Tuesday of May, and the third Tuesday of September. JUDICATURE ACT. 15 VICTORIA. E.S.,c. 32. At Baddeck — On the last Tuesday of May and the first Tuesday of October. CAPE BRETON. At Sydney — On the first Tuesday in June, on the second Tuesday of October, on the last Tuesday of January, and on the second Tuesday of April, of which terms or sittings two, namely, those opening on the second Tuesday of April and the second Tues- day of October, shall be jury terms or sittings. These four sittings of the Supreme Court at Sydney shall be for the trial of civil causes only. No jury shall be summoned for the January or June sittings unless ordered or required by the Court or Judge. At Sydney there shall also be three regular sittings of the Court in each year for the trial or dis- posal of criminal causes — one beginning on the last Tuesday in June, one on the last Tuesday of October, and one on the third Tuesday of February. These three sittings shall be attended by the grand jury and by all the officers and other persons whose duty it usually is to attend the sittings of the Supreme Court in connection with criminal business. E.S., c. 155, s. 29; 1903-4, c. 16. 30. (1.) Each sittings of the Supreme Court in Length of the next preceding section mentioned shall, unless lach'^of"\iicii the docket of causes for trial is sooner disposed of, ""'''*^- continue, (a.) until the Saturday before the day thereby appointed for opening the sittings at the next place on the same circuit, and (b.) if the sittings is held at the last place on the circuit, until the second Saturday after the first day of such sittings. (2.) Provided that if the docket of causes for trial at the sittings at Sydney has not been disposed of within such period, the sittings at such place shall, unless the docket of causes for trial is sooner disposed of, continue for three weeks, and the jury in attendance at such sittings at such place shall re- main in attendance from day to day for the trial of ]6 JUDIOATUEE ACT. E 8 c. 32. any jury causes, unless a new .jury is summoned. ' R. S., c. 155, s. 30. MIDSUMMER CIECUITS. Midsummer 31. Where the docket of causes for trial at any aifd piaie oT Spring s.ittings has not ibeen disposed of, there shall be a midsummer sittings of the Court for the trial of causes remaining on such docket, to be held as follows, that is to say : — MIDLAND CIRCUIT. At Windsor, on the third Tuesday of July; at Truro, on the third Tuesday of August. SOUTHERN CIRCUIT. At Shelhurne, on the fourth Tuesday of July; at Liverpool, on the third Tuesday of August; at Lunenburg, on the second Tuesday of September. WESTERN CIRCUIT. At Digby, on the third Tuesday of July; at Kent- ville, on the third Tuesday of August. EASTERN CIRCUIT. At AntigonisJi, on the third Tuesday of July; at GuyshorougJi, on the third Tuesday of August. CAPE BRETON CIRCUIT. At Port Hood,, on the third Tuesday of July; at Baddeck, on the second Tuesday of August ; at Syd- ney, on the third Tuesday of August. R. S., c. 155, s.31. Midsummer 32. The midsumme-T sittings at each place shall i;e'id''byju°dge be held by the judge who presided at the spring sit- drcu'it. """"^ tings upon that circuit, except in case of his illness or other cause, when another judge may hold such sit- tings. R. S;, c. 155, s. 32. Midsummer 33. It sliall uot be necessary to give notice of circuits, no , . i , ■ i i j r* i notice of that trial or to enter causes upon a docket tor any such necessary. midsummer sittings, but the docket of the spring sit- tings shall be used. E. S., c. 155, s. 33. JUDICATURE ACT. 17 34. T^ach of the midsummer sittings of the court E.S.,c. 32. at any place shall, unless the causes for trial are .^^,,^ „, soo-.er disposed of, continue, ^itungs mid- (a.) until the day but one before the day ap- """"' pointed for the opening of the sittings at the nest place on the same circuit, and {b.} if the sittings is held at the last place on the circuit, then for the period of four weeks. R. S. C, 155, s. 34. SPECIAL SITTINGS. 35. (1.) Whenever it appears necessary for the special sit- disposal of actions at issue in any county, the court o"der oVcourt or a judge may either by consent of parties or other- " '"'*^®' wise, order a special sittings of the court to be held at any time in such county for the trial and disposal of such actions. (2.) The judge presiding at such sittings may dispose of motions and all other business which may be disposed of by a judge sitting in court or in ' chambers. (3.) The court or a judge may order a special docket to be prepared for any such sittings. R. S., c. 155, s. 35. CONDUCT OF SITTINGS. 36. (1.) If no judge of the Supreme Court Judge of can attend a sittings of the Supreme Court for the mart^e r°e"' trial of causes, with or without a jury, or a part of on^ci^cuu.^" such sittings, a judge of any County Court may if requested by the judge assigned to hold such sit- tings, or by the judges, preside at such sittings or at such part thereof. (2.) The court so presided over by such judge of a County Court shall have the same power, authority and jurisdiction, civil and criminal, as if presided over by a judge of the Supreme Court. (3.) Such judge of the County Court while so presiding and with respect to the causes tried before him-, shall possess, exercise and enjoy all the powers, authorities, duties and privileges of a judge of the Supreme Court. 18 JUDICATURE ACT. E.S.,c. 32. Judge in equity ex- empted from going circuit on transfer of equity busi- ness. Judge may extend fsit- tings. Adjournment of court by Sheriff in ab.sence of Judge. Separate list of jury and non-jury actions. (4.) No judge of any County Court shall preside at any sittings of the Supreme Court within the dis- trict for which he is judge of the County Court. E. S., c. 155, s. 36. 37. If the business which formerly was trans- acted on the Equity side of the Supreme Court is transferred to any one of the judges, he shall not be required to attend the circuits, unless the illness of a judge, or other sufficient cause, renders it necessary for him to do so. E. S., c. 155, s. 37. 38. The presiding judge may, from time to time in his discretion, extend and adjourn any sittings for such time as he deems necessary for the disposal of the causes on the docket. R. S., c. 155, s. 38. 39. If a judge is prevented from arriving at the place appointed for holding a sittings, on the day fixed for holding the same, the sheriff shall give pub- lic notice that the court will sit on the day following, and shall give such notice from day to day for three successive days, unless a judge in the meantime arrives. E. S., c. 155, s. 39. 40. Separate lists shall be made of the jury and non-jury trials for each sittings, and the jury trials shall be first disposed of, unless the judge for any special reason, directs otherwise. E. S., c. 155, s. 40. Party to prove facts sufficient in point of law Modo of trial with or with- out a jury. Actions tried with a jury, jury notice and order for jury. TRIAL, AND PROCEDUEE. 41. At the trial of any action no party shall be entitled to judgment on the ground of his pleading being true, if the facts proved are not sufficient in point of law to entitle him to judgment. E. S., c. 155, s. 41. 42. Subject to rules of court, the trials and pro- cedure in all cases, whether of a legal or equitable nature, shall be as nearly as possible the same, and the following provisions shall apply : — (1.) In civil actions, unless the parties in person or by their counsel or solicitors consent to a trial of the issues of fact or the assessment or inquiry of damages without a jury, the issues of fact shall be tried and the damages assessed or inquired of by a judge with a jury in the following cases, that is to say— JUDICATURE ACT. 19 (a.) Where the action is an action for libel, E.S.,c. 32. slander, criminal conversation, seduction, malicious arrest, malicious prosecution or false imprisonment. (fc.) Where either of the parties in an action requires the issues of fact to he tried, or the damages to be assessed or inquired of with a jury and files with the prothono- tary and leaves with the other party or his solicitor a notice to that effect at least twenty days before the first day of the sittings at which the issues are to be tried or the damages assessed or inquired of : Provided that upon an application to the court or to a judge made before the trial or by the direction of the judge at the trial, such issues may be tried or such damages assessed or inquired of by a judge without a jury, notwithstanding such notice. (c.) Where the judge at the trial in his discre- tion directs that the issues of fact shall be tried or the damages assessed or in- quired of with a jury. (2.) In all other cases the issues of fact or the Actions heia assessment or inquiry of damages in civil actions J^°^^ * shall he tried, heard and determined and judgment given by a judge without a jury. (3.) If in any action both legal and equitable Legal and issues are raised, they shall be heard and determined ?s*^'es''when at the same time, unless the court or a judge, or ihe ge«fer!°' judg i a L the trial, otherwise directs, or unless under the foregoing provisions of this section either of the parties requires that the legal issues of fact be tried with a jury. (4.) Upon the trial of any action the presiding Reserving judge may, of his own motion, or by consent of par- iSftf^daysr ties, reserve judgment until a future day, not later tJiii^raing than sixty days from the day of reserving judgment, me^nt,' notice and his judgment whenever given shall be considered ^jj%^'^^^' as if given at the time of the trial. Such Judgment Prothonot*ry shall be filed with the prothonotary of the court for the county in which the action was tried, who shall immediately give notice in writing to the parties to 20 JUDICATURE ACT. E.S., c. 33. the cause or their respective solicitors that such judgment has been filed, and each of the parties shall liave and exercise, within twenty days from the ser- vice ol such notice, all such rights as he possessed or might have exercised if judgment had been given on the trial of the action. (5.) Upon any trial with a jury of any action except an action for libel, the jury shall, if so dir- ected by the judge, give a special verdict, and if not so directed may give either a general or a special verdict. Special ver- dict, when directed. Jury to answer ques- tions wlien directed. Judgment on answers of jury. Refusal to submit ques- tions, new trial for. Assessors or-, dered by judge. (6.) Questions to jury by judge and counsel. (6.) (a). Upon a trial with a jury of any action except an action for libel, slander, crimi- nal conversation, seduction, malicious arrest, malicious prosecution or false im- prisonment, the judge instead of directing the jury to give either a general or a spe- cial verdict may direct the jury to answer any questions of fact raised by the issues. Such questions may be stated to them by the judge, and counsel may require the judges to direct the jury to answer any other question raised by the issues or necessary to be answered by the jury in order to obtain a complete determination of all matters involved in the action. (c.) id.) The jury shall answer such questions, and shall not give any verdict, and the judge shall give a judgment in the action not inconsistent with the answers of the jury to such questions. If the judge refuses to direct the jury to answer any question which counsel re- quires him to submit to them, such refusal may be used as a ground for a new trial. R. S., c. 155, s. 42; 1903-4, c. 17. 43. — (1.) Subject to any rules of court, the court or judge may in any cause or matter in which it is deemed expedient by such court or judge so to do, call in the aid of one or more assessors specially qualified, and try and hear such cause or matter, wholly or in part, with the assistance of such asses- sor or assessors. JUDICATUEE ACT. 21 (2.) The remuneration, if any, to .be paid to such R.S., c. 32. assessors shall be determined by the court or a ' ^^^^^^^^ — judge. R. S., C. 155, S. 43. Uon^'oraB- A ji n 1 n • i Bessors. 44. bave as by this Act or by any rules of ™ ,.,. ., • , *' .TT n^ Forms and court It .IS otherwise provided, all forms and methods g'? "r^^'^J^oi (as nearly as may be) of procedure, which, immedi- cature A^it' ately preceding the first day of October, A.D. 1884, continued in were in force in the Supreme Court, under or by "^'^^''^ '=^^^=- virtue of any law, general order or rule whatsoever, and which are not inconsistent with this Act or with any rules of court, may continue to be used and prac- tised in the Supreme Court in such and the like cases and for such and the like purposes as those to which they would have been applicable in the Supreme Court prior to the said date. R, S., c. 155, s. 44. RULES OF COURT. 45. The judges of the Supreme Court or a ma- Rnies of jority of them may at a meeting held for that pur- ^ mlk^?"^" pose annul, or alter and amend, any rule or rules of court for the time being in force, and make any fur- ther or additional rules of court for carrying this Act into effect, and in particular for all or any of the following matters, namely : — (1.) For regulating the sittings of the court and sittings. of the judges of the court in chambers. (2'.) For regulating the pleading, practice and pieadings procedure in the Court, and the rules of law Which |°* »««♦««. are to prevail in relation to remedies in causes and proceedings therein. (3.) For the providing of juries either common juries, or special for the trial of jury causes either at the regular or any special sittings of the court. (4.) For the hearing of appeals from county Appeals, courts, or a judge of a county court, from courts of probate or from any other courts or officers, and for the hearing of motions and of appeals from any of the judges of the Supreme Court, sitting for the trial of causes, or the transaction of any other busi- ness in Halifax or on circuit, and for regulating the selection of the judges of the Supreme Court, who shall hear such appeals, or motions, and for regulat- ing all matters relating to the practice of such hear- ings. 22 JUDICATURE ACT. E.S.,C. 33, Payment in- to court. Generally. Rules of Court re- vised, brought into force. Rules of Court to be published in Gazette. Power of judges to make rules before Judi- cature Act and rule, continued. Rules of Court to modify stat- utes relating to practice in certain cases. Rules of Court to be submitted to Legisla- ture. (5.) For regulating the payment, transfer or deposit, into, or in, or out of, any court, of any money or property, or the dealing therewith. (6.) Generally for regulating any matter relat- ing to the practice and procedure of the Supreme Court, or to the duties of the officers thereof, or to the costs of proceedings therein, and every other matter deemed expedient for the better attaining the ends of justice, advancing the remedies of suit- ors, and carrying into effect the provisions of this Act, and of all other statutes now or hereafter in force respecting the said Court. R. S., c. 155, s. 45. 46. The Rules of the Supreme Court in the sche- dule to this Act shall come into force at the time of the coming into force of this Act. R. S., c. 155. s. 46. 47. All rules of court made in pursuance of this Act shall, from and after the publication thereof in the Royal Gazette, regulate all matters to which they extend, until annulled or altered in pursuance of this Act. R. S., c. 155, s. 47. 48. Subject to any rules of court which are made under the provisions of this Act the judges of the Supreme Court shall continue to have and exercise all the powers which immediately preceding the coming into force of this Act they possessed or exercised as to making rules of court for the regula- tion of the practice of the Court. R. S., c. 155, s. 48. 49. Where any provisions in respect to the Su- preme Court are contained in any statute, rules of court may be made for modifying such provisions to any extent that is deemed necessary for adapting the same to the practice and procedure of the Supreme Court, unless, in the case of any Act passed after the coming into force of this Act, this power is expressly excluded with respect to such Act or any provision thereof. R. S., c. 155, s. 49. 50. All rules of court made in pursuance of this Act shall be laid before the House of Assembly and Legislative Council of Nova Scotia within twenty days next after the same are made, if the Legislature is then sitting, and if the Legislature is not then sitting within twenty days after the meeting of the JUDICATURE ACT. 23 Legislature next after such rules are made, and if E.S., c. 32. an address praying that any such rules may be can- '- celled IS presented to the Lieutenant-Governor by the said House of Assembly or Legislative Council with- in the twenty days on which the Legislature has been sitting next after such rules are laid before it, the Governor-in-Council may thereupon, by Order- in-Council, annul the same, and the rules so annulled shall thenceforth become void and of no effect, but without prejudice to the validity of any proceedings which in the meantime have been taken under the same. E. S., c. 155, s. 50. GENERAL PROVISIONS. 51. Subject to any order in that behalf, the officers of business to be performed in the Supreme Court or orpr'e??r^1d m the chambers of any judge thereof, other than ^^ '"'''• that performed by the judges, shall be distributed among the several officers attached to the said Court, in such manner as is directed by rules of court ; and such officers shall perform such duties in relation to suoh business as is directed by rules of court; and subject to such rules of court, all such officers respec- tively shall continue to perform the same duties, as nearly as may be, and in the same manner, as before this Act came into force. E. S., c. 155, s. 51. 52. Subject to rules of court the judges of the official reter- county courts, masters in chancery, prothonotaries, officiaTsr^to"* and clerks of the Crown shall be official referees for **• the trial of such questions as are directed to be tried by such officers, and the Governor-in-Council may, if necessary, appoint additional official referees. E. S., c. 155, s. 52. 53. Every provision of this Act and of the Provisions of Eules of the Supreme Court shall be deemed reme- ^d t™ ™e^'°'' dial, and shall receive such fair, large, and liberal construction* construction and interpretation as will best ensure the attainment of the objects of the said Act and rules according to their true intent, meaning and spirit. E. S., c. 155, s. 53. 54. The Acts and parts of Acts referred to in Acts the first schedule of this Act are repealed to the ''^p^*'^*- extent in such schedule stated. 24 JUDICATUEB ACT. E.S., c. 32. 55. This Act shall come into force on, from and Act when after, and not before, such day as the Governox-in- to come into Council ordcrs and declares by proclamation; force. ^ ■*■ FIRST SCHEDULE. SECTION 54. Acts Repealed. Eevised Statutes, 1900, Chapter 155, Acts of 1901, Chapter 15, Acts of 1901, Chapter 16, Acts of 1903, Chapter 56, Acts of 1903-4, Chapter 16, Acts of 1903-4, Chapter 17, Acts of 1905, chapter 16, Extent of Repeal. The whole Act; and Exiles made pursuant thereto. Section 12. The whole Act. The whole Act. The whole Act. Sections 1, 2 and 3. The whole Act. SCHEDULE TO JUDICATUEE ACT. 25 SGBEDULE TO JUDICATURE ACT. Note. — The memorandum at the end of each Rule is intended to indicate the rule or enactment from which the rule, as therein expressed, has been transcribed or adapted. I' E." refers to the English Judicature Kules of 1883. "O. (1897)"- refers to the Consolidated Rules of Practice of the Supreme Court of Judicature for Ontario of 1897. " S. C. A." refers to Cap. 89, R. S., 4th S«ries, "Of the Supreme Court and its Officers." "P. A." refers to the Practice Act, Cap. 94, R. S., 4tli Series. ^'^ E. A." refers to tbe Equity Act, Cap. 95, R. S., 4th Series. " E. R, S. C." r«fers to English Rules of Court made subsequent to the English Judicature Rules of 1883. " S. C. R." refers to Supreme Court Rules, Nova Scotia, made subsequent to the Rules of the Supreme Court 1884. " R. S." ref«rs to Revised Statutes of Nova Scotia, 1900. THE RULES OF THE SUPEEME COURT. PRELIMINARY. The following Orders and Rules may be cited as Tiue, date " The Rules of the Supreme Court." They shaU be tTon.^'"'"°'" in operation on and after the date of the coming into force of " The Judicature Act," and shall also ^VV^Jt so far as is practicable (unless otherwise expressly provided), to all proceedings taken on or after that day in all causes and matters then pending. ORDER I. Or*" I; IT. 1 Z. FORM AND COMMENCEMENT OF ACTION, 1. All actions and suits which, previously to the . plaintiff or his solicitor, and may be written or ^".Jf^jt^^^r printed, or partly written and partly printed. (E. printed. 32.) 4. Every writ of summons shall be sealed by the ^^ ^^^^1^,1^^ officer issuing the same, and shall thereupon be deemed to be issued. (E. 33.) 5. The plaintiff or his solicitor shall, on present- ^^ '■^io\ie ing any writ of summons for sealing, leave with the officer a copy written or printed, or partly written and partly printed, of such writ and of all the in- dorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person. (B. 34.) 6. The prothonotary on receiving such copy (24.) shall file the same, and an entry of the tiling thereof &— ent^es shall be made in a book to be called the Cause Book, 1° cLr^' which is to be kept in the manner in which cause ^°°^- 30 CONCUEEESTT WHITS. Order V. r. 6. books are now kept; and the action shall be distin- guished by the date of the year, and a letter and number. (E. 35.) Order VL rr. 1 — 2a. ORDER VI. (25.) How issued. (2-3a.) Concurrent originating Bummons. CONCURRENT WRITS. 1. The plaintiff in any action may, at the time of, or at any time during twelve months after the issuing of, the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear the date of the original writ, and be marked in the margin, with the word " concurrent " and the date of issuing the concurrent writ: Pro- vided always, that such concurrent writ or writs shall only be in force for the period during which the original writ in such action is in force. (E. 40.) la. A concurrent originating summons may be issued in the same manner mutatis mutandis as a concurrent writ of summons. (E. 40a; E. R. C. S., July, 1911, E. 1 ; S. C. E., Jan. 23, 1919.) (26.) 2. A writ for service within the jurisdiction may Ilrvfce" be issued and marked as a concurrent writ with one w^thfn pro'^ ^ 0^ scrvlce, or whereof notice in lieu of service is to loScumnt''* be given, out of the jurisdiction ; and a writ for ser- vice, or whereof notice in lieu of service is to be given, out of the jurisdiction, may be issued and marked as a concurrent writ with one for service within the jurisdiction. (E.41.) 2'a. An originating summons for service within the jurisdiction may be issued and marked as a con- current originating summons with one for service out of the jurisdiction ; and an originating summons for service out of the Jurisdiction may be issued and marked as a concurrent originating summons with one for service within the jurisdiction. (E. 41a; E. E. S. C, July, 1911, E. 2; S. C. E., Jan. 23, 1919.) (26a.) Ditto con- current ori- ginating summons. RENEWAL OF WRIT. 31 OEDER VII. o"^*" /"• DISCLOSURE BY SOLICITORS AND PLAINTIFFS. 1. Every solicitor whose name is indorsed on (27.) any writ or summons shall, on demand in writing uff's^soiici- made by or on ibehalf of any defendant who has been *"■ served therewith or has appeared thereto, declare forthwith in writing whether such writ has been issued by him or with his authority or privity; and if such solicitor declares that the writ was not issued by him or with his authority or privity, all proceed- ings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a judge. (E. 42.) ORDER VIII. Order^vm. RENEWAL OF WRIT. 1. No original writ of summons shall be in force „ <29.) for more than twelve months from the day of the writ, date thereof, including the day of such date ; but if Renewal, any defendant therein named shall not have been served therewith, the plaintiff may, before the ex- piration of the tw^elve months, apply to the court or a judge for leave to renew the writ ; and the court or judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ ; and the writ shall in such case be renewed by being marked with the day, month and year of such re- newal ; such renewal to be so marked by the_ pro- thonotary, upon delivery to him by the plaintiff or Ms solicitor of a memorandum in form No. 6, in appendix A, part I, with such variations as circum- stances require ; and a writ of summons so renewed shall remain in force and be available, to prevent the operation of any statute whereby the time for the 32 SEEVICE OF WEIT OF SUMMONS. Order Vm. rr. 2 — 3. (30.) Evidence of renewal. commencement of the action is limited, and for all other purposes, from the date of the issuing of the original writ of summons. (E. 45.) 2. The production of a writ of summons pur- porting to have been renewed in manner aforesaid, shall for all purposes be sufficient evidence of the writ having been so renewed, and of the commence- ment of the action on the date of the issue of the original writ of summons so renewed. (E. 46.) 3. Where a writ, of which the production is fo"r'"iost'*^u. necessary, has been lost, the court or a judge, upon being satisfied of the loss and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original writ. (E. 47.) (31.) Order rr. 1- IX. -4. OEDEE IX. SERVICE OF WRIT OE SUMMONS. (32.) When ac- cepted. (33.) Service as at present. Substituted service. (34.) Husband and wife to be served. (34.) Infant. 1. — Mode of Service. 1. No service of writ shall be required when the defendant, by his solicitor, undertakes in writing to accept service and enters an appearance. (E. 48.) 2. When service is required the writ shall, wherever it is practicable, be served by the person by whom, and in the manner in which, personal ser- vice is now made ; but if it is made to appear to the court or a judge on affidavit that the plaintiff is from any cause unable to effect prompt personal service, the court or judge may make such order for substi- tuted or other service, or for the substitution for service, of notice by advertisement or otherwise, as seems just. (E. 49.) 2. — On Particular Defendants. 3. When husband and wife are both defendants to the action, they shall both be served unless the- court or a judge otherwise orders. (E. 50.) 4. When an infant is a defendant to the action, service on his father or guardian or person ap- pointed by the court shall be deemed good service SERVICE OF WEIT OF SUMMONS. 33 IX. rr. 4 — 10. on the infant unless the court or a judge otherwise O"*" orders : Provided that the court or judge may order -^^ that service made or to be made on the infant shall be deemed good service. (E. 51.) 5. Where a lunatic or person of unsound mind, (?5-) not so found by inquisition or judicial declaration, is ^'"'"•*"'- a defendant to the action, service on his guardian or person to be appointed by the court as guardian ad litem of the lunatic shall, unless the court or judge otherwise orders, be deemed good service on such defendant. (E. 52 and 0. (1897) rr. 157, 158.) * * * * # # 8. In the absence of any statutory provision (39.) regulating service of process, any writ of summons, corporations, petition or other process may be served upon any corporation, or any society or fellowship, or any body or number of persons, whether corporate or otherwise, by serving the same on the principal officer thereof, or on the clerk or secretary. (E. 55 and P. A. 41.) 3. — In Particular Actions. 9. Service of a writ of summons in an action to (4o.) recover land, may, in case of vacant possession, s^tsfo'ii'.^"^" when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwel- ling house or other conspicuous part of the property. (E. 56.) 4. — Generally. 10. (1.) The person serving a writ of summons ^^^ > shall immediately on receiving the writ, indorse Jf "^datlTf" thereon the day of the month and week of the receipt receipt and of ssrvics of the same, and shall, within three days at most, after service, indorse thereon the day of the month and week of the service thereof. (2.) Every affidavit of service of such writ shall Affidavit of mention the day on which indorsement was made, ^''""*- and such affidavit may be sworn before a justice of the peacQ or any person having authority to take affidavits in the court. This rule shall apply to sub- stituted as well as other service. (E. 62 and P.A. 39. S. C. E., 10th Dec, 1884, r, 4.) S.N.S. — 3 34 SERVICE OUT OF THE JURISDICTION. °'?«i.''" ORDER X. SUBSTITUTED SERVICE. iv?t\o Every application to the court or a judge for an Affidavit to ^rounds^ order for substituted or other service, or for the sub- stitution of notice for service, shall be supported by an affidavit setting forth the grounds on which the application is made. (E. 63.) Order^XI. ORDER XI. SEEVICE OUT OF THE JURISDICTION. In whtt' ^' Service out of the jurisdiction of a writ of cases. summons, or notice of a writ of summons, may be allowed by the court or a judge whenever — (a.) The whole subject-matter of the action is land situated within the jurisdiction (with or without rents or profits, or the per- petuation of testimony relating to land within the jurisdiction) or (b.) Any Act, deed, will, contract, obligation, or liability affecting land or hereditaments, situated within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action ; or (c.) Any relief is sought against any person domicileu, or ordinarily resident, within the jurisdiction; or (d.) The action is for the administration of the personal estate of any deceased person who at the time of his death was domi- ciled within the jurisdiction, or for the execution as to property situated within the jurisdiction, of the trusts of any writ- ten instrument, of which the person to be served is a trustee, which ought to be exe- cuted according to the law of Nova Scotia; or (e.) The action is founded on any breach, or alleged breach, within the jurisdiction, of SERVICE OUT OE THE JUEISDICTION. 35 any contract wherever made, which, ac- order^xi. cording to the terms thereof, ought to be — — performed within the jurisdiction ; or (/•) Any injunction is sought .as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or (g.) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other per- son duly served within the jurisdiction; or {h.) The action is on any judgment, foreign or otherwise, obtained against la person who has real or personal property situate within the jurisdiction ; or (i.) The action is for tort committed or wrong done within the jurisdiction ; or (/.) The action is by a mortgagee or mortgagor in relation to a mortgage of personal pro- perty situate within the jurisdiction and seeks relief of the nature or kind follow- ing-; that is to say, sale, foreclosure, de- livery of possession by the mortgagor; redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unlfess and except so far as per- missible under subsection (e) of this Eule) any personal judgment or order for payment of any moneys due under the mortgage. In this subsection the expression "personal pro- perty within the jurisdiction" means personal pro- perty which on the death of an owner thereof intes- tate would form subject-matter for the grant of letters of administration to his estate out of any court of probate in this province; the expression "mortgage" means a mortgage charge or lien of any description; the expression "mortgagee" means a party for the time being entitled to or interested in a mortgage ; and the expression "mortgagor " means 36 SERVICE OUT OF THE JUfilSDICTION. it^^-T^f' ^ party for the time being entitled to or interested — -^-^ — = in property subject to a mortgage. (E. 64; E. E. S. C, July, 1916; S. C. R., Jan. 23, 1919.) A.ffidivu' re- 2. Every application for leave to serve such writ quired. qj. notice ou a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and shewing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made ; and no such leave shall be granted unless it is made sufficiently to appear to the court or judge that the case is a proper one for service out of the jurisdiction under this Order. (E. 67.) Timi*for a ^- -^^^ order giving leave to effect such service pearance. or give such uotice shall limit a time after such ser- vice or notice, within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given. (E. 68.) When*Vouce '^' ^'^sii the defendant is neither a British sub- oniy^to^be * ject uor in British dominions, notice of the writ, and not the writ itself, is to be served upon him. (E. 69.) Notice \ow ^- Notice in lieu of service shall be given in the •erved'. manner (as nearly as may be) in which writs of summons are served. (E. 70.) servitI*of 5 (a.) Service out of the jurisdiction of an origi- originating uatlng summons, of a petition, or of a statement of 61111111100.8 Petition and claim uudcr the Mechanics' Lien Act, may be allowed statement oi t ,-, , .-..-,.-. .*',._ , claim Tinder Dy the court or a ]udge m like cases m which such ut?Tcr' service would be allowed in res'.pect to a writ of sum- mons, or a notice of a writ of summons, and subject to the like provisions ; and the order- shall, in the case of such statement or claim, limit a time after such service within which the defendant is to deliver a statement of defence thereto, as in the case of en- tering an appearance to a writ of summons or notice under this order. (S. C. R., Nov. 25, 1905.) AEPEAHANCE. 37 ORDER XII. G^d" xn- TT. 1 5. APPEARANCE. 1. In all cases the writ of summons shall name, uotii*^' h in a memorandum subscrihed thereon, the county to" appelr.'"' and place in which the defendant's appearance is to be entered. (R. S., c. 104, 0. 12, r. 1.) 2. A defendant shall enter his appearance to a „ <"■) •in , TT ■ T- ,.„ How appeiar- writ or summons by delivering- to the proper officer ^^«« entered. a memorandum in writing, dated on the day of its delivery, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. He shall, at the same time, deliver to the officer a duplicate of the memorandum, which the officer shall seal with the official seal, showing the date on which it is sealed, and then return it to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated hy the seal. (E. 78.) 3. A defendant shall, on the day on which he Notiie^°of ap- enters an appearance to a writ of summons, give no- pearance. tice of his appearance (form No. 2, appendix A, part II), to the plaintiff's solicitor, or if the plaintiff sues in person, to the plaintiff himself. The notice may be given either by notice in writing served in the ordinary way on the plaintiff's solicitor, or at the address for service, or by prepaid letter directed to that address and posted on the day of entering ap- pearance in due course of post, and shall in either case be accompanied by the sealed duplicate memor- andum. (E. 79.) 4. A defendant appearing in person shall state ^^^/^s'^ in such memorandum his address. The solicitor of a defendant appearing by a solicitor, shall state in such memorandum his address. The address so stated shall be the address for service. (E. 80, 81.) 5. If the memorandum does not contain the Defective ad- address required by the preceding rule, the memor- ^^e". andum shall not be received ; and if such an address is illusory or fictitious, the appearance may be set aside by the court or a judge on the application of the plaintiff; and the plaintiff may he permitted by 38 APPBAKANCE. Order XII. rr. 6 — IB. (53.) Form. (54.) Entry in Cause book. the court or judge to proceed by posting up the pro- ceedings in the office from which the writ was issued (E. 82.) 6. The memorandum of appearance may be in the form No. 1, appendix A, part II, with such varia- tions as the circumstances of the case require. (E. 83.) 7. Upon receipt of a memorandum of appear- ance, the officer shall forthwith enter the appearance in the Cause Book. (E. 84.) (57.) Two or more defendants. (58.) Undertaking to appear. (59.) Appearance any time be- fore judg- ment. (60.) Appearance by person not defend- ing. (61.) Appearance by landlord so to state. (62.) By person not named as defendant. 10. If two or more defendants in the same action appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum. (E. 87.) 11. A solicitor not entering an appearance in pursuance of his written undertaking so to do, shall be liable to an attachment. (E. 88.) 12. A defendant may appear at any time before judgment. If he appears at any time after the time limited by the writ for appearance he shall not, un- less the court or a judge otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared accord- ing to the writ. (E. 92.) 13. Any person not named as a defendant in any writ of summons for the recovery of land may, by leave of the court or a judge, appear and defend, on filing an affidavit showing that he is in posses- sion of the land either by himself or by his tenant. (E. 95.) 14. Any person appearing to defend an action for the recovery of land as landlord, in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord. (E. 96.) 15. Where a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the court or a judge to appear and defend, he shall enter an appearance, according to the foregoing rules of this Order, intituled in the action against the party named in the writ as de- fendant, and shall forthwith give notice of such DEFAULT OF APPEARANCE. 39 appearance to the plaintiff's solicitor, or to the ?r'*J6-^i";. plaintiff if he sues in person, and shall in all subse- — '■ ^ quent proceedings be named as a party defendant to the action. (E. 97.) 16. Any person appearing to a writ of sum- Defences mons for the recovery of land shall be at liberty to to^paT "^ limit his defence to a part only of the property men- tioned in the writ, describing that part with reason- able certainty in his memorandum of appearance, or in a notice intituled in the action and signed by him or his solicitor. Such notice shall be served within four days after appearance; and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole. (E. 98.) 17. The notice mentioned in the last preceding (e*-) rule shall be in the form No. 3, appendix A, part II, with such variations as circumstances require. (E. 99.) 18. A defendant before appearing shall be at (65.) liberty, without obtaining an order to enter or enter- motion to ing a conditional appearance, to serve notice of mo- procte^higs. tion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorizing such service. (E. 100.) OEDEE XIII. order XIII. r. 1. DEFAULT OF APPEARANCE. 1. Where no appearance has been entered to a (66.) writ of summons for a defendant who is an infant, or uldfi'^dif- a person of unsound mind not so found by judicial *''""y- decision or inquisition, the plaintiff shall, before fur- ther proceeding with the action against such defend- ant, apply to the court or a judge for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order shall be made unless it appears on the hearing of such application that -the writ of summons was duly served, and that notice of such application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing 40 DEFAULT OF APPEARANCE. order^_xm. the application, served upon, or left at the dwelling — ' '— house of, the person with whom or under whose care such defendant was at the time of serving such writ of summons, and also (in the case of such defend- ant being an infant not residing with or under the care of his father or guardian), served upon or left at the dwelling house of the father or guardian, if any, of such infant, unless the court or judge at the time of hearing such application shall dispense with such last mentioned service. (E. 101.) (67.) 2. Where any defendant fails to appear to a servicl! ° Writ of summous, and the plaintiff is desirous of pro- ceeding upon default of appearance under any of the following rules of this Order, or under Order XV., rule 1, he shall, before taking such proceeding upon default, file an affidavit of service of the writ, or of service of notice in lieu of service of the writ as the case may be. (E. 102.) jud meVt en- ^- Where the writ of summons is indorsed for a tered if Trrit liquidated demand, whether specially or otherwise, and the defendant fails, or all the defendants, if more than one, fail to appear thereto, the plaintiff may enter final judgment for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified (if any), or (if no rate is speci- fied) at the rate of six per cent, per annum, to the date of the judgment and costs. (E. 103.) when^severai ^- Where the writ of summons is indorsed for a defendants, liquidated demand, whether specially or otherwise, and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may enter final judgment, as in the next preceding rule, against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with the action against such as have ap- peared. (E. 104.) On iilim for ^- .Whexc the writ is indorsed with a claim for detention. detention of goods and pecuniary damages, or either of them, and the defendant fails, or all the defend- ants, if more than one, fail to appear, the plaintiff may enter interlocutory judgment, and a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, as the case DEFAULT OF APPEARANCE. 41 may be, in respect of the causes of action disclosed O'^e'^^f™- by the indorsement on the writ of summons. But -^ '— the court or a judge may order a statement of claim or particulars to be filed before any assessment of damages and may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way which the court or judge may direct. (B. 105; E. R. S. C, July, 1902'; S. C. R., Jan. 23, 1919.) 6. Where the writ is indorsed as in the next (ti.) preceding rule mentioned, and there are several de- ai Hun-"'""^' fendants, of whom one or more appear to the writ, *°*^' and another or others of them fail to appear, the plaintiff may sign interlocutory judg-ment against the defendant or defendants so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defend- ant or defendants, unless the court or a judge other- wise directs : Provided that the court or a judge may order that instead of a writ of inquiry or trial, the value of the goods and amount of damages, or either of them, shall be ascertained in any way which the court or judge directs. (E. 106.) 7. Where the writ is endorsed with a claim for ciajm^for detention of goods and pecuniary damages, or either f/"^?f^7 /°* of them, and is further indorsed for a liquidated demand.^ demand, whether specially or otherwise, and any defendant fails to appear to the writ, the plaintiff may enter final judgment for the debt or liquidated demand, interest and costs against the defendant or defendants failing to appear, and interlocutory judg- ment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in such of the preceding rules of this Order as are applicaJble. (E. 107.) 8. If no appearance is entered in an action for ^ctiiJ^for the recovery of land, within the • time limited for land, appearance, or if an- appearance is entered but the defence is limited to part only, the plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the 42 DEFAULT OF APPEARANCE. Order XIII. rr. 8 — 12. Mesne pro* fits and damages, &o. (75.) Setting aside judgment. (76.) Foreclosure, partition, ad' ministration, &c. (77.) Foreclosure, proof in. Registrar's certificate. Affidavit, r quirements of. lan(i, or of the part thereof to which the defence does not apply. (E. 108.) 9. Where the plaintiff has indorsed a claim for mesne profits, arrears of rent, or damages for breach of contract or wrong or injury to the premises claimed upon a writ for the recovery of land, he may enter judgment as in the next preceding rule men- tioned, for the land ; and may proceed as in the other preceding rules of this Order mentioned, as to such other claim so indorsed. (E. 109, E. E. S. C, Nov. 1893, r. 1, (b.) 10. Where judgment is entered pursuant to any of the preceding rules of this Order, the court or a judge may set aside or vary such judgment upon such terms as are just. (E. 110.) 11. Where the action is in respect of a mortgage, and the plaintiff claims foreclosure or sale, or re- demption, or where the action is for the administra- tion of an estate, or for a partition, except as is otherwise provided by these rules, the plaintiff shall be entitled to a judgment on such evidence (if any) and in such cases (as nearly as may be), as is pro- vided for by the practice immediately preceding the first day of October, A.D. 1884, relative thereto. (O. (1881) r. 78.) 12. Where the action is in respect of a mortgage the following provisions shall apply to every appli- cation to the court or a judge for an order for fore- closure or foreclosure and sale, where the defendant has not appeared : — (a.) The plaintiff shall produce a certificate of the registrar of deeds for the registration district in which the mortgaged premises lie, setting forth all the incumbrances re- gistered against such premises. (&.) He shall show by affidavit to the satisfac- tion of the court or a judge the following facts : (i) That the writ of summons or notice in lieu of writ of summons has been served upon the defendant or a substituted ser- vice effected. DEFAULT OF APPEARANCE. 43 (ii) That the defendant has not entered an ordMxni. appearance, although the period limi ~ — '- — ted therefor has expired, (iii) Tliat the allegations contained in the statement of claim are true, (c.) (1) He shall produce a statement, verified f^*^*^"'*^ . by the affidavit of himself or some per- meits with son having personal knowledge of the facts, shewing all payments which have been made on account of principal or interest, and the dates of such payments, so as to enable the court or judge to check the computation of the amount al- leged to be due, and shall produce such other proof as the peculiar circumstances of the case require to entitle him to the order applied for. (2) If the mortgage has been transmitted to ^^'^"^"''^/"j.^jjg. an executor, administrator or assignee of mission of ' = tlie mortgage. the mortgagee, the mortgage account, up to the date of such transmission, may be proved prima facie by information and belief, on oath, or by other proof to the satisfaction of the judge ; and an affidavit or oath shall not be required from the mortgagee or any intermediate assignee denying any payment to him of the principal or interest. (3) If an account stated or a settlement Proof in amounting to an admission .in the hand- mission in writing of any person then liable on the ■^'^""'*^- mortgage is produced, it shall not be ne- cessary to go farther back than the appar- ent date thereof in making up the mort- gage account, (4) Provided that the judge may require Judge may further or better proof of the mortgage ther'praoT in account, if the mortgagor or his assignee, denial" of cor- or the party entitled to redeem, denies statement' by affidavit, or upon oath, the correctness of such statement of account. (S. C. E., Nov. 25, 1905). (d) The court or a judge shall ascertain and Foreclosure, determine the amount due to the plaintiff, arcwtained" or may refer the matter to a referee to \l re/efence 44 DEFAULT OF APPEAKANCE. Order rr. 12- xni. ^13a. Foreclosure, terms of sale. Subsequent accounts, &c. take an account, and if it appears that there are persons other than the defend- ant, such as subsequent incumhrancers, having an interest in the mortgaged premises, who ought to be present at the taking of the accounts, the referee may be directed to give notice to such persons to attend the taking of the same. (e.) The court or a Judge may direct a sale of ' the property on such terms as the court or a judge thinks fit, and without pre- viously determining the priorities of in- cumbrancers or the amount due on their incumbrances. (/.) All subsequent accounts may from time to time be taken, subsequent costs taxed and necessary proceedings had for re- demption, by any of the parties entitled to redeem the mortgaged premises as if specific directions for this purpose were contained in the order. CASES NOT SPECIALLY PROVIDED FOR. (78.) In other cases action may proceed. 13. In all actions not by the rules of this Order otherwise specially provided for, if the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not specially indorsed under Order III., rule 5, of a state- ment of claim, the action may proceed as if sucft party had appeared, subject, as to actions where an account is claimed, to the provisions of Order XV. (E. 112.) 13a. Where a defendant or respondent to an originating summons to which an appearance is re- ing sum"mons. quired to bc entered fails to appear within the time limited, the plaintiff or applicant may apply to the court or a Judge for an appointment for the hearing of such summons, and upon a certificate that no ap- pearance has been entered, the court or judge shall appoint a time for the hearing of such summons, upon such conditions (if any) as they or he thinks fit. (E. 114a., E. E. S. C, Nov. 1893, r. 2.) (78a.) Default of appearance to originat- LEAVE TO SIGN JUDGMENT. 45 ORDER Xiy. °rr*"a^3a^- J-EA.VE TO SIGN JUDGMENT AND DEFEND WKEEB WKIT SPECIALLY INDOEeED. 1. (a.) Where the defendant appears to a writ of ^ /J^jf'on summons specially indorsed under Order III, rule for^'/udement. 5, the plaintiff may, on affidavit made by himself, or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any), and stating that in his belief there is no defence to the action, apply to a judge for liberty to enter final judgment for the amount so indorsed, together with interest, if any, or for recov- ery of the land (with or without rent or mesne profits), as the case may be, and costs. The judge may thereupon, unless the defendant by affidavit, by his own viva voce evidence, or otherwise, satisfies him that he has a good defence to the action on the merits, or discloses such facts as are deemed suffi- cient to entitle him to defend, make an order empowering the plaintiff to enter judgment accord- ingly. (b.) If on the hearing of any application under Jj'ay""^*"'®''' this rule it appears that any claim which could not amended, have been specially indorsed under Order III, rule 5, has been included in the indorsement of the writ, the judge may, if he thinks fit, forthwith amend the indorsement by striking out such claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects. the residue of the claim. (E. 115; E. R. S. C, Nov. 1893, r. 3, (1) (a), (h.) 2. The application by the plaintiff for leave to g^^°J^^ enter final judgment under the next preceding rule, stow cause. shall be made by summons returnable not less than four clear days after service, accompanied by a copy of the affidavit and exhibits referred to therein. (E. 116.) 3. (a). The defendant may show cause against gj^Jf^^ such application by affidavit, or the judge may allow cause. the defendant to be examined upon oath. 46 LEAVE TO SIGN JUDGMENT. Order XIV. rr. 3b— 8. (82.) Defence as to part. (33.) Defence by some defen- dants. (84.). Leave to de- fend. (84a.) Summary disposaL (84b.) Directions to triaL (b.) Such affidavit shall state v?hether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff's claim. (c.) The judge may, if he thinks fit, order the defendant, or in the case of a corporation any officer thereof, to attend and be examined upon oath ; or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom. (E. 117; E. R. S. C, Nov. 1893, r. 3, (3) E. R. S. C. 1917; S. C. R. Jan. 23, 1919.) 4. If it appears that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthvnth for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution or the payment of the amount levied or any part thereof into court by the sheriff, the taxation of costs, or otherwise, as the judge thinks fit; and the defendant may be allowed to defend as to the residue of the plaintiff's claim. (E. 118). 5. If it appears to the judge that any defendant has a good defence to, or ought to be permitted to defend, the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to pro- ceed with his action against the former. (E. 119.) 6. Leave to defend may be given uncondition- ally, or subject to such terms as to giving security, or time, or mode of trial or otherwise, as the judge thinks fit. (E. 120; E. R. S. C, Nov. 1893, r. 3, (6.) 7. The judge may with the consent of all parties dispose of the action finally and without appeal in a summary manner. (E. 12'0a, E. R. S. C, Nov. 1893, r. 3, (7.) 8. Where leave, whether conditional or uncon- ditional, is given to defend, the judge shall have power to give all such directions as to the further conduct of the action as might be given on a sum- mons for directions, and may order the action to be APPLICATION POK ACCOUNT. 47 forthwith set down for trial. (E. 120 b part; E. B. 0'^"_^- S. C, Nov. 1893.) _!!if_'^. 9. (a) The costs of and incident to all applica- (84c.) tions under this Order shall be dealt with by the judge on the hearing of the . application, who shall order by and to whom, and when, the same shall be paid, or may refer them to the judge at the trial: Provided that in case no trial afterwards takes place, or no order as to costs is made, the costs are to be costs in the cause. (&.) If the plaintiff makes an application under this Order where the case is not within the Order, or where the plaintiff, in the opinion of the judge, knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, in any of such cases the application shall be dismissed with costs to be paid forthwith by the plaintiff. (E. 120 c; E. R. S. C, Nov. 1893, r. 3, (9.) 10. A tenant shall have the same right to relief „ ,/?*?' • -I 1 T • -I It !• Rel>8' from after a judgment under this order tor recovery of torfeiture. land on the ground of forfeiture for nonpayment of rent as if the judgment had been given after trial. (E. 120 d; E. R. S. C, Jan., 1902, r. 3, S. C. R. Jan. 23, 1919.) ORDER XV. °rT'\-^- APPLICATION FOR ACCOUNT. 1. Where a writ of summons has been indorsed Dgfa{,ff ^^^ to for an account, under order III, rule 7, or where the account, indorsement on a writ of summons involves taking an account, if the defendant either fails to appear, or does not after appearance, by affidavit or otherwise, satisfy the court or judge that there is some prelim- inary question to be tried, an order for the proper accounts, with all necessary inquiries and directions now usual in similar cases, shall be forthwith made. (E. 121.) 2. An application for such order as is men- g^^cse^-^) ^^ tioned in the next preceding rule shall be made by affid^i^ summons, and be supported by an affidavit, when 48 PAETIES. order^xv. necessary, filed on behalf of the plaintiff, stating — '^^ concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired. (E. 122.) Order XVI. OEDEE XVI. rr. 1 — S. PAHTIES. 1. — Generally. (87.) 1. AH persons may be joined in one action as p?ahitiffs° plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate actions any common question of law or fact would arise : provided that, if upon the appli- cation of any defendant it appears that such joinder may embarrass or delay the trial of the action, the court or a judge may order separate trials, or make such other order as is expedient, and judgment may be given for such one or more of the plaintiffs as are found to be entitled to relief, for such relief as he or they are entitled to, without any amend- ment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who is not found entitled to relief, unless the court or a judge in disposing of the costs other- wise directs. (E. 123 ; E. E. S. C, 26th Oct. 1896.) „, (88.) 2. Where an action has been commenced in the Wrong plain- . . . tiff by mis- name oi a wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or a judge, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determin- ation of the real matter in dispute so to do, may order any other person to be substituted or added as plaintiff, upon such terms as are just. (E. 124.) set-offVot '^' Where in any action any person has been im- mirofnd r^ properlv or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off. PARTIES. 49 he may obtain the benefit thereof by establishing his °^^" 2cvi. set-off or counter-claim as against the parties other -^ '— than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding con- sequent thereon. (E. 125). 4. All persons may be joined as defendants j^.^( so.) against whom the right to any relief is alleged to defendLtL. exist, whether jointly, severally, or in the alterna- tive. And judgment may be given against such one or more of the defendants as are found to be liable, according to their respective liabilities, without any amendment. (E. 126.) 5. It shall not be necessary that every defendant od shall be interested as to all the relief prayed for, or not iSite«s\- as to every cause of action included in any proceed- proceeihiga. ing against him ; but the court or a judge may make such order as appears just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he has no interest. (B. 127.) 6. The plaintiff may, at his option, join as par- ^^^ 02.) ties to the same action all or any of the persons mg parties severally, or jointly and severally, liable on any one joined.* contract, including parties to bills of exchange and promissory notes. (E. 128.) 7. Where the plaintiff is in doubt as to the per- (93.) son from whom he is entitled to redress, he may, in d^uiftl exut. such manner as is hereinafter mentioned, or as is prescribed by any special order, join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties. ^ (E. 129.) 8. Trustees, executors, and adijainistrators may 04.) sue and be sued on behalf of or as representing the uver^^"'*' property or estate of which they are trustees or re- presentatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons ; but the court or a judge may, at any stage of the pro- ceedings, order any of such persons to be made parties either in addition to or in lieu of the pre- viously existing parties. (E. 130.) 50 PAETIES. °rr*8a^'^' ^^- Where a mortgagee has died, the proceed- — -—^^ — ings in actions for foreclosure or foreclosure and Foreclosure, Sale may be taken and carried on by his executors or with paTties admiuistrators and in their name, and they shall represent the heirs and persons interested in the estate of the deceased. (S. C. R., March 1st, 1898.) Heirs^*de'vis- ^^- Except when othcrwise ordered, it shall not of 'decelied"' ^^ uecessary to make the heirs-at-law, or devisees, or ™/'^o'™7 not '*'^*io^ o^ ^ deceased mortgagor, or of a deceased necessary. owner of the equlty of redemption, parties to an action for foreclosure or foreclosure and sale, but the executors or administrators of such deceased person may be made parties and be proceeded against, and they shall represent the heirs-at-law, devisees and widow, or any of them, as the case may be. (S. C. R., March 1st, 1898.) (94c.) gc_ jf there are no executors or administrators, Defendant . ' appointed by or uouc withm the jurisdiction, the court or a judge executors or ou application, before the issuing of the writ of sum- administra- . , , , j j i i • i tors. mons, may appoint a party to represent the heirs and persons interested in the estate of the deceased, and the court may direct such proceedings as are neces- sary for promoting or protecting the claims and rights of any persons who may be interested in the mortgaged premises or the proceeds thereof. (S. C. R., March 1st, 1898.) Benefitfaries ^°- ^^ shall uot be uccessary to make benefi- or subsequent ciarles or subsequent incumbrancers defendants, but in cum bran- ^ . ' eers not the court or a judge may direct notice to be given to the beneficiaries or subsequent incumbrancers by mailing a notice of the order with a copy of the ad- vertisement of sale, and after such notice any such beneficiary or subsequent incumbrancer shall be bound by the proceedings in the same manner as if he had originally been made a party, and any person so notified may within one month thereafter apply to the court or a judge to discharge, vary or add to the said order, or for such other relief in the action as he is entitled to, and the court or a judge in addi- tion to directing such notice to be given, may direct such proceedings as are necessary to protect the rights of the parties. (S. C. R., March 1st, 1898.) (95.) 9. Where there are numerous persons having parties num- the Same interest in one cause or matter, one or more PARTIES. 51 of such persons may sue or be sued, or may be autho- "r'''^^^- rized by the court or a judge to defend, in such cause -— — or matter, on behalf of or for the benefit of all per- sons so interested. (E. 131.) 9. A Where in proceedings concerning a trust a „ (as*-) T T „ ,Y Power to ap- compromise is proposed and some of the persons prove com- interested in the compromise are not parties to the absSJel oT proceedings, but there are other persons in the same p^onf in* interest before the coijrt and assenting to the com- '"'^*®*- promise, the court or a judge, if satisfied that the compromise will be for the benefit of the absent per- sons, and that to require service on such persons would cause unreasonable expense or delay, may ap- prove the compromise and order that the same shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts. (E., 0. 16, r. 9a, E. R. S. C, Nov., 1893, r. 5.) 10. No cause or matter shall be defeated by jj^^^^^^'foj reason of the mis-joinder or non-joinder of parties, non-ioinder and the court may in every cause or matter deal with f^inde" the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the pro- ceedings, either upon or without the application of either party, and on such terms as appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and_ that the names of any partiesj whether plaintiffs or defendants, who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, with- out his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons, or notice, in manner herein- after mentioned, or in such manner as is prescribed by any special order, and the proceedings as against .^uch party shall be deemed to have begun only on the service of such writ or notice. (E. 133.) 52 PAETIES. Older XVIi rr. 11 — 19. (97.) Application to amend as to parties. (98.) Serving new defendant with writ (99.) Serving with Btatement of claim. 11. Any application to add, or strike out, or sub- stitute a plaintiff or defendant may be made to the court or a judge at any time before trial by notice of motion or summons, or at trial of the action in a summary manner. (E. 134.) 12. Where a defendant is added or substituted, the plaintiff shall, unless otherwise ordered by the court or a judge, file an amended copy of and sue out a writ of summons, and serve such new defendant with such writ, or notice in lieu of service thereof, in the same manner as original defendants are served. (E. 135.) 13. If a statement of claim has been delivered before such defendant has been added, the same shall, unless otherwise ordered by the court or judge, be amended in such manner as the making such new de- fendant a party renders desirable; and a copy of the amended statement of claim shall he delivered to the new defendant with the writ or notice. (0. (1897), r. 208.) (102.) Infants. (103.) Married wo- men. (104.) Lunatics. 3. — Persons under disability. 16. Infants may sue as plaintiffs by their next friends, in the manner heretofore practised ; and may in like manner defend by their guardians appointed for that purpose. (E. 138, part.) 17. Married women may sue and be sued as pro- vided by the statutes in force to that effect. (E. 138, part.) 18. Where lunatics and persons of unsound mind, not so found by judicial decision or inquisition, might respectively, immediately preceding the first day of October, A.I). 1884, have sued as plaintiffs, or would have been liable to be sued as defendants in any action or suit, they may respectively sue as plaintiffs in any action by their guardian, or next friend, according to the practice immediately pre- ceding the said first day of October, A.D. 1884, ex- cept as amended by these rules, and may in like manner defend any action by their committees or guardians appointed for that purpose. (E. 139.) Appii?aVce 19. An _ infant shall not enter an appearance by guardian, except by his guardian ad litem. No order for the PARTIES. 53 appointment of such guardian shall be necessary, °r*i'9_f23f' but the solicitor applying to enter such appearance, — ; shall make and file an affidavit in the form No. 8 in appendix A, part II, with such variations as circum- stances require. (E. 140.) < 20. Every infant served with a petition or notice doe.) o I • . i_i_ ^ 11 Order not oi motion, or summons m a matter, shall appear on necessary, the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the next preceding rule mentioned. (E. 141.) 21. Before the name of any person is used in (io7.) ,. j.j?-Tj>'j?x XT Consent to any action as next iriend oi any infant, or other benext party, or as relator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed. (E. 142.) 22. In all causes or matters to which any infant (los.) „ -,.,,,, J? 1 T. • Consent by or person oi unsound mmd, whether so found by m- next friend quisition or judicial decision or not, or person under any other disability, is a party, any consent as to the mode of taking evidence, or as any other procedure shall, if given with the consent of the court or a judge by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability, and had given such consent : Provided that no such consent by any com- mittee, next friend, or guardian of a lunatic shall be valid as between him and the lunatic unless given with the sanction of the court or a judge. (E. 143.) 4. Proceedings by or against poor persons. 23. Anv person may be admitted to sue or de- (io9.) »-. ■... 1 1 T Suing or de- fend or be a party to any legal proceedings as a poor fending as person on satisfying the court or a judge that he has """ ^'"°''' reasonable grounds for suing or defending or being a party to such proceedings and that he is not worth $50.00, his wearing apparel and the subject matter of the cause only excepted. (E. E. S. C, 9th June, 1914, E. 22 in part, S. C. E., Jan. 23rd, 1919.) 54 PAETIBS. Order XVI. rr. 24 — 27a. (110.) Opinion of counsel- (111.) Case verified (Ilia.) Court or judge may admit appli- cant to sue or defend. No appeal for re- fusal without leave. (111b.) Regard to jurisdiction of inferior courts. (112.) No court fee. (113.) Counsel to be assigned. (113a.) Counsel not to be dis- charged with- out leave. 24. A person desirous of suing as a poor per- son shall lay a case before counsel for his opinion whether or not he has reasonable grounds for pro- ceeding. (E. 145, S. C. R., Jan. 23rd, 1919.) 25. No person shall be permitted to sue as a poor person, unless the case laid before counsel for his opinion, and his opinion thereon, with an aflSdavit of the party, or his solicitor, that the case contains a full and true statement of all the material facts to the best of his knowledge and belief, is produced be- fore the court or judge to whom the application is made ; and no fee shall be payable by a poor person to his counsel or solicitor. (E. 146, S. C. E., Jan. 23rd, 1919.) 25a. The court or a judge may in their or his discretion and upon such terms if any as the court or judge may think fit make an order admitting the applicant to sue or defend or be a party to legal pro- ceedings as a poor person. There shall be no appeal against an order refusing to admit a person to sue or defend or be a party to any legal proceedings as a poor person without leave of the court or a judge. (E. R. C. S., 9th June, 1914, R. 26 in part, S. C. R., Jan. 23rd, 1919.) 25b. The court or a judge in considering whether a person shall be admitted as a poor person under these Rules shall have regard to such statu- tory provisions as confer on inferior courts concur- rent jurisdiction with the Supreme Court. (E. R. S. C, R. 27, 9th June, 1914. S. C. R., Jan. 23rd, 1919.) 26. A person admitted to sue or defend as a poor person shall not be liable to any court fee. (E. 147, S. C. R., Jan. 23rd, 1919.) 27. Where a person is admitted to sue or defend as a poor person, the court or a judge may, if neces- sary, assign counsel, or solicitor, or both, to assist him, and a counsel or solicitor so assignee! shall not be at liberty to refuse his assistance unless he satisfies the court or judge that he has some good reason for refusing. (E. 148, S. C. R., Jan. 23rd, 1919.) 27a. It shall not be law^ful for the applicant to discharge any solicitor or counsel so assigned with- out leave of the court or a judge. (E. R. S. C, R. 26 in part, 9th June, (1914, S. C. R., Jan. 23rd, 1919.) PARTIES. 55 27b. a solicitor or counsel so assigned shall not jr^avb^Ila be at liberty to discontinue Ms assistance unless he — ^^^^ — satisfies the court or a judge that he has some counsel not reasonable ground for so discontinuing. (E. R. S. tLueSst- C, R. 28, 9th June, 1914, S. C. R. Jan. 23rd, 1919.) '"'"• 27c. The court or a judge may at any time (and j,^J||,ii^°^' whether or not any application be made by any per- diJiharge son for such purpose) discharge any order made time!* under these Rules whereby a person has been admit- ted to sue or defend or be a party to any legal pro- ceedings as a poor person. (E. R. S. C, 28a, 9th June, 1914, S. C. R., Jan. 23rd, 1919.) 28. Whilst a person sues or defends as a poor (ii4.) ■.-,-,, 1 i_ j_ 1 * -, No fee per- person no person shall take, or agree to take, or seek muted, to obtain from him, . any fee, profit, or reward for the conduct of his business in the court, and any per- son who takes or agrees to take, or seeks to obtain any such fee, profit, or reward, shall be guilty of a contempt of court. (E. 149, S. C. R., Jan. 23rd, 1919.) 29. If any person, admitted to sue or defend as ^^J^l^^>^^ a poor person, gives or agrees to give, any such fee, for"pa^ng profit, or reward, the application or admission may be dismissed or struck out in which case the poor person shall not afterwards be admitted as a party to the same cause or proceeding as a poor person unless otherwise ordered. (E. 150, S. C. R., Jan. 23rd 1919.) 30. No notice of motion shall be served, or sum- s„ij=*• for the execution of the trusts of the deed or instru- ment, may have the same without serving any other beneficiary. (E. 158.) 38. In all cases of actions for the prevention of -^Jtl^*-^ waste or otherwise for the protection of property, one person may sue on behalf of himself and all per- sons having the same interest. .(E. 159.) 39. Any executor, administrator, or trustee en- ^^J^^^^-'' titled thereto may have a judgment or order against fBam^s^t one any one legatee, next of kin, or beneficiary for the administration of the estate or the execution of the trusts. (E. 160.) 40. The court or a judge may require any person condilf of to be made a party to any action or proceeding, and ^^^ proceed- may give the conduct of the action or proceeding to such person as is deemed best, and may make such order in any particular case as is deemed best for placing the defendant on the record on the same foot- ing in regard to costs as other parties having a com- mon interest with him in the matters in question. (E. 161.) 41. (1). Wherever, in any action for the adminis- jj^j/127.) tration of the estate of a deceased person or the other parties. 58 PARTIES. Order XVI. rr. 41 — 46. In originat- ing summons and peti- tions. (128.) Person noti- fied, to ap- pear as de- fendant. (129.) Entry of (130.) Notice how entitled, and form. (131.) Notice on in' fant or lunatic. execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or~ an order has been pronounced or made, — (a.) under Order XV, (b.) under Order XXXII, or (c.) affecting the rights or interests of persons not parties to the action, the court or a judge may direct that any person in- terested in the estate, or under the trusty or in the hereditaments, shall be served with notice of the judgment or order; and after such notice such per- sons shall be bound by the proceedings in the same manner as if they had originally been made parties, and shall be at liberty to attend the proceedings under the judgment or order. Any person so served may, within one month after such service, apply to the court or a judge to discharge, vary, or add to the judgment or order. (B. 162.) (2). The provisions of this rule shall apply to causes commenced by originating summons or by petition. (S. C. E., May 15th, 1899.) 42. It shall not be necessary for any person served with notice of any judgment or order, to obtain an order for liberty to attend the proceedings under such judgment or order, but such person shall be at liberty to attend the proceedings upon entering an appearance in the same manner, and subject to the same provisions, as a defendant entering an ap- pearance. (E. 163.) 43. A memorandum of the service upon any per- son of notice of the judgment or order in any action under Eule 41 shall be entered in the Prothonotary's office upon due proof by affidavit of such service. (E. 164.) 44. Notice of a judgment or order served pur- suant to Rule 41 shall be entitled in the action, and there shall be endorsed thereon a memorandum in the form No. 22, appendix G. (E. 165.) 45. Notice of a judgment or order on an infant or person of unsound mind not so found by inquisi- tion or judicial decision, shall be served in the same manner as a writ of summons. (E. 166.) PARTIES. 59 46. In any cause or matter to execute the order xvi. trusts of a will it shall not be necessary to make the "" ^ ^°" heirs-at-law parties, but the plaintiff shall be at whin heirs- liberty to make the heirs-at-law parties where he de- sLy Varul;. sires to have the mil established aa-ainst them. (E 167.) 47. If in any cause, matter, or other proceeding, ^J^i/^^> it appears to the court or a judge that any deceased reprelenta- person who was interested in the matter in question *"°' has no legal personal representative, the court or judge may proceed in the absence of any person re- presenting the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the cause, matter, or other proceed- ing, on such notice to such person, if any, as the court or judge thinks fit, either specially or generally by public advertisement, and the order so made, and any order consequent thereon, shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal repre- sentative of the deceased had been a party to the cause, matter, or proceeding. (E. 168.) 48. In any cause or matter for the administra- ^j^y^*>^p. tion of the estate of a deceased person, no party 5f"ist?atit'ii other than the executor or administrator shall, unless suits. by leave of the court or a judge, be entitled to appear either in court or in chambers on the claim of any person not a party to the cause or matter against the estate of the deceased person in respect of any debt or liability. The court or a judge may direct or give liberty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as they or he thinks fit. (E. 169.) 6. — Third Party Procedure. 49. When a defendant claims to be entitled to j,„^/f f„> contribution, or indemnity over against any person person uawe ' , , . T 1 1 i? J.1 to contribute not a party to the action, he may, by leave oi the to « mdem- court or a judge, issue a notice (hereinafter called SLZt. the third party notice) to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice shall be filed with the proper officer and served on such person according to the 60 PARTIES. rr. 49 — 52, (136.) Appearance by third party. Order XVI. rules relating: to the service of writs of summons. The notice shall state the nature and grounds" of the claim, and shall, unless otherwise ordered by the court or judge, be served within the time limited for delivering his defence. Such notice may be in the form or to the effect of the form No. 1, appendix B, with such variations as circumstances require, and therewith shall be served a copy of the statement of claim, or if there is no statement of claim, then a copy of the writ of summons in the action. (E. 170.) 50. If a person, not a party to the action, who is served as mentioned in the next preceding rule, here- inafter called the third party, desires to dispute the plaintiff's claim in the action as against the defend- ant on whose behalf the notice has been given, or his own liability to the defendant, the third party shall enter an appearance in the action within ten days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of tlie judgTtient obtained against such defendant, whether obtained by consent or otherwise, and his own liabi- lity to contribute or indemnify, as the case may be, to the extent claimed in the third party notice : Pro- vided always, that a person so served and failing to appear within the said period of ten days may apply to the court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the court or judge thinks fit. (E. 171.) 51. Where the third party makes default in entering an appearance in the action, if the defen- dant giving the notice suffers judgment by default, he shall be entitled at any time, after satisfaction of the judgment against himself, or before such satis- faction by leave of the court or a judge, to enter judgment against the third party to the extent of the contribution or indemnity claimed in the third party notice: Provided that it shall be lawful for the court or a judge to set aside or vary such judgment upon such terms as seem just. (E. 172.) (138.) 52. "Where a third party makes default in enter- against third iug au appearaucc in the action, if the action is tried party a ter ^^^ rosults in f avour of the plaintiff, the judge who tries the action may, at or after the trial, order such (137.) Default by third party. PABTIBS. 61 judgment as the nature of the case requires to be order xvi. entered for the defendant giving the notice against — ' - the third party : Provided that execution shall not be issued thereon without leave of the judge until after satisfaction by such defendant of the verdict or judgment against him. And if the action is finally decided in the plaintiff's favour, otherwise than by trial, the court or judge may, on application by notice of motion or summons, order such judgment as the nature of the case requires to be entered for the defendant giving the notice against the third party at any time after satisfaction by the defendant of the amount recovered by the plaintiff against him. (E. 173.) 53. If a third party appears pursuant to the ^^.^ (^i3^9^) third party notice, the defendant giving the notice twrd pa?ty. may apply to the court or a judge for directions, and the court or a judge, upon the hearing of such ap- plication, may, if satisfied that there is a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of such lia- bility, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the action, as the court or judge directs ; and if not so satisfied may order such judg- ment as the nature of the case requires to be entered in favour of the defendant giving the notice against the third party. (E. 174.) 54. The court or a judge upon the hearing of the THai^tt* application mentioned in the next preceding rule Jj^^wiuy^^of may, if it appears desirable to do so, give the third party liberty to defend the action, upon such terms • ' as are just, or to appear at the trial and take such part therein as is just, and generally may order such proceedings to be taken, documents to be delivered, or amendments to be made, and give such directions as to the court or judge appears proper, for having the question most conveniently determined, and as to the mode and extent in or to which the third party shall be bound or made liable by the judgment in the action. (E. 175.) 62 CHANGE OF PAKTIBS BY DEATH, ETC. Order XVI. rr, 66 — 56, (141.) Costs as to third party. (141a.) Third party bringing in fourth or ^ore parties (142.) Third party procedure between de- fendants. 55. The court or a judge may decide all ques- - tion of costs as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case re- quires. (E. 176.) 55a. Where any person served with a third party notice by a defendant or by a third party under these Rules claims to be entitled to contribution or indemnity over against any person not a party to the action, he may by leave of the court or a judge issue a third party notice to that effect ; and the preceding Rules as to third party procedure shall apply mutatis mutandis to every notice so issued and the expres- sions: "third party notice" and "third party" in these Rules shall apply to and include every notice so issued and every person served with such notice respectively. (E. R. S. C, 1 August, 1911, S. C. R., Jan. 23rd, 1919.) 56. Where a defendant claims to be entitled to contribution or indemnity against any other defend- ant to the action, a notice may be issued and the same procedure shall be adopted, for the determina- tion of such questions between the defendants, as would be issued and taken against such other de- fendant, if such last-mentioned defendant were a third party; but nothing herein contained shall prejudice the rights of the plaintiff against any de- fendant in the action. (E. 177.) Order XVII. r. 1. (143.) No abate- ment by death, mar- riage, &c. ORDER XVII. CHANGE OF PARTIES BY DEATH, ETC. 1. A cause or matter shall not become abated by reason of the marriage, death or bankruptcy of any of the parties, if the cause of action survives or con- tinues, and shall not become defective by the assign- ment, creation or devolution of any estate or title pendente lite; and, whether the cause of action sur- vives or not, there shall be no abatement by reason of the death of either party between the verdict or CHANCE OF PARTIES BY DEATH, ETC. 63 finding of the issues of fact and the judgment, but °'Jf ^.f^- judgment may in such case be entered, notwithstand- — '- — — - ing the death. (E. 178.) 2. In case of the marriage, death, or bankruptcy, ^^ d**) or devolution of estate by operation of law, of any add parties party to a cause or matter, the court or a judge may, if it is deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the court or judge thinks just, and shall make such order for the disposal of the cause or matter as is just. (E. 179.) 3. In case of an assig-nment, creation, or devolu- „ (i*5.) . ^ ^ ' . ' Successor in tion or any estate or title pendente lite, the cause or «"» or matter may be continued by or against the person to new party. or upon whom such estate or title has come or de- volved. (E. 180.) 4. Where by reason of marriage, death, bank- p^ J^r^to' caii ruptcy, or any other event occurring. after the com- i" persons , p 11 -I • becoming in- mencement oi a cause or matter, and causing a terested. change or transmission of interest or liability, or by reason of any person interested coming into exist- ence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the court or a judge, upon an allegation of such change, or transmission of in- terest or liability, or of such person interested hav- ing come into existence. (E. 181.) 5. An order obtained as in the next preceding ^^^^47.^)^ rule mentioned shall, unless the court of judge other- Bervedon ,. ,1 T ,T j-"j_ such contmu- Wise directs, be served upon the continuing party or ing parties. parties, or their solicitors, and also upon each such new party, unless the person making the application is himself the only new party, and the order shall 64 CHANGE OF PAETIES BY DEATH, ETC. Order XVn rr. 6 — 9. (148.) Varying order. (149.) ' Persons un- der disabil- ity. (150.) Defendant compelling plaintiff to proceed. (1,5,1.) Certificate abatement. from the time of such service, subject nevertheless to the next two following rules, be binding on the per- sons served therewith, and every person served therewith who is not already a party to the cause or matter, shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. (E. 182.) 6. Where any person who is under no disability, or under no disability other than coverture, or being under any disability other than coverture, has a guardian ad litem in the cause or matter, is served with such order as in rule 4 mentioned, such person may apply to the court or a judge to discharge or vary such order at any time within twelve days from the service thereof. (E. 183.) 7. Where any person who is under any disability other than coverture, and has no guardian ad litem in the cause or matter, is served with any order as in rule 4 mentioned, such person may apply to the court or a judge to discharge or vary such order at any time within twelve days from the appointment of a guardian ad litem for such party, and until such period of twelve days has expired such order shall have no force or effect as against such last mentioned person. (E. 184.) 8. When the plaintiff or defendant in a cause or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the de- fendant (or the person against whom the cause or matter may be continued) may apply by summons to compel the plaintiff (or the person entitled to pro- ceed) to proceed within such time as is ordered ; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued; and in such case, if the plain- tiff has died, execution may issue as in the case pro- vided for by order XL, rule 23. (E. 185.) 9. Where any cause or matter becomes abated, or in case of any such change of interest as is by this Order provided for, the solicitor for the plaintiff, or person having the conduct of the cause or matter, as the case may be, shall certify the fact to "the proper JOINDER OF CAUSES OF ACTION. 65 officer, who shall cause an entry thereof to be made in °rr*"9^^J^- the Cause Book opposite to the name of such cause — ' — or matter. (E. 186.) 10. Where any cause or matter has been stand- gtril-n^oU ing for one year in the Cause Book marked as ai'^t^'i "«'« "abated," or standing over generally, such cause or matter at the expiration of the year shall be struck out of the Cause Book. (E. 187.) ORDER XVIII. order XVIII. rr. 1 — 2 JOINDER OF CAUSES OF ACTION. 1. Subject to the following rules of this Order, (iss.) the plaintiff may unite in the same action several oiaIt^ several causes of action, but if it appears to the court or a Son "may judge that any such causes of action cannot be con- '"' ^°"'®'^- veniently tried or disposed of together, the court or judge may order separate trials of any of such causes of action to be had, or may make such other order as is necessary or expedient for the separate disposal thereof. (E. 188.) 2. No cause of action shall, unless by leave of (154.) the court or a judge, be joined with an action for the a^uons'^fo^ recovery of land, except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof , and damages for breach of any contract under which the same or any part thereof is held, or for any wrong or injury to the premises claimed. Providing that nothing in this Order contained joinder of shall prevent any plaintiff in an action for fore- po*R™s.sioii closure or redemption from asking for or obtaining foreoiisuM*"'' an order against the defendant for delivery of the oon!"'^^"''' possession of the mortgaged property to the plaintiff on or after the order absolute for foreclosure or re- demption, as the case may be, and such an action for foreclosure or redemption and for such delivery of possession shall not be deemed an action for the re- covery of land within the meaning of these rules. S.N.S. 5 66 JOINDER OF CAUSES OF ACTION. °'?r"2— 9™' Provided also, that in case any mortgage security '■ ^ is foreclosed by reason of the default to redeem by any plaintiff in a redemption action, the defendant in whose favor such foreclosure has taken place may by notice of motion or summons apply to the court or a judge for an order for delivery to him of possession of the mortgaged property, and such order may be made thereupon as the justice of the case requires. (E. 189; E. E. S. C, Dec, 1885.) And'cV-'^'^ 3. Claims by a trustee in bankruptcy or insol- by tru6tee» veucy as such, shall not, unless by leave of the court rapuy." or a judge, be joined with any claim by him in any other capacity. (E. 190.) ^ (156.) 4. Claims by or against husband and wife may married per" bc joined with claims by or against either of them sons. separately. (E. 191.) (157.) 5. Claims by or against an executor or adminis- &c* "" ' trator, as such, may be joined with claims by or against him personally: Provided the last-men- tioned claims are alleged to arise with reference to the estate in respect to which the plaintiff or de- fendant sues or is sued as executor or administrator. (E. 192.) B S^^*iff ^' Claims by plaintiffs jointly may be joined jointly and with claims by them or any of them separately severa y. agaiust the Same defendant. (E. 193.) (159.) 7. The next three preceding rules shall be sub- ''"™°- ject to rules 1, 8, and 9 of this Order. (E. 194.) A , iiration ^' "^^y defendant alleging that the plaintiff has to 'strike out. united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the court or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of together. (E. 195.) (161.) 9. If, on the hearing of such application as in Etrike out the next preceding rule mentioned, it appears to the pleadings, qq^^i qj. ^ judge that the causes of action are such as cannot all be conveniently disposed of together, the court or judge may order any of such causes of ac- tion to be excluded, and consequential amendments to be made, and may make such order as to costs as is just. (E. 196.) TKIAL WITHOUT PLEADINGS 67 OEDEE XVIIIa. order xvniA. rr. 1—4. TRIAL WITHOUT PLEADINGS. A plaintiff may without pleadings proceed to trial subject to the following rules : — 1. The indorsement of the writ of summons shall indorsMnent. contain a statement sufficient to give notice of the nature of his claim or of the relief or remedy required in the action, and shall state that if the defendant appears the plaintiff intends to proceed to trial without pleadings. (E. 196a; E. E. S. C, Nov., 1893.) 2. Within ten days after appearance the plaintiff Notice oi shall serve twenty-one days ' notice of trial without pleadings. Such notice shall be in form No. 16 (a), appendix B., with such variations as circumstances require. (E. 196b;E.E.S.C., Nov., 1893.) 3. The defendant may within ten days after ap- Defendant pearance apply by summons for the de- fo/ statement livery of a statement of claim, and on such ° " *™' summons the judge may order (1) that a statement of claim shall be delivered, in which case the action shall proceed in the usual manner; or (2) that the action shall proceed to trial without pleadings, in which case it may be further ordered, if the judge thinks fit, that either party shall deliver particulars of his claim or defence. (E. 196c;E.E.S.C., Nov., 1893.) 4. When the judge orders that the action shall p«rticniar». proceed" to trial without pleadings, and makes no order as to particulars, all de- fences shall be open at the trial to the defendant. Where particulars are ordered to be delivered the parties shall be bound by such particulars, so far as regards the matters in respect to which the order for particulars was made. (E. 196d; E. E. S. C, Nov., 1893.) 68 PLEADIN'GS GENERALLY. Order XVHIA. rr. 5 — 6. Special de-" fences. Pleadings , not to be re- * quired except by order. Where a defendant has not taken out a sum- mons under rule 3 of this Order, he, shall not be allowed to rely on a set-off or counter-claim, or on the defence of infancy, coverture, fraud, or statute of limitations, unless he has given (within ten days after appearance) notice to the plaintiff, stating the grounds and particulars upon which he relies. (E. 196e; E. R. S. C, Nov., 1893.) When a plaintiff indorses the writ of sum- mons with a statement that, if the defend- ant appears, he intends to proceed to trial without pleadings, no pleadings shall be re- quired or delivered, except by order of the judge, made under rule 3 of this Order. (E. 196f ; E. E. S. C, Nov., 1893.) Order XIX. rr. 1 — 2. ORDER XIX. (162.) New rules of pleading, (163.) Statement of claim. Defence. Reply. Costs of prolixity. PLEADINGS GENERALLY. 1. The following rules of pleadings shall be used in the Supreme Court. (E. 197.) 2. The plaintiff shall, subject to the provision of Order XX, and at such time and in such manner as therein prescribed, deliver to the defendant a state- ment of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall, subject to the provisions of Order XXI, and at such time and in such manner as therein prescribed, de- liver to the plaintiff his defence, set-off, or counter- claim, if any, and the plaintiff shall, subject to the provisions of Order XXIII, and at such time and in such manner as therein prescribed, deliver his reply, if any, to , such defence, set-off, or counter-claim. Such statements shall be as brief as the nature of the case admits, and the taxing authorities in adjust- ing the costs of the action shall at the instance of any party, or may without any request, inquire into any unnecessary prolixity, and order the cost occa- sioned by such prolixity to be borne by the party chargeable with the same. (E. 198.) PLEADINGS GENERALLY. 69 3. A defendant in an action may set off, or set "rr"— e''"'' up by way of connter-claim against the claims of the 7i^T~ plaintiff, any right or claim, whether such set-off or setoff and counter-claim sounds in damages or not, and such c?aim.''' set-off or counter-claim shall have the same effect as a cross action, so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the court or a judge may, on application of the plaintiff before trial, if in the opinion of the court or judge such set- off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof. (E. 199.) ■4. Every pleading shall contain, and contain (les.) only, a statement in a summary form of the material hl^^a^sm" facts on which the party pleading relies for his Sent. ^*^'''" claim or defence, as the case may be, but not the evi- dence by which they are to be proved, and shall, when necessary, be divided into paragraphs numbered con- secutively. Dates, sums, and numbers shall be ex- pressed in figures and not in words. Pleadings shall be signed by the solicitor, or by the party if he sues to be signed, or defends in person. (E. 200.) 5. The forms in appendices C. D. and E, when dee.) applicable, and where they are not applicable, forms ^"™^- of a like character, as near as may be, shall be used for all pleadings, and where such forms are applic- able and sufficient any longer forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be. (E. 201.) 6. In all cases in which the party pleadings (i67.) relies on any misrepresentation, fraud, breach of in^cer'tlln"^ trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms afore- said, particulars (with dates and items if necessary) shall be stated in the pleading : Provided that, if the particulars be of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading. (E. 202.) cases. 70 PLEADINGS GENERALLY. Ordei XIX. rr. 7 — 13. (168.) Further and better par- ticulars. (169.) Time after particulars. (170.) Written or printed. (171.) Service of pleadings. (172.) Pleadings, how marked (173.) Not guilty by statute. (174.) Tacit admis- sions. 7. A further and better statement of the nature of the claim or defence, or further 'a,nd better parti- culars of any matter stated in any pleading, notice, or written proceedings requiring particulars, may in all cases be ordered, upon such terms as to costs and otherwise as may be just. (E. 203.) 8. The party at whose instance particulars have been delivered under a judge's order shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the par- ticulars that he had at the time such order was made. Save as in this rule provided, an order for particu- lars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any exten- sion of time. (E. 204.) 9. Every pleading may be either printed or written, or partly printed and partly written. (E. 205.) 10. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered, in the manner now in use, to the solici- tor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer. (E. 206.) 11. Every pleading shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, the reference to the letter and number of the action, the title of the action, and the description of the pleading. (E. 207.) 12. Nothing in these rules contained shall affect the right of any defendant to plead not guilty by statute. And every defence of not gTiilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. But if the defendant so plead, he shall not plead any other defence to the same cause of action without the leave of the court or a judge. (E. 208.) 13. Every allegation of fact in any pleading, not being a petition or summons, if not denied specific- ally or by necessary implication, or stated to be not PLEADINGS GENERALLY. 71 admitted in the pleading of the opposite party, shall °J*"3.^- be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition or judicial decision. (E. 209.) 14. Any condition precedent, the performance jj^^^JJ-^j^'j or occurrence of which is intended to be contested, precedent, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be) ; and subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading. (E. 210.) 15. The defendant or plaintiff (as the case may (i76.) be) shall raise by his pleading all matters which mus^ be*" ° show the action or counter-claim not to be maintain- p^®****- able, or that the transaction is either void or void- able in point of law, and all such grounds of defence or reply, as the case may be, as would be likely to take the opposite party by surprise if not raised, or would raise issues of fact not arising out of the pre- ceding pleadings, as for instance, fraud, Statute of Limitation, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds. (E. 211.) 16. No pleading, not being a petition or sum- .(itt.) mons, shall, except by way of amendment, raise any tentpiead- new grounds of claim, or contain any allegation of "^^°' fact inconsistent with the previous pleadings of the party pleading the same. (E. 212.) 17. It shall not be sufficient for a defendant in his Qg^< ^Jj^) statement of defence to deny generally the grounds denf/unsuf- alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages. (E. 213.) 18. Subject to the next preceding rule, the plain- (179.) tiff by his reply may join issue upon the defence, and f,°Bue'°* each party in his pleading (if any) subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial^ of every material allegation of facts in the pleading PLEADINGS GEN'EliALLY. Order XIX. rr. 18 — 24. (180.) Answer to be dir'ect and full. (181.) Denial of contract. Legality. Ftatute of Frauds. (182.) Effect of documents to be stated. (183.) Allegation of malice, &c. (184.) Allegation of notice. (186.) Implied ci tract. upon which issue is joined, but it may except any facts which the party is willing to admit, and shall then operate as a denial of the facts not so admitted. (E. 214.) 19. Where a party in any pleading denies an allegation of fact in the previous pleading of the op- posite party, he shall not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be suffi- cient to deny that he received that particular amount, but he shall deny that he received that sum or an}' part thereof, or else set out how much he received. And if an allegation is made with divers circum- stances, it shall not be sufficient to deny it along with those circumstances. (E. 215.) 20. AVhere a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with refer- ence to the Statute of Frauds or otherwise. (E. 216.) 21. Where the contents of any documents are material, it shall be sufficient in the pleading to state the effect thereof as briefly as possible, without set- ting out the whole or any part thereof unless the pre- cise words of the document or anv part thereof are material. (E. 217.) 22. "Where it is material to allege malice, fraudu- lent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. (E. 218.) 23. Where it is material to allege notice to any person of any fact, matter, or thing, it shall be suffi- cient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circum- stances from which such notice is to be inferred, are material. (E. 219.) 24. Where any contract or anv relation between any persons is to be implied from a series of letters PLEADINGS LiEXEUALLY. 73 or conversations, or otherwise from a number of cir- o^der xix. cumstances, it shall be sufficient to allege such con- — '^^^^' tract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative. (E. 220.) 25. Neither party need in any pleading allege ^^J^^f^ any matter of fact which the law presumes in his facTs"" nlsed favor or as to which the burden of proof lies upon "''' " ^***'' ' the other side, unless the same, has first been specific- ally denied: {e.g., consideration for a bill of ex- change, where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim.) (E. 221.) 26. No technical objection shall be raised to any (ist.) pleading on the ground of any alleged want of form, objection's."^ (E. 222.) 27. The court or a judge may at any stage of the ^^^^^^ proceedings order to be struck out or amended any and strik- matter in any indorsement or pleading which may be plfadlngs. unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action ; and may in any such case, if they or he thinks fit, order the costs of the application to be paid as between solicitor and client. (E. 223.) 28. Delivering a statement of claim or defence, jijij^g^®-^ or other pleading or proceeding, when mentioned or necessary. referred to in these Orders, includes filing, where by the practice of the court heretofore, or under these Orders, statements, pleadings, or proceedings of a like kind ought to be filed. ( 0. ( 1897 ) , r. 267. ) 29. In any action for slanderous words spoken gpg<.'iaf°'<|am- of any woman, imputing to her any unchaste con- age^ne^ed duct, it shall not be necessary to allege in pleading, leged in cer- or prov'e at the trial, that any special damage resulted to her from the utterance of such words; but she shall recover such damages as may be asses- sed, without such averment or proof of damage. (P. A. 184.) 74 STATEMENT OF CLAIM. Order XX. r. 1. OEDER XX. STATEMENT OF CLAIM. (192.) Delivery of claims. Where writ ■pecially in- dersed. Need not be delivered un- less de- manded. Time for de- livery. Statement of claim may be delivered 1. The delivery of statements of claim shall be regulated as follows : — (a.) Where the writ is specially indorsed under Order III, rule 5, no further statement of claim shall be delivered, but the indorsement on the writ shall be deemed to be the statement of claim : (&.) Subject to the provisions of Order XIII, rule 13, as to filing a statement of claim when there is no appearance, no state- ment of claim need be delivered unless the defendant at the time of entering appearance, or within eight days there- after, gives notice in writing to the plaintiff or his solicitor that he requires a statement of claim to be delivered : (c.) If no statement of claim has been delivered ■ and the defendant gives notice requiring the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the court or a judge, deliver it within four weeks from the time of the plaintiff receiving such notice : (d.) The plaintiff may (except as in (o.) men- tioned) deliver a statement of claim, either with tihe writ of summons or notice in lieu of writ of summons, or at any time afterwards, either before or after appearance, notwithstanding that the defendant may have appeared and not required the delivery of a statement of claim : Provided that in no case where a defendant has appeared shall a state- ment be delivered more than five weeks after the appearance has been entered unless otherwise ordered by the court or a judge: STATEMENT OF CLAIM. 75 (e.) Where the plaintiff delivers a statement °//"2_?6^- of claim without being required to do „ / , — — J.1 1 J? n i , Costs of un- so, or tne deiendant unnecessarii'v necessary -1,1 , n statement of requires such statement, the court or a claim- judge may make such order as to the costs occasioned thereby as are just, if it appears that the delivery of a state- ment of claim was unnecessary or im- proper. (E. 225.) ■2. Where a statement of claim is delivered the ^men^i^lt plaintiff may therein alter, modify, or extend his «' indSse- claim without any amendment of the indorsemejit noMsswy. of the writ. (E. 228.) 3. The statement of claim must in all cases show (194.) the proposed place of trial. (E. 229.) place of "tTiai. 4. Every statement of claim shall state speci- .(195.) fically the relief which the plaintiff claims, either iief'must°iie'^°' simply or in the alternative, and it shall not bo *"*'"^°- necessary to ask for general or other relief, which may always be given, as the court or a judge may think just, to the same extent as if it had been asked for. And the same rule shall apply to any counter-claim made, or relief claimed by the defend- ant in his defence. (E.230.) 5. Where the plaintiff seeks relief in respect to g^ o^^^^r) several distinct claims or causes of complaint found- causes of ed upon separate and distinct grounds they shall be """"^ stated, as far as may be, separately and distinctly. And the same rule shall apply where the defend- ant relies upon several distinct grounds of defence, set-off, or counter-claim founded upon separate and distinct facts. (E. 231.) 6. In every case in which the cause of action is ^cciunt'* a stated or settled account, the same shall be alleged "tated to be 1 . . -I . T , J alleged it With particulars, but m every case m which a state- « i? cause of ment of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the plead- ings. (E. 232.) 76 UEFEXt'E AND COLXTEli-CLAIM. XXI. —7. ORDEE XXI. (198.) Mere denial of debt inad- missible. (199.) Defence in actions on bills and notes. (200.) Defence in actions on other debts. (201.) No denial of damage. (202.) Denial of representa- tive capacity. (203.) Time for de- livery of de- fence where claim deliv- ered. (204.) Time for delivery, if no statement of claim. DEFENCE AND COUNTER-CLAIM. if 1. In actions for a debt or liquidated demand in money comprised in Order III, rule 5, a mere denial of the debt shall be inadmissible. (E. 234.) 2. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial shall deny some matter of fact; e.g., the drawing, making, indorsing, accepting, presenting, or notice of dis- honor of the bill or note. E. 235.) 3. In actions comprised in order III, rule 5, classes (A) and (B), a defence in denial shall d-eny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold or sold and delivered, the defence shall deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it shall deny the receipt of the money, or the existence of those facts ^vhich are alleged to make such receipt by the defendant a receipt to the use of the plaintiff. (E. 236). 4. No denial or defence shall be necessary as to damages claimed or their amount ; but they shall be deemed to be put in issue in all cases, unless express- ly admitted. (E. 237.) 5. If either party wishes to deny the right of any other party to claim as executor, or as trustee or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically. (E. 238.) 6. Where a statement of claim is delivered to a defendant he shall deliver his defence within ten days from the delivery of the statement of claim, or from the time limited for appearance, whichever is last, unless such time is extended bv the court or a judge. (E. 239.) 7. A defendant who has appeared in an action, and who has neither received nor required the clcliverv of a statement of claim, shall deliver his defence (if any) at any time within ten days after DEFENCE AXD COU^NTER-CLAIM. 77 the expiration of the time limited for his appear- ord6r_xxi. ance, unless such time is extended by the court or "" ^ ^^' - a judge. (E. 240). 8. Where leave has been given to a defendant to (205,) defend under order XIV, he shall deliver his defence ^o^'lllnTi: (if any) within such time as shall be limited by the '^""'■ order giving him leave to defend, or if no time is thereby limited, then within eight days after the order. (E. 241). 9. AVhere the court or a judge is of the opinion (206.) that any allegations of fact denied or not admitted nXTosts"" by the defence ought to have been admitted, the court or judge may make such order as is just with respect to any extra costs occasioned by their having been denied or not admitted. (E. 242.) 10. Where any defendant seeks to rely upon any (207.) grounds as supporting a right of counter-claim, he ment'^'oV*^*"' shall, in his statement of defence, state specifically IZSl"' that he does so by way of counter-claim. (E. 243.) 11. Where a defendant by his defence sets up (208.) any counter-claim which raises questions between cS* 'which himself and the plaintiff along with any other per- Jhwlfarty. sons, he shall add to the title of his defence a further title similar to the title in a statement of claim set- ting forth the names of all the persons who, if such counter-claim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his statement of defence to such of them as are parties to the action mthin the period within which he is required to deliver it to the plantiff. (E. 244.) 12. Where any such person as in the next pre- (209.) ceding rule mentioned is not a party to the action, paTy Tum- he shall be summoned to appear by being served ™™°*- with a copy of the defence and counter-claim, and such service shall be regulated by the same rules as are hereinbefore contained with respect to the service of a writ of summons, and every defence so served shall be indorsed in the form No. 2, in appen- dix B, or to the like effect. (E. 245.) 13. Any person not a party to the action, who is (210.) served with a defence and counter-claim as afore- must ^ivplB.r. said, shall appear thereto as if he had been served 78 DEFENCE AND COUNTER-CLAIM. Older XXI. rr. IS — 20. (211.) Reply to counter- claim. (212.) EzcludinK counter- claim. (213.) Counter- claim not stayed by discontinu- ance. (214.) Judgment for balance of counter- claim. (215. General issue by statute, bow pleaded. (216.) Pleas in abatement abolished. (217.) Title need not be plead- ed in action for land. with a writ of summons to appear in an action. (E. 246.) 14. Any person named in a defence as a party to a counter-claim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim. (E. 247.) 15. Where a defendant sets up a counter-claim, if the plaintiff or any other person named in manner aforesaid as party to such counter-claim contends that the claim thereby raised ought not to be dis- posed of by way of counter-claim, but in an inde- pendent action, he may at any time before reply, apply to the court or a judge for an order that such counter-claim may be excluded, and the court or a judge may, on the hearing of such application, make such order as is just. (E. 248.) 16. If, in any case in which the defendant sets up a counter-claim, the action of the plaintiff is stayed, discontinued, or dismissed, the counter- claim may nevertheless be proceeded with. (E. 249.) 17. Where in any action a set-off or counter- claim is established 'as a defence against the plain- tiff 's claim, the court or a judge may, if the balance is in favor of the defendant, give judgment for the 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. (E. 250.) 18. In every case in which a party pleads the general issue, intending to give the special matter in evidence by virtue of any statute, he shall insert in the margin of his pleading the words " by statute, ' ' together with the year of our Lord in which the statute on which he relies was passed, and also the chapter and section of such statute, and shall specify whether such statute is public or otherwise ; otherwise such defence shall be taken not to have been pleaded by virtue of any statute. (E. 252.) 19. No plea or defence shall be pleaded in abate- ment. (E. 253.) 20. No defendant in an action for recovery of land who is in possession by himself or his tenant, shall be required to plead his title, unless his defence PAYMENT INTO AND OUT OF COURT, ETC. 79 depends on an equitable estate or right, or he claims order xxi. relief upon any equitable ground against any right — ^— — or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be suffi- cient to state, by way of defence, that he is so in possession, and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff's state- ment of claim. He may nevertheless rely upon any ground -of defence which he can prove, except as hereinbefore mentioned. (E. 254.) ORDER XXII. °'^!i^- PAYMENT INTO AND OUT OF COURT AND TENDER. 1. Where any action is brought to recover a p^ '■^^^^'> j^^. debt or damages, any defendant may, before or to ^urt with at the time of delivering his defence, or any lubiiuy. later time by leave of the court or a judge, pay into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect to which the payment is made ; or he may, with a defence denying liability, (except in actions or counter-claims for libel or slander) pay money into court, which shall be subject to the provisions of rule 6. (E. 255.) 2. Payment into court shall be signified in the ^^ ^^e^^i- defence, and the claim or cause of action in satis- ^«^J^^ Re- faction of which such payment is made shall be specified therein. (E. 256). 3. "With a defence setting up a tender before TendM.°'^ action, the sum of money alleged to have been tendered shall be brought into court. (E. 257.) 4. If the defendant pays money into court before uouce^of be- delivering his defence, he shall serve upon the plain- tore delivery tiff a notice specifying both the fact that he has paid in such money, and also the claim or cause of action in respect to which such payment is made. Such notice shall be in the form No, 3, in appendix B, with such variations as circumstances require. (E. 258.) 80 PAYMENT INTO AND OUT OF COUET, ETO. "^r/'si^"' 5- I" the following cases of payment into court under this order, viz : — (122) (a.) When payment into court is made before ^ailVpiaf.- delivery of the defence : (b.) When the liability of the defendant, in respect to the claim or cause of action in satisfaction of which the payment into court is made, is not denied in the de- fence : (c.) When payment into court is made with a defence setting up a tender of the sum paid: the money paid into court shall be paid out to the plaintiff on his request, or to his solicitor on the plaintiff's written authority, unless the court or a judge otherwise orders. (E. 259.) witt^dlfenoe ^- When the liability of the defendant, in den^mg rcspoct to the claim or cause of action in satisfaction of which the payment into court has been made, is denied in the defence, the following rules shall apply :— fiptfnglr*"' ('^•) "^^^ plaintiff may within the time limited refusing. ill mle 7, acccpt, in satisfaction of the claim or cause of action in respect to which the payment into court has been _ made, the sum so paid in, in which case he shall be entitled to have the money paid out to him as hereinafter provided, notwithstanding the def endiant 's denial of liability, whereupon all further proceed- ings, in respect to such claim or cause of action, except as to costs,, shall be stayed; or the plaintiff may refuse to accept the taioney in satisfaction, and reply accordingly, in which, case the money shall remain in, court subject to the provisions hereinafter mentioned: Maccepfs"' ^^'^ ^^ t^^^ plaintiff accepts the money so paid in, he shall, after service of such notice in the form No. 4, in appendix B, as in rule 7 mentioned, or after delivery of a reply accepting the money, be entitled to PAYMENT INTO AND OUT OF COUET, ETO. 81 have the money paid out to himself on O''*" ^^oi. request, or to his solicitor on the plain- "." tiff's written authority, unless the court or a judge otherwise orders : (c.) If the plaintiff does not accept in satis- where piam- f action of the claim or cause of action in woepT ''°* respect to which the payment into court has been made, the sum so paid in, but proceeds with the action in respect of such claim or cause of action, or any part thereof, tlae money shall remain in court and be subject to the order of the court or a judge, and shall not be paid out of court except in pursuance of an order. Such order may be made at any time be- fore or at or after the trial of the action. If the plaintiff proceeds with the action in respect to such claim or cause of action, or any part thereof, and recovers less than the amount paid into court, the amount paid in shall, subject to the set off of costs hereinafter provided for, be ap- plied, so far as is necessary, in satisfac- tion of the plaintiff's claim, and of any costs awarded to the plaintiff, and the balance (if any) shall under such order, be repaid or credited to the defendant. If the defendant succeeds in respect of such claim or cause of action, the whole amount shall under such order be repaid or credited to him. The order for payment out of the money so in court shall not, except on special grounds, be made until after the taxation of the costs of the action, and the money shall then be paid out to the party or parties entitled after setting off damages and the costs allowed to either party and after proper credits have been given for all sums recovered by or ordered to be paid to either of the parties in the action or counterclaim if any. A plaintiff who does not accept money paid into court with a denial of liability but proceeds to trial and does not recover S.N.S. 6 84 PATMBNT INTO AND OUT OF COUET, ETC. Oidei XXn. rr. 11 — IS. Appendix M. (229.) Money paid in previous to Knles. (229a.) Money recov- ered by or paid into ac- count of in- fant or per- son of un- sound mind. shall be dealt \yitli, shall be subject to the regula- tions contained in appendix M. (E. 267.) 12. All money standing in court on the day on which these rules come into operation, shall there- upon be subject in all respects to the provisions of this order. (E. 268.) 13. In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind not so found by inquisition or judicial decision suing either alone or in conjunction with other parties no settlement or compromise or acceptance of money paid into court, whether before or at or after the trial, shall as regards the claims of any such infant or person of unsound mind be valid without the sanction of the court or a judge, and no money or damages recovered or awarded in any such cause or matter in respect to the claims of any such infant or person of unsound mind, whether by verdict or by settle- ment, compromise, payment into court or otherwise, before or at or after the trial shall be paid to the next friend of the plaintiff or to the plaintiff's solicitor unless the court or a judge shall so direct. The court or a judge may before, at or after the trial order that the whole or any part of such sum shall be paid into court to the credit of an account intituled in the cause or matter; and any sum so paid into court and any dividend or interest thereon shall be subject to such orders as are from time to time made by the court or a judge concerning the same, and may either be invested, or paid out of court, or transferred to such persons to be held and applied upon and for such trusts and in such manner, as the court or judge directs. Nothing in this rule shall prejudice the lien of a solicitor for costs. The costs of the plaintiff or if more than one of all the plaintiffs in any such cause or matter or in- cident to the claims therein or consequent thereon shall be taxed by the taxing master as between party and party and as between solicitor and client, and the taxing master shall certify the respective amounts of the party and party and solicitor and PAYMENT INTO AND OUT OF COUET^ ETC. 85 Order XXII. rr. 13.— 18. client costs, and the difference, if any, and the pro- portion of such difference, if any, payable respec- tively by any adult party to the cause or matter and by or out of the moneys of any party who is an in- fant or such person of unsound mind, and no costs other than those so certified shall be payable to the solicitor for any plaintiff in the cause or matter. (E. 26d, E. R. S. C, May, 1914, in part, S. C. R., Jan. 23rd, 1919.) 14. Money paid into court or securities pur- gubj^tVo chased under the provisions of the next preceding ™°*t°4,°' rule, and the dividends or interest thereon, shall be sold, transferred, or paid out to the party entitled thereto, pursuant to the order of the court or a judge. (E. 270.) 15. Money under the control of or subject to the j^oJ^?^:^ order of the court may be invested in Dominion or vested. provincial securities, and upon mortgage of freehold estates. (E. 271.) 16. Every application for the purpose of the j^pJilJllil^ conversion of any stocks, funds, or securities into *tock's°^&c any other stocks, funds, or securities authorized by the next preceding rule, shall be served upon such person, if any, as the court or judge thinks fit. (E. 272.) 17. Where a cause or matter is tried by a judge payment not with a jury no communication to the jury shall be ^^^®i„"Xd to made until after the verdict is given, either of the l"^- fact that money has been paid into court, or of the amount paid in. The jury shall be required to find the amount of the debt or damages, as the case may be, without reference to any payment into court. (E. Or. 22; r. 22, E. E. S. C, Nov., 1893, r. 9.) 18. Where the estate of a deceased person who „ (23sb.) . , T T , /> T , 1 Payment out ; has died intestate is entitled to a fund or to a share smaii mtes^ of a fund in court not exceeding $500, and it ig *»»*'* °'- proved to the satisfaction of the court or a judge that no administration has been taken out to such deceased person, and that his assets do not exceed the value of $500 including the amount of the fund or share to which the estate of such deceased person is entitled, the court or a judge may direct that such fund, or share of a fund, shall be paid, transferred, 84 PAYMENT IKTO AND OUT OF COUET^ ETC. Order XXH. rr. 11 — 13. Appendix M. (229.) Money paid in previous to Rules. (229a.) Money recov- ered by or paid into ac- count of in- fant or per- son of un- sound mind. shall be dealt with, shall be subject to the regula- tions contained in appendix M. (E. 267.) 12. All money standing in court on the day on which these rules come into operation, shall there- upon be subject in all respects to the provisions of this order. (E. 268.) 13. In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind not so found by inquisition or judicial decision suing either alone or in conjunction with other parties no settlement or compromise or acceptance of money paid into court, whether before or at or after the trial, shall as regards the claims of any such infant or person of unsound mind be valid without the sanction of the court or a judge, and no money or damages recovered or awarded in any such cause or matter in respect to the claims of any such infant or person of unsound mind, whether by verdict or by settle- ment, compromise, payment into court or otherwise, before or at or after the trial shall be paid to the next friend of the plaintiff or to the plaintiff's solicitor unless the court or a judge shall so direct. The court or a judge may before, at or after the trial order that the whole or any part of such sum shall be paid into court to the credit of an account intituled in the cause or matter; and any sum so paid into court and any dividend or interest thereon shall be subject to such orders- as are from time to time made by the court or a judge concerning the same, and may either be invested, or paid out of court, or transferred to such persons to be held and applied upon and for such trusts and in such manner, as the court or judge directs. Nothing in this rule shall prejudice the lien of a solicitor for costs. The costs of the plaintiff or if more than one of all the plaintiffs in any such cause or matter or in- cident to the claims therein or consequent thereon shall be taxed by the taxing master as between party and party and as between solicitor and client, and the taxing master shall certify the respective amounts of the party and party and solicitor and PAYMENT INTO AND OUT OF COURT, ETC. 85 client costs, and the difference, if any, and the pro- ^'//^^j??!^- portion of such difference, if any, payable respec- — — ' - tively by any adult party to the cause or matter and by or out of the moneys of any party who is an in- fant or such person of unsound mind, and no costs other than those so certified shall be payable to the solicitor for any plaintiff in the cause or matter. ^ (E. 26^, E. E. S. C, May, 1914, in part., S. C. R., Jan. 23rd, 1919.) 14. Money paid into court or securities pur- subjMtVo chased under the provisions of the next preceding ^™*™4,°' rule, and the dividends or interest thereon, shall be ' ' sold, transferred, or paid out to the party entitled thereto, pursuant to the order of the court or a judge. (E. 270.) 15. Money under the control of or subiect to the „ <232.) -, piij !• T.-r^ How in- order 01 the court may be mvested m Dominion or nested. provincial securities, and upon mortgage of freehold estates. (E. 271.) 16. Every application for the purpose of the ^ {fcition conversion of any stocks, funds, or securities into *to„^J'''*^* any other stocks, funds, or securities authorized by the next preceding rule, shall be served upon such person, if any, as the court or judge thinks fit. (E. 272.) 17. Where a cause or matter is tried by a judge paj^ent not with a jury no communication to the jury shall be ^^^^j^'Xi t,, made until after the verdict is given, either of the i"^^- fact that money has been paid into court, or of the amount paid in. The jury shall be required to find the amount of the debt or damages, as the case may be, without reference to any payment into court. (E. Or. 22; r. 22, E. R. S. C, Nov., 1893, r. 9.) 18. Where the estate of a deceased person who p^^^^^J'-^^j. has died intestate is entitled to a fund or to a share smaii intes- of a fund in court not exceeding $500, and it is " ® *° * *^- proved to the satisfaction of the court or a judge that no administration has been taken out to such deceased person, and that his assets do not exceed the value of $500 including the amount of the fund or share to which the estate of such deceased person is entitled, the court or a judge may direct that such fund, or share of a fund, shall be paid, transferred. 86 Order XXa. r. 18. EEPLT AND SUBSEQUENT PLEADINGS. or delivered to the person who, being a widower, widow, child, father, mother, brother or sister of the deceased would be entitled to take out administra- tion to the estate of such deceased person. (E. R. S. C, 1915, S. C. R., Jan. 23rd, 1919.) Order XXHI. rr. 1—8. ORDER XXIII. BEPLY AND SUBSEQUENT PLEADINGS. (234.) Reply, when made. (235.) Subsequent pleadings, leave for. (286.) Time for de- livery. (237.) Reply to counter- claim. (238.) Close of pleadings. (239.) New assign- ment, abol- ished. 1. A plaintiff shall deliver his reply, if any, within twenty-one days after the defence or the last of the defences has been delivered, unless the time is extended by the court or a judge. (E. 276.) 2. No pleading subsequent to reply, other than a joinder of issue, shall be pleaded without leave of the court or a judge, and then shall be pleaded only upon such terms as the court or judge thinks fit. (E. 277.) 3. Subject to the next preceding rule, every pleading subsequent to reply shall be delivered within four days after the delivery of the previous pleading, unless the time is extended by the court or a judge. (E. 278.) 4. Where a counter-claim is pleaded, a reply thereto shall be subject to the rules applicable to statements of defence. (E. 279.) 5. As soon*as any party has joined issue upon the preceding pleading of the opposite party, simply, without adding any further or other pleading thereto, or has made default as mentioned in order XXVII, rule 12, the pleadings as between such par- ties shall be deemed to be closed. (E. 280.) 6. No new assignment shall be necessary or used. But everything which was formerly alleged by way of new assignment may hereafter be intro- duced by amendment without leave of the statement of claim, or by way of reply. (E. 281.) MATTERS ARISING PENDING THE ACTION. 87 ORDER XXIV. "'rr.'l-l'''- MATTERS ARISING PENDING THE ACTION. 1. Any ground of defence which has arisen after (240.) , action brought, but before the defendant has de- ing alter ^"'" livered his statement of defence, and before the time be pleaded?' limited for his doing so has expired, may be raised by the defendant in his statement of defence, either alone or together with other grounds of defence. And if, after a statement of defence has been de- livered, any ground of defence arises to any set-off or counter-claim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply. (E. 282.) 2. Where any ground of defence arises after the Arisin"ifter defendant has delivered his statement of defence, or Sj^^'^iTused after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for delivering a reply has ex- pired, the plaintiff may, within eight days after such ground of defence has arisen, or at any subsequent time by leave of the court or a judge, deliver a fur- ther defence or further reply, as the case may be, setting forth the same. (E. 283.) 3. Where any defendant, in his statement of de- conffs*lol fence, or in any further statement of defence as in <>* defence, the next preceding rule mentioned, alleges any ground of defence which has arisen after the com- mencement of the action, the plaintiff may deliver a confession of such defence (which confession may be in the form No. 5 in appendix B, with such varia- tions as circumstances require), and may thereupon si,gn judgment for his costs up to the time of the Coats, pleading of such defence, unless the court or a judge, either before or after the delivery of such con- fession, otherwise orders. (B. 284.) 88 PROCEEDINGS IN LIEU OF DEMUEEEE, ETC. °rr"-5r- OEDER XXV. PEOCEEDINGS IN LIEU OF DEMUEEBE AND FALSE PLEADINGS. NodSrer. 1- No demurrer shall be allowed. (E. 285.) (244.) 2. Any party shall be entitled to raise by his Point of law, it • ± jy i i • j. ' i how raised, pleading any point ot law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial : Provided that hj consent of the parties, or by order of tlie court or a judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. (E. 286.) ProMedIn s ^- ^^' ^^ ^^® opiiiiou of the court or a judge, the thereon. decisiou of sucli poiut of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or judge may thereupon dismiss the action or make such other order therein as is just. (E. 287.) ■; striunl'^out ^- Tlic court or a judgc may ordcr auy pleading bad pleading, to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a judge may order the action to be stayed or dismissed, or judgment to be entered ac- cordingly, as is just. (E. 288.) Decia/atiL ^- ^^ actiou or proceeding shall be open to ob- bl eimght'"*^ jection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not. (E. 289.) paisepllad- ^^- Statements of defence or other pleadings i°fde **' which are false, frivolous or vexatious, may on afifi- davit be set aside, in whole or in part, on such terms as to costs or otherwise as the court or judge thinks fit. (S. C. E., May 5th, 1885, (2).) DISCONTINUANCE. 89 OEDEE XXVI. °'r^r"i-r^ DISCONTINUANCE. 1. The plaintiff may at any time before receipt DiscontiAu- of the defendant's defence, or after the receipt *°''°- thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants, or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs cosu. of the action, or, if the action is not wholly discon- tinued, the costs occasioned by the matter so with- drawn. Such costs shall be taxed, and such discon- tinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be compe- tent for the plaintiff to withdraw the record or dis- ^"r'itorr' continue the action without leave of the court or a judge, but the court or a judge may before, or at, or after, the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as are just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck flf^^l "^^ out. The court or a judge may, in like manner, and with the like discretion as to terms, upon the applica- tion of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be compe- tent to a defendant to withdraw his defence, or any part thereof, without such leave. (E. 290.) 2. When a cause has been entered for trial, it withltawmg may be withdrawn by either plaintiff or defendant, H^^^i,^^ upon producing to the proper officer a consent in writing, signed by the parties. (E. 291.) 3. Any defendant may enter judgment for the j,efl^|°i»Vs costs of the action, if it is wholly discontinued co.t,. against him, or for the costs occasioned by the matter withdrawn, if the action is not wholly discontinued, if such respective costs are not paid within two days after taxation. (E. 292.) 90 DEFAULT OF PLEADING. Order XXVI. r. 4. (251.) Subsequent action. 4. If any subsequent action is brought before payment of the costs of a discontinued action, for the same or substantially the same cause of action, the court or a judge may, if they or he think fit, order a stay of such subsequent action, until such costs have been paid. (E. 293.) Order XXVU rr. 1 — 4. ORDER XXVII. DEFAULT OF PLEADING. (252.) Plaintiff in default, action may be dismissed. 1. If the plaintiff, being bound to deliver a state- ment of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the court or a judge to dismiss the action with costs, for want of prosecution; and on the hearing of such application the court or judge may, if no statement of claim has been delivered, order the action to be dismissed ac- cordingly, or may make such other order on such terms as the court or judge thinks just. (E. 294.) 2. If the plaintiff's claim is only for a debt or liquidated demand, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may at the expiration of such time enter final judgment for the amount claimed, with costs. (E. 295.) 3. When in any such action as in the next pre- ceding rule mentioned there are several defendants, if one of them mates default, as mentioned in the next preceding rule, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants. (E. 296.) 4. If the plaintiff's claim is for detention of 0^ oi'k^s*""™ goods and pecuniary damages, or either of them, and the defendant, or all the defendants^ if more than one, make default as mentioned in rule 2, the plain- tiff may enter an interlocutory judgment against the defendant or defendants, and a writ of inquiry shall (253.) Defendant in default, plaintiff may enter judg- ment. (254.) Default by one of sev- eral defen- dants. (255.) In actions DEFAULT IN PLEADING. 91 issue to assess the value of the s-oods and the dam- °''^''^^" o rr. 4 — 8. ages, or the damages only, as the case may be. But the court or a judge may order that, instead of a Avdt of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way which the court or a judge directs. (E. 297.) 5. When in any such action as in rule 4 men- ^^^^l^l tioned there are several defendants, if one or more some defen- of them make default, as mentioned in rule 2, the acuon for de- plaintiff may enter an interlocutory judgment *™*""'- against the defendant or defendants, so making de- fault, and proceed with his action against the others. And in such case the value and amount of damages against the defendant making default shall be assessed at the same time with the trial of the action or issues therein against the other defendants, unless the court or a judge otherwise directs. (E. 298.) 6. If the plaintiff's claim is for a debt or liqui- ^^ (zst^)^ dated demand and also for detention of goods and for detention - -Til and money pecuniary damages, or pecuniary damages only, and demand, any defendant makes default as mentioned in rule 2, the plaintiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and the dam- ages, or the damages only, as the case may be, and proceed as mentioned in rules 4 and 5. (E. 299.) 7. In an action for the recovery of land, if the ^^^/^^ss.)^ defendant makes default as mentioned in rule 2, the land, plaintiff may enter a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land, with his costs. (E. 300.) 8. Where the plaintiff has indorsed a claim for ^^.j^f/^) mesne profits, arrears of rent, in respect to the i^and_^|nd premises claimed or any part of them, or damages for breach of contract, or wrong, or injury to the premises claimed, upon a writ for recovery of land, if the defendant makes default as mentioned m rule 2 or if there is more than one defendant, some or one of the defendants make such default, the plain- tiff may enter judgment against the defaulting de- fendant or defendants, and proceed as mentioned m rules 4 and 5. (B. 301 ; E. R. S. C, Dec, 1885.) 92 DEFAULT OF PLEADING. Deiault in foreclosure actions. xxvn 9. If the plaintiff's claim is for a debt or liqui- "• »— 12- dated demand, the detention of goods and pecuniary (260.) damages,' or for any of such matters, or for the re- to^ pan. °'^ covery of land, and the defendant delivers a de- fence, which purports to offer an answer to part only of the plaintiff 's alleged cause of action, the plaintiff may by leave of the court or a judge enter judgment, final or interlocutory, as the case may be, for thB part unanswered: Provided that the unanswered part consists of a separate cause of action, or is severable from the rest, as in the case of part of a debt or liquidated demand : Provided also that, where there is a counter-claim, execution on any such judgment as above mentioned in respect to the plaintiff's claim shall not issue without leave of the court or a judge. (E. 203.) 9a. If the action is for the foreclosure of a mort- gage or the foreclosure and sale of mortgaged premises, and the defendant does not within the time allowed for that purpose deliver a defence, the plain- tiff may at the expiration of such time proceed as if the defendant had not appeared. .,. (281.) 10". In all other actions than those in the pre- Other actions /-\ t ceding rules of this Order mentioned, if the defend- ant makes default in delivering a defence, the plain- tiff may set down the action on motion for judgment, and such judgment shall be given as upon the state- ment of claim the court or a judge considers the plaintiff to be entitled to. (E. 304.) Definit^'by H- Where, in any such action as mentioned in ar^defen-^'*"^' ^^® uext preceding rule, there are several def end- dants. ants, then, if one of such defendants makes such de- fault as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial, or set down on motion for judgment against the other defendants. (E. 305.) Defiuit^'in ^^- I^ ^^^^ plaintiff does not deliver a reply, or slqi^ent pilSd-' ^^y P^^'ty does not deliver any subsequent pleading, ings. within the period allowed for that purpose, the AMENDMENT. 93 pleadings shall be deemed to be closed at the ex- O"^*" ^cxvii. piration of that period, and all the material state- "' ^^ "' ments of fact in the pleading last delivered shall be deemed to have been denied and put in issue. (E 306.) ^ 13. In any case in which issues arise in an action Eem'edy*of other than between plaintiff and defendant, if any ^^^"-^ p^'^'y- party to any such issue makes default in delivering any pleading, the opposite party may apply to the court or a judge for such judgment, if any, as upon the pleadings he appears to be entitled to. And the court or judge may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties. (E. 307.) _ 14. Any judgment by default, whether under g„tt|^65^)^.^^ this Order or under any other of these rules, may be judgmLr'by set aside by the court or a judge, upon such terms as to costs or otherwise as such court or judge thinks fit. (E. 308.) OEDEE XXVIII. ^Order^ rr. 1 — 2. AMENDMENT. 1. The court or a judge may, at any stage of the Amindment proceedings, allow either party to alter or amend his <>' indorse- 7, ". 1 T • ^ -, ment and indorsement, or pleadings, m such manner and on pieadmgB. such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy be- tween the parties. (E. 309.) 2. The plaintiff may, without any leave, amend ^me'ndment his statement of claim, whether endorsed on the writ ^^t^^^''^'*'*^ or not, once at any time before the expiration of the leave, time limited for reply and before replying, or, where no defence is delivered, at any time before the ex- piration of four weeks from the appearance of the defendant who has last appeared. (E. 310.) 94 AMENDMENT. (269.) Disallowance of amend- ment. (270.) Pleading after amend- ment. XXVIII 3. A defendant who has set up any counter-claim "■ 3—7- or set-off may, without any leave, amend such Am'ndmlt countcr-claim or set-off at any time before the ex- by defendant piratiou of the time allowed him for answering the without 1 1 1 p 1 • J.T ' leave. reply and beiore such answer, or m case there is no reply, then at any time before the expiration of twenty-eight days from defence. (E. 311.) 4. Where any party has amended his pleading under either of the next two preceding rules, the op- posite party may, within eight days after the (ie- livery to him of the' amended pleading, apply to the court or a judge to disallow the amendments, or any part thereof, and the court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as are just. (E. 312.) 5. Where any party has amended his pleading under rules 2 or 3, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead or vdthin eight days from the delivery of the amendment, whichever shall last expire ; and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment. (E. 313.) A u^cltion ^- -'-^ ^^^ cases not provided for by the preceding for leave to rules of tliis Order, application for leave to amend may be made by either party to the court or a judge, or to the judge at the trial of the action, and such amendment may be followed upon such terms as to costs or otherwise as are just. (E. 314.) 7. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the court or a judge. (E. 315.) (272.) Time limited for amend- ment. AMENDMENT. 95 8. An indorsement or pleading may be amended *^^*; f^i^' by written alterations in the copy which has been — -^^;^^ — delivered, and by additions on paper to be inter- Amendment, ' *^ -LA how made. leaved therewith if necessary. (E. 316.) 9. Where any indorsement or pleading is Marwlg' amended, the same, when amended, shall be marked If^^^f^^ with the date of the order, if any, under which the same is so amended, and of the day on which snch amendment is made, in manner following, viz. : "Amended day of pursuant to order of dated the day of ." (E. 317.) 10. Where any indorsement or pleading is Deaier^'of amended, such amended document shall be delivered amended ^ , . , . pleaaings. to the opposite party within the time allowed for amending the same. (B. 318.) 11. Clerical mistakes in judgments or orders, or clerical"' errors arising therein from any accidental slip or errors, omission, may at any time be corrected by the court or a judge on motion or summons without an appeal. (E. 319.) 12. The court or a judge may at any time, and Qenivli'^ on such terms as to costs or otherwise as the court Sm'Indment. or judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings. (E. 320.) 13. The costs of and occasioned by any amend- costi^^*' ment made pursuant to rules 2 and 3 of this Order shall be borne by the party making the same, unless the court or a judge otherwise orders. (E. 321.) 14. In appeals brought before it, the court shall ^^^ment have all the powers and duties in reference to the ^y court of amendment of proceedings which the court has in causes originating therein. (1882, c. 2, r. 8.) 96 SUMMONS FOB DIRECTIONS. Order XXIX. rr. 1 — 2. ORDER XXIX. (280.) Summons for direc- tions. SUMMONS FOE DIRECTIONS. 1. {a.) Subject as hereinafter mentioned, in every action a summons for directions may be taken out by tlie plaintiff, return- able in not less than four days. (&.) Such summons shall be taken out after ap- pearance and before the plaintiff takes any fresh step in the action other than application for an injunction, or for a receiver, or for summary judgment under Order XIV, or to enter judgment in de- fault of defence under Order XXVII, rule 2. (c.) id.) (e.) The summons shall be in the form No. 3, appendix K, with such variations as cir- cumstances require, and shall be ad- dressed to and served upon all such par- ties to the action as may be affected thereby. This rule shall not apply to actions coming under the provisions of Order XVIII, A, or to proceedings commenced by origin- ating summons. (281.) Interlocutory proceedings. "Where, under Order XVIII, A,- the defend- ant applies for a statement of claim, the judge may deal with such application as if the plaintiff had been entitled to take out and had taken out a summons for directions. (E. 340; E. R. S. C, May, 1897, r. 1; E. R. S. C, Aug., 1897.) 2. Upon the hearing of the summons the court or a judge shall, so far as practicable, make such order as is just with respect to all the interlocutory proceedings to be taken in the action before the trial, and as to the costs thereof, and more particularly with respect to the following matters : Pleading, particulars, admissions, discovery, interrogatories, inspection of documents, inspection of real or per- sonal property, commissions, examination of wit- SUMMONS MOn DIEECTIONS. 97 nesses, place and mode of trial. Such, order shall be ^^^ in the form No. 4, appendix K, with such variations "■ 2—7- as circumstances require. (E. Or. 30, r. 2; E. R. S. C, Nov., 1893.) 3. No affidavit shall be made or used on the (382.) hearing of the said summons except by special order to° il^m&ll. of the court or a judge. (B. Or. 30, r. 3 ; E. R. S. C, Nov., 1893.) 1. On the hearing of the summons any party to (282a.) whom the summons is addressed shall, as far as prac- rppiy''%or ticable, apply for any order or directions as to any "JiJ^sotioi^s. interlocutory matter or thing in the action which he may desire. (E. Or. 30, r. 4 ; E. R. S. C, Nov., 1893.) 5. Any application subsequently to the original (282b.) sunmaons for any directions as to any interlocutory appiuatfo'^nV matter or thing by any party shall be made under the summons by two clear daj^s' notice to the other party, stating the grounds of the application. (E. Or. 30, r. 5 ; E. R. S. C, Nov., 1893.) 6. Any application by any party which might (282c.) , 1 "' 1 , , 1 1 • 5 J.1 • • 1 Costs of sub- have been made at the hearing 01 the original sum- sequent ap- mons shall, if granted on any subsequent application, p^"="'*"'°^- be granted at the costs of the party applying, unless the court or a judge is of the opinion that the ap- plication could not properly have been made at th(3 hearing of the original summons. (E. Or. 30, r. 6: E. R. S. C, Nov., 1893.) 7. On the hearing of the summons, the court or (282d.) a judge may order that evidence of any particular '^'''^^^'^''^■ fact, to be specified in the order, shall be given by statement on oath of information and belief, or by production of documents or entries in books, or by copies of documents or entries or otherwise as the court or judge may direct. (E. Or. 30, r. 7 ; E. R. S. C, Aug., 1894, r. 1.) S.N.S.- 98 DISCOVEEY AND INSPECTION". "rr"!-*?"- ORDER XXX. DISCOVEEY AND INSPECTION. intei-rolator- 1- In any causG or matter the plaintiff or de- "'^- f endant by leave of the court or a judge may deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories, when delivered, shall have Further in- ^ ^*^^^ ^^ ^^^ ^°^^ tliereof, stating which of such in- terrogatoriea. terrogatories each of such parties is required to Where irreie- auswer : Providcd also that interrogatories which ™"*' do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstand- ing that they might be admissible on the oral cross- examination of a witness. (E. 343 ; E. R. S. C, Nov.. 1893, r. 12; E. R. S. C, 1917.) D <.28f' . 2. On an application for leave to deliver interro- Particular in- . , ■^-'- . , . terrogatories gatoriBS, the particular interrogatories proposed to ted. ° " be delivered shall be submitted to the court or judge. In deciding upon such application, the court or judge shall take into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the court or judge shall consider necessary either for disposing fairly of the cause or matter or for saving costs. (E. 344; E. R. S. C, Nov., 1893, r. 13.) costi^^^' ^- -'-^ adjusting the costs of the cause or matter, inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing authority or of the court or judge, either with or without an applica- tion for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interroga- tories and. the answers thereto shall be paid in any event by the party in fault. (E. 345.) Pori^oik- ^- Interrogatories shall be in the form No. 6 in terrogatories. appeudix B, with such varlatious as circumstances require. (E. 346.) DISCOVERY AND INSPECTION". 99 5. If any party to a cause or matter is a body °^®^:^^" corporate or a joint stock company, whether incor- — porated or not, or any other body of persons empow- corporations ered by law to sue or to be sued, whether in its own "odiel ""^ name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly. (E. 347.) 6. Any objection to answering any one or more (288.) n i"^ ' ± J. • i.1 n i_i X 'J. Objections to ot several interrogatories on the ground that it or interrogator- they is or are scandalous or irrelevant, or not bona '*^' fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently mater- ial at that stage, or on any other ground, may be taken in the affidavit in answer. (E. 348.) ****** 8. Interrogatories shall be answered by affidavit, Timl^?or' to be filed within ten days, or within such other time answering. as a judge allows. (E. 350.) 9. An affidavit in answer to interrogatories Affida^vuin shall be in the form No. 7, in appendix B, with such answer. variations as circumstances require. (E. 351). ****** 11. If any person interrogated omits to answer ^ (293.) /vi- T n j"j_ ±' Insufficient or anwers insufficiently, the party mterrogatingmay answers. apply to the court or a judge for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the judge directs. (E. 353.) 12. Any party may, without any affidavit, apply (294.) ^i^ •> , ^ •' ' „ -, -,. ,. Discovery oi to the court or a judge for an order directing any documents. other party to any cause or matter to make dis- covery on oath of the documents which are or have been in his possession or power, relating to any mat- ter in question therein. On the hearing of such application the court or judge may either refuse or adjourn the same, if satisfied that such discovery is noit necessary or not necessary at that stage of the cause or matter, or make such order, either gener- ally or limited to certain classes of documents, as 100 DISOOVEEY AND INSPECTION. (295.) Affidavit of discovery. (296.) Production of documents by order. °r*."2— fef ■ ^i^y i^ their or his discretion be thought fit : Pro- vided that discovery shall not be ordered when and so far as the court or judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter, or for saving costs. (E. 354; B. E. S. C, Nov. 1893, r. 13.) 13. The affidavit, to be made by a party against whom such order as is mentioned in the next pre- ceding rule has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall be in the form No. 8, in appendix B, with such variations as circumstances require. (E. 355.) 14. It shall be lawful for the court or a judge, at any time during the pendency of any cause or matter to order the production by any party thereto, ■upon oath, of such of the documents in his posses- sion or power, relating to any matter in question in such cause or matter, as the court or judge thinks right; and the court may deal with such documents, when produced, in such manner as appears just. (E. 356.) 15. Every party to a cause or matter shall be entitled, at any time, by notice in writing, to give notice to any other party in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards put any such document in evidence on his behalf in such cause or matter, unless he satisfies the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge deems sufficient for not complying with such notice; in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge thinks-fit., (E.357.) 16. Notice to any party to produce any docu- ments referred to in his pleading or affidavits shall (297.) Notice to produce docu- ments re- ferred to in pleadings or affidavits. Effect of non-compli- ance. (298.) Form of notice. DISCOVERT AND IlSrSPECTION. 101 be in the form No. 9, in appendix B, with such varia- °r/"i6^^. tions as circumstances require. (E. 358.) 17. The party to whom such notice is given (299,) sliall, within two days from the receipt of such on° MUce" notice, if all the documents therein referred to have been set forth by him in such affidavit as is men- tioned in rule 13, or if any of the documents refer- red to in such notice have not been set forth by him 'in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of banker's books or other books of account, or ^^^h"'lc. books in constant use for the purpose of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in the form No. 10 in appendix B, with such variations as circumstances require. (E. 359.) 18. (1.) If the party served with notice under „ (3oa.) ^ ' . T ,■ 1} _L- J?" Order for In- rule 15 omits to give such notice 01 a time tor mspec- spection. tion or objects to give inspection, or offers inspec- tion elsewhere than at the office of his solicitor, the court or judge may, on the application of the party desiring it, make an order for inspection in such place and in such manner as he thinks fit: Provided that the order shall not be made when and so far as the court or a judge is of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs. (2.) Any application to inspect documents, except such as are referred to in the pleadings, par- ticulars, or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit show- ing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The court or judge shall not make such order for inspection of such documents when and so far as the court or judge is of opinion that it is not 102 DISCOVEET AND INSPECTION. °rr.*i8— I?" necessary either for disposing fairly of the cause (E. 360;E. R. S. C, (800a.) Verified or matter or for saving costs. Nov., 1893, r. 14.) 18a. (1.) Where inspection of any business books is applied for, the court or a judge may, if they or he think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with' the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations: Provided that, notwithstanding that such copy has been supplied, the court or a judge may order inspection of the book from which the copy was made. (2.) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the court or a judge to inspect the document for the purpose of deciding as to the validity of the claim of privilege. (3.) The court or a judge may, on the applica- speclfic "dora- tion of any party to a cause or matter at any time, "''" °' and whether an affidavit of documents has or has not already been ordered or made, make an order requiring any other party to state by affidavit whe- ther any one or more specific documents, to be speci- fied in the application, is or are, or has or have at any time been in his possession or power, and, if not then in his possession, when he parted with the same, and what has become thereof. Such appli- cations shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or docu- ments specified in the application, and that they relate to the matters in question in the cause or mat- ter, or to some of them. (E. Or. 31, r. 19a; E. R. S. C, Nov., 1839, r. 15.) (301.) 19. If the party from whom discovery or inspec- quesfiSn on tiou is sought objects to the same, or any part to^'diMo'vOTy thereof, the court or a judge may, if satisfied that depend.. j.^^ right to the discovery or inspection sought Where privil- ege claimed judge may inspect. Further ap- plication for DISCOVEKY AND INSPECTION. 103 depends on the determinatin of any issue or question °lt"^fs- in dispute in the cause or matter, or that for any — — ^ other reason it is desirable that any issue or ques- tion in dispute in the cause or matter should be de- termined before deciding upon the right to the dis- covery or inspection, order that such issue or ques- tion be determined first, and reserve the question as to the discovery or inspection. (E. 362.) 20. If any party fails to comply with any order (302.) , .', ,. „ -,. '' Consequence to answer interrogatories, or for discovery or of disotedi- inspection of documents, he shall be liable to attach- ™"" ment. He shall also if a plaintiff be liable to have his action dismissed for want of prosecution, and if a defendant to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may- apply to the court or a judga for an order to that effect, and an order may be made accordingly. (E. 363.) 21. Service of an order for interrogatories or 003.) discovery or inspection on the solicitor of the party to^^M&eh- against whom the order is made shall be sufficient ""*"*" service upon which to found an application for an attachment for disobedience to the order. But the party against whom the application for an attach- ment is made may show in answer to the application that he has had no notice or knowledge of the order. (E. 364.) 22. A solicitor upon whom an order against any (304.) , p . , , . T • !■ Attacliment party for interrogatories or discovery or inspection of solicitor, is served under the next preceding rule, who neg- lects without reasonable excuse to give notice thereof to his client, shall be liable to attachment. (E. 365.) 23. Any party may, at the trial of a cause, (305.) , , . . . T Answers to matter or issue, use m evidence any one or more be evidence, of the answers or any part of an- answer of the opposite party to interrogatories, without putting in the others or the whole of such answer : Provided al- ways, that in such case the judge may look at the whole of the answers, and if he is of the opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to 104 DISCOVBET AND INSPECTION. Order XXX. V,p rr. 23— 27. "^ used without them, he may direct them to -be put in. (E. 366.) (307.) Mode of giv ing security for costs of discovery. (308.) Disposal of deposit. (308a.) Order for payment out, of money lodged to ' ' Security for Costs Account.' ' (309.) Discovery by Sheriff's officer. 25. Any party seeking discovery by interroga- tories or otherwise may be ordered upon making application for discovery to pay into court to a separate account in the action to be called ' ' security for costs account " to abide further order the sum of $20, or any less sum, and may be ordered further to pay into court such additional sum as the court or a judge directs. If security be so ordered, the party seeking discovery shall, with his interrogatories or order for discovery, serve a copy of the receipt for the said payment into court, and the time for answering or making discovery shall in such cases commence from the date of such service, and the party from whom discovery is sought shall not be required to answer or make discovery unless and until the said payment if so ordered has been made. (E. 368, E. E. S. C, 1917, S. C. E. Jan. 23, 1919) 26. Unless the court or a judge at or before the trial otherwise orders, the amount standing to the credit of the " Security for Costs Account " in any cause or matter, shall, after the cause or matter has been finally disposed of, be paid out to the party by whom the same was pai(i in, on his request, or to his solicitor on such party's written authority, in the event of the costs of the cause or matter being adjudged to him, but, in the event of the court or judge ordering him to pay the costs of the cause or matter, the amount in court shall be subject to a lien for the costs ordered to be paid to any other party. (E. 369.) 26a. If after a cause or matter has been finally disposed of, by consent "or otherwise, no taxation of costs is required, the judge may, either by con- sent of the parties, or on being satisfied that any party who has lodged any money as security for costs in such cause or matter has become entitled to have the same paid out to him, give an order to that effect. "(E. 369a.) 27. In any action against or by a sheriff in respect to any matters connected with the execution ADMISSIONS. 105 of Ms office, the court or a judge may, on the appli- °'**'_^^i^- cation of either party, order that the affidavit to be -^ - made in answer either to interrogatories or to an order for discovery, shall be made by the officer or person actually concerned. (E. 370). 28. Where the party required to produce docu- (sio.) ments' is a corporation aggregate, the affidavit shall oflScerr&Z, be made by one of the officers of the corporation, uon."''""" (0. (1897), r. 468, part.) 29. The deponent in any affidavit provided for crois^examin- in the next preceding rule shall be subject to cross- ation of de- examination, and his affidavit shall have the same effect, as nearly as may be, as the affidavit of a party, unless where the court or judge sees reason for holding otherwise. (0. (1888), r. 512.) 30. Persons who have ceased to be officers of a j-or^M^of- corporation may be examined in the same manner as ^o^.^s «^- existing officers. (0. 1897), r. 439, part.) 31. This order shall apply to infant plaintiffs ois.) and defendants, and to their next friends and guard- appf/toln- ians ad litem. (E. Or. 31, r. 29, E. E. S. C, Nov. ""'''• 1893, r. 16.) OEDEE XXXI. order XXXI. rr. 1 — 2. ADMISSIONS. 1. Any party to a cause or matter may give (sis.) "^ ^ ^ -,. ji . ■ •(• J.1X Admission of notice, by his pleading, or otherwise m writing, that opp™ent^s he admits the truth of the whole or any part of the ^** "'"''''*■ case of any other party. (E. 371). 2. Either party may call upon the other party (3i4 ) ^ '' , . m"j. J-* iNOtice to to admit any document, saving all just exceptions ; admit docu- and in case of refusal or neglect to admit, after such "'^''*'- notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, what- ever the result of the cause or matter may be, unless at the trial or hearing the court or a judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice is given, except where the 106 ADMISSION'S. (315.) , Form oi notice. (316.) Notice to ad- mit facts °''t"2^^^' omission to give the notice is, in the opinion of the taxing authority, a saving of expenses. (E. 372.) 3. A notice to admit documents shall be in the form No. 11 in appendix B, with such variations as circumstances require. (E. 373.) 4. Any party may, by notice in writing, at any time not later than seven days before the day for which notice of trial has been given, call on any other party to admit for the purposes of the cause, matter, or issue only, any specific fact or facts men- tioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the court or a judge, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the court or a judge certifies that the refusal to admit was reasonable, or unless the court or a judge at any time otherwise orders or directs : Provided that any admission made in pur- suance of such notice is to l3e deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion, or in favor of any per- son other than the party giving the notice : Provided also that the court or a judge may at any time allow any party to amend or withdraw any admission so made on such terms as are just. (E. 374.) „ (317 ) 5_ ^ notice to admit facts shall be in the form r orms of ^ ^ EdmilsioS* No. 12, in appendix B, and admissions of facts shall be in the form No. 13, in appendix B, with such variations as circumstances require. (E. 375.) (318.) 6. Any party may at any stage of a cause or atoSions™ matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge for such judgment or order as upon such admissions he is entitled to, without waiting for the determination of any other question between the parties; and the court or a judge may upon such application make such order, or give such judg- ment, as the court or judge thinks just. (E. 376.) ISSUES, INQUIRIES AND ACCOUNTS. 107 7. An affidavit of the solicitor or Ms clerk of the °''^^„^^- due signature of any admissions made in pursuance '- ^- of any notice to admit documents or facts, shall be proit^^oV sufficient evidence of such admissions, if evidence ^^^''^^'^'"'^■ thereof is required. (E. 377.) 8. Notice to produce documents shall be in the (820.) form No. 14, in appendix B, with such variations no™e "o pro- as circumstances require. An affidavit of the soli- citor, oi;- his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served. (E. 378.) 9. If a notice to admit or produce comprises pjjj^ ^o ^^^«- there is any undue delay in the prosecution of any (330.) .■^. .. •' . ^ ,-, -,. •' Expediting accounts or inquiries, or m any other proceedings accounts or under any judgment or order, the court or a judge ™i'''"®^- may require the party having the conduct of the proceedings under any judgment or order, or any other party, to explain the delay, and may thereupon make such order in respect to expediting the pro- ceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings, as the circum- stances of the case require; and for the purposes aforesaid, any party may be directed to summon the persons whose attendance is required, and to conduct any proceedings and carry out any directions which are given ; and any costs of such party, so directed, shall be paid by such parties or out of such funds as the court or judge directs ; and if any such costs are not otherwise paid, the same shall be paid out of such moneys (if any) as are provided by the Legis- lature. (E. 388.) 10. In the event of a referee declining to act, (331.) -. . 1 . T. Tj^Tii? 11 Substituted or dying or becoming disqualmed beiore he has reieree. made his report, the parties may, or if they cannot agree, a judge may, on application of either party, appoint a new referee. (0. 1897, r. 648, (3.) OEDER XXXIII. ^Or^er^ r. 1. 1. SPECIAL CASE. 1. The parties to any cause or matter, at any (332.) stage of the cause or matter, or without any previous f^tl'Tp^M proceedings having been instituted, may concur in ''^^^■ stating the questions of law arising therein in the form of a special case for the opinion of the court. Every such special case shall be divided into para- graphs numbered consecutively, and shall concisely state such facts and documents as are necessary to Document., enable the court to decide the questions raised 110 SPECIAL CASE. fact. (333.) Preliminary- question of law. Special case without con- sent. xxxm thereby. Upon the argument of such case the court rr. 1— s. and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and docu- inference of ments stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial. (E. 389, P. A. 225.) 2. If it appears to the court or a judge, that there is in any cause or matter a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in any such other manner as the court or judge deems expedient, and all such further proceedings as the decision of such question of law renders unnecessary may thereupon be stayed. (E. 390.) Printing Lse 3. Every special case shall be printed by the plaintiff and signed by the several parties or their counsel or solicitors, and shall be filed by the plain- tiff. Printed copies for the use of the judges shall be delivered by the plaintiff. (E. 391.) 4. No special case in any cause or matter to which a married woman (not being a party thereto in respect to her separate property or of any separ- ate right of action by or against her), infant, or per- son of unsound mind not so found by inquisition or judicial declaration is a party, shall be set down for argument without leave of the court or a judge, the application for which shall be supported by suffi- cient evidence that the statements contained in such special case, so far as the same affect the interest of such married woman, infant, or person of un- sound mind, are true. (E. 392.) 5. Either party may enter a special case for argument by delivering to the proper officer a mem- orandum of entry in the usual form, and also, if any married woman, infant, or person of unsound mind not so found by inquisition or judicial declaration is a party to the cause or matter, producing a copy (335.) Persons un- der disabil ity. (336.) Entry for argument. SPECIAL CASE. Ill of the order giving leave to enter the same for xxxm argument. (E. 393.) "■ s— 9- 6. The parties to a special case may enter into (337.) an agreement in writing, that on the judgment of the ^%°a"ment^' court being given in the affirmative or negative of "osTs""^^ ^""^ the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court directs, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter; and the judgment of the court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. (E. 394.) 7. This order shall apply to every special case ^ jfeation stated in a cause or matter, or in any proceeding of order, incidental thereto. (E. 395.) 2. ISSUES OF FACT WITHOXJT PLEADINGS. 8. Where the parties to a cause or matter are j,^j.^|p]^^4. agreed as to the question of fact to be decided mgs may be between them, they may, after writ issued and before wuh!"^* judgment, by consent and order of the court or a judge, proceed to the trial of any such questions of fact without formal pleadings; and such questions may be stated for trial in an issue in the form No. 15, in appendix B, with such variations as circum- stances require, and such issue may be entered for trial and tried in the same manner as any issue joined in an ordinary action, and the proceedings shall be under the control and jurisdiction of the court or judge, in the same way as the proceedings in an action. (E. 397.) 9. ' The court or a judge may, by consent of the ^^^^^f^^ parties, order that, upon the finding in the affirm- v^^^^^^on ative or negative of such issue as in the next preced- issue, ing rule mentioned, a sum of money, fixed by the parties, or to be ascertained upon a question inserted in the issue for that purpose, shall be paid by one of the parties to the other of them, either with or without the costs of the cause or matter. (E. 398.) 113 THIAL. Ord. XXXIII rr. 10 — 11. (341.) Judgment according to agreement. (342.) Effect of judgment. 10. Upon the finding of any such issue, as in rule 8 mentioned, judgment may be entered for the sum so agreed or ascertained as aforesaid, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless other- wise agreed, or unless the court or a judge shall otherwise order for the purpose of giving ' either party an opportunity for moving to set aside the finding or for a new trial. (E. 399.) 11. The proceedings upon such issue, as in rule 8 mentioned, may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action. (E. 400.) Order XXXIV. rr. 1— (2). ORDER XXXIV. TRIAL. 1. — Place. (343.) No local venue. Change of venue to residence of defendant. 1. (1.) There shall be no local venue for the trial of any action, except when otherwise provided by statute. Every action shall, unless the court or a judge otherwise orders, be tried in the county in which the place named on the statement of claim is situated, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appearance. Where no place of trial is named, the place of trial shall, unless the court or judge otherwise orders, be the county in which the defendant has been required to file his appearance. (E. 425.) (2.) In any action in which the plain titf does not reside within the province, the defendant after appearance shall be entitled to an order changing the place of trial to the county in which the defend- ant resides, or in which, in case of a corporation, the defendant corporation has its chief place of busi- ness, or in which the cause of action arose, on satis- fying the court or a judge that he has a good TRIAL. 113 defence to such action on the merits. (1900, c. 15, s. 4, ^^$^r 1901, c. 15, s. 12.) rf w-s. la. — Time of Trial. 1a. (1.) A judge may at any time sit as a special wais court to try or hear any cause to be tried without " *"'' ™° a jury or to dispose of any such cause partly tried or heard. (2.) The plaintiff at any time after the close Op'g^^«j^j'j.°T^j of the pleadings, and the defendant at any time »* any time, after six weeks from the close of the pleadings, may apply to the Judge in Chambers, on notice to the other party, to have such cause set down for special trial, and such judge may order that the trial thereof shall take place at such time and place as he deems proper, and thereupon such trial shall take place as so ordered, and the trial thereof, and the judgment of the judge so trying the same, shall have the same effect and be subject to the same procedure and right of appeal as if such cause was tried during a regular sitting of the court. (3.) Unless by consent there shall be at least Ten days' ten days between the making of such order and the of ^1^!^"^ time fixed for such trial. (4.) Service of such order shall be sufficient notice of trial, and no entry for trial shall be required. (5.) It shall be the duty of the judge, from time P^^'-^^l'^^ to time selected to sit in chambers, to try all causes such actions, so set down for trial. (E. S., c. 104; Or. 58, r. 9; 1891, c. 14. s. 1; S. C. E., 30th Oct., 1893, rr. 5, part 6. S. C. E. Jan. 23, 1919.) 2. — Mode of Trial. 3. The court or a judge may, if it appears desir- ^ J^^^f^)^, able, direct a trial Avithout a jury of any question or p^-^-ji*^^ issue of fact, or partly of fact and partly of law, where power iooiAt; vj- j^^ J 1 t/ 1 • 1 • ^ j.„ existed be- arising in any cause or matter which previous to fore, the first day of October, A. D. 1884, could, without 114 TEIAL. ^order^ any consent of the parties, have been tried without a "■ 3—7: jury. (E. 428.) 4. The court or a judge may direct the trial (347.) Power to order jury. (346.) Power to dis- pense with without a iury of any cause, matter or issue requir- 3ury in cases , tj j j ^ 7 ^ n -, of account, xng auy prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in their or his opinion conveniently he made with a jury. (E. 429.) 5. In any other cause, matter or issue upon the application of any party thereto for a trial with a jury of the cause or matter or any issue of fact, an order may be made for a trial with a jury. (E. 430.) (348.) 6. (a). In every cause, matter, or issue, unless Cases tried */ / 7 ? without jury, under the provisions of the next preceding rule, a trial with a jury, is ordered, or under the Judicature Act a trial is required to be had with a jury, the mode of trial shall be by a judge without a jury : Pro- vided that in any such case the court or a judge may at any time order any cause, matter or issue to be tried by a judge with a jury, or by a judge sitting with assessors, or by an official referee or special referee with or without assessors. (&.) The plaintiff in any cause, matter or issue in which he is entitled to a jury, may have the issues tried by a special jury upon giving notice in writing to that effect to the defendant at the time when he gives notice of trial or notice requiring a jury. (c.) The defendant in any cause, matter or issue which he is entitled to a jury, may have the issue tried by a special jury on giving notice in writing to that effect at the time when he gives notice requiring a jury, or at any time not less than six clear days before the time for which notice of trial has been given. (d.) A judge may at any time make an order for a special jury, upon such terms, if any, as to costs and otherwise, as are just. (E. 431.) 7. Subject to the provisions of the preceding rules of this order, the court or a judge may, in any cause or matter, at any time or from time to time, order that different questions of fact arising there- Special fiury at plaintiff's instance. Special jury at defen- dant's in- stance. Order for special jury. (349.) Trial of different questions in different mod^B. TEIAL. 115 in be tried by different modes of trial, or that one xxxiv or more questions of fact be tried before the others, "• 7— is. and may appoint the places for such trials, and in all cases may order that one or more issues of fact be tried before any other or others. (E. 432.) 8. Every trial of any question or issue of fact „ (?50-) ^ OH-fi 1 11 Q. ETA to with a jury shall be by a single judge, unless such try. trial is specially ordered to be by two or more judges. (E. 433.) 9. Nothing in this order shall affect any pro- ^j-buritions ceedings under any statutory provisions relating to "^ ' arbitration. (B. 434.) 3. — Notice and Entry of Trial. (11 10. Notice of trial may be given in any cause or .(352.) matter by the plaintiff or other party in the position giv^the of plaintiff. Such notice may be given with the ''°*"^' reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial. (E. 435.) 11. (1.) If the plaintiff does not within six defendant weeks after the close of the pleadings, or within may do so. such extended time as the court or a judge allows, give notice of trial the defendant may, before notice of trial given by the plaintiff, give notice of trial. (2.) If the plaintiff does not give notice of trial for the first sittings after the expiration of the said six weeks for which notice of trial may be given, the defendant may apply to the court or judge to dismiss the action for want of prosecution; and on the hearing of such application, the court or a judge may order the action to be dismissed accord- ingly, or may make such other order, and on such terms, as to tJie court or judge seems just. (E. 436.) 12. Notice of trial shall state whether it is for ^„^^t'^ the trial of the cause or matter or of issues therein, notice, and the place and day for which it is to be entered for trial. It shall be in the form No. 16, in appendix B, with such variations as circumstances require. (E. 437.) 13. Ten days' notice of trial shall be given, L^^, unless the party to whom it is given has consented, """""e- 116 THIAL. (356.) Who may enter for trial. XXXIV *^^" ^^ under terms, or has been ordered to take shoi rr. 13— 20. notjce of trial, and shall be sufficient in all case unless otherwise ordered by the court or a judg Short notice of trial shall be five days ' notice, unles otherwise ordered. (E. 438.) l-l. Notice of trial shall be given before enterin the action for trial; and the action may be entere for trial, notwithstanding that the pleadings are nc closed, provided that notice of trial has been givei Either party after notice of trial may enter fo trial. If both parties enter the action for trial, i shall be tried in the order of the plaintiff's entrj (E. 439;0. (1897) r. 538, (c.) 15. Unless the action is entered for trial withi: the time limited therefor, by one party or the othe] the notice of trial shall be no longer in force, unles leave for a later entry is given by the court or judge. (E. S., c. 104, Or. 34, r. 15.) 16. Notice of trial for Halifax shall not be o operate as for any particular sittings ; but shall b deemed to be for any day after the expiration o the notice on which the trial may come on in its orde on the list. (E. 441.) 17. Notice of trial elsewhere than in Halifa: shall be deemed to be for the first day of the thei next sittings at the place for which notice of tria is given. (E. 442.) 18. No notice of trial shall be countermande( except by consent or by leave of the court or a judg which leave may be given subject to such terms, as ti costs or otherwise, as are just. (E. 443.) Co '^ of'' ^^- ^^^ party entering the action for trial shal pleadings for deliver to the proper officer a copy of the whole o the pleadings, for the use of the judge at the trial on the day before the first day of the sittings o the court at which the action is' to be tried, such cop; to be certified by the prothoriotary having charge of the pleadings filed. (E. 454; 0. (1897), r. 53! part. ) Bntiyfor' 20. Entries for trials shall be given to tb trial. prothonotary on or before the Tuesday precedinj (357.) Notice of trial to lapse if no entry. (358.) Notice of trial in Hali- fax. (359.) Notice else- where. (360.) Countermand of notice. TRIAL. 117 the first day of the sittings, at which the causes xxxiv are to be tried. (P. A. 200.) rr. 20—24. 21. In making up the dockets separate lists shall docket Vow be made of trials with juries and trials without made up. juries. On each list the seniority of the causes shall be determined by the dates of the issue of the respective writs. All causes entered that have been on the list of the preceding sittings, and the trial of which has been deferred without the fault of the plaintiff or party then seeking to bring the cause to trial by notice of trial or entry, or which were not tried for want of time, shall be placed on the docket in the relative order in which they stood on the docket of such preceding sittings. (P. A. 201.) 21a. Notice of trial for a special sittings shall g ^{1^^^^^^, be given at least ten days before the commence- ti^gs, notice ment of that sittings. (S. C. P., Feb. 25th, 1896, r. "' '"'' "*" !•) 21b. All causes for trial at a special sittings j-nt^^^^t'''^ shall be entered with the prothonotary at least ten days before the commencement of the sittings by the party giving the notice of trial. (S. C. P., Feb. 25th, 1896, r. 2.) 4. — Proceedings at Trial. 22. If, when a trial is called on, the plaintiff uon-app^ir- appears, and the defendant does not appear, the f°^|^°^' *"' plaintiff may prove his claim so far as the burden of proof lies upon him. (E. 455.) 23. If, when a trial is called on, the defendant ^ oes.) . . ' , , Nort-appear- appears, and the plaintiff does mot appear, the a^ce of piam- defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him. (E. 456.) 24. Any verdict or judgment obtained where g^^^[l^^2slde one party does not appear at the trial, may be set jji^sment^s aside by the court or a judge upon such terms as pa/ty doTs seem fit, upon an application made within six days ""^ °'^^^^''- after the trial. Such application may be made at 118 TBIAL. Order XXXIV. rr. 24 — 39. (367.) Postponement of trial. (368.) Evidence omitted by accident or mistake, how supplied. (369.) Ahspncp of material ■witness. Affidavit. (370.) Witness un- der habeas corpus. (371.) Speeches to jury. the sittings at which the trial took place, or in Halifax. (E, 457.) 25. The judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such place, an(i upon such terms, if any, as he thinks fit. (E. 458.) 26. Where, through accident or mistake or other cause, any party omits or fails to prove some fact material to his case, the judge may proceed with the trial, subject to such fact being afterwards proved, at such time, and subject to such terms and conditions as to costs and otherwise, as the judge directs ; and, if the case is being tried by a jury, the judge may direct the jury to find a verdict as if such fact had been proved, and the verdict shall take effect on such fact being afterwards proved as directed; and, if not so proved, judgment shall be entered for the opposite party, unless the court or a judge otherwise directs. This rule shall not apply to actions for libel or slander. (0. 1897, r. 549.) 27. No trial shall be postponed on the applica- tion of a defendant or party in the position of a defendant on the ground of the absence of a material witness, unless the affidavit upon which such appli- cation is made, in addition to the usual grounds, distinctly states that the party so applying is advised and believes that he has a good defence upon the merits to the action (or counterclaim as the case may be), and that the application is not made sole- ly for delay, but to enable the applicant to substan- tiate his defence. (P. A. 207.) 28. Where a party is brought up to attend the trial or hearing of a cause or matter by virtue of any writ of habeas corpus duly issued, and by reason of the pressure of other business, or from any other 'cause, the trial or hearing of the cause or matter in which such party is concerned is postponed to a fu- ture day, a new writ of habeas corpus may be issued for such future day, if the court or a judge so ' directs, without payment of any fee. (E. 459.) 29. Upon a trial with a jury, the addresses to the jury shall be regulated as follows : the party who TRIAL. 119 begins, or his counsel, may at tlie close of his case, ^^ if his opponent does not announce any intention to rr.a^— s4a. adduce evidence, address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, may open his case and also sum up the evidence, if any, and the right to reply shall be the same as heretofore. (E. 460.) 30. In actions for libel or slander, in which the (372.) defendant does not by his defence assert the truth of mufga"tioi''in the statement complained of, the defendant shall not iweT* be entitled on the trial to give evidence in chief, with a view to the mitigation of damages, as to the circum- stances under which the libel or slander was pub- lished, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plain- tiff of the matters as to which he intends to give evidence. (E. 461.) 31. The judge may in all cases disallow any (373.) questions put in cross-examination of any party or fros's"exam- other witness which appear to him to be vexatious, '*'*"°°- and not relevant to any matter proper to be inquired into in the cause or matter. (E. 462.) 32. The judge shall, at or after trial, direct judg- j^^'^'^^j' ^g ment to be entered as he thinks right, and no motion te entered for judgment shall be necessary. (E. 463; E. R. S. trial!" C, Feb., 1892, r. 1.) 33. The prothonotary or other proper officer jroti^Mro- present at any hearing or trial shall make a note of trf^f °^° "* the times at which such hearing or trial commences and terminates respectively, on each day on which the same takes place. (E. 464.) 34. Upon every trial the proper officer shall sook^Ifre- enter all such findings of fact as the judge directs to <=" ,. Tiiion .T . Motion to made m a cause or matter, the further consideration a^iopt report. of which has been adjourned, any party may, on the hearing of such further consideration, without notice of motion or summons, apply to the court or judge to adopt the report, or without leave of the court or a judge give not less than four days' notice of motion, to come on with the further consideration, to vary the report or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee. (E. 478.) 43. Where the report of the referee has been jjotice^oV made in a cause or matter, the further consideration motion, of which has not been adjourned, any party may, by an eight days' notice of motion, apply to the court to adopt and carry into effect the report of the re- feree, or to vary the report, or to remit the cause or matter or any part thereof for re-hearing or fur- ther consideration to the same or any other referee. (E. 479.) 4:3a. Where the whole of any cause or matter is costl^ ta*"dis- ref erred to a referee under an order of court, he may, ^*^°J "^'j^,.^^ subject to any directions in the order, exercise the ' ^ ^ ^° same discretion as to costs as the court or a judge could have exercised. (E. 479& ; E. E. S. C, Dec, 1889, r. 4.) 43 &. The provisions of the nine next preceding rules of this Order shall apply where any cause or 122 THIAL. Order matter or any qaestion or issue of fact therein is re- „. 43b_47. f erred to an officer of tlie court or to a special referee (335^,^ or arbitrator. Provided that where the arbitrator is Aibitrator appoiutcd otherwisc than by an order of the court under an ■'■•■'- ^ . . ... order to have the provisious of Tulc 36 as to sittyig de die in diem ST""'' shall not apply. (E. 479c., E. E. S. C, Dec, 1889, official referee ^ > x-l ./ \ 7 ; ; ; r. 5.) 6. — Writ of Inquiry and Reference as to Damages. cer4'n'-iies ^4. Thc provislous of Tules 13, 14, 18, 25, 29, 30 trials" to*° and 31 of this Order shall, with the necessary modifi- appiy. cations, apply to an inquiry pursuant to a writ of inquiry. (E. 480.) inquiry^of ^5. lu cvcry actiou or proceeding in which it fore^ffflcOTof^PP^^^^ ^^ ^^^ court or a judge that the amount of Court, or damagcs sought to be recovered is substantially a son" matter of calculation, it shall not be necessary to issue a writ of inquiry, but the court or judge may direct that the amount for which final judgment is to be entered shall be ascertained by an officer of the court or other person, and the attendance of wit- nesses and the production of documents before such officer or other person may be compelled by subpoena, and such officer or other person may adjourn the in- quiry from time to time, and shall indorse upon the order for referring the amount of damages to him the amount found by him, and shall deliver the order with such indorsement to the person entitled to the damages, and such and the like proceedings may thereupon be had as to taxation of costs, entering judgment and otherwise, as upon the finding of a jury upon a writ of inquiry. (E. 481.) To iha^t' ume ^6. Where damages are to be assessed in respect damages to ^0 auv Continuing cause of action they shall be as- u6 &SS66S6Q. ^^ sessed down to the time of the assessment. (E. 482.) Arris^t^of' '^'^ ■ ^^ ^^ ^^ made to appear to a judge that a wit- witness, ness has been duly served with a subpoena, and his fees for travel and attendance paid or tendered to him, and that such witness refuses or neglects to attend to give evidence as required by his subpoena, and that his evidence is necessary and material, such judge may, in addition to any power which he pes- EVIDENCE GENERALLY. 133 sesses for the punishment of such witness, issue a ^^ warrant under his hand and seal directed to any rr. 47— 48 sheriff or other officer or officers for the immediate arrest of such witness, to be brought before the court or person authorized to hear the evidence, for the purpose of giving evidence in the cause. (1880, c. 13, s. 23.) 48. The warrant referred to in the next preced- ^ (^90 ) 1 T • n o -KT ^ . ,. ^^ Form of war- ing rule may be m the form No. 6, m appendix H, rant. with such variations as circumstances require. (E. S., c. 104, Or. 34, r. 48.) ORDEE XXXV. order XXXV. rr. 1 — 2. 1. EVIDENCE GENERALLY. 1. In the absence of any agreement in writing- .P^^-K . n Ti • Evidence at between the solicitors 01 all parties, and subject to trial, these rules, the witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in open court, but the court or judge may at any time for sufficient reason order that any particu- lar fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court or judge thinks reasonable, or that any witness whose attendance in court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise be- fore a commissioner or examiner: Provided that where it appears to the court or judge that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be cross-examin- produced, an order shall not be made authorizing "*"'°- the evidence of such witness to be given by affidavit. (E. 483.) 2. An order to read evidence taken in another „ . <393.) 1 j_ 1 • Evidence m cause or matter shall not be necessary, but such evi- ^^°^^^^^ "^^^ dence may, saving all just exceptions, be read on ex v^ithouf * l)arte applications hj leave of the court or a judge, to be obtained at the time of making any such appli- cation, and in any other case upon the party desiring to use such evidence giving two days' previous notice 124 EXAMINATION OF WITNESSES. ^'n'.^^^' to tlie other parties of his intention to read such evidence, and on like leave of the court or a judge. (E. 485.) 3. Certified copies of all writs, records, plead- ings, and documents filed in the Supreme Court shall be admissible in evidence in all causes and matters and between all persons or parties, to the same ex- tent as the original would be admissible. (E. 486.) (393.) Certified copies admis- sible. (393a.) Depositions of witnesses about to leave the province, aged or in- firm, bow taken. (39Bb.) Notice of de- positions to be given, length and contents of notice. (394.) Power to order ex- amination of witness. (395.) Forms of order for commission and of writ. 2. EXAMINATION" OF WITNESSES. 3a. Any witness who is about to leave the prov- ince or who from illness or other infirmity is unable to travel, may be examined before a judge or com- missioner on due notice being given to the adverse party, and any party upon showing sufficient cause by affidavit, may obtain from a judge or commis- sioner an order in such terms as he thinks fit, to com- pel an unwilling witness in any such cause to give evidence before the judge or commissioner. (1887,- c. 15, s. 6.) 3b. At least twenty-four hours' notice in writ- ing of such examination shall be served upon the adverse party, or his solicitor or counsel, where the person so served resides within the county in which the witness is to be examined, and an additional twenty-four hours' notice for every twenty miles that the person so served resides beyond the limits of the county, and such notice shall in all cases con- tain the name of the witness to be examined. (1887, c. 15, s. 2.) 4. The court or a judge may, in any cause or matter where it appears necessary for the purposes of justice, make any order for the examination upon oath before the court or judge or any officer of the court, or any other person, and at any place, or any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the court or judge directs. (E. 487.) 5. Orders for a commission to examine wit- nesses shall be in the forms Nos. 33 and 34, appendix K, and the writ of commission shall be in the form EXAMINATION OF WITNESSES. 135 No. 11, in appendix J, with such variations as circum- ° ^^'^^g^f ^■ stances require. (E. 488.) 5a. If the court or a judge so orders, a request ^ettera ^of to examine witnesses shall be issued in lieu of a com- request, mission. Such order request respectively shall be in the forms No. SIa. and 34b. in appendix K, with such variations as circumstances require. (E. 488a; E. R. S. C, Oct.,1884,r:6.) 6. The court or a judge may in any cause or ^^^'-^^^^^ ^^ matter at any stage of the proceedings order the at- duce. tendance of any person for the purpose of producing any writings or other documents named in the order, the production of which the court or judge thinks requisite: Provided that no person shall be com- pelled to produce under any such order any writing or document wliioh he could not be compelled to pro- duce at the hearing or trial. (E. 489.) 7. Any person wilfully disobeying any order re- j,J^^l(^^^^ quiring his attendance for the purpose of being to order for examined or producing any document, shall be deemed guilty of contempt of court, and may be dealt with accordingly. (E. 490.) 8. Any person required to attend for the pur- ^J^^^l „j pose of being examined or of producing any docu- witnesses. ment, shall be entitled to the like conduct money and payment for expenses and loss of time as upon at- tendance at a trial in court. (E. 491.) 9. Where any witness or person is ordered to be j,^^^^^^^ examined before any officer of the court, or before tave^^py °* any person appointed for the purpose, the person pieadin™ . taking the examination shall be furnished by the party on whose application the order was made with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to inform the_ per- son taking the examination of the questions at issue between the parties. (E. 492.) 10. The examination shall take place in t^e uoi'^ZK.- presence of the parties, their counsel, solicitors, or - — ^'- agents, and the witnesses shall be subject to cross- examination and re-examination. (E. 493.) 11. The depositions taken before an officer of the court,' or before any other person appointed to take amination. 126 EXAMINATION OF WITNESSES. Order ^xxxv. ^^j^g examination, shall be taken down in writing by — '- or in the presence of the examiner, not ordinarily by DepotftiiL, question and answer, but so as to represent as nearly andsfgned. as may be the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as think fit to attend. If the witness refuses to sign the depositions, the examiner shall sign the same. The examiner may put down any particular question or answer if there appears any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any Objections to qucstious which are objected to shall be taken down questions. ^^ ^-^^ examiuer in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or par- ties, and shall refer to such statement in the deposi- tions, but he shall not have power to decide upon the materiality or relevancy of any question. (E. 494.) (402.) 12. If any person duly summoned by subpoena fusing to at- to attend for examination refuses to attend, or if, evidence.^"^ haviug attended, he refuses to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed, and thereupon the party requiring the attendance of the witness may apply to the court or a judge ex parte or on notice for an order directing the witness to attend or to be sworn, or to answer any question, as the case maybe. (E. 495.) witntss^ob- ^^- -'-^ ^^y witness objects to any question put to ^*uestSn° ■'^™ before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the prothonotary to be filed, and the validity of the ob- jection shall be decided by the court or a judge. (E. 496.) witnes'fmay 1^. lu auy casc uuder the next two preceding payCT^sts*"^ '" mles, the court or a judge may order the witness to pay any costs occasioned by his refusal or objection. (E. 497.) Ketim oi^ ^^- When the examination of any witness before depositions, any cxamiuer has been concluded, the original de- positions, authenticated by the signature of the EXAMIKATION OP WITNESSES. 127 examiner, shall be returned by him to the prothono- °rr*i5— ^7^ tary to whom the same is returnable, and by him — '- shall be filed. (E. 498.) 15a. Depositions of witnesses residing abroad jyj^°^^f^^^ may be opened by the protlionotary at the instance of witnesses of either party ; and either party may notify the ed by either other of the return of the commission and the deposi- SonTToVith- tions taken thereunder, and no objections to the re- '" * ^^^^' ception in evidence of such depositions shall be allowed, unless taken within eight days next after such notice served; the party objecting shall be re- quired to specify his objections in writing, and the court or a judge, on summons, may then hear such objections and decide thereon. (C. 96, R. S., 4th ser., s. 2, S. C. E., 10th Dec, 1884, r. 1, (1.)). 15b. No deposition of a witness taken under the 1^0/*°^^^ ^^^ provisions of any rule of this Order shall be set aside on aside unless the court or judge is of opinion that the grounds, objections thereto are not of a purely technical character, and that substantial justice requires that such objections should prevail. (C. 96, E. S., 4th ser., s. 10; S. C. E., lOth Dec, 1884, r. 1, (2.)) 16. The person taking the examination of a wit- speciti Ve- ness under these rules may, and if need be shall, l^^^^ *^' make a special report to the court touching such ex- amination and the conduct or absence of any witness or other person thereon, and the court or a judge may direct such proceedings and make such order as upon the report they or he thinks just. (E. 499.) 17. Except where by this order is otherwise ^^Jg^oj-),,,,;. provided, or is directed by the court or a judge, no f°^J^ «"- deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same is offered, unless the court or a judge is satisfied that the deponent is dead, or beyond the jurisdiction of the court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the deposi- tions certified under the hand of the person taking the examination shall be admissible in evidence, sav- ing all just exceptions, without proof of the signature to such certificate. (E. 500.) 128 EXAMINATION" OF WITNESSES. °rr*"i^Sy 18- ^^y officer of the court or other person — — j-^ directed to take the examination of any witness or Authority to person may administer oaths. (E. 501.) administer j. ./ \ / ""^'''uoQ ) -'^- -^^y party in any cause or matter may by of wiSses subpoena ad testificandum or duces tecum require the ijefore^offi- attendance of any witness before an officer of the secured. court or other person appointed to take the examina- tion, for the purpose of using his evidence upon any proceedings in the cause or matter, in like manner as such witness would be bound to attend and be ex- amined at the hearing or trial ; and any party or wit- ness having made an affidavit to be used, or which is used, on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross-ex- amination. (E. 502.) Evide^ncV 20. Evldence taken subsequently to the hearing how' t'aken ~ ^'^ trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial. (E. 503.) o f"^' . 21. The practice with reference to the examina- Practice as to ^ . . . „ . cross-examin- tlou, cross-cxammation, and re-exammation oi wit- nesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage. (E. 504.) s eiitPdireo- ^2. The practlcc of the court with respect to evi- tions as to deuce at a trial, when applied to evidence to be taken evi ence. before au officer of the court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which are given. (E. 505.) NotJc"before ^3. No affidavit or deposition filed or made be- usingaffi- fore issue joined in any cause or matter shall, with- out special leave of the court or a judge, be received at the hearing or trial thereof, unless within one month after issue joined, or, within such longer time as is allowed by special leave of the court or a judge, notice in writing has been given by the party intend- ing to use the same to the opposite party of his in- tention in that behalf. (E. 506.) Evidenra^ 24. All evidence taken at the hearing or trial of S''^ubse-^*'^ any cause or matter may be used in any subsequent qiient stages, procecdiugs iu the same cause or matter. (E. 507.) SUBPCENA. 129 -SUBPCENA. O'^^r XXXV. rr. 26 — 32. 25. Where it is intended to sue out a subpoena, (415.) a prcecipe for that purpose, in the form No. 16, in fuTpffinaf" appendix G, and containing the name or firm of the solicitor intending to sue out the same, and, where such solicitor is agent only, then also the name or firm of the principal solicitor, shall in all cases be delivered and filed. (E. 508.) 26. A writ of subpcena shall be in one of the ^ (^le.) forms 1, 2, 3, 4 and 5 in appendix J, with such varia- su™™. tions as circumstances require. (E. 509.) 27. Where a subpoena is required for the attend- subptnafor ance of a witness for the purpose of proceedings in chambers. Chambers, such subpoena shall issue upon an order from the judge. (E. 510.) 28. Every subpoena other than a subpoena duces (418.) tecum shall contain three names where necessary or n^me^^in"' required, but may contain any larger number of ''^''p"^'^*- names. (E. 511.) 29. No more than three persons shall be included (419.) in one subpoena duces tecum, and the party suing out su^"cen'a "" the same shall be at liberty to sue out a subpoena for ^^""^ '*™"' each person if it is deemed necessary or desirable. (E. 512.) 30. In the interval between the suing out and (420.) service of any subpoena the party suing out the same Srort^'in^ may correct any error in the names of parties or wit- ^^^p'^'^*' *^°- nesses, and may have the writ re-sealed upon leaving a corrected prcecipe of such subpoena marked with the words "altered and re-sealed," and signed with the name and address of the solicitor suing out the same. (E. 513.) 31. The service of a subpoena shall be effected ^^^f^W by delivering a copy of the writ, and of the indorse- subpoena. ment thereon, and at the same time producing the original writ. (E. 514.) 32. Affidavits filed for the purpose of proving (422.) ,1 .n 7 ni?jij. Affidavits of the service of a subpoena upon any deiendant must service, state when, where, and how, and by whom, such ser- vice was effected. (E. 515.) S.N.S. — 9 130 FOEEIGN JUDGMENT. Order XXXV, rr. 33 — 38. (423.) Subpcena, when to be served. (424.) Action to perpetuate testimony. (425.) When Crown interested, Attorney- G-eneral to be a party. (426.) Action must be brought. (427.) Trial not necessary. 33. The service of any subpcena shall be of no ■validity if not made within twelve weeks after the issue of the writ. CE. 516.) 4. PEEPETUATING TESTIMONY. 34. Any person who would under the circum- stances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right to claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim. (E. 517.) 35. In all actions to perpetuate testimony touch- ing any honour, title, dignity, or office, or any other matter or thing in which the Crown may have any estate or interest, the Attorney-General may be made a defendant; and in all proceedings in which the depositions taken in any such action in which the Attorney-General was so made a defendant are offered in evidence, such depositions shall be admis- sible, notwithstanding any objection to such deposi- tions upon the ground that the Crown was not a party to the action in which such depositions were taken. (E. 518.) 36. Witnesses shall not be examined to perpet- uate testimony unless an action has been conamenced for the purpose. (E. 519.) 37. No action to perpetuate the testimony of witnesses shall be set down for trial. (E. 520.) 5. FOBEIGN JUDGMENT. (428.) 38. In any action brought in this province Action on .. T'*inj.i' * i j. foreign jTidg- agamst any person domiciled therein, on a judgment ^uu, defence obtained in an action in any other province or coun- Loti°on^a'vaii- try to wMch no defence was made, any defence which able. might have been made to the original action may be made to the action on the judgment. (1880, c. 13, s. 27.) AFFIDAVITS AND DEPOSITIONS. 131 OEDER XXXVI. 3^« rr. 1—5. How intituled 1. AFFIDAVITS AND DEPOSITIONS. 1. Upon any motion, petition, or summons, evi- (429.) dence may be given by affidavit ; but the court or a WMiowed*^ judge may, on the application of either party, order examination, the attendance for cross-examination of the person making- any such affidavit, and *may make such interim or other order as appears necessary to meet the justice of the case. (E. 521; 0. (1881) r. 283.) 2. Every affidavit shall be intituled in the cause (430.) or matter in which it is sworn ; but in every case in which there is more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs or defendants, as the case may be ; and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed. (E. 522.) 3. Affidavits shall be confined to such facts as j^g.(^^^^-'> the vsdtness is able of his own knowledge to prove, tow fonied except on interlocutory motions, on which state- ments as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which unnecessarily sets forth matters of hearsay or argu- mentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. (E. 523.) 4. Affidavits sworn in Nova Scotia shall be ^J^^H^^ sworn before a judge, commissioner, or officer em- to be sworn powered under these rules to administer oaths. (E. 524.) 5. Every commissioner shall express the time Timi*and when, and the place where, he takes any affidavit, or p^*"/,;"* t„ recognizance ; otherwise the same shall not be held te stated, authentic, nor be admitted to be filed or enrolled without the leave of the court or a judge ; and every such commissioner shall express the time when, and the place where, he does any other act incident to his office. (E. 525.) 132 AFFIDAVITS AND DEPOSITIONS. Older XXXVI. rr. 6 — 13. (434.) Affidavits sworn abroad (435.) Mode of drawing affi- davits. (436.) Description of deponent. (437.) Jurat where more than one depon- ent. (438.) Must be filed, (439.) Striking out parts of affi- davits. (440.) Interline- ations and alterations. (441.) Illiterate de- ponents. 6. All examinations, affidavits, declarations, affirmations, and attestations of honour, in causes or matters depending in the court, may be sworn and taken out of Nova Scotia, as prescribed in " The Evidence Act." (E. 526.) 7. Every affidavit shall be dravpn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a dis- tinct portion of the subject. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit sub- stantially departing from this rule. (E. 527.) 8. Every affidavit shall state the description and true place of abode of the deponent, and shall be signed by him. (E. 528.) 9. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer, it shall be sufficient to state that it was sworn by both (or all) of the " above-named " deponents. (E. 529.) 10. Every affidavit or other proof used in a cause, matter or proceeding shall be filed. (E. 530.) 11. The court or a judge may order to be struck out from any affidavit any matter which is scan- dalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. (E. 531.) 12. No affidavit, having in the jurat or body thereof any interlineation, alteration, or erasure, shall, without leave of the court or a judge, be read or made use of in any matter depending in court, unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, nor in the case of an erasure unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialed in the margin of the affidavit by the officer taking it. (E. 532.) 13. Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be AFFIDAVITS AND DEPOSITIONS. 133 illiterate or blind, the officer shall certify in the ^xvi. jurat that the affidavit was read in his presence rr. is— 1." 9. to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the court or a judge is- other- wise satisfied that the affidavit was read over to and appeared to be perfectly understood by the depon- ent. (E. 533.) 14. The court or a judge may receive any affi- Defiolt^in davit sworn for the purpose of being used in any ""» t ji^rat. cause or matter, notwithstanding any defect by mis- description of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received. (E. 534.) 15. A copy of an affidavit may in all cases be cer/ifitl'copy used, the original affidavit having been previously "^^y ^« '^^^'i- filed, and the copy duly authenticated with the cer- tificate of the prothonotary. (E. 535.) ' 16. No affidavit shall be sufficient if sworn be- Amdatt^not fore the solicitor acting for the party on whose before "oiid- behalf the affidavit is to be used, or before any agent ^p^/tV*"- °^ of such solicitor, or before the party himself. (E. 536.) 17. Any affidavit which would be insufficient if ^^ [*^5.) sworn before the solicitor himself shall be insuffi- ei^ks^^or cient if sworn before his clerk or partner. (E. 537). 18. Where a special time is limited for filing pu^^^*^). affidavits, no affidavit filed after that time shall be i«te. used, unless by leave of the court or a judge. On motions founded on affidavits either party may, by leave of the court or a judge, make affidavits in Affld^^;!'- in answer to the affidavits of the opposite party, as to new matter arising out of such affidavits. (E. 538, P. A. 92.) 19. Except by leave of the court or a judge no o^J**Vot order made ex parte in court, founded on any affi- ^^^j^^^^^i^^^ davit, shall be of any force, unless the affidavit on mad^^beiore which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion. (E. 539. ) 134 TEIAL ON AFPIDAYIT. Order XXXVI. rr. 19a — 26. (447a.) Verification of new trustee's con' sent to act. 19a. The consent of a new trustee to act shall be sufficiently evidenced by a written consent signed by him and verified by the signature of his solicitor. Form No. 25 in appendix L, shall be used, with such variations as circumstances require. (E. 539a, E. R. S. C, Dec, 1885, r. 14.) 2. AFFIDAVITS AND EVIDENCE IN CHAMBERS. (448.) Notice of in- tention to use affidavit. (449.) Affidavits may be re- used. (450.) Alterations in exhibit. (451.) Exhibits not to be an- nexed. (452.) Title of cer- tificate on exhibits. 20. The party intending to use any affidavit in support of any application made by him in chambers shall give notice to the other parties concerned of his intention in that behalf. (E. 540.) 21. All affidavits which have been previously made and read in court upon any proceeding in a cause or matter may be used before a judge in chambers. (E. 541.) 22. Every alteration in an account verified by affidavit shall be marked Avith the initials of the commissioner or officer before whom the affidavit is sworn, and such alterations shall not be made by erasure. (E. 542.) 23. Accounts, extracts, and other documents, re- ferred to by affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits. (E. 543.) 24. Every certificate on an exhibit referred to in an affidavit, signed by the commissioner or officer before whom the affidavit is sworn, shall be marked with the short title of the cause or matter. (E. 544.) 3. TEIAL ON AFFIDAVIT. (463.) 25. Within fourteen days after a consent for Be^e'iist*of taking evidence by affidavit as between the parties afsdavits. j^^g i^ggj^ given, or within such time as the parties agree upon, or the court or a judge allows, the plain- tiff shall file his affidavits and deliver to the defend- ant or his solicitor a list thereof. (E. 545.) (454.) 26. The defendant, within fourteen days after feri?iist"of ° delivery of such list, or within such time as the par- atadavits. tieg agree upon, or the court or a judge allows, shall TRIAL OX AFFIDAVIT. 135 file his affidavits and deliver to the plaintiff or his ^^yi. solicitor a list thereof. (E. 546.) "■ ze— so. 27. Within seven days after the expiration of (455.) the last mentioned fourteen days, or such other repfy7"^ '" time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof. (E. 547.) 28. "When the evidence is taken by affidavit, any (456.) , T • • i . T j_ T 1 Cross-etxam- party desiring to cross-examine a deponent who has ination of de- made an affidavit filed on behalf of the opposite p"""™*^- party may serve upon the party by whom such affi- davit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before Notice. the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the court or judge specially appoints; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the court or a judge. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. (E. 548.) 29. The party to whom such notice as is men- ^ (457.) ± 'f - . . Compelling tioned in the next preceding rule is given may attendance. compel the attendance of the deponent for cross- examination in the same way as he might compel the attendance of a witness to be examined. (E. 549.) 30. When the evidence under this order is taken j^^^f-Jf^J by affidavit, notice of trial shall be given at the same triai^after time, after the close of the evidence, as in other ci^seT&c. cases is by these rules provided after the close of the pleadings. Other affidavits may be used if all the parties interested consent thereto, or a court or a judge so orders. (E. 550.) 136 MOTION" FOE KEW TEIAL. xg|*«i. ORDER XXXVII. rr. 1 — e'. MOTION FOE NEW TEIAL. (459.) 1. Every motion for a new trial, or to set aside for^new trial, a verdict, finding, or judgment, shall be made (1) in w ere ma e. ^^^^.j g^use or matter where there has been a trial thereof, or of any issue therein with a jury, to the court {in banco), and (2) where there has been a trial without a jury, by appeal to the court {in banco). (E. 551.) (460.) 2. Every application for a new trial shall be Application to o I- j n ■ • J j. i be by notice by uotice of motiou, and no rule msi, order to show of motion, not *^ p , t jij_i ij. by rule nisi cause, Of lormal proceeding other than such notice of motion, shall be made or taken. The notice shall state the grounds of the application, and whether all or part only of the verdict or findings is complained of. (E. 553.) 3. The notice of motion shall be served within twenty days after the trial, but the court or a judge may, either before or after the expiration of that period, enlarge the time for giving notice. (E. 554, S. C. R., J.an. 23, 1919.) Notict^^mo- ^- ^^® notice may be amended at any time by tj.°^j*ornew leave of the court or a judge, on such terms as the ing with and court OT judge thinks just; but such notice may be le'ave.'^ amended without leave at any time within fifteen days after the filing or reception of the official re- porter's or judge's notes or report of the summing up : Provided the hearing of the motion has not then been commenced. (E. 555.) (461.) When notice to be given. (464.) New trial onlty for sub- stantial wrong. 6. A new trial shall not be granted on the ground of mis-direction, or of the improper reception or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appears to such court that such wrong or miscar- MOTION FOE JUDGMENT. 137 riage affects part only of the matter in controversy, xxxvii or some or one only of the parties, the court may "■ «— s-" give final judgment as to part thereof, or as to New triai as some or one only of the parties, and direct a new*°^°''^'" trial as to the other part only or as to the other party or parties. (E. 556.) 7. A new trial may he ordered on any question, (465.) Ne^w tri£il as whatever are the grounds for the new trial, without to part not X J? ' 'i-i xi j2 1 * 1 • ' to affect other mterrermg with the finding or decision upon any fludmgs. other question. (E. 557.) 8. When notice of motion for a new trial or ^^^'■^^l-\ appeal has been served, after either of the modes ceedmgs. of trial mentioned in rule 1 of this Order, the f-urther proceedings on the verdict, finding, or judg- ment may be stayed, in whole or in part, until the decision on such motion by the court or by the judge who presided at the trial, on such terms as the court or judge thinks fit. Th-e applicant, however, shall be entitled to an order so staying the proceedings on filing sufficient security, or making deposit of money, to the approval of the court or judge, in such reasonable amount as the court or judge directs, to respond the judgment to be finally given in the cause or matter. An application to the judge for such stay of proceedings shall not prejudice the applicant's right to apply to the court for such stay. (E. S., c. 104, Or. 37, r. 8.) OEDER XXXVIII. xx°xvn xxxvni. rr. 1 — 2. MOTION FOR JUDGMENT. i. Except where by the Act or by these rules j^^^tnt by it is provided that judgment may be obtained in any motion, other manner, the judgment of the court shall be obtained by motion for judgment. (E. 559.) 2. Every arbitrator or referee to whom a cause j^^^^^^J ^^ or matter is referred for trial shall direct how judg- be entered ment shall be entered, and such judgment shall be entered accordingly by the prothonotary. (E. 560; E. E. S. C, Feb. 1892, r. 4; E. 564a; E. E. S. C, Dec, 1889, r. 6.) 138 MOTION FOE JUDGMENT. xxxviu. 3. Where, at or after a trial with a jury, the rr. 3—8. judgo has directed that any judgment be entered, (469.) any party may apply to set aside such judgment and fudgmra" to enter any other judgment, on the ground that the wrcTngfy """^ judgment directed to be entered is wrong by reason entered. l]^g^i \]^q finding of the jury upon the questions sub- mitted to them has not been properly entered. (E. 561.) Motio*J°for 4. Where, at or after a trial by a judge, either whelT™' with or without a jury, the judge has directed that wroilfy.*' any judgment be entered, any party may apply to set fln'dTngl"" aside such judgment and to enter any other judg- ment, upon the ground that, upon the finding as entered, the judgment so directed is wrong. (E. 562.) Appifcltion 5- -^n application under rules 3 and 4 of this Conn." *" Order shall be to the court. (E. 563.) setting^a'side ^- Where, at a trial by an arbitrator or referee, re^e^rTe""' "* ^® ^^^^ directed that any judgment be entered, any party may move to set aside such judgment and to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong. Such motion shall be made to the court. (E. 564; E. 564a; E. R S. C, Dec, 1889, r. 6.) Appiitltion ^- Where issues have been ordered to be tried, for judgment qj- igsues or Questions of fact to be determined in alter issues ■*■-., found. any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right so to do has arisen, then after the expiration of such ten days any de- fendant may set down a motion for judgment, and give notice thereof to the other parties. (E. 565.) Appikltion 8- Where issues have been ordered to be tried, whei^s^r* °^ issues or questions of fact to be determined in any suef hive manner, and some only of such issues or questions been found, of f act havG been tried or determined, any party who considers that the result of such trial or determina- tion renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the court or a judge for leave to set MOTION FOE JUDGMENT. 139 down a motion for judgment, without waiting for xxxvm such trial or determination. And the court or .iudge "■ »— i^-' may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as appear just, and may give any directions which appear desirable as to postponing the trial of the other issues of fact. (E. 566.) 9. No motion for judgment shall, except by leave Ljj^Jttlfon of the court or judge, be set down after the expira- of motion for tion of one year from the time when the party seek- ''" ^'"'" ' ing to set down the same first became entitled so to do. (E. 567.) 10. Upon a motion for judgment, or upon an ap- p^J^^l^^^ plication for a new trial, the court may draw all in- court on mo- f erences of fact, not inconsistent with the finding of the jury, and if satisfied that it has before it all the materials necessary for finally determining the ques- tions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it is of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or deter- mined, and such accounts and inquiries to be taken and made, as it thinks fit. (E. 568.) 11. Where it is made to appear to the court or a p^^^^f"' judge, on the hearing of any application which is application pending before the court or judge, that it will be con- motion for ducive to the ends of justice to permit it, the court h^afSrof*"^ or judge may direct the application to be turned into "°''^"' a motion for judgment, or a hearing of the cause or matter ; and thereupon the court or judge may make such order as to the time and manner of giving the evidence in the cause or matter, and with respect to the further prosecution thereof, as the circumstances of the case require ; and upon the hearing it shall be discretionary with the court or judge to either pro- nounce a judgment or make such order as the court or judge deems expedient. (0. 1897, r. 617.) 12. (1) At any time after the writ has been ^^ J*J8^>. issued the plaintiff may, by leave of the court or iudgment^ty judge, serve notice of motion for judgment. Such service of leave may be given ex parte and subject to such ^' ' 140 BNTET OF JUDGMENT. Or der xxxvm. r. 12. directions, as to the service of the notice of motion and filing of the affidavits and otherwise as seems just, and may be indorsed upon the notice of motion or embodied in an order, if an order is deemed neces- sary. (2) Upon the hearing of such motion the court or judge may grant the application on such terms and conditions as are thought proper, or may refuse the same ; or instead of either granting or refusing the same, may give such directions for the examination of either parties or witnesses, or for the making of further inquiries, or with respect to the further pro- secution of the suit, as the circumstances of the case require, and upon such terms as to costs as the court or judge thinks right. (0. 1897, r. 608.) Order XXXIX. rr. 1 — 3. (479.) Judgment, how entered (480.) Date of entry where judg- ment pro- nounced in Court. (481.) Date in other cases. OEDER XXXIX. ENTRY OF JUDGMENT. 1. Every judgment shall be entered by the pro- thonotary in the book to be kept for the purpose. The forms in appendix F shall be used with such variations as circumstances require. No judgment heretofore entered up shall be held to be invalid on the ground that the pleadings were not delivered to the officer for the purpose of such entry. (E. 569.) 2. Where any judgment is pronounced by the court or a judge in court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the court or judge otherwise orders, and the judgment shall take effect from that date : Provided that by special leave of the court or a judge a judgment may be ante-dated or post-dated. (E. 571.) 3. In all cases not within the next preceding rule the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper efficer for the purpose of such entry, and the judgment shall take effect from that date. (E. 572.) ENTET OF JUDGMENT. 141 5. Every judgment or order, made in any cause xxxS: or matter requiring any person to do an act thereby "• e— 16. ordered, shall state the time, or the time after ser- ussT" vice of the judgment or order, within which the act fn'io"t'o''b6'"' is to be done, and upon the copy of the judgment or ^°°«- order which shall be served upon the person required to obey the same there shall be indorsed a memor- andum in the words or to the effect following, viz : — "If you, the within-named A. B., neglect to obey this judgment {or order) by the time therein limited, you will be liable to process of execution for the pur- pose of compelling you to obey the same judgment {or order)." (E. 573.) 6. Where, under the Act or these rules or other- .(*84 ) wise, it is provided that any judgment may be Prothonotary entered upon the filing of any affidavit or production j'udgmlnt!^ of any document, the prothonotary shall examine the affidavit or document produced, and if the same is regular and contains all that is by law required he shall enter judgment accordingly. (E. 574.) 7. Where, by the Act or these rules or otherwise, , J^^^-} ^ 7 J ' Judgment on any iudgment may be entered pursuant to any order order, oertia- or certificate, or return to any writ, the production to writ. of such order, certificate or return shall be a suffi- cient authority to the officer to enter judgment ac- cordingly. (E. 575.) 8. Where reference is made to a referee or (486.) Master to ascertain the amount for which final judg- tMcate oVre- ment is to be entered, the certificate of the referee or *^"'"'*- Master shall be filed when judgment is entered. ( E. 576.) 9. In any cause or matter where the defendant g^u^f^^j!;^ has appeared by solicitor, no order for entering consent judgment shall be made by consent unless the con- sent of the defendant is given by his solicitor or agent. (E. 577.) 10. Where the defendant has not appeared, or ^oJe^Vf has appeared in person, no such order shall be made defendant ap- unless the defendant attends before a judge andpersoS^"' gives his consent in person, or unless his written con- sent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister or solicitor. (E. 578.) 142 EXECUTION. Older xxxrx. r. 11. (489.) Satisfaction pieces. 11. Satisfaction pieces shall be signed by the plaintiff or his personal representatives, or by a solicitor specially authorized for that purpose, unless a judge, on special circumstances set forth by affi- davit, dispenses with such authorization. The satis- faction piece may be in the form No. 18, appendix F. (P. A. 281.) Order XL. rr. 1 — 4. ORDER XL. (490.) Effect of service of judgment or order. (491.) Non-perform- EXECUTION. 1. Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand therefor, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand. (E. 579.) 2. Where any person who has obtained any tiin on which jiidgTnent or order upon condition does not perform judgment or complv with such condition, he shall be considered to have waived or abandoned such judgment or order so far as the same is beneficial to himself, and any other person interested in the matter may, on breach or non-performance of the condition, take either such proceedings as the judgment or order in such case warrants, or such proceedings as might have been taken if no such judgment or order had been made, unless the court or a judge otherwise directs. (E. 580.) (492.) 3. A judgment for the recovery by or payment Enforcing , r. n inii! judgment for to any per SOU ot money may be eniorced by any oi monlj^^" the modes by which a judgment or decree for the payment of money might have been enforced at the time of the coming into force of these rules. (E. 581.) Judgment for ^- ^ judgment for the payment of money into fnt^Turt court may be enforced by writ of sequestration, or in cases in which attachment is authorized by law, by attachment, or by writ of execution. (E. 582.) EXECUTION. 143 5. A judg-ment for the recovery or for the de- "r*^*!^^- livery of the possession of land may be enforced by — — writ of possession. (E. 583.) judlmettfor 6. A judgment for the recovery of any property (495.) other than land or money may be enforced : IthSHV- '" (a) By writ for delivery of the property; (b) By writ of attachment; (c) By Avrit of sequestration. (E. 584.) 7. A judgment requiring any person to do any (496.) act other than the payment of money, or to abstain do^olTot'to" from doing anything, may be enforced by writ of at- ^^ ^"^ ^'''• tachment, or by committal. (E. 585.) 8. In the rules of this Order the expression (497.) "writ of execution" includes the writ of execution ^'pTei°fonl heretofore used, and writs of sequestration, and at- ^^^"f/n-. tachment, and all subsequent writs that may issue gxeoution'^'''^ for giving effect thereto. And the expression "is- ae^''l^*, ^^^y suing execution against any party" means the issu- ing of any such process against his person or pro- perty as under the preceding rules of this Order or under the practice of the court at the time of the coming into force of these rules, is applicable to the case. (E. 586.) 9. Where a judgment or order is to the effect (iss) that any party is entitled to any relief subject to or after judg- i_T o 1/2^1 xj? Ti' J.* ment on con- upon the lumiment 01 any condition or contingency tingency. the party so entitled may, upon the fulfilment of the condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the court or a judge for leave to issue execution against such party. And the court or judge may, if satisfied that the right to relief has arisen according to the terms of the judgment or order, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried. (E. 587.) 11. No writ of execution to enforce any order or (500.) decree shall issue without the production to the pro- judgment °** thonotary by whom the same should be issued of ele^tion.'''"^ 144 EXECUTION. Order XL. rr. 11—16. (501.) Prsacipe for execution, (502.) Indorsement of name of solicitor, or party suing in person. (503.) Date and form. (504.) Levy foir fees, poundage and expenses. (505.) Indorsement ai directions to sheriff. such order or decree. And the prothonotary shall be satisfied that the proper. time has elapsed to en- title the creditor to execution. (E. 589.) 12. No writ of execution shall issue without the party issuing it, or his solicitor, filing a praecipe for that purpose ; the praecipe shall contain the title and number of the action, the date of the judgment, and of the order, if any, directing the execution to be issued, the names of the parties or of the firm against whom, or against whose goods, the execution is to be issued; and shall be sig-ned by or on behalf of the solicitor of the party issuing it, or by the party issu- ing it, if he does so in person. The forms in appeii- dix G shall be used, with such variations as circum- stances require. (E. 590.) 13. Every writ of execution shall be indorsed with the name of the solicitor, or firm of solicitors, actually suing out the same, and when the solicitor actually suing out the writ sues out the same as agent for another solicitor, the name of such other solicitor shall also be indorsed upon the writ ; and if no solici- tor is employed to issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the place of such plaintiff's or defendant's residence. (E. 591.) 14. Every writ of execution shall bear date of the day on which it is issued. The forms in appendix H shall be used, with such variations as circum- stances require. (E. 592.) 15. In every case of execution the party entitled to execution may levy the fees and commissions of the sheriff executing the writ and the costs and ex- penses of execution, over and above the sum re- covered. (E. 593.) 16). Every writ of execution for the recovery of money shall be indorsed with a direction to the sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of five EXECUTION. 145 per cent, per annum from the time wlien the judg- order xl. ment or order was entered or made, provided that in "' ^°~^'*- cases where there is an agreement between the par- ties that more than six per cent, interest shall be secured by the judgment or order, then the indorse- ment may be accordingly to levy the amount of in- terest so agreed, and the indorsement may state how the writ is to be executed. (E. 594, and P. A. 265.) 17. Every person to whom any sum of money or (soe.) any costs are payable under a judgment or order iiow°s"oorit may, so soon as the money or costs are payable, sue "'^''''^''«- out one or more writ or writs of execution to enforce payment thereof, subject nevertheless as follows : (a) If the judgment or order is for payment ^^y™™*, within a period therein mentioned, no such writ as aforesaid shall be issued until after the expiration of such period : (b) The court or a judge may, at or after the suyof execu- time of giving judgment or making an order, stay execution until such time as it or he thinks fit. (E. 595.) 18. Upon any judgment or order for the re- gepa'^"'^ covery or payment of a sum of money and costs, writs for there may be at the election of the party entitled costs*'" thereto either one writ or separate writs of execu- tion for the recovery of the sum and for the recovery of the costs, but a second writ shall only be for costs, and shall be issued not less than eight days after the first writ. (E. 596.) 19. A party who has obtained judgment or an (sos.) order, not being a judgment for payment of money tion™o^SS' or costs, or for the recovery of land, shall not issue f^'oth^thL execution until fourteen days, or such longer period ^^^^ ""■ as the court or a judge directs, has elapsed, unless the court or a judge orders execution to issue at an earlier date with or without terms. (E. 597.) 20. A writ of execution if unexecuted shall re- ij„^^t^°^>,j main in force for one year only from its issue, unless |^g^';'^'^°j"- renewed in the manner hereinafter provided; but such writ may at any time before its expiration, by leave of the court or a judge, be renewed, by the S.N.S. 10 146 EXECUTION. Order XL. rr. 20 — 23. (610.) Evidence of renewal. (511.) Execution witMn six years. (512.) In certain cases applica- tion necessary before execn- tion. party issuing it, for one year from the date of such renewal, and so on from time to time during the con- tinuance of the renewed writ, either by being marked with a seal of the court and having indicated on it the date of the day, month, and year of such re- newal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his solicitor, and bearing the like seal of the court and date ; and a writ of execution so renewed shall have effect, and be entitled to priority, according to the time of the original delivery thereof. (E. 598.) 21. The production of a writ of execution, or of the notice renewing the same, purporting to be sealed and marked as in the next preceding rule mentioned, showing the same to have been renewed, shall be sufficient evidence of its having been so re- newed. (E. 599.) 22. As between the original parties to a judg- ment or order, execution may issue at any time within six years from the recovery of the judgment or the date of the order. (E. 600.) 23. In the following cases, viz. : — (a) Where six years have elapsed since the judg- ment or date of the order, or any change has taken place by death or otherwise in the parties entitled or liable to execution; (b) Where a husband is entitled or liable to execution upon a judg-ment or order for or against a wife ; (c) Where a party is entitled to execution upon a judgment of assets in futuro; (d) Where a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment recorded against such company, or against a public office or other person representing such company ; the party alleging himself to be entitled to execution may apply to the court or a judge for leave to issue execution accordingly. And such court or judge may, if satisfied that the party so applying is en- titled to issue execution, make an order to that effect. EXECUTION. 147 or may order that any issue or question necessary to °^^^l_^- determine the rights of the parties shall be tried in — ^ any of the ways in which any question in an action may be tried. And in either case such court or judge may impose such terms as to costs or otherwise as are just. (E. 601.) 24. Every order of the court or a judge in any E^fo^rin ' cause or matter may be enforced against all persons order, bound thereby, in the same manner as a judgment to the same effect. (E. 602.) 25. Any person, not being a party to a cause or ^ <^\^K ,, 11.- -, • i n Execution by matter, who obtams any order or m whose lavor any or against a order is made, may enforce obedience to such order " ^"'''' by the same process as if he was a party to such cause or matter; and any person not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he was a party to such cause or matter. (E. 604.) 26. Nothing in this Order shall take away or othirmoLs curtail any right heretofore existing to enforce or me™*«main give effect to any judgment or order in any manner or against any person or property whatsoever. (E. 606.) 27. Nothing in this Order shall affect the order ^M'^f'^ in which writs of execution may be issued. (E. 607.) writs. 28. If a mandamus, granted in an action or (517.) ,, . TjT •• !• ■ ^ Enforcement otherwise, or a mandatory order, injunction or judg- of mandatory ment for the specific performance of any contract, ^'^*^"^''*- is not complied with, the court or a judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the court or a judge, at the cost of the disobedient party, and upon the act being done, the expenses incurred may be ascertained in such manner as the court or a judge directs, and execution may issue for the amount so ascertained, and costs. (E. 608.) 29. Any judgment or order against a corpora- Exeiut"n tion wilfully disobeyed may, by leave of the court or pfSn'!"' 148 EXECUTION. Order XL. rr. 29 — 33. (518a.) Enforcing award. (519.) Application for relief in- stead of audita querela (520.) Equity of redemption in goods may be seized. a judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other ofGcers thereof, or by writ of sequestration against their property. (E. 609.) 29a. An award may, with the leave of the court or a judge, and on such terms as are just, be en- forced at any time, though the time for moving to set it aside has not elapsed. (E. 609a; E. K. S. C, Dec, 1889, r. 7.) 30. No proceeding by audita querela shall be used, but any party against whom judgment has been given may apply to the court or a judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded ; and the court or judge may give such relief and upon such terms as are just. (E. 605.) 31. Under a writ of execution by which he is in- structed to levy on goods and chattels, the sheriff may seize and sell the interest or equity of redemp- tion of the party against whom the execution was issued in any goods and such sale shall convey what- ever interest or equity of redemption such party had in such goods and chattels at the time of the delivery of the writ to the sheriff. (P. A. 268.) 32. No writ of execution under which personal property is directed to be levied on shall bind such personal property, or shall prejudice the title to such personal property acquired by any person bona fide and for a valuable consideration, before the actual seizure thereof by virtue of such writ; pro- vided such person had not, at the time when he ac- quired such title, notice that such writ or any other writ by virtue of which the goods of such owner might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff. (P. A. 269.) 33. Current gold and silver coin may be taken may be taken, {j^ executiou, and may be paid to the creditor as money collected. Provincial debentures and notes, and bank notes, and all bills or evidences of debt issued by any corporation, and circulated as money, may be taken in execution, and paid to the creditor (521.) Goods, &c., wlien bound by writ, &o. (522.) Coin, &c EXECUTION. 149 at their par value as money collected, if he will O'^er xl. accept them; otherwise they shall he sold as other - "' ^^~"' chattels. (P. A. 270.) 34. The sheriff may seize and take in execution <523.) any money or bank notes (including any surplus of a &o!may be former execution against the defendant), cheques, ^u!" '"'*"'■ bills of exchange, promissory notes, bonds, mort- gages, specialties, or other securities for money be- longing to the person against whose effects the writ of execution has issued; and the sheriff shall hold any such cheques, bills of exchange, promissory notes, bonds, mortgages, specialties, or other securi- ties for money as a security or securities for the amount by the indorsement on the writ directed to be levied, or so much thereof as has not been other- wise levied or raised ; and the sheriff shall pay and assign them to the plaintiff at the sum actually due on and secured by them respectively if he will accept them, otherwise he may sue in his own name for the sums due thereon and secured thereby, when the time of payment thereon has arrived. (P. A. 271.) 35. The transfer to the plaintiff of such cheques, j,ffea of '' bills of exchange, promissory notes; bonds, mort- transfer oi . 1,. ,1 •_!_• p securities, gages, specialties, or other securities lor money, or &e. the payment of the same to the sheriff with or with- out suit, or the recovery and levying execution against the party so liable on the securities above mentioned, shall discharge him to the extent of such payment, or of such recovery, and levy in execution (as the case may be), from his liability on any such cheque, bill of exchange, promissory note, bond, mortgage, specialty, or other security. (P. A. 272.) 36. The sheriff shall pay over to the plaintiff or g^^^J^^^l^ ^ his solicitor the money so recovered, or a sufficient overmbney sum to discharge the amount by the writ directed to be levied, less his fees, commission and poundage ex- penses. (P. A. 273.) 37. If, after satisfaction of the amount, together (526.) • ,1 1 • ixn, n • • .-, Surplua to be' With sheriff's tees, commission and expenses, any paid to de- surplus remains in the hands of the sheriff, the same '*'^^*''*- shall be paid to the party against whom the execu- tion issued. (P. A. 274.) 150 EXECUTION. order^L 38. No sheriff shall be bound to sue any person — - — —^ liable upon any such cheque, bill of exchange, Bond of in- promissory note, bond, mortgage, specialty, or other swiffr*" security, unless the party at whose instance such execution issued enters into a bond with two sureties to indemnify such sheriff against all costs and ex- penses to be incurred in such action, or to which he may become liable in consequence thereof ; and the expense of such bond may be deducted from any money recovered in such action. (P. A. 275.) Sheriff tV 39. The sheriff shall, in returning every execu- wfth^w^ft!"™ tion, state specially his doings thereunder, and where property has been faken, give a specific account thereof, and of the sales of the same, with an account of his fees and charges against the same. (P. A. 276.) Artilfe^B^eL ^^- ^^^ foUowing goods and chattels shall be emptedfrom exempt from seizure under any writ of execution, namely : (a.) The necessary wearing apparel, beds, bed- ding and bedsteads of the debtor and Ms family. (b.) One stove and pipe therefor, one crane and its appendages, one pair of andirons, one set of cooking utensils, one pair of tongs, six knives, six forks, six plates, six tea- cups, six saucers, one shovel, one table, six chairs, one milk-jug, one teapot, six spoons, one spinning wheel, one weaving loom, one sewing machine if in ordinary domestic use, ten volumes of religious books, one water bucket, one axe, one saw, and such fishing nets as are in common use, the value of such nets not to exceed twenty dollars. (c.) All necessary fuel, meat, fish, flour, and vegetables actually provided for family use, not more than sufficient for the ordin- ary consumption of the debtor and his family for thirty days, and not exceeding in value the sum of forty dollars. (d.) One cow, two sheep, and one hog, and food therefor for thirty days. EXECUTION". 151 (e.) Tools and implements of, or chattels ordin- ordor^L. arily used in, the debtor's occupation, to — ' '- the value of thirty dollars. But nothing in this rule contained shall exempt Not exempt in any article enumerated in (5.) (c.) (d.) and ^p^) ''^''*''"°*^^^ from seizure in satisfaction of a debt contracted for such identical article. (1885, c. 34, ss. 1, 2.) 41. No writ of execution shall bind the sroods of ,„ .l^so) ^ iiiPTTP T . Writ, when to the defendant but from the time the writ is delivered bmd goods. to the sheriff to be executed; and the sheriff shall, upon the receipt of the writ, indorse thereon the time at which the same was received by him. (P. A. 278.) 42. A written order simed by the solicitor by ^. (ssi.) whom any writ of execution has been issued, or by defendant ,^ _L ± 1 • i_ 1 J ■ • T from custody. the party at whose instance such execution issued, shall justify the sheriff in discharging any person held in custody under such execution. The order of the solicitor shall not suffice for that purpose where the party for whom such solicitor professes to act has given to the sheriff written notice to the contrary, and shall not in any case be a satisfaction of the debt unless made by the authority of the creditor. (P. A. 280.) 2. — Discovery in Aid of Execution. 44. When a iudgment or order is for the reco- (533.) , „ ,1 1 x-iTij. Examination very or payment of money, the party entitled to en- of judgment force it may apply to the court or a judge for an '^^'""• order that the debtor liable under such judgment or order, or in the case of a corporation that any officer thereof, be orally examined, as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before a judge or an officer of the court as the court or judge appoints ; and the court or judge may make an order for the attendance and examination of such debtor, or of any other person, and for the production of any books or documents. (E. 610.) 45. In case of any judgment or order other than judimentl for the recovery or payment of money, if any diffl- °fX*.^*" *" 152 WRITS OF EXECUTION AXD SEQUESTEATION. Order XX. rr. 45—47. (535.) Compelling attendance and produc- tion. (536.) Costs. culty arises in or about the execution or enforcement thereof, any party interested may apply to the court or a judge, and the court or 3U(ige may make such order thereon for the attendance and examination of any party or otherwise as is just. (E. 611.) 46. Any person liable to be examined under the next two preceding rules may be compelled to attend and testify, and to produce books and documents, in the same manner, and subject to the same rules of examination, and the same consequences of neglect- ing to atten(i, or refusing to disclose the matters in respect to which he is examined, as in the case of a witness on a trial. (0. 1897, r. 905.) 47. The costs of any application under the next three preceding rules, and of any proceedings aris- ing from or incidental thereto, shall be in the discre- tion of the court or a judge, or in the discretion of the officer of the court before whom such examina- tion is taken, if the court or a judge so directs. (E. 612.) Order XU. rr. 1 — 2. ORDER XLI. WRITS OP EXECUTION AND SEQTJESTBATION. „ (587 ) 1. Writs of execution, in the forms in use im- Form and. t i n - effect. mediately preceding the coming into force of these rules, and in the forms in appendix H, shall have the same force and effect as the like writs have hereto- fore had, and shall be executed in the same manner in which the like writs have heretofore been exe- cuted. (E. 613.) writtf '^ 2. Where any person is by any judgment or sequestration, order directed to pay money into court or to do any other act in a limited time, and after due service of such judgment or order refuses or neglects to obey the same according to the exigency thereof, the per- son prosecuting such judgment or order may at the expiration of the time limited for the performance thereof, without obtaining any order for that pur- pose, issue a writ of sequestration against the estate Effect. and effects of such disobedient person. Such writ ATTACHMENT OF DEBTS. 153 of sequestration shall have the like effect, as nearly °^^''\^' as may be, as a writ of sequestration in Chancery — — had in England before the commencement of the English Judicature Act, and the proceeds of such sequestration may be dealt with in the same manner as the proceeds of writs of sequestration were before the same date dealt with by the Court of Chancery, as nearly as may be. (E. 618.) 3. No subpoena for the payment of costs, and, ^o /utpVna unless by leave of the court or a judge, no sequestra- *■"" '=°^*^- tion to enforce such payment, shall be issued. (E. 619.) 4. Where, by virtue of any writ of execution, ^^^ venditioni goods or other property have been seized but not exponas^ sold, no writ of venditioni exponas need be issued, but the officer may proceed to sell such goods or other property, although the writ of execution has expired. (R. S., c. 104, Or. 41, r. 4.) ORDER XLII. °r'r."i-^'- ATTACHMENT. 1. A writ of attachment against the person shall e^ J^^^J-^t. have the same effect as heretofore. (E. 620.) tachment. 2. No such writ of attachment shall be issued LeJetobe without the leave of the court or a judge, to be ap- owai^ied- plied for on notice to the party against whom the at- tachment is to be issued. (E. 621.) ORDER XLIII. Order^XLIII. ATTACHMENT OF DEBTS. 1. The court or a judge may, upon the ex parte o^aL^iVat- application of any person who has obtained a judg- ^a«^^«i' "' ment or order for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment or order, and upon affidavit by himself or his solicitor stating that 154 ATTACHMENT OF DEBTS. or*er ^xKoi. judgment has been recovered, or the order made, — ^ '— and that it is still unsatisfied, and to what amount, and that any other person is indebted to such debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (herein- after called the garnishee) to such debtor, shall be attached to answer the judgment or order ; together with the costs of the garnishee proceedings, and by the same, or any subsequent order, it may be ordered that the garnishee shall appear before the court or a judge or an officer of the court, as such court or judge appoints, to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor, or so much thereof as is sufficient to satisfy the judgment or order, together mth the costs aforesaid. At least seven days before the day of hearing the order nisi shall be served on the garnishee, and unless otherwise ordered, on the judgment debtor or his solicitor, at least seven days before the day of hearing. Service on the judgment debtor may be made in manner pro- vided by Order LXV., Rule 2, either at the address for service, if the judgment debtor has appeared in the action and given an address for service or on his solicitor, if he has appeared by solicitor, or if there has been no appearance then at Ms usual residence or place of business or in such other manner as the court or judge may direct. (E. 622, E. R. S. C, 1917, R. 6, S. C. R., Jan. 23rd, 1919.) 2. Service of an order that debts due or accru- ing to a debtor liable under a judgment or order shall be attached, or notice thereof to the garnishee, in such manner as the court or a judge directs, shall bind such debts in the hands of the garnishee. (E. 623.) 3. If the garnishee does not forthwith pay into court the amount due from him to the debtor liable under a judgment or order, or an amount equal to the judgment or order, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, then the court or a judge may order execution to issue, and it may issue accordingly, without any previous writ or pro- cess, to levy the amount due from such garnishee, or (544.) Effect of garnisliee order. (545.) Order for ex- ecution against garnishee. ATTACHMENT OF DEBTS. 155 SO much thereof as is sufficient to satisfy the judg- order xliii. ment or order, together with the costs of the garni- "' ^ ^°" shee proceedings. (E. 624, E. R. S. C, July, 1902, E. 12b; S. C. R., Jan. 23rd, 1919.) 4. If the garnishee disputes his liability, the ^^ J^iej^^ court or judge, instead of making an order that ex- ^jyt^'o^f^^j,*,". ecution shall issue, may order that any issue or ques- niVws. *^°'' tion necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined. (E. 625.) 5. Whenever in proceedings to obtain an attach- ordirfo;' ment of debts it is suggested by the. garnishee that Jo appe«'™ the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court or a judge may order such third person to appear, and state the nature and particu- lars of his claim upon such debt. (E. 626.) 6. After hearing the allegations of any third cecislonL to person under such order, as in the next preceding *''^''"^ p^"""^- rule mentioned, and of any other person whom by the same or any subsequent order the court or a judge orders to appear, or if such third person does not appear when ordered, the court or judge may order execution to issue to levy the amount due from such garnishee, together with the costs of the garni- shee proceedings, or any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third per- son, or may make such other order as such court or judge thinks fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the court or judge thinks just and reasonable. (E. 627.) 7. Payment made by or execution levied upon Effeittfpar the garnishee under any such proceeding as afore- ^^^^^^^/^ ^ said shall be a valid discharge to him as against the debtor, liable under a judgment or order, to the amount paid or levied, although such proceeding is set aside, or the judgment or order reversed. (E. 628.) 7a. No wages of any servant, laborer or work- Attif^eit man shall be attached, unless the amount of such °^^||^_» °* _ wages exceeds forty dollars, and such attachment i^^-^e-^t"" 156 AKEBST OF DEFENDANT BEFOEB FINAL JUDGMENT. (550.) Record of at- tachments. O'dor^ M.rn. shall only bind the surplus of such wages over and — ' '— above the sum of forty dollars. (1895, c. 27, s. 1.) 8. There shall be kept by the prothonotary a debt attachment book, and in such book entries shall be made of every attachment and the proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise ; and copies of any entries made therein may be taken by any person upon application. (E. 629.) The cost of any application for an attachment of debts and of any proceedings arising from or inci- dental to such application, shall be in the discretion of the court or* a judge, and as regards the costs of the judgment creditors shall, unless otherwise di- rected, be retained out of the money recovered by him under the garnishee order, and in priority to the amount of the judgment debt; but the judgment creditor shall not be entitled to any costs if the amount attached does not exceed thirty dollars, (E. 630 ; E. E. S. C, July, 1901, R. 4 ; S. C. R., April 11th, 1890; S. C. R., Jan. 23rd, 1919.) (551.) Cost of pro- ceedings. Order XUV. r. 1. ORDER XLIV. AEREST OF DEFENDANT BEFORE FINAL JUDGMENT. (552 ) 1. Where the plaintiff in any action in which if fendant about it had becii brought before the first day of October, province. * A.D. 1884, the defendant would have been liable to arrest, by affidavit of himself or some other person, proves to the satisfaction of a judge or of a commis- sioner that the plaintiff has a good cause of action against the defendant to the amount of twenty dol- lars or upwards, and that the deponent has probable cause for believing, and does believe, that the de- fendant, unless he is arrested, is about to leave the province, such judge or commissioner may without requiring in such affidavit any statement of the ground for such belief, make an order directing that such defendant shall be arrested and imprisoned until final judgment in the action, and if such final AEEEST OF DEFENDANT BEFORE FINAL JUDGMENT. IS? judgment is against him, until the expiration of O"^^*"^ i^s^' thirty days thereafter, unless and until he sooner — ' '— gives the prescribed security, not exceeding the amount sworn to and with forty dollars for costs, conditional that if within thirty days after such final judgment an order is made under "The Collection Act" for his appearance at an examination to be held thereunder, and the said order for his appear- ance has been served upon him or upon his sureties, or either of them, or his solicitor, at least thirty days before the time fixed in the order for his appearance, then he will appear at such eaxmination in obedience to such order, or at such adjournment of such ex- amination as is granted upon the application of his sureties or solicitor, in his absence, or of the plain- tiff, and will surrender himself to prison in case of an adjudication of imprisonment ; provided that this rule shall only apply to causes of action in respect to which under "The Collection Act" imprisonment for debt is abolished. In respect to other causes of action the law in respect to arrest before final judg- ment shall remain the same as it was under order forty-four of Chapter 104 of the Eevised Statutes, Fifth Series. (1901, c. 16, s. 1.) 2. An order to arrest may be in form number 28, ^^^^f-^^^^^ in appendix K, or to the like effect, and shall be made upon affidavit and ex parte. It shall be sealed by the prothonotary and shall then be deemed to be issued. (R. S., c. 104, Or. 44, r. 2 part, 1901, c. 16, s. 2.) 3. The defendant may, at any time after arrest, (554.) . -, ,1 n ± 1 J- Application apply to rescind or vary the order, or to be dis- ty defendant charged from custody, or for such other relief as is '''""''"*• just. Such application may be made to the judge or commissioner who made the order, or to any judge, or to the court, and may be made to the court or to a judge notwithstanding a previous application to the commissioner, and notwithstanding such commis- sioner has either partly given or refused relief in the premises. If the plaintiff is dissatisfied with any order made by a commissioner on such application, he may apply to the court or a judge to rescind or vary the same. The costs of every proceeding shall 158 AEEEST OF DEFENDANT BEFOEE FINAL JUDGMENT. Order XLIV rr. S — 9. (555.) Concurrent orders. (556.) Security on release. (557.) Security sub- ject to order. (558.) Costs of ar- rest. (559.) Sheriff to ar- rest and hold. Sheriff's re- turn on order. be in the discretion of the commissioner, judge, or court. (E. 1030.) 4. Concurrent orders may be issued for arrest in different counties. (E. 1031.) 5. (1.) The security to be given by the defendant may be a deposit in court of the amount mentioned in the order or a bond to the sheriff by the defendant and two sufficient sureties ( or, with leave of a judge, eitlier one surety or more than two), or, with the plaintiff's consent, any other form of security. The bond may be in the form in appendix K, with such variation as circumstances require. (2) Immediately upon receiving such bond the sheriff shall notify the plaintiff or his solicitor of the names and addresses of the sureties. (E. 1032, 1901, c. 16, s. 2.) 6. The money deposited, and the security, and all proceedings thereon, shall be subject to the order and control of the court or a judge. (E. 1033.) 7. Unless otherwise ordered the costs of and consequent on an order to arrest shall be costs in the cause. (E. 1034.) 8. (1) The sheriff shall within one month after the date of such order to arrest, but not afterwards, proceed to arrest such defendant thereon, and shall keep him in custody until he gives the security men- tioned in this order. (2) The sheriff shall return the said order to the office of the prothonotary who issued the same, with a statem'ent of his doing thereunder, at the times herein mentioned, that is to say : (a.) If he has not arrested the defendant within one month after the date of the order to arrest, then at the expiration of such month; or (&.) (560.) Misnomer. If he has arrested the defendant within such month, then at the expiration of thirty days after final judgment in the action. (E. S., c. 104, Or. 44, r. 8.) 9. When the defendant is described in the order or affidavit by initials, or by a wrong name, or with- AEEEST OF DEFENDANT BEFORE FINAL JUDGMENT. 159 out a Christian name, he shall not by reason thereof °^\^f^' be discharged from custody, or entitled to have the security released, if it appears by the affidavit on which the order was granted that due diligence was used to obtain a knowledge of the proper name. (E. S., c. 104, Or. 44, r. 9.) 10. A defendant so arrested shall be entitled to Definlant apply for relief under the provisions of ' * The Indi- ^X^^gjy.^ gent Debtors ' Act. " (R. S., c. 104, Or. 44, r. 11.) ^-j* Debtors- 11. The plaintiff may, within four days after (562.) receiving particulars of the names and addresses of «flcation ^oi' the sureties, give notice that he objects thereto, stat- ing in the notice the particulars of his objections. In such case the sufficiency of the security shall be de- termined by a judge, or a commissioner, who may award- costs to either party. It shall be the duty of the plaintiff to obtain an appointment for that pur- pose, and unless he does so within four days after giving notice of objection the security shall be deemed sufficient. (E. 1032.) 12. (1) Where a defendant is in custody, or Definfant to has given security on an order to arrest, and the J'/j^^y^^^f * plaintiff may obtain final judgment against him for is not taken. default of appearance or default of pleading or other default, and fails to do so, the court or a judge, un- less good cause is shown to the contrary, shall dis- charge the defendant, of if he has given security, shall release the security. (2) Where a defendant is in custody, or bas De«»dant ^^ given security on an order to arrest, and if when the «pi»i^«ff^„. trial is called on at the next sittings after the arrest ceedtotxiai. the defendant appears and the plaintiff does not pro- ceed to trial, but the court or a judge, for any reason, does not dismiss the action, the defendant shall, nevertheless, unless good cause is shown to the con- trary, be discharged, or if he has given security, such security shall be released. (R. S., c. 104, Or. 44, r. 10 part.) 13 The sheriff shall be liable for taking insuffi- snerif'tua- cient security, but he may relieve himself at any time ^^^ -^ - by causing the defendant to be rendered under the order to arrest, and by payment of all costs which have been incurred by the plaintiff m consequence 160 EEPLEYIN. Order xLiv. of sucli security bemff insufficient. rr. 13—15. -^ » 44, r. 12 part.) (565.) Bond to be returned. (E. S., c. 104, Or. (566.) Sureties may surrender principal. 14. The sheriff shall return the bond, with the order, to the office of the prothonotary who issued the order, with his name endorsed on the bond, which endorsement shall operate as an assignment to the plaintiff of the bond, and the same shall be sufficient to enable the plaintiff to bring an action thereon in his own name against the several parties who have executed the same. (E. S., c. 104, Or. 44, r. 13.) 15. (1.) The sureties may at any time surren- der the defendant to the sheriff who executed the order for arrest, and the sheriff shall receive the principal into his custody and give the sureties a certificate, under his hand and seal of office, of the surrender. (E. 1034.) (2.) Any judge of the court in which the action is pending, upon proof of due notice to the plaintiff or his solicitor of the surrender, and upon produc- tion of the sheriff's certificate thereof, shall order the security to be released, and thereupon the sure- ties shall be discharged. (0: 1049.) Order XLV. r. 1. OEDEE XLV. EEPLBVIN. (567.) 1. No writ of replevin shall hereafter be issued, livery instead but lu any actiou, commenced as prescribed by Order ?e]^e"in, II, rule 1, brought for the recovery of any personal property, and claiming, whether alone, or with any 'other claim, that such property was unlawfully taken, or is unlawfully detained, the plaintiff may, at any time after the issue of the writ of summons, obtain from the protihonotary an order for the delivery of the property to him, on his complying with the rules hereinafter contained in this Order. Such order for delivery shall be in the form No. 49 in appendix K, with such variations as circumstances require, and shall be signed and sealed by the pro- thonotary, and shall have the same force and effect EEPLEVIN. 161 as the writ of replevin had previous to the first <>'*" xlv. day of October, A. D. 1884. (E. S., c. 104, Or. 45, r. "' ' "" - 2. No order to replevy, except where the pro- Affliavit'to be perty sought to be replevied has been distrained for Medblfore rent or damage feasant, shall issue, unless the party '''"" applying therefor, or his agent, makes and files an affidavit, which may be in the form in appendix K, No 50. or to the like effect, therein stating: — (a.) That the person claiming the property is the owner thereof, or that he is lawfully entitled to the possession thereof, and that it is unjustly detained from him, and describing the property, and, (6.) The value thereof to the best of his belief. Such description of the property, and the value thereof, shall be stated in the order. (P. A. 331). 3. A copy of such order shall be served on the (.569.) defendant personally, or, if he cannot be found, left order"" ° at his usual or last place of abode, with his wife or some other grown person, being a member of his family or household. (P. A. 332.) 4. The sheriff shall proceed under such order in (570.) like manner as the sheriff proceeded under a writ onr"feip?Sf'' of replevin previous to the first day of October, A. '"■*®''- D. 1884. He shall not serve a copy thereof until he has replevied the property, or some part of the property therein mentioned if he cannot replevy the whole, in consequence of the defendant having removed the same out of the county, or because the same is not in the possession of the defendant, or of any person for him. (P. A. 333.) 5. Before the sheriff replevies he shall take a g^^^^/-^ bond in double the value of the property to be re- ^•''^"ff- plevied, as stated in the order. The bond may be assigned to the defendant by the sheriff indorsing his name thereon, and such indorsement shall enable such defendant to bring action thereon in his own name against the parties who have executed it. The bond may be in the form No. 51 in appendix K., with such variations as circumstances require. (P. A. 333.) S.N.S. — 11 162 EEPLEYIN. °rr"6— 8^' ^- Where the property to be replevied, or any — |Tr^- — part thereof, is secured or concealed in any dwel- wherepro- ling-house or other building or enclosure of the cMiJd'buUd- defendant, or of any other person holding the same broken^open for hiui, aud the sheriff publicly demands from the aftlrdemand. owuer or occupant of such premises delivery of the property to be replevied, and the same is not deliv- ered to him within twenty-four hours after such demand, he shall, if necessary, break open such house, building or enclosure, for the purpose of replevying such property, or any part thereof, and shall replevy the same according to the order. (P. A. 334.) sherMmiy 7. If the property to be replevied, or any part findma'tper- thcreof, Is coucealed either about the person or on ^remrses ^^® premises of the defendant, or of any other per- wherepro- SOU holdiug the Same for him, and the sheriff ceaied!^ ''°'' dcmands from the defendant or such other person delivery thereof, and delivery is neglected or refused, he shall, if necessary, search and examine the person and premises of the defendant, or of such other person, for the purpose of replevying such property, or any part thereof, and shall replevy the same according to the order. (P. A. 335.) Retirn,*wii8t ^- ^^® shcrlff shall return the order to the pro- to contiin. thonotary of the county in which the same was issued, with a statement of his doings thereon, and shall transmit with the return annexed thereto: — (a.) The names of the sureties who have exe- cuted the bond taken from the plaintiff, and the date thereof, and the names of the witnesses thereto. (b.) The names of the sureties who have exe- cuted any bond taken from the defendant on. his retention of the property, and the date thereof, and the names of the wit- nesses thereto. (c.) The places of residence and additions of such sureties. (d.) The number, quantity and quality of the articles of property replevied; and, if he has replevied only a portion of the ACTIONS AGAINST ABSCONDING OK ABSENT DBBTOES. 163 property mentioned in tlie order, and °',^"g^^^- cannot replevy the residue by reason of — ' '-— the same having been carried out of his county by the defendant, or not being in the possession of the defendant, or of any other person for him, he shall state the articles which he cannot replevy, and the reason why not. (P. A. 336.) 9. (1.) Notwithstanding the issue of an order (575.) to replevy, the defendant, or his agent, except in mly^retahi cases of distress for rent or damage feasant, mayoriwing" retain possession of the property contained therein, ^^''""'y- if he gives security to the sheriff in the form num- ber 52 in appendix K, with such variations as cir- cumstances require. (2.) Such security, given either by the plaintiff security may or defendant, shall be assigned, on request, to the by Ihefiff'li party entitled to the benefit thereof, by the sheriff ^^'>-'<''^'^'- indorsing his name thereon, and such indorsement shall be sufficient to enable such party to bring action thereon in his own name against the several parties who have executed such security. (P. A. 343.) ORDER XL VI. Order XLVI. rr. 1—2. ACTIONS AGAINST ABSCONDING OE ABSENT DEBTORS. 1. — Attachment. 1. In actions ag'ainst persons absconding or (576.) absent out of the province, the writ of summons ^fend"*^^:^ shall be in the usual form, but may describe the "^"''*' *"• defendant as absconding or absent out of the pro- vince. A copy of the writ of summons shall bo left at the last place of defendant's abode, or if he had no place of abode in the province, at the last place in which he carried on business. (R. S., c. 104, b. 46, r. 1.) 2. At or after the commencement of the action AtJ^^;^^t_ the plaintiff may sue out a writ of attachment to tow issued." take property, on an affidavit of himself or of his 164 ACTIONS AGAINST ABSCONDING OR ABSENT DBBTOES. (578.) Amount of levy. (579.) Goods ex- hibited to be appraised before levy. "'r^ 2-^^'^' ^gent, showing a cause of action for twenty dollars '- — or upwards, stating tlie amount of debt due or dam- age sustained, and stating that the defendant is absconding or absent out of the province, and the sum so sworn to shall be indorsed on the writ of attachment. (R. S., c. 104, Or. 46, r. 2.) 3. The sheri:ff to whom a writ of attachment is directed shall levy for the amount indorsed on the writ, with one hundred and twenty dollars for prob- able costs in actions to recover upwards of eighty dollars, and twenty-eight dollars in actions for less. (E. S., 4th ser., c. 97, s. 4.) 4. (1.) Where goods are exhibited to the sheriff as the property of the absconding or absent debtor, they shall be valued by two appraisers, who rfhall be sworn before the sheriff, or any other person com- petent to administer an oath, to make a true appraisement, and upon an appraisement being made under their hands, the sheritf shall retain such part of the goods as is sufficient to respond the sum sworn to, and probable costs, as aforesaid. binds'from* (^•) ^^^ defendant's personal property shall levy. not be bound by the writ of attachment until a levy is made. (R .S., 4th ser., c. 97, s. 5.) „ .(580 ) 5_ Where the goods consist of stock, or are Perishable r-r* t • o lliih '^"Ja'^ shown upon affidavit to be of a perishable nature, or of court un- likely to injure from keeping, and the agent of the ilgwl™"*^ debtor, if any, does not, within three days after no- tice of the appraisenlent, give security for the value, a judge may in his discretion cause the same to be sold at public auction, and the proceeds thereof shall be retained by the sheriff, or paid into court, to respond the judgment. (R. S., 4th ser., c. 97, s. 6.) (581.) Party inter- ested may contest at- tachment. 2. — Subsequent Attachers. 6. Where any person has any interest, as a sub- sequent attacher or otherwise, in any real property, goods or credits levied upon under a writ of attach- ment, he may dispute the validity and effect of such writ of attachment, on the ground that the sum claimed was not justly due, or that it was not pay- able when the action was commenced. (R. S., 4th ser., c. 97, s. 7. ) ACTIOXS AGAINST ABSCONDING OE ABSENT DEBTORS. 165 7. The person objecting to the attachment may order xlvi. apply to the court or a judge to set it aside, upon an "' ^~'^- affidavit, setting out the facts and circumstances on sha/ilp'piV which the apphcation is made, and also the interest affirvu"" of the apphcant in the property levied upon. (R S 4th ser., c. 97, s. 8.) 8. Upon hearing the application the court or (sss.) judge may direct a trial of any question of fact aris- dfrectS ing on the inquiry; and if it appears that the sum tTe^rrders"" claimed in the action, or any part of it, is not justly due, or was not payable when the action was commenced, the court or judge shall order the attachment therein made to be set aside in whole or in part, as justice requires, but the order shall have no other effect in such suit. (R. S., 4th ser., c. 97 s. 9.) 9. The proceedings between the two adverse „ (S84.) claimants upon such application shall not be affected m'priorsult by any defence or other act of the defendant in the effect' °° action, nor by any judgment that is recovered there- in against the defendant. (R. S., 4th ser., c. 97, s. 10.) 10. The court or judge may, upon every such ^oun may application, direct such security to be given for ""^lo^^^ogt" costs, and, upon any decision thereon, may award &=■ such costs to either claimant as appears just and reasonable. (R. S., 4th ser., 97, s. 11.) 3. — Assessment of Damages. 11. If the defendant does not appear within six . (see.) months from the attachment of property or service of an agent, unless a later appearance and defence are allowed by the court or a judge, the debt or damage may be assessed before a judge, or in such mode as he thinks fit. (R. S., 4th ser., c. 97, s. 13.) 12. The plaintiff shall not proceed to judgment (sst.) in any action against an absconding or absent debtor fore attacL who has not appeared in such action unless the S^agent hav°' defendant 's real property or goods have been attach- '°^ <^«• "an- tion under rules 2 or 3 of this Order, may he made to iSiin^'&c. the court or a judge by any party. If the applica- tion is by the plaintiff for a mandamus, injunction or receiver, it may be made either ex parte or upon notice, and if for an order under rules 2 or 3 of this Order it may be made upon notice to the defend- ant, at any time after the issue of the writ of sum- mons, and if it is by any other party, then upon notice to the plaintiff, and at any time after appear- ance by the party making the application. (E. 662.) 7. An application for an order under rule 1 of ^ lialtiln this Order may be made by the plaintiff at any time for order tor after his right thereto appears from the pleadings ; ofTroperty." or, if there are no pleadings, at any time after his right thereto is made to appear by affidavit or other- wise to the satisfaction of the court or a judge. (E. • 663.) 8. Where an action is brought to recover, or a j^^^^;^\ defendant in his defence seeks by way of counter- nen claimed claim to recover, specific property other than land, Sto court.' and the party from whom such recovery is sought does not dispute the title of the party seeking to 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 or a judge may, at any time after such last-mentioned claim appears from the pleadiu'gs, or, if there are no pleadings, appears by affidavit or otherwise to the satisfaction of such court or judge, order that the party claiming to recover the property be at liberty to pay into court, to abide the event of the action, the amount of money in respect to which the lien or security is claimed, and such further sum (if any) for interest and costs as such court or judge directs, and that, upon such payment into court being made S.N.S. — 12 178 COMPOUNDING PENAL ACTIONS. Older Ii. rr. 8 — 13. (620.) Income may be appro- priated. (621.) Conduct of sale, under will, Sue. (622.) No writ of injunction. (623.) Restraining repetition of wrongful! act. the property claimed be given up to tlie party claim- ing it. (E. 664.) 9. Where any real or personal property forms the subject of any proceedings, and the court or a judge is satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceedings, the court or judge may at any time after the commence- ment of the proceedings, allow to the parties inter- ested therein, or any one or more of them, the whole or part of the annual income of the real property, or a part of the personal property, or the whole or part of the income thereof, up to such time as the court or judge directs. (E. 665.) 10. Whenever in an action for the adminis- tration of the estate of a deceased person, or execu- tion of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator, or trustee, the conduct of such sale shall be given to such executor, administrator, or trustee, unless the court or a judge otherwise directs. (E. 666.) 11. No writ of injunction shall be issued. An injunction shall be by a judgment or order, and any such judgment or order shall have the effect which a writ of injunction formerly had. (E. 667.) 12. In any cause or matter in which an injunc- tion has been, or might have been, claimed, the plain- tiff may, before or after judgment, apply for an injunction to restrain the (iefendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract; and the court or a judge may grant the injunction, either upon or without terms, as is just. (E. 668.) 2. COMPOUNDING PENAL ACTIONS. (624.) 13. Leave to compound a penal action shall not Ijeave to com- _ , . , ^ _ , ■*■ pound penal bc givcu m cases m which any part of the penalty goes to the Crown, unless notice has first been given EECEIVEES. 179 to the proper officer; but in other cases it may be given without notice to any officer. (E. 669.) r?'i3-r U. The order to compound a penal action shall „ (sae-) expressly state that the defendant undertakes topoV^penar pay the sum for which the court has given him leave '"*""'■ to compound the action. (E. 670.) 15. When leave is given to compound a penal App<«26.2 action where part of the penalty goes to the Crown, t\"j'' »* pe-^- the King's half of the composition shall be applied ^'^' as the penalty would have been, if enforced. (E. 671.) 3. BECEIVBES. 15a. In every case in which an application is ^ (eaea.) made for the appointment of a receiver by way of o/Sl?™* equitable execution, the court or a judge, in deter- eJiTSit' mining whether it is just or convenient that such ^'''^™*"''- appointment should be made, shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if they or he so thinks fit, direct any inquiries on these or other matters be- fore making the appointment. (E. 671a., E. E. S. C, Oct., 1884, r. 12.) 16. Where an order is made directing a receiver securit/iy to be appointed, unless otherwise ordered, the per- "''®"®''- son to be appointed shall first give security, to be allowed by the court or a judge and taken before a person authorized to administer oaths, duly to account for what he shall receive as such receiver, and to pay the same as the court or judge directs, and the person so to be appointed shall, unless other- wise ordered, be allowed a proper salary or allow- ■^<''^°''"=e- ance. Such security shall be by recognizance in the f°o™ity' form No. 19 in appendix L, unless the court or a judge otherwise orders. (E. 672.) 17. Where any judgment or order is pro- .^.(^^s.) nounced or made m court, appointing a person to chambers, therein named to be receiver, the court or a judge may adjourn to chambers the cause or matter then pending, in order that the person named as receiver 180 EECEIVEES Older L. cr. 17—21. (629.) Regulations as to receiv- ers' accounts. Penalty lor neglect. (630.) Form of accounts. (631.) Passage ot accounts. (632.) Receiver in default. may give security as in tlie next preceding rule men- tioneci, and may thereupon direct such judgment or order to be drawn up. (E. 673.) 18. When a receiver is appointed with a direc- tion that he shall pass accounts, the court or judge shall fix the days upon which he shall (annually, or at longer or shorter periods,) file and pass such ac- counts, and also the days upon which he shall pay the balances appearing due on the accounts so filed, or such part thereof as shall be certified as proper to be paid by him. And with respect to any such receiver who neglects to file and pass his accounts and pay the balances thereof at the time so to be fixed for that purpose as aforesaid, the judge before whom any such receiver is to account, or the judge who has cognizance of the matter for the time being, may, from time to time, when his subsequent accounts are produced to be examined and passed, disallow the salary therein claimed by such receiver, and may also, if he thinks fit, charge him with interest at the rate of seven per cent, per annum upon the balances so neglected to be paid by him during the time the same appear to have remained in the hands of any such receiver. (E. 674.) 19. Receivers ' accounts shall be in the form No. 13, in appendix L, with such variations as circum- stances require. (E. 675.) 20. Every receiver shall file his account, to- gether with an affidavit verifying the same in the form No. 20, in appendix L, with such variations as circumstances require. An appointment shall there- upon be obtained by the plaintiff, or person having the conduct of the cause, for the purpose of passing such account. (E. 676.) 21. If any receiver fails to file any account or affidavit, or to pass such account, or to make any payment, or otherwise, the receiver or the parties, or any of them, may be required to attend at chambers to show cause why such account or affidavit has not been filed, or such account passed, or such payment made, or any other proper proceeding taken, and thereupon such directions as are proper, including the discharge of any receiver and appointment of SALES BY THE COUET. 181 another, and payment of costs may be given at „°''2i— 23 chambers, or by adjournment into court. (E. 677.) 22. When a receivership has been completed, the (.ess.) Receiver's book containing the accounts shall be deposited in took, deposiit the prothonotary's office. (E. 678.) of. LIQUIDATOES AND GUABDIANS. 23. The accounts of liquidators and of guard- ^. ^^^^{J^,^ ians shall be passed and verified in the same manner accotot. as is by this order directed as to receivers' accounts. (E. 679, 679a., E. E. S. C, Oct., 1884, r. 14.) ORDER LI. Order li p. 1. SALES BY THE COURT. 1. — Lunatics' and Infants' Estates. 1. (1.) A lunatic or person of unsound mind, or g^jg<^s5-)^^ an infant, entitled to any estate of freehold, or for a f|n£°^„^°" term of years in any real property, whether in pos- lunatics. session of reversion, or otherwise howsoever, may, by his next friend, or guardian, petition the court or a judge for an order to let, sell, mortgage or other- wise dispose of such property, and the court or judge may proceed in a summary manner on affidavits to inquire into the merits of the application. (2.) If it appears, tZfo.'"' (a.) That such disposal of the property, or any part thereof, is necessary for the support of such lunatic or person of un- sound mind, or for the support or edu- cation of such infant, or of the infant children of such lunatic or person of unsound mind ; or (&.) That the interests of the lunatic or per- son of unsound mind, or of such infant, or of the infant children of such lunatic or person of unsound mind, will be sub- stantially promoted by such disposal, on account of any part of such property 182 SALES BY THE COUET. Sale, &c., made by guardian, etc. Proceeds of sale under order, how disposed of Order ^Li. being exposed to waste or dilapidation, — '- — '- — or being wholly unproductive ; or (c.) That there is any other reasonable cause for such disposal, the court or judge may make an order for the letting for a term of years, or the sale, mortgage, or other disposal of such real property or interest, in such manner and on such terms, and with such restric- tions as are deemed expedient. (3.) Such letting, sale, mortgage or disposal of the real property or interest, shall be made by such next friend, guardian or person appointed by the court or judge. (4.) Upon any order for the disposal of any pro- perty being made as aforesaid, the court or judge may make such order for the investment, disposal and application of the proceeds of such property, and of the increase and interest arising therefrom, as shall secure the same for the benefit of such luna- tic or person of unsound mind or of such infant, or the infant children of such lunatic or person of un- sound mind. Guardian ap- (5.) Uuless there is already a lawfully ap- pointed for .^' ,»^ . .n sale. pointed guardian who has given security m due course in respect to such property, such next friend, guardian or person appointed by the court or judge, as the case may be, shall first file a bond to His Ma- jesty, to be approved of by the court or judge, with such sureties, and containing such terms and condi- tions as are directed, but in any event containing a condition for the fulfilment of the directions con- tained in such order. t^o^be made""* ^^'^ '^^ letting, Sale, mortgage, or other dis- against provi- posal shall in any case be made contrarv to anv last sion of will, -n n n-i t ,. unless neces- Will, or couveyance, by which such property or m- port. ""^ ''^'' terest was devised or conveyed to the lunatic or per- son of unsound mind, or infant, unless it is necessary for the support and maintenance of such lunatic or person of unsound mind, or of such infant, or of the infant children of such lunatic or person of unsound mind, and such fact shall be expressed in the ©rder. (R. S., c. 104, Or. 51, rr. 1, 3.) SALES BY THE COURT. 183 2. Every conveyance by way of lease, sale, or "r^'l-S mortgage made in good faith, and executed by any such next friend, guardian, or person appointed by coJeyance the court or judge in pursuance of such order, shall a^tffectuaY be as effectual as if: — as y made by infant, lun- (a.) The lunatic or person of unsound mind was **'"• ^''^ at the time restored to reason, and had executed such conveyance, or, (b.) The infant had been at the time, of the age of twenty-one years and had executed such conveyance. (R. S., c. 104, Or. 51, r. 2, part.) 3. It shall not be necessary in the conveyance to j,atire^y recite any part of the proceedings, but such convey- conveyance. ance shall refer to the order and the letting, sale, or other disposal of such property. The person making the sale shall file a report thereof with the prothono- Beport aied. tary of the county in which the lands are situated. (R. S., c. 104, Or. 51, r. 2, part.) 4. No sale made as aforesaid shall give to any „^ (ess.) / CD *f Effect of sale such lunatic or person of unsound mind, or infant, any other or greater interest or estate in the pro- ceeds of such sale than he had in the property so sold. (E. A. 62.) 5. Every conveyance purporting to be made ^^ (639.) under the preceding rules of this Order, shall be veyance. prima facie evidence that all the proceedings on which the same is founded were rightly had. (E. A. 63.) 2. — Sales in Other Cases. 6. If in any cause or matter relating to any real q^^I^^^-^ property, in respect to which the court has power to P^J^^/^'fi^ ^j order a sale, it appears necessary or expedient that real estate. the real property or any part thereof should be sold, the court or judge may order the same to be sold, and any party bound by the order and in possession of the property, or in receipt of the rents and profits thereof, shall be compelled to deliver up such pos- session or receipt to the purchaser, or such other person as is thereby directed. (E. 680.) 6a. In any action by or on behalf of the holders of debentures or bonds, where such holders of deben- 184 SALES BY THE COUET. Older LI. rr. 6a, — 10. (640b.) Power to make order for sale in debenture holders' action at any time. (641.) Title' may be referred to counsel. (642.) Judge to ap- prove sale : and parties to join. (643.) Affidavits as to value. tures or bonds are entitled to a charge by virtue of the debentures or bonds, or of a trust deed, or other- wise, and the plaintiff is suing on behalf of himself and other holders of debentures or bonds, and where the court or a judge is of opinion that there must eventually be a sale, he may in his discretion direct a sale before judgment, and also after judgment, be- fore all the persons interested are ascertained, whe- ther served or not. (E. 680b., E. R .S. C, Nov., 1893, r. 18.) 7. Before any property or interest is put up for sale under a judgment or order, a certificate or ab- stract of the title shall, unless otherwise ordered, be laid before the court or judge to enable proper direc- tions to be given respecting the conditions of sale, and other matters connected mth the sale, and the same may be referred to counsel, approved by the court or judge, for his opinion thereon. (E. 681.) 8. Where a judgment or order is given or made, whether in court or in chambers, directing any pro- perty to be sold, the same shall, unless otherwise ordered, be sold, with the approbation of the court or a judge, to the best purchaser that can be got, the same to be allowed by the judge, and all proper par- ties shall join in the sale and conveyance as the judge directs. (E. 682.) 9. Affidavits for the purpose of enabling the judge to fix reserved biddings shall state the value of the property by reference to an exhibit containing such value, so that the value may not be disclosed by the affidavit when filed. (E. 683.) 3. — Foreclosure Sale. (644.) Sales of mort- gaged pro- perty, how ordered on behalf of subsequent encumbran- cers. 10. If, in any action for foreclosure and sale, the sale of the mortgaged property is sought by a subsequent mortgagee or encumbrancer, or by the mortgagor, or by any person claiming under them respectively, the court or judge shall not direct any such sale without the consent of the first mortgagee, or the persons claiming under him, except upon such terms as the court or judge thinks fit and proper, SALES BY THE COURT. 185 which terms may include the deposit of money in order li. court. (E. A. 40.) • "" "~''- 10a. (1.) In an action for foreclosure and sale, if „ (644a.) the order directs a sale in default of payment, the saie by sher- premises shall be sold upon such default in accord- appointor" ance with the advertisement of sale by the sheriff of the county in which the lands lie, or by such other person as is authorized by the court to make such sale, and such sheriff or person so authorized may execute the deed of the premises to be given to such purchaser. (2.) If the purchase money is insufficient to pay judgment for what is found to be due to the plaintiff for principal Ituiu^- and interest and costs, the plaintiff shall be entitled "^"^'^''^ '*^®- (when the mortgagor is a defendant and such relief has been claimed) to an order for the payment of the deficiency. (3.) If the purchase money exceeds what is sui-pius to be found to be due to the plaintiff, all accounts may be '^'^*'''*'''^'^- taken, and inquiries made, and costs taxed, and ^ necessary proceedings had, to distribute the surplus among the persons entitled thereto, according to their priorities. 11. In anaction for foreclosure and sale, upon f■^^■l^^ payment by the defendant, or in an action for re- of property demption, upon payment by the plaintiff of the *" doc^uJ^S. amount found due, the plaintiff or defendant, as the case may be, shall, unless the court or a judge other- wise directs, assign and convey the mortgaged pre- mises in question to the party making the payment, or to whom he appoints, free and clear of all incum- brances created by him, and deliver up all deeds and writings in his custody or power, relating thereto. (0., (1897) r. 758.) 12. Whenever any real property bound by mort- prop|e*ty L gage is situated in adjoining counties, with the boun- 1^^^;^^^^ dary line between such counties running through the same, the sheriff of either of such counties may sell such real property under order of foreclosure and sale, but subject to such terms and conditions as to the court or a judge seems just. (1880, c. 13, s. 22.) 186 MOTIONS AND OTHER APPLICATIONS. Order LII. rr. 1 — B. ORDER LII. (647.) Application to court or judge in court to be by motion. (648.) No rides nisi in certain cases. (649.) Notice ol motion. Notice dis- pensed with in certain cases. (650.) Contents of notice in cer- tain cases. Affidavits. (651.) Length of notice. MOTIONS AND OTHEB APPLICATIONS. 1. Where by these rules any application is authorized to be made to the court or a judge, such application, if made to the court, or to a judge in court, shall be made by motion. (E. 696.) 2. No motion or application for a rule nisi or order to show cause shall hereafter be made (a) in any action, or (&) to set aside, remit, or enforce an award, or (c) for attachment, or (d) to answer the matters in an affidavit, or (e) to strike off the rolls, or (/) against a sheriff to pay money levied under an execution. (E. 697.) 3. Except where according to the practice exists ing immediately before the first day of October, A.D. 1884, any order or rule might be made absolute ex parte in the first instance, and except where not- withstanding the next preceding rule, a motion or application may be made for an order to show cause only, no motion shall be made without previous notice to the parties affected thereby. . But the court or a judge, if satisfied that the delay caused by pro- ceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court or judge thinks just ; and any party affected by such order may move to set it aside or to vary it. (E. 698.) 4. Every notice of motion to set aside, remit, or enforce an award, or for attachment, or to strike off the rolls, shall state in general terms the grounds of the application; and, where any such motion is founded on evidence by affidavit, a copy of any affi- davit intended to be used shall be served -with the notice of motion. (E. 699.) 5. Unless the court or a judge gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion ; provided MOTIONS AND OTHER APPLICATIONS. 187 that in applications to answer the matters in an aflfi- °^^fj'^^- davit, or to strike off the rolls, the notice of motion — '- '— shall be served on the parties not less than ten clear days before the time fiked by the notice for hearing the motion. (E. 700.) 6. If on the hearing of a motion or other applica- uotiie n^ot tion the court or a judge is of opinion, that any per- served on aii son to whom notice has not been given, ought to have ties, or to have had such notice, the court or judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the court or judge thinks fit to impose. (E. 701.) 7. The hearing of any motion or application may Adiiumment. from time to time be adjourned upon such terms, if any, as the court or judge thinks fit. (E. 702.) 8. The plaintiff may, without any special leave, servicetn serve any notice of motion or other notice or any 4^*o ^af^noj petition or summons upon any defendant, who, appeared. having been duly served with a writ of summons to appear, has not appeared within the time limited for that purpose. (E. 703.) 9. The plaintiff may, by leave of the court or a gei4ce with judge to be obtained ex parte, serve any notice of ^re'ttae lor motion upon any defendant along with the writ of appearance. summons, or at any time after service of the writ of summons and before the time limited for the appear- ance of such defendant. (E. 704.) 10. No order shall issue for the return of any j^^ j6^5^>^,^ writ, or order for replevin, or to bring in the body of ^tn™ <>' a person ordered to be attached, arrested or com- mitted ; but a notice from the person issuing the writ, or obtaining the order for replevin, attachment, arrest, or committal (if not represented by a solici- tor), or from his solicitor, calling upon the sheriff to return such writ, or order, or to bring in the body within a given time, if not complied with, shall en- title such person to apply for an order for the com- mittal of such sheriff. (E. 706.) 11. Where any sheriff, before going out of office, ^^^^^^^^^\^_ arrests any defendant, and renders return of cepi tired sheriff. corpus, he may be called upoii by a notice, as pro- 188 MOTIONS AND OTHEE APPLICATIONS. Order IiH. rr. 11 — 15. (658.) Date of order. (659.) Certain orders need not bt drawn up. (660. Statement of persons to be served with petition. (663.) Time for hearing a petition. vided by the next preceding rule, to bring in the body within the time allowed by law, although he is out of office when such notice is given. (E. 707.) 12. Every order, if and when drawn up, shall be dated the day of the month, and the year, on which the same was made, unless the court or a judge otherwise directs, and shall take effect accord- ingly. (E. 708.) 13. Where an order is made not embodying any special terms, nor including any special directions, but simply enlarging time for taking any proceeding or doing any act or giving leave, — (a.) for the issuing of any writ other than a writ of attachment, (&.) for the amendment of any writ or pleadings, (c.) for the filing of any document, or (d.) for any act to be done by an officer of the court other than a solicitor, it shall not be necessary to draw up such order, un- less the court or a judge otherwise directs ; but the production of a note or memorandum of such order, signed by a judge or prothonotary, shall be sufficient authority for such enlargement of time, issuing, amendment, filing, or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed a special direction within the meaning of this rule. The solicitor of the person on whose application such order is made, shall forth- with give notice in writing thereof to such person (if any) as would if this rule had not been made, have been required to be served with such order. (E. 709.) 14. At the foot of every petition (not being a petition of course) presented to the court, and of every copy thereof, a statement shall be macie of the persons, if any, intended to be served therewith, and if no person is intended to be served, a statement to that effect shall be made at the foot of the petition and of every copy thereof. (E. 711.) 15. Unless the court or a judge gives leave to the contrary, there shall be at' least two clear days between the service, and the day appointed for hear- ing a petition. (E. 712.) ACTION OF MANDAMUS.. 189 16. (1.) In the case of an application under any °^^^^ statute directing the purchase money of any pro Lll. 16. perty sold to be paid into court, any person claiming Application to be entitled to the money so paid in shall make an l^'' ^°rt^^ affidavit (a) verifying his title, and (b) stating that he is not aware of any right in any other person, or of any claim made by any other person, to the sum claimed, or to any part thereof. (2.) If the petitioner is aware of any such right or claim, he shall in such affidavit state or refer to and except the same. (E. 713.) OEDEE LIII. order Lm. rr. 1 — 4. ACTION OF MANDAMUS. 1. The plaintiff, in any action in which he claims j^andamus a mandamus to command the defendant to fulfil any *° ^^j.?j'^^"^"i duty, in the fulfilment of which the plaintiff is per- sui^om. sonally interested, shall indorse such claim upon the writ of summons. (E. 719.) 2. The indorsement shall be in the form given in ^^^^^^^\l. section IV, of appendix A, part III. (E. 720.) dorsement. 3. If judgment is given for the plaintiff the p„4r®oV court or judge may by the judgment command the "o^^^- defendant either forthwith, or on the expiration of such time and upon such terms as appears to the court or a judge to be just, to perform the duty in question. The court or a judge may also extend the time for the performance of the duty. (E. 721.) 4. No writ of mandamus shall be issued in an j^a<^®ntor action, but a mandamus shall be by judgment or ord^er.instead order, which shall have the same effect as a writ of mandamus. mandamus formerly had. (E. 722.) 190 APPLICATION AND PEOCEEDINGS AT CHAMBEES. Order irv. rr. 1 — 41). ORDEE LIV. (678.) Application to be by notice or Guuimons. (679.) Certain ap- plications to be by sum- mons or notice. (680.) Alteration of summons. (680a.) Originating summons, form of. (680b.) Appearance to originating summons. (680c.) Notice of time for at- tending ori- ginating sum- mons, and service of. (681.) Return day of summons and length of service. APPLICATION AND PROCEEDINGS AT CHAMBEES. 1. Every application at chambers not made ex parte, shall be ma(ie by summons, or on notice. (E. 734.) 2. Every application for payment or transfer out of court made ex parte, and every other applica- tion made ex parte in which the judge or proper officer thinks fit so to require, shall be made by sum- mons or on notice. (E. 735.) 3. No summons shall be altered after it is sealed except upon application at chambers. (E. 736.) 4. An originating summons shall be in the form No. 1a or 1b, appendix K, to these rules, with such variations as circumstances require. It shall be pre- pared by the applicant or his solicitor, and shall be sealed by the prothonotary, and when so sealed shall be deemed to be issued. The person obtaining the originating summons shall leave a copy thereof with the prothonotary to be filed. (E. 737b., E. R. S. C, Aug., 1894, r. 3.) 4a. The parties served with an originating sum- mons shall, unless otherwise provided, before they are heard, enter appearance and give notice thereof. A party so served may appear at any time before the hearing of the summons. If he appears at any time after the time limited by the summons for appear- ance he shall not, unless the court or a judge other- wise orders, be entitled to any further time for any purpose, than if he had appeared according to the summons. (E. 737c., E. R. S. C, Aug., 1894, r. 4.) 4b. The day and hour for attendance under an originating summons shall, after appearance, be fixed by notice sealed by the prothonotary and in the form No. Ic, appendix K. The notice shall be served on the defendant or respondent by delivering a copy thereof at the address for service named in the memorandum of appearance of such defendant or respondent not less than four clear days before the return day. The day and hour for the hearing APPLICATION AND PROCEEDINGS AT CHAMBBES. 191 of an ex parte summons shall be fixed by the judge or*er liv- in chambers on production of the originating sum- "" ^'^^' mons. (E. 737d., E. R. S. C, Aug., 1894, r. 5.) 4c. Unless a judge otherwise orders there shall ■ be at least two clear days between the service of a sunamons (other than an originating summons) or notice of application at chambers, and the making of the application upon such summons or notice: Provided that in case of an application for time only, the summons or notice may be served the day before making the application. (E. 737b., E. R. S. C, Au^., 1894, r. 6.) _ 5. Where any of the parties to a summons PeJo^^snm- fails to attend, whether upon the return of the sum- mone°d fa™g mons, or at any time appointed for the consideration or further consideration of the matter, the judge may proceed ex parte, if, considering the nature of the case, he thinks it expedient so to do ; no affidavit of non-attendance shall be required or allowed, but the judge may require such evidence of service as he thinks just. (E. 738.) 6. Where the judge has proceeded eaj ^ar^e, Matternot to such proceedings shall not in any manner be recon- te "-opened. sidered in chambers, unless the judge is satisfied that the party failing to attend was not guilty of wilful delay or negligence ; and in such case the costs occa- sioned by his non- attendance shall be in the discre- tion of the judge, who may fix the same at the time, and direct them to be paid by the party or his solici- tor before he is permitted to have such proceeding reconsidered, or make such other order as to such costs, as he thinks just. (E. 739.) 7. Where a proceeding in chambers fails by rea- costi***'^ son of the non-attendance of any party, and the judge does not think it expedient to proceed ex parte, he may order such an amount of costs (if any) as he thinks reasonable to be paid to the party attending by the absent party, or by his solicitor personally. (E. 740.) 8. Where any matters in respect of which a sum- jjatte^rt^Aot mons has been issued is not disposed of upon the re- disposed of. turn of the summons, the parties shall attend from 193 APPLICATION AND PEOCEEDINGS AT CHAMBEES. Order LIV. rr. 8 — 13. (686.) More than one matter included. Adj oumment into and from court. (687.) Form of sum- mons. (688.) How issued. Witliout leave. Filing or serving affi- davits. (689.) Appeal from judge at chambers. (690.) List of sum- monses. Exparte entries first on list. time to time without further summons, at such time or times as are appointed for the consideration or further consideration of the matter. (E. 741.) 9. In every cause or matter where any party thereto makes any application at chambers, either by way of summons or otherwise, he may include in one and the same application 'all matters upon which he then desires the order or directions of the court or judge ; and upon the hearing of such application the court or judge may make any order and give any directions relative to or consequential on the matter of such application as are just ; any such application may, if it is deemed fit, be adjourned from chambers into court, or from court into chambers. (E. 742.) 10. A summons other than an originating sum- mons shall be in the form No. 1 in appendix K, with such variations as circumstances require, and shall be addressed to all the persons on whom it is to be served. (E. 743.) 11. (1.) A sununons shall be prepared by the ap- plicant or his solicitor, and shall be sealed by the prothonotary, and when so sealed shall be deemed to be issued. The person obtaining a summons shall leave at the prothonotary 's office a Qopy thereof, which shall be filed. * , (2.) Such summons may be issued without the leave of a judge. (3.) Except by leave of a judge no affidavit shall be used in support of any application at chambers, unless it has been filed, or a copy thereof served, at least two clear days before the day named for making the application. (E. 744, S. C."K., Oct. 30th, 1893, r. 7.) 12. The appeal from the decision of a judge at chambers shall be to the court. (E. 756.) 13. Every application to be made at chambers shall be entered on a list by the proper officer when a summons therefor is issued or an entry thereof is filed. (1.) Entries of ex parte applications at cham- bers shall be marked as such and shall be placed be- fore the other applications on the judge's list, but DECLARATION ON ORIGINATING SUMMONS. 193 according to the seniority of the members of the bar ^/^'I'gil^- as in the case of such other applications. — '- ~ (2.) A copy of the judge's list shall be supplied copyof lut by the prothonotary for the use of the bar. (E. 760, "' ''' S. C. E., Nov. 25th, 1905.) 14. The applications entered in the list for hear- order ofbusi ing by a judge shall be called on in their order. If ''««»• when an application is called on neither party ap- pears, it shall be passed over until the list has been gone through. The applications passed over shall then be called on a second time in their order. If neither party appears when an application is so called on it shall be struck out. (E. 761.) 15. An order shall be in the form No. 2 in ap- Foni*o¥' pendix K. with such variations as circumstances re- "'*^''- quire. It shall be sealed, and marked with the name of the judge by whom it is made. (E. 762.) 16. One of the judges, from time to time selected (692a.) for that purpose, shall attend at chambers twice HofjTigT&t week, or oftener if necessary. He shall not be re- '=^*°'''*''^- quired to sit in the court in banco during the period for which the duty of attending at chambers is as- signed to him. (S. C. R., Ont. 30th, 1893, r. 5.) ORDER LIVa. °'rr"l-l^ DECLABATION ON ORIGINATING SUMMONS. 1. Any person claiming to be interested under a (692b.) deed, will, or other written instruments, may apply mairde^iara- by originating summons for the determination of mons.'"' ^""^ any question of construction arising under the in- strument, and for a declaration of the rights of the persons interested. (E. 762a., E. R. S. C, Nov., 1893, r. 23.) 2. The court or a judge may direct such persons (692c.) to be served with the summons as they or he thinks s*"'"®- fit. (E. 762b., E. R. S. C, Nov., 1893, r. 23.) 3. The application shall be supported by such (692d.) evidence as the court or a judge requires. (E. 762c., ^'''^«'"=«- E. R. S. C, Nov., 1893, r. 23.) S.N.S. 13 194 POWBKS OF MASTERS AT CHAMBEES. Order LIV. A r. 4. (692e.) Discretion of court. 4. The court or judge shall not be bound to de- termine any such question of construction if in their or his opinion it ought not to be determined on originating summons. (E. 762d., E. R. S. C, Nov., 1893, r. 23.) Order LIV. B r. 1. (692f.) County judge as master, powers of at Chambers same as judge. Exceptions. OEDER LIVb. POWEES OF MASTERS AT CHAMBEES. 1. The judges of the county courts, except the judge of the county court for district No. 1, shall be ex-officio masters of the supreme court. Whenever application is made to any such master, he shall, sub- ject to the same appeal as is provided in the case of a decision of a judge at chambers, hear applications, make orders, and transact all such business, and exercise all such authority and jurisdiction in respect to the same, as under the Judicature Act, or the rules and practice of the Supreme Court, may be heard, made, transacted and exercised by a judge of the Supreme Court at chambers, except in respect to the following proceedings and matters, that is to say :— (a.) All matters relating to the liberty of the subject, in which the person is held under any proceeding other than that of a county court, municipal court, stipen- diary magistrate, or justice of the peace, or under any proceeding in a criminal matter other than an offence which may be tried by a judge of a county t30urt under the provisions relating to speedy trials. (&.) (c.) id.) (e.) The quashing or reviewing of any proceed- ing by means of the writ of certiorari, but not including the allowance of the writ. The settlement of issues, except by consent. Prohibitions, injunctions, mandamus, and receivers. Awarding of costs, other than the costs of, or relating to, any proceeding before a , PEOCEEDINGS UNDER THE TRUSTEE ACT. 195 master, and other than costs which hy o^der liv. b these rules or by the order of a court or a — '- — judge he is authorized to award. (/. ) Matters provided for in Order LV. ' ' Cham- bers in relation to chancery (or equity) matters," other than applications for time to plead, or for leave to amend pleadings. (g.) Sales of land, other than the land of luna- tics or infants", or in actions for fore- closure and sale. (1886, c. 50, ss. 1-4; 1887, c. 10 ; 1890, c. 11, s. 1 ; 1893, c. 7, s. 3 ; 1897, c. 32, s. 1.) 2. No master shall exercise the jurisdiction or powers by this Order conferred, except in causes or matters belonging to a prothonotary's office in the district for which he is a county court judge. (1897, c. 32, s. 2.) 3. Every application to vary, rescind, or set aside an order made by a master, shall be made to such master or to the Supreme Court by way of ap- peal. (1897, c. 2, s. 3.) OEDERLIVC. order MV.C PROCEEDINGS UNDER THE TRUSTEE ACT. 1. Any of the following applications under ' ' The j^J^\^^f^-^^^ Trustee Act ' ' may be made by an originating sum- by summoiiB .,.'' ,1 T J.' under "Trus mons, or m a pending matter by a summons or notice, tee Act." that is to say: — (a.) An application for the appointment of a ^^^ j^^ew new trustee, with or without a vesting or other consequential order. (b.) An application for a vesting order, or other For vesting V/ iJ- ,.T IT -i J. order, new order consequential on the appointment trustee. of a new trustee, whether the appoint- ment is made by the court or a judge or out of court, (c.) An application for a vesting order, or other ^X'&ie consequential order, in any case where a judgment or order has been given or 196 PEOCBEDINGS UNDEE THE TRUSTEE ACT. Order ^J^^ made for the sale, conveyance, or trans- '- f er of any land or stock, or the suing for or recovering any chose in action. {d.) An application relating to a fund paid into court in any case. (E. 775a.) 2. Every other application under ' ' The Trustee Act " may be made by petition. (E. 762p.) (692U 3. (1.) Where a trustee desires to make a lodg- nnder Trustee ment iu court uudor "The Trustee Act," he shall make and file an affidavit intituled in the matter of the trust (described so as to be distinguishable) and of "The Tru-stee Act," and setting forth: — (a.) A short description of the trust and of the Money m court. (69211.) Other appli- cations. Affidavit re- quirements of instrument creating it. Notice of to persons in- terested. Place for service by applicant. Order for service. (&.) The names of the persons interested in, and entitled to the money or securities, and their places of residence, to the best of his knowledge and belief. (c.) His submission to answer all such inquiries, relating to the application of the money or securities paid into court, as the court or judge makes or directs. (d.) The place where he is to be served with any petition, summons, order, or notice of any proceeding relating to the money or securities. (2.) The person who has made the lodgment shall forthwith give notice thereof by prepaid letter through the post, to the several persons whose names and places of residence are stated in his affi- davit as interested in, or entitled to, the money or securities lodged in court. (3.) No petition or summons relating to the money or securities shall be answered or issued un- less the petitioner or applicant has named therein a place where he may be served with any petition or summons, or notice of any proceeding or order re- lating to the money or securities, or the dividends thereof. (4.) Service of any application in respect to the money or securities shall be made on such persons as the court or judge directs. (E. 762h.) CHAMBEES IN RELATION TO CHANCEET (OE EQUITY). 197 4. Applications to deal witli funds lodged in order liv. c court under «'The Trustee Act," shall be intituled "' ^°' in the same manner as the affidavit on which the Titil^oflppii- funds were lodged. "*"""• 5. All other applications under "The Trustee (692k.) Act," not made in any pending cause or matter, Se^s under shall be intituled in the matter of the trust (de- '^"''*'''^'"- scribed so as to be distinguishable) and of "The Trustee Act." 6. There shall be an appeal from any decision, (6921.) order, or judgment of a judge under ' ' The Trustee oXf un°dM Act." (1888, C. 11, S. 78.) Trustee Act. OEDER LV. order IV. r, 1. CHAMBEES IN RELATION TO CHANCERY (oE EQUITY) MATTBES. 1. — General. 1. The business to be disposed of in chambers (693.) shall include the following matters, in addition to the be d*one It matters .which under any other rule or by statute <'*'*™''^"- may be disposed of in chambers : (1.) Applications for payment or transfer to any Payment out person of any cash or securities standing mentXdfr- to the credit of any cause or matter, '"^ "^"'• where there has been a judgment or order declaring the rights, or where the title depends only upon proof of the identity or of the birth, marriage, or death of any person ; (2.) Applications for payment or transfer to Payment out '^ ' -"^^ f. 1 -J.- where funds any person or any cash or securities under $4,000. standing to the credit of any cause or matter, where the cash does not exceed $4,000, or the securities do not exceed $4,000 nominal value ; (3.) Applications for pasmient to any person of Payment of '^ ' f,^ . T . • 1 J. •±- dividends. the dividend or interest on any securities standing to the credit of any cause or 198 CHAMBERS IN EELATION TO CHANCEET (OE EQUITY). Order LV. rr. 1 — 2. Guardianship of infants. Property management. Insolvent and intestate estates. Pleadings, discovery, &c. Other matters matter, whether to a separate account or otherwise ; (4.) Applications as to guardianship and main- tenance or advancement of infants ; (5.) Applications connected with the manage- ment of property; (6.) Applications for or relating to the sale by- auction or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into court and investment of the purchase money ; (7) Applications for orders on the further con- sideration of any cause or matter, where the order to be made is for the distribu- tion of assets of a debtor, or for the dis- tribution of the estate of an intestate, or for the distribution of a fund among creditors or debenture holders; (8.) Applications for time to plead, for leave to amend pleadings, for discovery and pro- duction of documents, and generally all applications relating to the conduct of any cause or matter ; (9.) Such other matters as are deemed proper to be disposed of at chambers. (E. 764.) (694.) Certain ques- tions to he settled with- out adminis- tration. 2. — Administrations and Trusts. 2. The executors or administrators • of a de- ceased person or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of Mn, or heir-at-law of a deceased person, or as cestui que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons return- able in chambers for such relief of the nature or kind following, as by the summons is specified, and as the circumstances of the case require, (that is to say) CHAMBEES IN EBLATION TO CHANCERY (OH EQUITY). 199 the determination, without an administration of the orderly, estate or trust, of any of the following questions or -^^^-?— ^- raatters : — (a.) Any question affecting the rights or in- terests of the person claiming to be credi- tor, devisee, legatee, next of kin or heir- at-law, or cestui que trust; (b.) The ascertainment of any class of credi- tors, legatees, devisees, next of kin, or others ; (c.) The furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when neces- sary) of such accounts ; (d.) The payment into court of any money in the hands of the executors or administra- tors or trustees ; (e.) Directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trus- tees; (/.) The approval of any sale, purchase, com- promise, or other transaction; (g.) The determination of any question arising in the administration of the estate or trust. (E. 765.) 3. Any of the persons named in the next preced- (695.) T "^ . T-, !/• 1 T ± • Applications mg rule may m like manner apply tor and obtain an foradminis- 1 J? trations. order tor : — (a.) The administration of the personal pro- perty of the deceased; (&.) The administration of the real property of the deceased; (c.) The administration of the trust. (E. 766.) 4. The persons to be served with the summons (696.) under the next two preceding rules in the first in- toUs^vel stance shall be the following; (that is to say) — mons^"™' A. Where the summons is taken out by an executor or administrator or trustee, — 200 CHAMBERS IN EELATION TO CHAN-CEET (OE EQUITY). *J^^'i^J' (^O For the determination of any question, — '- — under sub-sections (a.), (e.), (/.), or (g.), or rule 2, the persons, or one of the persons, whose rights or interests are sought to be affected ; (b.) For the determination of any question, under sub-section (&.) of rule 2, any member or alleged member of the class ; (c.) For the determination of any question, under sub-section (c.) of rule 2, any person interested in taking such ac- counts ; (d.) For the determination of any question, under sub-section (d.) of rule 2, any person interested in such money; (e.) For relief under sub-section (a.), of rule 3, the residuary legatees, or next of kin, or some of them; (/.) For relief under sub-section (b.) of rule 3, the residuary devisees, or heirs, or some of them ; (g.) For relief under sub-section (c.) of rule 3, the cestuis que trustent, or some of them; {h.) If there are more than one executor or administrator or trustee, and they do not all concur in taking out the sum- mons, those who do not concur. B. Where the summons is taken out by any person other than the executors, adminis- trators, or trustees, the said executors, administrators or trustees. (E. 767.) Dr 'ctfo^ns to ^^ '^^^ court or a judge may direct such other seV^e others, persous to be scrvcd with the summons as they or he thinks fit. (E. 768.) (698.) 6. The application shall be supported by such Evidence on . , . / ^ , . , ^ \ n t application, evideuce as the court or a judge requires, and direc- tions may be given as they or he thinks just for the trial of any questions arising thereupon. (E. 769.) CHAMBEKS IN RELATION TO CHANCEET (OK EQUITY). 201 7. It shall be lawful for the court or a iudee or^'r i-v- upon such summons to pronounce such judgment as " the nature of the case requires. (E. 770.) judgment! 8. ^ The court or a judge may give any special spJm°'^ directions touching the carriage or execution of the directions, judgment, or the service thereof upon persons not parties, as they or he thinks just. (E. 771.) 9. It shall not be obligatory on the court or a jr„ adminL- judge to pronounce or make a judgment or order, tration unless whether on summons or otherwise, for the adminis- '^^'"'^^^''^' tration of any trust or of the estate of any deceased person, if the questions between the parties can be properly determined without such judgment or order. (E. 772.) 9a. Upon an application for administration or ordels which execution of trusts by a creditor or beneficiary under ™8y be made a will, intestacy, or deed of trust, where no accounts tions for ad- /v».j IT -, iTjT J Kninistratlon or msumcient accounts have been rendered, the court or execution or a judge may, in addition to the powers already whe™^ no ac- eXlStmg, sufficient ac- (a.) Order that the application shall stand over tem rend^'ered for a certain time, and that the executors, administrators, or trustees in the mean- time shall render to the applicant a proper statement of their accounts, with an intimation that if this is not done they may be made to pay the costs of the pro- ceedings ; (&.) When necessary, to prevent proceedings by other creditors, or by persons benefici- ally interested, make the usual judgment or order for administration, with a pro- viso that no proceedings are to be taken under such judgment or order without leave of the judge. (E. 772a, E. E. S. C, Dec, 1885, r. 23, and Nov., 1893, r. 25.) 10. The issue of a summons under rule 2 of this g^J^°?^'> Order, shall not interfere with or control any power uvoTottTxu- or discretion vested in any executor, administrator, or trustee, except so far as such interference or con- trol is necessarily involved in the particular relief sought. (E. 774.) 202 CHAMBBES IN RELATION" TO CHANCEET (OE EQUITY). Proceedings on applica- tion. order^^v^ 11. Any trustee, executor, or administrator shall — -be at liberty, without the institution of a suit, to Tnii7e°es;^ apply by petition to the court, or by summons upon a apply to judge Written statement to a judge, for opinion, advice, or for directions, (direction ou auy question respecting the manage- - ment or administration of the trust property, or the assets of any testator or intestate, such application to be served upon, or the hearing thereof to be at- tended by, all persons interested in such applica- tion, or such of them as the court or judge thinks ex- pedient. And it shall be in the power of the court or judge to direct any question arising on any such ap- plication to be argued, and to appoint counsel for that purpose where the parties fail and it appears necessary to do so. The trustee, executor, or ad- ministrator acting upon the opinion, advice, or direction given by the court or judge, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator, in the subject-matter of such ap- plication : Provided, nevertheless, that this rule shall not extend to indemnify any trustee, executor, or ad- ministrator in respect to any act done in accordance with such opinion, advice, or direction, as aforesaid, if such trustee, executor, or administrator has been guilty of any fraud, or wilful concealment, or mis- representation, in obtaining such opinion, advice, or direction. The costs of such application, arguments, and counsel, as aforesaid, and the party or funds by or out of which they shall be paid, shall be in the dis- cretion of the court or judge. (E. A. 30) (1888, C. 11, s. 63; 1889, c. 18, s. 3, part.) Eiifect of directions. Costs. 3. — Assistance of Experts. judglin ^ 12. The judge in chambers may, in such way as chambers may he thluks fit, obtaiu the assistauce of accountants, merchants, engineers, actuaries, and other scientific persons, the better to enable any matter at once to be determined, and he may act upon the certificate of any such person. (E. 781.) CHAMBERS IN EELATION TO CHANCERY (OR EQUITY). 303 5. — Proceedings Relating to Infants. a^Te—ia'. 16. Upon application for tlie appointment of (tos.) guardians of infants and allowance for maintenance, fjpucatfor the evidence shall show— ship^"*'"'^'*"' (a.) The ages of the infants ; (6.) The nature and amount of the infants' for- tunes and incomes ; (c.) What relatives the infants have. (E. 787.) 17. At any time during the proceedings at cham- Appilntmlnt bers under any judgment or order, the judge may, if adiite^'"'' he thinks fit, require a guardian ad litem to be ap- pointed for any infant or person of unsound mind not so found by inquisition or judicial decision, who has been served with notice of such judgment or order. (E. 789.) 6. — Summonses to Proceed. 18. Every judgment or order directing accounts ^^l\l°-^ or inquiries to be taken or made shall be brought !'™g°gj''' into chambers by the party entitled to prosecute directing ac- the same within ten days after the same has been °'"^'' ^' passed and entered, and in default thereof any other party to the cause or matter may bring in the same, and such party shall have the prosecution of such judgment or order unless the judge otherwise directs. (E. 794.) 19. Upon a copy of the judgment or order ^.J^^^^^l being filed, a summons shall be issued to proceed f°^p™'='*^'i" with the accounts or inquiries directed, and upon the return of such summons the judge, if satisfied by proper evidence that all necessary parties have been served with notice of the judgment or order, shall thereupon give directions as to the manner in which each of the accounts and inquiries is to be prosecuted, the evidence to be adduced in support thereof, the parties who are to attend on the several accounts and inquiries, and the time within which each proceeding is to be taken, and a day or days may be appointed for the further attendance of the parties, and all such directions may afterwards 204 CHAMBBHS IN EBLATION TO CHANCERY (OE EQUITY-). Order LV. rr. 19 — 22. (712.) Settling deed. be so varied by addition thereto or otherwise as is found necessary. (E. 795.) 20. Where by a judgment or order a deed is directed to be settled by the judge in chambers if the parties differ, a summons to proceed shall be issued, and upon the return of the summons the party entitled to prepare the draft deed shall be directed to deliver a copy thereof, within such time as the judge thinks tit, to the party entitled to object thereto, and the party so entitled to object shall be directed to deliver to the other party a statement in writing of his objections (if any) within eight days after the delivery of such copy, and the pro- ceedings shall be adjourned until after the expir- ation of the said period of eight days. (E. 796.) servileof ^^- Where, upon the hearing of the summons notice of to proceed, it appears to the judge that by reason of Juagment may _ p .t zy* • j j_i ■ be dispensed aDsencc, or lor any other sumcient cause, the ser- vice of notice of the judgment or order upon any party cannot be made or ought to be dispensed with, the judge may, if he thinks fit, wholly dispense with such service, or may at his discretion order any substituted service or notice by advertisement or otherwise in lieu of such service. (E. 797.) 21a. Where service of notice of a judgment or order for accounts in inquiries is dispensed with, the judge may, if he thinks fit, order that the persons, as to whom service is dispensed with shall be bound as if served, and they shall be bound accordingly, except where the judgment or order has been obtain- ed by fraud or non-disclosure of material facts. (E. 797a, E. R. S. C, Nov., 1893, r. 26.) 22. If on the hearing of the summons to proceed it appears that all necessary parties are not parties to the action, or have not been served with notice of the judgment or order, directions may be given for advertisement for creditors, and for filing the accounts, but the adjudication on creditors' claims and the accounts are not to be proceeded with, and no other proceeding is to be taken, except for the purpose of ascertaining the parties to be served, until all necessary parties have been served, and are bound, or service has been dispensed with, and (713a.) PoweJi to bind persons ser- vice on whom is dispensed with. (714.) Direction for advertise- ment for necessary parties. CHAMBERS IN EELATION TO CHANCERY (OR EQUITY). 205 until directions have been given as to the parties order lv. who are to attend on the proceedings. (E. 798.) — 23. The course of proceeding in chambers shall (715.) ordinarily be the same as the course of proceeding fhamw "' in court upon motions. Copies, abstracts, or extracts of or from accounts, deeds, or other documents, and pedigrees, and concise statements shall, if directed, be supplied for the use of the judge, and where so directed, copies shall be handed to the other parties. But no copies shall be made of deeds or documents where the originals can be brought in, unless the judge otherwise directs. (E. 799.) 7. — Summons Booh. 24. At the time any summons is obtained, an ■^^^^'''^^■^ entry thereof shall be made in the summons book, s "mmons in summons stating the date on which the summons is issued, bo"k° the name of the cause or matter, and by what party ; and shortly for what purpose such summons is obtained, and at what time such summons is return- able. (E. 800.) 8. — Attendance. 25. Where, upon the hearing of the summons to one'sliicAor proceed, or at any time during the prosecution of ^°^ ^"^ "i^^ss the judgment or order, it appears to the judge, Avith respect to the whole or any portion of the proceed- ings, that the interests of the parties can be classified, he may require the parties constituting each or any class to be represented by the same solicitor, and may direct what parties may attend all or any part of the proceedings, and where the parties consti- tuting any class cannot agree upon the solicitor to represent them, the judge may nominate such soli- citor for the purpose of the proceedings before him, and where any one of the parties consti- tuting such class declines to authorize the solicitor so nominated to act for him, and insists upon being represented by a different solicitor, such party shall personally pay the costs of his own solicitor of and relating to the proceedings before the judge, with respect to which such nomination has been made, and all such further costs as are occasioned to any 206 OHAMBEES IN EELATION" TO CHANCEET (OE EQUITY). Order LV. rr. 25 — 30, (718.) Distinct soli- citors may be required. (719.) Tliose not directed may attend at tlieir own ex- pense. (720.) How order drawn up. of the parties by Ms being represented by a different solicitor from the solicitor so nominated. (E. 802.) 26. Whenever in any proceedings before a judge in chambers the same solicitor is employed for two or more parties, such judge may at his discretion require that any of the said parties shall be represented before him by a distinct solicitor, and adjourn such proceedings until such party is so represented. (E. 803.) 27. Any of the parties other than those who have been directed to attend may attend at their own expense, and upon paying the costs, if any, occasioned by such attendance, or, if they think fit, they may apply by summons for liberty to attend at the expense of the estate, or to have the conduct of the action, either in addition to or in substitution for any of the parties who have been directed to attend.' (E. 804.) 28. An order is to be drawn up oij a summons to be taken out by the plaintiff or the party having the conduct of the action, stating the parties who have been directed to attend and such of them (if anv) as have elected to attend at their own expense. (E. 805.) (721.) Those who do not come in after advert tisement, e£x- cluded. (722.) Peremptory advertise- ment. 9. — Advertisements for Creditors and Claimants. 29. Where a judgment or order is given or made, whether in court or in chambers, directing an account of debts, claims or liabilities, or an inquiry for heirs, next of kin, or other unascer- tained persons, unless othermse ordered, all per- sons who do not come in and prove their claims within the time which is fixed for that purpose by advertisement, shall be excluded from the benefit of the judgment or order. (E. 806.) 30. Where an advertisement is required for the purpose of any proceeding in chambers, a peremp- tory advertisement, and only one, shall be issued, unless for any special reason it is thought neces- sary to issue a second advertisement or further advertisements, and any advertisement may be repeated as many times and in such papers as are directed. (E. 807.) CHAMBEES IN RELATION TO CHANCERY (OIl EQUITY). 307 31. The advertisement for claimants shall be order j,v. prepared by the party prosecuting the judgment or - ' order, and submitted to the judge for approval. (E. HowD?e ' 808, E. E. S. C, Dec. 1885, r. 27.) p-^^d- 32. Advertisements for creditors and other claim- (724.) ants shall fix a time within which each claimant, not menrfo™ being a creditor, is to come in and prove his claim, of. ""'™''' and within which each creditor is to send to the executor or administrator of the deceased, or to such other party as the judge directs, or to his solicitor, to be named and described in the advertisement, the name and address of such creditor and the full par- ticulars of his claim, and a statement of his account and the nature of the security (if any) held by him. Such advertisements shall be in one of the forms Nos. 2 and 3, in appendix L, with such variations as the circumstances of the case require. At the time of directing such advertisement a time shall be fixed for adjudicating on the claims. (E. 809.) 33. It shall not be necessary for a creditor to Proi/of'^ make any affidavit or attend in support of his claim oredttofs (except to produce his security), unless he is served with a notice requiring him to do so as hereinafter provided. (E. 811.) 34. Every creditor shall produce the security creditor to (if any) held by him, before the judge, at such time l^°^^^l as is specified in the advertisement for that purpose, being the time appointed for adjudicating on the claims, and every creditor shall, if required, by notice in writing (form No. 4 in appendix L,) to be given by the executor or administrator of the deceased, or by such other party as the judge directs, produce all other deeds and documents necessary to substantiate his claim before the judge at his chambers at such time as is specified in such notice. (E. 812.) 35. If any creditor neglects or refuses to com- P(,„i7t"or ply with the next preceding rule, he shall not be 3°°^™'"''"' allowed any costs of proving his claim unless the judge otherwise directs. (E. 813.) 36. The executor or administrator of the ■^^^I'^f^^l^ deceased, or such other party as the judge directs, administrator in • j_i 1 • J? i*± ± ' to examine shall examine the claims 01 creditors sent m pur- claims. 208 CHAMBERS IN EELATION TO CHANCERY (OE EQUITY). Order IiV. rr. 36 — 39. (729.) Making of affidavit' may be postponed. (730.) Adj ournment for direc- tions; (731.) Allowance or disallowance of claims. suant to the advertisement, and shall ascertain, as far as he is able, to which of such claims the estate of the deceased is justly liable, and he shall, at least seven clear days prior to the time appointed for adjudication, file an affidavit (form No. 5 in appendix L,) to be made by such executor or admin- istrator, or one of the executors or administrators, or such other party, either alone or jointly with his solicitor or other competent person, or otherwise, as the judge directs, verifying a list of the claims (form No. 6 in appendix L,) the particulars of which have been set in pursuant to the advertisement, and stating to which of such claims, or parts thereof respectively, the estate of the (ieceased is in the opinion of the deponent justly liable, and his belief that such claims, or parts thereof respectively, are justly due and proper to be allowed, and the reasons for such belief. (E. 814.) 37. If the judge thinks fit so to direct, the making of the affidavit referred to in the next pre- ceding rule shall be postponed till after the day appointed for adjudication, and shall then be subject to such directions as the judge gives. (E. 815.) 38. Where, on the day appointed for hearing the claims, any of them remain undisposed of, an adjournment day for hearing such claims shall be fixed, and where further evidence is to be adduced, a time may be named within which the evidence on both sides is to be closed, and directions may be given as to the mode in which such evidence is to be adduced. (E. 816.) 39. At the time appointed for adjudicating upon the claims of creditors, or at any adjournment thereof, the judge may in his discretion allow any of the claims, or any part thereof respectively, without proof by the cre(3itors, and direct such investigation of all or any of the claims not allowed, and require such further particulars, information, or evidence relating thereto as he thinks fit, and may, if he thinks fit, require any creditor to attend and prove his claim, or any part thereof, and the adjudication on such claims as are not then allowed shall be adjourned to a time to be then fixed. (E. 817.) CHAMBERS IN EELATION TO CHAXCEET (OE EQUITY). 209 40. Notice (form No. 7, in appendix L.) shall be ^/^HJ^Ji given by the executor or administrator, or such other party as the judge directs, to every creditor Noticlsto' whose claim, or any part thereof, has been allowed "'«"*'t°'^s- without proof by the creditor of such allowance, and to every such creditor as the judge directs to attend and prove his claim, or such part thereof as is not allowed, by a time to be named in such notice (form Xo. 8, in appendix L,) not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudica- tion thereon has been adjourned, and if any creditor does not comply with such notice, his claim, or such part thereof as aforesaid, shall be disallowed. (E. 818.) ■41. After the time fixed by the advertisement „ j^ss.) •^ 'IP Exclusion of no claims shall be received (except as herembei ore claims after .-,-,. „ -,. ^. , ,, prescribed provided m case of an adjournment), unless the time. judge thinks fit to give special leave, upon applica- tion and upon such terms and conditions as to costs and otherwise as the judge thinks fit. (E. 819.) 42. A creditor who has come in and established costl^l"''^ his debt in chambers under any judgment or order "^^f^l^l^^^^^^ shall be entitled to the costs of so establishing his debt, and the sum to be allowed for such costs shall be fixed by the judge, unless he thinks fit to direct the taxation thereof; and the amount of such costs, or the sum allowed in respect thereto, shall be added to the debt so established. (E. 820.) 43. A list of all claims allowed shall, when ^^^J^l^} required by the judge, be made out and filed by the lowed claims, person who examines the claims. (E. 821.) 44. Every notice by this Order required to be g^J^H^J given to creditors or other claimants shall, unless nouces by the judge otherwise directs, he deemed sufficiently given and served if transmitted by the post prepaid to the creditor or other claimant, to be served according to the address given in the claim sent in by him pursuant to the advertisement, or if such creditor or other claimant has employed a solicitor, to such solicitor according to the address given by him. (E. 823.) .S.N.S. — 14 310 CHAMBEES IN EELATIOX TO CHANCERY (OE EQUITY). Order LV. rr. 45 — 47b. (737.) Interest on Judgment or order (738.) Interest where debt does not bear interest. (739.) Interest on legacies. 10. — Interest. 45. Where a judgment or order is made directing an account of the debts of a deceased person, unless otherwise ordered, interest shall be computed on such debts as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of six per cent, per annum from the date of the judgment or order. (E. 824.) 46. A creditor whose debt does not carry interest, who comes in and establishes the same before the judge in chambers under a judgment or order of the court or of the judge in chambers, shall be entitled to interest upon his debt at the rate of six per cent, per annum, from the date of the judgment or order, out of any assets which remain after satisfying the costs of the cause or matter, tie debts established, and the interest of such debts as by law carry interest. (E. 825.) 47. Where a judgment or order is made direct- ing an account of legacies, interest shall be com- puted on such legacies after the rate of five per cent, per annum from the end of one year after the testator's death, unless otherwise ordered, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will. (E. 826.) 10a. — References. (7B9a.) Referees to 47a. The judge may direct referees to take such take accounts, accounts and make such inquiries as usually have been taken and made by the chief clerks in the chan- cery division in England, and the judge shall give such aid and directions in every such account or inquiry as he thinks fit. (E. 777.) 47b. Such referee shall, for the purpose of any proceedings directed to be taken before him, have full power to issue advertisements, to summon par- ties and witnesses, to administer oaths, to require the production of documents, to take affidavits and acknowledgments, other than acknowledgments by married women, and when so directed by the judge. (739b.) Referees on taking ac- connts. CHAMBERS IN EELATION TO CHANCBHT (OK EQUITY). 311 to examine parties and witnesses either upon inter- „*'''^*^^- rogatories or viva voce, as the judge directs. (E. ~ 778.) 47c. Parties and witnesses summoned to attend Do/y^o®''-]^- bef ore a referee shall be bound to attend in pur- ^^l^^^- suance of the summons, and shall be liable to process tend before of contempt in like manner as parties or witnesses are liable thereto in case of disobedience to any order of the court, or in case of default in attend- ance, in pursuance of any order of the court or of any writ of subpoena ad testificandum, and all persons swearing or affirming before any referee shall be liable to all such penalties, punishments, and consequences for any wilful and corrupt false swearing or affirming contained therein, as if the matters sworn or affirmed had been sworn and affirmed before any other person by law authorized to adminster oaths, to take affidavits, and to receive affirmations. (E. 779.) 47d. The court or judge may direct any compu- Qamltaiion tation of interest, or the apportionment of any fund, ^'^''^J^^'^f - to be certified by the referee, and to be acted upon acted upon b? by any person without further order. (E. 780.) |ny''"^°°' 47e. The dixections to be given for or touching „ (739e.) T 1 c n n in • Referee's cer- any proceedings before the reteree shall require no tMcate. particular form, but the result of such proceedings shall be stated in the shape of a concise certificate to the judge, and unless an order to discharge or vary the same is made, the certificate shall be deemed to be approved and adopted by the judge. (E. 827.) 47f. The certificate of the referee shall not, ^erm^cate^ unless the circumstances of the case render it neces- tow drawn, sary, set out the judgment or order or any docu- ments or evidence or reasons, but shall refer to the judgment, or order, docunients, and evidence, or particular paragraphs thereof, so that it may appear upon what the result stated in the certificate is founded. (E. 828.) 47g. The certificate .shall, when the judge so p^^^lUfi^^ directs, be prepared by the solicitor of one of the ^''^'ij^n'f*^^*';,^^. parties, who shall obtain an appointment to settle ee's certifi- the certificate and shall give notice of such appoint- 213 CHAMBEES IN RELATION" TO CHANCEHT (OE EQUITY). rr. 47g — 47m. (739h.) Form of certificate. (739i.) Contents of certificate in cases of accounts. "'Jfe-i'^m nient to the other parties. No summons to settle the certificate of the referee shall hereafter be issued. (E. 828a.) ■ITh. The certificate of tlie referee shall be in the form No. 9, in appendix L, with such variations as the circumstances require, and when prepared and settled shall be transcribed in such form, and within such time, as the referee requires, and shall be signed by the referee either then or (if ncessary) at an adjournment to be made for the purpose. (E. 829.) 47i. Where an account is directed, the certificate shall state the result of such account, and not set the same out by way of schedule, but shall refer to the account verified by the affidavit filed, and shall specify by the numbers attached to the items in the account which, if any, of such items have been dis- allowed or varied, and shall state what additions, if any, have been made by way of surcharge or other- wise, and where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account as altered, such trans- cript may be required to be made by the party prose- cuting the judgment or order, and shall then be referred to by the certificate. The accounts and the transcripts (if any) referred to by certificates shall be filed therewith. (E. 830.) 47k. Any party may, before the proceedings before the referee are concluded, take the opinion of the judge upon any matter arising in the course of the proceedings witliout any fresh summons for the purpose. (E. 831.) when^cOTtifi- '^^^' Every certificate, with the accounts (if cate becomes any) to be filed therewith, shall be filed by the referee, and shall thenceforth be binding on all the parties to the proceedings, unless discharged or varied upon application by summons to be made before the expiration of eight clear davs after the filing of the certificate, (E. 832.) 47m. The judge may, if the special circum- Transcript. Piling of accounts and transcripts. (739k.) Taking opin- ion of judge. binding. Application to discharge or vary it. (739m.) Discharge or „ , • •, -i . , • v,inationof staucf's ot the casc require it, upon an application aft^J- I'a'ps'e b>' motiou or summons for the purpose, direct a of any i iino. INTBEPLEADEE. 213 certificate to be discharged or varied at any time i^^^l^^^J.^^ after the same has become binding on the parties. — ' (E. 833.) 11. — Further Consideration. 48. Where any matter originating in chambers . (740.) has, at the original or any subsequent hearing, been matter, how adjourned for further consideration in chambers, fo™wl?d. such matter may, after the expiration of eight days, be brought on for further consideration by a sum- mons to be taken out by the party having the con- duct of the matter, and, after the expiration of four- teen days, by a summons to be taken out by any other party. Such summons shall be in the form following : — " That this matter, the further consideration ■whereof was adjourned by the order of the day of , 19 — , may be further considered," and shall be served six clear days before the return : Provided that this rule shall not apply to any mat- ter, the further consideration whereof has, at the original or any subsequent hearing, been adjourned into court. (E. 834.) 12. — Forms, Sc. 49. The form Nos. 10 to 20 in appendix L shall j,„4^*^-) be used for the respective purposes therein men- tioned, with such variations as circumstances require. (E. 837.) ORDER LVI. order LVI. INTBEPLEADEE. 1. Relief by way of interpleader may be grant- (742.) •^ •^ .J ^ when such gd relief allowed. {a.) Where the person seeking relief (in this Order called the applicant) is under liability for any debt, money, goods, or chattels, for or in respect to which he is, 214 INTEEPLEADEE. Sheriff. (743.) Conditions of relief. °ii^\^!j^' or expects to be, sued by two or more parties (in tMs Order called the claim- ants) making adverse claims thereto; (b.) Where the applicant is a sheriff or other oflBcer charged with the execution of process by or under the authority of the court, and claim is made to any money, goods or chattels taken or intended to be taken in execution under any process, or to the proceeds or value of any such goods or chattels by any person other than the person against whom the pro- cess issued. (E. 850.) 2. The applicant shall satisfy the court or a judge by affidavit or otherwise — (a.) That the applicant claims no interest in the subject-matter in dispute, other than for charges or costs ; and (&.) That the applicant does not collude with any of the claimants ; and (c.) That the applicant, except where he is a sheriff or other officer charged with the execution of process, by or under the authority of the Supreme Court, who has seized goods, and who has withdrawn from possession in consequence of the execution creditor admitting the claim of the claimant under rule 16 of this Order, is willing to pay or transfer the subject-matter into court or to dispose of it as the court or a judge directs. (B. 851, E. E. S.C., March 1896, r. 2.) Advlr*e*'tities 3. The applicant shall not be disentitled to relief of claimants, by reasou Only that the titles of the claimants have not a common origin, but are adverse to and inde- pendent of one another. (E. 852.) 4. Where the applicant is a defendant, applica- tion for relief may be made at any time after service of the writ of summons. (E. 853.) 5. The applicant may take out a summons call- ing on the claimants to appear and state the nature (745.) Time for ap- plication by defendant. (746.) Iriterpleader STimmons. INTEKPLEADBR. 215 and particulars of their claims, and either to main- °r''*6— iV' tain or relinquish them. (E. 854.) 6. If the application is made by a defendant in Powlr^Vstay an action the court or judge may stay all further proceedings proceedings in the action. (E. 855.) 7. If the claimants appear in pursuance of the Directfonof summons, the court or a judge may order either that clamant t'e"' any claimant be made a defendant in any action made defon- already commenced in respect to the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff, and which defend- ant. (E. 856.) 8. The court or a judge may, with the consent of summary' both claimants, or on the request of any claimant, if, ty^'eonse"™ having regard to the value of the subject-matter in dispute, it seems desirable so to do, dispose of the merits of their claims, and decide the same in a sum- mary manner and on such terms as are just. (E. 857.) 9. Where the question is a question of law, Q^eitioni*of and the facts are not in dispute, the court or a Jf^'eases'^'" judge may either decide the question without direct- ing the trial of an issue, or order that a special case be stated for the opinion of the court. If a special case is stated. Order XXXIII shall, as far as ap- plicable, apply thereto. (E. 858.) 10. If a claimant, having been duly served with cia4l"iot a summons calling on him to appear and maintain or ^P^^a^^l'd^' *° relinquish his claim, does not appear in pursuance of the summons, or, 'having appeared, neglects or refuses to comply with any order made after his appearance, the court or a judge may make an order declaring him, and all persons claiming under him, forever barred against the applicant and per- sons claiming under him; but the order shall not affect the rights of the claimants as between them- selves. (E. 859.) 11. Except when otherwise provided by statute, ^J^\^l'> the judgment in any action, or on any issue ordered whenfinki. to be tried or stated in an interpleader proceeding. 216 IXTEKPLEADEH. Order LVI. rr. 11 — 16. (753.) Sale may be ordered. (754.) Discovery, trial, and judgment. (755.) One order in several mat- ters. (756.) Costs and incidental matters. (756a.) Sheriff's costs. and the decision of the court or a judge in a sum- ■ mary way, under rule 8 of this Order, shall be final and conclusive against the claimants, and all per- sons claiming under them, unless by special leave of the court or judge, as the case may be. (E. 860.) 12. When goods or chattels have been seized in exception by a sheriff or other officer charged with the execution of process of the court, and any claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the court or a judge may order the sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as are just. (E. 861.) 13. Orders XXX and XXXIV shall, with the necessary modifications, apply to an interpleader issue ; and the court or a judge who tries the issue may finally dispose of the whole matter of the inter- pleader proceedings, including all costs not other- wise provided for. (E. 862.) 14. Where in any interpleader proceeding it is necessary or expedient to make one order in several causes or matters, such order may be made by the court or a judge before whom the interpleader pro- ceedings are taken, and shall be entitled in all such causes or matters; and any such order (subject to the right of appeal) shall be binding on the parties in all such causes or matters. (E. 863.) 15. The court or a judge may, in or for the purposes of any interpleader proceedings, make all such orders as to costs and all other matters as are just and reasonable. (E. 864.). 16. Where a claim is made to or in respect to any goods or chattels taken in execution under the process of the court, it shall be in writing, and upon the receipt of the claim the sheriff or his officer shall forthwith give notice thereof to the execution creditor according to form 25 in appendix B, or to the like effect, and the execution creditor shall, within four days after receiving the notice, give notice to the sheriff or his officer that he admits or disputes the claim, according to form 26 in appendix IN-TEHPLEADEK. 217 B, or to the like effect. If the execution creditor °l^^lg^^- admits the title of the claimant, and gives notice as —'- - directed by this rule, he shall only be liable to such sheriff or officer for any fees and expenses incurred prior to the receipt of the notice admitting the claim. '(E. Or. 57, r. 16, E. R. S. C, 1889, r. 9.) 16a.. When the execution creditor has given ^. (jset) ~ Withdrawal notice to the sheriff or his officer that he admits the oi sheriff. claim of the claimant, the sheriff may thereupon withdraw from possession of the goods claimed, and may apply for an order protecting him from any action in respect to the said seizure and posses- sion of the said goods, and the judge may make any such order as is just and reasonable in respect to ihe same : Provided always that the claimant shall receive notice of such intended application, and if he desires it, may attend the hearing of the same, and if he attends, the judge may, in and for the pur- poses of such application, make all such orders as to costs as are just and reasonable. (E. Or. 57, r. 16a., E. R. S. C, March 1896, r. 3.) 17. Where the execution creditor does not in due costln^"'^ time, as directed by rule 16, admit or dispute the interpleader, title of the claimant to the goods or chattels, and the claimant does not withdraw his claim thereto by notice in writing to the sheriff or his officer, the sheriff may apply for an interpleader summons to be issued, and should the claimant withdraw his claim by notice in writing to the sheriff or his officer or the execution creditor in like manner serve an admission of the title of the claimant prior to the return day of such summons, and at the same time give notice of such admission to the claimant, the judge may, in and for the purposes of the inter- pleader proceedings, make all such orders as to costs, fees, charges, and expenses, as are just and reasonable. (E. Or. 57, r. 17, E. R. S. C, 1889, r. 10.) 318 APPEALS, ETC. Order LVU. rr. 1 — 5. OEDER LVII. (758.) Notice, on whom to be served. APPEALS, ETC. ApplIfJiibe 1- -^11 appeals to the court shall be by way of ald'^after™^ rehearing, aiid shall be brought by notice of motion in notice of a summary way, and no petition, case or other formal proceeding other than such notice of motion shall be necessary. The appellant may, by the notice of motion, appeal from the whole, or any part of any judgment or order, and the notice of motion shall state whether the whole or part only of such judg- ment or order is complained of, and in the latter case shall specify such part. (E. 865.) 2. The notice of appeal shall be served on all parties directly affected by the appeal, and it shall not be necessary to serve parties not so affected; but the court may direct notice of the appeal to be served on all or any parties to the action or other proceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal, upon such terms as are just, and may give such judgment, and make such order as might have been given or made if the persons served with such notice had been original parties. Any notice of appeal mav be amended at any time as the court thinks fit. (E. 866.) 3. The notice of appeal shall be served within ten days from the day when the appellant or his solicitor first had notice that the order upon the decision appealed from had been made; but the court or a judge may enlarge and extend the time for giving such notice of appeal either before or after the expiration thereof. (S. C. E., Feb. 13th, 1894.) 4. Every judgment, order, or decision made by a judge, in court, or in chambers, except orders made in the exercise of such discretion as by law belongs to him, may be set aside or discharged, upon notice, by the court. 5. On appeal, the court shall have all the powers and duties as to amendment and otherwise (759.) "When notice to be given. (760.) Subjects of appeal. APPEALS, ETC. 319 of the court or judge appealed from, together with ^'f^^^^^ full discretionary power to receive further evidence — '■ ■— on questions of fact, such evidence to be taken by powi" of oral examination in court, by affidavit, or by deposi- peXaTto'" tion taken before an examiner or commissioner. Such dinoe''infer- further evidence may be given without special leave, ences,'&c. on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. On appeals from a judgment after trial or hearing of any cause or matter on the merits, such further evi- dence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the court. The court shall have power to draw inferences of fact, and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case requires. The powers aforesaid may be exercised by the court, notmthstanding that the notice of appeal states that part only of the decision is complained of, and such powers may also be exercised in favor of all or any of the respond- ents or parties, although such respondents or parties have not appealed from or complained of the decision. The court shall have power to make such order as to the whole or any part of the costs of the appeal as is just. (E. 868.) 6. If upon the hearing of an appeal, it appears (762 ) to the court that a new trial ought to be had, it maybe' shall be lawful for the court to order that the "'^'"^• verdict and judgment be set aside, and that a new trial be had. (E. 869.) 7. It shall not, under any circumstances, be (763.) necessary for a respondent to give notice of motion c^^^-^pp^^^^- by way of cross-appeal, but if a respondent intends, apon the hearing of the appeal, to contend that the decision of the court or judge below should be varied, he shall within the time specified in the next succeed- ing rule, or such time as is prescribed by special order, give notice of such intention to any parties who may be affected by such contention. Th£ omis- sion to give such notice shall not diminish the powers of the court, but may, in the discretion of the court. 220 APPEALS, ETC. °rr"7— I"' ^^*- 8'1'ou^tl foi' ^^ adjournment of the appeal, or for —a special order as to costs. (E. 870). (764.) Notice of cross-appeal. (765.) Entry of appeal. (766.) Ex parte applications. (767.) Evidence, how bromght up. (768.) Court not barred by interlocutory order not ap- pealed from. (769.) Appeal not a stay of pro- ceedings. 8. Subject to any special order which may be made, notice by a respondent under the next pre- ceding rule shall in the case of any appeal from a final judgment be an eight days' notice, and in the case of an appeal from an interlocutory order, a two days' notice. (E. 871.) 9. The party appealing shall file with the pro- thonotary at Halifax a copy of the notice of appeal when the appeal is entered for argument. (E. 872, part.) 10. When an ex ■parte application has been refused by a judge, an application for a similar pur- pose may be made ex parte to the supreme court in bcnico, within four days from such refusal, or if the court is not then sitting within four days from the commencement of the next session of the court thereafter, or within such other time as the court or a judge allows. (E. 874.) 11. When any question of fact is involved in an appeal or application for a new trial, the evidence taken in the court below, or by the judge appealed from, bearing on such question, shall, subject to any special order, be brought before the court as follows : — (a.) As to any evidence taken by affidavit, by the pr,oduction of copies of such affi- davits ; (6.) As to any evidence given orally, by the pro- duction of copies of the judge 's or official reporter's notes, or such other material, as the court deems expedient. (E. 875.) 12. No interlocutory order or rule from which there has been no appeal, shall operate so as to bar or prejudice the court from giving such decision on the appeal as is just. (E. 878.) 1.3. An appeal shall not operate as a stay of execution, or of proceedings under the decision aiipealed from, except so far as the judge appealed from, or the court, orders ; and no intermediate act APPEALS, ETC. 221 or proceeding shall be invalidated, except so far as "r^^is^"' the court directs. Such deposit or other security — ^ ^- shall be made or given as is directed by the court or a judge. (E. 880.) 14. Interest for such time as execution has been inteillt'to he delaj'ed bv the appeal, shall be allowed at the rate juo^^'ed ^ . ' 1 ± 7 "wnere execu- of SIX per cent., unless the court or a judge otherwise tion stayed. orders, and such interest shall be added to the judg- ment without any order for that purpose. (E. 883.) 15. Where any application is required to be subsmuiion made to, or any jurisdiction exercised, or an)^ act °^ '^^'iBe- done by, the judge hj whom a cause or matter has been tried or heard, if such judge dies or ceases to be a judge of the court, or if for any other reason it is impossible or inconvenient that such judge should act in the matter, the chief justice may, either by a special order in any cause or matter, or by a general order applicable to any class of causes or matters, nominate some other judge to whom such application may be made, and by whom such juris- diction may be exercised. (E. 885). 16. Where a compulsory reference to arbitra- Appili from tion has been ordered, any party to such reference ^^eferee, &o. may appeal from the award or certificate of the arbitrator or referee upon any question of laAV ; and on the application of any party the court may set aside the award on any ground on which the court might set aside the verdict of a jury. Such appeal shall be to the court, who shall have power to set aside the award or certificate, or to remit all or anj^ part of the matters in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate or all or any of the matters in dispute that is just. (E. 886.) 17. Eules 1, 2, 3, 4, 5, 6, 9, 10, 11, and 13 of l Jtllfo^ this Order shall only apply to appeals in causes or J^i';''^^*''™ matters originating in the Supreme Court or in the countv courts. (R. S., c. 104, 0. LVII, r. 17; 1889, c. 9, s. 71.) 222 SESSIONS^ VACATIONS, ARGUMENTS, ETC. Order LVIH. rr. 1 — 3. ORDER LVIII. SESSIONS, VACATIONS, ARGUMENTS, &C. (774.) The court (775.) Vacation. 1. The Supreme Court in banco shall sit at always open, jjaj^fax at such times as the business requires and as the attendance of a quorum of the judges can be obtained. (1882, c. 2, s. 13.) 2. (1) In Halifax there shall be a vacation extending from the sixteenth day of July to the four- teenth day of September, both inclusive, in each year. During vacation no contested business shall be transacted except such as relates to the liberty of the subject, and neither party to a cause in which an appearance has been entered shall be compelled to deliver any pleading. If the time for delivering a defence in a cause in vphich the defendant has appeared has not expired previously to the sixteenth day of July, it shall, vs^ithout any order to that effect, stand extended until the expiration of five days after the last day of vacation, and if any writ, defence, or other pleading is delivered during vacation the same time shall be allowed to the opposite party as if it was delivered on the last day of vacation. (2.) Nothing in this rule shall prevent — (a.) The issue of process, or the transaction of any business which may be done ex parte, or (b.) The entering of judgment by default in any cause in which no appearance is entered, or (c.) The hearing during vacation of causes remaining undisposed of at a previous session, or (d.) Proceedings in respect to contempt by a disobedience to any order or judgment of the court or a judge, or proceedings for enforcing any such order or judgment. (R. S., c. 104, Or. 58, rr. 21, part, 22, 23.) speiili^order. 3. Notwithstanding the next preceding rule, the court or a judge may, during the vacation, by SESSIONS, VACATIONS, AEGUMENTS, ETC. 333 order, upon special cause shewn, authorize any pro- O'^^^'^ 3^8^"' ceedings to be had or taken, notwithstanding the- vacation. (R. S., c. 104, Or. 58, r. 21, part.) 4. The regular sessions of the Supreme Court Timifor' in banco in each year shall be held as follows : — Itinl^'' ^''^' {a.) From the third Tuesday in November until First session. the twenty-third day of December, both inclusive, to be called the November ses- sion. (b.) From the second Tuesday in January until second ses- the last day of February, both inclusive, to be called the January session. (c.) From the second Tuesday in March until TMrd session, the Saturday before the third Tuesday in April, both inclusive, to be called the March session. (S. C. E., 30th Oct., 1893, r. 1, part; S. C. R. Nov. 5th, 1915.) 5. During any of the sessions, the court may Adjournments from time to time adjourn for short periods, if obsession, deemed advisable. (S. C. R., 30th Oct.; 1893, r. 1, part.) 6. If at the end of the March session any causes speiili sel- f or argument which have not been called remain on """■ the docket, a special session for the hearing of such causes shall be held in the following July, to com- mence on a day to be fixed by the court, but no cause except such remnants shall then be heard, except by special leave of the court. (S. C. R., 30th Oct., 1893, r. 2.) 7. Four judges shall constitute a quorum to QnommVf decide all matters requiring to be heard by the court Judges. in banco, but if the attendance of four judges at any time cannot be obtained owing to absence, illness, or other cause sufficient in the estimation of the judges present, three shall constitute such quorum. (R. S., c. 104, Or. 58, r. 4.) 8. Any judge may deliver the judgment of the j^a day. (819.) Computing time for security for costs. (820.) Power to en- large or abridge time. TIME. 1. Where by these rules, or by any judgment or order given or made after the first day of October, A. D., 1884, time for doing any act or taking any proceeding is limited by months, and where the word " month " occurs in am" document which is part of any legal procedure under these rules, such time shall be computed by calendar months unless other- wise expressed. (E. 961.) 2. Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time. (E. 962.) 3. Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the prothonotary's office is closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the office is next open. (E. 963.) 4. The day on which an order for security for costs is served, and the time thenceforward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed to plead, answer interrogatories, or take any other proceeding in the cause or matter. (E. 966.) 5. The court or a judge shall have power to en- large or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any TIME. 233 3rder LZ. rr. 5 — 9. act or taking any proceeding, upon sucli terms (if order lx any) as the justice of the case requires, and any such_ enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. (E. 967.) 6. The time for delivering, amending, or filing (821.) IT n -, , ,° Enlareament any pleading, answer, or other document may be by consent. enlarged by consent in writing, without application to the court or a judge. (E. 968.) 7. Service of pleadings, notices, summonses. Hours ^i^ orders, rules, and other proceedings, shall be effected service. before the hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two in the afternoon. Service effected after six in the afternoon on any Aveek day except Saturday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the foUoA^ing Monday. (E. 971.) 8. In any case in which any particular number c„J'^^\;^ of days, not expressed to be clear days, is prescribed, t™e by days, the same shall be reckoned exclusively of the first day and inclusively of the last day. (E. 972.) 9. In any cause or matter in which there has proie^edtngs been no proceeding for one year from the last pro- after lapse of ceeding had, the party who desires to proceed shall give a month's notice to the other party of his inten- tion to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule. (E. 973.) 234 COSTS. Order LXm. ORDER LXIII. rr. 1 — 4. COSTS. costi^di^'-^ 1. Subject to the provisions of the~Act and these cretionary. rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge : Provided that nothing herein contained shall deprive an executor, administrator, Trustees, trustce, or mortgagee who has not unreasonably mortgagees, ■,■,?-, ?? • i i t *^ 1 1 j_' 1 n t 1 bpecial al- eral regulations shall apply to all proceedings and fcwances, &c. all taxations in the Supreme Court: (1.) As to drawing any pleading or other docu- ^jjo^^^fl^ ment, the fees allowed shall include any copy made for. for the use of the solicitor, agent or client, or for counsel. (2.) As to affidavits, when there are several ^g^l^^f deponents to be sworn, or it is necessary for the purpose of any affidavit being sworn to go to a distance, or to employ an agent, such reasonable allowance may be made as the taxing authority in his discretion thinks fit. (3.) The allowances for instructions and draw- Drawing ing an affidavit in answer to interrogatories include '^ all attendances on the deponent to settle and read over. 240 COSTS. Order T.YTTT 23. Delivery of pleadings. Perusals. Separate answers or proceedings by the same solicitors. 'Evidence Agency corre- spondence. Non-atten- dance or neglect of parties on proceedings in chambers. (4.) As to delivery of pleadings, services and notices, the fees are not to be allowed when the same solicitor, or firm of solicitors, is for both parties, unless it is necessary for the purpose of making an affidavit of service. (5.) As to perusals, the fees are not to be allowed where the same solicitor, or firm of soli- citors, is for both parties. (6.) When the same solicitor, or firm of solicitors, is employed for two or more defendants, and separate pleadings are delivered, or other pro- ceedings had, by or for two or more such defend- ants separately, the taxing authority shall consider, in the taxation of such solicitor's bill of costs, either between party and party, or between solicitor and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incur- red, the same shall be disallowed. (7.) As to evidence, such just and reasonable charges and expenses as appear to have been pro- perly incurred in procuring evidence and the attend- ance of ^vitnesses are to be allowed. (8.) As to agency correspondence in country agency causes and matters, if it is shewn to the satisfaction of the taxing authority that such cor- respondence has been special and extensive, he may make such special allowance in respect thereto as in his discretion he thinks proper. (9.) As to attendances at the judges' chambers, where by reason of the non-attendance of any party (unless it is considered expedient to proceed ex parte), or where by reason of the neglect of any party in not being prepared with any proper evi- dence, account or other proceeding, the attendance is adjourned without any useful progress being made, the judge may order such an amount of costs, if any, as he thinks reasonable to be paid to the party attending by the party so absent or neglectful, or by his solicitor personally; and the party so absent or neglectful is not to be allowed any fee as COSTS. 241 against any other party, or any estate or fund in o^^isr lxiii. which any other party is interested. '- — '- — (10.) In a folio every figure comprised in ai'igurein column, or authorized to be used, shall be counted as Z awVi^^^ one word. ( 11. ) As to inspection of documents under inspection Order XXX, rule 15, no allowance is to be made for undar'^rder any notice or inspection unless it is shown to the ^°' ^' ^^' satisfaction of the taxing authority that there were good and sufficient reasons for giving such notice and making such inspection. (12.) As to taking copies of documents in pos- copies of n IT 1 j_j_jii? documents session oi another party, or extracts therefrom, ten cents per under rules of court or any special order, the party prodncudn entitled to take the copy or extracts is to pay the '"^'"^^'i- solicitor of the party producing the document for such copy or extract as he, by writing, requires, at the rate of ten cents per folio; and if the solicitor of the party producing the document refuses or neglects to supply the same, the solicitor requiring the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be entitled to any fee in respect thereto. (13.) The court or iudge may, at the hearing of Disallowance ;, o tj T J.- of costs of any cause or matter, or upon any application or pro- improper, ceeding in any cause or matter, in court or at cham- uimfcSry'^ bers, and whether the same is objected to or not, do''cume^ts direct the costs of any indorsement on a writ of sum- or proceed- . . . lugs. mons, pleading, summons, affidavit, evidence, notice requiring a statement of claim, notice to produce, admit, or cross-examine witnesses, account, state- ment, procuring discovery by interrogatories or order, application for time, bills of costs, service of notice of motion or summons or other proceeding, or any part thereof, which is improper, vexatious, un- necessary, or contains vexatious or unnecessary mat- ter, or is of unnecessary length, or caused by miscon- duct or negligence, to be disallowed, or may direct the taxing authority to look into the same and to dis- allow the costs thereof, or of such part thereof as he finds to be improper, unnecessary, vexatious, or to contain unnecessary matter, or to be of unnecessary S. M.S.— 16 243 COSTS. Order TiXTTT, rr. 23. Set-off of costs. Unnecessary appearance at court or in chambeirs. Costs of applications to extend time. ■ length, or caused by misconduct or negligence ; and in such case the party whose costs are so disallowed shall pay the costs occasioned thereby to the other parties; and in any case where such question has not been raised before, and dealt with by the court or judge, it shall be the duty of the taxing authority to look into the same (and as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so. (14.) In any case in which, under the next pre- ceding regulation, or any other rule of court, or by the order or direction of a court or judge, or other- wise, a party entitled to receive costs is liable to pay costs to any other party, the taxing authority may tax the costs such party is so liable to pay, and may adjust the same by way of deduction or set- off, or may, if he thinks fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay; or such authority may allow or certify the costs to be paid, and direct payment thereof, and the same may be recovered by the party entitled thereto in the same manner as costs ordered to be paid may be recovered. (15.) Where any party appears upon any appli- cation or proceeding in court or chambers, in which he is not interested, or upon which according to the practice of the court he ought not to attend, he is not to be allowed any costs of such appearance un- less the court or a judge expressly directs such costs to be allowed. (16.) The costs of applications to extend the time for taking any proceedings shall be in the discretion of the taxing authority, unless the court or judge has specially directed how the costs are to be paid or borne. The taxing authority shall not allow the costs of more than one extension of time, unless he is satisfied that such extension was neces- sary, and could not, with due diligence, have been avoided. The costs of an application to extend time shall not be allowed in cases to which rule 6 of COSTS. . 243 Order LX applies, unless the party making such order ixm. application has previously applied to the opposite ■ '- — '- — party to consent and he has not given a consent to a sufficient extension of time, or the taxing authority considers there was a good reason for not applying to the other party ; and in case the taxing authority does not allow the costs of such application to the court or a judge, and considers that the party apply- ing ought to pay the costs of any other party occa- sioned thereby, he may direct such payment, or deal with such costs in the manner provided by regulation 14. (17.) As to costs to be paid or borne by another ^"'^^^^ party, no costs are to be allowed which do not party no appear to the taxing authority to have been neces- over-caution, sary or proper for the attainment of justice, or mlftoke""^' defending the rights of the party, or which appear to the taxing authority to have been incurred through over-caution, negligence, mistake or merely at the desire of the party. (18.) As to any work and labour properly per- ^|^|iJ°'j.„. formed and not herein provided for, and in respect vided for. to which fees have been allowed immediately preced- ing the coming into force of these rules, the same or similar fees are to be allowed for such work and labour as have heretofore been allowed. (19.) When the plaintiff is directed to pay to the costs of defendant the costs of the cause, the costs S^piaiSlff-s occasioned to a defendant by any amendment of the pi^ad'^^ss. plaintiff's pleadings shall be deemed to be part of such defendant's costs in the cause (except as to any amendment which appears to have been rendered necessary by the default of such defendant) ; but there shall be deducted from such costs any sum which has been paid by the plaintiff, according to the course of the court at the time of any amend- ment. (20.) Where upon taxation a plaintiff who has piaintiff re- obtained a judgment with costs is not allowed the amendment," costs of any amendment of his pleadings on the ^^ff^*^"*-" ground of the same having been unnecessary, the ^i^^^^^^^t. defendant''s costs occasioned by such amendment shall be taxed, and the amount thereof deducted 244 COSTS. Order T.TrnT, rr. 23. Fees of coun- sel, experts. iCosts payable by one defen- dant to an- other may bo ordered. Refusal or neglect to procure taxation. Power to taxing officer to assess costs at a gross sum. Review of taxation on application of party opposing. from the costs to be paid by the defendant to the plaintiff. (21.) The allowances in respect to fees to con- veyancing counsel, and to any accountants, mer- chants, engineers, actuaries and other scientific persons to whom any question is referred, shall be regulated by the court or judge, whose decision shall be final. (22.) Where the costs of one defendant ought to be paid by another defendant, the court may order payment to be made by the one defendant to the other directly. (22a.) When any party entitled to costs refuses or neglects to bring in his costs for taxation, or to procure the same to be taxed, and thereby preju- dices any other party the taxing officer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect. (22b.) Where upon taxation it appears that the costs have been increased by unnecessary delay or by improper, vexatious, prolix or unnecessary pro- ceedings, or by other misconduct or negligence, or that from any other cause the amount of the costs is excessive having regard to the nature of the business transacted or the interests involved or the money or value of property to which the costs relate, or to the other circumstances of the case, the taxing authority shall allow only such an amount of costs as is reasonable and proper, and may assess the same at a gross sum, and shall (if necessary) apportion the amount among the parties if more than one. (23.) Any party who is dissatisfied with the decision of the taxing authority as to any item or part of an item in a bill of costs, to which he has objected on taxation, may have such item or part of item_ re-taxed by a judge after forty-eight hours ' notice in writing "to the opposite party, specifying the items objected to, and the judge may thereupon make such order as to him seems just; but the deei- SECUEITY BY BOND OP GUAEANTEE COMPANY, ETC. 245 sion of the taxing authority shall be final and conclus- ^'^^''^ l^^^- ive as to all matters which have not been objected to ' — on the taxation before him; such re-taxation shall not operate as a stay of proceedings. If the costs are reduced on re-taxation, the prothonotary shall minute such reduction on the margin of the docket of judgment, and the amount shall be deducted in the order for levy on the execution, or if previously paid may be recovered by action. In case the bill on re-taxation is reduced one-sixth, or more, the [;°^*^'ion "' costs of the re-taxation shall be borne by the party reduced one- whose bill has been reduced, otherwise they shall ^" be borne by the party applying for the re-taxation. (24.) In case the party offering the bill for taxa- application tion is desirous of having it re-taxed he shall be °' p^'^^^fi^ entitled to do so before entering judgment or issuing tm for taxa- execution thereon, on giving forty-eight hours' notice in writing to the opposite party, specifying the items or parts of items he claims to have added to the bill. If the bill on re-taxation is increased costs on suc- one-sixth the party applying for the re-taxation ?o^nerea*e^™ shall be entitled to such costs of re-taxation as the tow^bome. judge allows, which shall be added to the bill ; if he fails to increase the bill to the extent of one-sixth he shall pay to the opposite party the costs of re- taxation, which shall be fixed by the judge and deducted from the bill when re-taxed. (25.) In causes in the Supreme Court a judge of that court shall be the re-taxing judge, and in causes in a county court the judge of that county court. (E. 1002 part; 0. (1897), r. 1140, E. R. S. C. Jan. 1912, R. 12; S. C. R. Jan. 23, 1919.) ORDER LXIIIa. ^°^fj, r. 1. SECURITY BY BOND OF GUARANTEE COMPANY, ETC. 1. In any case in which security is required by (sisa.) the practice of the court the bond of a guarantee antee coif^'"^' company, approved in accordance with the provi- PeTe^t^^'^as * sions of Chapter 134 of the Revised Statutes, may^«<"^"*y- 246 SEEVICB OF OBDKES. ETC. ixniA ^^ accepted as such security without any affidavit rr. 1-2. of justification. (S. C. E. Nov. 25th, 1905.) (818b.) 2. No bond, guarantee, or other security, given rairttin°con- uuder auy Statute or rule or order of court or hJr obi^auon judge, or of the judges of the Supreme Court, for toVay^^^t ^^^® performance of any trust or duty of any kind, mium. or for accounting for moneys or property received or to be received, shall hereafter be approved by a judge or master if the same contains any condi- tion or provision limiting or impairing the obliga- tion thereof for failure to pay any renewal premium, or which contains any condition whatever for avoid- ing or impairing the obligation thereof other than the performance of the duty or obligation which it is given to secure. (S. C. R. April 9th, 1910.) order LXIV. ORDER LXIV. rr. 1 — 2. NOTICES, ETC. (849.) 1. All notices required by these rules shall be Sw'riting!'* in writing, unless expressly authorized by the court or a judge to be given orally. (E. 1003.) (850.) 2. Every notice given in the progress of or pre- ti''be°rec6W^d liminary to a cause, shall be received in evidence on in evidence, affidavit of the scrvice thereof made by a solicitor or a solicitor's clerk, specifying the time and mode of such service. (P. A. 187.) Order LXV. ORDER LXV. rr. 1 — 2. SEBVICE OE OKDEES, ETC. (851.) 1. Except in the case of an order for attachment neeTSotbe''" of the pcrsou, it shall not be necessary to the regular forrmS-h*"* service of an order that the original order be shown, ment. if an authenticated copy of it is exhibited, (E. 1012.) 2. All, writs, notices, pleadings, , orders, sum- monses, and other documents, proceeciings, and writ- SEEVICE OF OEDEKS, ETC. 247 LXV. rr. 2 — 6. ten communications, in respect to whicli personal or^e' service is not requisite, shall be sufficiently served if left within the prescribed hours, at the address for serv^cfof service of the person to be served, as defined by wh^p^erson- Orders IV and XII, with any person resident at or n^'aJ^a^""" belonging to such place or if posted in a prepaid °'™'''"^' registered envelope addressed to the person to be served at such address for service as aforesaid: provided that where service under this rule is made by registered post, the time at which the document so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof. (E. 1013 as amended; E. R. S. C, July. 1903, S. C. R. Jan. 23rd, 1919.) 3. Notices sent from any office of the court (ssa) may be sent by post ; and the time at which the pos""^ ^ notice so posted would be delivered in the ordinary course of post shall, prima facie, be considered as the time of service thereof, and the posting thereof shall, prima facie, be a sufficient service. (E. 1014.) 4. Where no appearance has been entered for (854.) a party, or where a party or his solicitor, as the appelrrnce case may be, has omitted to give an address, as ""^ """ ***''^^^- required by Orders IV. and XII, or there is no person resident at or belonging to the place of such address with whom to leave them, all writs, notices, pleadings, orders, summonses, and other documents, proceedings, and written communica- tions in respect to which personal service is not requisite, may be served by causing them to be posted up in a conspicuous place, in the office of the prothonotary. (E. 1015.) 5. Where personal service of any writ, notice, o^Jfj^^^j^^^^^ pleading, summons, order, or other document, pro- service, ceeding, or written communication, is required by these rules or otherwise, and it is made to appear to the court or a judge that prompt personal service cannot be effected, the court or judge may make such order for substituted or other service, or for the substitution of notice for service by letter, public advertisement, or otherwise, as is just. (E. 1017.) 6. Where a party after having sued or appeared in person has given notice in writing to the opposite 248 NON-APPLICATION OP RULES. Order LXV. rr. 6 — 8. (856.) Party suing, &c., in person, afterwards employing solicitor. party or his solicitor, through a solicitor, that such solicitor is authorized to act in the cause or matter on his behalf, all writs, notices, pleadings, summon- ses, orders and other documents, proceedings, and written communications, which ought to be delivered or served on the party on whose behalf the notice is given, shall thereafter be delivered to or served upon such solicitor. (E. 1018.) 7. Where a person who is not a party appears in any proceeding, either before the court or in cham- bers, service on the solicitor by whom such person appears, whether such solicitor acts as principal or agent, shall be deemed good service except in mat- ters requiring personal service. (E. 1019.) s«iJ-^^-f-\ 8. Affidavits of service shall state when, where Amdavits of _ . ' servica; what and how, and by whom, such service was effected, to contain. ^^ ^^^Q, E. S., c. 104, Or. 65, r. 8.) (857.) Service on solicitor ap- pearing for person not a party. Order IXVI. rr. 1 — 2. OEDER LXVI. (859.) Criminal and divorce pro- ceedings ex- cepted from rules. (860.) Pleadings in prohibition. NON-APPLICATION OF EULES TO CEIMINAL AND DIVORCE PEOCBEDINGS, ETC. 1. Nothing in these rules shall affect the pro- cedure or practice in criminal proceedings, or pro- ceedings for divorce or other matrimonial causes. (E. 1026.) 2. Where pleadings in prohibition are ordered, the pleadings and subsequent proceedings, including judgment and assessment of damages, if any, shall be, as nearly as may be, the same as in an or(iinary action for damages. (E. 1028.) INTERPEETATION OF TEEMS. 349 ORDER LXVIII. Order Lxvni. rr. 1 — i. EFFECT OF NON-COMPLIANCE. 1. Non-compliance with any of these rules, or (863.)_ with any rule of practice for the time being in force, a™e™oT''' shall not render any proceedings void, unless the *'"°''" court or a judge so directs, but such proceedings may be set aside, either wholly or in part, as irreg- ular, or amended, or otherwise dealt with, in such manner and upon such terms as the court or a judge thinks fit. (E. 1037.) 2. No application to set aside any proceedings p„4*®t*a^ u- f or irregularity shall be allowed,, unless made within caHra fou^'nd- reasonable time, nor if the party applying has taken i«i°y."^^' any fresh step after knowledge of the irregularity. (E. 1038.) 3. Where an application is made to set aside objictions to proceedings for irregularity, the several objections iSt^La intended to be insisted upon shall be stated in the " '"'*"*• summons or notice of motion. (E. 1039.) 4. Where an application is made to set aside costi^oniis- any process or proceeding for irregularity, with ^^^j^J^* *P' costs, and the application is dismissed generally, without any special direction as to costs, it is to be understood as dismissed with costs. (E. 1040.) ORDER LXIX. Order IXIX. r. 1. INTERPRETATION OF TERMS. 1. The provisions of the Interpretation section (867.) of " The Judicature Act " shall apply to these rules, ums!"^" In these rules, unless the context otherwise requires, the severat words hereinafter mentioned or referred to shall have or include the meaning following : — ' ' Originating summons ' ' means every summons other than a summons in a pending cause or matter ; 250 INTEEPEETATION OF TEEMS. Order LXIX. rr. 1 — 2. " Person " includes a body corporate or politic; " Receiver " includes consignee or manager appointed by or under an order of the court ; " Taxing Authority " means the person whose duty it is to tax the costs to be taxed, and includes a Judge of the Supreme Court, the Taxing Master and a Master of the Supreme Court who is a Judge of a County Court, in actions, appeals, and proceedings in the Supreme Court; " The Act " means " The Judicature Act;" " Master " means a Master of the Supreme Court ; " Prothonotary " includes deputy prothonotary ; " Sheriff " includes deputy sheriff, coroner and other person discharging the duties of sheriff in the particular case, or for the time being; " Solicitor " includes attorney; " Plaintiff," " defendant," and " party," in- clude bodies corporate or politic, or holding the relation of plaintiff, defendant, or party. " Heretofore " means prior to the coming into force of these rules. " Summons " includes notice of motion at chambers. (E. 1041, E. E. S. C, Aug. 1894, r. 11.) (868.)^^ 2. In these rules, unless the context otherwise plural.*'' requires, the singular number includes the plural, and the plural number includes the singular. (E. 1042.) GENEEAL EULES. 251 OEDEE LXX. Order LXX. rr. 1 — 3. GENEEAL EULES. 1. No rule, order, or enactment, annulled by any (869.) subsequent rule, order, or enactment, shall be ^epea"''*' ^^ revived by any of these rules, unless expressly so declared. (E. 1043.) 2. Where no other provision is made by the Act jioj^gr prac- or these rules the existing procedure and practice 'ioe- -^^^p- • • J! /-^T^ ^r\AA \ preserved. remain m lorce. (Hi. 1044.) 3. During the period of any vacancy in the vacan^'in office of Chief Justice, or, in his absence, these rules chf^f "justice, shall operate as if the words " or senior judge of the Supreme Court " were inserted after the words " Chief Justice " whenever used. (E. 1045.) (See 1903-4, c. 17. s. 3.) APPENDICES FORMS APPENDIX A. PAET I. FORMS OF WRITS OF SUMMONS, &c. No. 1. General Fokm op Writ op Summons. (0. 2, r. 3.) 19... (Here put the letter and numler.) In the Supreme Court. Between A. B., Plaintiff, and C. D. and E. F., Defendants. GrEOBGE V. by the Grace of God, &c. To C. D., of in the County of We command you, That within ten days after the service of this writ on you, inclusive of the day of such service', you do cause an appearance to be entered for you in an action at the suit of A. B.; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Issued the day of A. D. 19. . Memorandum to be suhscrited on the Writ. N. B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. The defendant {or defendants) may appear hereto by enter- ing an appearance (or appearances) either personally or by solicitor at the Prothonotary's Office, at , in the County of Indorsements to 6e made on the writ before issue thereof. The plaintiff's claim is for, &c. Appx. A. Part. I. No. 1. 254 FOEMS WEITS OF SUMMONS, ETC. Appx. A. This writ was issued by the said plaintiff, who resides at NM^i \ °^' ^^^^ ^'"'^ ^^® is'sued by E. F., of , solicitor for the said : — : — L_ plaintiff or, this writ was issued by G. H., of , agent for of , solicitor for the said plaintiff. Indorsement to 6e made on the writ after service thereof. This writ was served by me at , on the defendant on the day of......l9. . Indorsed the day of , 19. . (Signed,) (Address,) No. 2. Specially Indorsed Writ, Order III, Rule 5. (0. 2, r, 3.) 19.. {Here put the letter and number.) In the Supreme Court. Between Plaintiff, and Defendant. George V, by the Grace of God, &c. To of , in the County of We command you. That within ten days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of And take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Issued the. day of a. d. 19 . . N. B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, witnin six calendar months from the date of the last renewal, including the day of such date, and not afterwards. Appearance is to be entered at the Prothonotary's ofBce, at in the County of Statement of Claim: — The plaintiff's claim is Particulars: — Place of trial (Signed.) And the sum of ? , (or such sum as may be allowed on taxation,) for costs. If the amount claimed is paid to the plaintiff or h solicitor or agent within six days from the service hereof, further proceedings 'will be stayed. POEMS — WBITS OF SUMMONS, ETC. 255 at ^^'^ ^"iLTfy.-'^^"^^^ ^^ ^^^ ^^'^ plaintiff, who resides Appz. A. MtnV ;■ ■ 'ii ^"'^ *^'^ "^"^ ^^^ *s^"ed by E. F., of , soli- Part, t cltor for tHe said plaintiff (or) this writ was issued by N°°- 2. 3. ^•.fl- 01 agent. for , of solicitor for tbo '- said plaintiff. suiicuor lor tne This writ was served by me at on the defendant on the day of 19.. Indorsed the day of 19 . . (Signed,) (Address,) .... No. 3. Wkit roR Service out of the Jurisdiction, or Where Notice in Lieu of Service is to be given out OF THE Jurisdiction. (0. 2, r. 5.) 19. . (Here put the letter and number.) In the Supreme Court of Nova Scotia. Between A. B., Plaintiff, and C. D. and E. F., Defendants. George V. by the Grace of God, &c. To C. D., of We command you, C. D., That within (here insert the num- ber of days directed iy< the Court or Judge ordering the service or notice) after the service of this writ (or notice of the writ, as the case may he) on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the Supreme Court at , in the County of in an action at the suit of A. B., and take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Issued, &c. Memoranda and Indorsement as in Form No. I. Indorsement to lie made on the writ before the issue thereof. N. B. — This writ Is to be used where the defendant, or all the defendants, or one or more defendant or defendants, is or are out of the jurisdiction. When the defendant to be served is not a British subject, and is not in British dominions, notice of the writ, and not the writ itself, is to be served upon him. 256 roEMS — WHITS op summons, etc. Appx. A. No. 4. Part. I. ^o- i- Specially Indorsed Writ for Service out of the Jurisdiction. (0. 2, r. 5.) (Heading as in Form 1.) George V, by the Grace of God, &c. To of , in the of We command you, that within* days after servicef. . . . of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of And take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Issued, &c. N. B. — This writ is to be served within twelve calendar months from the date thereof, or if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not aftesrwards. Appearance is to be entered at the OflBce of the Prothonotary at , In the county of Statement o/ Claim: — The plaintiff's claim is Particulars : — Place of trial (Signed.) And %. . . .(or such sum as may be allowed on taxation) for costs. If the amount claimed is paid to the plaintiff or solicitor or agent within *days from the servicer hereof, further pro- ceedings will be stayed. This writ was issued, &c. This writ (or notice of this writ) was served, &c. N. B. — This writ is to be used wheo-e the defendant, or all the defendants, or one or more defendant or defendants, is or are out of the jurisdiction. When the defendant to be served is not a British subject, and is not in British dominions, notice of the writ and not the writ itself is to be served upon him. * Insert No. of days limited for appearance. ■^ If notice to be served, insert here " of notice." FOEMS — ^ENTET OF APPEAEANCE. 257 No. 5. Appx. A. Part H. Notice op Wkit, in Lieu of Seevicb, to be given out of the ^°- ^- Jurisdiction. (O. 2, r. 5.) (Heading as in Form 1.) To G. H., of Take notice that A. B., of , lias commenced an action against you, G. H., in the Supreme Court of Nova Scotia, by vcrlt of that Court, dated the day of , A.D. 19. . ; which writ is indorsed as follows (copy in full the indorsements), and you are required within days after the receipt of this notice, inclusive of the day of such receipt, to defend the said action, by causing an appearance to be entered for you in the said Court to the said action; and in default of your so doing, the said A.B. may proceed therein, and judgment may be given in your absence. You may appear to the said writ by entering an appearance personally or by your solicitor at the office of the Prothonotary at , In the County of (Signed) A. B., of &c. or X. Y., of &c. Solicitor for A. B. In the Supreme Court. Wo. 6 Form of Memorandum foe Renewed Writ. (O. 8, r.l.) {Beading as in Form 1.) Seal renewed writ of summons in this action indorsed as follows: — (copy original writ and indorsements.) PAET II. FORMS OF ENTRY OF APPEARANCE. No. 1. Memorandum of Appelmiance in General. (0. 12, rr. 2, 6.), In the Supreme Court. 19.. No.. Between Plaintiff, and , Defendant. Enter an appearance for in this action Dated the day of 19 • • (Signed) of Agent for of S.N.S. — 17 358 FOEMS BNTET OF APPBAHANCE. Appx. A. No. 2. Part H. Nos. 2 — 4. Notice of Entey of Appelakance. ^0. 12, r. 3.) (Heading as in Form 1.) Take notice that have this day entered an appearance at the Prothonotary's office at for the defendant to the writ of summons in this action. (If statement of claim is required, add) The said defendant require delivery of a statement of claim. Dated tLe day of 10.. (Signed) , of Agent for , Solicitor for the defendant To No. 3. Notice Limiting Defence. (0. 12, r. 17.) (Heading as in Form 1.) Take notice, that the (aiove-named) , defendant, (A. B.,) limits his defence to part only of the property mentioned in the writ of summons, namely, to the close called " The Big Field." Dated the day of 19. . (Signed) , of , Agent for , of Solicitors for the above-name! defendant. To Messrs The Plaintiff's Solicitors. No. 4. Entkt of Appeabance Limiting Defence. (0. 12, r. 16.) (Heading as in Form 1.) Enter an appearance for the defendant in this action. The said defendant limits his defence to part only of the property FORMS ENTET OF APPEAEANOE. 259 mentioned in tie writ of summons, namely, to the close called Appx. A. "The Big Field." ^^„artn._ The address of is Dated the day of , 19.. (Signed) of Agent for of No. 5. Entry of Appearance, Order XVI, Rule 50. {Heading as in Form 1.) Enter an appearance for to the notice in this action, on the day of 19.. by the defendant under the Rules of the Supreme Court, Order XVI, Rule 50. Dated the day of , 19.. (Signed) , of Agent for , of No. 6. Entry of Appearance, Order XVII, Rule 5. (Heading as in Form 1.) Enter an appearance for , who has been served with an order dated the day of to carry on and prosecute the proceedings in this action. Dated the day of 19.. (Signed) of , Agent for , of 260 FORMS GENEEAL INDOESEMENTS. Appx. A. No. 7. Part ni. ^"^ ^ Entry of Appearance to Countee-claim (0. 21, r. 13.) (.Heading as in Form 1.) Enter an appearance for to the counter-claim of the above-named defendant, , in this action. Dated the day of , 19.. (Signed) of Agent for , of No. 8. Affidavit for Entrt of Appearance as Guardian. (0. 16, r. 19.) {Heading as in Form 1.) I , of , make oath and say as follows: — A. B., of is a fit and proper person to act as guardian ad litem of the above-named infant defendant, and has no interest in the matters in question in this action (or matter) adverse to that of the said Infant, and the consent of the said A. B., to act as such guardian is hereto annexed. Sworn, &c. [To this Affidavit shall be annexed the document signed by such guardian in testimony of his consent to act.'j PAET III. GENERAL INDORSEMENTS ON WRITS OP SUMMONS. (0. 3, r. 3.) Section I. In Matters of an Equitable Nature. I. Creditor to advnnister estate The plaintiff's claim is as a creditor of X Y., of deceased, to have the (real and) personal property of the said X. Y., administered. The defendant C. D., is sued as the admin- istrator of the said X. Y., (and the defendants E. F., and G. H., as his co-heirs at law). rOKMS MONET CLAIMS. 261 2. Legatee to administer estate. Appx. A. Pait m. The plaintiff's claim is as a legatee under the will dated the Sec. XL day of 19 . . , of X. Y., deceased, to have the ( real ~ and) personal property of the £,aid X. Y., administered. The defendant, C. D., is sued as the executor of the said X. Y., (and the defendants, E. F., and G. H., as his devisees.) 3. Partnership. The plaintiff's claim is to have an account taken of the part- nership dealings between the plaintiff and the defendant (under articles of partnership dated the day of ), and to have the affairs of the partnership wound up. Jf. Foreclosure. The plaintiff's claim is for the foreclosure of a mortgage made by to and dated the of lands at. . . . ..... and for the sale of such lands at public auction in payment of the amount due on the mortgage. Amount of principal due, $ Interest to date of Writ, Premiums of Insurance paid (i/ any.) , 5. Redemption. The plaintiff's claim is to have an account taken of what, if anything, is due on a mortgage dated and made between (parties), and to redeem the property comprised therein. H. Raising portions. The plaintiff's claim is that the sum of which by an indenture of settlement dated was provided for the por- tions of the younger children of , may be raised. 7. Execution of trusts. The plaintiff's claim is to have the trusts of an indenture dated , and made between carried into execution. 8. Cancellation or rectification. The plaintiff's claim is to have a deed dated , and made between (parties), set aside or rectified. 9. Specific performance. The plaintiff's claim is for specific performance of an agree- ment dated the day of , for the sale by the pl£.intiff to the defendant of certain (freehold) hereditaments at Section II. Monet Claims Where no Special Indorsement under Order III, Rule 5. The plaintiff's claim is ? for the price of goods sold. (This Form shall suffice whether the claim, is in respect to ds sold and delivered, or to goods har gained and sold.) The plaintiff's claim is 5 for money lent (and interest.) 362 FOEMS MONEY CLAIMS. Appx. A. The- plaintiff's claim is $ , whereof $' is for the Part ni. Sec. II. price of goods sold and $ frr money lent, and $ for interest. The plaintiff's claim is .? for arrears of rent. The plaintiff's claim is $ for arrears of salary as a clerk (or as the case may tie.) The plaintiff's claim is $ for interest upon money lent. The plaintiff's claim is $ for a general average contri- bution. The plaintiff's claim is $ for freight and demurrage. The plaintiff's claim is $ for lighterage. The plaintiff's claim is $ for market tolls and stallage. The plaintiff's claim is $ for penalties under the stat- ute. (...) The plaintiff's claim is 5 for money deposited with the defendant as a banker. The plaintiff claim is $ for fees for work done (and $ money expended) as a solicitor. The plaintiff's claim is $ for commission earned as {state character, as auctioneer, broker, tic.) The plaintiff's claim is $ for medical attendances. The plaintiff's claim is $ for a return of premiums paid upon policies of insurance. The plaintiff's claim is $ for the warehousing of goods. The plaintiff's claim is $ for the carriage of goods by railway. The plaintiff's claim is $ for the use and occupation of a house. The plaintiff's claim is $ for the hire of (furniture.) The plaintiff's claim is $ for work done as a surveyor. The plaintiff's claim is $ for board and lodging. The plaintiff's claim is $ for the board, lodging and tuition of X. Y. The plaintiff's claim is $ for money received by the defendant as solicitor (or factor, or collector, or, &c.,) of the plaintiff. The plaintiff's claim is $ for fees received by the de- fendant under colour of the office of The plaintiff's claim is $ for a return of money over- charged for the carriage of goods by railway. The plaintiff's claim is $ for a return of fees over- charged by the defendant as The plaintiff's claim is 5 for a return of money de- posited with the defendant as stakeholder. The plaintiff's claim is $ for money entrusted to the defendant as stakeholder and payable to plaintiff. The plaintiff's claim is $ for a return of money en- trusted to the defendant as agent of the plaintiff. The plaintiff's claim is $ for a return of money ob- tained from the plaintiff by fraud. The plaintiff's claim is ■$ for a return of money paid to the defendant by mistake. The plaintiff's claim is S for a return of money paid to the defendant for (work to be done, left undone; or a bill to be taken up, not taken up, or &c.) The plaintiff's claim is J for a return of money paid as a deposit upon shares to be allotted. The plaintiff's claim is $ for money paid for the de- fendant as his surety. The plaintiff's claim is $ for money paid for rent due by the defendant. FOEMS INDORSEMENT FOE COSTS. 263 The plaintiff's claim is $ upon a bill of exchange ac- Appx. A. cepted {or indorsed) for the defendant's accommodation. ^^^ ^■ The plaintiff's claim is $ for a contribution in respect _?fl^f^ to money paid by the plaintiff as surety. The plaintiff's claim is $ for a contribution in respect to a joint debt of the plaintiff and the defendant paid by the plaintiff. The plaintiff's claim is $ for money paid for calls upon shares, against which the defendant was bound to indemnify the plaintiff. The plaintiff's claim is $ for money payable under an award. The plaintiff's claim is $ upon a policy of insurance upon the life of X. Y., deceased. The plaintiff's claim is $ upon a bond to secure a pay- ment of $1000 and interest. The plaintiff's claim is $ upon a judgmemt of the Court in the State of Massachusetts. The plaintiff's claim is $ upon a cheque drawn by the defendant. The plaintiff's claim is $ upon a bill of e'Xchange ac- cepted {or drawn, or indorsed) by the defendant. The plaintiff's claim is $ upon a promissory note made {or indorsed) by the defendant. The plaintiff's claim is $ against the defendant A. B., as acceptor, and against the defendant C. D., as drawer {or in- dorser) of a bill of exchange. The plaintiff's claim is $ against the defendant as surety for the price of goods sold. The plaintiff's claim is $ against the defendant A. B., as principal, and against the defendant C. D., as surety, for the price of goods sold {or arrears of rent, or for money lent, or for money received by the defendant A. B. as traveller for the plain- tiff, or &c.) The plaintiff's claim is $ against the defendant as a del credere agent for the price of goods sold {or as losses under a policy.) The plaintiff's claim is $ for calls upon shares. The plaintiff's claim is $ for crops, tillage, manure, {or as the case may he), left by the plaintiff as outgoing tenant of a farm. Section III. Indorsement for Costs. (0. 3, r. 6.) Add to the aiove forms — And $ for costs; and if the amount claimed is paid to the plaintiff or his solicitor within six days {or if the writ is to 6e served out of the jurisdiction, or notice in lieu of service al- lowed, insert the time fo'^ appearance limited iy< the rules) from the service thereof, further proceedings will be stayed. 264 FORMS — DAMAGES AND OTHEB CLAIMS. Appx. A. Section IV. Fart 111. Sec. IV. Damages and other Claim.s. The plaintiff's claim is that an account be taken of (say what.) The plaintiff's claim is for damages for breach of a contract to employ the plaintiff as traveller. The plaintiff's claim is for damages for wrongful dismissal from the defendant's employment as- traveller (and $ for arrears of wages.) The plaintiff's claim is for damages for the defendant's wrongfully quitting the plaintiff's employment as manager. The plaintiff's claim is for damages for breach of duty as factor (or, &c.,) of the plaintiff (and $ for money received as factor, &c.) The plaintiff's claim is for damages for breach of the terms of a deed of apprenticeship of X. Y. to the defendant (or plain- tiff.) The plaintiff's claim is for damages for non-compliance with the award of X. Y. The plaintiff's claim is for damages for assault and false im- prisonment (and for malicious prosecution.) The plaintiff's claim is for damages for assault and false imprisonment of the plaintiff, C. D. The plaintiff's claim is for damages for injury by the defend- ant's negligence as solicitor of the plaintiff. The plaintiff's claim is for damages for negligence in the custody of goods (and for wrongfully detaining the same.) The plaintiff's claim is for damages for negligence in the keeping of goods pawned (and for wrongfully detaining the same.) The plaintiff's claim is for damages for negligence in the custody of furniture lent on hire (or a carriage lent), (and for wrongfully, &c. ). The plaintiff's claim is for damages for wrongfully neglect- ing (or refusing) to pay the plaintiff's cheque. The plaintiff's claim is for damages for breach of a contract to accept the plaintiff's drafts. The plaintiff's claim is upon a bond conditioned not to carry on the trade of a The plaintiff's claim is for damages for refusing to carry the plaintiff's goods by railway. The plaintiff's claim is for damages for refusing to carry the plaintiff by railway. The plaintiff's claim is for damages for breach of duty in and about the carriage and delivery of coals by railway. The plaintiff's claim is for damages for breach of duty in and about the carriage and delivery of machinery by sea. The plaintiff's claim is for damages for breach of charter- party of ship ("Mary.") The plaintiff's claim is for return of household furniture, (or &c.) or their value, and for damages for detaining the same. The plaintiff's claim is for wrongfully depriving plaintiff of goods, household furniture, &c. The plaintiff's claim is for damages for libel contained in (state sufficient particulars to identify the publication.) The plaintiff's claim is for damages for slander. The plaintiff's claim is in replevin for goods wrongfully dis- trained. FOEMS DAMAGES AND OTHER CLAIMS. 265 Sec. IV. The plaintiff's claim is for damages for improperly dis- Appx. A. training. Part m. [This form shall be sufficient, tohether the distress com,-'- plained of is wrongful or excessive, or irregular, and whether the claim is for damages only, or for douhle value.'i The plaintiff's claim is to recover possession of a house, No in street (or of a farm called Blackacre) , situated in the township of in the County of The plaintiff's claim is to establish his title to Oiere desc7-ihe property), and to recover the rents thereof. {The two previous forms may be com,l)ined.) The plaintiff's claim is for dower. The plaintiff's claim is for damages for infringement of the plaintiff's right of fishing. The plaintiff's claim is for damages for fraudulent mis- representation of the sale of a horse (o?" a business, or shares, or, &c.) The plaintiff's claim is for damages for fraudulent misrepre- sentation of the credit of A. B. The plaintiff's claim is for damages for breach of a contract of guarantee for A. B. The plaintiff's claim is for damages for breach of contract to indemnify the plaintiff as the defendant's agent to distrain. The plaintiff's claim is for a loss under a policy upon the ship "Royal Charter," and freight or cargo (or lor return of premiums. ) [This form shall be sufficient whether the loss claimed is total or partial.] The plaintiff's claim is for a loss under a policy of fire insur- ance upon house and furniture. The plaintiff's claim is for damages for breach of a contract to insure a housa The plaintiff's claim is for damages for breach of a contract to keep a house in repair. The plaintiff's claim is tor damages for breaches of coven- ants contained in a lease of a farm. The plaintiff's claim is for damages for Injury to the plain- tiff from the defendant's negligence as a medical man. The plaintiff's claim is for damages for injury by the defen- dant's dog. The plaintiff's claim is for damages for Injury to the plain- tiff by the negligent driving of the defendant or his servants. The plaintiff's claim is for damages for injury to the plain- tiff while a passenger on the defendant's railway, by the negli- gence of the defendant's servants. The plaintiff's claim is for damages for injury to the plain- tiff at the defendant's railway station, from the defective condi- tion of the station. The plaintiff's claim is as executor of A. B., deceased, for damages for the death of the said A. B. from injuries received while a passenger on the defendant's railway, by the negligence of the defendant's servants. The plaintiff's claim is for damages tor breach of promise of marriage. The plaintiff's claim is for damages for the seduction of the plaintiff's daughter. The plaintiff's claim is for damages for breach of contract to accept and pay for goods. The plaintiff's claim is for damages for non-delivery (or short delivery, or defective quality, or other breach of contract of sale) of cotton (or, &c.) 266 FOEMS DAMAGES AND OTHEE CLAIMS. Sec. rv. Appx. A. The plaintiff's claim is for damages for breach of warranty ^*.l* 5?- of a horse. The plaintiff's claim is for damages for breach of contract to seill (or purchase) land. The plaintiff's claim is for damages for breach of contract to let (or take) a house. The plaintiff's claim is for damages for breach of a contract to sell (or purchase) the lease, with goodwill, fixtures, and stock in trade of a public house. The plaintiff's claim is for damages for breach of covenant for title (or for quiet enjoyment, or, &c.,) in a conveyance of land. The plaintiff's claim is for damages for wrongfully entering the plaintiff's land and drawing water from his well, (or cutting his grass, or pulling down his timber, or pulling down his fences, or removing his gate, or using his road or path, or cross- ing his field, or depositing sand there, or carrying away gravel thence, or carrying away stones from his river.) The plaintiff's claim is for damages for wrongfully taking away the support of plaintiff's land (or house or mine.) The plaintiff's claim is for damages for wrongfully obstruct- ing a way (public Tiighway or private way.) The plaintiff's claim is for damages for wrongfully diverting (or obstructing, or polluting, or diverting water from) a water- course. The plaintiff s claim is for damages for wrongfully discharg- ing water upon plaintiff's land (or into plaintiff's mine.) The plaintiff's claim is for damages for wrongfully obstruct- ing the plaintiff's use of a well. The plaintiff's claim is for damages for the infringement of the plaintiff's right of pasture. (This form shall be sufficient whatever the nature of the right to pasture is.) The plaintiff's claim is for damages for obstructing the ac- cess of light to plaintiff's house. The plaintiff's claim is for damages for the infringement of the plaintiff's patent. The plaintiff's claim is for damages for the infringement of the plaintiff's copyright. The plaintiff's claim is for damages for wrongfully using (or imitating) the plaintiff's trade mark. The plaintiff's claim is for damages for breach of a contract to build a ship (or to repair a house, &c.) The plaintiff's claim is for damages for breach of a contract to employ the plaintiff to build a ship, &c. The plaintiff's claim is for damages to his house, trees, crops, &c., caused by noxious vapours from the defendant's factory (or, &c.) The plaintiff's claim is for damages from nuisance by noise from the defendant's works (or, stables, or, &c.). The plaintiff's claim is for damages for loss of the plaintiff's goods in the defendant's inn. Add to indorsement (0. 53, r. 2.): — And for a mandamus commanding the defendant to Add to indorsement: — And for an injunction to restrain the defendant from .... Add to indorsement where claim is to land, or to establish title, or both: — And for mesne profits. And for an account of rents or arrears of rent. And for breach of covenant for [repairs.'] FOEMS NOTICES, ETC. 367 Section V. Appx. B. No. 1. Indorsements oe Chaeaotek of Parties. (0. 3, r. 4.) Tlie plaintiff's claim is as executor [or administrator] of C. D., deceased, for, &c. The plaintiff's claim is against the defendant, A. B., as execu- tor [or, &c.,] of C. D., deceased, for, &c. The plaintiffs claim is against tho defendant A. B., as executor of X. Y., deceased, for, &c., and against the defendant, C. D., in his personal capacity, for, &c. The plaintiff's claim is as trustee, or assignee under the statute, of A. B. for The plaintiff's claim is as [or the plaintiff's claim is against the defendant as] trustee under the will of A. B., (or under the settlement upon the marriage of A. B. and X. Y., his wife.] The plaintiff's claim is against the defendant C. D., as heir- at-law, and against the defendant E. F., as devisee of lands under the will of A. B. The plaintiff's claim is as well for the King as for himself, for APPENDIX B. Notices, Etc. No. 1. Third Party Notice. (O. 16, r. 49.) 19.., {Here •put the letter and numier.) In the Supreme Court. Between A. B., Plaintiff, and C. D., Defendant. Notice filed 19.. To Mr. X. Y.: Take notice that this action has been brought by the plaintiff, against the defendant (as surety for M. N.) upon a bond condi- tioned for payment of 12,000 and Interest to the plaintiff. The defendant claims to be entitled to contribution from you to the extent of one half of any sum which the plaintiff may re- cover against him, on the ground that you are (his co-surety under the said bond, or also surety for the said M. N., in respect to the said matter, under another bond made by you in favour of the said plaintiff, dated the day of , A.D ) Or (as acceptor of a bill of exchange for $500, dated the day of A. D , drawn by you upon, and accepted by, the defendant, and payable three months after date. The defendant claims to be indemnified by you against liability under the said bill, on the ground that it was accepted for your accommodation. Or (to recover damages for a breach of a contract for the sale and delivery to the plaintiff of 1,000 tons of coal. 268 FOEMS NOTICES, ETC. Appx. B. The defendant claims to be indemnifled by you against liabil- ^°^- ^' ^- ity in respect to tlie said contract, or any breach thereof, on the ground that it was made by him on your behalf and as your agent. ) And take notice that, if you wish to dispute the plaintiff's claim in this action as against the defendant C. D., or your liabil- ity to the defendant C. D., you must cause an appearance to be entered for you within ten days after service of this notice. In default of your so appearing, you will be deemed to admit the validity of any judgment obtained against the defendant C. D., and your own liability to contribute or indemnify to the extent herein claimed, which may be summarily enforced against you pursuant to the Rules of the Supreme Court, Order XVI., Part 6. (Signed) C. D. Or, X. Y., Solicitor for the defendant C. D. Appearance to be entered at No. 2. Notice of Counter-claim (0. 21, r. 12.) (Heading as in Form 1.) To the within-named X. Y. Take notice that if you do not appear to the within counter- claim of the within-named C. D. within ten days from the service of this defence and counter-claim upon you, you will be liable to have judgment given against you in your absence. Appearance to be entered at. No. 3. Notice of Payment into Court. (0. 22, r. 4.) [Heading as in Form i.] Take notice that the defendant has paid into Court $ , and says that that sum is enough to satisfy the plaintiff's claim (.or the plaintiff's claim for. &c.) To Mr. X. Y., the plaintiff's solicitor. Z. Defendant's solicitor. FOKMS NOTICES^ ETC. 369 No. 4. Appx. B. Nos. 4 — 7. Acceptance or Sum Paid into Couet. (O. 22, r. 7.) {Heading as in Form 1.) Take notice that the plaintiff accepts the sum of $ paid by you into court in satisfaction of the claim in respect to which it is paid in. No. 5. Confession of Defence. (0. 24, r. 3.) {Heading as in Form 1.) The plaintiff confesses the defence stated in the para- graph of the defendant's defence {or of the defendant's further defence.) No. 6. Interrogatories. (0. 30, r. 4.) 19.., {Here put the letter and number.) In the Supreme Court. Between A. B., plaintiff, and C. D., E. F. and G. H., defendants. Interrogatories on behalf of the above-named {plaintiff or defendant C. D.) for the examination of the above-named {de- fendants E. F. and G. H., or plaintiff.) 1. Did not, &c. 2. Has not, &c. &c., &c., &c. {The defendant E. F. is required to answer the interrogatories numtereA ) {The defendant G. H. is required to answer the interrogatories numbered ) No. 7. Answer to Interrogatories. (0. 3^ r. 9.) {Heading as in Form, 6.) The answer of the above-named defendant, E. F., to the in- terrogatories for his examination by the above-named plaintiff. In answer to the said interrogatories, I, the above-named E. F., make oath and say as follows: — 370 FOEMS NOTICES, ETC. Appz. B. No. 8. Nos. 8, 9. Affidavit as to Documents. (O. 30, r. 13.) (Heading as in Form 1.) I, the above-named defendant, C. D., make oath and say as follows; — 1. I have In my possession or power the documents relat- ing to the matters in question in this suit set forth in the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. 3. That {here state upon what grounds the objection is made, and verify the facts as far as m,av t>e.) 4. I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto. 5. The last-mentioned documents were last in my possession or power on [state when.'] 6. That [here state what has become of the last-mentioned documents, and in whose possession they now are.'. 7. According to the best of my knowledge, information, and belief, I have not now, and never had, in my possession, custody, or power, or in the possession, custody or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such docu- ment, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the paid first and second schedules hereto. No. 9. Notice to Pboduce Documents. (O. 30, r. 16.) (Heading as in Form 1.) Take notice that the (plaintiff or defendant) requires you to produce for his inspection the following documents referred to in your [statement of claim, or defence, or affidavit, dated the .day of A. D ] Describe documents required. X. T., To Z., Solicitor for X. Y., Solicitor to the. FORMS NOTICES^ ETC. 271 No. 10. Notice to Inspect Documents. (O. 30, r. 17.) (Heading as in Form 1.) Take notice tliat you can inspect the documents mentioned m your notice on the day of A. D (except the deed numbered in that notice) at (insert place of inspection) on Tuesday next, the inst., between the hours of 12 and 4 o'clock. Or, that the (plaintiff or defendant) objects to giving you in- spection of the documents mentioned in your notice of the •J^y of A. D on the ground (state the objection) : — Appz. B. Nos. 10, 11. No. 11. Notice to Admit Documents. (0. 31, r. 3.) (Heading as in Form 1.) Take notice that the plaintiff (or defendant) in this cause proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant (or plaintiff) his solicitor or agent, at , on be- tween the hours of ; and the defendant (or plaintiff) is hereby required, within forty-eight hours from the last mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been; that such as are speci- fied as copies are true copies; and such documents as are stated to have been served, sent or delivered, were so served, sent, or delivered respectively; saving all just exceptions to the admis- sibility of all such documents as evidence in this cause. Dated, &c. (Signed.) E. F., Solicitor (or agent) for defendant (or plaintiff.) To G. H., Solicitor (or agent) for plaintiff (or defendant.) [Here describe the documents, the manner of doing which mav be as follows:'] ORIGINALS. Description of Documents. Deed of covenant between A. B. and C. D. first part, and E. F. second part Indenture of Idase from A. B. to C. D Indenture of release between A.B. and CD. first part, &c. Letter, defendant to plaintifif Policy of insur&nce on goods by ship "Isabella" from Oporto to London Memorandum of agreement between C. D., captain of said ship, and E. P Bill of exchange for $100 at three months, drawn by A. B. on and accepted by 0. D., indorsed by E. P., and G. H. Dates. January 1, 1848. February 1, 1848. February 2, 1848. March 1, 1848. December 3, 1847 January 1, 1848. May 1,.1849. 372 FOEMS NOTICESj ETC. Apps. B. Nos. 12, 13. Copies. Description of Documents. Register of Baptism of A. B., in the parish of S. . Letter — plaintiff to de- fendant Notice to produce papers . Record of a Judgment of the Supreme Court in an action, F.S. v. F.N Grant under the Great Seal of Nova Scotia. . . . Dates. January 1, 1848. February 1, 1848. March 1, 1848. March 2, 1848. January 1, 1780. Original or Duplicate served, sent or delivered, when, how and by whom. Sent by general post, Febru- ary 2, 1848. Served March 2, 1848, on de- fendant's solicitor by E.F., of No. 12. Notice to Admit Facts. (0. 31, r. 5.) [Heading as in Form i.] Take notice that the plaintiff {or defendant) in this cause requires the defendant {or plaintiff) to admit, for the purposes of this cause only, the several facts respectively hereunder speci- fied; and the defendant {or plaintiff) is hereby required, within six days from the. service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this cause. Dated, &c. G. D., solicitor {or agent) for the plaintiff {or defendant.) To E. P., solicitor {or agent) for the defendant {or plaintiff.) The facts, the admission of which is required, are:- 1. That John Smith died on the 1st of January, 1870. 2. That he died Intestate. 3. That James Smith was his only lawful son. 4. That Julius Smith died on the 1st of April, 1876. 5. That Julius Smith never was married. No. 13. Admission of Pacts Pursuant to Notice. (0. 31, r. 5) [Heading as in Form 1.] The defendant {or plaintiff) in this cause, for the purposes of this cause only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all just exceptions to the ad- missibility of such facts, or any of them, as evidence in this cause. FORMS NOTICES, ETC. 273 Provided that this admission is made for the purposes of Appz. B. this action only, and is not an admission to be used against the ^°°- ^^' ^^- defendant, (or plaintiff,) on any other occapion, or by anyone other than the plaintiff, or defendant (or party requiring the admission. ) Delivered, &c. E. P., solicitor (or agei-t), for the defendant, (or plaintiff.) To G. H., solicitor (or agent) for the plaintiff (or defendant). Facts admitted. 1. That John Smith died on the 1st of January, 1870. 2. That he died intestate. 3. That James Smith was his lawful son. 4. That Julius Smith died. 5. That Julius Smith never was married. Qualifications or Limitations, if any, subject to which they are admitted. 3. But not that he was his only law- ful son. 4. But not that he died on the 1st of April, 1876. No. 14. Notice to Produce (General Foem.) 0. 31, r. 8) [Heading as in Form 1.] Take notice, that you are hereby required to produce and show to the Court on the trial of this all books, papers, letters, copies of letters, and other writings and documents in your custody, possession or power, containing any entry, mem- orandum, or minute relating to the matters in question in this and particularly Dated the day of 19 To the above-named h solicitor or agent (Signed) of solicitor for the above-named. No. 15. Issue. (0. 33, r. 8.) [Heading as in Form 1.] Whereas A. B. affirms, and C. D. denies (here state the ques- tion or questions of fact to ie tried), and it has been ordered by the Hon. Mr. Justice that the said question shall be tried (here state mode of trial, whether with or without a jury), therefore let the same be tried accordingly. S.N.S. — 18 374 FOEMS NOTICES^ ETC. Appx. B. No. 16. Nos. 16—18. Notice of Tbial. (O. 34, r. 12.) [Heading as in Form i.] Take notice of trial of this (or of tlie issues in this. . . . ordered to be tried (or as the case may 6e) in {or as the case may 6e), for the day of next. X. Y. plaintiff's solicitor (or as the case may 6e.) Dated To Z., defendant's solicitor (or as the case may be.) No. 16. A. Notice of Triai. Without Pleadings. (0.18a.) Take notice of trial of this cause without pleadings in Hali- fax [or as the case may 6e] for the day of next. X. Y., plaintiff's solicitor [or as the case may 6e]. Dated To Z., defendant's solicitor [or as the case may 6e.] No. 18. Notice of Motion. (O. 52.) [Heading as in Form, l.'\ Take notice, that the Court will be moved on day the day of 19.. at o'clock in the fore- noon, or so soon thereafter as counsel can be heard, by that Dated the day of 19.. (Signed) , of Agent for , . . ., Solicitor for the To POEMS — NOTICES^ ETC. 375 No. 19. Notice of Discontinuance. (O. 26, r. I.) {Heading as in Form 1.] Take notice, that the plaintift hereby* Dated the day of 19.. (Signed) of , Agent for , Solicitor for the plaintiff. Appz. B. Nos. 1.9, 20. To. No. 20. Notice of Cboss-examination of Deponents at Trial (0. 36, r. 28.) [Heading as in Form 1.} Take notice that the intend at the trial of this action to cross-examine the several deponents named and des- cribed in the schedule hereto on their aflSdavits therein specified. And also take notice that you are hereby required to produce the said deponents for such cross-examination before the court aforesaid. Dated day of 19 . . (Signed) Agent for of Solicitor for the To The Schedule above referred to. Name of Deponent. Address and Description. Di tte when Affidavit filed. '^ "Wholly discor-timies this action," or "withdraws so much of his claim in this action as relates to," &c. f If not against all the defendant! add "as against the defendant," &o. 276 FORMS NOTICES^ ETC. Appx. B. No. 21. Nos. 21 — 23. Notice of Renewal of Writ of Execution. (O. 40, r. 20.) {Heading as in Form i.] Take notice, that the writ of issued in this action directed to the Sheriff of and bearing date the day of 19. ., has been renewed for one year from the day of 19.. Dated the day of , 19.. (Signed) of , Agent for Solicitor for the To the Sheriff of No. 22. Affidavit of Service of Summons. (0. 54, r. 5, O. 13, r. 2.) {Heading as in Form J?.] I, of , solicitor for the above-named make oath and say as follows: — I did on the day of , 19. ., before the hour of . . . . in the . . . .noon, serve the above-named in this action with a true copy of the summons hereto annexed marked A, by leaving it at the of the said situated with there Sworn at •( this day of 19.... r Before me, ! This affidavit is filed on behalf of the. No. 23. Affidavit in support of Garnishee Order. (0. 43, r. i.) In the Supreme Court 19 No Between Judgment Creditor, and Judgment Debtor. I of the above-named judgment creditor [or solicitor for the above-named judgment creditor] make oath and say as follows: — I. By a judgment of the Court given in this action, and dated the day of 19 , it was adjudged that I [or the FORMS — NOTICES, ETC. 277 above-named judgment creditor] should recover against the Appx. B. above-named judgment debtor the sum of ^....and costs to ^°^- ^^- ^^' be taxed, and the said costs were allowed at $ 2. The said still remains unsatisfied to the extent of $ and interest amounting to $ 3. * is indebted to the judg- ment debtor in the sum of ^ or thereabouts. 4. The said is within the jurisdiction of this Court. Sworn, &c. * Name, address and description of garnishee. No. 24. Affidavit on Inteepleader. (0. 56, r. 2.) IHeading as in Form i.] I of , the defendant in the above action, make oath and say as follows: 1. The writ of summons herein was issued on the day of 19 and was served on me on the. . day of 19.... 2. The action is brought to recover The said * in my possession, but I claim no interest therein. 3. The right to the said subject-matter of this action has been and is claimedf by one whoj 4. I do not in any manner collude with the said or with the above-named plaintiff, but I am ready to bring into Court or to pay or dispose of the said in such manner as the Court orders or directs. Sworn, &c. * "Is" or "are." t If claim in writing, make the writing an exhibit. t State expectation of suit or that he has already sued. No. 25. Notice of Claim to Goods Taken in Execution. (0. 56, r. 16.) Take notice that A. B. has claimed the goods (or certain goods) [where only certain goods are claimed, here enumerate them'] taken in execution by the sheriff of , under the execution issued in this action. You are hereby required to admit or dispute the title of the said A. B. to the said' goods and give notice thereof in writing to the said sheriff within four days from the receipt of this notice, failing which the said sheriff may issue an interpleader summons. If you admit the title of the said A B. to the said goods and give notice thereof in manner aforesaid to the said sheriff you will only be liable for any fees and expenses incurred prior to the receipt of the notice admit- ting the claim. Dated, &c. (Signed) To the plaintife. Sheriff of 278 FOEMS STATEMENTS OF CLAIM. Appx. 0. No. 26. Sees. I., II. Notice of Plaintiff of Admission or Dispute of Title of Claimant. (O. 56, r. 16.) Take notice that I admit {or dispute) the title of A. B. to the goods [or to certain of the goods, namely (set them out)'\ seized by you under the execution issued under the judgment in this action. (Signed) Plaintiff To the sherife of , 1 or and his officers. J Solicitor. APPENDIX C. Forms of Statements of Claim to be used Pursuant to Ordeb XIX, Rule 5. GENERAL INDORSEMENTS ON WRITa OP SUMMONS. Section I. 19.. Here put the letter and nuniJ)er. In the Supreme Court. Writ issued the of , 19 . . Between A. B., Plaintiff, and C. D., Defendant. Statement of Claim. The plaintiff, &c. (.or). The plaintiff's claim is, &c. (To he flUed up in manner exemplified, in the following forms.) The plaintiff claims (as in following forms.) Place of trial, (Signed) Delivered the of 19. . Section II. Actions of an Equitable Nature. No. 1. (Administration. ) The plaintiff is a creditor of X. Y.. deceased, of whom the defendant, C. D., is executor (or administrator), and the defen- dant B. F., is heir-at-law (or devisee.) FORMS — STATEMENTS OP CLAIM. 379 Particulars of the claim: Appx. o. Principal due on the bond of the testator (or intestate) Sec, n. dated the of 19. . $2,000 00 Interest from the day of at 6 per cent. 250 00 $2,250 00 The plaintiff claims to be paid the amount due to him, or to have the real and personal estate of the said X. Y. administered. (Signed) Delivered No. 2. (Wil-fiil Default.) 1. The plaintiff is residuary legatee of A. B. of the city of Halifax, who died March 3rd, 1882, having made his will dated March 2nd, 1882, and appointed the defendants his executors, who proved his will April 6, 1882. 2. The defendants have been guilty of wilful default in not getting in certain property of the testator. 3. The wilful default on which the plaintiff relies is as follows: — C. D. owed to the testator $1,000, in respect to which no inter- est had been paid or acknowledgment given for five years before thei testator's death. The defendants were aware of this fact, but never applied to C. D. for payment until more than a year after testator's death, whereby the said sum was lost. The plaintiff claims: (i.) Account of testator's personal estate on footing of wil- ful default. (2.) Administration of the testator's personal estate. (Signed) Delivered ■ No. 3. (Dissolution of Hartnership.) 1. The plaintiff, on December 20th, 1875, entered into part- nership articles with the defendant for ten years. 2. The defendant has broken the partnership articles as follows: (a) (&) (c) The plaintiff claims: (1.) Dissolution. (2.) Accounts and inquiries. (3.) A receiver and manager. (Signed,) Delivered 380 FORMS STATEMENTS OE CLAIM. Appx. C. No. 4. Sec. n. (For Accounts.) 1. The plaintiffs are executors of A., deceased. 2. From tlie year 1878 till his death A. employed the defen- dant as his confidential agent in the management of a large building estate at X. 3. The defendant as such agent received large sums of money for the said A., for which he refuses to account. The plaintiffs claim: (1.) Accounts of all sums received and paid by the defen- dant as agent of A. (2.) Payment of the amount found due. (Signed) Delivered. No. 5 (Foreclosure and Sale.) 1. The plaintiff is mortgagee of lands belonging to the defendant. 2. The following are the particulars of the mortgage: a. (Date and names of mortgagor and mortgagee.) 6. (Su7n secured.) c. (Rate of Interest.) d. (Property su'bject to mortgage.) e. (Amount now due.) (If the plaintiff's title is a derivative title, state shortly the assignments under which he claims.) (If the plaintiff is mortgagee in possession add:) The plaintiff took possession of the mortgaged property on the of , and is ready to account as mortgagee in possession from that time. The plaintiff claims payment, or, in default, sale, or fore- closure (and possession.) (Signed) Delivered No. 6. (Redemption.) 1. The plaintiff is mortgagor of lands, of which the defend- ant is mortgagee. 2. The following are the particulars of the mortgage: FORMS STATEMENTS OF CLAIM. 381 a. (Date.) Appx. c. 6. (Slim secured.) Sec u. c. (Rate of interest.) ' — d. (Property subject to mortgage.) (If the plaintiff's title is derivative, state shortly the deed? under which he claims.) (If the defendant is mortgagee in possession add): 3. The defendant has taken possession (or has received the rents of the mortgaged property.; The plaintiff claims to redeem the said premises, and to have the same reconveyed to him (and tO- have possession thereof.) (Signed) Delivered No. 7. (For raising portions or other charges on lands.) 1. By a settlement on the marriage of A. B. and C. B., dated January 10, 1850, Whiteacre was demised to trustees for 99 years, on trust after the deaths of A. B. and C. B. to raise $5,000 for the younger children of the marriage who should attain 21. 2. A. B. died February 15, 1870. 3. C. B. died June 10, 1875. 4. There were 5 children only of the marriage of A. B. and C. B., all of whom are now living and have attained 21. The plaintiff is the second born child. 5. The defendants' were on April 5, 1877, appointed trustees of the settlement. The plaintiff claims: 1. To have $5,000 raised by sale or mortgage and distributed among the persons entitled. (Signed) Delivered No. 8. (Sale and Distribution of proceeds of property subject to any lien or charge.) 1. On November 12, 1880, A. and the defendant B. deposited with the plaintiff 500 United States bonds as security for a debt of $ and interest at 6 per cent, due from A. and the defend- ant B. to the plaintiff. 2. A. died March 12, 1881. 282 FORMS STATEMEN-TS OF CLAIM. Appx. C. 3. On March 30, 1881, administration of the estate of A. was ^"^- ^- granted to the defendant C. 4. $800 and $30 for interest is owing to the plaintiff on the security of the said bonds. The plaintiff claims: (1.) Sale of the said bonds. (2.) Application of the proceeds in payment of his debt. (3.) Distribution of the surplus among the»parties entitled. (Signed) Delivered No. 9. (Breach of Trust.) 1. By a settlement dated July 3rd, 1872, on the marriage of the plaintiffs' father and mother, of which the defendant A. B. and one C. D. were trustees, the plaintiffs are absolutely entitled on the deaths of their father and mother. 2. On August 5, 1874, C. D. died, and the defendant E. F. was appointed in his place. 3. On December 1, 1879, the plaintiffs' father died. 4. On January 1, 1880, the plaintiffs' mother died. 5. The defendants have committed the following breaches of trust by: (o.) Sale of $3000 bank stock and investment of the pro- ceeds in the business of the defendant A. B. (6.) Sale of leasehold property worth $5000 to G. H. for $1000 (without taking ajiy proper steps to as^ certain its value or to obtain such value.) The plaintiff claims: (1.) The replacement of $3000 bank stock and 6 per cent, interest on the proceeds of the bank stock sold, from the date of sale till replacement. (2.) Payment of $4000 and interest at 6 per cent, per annum from the date of the sale. (Signed) Delivered No. 10. (Execution of Trust.) 1. By a settlement dated June 10, 1856, upon trust for A. B. and C. B. successively for life, with remainder for their children who should attain 21, the following property was assured: a. A sum of $5000 Dominion stock. 6. $4000 invested on mortgage of land at X. FORMS STATEMENTS OP CLAIM. 283 c. One fiftb of the residuary estate of D., deceased, subject Appx. C to a prior life-interest. ^c. H. 2. On August 15, 1862, C. B. died. 3. On February 18, 1875, A. B. died. 4. On September 10, 1879, D. died. ,._„ ^- ^- ^- ^^^ ^- B- ^^^ five children only, of whom the plain- tift is one. 6. The defendants are the present trustees of the settle- ment. The plaintiff claims: (1.) Execution of the trusts of the settlement. (2.) All necessary accounts and inquiries. (3.) A receiver. ^ ,. ^ (Signed) Delivered No. 11. (For Rectification of Instruments.) 1. In 1865 a marriage was arranged between A. B'. and the plaintiff. 2. By an agreement contained in two letters, dated Feb- ruary 10 and 12, 1865, it was agreed between C. B., the father of A. B., and D., the father of the plaintiff, that each should settle 110,000 on trust, for A. B. and the plaintiff successively for life, with remainder on the usual trusts for the children of the mar- riage. 3. By letter, dated March 7, 1865, from D. to Messrs. B. & Co., his solicitors, he instructed them to prepare a settlement. 4. A settlement, dated April 25, 1865, was executed upon the marriage of A. B. and the plaintiff, accidentally omitting to give a life interest to the plaintiff after the life interest of A. B. 5. On May 20, 1882, A. B. died. 6. The defendants H. and K. are the present trustees of the settlement. 7. The defendants, L., M. and N., are the only children of the marriage. The plaintiff claims: Rectification of the settlement. (Signed) Delivered . 384 rOEMS — ^STATEMENTS OF CLAIM. Appx. C. No. 12. Sec. H. (Specific Performance.) 1. By an agreement (or letters) dated (or made verbally at interviews on or about) the day , the plaintiff agreed to sell to the defendant the Home Farm, Annapolis, for $ The sale was to be completed on the of (// the agreement was verial, add), 2. The agreement so entered into has been part performed as follows (state how.) The plaintiff claims specific performance of the above agree- ment, and that the defendant may be ordered to execute a proper conveyance of the premises to the plaintiff (stating in each case What the defendant is required specifically to do.) (Signed) Delivered No. 13. (Partition or sale of Real Property.) 1. By will, dated January 5, 1864, A. devised Whiteacre to B., C, and D. as tenants in common. 2. On March 10, 1865, A. died. 3. On March 20, 1865, A.'s will was proved. 4. On June 25, 1867, B. conveyed to the plaintiff his share of Whiteacre. 5. On July 30, 1869, C. conveyed his share to the defendants on trust far sale. 6. By will, dated November 5, 1872, D. devised his share among his children equally. 7. On December 2, 1872, D. died. 8. On December 15, 1872, D.'s will was proved. 9. There were 10 children of D. living at his decease, some of whom have since died. IQ. Whiteacre consists of a mansion house and grounds. 11. A sale of the property and a division of the proceeds will be more beneficial than a division of the property. The plaintiff claims: A division of Whiteacre among the parties interested, (or a sale of Whiteacre and a distribution of the proceeds among the parties interested.) (Signed) Delivered FOKMS STATEMENTS OF CLAIM. 385 No. 14. Appx. C. Sec. m. (Wardship of infants and care of infants' estates. 1. By will, dated August 10, 1882, A. deivised Whiteacre and $10,000 to defendant on trust for plaintiff. 2. On August 15, 1882, A. died. 3. On August 30, 1882, probate was granted to the defend- ant, the sole executor. 4. The plaintiff is an infant 12 years old. The plaintiff claims: (1.) That the plaintiff may become a ward of Court. (2.) Administration of the trusts of the will of A. so far as necessary. (Signed) Delivered Section III. (.Special Indorsements.) Actions Included in Order III, , Rule 5, Classes A., B., C, D., E., AND F. No. 1. ((roods sold and delivered.) The plaintiff's claim is for the price of goods sold and delivered. Particulars: — 1881 — 31st December, — Balance of account for butcher's meat to this date.. $135 00 1882 — 1st January to 31st March, — Butcher's meat 72 50 $207 50 1882— 1st February— Paid 45 00 Balance due , $162 50 Place of trial, Halifax. (Signed) Delivered No. 2. (Money had and received.) The plaintiff's claim is for money received by the defendant for the use of the plaintiff. Particulars: — 286 FOEMS STATEMENTS OF CLAIM. Appx. 0. 1882 — 1st January, — Sec. m. To amount of rents of No. 5 Smith St., collected by the defendant $200 00 To deposit on intended sale of Eva Villa 100 00 Amount due $300 00 Place of trial, Halifax. (Signed) Delivered No. 3. {Payee against maker of a' promissory note.) The plaintiff's claim is against the defendant as maker of a promissory note for $2&0, dated 1st January, 1882, payable four months after date. Particulars: — Principal $250 00 Inte.rest 10 00 Amount due $260 00 Place of trial. Port Hood, Inverness Co. (Signed) Delivered . No. 4. (Indorsee against acceptor o/ iill of exchange.) The plaintiff's claim Is against the defendant, as acceptor of a bill of exchange for $400, dated 1st January, 1882, drawn by A. B., payable three months after date to the order of E. F., and indorsed to the pla,intiff. Particulars: — Principal due $400 00 Interest 16 00 Delivered. Amount due $416 00 (Signed) No. 5. (Indorsee against acceptor and drawer of a hill of exchange severally.) The plaintiff's claim Is against the defendant A. B., as ac- ceptor, and against the defendant, C. D., as drawer, of a bill of FOEMS STATEMENTS OF CLAIM. 387 exchange for $500, dated 1st January, 1882, payable three months Appr. o. after date, and Indorsed by the defendant, C. D., to the plaintiff, Sec, ni. of the dishonor of which on presentation the defendant, C. D., had notice. Particulars : — Principal $500 00 Interest 20 00 Amount due $520 00 Place of trial. Town of Pictou. (Signed) Delivered No. 6. {Payee against drawer of a Mil of exchange, excusing notice of dishonor.) The plaintiff's claim is against the defendant as drawer of a bill of exchange for $600, dated 1st March, 1882, drawn upon A. B., payable to the plaintiff three months after date, which was duly presented for payment and dishonored, but A. B. had no effects of the defendant, nor was there any consideration for the payment of the said bill by the said A. B. Particulars (as in Form 4.) Place of trial (Signed) Delivered No. 7. (Otiligee against olligor of a money loud.) The plaintiff's claim is for principal and interest ue on the defendant's bond to the plaintiff, dated 1st January, 1873, con- ditioned for payment of $200, on the 26th December, 1873. Particulars: — Principal $150 00 Interest 2 00 Amount due $152 00 Place of trial, Truro. (Signed) Delivered No. 8. (Covenantee against covenantor on a covenant to pay money.) The plaintiff's claim is for principal and interest, due under a covenant in a deed, dated the 1st of January, 1882. 388 FOEMS STATEMENTS OF CLAIM. Appx. C. Particulars: — Sec. HI. Principal $500 00 Paid 20 00 Principal due $480 00 Interest 3 00 Amount due $483 00 Place of trial, Halifax. (Signed) Delivered No. 9. (On a guarantee for the price of goods, setting out the guarantee) The plaintiff's claim is for the price of goods sold and delivered by the plaintiff to E. P., under the following guarantee: 2nd February, 1882. SiE,— In consideration of your supplying goods to E. F., I under- take to see you paid. Yours, &c., C. D., defendant. To Mr. A. B., (plaintiff.) Particulars: — 1882. 25 March, 55 tons of coal at $5 $275 00 Amount due Place of trial (Signed) Delivered No. 10. (Creditor against prinoipal dettor and his surety severally on a guarantee for goods sold.) The plaintiff's claim is against the defendant A. B., as prin- cipal, and against the defendant C. D., as surety, for the price of goods sold and delivered by the plaintiff to A. B., on the guar- antee by C. D., dated the 2nd of February, 1882. Particulars: — 2nd February — Goods $200 00 3rd March — Goods lO'O 00 17th March — Goods 777 80 00 5th April — Goods 30 00 Amount due $410 00 Place of trial, Windsor. (Signed) Delivered FORMS STATEMENTS OF CLAIM. 289 No. 11. Appz. 0. Sec. IV. (Belt upon a trust.) The plaintiff's claim Is against the defendants as trustees under the settlement upon the marriage of A. B. and X. Y., dated January 1st, 1870, whereby $10,000 Invested on mortgage of land at Z. was vested In the defendants as trustees upon trust to pay the income thereof half-yearly to the plaintiff. Particulars:- — 1882, December 25th, half a year's income $300 00 No. 12. (Landlord against tenant.) See Sect. VI., Form No. 1. Section IV. Actions for Damages foe Bkeach of Contract or Duty Arising OUT of Contract. No. 1. (Buyer against seller of goods for not delivering.) 1. The plaintiff has suffered damage by breacn o; contract for sale and delivery by the defendant to the plaintiff of 100 tons of pig iron at $20 per ton, to be delivered on rail at Halifax, on the 15th of March, 1882. 2. The defendant did not aeliver any (or .... tons, as tlie case maw 6e) of the said iron. Particulars of damage: — Loss of profit at $4 per ton on 100 tons $400 00 The plaintiff claims $400. Place of trial, Halifax. (Signed) Delivered No. 2. (Buyer against seller of goods for delivering them inferior to contract.) 1. The plaintiff has suffered damage by breach of a contract between the plaintiff and the defendant, for sale and delivery of 100 sacks of flour known as seconds at $6 per sack. S.N.S. — 19 290 FOEMS STATEMENTS OF CLAIM. Appz. 0. 2. 80 sacks delivered were inferior to seconds, and 20 sacks Sec. rv. were not delivered. Particulars of damage: — 80 sacks at $1 $ 80 00 20 sacks at $1.25 25 00 $105 00 The plaintiff claims $105. Place of trial, Windsor. (Signed) Delivered No. 3. (Shipowner against charterer for detention beyond the demur- rage days.) 1. The plaintiff has suffered damage by breach of a charter- party dated the 10th of March, 1882, between the plaintiff and the defendant, of the ship " Mary." 2. The ship was detained at the port of loading. Particulars of damage: — 1882. Jan. 1 ] jq ^^^^, detention beyond the Jan 10 ) "demurrage days at $80 per day. $800 00 The plaintiff claims $800. Place of trial, Halifax. (Signed) Delivered No. 4. (Shipper against master on a bill of lading for damage to goods.) 1. The plaintiff has suffered damage by breach of contract by bill of lading of goods shipped by the p'aintiff on board the " Jane," signed by the defendant, dated the 1st of January, 1882. 2. 50 bales of cotton were delivered in a damaged condition. Particulars of damage: — 50 bales at $10 $500 00 The plaintiff claims $500. Place of trial. Town of Pictou. (Signed) Delivered FOEMS STATEMENTS OF CLAIM. 291 No. 5. Appx. C. Sec. IV. (Shipper against ship owner on a bill of lading, for damage and ~ short delivery.) 1. The plaintiff has suffered damage hy breach of contract by bill of lading of goods shipped by the plaintiff, signed by the master of the ship " Mary " as the defendant's agent, dated the 1st of January, 1882. 2. 50 quarters of wheat were deliveired in a damaged condi- tion, and 100 quarters were not delivered. Particulars of damage: — 100 quarters at $8.00 ?800 00 50 quarters at $1-00 50 00 $850 09 The plaintiff claims $850.00. Place of trial, Guysboro', in the co. of Guysboro'. (Signed) Delivered No. 6. (On a marine policy against underwriters.) The plaintiff was interested to the amount of $ under a marine policy of insurance for that amount, dated the . . . day of 18 . . , on the ship " Hero," snbscribed by the defendant for $ Particulars : — 1. Valued or open:— Valued at $20,000.00. 2. Voyage: — At and from Cardiff to Valparaiso. 3. (Or, Time: — From noon of 1st January, 1882, to noon of 1st January, 1883). 4. Premium to defendant: — $ per cent. 5. Perils insured against causing loss: — Of the seas. 6. Loss: — Total (or exceeding 3 per cent.) The plaintiff claims $ Place of trial, Truro. (Signed) Delivered No. 7. (Passenger against railway company for negligence.) The plaintiff has suffered damage from the defendants' negli- gence in carrying the plaintiff as a passenger by railway from 292 FOEMS STATEMENTS OF CLAIM. Appx. 0. New Glasgow to Antigonisli, causing personal injuries to the ^°''- ^^- plaintiff, in a collision near St. James River, on the 15th January, 1883. Particulars of expenses, &c. : — Loss of 15 weeks' salary as clerk, at $10.00 per week.$150 00 Dr. Smith 50 00 Nurse for 6 weeks 24 00 $224 00 The plaintiff claims $224.00. Place of trial, Antigonish. Delivered . (Signed) No. 8. {Client against solicitor for negligence.) 1. The plaintiff has suffered damage from the defendant's negligence in his conduct for the plaintiff, as his solicitor, of busi- ness undertaken by the defendant on the plaintiff s retainer. 2. The negligence was in making an application under Order 14, Rule 1, in the case of A. B. (the plaintiff) vs. C. D., where the case was one of unliquidated damages and not of debt. Particulars of damage: — Taxed costs paid to defendant on dismissal of summons $ . . . . The plaintiff claims $ Place of trial (Signed) Delivered. No. 9. {Landlord against tenant for breach of covenant to repair.) 1. By a repairing covenant contained in a lease under seal from the plaintiff to the defendant, dated the 1st of January, 1876, of a house No. 401 Bedford Row, for seven years from the 25th of December, 1875, the defendant covenanted to keep the premises in such repair and condition as therein mentioned. 2. The premises were during the term out of such repair as was required by the covenant. 3. They were yielded up out of such repair at the expiration of the term. 4. Particulars of dilapidations were delivered to the defend- ant's solicitor on the of 18.. and exceed three folios. The plaintiff claims $ Place of trial (Signed,) Delivered FORMS STATEMENTS OF CLAIM. 293 No. 10. Appx. C. Sec. V. (Breach of Promise of Marriage.) 1. The plalntlfE has suffered damage by breach of promise by the defendant to marry her on the of , (or within a reasonable time, which elapsed before action), (or, on the death of A. B., whish happened before action). 2. The defendant refused to marry the plaintiff on the of (or, within a reasonable time) (or, on the death of A. B.) Particulars of special damage: — (As the case may ie,' if any.) The plaintiff claims $ Place of trial (Signed) Delivered Section V. ACTIONS Claiming Injunctions, Damages, or Declarations or Right Founded on Wrongs. No. 1. (Conversion of Goods.) The plaintiff has suffered damage by the defendant wrong- fully depriving the plaintiff of two casks of oil by refusing to give them up on demand (or, throwing them out of a boat in the London Docks, &c.) (If any damage is claimed, add) — Particulars (fill them in.) The plaintiff claims $500. Place of trial, Halifax. Delivered (Signed) No. 2. (Detinue.) The defendant detained from the plaintiff the plaintiff's goods and chattels, that is to say, a horse, harness and gig. The plaintiff claims a return of the said goods and chattels or their value, and $100 for their detention. Place of trial, Annapolis, in the county of Annapolis. (Signed) Delivered . 294 FOEMS STATEMENTS OF CLAIM. Appz. C. No. 3. Sec. V. (Negligent Driving.) The plaintiff has suffered damage from per-sonal Injuries to the plaintiff and damage to his carriage, caused by the defendant or his servant on the 15th of January, 1882, negligently driving a cart and horse in Granville Street. Particulars of expenses, &c.: — Charge of Mr. Smith, surgeon $100 OO Charge of Mr. Jones, coachmaker 80 00 $180 oo: The plaintiff claims $180. Place of trial, Halifax. (Signed) Delivered No. 4. {Fatal Injuries Act.) The plaintiff as executor of C. D., deceased, brings this action for the benefit of Eva, the -wife, and Willie m and Margaret and Dorothea, the children of 0. D.. (as the ease may 6e), who have suffered damage from defendant's negligence in carrying the said C. D. by omnibus, whereby the said C. D. was killed in Kentville on the 15th January, 1882. Particulars pursuant to statute are delivered herewith. Plaintiff claims $1,000. Place of trial, Halifax. (Signed) Delivered No. 5. (Collision of ships.) The plaintiff has suffered damage from injuries to his ship the " Betsy," and the cargo on board thereof, by a collision with the ship the " Jane," caused by the negligent navigation thereof by the defendant or his servants in the Harbor of Halifax, on the 1st of February, 1883. Particulars of loss and expenses: — 1. Charges of Jones & Co., shipwrights, $2,100. 3. Loss of use of ship from 1st February, 1883, to 1st of Marcn, 1883, $1,000. Particulars of damage to cargo: — (Insert them.) The plaintiff claims $ Place of trial, Halifax. (Signed) Delivered rOEMS STATEMENTS OF CLAIM. 295 No. 6. Appx. C. Sec. V. {Injunction for infringement of patent.) The defendant has Infringed th-e plaintiff's patent, No. 14,084, granted for the term of 14 years, from the 21st May, 1880, for certain improvements in the manufacture of iron and steel, whereof the plaintiff was the first inventor. The plaintiff claims an injunction to restrain the defendant from further infringement, and $500 damages. Particulars of breaches are delivered herewith. Place of trial, Amherst. (Signed) Delivered No. 7. {Damages for infringement of copyright.) The defendant has infringed the plaintiff's copyright in a book entitled "The History of Rome,' registered on the day of Particulars of special damage are as follows: — Loss of sale of 50 copies $250 00 Loss of profit in the copyright 250 00 $500 00 The plaintiff claims $500. Place of trial, Windsor (Signed) Delivered No. 8. {Injunction for infringement of trade mark.) 1. The defendant has infringed the plaintiff's trade ma-k. 2. The trade mark is {describe it.) {If the plaintiff is not the original proprietor of the trade m,arJc, show shortly how his title is derived.) 3. The following are the acts complained of, viz.: {Set them out.) The plaintiff claims an Injuncition to restrain the defendant, his servants and agents, from infringing the plaintiff's said trade mark, and in particular from {stating any particular injunction sought.) The plaintiff also claims an account or damages. (Signed) Delivered . 296 FOEMS STATEMENTS OE CLAIM. Appx. C. No 9. Sec. V. ' ( Seduction. ) The plaintiff has suffered damage from the seduction and carnally knowing by the defendant of G. H.. the (daughter and) servant of the plaintiff. Particulars of special damage are as follows: — Loss of service from 1st of March, to the 30th November, 1882 $200 00 Nursing and medical attendance 50 00 $250 OO- The plaintiff claims $250. Place of trial, Lunenburg. (Signed) Delivered No. 10. {Oistruction of lights.) 1. The plaintiff is the owner (or lessee) and occupier of a house, 700 Park streeit, Halifax, in which are the following ancient lights — (1.) The kitchen window in the basement on the south side. (2.) The two back dining room windows on the ground floor on the south side. (3) The landing window and back drawing room window on the south side. 2. The defendant is erecting a building, which will, if not stopped, materially diminish the light coming through the said windows. The plaintiff claims an injunction to restrain the defendant, his contractors, servants and workmen, from continuing the erec- tion of the building, so as to obstruct or diminish the access of light to the said windows or any of them. The plaintiff , will also, if necessary, claim to have the said building pulled down, or. damages for the injury he will sustain, if the same is completed and not pulled down. (Signed) Delivered No. 11. (Nuisance ty smells.) The plaintiff has suffered damage from offensive and pestilen- tial smells and vapours caused by the defendant in the plaintiff's dwelling house. No. 15 James street, Truro. FORMS STATEMENTS OP CLAIM. 297 The plaintiff claims: — Appx. C. Sec. V. (1.) $250.00. (2.) An injunction to restrain the defendant from the con- tinuance or repetition of the said injury or the committal of any injury of a like kind, in respect to the same property. Place of trial, Truro, in the County of Colchester. (Signed) Delivered . No. 12. (Nuisance hy pollution of water.) 1. The plaintiff is the owner (or lessee) and occupier of a farm known as through which there runs a river known as 2. The defendant or persons in his employ pollute the water in the said river by passing into the same the refuse of the de- fendant's dye works, situate higher up the said river. The plaintiff claims an injunction to restrain the defendant, his servants and agents, from sending from the said dye works in to the said river any matter so as to pollute the waters thereof, or to render them unwholesome or unfit for use, to the injury of the plaintiff (or as the case may 6e.) The plaintiff will also claim damages in respect to the said nuisance. Place of trial , (Signed) Delivered No. 13. (Fraudulent prospectus.) 1. On 31st January, 1883, the defendant issued a prospectus to the public, relating to the A. B. Company, Limited. 2. On February 1st, 1883, the plaintiff received a copy of this prospectus. 3. The plaintiff subscribed for 100 shares in the company on the faith of this prospectus. 4. The prospectus contained misrepresentations, of which the following are particulars: — (a) The prospectus stated " whereas in fact (6) The prospectus stated " whereas in fact (c) The prospectus stated " whereas in fact 5. The defendant knew of the real facts as to the above particulars. 298 FOEMS STATEMENTS OF CLAIM. Appx. 0. 6. The following facts, which were within the knowledge of ^^°- ^- the defendants, are material, and were not stated in the pros- pectus: — (a.) (6.) 7. The plaintiff has paid calls to the Company to the extent of 12,000.00 The plaintiff claims:— (1.) Repayment of $2,000.00 and interest. (2.) Indemnity. (Signed) Delivered No. 14. (Fraudulent sale of a lease.) The plaintiff has suffered damage from the defendant induc- ing the plaintiff to buy the goodwill and lease of the George Hotel, Windsor, by fraudulently representing to the plaintiff that the takings of the said hotel were $80 a week, whereas in fact they were much less, to the defendant's knowledge. Particulars of special damage: — (Fill them in.) The plaintiff claims ? (Signed) Delivered No. 15. (Malicious prosecution.) The defendant maliciously and without reasonable and prob- able cause preferred a charge of larceny againsit the plaintiff before a justice of the peace, causing the plaintiff to be sent for trial on the charge and imprisoned thereon, and prosecuted the plaintiff thereon at the Supreme Court, at Pictou, where the plaintiff was acquitted. ■ ! •'■■'■ ^ ■■. ' ■': 1 Particulars of special damage:— Messrs L & L.'s bill of costs, $300. Loss in business from January 1, 1883, to February 18, 1883, $500. The plaintiff claims $800. Place of trial. (Signed) .... Delivered FOEMS STATEMENTS OF CLAIM. 299 S«ctioii VI. Actions for Recovery of Land, &c. No. 1. (Landlord, against tenant whose term has expired.) 1. The plaintiff is entitled to the possession of a farm and premises called Church Farm, in the Township of Clement, in the County of Annapolis, which was let by the plaintiff to the defendant for the term of three years, from the 29th of Septem- ber, 1879, which term has expired {or as tenant from year to year from the 29th September, 1875, which said tenancy was duly determined by notice to quit ecxpiring on the 29th of September, 1881.) The plaintiff claims possession and $200 tor mesne profits. Place of trial, Annapolis. (Signed) Delivered Appz. c. Sec. VT. No. Z. {Heir-at-law against stranger.) 1. The plaintiff is entitled to the possession of Blackacre, in the township of , {or of No. 2 Bridge street, Pictou) in the County of 2. On or before the of 18.., A. B. was seised in fee and in possession of the premises. 3. On the of 18 . . , the said A. B. died so seised, whereupon: 4. The estate descended to the plaintiff, his eldest son, and heir-at-law. 5. After the death of the said A. B., the defendant wrong- fully took possession of the premises. The plaintiff claims: (1.) Possession of tne premises. (2.) Mesne profits from the of Place of trial (Signed) Delivered 300 FORMS— DEFENCE. Appx. D. APPENDIX D. Sec. I. FORMS OF DEFENCE TO BE USED PURSUANT TO ORDER XIX, RULE 5. Section I. General Form. 18.. No. In the Supreme Court Between , plaintiff, and defendant. Defence. The defendant says that: i' [ (To be filled up in the manner exemplified in the j: I following forms.) (Signed) Delivered Counter-claim. The defendant says that: 1. \ {To he filled up in the manner exemplified in the 2. I following forms.} (Signed) Delivered The defendant counter-claims. (Signed) Delivered Defence and Counter-claim. Defence. The defendant says: — i" I (To 6e filled up.) Counter-claim. The defendant repeats paragraph 2 of his defence, and says that:— ^- I (To 6e filled up.) The defendant counter-claims. (Signed) Delivered FOEMS DEFENCE. 301 Section II. Appx. D. Sec. II. To Actions of an Eqititable Nature. APPENDIX C, SEC. II. (To actions for adminis;d Defence After Assessment of Damages. (O. 13, r. 5.) (Heading as in Form, 1.) 30th November, 19 . . The defendants not having appeared to the writ of summons herein (or not having delivered any defence), and a writ of in- quiry dated 19.., having been issued directed to the sheriff of to assess the damages which the plaintiff was entitled to recover, and the said sheriff having by his return dated the 19. ., returned that the said damages have been assessed at $ it is adjudged that the plaintiff recover $ , and costs to be taxed. No. 4. A. Final Judgment after Assessment of Damages by an Official Referee. (O. 34, r. 45.) {Heading as in Form 1.) The plaintiff having on the day of 19 obtained interlocutory judgment herein against the defendant in default of (appearance or defence) for damages to be assessed, and having on the day of 19 ordered that the said damages be assessed by an official referee of the Su- preme Court, and , Esq., official referee, having found and assessed the said damages at $ , as appears by his certi- ficate dated the Therefore it is adjudged that the plaintiff recover against the defendant $ , and costs to be taxed. No. 5. Judgment After Appearance and Order Under Order xiv, Rule i. {Heading as in Form 1.) The day of The defendant having appeared to the writ of summons here- in, and the plaintiff having by the order of dated the FORMS — JUDGMENT. 315 day of 19. ., obtained leave to sign judgment under the Appz. F. Rules of the Supreme Court, Order XIV, Rule i, for (recite Nos. s— 7. order. ) It is this day adjudged that the plaintiff recover against the defendant $ (or, possession of the land in the indorsement on the writ described as ) and costs to be taxed. The above costs have been taxed and allowed at $. Ko. 6. Judgment at Trial by Judge Without a Jury. (Heading as in Form 1.) This action coming on for trial (the day of and) this day before in the presence of counsel for the plaintiff and the defendants (or, if some of the defendants do not appear, for the plaintiff and the defendant C D., no one appearing for the defendants E. F. and G. H., although they were duly served with notice of trial as by the affidavit of filed . . . .the. . . . day of appears), upon hearing the probate of the will of , the answers of the defendants C. D., E. F., and G. H., to interrogatories, the admission in writing, dated and signed toy (Mr , the solicitor for) the plaintiff A. B., and by (Mr the solicitor for) the defendant C. D., the aflidavit of filed the day of , the affidavit of filed the day of , the evidence of taken on their oral examination at the trial, and an exhibit marked X., being an indenture dated, &c., and made between (parties), and what was alleged by counsel on both sides: This Court doth declare, &c. And this Court doth order and adjudge, &c. No. 7. Judgment Ajfter Trial with a Jury. (Heading as in Form 1.) 15th November, 19.. The action having on the 12th and ISth November, 19 . . , been tried b?fore the Honorable Mr. Justice , with a spe- cial jury of the county of , and the jury having found (state findings) and the said Mr. Justice having ordered that judgment be entered for the plaintiff for $ and costs (or as the case may he) : Therefore, it is adjudged that the plain- tiff recover against the defendant $ , and $ for his costs (or that the plaintiff recover nothing against the defendant, and that the defendant recover against the plaintiff $ for his costs of defence, (or as the case may 6e.) 316 FGEMS — JUDGMENT. Appx. F. Nos. 8 — 11. No. 8. Judgment After Trial Before Referee. (0. 34, Pt. 5.). (Heading as in Form 1.) 30th November, 19 . . The action having on the 27th November, 19.., been tried before X. Y., Esq., an oiBcial (or special) referee, and the said X. Y. having found (or having ordered that judgment may be entered) (state substance of referee's certificate) , it is this day adjudged that No. 9. Judgment after Trial of Questions of Account by Hefbree. (Arbitration Act.) (Heading as in For, a 1.) The day of 19.. The questions of account in this action having been referred to ,and he having found that there is due from the to the the sum of $ , and directed that the. . . . do pay the costs of the reference. It is this day adjudged that the recover against the ? and costs to be taxed. The above costs have been taxed and allowed at $ . No. lO. Judgment Upon Motion for Judgment. (0. 38.) (Heading as in Form 1.) 30th November, 19. . This day before Mr. X. of counsel for the plaintiff (or as the case may 6e), moved on behalf of the said (state judgment moved for), and the said Mr. X. having been heard of counsel for and Mr. Y,, of counsel for the Court adjudge No. 11. Judgment After Trial by Court "Without Jury. (0. 34, r. 32.) (Heading as in Form 1.) This action having on the day of 19. ., been tried before and the said ...... on the day of 19 . . , having ordered that judgment be entered for the .... for $ . . . . It is this day adjudged that the recover from the $ and costs to oe taxed. The above costs have been taxed and allowed at $. Judgment entered the day of 19. . FOEMS — JUDGMENT. 317 No. II. A. Appx. F. Wos. 11a — 18. Judgment of Dismissal. (0. 34, r. 23.) (Heading as in Form 1.) Dated and entered the day of 19. . This action having on the day of 19 , been called on for hearing before , and the plaintiff having failed to appear, and the defendant having, thereupon become entitled under Order XXXIV, Rule 23, to judgment dis- missing the action and the said having ordered that judg- ment be entered accordingly. Therefore it is adjudged that this action do stand dismissed out of this Court with costs. And it is further adjudged that the defendant recover against the plaintiff his costs to be taxed. The above costs have been taxed, &c. No. 12. JtruGMENT IN Pursuance op Order. (0. 39, r. 7.) (Heading as in Form 1.) Pursuant to the order of . . dated 19 . . , whereby it was ordered and default having been made It is this day adjudged that the plaintiff recover against the said defendant $ and costs to be taxed. The above costs have been taxed and allowed at $ No. 13. Judgment for Defendant's Costs on Discontinuance. (0, 26, r. 3.) (Heading as in Form 1.) The day of 19 . . The plaintiff having by a notice in writing dated the day of 19.., wholly discontinued this action (or withdrawn his claim in this action for) (or withdrawn so much of his claim in the action as relates to , or as the case may be.) It is this day adjudged that the defendant recover against the plaintiff costs to be taxed. The above costs have been taxed and allowed at $ ...... 318 FORMS JUDGMENT. Appx. F. No. 14. Nos. 14 — 16. ' Judgment for Plaintiff's Costs after Confession of Defence. (0. 24, r. 3.) (Heading as in Form, 1.) The day of 19.. The defendant in his defence herein having alleged a ground of defence which arose after the commencement of this action, and the plaintiff having on the .... day of 19. ., delivered a confession of that defence: It is this day adjudged that the plaintiff recover against the defendant costs to be taxed. The above costs have been taxed and allowed at |. No. 15. Judgment for Costs after Acceptance of Monet paid into Court. (0. 22, r. 7.) (Heading as in Form 1.) The day of , 19. . The defendant having paid into court in this action the sum of .... in satisfaction of the plaintiff's claim, and the plaintiff having by his notice dated the .... day of 19. ., accepted that sum in satisfaction of his entire cause of action, and the plaintiff's costs herein having been taxed, and the defendant not having paid ^iie same within after the said taxation: It is this day adjudged that the plaintiff recover against the defendant costs to be taxed. The above costs have been taxed and allowed at $ No. 16. Judgment where no Judgment Entered at Trial by Jury. (Heading as in Form. 1.) The day of 19. . This action having on the 19 . . , been tried before and a jury of the of and the jury having found and the not having thought fit to order any judgment to be entered. Now on motion before the Court for judgment on behalf of the , the Court having : It is this day adjudged that the recover against the the sum of $ and costs to be taxed. The above costs have been taxed and allowed at | Judgment entered ths day of , 19. . FOEMS — PE^CIPB. 319 No. 17. Appz. G. Pt. I.— No. 1. Judgment on Motion after Trial of Issue. (O. 38, r. 7.) {Heaaing as in Form 1.) The day of 19.. The issujs or questions of fact arising in this action [or cause, or matter) by the order dated the day of ordered to be tried before , having on the day of been tried before and the .... having found Now on motion before the Court for judgment on behalf of the Court having: It is this day adjudged that the recover against the the sum of $ and costs to be taxed. The above costs have been taxed and allowed at $ Judgment entered the day of 19 . . No. 18. Satisfaction Piece. (O. 39, r. 11.) {Heading as, in Form 1.) Satisfaction is acknowledged of the judgment entered be- tween the said plaintiff and the said defendant on tne day of , 19 . . , for and costs. Dg,ted the day of 19 . . (Signed,) APPENDIX G. PART I. FORMS OF PR.a:CIPE. (O. 40, r. 12.) No. 1. Of Execution. (0. 41.) 19. . (Here put the letter and number.) In the Supreme Court. Between A. B., Plaintiff, and C. D., and others. Defendants. Seal a writ of execution directed to the Sheriff of to levy against C. D. the sum of $ and interest thereon at the rate of $5 per centum per annum from the day of to (and ? costs.) Judgment (or order) dated day of X. Y., Solicitor for (party on whose behalf writ is to is^ue.) 3^0 FORMS PEiECIPE. Apps. O. No. 2. Part. I. Nos. 2 7. Of Writ of Sequestration. (0. 41.) {Heading as in Form 1.) Seal a writ of sequestration against CD f^r not. . at the suit of A. B., directed to (name of Commissioners.) Order dated day of No. 3. Of Writ of Possession. (0. 48.) ^Heading as in Form 1.) Seal a writ of possession directed to the Sheriff of to deliver possession to A. B., of Judgment dated day of No. 4. Of Writ of Delivery. (0. 49.) [Heading as in Form 7.] Seal a writ of delivery directed to the Sheriff of to make a delivery to A. B., of No. 5. Of Writ of Attachment. (0. 42.) (Heading as in Form 1.) Seal in pursuance of order dated day of , an attachment directea to the Sheriff of against C. D., for not delivering to A. B. No. 7. Of Inquiry. (0. 13, r. 5.) (Heading as in Form J.) Seal a writ of inquiry directed to the Sheriff of to assess the damages in this action. Judgment dated Dated the day of , 19 . . (Signed) (Address) Solicitor for the SOEMS — PE^CIPB. 321 No. 8. Appx. G. Part I. Or Ceetioraei. ^°'- ^ — ^^• (Heading as in Form 1.) Seal in pursuance of order dated , a writ of certiorari directed to Dated the day of 19 . . (Signed) (Address) _ Solicitor for the No. 9. Of Prohibition. 19. ., {Here put the letter and number.) In the Supreme Court. In the matter of a certain now depending in the Court. Between Plaintiff, and , Defendant. Seal a writ of prohibition directed to the Judge of the above- named Court and to the above-named plaintiffs to prohibit them from further proceeding in the said Dated the day of , 19 . . (Signed) (Address) Solicitor for the No. 11. Of Habeas Coepus ad Testificandum. (Heading as in Form 1.) Seal in pursuance of order dated a writ of hateas corpus ad testificandv/ni directed to the , to bring before Dated the day of , 19 . . (Signed) (Address) Solicitor for the S.N.S. 21 323 FOEMS PH^CIPE. Appx. G. No. 12. Part I. Nos. 12 14. Of Commission to Examine Witnesses. (0. 35, r. 5.) (Heading as in Form 1.) Seal in pursuance of order dated a writ in the nature of a mandamus or commission to examine witnesses directed to Dated the day of , 19 . . (Signed) (Address) Solicitor for the No. 13. Of Commission of Partition. (Reading os in Form 1.) Seal in pursuance of order dated a commission of partition directed to returnable Dated the day of 19 . . (Signed) (Address) Solicitor for the No. 14. Of Amended Summons. (0. 28, r. 1.) (Heading as in Form 1.) Amend in pursuance of order (or fiat) dated the writ of summons in this action by (set out amendments when re- quired.) Dated the day of 19 . . (Signed) (Address) Solicitor for the FOEMS — PRECIPE. 323 No. 15. Appx. G. Part I. Or Renewed Summons. (0. 8.) Nos. 16 — 18. (Heading as in Form 1.) Seal in pursuance of order dated , a renewed writ of summons in this action, indorsed as follows: Dated the day of 19 . . (Signed) (Address) Solicitor for the . . No. 16. Of Sxjbpcena.. (O. 35, r. 25.) (Heading as in Form- 1.) Seal writ of subpoena on behalf of the directed to returnable Dated the day of , 19 . . (Signed) (Address) Solicitor for the No. 17. Entry of Action for Trial. (0. 34, r. 20.) (Heading as in Form, 1.) Enter this action for trial ........ Dated the day of 19 . . (Signed) (Address) No. 18. Entry of Appeal. (0. 57, r. 9.) (Heading as in Form 1.) Enter this appeal from the order (or judgment) of in this action, dated the day of , 19 . . Dated the day of 19 . . (Signed) (Address) 334 FOEMS PE^CIPE. Appx. G. Part 1. Nos. 19 — 21. No. 19. Bntey fob Argument Generally. (.Heading as in Form 1.) Set down for argument the Dated the day of , 19 . . (Signed) (Address) No. 20. Entry of Special Case. (0. 33, r. 3.) (Heading as in Form 1.) Set down the dated the day of . . . Mr the referee in this hearing as a special case. 19.., of . . . . for Dated the day of (Signed) (Address) 19. No. 21. Memorandum of Service of Notice of Judgment. (0. 16, r. 43.) {Heading as in Form 1.) Enter memorandum of service of notice of judgment made in this action, and dated the day of , 19 . . , on the under-mentioned persons, viz.: — Name of Party Served. Date of Service Dated the day of , 19 . (Signed) (Address) . . . . SOEMS WEITS, ETC. 335 No. 22. Appx. H. No. 1. Memorandum of Notice of Judgment. (O. 16, rr. 8, 9, 44.) Take notice that from the time of the service of this notice you (or as the case may 6e, the infant or person of unsound mind) will be bound by the proceedings in the above cause ih the same manner as if you (or the said Infant or person of unsound mind) had been originally made a party, and that you (or the said in- fant or person of unsound mind) may, on entering an appearance at the Prothonotary's office at attend the proceedings under the within mentioned judgment (or order) and that you (or the said infant or person of unsound mind) may within one month after the service of this notice apply to the Court to add to the judgment (or order.) APPENDIX H. FORMS OF WRITS, Etc. (0. 40, r. 14, and 0. 41, r. 1.)- No. 1. WRIT ON DBUVBRY. 19. ., (Here put the letter and nuviber.) Between A. B., Plaintiff, and C. D., Defendant. . George V., by the Grace of God, &c. To the Sheriff of greeting: We command you, that without delay you cause the following chattels, that is to say (here enumerate the chattels recovered bw the judgment or order for the return of which execution has been ordered to issue), to be returned to A. B., which the said A. B. lately in our Supreme Court recovered against C. D. (or C. D. was ordered to deliver to the said A. B.) in an action in the said Court.* And we further command you, that if the said chattels cannot be found in your bailiwick, you distrain the said C. D. by all his lands and chattels in your baili- wick, so that neither the said C. D. nor any one for him do lay hands on the same until the said C. D. render to the said A. B. the said chattels.! And in what manner you shall have executed this, our writ, make appear to us in our Court aforesaid, immediately after the execution hereof. And have you there then this writ. Issued, &c. 326 FORMS WHITS^ ETC. Appx. H. No. 2. Nob. 2, 3. The nice, iut instead of a distress until the chattel is returned, commanding the Sheriff to levy on defendant's goods the assessed value of it. (Proceed as in the preceding form until the*, and then thus: ) And we further command you, that if the said chattels cannot be found in your bailiwick, Of the goods and chattels of the said C. D. in your bailiwick you cause to be made ? (the assessed value of the chattels). ■f And in what manner, &c. And have you there then this writ. Issued, &c. (7/ in either of the preceding forms' it is wished to include damages, costs, and interest, proceed to the^ and continue thus: ) And we further command you that of the goods and chattels of the said C. D., in your bailiwick, you cause to be made the sum of $ (damages.) And also interest thereon at the rate of $6 per centum per annum, from the day of which said sum of money and interest were in the said action by the judgment therein (or by order) dated the day of ad- Judged (or ordered) to be paid by the said C. D. to A. B., together with certain costs in the said judgment (or order) mentioned, and which costs have been taxed and allowed at the sum of $ And that of the goods and chattels of the said C. D. in your bailiwick you further cause to be made the sum of $ (costs), together with interest thereon at the rate of $6 per centum per annum from the day of , and that you have that money and interest before us in our Court immediately after the execution hereof, to be paid to the said A. B'., in pur- suance of the said judgment (or order.) And in what manner, &c. And have you there then this writ. Issued, &c. No. 3. Wkit of Attachment. (Person.) (O. 42.) (Heading as in Form 1.) George V., by the Grace of God, &c. To the Sheriff of greeting. We command you to attach C. D., so as to have him before us in the Supreme Court wheresoever the said Court shall then be, there to answer to us, as well touching a contempt which he, it is alleged, hath committed against us, as also such other matters as shall be then and there laid to his charge, and further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you. Issued, &c. FORMS WRITS, ETC. 327 No. 4. Appx. H. Nos. 4—6. Writ or Sequestration. [0. 41.] (Heading as in Form 1.) George V., by the Grace of God, &c. To (names of not less than four Commissioners) greeting. Whereas, lately in the Supreme Court in a certain action there depending, wherein A. B. is plaintiff and C. D. and others are defendants (or in a certain matter then depending, intituled " In the matter of B. F.," as the case may be) by a judgment (or order, as the case may ie) of our said Court made in the said action (or matter), and bearing date the day of 19.., it was ordered that the said C. D. should (pay into Court to the credit of the said action the sum of $ , or as the case may be.) Know ye, therefore, that we, in confidence of your prudence and fidelity, have given, and by these presents do give to you, or any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate what- soever of the said C. D., and to collect, receive, and sequester into your hands not only all the rents and profits of his said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estate whatsoever; and, therefore, we command you, or any three or two of you, that you do at cer- tain, proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estates of the said C. D. and that you do collect, take, and get into your hands not only the rents and profits of his said real estate, but also all his goods, chattels, and personal estate, and detain and keep the same under sequestration in your hands until the said C. D. shall (pay into Court to the credit of the said action the sum of ? , or as the case may be), clear his contempt, and our said Court make other order to the contrary. Issued, &c. No. 6. Warrant to Arrest Witness. (0. 34, r. 48.) (Heading as in Form 1.) To the Sheriff of Whereas, it has been made to appear to me that E. F. is a necessary and material witness on behalf of the and has been duly served with a subpoena, and paid or tendered his fees for travelling and attending as a witness, and refuses or neglects to attend to give evidence. These are, therefore, to command you forthwith to apprehend the said B. F., and to bring him be- fore for the purpose of giving evidence in such cause, and to be further dealt with according to law. Given under my hand and seal this day of 19. . (Signed) 328 FOEMS— WEITS^ ETC. Appx. H. No. 7. Nos. 7—8. Writ of Exectition (as Heretofore Known.) (0. 41.) (.Heading as in Form 1.) George V., by the Grace of God, &c. To the Sheriff of the County of , or to any other of our Sheriffs, greeting. Whereas by the consideration of our Supreme Court at on the day of A.D. 19 . . , recovered judgment against of in the county of , for the sum of dollars and cents debt or damage, and the sum of dollars and cents costs of suit. We command you, therefore tnat of the goods, chattels, lands or tenements of the said within your precinct, you cause to be paid and satisfied untr the said at the value thereof in money, the aforesaid sums, being dollars and cents, and thereof also to satisfy yourself for your own fees. Whereof fail not, and make due return of this writ unto our said Cour* at Issued this day of , A. D. 19. . Solicitor of (To be indorsed with instructions as heretofore, and as in the Rules provided.) No. 7, A. Writ of Execution on Order for Costs. (O. 63, r. 18.) (Heading as in Form 1.) George V., by the Grace of God, &c. To the Sheriff, &e. Whereas by an order of (.or our Supreme Court at ) on the day of A. D. 19 is entitled to be paid by , of , in the County of , the sum of dollars and cents. We command you, therefore, &c., (as in preceding form and indorsed with the like indorsement.) No. 8. Writ of Possession. (0. 48.) (Heading as in Form 1.) George V., by the Grace of God, &c. To the 'Sheriff of greeting: Whereas lately in our Supreme Court by a judgment, (A. B. recovered) or (E. F. was ordered to deliver to A. B.) possession POEMS WEITS, ETC. 329 of all that with the appurtenances in your bailiwick: Appx. H. Therefore we command you that you enter the same, and without iTos. 8 — 10. delay you cause the said A. B. to have possession of the said land and premises with the appurtenances, and in what manner, &c. And have you there then this writ. Issued, &c. No. 9. Writ of Attachment (Absconmng Debtob.) (0. 46, r. 2.) (Heading as in Form 1.) George V., by the Grace of God, &c. To the Sheriff of greeting: We command you to attach the goods and chattels or the estate of , an absconding or absent debtor, to the value of , to respond the judgment which may be obtained by who has taken proceedings against the said as an absconding or absent debtor, in our Supreme Court at and we do command you that immediately after the execution hereof, you do return this writ into our Court at together with your doings thereon, and the day of execution. Issued this day of , A. D., 19. . Plaintiff's Solicitor. No. 10. Summons fok Agent (Absconding Debtor.) (O. 46, r. 14.) (Heading as in Form 1.) George V., by the Grace of God, &c. To the Sheriff, &c. We command you to summon the agent of late of an absconding or absent debtor, to appear in the Supreme Court at within fifteen days after the service of this writ, to declare, discover and disclose what goods, credits or effects, of the said were in ...... hands or possession, or under management or control at the time of the service of this writ upon , in a suit prosecuted by against the said , as an absconding or absent debtor, in our said Court at Issued this day of , A. D., 19. . Solicitor of plaintiff. 330 FOEMS SUBPCENA. Appx. J. APPENDIX J. Nos. 1 — 3. FORMS OF SUBPCENA, &c. No. 1. SUBPCBJSTA AD TESTIFICANDUM (GENERAL FOBM.) (0. 35, T. 26.) 19. . (Here put the letter and numier.) In the Supreme Court. Between , plaintiff, and , defendant. George V, by the Grace of God, &c. To (the names of three witnesses may 6e inserted) greeting: We command you to attend before at on day the day of 19.., at the hour of in the noon, and so from day to day, until the above cause is tried, to give evidence on behalf of the plaintiff (or defendant.) Issued, &c. No. 2. Habeas Corpus ad Testificanduji. (0. 35, r. 26.) (Heading as in Forvi 1.) George V, by the Grace of God, &c. To the (keeper of our prison at ) We command you that you bring who it is said is de- tained in Our prison under your custody, before at on day the day of at the hour of in the noon, and so from day to day, until the above action is tried, to give evidence on behalf of the .... And that immediately after the said shall have so given his evidence you safely con- duct him to the prison from which he shall have been brought. Issued, &c. No. 3. SUBPCENA Duces Tecum (General Form.) (O. 35, r. 26.) (Heading as in Form 1.) George V, by th* Grace of God, &c. To (the names of three witnesses may lie inserted) greeting: We command you to attend before at on day the FOEMS SUBPCENA. 331 -day of 19. ., at the hour of In the noon, Appx. J. and so from day to day until the above cause is tried, to give evi- ^°°- 3 — ^- dence on behalf of the and also to bring with you and produce at the time and place aforesaid {specify documents to be produced.) Issued, &c. No. 4. Stjbpcena ad Testificandum at Sittings. (0. 35, r. 26.) (Heading as in Form 1.) George V, by the Grace of God, &c. To (the navies of three witnesses may fie inserted) greeting: We command you to attend at the sittings or Our Supreme Court for to be holden at on day the day of , 19. ., at the hour of in the noon, and so from day to day during the said sittings, until the above cause is tried, to give evidence on behalf of the Issued, &c. No. 5. SuBPCENA Duces Tecum at Sittings. (0. 35, r. 26.) (Heading as in Form 1.) George V, by the Grace of God, &c. To (the names of three witnesses may 6e inserted) greeting: We command you to attend at the sittings of the Supreme Court for , to be holden at on day the day of ..... . 19 . . , at tne hour of o'clock in the noon, and so from day to day until the above cause is tried, to give evidence on behalf of the and also to bring with you and produce at the time and place aforesaid (specify docum,ents to fee produced.) Issued, &c. No. 6. Whit of Inquiey for Assessment op Damages. (Heading as in Form 1.) George V, by the Grace of God, &c. To the Sheriff of greeting: Whereas, it has been adjudged that the plaintiff recover against the defendant damages to be assessed; Therefore, We command you, that by the oaths of twelve good and lawful men of your bailiwick you inquire what damages the plaintiff is entitled to recover under the said judgment, and that forthwith thereafter you send the inquisition which you 332 FOEMS^ — SUBPCENA. Appz. J. shall take thereupon to Our said Court, under your seal, and the No3. 6 — 9. seals of those by whose oath you take the inquisition, together with this writ. Issued, &c. No. 7. Certioeaei to County Court. (Heading as in Form 1.) George V, by the Grace of God, &c. To the Judge of the County Court for District No greeting : We, willing for certain causes to be certified of a plaint levied in our Court before you against at the suit of com- mand you that you send to Us forthwitli, in the Supreme Court, the said plaint with all things touching the same, as fully and entirely as the same remain in Our said Court before you, by whatsoever names the parties may be called therein, together with this writ, that we may further cause to be done thereupon what of right We shall see fit to be done. Issued, &c. No. 8. Certiorari (General.) (Heading as in Form 1.) George V, by the Grace of God, &c. To the greeting: We, willing for certain causes to be certified of com- mand you that you send to us in our Supreme Court on the day of the aforesaid, with all things touching the same., as fully and entirely as they remain in together with this writ, that We may further cause to be done thereupon what of right We shall see fit to be done. Issued, &c. No. 9. Prohibition. (Heading as in Form 1.) George V, by the Grace of God, &c. To the (Judge of the County Court for District No. . . and to (name of plaintiff) of greeting: Whereas we have been given to understand that you the said have (entered a plaint against) C. D. in the said Court, FORMS— SUBPOENA, 333 and that the said Court has no jurisdiction in the said (cause) Appx. j. or to hear and determine the said (plaint) hy reason that (state Nos. lo— ii . facts showing want of jurisdiction.) We therefore hereby prohibit you from further proceeding in the said (action) in the said Court. Issued, &c. No. 11. Commission to Examine Witnesses. (0. 35, r. 5.) (Heading as in Form 1.) George V, by the Grace of God, &c. To ......of and of Commissioners named by and on behalf of the and to of and of , Commissioners named by and on behalf of the greeting: Know ye, that We in con-. iidence of your prudence and fidelity have appointed you and by these presents give you power and authority to examine on interrogatories and viva voce as hereinafter mentioned witnesses on behalf of the said and respectively at be- fore you or any two of you, so that one Commissioner only on each side be present and act at the examination, and We com- mand you as follows: 1. Both the said . .... and the said shall be at liberty to examine on interrogatories and viva voce on the subject mat- ter thereof or arising out of the answers thereto such witnesses as shall be produced on their behalf, with liberty to the other party to cross-examine the said witnesses on cross-interrogatories and viva voce, the party producing any witness for examination being at liberty to re-examine him viva voce; and all such addi- tional viva voce questions, whether on examination, cross-ex- amination, or re-examination, shall be reduced into writing, and with the answers thereto shall be returned with the said Com- mission. 2. Not less than days before the examination of any witness on behalf of either of the said parties, notice in writing, signed by any one of you, the Commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination and the names of the witnesses to be examined, shall be given to the Commissioners of the other party by delivering the notice to them, or by leav- ing it at their usual place of abode or business, and if the Com- missioners or Commissioner of that party neglect to attend pur- suant to the notice, then one of you, the Commissioners of the party on whose behalf the notice is given, shall be at liberty to proceed with and take the examination of the witness or wit- nesses ex parte, and adjpurn any meeting or meetings, or con- tinue the same from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, with- out giving any further or other notice of the subsequent meeting or meetings. 3. In the event of any witness on his examination, cross- examination, or re-examination, producing any book, document. 334 FORMS SUBPOENA. Apps. J. letter, paper, or writing, and refusing for good cause to be stated ^°- ^^- in liis deposition to part witi the original thereof, then a copy thereof, or extract therefrom, certified, by the Commissioners or Commissioner present and acting, to be a true and correct copy or extract shall be annexed to the witnesses' deposition. 4. Each witness to be examined under this Commission shall be examined on oath, affirmation, or otherwise in accord- ance with his religion, by or before the Commissioners or Com- missioner present at the examination. 5. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and viva voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an interpreter or interpreters to be nominated by the Com- missioners or Commissioner present at the examination, and to be previously sworn according to his or their several religions by or before the said Commissioners or Commissioner truly to interpret the questions to be put to the witness and his answers thereto. 6. The depositions to be taken under this Commission shall be subscribed by the witness or witnesses, and by the Commis- sioners or Commissioner who shall have taken the depositions. 7. The interrogatories, cross-interrogatories, and deposi- tions, together with any documents referred to therein, or certi- fied copies thereof or extracts therefrom, shall be sent to the Prothonotary of the Supreme Court of Nova Scotia at on or before the day of enclosed in a cover under the seals or seal of the Commissioners or Commissioner. 8. Before you or any of you, in any manner act in the exe- cution hereof, you shall severally take the oath hereon indorsed, on the Holy Evangelists or otherwise in such other manner as is sanctioned by the form of your several religions and is con- sidered by you respectively to be binding on your respective consciences. In the absence of any other Commissioner, a Com- missioner may himself take the oath. And we give you or any one of you authority to administer such oath to the other or others of you. Issued, &c. WiTNESSE.s' Oath. You are true answer to make to all such questions as shall be asked you, without favor or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God. Commissioner's Oath. You (or I) shall, accordingly to the best of your (or my) Bkill and knowledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examina- tions and depositions of all and every witness and witnesses FORMS SUMMONSES AND OEDEES. 335 produced and examined by, virtue of the Commission within Appx. K. written. So help you {or me) God. No. i. Interpreter's Oath. You shall truly and faithfully, and without partiality to any or either of the parties in this cause, and to the best of your ability, interpret and translate the oath or oaths, affirmation or affirmations, which he shall administer to, and all and every the questions which shall be exhibited or put to, all and every witness and witnesses produced before and examined by the Commissioners named in the Commission within written as far forth as you are directed and employed by the said Commis- sioners, to interpret and translate the same out of the English Into the language of such witness or witnesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesses into the English language. So help you God. Clerk's Oath. You shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, write down, transcribe, and engross all and every the questions which shall be exhibited or put to all and every witness and witnesses, and also the de- positions of all and every such witness and witnesses produced before and examined by the said Commissioners named in the Commission within written, as far forth as you are directed and employed by the Commissioners to take, write down, transcribe or engross the said questions and depositions. So help you God. APPENDIX K. [SUMMONSES AND ORDERS.] No. 1. SUMMONS (general FORM.) (O. 54, r. 10.) 19. . (Here put the letter and numher.) In the Supreme Court. Between , Plaintiff. and Defendant. Let all parties concerned attend the Judge in Chambers, on day, the day of 19.., at o'clock in the noon, on the hearing of an application on the part of Dated the day of 19. . This summons was taken out by of solicitor for To 336 rOKMS SUMMONSES AND OEDEES. Appx. K. No. 1, A. No. lA — IB. General Form of Oeiginati>-g Summons. (O. 54, r. 4.) 19. . {Here put the letter and number.) In the Supreme Court. If the question to 'be determined arises in the administration of an estate or a trust entitle it also in the matter of the estate or trust. Between A. B., Plaintiff, and C. D., Defendant Let of in the County of within eight days after service of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons, which is issued upon the application of of in the county of who claims to be {state the nature of the claim,) for the determination of the following ques- tions: (State the questions.) Dated the This summons was taken out by solicitor for the above-named The defendant may appear hereto by entering appearance either personally or by solicitor at the Prothonotary's office at Halifax. Note. — If the defendant does not enter appearance within the time and at the place above-mentioned, such order will be made and proceedings taken as the Judge may think just and ex- pedient. No. 1. B. Originating Summons not Inter Parties. (0. 54, r. 4.) 19. . (Here put the letter and number.) In the Supreme Court. In the matter of the Trusts of the Will of A. B. And in the matter of the Trustee Act, (or as the case may be.) Let of in the county of within eight days after service of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons, which is issued upon the application of of in the county of ..;... for an order that (state the object of the application.) Dated the To This summons was taken out by of solicitor for the above-named FORMS — SUMMONSES AND OEDBES. 337 The respondent may appear hereto by entering appearance Appz. K. either personally or by solicitor at the Prothonotary's office at Nos. IB — 3. Halifax. Note. — If the respondent does not enter appearance within the time and at the place above mentioned, such order will he made and proceedings taken as the judge may think just and expedient. No. 1, C. Notice of Appointment to Heae Originating Summons. (O. 54, r. 4 B.) [Title, &c., as in Fornix No. 1a, Ib'.] To [insert the name of the defendant or respondent.'] Take notice that you are required to attend the Judge in Chambers at the Court House, Halifax, on day of 19 , at o'clock in the noon, for the hearing of the originating summons issued herein on the day of 19 . . , and that if you do not attend in person or by solicitor at the time and place mentioned, such order will be made and proceedings taken as the Judge may think just and expedient. (Signed) Solicitor for the Plaintiff [or Applicant]. No. 2. Oeder (General Form.) (0. 54, r. 15.) {Heading as in Form 1.) Judge in Chambers. Between and Upon hearing and upon reading the affidavit of filed the day of , 19. ., and be It is ordered and that the costs of this application Dated th •. day of 19. No. 3. Summons foe Directions Pursuant to Order XXIX. (Heading as in Form 1.) Let all the parties concerned attend the Judge in Chambers at the Court House, Halifax, on day the day of S.N.S.— 22 338 FOEMS SUMMONSES AND OEDEES. Appx. K. 19. ., at o'clock In the noon, on the hearing of an ap- Nos. 3 — 4. plication on the part of to show cause why an order for directions should not be made in this action as follows: Pleadings. Particulars. Admissions. Discovery. Interrogatories. Inspection of documents. Inspection of real or personal property. Commissions. Examination of witnesses. Place of trial. Mode of trial. Any other interlo- cutory matter or thing. Dated the day of 19 . . This summons was taken out by , solicitor for To No. 4. Ordee for Dikections Pursuant to Order XXIX. {Heading as in Form 1.) Upon hearing the solicitors on toth sides , and upon reading the affidavit of filed herein the following directions are hereby given: — Pleadings. None. Particulars. Defendant in a week to give particulars of payment 'by him to the deceased. Admissions. That the plaintiff is executor, and that the goods were supplied iy deceased to the defendant. Discovery Defendant in a week to produce letter of 1st January. 1889. Interrogatories. Plaintiff may interrogate as to payment only: interrogatories to ie initialed by me. FOEMS — SUMMONSES AND ORDBES. 339 Inspection of Plaintiff undertakes to produce pass-dook Appx. K. documents. of deceased at trial. Nos. i — 7. Inspection of real or None. personal property. Commissions. None. Examination of John Smith to 6e examined at Yarmouth witnesses. within a fortnight before examiner of the Court or special examiner to 6e named by parties, or in default by me. Place of trial. Halifax. Mode of trial. Judge. Any other interlo- Notice of trial to be given at once by cutory matter of plaintiff. thing. No. 5. Order for Time. (0. 60.) (Heading as in Form 1.) Upon hearing , and upon reading the affidavit of filed the day of , 19. ., and It is ordered that the shall have time, and that the costs of this application be Dated the i-ay of 19 . No. 6. Order Under Order XIV. (No. 1.) {Heading as in Form, 1.) Upon hearing , and upon reading the affidavit of , filed the day of , 19. ., and It is ordered that the plaintiff may sign final judgment in this action for the amount indorsed on the virrit with interest, if any, (or possession of the land in the indorsement of the writ de- scribed as ) and costs to be taxed. Dated the day of I'j. . No. 7. Order Under Order XIV. (No. 2.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed day 19 . . , and It is ordered that the defendant be at liberty to defend this action, and that the costs of this application be Dated the day of 19 . . 340 FOEMS— SUMMONSES AND OEDEKS. Appx. K. No. 8. Nos. 8 — 9A. Obdee Under Order XIV. (No. 3.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of , filed the day of 19.., and . . It is ordered that if the defendant pay into court within a week from the date of this order the sum of $ . . . , he be at liberty to defend this action, but that if that sum be not so paid the plaintiff be at liberty to sign final judgment for the amount in- dorsed on the writ of summons, with interest, if any, and costs, and that in either event the costs of this application be Dated the day of 19 . . No. 9. Order Under Order XIV. (No. 4.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of , filed the day of 19. ., and It is ordered that if the defendant pay into Court within a week from the date of this order the sum of % he be at liberty to defend this action as to the whole of the plaintiff's claim. And it is ordered that if that suxa. be not so paid the plaintiff be at liberty to sign judgment for that sum, and the defendant be at liberty to defend this action as to the residue of the plain- tiff's claim, and that the costs of this application be Dated the day of 19 . . No. 9, A. Order Under Order XIV. (No. 5.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19. ., and It is ordered that if the defendant do not pay to the plaintiff's solicitor within a week from the date of this order, the sum of..., the plaintiff is at liberty to sign judgment for' the same. And it is further ordered that the said defendant be at liberty to defend this action as to the residue of the plaintiff's claim, and that the costs of this application be costs in the action. Dated the day of 19. . SOEMS — SUMMONSES AKD OKDEKS. 341 No. 10. At>dx. K. Nos. 10 — 12A. Ordeb to Amend. (O. 28, r. 1.) (Heading as in Form 1.) Upon hearing and upon reading the aflidavit of , filed the day of 19. ., and It is ordered that the plaintiff be at liberty to amend the writ of summons in this action by and that the costs of this application be Dated the day of 19 . . No. 11. Order for Particulars (Partnership.) (0. 19, r. 7.) (Heading as in Form 1.) Upon hearing and upon reading the aflBdavit of filed the day of 19. ., and. ..... It is ordered that the furnish the with a state- ment in writing, verified by affidavit, setting forth the names of the persons constituting the members or co-partners of their firm, pursuant to the Rules of the Supreme Court, Order XLVII, A. r. 1, and that the costs of this application be Dated the day of 19 . . No. 12. Order for Particulars (General.) (O. 19, r. 7.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the. .,. . . .day of .19. ., and It Is ordered that the plaintiff deliver to the defendant an account in writing of the particulars of the plaintiff's claim in this action , and that unless such particulars be delivered within days from the date of this order all further proceed- ings be stayed until the delivery thereof, and that the costs of this application be Dated the day of 19 . . No. 12, A. Order fob Particulars of Counterclaim. (0. 19, r. 7.) (Heading as in Form, 1.) Upon hearing and upon reading the affidavit of... filed the day of 19. ., and 342 POEMS SUMMONSES AND OEDBKS. Appx. K. It is ordered that the defendant do within days Nos; 12A — 15 . deliver to the plaintiff's solicitor or agent particulars of the said defendant's set-off (counterclaim), that in default the said de- fendant be precluded from giving evidence in support thereof on the trial of this action, and that the costs of this application be. Dated the day of 19. . No. 13. Ordee for Particulars (Accident Case.) (0. 19, r. 7.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of , filed the day of 19. ., and It is ordered that the plaintiff deliver to the defendant an account in writing of the particulars of the injuries mentioned in the statement of claim, together with the time and place of the accident, and the particular acts of negligence complained of, and that unless such particulars be delivered within days from the date of this order all further proceedings in this action be stayed until the delivery thereof, and that the costs of this ap- plication be Dated the day of 19 . . No. 14. Order to Discharge or Vary on Appucation by Third Party. (0. 16, Pt. 6.) {Heading as in Form 1.) Upon hearing and upon reading the affidavit of , filed the day of 19 . . , and It is ordered that the order of in this action dated the day of i9.., be discharged {or varied by ), and that the costs of this application be Dated the day of 19 . . No. 15. Order to Dismiss for Want of Prosecution. (0. 27, r. 1.) {Heading as in Form 1.) Upon hearing and upon reading the affidavit of , filed the day of 19. ., and It is ordered that this action be for want of prosecution, dis- missed with costs to be taxed and paid to the defendant by the plaintiff, and that the costs of this application be Dated the day of 19. . FORMS — SUMMONSES AND OEDBES. 343 No- 16. Appx. K. - Nos. 16 — 18. ORDER roR Delivery of Interrogatories. (O. 30, r. 1.) " '■ (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19.., and It is ordered that the be at liberty to deliver to the interrogatories in writing, and that the said do answer the interrogatories as prescribed by Order XXX, Rules 8 and 25 of the Rules of the Supreme Court, and that the costs of this ap- plication be Dated the day of 19 . . No. 17. Order for Affidavit as to Documents. (0. 30, r. 12.) (Heading as in Form 1.) Upon hearing It is ordered that the do within days from the date of this order answer on affidavit stating what documents are or have been in possession or power relating to the matters in question in this action, and that the costs of this application be Dated the day of 19 . . No. 18. Order to Produce Documents for Inspection. (O. 30, r. 14.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19. ., and It is ordered that the do, at all seasonable times, on reasonable notice, produce at (insert place of inspection), situ- ate at the following documents, namely and that the be at liberty to inspect and peruse the documents so produced, and to take copies and abstracts thereof and extracts therefrom, at expense, and that in the meantime all further proceedings be stayed, and that the costs of this application be Dated the day of 19 . . ' 344 FOEMS SUMMONSES AND OEDEES. Appx. K. No. 19. Nos. 19 — 20. Ordeb foe Peoduction (Undeewbitees.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of , fllea the day of 19. ., and It is ordered that the do produce and show to the upon oath all insurance slips, polici s, letters of instruction, or other orders for effecting such slips, or policies, or relating to the insurance or the subject-matter of the insurance on the ship or the cargo on board thereof, or the freight thereby, and also all documents relating to the sailing or alleged loss of the said ship the cargo on board thereof and the freight thereby, and all letters and correspondence with any person or persons in any manner relating to the effecting the insurance of the said ship, the cargo on board thereof, or the freight thereby, or any other insurance whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby, on the voyage insured by, or relating to, the policy sued upon in this action, or any other policy whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby, on the same voyage. Also all correspondence between the captain or agent of the vessel and any other person, with the owner or any person or persons pre- vious to the commencement of or during the voyage upon which the alleged loss happened. Also all protests, surveys, log books, charter-parties, tradesmen's bills for repairs, average statements, letters, invoices, bills of parcels, bills of lading, manifests, ac- counts, accounts-current, accounts-sales, bills of exchange, re- ceipts, vouchers, books, documents, correspondence, papers and writings, (whether originals, duplicates, or copies respectively), which now are in the custody, possession, or power, of the his brokers, solicitors, or agents, in any way relating or referring to the matters in question in this action, with liberty for the to inspect and take copies of or extracts from the same or any of them, and that in the meantime all further proceedings be stayed, and that the costs of this application be Dated the day of 19 . . No. 20. OeDEE foe SeEVICE out of JtJEISDICTION. In the Supreme Court. The Hon. Mr. Justice Judge in Chambers. In the matter of the Judicature Act and the Rules of the Supreme Court, and in the matter of an intended action. Between , Plaintiff, and Defendant. Upon reading the affidavit of filed herein It is ordered that the intended plaintiff be at liberty to issue a writ of summons against the intended defendant. FOKMS — SUMMONSES AND OEDERS. 345 And it is further ordered that the said intended plaintiff be Appx. E. at liberty to serve [// a foreigner in a -foreign country ^°°- ^° ^^- insert "Notice of" the said writ at Here insert country or place within the limits of which the service is to Be made], or elsewhere in the , and that the time for appearance to the said writ by the said Intended defendant be within after the service of the said \_Here insert " Writ" or "Notice of" as may &e required.'] Dated the day of 19. . No. 21. Order for Substituted Service.. (0. 10.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of . . . . . .19. ., and It is ordered that service of a copy of this order, and of a copy of the writ of summons in this action, by sending the same by a prepaid post letter, addressed to the defendant at , shall be good and sufficient service of the writ. Dated the day of 19 . . No. 22. Order for Renewal of Writ. (0. 8, r. 1.) {Heading as in Form 1.) Upon hearing and upon reading the aifidavit of filed the day of , 19. ., and It is ordered that the writ in this action be renewed for six months from the date of its renewal, pursuant to the Rules of the Supreme Court, Order VIII, Rule 1. Dated the day of , 19 . . No. 23. Order for Issue of Notice Claiming Contribution. (0. 16, r. 49.) (Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19.., and It is ordered that the defendant be at liberty to issue a notice claiming over against pursuant to the Rules of the Supreme Court, Order XVI, Rule 49. Dated the day of -9. . 346 FORMS SUMMONSES AND OEDEHS. Appx. K. No. 24. No. 24. Order of Reference. (Arbitration Act.) (Heading as in Form 1.) Upon hearing and by consent It Is ordered as follows: 1. (State matters to tie referred) shall be referred to the award of 2. The arbitrator shall have all the powers as to certifying and amending of a Judge of the Supreme Court. 3. The arbitrator shall make and publish his award in writ- ing of and concerning the matters referred, ready to be delivered to the parties in difference, or such of them as require the same (or their respective personal representatives, if either of the said parties die before making of the award) on or before the next, or on or before such further day as the arbitrator may from time to time appoint and signify in writing, signed by him and indorsed on this order. 4. The said parties shall, in all things, abide by and obey the award so to be made. 5. The costs of the said cause and the costs of the reference and award shall be 6. The arbitrator may (if he think fit) examine the said parties to this cause, and their respective witnesses, upon oath or afiBrmation. 7. The said parties shall produce before the arbitrator all books, deeds, papers, and writings in their or either of their custody or power relating to the matters in difference. 8. Neither the plaintiff nor the defendant shall bring or prosecute any action against the arbitrator of or concerning the matters so to be referred. 9. If either party by affected delay or otherwise wilfully prevents the said arbitrator from making an award, he or they shall pay such costs to the other as may think reasonable and just. 10. In the event of either of the said parties disputing the validity of the said award, or moving the to set It aside, the said shall have power to remit the matters hereby referred or any or either of them to the reconsideration of the arbitrator. 11. In the event of the arbitrator declining to act or dying before he has made his award, the said parties may, or if they cannot agree, the Judge may, on application by either side, ap- point a new arbitrator. 12. Unless restrained by any order of the Court or a Judge, the party or parties in whose favour the award is made shall be at liberty within days after service of a copy of the award on the solicitor or agent of the other party to sign final judgment in accordance with the award, and tor all costs that he or they may be entitled to under this order, and under the award, to- gether with the costs of the said judgment. Dated the day of , 19. . POEMS — SUMMONSES AND OEDEKS. 347 No. 27. Appx. K. Nos. 27 — 28. Oeijer to Remove Judgment from County Court. 19. . (Here put the letter and number.) In the Supreme Court. In Chambers. In the matter of a plaint in the County Court of , holden at wherein plaintiff, and defendant. Upon reading the affidavit of filed the day of 19- -. and certified copy of the judgment in the plaint above mentioned. It is ordered that a writ of certiorari issue to remove the said judgment from the above-named County Court into the Supreme Court. Dated the day of , _^. . No. 28. Order for Arrest. (0. 44, r. 2.) On hearing and on reading the affidavit of , sworn the day of , 19 . . , and It is ordered that the defendant be arrested and imprisoned under final judgment in the action, and if such final judgment is against him, for a period of thirty days thereafter, unless and until he sooner deposits in Court the sum of $ or gives to the Sheriff or other officer arresting him a bond executed by him, and sufficient sureties in the penalty of $ or some other security satisfactory to the plaintiff, that if within thirty. days after such final judgment an order is made under " The Collection Act " for the appearance of the defendant at an ex- amination to be held thereunder and the said order for his ap- pearance has been served upon him or his sureties, or either of them, or his solicitor, at least thirty days before the time fixed in the order for his appearance, then he will appear at such ex- amination in obedience to such order, or at such adjournment of such examination as is granted upon the application of his sureties or solicitor, in his absence, or of the plaintiff, and will surrender himself to prison in case of an adjudication of im- prisonment. And it is further ordered that the Sheriff of do, within one calendar month from the date hereof, including the day of such date and not afterwards, take the defendant for the purpose aforesaid, if he shall be found in the said sheriff's bailiwick. Dated the day of 19 . . To be indorsed, as a writ of summons, with name of solici- tor procuring the same, or of plaintiff, if plaintiff is suing in person and without a solicitor. 348 FOEHS SUMMONSES AND OEDBES. No. 28, A. Appz. K. No. 28A. Bond on DEFBNDArrT's Aeeest. (0. 44, r. 5.) Know all men tiy these presents that we, C. D. (the defend- ant) of E. F. of . . .' , and G. H. of , are held and firmly bound to J. K. of High Sheriff of the County of , (or coroner of the County of ), in the sum of ? of lawful money of Canada, to be paid to the said J. K., or his certain attorney, executors, administrators," or assigns, for which payment well and truly to be made, we bind ourselves, and each of us for himself, our and every of our heirs, executors and administrators firmly by these presents, sealed with our seals and dated the day of A.D. 19. . Whereas, the above bounden, C. D., was on the day of taken by the said J. K., as sheriff (or coroner) as aforesaid, by virtue of an order for the arrest of the said C. D., bearing date the day of to the said sheriff {or coroner) delivered, in an action at the suit of A. B. And whereas, ty the said order, It is ordered that the said C. D. be arrested and imprisoned until final judgment in the action, and if such final judgment is against him until the expiration of thirty days thereafter, unless and until he sooner deposits In Court the sum of $ or gives to the said J. K., a bond executed by him and sufficient sureties in the penalty of $ , or some other security satisfactory to the plaintiff, that if within thirty days after such final judgment an order is made under " The Collection Act " for the appearance of the said C. D. at an examination to be held thereunder, and the said order for his appearance has been served upon him or upon his sureties, or either of them, or his solicitor, at least thirty days before the time fixed In the order for his appearance, then he will appear at such examination in obedience to such order, or at such adjournment of such examination as is granted upon the application of his sureties or solicitor, in his absence, or of the plaintiff, and will surrender himself to prison in case of an adjudication of imprisonment. Now the condition of this obligation is such that if an order is made under " The Collection Act ' as aforesaid for tne appear- ance of the said C. D. (the defendant) at an examination to be held thereunder, and the said order for his appearance has been served upon him or upon his sureties, or either of them, or his solicitor, at least thirty days before the time fixed in such order for his appearance, then if the said C. D. will appear at such examination in obedience to such order, or at such adjournment of such examination as is granted upon the application of his sureties or his solicitor, in his absence, or of the plaintiff, and will surrender himself to prison in case of an adjudication of imprisonment, then this obligation shall be void, otherwise to stand and reunain in full force and effect. Signed, sealed and aelivered in the presence of C. D. (L. S.) B. P. (L. S.) G. H. (L. S.) FORMS — SUMMONSES AND OEDEES. 349 No. 29. Appx. K. No3. 29 — 31. Okdee of Reference for Inquiry and Report under Ar- BiTRATioN Act. {Heading' as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19. ., and. . . . It is ordered that the following question arising in this action, namely, , he referred for inquiry and report to under section of the Arbitration Act, and that the costs of this application he * Dated the day of 19.. No. 30. Order of Reference for Trial Under Arbitration Act. {Heading as in Form 1.) Upon hearing the solicitors on both sides and upon reading the affidavit of filed herein It is ordered that the whole of this cause he tried before an official referee who shall have all the powers of certifying and amending of a Judge of the Supreme Court, . and shall direct judgment to he entered and otherwise deal with the whole action pursuant to Order XXXIV. Dated the day of 19.. No. 31. Order of Reference to Master. {Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19. ., and : It is ordered that this action [or the matters of account in this action, or the following questions in this action being mat- ters of account, namely, {stating them)'\, be referred to the certi- ficate of with all the powers as to certifying and amending of a Judge of the Supreme. Court, and that the costs of the. ..... and of the reference be in the discretion of the said , and that the costs of this application be Dated the day of 19.. 350 POEMS SUMMONSES AND OEDEES. Appx. K. No. 32. Nos. 32 — 34. Order for Examination of Witnesses Before Trial. (O. 35, r. 4.) {Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of , 19. . ,and : It is ordered that a witness on behalf of the be examined viva voce (on oath or afflrmation) before. ., Esquire, special examiner, the solicitor or agent giving to the solicitor or agent notice In writing of the time and place where the examination is to take place. And It is further ordered that the examination so taken be filed In the Prothonotary's office of the Supreme Court at , and that an authenticated copy or copies thereof may be read and given In evidence on the trial of this cause, saving all just ex- ceptions, without any further proof of the absence of the said witness than the affidavit of the solicitor or agent of the as to his belief, and that the costs of this application be Dated the day of 19. . No. 33, Short Order for Issue of Commission to Examine Wit- nesses. (O. 35, r. 5.) {Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of , 19. ., and : It is ordered that the be at liberty to issue a commis- sion for the examination of witnesses on behalf at And it is further ordered that the trial of this action be stayed until the return of the said commission, the usual long order to be drawn up, and unless agreed upon by the parties within one week to be settled by a Judge, (or as the case may 6e,) and that the costs of this application be Dated the day of , 19 . . No. 34. Long Order for Commission to Examine Witnesses. (0. 35, r. 5.) {Heading as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19. ., and, It Is ordered as follows: 1. A commission may Issue directed to of and of commissioners named by and on be- half of the and to of and commissioner FORMS — SUMMONSES AND OEDEES. 351 named by and on behalf of the for the examination upon Appx. K. interrogatories and viva voce of witnesses on behalf of the said ^<>- 34. and respectively at aforesaid before the said commissioners, or any two of them, so that one commissioner only on each side be present and act at the examination. 2. Both the said and shall be at liberty to examine upon interrogatories and viva voce upon the subject- matter thereof or arising out of the answers thereto such wit- nesses as may be produced on their behalf, with liberty to the other party to cross-examine the said witnesses upon cross-inter- rogatories and viva voce, the party producing the witness for examination being at liberty to re-examine him viva voce: and all such additional viva voce questions, whether on examination, cross-examination, or re-examination, shall be reduced into writ- ing, and with the answers thereto, returned with the said com- mission. 3. Within days from the date of this order the soli- citors or agents of the said and shall exchange the interrogatories they propose to administer to their respective witnesses and shall also within days from the exchange of such interrogatories, exchange copies of the cross-interrogatories intended to be administered to tne said witnesses. 4 days previously to the sending out of the said com- mission, the solicitor of the said shall give to the solicitor of the said notice in writing of the mail or other convey- ance by which the commission is to be sent out. 5 days previously to the examination of any witness on behalf of the said or respectively, notice in writ- ing signed by any one of the commissioners of the party on whose behalf the witness is to be examined and stating the time and place of the intendeii examination, and the names of the witnesses intended to be examined, shall be given to the com- missioners of the other party by delivering the notice to them personally, or by leaving it at their usual place of abode or busi- ness, and if the commissioners of that party neglect to attend pursuant to the notice, then one of the commissioners of the party on whose behalf the notice is given shall be at liberty to proceed with and take the examination of the witness or wit- nesses, ex parte, and adjourn any meeting or meetings, or con- tinue the same, from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, with- out giving any further or other notice of the subsequent meet- ing or meetings. 6. In the event of any witness on his examination, cross- examination, or re-examination producing any book, document, letter, paper, or writing, and refusing for good cause, to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commissioner present to be a true and correct copy or extracts, shall be annexed to the witnesses' deposition. 7. Each witness to be examined under the commission shall be examined on oath, affirmation, or otherwise, in accordance with his religion, by or before the said commissioners or com- missioner. 8. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, 352 FOEMfr — SUMMONSES AND 0EDBE8. Appx. K. and viva voce questions, if any, being previously translated into Nos. 34 — ^34A. the language with whicli lie or they is or are conversant), then ~ the examination shall be taken in English through the medium of an interpreter or interpreters, to he nominated by the commis- sioners or commissioner, and to be previously sworn according to his or their several religions by or before the said commis- sioners or commissioner truly to interpret the questions to be put to the witness or witnesses, and his and their answers thereto. 9. The depositions to be taken under and by virtue of the said commission shall be subscribed by the witness or witnesses, and by the commissioners or commissioner who shall have taken such depositions. 10. The interrogatories, cross-interrogatories, and deposi- tions, together with any documents referred to therein, or certi- fied copies thereof, or extracts therefrom, shall be sent to the Prothonotary at on or before the day of . . . ., or such further or other day as may be ordered, enclosed in a cover under the seal or seals of the said commissioners or commissioner, and certified copies thereof may be given in evidence on the trial of this action by and on behalf of the said and respec- tively, saving all just exceptions, without any other proof of the absence from this country of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the said. . . . or respectively, as to his belief of the 11. The trial of this cause is to be stayed until the return of the said commission. 12. The costs of this order, and of the commission to be issued in pursuance hereof, and of the interrogatories, cross- interrogatories, and depositions to be taken thereunder, together with any such document, copy, or extract as aforesaid, and offi- cial copies thereof, and all other costs incidental thereto, shall be Dated the day of 19.. No. 34 A. Oedbk for Issue of Request foe Commission. (0. 35, r. 5, (a.) It is ordered that a letter of request do issue directed to the proper tribunal for the examination of the following witnesses, that is to say: B. F., of G. H., of and I. J., of And it is ordered that the depositions taken pursuant there- to when received be filed at the Prothonotary 's office at and be given in evidence on the trial of this action, saving all just exceptions. And it is further ordered that the trial of this action be stayed until the said depositionf have been filed. FORMS — SUMMONSES AND OEBEES. 353 No. 34 B. Appz. K. No. SiB. Request fob Commission. (0. 35, r. 5. a.) [Heading: — To the President and Judges of, &c., dc, or as the case may 6e.] Whereas an action Is now pending in the Supreme Court in Nova Scotia, in which A. B. is plaintiff and C. D. is defendant. And in the said action the plaintiff claims (.indorsement upon writ.) And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due de- termination of the matters in dispute between the parties that the following persons should be examined as witnesses upon oath touching such matters, that is to say: E. F., of a. H., of and I. J., of. And it appearing that such witnesses are resident within the jurisdiction of your honourable Court. Now I as the Chief Justice of the said Supreme Court have the honour to request, and do hereby request that for the reasons aforesaid and for the assistance of the Supreme Court, you as the Pre'Sident and Judges of the said or some one or more of you, will be pleased to summon the said witnesses (and such other witnesses as the agents of the said plaintiff and de- fendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before some one or more of you, or such other person as according to the procedure of your Court is competent to take the examination of witnesses, and that you will cause such witnesses to be ex- amined upon the interrogatories which accompany this letter of request (or viva voce) touching the said matters in question in the presence of the agents of the plaintiff and defendant, or such of them as shall, on due notice given, attend such examination. And I further have the honour to request you that you will be pleased to cause the answers of the said witnesses to be re- duced into writing, and all books, letters, papers and documents produced upon such examination to be duly marked for identifi- cation, and that you will be further pleased to authenticate such examination by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same, together with such request in writing, if any, for the examina- tion of other witnesses, through His Majesty's Secretary of State for the Dominion of Canada at Ottawa, for transmission to the said Supreme Court in Nova Scotia. S.N.S.— 23 354 FOEMS SUMMONSES AND OHDEES. Appx. K. No. 34 C. No3. 34C — 35. Ordee foe Appointment of Special Examiner to Take Evidence Abkoad. (0. 35, r. 4.) (Heading as in Form 1.) Upon hearing the solicitors on hoth sides, and upon reading the affidavit of It is ordered that be appointed as special examiner for the purpose of taking the examination, cross-examination, and re-examination, viva voce, on oath or affirmation, of witnesses on the part of the at aforesaid. The solicitors to give to the solicitors days' notice in writ- ing of the date on which they propose to send out this order to for execution, and that days after the service of such notice the solicitors for the plaintiffs and defendants respective- ly do exchange the names of their agents at to whom notice relating to the examination of the said witnesses may he sent. And that days (exclusive of Sunday) prior to the examina- tion of any witness hereunder notice of such examination shall be given by the agent of the party on whose behalf such witness is to be examined to the agent of the other party (unless such notice be dispensed with.) And that the deposition when so taken, together with any documents referred to therein, or certi- fied copies of such documents, or of extracts therefrom, be trans- mitted by the examiner, under seal, to the Prothonotary of the Supreme Court of Nova Scotia at on or before the day of next, or such further or other day as may be ordered, there to be filed in the proper office. And that either party be at liberty to read and give such depositions in evidence on the trial of this action, saving all just exceptions. And that the trial of this action be stayed until the filing of such deposi- tions. And that the costs of and incident to this application and such examination be costs in the action. Dated the day of , 19 . . No. 35. Oedee foe BJxamination of Judgment Debtoe. (O. 40, r. 44.) 19.. [Here put the letter and number.'] In the Supreme Court. Between , Judgment Creditor, and Judgment Debtor, Upon hearing and upon reading the affidavit of filed the day of 19.., and It is ordered that the above-named judgment debtor attend and be orally examined as to whether any and what debts are owing to him, and whether the debtor has any and what other property or means of satisfying the judgment, before , at such time and place as he may appoint, and that the said judg- ment debtor produce any books or documents in his possession or power relating to the same before the said at the time of the examination. Dated the day of , 19.. FOEMS — SUMMONSES AND OEDEES. 365 No. 36. Appx. K. Kos. 36 — 37. Garnishee Ordek (Attaching Debt.) (O. 43, r. 1.) 19.. (Here put the letter and number.) In the Supreme Court. In Chambers. Between , Judgment Creditor, and Judgment Debtor, Garnishee. Upon hearing and upon reading the affidavit of filed the day of 19. ., and It is ordered that all debts owing or accruing due from the above-named garnishee to the above-named judgment debtor be attached to answer a judgment recovered against the said judg- ment debtor by the above-named judgment creditor in the Su- preme Court, on the day of 19 . ., for the sum of J. . . ., on which judgment the said sum o K H E^ S m o Ph iS..£;^ 0) £ m CQ < o ,=1 ■d ID fi . o rf O in' JJ ^ ■*-» ^ -^H •a ■3 ca o o OJ U FL| • H «■« O ■2§ & C3 " tS ■O CQ 'O ■7J- 11 3& CD 3 < CO' 3 «b 15 +3*' ■5« €© o Q all 1 W SB'S B d C 0) , i 1 = B ^ o c5 j: ■-= H Date when receivecj. i i-H cyj Appx. L. No. 13. 378 FOEMS — CHANCEET BUSINESS. Appx. Ii. No. 13. a H < H ?! 02 B Hi O o P5 111 m III C < 5§l S.S.2; II 'A d ^ FOEMS CHANCERY BUSINESS. 379 : = " ■S a 5 " o 9 c = O O o o o See = 33 a S E 3 3 o o as Appx. Ii. No. IS. 5' «' o ea b 0) J O.03 380 FORMS — CHANCERY BUSINESS. Appx. L. No. 14. No. 14. Ordinary Conditions of Sale. (0. 51, r. 7.) Conditions of Sale. 1. No person is to advance less tlian $ at each bid- ding. 2. The sale is subject to a reserved bidding for each lot which has been fixed by the Judge. 3. Each purchaser is at the time of sale o subscribe hjs name and address to his bidding, and all written notices and communications and summonses are to be deemed duly delivered to and served upon the purchaser by being left for him at such address, unless or until he is represented by a solicitor. 4. Each purchaser is at the time of sale to pay a deposit of $ per cent, on the amount of his purchase money to the person authorized to receive the same. 5. Each purchaser is upon application to pay the amount of his purchase money (after deducting the amount paid as a de- posit) on or before the day of , and if the same is not so paid, then the purchaser is to pay interest on his purchase money, including the amount of such valuation, at the rate of $ per cent, per annum from the day of to the day on which the same is actually paid. Upon payment of the purchase money in manner aforesaid, the purchaser is to be entitled to possession, or to the rents and profits, as from the day of down to which time all ( utgoings are to be paid by the vendors. 6. If any error or mis-statement snail appear to have been made in tne above particulars, sucn error or mis-statement is not to annul the sale or entitle the purchaser to be discharged from his purchase, but a compensation is to be made to or by the pur- chaser, as the case may be, and tne amount of such compensa- tion is to ue settled by the Judge at Chambers. (Add to these such conditions respecting the title and title deeds as may be necessary or proper.) Lastly. If the purchaser shall not pay his purchase money at the time above speciued, or at any other time which may be named in any order for that purpose, and in all other respects perform these conditions, an order may be made upon application at Chambers, for the re-sale of the lot purchased by such pur- chaser, and for payment: by the purchaser of the deficiency, if any, in the price which m^ay be obtained upon such re-sale and of all costs and expenses occasioned by such default. FORMS^ — CHANCBET BUSINESS. 381 No. 15. Affidavit of Result of Sale. ( 0. 55, r. 49. ) In the Supreme Court. (Title.) I, A. B., of &c., the person directed to sell the estates com- prised in the particulars hereinafter referred to, do make oath and say as follows: — 1. I did at the time and place, in the lots, and subject to the conditions specified in the particulars and conditions of sale now produced and Sx^own to me, and marked with the letter A, put up for sale by auction the estates described in such particulars. The result of such sale is truly set forth in the bidding paper marked with the letter B, now produced and shown to me. 2. The sums set forth in the second column of such bidding paper are the highest sums bid for the respective lots, the num- bers of which are set forth in the first column opposite to such respective sums, and the persons whose names are subscribed in the third column of such bidding paper as purchasers were re- spectively the highest bidders for and became the purchasers of the respective lots the numoers whereof are set opposite to such respective names in the said first column of the said bidding paper at the prices or sums set opposite to their respective names in the said second column thereof. 3. The several lots opposite to the numbers of which I have in the third column of the said bidding paper written the words "not sold" were not sold, no person having bid a sum equal to or higher than the reserved bidding fixed by the said Judge. 4. No person bid any sum whatever for either of the lots opposite the numbers of which I have in the second column of the said bidding paper written the words " no bidding." 5. The said sale was conducted by me in a fair, open and candid manner, and according to the best of my skill and judg- ment. 6. I have received the sums set forth in the fourth column ■ of the schedule hereto as deposits from the respt >,tive purchasers whose names are set forth in the tecond column of such schedule opposite the said respective sums in respect of their said respec- tive purchase moneys, leaving due in respect of the said purchase moneys the respective sums set forth in the fifth column of the said schedule. The Schedule above referred to. Appz. Xi. No. 15. No. of Lot. Name of Purchaser. Amount of pur- chase money. Amount of deposit received. Amount re- maining due. 382 FOEMS — CHANCERY BUSINESS. Appx. L. Nos. 16 — 17. No. 16. List of Debts Allowed. (O. 55, r. 49.) James v. Jones. List of Debts. No. of Entry of Claim. Names o* Creditor*' Addresses. Amounts allowed for Principal, In- terest & Costs. Total Amount due. 2 James Allen Charles Cohen John Dennis and OwenThomas Halifax, in the Coun- ty of Halifax, Sur- $100 00 4 00 2 20 Interest Windsor, in the County of Hants, (rentleman, exe- cutor of John Thomas Interest from fifth October, 1882, at $6 per cent $106 20 1 $67 00 4 20 2 20 Truro, County of Colchester, Gro- cers, and co-part- 73 40 5 $100 00 5 00 62 00 2 10 2 40 Interest from 16th October, 1882, at $6 per cent Another debt Interest 171 50 No. 17. List of Legacies Remaining Unpaid. (0. 55, r. 49.) James v. Jones. List of Legacies. Names of Legatees. . James Oliver Mary Russell Jane, the wife oi John Williams. . . Description. Son of Testator, an infant. . Interest Of Windsor, widow Interest from 1st January, 1880, the death of testator Of Halifax, Esq Paid in part Interest Amount of Princi- pal and Interest. $100 7 00 50 50 4 00 80 250 50 00 00 200 14 00 11 Total — $ Total Amount due. $107 50 54 80 FORMS CHANCEEY BUSINESS. 383 No. 18. List of Appoktionments Among Creditors or. Legatees. (0. 55, r. 49.) Apportionment among Creditors (or Legatees.) Appx. Ii. Nos. 18 — 19. Names of Creditors (or Legatees.) Addresses. Amounts before certified to be due and sub' sequent interest. $200 00 17 10 Totals due. Amounts appor- tioned. John Jones Halifax, woollen draper Subsequent interest. . $217 10 $57 10 Thomas Young and Bobert Young. . . . Truro, in the County of Colchester, Exe- cutors of William Young, deceased. . . Subsequent interest . . 200 00 17 10 217 10 Total — $ 57 40 No. 19. Receiver's Recognizance. (0. 50, r. 16.). . , of , of and of Before our Sovereign Lord the King in his Supreme Court of Nova Scotia personally appearing, do acknowledge themselves, and each of them doth acknowledge himself, to owe to Prothonotary of the said Supreme Court at the sum of , to be paid to the said or his executors, administra- tors or assigns, and unless they do pay the same they, the said do .grant, and each of them doth grant for himself, his heirs, executors and administrators, that the said sum of shall ibe levied, recovered and received of and from them and each of them, and of and from all and singular the messuages, lands, tenements, and hereditaments, goods and chattels, of them and each of them wheresoever the same shall or may be fcmnd. Witness our said Sovereign Lord Ueorge V. by the Grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, and so forth, at the day of ....... 19.. Whereas, by an order of the said Supreme Court made in a cause wherein are plaintiffs, and defendants, and dated the day of It was ordered that a proper person should be appointed to receive (or that upon the above bounden hrst giving security he hould be appointed receiver of) the rents and pro- fits of the real estate, and to collect and get in the outstanding personal estate of in the said order named. And whereas a Judge hath (approved of the said- as a proper person to 6e such receiver, and hath) approved of the above bounden 384 FORMS CHANCEET BUSINESS. Appx. li. and as sureties for the said , and hath also approved Nos. 19 — 20. of the above-written recognizance with the under-written condi- tion as a proper security to be entered Into by tho said and pursuant to the said order and Rules of the said Court in that behalf, and in testimony of such approbation the Judge hath signed an allowance in the margin hereof. Now the condition of the above-written recognizance is such that if the said do and shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the real estate, and In respect of the personal estate of the said at such periods as a Judge shall appoint, and do and shall duly pay the balances which shall from time to time be certified to be due from him as the said Court or a Judge hath directed or shall hereafter direct, then the above recognizance shall be void and of none effect, otherwise the same is to be and remain in full force and virtue. Taken and acknowledged by the above-named, &c. Wo. 20. Affidavit Verifying Receiver's Account. (O. 50, r. 20.) In the Supreme Court. (Title.) I , of , the receiveT appointed in this cause, make oath and say as follows: 1. That account marked with the letter A, produced and shown to me at the time of swearing this my affidavit, and pur- porting to be my account of tUe rents and profits of the reat estate and of the outstanding personal estate of ., the testa- tor [or intestate] in this caiise, from the day of 19.., to the.., day of 19.., both inclusive, contains a true account of all and every sum of money received by me or by any other person or persons by my order, or to my know- ledge or belief, for my use on account, or in respect of the said rents and profits accrued due on or before the said day of on an account or in respect of the said personal estate, except what is included as received in my former account [or accounts] sworn by me. 2. The several sums of money mentioned in the said ac- count, hereby verified to have been paid and allowed, have been actually and truly so paid and allowed for the several purposes in the said account mentioned. 3. The said account Is just and true in all and every the items and particulars therein contained, according to the best of my knowledge and belief. 4. W. X. and Y. Z the sureties named in the recog- nizance, dated the day of , 19.., are both alive, and neither of them has become insolvent. FOEMS CHANCERY BUSINESS. 385 No. 24. Appx. L. Nos. 24. 25. Form of Ordering Accounts and Inquiries. (O. 32, r. 7.) This Court doth order that the following accounts and in- quiry be taken and made, that is to say: 1. An account of the personal estate not specifically be- queathed of A. B., deceased, the testator in the pleadings named, come to the hands of &c. 2. An account of the testator's debts. 3. An account of the testator's funeral expenses. 4. An account of the testator's legacies and annuities (if any) given by the testator's will. 5. An inquiry what parts (if any) of the testator's said personal estate are outstanding or undisposed of. And it is ordered that the testator's personal estate not specifically bequeathed be applied in payment of his debts and funeral expenses in a due course of administration, and then in payment of the legacies and annuities (if any) given by his will. (If ordered.) And it is ordered that the following further inquiries and accounts be made and taken, that is to say: — 6. An inquiry what real estate the testator was seized of or entitled to at the time of his death. 7. An account of the rents and profits of the testator's real estate received by, &c. 8. An inquiry what incumbrances (if any) affect the testa- tor's real estate, or any and what parts thereof. (If sale ordered.) 9. An account of what is due to such incumbrancers as shall consent to the sale hereinafter directed in respect of their in- cumbrances. 10. An inquiry, what are the priorities of such last-men- tioned incumbrances. And it is ordered that the testator's real estate be sold with the approbation of the Judge, &c., &c. And it is ordered that the further consideration of this cause be adjourned, and any of the parties are to be at liberty to apply as they may be advised. No. 25. Consent to Act. (O. 36, r. 18 a.) I, A. B , of , hereby consent to act as a trus- tee of the [describe the instrument.'\ (Signed), A. B. I, C. D., , of , solicitor, hereby certify that the above-written signature is the signature of A. B., the person mentioned in the above-written consent. (Signed) C. D., solicitor for the said A. B. s.N.s. — 25 386 FOEMS CHANCEEY BUSINESS. Appx. M. APPENDIX M. Payment into and out of Court. (0. 22, r. 11.) 1. Where it is directed by the Court or a Judge that money paid into Court shall he invested, if the same is in the hands of the Prothonotary, it shall be paid over by him to the Accountant General. The Accountant General shall make the investment according to the order of the Court or a Judge, and forthwith report his doings in relation to such investment. 2. The dividends, interest, or income derived from securities In which the moneys are invested shall be placed to the same credit as that to which the money was originally paid in. 3. When securities are to be sold, assigned, or in any manner realized, the Accountant General shall, on receipt of the necessary directions, cause the necessary sale, assignment or realization to be made, and the proceeds resulting therefrom shall be placed to the credit of the cause or matter mentioned in the direction, and the Accountant General shall forthwith report to the Court or to the Judge who has made the order for the sale, assignment or realization, what he has done under such order. 4. The books kept by the Prothonotaries and by the Ac- countant General, relating to payments of money into and out of Court, shall be open at all times for inspection by such persons as the Governor-in-Council may appoint to inspect the same. 5. When money is paid into Court under an order, or by virtue of any statute, municipal ordinance, resolution or by-law, or otherwise, the Prothonotary shall deposit the same, to bear interest, in a chartered bank having an office in the city or town where the oflBce of such Prothonotary is situate, and such deposit shall bear interest at the current rate. Each deposit shall be kept separate and distinct in every cause or matter, and a separate deposit receipt taken there- for. All moneys now in Court shall forthwith be invested by the Prothonotary as in this rule hereinbefore provided. When moneys in Court which have been paid in as aforesaid are paid out to the person or persons entitled thereto, the interest accrued thereon shall also be paid out by such Prothonotary to such per- son or persons, subject, however, to a deauction by such Pro- thonotary of five per centum on such interest as compensation for handling and investing the money paid into Court. APPENDIX A. Crown Rules SUPREME COURT RULES (CROWN SIDE) IN THE SUPEEME COUET OF NOVA SCOTIA. The Judges of the Supreme Court of Nova Scotia, at a meeting called for that purpose, do hereby, in pursuance and execution of the powers and authori- ties enabling them in that behalf, order and direct as follows : 1. All existing rules or practice on the Crown side inconsistent with these rules are hereby annulled and the following Eules shall henceforth be in force. 2. No order or rule annulled by any former order shall be revived by any of these Eules, unless expressly^ so declared, and where no other provision is made by these Eules, the present procedure and practice remain in force. Custody of Eecords. 3. The Clerk of the Crown in each county shall have the care and custody of the records and other proceedings on the Crown side in that county. Date op Peocebdings. 4. Every order and other proceeding on the Crown side shall be dated of the day of the month and year on which the same was made, unless the court or a judge otherwise directs, and shall take effect accordingly. Affidavits. 5. Order XXXVI (affidavits and depositions) of the Eules of the Supreme Court shall, as far as ap- plicable, apply to all proceedings on the Crown side. The following rules shall apply to all proceedings on the Crown side : 390 CROWN EULES. 6. Affidavits used on the Crown side shall be intituled "In the Supreme Court, Crown side." 7. Every affidavit used on the Crown side shall be filed in the office of the Clerk of the Crown. There shall be indorsed on every affidavit a note showing on whose behalf it is filed, and no affidavit shall be filed or used without such note, unless the court or a judge shall otherwise direct. '8. Upon motions founded upon affidavits, either party may apply to the court or a judge for leave to make additional affidavits upon any new matter arising out of the affidavits of the opposite party; but no additional affidavits shall be used except such leave shall have been first obtained. 9. Affidavits of service shall state when, where and how, and by whom, such service was effected. Cektiorari. 10. Writs of certiorari may be allowed for re- moving proceedings into this court on motion to the court or a judge. Notice in writing of the time and place of making such motion shall be served on the opposite party at least four days before the motion is made, together with a copy of the affidavits and exhibits to be used on said motion. 11. The party intending to apply for a writ of certiorari shall, before giving notice thereof, file in the office of the Clerk of the Crown of the county where the writ is to be made returnable, a recogniz- ance with two sureties in the sum of two hundred dollars, with condition to prosecute the certiorari with eifect and without any wilful or affected delay, and to respond the judgment which shall be finally given in the matter, and pay such costs as the court or a judge shall order. Such recognizance shall be entered into before a commissioner of this court, and the sureties shall justify before a commissioner. The recognizance shall, as nearly as may be, be ir the form No. 4 in the appendix to these rules. 12. No notice of motion for a writ of certiorari shall be effectual, nor shall any writ be granted CROWN RULES. 391 thereon, unless the recognizance and atfidavits of justification shall have been filed, as prescribed by the preceding section, before the notice was given, and the same verified by affidavit. 13. No vi'rit of certiorari shall be granted, issued or allowed to remove any judgment, order, convic- tion, or other proceeding had or made by or before any judge of the County Court, stipendiary magis- trate, or justice or justices of the peace of any county, district, city, town corporate, or liberty, un- less such writ of certiorari be applied for within six calendar months next after such judgment, order, conviction, or other proceeding shall be so had or made, and unless it be proved by affidavit that the party suing forth the same has given four days' notice thereof in writing to the judge, magistrate, justice or justices, or to two of them, if more than one, by and before whom such judgment, order, con- viction, or other proceeding shall be so had or made, in order that such judge, magistrate, justice or jus- tices, may show cause, if he or they shall so think fit, against the granting, issuing or allowing such writ of certiorari. 14. No order for the issuing of a writ of certio- rari to remove any order, conviction, or inquisition, or record, or writ of habeas corpus ad subjiciendum shall be granted where the validity of any warrant, commitment, order, conviction, inquisition, or record shall be questioned, unless at the time of moving a copy of any such warrant, commitment, order, con- viction, inquisition, or record, verified by affidavit, be produced, or the absence thereof accounted for to the satisfaction of the court or a judge. 15. When cause is shown against the motion for a writ of certiorari to remove any judgment, order or conviction, the court or a judge, if he or they shall think fit, may make it a part of the order for the certiorari that the judgment, order or conviction shall be quashed on return without further order. 16. No objection on account of any omission or mistake in any judgment or order brought up upon 392 CEOWN" RULES. a return to a writ of certiorari shall be allowed, un- less such omission or mistake shall have been speci- fied in the notice of the motion for such certiorari. 17. If the motion for a writ of certiorari to remove any order, judgment or conviction into this court, or to quash the same after removal, is op- posed, the unsuccessful party shall pay the opposite party his costs of the motion, to be taxed, unless the court or a judge otherwise orders. But in criminal proceedings if such motion is unopposed the party moving shall recover no costs. 18. The writ of certiorari to remove a judgment, conviction or order shall be, as nearly as may be, in the form No. 7 in the appendix to these rules. 19. The court or a judge may direct further or additional security to be given before the writ shall issue. 20. If the person on whose behalf application is made for a certiorari to remove a judgment, convic- tion or order is in custody under any warrant oi other process issued thereon, the court or a judge may, in granting the order for the writ of certiorari, or at any time after said order is granted, after no- tice of the application to the opposite party, order him to be discharged from custody, on his giving such security as the court or judge shall direct, that if the said judgment, conviction or order is confirmed or the writ of certiorari quashed, he will comply with the provisions thereof and pay the fine or penalty imposed, and in case of imprisonment without fine that he will forthwith surrender himself into the same custody and undergo the remainder of his im- prisonment, notwithstanding the term limited for his imprisonment shall have expired. If the recogniz- ance shall be forfeited, a warrant for the apprehen- sion of the defendant may be granted by a judge, which shall authorize his arrest and imprisonment for the unexpired term. Information, Indictments, &c, 21. Every indictment found by the grand jury in the Supreme Court, may, if necessary, be certified CROWN RULES. 393 to a judge, in order that such judge may (if he thinks proper) immediately issue his warrant for the ap- prehending of the defendant. 22. If any defendant in any information depend- ing in the Supreme Court shall be committed to prison, and detained for want of bail for his appear- ance to such information until the end of the sittings next following such commitment, and the prosecutor of such information shall not proceed within that time, such defendant shall, after the expiration thereof, be discharged by order of the court or a judge, upon entering a common appearance to the said information (unless good cause shall be shown to the contrary) ; eight days' notice shall be given by the defendant or his solicitor of his intention to apply for such order. 23. If any such defendant is convicted upon any such information as in the last preceding rule men- tioned, and is afterwards committed or detained for want of bail, the prosecutor shall cause him to be brought up for judgment within eight days after the time limited by Eule 96, for moving for a new trial if the court be then sitting, and if the court be not sit- ting, within the first eight days of the sitting next after that in which the trial was had, and in default of his doing so within that time, or within such fur- ther time as may have been granted by the court or a judge for that purpose, the defendant may, on application to the court, be discharged on his own recognizance. 24. With the exception of ex-officio informa- tions filed by the Attorney-General on behalf of the Crown, no criminal information or information in the nature of a quo warranto shall be exhibited, re- ceived, or filed without express order of the court, nor shall any process be issued upon any informa- tion other than an ex-officio information, until the person procuring such information to be exhibited shall have filed at the office of the clerk of the Crown a recognizance with two sureties who shall justify by afiidavit in the penalty of $200 effectually to pro- secute such information, and to abide by and observe such orders as the court shall direct, such recogniz- 394: OEOWN HULES. ance to be entered into before a commissioner of the Supreme Court. 25. No application shall be made for a criminal information against a justice of the peace, stipen- diary magistrate or police magistrate, for miscon- duct in his magisterial capacity unless a notice con- taining a distinct statement of the grievances, or acts of misconduct complained of, be served personally upon him, or left at his residence with some member of his household, six days before the time named in it for making the application. 26. The application for a criminal information shall be made to the Supreme Court by a motion after ten days' notice thereof in writing, and within a reasonable time after the oifence complained of, and if the application be made against a magistrate or justice of the peace for misconduct in his magis- terial capacity, the applicant must depose on affida- vit to his belief that the defendant was actuated by corrupt motives, and further, if for an unjust con- viction, that the defendant is innocent of the charge. 27. If the prosecutor on any information not ex- officio does not proceed to trial within a year after issue joined, or if the prosecutor causes a nolle pro- sequi to be entered, or if the defendant be acquitted (unless the judge at the time of trial certifies that there was reasonable cause for the information), the court, on motion for the same, may award the defen- dant his costs to the amount of the recognizance entered into by the prosecutor on filing the informa- tion. 28. If on any indictment or information in the Supreme Court by a private prosecutor for the pub- lication of any defamatory libel, judgment shall be given for the defendant, he shall be entitled to re- cover from the prosecutor the costs sustained by the said defendant by reason of such indictment or in- formation, and upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to re- cover from the defendant the costs sustained by the prosecutor by reason of such plea. CEOWN RULES. 395 Quo Warranto. 29. Every application for an information in the nature of a quo tvarranto shall be by motion to the court after ten days' notice in writing, unless the same be ex-officio. 30. The notice shall set forth the name and de- scription of the applicant, and a statement of the grounds of the application, and the applicant shall deliver with the notice, on service thereof, a copy of the affidavits whereby the application will be sup- ported. 31. No order for tiling any information in the nature of a quo ivarranto shall be granted, unless at the time of moving an affidavit be produced by which some person shall depose upon oath that such motion is made at his instance as relator; and such person shall be deemed to be the relator in case such order shall be made, and shall be named as such relator in such information in case the same shall be filed, un- less the court otherwise orders. 32. Every objection intended to be made to the title of a defendant on an information in the nature of a quo warranto, shall be specified in the notice of motion, and no objection not so specified shall be raised by the relator on the pleadings without the special leave of the court or a judge. 33. The court may refuse the motion for an in- formation in the nature of a quo warranto with or without costs, and in its discretion may, upon such notice as may be just, direct the costs to be paid by the solicitor or other parties joined in the affidavits in support of the application, although he be not the proposed relator. 34. A new relator may, by leave of the court, on notice of motion, be substituted for the one who first enters into the recognizance on special circum- stances being shown. 35. Where several notices of motion for infor- mation in the nature of quo warranto have been given against several persons for the usurpation of 396 CBOWN" RULES. the same offices, and all upon the same grounds of objection, the court may order such motions to be consolidated, and only one information to be filed in respect of all of them, or may order all proceedings to be stayed upon all but one, until judgment be given in that one, provided always that no order be made to consolidate or stay any proceedings against any defendant unless he give an undertaking to dis- claim, if judgment be given for the Crown upon the information which proceeds. 36. If a defendant on an information in the na- ture of qiio warranto does not intend to defend, he may, to prevent judgment by default, enter a dis- claimer at the office of the Clerk of the Crown, and file a copy there, and deliver another copy to the re- lator or his solicitor. Upon the disclaimer being filed, judgment of ouster may be entered and the costs taxed as in judgment by default. Mandamus. . 37. Application for a prerogative writ of man- damus shall, during the session, be made to the court after ten days ' notice of the motion, and in the vaca- tion to a judge in chambers for a summons to show cause, upon its being shown to the satisfaction of such judge that the matter is urgent. 38. Notice shall be given of the motion for a mandamus to every person who, by the affidavits on which the motion is made, shall appear to be inter- ested or likely to be affected by the proceedings. The court or a judge may direct notice to be given to any other person or persons, and adjourn the hearing for that purpose. 39. Any person, whether he has had notice or not, who can make it appear to the court or a judge that he is affected by the proceeding for a writ of mandamus, may show cause against the motion or summons, and shall be liable to costs in the discre- tion of the court or a judge, if the order should be made or the prosecutor obtain judgment. 40. The order for a mandamus need not be served, but the cost of service of the order may be CROWN RULES. 397 allowed, in the discretion of the taxing officer, where the writ is not issued. 41. If the writ of mandamus is directed to one person only, the original must be personally served upon such person, but if the writ be directed to more than one, the original shall be shown to each one at the time of service ; and a copy served on all but one, and the original delivered to such one. 42. When a writ of mandamus is directed to companies, corporations, justices, or public bodies, service shall be made upon such and so many per- sons as are competent to do the act required to be done, the original being delivered to one of such per- sons, except where by statute service on the clerk or some other officer is made sufficient service. 43. The court or a judge may, if they or he shall think fit, order that any writ of mandamus shall be peremptory in the first instance. 44. Every writ of mandamus shall bear date on the day when it is issued. The writ may be made returnable forthwith, or time may be allowed to re- turn it, either with or without terms, as the court thinks fit. A writ of mandamus shall be in the form in the Appendix No. 20, with such variations as cir- cumstances may require. 45. Any person by law compellable to make any return to a writ of mandamus shall make his return to the first writ. 46. The court may order any return tp a writ of mandamus to be quashed on the ground that it is frivolous or vexatious, and if the return be to the first writ of mandamus may thereupon award a per- emptory writ of mandamus ; if such return be to the second writ of mandamus, the court may order a writ of attachment to issue or commit the defendant for contempt. 47. Where a point of law is raised in answer to a return or any other pleading in mandamus, and there is no issue of fact to be decided, the court shall, on the argument of the point of law, give judgment 39i. Case before counsel, 54. Duties of pauper's solicitor, 55. Freedom from Court fees, 55. Prohibition as to giving or taking fees, 55. Rules as to proceedings as, 53-56. Suing as, 53. Taxation of costs of, 56. PAYMENT. Of disputed chose in action, debtor, trustee, &c., may pay the same Into Supreme Court, 9. The manner of payment into and out of Court to be subject to regulations in Appendix M. 83. PAYMENT INTO AND OUT OF COURT AND TENDER. Acceptance by plaintiff in satisfaction, 82-85. time limited for, 82. notice to defendant, 82. ' form, 82-269. 570 INDEX — THE JUDICATURE ACT. PAYMENT INTO AND OUT OF COURT AND TENDER— Continued. Application to convert stock, &c., 85. By one or some of several defendants, 82. Claim satisfied by payment to be specified, 79. Costs taxed, 80-81. Counter-claims, payment may be made by plaintiff or defendant, 83. Debt or pecuniary damages, 79, 80. Execution to enforce payment, 142. How appropriated, 83. made, ,79. In consolidated actions, 82. Infant, money paid on account of, 84. Interim order for payment in, 175, Judgment for costs after acceptance, 82. form of judgment, 318. Jury not to be informed of, 85. Lien claimed, payment into Court ordered, 177, 178. Money to remain in Court if not accepted, 81. of persons under disability, 84. bow invested, 85. paid ifii previous to Rules, 82; 83. subject to control of Court, 85. Notice of payment (before defence), 79. form of, 85-268. of acceptance in satisfaction, 80-82. form of, 269. Payment into Court, how appropriated, 83. out to plaintiff, 80. solicitor on written authority, 79, 80. to be pleaded in defence, 80. Person of unsound mind, money paid on account of, 84. Plaintiff may accept or refuse, 81. Provisions relating to payment of money into and out of Court deemed to be provisions relating to practice and procedure, 22. Rules in Appendix M., 83. Signing judgment for costs if not paid, 82, 83. Taxation for costs after acceptance in full satisfaction, 82, 83. Tender, 79. Time for payment, 80. limited for acceptance in satisfaction, 82. When admissible, 80. Where lien claimed, payment into ordered, 177, 178. With leave after defence, 80. Appendix M., 386. Accountant-General to invest according to order of Court or Judge and report, 386. Books to be kept by prothonotary and Accountant-General, 386. Books to be kept by prothonotary and Accountant^General to be open to inspection, 386. Report to be made annually by prothonotary and Accountant- General, 386. When money is to be invested, prothonotary shall pay over to Accountant-General, 386. When securities are to be sold, &c., Accountant-General to carry out directions and report, 386. PENALTY. Leave to compound penal action, 178. Notice when part goes to the Crown, 178. Order to compound, what to state, 179. Crown's half, how appropriated, 179. INDEX THE JUDICATURE ACT. 571 PENDING ACTION. Confession of defence, 87. form, 269. Pleading matters arising, 87. before statement of claim, 87. after statement of claim, 87. PENDING APPLICATION. May b« turned into motion for judgment, when, 139, 140. PERISHABLE GOODS. Power to make order for sale of, 163-164, 176. PERSONAL PROPERTY WITHIN THE JURISDICTION. Meaning of, 35. PERPETUATION OP TESTIMONY. Action to perpetuate testimony, 130. Attorney-General may be made defendant, 130. No examination before action, 130. Trial not necessary, 130. PERSON. Interpretation of term, 250. PERSONAL REPRESENTATIVE. May be made party to action or served with notice in case of death of any of the parties to an action, 62, 63. PETITION. Address for service on, 28. Evidence on, by afladavit, 131. Exception of petitions from certain rules of pleading, 70, 71. For purchase money to be paid into and out of Court, 189. Hours for serving, 233. In cases of appeal not to be necessary, 218. Interval between service and hearing, 188. Mode of serving, 246-248. No new pleading except petition or summons, 70-72. Persons to be served, statement of, 188. " Petitioner " includes applicant by. motion or summons, 1. " Plaintiff " includes petitioner, 250. " Pleading " includ-es petition, 2. Service, 246, 247. PETITIONER. Definition of, 1. PLAINTIFF. Definition of, 1. PLEADING. Abatement, plea In, abolished, 78. Admissions of facts not denied, 70, 71. denial to be specific, or by necessary implication, 70. except as against infants and lunatics, 70. All facts must be pleaded to prevent surprise, 71. Alternative reliance on several contracts or relief, 72. Amendment of pleading, 73, 93-95. Bankruptcy of parties, '90. Burden of proof, 73. Claim, statement of, 74, 75. Close of pleadings, 86. by default of pleadings, 92. Condition of mind, 72. 572 INDEX THE JUDICATURE ACT. PLEADING — Continued. Conditions precedent need not be averred, 71. Confession of defence, 87. Consideration for bill of exchange, 72. Contents of, 69. Contracts implied from letters, conversations or circumstances. 72. contract to be alleged as a fact with general reference 72. Copies delivered on entry for trial, 116. to be certified by prothonotary, 116. Costs: confession of defence arising after action brought, 87. facts improperly denied or admitted, 77. proxlixity of, 88. Counter-claim, 69, 77-78. Dates to be in figures, 69. Damage, special, need not be alleged in certain cases, 73. Default of, 90, 91, 92. Death of party, 62. Defence, 76-79. Definition of, 2. Delivery of, 70. amended pleadings, 93. by filing it no appearance entered, 70. copy of pleadings at trial to prothonotary, 116. defence, 69-76. ■ in manner now in use, 70. reply, 69-86. statement of claim,- 68, 74, 75, vacation, 222, 223. Demurrer abolished, 88. Denial must be specific, 71. answer point of substance, 72. not to be evasive, 72. of contract, 72. representative character to be specific, 76. Discontinuance, 89. Documents, contents of, 72, disclosed in pleadings must be produced, 100. Embarrassing to be struck out, 73. Evasive denials, 72. Evidence not to be stated, 69. Executor, character as, to be specifically denied, 76. Pacts not denied specifically taken to be admitted, 70. except as against infants and lunatics, 70. only to be stated, 69. relied on to be raised, 71. arising pendente lite, 87. confession of, by plaintiff, 87. costs, 87. counter-claim, 86. further defence or reply, 86. Figures and not words, 69. Filing, in what cases, 70-72. Forms of pleadings in various actions. Appendix C, D., E., 278-299, 309-313. Fraud, particulars in, 69. Fraudulent intention, 69. Further and better particulars, 70. Implied contract or relation, 72. INDEX THE JUDICATURE ACT. 573 PLEADING — Continued. Includes petition and summons, 2. Inconsistent facts, with previous pleadings, 70. Interpretation of term, 2. Issues of fact settled, 109. Joinder of causes of action, 65. issue, 71. close of pleadings by, 87. no pleading after reply without leave, 86. Joinder of parties, 48. Knowledge, 72. Land, action to recover. See Land. Leave to deliver after reply, 86. further defence or reply, 87. Legality or sufficiency in law must be denied, 72. Mandamus, 189. Marking, pleadings with: date of delivery, 70. description of pleading, 70. letter and number, 70. title of action, 70. Marriage of party, 62, 63. Material facts to be stated, 69. Matters arising after action brought, 87. Must be consistent with previous case, 71. New assignment abolished, 86. amendment instead of, 86. New grounds of claim only by amendment, 70, 71. No technical objections to, 73. Not guilty by statute, 70. no other defence without leave, 70. Notice to be alleged without the form, 73. Numerical figures, 69. Paragraphs number-ed, 69. Particulars in certain cases, 69. Payment into Court, 79-86. Pendente lite, matters arising, 87. Possession of defendant in action for land, 78. Preliminary question of law, 110. Presumption of fact, 73. law, 71. Printed or written, or partly printed and partly written, 70. Prohibition, 248. Prolixity, costs incurred, 68-241. Release must be pleaded, 71. Relief must be specifically stated, 75. Reply, 86-87. Right as executor to denial specifically, 76. Rules substituted for old rules, 68. may be made regulating, 21. for payment of money into and out of Court, 83. Set-off, 69, 76, 78. Setting aside judgment by default, 93. Signature of solicitor or party necessary, 69. Slanderous words spoken of a woman, 73. Special damages need not be alleged in certain cases, 73. Specific denials, 71. Statements in, to be in a summary form, 69. brief, 69. Statement of claim, 74, 75. 574 INDEX — THE JUDICATURE ACT. PLEADING — 'Continued. -Statement of defence, 76-79. reply, 109-112. Stating evidence, improper,' 69. . material facts sufficient, 69. Statute of Frauds, 71, 72. Limitations, 71. Striking out counter-claims, 69. defence, 89-103. pleadings, 73. iSubsequent to reply, time for, 85. leave required, 86. Sums to be in figures, 69. Technical objections not allowed on grounds of form, 73. Third parties, 6, 59, 63. Time for: after particulars, 70. amendment, 93, 94. close of pleadings, 87. counter-claim, amendment of, 93. reply to, 78. delivery of defence, 76-79. reply, 86. statement of claim, 74, 75. enlargement of, 232. set-off, amendment of, 93. Trial,' delivery of pleadings on entry for, 116. without pleadings, 67, 68. Undue influence, particulars in, 69. Vacation, 222. ■What tacts must be pleaded, 71. ■Written or printed, 70. ■Wilful default, particulars in, 69. "Woman, slanderous words spoken of, 73. Written alteration by way of amendment, 95. POINT OP LA^W. How raised, 88. POOR PERSONS. Proceedings by or against, 53-56. POSSESSION. Affidavit of service of Judgment before issuing writ of, 174. Effect of writ of, 174. Mortgagor may sue for, if no notice from mortgagee to take, 8. Service of writ, where vacant possession, 31, 32. ■Writ of possession, 174. POSTING UP. In place of service, 247. POUNDAGE. To be levied under writ of execution, 144. PRECIPES. Forms of (Appendix G.), 319-323. PRECEDENCE. Of Chief Justice, 3. Other Judges, 3. Vacancy in office of Chief Justice, 251. PRELIMINARY. Questions of law may be heard prior to trial, 110. ■ INDEX THE JDDIOATUEE ACT. 575' PRESERVATION OF PROPERTY. See Interlocutory Order, 175. PRINTING. Evidence and documents to be used at argument, 226, 227. Pleadings may be printed or written, or partly printed and partly written, 70. Rules for printing case for argument, 226, 227. Special case, 109. Term "Case" in Rule (797) to include appeal papers, orders, minutes of evidence, case stated, affidavits, exhibits, report trial, and all other matter for argument, 228. PROCEDURE. Additional Rules may be made by Judges, 21, 22. Chambers, 190-193. Chancery Chambers, 197-213. Divorce or other matrimonial causes, 248.* Effect of non-compliance, 249. Existing, to remain in force where no provision made by Act or Rules, 251. Practice or procedure in criminal proceedings unaffected, 247. Prohibition, 248. Provisions of the Act and Rules to receive liberal construction, 23 Referees, procedure before regulated, 23. Supreme Court forms and methods of procedure in force previous to first of October, 1884, when not inconsistent with Act or Rules, may continue to be used, 19. Trial by jury, 18, 19, 113. PROCEEDINGS. Action, other than, 21. Amendment, if defect or error in, 95. Other than action, 21. PRODUCTION OP DOCUMENTS. Before examiner, 123 128. For inspection, 100. Notice to produce, 107. Subpoena duces tecum, 128-130. forms of, 330, 331. See Discovery and Inspection, 98-105. PROHIBITION. Application of certain rules to, 248. Cause in Supreme Court not to be restrained by, 7. Form of writ, 332. Injunction may be granted by interlocutory order of the Court, 10. Pleadings in, 248. PROLIXITY. Costs of in writs and indorsements, 26. in affidavits, 131, 132. discretion of taxing authority, 241, 242. pleadings, 68-70. title. of affidavits, 131, 132. Pleading to be a summary statement, 69. PROMISSORY NOTE. Action on, writ may be specially indorsed, 27. All- or any persons severally, or jointly and severally, liable on may be joined as parties, 49. Form of statement of claim, 286. 516 IXDEX THE JUDICATUEE ACT. PROMISSORY 'NOTE— Continued. Form of defence, 303, 304. See Bills of Exchange. PROPERTY. Absent or absconding debtors, 163. ■Detention, preservation and inspection of, 175, 176. Interim preservation of, 175. Sale of perishable, 175. stock or goods of perishable nature of absent or abscond- debtor, 163, 164. Where property to be replevied is concealed, 161, 162. PROTHONOTARY. Definition of term, 250. Duty of with decision, 19. to furnish bill of items when required, 238. To group causes foi* argument before Court at Halifax, 224. examine bills of costs, 238. keep record of attachments, 155, 156. When may tax costs, 238. See Officers and their Documents, 229-231. QUESTIONS OP PACT. Consent to pay money and costs on findings. 111. Entry of judgment on findings, 112. Issues by consent and order. 111, 112. Jury may be required to answer in certain cases, 20. May be referred by Judge in certain cases, 18-20. Recording proceedings on issue, 111. Witiout pleadings, 111, 112. QUESTIONS OF LAW. Abolition of demurrer, 88. Judgment wrongly entered on findings of fact, 138. New trial for misdirection, 136. Proceedings in lieu of demurrer, 136. Special case raising questions of law, 109, 110. See also Law. QUORUM OF COURT. Four Judges to constitute, 223. REAL ESTATE. Allowance of income out of, 178. Amendments of law as to, 8. Bound by a judgment or mortgage, situate in adjoining counties, 185. Conduct of sale of, 178. Foreclosure, partition, &c., 42-183. Infants, estate of, 181, 182. Heir-at-law as party to action, 50, 56, 59. Legatee with charge on, 57. Lunatics, estate of, 181, 182. Mesne profits and damages, 42. Recovery of, 42. .Sales of, 182. Situate in adjoining counties, 182-185. Nova Scotia, service on defendant out of jurisdiction 32-34. Writ of possession, 174. See Chancery Chambers, 197-213. INDEX — THE JUDICATnEE ,ACT. 577 RECEIVER. Application ex parte to appoint, 10-177. Appointment of, matters to be considered, 179. Adjournment for security to he given, 179. Deposit of completed accounts in prothonotary's office, 181. Form of accounts. (No. 13, Appendix L.), 377-379. statement of claim for, 279-283, Indorsement of claim for, 27. Interlocutory order for, 10, 176. Passing accounts by, 180. Penalty for neglect, 180. Power to appoint, 10. Security to be given by, 179. form of. (No. 19, Appendix L.), 383. Verification of accounts, 180. form of (No. 20, Appendix L.), 384. RECORD. Entry of findings of fact, and certificates of Judge at trial, 93. Supreme Court to continue to be a Court of, 4. WitMrawal of, 89. RECTIFICATION. Statement of claim in action for, 283. REFEREES. Adoption or variation of certificate on further consideration, 210, 211. Authority of referee, 210. Control of Court over referee, 210, 211. Dying, declining to act, &c., 109. Discretion as to costs, 121. Effect of findings or certificate, 211. Evidence and procedure before, 211. Forms of orders of reference, 347-349. G-enerally, provisions respecting, 210-213. Judge may appoint in case of death, refusal to act, &c., 109. Motion to set aside certificate of, 212. limit of time for, 212. No authority to commit, 120. Notice of referee's report, 121. Official referees, appointment of, 23. Power to direct judgment to be entered, 120, 138. form of judgment, 316. submit questions to Court, 120. as to discovery, 120. to order trial before special or official, 113. Report of referee, 120. To sit de die in dieTn, 120. Trial and proceedings before, 120. REFEREES IN CHANCERY CHAMBERS. Accounts, &c., may be referred, 210. how taken, 210. Certificate, form of, 211, 212, 371, may be prepared by solicitor, 211. in case of account, 212. to be filed, 212. discharge of, 212. Chief clerk in England, to take place of, 210. Computation by, may be acted upon without order, 211. s.N.s. — 37 578 INDEX— THE JUDICATURE ACT. REFEREES IN CHANCERY CHAMBERS — Continued. Opinion of Judge may be taken, 212. Parties and witnesses bound to attend, &c., 211. Powers of, 210. RELIEF. All remedies to be granted and multiplicity of suits avoided, 7. Equitable to plaintiffs and defendants, 5. Common law rlgbts, recognition of, 7. Counter-claim and tblrd parties, 6. Indorsement on writ of relief claimed, 27. Power to grant relief to defendant and third parties, 6. Separate causes of complaint, 75. See Execution. Interpleader. RENEWAL OF WRIT, 32. Evidence of, 32. Execution, 142. evidence of, 146. Form of memorandum for, 31, 257. notice of, 276. order for, 345. prsecipe for renewal, 323. Leave to renew within twelve months, 32. Lost writ, 32. Renewal for six months, 31. RENTS. Form of statement of claim for, 262. Mortgagors, in certain cases, may sue for, 8. REPEAL. Powers of Court to, 21, 22. REPEALED RULE. When not revived, 251. REPLEVIN, 160-163. Affidavit for, to be filed before issue of order, 161. form of, 161, 362. Bond to sheriff, 161. form of, 161, 363. Defendant may retain possession on giving security, 163. Form of bond to retain property, 363. Order of, form of, 362. Return to order, what to contain, 162. Search of defendant's person and premises, 162. Service of order, 161. when to be made, 161. Sheriff's duty, on receipt of order, 161. When property concealed, building may be broken open after de- mand, 162. Writ abolished, order substituted, 160. form of order, 362. REPLY AND SUBSEQUENT PLEADINGS. Amendment to supersede new assignment, 86. Forms, 310. Leave necessary after reply, 86. New assignment abolished, 86. Pleadings closed on joinder of Issue, 86. Time for pleadings after reply, 86. limited for reply, 86. Where counter claim pleaded, 86, INDEX — THE JUDICATUEE ACT. 579 REPRESENTATIVE. Action by, on behalf of estate, 49. Deceased person, 49, 56, 57. Denial of representative capacity, 76. Heir-at-law, 46, 48, 56, 59. Next of kin, 56-57. Representative action, 49. Writ by or against, 27. RETURN. , Notice to sheriff, if not complied with, to entitle person to apply for order for commltal, 187. Service of writ of summons, before whom sworn, 33. RULES FOR THE CONCURRENT ADMINISTRATION OP LAW AND EQUITY. (1) Plaintiff to be entitled to relief on equitable grounds, 5. (2) Defendant to be entitled to relief on equitable grounds, 5. (3) counter-claims and third parties, 5. (4) Equities appearing incidentally, 6. (5) Defence or stay of proceedings instead of injunction or pro- . hibition, 7. (6) Common law and statutory rights and duties, 7. (7) Complete justice to be done in every case as far as possible, 7. RULES OF COURT. Court or majority of Judges present at any meeting for that pur- pose held, may annul or alter and amend and make further or additional Rules of Court, 21. Particularly : (1) To regulate sittings of Court and Judges in chambers, 21. (2) the pleading, practice and procedure, and the rules of law in certain cases, 21. (3) For the providing of juries, 21. (4) For hearing of appeals, matters brought up by writs of certiorari from Courts or officers; hearing and arguments of motions or appeals from any one Judge; for regulating the selection of Judges to hear arguments on appeals, or motions; and for regulating practice on such arguments, 21. (5) Relating to payment into or out of Court, what deemed to be, 22. (6) Generally to regulate practice and procedure, costs and matters deemed expedient for the better attaining the ends of justice, 22. Interpretation of term " Rules," 1. Judges to continue to have power to make Rules, 22. May modify Statutes in certain cases, 22. Official referees, 23. Repealed on address of Legislature, 23. Rules of 1884 not to affect criminal or divorce proceedings, 248. To be laid before Legislature, 22. published In Royal Gazette, 22. regulate distribution of business, 21. duties of officers of Court, 21. have force after publication in Royal Gazette, 22. RULES OF LAW. Upon certain points declared, viz.: (1) Statute of Limitations inapplicable to express trusts, 8. (2) Equitable waste, 8. (3) Merger, 8. 580 INDEX— THE JUDICATURE ACT. RULES OF LiAW— Continued. (4) Suits for recovery of land, rents, &c., by mortgagors, 8. (5) Assignment of debts and clioses in action, 8-9. (6) Stipulations not of the essence of contracts, 10. (7) Mandamus, injunctions and receivers, 10. (8) Custody of infants, 10. (9) Cases of conflict not enumerated, 10. RULES NISI. Abolished in actions, 186. certain other cases, 186. motions for new trial, 90. SALE. In interpleader, 216. Debenture holders action, 183. Judge to approve sale, and all parties to join, 184. Of goods of a perishable nature, 164-176. property, sale by auction or private contract, 198. Power to order sale of real estate, 184. Sales by the Court, 181-185. Title may be referred to counsel, 184. Under will, administrations, execution of trust, &c., 178. Value to be fixed by affidavit, 184. SALES BY THE COURT. Foreclosure: Assignment of property and delivery of documents, 184. Deficiency, judgment for, 185. Property in adjoining counties, 185. Sales of mortgaged property, how ordered in behalf of sub- sequent encumbrancers, 184. Sheriff or person appointed, sale to be by 184. Surplus, distribution of, 185. Generally: Affidavits as to value, 184. General power to order sale of real estate, 183. Judge to approve sale, and all parties to join, 184. Title may be referred to counsel, 184. Lunatics' and infants' estates: Effect of order for sale, 181. conveyance, 181. sale, 181. Proceedings as to real estate of lunatics, infants, &c., 181-183. Proceeds of sale under order, how disposed of, 181, 182. SAMPLES. Order to take, 176. SATISFACTION PIECE. Form of, 142, 319. How signed, 142. SCANDALOUS MATTER. May be ordered to be struck out of any statement, 73. Objection to answering interrogatories containing, 99. Restriction on cross-examination, 119. Striking out from affidavits, 132. pleadings, 73. SEALS. Authentication of documents and copies by prothonotary's seal, 229. Of prothonotaries, 229. the Supreme Court, 2. INDEX THE JUDICATURE ACT. 581 SEARCH. Certificate of proceedings by prothonotary, 229. Indexes to files or bundles of all documents open to public, 230. Prothonotary to keep proper books open to public, 230. SECURITIES. Appeal security on, how regulated, 220. Assignment of, to sureties, 9. Before execution against absent or absconding debtors, 168. Bond on arrest under capias, 158. to sheriff on replevin, 161. How plaintiff may obtain security in suits against absent debtors, 169. Security to retain property replevied, 163. Transfer by execution, 149. When made to prothonotary as obligee, how enforced, 231. SECURITY FOR COSTS. Amount, time, manner and form, 235. Court or Judge shall direct deposit or security on appeal, 220. may direct security in case of subsequent attachers, 164. Security by bond to party, 236. of guarantee company, 245. not to contain certain conditions, 246. Time for, how computed, 233. Where plaintiff resides out of Nova Scotia, 235. SEDUCTION. Form of claim for, 296. Trial of, by jury, 18-19. SEQUESTRATION. Corporation, judgment against enforced by, 143. Disobedience to order to do act within limited time, 152. Effect of writ of, 152. Form of praecipe for writ of, 319. writ of, 327. Judgment for recovery of certain property Enforced by, 142, 143. Not to be issued for costs without leave, 153. Payment of money into Court enforced by, 152. Proceeds dealt with as formerly in chancery, 152. SERVICE. Acceptance of service by solicitor, 32. Attachment for not entering appearance, 38. Address for service; . defendant appearing in person, 37. defendant's solicitor, 37. illusory address set aside, 37, plaintiff's address, 28, 29. proceedings may be posted up in certain cases, 37. Affidavit of service: day of service to be mentioned in, 33. before whom sworn in certain cases, 33. default of appearance, on, 40. form of affidavit of service, 276. what to state, 218. Appeal, service of notice of, 218. Body of persons, on, 33. Contribution, service of notice of claim for, 59, 60. Corporations, on, 33. Counterclaim, service of order on third party affected by, 77. 582 INDEX THE JUDICATUlfE ACT. SERVICE— Continued. Court notices, may be sent by post, 247. Date of, to be indorsed on writ, 33. Defendants added, service on, 51, 52. Dwelling-house, service at, 33, 39, 40. Filing to be service in case of non-app-earance, 70. Garnishee, on, 154. of order on to bind debts, 153. Guardian, on, 33. Hours for effecting, 233. Husband and wife, on, 32. Indorsement of time of, 33. Infant, on, 32. Inspection, service of order for, 103. Intervening- party, on, 77. Land, action to recover, service in, 33. Lunatic, on, 32. not so found, 32. New trial, service of order to show cause, 136. Notice in lieu of writ, service of, 36. Notice of motion: attachment of debts, notice for, 153. before appearance, 187. without leave, if time to appear has ex- pired, 187. with 1-eave, if time to appear has not ex- ^ pired, 187. with writ by leave, 187. Notices of Court, how served, 246. Order: adding or changing parties, 63. discovery or inspection, 103. Out of jurisdiction, 34-36. affidavit of grounds, 34. concurrent writ, for, 30. defendant not British subject, &c., 36. leave necessary, 26. time for appearance, 36. of petition, 36. of statement of claim under Mechanics' Iilen Act, 36. Partners, on, 171-172. Personal service, 32. Petition before appearance, 187. Posting up in lieu of," 246, 247. Substituted service, 34. affidavit in support, 34. order for, 34. form of order, 345. Subpoena, how effected, 129. Summons before appearance, 187. Third party, on, 232. Time for service of summons, 232. Writ of summons, 32, 33. by whom made, 32. out of jurisdiction, 34-36. leave required, 26 Undertaking to accept, 32-37. SESSIONS, SITTINGS, VACATIONS, &c. Additional jurors for special sittings, rule for, 21. INDEX — THE JUDICATUEE AOT. 583 SESSIONS, SITTINGS, VACATIONS, ETC.— Contin-wed. Adjournment of court when Judge does not arrive, 18. Adjourn and extend. Judge may, 18. Civil sittings in Halifax, 12. Contempt during vacation, 222. Commencement and end of vacation, 222. Criminal sittings in Halifax, 12. Court always open, 222. County Court Judge, when may hold, 17. Docket for arguments, calling of, 225. Entries of causes for argument, 224. consequence of not making, 226. Equity Judge, exemption of, 18. Extension or adjournment, 18. Halifax sittings, civil and criminal, 12. Jury fines, 231. collection of, 231. causes to be tried first, 18. Non-entry, consequence of, 226. Non-jury causes tried any time, 11. Order of Court to be taken out in session in which judgment de- livered, 226. Printing of causes and matters for, argument, 233-229. Quorum, 223. Special sittings, 17. Ten causes, limitation to, 12. Terms abolished, except as a measure of time, 10. Vacation, 222. SET-OFF. Against assignee of chose in action, 9. Effect on costs generally, 234, 235. How and when pleaded, 68-76. Lien for costs not to be affected by, 237. See also Counter-claim. SETTING ASIDE. Award, no rule nisi for, 186. Defence, 87. Irregular proceedings, 249. Judgment by default, 92. wrongly entered at trial, 138. Notice of motion to set aside certain proceedings, 39. SETTLED ACCOCfNT. How pleaded, 75. SETTLING ISSUES OF FACT. If parties differ in. Court or Judge may settle same, 107. SHERIFF. Discovery by sheriff's oflncer, 104. ' Indemnity to, 150. Interpleader by, 213, 214. Notice to bring in the body, 187. when out of office, 187. Poundage, in what cases, 144-148. Rule nisi in application against, abolished, 186. To make return of execution, 150. pay over money, 149. What sheriff may take under execution, 148. See Absent and Absconding Debtors, 163-169. Execution, 142-152. Capias, 156-160. Replevin, 160-163. 584 INDEX THE JDDICATUEE ACT. SHOWING CAUSE. Abolition of rule nisi for new trial, 136. in certain other cases, 186. SIGULAR AND PLURAL NUMBER. Singular number to include plural, and plural to include singular, 250. SITTINGS. Distribution of business, 10, 11. Halifax, civil and criminal, 11, 12. In other counties, 12-14. Judge may make rules for, 21. See Sessions, Sittings, Vacations, &c., 222-229. SLANDER. Evidence in mitigation of damages, 119. Payment into Court in, 79. Rule 26 of Order 34, not to apply to, 79. Slanderous words spoken of any woman, not necessary to prove special damage, 73. SOLICITORS. Acceptance of service and entering appearance, 32. liable to attachment on default, 38. Address of. for service on writ, 28. on memorandum of appearance, 37. Bound to assist pauper gratuitously, 55. Costs of guardian ad litem, 237. misconduct, 236. against, omitting to attend at chambers, 191. Disclosure by, 31. Interpretation of term, 249. Lien not to affect set-off, 237. Not to take affidavit when interested, 133. Omitting to put in appearance, 38. give notice of order for discovery, 103. Personal liability for costs, 234-237. Scale of costs, 239. Striking off rolls, no rule nisi in application, 186. Signing pleadings, 69. SPECIAL CASE, 109-112. Agree'ment as to payment of money and costs. 111. Application of Order XXXIII., 111. Documents, how drawn, 109. Effect of judgment, fl2. Entry for argument, 110. Facts and documents to be stated concisely, 109. Form of case without pleadings. 111, 273. entry, 324. Formal pleadings may be dispensed with. 111. In interpleader, 215. Inference of fact, 110. Judgment according to agreement, 112. Married woman party, 110. Order for payment on finding of issue. 111. Parties may state special case, 109. Persons under disability, 110. Preliminary questions of law, 110. Printing case, 110. Signature of counsel or solicitor, 110. Special case without consent, 110. Stated by an ofBcial referee, 120, 121. INDEX THE JUDICATUEE ACT. 585 SPECIAL DAMAGE. Need not be proved in action for words importing unchaste con- duct to a woman, 73. SPECIAL JURY. Trial with, 114. SPECIAL VERDICT. Judge may direct, 20. SPECIALLY INDORSED WRIT. Bond, on, 27. Bill of exchange, on, 27. Cheque, for a, 27. Contract, express or implied, 27. Debt or liquidated demand, 27. Default of appearance, to, 40. Forms of special indorsement prescribed, 27. the forms, 285-289. Guaranty under seal or not, 27. Option of plaintiff to use, 27. Promissory note, on, 27. Recovery of land, with or without rent or mesne profits, 27. Statute, when fixed sum, 27. Statement of claim unnecessary, 74. Summary judgment under, 45. Trust, on a, 27. Writ, form of, 254-257. SPECIFIC PERFORMANCE. Enforcement of, 147-152. Form of claim, 284. defence, 303, 304. STATEMENT OF CLAIM. Account stated to be alleged, 75. Admission of part of claim, 46. judgment for, 46. Alternative relief, 75. Amendment of, 74, 75. by exclusion of part of claim, 66. once without leave, 93. Contribution, statement to be served with notice of, 59. Costs of prolix pleadings, 68. when unnecessary, 75. Delivery of statement of claim, 68. in what cases unnecessary, 74. rules as to delivery of, 74. unnecessary in specially indorsed writs, 74. Distinct claims to be separately stated, 75. Exclusion of part of claim, 66. Forms in Appendix to be used, 69. of statements. Appendix C, 278-298. Indorsement of writ on, 27, 28. Issues settled if statement insufficient, 107. Joinder of joint and separate claims, 48. "^ May be altered without alteration of writ, 75. Must show place of trial, 75. Place of trial to be stated, 75-112. otherwise to be county in which de- fendant is to file appearance, 112. Relief claimed must be specifically stated, 69-73. Settled account, how pleaded in, 75. 686 INDEX — THE JUDICATUEE ACT. STATEMENT OF CLAIM— Continued. Separate causes of complaint, 75. Specific statements of relief, 75. either simply or alternatively, 75. Time for delivery of, 74. Unnecessary in certain cases, 74. Variation from indorsement, 75. Venue in, statement, 75-112. Writ specially indorsed, 74. STATUTES. Of Frauds, how pleaded, 71. Limitations, how pleaded, 71. not to extend to express trusts, 8. Pl€a of not guilty by statute, 71. Special indorsement, where money to be recovered is fixed, 27. STATUTORY DECLARATION. " Oath " includes, 2. STAY OF PROCEEDINGS. Appeal to Court of Appeal, no stay of execution or of proceedings except in certain cases, 220. Application for, by any person whether a party or not, 7. at any time by motion in a summary way, 7. By payment of debt and costs incurred, 28. Court or Judge may direct if it seem fit, 7, 136-137. Deposit of money, &c., on .motion for new trial, 136, 137. Directed at any time, 7. Execution, stay of, 147-148. Frivolous or vexatious proceedings, 88. Interest, when execution stayed, 221. On notice of motion for new trial, 136, 137. Solicitor's name used without authority, 31. Where injunction might have been obtained, 7. STRIKING OFF ROLLS. No rule nisi for, 186. Notice of motion to state grounds. 186. copy of any affidavit to be served with notice, 186. STRIKING OUT. Unnecessary or scandalous matter in pleadings, 73. tending to embarrass or delay 73. at any stage of proceeding, 73. costs may be ordered between solicitor and client, 73. SUBPCENA. • Affidavits of service of, contents of, 129. Cross-examination of deponents on, 128. Chambers for, on order from Judge, 129. Correction of errors in, 129. Costs, no subpoena for, 153. Forms of subpoena prescribed, 129. Forms. Appendix J., 330-337. Issue to any party in any cause or matter, 128. Praecipe for to be delivered and filed, 129. Referee, attendance before may be enforced by, 120. Service of within 12 weeks after issue of writ, 130. Service by delivery copy, 129. Three names in one subpoena or one for each, 129. Witnesses bound to attend on subpoena, 128. INDEX THE JUDICATURE ACT. 587 SUBSEQUENT PLEADINGS. Default in, 92. See Reply, 86. SUBSEQUENT TO ACTION. Matter how pleaded, 87. SUBSTITUTED SERVICE. Affidavit in support of application for, 34. Form of order for, 345. Notice, order, or document of, 247, 248. Summons to proceed, 203. Writ of summons of, 33. SUIT. What term includes, 1. SUMMARY JUDGMENT. Application for writs specially indorsed, 45. by summons returnable 4 clear days after notice, 45. affidavit verifying causes of action, 45. stating belief that there is no defence, 45. Corporation defendants, 45. Defence by affidavit or payment into Court, 45. as to part, judgment as to other, 46. by one defendant, judgment against another, 46. forms of judgment, 338-340. Leave to defend on giving security, 46. terms of time and mode of trial, 46. Recovery of land, in case of, 45. Special indorsement, what constitutes, 27. Summary judgment, on application, 45. unless defendant satisfy Court by affidavit or otherwise, 45. Summary judgment, unless defendant satisfy Court by affidavit or otherwise that there is a good defence to action on merits, 45. unless defendant discloses facts sufficient to entitle him to defend, 45. Time for delivery of defence, 76. SUMMER TERM. Extra or summer terms, 14-15. Time of sitting of Court at summer term, 15. SUMMONS. Application at chambers to be by notice or, 190. Form prescribed; the form, 192-335. of order on, prescribed; the for, 193, 367, 368. affidavit of service of, 276. praecipe for, amended, 322. order for dismissal of, 362. Hearing of, 193. Originating summons, 79. Originating summons (concurrent), 30. Summons book, 205. To proceed, 203. Various forms of orders and summonses. Appendix K., 335, 336. Writ of summons, 26. SUMMONS FOR DIRECTIONS, 96, 97. Costs of application, omitted from, 97. Contents of summons, 96. Form of summons, 337. 588 INDEX THE JUDICATUEE ACT. SUMMONS FOR BlRECTlONSr— Continued. Orders thereon, 96. form of order, 339. SUNDAY. Lapsing of time on, 232. When not counted, 232. SUPREME COURT. How constituted, 2. jurisdiction exercised, 5. Jurisdiction, 4, 5. Name of, 2. Powers of, 4. To be Court of record, 4. Where, and when shall sit, 10-17. SURETY. Assignment of securities to, 9. TAXATION OF COSTS. After action brought, form of Order for. Appendix K., No. 40, 357. Copies of documents, taking, 241. Inspection of documents, 241. Notice of, 238. On default of appearance (liquidated demand), 41. On payment by defendant, 28. Special allowances and general regulations, 239, 245. See also Costs, 234, 245. TAXING AUTHORITY. Definition of, 250. TECHNICAL OBJECTION. Not to be raised to pleading on alleged want of form, 72. Tenant, relief of, 47. TENANT FOR LIFE. Waste by, 8. TENDER. See Payment into Court, 79, 86. TERMS. Abolition of, except as measure of time, 10. Interpretation of, 1, 249. terms " writ of execution " and " issuing execu- tion against any person," 143. See Sittings, Vacation, &c., 222-232. TESTIMONY. Action to perpetuate, 130. TESTING WRITS. The teste of all writs is abolished, 26. THIRD PARTIES. Appearance by, 60. Bringing in fourth or more parties, 62. Contribution against co-defendant, 49. Costs, 62. Default of appearance by, 60. pleading by, 92. Defence by, 60. Defendant may bring in, 6, 59. to counter-claim, 77. Execution by and against, 147. INDEX THE JUDICATUKE ACT. 589 THIRD FARTl'ES— Continued. Form of notice, 267. Garnishee, 153-155. Generally, 59-62. Indemnity against, 59. Indorsement of defence served on, 77. form of, 268. Issues affecting, 92. Leave to defend, 60. Notice to, 6, 59. Procedure, general, 59-62. Questions against, how tried, 61. Recovery of land, 38, 39. Reply to counter-claim hy, 78. Service of counter-claim on, 78. Summons to, 78. Third party notice, 59-60. TIME. Abridgement or enlargement of, 232. costs on, 242. Affidavits answering interrogatories, 99. in evidence by affidavits, 135. Amendment; counter-claim, 93. statement of claim, 93. Appeal : Court of Appeal to, 218. ex parte application, 220. limit of time for, 218. Appearance, 37, 38. out of jurisdiction of writ,, 36. application to discharge or vary order changing parties, 63.^ Christmas Day, when not counted, 232, Close of pleadings, 86. Computation of time, 232, 233. for vacations, 222, 223. Concurrent writs, 30. Costs when time extended, 242. " Counter-claim, amendment of, 93. reply by third parties to, 78. Delivery of pleadings: counterclaim, 76. defence, 77. pleadings, subsequent to reply, 86. reply, 86. statement of claim, 74. Discontinuance, for, 89. Enlargement of time, 233. costs of, 242. Entry for trial, 115. Essence of contract, 10. Execution, 143. ^909 Expiring when prothonotaries' ofBce closed, Z6A. Good Friday, when not counted, 232. Inspection of documents, for, 101. Interrogatories, affidavit in answer, 99. Judgment, for setting aside, 136. Month, means calendar month, 232. Motion for judgment, 138. 590 INDEX — THE JUDICATUEE ACT. TIME — Contirmed. Motion for judgment, where issues of fact, 138. New trial, time for application for, 136. service of notice of motion for application for, 136. Notice of appeal from interlocutory order, 218. from judgment, 218. by respondent, 219. Notice of motion, 186. trial, 112. on affidavit, evidence, 135. to cross-examine, on aflBdavits, 135. Payment into Court in satisfaction, 79. acceptance by plaintiff, 79, 80 Service of pleadings, hours for, 233. on Saturdays, 233. Service of notice of motion for application for new trial, 136. Setting aside judgment on non-appearance at trial, 117. down on motion for judgment, 138. Sessions, vacations and arguments, 222-229. Sunday, when not counted, 232. time expiring on, 232. Terms may be referred to as measures of, 10. Vacations, sessions, &c., 222-229. Writ of execution, issue of, 145. in force for one year, 145. summons in force, 31. TITLE. Need not be pleaded in action for land, 78. TITLE, DATE AND APPLICATION OF RULES. How cited, i. When Rules come into operation, 25. TORT. Service of writ out of jurisdiction in actions of, 35. TRESPASS. Injunction against, 10. Mortgagor in possession suing for, 8. TRIAL. Addresses to jury, 118. Adjournment of, 118. Amendment at, 94. for trial' of real questions, 94. Arbitrations, 115. Arrest of witness, 122. form of warrant to arrest witness, 123. Assessors, 20, 120. mode of trial with, 120. Authority to refer, 120. Book to enter findings, 119. certificates in, 119. Cause list, how made up, 117. Chambers Judge, 113. Default at trial by defendant, 117.- Default at trial by plaintiff, 117. Defendant, application by to have issues tried by special jury, 114. Defendant, not appearing, 117. Delivery of copies of pleadings for Judge, 116. Different questions may be tried in different ways, 65, 114. INDEX THE JUDICATURE ACT. 591 TRIAL — Continued. Entry for trial, 115-117. at sittings of term, 114. at special sittings, 117. copies of pleadings for Judge, 116. order where both parties enter, 116. seniority, how determined, 117. time for, 115, 116. by opposite party, 116. who to make, 116. when to be entered, 116. withdrawal by consent, 89. Entry of judgment at trial, 119. Evidence, how given, 123. before referee, 120. Issues of fact: contingent judgment, on application to enforce, 143. different facts may be tried in different ways, 114. garnishee disputing liability, 155. order for trial, before jury, 114. questions of law may be raised before, 110. single Judge to try, 115. Judge may direct how judgment be entered, 119. Judgment, motion for, 137. entry of, 140, 141. amendment of, 95. Jury, absolute right to, how qualified, 113, 114. certain actions to be tried with, 18. costs follow event, 234. Court may direct trial witjiout, 114. defendant may require jury, 114. discretion of Judge as to, 114. findings wrongly entered setting aside judgment, 138. form of judgment after trial by, 315. issues of fact, 114. Judge may order, 114. list of jury and non-jury causes, 117. new trial, 136. single Judge to try, 115. time for appeal, 218. Lists for trial, 117. May take place anywhere, 112. ^ode for trial: before a Judge or Judges, 113, 114. with assessors, 114, 120. and jury, 115. single Judge, unless special order, 115. special referee, 114, 120. an official referee, 114, 120. with or without asses- sors, 114. different questions in different ways, 114. Judge may alter, 114. refer to special or official referees, 114. direct, 113, 114. order trial of issue by jury, 114. subject to directions of Court, 114. notice of, 114. order to change in certain cases, 114. New trial, 136. 593 INDEX THE JUDICATUEB ACT. TRIAL — Continued. Non-appearance of defendant, 117. plaintiff, 117. proving claim, 117. setting aside judgment on, 117. place of application, 117. time for application, 117. Notice of trial: afladavit evidence, 134. before entry, 115. by plaintiff, 115. dismissal for want of prosecution, 115. by defendant, 115. countermanding, 116. by consent or by leave, 116. effect of for sittings, 116. Halifax or elsewbere, 116. elsewhere than in Halifax, 116. form of, provided, 115. the form, 274. Halifax, in, 116. length of, 115. short, 115. special sittings, 117. statements in, 115. to lapse if no entry, 116. time for, 115. on affidavit evidence, 134. Order of entry for, 116. Place of trial, 112. appointment by Judge, 112. different for different questions, 114. statement of claims, plaintiff to name place in, 112. Plaintiff not appearing, 117. Postponement of, 118. Preliminary question of law, 110. fact, 113. Procedure at trial, 18, 19, 117, 120. Reading affidavits, 124. answers to interrogatories, 103. Referee, by, 120. Separate, of distinct causes of action, on order, 65. Single Judge, 115. Sittings, at what, 116. Striking out statements which would prevent fair trial, 73. Time of trial, 113. Viva voce evidence at, 123. in absence of agreement, 123. Who may enter for trial, 115, 116. TRIAL WITHOUT PLEADINGS, 67. TRUST. Compromise, parties in case of, 51. TRUSTEE. Application by for directions, 202. Beneficiary in case of property had on express trust, 8. Court may order trustee to be made a party to an action in cer- tain cases, 63. Indorsement of character of, 27. form of, 267. INDEX THE JUDICATURE ACT. 593 TRUSTEE — Continued. May sue and be sued without joining parties beneficially inter- ested, 49. New, consent of bow proved, 134. Right of to costs out of particular estate, 234. TRUSTEE ACT, PROCEEDINGS UNDER, 195. TRUSTS. Action by or against trustee, 49. Parties to action to execute, 56-59. Proceedings by originating summons, 198-202. Special indorsement for claim on. 289. ■Statutes of Limitation not applicable to express or to breach of, 8. TYPE. To be used for printing papers for argument to be small pica leaded, 226, . UNDERWRITERS. Form of order for production of documents, 344. UNREASONABLE. Defendant not to be embarrassed or put to expense by unreason- able attendance at proceedings, 49. UNSOUND MIND. Actions by and against lunatics and persons of, 52. Assignment of guardian' ad litem, 39. Proceedings as to property of persons of, 181-183. Service of notice of judgment on person of, 58. writ on person in charge of, 33. VACATION. See Sessions, Vacations, &c., 222-229. VENDITIONI EXPONAS. None necessary, 152. VENUE. No local, for trial of any action, except when otherwise provided by statute, 112. VERDICT. Special, Judge may direct jury to give, 20. See Jury; New Trial; Trial. VEXATIOUS. Interrogatories, costs of, to be borne by party in fault, 99. VIVA VOCE EXAMINATION. Rule in reference at trial of any action or assessment of damages, 123. WAGES, ATTACHMENT OF, 155. WASTE. No equitable by tenant for life, unless intention expressly appear, 8. Prevention of, apprehended, 10. Representative action to restrain, 57. WIFE. See Husband and Wife. WILFUL DEFAULT. Form of statement of claim, 279. WITHDRAWAL OF RECORD. See Discontinuance, 89. WITNESS. Absence of material, 118. s.A-.s. — 38 594 INDEX THE JUDICATUEE ACT. WITNESS— Contimoed. Arrest of, 122. Attendance before referee, 120. . Examination of before examiner, 124. generally to be viva voce, 123. toy interrogatories, 123. Residing abroad, examination of, opening, 127. Restrictions on cross-examination of, 119. Rules as to examinations of witnesses residing abroad, 127. Subpffina for attendance of, 129. Technical objections of witnesses taken de' iene esse, 127. Under habeas corpus, 118. See Evidence. Examination of Witnesses. WRIT. Currency of, 31. Date of in general, 26. Forms, 253-257. Lost, substitution of copy, 32. Order to Issue need not be drawn up, 188. Renewal of, 31. Teste of, to remain abolished, 26. To bear date of issue, 26. WRITS AGAINST ABSENT OR ABSCONDING DEBTORS. See Absent or Absconding Debtors, 163-169. Foreign Companies, suits against, 169, 170. WRIT OF ATTACHMENT. See Attachment of Person, 153. WRIT OF DELIVERY. See Delivery, Writ of, 175. WRIT OF EXECUTION. See Execution, 1, 156. WRIT OF ENQUIRY. On default of appearance in certain cases, 40. pleadings, 90, 91. Proceedings at trial of, 122. Substitution of inquiry before officer, 122. See Inquiry. WRIT OP MANDAMUS. , See Mandamus, 189. WRIT OF POSSESSION (Lands). Form of praecipe for, 320. writ, 328. To have effect of writ of assistance, as well as of writ of habere fades possessionem, 174. WRIT OF PROHIBITION. Form of praecipe, 321. See Prohibition, 248. WRIT OF SEQUESTRATION. Effect same as writ of, had In England before commencement of English Judicature Act, 162. Form of praecipe for, 320. writ for, 327. See Sequestration. WRIT OF SUMMONS, 26. Action to be commenced by, 26. INDEX — THE JUDICATURE ACT. 595 WRIT OP SViMMOTSiS—Continued. Date and teste of, 26. Form and contents of, and costs of undue prolixity, 26. Forms, 253-257. Writs for service abroad, 26. form of, 255, 256. Address: of plaintiff and solicitor, 28. in person, 29. Indorsement of claim: action for account, 28. amendment, 75. form prescribed, 27. forms, 260, 267. nature and requisites of, 27, 28. parties in representative capacity, 27. special indorsements, 27. ISSUE : concurrent writs, 30. disclosure by solicitor of authority to issue, 31. of names of partners when issued by firm, 171. filing copy, 29. place of issue, 29. preparation of w^rit, 29. sealing and issue, 29. Renewal : currency -of writ, 31. loss of writ, 32. renewal, 31. Service : affidavit for leave for substituted, 34. of service to mention day of, 33. in action to recover land — vacant possession, 33. indorsement of service, 33. on corporation or society, 33. husband and wife, 32. infant or lunatic, 32, 33. partners or apparent firm, 171. third party, 59. parties subsequently added, 52. personal service, 32. substituted service, 32. undertaking by solicitor to accept, 32. Service out of jurisdiction: affidavit for leave, 36. form of order for, 344. in what cases allowed, 34, 35. mode of giving notice, 36. notice in lieu of writ, when to be served, 36. time for appearance, 36. APPENDIX "A" INDEX TO CROWN RULES. ADDRESS for service, 405. ADJOURNMENT of motion, 414. ' AFFIDAVITS, application of Order xxxvi. of Rules of Court, to all proceedings on crown side, 389. title of, 390. additional, to oppose new matter, not to be used without leave first obtained, 390. affidavits of service, what to state, 390. answers to interrogatories: See Attachment foe Contempt and see Service. AMENDMENT, Order xxviii. of Rules of Court to apply to all proceedings, 416. APPEALS, Order Ivii. of Rules of Court to apply to civil proceedings on Crown side, 409. APPEARANCE TO INFORMATION AND INQUISITION, defendant to enter appearance in office of Clerk of Crown, 399. certificate of indictment being filed, 399. apprehension of defendant under judge's warrant, 400. See forms, 429-430. committal of defendant, bail, 400. default of defendant to appear, 400. how defendant for misdemeanour may avoid arrest, 400. defendant when apprehended, how bailed, 400. defendant for misdemeanour in gaol, how to put in appearance, 400. appearance of body corporate or Inhabitants, how compelled, 401. certificate of indictment found or information filed in the Supreme Court, 399, 429. warrant to admit to bail on indictment -found in Supreme Court,- 400, 430. warrant of committal, 400, 430. notice to defendant to appear to information in pursuance of under- taking and enlarged order, 431. notice of bail to avoid arrest, 431. recognizance to answer indictment or information, 432. notice to be indorsed on copy indictment or information, to be served on a defendant in prison for want of bail to answer, 432. affidavit of service of copy information or indictment with notice indorsed on defendant in gaol, 433. writ of subpoena, to answer an information, 433. writ of vdnire facias, to answer, 435. affidavit of service of subpoena to answer to an information, 434. writ of attachment to answer an information, 434. writ of attachment to answer an information cjuo warranto, 434. APPEARANCE TO WRITS, 411. APPREHENSION of defendant on indictment found, 392. ATTACHMENT FOR CONTEMPT, application, how to be made, 414. writ of, when returnable, 414. o!)8 IXDEX APPENDIX " A." ATTACHMENT FOR CONTEMPT — Continued. return ot cepi corpus, 414. interrogation of defendant, 414. committal in default of bail, 414. interrogatories of prosecutor, 415. answer to interrogatories of prosecutor, 415. report of master, 415. presence of defendant at hearing of master's report, 415. notice to defendant of master's report, 415. defendant reported to be in contempt, 415. afBdavits in mitigation or aggravation, 415. sentence lodged with gaoler, 416. defendant reported not to be in contempt, 416. all interrogatories to be signed by counsel, 416. irrelevant interrogatories, 416. writ of attachment. See form, 443. affidavit for habeas corpus to bring up a prisoner to be charged with attachment, 443. writ of habeas corpus on return of cepi corpus, 443. recognizance to answer interrogatories, 444. BAIL, bail for felony or misdemeanour when party is in custody, 401. summons to admit to bail on a criminal charge, 436. order to admit prisoner to bail, 436. notice of bail, upon order of judge without habeas corpus, 437. CERTIORARI, application for writ of, 390. recognizances and sureties on application for writ of, 390. recognizances to be filed before notice of application, 390. recognizances, requirements of, 391. notice ineffectual without recognizances filed, 391. limit of time for application for, 391. copy of commitment, &c., to be verified by affidavit, 391. conviction, etc., may be quashed on application for writ, 391. objections on account of mistakes in judgment or or4ers of justices to be stated in notice, 391. costs of application, 392. no costs when unopposed, 392. form of writ, 392. additional security may be ordered, 392. prisoner discharged on application for writ, 392. forfeiture of recognizance, 392. general form of writ of, for orders, &c., 419. notice to justices of application for, to remove conviction, or order of justices, 419. affidavit of service of notice of application for certiorari for con- viction, or order of justices, 420. recognizance on application for, 420. notice of motion for, to remove conviction, or order of justices, 421. judge's order for certiorari for conviction, or order of justices, 422. certiorari to remove conviction, or order of justices, 422. return to writ of, 422. CIVIL PROCEEDINGS ON CROWN SIDE, application thereto of following Rules of Court Order XXVIII : see Amendment XXXIII: see Special Cases XXXVI : see Affidavits " XL: see Execution LII: see Motions " LVI: see Mandamus INDEX APPENDIX " A." 599 CIVIL PROCEEDINGS ON CROWN SIDE— CoJitiJiuetZ. Order LVII: see Appeals " LX: see Time LXIII: see Costs " LXIV: see Notices LXVIII: see Non-compliance Ana see Forms COMMITTAL, Warrant of, 430. CONTEMPT: see Attachment for Contempt CONTINUANCES, continuances not necessary, 406: COPIES OF PROCEEDINGS, copies of proceedings may be obtained at office of Clerk of Crown, 405. CORPORATE BODY, appearance of, how compelled, 401. COSTS, Order Ixiii., of Rules of Court, to apply to proceedings, 416. unsuccessful party to pay, 416. on certiorari, 392. to successful party, 416. COUNSEL, signature of, 416. CUSTODY OF RECORDS, Clerk of the Crown to have custody of records, 389. DATE OF PROCEEDINGS, orders, &c., to bear date on which made, 389. DEMURRERS AND SPECIAL CASES, Entry of, 405. DISCLAIMER to QUO WARRANTO, 396. See forms, 427. DISTRINGAS, writ of, 435. ESTREAT OF RECOGNIZANCES, 409. EXECUTION, Order xl. of Rules of Court to apply to civil proceedings on Crown side, 410. ■ Criminal Proceedings, return of writ of execution, 410. FORMS, affidavit of service of copy information or indictment, on defendant in jail, 433. affidavit of service of notice of application for certiorari, 420. affidavit of service of subpoena, 434. affidavit for haieas corpus to bring up prisoner, 443. affidavit for haheas corpus ad testificandum, 441. appearance to information, etc., entry of, 423. bail, notice of, to avoid arrest, 431. bail, notice of upon order of judge, 437. bail, order to admit prisoner to, 436. bail, summons to admit to, 436. bail, warrant to admit to, 430. certificate of indictment found, 429. certiorari, general form of writ of, 419. certiorari, judge's order for, 422. 600 INDEX — APPEXDIX ' A. FORMS— Continued. ceh-tiorari, notice to justices of application for, 419. certiorari, notice to opposite party, 421. certiorari, return to writ of, 422. certiorari to remove conviction, judgment or order, 422. disclaimer upon an information quo warranto, 427. entry of appearance to information, etc., 423, information (criminal), 425. information, quo ivarranto against school trustee, 425. . judgment for the Crown on quo warranto after trial with a jury, 438. judgment for the Crown on mandamus, after trial with a jury, 438. judgment of Ouster on disclaimer, 427. mandamus, writ of, and return to, 427, 428. notice of bail to avoid arrest, 431. notice to justice of the peace of intention to apply for a criminal information, 424, 425. notice of motion for an information quo warranto, 426. notice to defendant to appear to information, 431. notice to be indorsed on copy of indictment or information to be served on a defendant in prison, 432. notice to be served with writ of haieai,' corpus ad subjiciendum, 440. of having obtained writ of habeas corpus ad subjiciendum on an informal or illegal commitment, 441. notices of motion to discharge prisoner, 423. order for writ of habeas corpus ad subjiciendum, 440. order to commit when defendant sentenced at trial, 437. recognizance to answer indictment or information, 432. recognizance to prosecute information (criminal), 424. recognizance to prosecute information (quo warranto), 424. recognizance to answer interrogatories, 444. recognizances to be filed before notice of motion for certiorari, 420. subpoena to answer an information, 433. summons for writ of habeas corpus ad subjiciendum, 439. summons to admit to bail on a criminal charge, 436. warrant of arrest, 429. warrant of committal, 430. warrant to admit to bail, 430. warrant to apprehend defendant sentenced at trial when not pres- ent at trial, 437. writ of attachment, 443. writ of attachment to answer an information, 434. writ of capias to answer to indictment or information, 435. writ of distringas to answer, 435. writ of habeas corpus ad subjiciendum, 440. writ of habeas corpus ad testificandum, 442. writ of habeas corpus on return of cepi corpus, 443. writ of habeas corpus on return order instead of, 442. writ of mandamus, and return to, 427, 428. writ of prohibition, 428. writ of subpoena to answer information, 433. ' writ of supersedeas to certiorari and procedendo, 439. writ of venire facias to answer, 435. HABEAS CORPUS, (A.) ad subjiciendum where to be applied for, 411, procedure when application is to Court, 411. procedure when to judge, 411. habeas corpus on extradition warrant, 412. writ, how to be served, 412. INDEX APPENDIX " A." 601 HABEAS CORPUS— Continued. disobedience to writ, 412. return to writ — indorsement thereon, 412. amended or substituted return, 412. procedure on return of writ, 412. discliarge of prisoner before return of writ, 412. summons for writ of lial)eas corpus ad suhjiciendum, 439. order for writ of haieas corpus ad subjiciendum, 440. writ of habeas corpus ad subjiciendum, 440. notice to be 'served with writ of habeas corpvs ad siibjicien- •• dum, 440. notice on having obtained writ of habeas corpus ad subjicien- dum on an informal or illegal commitment, 441. (B.) other writs of habeas corpus where to be applied for, 413. for prisoner to give evidence, 413. counsel, in what order to be heard, 413. affidavit for writ of habeas corpus ad testificandum, or order to testify, 441. writ of habeas corpus ad testificandum, 442. order instead of habeas corpus ad testificandum, 442. v^rit of habeas corpus to bring up a prisoner to be charged with attachment, 443. writ of habeas corpus on return of cepi corpus, 443. INDICTMENTS AND INFORMATIONS, indictment found in Supreme Court, and apprehension of defendant, 392. failure of prosecutor to proceed with indictment — discharge of defendant, 393. defendant, if convicted, to be brought up for judgment within eight days, 393. recognizance to prosecute information or quo warranto — exception for ex officio informations, 393. information against justices of the peace, 394. information, how and when to be applied for, 394. costs of defendant if information or trial not proceeded with, or if defendant be acquitted, 394. costs in some cases to follow judgment on indictment or informa- tion for libel in Supreme Court, 394. entry of appearance to information, 423. notice of motion to discharge prisoner out of custody when pros- ecutor has not proceeded within the time limited after defend- ant's apprehension, 423. notice of motion for discharge of prisoner out of custody after con- viction, when prosecutor has not proceeded to bring him up for sentence, 423. recognizance to prosecute information (criminal), 424. recognizance to prosecute information quo iiarranto, 424. notice to a justice of the peace of intention to apply for a criminal information, 424. information (criminal), 425. and see Pleadings INFORMATION. See Indictments, Pleadixcs and Appearance to Information, &c. INTERPLEADER, 398. INTERPRETATION CLAUSE, 417. INTERROGATORIES: see Attachment foe Contempt INQUISITION: see Appearance to Indictments and Pleadings 602 INDEX — APPENDIX " A." JUDGMENT, when, may be pronounced at sittings or term at which trial took place, 407. respite of, for new trial or in arrest of judgment, 408, 409. defendant under recognizance to receive, if about to abscond, 408. arrest of defendant to satisfy judgment, 408. notice to defendant and his bail that judgment will be moved for, 408. estreat of recognizances for want of appearance to receive final, 409. proceedings relative to sentence, 409. affidavits to be read before sentence, 409. procedure where no affidavits are produced, 409. warrant to apprehend defendant sentenced at trial when not pres- ent at the trial, 437. order to commit when defendant sentenced at trial, 437. judgment for the Crown on quo warranto after trial with a jury, 437. judgment for the Crown on mandamiis after trial with a jury, 438. JUDGMENT BY DEFAULT, default of pleadings, 407. JURISDICTION, convictions of courts of inferior, 413. JUSTICES OF THE PEACE : see Certiorari. MANDAMUS, application for writ of, how to be made, 396. notice to persons affected by proceedings, 396. persons affected by proceedings may shew cause, 396. order absolute need not be served, 396. service of writ, where several respondents, 397. service of writ on companies or public bodies, 397. writ peremptory in first instance, when, 398. date of writ, 397. form of writ, 427. return of writ, 397, 398. judgment where point of law is in answer to a return or pleading, 397. rights of applicants obtaining judgment under RR. 47 and 81, 398. no process against persons obeying writ of mandamus, 398. where respondent is merely ministerial the persons really inter- ested may be permitted to frame return, 398. return to writ by person really interested. Proceedings thereon, 398. Order Ivi of Rules of Court, to apply to an interpleader in any mandamus, 398. issue of mandamus, 399. writ of mandamus, F. 20, and see 397, 427. return of writ of mandamus, 428. and see Pleadings MANDAMUS— ORDERS IN THE NATURE OP, application for all such orders, how to be made, 399. MOTIONS, Order lii. of Rules of Court, apply to civil proceedings, 413. notice of, how long, 413. all applications to be by motion, 413. copy of affidavits in applications, 413. quashing convictions or orders of inferior jurisdictions, 413. Court may direct notice of any motion to be to other persons, 414. NON-COMPLIANCE, Order Ixviii. of Rules of Court to apply to civil and criminal pro- ceedings, 417. INDEX APPENDIX " A." 603 NOT GUILTY: see Pleadings NOTICE OF MOTION, 413. NOTICE OP TRIAL, what it shall state, 405. who may give it, 406. length of notice, 406. in Halifax to be redeemed, for what day, 406. elsewhere to be deemed, for what day, 406. countermand of notice, 406. NOTICES, Order Ixiv. of Rules of Court to apply to civil proceedings, 416. PAPER BOOKS, Rules of Order Iviii. to apply to proceedings on the Crown side, 406. PLEADINGS, (o.) Pleadings on Indictment, Information, or Inquisition title and form of pleadings, 403. date of form of pleadings, 403. special plea or demurrer — signature of counsel, 403. order and time to plead, 403. extension of time to plead, 404. (6) Pleadings in Quo Warranto plea to information and subsequent pleadings, 404. reply to plea, 404. (c) Pleadings in Mandamus plea to return and subsequent pleadings, 404. (d) Pleadings in Prohibition pleadings and subsequent proceedings, 404. and see Special Case PROCEEDINGS, copies of, 405. date of, 389. PROHIBITION, application for, how to be made, 399. order may be made absolute, ex parte, 399. writ of prohibition, 428. and see Pleadings. QUO WARRANTO, application for quo warranto, how made, 395. notice of motion in above application, what it must contain, 395. on filing information, affidavit required by relator, 395. objections to title of defendant, how to be specified, 395. refusal of motion — costs, 395. substitution of another relator, 395. consolidation of several orders nisi, in the same matter, 395. disclaimer of intention to defend, 396. information quo warranto against a member of a school board, 425. notice of motion for an information quo warranto, 426. disclaimer upon an information quo warranto, 427. judgment of ouster on disclaimer to quo warranto, 427. and see Pleadings RECOGNIZANCES, recognizances to be filed in office of Clerk of Crown, 402. how forfeited or estreated, 402. GOi IXUEX Al'PEXDIX "a." RECOGNIZANCES— CoM^/jiMed. conditions In recognizances, 402. default in performing conditions, 402. see Certioraei RECORDS, custody of, 389. RELATOR: see Quo Warranto REPLICATION: see Pleadings RETURN, by Sheriff of fines collected, 417. by Clerk of Crown of fines, etc., imposed, 418. by Clerk of Crown of indictments found, 418. RULES OF COURT: see Forms RULES, repeal of, 389. former orders or rules not revived, R. 2, 389. SCIRE FACIAS, no proceedings, upon recognizance, 403. SENTENCE: see Judgment SERVICE, afiidavit of, 390. sufficient service of writs and documents, what is, 405. affidavit of service of notice of application for certiorari, 420. afiidavit of service of copy of information with notice indorsed on defendant in prison, 433. affidavit of service of suipcena to answer an information, 434. SHERIFF : see Execution SPECIAL CASES AND DEMURRERS, civil proceedings — Order xxxiii. of Rules of Court to apply, 405. criminal proceedings — time for entering demurrers and special cases, 405. and see Pleadings SUBPCENA, writ of, to answer an information, 433. SUPERSEDEAS, writ of, 439. TIME, Order Ix. of Rules of Court to apply to civil proceedings, 416. extending time for pleading, 404. extending time for motion, 406. TIME FOR RETURNS OF WRITS, 411. TRIAL, notice of, 405. New, application for, how to be made, 406. stay of proceedings upon application for, 407. time for applying for, extension of, 406. defendants not required to be present, on application for, 407. WARRANTS, forms of. WARRANTO, warrant to apprehend defendant sentenced at trial, 437. warrant of arrest, 429. warrant to admit to bail, 430. warrant of committal, 430. WRIT OF HABEAS CORPUS: see Habeas Corpus IXDEX APPEKDIX " A." 605 WRITS, where to be issued, 410. preparation and indorsement of, 410. date of, 410. return of, 410. time within which writs are to be returned, 411. appearance to writs, 411. service of, 405. writ of attachment to answer information, 434. writ of attachment to answer information, quo warranto, 434. writ of certiorari, general, 419. writ of certiorari to remove convictions, etc., 422. writ of capias to answer to indictment or information, 435. writ of distringas to answer, 435. writ of habeas corpus ad subjiciendum, 440. writ of habeas corpus ad te'stificandum, 442. writ of mandamus, 427. writ of prohibition, 428. writ of subpoena to answer an information, 433. writ of supersedeas to certiorari and procedendo to carry baclt convictions, 439. writ of venire facias to answer, 435. APPENDIX "B" INDEX TO RULES FOR APPEALS TO THE JUDICIAL COMMITTEE OP THE PRIVY COUNCIL. APPEAL. Application for leave, how made, 450. Conditions of, 449, 450, 453. Death of party to the, 454. Dismissed for non-prosecution, 454. Leave to withdraw, 463. Meaning of, 449. Rescinding leave to, 453. Right of aggrieved person, notwithstanding Rules, 455. Security required, 450, 451. Sufficient notice of, 453. APPEALS. Leave to consolidate, 452. CASE. Of party, how printed, and contents of, 455. COSTS. Directions as to, 453, 454. Disallowed for prolixity, 455. To he taxed by proper officer, 455. COURT. To conform with order, 455. Meaning of, 455. DEATH OF PARTY. Provisions relating to, 454. IMPERIAL ORDER-IN-COUNCIL, 447. INTERPRETATION. Of terms, 448. JUDGMENT. Final, pro forma, 450. Meaning of, 449. "MONTH." Meaning of, 449. RECORD. Copies to be transmitted to Registrar, 452. How permitted, 452, 455, 456. Meaning of, 449. Preparation of, 451. Provision where objection made, 451. " REGISTRAR." Meaning of, 449. To transmit certified copy, 452. SCHEDULE. Relating to printing case, 456. SECURITY. Required on appeal, 450. WORDS. Interpretation of, 449. APPENDIX "G" INDEX TO RULES OF THE SUPREME COURT OF NOVA SCOTIA IN RELATION TO CONTROVERTED ELECTIONS OF MEMBERS OF THE HOUSE OP ASSEMBLY. ABATEMENT. Of petition, 471. ADDRESS. For service, 461, 462, 463. ADJOURNMENT. Of trial, 467. AFFIDAVITS AND DOCUMENTS. How entitled, 462, 477. AGENT. Appointment of, by respondent, 462. AMENDMENT. To be allowed by Judge, 468. APPLICATION. To be admitted as respondent, 472, To set aside proceedings for irregularity, 473. To state a special case, 468. Of substituted petitioner, 470, 471. BOOKS AND DOCUMENTS. Production and inspection of, 463. COMMITMENT. For contempt, 469. Warrant for, 479. by whom executed, 469. CONTEMPT. Commitment for, 469. CORRUPT PRACTICES. Particulars of, must be given, 464. COSTS Provisions as to, 461, 465, 474, 475. " COURT." . Meaning of, in these Rules, 459. DEATH. Of petitioner or respondent, 471. DEPOSIT MONEY. How dealt with, 474, 475. ELECTION. List to be made out by prothonotary, 466. EVIDENCE. Judge to return, to prothonotary, 468. Reporter may be appointed to take, 469. Restrictions as to, 465. Shall not be stated in petition, 460. s.N.s. — 39+ 610 INDEX APPENDIX C. FINDINGS. Of Judge, 468. FORMAL OBJECTION. Not to defeat proceedings, 474. FORMS. Heading .of papers, 477. Indorsements on petition, 477. Notice of application for leave to withdraw petition, 479. for publication that notice of withdrawal has heen given, 480. ^of trial, 477. Order compelling attendance of witnesses, 478. Petition, 476. Subpoena, 478. Warrant for committal for contempt, 479. INTERLOCUTORY PROCEEDINGS. Disposed of by Judge, 463. INTERPRETATION. Act The, applies to these Rules, 459. Of terms, 459. IRREGULARITIES. Not to void proceedings, 473. LEGISLATIVE COUNCIL. If respondent appointed to, 471. LIST. Election, to be made out by prothonotary, 466. JUDGE. Copies of proceedings for, 468. Disabled by illness or otherwise, 467. Findings of, 468. Not arriving for the trial, adjournment, 467. Definition of, in these Rules, 459. MONEY DEPOSITED. How dealt with, 474. NON-COMPLIANCE. With Rules, not to void proceedings, 473. NOTICE. By respondent of intention not to oppose petition, 472. Of application to withdraw petition, 470. form of, 479. publication by sheriff, 470. 480. Of trial, 466, 477. OBJECTION FORMAL. Not to defeat proceedings, 474. PARTICULARS. To be delivered, 464, 465. Judge may order further, 465. Prothonotary to allow inspection of, 465. " PETITION." Meaning of, in these Rules, 459. Copy to be sent to returning officer, 460. Evidence shall not be stated in, 460. Form of, 460, 476. IXOBX APPENDIX (J." 611 " PETITION "—Continued. Indorsements on, 461, 477. Must contain certain statements, 460. Trial of, 461. Respondent may give notice to oppose, 472. When at issue, 463. Withdrawal of, 470. PETITIONER. Death of, 471. Substituted, 470. " PROTHONOTARY." Definition of, in these Rules, 459. To deposit money in bank, 462. furnish office copies of particulars, 465. keep book relating to money deposits, 475. make out election list, 466. receive poll books from returning oificer, 467. register names and addresses of agents, 463. REPORTER. May be appointed to take evidence, 469. Shall be sworn, 469. RESPONDENT. Must show undue return, 465. Death of, 471. When appointed to Legislative Council, 471. " RETURNING OFFICER." Meaning o'f, in these Rules, 459. Name and address to be furnished, 460. To deliver poll books, 467. RULES. Of Supreme Court applicable, 475. Previous, ann-uUed, 476. SECTIONS. Referred to in these Rules, 459. SERVICE. Of notices and documents, 461, 462. " SHERIFF." Definition of, 459. Shall publish notice of trial, 466. application to withdraw petition, 470. SPECIAL CASE. Application to state, 468. SUBPCENAS. Form of, 478. May be issued by prothonotary, 469. SUBSTITUTED PETITIONER, 470. TIME. Application to set aside proceedings must be within reasonable, 474. Court may enlarge or abridge, 473. For applying to be admitted as respondent, 472. , For services of notices, 473. How reckoned, when not expressed to be clear days, 473. Where expiration is on a Sunday, 473. G12 INDEX — Al'PEXDIX " C.'' TRIAL OF PETITION. Adjournment of, 467. Form of notice of, 477. Notice of, 466. not to be vitiated, 467. Postponement of, 467. Time and place of, 466. VACANCY IN SEAT. Notice of, 471, 472. WARRANT. For committal for contempt, 469, 479. WITHDRAWAL OF PETITION, 470. WITNESSES. Compelling attendance of, 469. Form of order to compel attendance, 478. APPENDIX "D" INDEX TO RlULES OF THE .SUPREME COURT OP NOVA SCOTIA IN RELATION TO CONTROVERTED ELECTIONS OP MEMBERS OF THE HOUSE OF COMMONS. ADJOURNMENT. Of trial, 490. AFFIDAVITS AND DOCUMENTS. How entitled, 486. AGENT OF RESPONDENT. Appointment of, 486. AGENTS. Registration of name and address of, 487. APPLICATION. For leave to withdraw petition, 500, 503. For order for publication by prothonotary, 494. To be admitted as respondent, 495. set aside proceedings for irregularity, 496, 497. state special case, 491. APPOINTMENT. Of agent by respondent, 486. reporter, 492. BOOKS. Production and inspection of, 487. Poll, to be delivered by returning officer, 490. To be kept by prothonotary, 497. CLERKS OP ELECTION (LOCAL), 490. CONTEMPT. Commitment for, 493. COPIES. Of procedings for Judges, 491. COSTS. Provisions relating to, 497, 498. " COURT." Meaning of, 483. CROSS PETITION, 487. DEATH. Of petitioner, 494. respondent, 494. DEPOSIT. Of money as security, 486. ELECTION. List, prothonotary to make out, 488. Local Clerks of, 490. EVIDENCE. Appointment of reporter to take, 492. s.N.s. — 39a 614 INDEX APPENDIX " D." FINDINGS. Of Judges, 492. FORMAL OBJECTION. No proceeding to be defeated by, 497. FORMS. Heading of papers, 500. Indorsements on petition, 499. Notice of application to withdraw petition, 502. trial, 500. Order compelling attendance of witnesses, 501. Receipt of petition, 499. Subpoena, 500, 501. Warrant for committal for contempt, 502. HEADING. Of papers, 486. INTERLOCUTORY PROCEEDINGS, 487. INTERPLEADER. Act (Canada), applicable, 487. INTERPRETATION. Of Rules, 483. Sections of Act, .484. IRREGULARITY. Application to set aside proceedings for, 497. " JUDGE." Disability of, 490. Meaning of term, 483. JUDGES. See Trial Judges. LOCAL CLERKS OF ELECTION, 490. LIST. Election, prothonotary to make out, 488. MONEY. Deposit as security, 486. how dealt with, 497. NON-COMPLIANCE. With Rules, effect of, 496, 497. NOTICE. Of death of respondent, 494. PAPERS. Heading of, 486. form, 500. PARTICULARS. Copy of, to be filed, 488. Inspection by interested parties, 488. PETITION. Contents of, 484. Copy to be sent to returning-officer, 484. Form of, 485. cross-petition, 487. Indorsements on, 485. form of, 499. Presentation of, 484. Receipt for, 484. (form), 499. Withdrawal of, 492. INDEX APPENDIX " D." 615 " PETITION." Meaning of, 483, PETITIONER. Death or disability of, 494. Substituted, 492. POLL BOOKS. Returning officer to deliver, 491. ■■ PROTHONOTARY." Definition of, 483. Proceedings by, on death of respondent, 494. To deposit security money in bank, 486. furnish name and address of returning officer, 484. keep book registering name and address of agents, 487. keep book stating deposit, 497. REPORTER. Appointment of, 492. RESPONDENT. Application to be admitted as, 495. Appointment of agent of, 486. Death of, 494. Notice of intention not to oppose petition, 495. Vacating seat, 494. " RETURNING OFFICER." Meaning of, 483. Name and address to be furnished, 484. Notices to be published by, 495. RULES OP THE SUPREME COURT. To apply, 498. Previous, annulled, 499. SECURITY. For payment of costs, 486. SECTIONS. Of Act, how construed, 484. SERVICE OF NOTICES. How time computed, 496. " SHERIFF." Definition of, 483. SPECIAL CASE. Application to state, 491. SUBPOENA. Issuing of, 492. TIME. Computation of, 495, 496. Enlargement or abridgement by Judge, 496. For applying to be admitted as respondent, 495. For hearing application to withdraw petition, 493. TRIAL. Adjournment of, 490. Notice of, 489. (form), 500. to be published, 489. Postponement of, 490. Time and place of, 489. 616 INDEX APPENDIX " D.' TRIAL JUDGES. Findings of, 492. In event of disability of, 490. Definition of, 483. WARRANT. For committal for contempt, 493. \ form of, 502. WITHDRAWAL OF PETITION, 493. WITNESSES. Compelling attendance of, 492. APPENDIX "E" INDEX TO RULES UNDER WINDING-UP ACT. ADDRESSES. Of contributories to be given, 509.. ADJOURNMENT. Of further proceedings after call, 510. ADMINISTRATOR. Order against contributory who is, 510. ADVERTISING. Appointment of liquidator, 508. Notice of meeting of creditors, 511. Order for winding up company, 508. Petition for winding up, 507. AFFIDAVIT. Of liquidator verifying list, 508. Verifying petition for winding up, 507, 508. APPEARANCE. By contributory or creditor, 511. APPLICATION. Notice of, how served, 507. BOND. To be given by liquidator, 508. CERTIFICATE. By prothonotary of list, 509. CONTRIBUTORIES. Appearance by, 511. Default of, 510. List of, made by liquidator, 508. Separate orders made against, 510. Summons to make call on, 509. COSTS. Judge may tax in a lump sum, 511. " COURT." Shall include " Judge," 512. EXECUTOR. Order against contributory who is, 510. FORM OF ORDERS, 512, 513. LIQUIDATOR. Advertising appointment of, 508. Security to l>e given by, 508. NOTICE. Of meeting of creditors, how given, 511. Relating to settlement of list, 509. Time allowed for, 509. 018 INDEX APPENDIX " B." ORDER. Against contributory who is executor or administrator, 510. For call on contributories, how made, 509. payment of money, how enforced, 510. Separate, against individual contributory, 510. PETITION. For winding-up, advertising, 507. creditors entitled to copy, 508. how entitled, 507. served, 507. verified, 507. PROTHONOTARY. To give certificate of list, 509. SERVICE. Of notice of application, 507. Not invalidated by defect in name, 511. Upon contributories, how effected, 511. SUMMONS. To make call on contributories, 509. f. '