,„_.. Cornell University Library KEN7944.551900 The Judicature Act :(Revised statutes, 1 3 1924 016 985 594 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/cu31924016985594 THE JUDICATURE ACT (REVISED STATUTES, 1900, CAP. 155) AND RULES OF THE SUPREME COURT OF NOVA SCOTIA CROWN RULES, AND WINDING UP RULES. HALIFAX : Commissioner of Public Works and Mines, Queen's Printer, , ' 1900, JUDICATURE ACT, ETC TABLE OK CONTENTS. PAGE The Judicature Act 1 Rules of the Supreme Court — Preliminary 21 ORDER. I. Form and commencement of action— Rules 1 and 2 21 II. Writ of Summons and Procedure, &c. — Rules 1 to 6 '.. 22 III. Indorsements of Claim — Rules 1 to 7 22 IY. Indorsement of Address — Rules 1 to 3 . 24 V. Issue of Writ of Summons — Rules 1 to 6. ... . 24 VI. Concurrent Writ— Rules 1 and 2 25 VII. Disclosures by Solicitors and Plaintiffs — Rule 1 25 VIII. Renewal of Writ— Rules 1 to 3 26 IX. Service of Writ of Summons. f 1. Mode of Service— Rules 1 and 2 27 2. On particular Defendants — Rules 3 to 8 . 27 3. In particular Actions — Rule 9 . 28 4. Generally— Rule 10 28 X. Substituted Service 28 XI. Service out of the Jurisdiction — Rules 1 to 5 . . . 28 XII. Appearance— Rules 1 to 7, 10 to 18 30 XIII. Default of appearance — Rules 1 to 12 32 Cases not specially providpd for — Rules 13 and 13 a... ...... ' 36 XIV. Leave to sign Judgment, &c. — Rules 1 to 9. . . . 37 XV. Application for Account — Rules 1 and 2 39 XVI. Parties. 1. Generally— Rules 1 to 13 39 3. Persons under disability — Rules 16 to 22 43 IV TABLE OF CONTENTS. ORDER PAGE XVI. Parties. — Continued. 4. Proceedings by or against Paupers — Kules 23 to 32 '. 44 5. Administration and execution of trusts — Rules 33 to 48 45 6. Third Party procedure — Rules 49 to 56 . . 49 Change of Parties by Death, &c. — Rules 1 to 10 51 Joinder of Causes of Action — Rules 1 to 9 53 . Trial without Pleadings 55 Pleading Generally— Rules 1 to 29 . f 56 Statement of Claim — Rules 1 to 6 61 Defence and Counter-claim — Rules 1 to 20. . . 63 Payment into Court and Tender — Rules 1 to 17. 66 Reply and Subsequent Pleading — Rules 1 to 6. . 69 Matters Arisino- Pending the Action — Rules 1 to 3 " 70 Proceedings in lieu of Demurrer — Rules 1 to 5 a 71 Discontinuance — Rules 1 to 4 72 Default of Pleading— Rules 1 to 14 73 Amendments — Rules 1 to 14 76 Summons for Directions — Rules 1 to 7 78 Discovery and Inspection — Rules 1 to 31 79 Admissions — Rules 1 to 9 86 Issues, Inquiries and Accounts — Rules 1 to 10 . . 88 1. Special Case — Rules 1 to 7 90 2. Issues of Fact without Pleadings — Rules 8 to 11. .. 91 Trial. 1. Place— Rules 1 and 2 ' 92 1. a. Time of Trial— Rule 1a 93 2. Mode of Trial— Rules 2 to 9 93 3. Notice and and entry of Trial — Rules 10 to 21 b 95 4. Proceedings on Trial — Rules 22 to 34. . . 97 5. Assessors and Referees — Rules 35 to 43 c 100 6. Writ of Inquiry, &c, as to Damages — Rules 44 to 48 101 XXXV. Evidence. 1. Generally — Rules 1 to 3 . . 103 2. Examination of Witnesses— Rules 3 a to 24 103 3. Subpoena— Rules 25 to 33 . . . 108 4. Perpetuating Testimony— Rules 34 to 37 . 108 5. Foreign Judgment — Rule 38 109 XVII. XVIII. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. XXVI. XXVII. XXVIII. XXIX. XXX. XXXI. XXXII. XXXIII. XXXIV. TAkLE OF CONTENTS. Order XXXVI. XXXVII. XXXVIII. XXXIX. XL. XLI. XLII. XLIII. XLIV. XLV. XL VI. PAGE Affidavits. 1. Affidavits and Depositions — Rules 1 to 19 a : 109 2. Affidavits, &c, in Chambers — Eules 20 to 24 112 3. Trial on Affidavit— Rules 25 to 30 113 Motion for new Trial— Rules 1 to 8 . . . 114 Motion for Judgment — Rules 1 to 12. .' . . . 115 Entry of Judgment — Rules lto 11 117 Execution. 1. Execution-^Rules 1 to 42 119 2. Discovery in aid of Execution — Rules 44 to 47 127 Writs of Execution and Sequestration —Rules 1 to 4 128 Attachment— -Rules 1 and 2 129 Attachment of Debts — Rules 1 to 9 129 Arrest of Defendant before final Judgment — Rules 1 to 15 131 Replevin — Rules 1 to 9 134 Actions against Absconding Debtors. 1. Attachments — Rules 1 to 5 137 2. Subsequsnt Attachers — Rules 6 to 10 ... . 138 3. Assessment of Damages — Rules 11 to 13 . 138 4. Summons to Agent — Rules 14 to 20 139 5. Release of Property — Rule 21 .':.'. 141 6. Security on Execution — Rule 22 141 7. Rehearing— Rule 23 . . . .- 141 8. Forms- Rule 24 141 XL VII. ' Actions against Foreign Companies— Rules 1 to 7 , ... 141 XL VII. a. Actions against Firms, &c. — Rules 1 to 11 ... . 143 XL VIII. Writ of Possession— Rules 1 to 4 146 XLIX. Writ of Delivery— Rules 1 and 2 146 L. Interlocutory Orders. 1. Mandamus, Injunction, &c. — Rules 1 to 12 147 2. Compounding Penal Actions — Rules 13 to.1'5 149 3. Receivers— Rules 15 a to 22 150 4. Liquidators and Guardians — Rule 23. . . . 151 » LI. Sales by the Court. 1. Lunatics and Infants Estates— Rules 1 to 5 , 152 2. Other Cases— Rules 6 to 9 .154 3. Foreclosure Sale— Rule 10 to 12 155 Vi TABLE OF CONTENTS. ORDER LII. LIII. LIV. LIV. a LIV. b LIV. c LV. LVI. LVII. LVIII. LIX. LX. * LX1II. LXIV. LXV. LXVI. LXVIII. LXIX. LXX. PAGli Motions and other Applications — Eules 1 to 16.156 Action of Mandamus Rules 1 to 4 -. 159 Applications and proceedings at Chambers — Eules 1 to 10 159 . Declaration on Originating Summons — Eules lto4 162 . Powers of Masters in Chambers —Eules 1 to 3 . 163 . Proceedings under Trustee Act — Eules 1 to 6.164 Chambers in Chancery Matters. 1. General Eule-^1 165 2. Administrations and Trusts — Eules 2 to 11 ' 166 3. Assistance of Experts — Eule 12 170 5. Proceedings relating to Infants — Eules 16 and 17 " '..: 170 6. Summons to Proceed — Eules 18 to 23 . . . 170 7. Summons Book— Eule 24 172 8. Attendance— Eule 25 . 172 9. Advertisements for Creditors, &c. — Eules 29 to 44 173 10. Interest— Eules 45 to 47 176 10. A. Eeferences— Eules 47 a to 47 m 177 11. Further Consideration — Rule 48 179 12. Forms— Eule 49 179 Interpleader- -Eules 1 to 17 179 Appeals, &c. — Eules 1 to 17 183 Sessions, Vacations, Arguments, &c — "Rules 1 to 24 ". 187 Officers and their Documents — Eules 1 to 17 . .192 Time— Eules 1 to 9 194 Costs— Eules 1 to 22 .., 195 Special Allowances, &c. — Eule 23 200 Notices, &c. — Eules 1 and 2 205 Services of Orders, &c. — Eules 1 to 8. .... 205 Non-application to Criminal Business, &c— Eules 1 and 2 206 Non-compliance — Rules 1 to 4. . . 207 Interpretation — Rules 1 and 2 207 General Eules — Rules 1 to 3 208 TABLE OP CONTENTS. ' Vll APPENDIX A. Ckown Rules — page , Custody of Eecords 1 Date of Proceedings 1 Affidavits 1-4 Certiorari : '. .... 4-7 Informations, Indictments, &c 7-8 Quo Warranto • 9-10 Mandamus 10-12 Prohibition , 12-13 Appearance to Indictment, Information and Inquisition . . 13-14 Bail . . . 15 Recognizance 15-16 Scire Facias 16 Pleadings 16-17 Copies of Proceedings and Service 17-18 Special Cases and Demurrers 18 Paper Books 18 Notice of Trial 18-19 Continuances 19 New Trial 19-20 Judgment by Default 20 Judgment 20-22 Appeals 22 Execution 22-24 Writs 24-25 Habeas Corpus 25-26 Motions 26-27 Attachment for Contempt 27-29 Time , 29-30 Amendment , 30 Costs 30 Notices 30 Non-compliance 31 Interpretation 4 . . 31 Forms . . . 31 Returns by Sheriffs and Clerks of the Crown 31-32 When to come in force 32 Forms 33-56 APPENDIX "B." Winding-up Rules • 69-74 REVISED STATUTES, 1900. CHAPTER 155. OF THE SUPREME COURT AND PROCEDURE THEREIN. THE JUDICATURE ACT. 1. This Chapter may be cited as "The Judicature Short «ue Act." R. S., c. 104, s. 1. INTERPRETATION. 2. In this Chapter, and in the Rules of the Supreme interpretation Court, unless the context otherwise requires, the follow- ° f terms ' ing expressions shall have or include the meanings in this section mentioned, that is to say : (1.) "Rules" includes "Rales 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 commenced by writ, or in such other manner as is prescribed 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 counter-claim as a defendant) against any other person by any form of pro- ceeding, whether the same is taken by action, suit, peti- tion, motion, summons, or otherwise. (6.) "Petitioner" includes every person making any application to the Court, either by petition, motion, or summons, otherwise than as against any defendant. (7.) "Defendant" includes every person served with any writ of summons or process, or served with notice of, or entitled to attend, any proceedings. (8.) "Party" includes every person served with notice of, or attending, any proceeding, although not named on the record ; and includes a body corporate or politic. 2 JUDICATURE ACT. R.S.,c. 155. (9.) "Matter" includes every proceeding in the Court, not in a cause. (10.) "Pleading" includes every petition or sum- mons, 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 statu- tory declaration. (14.) "Existing" means existing at the time of this Chapter coming into force. (15.) "This Chapter" means the portion of this Chapter exclusive of the rules. R. S., c. 104, s. 47. CONSTITUTION OF THE SUPREME COURT. supreme'court 3 " Tne Supreme Court of Nova Scotia as constituted before this Chapter, a Court of common law and equity, and possessing original and appellate jurisdiction in civil and in criminal cases, shall continue under the aforesaid name to constitute one Supreme Court of Judicature for Nova Scotia. R. S., c. 104, s. 2 part. SEAL. 8eaI - 4. The Governor-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 another seal for the Supreme Court is established, the existing seal in use in the Supreme Court may be used therefor. R. S., c. 104, s. 7. i JUDGES. supreme ou,t 5 ° The Bench of the Supreme Court shall be com- posed of a Chief Justice and six other Judges, including the Judge in Equity. R. S., c. 104, s. 2 part. fle'SoT" 6 « No P erson sha11 be appointed a Judge of the Supreme Court unless he has been a resident barrister of the Province for ten years, and has been practising as such for five years before such appointment, or has held office as a county court judge in the Province R S c 104, s. 2 part. judges, holding 7. The Judges of the Supreme Court shall hold no other offices under Government, except those of the local Judge in Admiralty of the Exchequer Court and the JUDICATURE ACT- 3 Judge Ordinary of the Court for Divorce and Matrimonial R.S., c. 155. Causes. E. S., c. 104, s. 2 part. ~ ~ 8. The persons hereafter appointed to fill the places Joiiges.appoint- of the Chief Justice, Judge in Equity and other Judges™ ' of the Supreme Court, and their successors 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. 104, s. 2 part. 9. Save as in , this Chapter is otherwise expressly Judges to have provided, all the Judges of the Supreme Court mentioned, e4ua pcra ' and their successors, shall have in all respects equal power, authority and jurisdiction. E. S., c. 104, s-. 2 part. 10. The Chief Justice for the time being of the chief justice, o f-i i-i-ii >ii -i -ii precedence of . supreme Court shall be entitled to precedence over all the other Judges thereof. E. S., c. 104, s. 2 part. 11. The Judges of the Supreme Court and their J^e^. p™ 08 ^ respective successors in office shall be entitled to have, and shall have, precedence next after the Chief Justice, according to seniority of appointment. E. S., c. 104, s. 2 part. OATH OF JUSTICES. 12. The oath to be taken by the Judges to be Judges, oath of hereafter appointed shall be the following: — "I do solemnly and sincerely promise and swear, that I will duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as — . So help me God." E. S., c. 104, s. 3. 13. The oath shall be administered to the Chief •^SKSEi 5 ' Justice and the other Judges by the Lieutenant-Governor, teied. or such person as is appointed by him to administer the same ; or by any person who is appointed by the Governor-General to administer oaths of office. E. S., c. 104, s. 4. JURISDICTION OF THE SUPREME COURT. 14. (1.) The Supreme Court of Nova Scotia shall ^"gg com*, continue to be a court of record, and, subject to the pro- visions of this Chapter, shall continue to have and ex- ercise the jurisdiction which at the time of the coming into force of this Chapter, was vested in, or capable of being exercised by such Court. (2.) The Supreme Court shall also have jurisdictionJnrisdktionin in actions to recover a debt or liquidated demand in eighty dollars. money which is under eighty dollars and not less than 4 JUDICATURE ACT. R.S.,c. 155. twenty dollars, and may try and dispose of the same as ^~^ other actions. E. S., c. 104, s. 8 part; 1900, c. 15, s. 1, part. Powers of 15. The Supreme Court shall have within this Supreme Court. -,-. ., r t J u Province the same powers as were formerly exercised by Her Majesty's Courts of Queen's Bench, Common Pleas, Exchequer and Chancery, in England ; and also such and the same powers as were on the first day of October, A. D. 1884, exercised in England 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 excepting those powers which were specially conferred by statutes relating to bankruptcy. R. S., c. 104, s. 8, part. Snc"ude1o°rme r 16 - Tne jurisdiction of the Supreme Court shall court's"™ ° f mcm de (subject to the exceptions hereinafter contained) judge. the jurisdiction which, immediately preceding the coming into force of this Chapter, 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 elsewhere, when acting as Judges in pursu- ance of any statute or law, and all powers given to any such Court, or to any such Judges, by any statute or law, and also all ministerial powers, duties and authorities incident to any and every part of the jurisdiction afore- said, as well civil as criminal. R. S., c. 104, s. 8, part. " raoreuin^ ^" Tne jurisdiction of the Supreme Court shall be jurisdietioD, exercised in the manner provided in this Chapter, or by Rules of the Supreme Court ; and where no special pro- visions are contained in this Chapter or in any such Rules of Court with reference thereto, it shall be exer- cised, as nearly as may be, in the same manner as the same might have been exercised prior to the first day of October,"A.D. 1884. R. S., c. 104, s. 11." RULES OF LAW. to be a eo n cS? lty 18, In ever y oivil cause or matt «r commenced in the tt?e6 adminiB " -Supreme Court, law and equity shall be administered therein, according to the Rules following : — Sghteufaid . C 1 ") If any Pontiff or petitioner claims to be en- by plaintiff, titled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument or contract, or against any right, title, or claim whatsoever, asserted by any defendant or respondent in such cause or JUDICATURE ACT. 5 matter, or to any relief founded upon a legal right which U.S., c 155. 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 relief 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 proceedings for the same or the like purpose properly instituted before the first day of October, A.D. 1884. <2.) If any defendant claims to be entitled to anyj,;™^'^ equitable estate or right, or to relief upon any equitable by defendant. ground against any deed, instrument or contract, 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 thereof shall give to every equit- able 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 petitioner as the Court of the Equity Judge or said Court of Chancery ought to have given, if the same or the like matters had been 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. (3.) The Supreme Court and every Judge thereof ^ n t ^ ,aim shall also have power to grant to any defendant in respect pnnies. 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 pleading, 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 properly 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 6 JUDICATURE ACT. R.S.,c. 155. against such claim as if he had been duly sued in the ~~ ordinary way by such defendant. Equitable rights (4,) The Supreme Court and every Judge thereof dentally. shall recognize 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. prohibition, in- (5.) No cause or proceeding at any time pending in feSce,°m- stay the Supreme Court shall be restrained by prohibition or mBteadof. injunction, but every matter of equity on which an in- junction against the prosecution of any 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 Chapter contained shall disable the Supreme Court or any Judge thereof from directing a stay of proceedings in any cause or matter pending before 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 generally, 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. Legal, ens- (6.) Subject to the aforesaid provisions for giving statutory vightB effect to equitable rights and other matters of equity in eiecogmze manner aforesaid, and to the other express provisions of this Chapter, 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. JUDICATURE ACT. 7 (7.) The Supreme Court in the exercise of the juris- R.S . c. 155. (fiction vested in it in every cause or matter pending Final ciotenulnu- before it, shall have power to grant, and shall grant matte. a li! either absolutely or on such reasonable terms and con- controversy. ditions as to such court seems just, all such remedies whatsoever as any of the parties thereto appear to be entitled to in respect to any and every legal or equitable claim properly brought forward by them respectively in such cause or matter, so that as far as possible all matters so in controversy between the said parties respectively may be completely and finally determined, and all multi- plicity of legal proceedings concerning any of such matters avoided. R. S., c. 104, s. 12. 19. (1.) No claim of a cestui que trust against his statute of limit- trustee, for any property held on any express trust, or in au'tetVex'prels respect of any breach of such trust, shall be held to be barred by any statute of limitation. (2. ) An estate for life without impeachment of waste KqmtaMe shall not confer or be deemed to have conferred 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 expressly appears by the instrument creating such estate. (3.) There shall not be any merger by operation of Merger. 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 suits i..,- po*. ■ \li ° " . . c xi J Ci. X session ot land possession or the receipt of the rents and profits ot any by mortgagor. land, as to which no notice of his intention to take pos- session or to enter into the receipt of the rents and profits thereof has been given by the mortgagee, may sue 1 for such possession, or for the recovery 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 jg™^ hand of the assignor (not purporting to be by way of »> action. 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 be and be deemed to have been effectual in law (subject to all equities which would have 8 JUDICATURE ACT. R.S., u. 155. 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 chose in action from the date of such notice, and all legal and other remedies for the same and the power to give a good dis- charge for the same, without the concurrence of the assignor. Disputed as- (6.) In case of an assignment of a debt or other dlbtTandohoses chose in action, if the debtor, trustee, or other person flic a aug n cMmI liable in respect to such debt or chose in action, has had plead' intei " notice that such assignment is disputed by the assignor or any one claiming under him, or of any 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. sureties to have (7 \ Every person who, being suretv for the debtor assignment or ^ I 1 i • ti • 1 debt and rcme- duty of another, or being liable with another for any debt ment" 1 ' " pay " or duty, pays such debt or performs such duty, shall be entitled to have assigned to him 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 judgment, 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 to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper 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-contractor, or co- debtor, as the case may be, indemnification for tbe ad- vances made and the loss sustained by the person who has so paid such debt or performed such duty ; and such payment or performance so made by such surety shall not be a defence to such action or other proceeding by him : Provided always, that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as be- tween those parties themselves, such last mentioned person is justly liable. of'tbetssence * . ( 8> ) Stipulations in contracts, as to time or otherwise, of the contract, 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 feuch contracts in a Court of Equity, shall JUDICATURE ACT. receive in the Supreme Court the same " construction and R.S., c. 155 effept as they would previously thereto have received in equity. (9.) A mandamus or an injunction ma v be wanted Mandamus, in. ' • • , i i . , J O"^" junctions, and or a receiver appointed by an interlocutory order of the receivers. 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 conditions 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 injunc- tion may be granted if the Court thinks fit, whether the person against whom such injunction is sought is, or, is not in possession under any claim of title or otherwise, 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 Custody of education of infants, the rules of equity shall prevail. (11.) Generally, in all matters not hereinbefore Conflict be- particularly mentioned, in which there is any conflict or equity !° w aQd 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. K. S., c. 104, s. 13. Os. 61-62, P. A. 370. SITTINGS AND DISTRIBUTION OF BUSINESS. lition ol terms 20. The legal year shall not be divided into terms so AUoiui far as relates to the administration of justice ; and there shall not be terms applicable to any sitting or business of the -Supreme Court, but in all cases in which, under the law existing prior to the first day of October, A.D. 1884, the terms into which the legal year was divided were used as a measure for determining the time at or within which any act was required to be done, the same may continue to be referred to for the same or the like purpose, unless and until provision is otherwise made by any lawful authority. E. S., c. 104, s. 14. 21. Subject to rules of court, the Supreme Court court may sit and the Judges thereof, shall have power to sit and 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 other- wise, is required to be discharged. E. S., c. 104, s. 15. 2 10 JUDICATURE ACT. R.8., tt.155. 22. All causes and matters in the Supreme Court Distribution of shall be distributed among the several judges thereof in business. suc ^ manner as j s f rom time to time determined by any rules of court, or orders of transfer, to be made under the authority of this Chapter. Every document 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. 104, s. 16, part. ^d oS'Sepa 23. All interlocutory and other steps and proceed- mies with by * n S s m or hefore the Supreme Court, in any 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. 104, s. 16, part. 1 etmo°n f s plecti011 24. A Judge for the trial of an election petition under the provisions of "The Nova Scotia Controverted Elections Act," shall be selected by the judges of the Supreme Court in such manner as is provided by any rules of court to be made for that purpose, subject to the approval of the Govern or-in-Council. R. S., c. 104, s. 17. aspraX; l .bieto 25. i 1 -) Evei 7 action and proceeding in the Sup- be disposijd oi reme Court, and all business arising out of the same, judge. ' except as hereinafter provided, shall so far as is practic- able and convenient, be heard, determined and disposed of before a single Judge. but d ™y iese C Jve ( 2 -) A J u ^? e sitt 'i n g elsewhere than in the Supreme ..case. Court in 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 w banco. smut a° court. (%■) In all such cases any Judge sitting in Court shall be deemed to constitute a court. R. S., c. 104, 18. SITTINGS AT HALIFAX. OivildtMngs at 3(L (1) There shM ^ ^ ^^ ^.^ Qf ^ Court m 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 JUDICATURE ACT. 11 us the Court directs, but so as to ensure, as far as pos-R.S., c. 155. sible, 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. R. S., c. 104, O. 58, r. 8 part, r. 10 part, S. C. R., Oct. 30, 1893, r. 4. 27. There shall be two sittings of the Court for the Criminal sittings disposal of criminal cases, one on the third Tuesday of a March, and the other on the first Tuesday of October, in each year, to be continued until all the business is dis- posed of. Such sittings shall be attended by the Grand Jury, and all other persons whose duty it is to attend the sittings of the Court in connection with the criminal business. R. S., c. 104, O. 58, r. 11. SPRING AND AUTUMN CIRCUITS. 28. There shall be as heretofore five circuits in the spring and Province : The Midland, the Southern, the Western, the division of. Eastern, and the Cape Breton Circuit. The Midland Circuit shall include the Counties 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 Guysborough. The Cape Breton Circuit shall include the Counties of Richmond, Inverness, Victoria, and Cape Breton. R. S., c. 104, s. 21, 1890, c. 12, s. 1. 29. The Supreme Court shall sit in the several Sp^^^ counties twice a year for the trial of causes and issues, « m e and place' 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. HANTS. At Windsor— On the last Tuesday of May, and on the Tuesday before the last Tuesday of September. COLCHESTER. At Truro — On the first Tuesday of June, and on the first Tuesday of October. CUMBERLAND. At Amherst — On the third Tuesday of June, and the second Tuesday of October. 12 JUDICATURE ACT. R.S.,0. 155. SOUTHERN CIRCUIT. LUNENBURG. At Lunenburg — On the last Tuesday of May. At Bridgewaler — On the second Tuesday of October. 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. At Shelburne — On the last Tuesday of September. YARMOUTH. At Yarmouth — On the fourth Tuesday of June. At Tusket Village — On the Tuesday before the last Tuesday of September. WESTERN CIRCUIT. DIGBY. At Digby — On the second Tuesday, of June. At Clare — On the last Tuesday of September. ANNAPOLIS. At Bridgetown — On the third Tuesday of June. At Annajjolis—On the first Tuesday of October. At Kentville— On the first Tuesday of June, and on the second Tuesday of October. EASTERN CIRCUIT. GUYSBOROUGH. At Gwjftborough— 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. At Pictou — On the second Tuesday of June, and the third Tuesday of October. JUDICATURE ACT. 13 CAPE BRETON CIRCUIT. R.S., C. 155. RICHMOND. At Arichat — On the first Tuesday of June, and the last Tuesday of September. INVERNESS. At Port Hood — On the second Tuesday of June, and the first Tuesday of October. VICTORIA. At Baddech — On the third Tuesday of June, and the second Tuesday of October. CAPE BRETON. At Sydney — On the fourth Tuesday of June, and the third Tuesday of October. R. S., c. 104, s. 22. 1890, c. 12, s. 2. 1893, c. 115. 1895, c. 26. 1896, c. 24. 1897, c. 34. 30. (1.) Each sittings of the Supreme Court in the Length of sitting next preceding section mentioned shall, unless the docket dr™it»° of causes for trial is sooner disposed of, continue, (a.) until the Saturday before the day thereby ap- pointed 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 remain in attendance from day to day for the trial of any jury causes, unless a new jury is summoned. E. S., c. 104, s. 23. 1899, e, 40. MIDSUMMER CIRCUITS. 31. Where the docket of causes for trial at any Midsummer en spring sittings has not been disposed of, there shall be a pi"ce of ™ e 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. 14 JUDICATURE ACT. R.S., C. 155. SOUTHERN CIRCUfT. At Shelburne, 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 Kentville, on the third Tuesday of August. EASTERN CIRCUIT. At Antigonish, on the third Tuesday of July; at Ciaysborough, on the third Tuesday of August. CAPE BRETON CIRCUIT. At Port Hood, on the third Tuesday of July ; at L'addrck, on the second Tuesday of August ; at Sydney, on the third Tuesday of August. R. S., c. 104, s. 24 part, and 25 part. Midsummer ojr- 32. The midsummer sittings at each place shall be cults, to lie held . . . ■ i i 1 - • . • by jiKiuc of the held by the iudge who presided at the spring sittings spring circuit. ,, . . J ..° . . r , . .i-, ^ ,1° upon that circuit, except in case of his illness or other cause, when another judge may hold such sittings. R. S., c. 104, s. 24 part. Midsummer cir- 33. jt shall not be necessary to give notice of trial cults, no notice J . o of that news- or to enter causes upon a docket for any such midsummer sittings, but the docket of the spring sittings shall be used. R. 8., c 104, s. 25 part. Length of sitting 34. Each of the midsummer sittings of the court at midsummer. o any place shall, unless the causes for trial are sooner disposed of, continue, (a.) until the day but one before the day appointed for the opening of the sittings at the next 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., e. 104, s. 26. SPECIAL SITTINGS. by e Srdefof ng ' 35< ( 1# ) Whenever it appears necessary for the court o, judge, disposal of actions at issue in any county, the court or a judge may either by consent of parties or otherwise, order a special sittings of the court to be held at any time in such county for the trial and disposal of such actions. JUDICATURE ACT. 15 (2.) The judge presiding' at such sittings may dis- R.S , pose 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. 1890, c. 10, s. 1. CONDUCT OF SITTINGS. 36, (1.) If no Judge of the Supreme Court can Judgoof county attend a sittings of the Supreme Court for the trial of re™l™uo go causes, with or without a jury, or a part of such sittings, 0D circuit ' a Judge of any County Court may if requested by the judge assigned to hold such sitting's, 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, authori- ties, duties and privileges of a Judge of the Supreme Court. (4.) No judge of any County Court shall preside at any sittings of the Supreme Court within the district for which he is judge of the County Court. 1897, c. 31, s. 1. 37. If the business which formerly was transacted Judge in equity IT-*' • i r i n ' si • - i exempted trout on the Equity side of the Supreme Court is transferred going, circuit on to any one of the judges, he shall not be required to at- equity imsinc™.. tend the circuits, unless the illness of a judge, or other sufficient cause, renders it necessary for him to do so. E. S., c. 104, O. 58, r. 24. 38= The presiding judge may, from time to time, in Judge may ex. his discretion, extend and adjourn any sittings for such e! time as he deems necessary for the disposal of the causes on the docket. E. S., c. i04, O. 58, r. 25. 39. If a judge is prevented from arriving at the Adjournment of place appointed for holding a sittings, on the day fixed in absence of for holding the same, the sheriff shall give public notice LKge ' 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. 104, O. 58, r. 20." 40. Separate lists shall be made of the jury and non- separate n»t of .-.,- l.. iji • j_ * Till! j ui t aij u non- jury trials for each sittings, and the jury trials shall be jury actions. 16 JUDICATURE ACT. R.S ,c 155 first disposed of, unless the judge for any special reason, "directs otherwise. R. S., c. 104, s. 27. TRIAL AND PROCEDURE. fS y *ufflctom 41, At tne tria] of an y action no party shall be in point of uw. en tit,] e d 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. R. S., c. 104, s. 19. with e oi 0f without ^- Subject to rules of court, the trials and 'pro- ajuiy. cedure in all causes, whether of a legal or equitable nature, shall be as nearly as possible the same, and the following provisions shall apply : — tiii°")my d (!•) In civil actions, unless the parties in person or mdei''fm- S ii'" d ^y 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 damaged assessed or inquired of by a judge with a jury in the following cases, that is to say — (a.) Where the action is an action for libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution or false im- prisonment. (b.) Where either of the parties in an action other than an equitable action requires the issues of fact to be tried, or the damages to be assessed or inquired of with a jury and files with the prothonotary 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 applica- tion 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. fc.J Where the judge at the trial in his discretion directs that the issues of fact shall be tried or the damages assessed or inquired of with a jury. 'wuhoutajmy. ( 2 In all other cases the issues of fact or the assessment or inquiry of damages in civil actions shall be tried, heard and determined and judgment given by a judge without a jury. JUDICATURE ACT. 17 (3.) If in any action both legal and equitable issues R.S.. c. ir»r». are raised, they shall be heard and determined at the u^ai ami ^m- sanie time, unless the Court or a judge, or the judge at illlmS" the trial, otherwise directs, or unless under the foregoing togotlier - 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 Renm-ving j U ,i g - judge may, of his own motion, or by consent of parties, d?y«/bySo reserve judgment until a future day, not later than sixty ^^/.dS'it, days from the day of reserving judgment, and his judg- •' l " c ' i ." l '^ , , r It 8 'i l '"' 1 ' ment whenever given shall be considered as if given at p ™i |,onotai 'y to the time of the trial. Such judgment shall be tiled with 1 '" 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 the cause or their respective solicitors that such judgment has been filed, and each of the parties shall have and exercise, within twenty days from the service of 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 ^^\ 1 l ™* L d l ; an action for libel, the jury shall, if so directed by the judge, give a special verdict, and if not so directed may give either a general or a special verdict. (6.) (a.) Upon a trial with a jury of any action ex-Juiy to amwcr v ' x \ , . c i.-, \ i V ... questions whun cept an action tor libel, slander, criminal directed, conversation, seduction, malicious arrest, malicious prosecution or false imprisonment, the judge instead of directing the jury to give either a general or a special verdict may direct the jury to answer any questions of fact raised by the issues. (b.) Such questions may be stated to them by the ^ l l '. c "f ) iul ;f ud g0 judge, and counsel may require the judge to and m m^\~ 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 in- volved in the action. (c.) The jury shall answer such questions, and shall ^f™™^.. 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. 18 JUDICATURE ACT. Refusal to sub mit questions, uew trial for. Assessors or- dered by Judge R.S., c. 155. (d.) If the judge refuses to direct the jury to answer any question which counsel requires him to submit to them, such refusal may be used as a ground for a new trial. It. S., c. 104, s. 20; 1889, c. 6, s. 1. 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 assessor or assessors. oV'amemore on (^-) ^he remuneration, if any, to be paid to such assessors shall be determined by the Court or a judge. R. S., c. 104, s. 28. cedTre before"' 44> Save as h Y th is Chapter or by any rules of judicature Act court it is otherwise provided, all forms and methods and rules con- » ' .... tinued in certain ( as nearly as may be) of procedure, which, immediately preceding the first day of October, A.D. 1884, 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 Chapter or with any rules of court, . may continue to be used and practised 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 applic- able in the Supreme Court prior to the said date. R. S., c. 104, s. 33. Uules of Court power to make Sittings. Pleadings and practice, &c. Juries. Appeals. RULES OF COURT. 45. The judges of the Supreme Court or a majority of them may at a meeting held for that purpose annul, or alter and amend, any rule or rules of court for the time being in force, and make any further or additional rules of court for carrying this Chapter into effect, and in particular for all or any of the following matters, namely : — (1. ) For regulating the sittings of the Court and of the judges of the Court in chambers. (2.) For regulating the pleading, practice and pro- cedure 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 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 courts, or a judge of a county court, from courts of probate JTJDICATUKE ACT. 19 or from any other courts or officers, and for the hearing R.S.,c 155. 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 business 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 regulating all matters relating to the practice on such hearings. ( 5 . ) For regulating the payment, transfer or deposit t Payment into into, or in, or out of, any court, of any money or property, or the dealing therewith. (6.) Generally for regulating any matter relating Generally, 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 suitors, and carrying into effect the provisions of this Chapter, and of all other statutes now or hereafter in force respecting the said Court. R. S., c. 104, ss. 34 part, 38. 1889, c. 5, s. 1. 1896, c. 17, s. 1. 46. The Rules of the Supreme Court in the schedule Rules of court to this Chapter shall come into force at the time of the into7o d r'ce!° ught coming into force of this Chapter. 47. All rules of court made in pursuance of this Rules of court Chapter shall, from and after the publication thereof inJni^SSw! 8 " the Royal Gazette, regulate all matters to which they extend, until annulled or altered in pursuance of this Chapter. R. S., c. 104, s. 35. 48. Subject to any rules of court which are made Powerof judges under the provisions of this Chapter, the judges of the brio™ judica- Supreme Court shall continue to have and exercise all ruie,^Sn« Sued . the powers which immediately preceding the coming into force of this Chapter they possessed or exercised as to making rules of court for the regulation of the practice of the Court. R. S., c. 104, s. 36. 49. Where anv provisions in respect to the Supreme Rules of court _, , . ,■' , x i j i i r i t0 modify stat- Court are contained in any statute, rules oi court may utes relating to be made for modifying such provisions to any extent ^""c.ufc"' ° e ' 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 Chapter, this power is expressly excluded with respect to such Act or any provision thereof. R. S., c. 104, s. 37. to be submitted to Lesjishiture. 20 .JirpjOATURD ACT. RS.,c. 15.*). 50. All rules of court made in pursuance of this RuTes of < 'oii.r Chapter 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 Legislature next after such rules are made, and if an address praying that any such rules may be cancelled is presented to the Lieutenant-Governor by the said House of Assembly or Legislative Council within 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 an- nulled 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. R. S., c. 104, s. 42. GENERAL PROVISIONS. O Ulcers of Court, duties of 51. Subject to any order in that behalf, the business prescribed by" to be performed in the Supreme Court or in 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 such business as is directed by rules of court ; and subject to such rules of court, all such officers respectively shall continue to perform the same duties, as nearly as may be, and in the same manner, as before this Chapter came into force. E. S., c. 104, s. 39. offlci.u referees, 52. Subject to rules of court the judges of the certain officials, •' . J fc> to he. county courts, masters in chancery, prothonotaries, and clerks of the Crown shall lie 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. R. S., c. 104, s. 40. a™ eternal' 5S - Evei T provision of this Chapter and of the iiie,'°i'c 3 o t n he mles of tm ' ^ u P reme Court shall be deemed remedial, and shall receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the objects of the said Chapter and rules according to their true intent, meaning and spirit. R. S., c. 104, s. 46, part. .-.I ruction. 21. SCHEDULE 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. " E." refers to the English Judicature Rules of 1883. "O. 08971" refers to the Consolidated Rule* of Practice of the Supreme Court of Judicature for Ontario of 1897. "S. 0. A." refers to Cap. 89, R. S., 4th Scries, "Of the Supreme Court and its Officers." " P. A." refers to the Practice Act, Cap. 94, R. S., 4th Series. " E. A." refers to the Equity Act, Cup. 0,5, R. S., 4th Series. "E. R. S. C." refers to English Rules of Court made subsequent to the Eng- lish Judicature Rules of 1883. "§. C. R," refers to Supreme Court Rules, Nova Scotia, made subsequent to the Rules of the Supreme Court 1884. "R. S." refers to Revised Statutes of Nova Scotia, 5th Series. THE RULES OF THE SUPREME COURT. PRELIMINARY. The following Orders and Rule? may be cited as Title, dnte and "The Rules of the Supreme Court." They shall be in w""" " operation on and after the date of the coming into force of "The Judicature Act," Revised Statutes, and shall also apply, so far as i.s practicable (unless otherwise expressly provided), to all proceedings taken on or after that day in all causes and matters then pending. ORDER I. ^ l £j; FORM AND COMMENCEMENT OF ACTION. 1. All actions and suits which, previously to the Actions, how first day of October, A.D. 1884, were commenced b v c0 writ, bill, or information in the Supreme Court, shall be instituted in the said Court by a proceeding to be called an action. (E. 1.) 2. All other proceedings in, and applications to, the Proceeding Supreme Court may, subject to these rules, be taken and actions, made in the same manner as they would have been taken and made if the Act had not been passed. (E. 2.) 22 INDORSEMENTS OF CLAIM. Order II. ORDER II. IT. 1—0. WRIT OF SUMMONS AND PROCEDURE RELATING THERETO. (3 nacora *• Every action in the Supreme Court shall be com- menced by writ nienced by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action. (E; 3.) Prolix forme 2. Any costs occasioned by the use of any forms of costs of. writs and of indorsements thereon, other or more prolix than the forms hereinafter prescribed, shall be borne by the party using the same, unless the Court or a judge otherwise directs. (E. 4.) u (*;>., 3. The writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be in one of the forms Nos. 1 and 2 in appendix A, part I, with such variations as circumstances require. (E. 5.) „ Leave & be ob- 4. No writ of summons for service out of the tained writ and jurisdiction, or of which notice is to be given out of the notice for Her- -!.,.. in • i l-i /-. vice out of -jurisdiction, shall be issued without the leave of the Court jurisdiction. J . , . /TT , - or a judge. (E. o.) Foims'of writ *>. A writ of summons to be served out of the and notice for jurisdiction, or of which notice is to be given out of the service out of I . ,. . . ,, , . r H, _. jurisdiction, jurisdiction, shall be in one of the forms Nos. 3 and 4 in appendix A, part I, with such variations as circumstances require. Such notice shall be in form No. 5 in the same part, with such variations as circumstances require. (E. 7.) Dateof 8 writ. *>. Every writ of summons and also (unless by any Teste aboiisbed. statute or by these rules it is otherwise provided), every other writ shall bear date on the day on which the same is issued. The teste of all writs is abolished. (E. 10.) ""•t-s"" OKDER III. INDORSEMENTS OF CLAIM. indorirnlnt on *• The indorsement of claim shall be made on every writ. writ of summons before it is issued. (E. 11.) Not essential to 2 - Iu tfl e indorsement required by Order II, Rule I, beprecisj.iinderjt shall not be essential to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled. (E. 12.) rormfonn- 3 - Tlie indorsement of claim shall be to the effect dorsement. of g uch Q f the formg {n ^ jjj Q f append j x A hereto INDORSEMENTS OF CLAIMS. 23 as is applicable to the case, or if none is found applicable ° r,,cr ,u - then of such other similarly concise form as the nature of — g ' — the case requires. (E. 13.) 4. If the plaintiff sues, or the defendant or any of Indor ^ment to the defendants is sued, in a representative capacity, the sh ? w re i"' eB . eB - -. , j. i 11 i ■ ■ i i r tative capacity. indorsement snail show in manner appearing by such of the forms in appendix A, part III, section V., as is applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued. (E. 14. ) 5. In all actions in which the plaintiff seeks only to g ^pA recover a debt or liquidated demand in money payable by mcnte. the defendant, with or without interest, arising (A.) upon a contract express or implied, (as for instance on a bill of exchange, promissory note, a check, or other simple contract debt) ; or (B.) on a bond or contract under seal for payment of a liquidated amount of money ; or (C.) on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty ; or (D.) on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or (E.) on ' a trust; or (F.) in actions for the recovery of land, with or without a claim for rent or mesne profits, by a land- lord against a tenant whose term has expired or has been duly determined by notice to quit, or against persons claiming under such tenant ; the writ of summons may, at the option of the plaintiff, be specially indorsed with a statement of his claim, or of the remedy or relief to which he claims to be entitled. Such special indorse- ment shall be to the effect of such of the forms in appendix C, section III, as is applicable to the case. (E. 16.) 6. Wherever the plaintiff's claim is for a debt^ or Debt £ 4 ;> quj liquidated demand only, the indorsement, besides stating dated demand", , - i i . i n , , ;i j_ i • j indorsementfor. the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs, respectively, and shall further state that upon payment thereof within six days after service, or, in case of a writ not for service within the jurisdiction, within the time allowed for appearance, further proceedings will be stayed. Such statement shall be in the form in appendix A, part III, sec. III. The defendant may, notwith- standing such payment, have the costs taxed, and if more than one sixth is disallowed the plaintiff's solicitor shall pay the costs of taxation. (E. 17.) 24 ISSUE OF WRIT OF SUMMONS. oni.i- 111. 7_ i n a li caS es in which the plaintiff, in the first instance, desires to have an account taken, the writ of indorsement iu summons shall be indorsed with a claim that such account S" be taken. (E. 18.) Order IV. ORDER IV. it. 1-3. INDORSEMENT OF ADDRESS. (16.) Address for eer 1. The solicitor of a plaintiff, suing by a solicitor, ™e and of his s hall indorse on the writ and notice in lieu of service of indorsed. a writ, the address of the plaintiff, and also his own name service" 8 " or firm and place of business (within the jurisdiction), which latter address shall be the place where writs, notices, petitions, orders, and other documents, pro- ceedings, and written communications may be left for him. (E. 19.) . ("•) 2. Where a plaintiff sues in person he shall indorse in person, ud- on the writ of summons, or notice in lieu of service of a writ of summons, his occupation and place of residence, and, if his place of residence is not within the jurisdic- tion, another place within the jurisdiction to be called his address for service, where writs, notices, pleadings,' petitions, orders, summonses, and other documents, proceedings, and written communications may be left for him. (E. 20.) where Jlreeocd ^. In all cases where proceedings are commenced inp commenced otherwise than by writ of summons, the preceding rules otherwise than -,. n in i 1 -. ~ by writ. of this order shall apply to the document by which such proceedings were originated as if it was a writ of summons. (E. 22.) Order V. it. 1—4. ORDER V. ISSUE OF WRIT OF SUMMONS. writ may be is- 1- In a10l J action the plaintiff, wherever resident, county"* ' wymsk y i s « ue a writ of summons in any county. (E. 23.) issued (2 out of a 2 - Every writ of summons shall be issued out of the offlce 0nolaiy ' 8 omce °£ one °f tne prothonotaries. (E. 24.) writsfmiy be 3 - Wrrt s of summons shall be prepared by the primea". 01 ' plaintiff or his solicitor, and may be written or printed, or partly written and partly printed. (E. 32.) To be 1 Sied. 4. Every writ of summons shall be sealed by the officer issuing the same, and shall thereupon be deemed to be issued. (E. 33.) DISCLOSURE BY SOLICITORS AND PLAINTIFFS. 25 5. The plaintiff or his solicitor shall, on presenting w,,,lt ' any writof summons for sealing, leave with the officer a v. IT. ."»»». copy written or printed, or partly written and partly Copy tome. printed, of such writ and of all the indorsements thereon, and such copy shall be signed by or for the solicitor leav- ing the same, or by the plaintiff himself if he sues in person. (E. 34.) 6. The prothonotary on receiving such copv shall, (' 24 -> t»l .1 T , r .-i ,• i. ° L J Couy to be hied hie the same, and an entry of the filing thereof shall be — ■•■■triei. to in- made in a book to be called the Cause Book, which is to Book"' Ca " Be be kept in the manner in which cause books are now kept ; and the action shall be distinguished by the date of the year, and a letter and number. (E. 35. i OKDEE VI. Ord.rVI. •■ rr. 1—2. 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 con- current 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 : Provided 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.) 2. A writ for service within the -jurisdiction may be . ( 26 -> a . J v Wi"itB for tttsr issued and marked as a concurrent writ with one for vice abroad and service, or whereof notice in lieu of service is to be may 'be con™"* given, out of the jurisdiction ; and a writ for service, or amrmt - whereof notice in lieu of service is to be given, out of the jurisdiction, may be issued and marked as a con- current writ with one for service within the jurisdiction. (E. 41.) ORDER VII. Order VII. r. 1. DISCLOSURE BY SOLICITORS AND PLAINTIFFS. 1 . Every solicitor whose name is indorsed on any writ p i^ n u H . s or summons shall, on demand in writing made by or on solicitor. behalf 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 4 26 SERVICE OF WRIT OF SUMMONS. order vu. authority or privity ; and if .such solicitor declares that the writ was not issued by him or with his authority or privity, all proceedings 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. rr. 1—3. (29.) Currency of writ. Renewal. (30.) Evidence of renewal. ORDER VIII. RENEWAL OF WRIT. (31.) Substitution for lost writ. 1 . No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date ; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve 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 renewal ; such renewal to be so marked by the prothonotary, upon delivery to him by the plaintiff or his solicitor of a memorandum in form No 6, in appendix A, part I, with such variations as circumstances require ; and a writ of summons so re- newed shall remain in force and be available, to prevent the operation of any statute whereby the time for the 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 purporting to have been renewed in manner aforesaid, shall for all purposes be sufficient evidence of the writ having been so renewed, and of the commencement 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 neces- sary^ 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.) SERVICE OF WRIT OF SUMMONS. 27 OEDEB IX. Order IX. rr. 1—8. SERVICE OF WRIT OF SUMMONS. 1. — Mode of Service. 1. No service of writ shall be required when the (32.) defendant, by his solicitor, undertakes in writing to Wben accepted - accept service and enters an appearance. (E. 48.) 2. When service is required the writ shall, wherever (33.) it is practicable, be served by the person by whom, and pSnt. 88 at in the manner in which, personal service is now made ; substituted 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 substituted 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 (34.) the action, they shall both be served unless the court or ^jf| b to d be nd a judge otherwise orders. (E. 50.) served. 4. When an infant is a defendant to the action, (34.) service on his father or guardian or person appointed by the court shall be deemed good service on the. infant unless the court or a judge otherwise 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, not r (35.) .. • i> * 1 1 1 • • Lunatic. 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 regulat- Co ( r ^ on8 _ ing service of process, any writ of summons, 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.) 28 service out or THE jurisdiction. «n-dcr ix. 3. — J n Particular Actions. IT. 9-10. (40.) 9. Service of a writ of summons in an action to «™ tp< "' recover land, may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling house or other conspicuous part of the property. (E. 56.) 4. — Generally. (41.) 10. (1.) The person serving a writ of summons Indorsement of . ,-, . -i • j_ i • • j.1 -a * J .1 date of receipt shall immediately on receiving the writ, indorse tnei eon and of service. the d&y Qf the month an( J week f the reC eipt 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 mention the day on which indorsement was made, and such affidavit may be sworn before a justice of the peace or any person having authority to take affidavits in the court. This rule shall apply to substituted as well as other service. (E. 62 and P. A. 39. S. C. R. 10th Dec, 1884, r. 4.) Affidavit of service. •■*«*- ORDER X. r. I. SUBSTITUTED SERVICE. if?.) Every application to the court or a judge for an order forth' grounds, for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds on which the application is made. (E. 63.) Order XI. r. 1. ORDER XL SERVICE OUT OF THE JURISDICTION'. in wnifcaws. L ^ crvice out of tne jurisdiction of a writ of sum- mons, or notice of a writ of summons, may be allowed by the court or i\ judge whenever— (a.) The whole subject-matter of the action is land situated within the jurisdiction (with or with- out rents or profits) ; or (h.) 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 SERVICE OUT OF THE JURISDICTION. 29 (c. ) Any relief is sought against any person domiciled, °™ ,er *'• or ordinarily resident, within the jurisdiction ; — ""' i8 ~ 3 ' or (d.) The action is for the administration of the personal estate of any deceased person who at the time of his death was domiciled within the jurisdiction, or for the execution as to property situated within the jurisdiction, of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Nora Scotia ; or (e.J The action is founded on any breach, or alleged breach, within the jurisdiction, of any con- tract wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction ; or (f.) 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 person duly served within the jurisdiction. (E. 64.) 2. Every application for leave to serve such writ or , m.) notice on a 1 defendant out of the jurisdiction shall be quired. 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.) 3. Any order giving leave to effect such service or (45.) give such notice shall limit a time after such service or penance.' 1 ' notice, within which such defendant is to enter an appear- ance, 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.) 30 APPEARANCE. order XI. rv. 4— lia. 4. When the defendant is neither a British subject nor in British dominions, notice of the writ, and not the (4fi.) Wbon TJerved writ itself, is to be served upon him. (E. 69. ) (47.) Notice, how served. onlytobes 5. Notice in lieu of service shall be given in the manner (as nearly as maybe) in which writs of summons are served. (E. 70.) (47a.) 5a. Service out of the jurisdiction of an origin- service out of ,. r .... - -ii 1T..J.1 jurisdiction of atmg summons or of a petition may be allowed by the monT a and gsum " court or a judge in like cases in which such service would petm^n. k e a n owe( j m respect to a writ of summons or notice of a writ of summons and subject to the like provisions. R. S. C, May 15th, 1899. Order Ml. it. 1—4. (48.) Notice when to (49.) How appear- ance entered. ORDER XII. APPEARANCE. (50.) Notice of ap pea ranee. (51.) Address. 1. In all cases the writ of summons shall name, in a memorandum subscribed thereon, the county 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 writ of summons by delivering to the proper officer a memor- andum in writing, dated on the day of its delivery, and containing the name of the defendant's solicitor, or stat- ing 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 by the seal. (E. 78.) 3. A defendant shall, on the day on which he enters an appearance to a writ of summons, give notice 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 plain-. tiff's solicitor, or at the address for service, or by prepaid letter directed to that address and posted on the day of entering appearance in due course of post, and shall in either case be accompanied by the sealed duplicate memorandum. (E. 79.) 4. A defendant appearing in person shall state in such memorandum his address. The solicitor of a APPEARANCE. 31 defendant appearing by a solicitor, shall state in such «"«<■-«• xii. memorandum his address. The address so stated shall he ir ' 5 ~'"' - the address for service. (E. 80, SI.) 5. If the memorandum does not contain the address . (?2.) required by the preceding rule, the memorandum shall - and the plaintiff claims foreclosure or sale, or redemp- tion, or where the action is for the administration of an Foreclosure, estate, or for a partition, except as is otherwise provided miniatration.&c. 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 provided 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 (77:) ^^ ^^ Foreclosure the following provisions shall apply to every application proof in. to the court or a judge for an order for foreclosure or foreclosure and sale, where the- defendant has not appeared : — (a.) The plaintiff shall produce a certificate of the Eegietrar'a cer- registrar of deeds for the registration dis- tlfioate - trict in which the mortgaged premises lie, setting forth all the incumbrances' registered against such premises. (b. ) He shall show bv affidavit to the satisfaction of Affidavit, 2 re- ' / -ljirn- r quirements of. the court or a judge the following tacts : (i) That the writ of summons or notice in lieu of writ of summons has been served upon the defendant or a substituted service effected, (ii) That the defendant has not entered an ap- pearance, although the period limited there- for has expired, (iii) That the allegations contained in the state- ment of claim are true . (c.) He shall produce a statement, verified by the affidavit of himself or some person 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 ap- plied for. Cd. ) The court or a judge shall ascertain and deter- Foreclosure, 1 / , , i i j 1 i' i-'Xii amount due afi- mine the amount due to the plaintiff, or may ccrt air,ed by refer the matter to a referee to take an ac- f^Z ! by count, and if it appears that there are persons other than the defendant, such as 36 DEFAULT OF APPEARANCE. Order XIII. rr. 13— 13a. Foreclosure, terms of sale. Subsequent ac- counts, &c. (78.) In other cases action may proceed. I78«.) Default of ap- pearance to originating summons. subsequent incumbrancers, 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 tit, and without previously determining the priorities of incumbrancers or the amount due on their incumbrances. (f.) All subsequent accounts may from time to time be taken, subsequent costs taxed and neces- sary proceedings had for redemption, by any of the parties entitled to redeem the mort- gaged premises as if specific directions for this purpose were contained in the order. CASES NOT SPECIALLY PROVIDED FOR. 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 ap- pearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not specially in- dorsed under Order III, rule 5, of a statement of claim, the action may proceed as if such 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 origi- nating summons to which an appearance is required to be 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 appearance 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. 114 a., E. R. S. C, Nov. 1893, r. 2.) LEAVE TO SIGN JUDGMENT. 37 ORDER XIV. Order XIV. rr. la — 3a. LEAVE TO SIGN JUDGMENT AND DEFEND WHERE WRIT SPECIALLY INDORSED. 1. (a.) Where the defendant appears to a writ of (79) summons specially indorsed under Order III, rule 5, the Adlment?" for plaintiff may, on affidavit made by himself, or by any other person who can swear positively to the facts, verify- ing 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 judg- ment for the amount so indorsed, together with interest, if any, or for recover}' 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 sufficient to entitle him to defend, make an order empowering the plaintiff to enter judgment accordingly. (b.) If on the hearing of any application under this indorsement rule it appears that any claim which could not have been ™mLded. specially indorsed under Order III, rule 5, has been in- cluded in the indorsement of the writ, the judge may, if he thinks fit, forthwith amend the indorsement by strik- ing 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), (b.) 2. The application by the plaintiff for leave to enter (8o.) final judgment under the next preceding rule, shall be si^Tause" 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 such isi.) application by affidavit, or (except in actions for the recovery of land) , by offering to bring into court the sum indorsed on the writ, or the judge may allow the defen- dant to be examined upon oath. (b. ) Such affidavit shall state whether 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 pro- 38 LEAVE TO SIGN JUDGMENT. Oi-.l. r XIV. rr. 4— ita. (82.) Defence as to part. (83.1 Defence by some defen- dants. duce any leases, deeds, books, or documents, or copies of or- extracts therefrom. E. 117 ; E. R. S. C, Nov. 1893, r. 3, (3.) 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 forthwith 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 proceed with his action against the former. (E. 119.) 6. Leave to defend may be given unconditionally, 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. 120a; E. R. S. C, Nov. 1893, r. 3, (7.) 8. ^'here leave, whether conditional or uncon- tria? ctl asto 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 summons for direc- tions, and may order the action to be forthwith set down for trial. (E. 120 b part; E. R. S. C, Nov. 1893.) 9. C«.) The costs of and incident to all applications 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. (84.) Leave to defend. (84a.) Summary disposal. (816.) Costs. ' PARTIES. 39 (6.) If the plaintiff makes an application under this <>"■«■»• *iv . 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 forth- with by the plaintiff. (E. 120 c ; E. B. S. C, Nov. 1893, r, 3, [9.) ORDER XV. Order XV. rr. 1— a. APPLICATION FOR ACCOUNT. 1 . Where a writ of summons has been indorsed for (85.) an account, under order III, rale 7, or where the in- £jSL as *° dorsement on a writ of summons involves taking an ac- count, 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 preliminary question to be tried, an order for the proper accounts, with all neces- sary inquiries and directions now usual in. similar cases, shall be forthwith made. (E. 124.) 2. An application for such order as is mentioned in (86.) the next preceding rule shall be made by summons, and be affidavit. supported by an affidavit, when necessary, filed on be- half 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. OnUrXYl PARTIES. 1. — Generally. 1. All persons may be joined in one action as plaintiffs (87.) in whom any right to relief in respect of or arising outpSinHfls 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 application 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 40 PARTIES. ' order xvi. j]j e y are entitled to, without any amendment. 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 otherwise directs. (E. 123; E. E. E. S. C, 26th Oct. 1896.) (88.) 2. Where an action has been commenced in the name b^ 'Sat™" 8 of 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 determination of the real matter in dis- pute so to do, may order any other person to be sub- stituted or added as plaintiff, upon such terms as are just. E. 124.) _ J8»> 3. Where in anv action any person has been im- Set-off not ".,.., J l , . . rr affected by properly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he may obtain the benefit thereof by establishing his 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 consequent thereon. (E. 125.) joiudi?°of de- 4. All persons may be joined as defendants against feudauts. whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. 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.) DefJdams not *>. ^ sfla ^ not ^ e necessary that every defendant interested as to shall be interested as to all the relief prayed for, or as to 0.11 I ) f "I n'Hi'u i Iii;> ET %/ " every cause of action included in any proceeding 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 at- tend any proceedings in which he has no interest. (E. 12?.) 02.) 6. The plaintiff may, at his option, join as parties to All contracting,, ,. ., ^ r „ ' ' ' v ,, parties may be the same action all or any of the persons severally, or jointly and severally, liable on any one contract, includ- ing parties to bills of exchange and promissory notes. (E. 128.) where 9 donbt 8 7 - Where the plaintiff is in doubt as to the person exist. from whom he is entitled to redress, he may, in such manner as is hereinafter mentioned, or as is prescribed PARTIES. 41 by any special order, join two or more defendants, to the 9nlvr XVI - intent that the question as to which, if any, of the defen "'• 8 ~ 8 "' dants is liable, and to what extent, may be determined as between all parties. (E. 129.) 8. Trustees, executors, and administrators may sue ou and be sued on behalf of or as representing the property Ke i iresentative8 or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as represent- ing such persons ; but the court or a judge may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties. (E. 130. ) 8a. Where a mortgagee has died, the proceedings , .(««•>, in actions for foreclosure or foreclosure and sale may be pens7ug B Xth' s " taken and carried on by his executors or administrators parties in and in their name, and they shall represent the heirs and persons interested in the estate of the deceased. (S. C 11., March 1st, 1898.) 8r. Except when otherwise ordered, it shall not o 6 > ! , i , » . . .. , , . Heirs, devisees, be necessary to make tne heirs-at-law, or devisees, or or widow of de- widow of a deceased mortgagor, or of a deceased owner gago" o'"°df" of the equity of redemption, parties to an action for fore- SeemL™' closure or foreclosure and sale, but the executors or ad- ministrators 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.) 8c. If there are no executors or administrators, or (Die.) none within the jurisdiction, the court or a judge on pJiuteciby court application, before the issuing of the writ of summons, oV^nS' 016 may appoint a party to represent the heirs and persons trat01 ' 8 - interested in the estate of the deceased, and the court may direct such proceedings as are necessary for promot- ing 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.) 8d. It shall not be necessary to make beneficiaries ma.) -. ,. , 3 r i , i , , i i Beneficiaries or or subsequent incumbrancers defendants, but the court or subsequent in- a judge may direct notice to be given to the beneficiaries neSs™'™'"" 01 or subsequent incumbrancers by mailing a notice of the order with a copy of the advertisement of sale, and after such notice any such beneficiary or subsequent incum- brancer 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 6 42 PARTIES. Older XVI. rr. 9-10. (95.) Where parties numerous. (95a.) Power to ap- prove com- promise iu ab- sence of some of the persons interested. (96.) Remedy fornon joinder and mie joinder. 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 addition to directing such notice to be given, may direct such pro- ceedings as are necessary to protect the rights of the parties. (S. C. R., March 1st, 1898.) 9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the court or a judge to defend, in such cause or matter, on behalf of or for the benefit of all persons so interested. (E. 131.) 9a. Where in proceedings concerning a trust a com- promise is proposed and some of the persons interested in the compromise are not parties to the proceedings, but there are other persons in the same interest before the court and assenting to the compromise, the court or a judge, if satisfied that the compromise will be for the benefit of the absent persons, and that to require service on such persons would cause unreasonable expense or delay, may approve 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., O. 16, r. Ha, E. R. S. C, Nov. 1893, r. 5.) 10. No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the i*ights and interests of the parties actually before it. The court or a judge : may, at any stage of the proceedings, 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 parties, 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 , effectual^ and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. Xo person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without 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 hereinafter mentioned, or in such manner as is prescribed. PAETIBS. 43 by any special order, and the proceedings as against such < * raer XVI - party shall be deemed to have begun only on the service "' """*• of such writ or notice. (E. 133.) 3T.8g, 11. Any application to add, or strike out, or substi- A u f^ OB t0 tute a plaintiff or defendant may be made to the court or amend as to a judge at any time before trial by notice of motion or part,e8 ' summons, or at the trial of the action in a summary manner. (E. 134.) 12. Where a defendant is added or substituted, the (98.) plaintiff shall, unless otherwise ordered by the court or a def mdlnTwith judge, file an amended copy of and sue out a writ of WTit " 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 a . (99) .,„ of before such defendant has been added, the same shall, 8ta J emont unless otherwise ordered by the court or jndge, be amended in such manner as the making such new defend- ant a party renders desirable ; and a copy of the amended statement of claim shall be delivered to the new defend- ant with the writ or notice. (O. (1897), r. 208,) ****** 3. — Persons under disability. 16. Infants may sue as plaintiffs by their next (102.1 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- (103,) vided by the statutes in force to that effect. (E. 138, part. ) 18. Where lunatics and persons of unsound mind, (tow not so found by judicial decision or inquisition, might respectively, immediately preceding the first day of October, A.D. 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 prac- tice immediately preceding the said first day of October, except as amended by these rules, and may in like manner defend any action by their committees or guardians appointed for that purpose. (E. 139.) 19. An infant shall not enter an appearance except (ins.) by his guai'dian all litem. No order for the appointment gu^S'.' 06 i of such guardian shall be necessary, but the solicitor ap- plying to enter such appearance, shall make and file an 44 PARTIES. or«ior \vi. affidavit in the form No. 8 in appendix A, part II, with "' i0 ~ !: '- such variations as circumstances require. (E. 140.) okici- ™tnece»- 20. Every infant served with a petition or notice of sa, T motion, or summons in a matter, shall appear on the hearing thereof by a guardian ae assigned. counsel, or solicitor, or both, to assist him, and a counsel or solicitor so assigned 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.) 28. Whilst a person sues or defends as a pauper no (iu.) person shall take, or agree to take, or seek to obtain muted: per from him, any fee, profit, or reward for the conduct of his business in the court, and any person 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.) 29. If any person, admitted to sue or defend as a„ .J 115 ). ^ *■ ~ r Punishment, pauper, gives or agrees to give, any such fee, profit, or &c, for paying reward, he shall be forthwith dispaupered, and shall not be afterwards admitted again in the same cause to sue or defend as a pauper. (EM50.) 30. No notice of motion shall be served, or summons .(ue.) . issued, and no petition shall be presented, on behalf of notice*, &c. any person admitted to sue or defend as a pauper, except for the discharge of his solicitor, unless it is signed by his solicitor. (E. 1-51.) 31. It shall be the duty of the solicitor assigned to a (i>7.) person admitted to sue or defend as a pauper, to take care er'« solicitor. that nonotice is served, or summons issued, or petition presented, without good cause. (E. 152.) 32. Costs ordered to be paid to a person admitted to ^ (mi sue or defend as a pauper shall, unless the court or a taxed. judge otherwise directs, be taxed as in other cases. (E. 153.) 5 .—Administration and Execution of Trusts. , 34. Any residuary legatee or next of kin entitled to, tee iiDd next of a judgment or order for the administration of the personal estate of a deceased person, may have the same without serving the remaining residuary legatees or next of kin. (E. 155.) Legiitee 2 with 35. Any legatee interested in a legacy charged upon re"uy e ™ real property, and any person interested in the proceeds of real property directed to be sold, and who is entitled to a judgment or order for the administration of the estate of a deceased person, may have the same without serving auy other legatee or person interested in the pro- ceeds of the estate. (E. 156.) itexidimry'devi- ^6. Any residuary devisee or heir entitled to the «*« and Wire, like judgment or order, may have the same without serv- ing any co-residuary devisee or co-heir. (E. 157.) cestJil 2 qL 37. Any one of several beneficiaries under any deed or instrument entitled to a judgment or order for the execution of the trusts of the deed or instrument, may have the same without serving any other beneficiary. 38. In all cases of actions for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest. (E. 159.) Remedy against 39. Any executor, administrator, or trustee entitled one legatee, see. thereto may have a judgment or order against any one legatee, next of kin, or beneficiary for the adminis- trusl. .(124.) Waste. PARTIES. 47 tration of the estate or the execution of the trusts. 0r,l< " 1 ' **■■ (E. 160.) '•'•• 4 "~ 43 - 40. The court or a jud°e may require any person to „ , ('?'■) „ n J v * * .. J l Conduct of the be made a party to any action or proceeding, and may proceedings. 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 footing in regard to costs as other parties having a common interest with him in the matters in question. (K. 161.) 41. (1.) Wherever, in any action for the adminis- _ (m.i. tration of the estate of a deceased person or the execution parties. of the trusts of arty deed or instrument, or for the par- tition 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.J affecting the rights or interests of persons not parties to the action, the court or a judge may direct that any persons in- terested in the estate, or under the trust, or in the hereditaments, shall be served with notice of the judg- ment or order ; and after such notice such persons 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 dis- charge, vary, or add to the judgment or order. (E. 162.) (2.) The provisions of this rule shall apply to causes in originating commenced by originating summons or bv petition. (E. peSi"*! '""' S.C., May 15th, 1899.) 42. It shall not be necessary for any person served U28.) , •* i . • i Person notified, with notice of any judgment or order, to obtain an order to appear as for liberty to attend the proceedings under such judg- de ment or order, but such person shall be at liberty to at- tend the proceedings upon entering an appearance in the same manner, and subject to the same provisions, as a defendant entering an appearance. (E. 163.) 43. A memorandum of the service upon any person 1129.) -, . ,• 1 Entry of service of notice of the judgment or order m any action under rale 41 shall be entered in the Prothonotary's office upon due proof by affidavit of such service. (E. 164.) 48 PARTIES. order xvi. 44. Notice of a judgment or order- served pursuant it. 44-49. ^ q ru | e ^ s h a ii he entitled in the action, and there shall Notici'iTOw cii he endorsed thereon a memorandum in the form No. 22, titled, and form. append j x Q _ (E. 1 65. ) (131.) 45. Notice of a judgment or order on an infant or ? r °i t imatf c . infaut person of unsound mind not so found by inquisition or judicial decision, shall he served in the same manner as a writ of summons. (E. 166.) (i32.> 46. In any cause or matter to execute the trusts of a S'wnecesiary'' wil1 ^ sna11 n " t be necessary to make the heirs-at-law paities. parties, but the plaintiff shall be at liberty to make the heirs-at-law parties where he desires to have the will es- tablished against them. (E. 167.) nasi 47. If in any cause, matter, or other proceeding, it S rat"uv" oiepre " appears to the court or a judge that any deceased 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 representing 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 proceeding, on such notice to such persons, if any, as the court or judge thinks fit, either specially or genei'ally 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 representative of the deceased had been a party to the cause, matter, or proceeding. (E. 168.) (i3i.i 48. In any cause or matter for the administration of in admmistra- the estate of a deceased person, no party other than the executor or administrator shall, unless 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 tit. (E. 169.) 6. — Third Party Procedure. (135.) 49. "When a defendant claims to be entitled to con- iia bie e to°?ontri n tribution, or indemnity over against any person not a demniV'defen party to tne action, he may, by leave of the court or a dant. judge, issue a notice (hereinafter called the third party notice) to that effect, stamped with the seal with which PARTIES. 49 writs of summons are sealed. A copy of such notice «**«»■ xvi. shall be filed with the proper officer and served on such "'' 50 ~ 88, person according to the rales 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 a 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 there- with 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 U36.> served as mentioned in the next preceding rule (herein- u,? r P d e party! by after called the third party , desires to dispute the plain- tiff's claim in the action as against the defendant 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 the judgment obtained against such defendant, whether obtained by consent or otherwise, aud his own liability to contribute or indem- nify, as the case may be, to the extent claimed in the third party notice : Provided 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 ap- pear, and such leave may be given upon such terms, if any, as the court or judge thinks tit. (E. 171. ) 51. Where the third party makes default in entering < 1 37. ) an appearance in the action, if the defendant giving thepa, f ty!' tbythird notice suffers judgment by default, he shall be entitled at any time, after satisfaction of the judgment against hiinself , or before such satisfaction 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 judg- ment upon such terms as seem just. (HE. 172.) 52. Where a third party makes default in entering (iss.) an appearance in the action, if the action is tried and ag^SSThM results in favour of the plaintiff, the judge who tries the P arty after trial - action may, at or after the trial, order such judgment as ■ the nature of the case requires to be entered for the defendant giving the notice against the third party : Provided that execution shall not be issued thereon without 7 50 PARTIES. order xvi. ] ea ve of the judge until after satisfaction by such defen- rr. 53-5«. < j ant Q f ^ e verdict or judgment against him. And if the action is finally decided in the plaintiff's favour, other- wise 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.) r . 1.139.) 53. If a third party appears pursuant to the third third party, party notice, the defendant giving the notice may apply to the court or a judge for directions, and the court or a judge, upon the hearing of such application, 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 ques- tion of such liability, 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.) ,. . , « ,CT *■*• ing the same. (E. 212.) ' "' K ~ TO - 17. It shall not he sufficient for a defendant in his by his reply may join issue upon the defence, and 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 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 allega- (lso.) tion of fact in the previous pleading of the opposite direct Midilm. 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 sufficient to deny that he received that particular amount, but he shall deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances. (E. 215.) 20. Where a contract, promise, or agreement is al- (181.1 Denial of con- leged in any pleading, a bare denial of the same by the tract. opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, Legality. 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 agree- ment, whether with reference to the Statute of Frauds or statute of otherwise (E. 216.) 21. Where the contents of any documents are tt (! ®f- , (j0cu material, it shall be sufficient in the pleading to state the mi to be ° effect thereof as briefly as possible, without setting out statod - the whole or any part thereof unless the precise words of the document or any part thereof are material. (E. 217.) 22. Where it is material to allege malice, fraudulent Alle ^{f o 3 l - l » of intention, knowledge, or other condition of the mind of™««.' ta 60 PLEADING GENERALLY. order vis. an y person, it shall be sufficient to allege the same as a rr. a.i— as. ^ ac ^ w ^] 10u t so tting out the circumstances from which the same is to be inferred. (E. 218.) .„ d. 8 *' , 23. Where it is material to allege notice to any Allegation of . i • • i n 1 v» • notice. person of any tact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material. (E. 219.) (185.) 24. Where any contract or any relation between any tract. persons is to be implied from a series of letters or con- versations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversa- tions, 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.) mod' 1 facts ^" Neither party need in any pleading allege any matter of fact which the law presumes in his favor or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied: {e.g., consideration for a bill of exchange, 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 objections. pleading on the ground of any alleged want of form. (E. 222.) Amending ™d 27 - Tne court or a judge may at any stage of the S i'ea k d"n S '8 OUt proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unneces- sary or scandalous, or which may tend to prejudice, em- barrass, 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.) KiingneceUavy 28 - Delivering a statement of claim or defence, or other pleading or proceeding, when mentioned or referred to in these Orders, includes filing, where by the practice of the court heretofore, or under these Orders, state- ments, pleadings, or proceedings of a like kind ought to be filed. (O. (1897), r. 267) Presumed facts need not be stated . (187.) No technical STATEMENT OF OLATM. 61 t 29. In any action for slanderous words spoken of •►■■"I" - *'*■ anv woman, imputing to her anv unchaste conduct, it -^-^ shall not be necessary to allege in pleading, or prove at Special damage the trial, that any special damage resulted to her from irgecMn certain the utterance of such words ; but she shall recover such caseB ' damages as may be assessed, without such averment or proof of damage. (P. A. 184.) ORDER XX. Order XX. r. 1. STATEMENT OF CLAIM. 1. The delivery of statements of claim shall be (102.) regulated as follows : — claims! y ° (a.) Where the writ is specially indorsed under where writ Order III, rule 5, no further statement of dorsed. y m claim shall be delivered, but the indorsement on the writ shall be deemed to be the state- ment of claim : (b.J Subject to the provisions of Order XIII, rule Need not be de- 13, as to filing a statement of claim when demanded. there is no appearance, no statement of claim need be delivered unless the defendant at the time of entering appearance, or within eight days thereafter, 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 ^,™, fnr flc " 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 (exceptasin fa. j mentioned) ^Z%t deliver a statement of claim, either with the delivered, 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 statement be delivered more than five weeks after the appearance has been entered unless otherwise ordered by the court or a judge : 62 STATEMENT OP CLAIM. order vv. '(e.) Where the plaintiff delivers a statement of claim without being required to do so, or the CoStB Of U11- lCli M • Li-A necessary state- defendant unnecessarily requires such state- mento£cl " i,n - nient, the court or a judge may make such order as to the costs occasioned' thereby as are just, if it appears that the delivery of a statement of claim was unnecessary or improper. (E. 225.) ' Amendment of ^. Where a statement of claim is delivered the indorsement un- p] a i n tiff may therein alter, modify, or extend his claim DGCG69*irv without any amendment of the indorsement of the writ. (E. 228.) « . 'i 94 -' . 3. The statement of claim must in all cases show the Must show place of trial. proposed place of trial. (E. 229.) ciaim'for'reiief ^. Every statement of claim shall state specifically must be specific, the relief which the plaintiff claims, either simply or in the alternative, and it shall not be 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 defendant, in his defence. (E. 230.) separitfcauses 5. Where the plaintiff seeks relief in respect to of complaint, several distinct claims or causes of complaint founded 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 defendant relies upon seveial distinct grounds of defence, set-off, or counter- claim founded upon separate and distinct facts. (E. 231.) Accoilnts'tated *>. In every cage in which the cause of action is a it°is e caus e e g oi' " ^ated 01 " settled account, the same shall be alleged with action. particulars, but in every case in which a statement of ac- count 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 pleadings. (E. 232,) DEFENCE AND COUNTER-CLAIM. 63 ORDER XXI. wide- xxi. IT. 1—8. DEFENCE AND COUNTER-CLAIM. 1. In actions for a debt or liquidated demand in k!lw]od ' 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- (2>a.) »~ «4- /XT* OKO \ Pleas in abate- ment. (£j. ZOO.) me nt aboliulied . 20. No defendant in an action for the recovery of™.., ( 2l ?,-> , .-,... , . . r . in T^le need not be land who is in possession by himself or his tenant, shall pleaded m be required to plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state, by way of de- fence, 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* statement of claim. He may nevertheless rely upon any ground of defence which he can prove, except as herein- before mentioned. (E. 254.) 9 66 PAYMENT INTO AND OUT OF COURT, ETC. Order AMI. "■• »-«• > ORDER XXII. PAYMENT INTO AND OUT OF COUET AND TENDER 1 Payment into 1. Where any action is brought to recover a debt or imrt with (Jeliiiil damages, any defendant may, before or at the time of Mobility.' delivering his defence, or at any 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 pro- visions of rule 6. (E. 255.) ,„ . < 2l f > .„ . 2. Payment into court shall be signified in the de- To be siginhi-d J , & , iuQefeuce. fence, and the claim or cause of action in satisfaction ,of which such payment is made shall be specified therein. (E. 256.) Tc-ucier"" '' 3. With a defence setting up a tender before action, the sum of money alleged to have been tendered shall be brought into court. (E. 257-.) Notiw'iV, !«• ^- ^ *^ e defendant pays money into court before !iXm"' IV< "''' y "' ' d^livpi'ing his defence, he shall serve upon the plaintiff 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.) whJtoti'paid 5. In the following cases of payment into court to plaintiff. under this order, viz : — (a.) When payment into court is made before 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 defence : (<:.) When payment into court is made with a defence sotting 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.) 6. When the liability of the defendant, in respect to denying i,a- the claim or cause of act i on in satisfaction of which the payment into court has been made, is denied in the de- fence, the following rules shall apply : — (223.) With defence PAYMENT INTO AND OUT OF COURT, ETC. 67 (a.) The plaintiff may accept, in satisfaction of the itr,ler v * n - claim or cause of action in respect to which _— ^-'- — the payment into court has been made, the tng'oi- refusing" sum so paid in, in which case he shall be entitled to have the money paid, out to him as hereinafter provided, notwithstanding the defendant's denial of liability, whereupon all further proceedings, in respect to such claim or cause of action, except as to costs, shall be stayed ; or the plaintiff may refuse to accept the money in satisfaction, and reply accord- ingly, in which case the money shall remain in court subject to the provisions hereinafter mentioned : (b.) If the 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 ac- cepting the money, be entitled to have the money paid out to himself on request, or to his solicitor on the plaintiff's written authority, unless the court or a judge otherwise orders : (c.) If the plaintiff does not accept, 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, but proceeds with the action in respect to such claim or cause of action, or any part thereof, the 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. 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 be applied, so far as is necessary, in satisfaction of the plaintiff's claim, and the balance (if any) shall, under such order, be repaid'to the defendant. If the defendant succeeds in respect to such claim or cause of action, the whole amount shall, under such order, be repaid to him. (E. 260.) 7. The plaintiff , when payment into court is made 1221.) I ' £ J . . . -. ,-, Acceptance and before delivery of defence, may withm four nays after m iti»x«f.ti order of the court may be invested in Dominion or provincial securities, and upon mortgage of freehold estates. (E.271.) 16. Every application for the purpose of the con- (233.) version of any stocks, funds, or securities into any other convert 1 stocks, stocks, funds, or securities authorized by the next pre- &c ' ceding rule, shall be served upon such persons, if any, as the court or judge thinks fit. (E. 272.) 17. Where a cause or matter is tried by a judge with .. ( 233 "> , , J J o I'nyment not to a iury no communication to the lury shall be made until i>o communi- CltGtl to iurv. after the verdict is given, either of the 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.) ORDER XXIII. o.-,i«r xxin. IT. 1— g. REPLY AND SUBSEQUENT PEEADIXIiS. 1. A plaintiff shall deliver his reply, if any, within i ( bu^ twenty-one days after the defence or the last of themadc y,w 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 B b <^» joinder of issue, shall be pleaded without leave of the pleading?" leave court or a judge, and then shall be pleaded only upon tor ' such terms as the court or judge thinks fit. (E. 277.) 70 MATTERS ARISING PENDING THE ACTION. «r«icr win. 3_ Subject to the next preceding rule, every plead- — "' { "' — ing subsequent to reply shall be delivered within four Timo for'de- days after the delivery of the previous pleading, unless livery ' the time is extended by the court or a judge. (E. 278.) „ , i 237 » 4. Where a counter-claim is pleaded, a reply thereto Kcply to i !■ i i counter-claim, shall be subject to the rules applicable to statements of defence. (E. 279.) ( o 3 f 8 pioud- 5. As soon as any party has joined issue upon the preceding pleading of the opposite party, simply, with- out adding any further or other pleading thereto, or has made default as mentioned in order XXVII, rule 12, the pleadings as between such parties shall be deemed to be closed. (E. 280.) New fS?'n *>• ^° ncw assignment shall be necessary or used. ment, abolished. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amend- ment without leave of the statement of claim, or by way of reply. (E. 281.) ClOBe of plead or,n. wiv. ORDEE XXIV. IT. 1—8. .MATTERS ARISING PENDING THE ACTION. „ „ -8. PROCEEDINGS IN I.TEU OF DEMURRER AND FAME PLEADINGS. 1. No demurrer shall be allowed. (E. 285.) 5ode S M . 2. Any party shall be entitled to raise by his plead- Poillt ^\[ w ing any point of law, and any point so raised shall be h,,w liliued disposed of by the judge who tries the cause at or after the trial : Provided that by consent of the parties, or by order of the 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.) 3. If, in the opinion of the court or a judge, the de- t c_»i5.i cision of such point of law substantially disposes of the tiie'i^V""" 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. ) 4. The court or a judge may order any pleading to (2i«-i , - , ,i i ,i . • < t , * n Striking out bad be struck out, on the ground that it discloses no reason- pleading. able cause of action or answer, and in any such case or in case of the action or defence being shown by the plead- ings to be frivolous or vexatious, the court or a judge may order the action to be stayed or dismissed, or judg- ment to be entered accordingly, as is just. (E. 288. ) 5. No action Or proceeding shall be open to objec- (ji7.) tion on the ground that a merely declaratory judgment ri|num[y u'e° f or order is sought thereby, and the court may make bind- 80Ugbt - ing declarations of right whether any consequential relief is or could be claimed or not. (E. 289.) 5a. Statements of defence or other pleadings which „ , wia-\ ,. , . . , - , . * ~ , i P . , False pleadings, are false, frivolous or vexatious, may on aindavn be sot set aside. aside, in whole or in part, on such terms as to costs or otherwise as the court or judge thinks fit. (S. C. R., May 5th, 1885, (2.) 72 DISCONTINUANCE . Order XWI IT. 1-4. (248.) Discontinuance Withdrawal of record . Striking out defence. (249.) Will id rawing record by con- Hunt (250.) Defendant's costs. (251.) Subsequent ac- tion. ORDER XXVI. DISCONTINUANCE. 1. The plaintiff may at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any in- terlocutory application), by notice in writing, wholly discontinue his action against all or any of the defend- ants, or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action is not wholly dis- continued, the costs occasioned by the matter so with- drawn. Such costs shall be taxed, and such discontinu- ance 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 competent for the plaintiff to withdraw the record or discontinue 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 dis- continued, or any part of the alleged cause of complaint to be struck out. The court or a judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withrawn or struck out, but it shall not be competent 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 may be withdrawn by either plaintiff or defendant, upon pro- ducing to the proper officer a consent in writing, signed by the parties. (E. 291.) 3. Any defendant may enter judgment for the costs of the action, if it is wholly discontinued 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.) 4. If any subsequent action is brought before pay- ment of the costs of a discontinued action, for ihe 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.) DEFAULT OF PLEADING. 73 OEDEK XXVII. 0r *£™ n ' DEFAULT OF PLEADING. 1. If the plaintiff, being bound to deliver a state- (252.) ment of claim, does not deliver the same within the time Sr^™*" allowed for that purpose, the defendant may, at the ex- ffiJd* d "' • pjration 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 accordingly, or may make such other order on such terms as the court or judo-e thinks just/ (E. 294.) 2. If the plaintiff's claim is only for a debt or 1233.), liquidated demand, and the defendant does not within deS^'aimiff the time allowed for that purpose deliver a defence, the 2 t euter judg " 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 preced- Dofll Jf {,} OIle mg rule mentioned there are several defendants, if one of of several de- them. makes 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 goods (355.1 i - i -.1 r 11 li-i-iln actions for and pecuniary damages, or either of them, and the de- detention or fendant, or all the defendants, if more than one, make g00d8 default as mentioned in rule 2, the plaintiff may enter an interlocutory judgment against the defendant or defend- ants, and a writ of inquiry shall issue to assess the value of the goods and the" damages, on the damages only, as the case may be. But the court or a judge 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 a judge directs, (E. 297.) 5. When in any such action as in rule 4 mentioned „ , r . r c Default by some there are several defendants, if one or more of them make defendants in default, as mentioned in rule 2, the plaintiff ma,y enter antention. interlocutory judgment against the defendant or defend- ants, so making default, 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.) 10 74 DEFAULT OF PLEADING. order x.wii. g. if the plaintiff's claim is for a debt or liquidated — " ' °~ 9ffi demand, and also for detention of goods and pecuniary in actions*' for damages, or pecuniary damages only, and any defendant money demaiid. 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 damages, or the damages only, as the case may be, and proceed as mentioned "in rules 4 and 5. (E. 299.) ActioffoViand. 7 • I Q an action for the recovery of land, if the defendant makes default as mentioned in rule 2, the 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.) • Actioii 2 for land 8. Where the plaintiff has indorsed a claim for and diimageB. mesne profits, arrears of rent, in respect to the, 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 in rule 2, or if there is more than one defendant, some or one of the defendants make sueh default, the plaintiff may enter judgment against the defaulting defendant or defendants, and proceed as mentioned in rules 4 and 5. (E. 301 ; E. E. S. C, Dec. 1885.) Defence's to 9. If the plaintiff's claim is for a debt or, liquidated part. demand, the detention of goods and pecuniary damages, or for any of such matters, or for the recovery of land, and the defendant delivers a defence, 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 the 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. 302.) losure action^ 9a. If the action is for the foreclosure of a mortgage or the foreclosure and sale of mortgaged premises, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may at the ex- piration of such time proceed as if the defendant had not appeared. DEFAULT OF PLEADING. 75 10. In all other actions than those in the preceding *«ier xxvu. rules of this Order mentioned, if the defendant makes "' 10 ~ 14, default in delivering- a defence, the plaintiff may set other actions. down the action on motion for judgment, and such judg-r ment shall be given as upon the statement of claim the court or a judge considers the plaintiff to be entitled to. (E. 304.) 11. Where, in any such action, as mentioned in the (262.) next preceding rule, there are several defendants, then, of%everai y d£ ne if one of such defendants makes such default as afore- fendant8 ' said, 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 fox- trial, or set down on motion for judgment against the other defendants. (E. 305.) 12. If the plaintiff does not deliver a reply, or any (263.) party does not deliver any subsequent pleading, within oAubsVqiient y the period allowed for that purpose, the pleadings shall P leadll> g?- be deemed to be closed at the expiration of that period, and all the material statements 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 (264.) other than between plaintiff and defendant, if any party p a e r t 1 y dy ° third tb any such issue makes default in delivering any plead- ing, the opposite party may apply to the court of 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 ., this (265.) Order or under any other of these rules, may be set judgment by aside by the court or a judge, upon such terms as to de " ut ' costs or otherwise as such court or judge thinks tit. (E. 308.) 76 AMENDMENT. ™™, ORDER XXVIII. AMENDMENT. (266.) i The court or a judge may, at any stage of the Amendment of . , J a / u_ i i • indorsement wid proceedings, allow either party to alter or amend his indorsement, or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made^as may be necessary for the purpose of determin- ing the real questions in controversy between the parties. (E. 309.) vmendment b ' ^ • The plaintiff may, without any leave, amend his pUintiff without statement of claim, whether endorsed on the writ or not, once at any time before the expiration of the time limited for reply and before replying, or, where ' no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who has last appeared. (E. 310.) Amendment by 3. A defendant who hds set up any counter-claim or defendant with, set-off may, without any leave, amend such counter-claim or set-off at any time before the expiration of the time allowed him for answering the reply and before such answer, or in case there is no reply, then at any time before the expiration of twenty-eight days from defence. (E. 311.1 Disallowance of 4. Where any party has amended his pleading under amendment, either of the next two preceding rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the /court or a judge to dis- allow the amendment, 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.) pieading'iftei- .«>• Where any party has amended his pleading under amendment, 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 within 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.) Application for fi - In a11 W18es n ot provided for by the preceding icavo to amend. ril ] es of this 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 AMENDMENT. 77 be 1 allowed 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 (272.) amend does not amend accordingly within the time amendment, 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.) 8. An indorsement or pleading, may be amended by (273.) written alterations in the copy which has been delivered, hoTmade" ' and by additions on paper to be interleaved therewith if necessary. (E. 316.) , t 9. Where any indorsement or pleading is amended, Mark ^*' mend _i the same, when amended, shall be marked with the date od P |eadin s- of the order, if any, under which the same is so amended, and of the day on which such 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 amended, Dc | iv ^y 6 it' such amended document shall be delivered to the opposite ?™™ dod ple " d " party within the time allowed for amending the same. (E.318.) 11. Clerical mistakes in -judgments or orders, ■ or (276.) .. . • i a 1 i' • Clerical errors. errors arising therein from any accidental slip or omis- sion, 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 on (277.) 1 p . J J 1 General power such terms as to costs or otherwise as the court or ]udge of amendment. may think just, amend any defect or error in any pro- ceedings, 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 amendment 0oat6 l ' m) 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 have (279.) • - . lx . . . ° . ,. ., -, Amendment by all the powers and duties m reference to the amendment court of of proceedings which the court has in causes originating Appoa1 ' therein. (1882, c. 2, r. 8.) 78 SUMMONS FOR DIRECTION'S. Order XXIX. _*£Ir*_ ORDER XXIX. ' SUMMONS FOB ' DIRECTIONS. (280.) i. (a.) Subject as hereinafter mentioned, in every Summons, for / , J . . . , directions. action a summons tor directions may be taken out by the plaintiff, returnable in not less than- four days. (b.) Such summons shall be taken out after appear- ance and before the plaintiff takes any fresh step in the action other than application , for an injunction, or for a receiver, or for sum- mary judgment under Order XIV, or to enter judgment in default of defence under Order ■ XXVII, rule 2. (<■.) The surnmons shall be in the form No. 3, appendix K, with such variations as circum- stances require, and shall be addressed to and served upon all such parties^ to the action as may be affected thereby. ((J.) This rule shall not apply to actions coming under the provisions of Order XVIII., A, or to proceedings commenced by originating summons. (e.) Where, under Order XVIII, A, the defendant 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.E. S. O, May 1897, r. 1; E.R. S.C., Aug. 1897.) 1 (28i.) , 2. Upon the hearing of the summons the court or a proceeding, 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, in- spection of real or personal property, commissions, ex- amination of witnesses, place and mode of trial. Such order shall be in the form No. 4, appendix K, with such variations as circumstances require. (E. Or. 30, r. 2 ;" E.R. S.C., Nov. 1893.) ^ A 2 ? 2 -'. 3. No affidavit shall be made or used on the hearing No affidavit to , ° be made. of the said summons except by special order of the court or a judge. (E. Or. 30, r. 3 ;" E. R. S. C, Nov. 1893.) DISCOVERY AND INSPECTION. 79,. 4. On the, hearing of the summons any party to ° r,lcr *"*• whom the summons is addressed shall, so far as practic- — 1 ^-*=^ — able, apply for any order or directions as to any inter- Parties t'o'appiy locutory matter or thing in the action which he may for di,ec,ion6 - desire. (E. Or. 30, r. 4; E. R. S. C, Nov. 1893.) 5. Any application subsequently to the original sum- rasao mons for any .directions as to any interlocutory matter or'puSm** " p " thing by any party shall be made under the summons by two clear days' 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 have (282c) i t " , 7i , . r .{ , < . V. . <- in Costs of aubee- been made at the hearing of the original summons shall, quentappiica- if granted on any subsequent application, be. granted at tl0D8 ' the costs of the party applying, unless the court or a judge is of opinion that the application could not properly have been made at the 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 a mid.). 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 docu- ments oi 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. O, Aug. 1894, r. 1.) ORDER XXX. of.ic.vv*. IT. 1-8. • DISCOVERY AND INSPECTION. 1. In any cause or matter the plaintiff or defendant ^^K^ by leave of the court or a judge may deliver interroga- tories in writing for the examination of the opposite parties, or any one or more of such parties, and such in- terrogatories, when delivered, shall have a note at the foot thereof , stating which of such interrogatories each of such parties is required to answer : Provided that no Further inter. party shall deliver more than one set of- interrogatories r °s atone8 to tne same party without an order for that purpose : Provided also that interrogatories which do not relate to where ii-reie- any matters in question in the cause or matter shall be™ ' deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. (E. 343 ; E- R. S. C, Nov. 1893, r. 12.) 2. On an application for leave to deliver interroga- particK in- , tories, the particular interrogatories proposed to be'lr^nS:' 80 DISCOVERY AND INSPECTION. Order XXX. IT. 3-t>. , Costs. 0*85. 1 (286.) Form of inter rogatories. (287.), Corporations and hi Ik- r bodies. Objections to interrogatories answers in fault. 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.) 3. In adjusting the costs of the cause or matter, in- quiry 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 application for inquiry, that such interrogatories have been exhibited unreason- ably, vexatiously, or at improper length, the costs oc- casioned by the said interrogatories and the thereto shall be paid in any event by the party (E. 345.) 4. Interrogatories shall be in the form No. 6 in ap- pendix B, with such variations as circumstances require. (E. 346.; 5.' If any party to a cause or matter is a body corporate or a joint stock company, whether incorporated or not, or ,any other body of persons empowered by law to sue or to be sued, whether in its own name or hi the name of any officer or other person, any opposite party may apply for an order allowing him to, deliver inter- rogatories to any member or officer of such corporation, company, or body, and an order may be made accord- ingly. (E. 347.) _ 6. Any objection to answering any one or more of several interrogatories on the ground that it or they is or are scandalous or irrelevant, or not bona fide for the pur- pose of the cause or matter, or that the matters inquired into are not sufficieptly material at that stage, or on any other ground, may be taken in the affidavit in answer. (E. 348.) (290.) Time for (291.) Affidavit in answer. 8. Interrogatories shall be answered by affidavit, to be filed within ten days, or within such other time as a judge allows. (E. 350.) 9. An affidavit in answer to interrogatories shall be in the form No 7, in appendix B, with such variations as circumstances require . ( E . 3 5 1 . ) Insufficient ' answers. PISCOVEKY AND INSPECTION. 81 10. No exceptions shall be taken to any affidavit in ® r,Ur xxx - answer, but the sufficiency or otherwise of any such **' 10 ~ 15 ' affidavit objected to as insufficient shall be determined by Exceptions to the court or a judge on motion or summons. (E. 352.) affldovit - 11 If any person interrogated omits to answer, or_ (293.) answers insufficiently, the party interrogating may 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 vim voce examination, as the judge directs. (E. 353.) „ 12. Any party may, without any' affidavit, apply . cm.) to the court or a judge for an order directing any other ?ocu°n3 a of party to any cause or matter to make discovery on path of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the court or judge may either refuse or adjourn the sahie, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of docu- ments, as may in their or his discretion be thought tit : , Provided 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 of the cause or matter, or for saving costs. (E. 354'; E. R. S. C, Nov. 1893, r. 13.) 13. The affidavit, to be made by a party against . '2?5.) whom such order as is mentioned in the next preceding cover"' 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 (-296.) time during the pendency of any cause or matter, to order documents by the prpduction by any' party thereto, upon . oath, of such order - of the documents in his possession 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, Notic ^J - ' ro at any time, by notice in writing, to give notice to any - (300.) Older for inspection. affidavits of the party against whom the application is DISCOVERY AND INSPECTION. 83 made, or disclosed in his affidavit of documents, shall be itrAer xxx - founded upon an affidavit showing of what documents in- '»• ■**"-»»• ( spection 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 neces- sary either for disposing fairly of the cause or matter or for saving costs. (E.^360 ; E. R. S. C./Nov., 1893, r. 14.) \ 18a. (1.) Where inspection of any business books oooa.) is applied for, the court or a judge may, if they or ne 7 eriflea c °p' eB - think fit, instead of ordering inspection of the original s books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has ex- amined 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 in- where privilege spection privilege is claimed for any document, it shall be may^pe^ 86 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, i ' (3.) The court or a judge may, on the application of Puithernppiioa- any party to a cause or matter at any time, and whether documents, an affidavit of documents has or has not already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified 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 applications 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 documents specified in the application, and that they relate to the matters in question in the cause or matter, or to some of them. (E. Or. 31, r. 19a ; E. R. S..C, Nov., 1893, r. 15.) 19. If the party from whom discovery or inspection (sou is sought objects to the same, or any part thereof, the JSton ™ court or a judge may, if satisfied that the right to the ^S-erf Vj' discovery or inspection sought depends on the determina- P end »- 84 DISCOVERY AND INSPECTION. order x.vx. ^j on f an y j sgue or question in dispute in the cause or rr. 20-84. ma ^ er) or ^jj^ f or an y other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the, right to the discovery or inspection, order that such issue or ques- tion be determined first, and reserve the question as to the discovery or inspection. (E. 362.) (302.) 20. If any party fails to comply with any order to Consequence of , ** \ . r t ■ j_* r disobedience, answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. 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 inter- rogating may apply to the court or a judge for an order to that effect, and an order may be made accordingly. I.E. 363.) Application for ^1. Service of an order for interrogatories or dis- attaenment. covery or inspection on the solicitor of the party against whom the order is made shall be sufficient service upon which to found an application for an attachment for' dis- obedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order. ; (E. 364.) Attachment of %%. A solicitor upon whom an order against any solicitor. party for interrogatories or discovery or inspection is served under the next preceding rule, who neglects with- out reasonable excuse to give notice thereof to his client, shall be liable to attachment. (E. 365.) Answers 5 ^ be ^3 . Any party, may, at the trial of a cause, matter evidence. or i ssue , use in evidence any one or more of the answers or any part 1 of an answer of the opposite party to inter- rogatories, without putting in the others or 'the whole of such answer : Provided always, that in such case the judge may look at the whole of the answers, and if he is of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in. (E. 366.) < costs.' 306 "' , 24 - In every cause, or matter, the costs of discovery, by interrogatories or otherwise, shall, unless otherwise ordered by the court or a judge, be secured in the first instance as provided by rule 25 of this order, by the party seeking such discovery, and shall be allowed as part of his costs whore, and only where, such discovery DISCOVERT AND INSPECTION. 85 appears/to the nudge at the trial, or, if there is no trial, om*vxxx. to the court or a judge, or appears to the taxing authority, — — '■ — to have been reasonably asked for. (E. 367.) 25. Any party seeking discovery by interrogatories (.307.) shall, before delivery of interrogatories, pay into court coats." 1 to a-separate account in the action, to be called " Security for Costs Account, ".to abide further orders, the sum of $20, and, if the number of folios exceeds five, the further sum of $1, for every additional folio. Any party seek- ing discovery otherwise than by interrogatories shall, before making application for discovery, pay into court, to a like account, to abide further order, the sum of $20, and may be ordered further to pay into court as afore- said, such additional sum as the court or a judge directs. The party seeking discovery shall, with his interrogatories Receipt. 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 all cases commence from the date of such service. The party from" whom discovery is sought shall not be required to answer or make discovery unless and until the said payment has been made. (E. 368.) 26. Unless the court or a judge at or before . (30s.) the trial otherwise orders, the amount standing to the deposit? 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 paid 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 dis- (308 lll 'ty to a cause or matter may give notice, "totemen*'" ^y Q ^ s pleading, or otherwise in writing, that he admits the truth i of the whole or any part of the case of any other party. (E. 371.) NoticetoHdmit 2. Either party may call upon the other party to documeots' admit any document, saving all just exceptions ; and m 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, whatever 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 docu- ment shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion pf the taxing authority, a saving of expense. • (E. 372.) FormofUticQ. 3 - A notice to admit documents shall be in the form i No. 11 in appendix B, with such variations as circum- stances require . ( E . 3 7 3 . ) Noticf.oLdmit 4 - An y l ,art .Y ma .y> b y notice in writing, at any time facts. 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 ADMISSIONS. 87 specific fact or facts mentioned in such notice. And in «►••««• vxxi. case of refusal, or negieet to admit the same within six — "'' 5 ~ !> " days after service of 1 such notice, or within such further time as may be allowed liy the court or a judge, the costs of proving such tact 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 uuless the court or a judge at any time otherwise orders or directs : Provided "that any ad- mission made in pursuance of such notice is to be 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 person other than the party giving the notice : Pro- vided 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. ) ' 5. A notic^ to admit facts shall be in the form Xo. (317.) > 12, in appendix B, and admissions of facts shall be in the f,' 1 d™d° f i ,°°on6 e "form No. 13, in appendix B, with such variations as cir- cumstances require. (E. 375.) 6. Any party may at any stage of a cause or matter, isisi where adnris3ions of fact have been- made, either on the admS'.'.V" pleadings, or otherwise, apply to the court or a judge for sjich judgment or ord«r 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 judgment, as the court or judge thinks just. (E. 376.) i 7. An affidavit of the solicitor or his clerk of the due ' otai signature of any admissions made in pursuance of any ui™' ° f 8 ' s " a " notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof is re- quired. (E. 377.) 8. Notice to produce documents shall be in the form (320.) ....... t -r, .i i • j • . Form of notice JNo. 14, m appendix B, with such variations as circuin- to produce. stances require. An affidavit of the solicitor, or 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 docu- 021.) ... , . , , . ■. Unnecessary ments which are not necessary, the costs occasioned costs. - 88 ISSUES, INQUIRIES, AND ACCOUNTS. oniovwi. thereby shall be borne by the party giving such notice. (E. 379.) Order XXXU. rr. 1—3. , (322.) Issues to be settled if necessary. (322a.) Findings of judge upon issues. (322&.) Settlement of issues. (323.)" When inquiries or accounts taken. (324.) Accounts, how taken. ^ ORDER XXXII. TSSUES, IN'QUIKIKS, AND ACCOUNTS. ■ 1. Where in any cause -or matter it appears to the court or a judge that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the court or a judge.. (E. 380.) . 1a. In all cases tried before a judge sitting without a jury, the judge shall write out and attach to the copy of the pleadings his findings upon each "of the issues for trial. (1886, c. 50, s. 9.) 1b. Such issues, if not agreed upon by the parties^ shall be settled by a judge, before the trial, and a copy of the same shall be attached to the copy of the pleadings delivered to the proper officer for the use of the, judge at the trial. Such copy of issues shall be written on one side of the paper, with a space left blank below each issue sufficient to contain the decision of the judge, on that issue. Unless the issues are so agreed upon or settled, and a copy delivered for 'the use of the judge, the judge who tries the cause may decide on those issues which he considers material. (S. C. R., March -28th, 1887, r. 5.) , • 2. The court or a judge may, at any stage of -the proceedings in a cause or matter, direct any' necessary inquiries or accounts to be made or taken, notwithstand- ing that it appears that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. (E. 381. ) 3. The court or a judge may, either by the judg- ment or order directing an account to be taken, or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept, shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they are advised. (E. 382.) ISSUES, INQUIRIES, AND ACCOUNTS. 89 4. Where any account is directed to be taken, the ° l,,C1, vxxii. accounting party, unless the court or a judge other- — ""' ~ ' — wise directs, shall make out his account and verify the verification of same by affidavit. The items on each side of the account affidavit. y shall be numbered consecutively, and the account shall be referred to by the affidavit as an exhibit, and be filed with the proper officer. (E. 383.) 4a. Upon the taking of any account the court or a (S25«.) judge may direct that the vouchers shall be produced at ^g d a e C co f untB Uch " the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as are contested or surcharged shall be brought before the referee, or other person taking the account. (E. 383 a, E.R. S.C., Dec. 1885, r.'s.f 5. Any party seeking to" charge any accounting party . (326.) beyond what he has by his account admitted to have re- beyond admis- ceived shall give notice thereof to the accounting party, 810 "' stating, so far as he is able, the amount sought to be charged and the particulars thereof in a short and succinct manner. (E. 384.) 6. Every judgment or order for a general account of 0u tBtindu!g the personal estate of a testator or intestate shall contain {^JJPJJ $■ . a direction for an inquiry what parts (if any) of such personal estate are outstanding or undisposed of, unless the court or a judge otherwise directs. (E. 385.) 7. Where, by any judgment or order, whether made <3 or order ) all just allowances shall be made without any be made. direction for that purpose. (E. 387.) 9. If it appears to the court or a judge that there is (m.) , , -, t ^ t . ,i " c 4. ' Expediting ac- any undue delay in the prosecution of any accounts or counts or in- inquiries, or in any other proceedings under any judg- 9 " 1 " 68 ; „ ment or order, the court or a judge 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 proceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings, 12 90 SPECIAL CASE. Order XXXII r. 10. (331.) Substituted referee. as the circumstances 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 legislature. (E. 388.) 10. In the event of a referee declining to act, or dying or becoming disqualified before he has made his report, the parties may, or if they cannot agree a judge may, on application of either party, appoint a new referee. (O. 1897, r. 648, (3.) Order XXXIII. rr. 1—2. (332.) Parties may state special case. Inference of fact. (333.) Preliminary ORDER XXXIII. 1.— SPECIAL CASE. 1. The parties to any cause or matter, at any stage', of the cause or matter, or without any previous proceed* ings 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 paragraphs numbered consecu- tively, and shall concisely state such facts and documents' as are necessary to enable the court to decide the ques- tions raised thereby. Upon the argument of such case the court 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 documents 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 question of"iaw. in any cause or matter a questioii 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 ques- tion of law renders unnecessary may thereupon be staged, (E. 390.) Special case without consent. SPECIAL CASE. 91 XXXIII. IT. 3—8. 3. Every special case sliall be printed by the plaintiff and signed by the several parties or their counsel or solicitors, and shall be tiled by the plaintiff. Printed ; ;! , copies for the use of the judges shall be delivered by the Printin g case - plaintiff. (E. 391. j 4. No special case in any cause or matter to which (335.) ■ Porsoiis umf or a married woman (not being a party thereto in respect disability, to her separate property or of any separate right of action by or against her) , infant, or person 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 sufficient 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 unsound mind, are true. (E. 392.) 5. Either party may enter a special case for argu- (336.) ment by delivering to the proper officer a memorandum mS for aigu ' of entry in the usual form, and- also, if any married v 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 of the order giving leave to enter the same for argument. (E. 393.) 6. The parties to a special case may enter into an (337.) agreement in writing, that on the judgment of the court payment of" being given in the affirmative or negative of the questions money and C09tB 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 other- wise agreed, or unless stayed on appeal. (E. 394.) 7. This order shall apply to every special case stated Appli S , n ot in a cause or matter, or in any proceeding incidental Order, thereto. (E. 395.) 2.— ISSUES OF PACT WITHOUT PLEADINGS. 8. Where the parties, to a cause or matter are agreed* (339.) r . , I'lii fi Formal plead- as to the questions of fact to be decided between them, ings may be they may, after writ issued and before judgment, by dispenh consent and order of the court or a judge, proceed to the trial of any such questions of fact without formal plead- ings ; and such questions may be stated for trial in an 92 TRIAL. order j ssue j n the form No. 15, in appendix B, with such i-r. X 9-n. variations as circumstances 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.) ovcier ( fo?pay- 9."S;The court or a judge may, by consent of the mem on finding parties, order that, upon the finding in the affirmative or negative of such issue as in the next preceding 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.) - T , (3*i-) 10. Upon the finding of any such issue, as in rule 8 Judgment ac- . ■• ■ i i -i r i cordingto agree- mentioned, judgment may be entered tor. 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 otherwise 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.) EflecPof'judg.' 11" The proceedings upon such issue, as in rule 8, ment. 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.) x °^ ORDER XXXIV. 1. — Place. No io|if venue. 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 state- ment 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 a judge otherwise orders, be the county in which. the de- fendant has been required to file his*' appearance. (E. 425.) TRIAL. 93 (2.) In any action brought for the recovery of a Wnl,!r debt or liquidated demand in money under eighty dollars, r **a"g, in which the plaintiff does not reside within the province, change of the defendant after appearance shall be entitled to an venue to remd. -. , , L L , ■ ence or deiend- orcler changing the place of trial to the county in which ant in actions the defendant resides, or in which, in case of a corpora- dou'ars 6 ^ y tion, the defendant corporation has its chief place of business, or in which the cause of action arose, on satis- fying the court or a judge that he has a gopd defence to such action on the merits. (1900, c. 15, s. 4.) 1. A — Time of J rial. 1a. (1.) A judge may at any time, except in Hali- f n , y < ?fme tr othe? t fax during vacation, and during the regular sittings f or than Bittin sf ■ the trial of civil causes, sit as a 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 of the order for pleadings, and the defendant at any time after six weeks any C «rne. ml at 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 x 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 T r i i i .in lieu of notice. days between the making of such order and ,the 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 to Chambers judge tjime selected to sit in chambers, to try all causes so set actionsT 10 down for trial. (R. S., c. 104; Or. 58, r. 9 ; 1891, c. 14. s. 1 ; S. C. R., 30th Oct., 1893, rr. 5, part 6.) 2.— Mode of Trial. 2. Causes or matters which would heretofore have (344.) been deemed of an equitable nature shall be tried by a qmty caueeb- judge without a jury, unless the court or a judge otherwise orders. (E.427.) 94 TEIAL. Order XWIV. 3-:. rr Ci45.) Power to dis- pense with jury in cases where power existed before. (346.1 Power to dis- pense with jury in cases of ac- count. (347.) Power to order (348.) Oases tried without jury. 3. The court or a judge may, if it appears desirable, direct a trial without a jury of any question- or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previous to the first day of October, A.D. 1^884, could, without any consent of parties, have been tried without a jury. (E. 428.) 4. The court or a judge may direct the trial without a jury of any cause, matter or issue requiring any pro- longed examination of documents or accounts, or any scientific or local investigation, which cannot in their or his opinion conveniently be made with a jury. (E. 429.) 5. In any other cause or matter, upon the applica- tion 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. ) 6. (a.) In every cause or matter, unless 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 : Provided 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. Special jury at plaintiff's instance. Seecial jury at defendant's in stance. (b.) The plaintiff in any cause or matter 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.J The defendant in any cause or matter in 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 anven. (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 t1m, e sTn n different ° f thiS ° rde1 '' th(3 C0Urt OT * J U(i g e ma J> ™ anv CaUSe Or modes. matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the places for such trials, and in all cases may order that one Order for special jury. ™ (349.) Trial of TRIAL. ' 95 or more issues of fact be tried before any other or others. 0r < Icr (E.432.) **,*"• v ' i rr. 8-14. 8. Every trial of any question or issue of fact with tfoo.i a jury shall be by a single judge, unless such trial is 2 y e ]Ute t0 specially ordered to be bv two or more judges. (E. 433.) 9. Nothing in this order shall affect any, proceed- Arbitrations. ,' ings under any statutory provisions relating to arbitra- tion. (E. 434.) '. 3. — Notice and Entry of Trial. 10. Notice of trial may be riven in any cause or„, . MV . . ; ° , J Plaintiff to give matter by the plamtm or other party in the position of '^ notice. 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 weeks D Cfen Jto* may after the close of the pleadings, or within such extended d ° 80 - 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 defend- ant may apply to the court or judge to dismiss the action for want of prosecution ; and on the hearing of such ap- plication, the court or a, judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the c0urt or judge seems just. (E. 436.) 12. Notice of trial shall state whether it is for the oso trial of the cause or matter or of issues therein, and the place and day for which it is to be entered for trial. It shall bein the form No. 16, in appendix B, with such variations as circumstances require. (E. 437. > 13. Ten days' notice of trial shall be sjiven, unless r < 3 ™-> .. ■'.... _° .' Length of notice the party to whom it is given has consented, or is under terms, or has been ordered to take short notice of trial, and ishall be sufficient in all cases, unless otherwise ordered by the court or a judge. Short notice of trial shall be five days' notice, unless otherwise ordered. (E. 438.) , 14. Notice of trial shall be riven before entering:,^ (356.) ., ,,. . . ° , . , , n Who may enter the action for trial ; and the action may be entered for for tn«i. 96 TRIAL. Order XXXIV, rr. 15—81. (357.) Notice of trial to tap6e if no entry. <358.) Notice of trial id Halifax. (359.) Notice else- where. (360.) Countermand of notice. (361.) Copy of plead- ings for judge. (362.) Entry for trial. (363.) Docket, how made up. trial, notwithstanding that the pleadings are not closed, provided that notice of trial has been given. Either party after notice of trial may enter for trial. If both parties enter the action for trial, it shall be tried in the order of the plaintiff's entry. (*E. 439; O. (1897) r. 538, (c.) 15. Unless the action is entered for trial within the time limited therefbr, by one party or the other, the notice of trial shall be no longer in force, unless leave for a later entry is given bv the court or a judge. (R. S., c. 104, Or. 34, r. 15.) " 16. Notice of trial for Halifax shall not be or operate as for any particular sittings ; but shall be deemed to be for any day after the expiration of the notice on which the trial may come on in its order on the list. (E. 441.) 17. Notice of trial elsewhere than in Halifax shall be deemed to be for the first day of the then next sittings at the place for which nqtice of trial is given. (E. 442.) 18. No notice of trial shall be countermanded except by consent or by leave of the court or a judge, which leave may be given subject to such terms, as to costs or otherwise, as are just. (E. 443.) 19. The party entering the action for trial shall deliver to the proper officer a copy of the whole of the pleadings, for the use of the judge at the trial, on the day , before the first day of the sittings of the court at which the action is to be tried, such copy to be certified by the prothoriotary having charge of the pleadings filed. (E. 454; O. (1897), r. 539 part.) 20. Entries for trials shall be given to the prothono- tary on or before the Tuesday preceding the first day of the sittings, at which the causes are to be tried. fP. A. 200. ) 21. In making up the dockets separate lists shall be made of trials with juries and trials without juries. On each list the seniority of the causes shall be deter-, mined by the dates of the issue of the respective writs. All causes' enteredthat have been on the list of the pre- ceding 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.) TRIAL. 97 21a. Notice of trial for a special sittings : shall be Amv. given at least ten days before the commencement of that it. 2i«-k sittings. (S. C. R., Feb. 25th, 1*96, r. 1.) (36*.) rx-t * n - . n . Special sittings, ilB. All causes tor trial at a special sittings shall " 0tic6oftrialat - be entered with the Prothonotary at least ten days before Entry 3 ®?' 1 the commencement of the sittings by the party giving the notice of trial. (S. C. R., Feb. 25th, 1896,'r."2.j , - 4. — Proceedings at Trial. 22. If, when a trial is called on, the plaintiff appears, (ast.) and the _ defendant does not appear, the plaintiff may ^ffiST 6 prove his claim so far as the burden of proof lies upon him. (E. 455.) 23. If, when a triar is called on, the defendant (365.) appears, and-the plaintiff does not appear, the defendant, of plaintiff. 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 one , . (366.) party does not appear at the trial, may be set aside by judgments 1 e the court or a judge upon such terms as seem fit, upon do b eTnoTappeaJ! an application made within* six days after the trial. Such application may be made at the sittings at which the trial took place, or in Halifax. (E. 457.) 25. The judge may, if he thinks it expedient for (367.) the interests of justice, postpone or adjourn a trial f or of°*nai! ement such time, and to such place, and upon such terms, if any, as he thinks fit. (E. 458. > 26. Where, through accident or mistake or other (368.) , ^r j- .-i , r , Evidence omit- cause, any party omits or fails to prove some fact ten by accident material to his case, the judge may proceed with the °ui™iiea\ e ' bow ' 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 after- wards proved as directed ; and, if not so proved, judg- ment 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. (O. 1897, r. 549.) 27. No trial shall be postponed on the application (369.) .,,,. _ .ji • • r i e -\ Absence of ma. of a defendant or party in the position of a defendant on teriai witness. the ground of the absence of a, material witness, unless """ : 13 98 TRIAL. (370.) Witness under habeas corpus. (371.1 Speeches to jury. order the affidavit upon which such application is made, in rr. m-.i-t. 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 counter- claim as the case may be), and that the application is not made -solely for delay, but to enable the applicant to sub- stantiate 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 future 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 begins, or his counsel, may at the close of his case, if his opponent does not announce any intention to 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 defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to the mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he fur- nishes particulars to the plaintiff of the matters, as to 3 evidence. (E. 461.) ' The judge may in all cases disallow any questions put in cross-examination of any party or 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.) judgmJnVto ba 32 - The j ud g e whall, at or after trial, direct judgment IfStiS "' t0 he entered as he thinks right, and no motion for judgment shall be necessary. E^ 463 ; E. R. S. C, Feb, 1892, r. 1.) |37l'.I Evidence in mitigation in Mbel and slander. (373.) Restricting cross-examina- tion. which he intends to 31. TRIAL. 99 33. The prothonotary or other proper officer present <»wi<-r at any hearing or trial shall make a note of the times at rf ™"; e which such hearing or trial commences and terminates -ig \jk mini wHumcuocs etiiu wjruuuaujs (375) respectively, on each day on which the same takes place. £^°' p ™- (E. 464.) , trial. , 34. Upon every trial the proper officer shall enter all (376.) such findings of fact as the judge directs, to be entered, of°triai° and the directions, if any, of the judge as to judgment, and the certificates, "if any, granted by the judge, in a book to be kept for the purpose. (E. 465.) 34a. Upon the trial of any cause the judge shall take <376«.) the evidence of witnesses fully in writing, together with Sice S^uii his rulings on the reception or rejection of evidence. ontrial8 - (1886, c. 50, s. 5.) 34fi. The counsel for either party, if the judge rules & t$,.) against him on a question of evidence, may reduce such ^vm^o* °^!' question to writing, and hand the same to the judge, who deuce ' &c - shall transcribe the same on his minutes or attach the same thereto, and enter upon his minutes his ruling thereon. (1886, c. 50, s. 6.) 34c. The Chief Justice may, in his discretion, appoint <37bo official reporters to the Supreme Court, who shall be tersfMs'upreme sworn by a judge thereof to the faithful performance of Cmn ' their duties, and the judges may prepare a scale of fees to be paid for their services, which fees may be taxed as other fees, and be costs in the cause unless otherwise ordered. (1886, c. 50, s. 7.) -34a*. At any time after issue joined, the court or (37M) judge, upon consent of both parties, shall, on the applica- o,"d d e 8 r e e ^dLce tion of either party, supported by affidavit, order the taken b s report. evidence, the rulings on such evidence and the summing up to be taken down and transcribed by a stenographer, and the evidence, rulings and summing up so transcribed shall be filed with the prothonotary, and shall constitute the report of such evidence, rulings and summing up in the cause, provided that no fees shall be taxed for the services of any such stenographer upon any trial unless such reporting has been so ordered, or unless the presiding judge certifies that such reporting was necessary. (1886, c. 50, s. 8.) 34e. Where judgment has been delivered or a verdict (376(L> filed on the trial of any action or issues, the judge shall, minutes of evi- if requested by either party to the action or issues, within five days after such request, deliver to the prothonotary of the court, or, by consent, to either party, his original notes, of evidence taken upon such trial, and his rulings 100 TRIAL. Order XXXIV. rr. 35—40. on the reception or rejection of evidence and in actions tried with a jury a report of his summing up. (R. S, c. 104, Or. 58, r. 7 (5) ; 1886, c. 50, s. 10; 1899, c. 39, -• I-) , 5. — Assessors and Referees. 077.) Trials with sessors. (378.) Trials by Referee. (379.) Evidence and procedure be- fore Referee. (380.) Authority of Referee. (381.) No authority to commit. (382.) Report of Ref- eree. 35. Trials with assessors shall take place in such manner and upon such terms as the court or a judge directs. (E. 467.) 36. Where any cause or matter, or any question in any cause or matter, is referred to a referee, he may, subject, to the order of the court or a judge, hold the trial at or adjourn it to any place which he deems most con- venient, and have any inspection or view, either by himself or with his assessors (if any), which he deems expedient for the better disposal of the controversy before him. He shall, unless otherwise directed by the court or a judge, proceed with the trial de die in diem, in a similar manner as in actions tried with a jury. (E. 472. ) 37. Subject to any order of the court or the judge ordering the reference, at any trial before a referee, the evidence shall be taken, the attendance of witnesses enforced, and the trial conducted in the same manner, as nearly as circumstances will admit, as if the trial was before a judge. (E. 473.) 38. Subject to any such order as in the next preced- ing rule mentioned, the referee shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a judge. (E. 474.) 39. Nothing in these rules contained shall authorize any referee to commit any person to prison or to enforce any order by attachment or otherwise. (E. 475.) 40. The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit- any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court directs, and the court may require any explanation or reasons from the, referee, and remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any the court may decide the question other referee ; or TRIAL. 101 referred to anV referee on the evidence taken before him, order III t\ either with or without addtional evidence-, as the court rr t1 _^ directs. (^E. 476.) 41. Where a report is made by a referee, he shall Notic ^f-' He£ . on the same day cause notice thereof to be given to all e,ee ' sl ' e P ort - the parties to the trial or the reference before him by prepaid post letter, directed to the solicitors, or address for service of each party, who"shall in due course of post be deemed to have notice of such report. (E. 477.) • 42. Where the report of the referee has been made (384.) in a cause or matter, the further consideration of which nfon. t0 a ° pt 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 made (385.) in a cause or matter, the further consideration of which motion. 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 7 report of the referee, or 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. 479.) 43a. Where the whole of any cause or matter is mn\ f . Costs in tlis- ref erred to a referee under an order ot court, he may, oretion of subject to any directions in the order, exercise the same discretion as to costs as the court or a judge could have exercised. (E. ildb ; E. R. 8. C, Dec, 1889, r. 4.) 436. The provisions of the nine next preceding rules c«56.) , , . ^ ■, , n 11 i. Arbitrator of this Order shall apply Avhere any cause or matter or under an order any question or issue of fact therein is referred to an p^e^of 'an officer of the court or to a special referee or arbitrator. offleial refe ™°- Provided that where the arbitrator is appointed other- wise than by an order of the court the provisions of rule 36 as to sitting de die in diem shall not apply. (E. 479c, E. R. S. C, Dec. 1889, r. 5.) , (386.) 6. — Writ of Inquiry and Reference as to Damages. 44. The provisions of rules 13, 14, 18, 25, 29, 30 Cer h and 31 of this Order shall, with the necessary modilica- lating to trials -. , . • . , -j. n • • to apply. tions, apply to an inquiry pursuant to a writ, of inquiry. (E.'480.) 102 SBUL. orrter 45 _ j n every action or proceeding in which it appears rr. 45-**. *° * ne court or a judge that the amount of damages sought (^ to be recovered is substantially -a matter of calculation, it aKe"before d ofti- sna ^ no * ^ e necessary to issue a writ of inquiry, but the ce h *f °™ r u 01 cou rt or a 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 witnesses 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 inquiry 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 indorse- ment 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 whit^ime ^6. Where damages are to be assessed in respect to ^'agestobe an y continuing cause of action they shall be assessed down to the time of the . assessment. (E. 482.) Ano!t R! of wit- 47. If it is made to appear to a judge that a witness neSB - 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 powers which he possesses for the punishment of such witness, issue a warrant under his hand and seal directed to any 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.) Form , of 90 war- 48. The warrant referred to in the next preceding ram. ru <] e ma y j )e j n t i le f orm ^ ^ j n a pi>eiidix H, with such variations as circumstances require. (R. S., c. 104, Or. 34, r. 48.) \' 103 Ovdv r XXXV. rr. 1— 3a. EXAMINATION OF WITNESSES. ORDER XXXV. 1. — EVIDENCES GENERALLY* 1 . In the absence of any agreement in writing be- (391.) tween the solicitors of all parties, and subject to these J^ ence at 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 particular 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 before a commissioner or examiner : Provided that where it appears to the court or judge that the other party bona fide desires the produc- tion of a witness- for cross-examination, and that such cross-examina- witness can be produced, an order shall not b e made authorizing the evidence of such witness to be given by affidavit. (E, 483.) 2. An order to read evidence taken in another . (398.) cause or matter shall not be necessary, but such evidence other cause u> may, saving all just exceptions, be read on ex parte ap- order" plications by leave of the court or a judge, to be obtained at the time of making any such application, and in any other case upo» the party desiring to use such evidence giving two days' previous notice to the 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, pleadings, (393.) and documents filed in the Supreme Court shall be ad- admissible. 01 " 66 missible in evidence in all causes and matters and be- tween all persons or parties, to the same extent as the original would be admissible. (E. 48,6. ) 2.— EXAMINATION" OF WITNESSES. 3a. Any witness who is about to leave the province (3930.1 or who from illness or other infirmity is unable to travel, wCfnimt may be examined before a judge or, commissioner on due^J^™^^ notice being given to the adverse party, and any party j^™- how upon showing sufficient cause by affidavit, may obtain from a judge or commissioner an order in such terms as he thinks fit, to compel an unwilling witness in any such cause to give evidence before the judge or commissioner, (1887, c. 15,j9. 6.) 104 EXAMINANION OF WITNESSES. order x.\\». 3 B- A^t least twenty-four hours' notice in writing — "' \ ~ ' of such examination shall be served upon the adverse Notice' of' dc party, or his solicitor or counsel, where the person so gi ve£™™°tb c : served resides within the county in which the witness is notice 01Jtent8 ° f 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 contain the name of the witness to be ^ examined. (1887, c. 15, s. 2.) , „. < 394 -> , 4. The court or a judge may, in any cause or matter I Power to order , /- 1 • examination of 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, of 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. ) FormiPot order 5. Orders for a commission to examine witnesses for commission shall be in the forms Nos. 33 and 34, appendix K, and and of writ. . , . j , rL 7 . the writ of commission shall be in the form No. 11 in appendix J, with such variations as circumstances require. (E. 488.) Letten^oV ^ A- If the court or a judge so orders, a request to request. examine witnesses shall be issued in lieu of a c'ommis- ' sion. Such order and request respectively shall be in the forms No. 34a. and 34b. in appendix K, with such varia- tions as circumstances require. (E. 488a ; E. R. S. C, Oct., 1884, r. 6.) order'to^pro- *>. The court or a judge 'may in any cause or matter duce. at any stage of the proceedings order the attendance of any person fqr 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 compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial. (E. 489.) Disobedience to . 7 \ An 7 P erson wilfully disobeying any order requir- duaion 01 pro " ™£ *" s atteQ danee f° r t Qe purpose of being examined or producing any document, shall be deemed "guilty of con- tempt of court, and may be dealt with accordingly. (E. 490. ) (398.) X. Any person required to attend for the purpose of Expenses of,- •-, r -i • -. If witnesses. being examined or of producing any document, shall be entitled to the like conduct money and payment for EXAMINATION OF WITNESSES. 105 expenses and loss of time as upon' attendance at a trial °" lcr xxw. in court. (E. 491.) "• !> ~ 13 ' 9. Where any witness or person is ordered to be (398.) examined before any officer of the court, or before ariytavTcopyof person appointed for the purpose, the person" taking the 1 ? n r g S e '' ,aiui plead ' 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 person taking the examination of the questions at issue between the parties. (E. 492.) 10. The examination shall take place in the presence uooi of the parties', their counsel, solicitors, .or agents, and the ^nation!*" witnesses shall be subject to cross-examination and re- examination. (E. 493.) 11. The depositions taken before an officer of the (ioi.i court, or before any other person appointed to take the how^kenwid examination, shall be taken down in writing by or in the signed ' presente of the examiner, not ordinarily by question and answer, but so as to represent as nearly 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, qr as to any objections to matter arising in the course of the examination. Any i llC8tl0nB - questions which are objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and v shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question. (E. 494.) 12. If any person duly summoned by subpcena to ' (402.) attend for exarhination refuses to attend, or if, having k,g to attend Vr attended, he refuses to be sworn or to answer any lawful g"" 3 evidence - question, a certificate of such refusal, signed by the ex- aminer, 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 ques- tion, as the case may be. (E. 495.) _13. If any witness objects to any question put to (403.) him before an examiner, the question so put, and the ob- tng\TqVstton. 14 106 EXAMINATION OF WITNESSES. Older XXX\' it. 14-17. (401.) Witness may be ordered to pay costs. (405.) Return of depo- sitions. (405a.) Depositions of witnesses abroad opened by either party party — objec- tions to within 8 days. (4056. ) Not to be set aside on tech- nical grounds. , (406.) Special report by examiner. (407.1 Using deposi- tion in evidence. jection 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 objection shall be de- cided by the court or a judge. (E. 496.) 14. In any case under the next two preceding rules, the court or a judge may order the witness to pay any ' costs occasioned by his refusal or objection. (E. 497.) 15. When the examination of any witness before any examiner has been concluded, the original deposi- tions, authenticated by the sjgnatiure of the examiiier, shallbe returned by him to the prothonotary to whom, the same is returnable, and by him shall be filed. (E. 498.) 15a. Depositions of witnesses residing abroad may be opened by the prothonotary at the instance of either party ; and either party may notify the other of the return of the commission and the depositions taken thereunder, and no objections to the reception in evidence of such depositions shall ' be allowed, unless taken within eight days next after such notice served ; the party objecting shall be required to specify his objections in writing, and the court or a judge, on summons, may then hear such objections and decide thereon. iC. 96, R. S., 4th ser., s. 2, S. C. R., 10th Dec. 1*84, r. -1, (1.) 15b. No deposition of a witness taken under the provisions of any rule of this Order shall be set aside unless the court or judge is of opinion that the objections thereto are not of a purely technical character, and that substantial justice requires that such objections should prevail. (C 96, R. S., 4th ser., s. 10; S. C. R., 10th Dec, 1884, r. 1, (2.) ■ 16. The person taking the examination of a witness under these rules may, and if need be shall, make a special report to the court touching such examination and. the conduct or absence of any witness or other person thereon, and the court or a judge may direct such pro- ceedings and make such order as upon the report they or he thinks just. (E. 499.) 17. _ Except where by this order is otherwise provided, or is directed by the court or a judge, no 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 ^ EXAMINATION OF. WITNESSES. 10? attend the hearing or trial, in any of which eases the ° l «' cr xxxv. depositions certified under the hand of the person taking "' *?" " M " the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to such certificate. (E. 500.) \ 18. Any officer of the court or other person directed Autho ( j!ityto ad .„- to take the examination of any witness or person may minister oaths. administer oaths. ;E. 501. ) 19. Any party in any cause or 'matter may by ' doai subpoena- ad testificandum on duces tepuiii require the at- witnesses before tendance of any witness before an officer of the court or s^ST 1 "™ other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter, in like manner as such witness would be bound to attend and be examined at the hearing or trial ; and any party or witness 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- examination. (E. 502.) 20. Evidence taken subsequently tb the hearing or , . (no.i tiial of any cause or matter shall be taken as nearly as trial— how' may be in the same manner as evidence fallen at or with a view to a trial. (E. 503.) 21. The practice with reference to the examination, an.) , . -, ... r . , , Practice as to cross-examination, and re-exammation of witnesses at a cross-examina- (rial shall extend and be applicable to evidence taken in tlon ' any cause or matter at any stage. (E. 504.) 22. The practice of the court with respect to ' evi- -^l;' dence at a trial when applied to evidence to be taken tions as to evi- before an 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.) 23. No affidavit or deposition filed or made before , ui3.) . . -.. > ., i n , .11 , •! Notice before issue joined in any cause or matter shall, without special us i D ^ affidavit. 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 intending to use the same to the opposite party of his intention in that behalf. (E. 506.) , 24. All evidence taken at the hearing or trial of any («4.i . , . . -t Evidence may cause or matter may be used in any subsequent proceed- 1* „ R ed in BU b ings in the same cause or matter. (.E. 507.) '" o 108 SUBPOENA. Order XXXV. r r. 85— 84. (415.) l'r 28. , Every subpoena other than a subpcena duces tecum shall contain three names where necessary or required, hut may contain any larger number of names. (E. 511.) 29. No more than three persons shall be included in one subpoena duces tecum, and the party suing out the same shall be at liberty to sue out a subpcena for each person if it is deemed necessary or desirable. (E. 512.) 30. In the interval between the suing out and service of any subpcena the party suing out the sanle may correct any error in the names of parties or Witnesses, and may have the writ re-sealed upon leaving a corrected praecipe of such subpoena marked with the words "altered and fe-sealed," and signed with the name and address of the solicitor suing out the same. (E. 513.) 31. The service of a subpcena shall be effected by delivei'ing-a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ. (E. 514.) . ° 32. Affidavits filed for the purpose of proving the service of a subpcena upon any defendant must state when, where, and how, and by whom, such service was effected. (E. 515.) 33. The service of any subpcena shall be of no validity if not made within twelve weeks after the issue of the writ. (E. 516.) 4. -PERPlSTUA'n,NU TESTIMONY. ActJA 2 o'per- 34 - An y P erson who would under the circumstances petuate tests- alleged by him to exist become entitled, upon the happen- ing of any future e-vent, to any honour, title, dignity, or AFFIDAVITS AND DEPOSITIONS. 109 office, or to any estate or interest in any property, real ° l ' ,lcr xxxv - or personal, the right or 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. ^n all actions to perpetuate testimony touching W25.) any honour, title, dignity, or office, or any other matter or interested, At- thing in which the Crown may have any estate or interest, {"be a'pan ™ 1 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 admissible, notwithstanding any objection to such depositions upon the ground that' the Crown was not a v party to the action in which such depositions were taken. (E. 518.) 36. Witnesses shall not be examined to perpetuate (426.) ... 1 j. i-i * t r j i Action must be testimony unless an action has been commenced lor the brought. purpose. (E. 519.) 37. No action to perpetuate the testimony of Trlal j^ 2 t 7 ' neces . witnesses shall be set down for trial. (E. 520. ) sai 'y- 5.— FOREIGN JUDGMENT. 38. In any action brought in this province against A( . tjo ^ 4 o n - , fol .. any person domiciled therein, on a judgment obtained in eign judgment J l .. yl .' J, ' S> by default, de, an action in any other province or country to whicn no fence to original defence was made, any defence which might have been" 010 " "' made to the original action may be made to the action on the judgment. (1880, c. 13, s. 27.) OEDEE XXXVI. »£™ 1.— AFFIDAVITS AND DEPOSITIONS. 1. Upon any motion, petition, or summons, evidence (429.) x 1 • 1 m i •. i ^ ,1 . • j Affidavit may , may be given by affidavit; but the court or a judge may, be followed by on the application of either party, order the attendance ™ ssexamina 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; O. (1881) r. 283.'). 2. Every affidavit shall be intituled in the cause or (430.) .-..,.,. ii- ■ u • 1, How intituled. matter m 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 < 110 AFFIDAVITS AND DEPOSITIONS'. oi J . V in. unless affidavit made ex parte in court, founded on any affidavit, shall be motion. 6 p of any force, unless the affidavit on 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.) verinSon of 19a. The consent of a new trustee to act shall be new trustee's sufficiently evidenced by a written consent signed by him consent to act. . J J - . © J and verified by the signature of his solicitor, h orm 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. .Notwofinten- 20 - The P art y ] pending to use any affidavit in Hon to use affl- support of any application made by him in chambers shall give notice to the other parties concerned of his intention in that b&half. (E. 540.) Affiaavfts La 2 ^ - ^ affidavits which have been previously made be reused. and read in court upon any proceeding in a cause or matter may be used before a judge in chambers. (E. ' 541.) ALteraS in 22 - Every alteration in an account verified by exhibit. affidavit shall be marked with the initials of the commis- sioner or officer before whom the affidavit is sworn, and such alterations shall not be made by erasure. (E. 542.) Exhibtonott,, 23 - Accounts, extracts, and other documents, re- be annexed, 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.) Title ofirttf- 24 - Every certificate on an exhibit referred to in an cate on exhibits, 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. > TRIAL ON AFFIDAVIT. , 113 8. -TRJ.U, ON AFFIDAVIT. Ol«l.|- 25. Within fourteen days alter a consent for taking i-»-. as so. evidence by affidavit as between the parties has been U53.) given, or within such time as the parties agree upon,- oriKSffiS! the court or a judge allows, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof. (E. 545.) 26. The defendant, within fourteen days after de- (4»i.i livery of such list, or within such time as the parties wwitatV agree upon, or the court or a judge allows, shall file his affidavits - affidavits and deliver to the plaintiff or his solicitor a list thereof. (E. 546.) 27. Within seven days after the expiration of the . («5.». last mentioned fourteen days, or such other time as afore- repiy dV1 said, 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,, < 4S6 ->. ... . ii Orosa-exainma- paxty desiring to cross-examine a deponent who has made tion of de- an affidavit filed on behalf of the opposite party may P ° neu "' . serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such, notice Notice, to be served at any time before the expiration of four- teen 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 de- ponent 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 ex- penses thereof in the first instance from the party requir- ing such production. - E. 548.) 29. The party to whom such notice as is mentioned Cmi>I) t 4 u4 <*- in the next preceding rule is given may compel the at- te,Klance - ' ^tendance 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 by „ t . («8.) .; . ,-.ii-iii • jji j • Notice of trial affidavit, notice of trial shall be given at the same time, after affidavits after the close of the evidence, as in other cases is by c< "" 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.) 15' 114 MOTION FOR NEW TRIAL. «'«>«»• ORDER XXXVII. WWII. rr - 1 ~ 8 - moti6k fob new tktal. (459.) 1. Every motion for a new trial, or to set aside a ne^triai!°whe?e verdict, finding, or judgment, shall be made (1) in every '"'' cause or matter where there has been atrial thereof,, or ©f any issue therein with a jury, to 9-> . 2. Every application for a new trial shall be by Application to. ... j. !■ j 1 ■ • 1 ± u be uv notice of notice of motion, and no rule nisi, order to show cause, ruierS^i?" y or formal pioceeding 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.) when'noticeto 3. The notice of motion shall be served within ten be given. 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. ) Noticiofmotion ^. The notice may be amended at any time by leave tor now trial f the court or a judge, on such terms as the court or amending with . . , . J ' y 1 . . and without judge thinks just ; but such notice may be amended with- out leave at any time within fifteen days after the tiling or reception of the judge's notes or report of the sum- ming' up : provided the hearing of the motion has not then been commenced. (E. 555.) * * * * * # NewtnS'ouiv 6. A new trial shall not be granted on the ground of fcuMrabstantiai 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 miscarriage affects part only of the matter in controversy, or some or one only of the parties, the court may give final judgment as to part thereof, or some or one only of New trial a 8 to tne p ar ties, and direct a new trial as to the other part only or. as to the other party or parties. (E. 556. ) New triS'L to 7 - A new trial may be ordered on any question, othe r n fln t d°in g f r twh i :itever . are tlie . S r P uncls f()1 ' the »««' trial, without inter- fering with the finding or decision upon any other ques- tion. (E. 557.) stayifpro- 8 - When notice of motion for a new trial or appeal codings. has been served, after either of the modes of trial men- MOTION FOR JUDGMENT. 115 tioned in rule 1 of this Order, the further proceedings on o«ier the verdict, finding, or judgment may be stayed, in whole X * XVH - — 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, The 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. (R. 8., c. 104, Or. 37, r. 8.) ORDER XXXVIII. ° r ' ll,r XXXVIII. , IT. 1—©. MOTION FOR JUDGMENT. 1. Except where by the Act or by these rules it is (467.) provided that judgment may be obtained in any other motion™ y manner, the judgment of the court shall be obtained by motion for judgment (E. 559.) 2. Every arbitrator or referee to whom a cause or (468.t matter is referred for trial shall direct how judgment entered 6 by t0 shall be entered, and such judgment shall be entered ac- veferee ' cordinely by the prothonotary. (E. 560; E. R. S. C, Feb., 1892, r. 4 ; E. 564a ; E. R. S. O, Dec, 1889, r. 6.) 3. Where, at or after a trial with a jury, the judge . (469.) has directed that any judgment be entered, any party may mentwheVEnd- a PPty to set aside such judgment and enter any other e nterdd° ngly judgment, on the ground that the judgment directed to be entered is wrong by reason that the finding of the jury upon the questions submitted to them has not been properly entered. (E. 561.) 4. Where, at or after a trial by a judge, either with . (470.) or without a jury, the judge has directed that any judg- ment where ment be entered, any party may apply to set aside such wfo g n™fy'entered judgment and to enter any other judgment, upon the on fludingB ' ground that, upon the finding as entered, the judgment so directed is wrong. (E. 562.) 5. An application under rules 3 and 4 of this Order (471.) 1 /-nc;>o\ Application to shall be to the court. (H. 563.) be to, the court. 6 Where, at a trial by an arbitrator or referee, he (472.) - ' • 1 t t i i j_ Setting aside has directed that any judgment be entered, any party may judgment <»f move to set aside such judgment and to enter any other ,elc,ec - e 116 MOTION FOR JUDGMENT. I order judgment, on the ground that upon the finding as entered r**"i7 the judgment so directed is wrong. Such motion shall ' ~^be made to the court. (K. 564; E. 564a; E. R. S. C, Dec, 1889, r. 6.) Application 'for ?- Where issues have been ordered to be tried, or judgment after i SSUC s or questions of fact to be determined in any manner, lHaueR found. ., 7 J ' 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 defendant may set down a motion for judgment, and give notice thereof to the other parties i E. 565.) Application for 8. Where issues have been ordered to be tried, or judgment when issues or questions of fact to be determined in any manner, ^ues have been and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination 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 down a motion for judgment, without" waiting for such trial or .determination. And the court or judge 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.) Limititton of 9- No motion for judgment shall, except by leave of motjonforjudg-the court or judge, he set down after the expiration^ of one year from the time when the party seeking to set down the same first became entitled so to do. (E. 567.) Powersof'court 10- Upon a motion for judgment, or upon an appli- on motion. cation for a new trial, the court may draw all inferences 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 questions 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 (477) made, as it thinks fit. (E. 56H.) Pending appli- . , . , CLJjtautor . 1L "here it is made to appear to the court or a judgment or judge, on the hearing of any application which is pending hearing of i^ c ji , , ■ , *■ L . 1 C 1 cause. before the court or judge, that it will be conducive to ENTRY OF JUDGMENT. 117 the ends of justice to permit it, the court or judge may .° r,,er direct the application to be turned into a motion for r ,,, ' judgment, or a hearing of the cause or matter ; and there- upon, 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 pronounce a judgment or make such order as the court or judge deems expedient. (O. 1897, r. 617.) 12. (1) At any time after the writ has been issued Mo tjo n 4 foVjudg- the plaintiff may, by leave of the court or judge, serve ™? nt t>y >. eave , , . - r . ^ r J . - oii i • after service or notice of motion for judgment, buch leave may be given writ. ' ex parte and subject to such 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 necessary. {2) _ Upon the hearing of such motion the court or judge may grant the application on such terms and con- ditions 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 prosecution of the suit, as the circumstances of the case require, and , upon such terms as to costs as the court or judge thinks right. (O. 1897, r. 608.) OEDER XXXIX. o«i« XXXIX. vr. 1—8. ENTRY OF JUDGMENT. 1. Every judgment shall be entered by the Prothono- (479.) tary in the book to be kept for the purpose. The forms i£7&° % ' 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 Date w™^ or a iudo-e in court, the entry of the judgment shall be where judgment i i r ,1 i * 1 • 1 1 ■ J i~- pronounced in • dated as of the day on which such judgment is pro- court, nounced, unless the court or judge otherwise orders, and the judgment shall take effect from that date : Provided 118 ENTRY OF JUDGMENT. Order XXXIX. rr. 3-10. (481.) Date in other cases. that by special leave of the court or a judge a judgment 1 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 officer for the purpose of such eritry, and the judgment shall take effect from that date. (E. 572.) (483.} Judgment for an act Iti he done. (184.) Duties of Tro- thonotary on entering *url la- ment. , (485.) Judgment on order, certifi- cate, or return to writ. <48fi.) .Master'B certifi- cate on refer- (487.) Solicitor's con- sent necessary. (488.) Consent of de- fendant appeal- ing in person. 5. Every judgment or order, made in any cause or matter requiring any person to do an act thereby ordered, shall state the time, or the time after service of the judg- ment or order, within which the act 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 memorandum 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 purpose of compelling you to obey the same judgment (or order)." (E. 573.)" 6. Where, under the Act or these rules or otherwise, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the prothonotary shall examine the affidavit or document produced, anclHf 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, any judgment may be entered pursuant to any order or .certificate, or return to any writ, the production of such order, certificate or return shall be a sufficient authority to the officer to enter judgment accordingly.* (E. 575.) 8. Wh-ere reference is made to a referee or Master to ascertain the amount for which final judgment 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 , has - appeared by solicitor, no order for entering judgment shall be made by consent unless the consent of the de- fendant is given by his solicitor or agent. (E. 577.) 10. Where the defendant has not appeared, or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his con- sent in person, or unless his written consent is attested EXECUTION. , 119 by a solicitor acting on his behalf, except in eases where owier the defendant is a barrister or solicitor. (E. 578.)' 'W* 11. Satisfaction nieces shall be signed by the plaintiff „ MW , . , 1 . , ° -i ' . Satisfaction or nis personal representatives, or by a solicitor specially pieces. authorized for that purpose, unless a judge, on special circumstances set forth by affidavit, dispenses with such authorization. The satisfaction piece may be in the form No. 18, appendix F. (P. A. 581.) ORDER XL. or,!*.- \t. IT. 1— «. EXECUTION 1. Where any person is by any iiidgment or order uiw-i ,. , , J l ill- r Meet of wrvice directed to pay any money, or to deliver up or transferor judgment or any property real or personal to another, it shall not be order ' 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 judg- unu i . •/ J o j^on perform- ment or order upon condition does not perform or comply anm.- m oon-n- with such condition, he shall be considered to have judgment" X ' •waived or abandoned such judgment or order so far as the ta " luU - same is beneficial to himself, and any other person in- terested 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 pro- ceedings as might have been taken if no such judgment or order had been made, unless the court or a judge other- wise directs. (E. 580.) 3. A judgment for the recovery by or payment to (492.) any person of money may be enforced by any of the mlLit'fo" rocov". modes by which a judgment or decree for the payment ery ot moncy " of money might have been enforced at the time of the coming into force of these rules. (E. 581.) 4. A judgment for the payment of money into court Jud J4nt'tor may be enforced by writ of sequestration, or in cases inpayment uno which attachment is authorized by law, by attachment, or by writ of execution. (E. 582.) 5. A judgment for the recovery or for the delivery iw.) of the possession of land may be enforced by writ ofiand gmc possession. (E. 583.) ,6. A judgment for the recovery of any property r («M) , J , ~, ir i Judgment for other than land or money may be enforced ; other property. 120 EXECUTION. order xl. ( a j j}y wr jt for delivery of the property ; '•'• ; ^J 8 -_ (ft j By wr jt f attachment ; (c) By writ of sequestration. (E. 584.) judement'to do '^ • A judgment requiring any person to do any act or not to do an other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, i or by committal. (E. 585.) iieanin^of 8. In the rules of this*Order the expression " writ of expressions, execution " includes the writ of execution heretofore used, writ or gxgcu- tion ■• and ,"i»- and writs of sequestration, and attachment, and all subse- agSDauSy 19 " quent writs that may issue for giving effect thereto. And party." ^ e ex p resi? j on " issuing execution against any party" means the issuing of any such process against his person or property 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.) Execution 1 after 9. Where a judgment or order is to the effect that judgment on any party is entitled to any relief subject to or upon the fulfilment of any condition or contingency, 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 1 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 deter- ' mination 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.) * » * * - * * oflicer^to'aee 1 1 • No writ of execution to enforce any order or isSlexecu 016 decree shall issue without the production to the prothono- txm- tary by whom the same should be issued of such order or decree. And the prothonotary shall be satisfied that the proper time has elapsed to entitle the creditor to execu- tion. (E. 589.) PrmJ^Lex- 12 -i No writ 0± execution shall issue without the party issuing it, or his solicitor, filing a praecipe for that purpose ; the prweipe 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 signed by or on behalf of the solicitor of the party issuing it, ecu i ion. EXECUTION. 121 or by the party issuing it, if he does so in person. The «"•«■ **■• forms in appendix G shall be used, with such variations rr ' 1;t ~ 17 ' as circumstances require. (E. 590.) 13. Every writ of execution shall be indorsed with (sow the name of the solicitor ', or firm of solicitors, actually rtamTo7\ e onc° f suing out the same, and when the solicitor actually suing ™i^ilp<^ BO n. 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 solicitor is employed to issue the writ, then it shall be indorsed with a memor- andum 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 &m.) day on which it is issued. The forms in appendix H Date and form ' shall be used, with such variations as circumstances re- quire. (E. 592.) 15. In every case of execution the party entitled to (sm.) execution may levy the fees and commissions of the poundage and"' sheriff executing the writ and the costs and expenses f ex P enses - execution, over and above the sum recovered. (E. 593. ) 16. Every writ of' execution for the recovery of (sos.i money shall be indorsed with a direction to the sheriff, or directions to other officer or person to whom the writ is directed, to Bbenff ' 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 six per cent, per annum from the time when the judgment or order was entered or made, provided that in cases where there is an agreement between the parties that more than six per cent, interest shall be secured by the judgment or order, then the indorsement may be accordingly to levy the' amount of interest s,o 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 ( O o6.)< any costs are payable under a judgment or order may, so Son°'it 1 may how soon as the money or costs are payable, sue out one or iB8ue - more writ or writs of execution to enforce payment thereof, subject nevertheless as follows : (a.) If the judgment or order is for payment within Payment p0flt . a, period therein mentioned, no such writ as p° ned - aforesaid shall be issued until after the ex- piration of such period ; 16 122 EXECUTION. Order rr. is \L. 23. Stay of execu- tion. (507.) Separate write ^for debt and ~C08t8. other than money or land (509.) Duration of (execution. Renewal . (b.) The court or a judge may, at or after the 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 recovery or payment of a sum of money and costs, there may be at the election of the party entitled thereto either one writ or separate writs of execution 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.) wiien (5 execu- 19. A party who has obtained judgment or an order, won to issue on no t, being a judgment for payment of money or costs, or iuunijierrt for ~jo i */ *j ? for the recovery of land, shall not issue 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 with- out terms. (E. 597.) 20. A writ of execution if unexecuted shall remain in force for one year only from its issue, unless 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 party issuing it, for one year from the date of such renewal, and so on from time to time during the continuance 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 renewal, 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 renewed. (E. 599.) . 22. As between the original parties to a judgment 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 judgment -or date of the order, or any change has taken ' I5I0.I Evidence of re- newal. (511.) Execution with- in six years. (512.) In certain caseB application ne- cessary before execution, EXECUTION. 123 place by death or otherwise in the parties ° ,-,,cr XL - entitled or liable to execution ; - '''• 84 ~ 8S - (b. ) Where a husband is entitled 'or liable to execution upon a judgment 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 com- pany upon a judgment recorded against such company, or against a public officer 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 entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to 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 cause (5i3.) , or matter may be enforced against all persons bound Enforcing order 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 with the leave of the court or a award. judge, and on such terms as are just, be enforced at any time, though the time for moving to set it aside has not elapsed. (E. 609a ; E. R. S. C, Dec, 1889, r. 7.) AppiiSn for ^0. No proceeding by audita querela shall be used, relief instead of DU t any party against whom judgment has been given audita querela. 1 1 i r r 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.) Equity 52 "* 1 re- 31. Under a writ of execution by which he is demption in instructed to levy on goods and chattels, the sheriff may goodn may be i n i • • seized. seize and sell the interest or equity of redemption of the party against whom the execution was issued in any goods, and such sale shall convey whatever 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.) Gooinfl'l, 32. No writ of execution under which personal pro- wri^cT"' '' y P ert .V 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 ; provided such person had not, at the time when he acquired 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.) EXECUTION. 125 33. Current gold and silver coin may be taken in 9N,er II - 83-37. execution, and may be paid to the creditor as money collected. Provincial debentures and notes, and bank coin, &c. 2 ,' may notes, and all bills or evidences of debt issued by any betaken ' corporation, and circulated as money, may be taken in execution, and paid to the creditor at their par value as money collected, if he will accept them ; otherwise they shall be sold as other chattels. (P. A. 270.) 34. The sheriff may seize and take in execution any (523.) money or bank notes (including any surplus of a former may^takCT '' execution against the defendant), cheques, bills of ex- undC1 ' Wlit ' change, promissory notes, bonds, mortgages, specialties, or other securities for money belonging to the person against whose effects ithe writ of 'execution has issued; and the sheriff shall hold any such cheques, bills of ex- change, promissory notes, bonds, mortgages, specialties, or other securities for money as a security or securities for the amount by the indorsement on the writ directed to be levied, oc so much thereof as has not been otherwise 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, (524.) , .,i r , . j_ii 2. Effect of trans- buls of exchange, promissory notes, bonds, mortgages, i er of securities, specialties, or other securities for money, or the payment yc of the same to the sheriff with or without 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 his Sh ,^-» solicitor the money so recovered, or a sufficient sum to over money discharge the amount by the writ directed to be levied, " !COTeie ' less his fees, commission and poundage expenses. (P. A. 273.) 37. If, after satisfaction of the amount, together ,< 52 ?-> ' ... 1 Surplus to be i with sheriff's fees, commission and expenses, any surplus paid to de- remains in the hands of the sheriff, the same shall be paid to the party against whom the execution issued. (P. A. 274.) 126 ' EXECUTION. order xi.. 3g_ N sheriff shall be bound to sue any person rr " ', ~ — — liable upon any such cheque, bill of exchange, promis- Bond of i'ndem. sory note, bond, mortgage, specialty, or other security, mty to bien . un [ ess jjjg p ar ty at whose instance such execution issued enters into a bond with two sureties to indemnify such sheriff against all costs and expenses to be incurred in such action,' or to which he may become liable in con- sequence thereof ; and the expense of such bond may be deducted from any money recovered in such action. (P. A. 275.) sherifffo make ^9. The sheriff shall, in returning every execution, return with writ, state specially his doings thereunder, and where property has been taken, 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.; Article?^!- 40. The following goods and chattels shall be exempt empted from from seizure under any writ of execution, namely: (a.) The necessary wearing apparel, beds, bedding and bedsteads of the debtor and his family. (b.i 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 teacups, 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 vege- tables actually provided for family use, not more than sufficient for the ordinary consump- tion 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. (e.) Tools and implements of, or chattels ordinarily used in, the debtor's occupation, to the value of thirty dollars. Xrta^ c SL in But nothin g in this rule contained shall exempt any article enumerated in (b.) (c.) (<1.) and (e.) front seizure in satisfaction of a debt contracted for such identical article. (1885, c. 34, ss. 1 1, 2.)> EXECUTION. 127 41. No writ of execution shall bind the goods of the 0,,u "' - XL - defendant but from the time the writ is delivered to " '" the sheriff to be executed; and the sheriff shall, -upon writ, when to the receipt of the writ, indorse thereon the time at which blDd goode '' the same was received by him. (P. A. 278.) 42. A written order signed by the solicitor by whom issx.) any writ of execution has been issued, or by the party at defendant from whose instance such execution issued, shall justify the CU8tody ' 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 1 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 judgment or order is for the recovery or (533.) payment of money, the party entitled to -enforce it may ^dgmmt' " °' apply to the court or a judge for an order that the debtor debWr - • 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 for (5*4.) the recovery or payment of money, if a,ny difficulty the?than\or arises in or about the execution or enforcement thereof, IDoney - . any party interested may apply to the court or a judge, and the court or judge 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 6omp Sg at . two Drecediner rules may be compelled to attend and tendance and tr o ^ * . production. testify, and to produce books and documents, in the same manner, and subject to the same rules of examination, and the same consequences of neglecting to attend, or refusing to disclose the' matters in respect to which he is examined, as in the case of a witness on a trial. (O. )1897), r. 905. 128 WRITS OF EXECUTION AND SEQUESTRATION. , order xi-. 47 The costs of any application- under the next —-' — three preceding rules, and of any proceedings arising costs. from or incidental thereto, shall be in the discretion of the court or a judge, or in the discretion of the officer of the court before whom such examination is taken, if the court or a judge so directs. (E. 612.) omerxu. OEDER XLI. rr. 1-4. WRITS OF EXECUTION AND SEQUESTRATION. FormS effect. *• Writs of execution, in the forms in use im- 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 heretofore had, and shall be executed in the same manner in which the like writs have heretofore been executed. (E. 613.) ' win Qf^equcs- ^* Where any person is by any judgment or order tration. 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 person prosecuting such judg- ment or order may at the expiration of the time limited for the performance thereof, without obtaining any order for that purpose, issue a writ of sequestration against the estate and effects of such disobedient person. Such writ Effect. f 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.) NosalLwfoi 3. No subpoena for the payment of costs, and, unless coste. by leave of the court or a judge, no sequestration to en- force "such payment, shall be issued. (E. 619.) iso venditioni 4- Where, by virtue of any writ of execution, goods m>onu$ necee. or other property have been seized but not 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.) ATTACHMENT OF DEBTS. 129 ORDER XLII. Order XMI. rr. 1—2. ATTACHMENT. 1. A writ of attachment against the person shall .'.(**■■) have the same effect as heretofore. (E. 620.) S° u " ach ' 2. No such writ of attachment shall be issued with- (S i;j.i out the leave of the court or a judge, to be applied f or obtained. be on notice to the party against whom the attachment is to be issued. (E. 621.') ORDER XLIII. ©*« mm. IT. 1—3. ATTACHMENT OF DEBTS. 1. The court or a judge may, upon the ex parte applica- (513.) tion of any person who has obtained a judgment or order SmJ.t'or 1 '' for the recovery or payment of money, either before or de,,ts ' after any oral examination of the debtor liable under such judgment or order, and upon affidavit by himself or his solicitor stating that 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 (hereinafter called the garnishee) to such debtor, shall be attached to answer the judgment or order; 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. (E. 622.) 2. Service of an order that debts due or accruing to io«-) a debtor liable under a judgment or order shall be shee order. 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 0,-der'for e* the amount due from him to the debtor liable under a «^^^ aln f ' 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 process, to levy the amount due from 17 1,30 ATTACHMENT OF DEBTS. Order X 1.1 II rr. 4-8. (546.) Ascertaining disputed liab. ility of garui- taees (547) Order for third person to appear. (54 S. I Decision :i. to third persons. (549.) Effect of pay- ment by garni- shee. (549«.) Attachment of wages of ser- vant, &c, in certain cases. (5511.) Record of at- tachments. ■ such garnishee, or so much thereof as is sufficient to satisfy the judgment or order. (E. 624.) 4. If the garnishee disputes his liability, the court or judge, instead of making an order that execution shall issue, may order that any issue or question 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 attachment of debts it is suggested by the garnishee that 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 particulars of his claim upon such debt. (E. 626.) 6. After hearing the allegations of any third-person under such order, as in the next preceding rule mentioned, and of any other person whom by the same or any subse- ■ quent order the cpurt 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, or any issue or question to be tried or determined according to the pre- ceding rules of this Order, and may bar the claim of such third person, or may make such other order as such court or judge thinks fit, upon such terms, in all cases, with respect to the Hen 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 the garnishee under any such proceeding as aforesaid 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 workman shall be attached, unless the amount of such wages exceeds forty dollars, and such attachment shall only bind the surplus of such wages over and above the sum of fortv 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 ARREST OF DEFENDANT BEFORE FINAL JUDGMENT.. 131 may : be taken by any person upon application. (E. ** r ' ler XhHl - 6,29.) 5^ 9. The costs of any application for an attachment of CoBt6 |55U debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the court or a judge, but the party obtaining the, order for attach- ment shall not be entitled to any costs if the amount attached does not exceed thirty dollars. (E. 630 and S. C. R., April 11, 1890.) ORDER XLIV. Order XLIV. IT. 1—3. ARREST OF DEFENDANT BEFORE FINAL JUDGMENT. 1. Where the plaintiff in any action in which if it A ' rr J^ ) io had been brought before the first day of October, A. D. fendant about 1884, the defendant would have, been liable to arrest, by province. affidavit of himself or some other person, proves to the satisfaction of a judge or of a commissioner that the plaintiff has a good cause of action against the defendant to the amount of twenty dollars or upwards, and that the deponent has probable cause for believing, and does be- lieve, that the defendant, unless he is arrested, is about to leave the province, and that he believes that unless the defendant is forthwith arrested the debt will be lost, 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 ar- rested and imprisoned until final judgment in the action, and, if such final judgment is against him, until the ex- piration of thirty days thereafter, unless he sooner gives the prescribed security, not exceeding the amount sworn to, and with forty dollars for costs, that he will not, with- out leave of the court or judge, go out of the province until final judgment in the action, and, if such final judg- ment is against him, UDtil the expiration of thirty days thereafter. (R. S., c. 104, Or. 44, r. 1.) 2. An order to arrest maybe in form number 28, in_ ' 5 ? 3 -> J iiiii i Form of order. appendix^K, or to the like effect, and shall be made upon affidavit and ex parte. It shall be sealed by the prothono- tary and shall then be deemed to be issued. (R. S., c. 104, Or. 44, r. 2 part.) 3. The defendant may, at any time after arrest, u^uVn », apply to rescind or vary the order, or to be discharged defendant to. from custody, or for such other relief as is just. Such 10 ' application may be made to the judge or commissioner 132 ARREST OF DEFENDANT BEFORE FINAL JUDGMENT. Order XUV. rr. 4-8. tfiod.) Concurrent orders. (556.) Security on release. 1557.) Security subject to order. (558.) CostB of an est. 1 55!).) Sheriff to arrest and hold. Sheriff h return on order. who made the order, or to any judge, or to the court commenced as prescribed by Order II, rule 1, brought for the recovery of any personal pro- perty, 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 pro- thonotary an order for the delivery of the property to him, on his complying with the rules hereinafter con- tained 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 prothonotary, and shall have the same force and effect as the writ of replevin had previous to the first day of October, A.D. 1884. (R. S., c. 104, Or. 45, r. 1.) Affldiivu'tl be 2. No order to replevy, except where the property flied before sought to be replevied has been distrained for rent or lSBue of order. ,° . in- 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 un- justly detained from him, and describing the property, and, REPLEVIN. 135 (b.) The value thereof to the best of his belief. ° r,lcr * LV - Such description of the . property, and the value " "'~ 7 ' thereof, shall be stated in the order. (P. A. 331.) 3. A copy of such order shall be served on the de- <5B9.» fehdant personally, or, if he cannot be found, left at his 8e,vll!eoford manner as the sheriff proceeded undo* a writ of replevin receij* of mde" 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 bond„ ■Jf' L ) .« , 1 . . , . L Bond to sheriff. in double the value of the property to be replevied, 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.) 6. Where the property to be replevied, or any part w thereof, is secured or concealed in any dwelling-house or u concealed other building or enclosure of the defendant, or of any broken^'peli by- other person holding the same for him, and the sheriff S" alter publicly demands from the owner or occupant of such premises delivery of the property to be replevied, and the same is not delivered 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.) 7. If the property, to be replevied, or any part Shel .4 5 ma y thereof, is concealed either about the person or on the search jfefend- premises of the defendant, or of any other person hold- premises where ing the same for him, and the sheriff demands from the ceaied rty -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 J of 136 REPLEVIN. omer xm. replevying such property, or any part thereof, and shall "' — — replevy the same according to the order. (P. A. 335.). Returnfvrtwt to 8. The sheriff shall return the order to the pro- comain. 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 executed 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 executed any bond taken from the defendant on his retention of the property, and the date thereof, and the names of the witnesses thereto,- (<:.) 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 property men- tioned in the order, and 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 de- fendant, or of any other person for him, he shall state the articles which he cannot replevy, and the reason why not. (P. A. 336.) Defendant may **• '*•) Notwithstanding the issue of an order to re- retain pow- plevy, the defendant, or his agent, except in cases of Hloll Oil giving T,f -I r • secu.itv. distress tor rent or damage feasant, may retain possession of the property contained therein, if he gives security to the sheriff in the form number 52 in appendix K, with such variations as circumstances require. security may be (2.) Such security, given either bv the plaintiff or assigned by i i 11 1 . ° , * , sheriffu in. defendant, shall be assigned, on request, to the 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.) ACTIONS AGAINST ABSCONDING OK ABSENT DEBTORS. 137 ORDER XLVI. •"£*,""■ ACTIONS AGAINST ABSCONDING OR ABSENT DEBTORS. 1 . — Attachment. 1. In actions against persons absconding or absent (576.) out of the province, the writ of summons shall be in the feManu!fab de " usual form, but may describe the defendant as absconding 86n1 ' &c - or absent out of the province. A copy of the writ of summons shall be 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, O. 46, r. 1.) 2. -At or after the commencement of the action the (577.) plaintiff may sue out a writ of attachment to take property, ho'wIsS'.' on an affidavit of himself or of his agent, showing a cause of action for twenty dollars or upwards, .stating the amount of debt due or damage 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 sheriff to whom a writ of attachment is (578.) directed shall levy for the amount indorsed on, the Writ, Amn ™ l ° n °V- with one hundred ' and twenty dollars for probable costs in actions to recover upwards of eighty dollars, and twenty-eight dollars in actipus for less. (R. S., 4th ser., c. 97, s. 4.) 4. (1.) Where goods are exhibited to the sheriff as the (579.1 property of the absconding or absent debtor, they shall to°bc S appraised be valued by two appraisers, who shall be sworn before befoie levy ' the sheriff, or any other person competent to administer an oath, to make a true appraisement, and upon an appraisement being made under their hands, the sheriff shall retain such part of the goods as, is sufficient to respond the sum sworn to, and probable costs, as afore- said. (2.) The defendant's personal property shall not be Attachment bound by the * writ of attachment until a levy is made. bm sf,omlevy ' (R. S., 4th ser., c. 97, s". 5.) 5. Where the gooda consist of stock, or are shown } i (sso.) upon affidavit to be of a perishable nature, or likely to goods may be injure from keeping, and the agent of the debtor, if any, oourtunlelT ° f does not, within three days after notice of the appraise- seourit 5 ,i8given • ment, give security for the value, a judge may in his dis- cretion cause the same to be sold at public auction, and the proceeds thereof shall be retained by the sheriff, or 18 138 ACTIONS AGAINST ABSCONDING OK ABSENT DEBTORS. <(i-«i.-i vlvi. p a id into court, to respond the judgment. (R. S., 4th -J^±i ,!S - ser ., c. 97, s. 6.) 2. — Subsequent Attackers. (381.) 6. Where any person ha,s any interest, as a subsequent Party interested , J \ •* . £ ruay GontcHt attacher or otherwise, in any real property, goods or credits levied upon under a writ of attachment, 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 payable when the action was commenced. (E. S., 4th ser., c. 97, s. 7.) (•582.) 7. The person objecting to the attachment may apply Shall a|.plj to ' . ■> & . «. i *-. court on to the court or a judge to set it aside, upon an affidavit, setting out the facts and circumstances on which the ap- plication is made, and also the interest of the applicant in the property levied upon. (R. S., 4th ser., c. 97, s. 8.) i.w3.i H. Upon hearing the application the court or judge trT"i' a'i'i'i'i > iii"ke l '' t may direct a trial of any question of fact arising 'on the fuitner ui.ibit i n q U j r y . an d if it appears that the sum 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.) 1'i.K-ui'cMnVL m ^- The proceedings between the two adverse claimants piiar -nit to upon, such application shall not be affected' by any defence nave no ellect *■ * A . , */ «/ or other act of the defendant in the action, nor by any judgment that is recovered therein against the defendant. (R. S., 4th ser., c. 97, s. ]0.) (■ U intni 8 f : order ^' The court or 'judge may, upon every such ap- secmity for plication, direct such security to be given for costs, and, upon any decision thereon, may award such costs to either claimant as appears just and reasonable. (R. S., 4th ser., c 97, s. 11.) i .wo. I A.bftOM-mol)t 3. — Assessment of Damaijes. 11. If the defendant does not appear within six 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 in attachmi-nt, or any action against an absconding- or absent debtor who proof 01 i :_'. i ■ ! M . 1 • l * *~ having credits, has not appeared in such action unless the defendant's (.587.. No trial before ACTIONS AGAINST ABSCONDING OH ABSENT DEBTORS. 139 real property or goods have been attached, or until an agent om»-r xiai. or trustee has admitted, or been proved, to have goods or "' credits of such defendant in his possession or under his control. (R. S., 4th ser., c. 97, s. 24.; 13. The court or a judge may order a new trial, or (388.) may postpone judgment for a further time to allow the^p^^,. defendant a further opportunity to defend, and may direct all proper notices to be given. (R. S., 4th ser., c. 97, s. 14.) 4. — Summons to Agent. 14. If at any time after the commencement of the (m.) action, the plaintiff or his agent makes an affidavit ofn"™™ 01 belief that any third person has goods, credits, or effects of the defendant in his possession, or under his control, a summons shall be issued to bring in such third person, hereinafter called the agent. (R. S., 4th ser., c. 97, s is:) 15. The service of such summons on the agent shall ., . (.W-i bind all the goods, credits, or effects then in his posses- bind goods, sion, or under his control, to the amount indorsed on the cr ' writ, with one hundred and twenty dollars for probable costs. (R. S., 4th ser., c. 97, s. 19.) 16. Any person summoned as an agent shall, within (an.) fifteen days after he is served with the summons, file withuun"'^ 1 ^-" 1 ' the prothonotary of the Supreme Court for the county v,c< ' of in which he resides a declaration disclosing what goods, credits, or effects, if any, of the defendant were, at the time of the service of such summons upon him, in his possession, or under his control, and shall serve the plaintiff or his solicitor with a copy thereof. (R. S., 4th ser., c. 97, s. 20, part.) 17. Any person so summoned shall, upon notice to ^m.) that effect, appear before the court or a judge in the 1^™'"™ ° f county in which he resides for personal examination as |° c ods ' c ' ""■ to the goods, credits and effects of the defendant which are in his possession or under his control, but he shall not be required to appear for personal examination, ex- cept on notice to that effect, and in the county in which he resides, either before the judge or the court at any sittings.. (R. S., 4th sqr., c. 97, s. 20, part.) 18. Where a person summoned as agent, files a (.mi declaration under his hand that he had not, at the time oo'stVwheiVn'n the summons was served upon him, any goods, credits or " oc " 1k - *" effects of the defendant in his .possession, or under his 140 ACTIONS AGAINST ABSCONDING OR ABSENT DEBTORS. Order XI.VI, rr. 19-S80. (594.) Agent not filing, or disclosing guilty of con- tempt. | (594a.) Issue ordered upon examina- tion. (5946.) Claim of third person. , (594 c.) Issue to deter- (594d.) Execution against a^ent. / control, and if required submits to an examination upon oath, satisfactory to the court or a judge, such agent shall be discharged and be entitled to his reasonable costs, to be taxed and allowed, besides his fees for travel and attendance, as in case of a witness, and shall be entitled to issue an execution against the plaintiff for the amount of such costs and fees. (E. S., 4th ser., c. 97, s. 21.) 19. If any person summoned as an agent, fails to file a declaration, and to disclose upon oath, if required, the amount of the goods, credits and effects, if any, of the defendant in his possession, or under his control, at the time the summons was served upon him, or fails to acknowledge that he has sufficient in his hands to respond the judgment, the court or a judge may deal with him as for a contempt ; and he shall also be liable to pay to the plaintiff his costs if the court or judge so orders. (E. S., 4th ser., c. 97, s. 22.) 19a. The court or judge, upon any such examina- tion, may order that any issue or question necessary for determining the matter of the inquiry be tried or deter- mined in any manner in which any issue or question in an action may be tried or determined. 19b. Whenever, in proceedings against an agent, under this order, it is suggested by the agtent that the goods, credits, or effectsysought to be attached, belong to some third person, or that any person has a claim, lien or charge upon them, the court or a judge may order such third person to appear and state the nature and particulars of his ownership, claim, lien or charge. 19c. After hearing the allegations of any third person under such order, and of any other person whom by the same or any subsequent order the court or judge orders to appear, or in case of such third person not ap- pearing when ordered, the court or judge may order any issue or question to be tried or determined necessary for ascertaining the question of such ownership, claim, lien or charge, and may bar the claim of such third person, or 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. 20. After judgment recovered against an absconding or absent debtor, the court or judge may grant execution against any agent who has been summoned and proved to have goods, credits, or effects in his hands for such amount, and on such terms as the court or judge approves, ACTIONS AGAINST FOREIGN COMPANIES. 141 allowing the agent his reasonable costs and other just «>/ 7. Nothing in this order contained shall prevent the i«u5.i judgment from binding the property of a company or Si^'niT™' body corporate, or from being enforced by execution, or i,liro ^ ,ed - otherwise, in such manner as is conformable to law or to these rules in other cases. (R. S., 4th ser., v. 97, s. 32.) ORDEK XJjVIIa. o«ie r » YI,VII;> XLVIIa. ACTIONS BY AND AUAINST FIRMS AND PERSONS CAHRYJNO ON ■ BUSI- NESS IN NAM US OTHER THAN THEIR OWN. 1. Any two or more persons claiming or being liable (bos«> as co-partners and carrying on business within the juris- -}g^"t lhm" d diction-may sue or he sued in the name of the respective -^1^"^ firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action ; and any party to an action may in such case apply by summons to a judge for an order directing a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge directs. (E. 648a, E. R. S. C, June 19th, 1891, r. 4.) 2. When a writ is sued out by partners in, the name imob.h of their firm, the plaintiffs or their solicitors shall, on partus™ w,mes. demand in writing by or on behalf o*t any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought. And if the plaintiffs or their solicitors fail to comply with such demand, all -proceedings in the action may, upon an application for that purpose, be stayed upon such, terms as the court or a judge directs. When the names of the partners are so declared,' the action shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as .the plaintiffs in the writ ; but iv .. the proceedings shall, nevertheless, continue jn the } ame of the firm. (E., 648b, E. R. S. C, June 1891, r. 4.) 3. Where persons are sued as partners in the name (aioci of their firm, the writ shall be served either upon any Bemce one or more of the partners, or at the principal place, 144 ACTIONS BY AND AGAINST FIRWfs. xlviiu within the jurisdiction, of the business of the partner- rr. 4-8. ship, upon any person haying at the time of service the control or management of the partnership business there ; and, subject to these rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a writ .against them shall be necessary: Provided that in the case of a co-partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable. (E. 648c, E. R. S. C, June 1891, r. 4.) f ,mod.) 4. Where a writ is issued against a firm, and is capacity served, served as directed by rule 3 of this Order, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters ; and in default of such notice, the person served shall be deemed to be served as a partner. (E. 648d., E. R. S. C, June 1891, r. 4. )• (605e.) 5. Where persons are sued as partners in the name pa'rtiers" 06 ' of their firm, they shall appear individually in their own names ; but all subsequent proceedings shall, neverthe- ' less, continue in the name of the firm. (E. 648'e., E. R. S. C, June 1891, r. 4.) , (60of.> 6. Where a writ is served under rule 3 of this Order, No appearance i • 1 ' i * i except by upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued. (E. 648f., E. R. S. C, June 1891, r. 4.) 7. Any person served as a partner under rule 3 of under protest of this Order, may enter an appearance under protest, deny- person served as . ,, , . " . *■ L . L > * partDer. mg that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving the firm and obtaining judgment against the- firm in default of appearance if no partner has entered an appearance in the ordinary form. (E. 648g., E. R. S. C, June 1891, r. 4.) Bxecutfon'of ' 8 - Where a judgment or order is against a firm, judgment execution may issue : against a firm. ^ (a.) Against any property of the partnership within the jurisdiction ; partners. (605ff.) Appearance ACTIONS BY AND AGAINST FIRMS. 145 (b.) Against any person who has appeared in his ^Jj* own name under rule 5 or 6 of this Order, or „-. »-it. who has admitted on the pleadings that he is, or who has been adjudged to be, a partner ; (c.) Against any person who has been individually served, as a partner, with the writ of sum- mons, and has failed to appear. If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the court or a judge for leave so to do ; and the court pr judge may give' such leave if the liability is not disputed, or if such liability is disputed may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. But except as against any property of the partnership, a judgment against a firm . shall not render liable, release, or otherwise affect any member thereof who was out of the jurisdiction when the writ was issued, and who has not appeared to the writ, unless he has been made a party to the action under Order XI, or has been served within the jurisdiction after the writ in the action was issued. (E. 648h., E. E. S. C, June 1891, r. 4.) 9. Debts owing from a firm carrying on business ((i05i) within the jurisdiction may be attached under Order ^S of XLIII, although one or more members of such firm are llura ? flim - resident abroad : Provided that any person having the control or management of the partnership business or any member of the firm within the jurisdiction is served with the garnishee order. An arjpearance by any member pursuant to an order shall be a sufficient appearance by the firm. (E. 648i., E. R. S. C, June 1891, r. 4.) 10. This Order shall apply to actions between a firm ((eos/c.) - and one or more of its members, and to actions between ^fftoSimi firms having one or more members in common, provided b f^* co such firm or firms carry on business within the jurisdic- tion, but no execution shall be issued in such actions without leave of the court or a judge, and on an applica- tion for leave to issue such execution all such (accounts and inquiries may be directed to be taken and made, and directions given, as are just. (E. 648k., E. E. S. C, June 1891, r. 4.) 11. Any person carrying on business within the (goao jurisdiction in a name or style other than his own name ^ 8 \ c at p rBm may be sued in such name or style as if it was a firm j™£ & 8 aB a 19 146 WRIT OF DELIVERY , (CHATTELS). .iivii' namc 5 iinc U so far as the nature of the case permits, all ~ rules relating to proceedings against firms shall apply. (E. 648l., E. R. S. C, June 1891, r. 4.) £***! ORDER XL VIII. rr. 1—4. WRIT OF POSSESSION (LAND). writ to" recover *• -^ judgment or order that a party do recover poBsesrion of possession of any land may be enforced by writ of pos- session in manner before the first day of October, A.D. 1884, used in actions of ejectment in the Supreme Court. (E. 044.) writ m°y 'tone 2 - Where by any judgment or order any person after affidavit, therein named is directed to deliver up possession of any land to some other person, the person prosecuting sueh judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order, and that the same has not been obeyed. (E. 645.) writ Kosu 3. Upon any judgment or order for the recovery of andpoBsesBion. anv ] anc l and costs,, there may be either one writ or separate writs of execution for the recovery of posses- sion, and for the costs, at the election of the successful party. reserva - defence a right to be relieved wholly or partially from ""' such liability, the court or a judge may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into court or otherwise secured. (E. 657.) 1a. Whenever an application is made before trial for «>i2«.i an injunction or other order, and on the opening of such 2/™ 1 ot application, Or at any time .during the hearing thereof, it appears to the judge that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application, the judge may make an order for such trial accordingly, and direct when and where such trial shall be held, and in the meantime may make such order as the justice of the case requires. (^E. 657a., E. R. S. C, Oct. 1884, r. 11.) 2. The court or a judge, on the application of any (613.) party, may make any order for the sale, by any person or a bil goods"* '" persons named in such order, and in such manner, and on such terms, as the court or judge thinks proper, of any goods, wares, or merchandize which are. of a perishable nature or likely to" be injured from keeping, o.r which for any other just and sufficient reason it is desirable to have sold at once. (E. 658.) 3. The court or a judge, upon the application of any (ei-u party ,to a cause or matter, and upon such terms as are sewltion'o?™- just, may make any order for the detention, preservation, 8 P ectlon - or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes afore- 148 INTERLOCUTORY ORDERS AS TO MANDAMUS. omul- l. g^j ma y' authorize any person to enter upon or into any land or building in the possession of any party to such 1 "' cause or matter, and for all or any of the purposes afore- sampies. S aid may authorize any samples to be taken, or any Experiment, observation to be made or experiment to be tried, which are necessary or expedient for the purpose of obtaining full information or evidence. (E. 659.) t6i5.) , ' 4. Any judge, by whom any cause or matter is heard judKe. or tried, with or without a jury, or before whom any cause or matter is brought by way of appeal, may inspect any property or thing concerning which any question arises therein. (E. 660.) inspection' by ■&' -T ne provisions of rule 3 of this Order shall apply > r - v to inspection by a jury, and in such case the court or a judge may make all such orders upon the sheriff or other , person as are necessary to procure the attendance of a special or common jury at such time and place, and in such manner, as they or he thinks fit. (E. 661.) (Ci7.) 6. An application for a mandamus, injunction or mandamus" in" receiver under the Judicature Act, or an application under junction, &c. rules g or 3 f this Order, may be made to the court or a judge by any party. If the application 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 defendant, at any time after the issue of the writ of summons, and if it is by any other party, then upon notice to the plaintiff, and at any lime after appearance by the party making the application. (E. 662. ) AppiSon toi 7t ^ n application for an order under rule 1 of this order for prener- Order may be made by the plaintiff at anv time after his vatjon of pro- • i . . 1 , r ,, it .,., perty. right thereto appears from the pleadings ; or, if there are no pleadings, at any time after his right thereto is made to appear by affidavit or otherwise to the ' satisfaction of . the court or a judge. (E. 663.) (fiia.) 8. Where an action is brought to recover, or a de- Amount or lieu ,. -, . . . , r ii • claimed may be jendant in his defence seeks by way of counter-claim to ""'recover, specific property other than land, 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 pleadings, 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'pro- COMPOUNDING PENAL ACTIONS. 149 I perty be at liberty to pay into court, to abide the event ° ,rter L - of the action, the amount of money in respect to which "' 9 ~ ls ' ttie 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, the property claimed be given up to the party claiming it. (E. 664.) 9. Where any real or personal property forms the Incom ( e 2 mL y be subject of any proceedings, and the court or a judge is appropriated. 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 commencement of the proceedings, allow to the parties interested 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 administration of „ . t 6 ; 21 '] , ; , . Conduct of aale, tne estate of a deceased person, or execution of the trusts under win, &c. - of a written instrument, a sale isorderedof any property vested in any executor, administrator, or trustee, the con- duct of such sale shall be given to such executor, ad- ministrator, or trustee, unless the court or a judge other- wise directs. (E. 666.) 11. No writ of injunction shall be issued. ,An in- (622.) junction shall be by a judgment or order, and any such injunction 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 injunction (?23.) has been, or might have been, claimed, the plaintiff may, petition of before or after judgment, apply for an injunction to w,ODg restrain the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or frorh 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.) COMPOUNDING PENAL ACTIONS. (624.) Leave to cora- 13. Leave to compound a penal action shall not be L _ given in cases in which any part of the penalty goes to p°u° in appendix L, with such variations as circumstances accounts. require. (E. 675.) 20. Every receiver shall file his account, together (63i.) with an affidavit verifying the same in the form No. 20, aceZuts. in appendix L, with such variations as circumstances require. An appointment shall thereupon 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 mi.) affidavit, or to pass such account, or to make , any pay- dS™' '" • ment, 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 another, and payment of costs may be given at chambers, or by adjournment into court. (E. 677.) 22. When a receivership has been completed, the,, .(633.) book containing the accounts shall be deposited in the deposit of . prothonotary's office. (E. 678.) 4. LIQUIDATOKS AND GUARDIANS. 23. The accounts of liquidators and of aruardians «>.«.) I n I j j -ii i ■ j.u ^ • 1. Liquidator's ac shall be passed and verified in the same manner as is by count. this ^order directed as to receivers' accounts. (E. 679, 679a., E. R. S. C, Oct., 1884, r. 14.) (E. 679.) . 152 SALES BY THE COURT. Order LI. r. 1. (635.) 8ale,&cl.,ofland of infante 1 and lunatics. Grounds for sale, &c. ORDEE LI. SALES BY THE COURT. , 2. — Lunatics' and Infants' Estates. 1. (1.) A lunatic or person of unsound mind, or an infant, entitled to any estate of freehold, or for a term of years in any real property, whether in possession or reversion, or otherwise howsoever, may, by' his next friend, or guardian, petition the court 1 or a judge for an order to let, sell, mortgage or otherwise dispose of such property, and the court or judge may proceed in a sum- mary manner on affidavits to inquire into the merits of the application. (2.) If it appears, (a.) That such disposal of the property; or any part thereof, is necessary for the support of such lunatic or person of unsound mind, or for the support or education of such infant, or of the infant children of such lunatic or person of unsound mind ; (b.) That the interests of the lunatic or person of unsound mind, or of such infant, or of the infant children of such lunatic or person of unsound mind, will be substan- tially promoted by such disposal, on ac- , count of any part of such property 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 restrictions as are deemed expedient. . b ale uartian m et d c e (^-) 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. undM e order 8ale ( 4 - ) Upon any order for the disposal of any pro- how disposed of perty being made as aforesaid, the court or judge may make such order for the investment, disposal and applica- tion of the proceeds of such property, and of the increase and interest arising therefrom, as shall secure the same SALES BY THE COURT. 153 for the benefit of such lunatic Or 'person of unsound mind, <»«'<><• m. or of such infant, or the infant children of such lunatic ""' *"*' or person of unsound mind. (5.) Unless there is already a lawfully appointed Guardian a P - j • ■ u i ■' • . • i • . l l pointed for Bale. guardian who has given security in 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 Her Majesty, to be approved of by the - court or judge, with such sureties, and containing such terms and conditions as are directed, but in any event containing a condition for the fulfillment of the directions contained! in such order. (6.) No letting, sale, mortgage, or other disposal sale, &c, not to shall in any case be made contrary to any last will, or pra'SicVX™' conveyance, by which such property or interest was u^ceB^ry'for devised or conveyed to the lunatic or person of unsound 8uppo:t 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 order. (R. S., c. 104, Or. 51, rr. 1,3.) 2. Every conveyance by way of lease, sale, or (636. > Convevaiice mortgage, made in good faith, and executed by any such under order as next friend, guardian, or person appointed by the court SeTy infant, or judge in pursuance of such order, shall be as effectual lunatic > &G ' as if : — (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 con- veyance. (R. S., c. 104, Or. 51, r. 2, part.) 3. It shall not be necessary in the conveyance to (637.) recite any part of the proceedings, but such conveyance veyauee. 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 prothonotary of the Kepon filed. 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 such Bflect ( ^;> ale , lunatic or person of unsound mind, or infant, any other or greater interest or estate in the proceeds of such sale than he had in the property so sold. (E. A. 62.) 154 SALES BY THE COURT. Order LI. IT. .->-». 5. Every conveyance purporting to be made under the preceding rules of this Order, shall be prima facie Effect of 'con- evidence that all the proceedings on which the same is founded were rightly had. (E. A. 63.) veyance. 2. — Sales in Other Oases. (610.1 General power to order sale of real estate. (640a.) Power to make order for sale id debenture holders' action at any time. (Oil. I Title may be referied to counsel. (012.) Judge to ap- prove Bale.; and parties to join. (1113.) Allidavits as to 6. If in any cause or matter relating to any real property, in respect to which the court has power to order a sale, it appears necessary or expedient that the real property or any part thereof should be sold, the court or a judge may order the same to be sold, and any party bound by the order and in possession of the pro- perty, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession 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 debentures or bonds are entitled to a charge by virtue of the debentures or bonds, or of a trust deed, or otherwise, and the plaintiff is suing on behalf of himself and other holders of deben- tures or bonds, and where the court or a judge is of opinion that there must eventually be a sale, he may in his discre- tion direct a sale before judgment, and also after judgment, before all the persons interested are ascertained, whether served or not. (E. 680b., E. R. S. C, Nov., 1893, r. 18.)' 7 . Before any property or interest is put up tor sale under a judgment or order, a certificate or abstract of the tijtle shall, unless otherwise ordered, be laid before, the court or judge to enable proper directions to be given respecting the conditions of sale, and other matters con- nected with 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 property 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 parties 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 pro- perty by reference to an exhibit containing such value, so SALES BY THE COURT. 155 that the value may not be disclosed by the affidavit when ** rder ll - filed. (E. 683.) ' "• »-»■ 3. — Foreclosure Sale. i 10. If, in any action for foreclosure and sale, the (644.) sale of the mortgaged property is sought by n subsequent ^"Lp^ty, mortgagee or encumbrancer, or by the mortgagor, or hy- h °^ h ° 1 f d ^ ed ' any .persons claiming under them respectively, the court m ^sequent cn- or judge shall not direct any such sale without the consent cumtoancers - - of the first mortgagee, or the persons claiming under him, except upon such terms as the court or judge thinks fit and proper, which terms may include the deposit of money in court. (E.A. 40.) 10a. (1.) In an action for foreclosure and sale, if the (Mia.) order directs a sale in default of payment, the .premises by7taT»r le shall be sold upon such default, in accordance' with thep'SeV 1 '" 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 and ttcSe*! interest and cpsts, 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 exbeeds what is found to am-pins to be be due to the plaintiff, all accounts may be taken, an d diBtlibuted - inquiries made, and costs taxed, and necessary proceedings had, to distribute the surplus among the persons entitled thereto, according to their priorities. 11. In an action for foreclosure and sale, upon pay- «u5.) ment by the defendant, or in an action for redemption, property and de- upon payment by the plaintiff of the amount found due, J^nS. ' d ° cu the plaintiff or defendant, as the case may be, shall, un- less the court or a judge otherwise directs, , assign and convey the mortgaged premises in question to the party making the payment, or to whom he appoints, free and clear of all incumbrances created by him, and deliver up all deeds and writings in his custody or power, relating thereto. (O., (1897) r. 758.) 12. Whenever any real property bound by mortgage {mu is situated in adjoining counties, with the boundary line jS^"^ between such counties running through the same, the sheriff of either of such counties may sell such real 156 MOTIONS. AND OTHER APPLICATIONS. order li. 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.) Order Ml. ORDER LII. rr. 1—5. MOTIONS AND OTHER APPLICATIONS. (6tT.| l. Where by these rules any application is authorized ' court'CfjSSge to be made to the court or a judge, such application, if by motion. be made to the court, or to a judge in court, shall be made by motion. (E. 696.) „ (p 48 -! . . 2. No motion or application for a rule nisi or order No rnlpn nisi r l in certain cases. t shew cause shall hereafter be made (a) m any action, or (b) 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.) '. (649.) 3. Except where according to the practice existing motion. 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 notwithstanding the next preceding rule, a motion or application may be made for an order to shew cause only, no motion shall be made without previous notice to the parties affected thereby. Notice cms- But the court or a judge, if satisfied that the delay caused Sain cascV" by proceeding 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. ) (650.) 4. Every notice of motion to set aside, remit, or tice in certain enforce an award, or for attachment, or to strike, off the cases. rolls, shall state in general terms the grounds of the application ; and, where any such motion is founded on Affidavits. evidence by affidavit, a copy of any affidavit intended to.be used shall be served with the notice of motion. (E. 699.) T J. 03 !-' .• 5. Unless the court or a judge gives special leave, to Length of notice t , . . ihi jo» j~ the contrary, there shall be at least two clear days be- tween *the service of a notice of motion and the day named in the notice for hearing tbo motion ; provided that in applications to answer the matters in an affidavit, or to strike, off the rolls, the notice of motion shall be' served on the parties not less than ten clear days before MOTIONS AND OTHER APPLICATIONS. 157 the time fixed by the notice for hearing- the motion. (15. »>-f>3.> 1 ii*i- i Mandamus to be mandamus to command the defendant to fulfil any duty, claimed 1 on writ in the fulfilment of which the plaintiff is personally interested, shall indorse such claim upon the writ of sfummons. iE. 719.) 2. The indorsement shall be in the form given in <66i ) section IV, of appendix A, part III. (E. 720.) doreement." 3. If judgment is given for the plaintiff the court 1)owe < r 6 « 5 f - » or judge may by the judgment command the 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 pf the duty. (E. 721.) 4. No writ of mandamus shall be issued in an action, (666.) but\ a mandamus shall be by judgment or order, which oK'InBtead of shall have the same effect as a writ of mandamus writ of mauda- m us. formerly had. (E. 722.) ORDER LIV. Order wv. IT. 1-4. APPLICATIONS AND PROCEEDINGS AT CHAMBERS. 1. Every application at chambers not made ex parte, Appli £!, t0 shall be made by summons, or on notice. (E. 734.) s? m ',u d'n B tice °' 2. Every application for payment or transfer out of <67u.i ., J l L , , .1 v i> i Curtain upplica-, court made ex parte, and every other application made ex tious tobe by parte in which the judge or proper officer thinks fit so to "dS™"" 6 ° require, shall be made by summons or on notice. (E. 735.) 3. No summons shall be altered after it is sealed Alt6r S , of except upon application at chambers. 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 Moret f 1 f- , OI]e makes any application at chambers, either by way of uiatiLiueiuded. summons or otherwise, he may include in one and the same application a|l 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 ad- Adjournment journed from chambers into court, or from court into court!"" 1 from chambers. (E. 742.) 10. A summons other than an originating summons v®>-) shall be in the form No. 1 in appendix K, with suchmon™ variations as circumstances require, and shall be ad- dressed to all the persons on whom it is to be served. (E. 743.) 11. (1.) A summons shall be prepared bv the ap- TT .("88-), * HOW 1KBUCU plicant or his solicitor, and shall be sealed by the pro- thonotary, and when so sealed shall be deemed to be issued. The person obtaining a summons shall leave at the prothonotary's office a copy thereof, which shall be / filed. (2.) Such summons may be issued without the leave without leave. of a judge. (3.) Except by leave of a judge no affidavit shall be Firing or serving used in support of any application at chambers, unless it a avitep 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. E., Oct. 30th, 1893, r. 7.) 12. The appeal from the decision of a judge at AppeaTfrom chambers shall be to the court. (E. 756.) chambers. 13. Every application to be made at chambers shall f;j u ' m be entered on a list by the proper officer when a sum- monses. 21 162 DECLARATION ON ORIGINATING SUMMONS. Order L1V. IT. 14-16. (691.) Order of bubi- (892.) Form of order. (692a.) Attendance of jud,ge at chambers. mons therefor is issued or an entry thereof is filed. -(E. 760.) 14. The applications entered in the list for hearing by a judge shall be called on in their order. If when an application is called on neither party appears, 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 appendix K, with such variations as circumstances require. 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 for that purpose, shalL attend at chambers twice a week, or oftener if necessary. He shall not be required to sit in the court in banco during the period for which the duty of attending at chambers is assigned to him. (S. C. R., Oct. 30th,' 1893, r. 5.) Order LIVa. rr. 1-4. ORDER LIVa. DECLARATION ON ORIGINATING SUMMONS. poweftomake '• ^"^ person claiming to be interested under a B e mm ati0DB UL deed, w i^> 0 i. Any of the following- applications under " The Application by J ~ *- l . . summons under Trustee Act " may be made by an originating summons; "Trustee Act " ~ . , . or in a pending matter by a summons or notice, that is to say : — For new trustee. ^ a ^ j^ Q application for the appointment of a new trustee, with or without a vesting or other consequential order. or°der! e new g ' (b.) An application for a vesting order, or other truBtee - order consequential on the appointment of a new trustee, whether-the appointment is made by the court or a judge or. out of courts ortCT^or'sfie, (*-'•) An application for a vesting order, or other consequential order, in any case where a judg- ment or order has been given or made for the sale, conveyance, or transfer of any land or stock, or the suing for or recovering any chose in action. Money in eourt. (Jy j^ n a ppli ca ti n relating to a fund paid into court in any case. (E. 775a.) qthifappiica- 2 - Ever y otn er application under ' ' The Trustee Act " tions.' may be made by petition. (E. 762r. ) LodgEtunder 3 - (-*-•) where a trustee desires to make a lodgment in Trustee Act. court under "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 Trustee Act," and setting forth, — i quTrStTof («•) A . short description of the trust and of the instrument creating it. (/>.) The names of the persons interested in, and entitled to the money or securities, and their CHAMBERS, CHANCERY MATTERS. 165 places ol residence, to the best of his know- **" ,er ,,Vu - ledge and belief. — ~ ' — {f.) His submission to answer all such inquiries, re- lating 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 securi- ties. (2.) The person who has made the lodgment shall N ° r t ^ B of ,^ > forthwith give notice thereof by prepaid letter through tm-ested. the post, to the several persons whose names and places of residence are stated in his affidavit as interested in, or entitled to, the money or securities lodged in court. (3.) No petition or summons relating to the money Place for service or securities shall be answered or issued unless 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 relating to the money or securities, or the dividends thereof. (4.) Service of any application in respect to the °^ e » tm mr - money or securities shall be made on such persons as the court or judge directs. (E. 762h. ) 4. Applications to deal with funds lodged in court Title ( ^ ! plica . under "The Trustee Act," shall be intituled in the same*™- manner as the affidavit on which the funds were, lodged. ,- 5. All other applications under "The Trustee Act," Title (6 9 f 2 *tber not made in any pending cause or matter, shall be intituled !^ s e t ™ A n c d t 61 ' in the matter of the trust (described so as to be dis- tinguishable) and of "The Trustee Act." 6. There shall be an appeal from any decision, order, {mi.) *it mi m j_ a j. » Appeal from or iuderment of a iudge under " Ine lrustee Act. «rderB under .' O J O I TViiatpd Aft (1888, C. 11, S. 78.) HusteeAct. ORDER LV. order lv. r. i. CHAMBERS IN RELATION TO CHANCERY (OR EQUITY) MATTERS. 1. — -General. 1. The business to be disposed of in chambers shall What ,<|C1, LY - to pronounce or make a judgment or order, whether on ""' 9 "' summons or otherwise, for the administration of any trust No luffi*™. or of the estate of any deceased person, if the questions ^"'y 8 between the parties can be properly determined without such judgment or order. (E. 772.) 9a. Upon an application for administration or execu- (701a ., tion of trusts by a creditor or beneficiary under a will 0rde !' s wi, i ch ■ , , 1 j £ i ' may be made mi intestacy, or deed of trust, where no accounts or in- applications for sufficient accounts have been rendered, the court or a«''ew««tarf judge may, in addition to the powers already existing,— EpntoTS! (a.) Order that, the application shall stand over f or oount^ha™" a certain time, and that the executors, ad- been rendered - mistrators, or trustees in the meantime 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 proceedings : (b.) When necessary, to prevent proceedings by other creditors, or by persons beneficially in- terested, make the usual judgment or order for administration, with a proviso that no proceedings are to be taken under such judg- ment 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 (702.) Order, shall not interfere with or control any power or oflJufties/l™ 1 discretion vested in any executor, administrator, or trustee, except so far as such interference or control is necessarily involved in the particular relief sought. (E. 774.) 11. Any trustee, executor, or administrator shall be (703.) at liberty, without the institution of a suit, to apply by moy^piy "to petition to the court, or by summons upon a written state- jf d u g 8 e !or direc " ment to a judge, for opinion, advice, or direction on any question respecting the management or administration of the trust property, or the assets of any testator or intes- tate, such application to. be served upon, or the hearing thereof to be attended by, all persons interested in such application, or such of them as the- court or judge thinks Proceedi on expedient. And it shall be in the power of the court or a PP lic atipn- judge to direct any question arising on any such applica- tion to be argued, and to appoint counsel for that purpose where the parties fail and it appears necessary to do so. f^f of itxea ' The trustee, executor, or administrator acting upon the 22 170 CHAMBERS, CHANCERY MATTERS. Order LV. rr. 13 IS. 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 application : Provided, nevertheless, that this rule shall not extend to indemnify any trustee, executor, or administrator in respect to any act done in accordance with such opinion, advice, or direction, as aforesaid, if such trustee, ex- ecutor, or administrator has been guilty of any fraud, or wilful concealment, or misrepresentation, in obtaining costs. 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 discretion of the court or judge. (E. A. 30.) ( 1888, c. 11, s. 63 ; 1889, c. 18, s. 3, part.) 3. — Assistance of Experts. jud evo'lhim 1^* ^ e J uc te e m chambers may, in such way as he b..'iB may call thinks fit, obtain the assistance 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.) 5. — Proceedings relating to Infants. Evident 'iii * ^ • Upon application for the appoi iitment of guardians application for of infants and allowance for maintenance, the evidence gualdiaDahip. i n i shall show — (a.) The ages of the infants ; (b.) The nature and amount of the infants' fortunes and incomes ; (c.) What relatives the infants have. (E. 787.) Appointment of 17 - At any time during the proceedings at chambers me" > ' u " ad un ^ er anv judgment or order, the judge may, if he thinks fit, require a guardian ad litem to be appointed for any infant or person of unsound mind not so found by in- quisition or judicial decision, who has been served with notice of such judgment or order. (E. 789.) 6. — Summonses to Proceed. Time fo 1 , bring. . J; 8 : Ev ery judgment or order directing accounts or difecting d !'c ieiltin ^ uiries to be talien or made shall be "brought into counts" 8 "' chambers by the party entitled to prosecute the same within ten days after the same has been passed and entered, and in default thereof any other party to the CHAMBERS, CHANCERY MATTERS. 171 eause or matter may bring in the same, and such party •'"rt^'' ^ v - shall have the prosecution of such judgment or order ''*'' 19 ^' ila - unless the judge otherwise directs. (E. 794'.) 19. Upon a copy of the judgment or order being . mi.) filed, a summons shall be issued to proceed with the ac- P i'oceed?ngs° r counts 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 ac- counts and inquiries, and the time within which each pro- ceeding is to be taken, and a day or days may be ap- pointed for the further attendance of the parties, and all such directions may afterwards 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 get^ 1 ^ 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 fit, 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 expiration of the said period of eight days. (E. 796.) 21. Where, upon the hearing of the summons to n0tice prdceed, it appears to the judge that by reason of absence, of judgment or for any other sufficient cause, the service of notice of pe'nsed with. 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 <713 , 25., Where, upon the hearing of the summons to One BOhcitor for *, L . -i - i each class. proceed, or at any time during the prosecution of the judgment or order, it appears to the judge, with respect to the whole or any portion of the proceedings, that the interests of the parties can be classified, he may require the parties constituting each or any class to be repre- sented by the same solicitor, and may direct what parties may attend all or any part of the proceedings, and where the parties constituting any class cannot agree upon the solicitor to represent them, the judge may nominate suclr solicitor for the purpose of the proceedings before him, and where any one of the parties constituting 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 CHAMBERS, CHANCERY MATTERS. 173 his own solicitor of and relating to the proceedings before nvaer "'• the judge, with respect to which such nomination has rr -^- 3U been made, and all such further costs as are occasioned to any of the parties by his being represented by a different solicitor from the solicitor so nominated. (E. 802.) 26. Whenever in any proceedings before a -judge in . 45. Where a judgment or order is made directing ment or order, an account of the debts of a deceased person, unless otherwise ordered, interest shall be computed on such debts as to such of th,em 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.) interel 7 t 3 wbere ^6. A creditor whose debt does not carry interest, v debt does not wn0 comes in and establishes the same- before the iudee bear interest. J ft 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 drder, out of any assets which remain after satisfying the costs of the cause or matter, the debts established, and the interest of such debts as by law carry interest. (E. 825.) interost'on 47- Wnere a judgment or order is made directing an legacies. account of legacies, interest shall be computed 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 CHAMBERS, CHANCERY MATTERS. 177 or rate of interest is directed by the will, and in that case ° r,,er 1V - according to the will. (E. 826.) »•■ wa-*u. 7 Oa . — References . 47a. The judge may direct referees to take such Rc! J™^ accounts and make such inquiries as usually have been tn|ie accounts. taken and made by the chief clerks in the chancery division in England, and the ^udge shall give such aid and directions in every such account or 1 inquiry as he thinks fit. (E. 777.) 4?b. Such referee shall, for the purpose of any (7396.) proceedings directed to be taken before him, have full taWng°Mcounts. power to issue advertisements, to summon parties 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, to examine parties and witnesses either upon interrogatories or viva voce, as the judge directs. (E. 778.) 47c. Parties and witnesses summoned to attend be- (739c) fore a referee shall be bound to attend in pursuance of summoned to° ns the summons, and shall be liable to process of contempt ?etaee before 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 attendance, 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 con- tained therein, as if the matters sworn or affirmed had been sworn and affirmed before any other person by law authorized to administer oaths, to take affidavits, and to receive affirmations. (E, 779.) 47d. The court or judge may direct any computation (739<«.) of interest, or the apportionment of any fund, to be in°™rest t , a &c° to certified by the referee, and to be acted upon by any^y*^^' person without further order. (E. 780.) ^ 47e. The directions to be given for or touching any (739c) proceedings before the- referee shall require no particular acate. • form, but_the result of such proceedings shall be stated in the shape of a concise certificate to the judge, and un- less 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.) 23 178 CHAMBERS, CHANCERY MATTERS. Order LV. rr. *ir-*ll- (73Sfc.) Preparation and settlement of referee's certificate. <739fc.) Form of certificate. 47r. The certificate of the referee shall not, unless the circumstances of the case render it necessary, set out certificate, how the judgment or order or any documents or evidence or reasons, but shall refer to the judgment, or order, docu- ments, and evidence, or particular paragraphs thereof, so that it may appear upon wftat the result stated in the certificate is founded. (E. 828.) 47g. The certificate shall, when the judge so directs, be prepared by the solicitor of one of the parties, who shall obtain an appointment to settle the certificate and shall give notice of such appointment to the other parties. No summons to settle the certificate of the referee shall hereafter be issued. (E. 828a.) 47h. The certificate of the 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 necessary) 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 i*efer to the account verified by the affidavit filed, and shall specify by the numbers attached to the items in the c.ccount which, if any, of such items have been disallowed or varied, and shall state what additions, if any, have been made by way of surcharge or otherwise, 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 transcript may be required to be made by the party prosecuting 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 without any fresh summons for the purpose. (E. 831.)" 47l. Every certificate, with the accounts (if any) to be filed therewith, shall be filed by the referee, and shall thenceforth be binding on all the -parties to the "proceed- ings, unless discharged or varied upon application by summons to be made before the expiration of eight clear days after the filing of the certificate. (E, 832.") (7391) Contents of certificate in cases of accounts. Transcript. FiliDg of accounts and transcripts. (7394.) Taking opinion of judge. ami.) When certificate becomes binding. Application to discbarge or vary it. INTERPLEADER. 179 47m. The mdge may, if the special circumstances of ° ,,lcl LV ,, . J .*? J i. , . , , . it. 4Tro— 49. the case require it, upon an application by motion or summons for the purpose, direct a certificate to be dis- Discharged charged or varied at any time after the same has become Iertmcate°aftev binding on the parties . * ( E . 833 . ) {!££ of any 1 1 . — Further Consideration . 48. Where any matter originating in chambers has, ffwu at the original or any subsequent hearing, been adjourned matter, how for further consideration in chambers, such matter may, forward. after the expiration of eight days, be brought on for further consideration by a summons to be taken out by the party having the conduct of the matter, and, after the expiration of fourteen 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 matter, the further consideration whereof has, at the original or any subsequent heading, been adjourned into court. CE. 834.) 12. — Forms, &c. 49. The forms Nos. 10 to 20 in appendix L, shall be^ (?«•» used for the respective purposes therein mentioned, with such variations as circumstances require. (E. 837.) ORDER LVI. Order MI. INTERPLEADER. 1. Relief by way of interpleader may be granted, — (742.1 i i • i • r , • 3 • r\ l When such (a.) Where the person seeking relief (in this Urdcr relief allowed. called the applicant) is under liability for any debt, money, goods, or chattels, for or in respect to which he is, or expects to be, sued by two or more parties (in this Order called the claimants) making adverse claims thereto ; (b.) Where the applicant is a sheriff or other officer sheriff, 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 180 INTERPLEADER. «r«icr lvi. 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 process issued. (E. 850.) (743.) 2. The applicant shall satisfy the court or a judge by Conditions of , lr . J J a J relief. affidavit or otherwise — (a.) That the applicant claims no interest in the subject-matter in dispute, other than for charges or costs ; and (b.) 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 con- sequence of the execution creditor admit- ting 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. (E. 851, E. R. S. C, March 1896, r. 2.) , , 0H.) 1 3. The applicant shall not be disentitled to relief by ■A.uVCl'8© tltlGS L of claimants, reason only that the titles of the claimants have not a common origin, but are adverse to and independent of one another. (E. 852.) „. >,. 4. Where the applicant is a defendant, application Time for appli '] ,. • r .. cation by for relief may be made at any time after service of the defendant. .. c , -,-, c*rn ^ writ of summons. (E. 85o.) interpleader ^- ^ ne applicant niay fake out a summons calling on summonB. the claimants to appear and state the nature and par- ticulars of their claims, and either to maintain or re- linquish them. (E. 854.) Powe^toBtay ^- ^ the application is made by a defendant in an proceedings action the court or judge may stay all further proceed- ings in the action. (E. 855.) pirectton'of 7 - ^ tne claimants appear in pursuance of the sum- cSantte* mo . ns » the court or a judge may order either that any made defendant, claimant be made a defendant in any action already com- menced 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 defendant. (E. 856.) INTERPLEADER. 181 8. The court or a judge may, with the consent of ° r,ler 1VI - both claimants, or on the request of any claimant, if, -J^- ,x having regard to the value of the subject-inatter in dis- Bum™ pute, it seems desirable so to do, dispose, of the merits of Sm ation ? y their claims, and decide the same in a summary manner and on such terms as are just. (E. 857. ) 9. Where the question is a question of law, and the 0uest !™-' of facts are not in dispute, the court or a judge may either law, and special decide the question without directing 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 applicable, apply thereto. (E. 858.) 10. If a claimant, having been duly served with a (751.) summons calling on him to appear and maintain or a^plaringj'to be relinquish his claim, does not appear in pursuance of the barred - summons, or, having appeared, neglects or refuses to comply with any , order made after his appearance, the court or a jadge may make an, order declaring him, and all persons claiming under- him, forever barred against the applicant and persons claiming under him ; but the order shall not affect the rights of the claimants as be- tween themselves. (E. 859.) 11. Except when otherwise provided by statute, the (752.) judgment in any action, or on any issue ordered to be final"" 011 ' w ™ tried or stated in an interpleader proceeding, and the decision of the court or a judge in a summary way, under rule 8 of this Order, shall be final and conclusive against the claimants, and all persons 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 (753.) execution by a sheriff or other officer charged with the ordered* execution of process of the court, and any claimant alleges that he is entitled, under a bill of sale or other- wise, 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 pro- ceeds of the sale in such manner and upon such terms as are just. (E. 861.) 13. Orders XXX and XXXIV shall, with the neces- . (754.) sary modifications, apply to an interpleader issue; and anTfJdgmenT ' the court or judge who tries the issue may finally dispose of the whole matter of the interpleader proceedings, in- cluding all costs not otherwise provided /for. (E. 862.) 182 INTERPLEADER. Order LVI. rr. 14—11. (755.) Que order in several matters 14. , Where in any necessary or expedient (756a.) Sheriff's csts. interpleader proceeding it is to make one order in several causes or matters, such order may be made by the court or a judge before whom the interpleader proceedings 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.) CoBtsand'Lci- ^ '• ^ ne ' cour t or a judge may, in or for the purposes dental matters, 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 B, or to the like effect. If the execution creditor 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 notiqe admitting the claim. (E. Or. 57, r. 16, E. R. S. C, 1889, r. 9.)" 16a. When the execution creditor has given notice to the sheriff or his officer that he admits the 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 possession of the said- goods, and the judge may make any such order as is just and reasonable in respect to the 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 purposes - of such application, make all such orders as to costs as are just and reasonable. (E. Or. 57, r. 16a., E. R. S. O, March 1896, r. 3.) 17. Where the execution creditor does not in due time, as directed by rule 16, admit or dispute the 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 (7566.) Withdrawal of sheriff. (75fie.) Cost< in interpleader. APPEALS, ETC. 183 interpleader summons to be issued, and should the Q"ici- i^i- 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 interpleader proceedings, make all such orders as to costs, fees, charges, and expenses, as are just and reasonable. (E. Or. 57, r. 17, E. E. S. C, 1889, r. 10.) OEDEE LVII. Orttr MM. IT. 1-4. APPEALS, ETC. 1. All appeals to the court shall be by way of re- (757.) hearing, and shall be brought by notice of motion in a by P w iwuriug summary way, and no petition, case, or other formal pro- *" motion. not,ce ceeding other than such notice of motion shall be neces- sary. 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 judgment or order is com- plained of, and in the latter case shall specify such part. • (E. 865.) 2. The notice of appeal shall be served on all parties . (758.) directly affected by the appeal, and it shall not be neces-wiiom'tobe sary to serve parties not so affected ; but the court may se,ved 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 may be amended at any time as the court thinks fit. , (E. 866.) 3. The notice of appeal shall be served within ten (759.) days from the day when the appellant or his solicitor first be given. 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 _«76a.) judge, ip court, or in chambers, except orders made in appeal! 8 of 184 APPEALS, ETC. omcr Lvn. the exercise of such discretion as by law belongs to him, — ""' 5 ~ 7 ' — may be set aside or discharged, upon notice, by the court. PowerllVcourt ^. On appeal, the court shall have all the powers and on appeal, an to duties as to amendment and otherwise of the court or denoc, infer- judge appealed from, together with full discretionary* power to receive further evidence on questions of fact, such evidence to be taken by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given with- out special leave, 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, suck further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not witkout special leave of the court. The court shall have power to draw inferences of fact, and to give any judgment and make any order wkick ougkt to kave been made, and to make such further or other order as the case requires. The powers afore- said may be exercised by the court, notwithstanding 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 respondents 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.) New tS'ma ®* ■*■*' upon the hearing of an appeal, it appears to be ordered. the court that a new trial ought to be had, it shall be lawful for the court to order that the verdict and judg- , ment be set aside, and that a new trial be had. (E. 869.) cross-Ideals. 7 - ^ s ^ a ^ not > un der any circumstances, be neces- sary for a respondent to give notice of motion by way of, cross-appeal, Ibut if a respondent intends, upon the hear- ing 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 succeeding 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. The omission to give such notice shall not diminish the powers of the court, but may, in the discre- tion of the court, be ground for an adjournment of the appeal, or for a special order as to costs, (E. 870.) APPEALS, ETC. > ' 185 8. Subject to any special order which may be made, »>•<»«'• *•*". notice by a respondent under the next preceding rule — l -^r ZJ ^ — shall in the case of any appeal from a final judgment be Notice of crosa- an eight days' notice, and in the case of an appeal from appea ' an interlocutory order, a two days' notice. (E. 871.) 9. The party appealing shall file with the prothono- (763.) tary at Halifax a copy of the notice of appeal when the u ' yo apv ° a ' appeal is entered for argument. (E. 872, part.) 10. When an ex parte application has been refused Ex VfiJ ap by a judge, an application for a similar purpose may be P licati0DB - made ex parte to the supreme court en banc, 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 (767.) . i • j • r i • i j_i • 1- j_ i Evidence, how appeal or application for a new trial, tne evidence- taken brought up. in the court below, or by the judge appealed from, bear- ing 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 production of copies of such affidavits ; (b.) As to any evidence given orally, by the produc- tion of copies of the judge's notes, or such other material, as the court deems expedient. (E. 875.) 12. No interlocutory order or rule from which there (768.) has been no appeal, shall operate so as to bar or prejudice bynlScutory the court from giving such decision on the appeal as is p"^ ed "fmm P just. (E. 878.) 13. An appeal shall hot operate as a stay of execu- (769.) tion, or of proceedings under the decision appealed from, ^"$ £„ a except so far as the judge appealed from, or the court, codings. orders; and no intermediate act or proceeding shall be invalidated, except so far as 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 (770.) ■ delayed by the appeal, shall be allowed at the rate of six a nowed where percent., unless the court or a judge otherwise orders, execution stayed and such interest shall be added to the judgment without any order for that purpose. (E. 883.) 15. Where any application is required to be made to, (771.) . ,. . 1 • i j. 1 "k 41 „ Substitution of or any jurisdiction exercised, or any act clone ny, tne Jtld ge. judge by whom a cause or matter has been tried or heard, - 24 186 SESSIONS, VACATIONS, ARGUMENTS, ETC. or«icr lvii. jf gych j uc ig e dies or ceases to be a judge of the court, 10 17. 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 ap- plication may be made, and by whom such jurisdiction may be exercised. (E. 885.) Appe!i 7 from ^ - Where a compulsory reference to arbitration has referee, &a. been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law ; 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 any 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.) LirouS'of I?- Rules 1, 2, 3, 4, 5, 6, 9, 10, 11, and 13 of this certain rules. Order shall only apply to appeals in causes or matters originating in the supreme court or in the county courts. ., (E. S., c' 104, O. LVII, r. 17; 1889, c. 9, s. 71.) ""rTi-I" 1 * ORDER LVIII. SESSIONS, VACATIONS. ARGUMENTS, etc. ™, ("4.) 1. The Supreme Court en banc shall sit at Halifax at The court . . . 1 , always open, such times as the business requires and as the attendance of a quorum of the judges can be obtained. (1882, c. 2,8. 13.) vecation 5 '* 2 - (1 -) ^ n Halifax there shall be a vacation extending from the sixteenth day of July to the fourteenth 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 de- livering a defence in a cause in which the defendant has appeared has not expired previously to the sixteenth day of July, it shall, without 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 plead- ing is delivered during vacation the same time shall be SESSIONS, VACATIONS, ARGUMENTS, ETC. 187 allowed to the opposite party as ' if it was delivered on ° riler " ""• the last day of vacation. — ' 3 ~ 7 ' — (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 dis- obedience 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.) 3. Notwithstanding the next preceding rule, the court (776.) -i t ' . Fj j_* i l -l Special order. or a ]udge may, during the vacation, by order, upon special cause "shewn, authorize any proceedings 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 en cm) banc in each year shall be held as follows :— £ B 7on°s" e8Ula1 ' (a.) From the second Tuesday in November until First session, the twenty-third day of December, both in- clusive, to be called the November session. (b.y From the second Tuesday in January until the second session. last day of February, both inclusive, to be called the January session. (c.J From the second Tuesday in March until the Third session. ■ Saturday before the third Tuesday in April, both inclusive, to be called the March ses- sion. (S. C. R., 30th Oct., 1893, r. 1, part.) 5. During any of the sessions, the court may from (779.) time to time adjourn for short periods, if deemed advis-^ Bess 1 )"™ 6 "' 6 able. ;S. C. R., 30th Oct., 1893, r. 1, part.) 6. If at the end of the March session any causes for {7S0 ^ argument which have not been called remain on the 8pecial 8ession - docket, a special session for the hearing of such causes shall be held in the following July, to commence on a day to be fixed by the court, but no causes except such remanets shall then be heard, except by special leave of the court. (S. C. R., 30th Oct., 1*93, r. 2.), 7. Four judges shall constitute a quorum to decide (m.) all matters requiring to be heard by the court wt banc, but$ l d °™ m of 188 SESSIONS, VACATIQNS, ARGUMENTS, ETC. order i»vui. jf the attendance of four judges at any time cannot be ''*'• 8 ~~ 1V obtained owing to absence, illness, or other cause suffi- cient in the estimation of the judges present, three shall constitute such quorum. (R. S., c. 104, Or. 58, r. 4.) <7 B 8 diiciit 8- ^ n y judge ma y deliver the judgment of the court ingauthonty'to W hen authorized to do so by the judges who heard the m'e ,'t°"" cc , " C B " matter on which judgment is to be pronounced, or may deliver the judgment of any other judge when authorized so to do by such other judge, notwithstanding the absence of the judges or judge aforesaid. (1882, c. 2, s. 11.) (783.) 9. No judge shall sit on the hearing of any appeal from noTto'Vt from his" decision or judgment in court or at chambers, or on appeal. on an y mo ^ on f or a new trial in a cause or matter tried before him with a jury, unless he is requested by a majority of the judges. (S. C. R., 11th April, 1890.) (784.) 10. ( 1 . ) The entry days of causes for argument shall app! ) aiB.'' y " be the Tuesdays immediately preceding the commence- ment of the respective sessions, and no cause shall be entered between either of these days and the end of the session, except by the leave of the court. Entry on first (2.) All causes for argument shall be entered on the first entry day after notice of appeal or notice of motion has been given, but by written consent of the opposite party, his solicitor or agent, or by leave of the court or a judge, tfiey can be entered for argument at any subsequent session instead. (S. C. R., 30th Oct., 1893, r. 3, part.) (7851 11. Except by leave of the court or a judge, the ap- pellant or moving party only shall have the right to enter the appeal or motion, and every appeal or motion shall be inscribed on the docket in one place only. (S. C. R., 23rd Dec. 1892, r. 1 part.) appeals or other 12. Every entry of a cross appeal, or of a second motion or appeal, in a cause or matter in which there is a motion or appeal still unheard, shall state that it is a cross appeal or second motion or appeal, as the case may ,787.) be. (S. C. R., 23rd Dec, 1892, r. 2 part.) Entry to men- -i o t j_ r i / tkmnameof 13. in every entry of an appeal or motion the name jud K e. Q £ ^ j U( jg e w bo tr ied or h ear d the cause or matter shall be stated. (S. C. R., Dec. 23rd, 1892, r. 2 part.) DockJtof'ar u 14 ' The P rot bonotary shall for each session place the mentB how pie- causes entered for argument upon a docket, keeping the parcd ' entries from each county in a separate group. (S. C. R., 30th Oct., 1893, r. 3 part.) inscribing' ap 15. The counties shall be arranged on the docket in ^d 1 co b u y ntie C 8 uitB the following order: Commencing with Hants county entry day. Party to enter. (786.) motions in the action SESSIONS, VACATIONS, AROUInLENTS, ETC. 189 for the November session, with Inverness county for the 0, ' ,ler «-*"•• January session, and with Lunenburg county for the vr ' I0 ~ 80, March session, the several counties in each case shall be taken in rotation in the following order : Hants, Col- chester, Cumberland, Halifax, Inverness, Victoria, Cape Breton, Richmond, Pictou, Antigonish, G/uysboro, Lunen- burg, Queens, Shelburne, Yarmouth, Digby, Annapolis, Kings. (S. C. R., 30th Oct., 1893, r. 3," part.) 16. In respect to the entries from each county, ' • ' -!• i c n ' j_i i n l Docket for with the cause immediately following the cause last called special session. at the previous March session. (S. C. R., Oct. 30th, 1893, r. 3, part.) 20. (1.) The court shall in calling the docket allow (794.) ' an interval of at least one day to elapse after the com- between "groups pletion of the argument of the last cause, oWSt". 6 " (a.) on the list for the County of Halifax, and, (b.) on the list for the counties in each circuit, before calling the next cause, unless such cause is on the list for the counties in the Cape Breton circuit, in which case the court shall allow an interval of at least two days to elapse. (2.) Nothing in this Order shall prevent the argu- ^ g S t a 8 d dur ' ment of any cause on any of such intervening days by joumments. consent of parties. (3-.) Notwithstanding anything' in this order, , the Argument out V / ~ , J ° , ., of turn under court may, under special circumstances, near the argu- special circum- ment of any cause out of its regular order, or give such stanc08 ' cause priority. (1891, c. 12, ss. 3, 5.; 190 SESSIONS, VACATldNS, ARGUMENTS, ETC. • ' 4. i 11 j -4. -i-u 4.l_ n. • 4.1 Copy of appeal or moving party snail deposit with the librarian, in the case tor law law library, a printed copy of the case, together with a ' fee of twenty-five cents, which fe.e shall be included in the costs, and be paid by stamp. (2.) No case or record on appeal shall be certified to copies of ap. the Supreme Court of Canada, or to the Judicial Committee K comt'and of fifer Majesty's Privy Council, unless the proof sheets Privy Cmacih of the judgments are submitted to the judges for cor- rection, nor until two copies of the record or case, in the form in which it is required to be certified, are deposited with the prothonotary, together with a fee of twenty-five cents ; one of such copies shall be filed in the prothono- tary's office, and the other, with the fee, deposited with the librarian in the law library. In cases of appeal to 192 OFFICERS AND THEIR DOCUMENTS. oiiicr tviu. the p r ivy Council, the depositing of the copy for the library may be dispensed with if the solicitor for the appellant gives the librarian an undertaking in writing to deliver to him a printed copy before the appeal is heard. f e08 a tO foriu 8ed (3') The fees deposited with the librarian shall be dexing. used to form a fund to pay for indexing and binding in a suitable manner and uniform volumes the printed cases for argument and on appeal deposited in the law library. _(4.'i The fees in this rule provided for shall be paid by affixing a law library stamp, such as is affixed to writs of summons, on the copy of the case handed to the Chief Justice or presiding judge at the argument ; and in cases of appeal from the court, by affixing the same to the copy of the record or case filed with the prothonotary. (S. C. R., Dec. 23rd, 1892, rr. 3, 4, 5, 6.) Payable by law stamp. Order M\. rr. 1—5. ORDER LIX. OFFICERS AND THEIR DOCUMENTS. (800.) Atitbenti eating documents. (799.) 1. The existing official seals in use by the respective prothonotaries shall continue to be the seals used, but may be changed as the Govern or-in-Council from time to time directs. (E. 899.) 2. All copies, certificates, and other documents ap- , pearing to be sealed with a seal of the court, used by the prothonotary, shall be presumed to be authenticated copies or certificates or other documents issued by the prothonotary, and may be received in evidence, and no signature or other formality, except the sealing with the prothonotary's seal, shall be required for the authentica- tion of any such copy, certificate, or other document. (E. 900.) 3. It shall not be necessary to enrol any judgment or order, whether dated before or since the first day of October, A.D. 1884. (E. 901.) 4. Proper indexes or calendars to the files or bundles of all documents filed, shall be kept, so that the same may be conveniently referred to when required, and such indexes or calendars and documents shall, at all times during office hours, be accessible to the public on payment of the proper fee. (E. 910.) 5. There shall also be entered in proper books kept 'for that purpose, the time of delivery of every document enMes therern d filed in the prothonotary's office, and such books shall at (801.) Eni'OlmenVnot (802.) Indexes, &c. (803.) Books to be kept at prothono- OFFICERS AND THEIR DOCUMENTS. 193 all times during office hours be accessible to the public on ° r,,er 1IX - payment of the proper fee. (E. 911.) "' 6 ~ 13, 6. Every judgment, order, certificate, petition, affi- Docu S s davit or document, made, presented, filed, or used in any numbered and cause or matter, shall be distinguished by having plainly a ' written or stamped thereon the year, the letter and the number by which the cause or matter is distinguished in the books kept in the prothonotary's office. (E. 912; E. E. S. C, Feb. 1895, r. 7.) 7. There shall also be entered in the cause book the (805.) date of every judgment, order, and certificate made in m^iusfbook. 6 every cause or matter. (E. 913.) 8. For the purpose of enabling all persons to obtain (806.) precise information as to the state of any cause or matter, pi e r c t eedtng8°to and to take the means of preventing improper delay i n be « lven - the progress thereof, the prothonotary shall, at the request of any person, whether a party or not to the cause or matter inquired after, but on payment of the proper fee, give a ceiiificate specifying therein the dates and general description of the several proceedings which have been taken in the cause or matter. (E. 917. ) 9. No affidavit or document filed at the prothono- (807.) tary's office shall be taken therefrom without the order of S'b^taken uot a judge. (E. 921.) awa y- 10. The forms contained in the appendices shall be j. orm f 08 -' used in or for the purposes of the prothonotary's office, with such variations as circumstances require. (E. 925.) 11. Upon every pleading or other proceeding which Filln J^a r ked is filed in the prothonotary's office, the date of filing the by prothonotary same shall be printed or written. (E. 909.) 12. On the first day of each sittings the prothono- (8io.) tary shall deliver in open court a correct statement of the fines. fines imposed at the preceding sittings, together with a statement of all such as have been collected since the preceding sittings. (S. C. A., s. 11.) 13. Anv obligation or security which heretofore has„ <8ii.) , , , J r , ° . i i i ii , Securities taken been, or hereafter may be, ordered by the court or a in name of pro- judge to be made to the prothonotary as the obligee be^uod^rMe thereof, may be enforced by action, either in the name of e "~ such prothonotary or by order of the court or a judge in the name of any succeeding prothonotary, or of any other such officer, and such order may prohibit the commence- ment or continuance of any action on any such obligation or security by or in the name of the original obligee or his representatives. (S.C.A., s. 17.) 25 ■ successor. 194 TIME. order lix. ig. The prothonotary of every county shall, when- ever required, furnish to the solicitors or parties requiring Prothonofaiy to the samej a bill of the items of his own fees and those of ito™" h when 0f re- the crier, and in default of so doing before taxation of quired. costs in the cause, he shall be liable to a penalty of twenty dollars, and shall forfeit his fees. (S. C. A., s. 20.) comJi^stinerB 17. The commissioners for taking affidavits to hold tfo!Zri e cer ~ *° ^ a ^ an< ^ recognizances of bail, appointed and hereafter to be appointed by the Governor-in-Council, shall con- tinue to have authority to allow writs of certiorari and to order such writs to issue, and to indorse the same, when no judge is in the county where the proceedings for such certiorari are taken. They shall also have authority to administer oaths, and to take affidavits in causes and matters relating to the court and its proceed- ings, and also to take the examination of witnesses aged, infirm, or about to leave the province. (1874, c. 1, s. 1 ; 1882, c. 2, s. 10.) Order IX. ORDER LX. rr. I—*. "Mcmih-iean* 1- Where by these rules, or by any judgment or calendar month. orc i ei . given or made after the first day of October, A. D. 1884, time for doinu- any act or taking any proceeding is limited by months, and where the word "month" occurs in any document which is part of any legal procedure under these rules, such time shall be computed by calendar months, unless otherwise expressed. (E. 961.) sundiy!&c.,not 2. Where any limited time less than six days from "tain n e^ei n cer ' 01 " a fter 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.) Expiration of 3. Where the time for doing any act or taking any timeon Sunday, 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.) CompSttng time 4 - Tho tla y on which an order for security for costs forwcurityior i s served, and the time thenceforward until and including the day on which such security is given, shall not be costs. 195 reckoned in the computation of time allowed to plead, ° rdcr 1X - answer interrogatories, or take any other proceeding in — "* 5 7 9 ' the cause or matter. (E. 966.) 5. The court or a judge shall have power to enlarge (820.) or abridge the time appointed by these rules, or fixed by orTbrid g™ttme e any order enlarging time, for doing any act or taking any proceeding, upon such terms (if 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 al- lowed. (E. 967.) 6. The time for delivering, amending, or filing any (82i.) pleading, answer, or other document may be enlarged byconS 6 " 1 ^ consent in writing, without application to the court or a judge. (E. 968.) 7. Service of pleadings, notices, summonses, orders, (822.) rules, and other proceedings, shall be effected before the service. ° r hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two in the after- noon. Service effected after six in the afternoon on any week day except Saturday shall, for the purpose of com- puting 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 following Monday. (E. 971.) 8. In any case in which any particular number of (823.) days, not expressed to be clear days, is prescribed, the by days. 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 been no (824.) proceeding for one year from the last proceeding had , the a/terTapTe g of a party who desires to proceed shall give a month's notice year ' to the other party of his intention to proceed. A sum- mons 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.) ORDER LXIII. ° rdei- " ra - 1. Subject to the provisions of the Act and these (827.) rules, the costs of and incident to all proceedings in the Nonary. Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or 196 • costs. order urn. judge : Provided that nothing herein contained shall ""• 8 ~ 5 ' — deprive an executor, administrator, trustee, or mortgagee gageesf &c. m ° r who has not unreasonably instituted or carried on or re- sisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules formerly acted upon in equity : Provided also that, where any action, cause, matter, or jury cases. issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter or issue is tried, or the court, otherwise orders. (E. 976.) (828.) 2. When issues in fact and law are raised upon a Costs on several , n r . / 1 . issueB. claim or counter-claim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event. (E. 977.) (829.) 3. If a cause is removed from an inferior court hav- removed f mm ing jurisdiction in the cause, the costs in the court below inferior court, g^aij ^ CO sts in the cause, unless the court or a judge otherwise orders. (E. 978.) <83o.) 4. Where upon the trial of any cause or matter it Solicitor caus- r " . , _ , iu g delay liable appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the court or judge, and which according to the practice ought to have been delivered, such solicitor shall personally pay to all or any of the parties such costs as the court or judge thinks fit to award. (E. 980.) secunfy l for **• (!•) Security f or costs may be ordered where by costs. law or by the practice a party has heretofore been en- titled to obtain security for costs and, without restricting the generality of this provision, also in the following cases : — (a.) Where the plaintiff resides out of Nova Scotia; (b.j Where the plaintiff is ordinarily resident out of Nova Scotia, though he may be temporarily resident within Nova Scotia ; (c.) Where the plaintiff has brought another action or proceeding for the same cause which is pending in Nova Scotia or in any other country ; ( ' Bond to the shall, unless the court or a judge otherwise directs, be P ai *y. f° r given to the party or person requiring the security, and Be< not to an officer of the court. (E. 982.) 8. Where an originating summons, a petition or a (834.) notice of motion is served, and notice is given to the on service of party served that in case of his appearance in court his pe ' 10n ' costs will be objected to, accompanied by a tender of $5.00 for costs, the person making such payment shall be allowed the same in his costs, if the service was proper, but not otherwise ; but this rule is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the court or judge considers the party entitled, notwith- standing such notice or tender, to appear in court. (O. (1897), r. 1153.) 9. If in any case it appears to the court or a judge (835.) that costs have been improperly or without any reason- iy°fncu™ed? p &c". able cause incurred, or that by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the court or judge may call on the solicitor of the person by whom such costs have been so incurred to shew cause why such costs should not be disallowed as between the solicitor and his client, and also (if the circumstances of the case require) why the solicitor should not repay to his client any costs which the client has been ordered to pay to any other person, and thereupon may make such order as the justice of the case requires. The court or judge may refer the matter to the taxing master for inquiry and report, and direct not to affect Bet-off 198 costs. Order Lxiii. jjjg solicitor in the first place to shew cause before the -^ — ~ taxing master, and may also appoint a solicitor to attend and take part in such inquiry. Such notice (if any) of the proceedings or order shall be given to the client, in such manner as the court or judge directs. Any costs of the solicitor so appointed and attending shall be paid by such parties or out of such funds as the court or a judge directs. (E. 986.) costBoSidtor 10 - Where the court or a judge appoints one of the who is guardian solicitors of the court to be guardian ad' litem of au infant ad litem. . ° 1 _, or person of unsound mind, the £Ourt or judge may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid either by the parties or some one or more of the parties to the cause or matter in which such appointment is made, or out of any fund in court in which such infant or person of unsound mind is interested, and may give directions for the repayment or allowance of such costs as the justice and circumstances of the case require. (E. 988.) Den tor costs 1 1 ■ A set-off f or damages or costs between parties may be allowed, notwithstanding the solicitor's lien for costs in the particular cause or matter in which the set-off is sought, if the court or judge thinks fit. (E. 989.) QoeJ^tif Ha. The costs occasioned by any unsuccessful claim, estate. r unsuccessful resistance to any claim, to any property, shall not be paid out of the estate, unless the judge other- wise directs. (E. 989a; E. R. S. C, Nov., 1893, r. 28.) cosS regards H B - The costs of inquiries to ascertain the person sharea llai entitled to any legacy, money or share, or otherwise incurred in relation thereto, shall be paid out of such legacy, money or share, unless the judge otherwise directs. (E. 989b, E. R. S. C, Nov. 1893, r. 29.) DistrKon not llc - Where some of the persons entitled to a dis- u° b ?.J lel, ;y ,!d tributive share of a fund are ascertained, and difficulty or by difficulties j , .' . . •> as to some delay occurs, or is likely to occur, m ascertaining the persons entitled to the other shares, the court or a judge may order or allow immediate payment of their shares to the persons ascertained without reserving any part of those shares to answer the subsequent costs of ascertaining the, persons entitled to the other shares ; and in all such cases such order may be made for ascertaining and pay- ment of the costs incurred down to and including such payment as the court or judge thinks reasonable. (E. 989c; E. R. S. C, Nov., 1893, r. 30.) costs. , 199 12. Costs may be taxed On an award, notwithstanding ° r,,er L *"i- the time for setting aside the award has not elapsed. ""' 13 ~ 20- (Hi. yyO. ) Costs on award. 13. One day's notice of taxing costs, together with a (839.) copy of the bill of costs, shall be given by the solicitor of ? f n ^uon notiee the party whose costs are to be taxed to the other party or his solicitor in all cases where a notice to tax is necessary. (E. 991.) 14. Notice of taxing costs shall not be necessary in "Of tors- co°sts 801CI " Costs and Fees," which shall also apply to pending proceedings. 200 COSTS. order Lxui. 21. When costs are given to any party, they shall "' 81 ~ be such as are provided for by the scale of costs now in (847 ) It/ Provision 'as to force in that behalf, and shall be taxed according to such taxing of costs. ^^ ^ ^ taxing authority ( lg94) <,_ 13> g _ L) (847a.) 22. When any successful party is deprived of any wy Mason's 7o r r costs by any order or judgment of the court, or a judge, oo6t8 n ° wing the reason for so depriving such party of any such costs shall be expressed in and by such order or judgment. (1894, c. 13, s. 2.) SPECIAL ALLOWANCES AND GENERAL REGULATIONS. 23. The following special allowances and general regulations shall apply to all proceedings and all taxations in the Supreme Court : (1.) As to drawing any pleading or other document, the fees allowed shall include any copy made for the use of the solicitor, agent or client, or for counsel. (2.) As -to affidavits, when there are several de- ponents 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 drawing an affidavit in answer to interrogatories include all at- tendances on the deponent to settle and read over. (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 no|t to be allowed where the same solicitor, or firm of solicitors, is for both parties. separate /g_) Where the same solicitor, or firm of solicitors, £LDBWGr6 or pro- ceedioga by the is ejnployed for two or more defendants, and separate aarae solicitors, i -i. ? i- i ,• ,. ^ , , pLeadings are delivered, or other proceedings had, by or for two or more such defendants 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 incurred, the same shall be disallowed. Special allow- ances, &c. Pleadings, al- lowances for. Sweariug affi- davits. Drawing affi- davits. Delivery of pleadings. Perusals. COSTS. 201 ( 7 . ) As to evidence, such just and reasonable charges •**>»• ixiii. and expenses as appear to have been properly incurred in — r^-_ procuring evidence and the attendance of witnesses are to be allowed. (8.) As to agency correspondence in country agency Agency corres- causes- and matters, if it is shewn to the satisfaction of pondence - the taxing authority that such correspondence has been special and extensive, he may make such special allow- ance in respect thereto as in his discretion he thinks proper. (9.) As to attendances at the judges' chambers, Non-attendance where by reason of the non-attendance of any party part?™ e on°pro- ( unless it is considered expedient to proceed ex parte), chambers! 11 or where by reason of the neglect of any party in not being prepared with any proper evidence, 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 against any other party, or any estate or fund in which any other party is interested. (10.) In a folio every figure comprised in a column, Figure in or authorized to be used, shall be counted as one word. Tw™. " xe (11.) As to inspection of documents under Order inspection of XXX, rule 15, no allowance is to be made for any notice under°order 30, or inspection unless it is shown to the satisfaction of the R ' 15 ' taxing authority that there were good and sufficient reasons for giving such notice and making such in- spection. fl2.i As to taking copies of documents in posses- copies of docu- V , & * , ,, r ■ i 1 mentB ten cents sion of another party, or extracts therefrom, under rules per foiio unless of court or any special order, the party entitled to take Fused ° tlon " the copy or extracts is to pay the 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 re- quiring the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be en- titled to any fee in respect thereto. (13.) The court or judge may, at the hearing of an y °j 8 9 t a B u ° f w ?° ce of cause or matter, or upon any application or proceeding in proper, vexa- any cause or matter, in court or at chambers, and whether necessary 111 ' the same is objected to or not, direct the costs of any in-^o^r' * ao ceedinga. 202 . 0O8T8. order Lxm. d orgemen t on a writ of summons, pleading, summons, — ^-^ affidavit, evidence, notice requiring a statement of claim, notice to produce, admit, or cross-examine witnesses, ac- count, statement, 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, unnecessary, or contains vexatious or unnecessary matter, or is of un- necessary length, or caused by misconduct or negligence, to be disallowed, or may direct the taxing authority to look into the same and to disallow the costs thereof, or of such part thereof as he finds to be improper, un- necessary, vexatious, or to contain unnecessary matter, or to be of unnecessary 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. set-off of costs. (14.) In any case in which, under the next preced- ing regulation, or any other rule of court, or by the order or direction of a court or judge, or otherwise, 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. p°a°^"t ap " C 15 - ' Wbere an y party appears upon any application court or in or proceeding in court or chambers, in which he is not chambers. . *■ , -, ° i-i -i. 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 unless the court or a judge ex- pressly directs such costs to be allowed. K 8 t°o f extend" ( 16 ;) The costs of applications to extend the time 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 borqe. costs. 203 The taxing authority shall not allow the costs of more ° , so before entering judgment or issuing execution thereon, on giving forty-eight hours' notice in writing to the opposite party, specifying the items or parts of items he o^faiTe 8 "oT- cla ™s to have added to the bill. If the bill on re-taxa- one-sixth, tion is increased one-sixth the party applying for the re- taxation shall be entitled to such costs of re-taxation as the 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; O. (1H97), r. 1140.) crease how borne SERVICE OP ORDERS, ETC. S05, ORDER LXIV. Or.lerL.VIV. rr. 1—2. NOTICES, ETC. 1. All notices required by these, rules shall be in (8 19.) Writing, unless expressly authorized by the court or aSg." 1 "'" judge to be given orally. (E. 1003.) 2. Every notice given in the progress of or prelim- (85o.i inary to a cause, shall be received in evidence on affidavit ^SvedYr/ of the service thereof made by a solicitor or a solicitor's evidence - clerk, specifying the time and mode of such service. (P. A. 187.) ORDER LXV. Order LXT. rr. 1-4. SERVICE OP ORDERS, ETC. 1. Except in the case of an order for attachment of (85i.) . -jiii 1 i i • Original order the person, it shall not be necessary to the regular service need not be of an order that the original order be shown, if an foTtLc'hiSt. authenticated copy of it is exhibited. (E. 1012.) 2. All writs, notices, pleadings, orders, summonses, (852.) , ,, , ' ' * t & t .,, ' Service of docu- and other documents, proceedings, and written com-mente where munications, in respect to which personal service is not noTnece»snry! ee requisite, shall "be sufficiently served if left within the prescribed hours, at the address for service of the person to be served, as defined by Orders IV arid XII, with^any person resident at or belonging to such place. (E. 1013.) 3. Notices sent from any office of the court may be . (853.) sent by post; and the time at which the 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 a (854.) party, or where a party or his solicitor, as the case may pearance or no be, has omitted to give an address, as required by Orders addre8B ' IV and XII, or there is no person resident at or belong- ing 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.) 206 NON-APPLICATtON OF RULES. onicr lxv. 5. Where personal service of any writ, notice, -X, pleading, summons, order, or other document, proceed- constSiie ing, 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.) Paity £g,to, 6. Where a party after having sued or appeared in in person, after- person has given notice in writing' to the opposite party wards employ- r p , t i t • • ing solicitor, or his solicitor, through a solicitor, that such soucitor is authorized to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, 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.) service oUoiici- ? • Where a person who is not a party appears in to. appearing all y proceeding, either before the court or in chambers, tor person not a* 7 . 1 ~ 7 . , party service on the solicitor by whom such person appears, whether such solicitor acts as principal or agent, shall be deemed good service except in matters requiring personal service. (E. 1019.) AffidSot ser- 8. Affidavits of service shall state when, where and vice. What to how, and by whom, such service was effected. (U.S., »"*""■ c, 104, Or. 65, r. 8.) Or,ler LXVI. ORDER LXVI. IT. 1-8. NON-APPLIOATION Of RULES TO CRIMINAL AND DIVORCE PRO- CEEDINGS, ETC.* crimiSif'and 1- Nothing in these rules shall affect the procedure divorceproceed- or practice in criminal proceedings, or proceedings for int any rule of practice ior the time being m force, shall not uo t fatal. 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 irregular, 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 for 3 (sm.i irregularity shall be allowed, unless made within reason- tioinSimdedoo able time, nor if the party applying has taken any fresh m( ^ lll, "' lt y- step after knowledge of the irregularity. (E. 1038.) 3. Where an application is made to set aside pro- ( -e5.) ceedings for irregularity, the several objections intended "t^uMu Lum- to be insisted upon shall be stated in the summons or monB " v uo,ioe - notice of motion. (E. 1039.) 4. Where an application is made to set aside any (sue.) process or proceeding for irregularity, with costs, and the nSui or 4'" application is dismissed generally, without any special plication - direction as to costs, it is to be understood as dismissed with costs. (E. 1040.) ORDER LXIX. Order LXK. r. 1. \ INTERPRETATION OF ' TEEMS. 1. The provisions of the Interpretation section of (867.), " The Judicature Act " shall apply to these rules. te™™ 8 "' In these rules, unless the context otherwise requires, the several 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 ; "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; 208 GENERAL RULES. Order IAIV r. t. Singular and plural. ' ' 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," include 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. R. S. C, Aug. 1894, r. 11.) 2. In these rules, unless the context otherwise requires, the singular number includes the plural, and the plural number includes the singular. (E. 1042.) Order LXX. rr. 1—3. (869.) Wo revival by repeal. (870.) Former prac- tice, when preserved. (871.) Vacancy in office of Chief Justice. ORDER LXX. HENEKAL BOXES. 1. No rule, order, or enactment, repealed by any subsequent rule, order, or enactment, shall be revived by any of these rules, unless expressly so declared. (E. 1043.) 2. Where no other provision is made by the Act or these rules the existing procedure and practice remain in force. (E. 1044.) 3. During the pei'iod of any vacancy in the office of Chief Justice, or, in his absence, these rules shall operate as if the words "or senior judge of the Supreme Court" were inserted after the words ' ' Chief Justice " when- ever used. ^(E. 1045.) FORMS— WRITS OF SUMMONS, ETcI . ' .209 APPENDICES ****-*> Fart I. So. 1. FORMS. .AJPiPiEiisriDix: j±. PART I. FORMS OF WRITS OF SUMMONS, &c. Wo. 1. General Form of/Writ of Snntoss. (O. 2, r. 3.) 19... {Here put the letter and number.') In the Supreme Court. Between A. B., Plaintiff, and •C. D. and E. F., Defendants. Victoria, 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 subscribed 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 entering an appearance {or appearances) either personally or by solicitor at the Prothonotary's Office, at , in the County of Indorsements to be made on- the writ before issue thereof. The plaintiff's claim is for, &,c. 27 210 FORMS — WRITS OF SUMMONS, BTC. This writ was issued by the said plaintiff, who resides at , or, this writ was issued by E. F., of , solicitor for the said plaintiff, or, this writ was issued by G. H., of ;, agent for of , solicitor for the said plaintiff. Indorsement to be made 'on the writ after service thereof. Appx. A. Part I. No. ','. This writ was served by me at , on the defendant. , the day of 19 . . Indorsed the day of , 19. . (Signed,), (Address,) sfo. a. Specially Indorsed Writ, Order III, Rule 5. (O. 2, r. 3.) 19... (Here put the letter and number.} In the Supreme Court. Between , Plaintiff. and Defendant. Victoria, 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, within 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 office, at , in the County of Statement oj 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. This writ was issued by the said plaintiff, who resides at , {or) this writ was issued by E. F., of solicitor for the sai4 FORMS — WRITS OF SUMMONS, ETC. 211 plaintiff, , (or) this writ was issued by G. H., of , agent for , of , solicitor for the said plaintiff. Appx. a. J r FlH-t I. This writ was served by me at , on the defendant M " 8, 3 » *• on the day of , 19 . . Indorsed the day of , 19 . . (Signed,) • (Address,) Bfo. S. Writ for Service out of the Jurisdiction, or where Notice in Lieu of Service is to be given out of the Jurisdiction. (O. 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. Victoria, by the Grace of God, &c. ToC. D., of We command you, C. D., That within {here insert the number of days directed by the Court or Judge ordering the service or notice) after the service of this writ (or notice of the writ, as the case may be) 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 be 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 Brit- ish subject, and is not in British dominions, notice of the writ, and not the writ itself, is to be served upon him. No. 4. Specially Indorsed Writ for Service out of the Jurisdic- tion. (O. 2, r. 5.) (Heading as in Form 1. Victoria, by the Grace of God, &c. To , of , in the of We command you, that within* days after servicet of this writ on you, inclusive of the day of such service, you do * Insert no. of days directed by Court or Judge. t If notice of the writ is to be served, insert here, "of notice"' 212 FORMS'— WRITS OF SUMMONS, ETC. cause an appearance to be entered for you in an action at the suit Appx. A. Q f Part I. Wo. »• 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 afterwards. Appearance is to be entered at the Office of the Prothonotary at ....... . , in the county of Statement of 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 servicet hereof, further proceedings 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 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. mo. 5. Notice of Writ, in Lieu of Service, 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 , has commenced an action against you, G. H., in the Supreme Court of Nova Scotia, by writ 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. *Insert no. of days limited for appearance. tlf notice to be served, insert here "of notice.' FORMS — ENTRY OF APPEARANCE. 213 You may appear to the said writ by entering an appearance personally or by your solicitor at the office of the Prothonotary at A "J ,X - *■• , in the County of '"•"*' Lni .\os. (Signed) A. B., of , &c. or X. Y., of , &c. Solicitor for A. B. In the Supreme Court. No. 6. Form of Memorandum for Renewed Writ. (O. 8, r. i.) (Heading as in Form /.) Seal renewed writ of summons in this action indorsed as follows : — (copy original writ and indorsements.) PART II. FORMS OF ENTRY OF APPEARANCE. No. 1. Memorandum of Appearance 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), , ° f * Agent for , of No. a. Notice of Entry of Appearance. (O. 12, r. 3.) (Heading as in Form /.) 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. 214 FORMS — ENTRY OF APPEARANCE. {If statement of claim is required, add) The said defendant Appx. A. require delivery of a statement of claim. Part II. ^ J So*. 8, 4. Dated the day of , 19. . (Signed,) , of , Agent for Solicitor for the defendant To No. 3. Notice Limiting Defence. (O. 12, r. 17.) {Heading as in Form /.) Take notice, that the {above-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-named defendant. To Messrs , The Plaintiff's Solicitors. No. 4. Entry of Appearance 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 mentioned in the writ of summons, namely, to the close called "The Big Field." The address of is Dated the day of , 19 . . (Signed,) , of Agent for , of FORMS— ENTRY OF APPEARANCE. 215 No. 5. Appx. A. Entry of Appearance, Order XVI, Rule 50. P»rt 11. Non. 5, 6, 7. {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 » No. 7. Entry of Appearance to Counter-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 216 FORMS— GENERAL INDORSEMENTS. No. 8. Appx. A. l'nrf III. No. I. Affidavit for Entry of Appearance as Guardian. (O. 16, r. 19.) {Heading as in Form /.) 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 ' v 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 Affidaznt shall be annexed the document signed by such guardian in testimony of his consent to act. ] PART III. GENERAL INDORSEMENTS ON WRITS OF SUMMONS. (O. 3, r. 3.) Section I. In Matters of an Equitable Nature. /. Creditor to ad-minister 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 administrator of the said X. Y., (and the defendants E. F., and G. H., as his co- heirs' at law). 2. Legatee to administer estate. The plaintiff's claim is as a legatee under the will dated the day of 19-, of X. Y., deceased, to have the (real and) personal property of the said X. Y., administered. The defend- ant, 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 partner- ship 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. 4. 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 {if any.) Appx. A. Flirt III. FORMS — MONEY CLAIMS. 217 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 No. 2. {parties), and to redeem the property comprised therein. 6. Raising portions. The plaintiff's claim is that the 'sum of , which by an in- denture of settlement dated , wa,s provided for the portions 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 plaintiff to the defendant of certain {freehold) hereditaments at Section II. Money 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 goods sold and delivered, or to goods bargained and sold. ) The plaintiff's claim is $ for money lent (and interest. ) The plaintiff's claim is $ , whereof $ .' . is for the price of goods sold, and $ for 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 {01 as the case may be.) The plaintiff's claim is $ for interest upon money lent.' The plaintiff's claim is $ for a general average contribution. 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 statute. The plaintiff's claim is $ for money deposited with the de- fendant as a banker. The plaintiff's claim is J! for fees for work done {and $ money expended) as a solicitor. The plaintiff's claim is $ for commissibn earned as {state character, as auctioneer, broker, &c.) 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 rail- way. The plaintiff's claim is $ for the use and occupation of a house. The plaintiff's claim is $ for. the hire of {furniture.) 28 218 FORMS — MONEY CLAIMS. * The plaintiff's claim is $ for work done as a surveyor. Appx. A. ^g pi a i n tiff' s claim is $ for board and lodging. Part HI. fjjp piaiutiff's claim is $ for the board, lodging and tuition "»• '■*• of X. Y. The plaintiff's clajm is $ for money received by the de- fendant as solicitor (or factor, or collector, or, &c.,) of the plaintiff. The plaintiff's claim is $ '.forfees received by the defend- ant under colour of the office «of s The plaintiff's claim is J5 for a return of money overcharged for the carriage of goods by railway. The plaintiff's claim is $ for a return of fees overcharged by the defendant as The plaintiff's claim is $ for a return of money deposited with the defendant as stakeholder. The plaintiff's claim is $ for money entrusted to the de- fendant as stakeholder, and payable to plaintiff. The plaintiff's claim is $ for a return- of money entrusted to the defendant as agent of the plaintiff. The plaintiff's claim is $ for a return of money obtained 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 $ 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.) 1 The plaintiff's claim is $ for a return of money paid as a deposit upon shares to be allotted. The plaintiff's claim is $ for nioney paid for the defendant as his surety. The plaintiff' sxlaini is $ for money paid for rent due by the defendant. The plaintiff's claim is J upon a bill of exchange accepted (or indorsed) for the defendant's accommodation. The plaintiff ',s claim is $ for a contribution, in respect 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 J? upon a policy of insurance upon the life of X. Y., deceased. The plaintiff's claim is $ upon a bond to secure a payment of $1000 and interest. The plaintiff's claim is $ upon a judgment of the Court in the State of Massachusetts. The plaintiff's claim is $ upon a cheque drawn by the de- fendant. The plaintiff's claim is $ upon a bill of exchange accepted (or drawn, or indorsed) by the defendant. The plaintiff's claim is f upon a promissory note made 01 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 indorser) 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 plaintiff, 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.) FORMS— INDORSEMENT FOR COSTS. 219 The plaintiff's claim is $ for calls upon shares. The plaintiff's claim is $ for crops, tillage, manure, (or as A »'l ,x - A - the case may be), left by. the plaintiff as outgoing tenant of a farm. , " al '* "'• B & Nos. 3, 4. Section III. Indorsement for Costs. (O. 3, 1. 6.) Add to the above forins — 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 be served ■ out 0/ the jurisdiction, or notice in lieu of service allowed, inset t the time for appearance limited by the rules) from the service thereof, further proceedings will be stayed. Section IV. Damages and other Claims. 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 fbr damages for wrongful dismissal from the defendant's employment as traveller (and Jjt for arrears of wages.) The plaintiff's claim is for damages for the defendant's wrong- fully 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 plaintiff. ) 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 im- prisonment of the plaintiff, CD. The plaintiff's claim is for damages for injur)' 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 keep- ing 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 neglecting (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. Appx. A. Purt III. No. 4. 220 FORMS— DAMAGES AND OTHER CLAIMS. 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. The plaintiff's claim is for damages for slander. The plaintiff's claim is in replevin for goods wrongfully distrained. • The plaintiff's claim is for damages for improperly distraining. [ This form shall be sufficient, whether the distress complained of is wrongful or excessive, or irregular, and whether the claim is fot damages only, or for double value.] 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 establsh his title to (here describe property), and to recover the rents thereof. '( The two previous forms may be combined.') The plaintiff's claim is for dower. The plaintiff claim is for damages for infringement of the plaintiff's right ofiishing, The plaintiff's claim is for damages for fraudulent mis- representation of the sale of a horse (or 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 for return of premiums.) [ This form shall be sufficient whether the loss claimed is total ot partial. ] The plaintiff's claim is for a loss under a policy of fire insurance upon house and furniture. The plaintiff's claim is for damages for breach of a contract to insure a house. The plaintiff's claim is for damages for breach of a contract to keep, a house in repair. . , The plaintiff's claim is for damages for breaches of covenants contained in a lease of a farm. The plaintiff's claim is for damages for injury to the plaintiff from the defendant's negligence as a medical man. The plaintiff's claim is for damages for injury by the defendant's The plaintiff's claim is fpr damages for injury to the plaintiff by the negligent driving of the defendant or his servants. The plaintiff's claim is for damages for injury to the plaintiff while a passenger on the defendant's railway, by the negligence of the defendant's servants. The plaintiff's claim is for damages for injury to the plaintiff" at the defendant's railway station, from the defective condition 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 for breach of promise of marriage. The plaintiff's claim is for damages for the seduction of the plaintiff's daughter. Appx. A. Part III. No. 4. DAMAGES AND OTHBR CLAIMS. 221 I 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.) The plaintiff's claim is for damages for breach of warranty of a horse. The plaintiff's claim is for damages for breach of contract to sell (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 crossing 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 obstructing a way {public highway 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 discharging water upon plaintiff's land {or into the plaintiff's mine.) The plaintiff's claim is for damages for wrongfully obstructing 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 whaievei the nature of the right to pasture is.) The plaintiff's claim is for damages for obstructing the access 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 {ot imitating) the plaintiff's trade mark. The plaintiff's claim is for damages for breach of a contract to build a snip (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, 1. 2.) : — And for a mandamus commanding the defendant to ■ Add to indorsement : — And for an injunction to restrain the defendant from Add to indorsement whet e claim is to land, or to establish title, or both : — 222 tfORMS— NOTICES, ETC. « And for mesne profits. And for an account of rents or arrears of And for breach of covenant for [repairs.] And for mesne profits. ' Pl>x. i. And for an account of rents or arrears of rent. \<>. 1. Section V. Indorsements of Character of Parties. (O. 3, r. 4.) The 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 executor [or, &c.,] of C. D., deceased, for, &c. The plaintiff's claim is against the 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 settle- ment 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 lauds' under the will of A. B. The plaintiff's claim is as well for the Queen as for himself, for APPE3STBIX NOTICES, &c. Bio. 1. Third Party Notice. (O. 16, r. 49.) 19. . , {He} e put the letter and number. ) In the Supreme Court. Between A. B., Plaintiff, and CD., 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 conditioned for payment of #2,000 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 recover 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 ., da y of A - D drawn by you upon, and accepted bv, the defendant, and payable three months after date. FORMS — NOTICES, ETC. 223 The defendant claims to be indemnified by you against 'liability under the said bill, on the ground that it was accepted for your *M» X - •*■ accommodation. sios * '-> 3 Or (to recover damages for a breach of a contract for the sale and delivery to the plaintiff of 1,000 tons of coal. The defendant claims to be indemnified by you against liability in respect to the 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 liability to the defendant C. D., you must cause an appearance to he 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 pursant 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. (O. 21, r. 12.) {Heading as in Form /.) 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. (O. 22, r. 4.) {Heading as in Form /.), 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. V., the plaintiff's solicitor. Z, Defendant's solicitor. 224 FORMS — NOTICES, ETC. No. 4. Appx. It. Nott. 4, 5, «, 7. Acceptance of Sum Paid into Court. (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. (O. 24, r. 3.) {Heading as in Form 1.) The plaintiff confesses the defence stated in the paragraph of the defendant's defence {or of the defendant's further defence. ) No. 6. Interrogatories. (O. 30, 1.4.) 19 . . , ( Here put the letter and number. ) In the Supreme CourJ. Between A. B., plaintiff, and C. D., E. F., and G. H., defendants. Interrogatories on behalf of the above-named {plaintiff 01 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 numbered ) {The defendant G. H. is required to answer the intet rogatories numbered ) No. 7. Answer to Interrogatories. (O. 30, 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 : — FORMS — NOTICES, ETC. 225 No. ». Appx. It. Affidavit as to Documents. > (0. 30, r. 13.) Wos. 8, 9. {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 relating 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 {Ket e state upon what grounds the objection \is made, and verify the facts as far as may be. ) 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 docu- ments, 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 document, or any ojther 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 said first and second schedules hereto. t No. 9. Notice to Produce Documents. (O. 30, 1. 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 tequired. X. y., Solicitor to the To Z., Solicitor for 29 226 FORMS— NOTICES, ETC. No. 10. 4 |>|>v. IS. Nos. io, ii. Notice to Inspect Documents. (O. 30, r. 17.) [ Heading as in Form /.] Take notice that you can inspect the documents mentioned in your notice on the day of , A. D {except the deed numbered in that notice) at {insert place of inspection) on Tuesday next, the instj., 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 day of , A. D 011 the ground {state the objection) : — No. 11. Notice to Admit Documemts. (O. 31, r. 3.) {Heading as in Form /.) Take notice that the plaintiff {or defendant) in this cause pro- . poses to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant {01 plaintiff) his solicitor or agent, at , on , between 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 iespectively written, signed, or executed as they purport respectively to have been ; that such as are specified 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 admissibility of all such documents as evidence in this cause. Dated, &c. (Signed.) E. P., Solicitor (or agent) foi defendant (or plaintiff.) To G. H., Solicitor (or agent) for plaintiff (or defendant.) [Here describe the documents, the manner of doing which may 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 lease from A. B. to C D Indenture of release between A. B. and C D. first part, &c Letter, defendant to plaintiff Policy of insurance on goods by ship " Isabella " from Oporto to London Memorandum of agreement between C D., captain of said ship, and E- F Bill of exchange f or $100 at three months, drawn by A. B. on and accepted by C. D., indorsed by E. F. and G. H January I, 1848. February 1, 1848. February 2, 1848. March 1, 1848. December 3, 1847. January 1, 1848. May 1, 1849. FORMS — NOTICES, ETC. COPIES. Description of Documents. Register of Baptism of A. B. in the parish of X Letter — plaintiff to defendant Notice to produce papers Record of a Judgment of the Supreme Court in an ac- tion, F. S. v. F, N Grant under the Great Seal of Nova Scotia Original or Duplicate served sent or delivered, when, how and by whom. January i, 184J February 1, 18, March 1, 1848. March 2, 1848. January 1, 1780. 227 A-ppx. IE. Not). 12, 13. Sent by general post, February 2, 1848. Served March 2, 1848, on defend- ant's solicitor by F,. F., of No. ia. Notice to Admit Facts. (0. 31, r. 5.) [Heading as in Form /.] ' 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 specified ; 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 sucrr- facts as evidence in this cause. Dated, &c. G. D., solicitor (or agent) for the plaintiff (or defendant.) To E. F., 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. IS. Admission of Facts Pursuant to Notice. (O. 31, 1. 5) [Heading as in Form i.~\ The defendant {or plaintiff) in this cause, for the purposes of this cause only, hereby admits the several facts respectively here- under-specified, subject to the qualifications or limitations, if any, hereunder specified, saving all just exceptions to the admissibility of such facts, or any of them, as evidence in this cause. Provided that this admission is made for the purposes of this action only, and is not an admission to be used against the defend- 228 Appx. It. Nos. 14—16. FORMS — NOTICES,' ETC, I ant, {or plaintiff,) on any other occasion, or by anyone other than the plaintiff, or defendant {or party requiring the admission.) Delivered, &c. E. F., solicitor (or agent), for the defendant, i (or plaintiff.) To G. H., solicitor (or agent) for the plaintiff (or defendant. Qualifications or Limitations, if any, Facts admitted. subject to which they are admitted. i. That John Smith died on the ist of 1. January, 1870. 2. That he died intestate. 2. 3. That James Smith was his lawful 3- But not that he his only lawful son. son. 4- But not that he died on the ist of \ 4. That, Julius Smith died. April, 1876. , 5. That Julius v Smith never was S- married. No. 14. Notice to Produce (Generai, Form.) (O. 31, r. 8) {Heading as in Foim 7.] 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, memorandum, or minute relating to the matters in question in this , and par- ticularly Dated the day of 19 ... . To the above-named ] (Signed) , of... h solicitor or agent .} solicitor for the above-named. No. 15. Issue. (O. 33, 1. 8.) [Heading as in Form /.] Whereas A. B. affirms, and C. Di denies {here state the question or questions of fact to be 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 01 without a jury), therefore let the same be tried accordingly, . No. 16. Notice of triai,. (O. 34, 1. 12.) [Heading as in Form /.], Take notice of trial of this {or of the issues in this ordered to be tried {or as the case may be) in .{or as the case may be), for the day of next. X. Y. plaintiff's solicitor {or as the case may be.) Dated ' To Z., defendant's solicitor {or as the case may be.). FORMS — NOTICES, ETC. 229 No. 16. A. Api.v. It. Notice op Trial Without Pleadings. (O. 18a.) Nos. i« a-i». Take notice of trial of this cause without pleadings in Halifax [or as the case may be] for the day of next. X. Y., plaintiff's solicitor [or as the case may be]. Dated To Z., defendant's solicitor [or as the case may be.] No. 18. Notice of Motion. (O. 52.) (Heading as in Form 1.) Take notice, that the Court will be moved on day the day of 19.. at o'clock in the forenoon, or so soon thereafter as counsel can be heard, by that Dated the day of , 19 . . ' (Signed) To. of .., agent for solicitor for the . No. 19. Notice of Discontinuance. (O. 26, 1. j.) (Heading as in form /.) Take notice, that the plaintiff hereby* t Dated the .... day of .... , 19 . . (Signed) , of , agent for , 1 solicitor for the plaintiff. To * " Wholly discontinues this action," or " withdraws so much of his claim in this action as felates to," &c. , t If not against all the defendants add " as against the defendant," &c. 230 FORMS— NOTICES, ETC. Wo. SO. A|i|>\. It. Nos. ao— aa. notice of Cross-examination of Deponents at Trial. (O. 36, r. 28.) {Heading as in Form /.) Take notice that the intend . . at the trial of this action to cross-examine the several deponents named and described in the schedule hereto on their affidavits 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 , N Solicitor for the To 1 The Schedule above referred to. Name of Deponent. Address and Description. Date "when Affidavit filed. No. 21. Notice of Renewal of Writ of Execution. (0.40,1.20.) {Heading as in Form /.) 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 jrear from the day of 19- • Dated the .... day of , 19 . . (Signed) To the Sheriff of . of , Agent for , Solcitor for the . No. 22. Affidavit of Service of Summons. (O. 54, r. 5, O. 13, 1.2.) {Heading as in Form 1.) I, , of , solicitor for the above-named , make oath and say as follows : — I did 011 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, FORMS — NOTICES, ETC. 231 by leaving it at the of the said situated with there Appx. B. Sworn at 1 Mo *- ** ^ , this day of , 19- Before me, This affidavit is filed on behalf of the . No. 2S. Affidavit in support of Garnishee Order. (O. 43, r. 1.) 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 : — 1 By a judgment of the Court given in this action, and dated the day of , 19 .... , it was adjudged that I [01 the above- named judgment creditor] should recover against the 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 judgment 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 Interpleader. (O. 56, 1. 2.) {Heading as in Form 1.) 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 claimed t 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. 232 FORMS — STATEMENTS OF CLAIM. No. 35. App.v. C. * ». I. Notice of Claim to Goods Taken in Execution. (O. 56, r. 16.) Take notice that A. B has claimed the goods {or certain gopds) ' [whet e 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 sum- mons. 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 admitting the claim. Dated, &c. (Signed) To the plaintiff. Sheriff of No. 36. Notice 05 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 sheriff of , 1 or and his officers. I Solicitor. j^ftp^hsttdxic d. Forms of Statements of Claim to be used Pursuant to Order xix, Rule 5. GENERAL INDORSEMENTS ON WRITS OF SUMMONS. Section I. 19 . . Here put the letter and number. 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 be filled up in manner exemplified in the Jollowing forms,) , FORMS — STATEMENTS OF CLAIM. 233 The plaintiff claims (as in following forms. ) Place of trial, v »» x - *'• (Signed) , s - "• Delivered the of 19.. " os - *» « Section II. Actions of an ' Equitable Nature. Bf». 1. ( Administration . ) 1 The plaintiff is a creditor of X. ¥., deceased, of whom the defendant, C. D., is executor (or administrator), arid the defendant E. F., is heir-at-law (or devisee.) Particulars of the claim : Principal due on the bond of the testator (or intestate) dated the of 19 . . . . $2,000 00 Interest from the day of at 6 per cent. 250 00 12,250 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. 3. (Wilful 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 interest had been paid or acknowledgment given for five years before the 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 : (1.) Account of testator's personal estate on footing of wilful default. (2.) Administration of the testator's personal estate. (Signed) Delivered . 3° 234 FORMS — STATEMENTS OF CLAIM. No. 3. Appx. «'. s- I'. {Dissolution of Partnership.) ' Nos. 3-5. 1. The plaintiff, on December 20th, 1875, entered into partner-, ship articles with the defendant for ten years. 2. The defendant has brokeD the partnership articles as follows : (*) (*) " (0 The plaintiff claims : (1.) Dissolution. > • ' (2.) Accounts and inquiries. (3.), A receiver and manager. (Signed) Delivered 1 No. 4. . (For Accounts..) 1. The plaintiffs are executors of A., deceased: 2. From the year 1878 till his death A. employed the defendant as his confidential agent in the management of a large building estate at X. 3. The defendant as such agent received lairge 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 defendant asagent 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.) b. (Sum secured.) c. (Rate of Interest.) d. (Property subject to mortgage .) c. (Amount now due.) (If the plaintiff' s title is a derivative title, state shortly the assign ments under which he claims.) (If the plaintiff is mortgagee in possession add :) FORMS — STATEMENTS OF CLAIM. 235 The plaintiff took possession of the mortgaged property on the of ...... , and is ready to account as mortgagee in possession A I>l>x- • • from that time. , s. II. The plaintiff claims payment, or, in default, sale, or fore- floH ' '*' ,- closure (and possession.) (Signed,), Delivered . I No 6. i {Redemption.} 1. The plaintiff i^ mortgagor of lands, of which the defendant is mortgagee. 2. The following are the particulars of the mortgage : a. {Date.). b. {Sum secured.) c. {Rate of interest . ) d. {Property subject to mortgage.) {If the plaintiff' s title is derivative, state shortly the deeds' 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 BTo. 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 £he 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, J Delivered £36 FORMS^STATEMBNTB OF Cl^AlM. No. H. -t|i|>\. V. s. II. (Sale and Distribution of proceeds of property subject to any Nos. 8, ». lien or charge.) i. Ou 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 cen£. due from A. and the defendant B. to the plaintiff. ' 2. A. died March 12, 1881. 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 CD. 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 : (a.) Sale of $3000 bank stock and investment of the proceeds in the business of the defendant A. B. (b.) Sale of leasehold properly worth $5000 to G. H. for fiooo (without taking any proper steps to ascertain its value or to obtain such value.) The plaintiff claims : (1.) The replacement of I3000 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 tfQRMS— STATEMENTS OF Cl^AlM, gg^ No. 10. Appx. «!. {Execution of Trust.) s. II. 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 ei, the following property was assured : a. A sum of'$5ooo Dominion stock. b. $4000 invested on mortgage.of land at X. c. One fifth of the residuary estate of D., deceased, subject to a prior life-interest. 2. On August 15, 1862, C. B. died. 3. On February 18, 1875, A. B. died. ' 4. On September 10, 1879, D.'died. 5. A. B. and C. B. had five children only, of whom the plaintiff is one. 6. The defendants are the present trustees of the settlement. The plaintiff claims : (1.) Execution of the trusts of the settlement. (2.) All necessary accounts and inquiries. (3.) A "receiver. (Signed,) Delivered Niw. 10, 11. No. 11. {For Rectification, of Instruments. ) I. In 1865 a marriage was arrange,d\ between A. B. and the plaintiff. . , 2.' By an agreement contained in two letters, dated February 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 $10,000 on trust, for A. B. and the plaintiff successively for life, with remainder on the usual trusts for the children of the marriage. . 3. By letter, dated March 7, 1865, from D. to Messrs. E. & 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, r882, 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 238 FORMS — STATEMENTS OP CLAIM. No. 13. Appx. (J. s. II. {Specific Performance.) Nog. 12, 13. i. By an agreement {or letters) dated {or made verbally at interviews on of 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 i {If the agreement was verbal, 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 tjtaiing in each case what the defendant is required specifically to do.) (Signed,) Delivered No. IS. {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 for 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. 10. 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, {01 a. sale of Whiteacre and a distribution of the proceeds among the parties interested.) (Signed, ) Delivered FORMS — STATEMENTS OF CLAIM. 239 No. 14. v A|>1>\. C. ( Wardship of infants and cdre of infants' estates. »• 'Ul. i. By will, dated August 10, 1882, A deyised 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 defendant, the sole executor. 4. The plaintiff is an infant 12 years old. The plaintiff claims : (1.) That the plaintiff may be'come a ward of Court. (2.) Administration of the trusts of the will of A. so far as necessary. (Signed,) Delivered \(.s 1, 2. Section III- {Special Indorsements.) Actions Included in Order III, Rule 5, Classes A., B.. C, D., E., and F. Wo. 1. {Goods 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 5° #207 50 1882— 1st February— Paid 45 °° Balance due - $162 50 Place of trial, Halifax. (Signed)- Delivered JSo. 2. {Money had and received.) The plaintiff's claim is for money received by the defendant for the use of the plaintiff. Particulars : — J882 — 1st January, — 24() FORMS — STATEMENTS OF CLAIM. To amount of rents of No. 5 Smith St., collected by ' Appx. c. t jj e defendant $200 00 ». HI. f deposit on intended sale of Eva Villa '■ 100 00 Nob. 3—5. r . Amount due $300 00 Place of trial, Halifax. (Signed) Delivered / .: is©. ». (Payee against maker of a promissory note.) The plaintiff's claim, is against the defendant as, maker of. a promissory note for $250, dated 1st January, 1882, payable four months after date. Particulars : — Principal $250 00 Interest 10 00 Amount due .- $260 00 Place of trial, Port Hood, Inverness Co. (Signed,) Delivered 1 No. 4. (Indorsee against acceptor of bill 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 plaintiff. Particulars :■ — Principal due '..:.:.. . j $400 00 Interest \ ...:,.... .. 16 00 Delivered Amount due ."...: . . . $416 00 (Signed) No. 5. ( Indorsee against acceptor and drawer of a bill of exchange severally. ) The plaintiff's claim is against the defendant A. B., as acceptor, and against the defendant, CD., as drawer, of a bill of exchange for $500, dated 1st January, 1882, payable three months after date', and indorsed by the defendant, C. D.', to the plaintiff, of the dis- honor of which on presentation the defendant, CD., had notice. FORMS — STATEMENTS OP CLAIM. 241 Particulars : — \|>|i.v. « . . Principal $500 00 Kos - 6 - 8 - Interest 20 00 **• Ul - Amount due -. . #520 00 Place of trial, Town of Pictou. (Signed,) Delivered No. 6. {Payee against drawer of a bill 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. (Obligee against obligor of a money bond.) The plaintiff's claim is for principal and interest due 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 $15° °° Interest 2 00 Amount due $152 00 Place of trial, Truro. (Signed,) Delivered No. a. (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. 3 1 242 FORMS — STATEMENTS OF CLAIM. Particulars : — *- '»• Principal •' $9P° °° \ok. !), 10. Paid - ■ • ■ 20 oo Principal due #480 00 Interest 3 00 Amount due $483 00 Place of trial, Halifax. (Signed,) Delivered No. 9. ( On a guarantee foi 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. F., under the following guarantee : — 2nd February, 1882. Sir,— In consideration of your supplying goods to E. F., I undertake to see you paid- \ v Yours, &c, CD., 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 principal debtor 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 guarantee by C. D., dated the 2nd of February, 1882. Particulars : — 2nd February — Goods , #> 200 00 3rd March — Goods • 100 00 17th March — Goods 80 00 5th April — Goods ._ , 30 00 Amount due $410 00 , Place of trial, Windsor. ( Signed, ) Delivered forms— statements of ci^atm. 243 No. 11. Appx. i . {Debt upon a trust.} »■ i* 1 - 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 011 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 Nos. 1, 'I. No. 13. {Landlord against tenant.) See Sect. VI., Form No. 1. {Section IV. Actions fob. Damages for Breach of Contract or Duty Aristng out of Contract. No 1. {Buyer against seller of goods for not delivering . j 1. The plaintiff has suffered damage by breach of 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, oh the 15th of March, 1882. 2. The defendant did not deliver any {or .... tons, as the case may be\ 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. a. {Buyer against seller of goods fot 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. 244 forms— statements oi? Claim. 2. 80 sacks delivered were inferior to seconds, and 20 sacks Appx. e. were uot delivered. , ' s. VI. Nob. 3, 4. Particulars of damage : 80 sacks 1 at jSi $ 80 00 20 sacks at $1.25 v 25 00 $105 00 The plaintiff claims $105. Place of trial, Windsor. / (Signed) Delivered . Mo. S. (Shipowner against charterer for detention beyond the demurrage 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 : — r ' I 10 days' detention beyond the Tan 10 I demurrage days at $ 80 per day, #800 00 The plaintiff claims $800. Place of trial, Halifax. (Signed) Delivered Bfo. 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 plaintiff 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 |io | 5 oo 00 The plaintiff claims $500. Place of trial, Towu of'Pictou. (Signed,) Delivered EOfeMS— STATEMENTS OF CT,A1M. 245 No. 5. \|>px. V. (Shipper against* ship owner on a bill of lading, for damage and s. it. short delivery.') Nor. 5— 1. 7 i. The plaintiff has suffered damage by 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 delivered in a damaged condition, and 100 quarters were not delivered. Particulars of damage : — 100 quarters at $8.00 , $800 00 50 quarters at $1.00 ,. .'. 50 00 1 $850 00 The plaintiff claims ,11850.00 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," subscribed 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,) I Delivered No. 7. (Passenger against railway company for negligence.) > The plaintiff has suffered damage from the defendants' neglig- ence in carrying the plaintiff as a passenger by railway from New Glasgow to Antigonish, causing personal injuries to the plaintiff, in a collision near St. James River, on the 15th January, 1883: 246 FORMS — STATEMENTS OS CLAIM, Particulars of expenses, &c. : — Appx. e, r *• ,V- Loss of 15 weeks' salary as clerk, at $io.oo per week $150 00 Nos - 8 » a - 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 defenHant on dismissal of summons $ The plaintiff claims $ Place of trial (Signed) Delivered ........ Bfo. 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. 247 afo. io. ' Appx. « . {Breach of Promise of Marriage.} *• *'. 1 . The plaintiff has suffered damage by breach of promise by - the defendant to marry her on the of , {or within a rea- sonable time, which elapsed before action), {or, on the -death of A. B., which 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.) \os. I, '.'. Particulars of special damage : — ' (As the case may be, if any. ) The plaintiff claims $ , Place of trial Delivered . (Signed,) Section V. Actions Claiming Injunctions, Damages, or Declarations of Right Founded on Wrongs. N*. 1. ( Conversion of Goodsx ) The plaintiff has suffered damage by the defendant wrongfully 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. (Signed,) Delivered 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 aud chattels or their value, and #100 for their detention. Place of trial, Annapolis, in the county of Annapolis. (Signed,) Delivered . 248 FORMS — STATEMENTS OF CLAIM. No. 3. s. v. (Negligent Driving.') Nos. 3—5. The plaintiff has suffered damage from personal 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 00 Charge of Mr. Jones, doachmaker ,. . :. 80 00 $180 00 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 William and Margaiet and Dorothea, the children of CD., (as the case may be*), who, have sriffered damage from defendant's negligence in carrying the said C. D. by omnibus, wheieby the said C. D. was killed in- Kentville oh the 15th January, 1882. Particulars pursuant to statute are delivered herewith. Plaintiff claims $1,000. Place of trial, Halifax. Delivered (Signed,) 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. Doss of use of ship from 1st February, 1883, to 1st of March, 1883, $1,000. Particulars of damage to cargo : — (Insert them.) The plaintiff claims $ Place of trial, Halifax. (Signed,) Delivered . FORMS— STATEMENTS OE CI 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 (b.) The-prospectns stated " whereas in fact (c.) The prospectus stated " whereas in fact 5. The defendant knew of the real facts as to the above particulars. 252 FORMS — STATEMENT'S OV CLAIM. 6. The followingiacts, which were within the knowledge df the Appx. c. defendants, are material, and were not stated in the prospectus : — , *<>s. 14, 15. ( a .) 7. The plaintiff has paid calls to the Company to the extent of, $2,000.00. The plaintiff claims : — (1.) Repayment of #2,000.00 and interest. (2.) Indemnity. (Signed,) Delivered No. 14. {Fraudulent sale of a l lease.) The plaintiff has suffered damage from the defendant inducing 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 So. 15. {Malicious prosecution.) The defendant maliciously and without reasonable and probable cause preferred a charge of larceny against 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. Particulars of special damage : — Messrs. I,. & 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 Appx. V. s. VI. Vos. 1, 8. forms— statements of claim. 253 Section VI. Actions for Recovery of La"nd, &c. , N». 1. {Landlord against tenant whose term, has expired.") i. 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 September, 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 expiring on the 29th of September, 1881.) The plaintiff claims possession and"$2oo for mesne profits. Place of trial, Annapolis. (Signed) Delivered No. 3. ' {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. J « 5. After the death of the said A. B., the defendant wrongfully took possession of the premises. The plaintiff claims : v (1.) Possession of the premises. (2.) Mesne profits from the of Place of trial (Signed,),. Delivered 254 #ORMS — DEFENCE. Appx. n. s. t. .A_;p:p:E:Esr:r)i:x: x>_ \ 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 : 1 ' ) {To be filled up in the manner exemplified in the 2 -' j following forms.) (Signed,) .: Delivered Counter-claim. The defendant says that : i . 1 {To be filled up in the manner exemplified in the 2 . j following forms. ) (Signed,) Delivered The defendant counter-claims. (Signed,) ..\... , Delivered Defence and Counter-claim. Defence. The defendant says : — *■} (To be filled up.) Counter-claim. The defendant repeats paragraph 2 of his defence, and says that :— ' 3- 1 (To be filled up.) The defendant counter-claims. (Signed) Delivered . FORMS— DEFENCE. 255 Section II. Appx. D. To Actions of an Equitable Nature. »• h. No. 1. APPENDIX C, SEC. II. (To actions for administration.) 1. The defendant does not admit the plaintiff's claim. (Of) The defendant, A. B., admits the plaintiff's claim, but not assets. (or) The defendant, C. £>., admits assets, but not the plaintiff's- claim. 2. The claim is barred by the Statute of I/imitations. 3. Payment was made by deceased. 4. The claim is fraudulent in the following particulars : (Set out particulars.) 5. The defendant is entitled to a set off, of which the following are the particulars : , (Set out particulars.) 6. The claim was released by deed dated . '. of ' 7. Notice was given and assets distributed under Cap Particulars of the Notice. of Advertisements in the of January I, 1880. N. Y. Herald, Feb., 1881. London Times, Jan. 25, 1881. ( Giving the titles of the newspapers and the dates of those in which the advertisement appeared.) . 8. The personal estate of the testator is sufficient to pay the plaintiff his debt if established. 9. The defendant is not heir-at-law or devisee of the deceased. (Signed,) Delivered . No 1. ( To actions for foreclosure by mortgagee. ) 1. The defendant did not execute the mortgage. 2. The mortgage was not assigned to the plaintiff (if more than one assignment is alleged, say which is denied.) 3. The debt is barred by the Statute of Limitations. 4. Payments have been made, viz : * 10 July, 1874, $1,000. 18 October, 1875, $500. 5. The plaintiff took possession on the of and has received the rents ever since. 256 FORMS — DEFENCE. 6. The plaintiff released the debt by deed, dated i June, 1882. A|>1>\. 1>. • »• ••• 7. The defendant conveyed all his interest to A. B., by deed Mo- s- dated 25 November; 1889. The defendant claims : — , • (1.) Account. (2.) Re-conveyance. Delivered (Signed,)' no. a. ( To same by alleged second incumbrancer, who claims priority.) (As in preceding Form.) 7. By a deed dated 1st June, 1880, the mortgagor, A. B., mortgaged the property in question to the (defendant to secure $5,000, and interest at 5 per cent, per annum.- The defendant claims : — 1. A declaration of priority and foreclosure (and a receiver.) (Signed,) Delivered . (If the plaintiff claims payment of the mortgage debt, the defendant must, if he disputes/ his liability, show the grounds on which he does so, as in other cases of debt; or he can claim indemnity against the owner of the equity of redemption under Ordet XVI, Rule 49.) (To actions for redemption.) 1. The plaintiff's right to redeem is barred by the Statute of- Limitations. 2. The plaintiff assigned all interest in the property to A. B. 3. The defendant by deed, dated the day of assigned all his interest in the mortgage debt and property com- prised in the mortgage to A. B. 4. The defendant never took possession of the mortgaged property^ or received the rents thereof. ' (If the defendant admits possession for a time only, he should state the time, and deny possession beyond ivhat he admits.) Delivered FORMS — DEFENCE. 257 ( To actions for specific performance. ) r Al»l»x. 1>. i. The defendant did not enter into the agreement. *• H l - 2. A. B. was not the agent of the defendant (if alleged by plaintiff. ) 3. The plaintiff has not performed the following conditions. — (Conditions.) 4. The defendant did not. — (Alleged acts of pari perform- ance. ) 5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the follow- 1 ing matters : — (State why.) 6. The Statute of Frauds has not beea complied with. 7. The agreement is uncertain in the following respects. — (Stale them.) 8. (or) The defendant has been guilty of delay ; „. 9. (or) The defendant has been guilty of fraud (or mis- representation ) ; 10. (or) The agreement is unfair ; 11. (or) The -agreement was entered into by mistake. The following are particulars of (8), (9), (10), (n), (or as the case may be.) 12. The agreement was rescinded under conditions of sale, No. 11, (or, by mutual agreement.) (Signed,) Delivered (In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the -agreement or the alleged breaches, or show whatever other grounds of defence he intends to rely on; e. g., Statute of Limitations, accord and ! satisfaction, release, fraud, &cJ). Section III. To Actions Included in Order, hi.. kuLE 5, Classes A., B., C, D., E. AND F. ( To actions on bills of exchange, promissory notes, or checks. ) 1. The defendant did not accept the bill. / 2. The defendant did not make the note. 3. The defendant did not draw the check. 4. The defendant did not indorse to A. B. 5. The defendant (ot A. B., ) did not indorse to the plaintiff. 6. The bill was not presented for payment. 7. The defendant had not due notice of dishonor. 33 258 FORMS — DEFENCE. Apitx. D. 8. III. 8. The plaintiff was not the holder at the commencement of the action. 9. The bill was accepted (or, the note was made) for the ac- commodation of the defendant without consideration. 10. The bill was accepted, for the accommodation of the drawer ' and indorsed to the plaintiff without consideration. v 11. The bill was accepted and delivered to the drawer without consideration for the purpose of his getting it discounted for the defendant, and the drawer, in fraud of the defendant, and contrary I to the said purpose, indorsed the bill to the plaintiff without con- sideration, (or, with notice of the said fraud, or overdue.) 12. The defendant was induced to accept by the fraud of the drawer, who indorsed to the plaintiff without consideration {or, with notice of "the fraud, or, overdue.) Particulars of the fraud are as follows : The drawer on or about the 15th of May, 1882, falsely and fraudulently stated to 'the defendant that he had shipped 20 tons of pig iron for the defendant on board the " Ajax," which he had hot done. 13. The defendant accepted the bill (or, made the note) for and on account of the price of 50 tons of coal to be delivered by the plaintiff to the defendant by the 1st of litay, 1882, and the plaintiff failed to deliver the goods. 14. The bill (or, note, or, check) was rendered void after issue by a material alteration, viz., by the alteration of the date from the 21st of January to the 2nd January. ' , , (Signed,) Delivered ( To actions for any simple contract debts, other than bills, notes, or checks. .) 1. The defendant did not order the goods. 2. The goods were not delivered to the defendant. 3. The price was not $ (or) 4- ) f 1, 5. }■ Except as to I , same as 1 2. 6- J U .7. The defendant (or, A. B., the defendant's agent), satisfied the claim by payment before action to the plaintiff, (or, CD., the plaintiff's agent), on the of , 19. . 8. The defendant satisfied the claim by payment after action to the plaintiff on the day , 19 • • (Signed,), ' , Delivered ........ Appx. i>. 8. III. FORMS — DEFENCE. 259 {To actions on bonds or contracts under seal, for payment of a liquidated amount in money.') i. The bond {or deed; is not the defendant's bond {or deed'.) 2. The defendant made payment to the plaintiff, on the day according to the condition of the bond. 3. The defendant made payment to the plaintiff, after the day named and before action, of the principal and interest mentioned in the bond. (Signed,) Delivered [In actions on guaranties, whether under seal or not, where the claim against the principal is for a debt or liquidated demand ■ only. Ord. III., Rule 5. Class {D.)] 1. The principal satisfied the claim by payment before action. 2. The defendant was released by the plaintiff giving time to the principal debtor, in pursuance of a binding agreement. (Signed) Delivered {To any action of debt.) 1. As to $200 parcel of the money claimed, the defendant is entitled to set-off for goods sold and delivered by the defendant to the plaintiff. Particulars are as follows : — 1882, Jan. 25. To 20 tons of coal at $4 $ 80 00 " Feb. 1. To 30 tons of coal at $4 120 00 Total $200 00 2. As to the whole {or, as to $ , parcel of the money claimed), the defendant made tender before action {or, on the day on which it fell due) of $ : . , and has paid the same into court. (Signed,) Delivered {General defences.) 1. On 5th April, 1882, a brown horse was delivered by the defendant to, and accepted by, the plaintiff in discharge of the alleged cause of action ; {Or, on 5th April, 1882, an agreement between the plaintiff and the defendant, whereby it was agreed between the plaintiff and the defendant that the defendant should deliver the cargo of the "Mary" at Pugwash, instead of at Halifax, as per charter-party of ist March, 1882, was accepted in discharge of the alleged cause of action.) 2. Theidefendant became bankrupt. 3. The plaintiff became bankrupt before action, and the cause of action vested in the trustees of his property. 2()0 > ' FORMS — DEFENCE. 4. The defendant was covert at the time of making the alleged il>l>\. I». contract, (or, contracting the alleged debt.) 5. The defendant was an infant at the time of making the alleged contract (or, contracting the alleged debt.) 6. The defendant as to the whole action, (or, as to the sum of I , parcel of the money claimed, or, as to the plaintiff's claim on the guarantee of the of 18 .... , {or as the case may be), has paid into Court $ , and says that sum is enough to satisfy the plaintiff's claim (or, the plaintiff's claim herein pleaded to.) 7. The causes of action were released by deed dated the 1st of May, 1882, between the plaintiff of the first part and the defendant of the second part. 8. The contract was rescinded (or the defendant was exonerated by the plaintiff) before breach. Particulars are as follows: — An. arrangement between the plaintiff and the defendant, made verbally on the 15th of April, 1882, (or, by letter from the defendant to the plaintiff and answer of the plaintiff dated the 14th and 15th April, 1882.) 9. The debt was barred by the Statute of Limitations. 10. The 17th section of the Statute of Frauds has not been complied with. (Signed,) Delivered ....;... Section IV. To Actions for Damages for Breach of Contract or Duty. — Appendix C, Sect iv. 1. The defendant did not contract (or, promise, or, agree), as alleged. > 2. The defendant did not receive the. good s_ for the alleged purpose (or, on the alleged terms.) 1 3. The defendant did not receive the plaintiff as a passenger to be carried as alleged. / 4. The defendant did not (insert breaches denied.) 5. The defendant was not ready and willing to accept and pay for the goods (or, to deliver the goods, or, as the case may be.) 6. There was contributory negligence on the part of the plaintiff. 7. The plaintiff' did not pay or tender the money for the carriage. 8. The damage or loss occurred from the inherent vice (or, bad condition when received) of the goods (or, horse, or, as the case may be. ) 9. The Joss occurred by reason of the excepted perils men- tioned in the charter-party, (o;, bill of lading), that is to say, the perils of the seas, (or, fire, or as the case may be.) s. V. FORMS— DEFENCE. ^61 io. The charter-party was 'cancelled pursuant to cancelling clause therein, the ship not having arrived at port of loading on A W X - "• or before 1st May, 1882. xi. The alleged liability of the defendant had ceased ..by- reason of cesser clause in the charter-party, the cargo shipped having been worth more at the port of discharge than the freight or demurrage. 12. The loss was not by the perils insured against. 13. The plaintiff was not interested in the subject-matter of the insurance. 14. The ship was not seaworthy at commencement of risk. (or, voyage). 15. The plaintiff was not ready and willing to marry the defendant. ( Signed )i Delivered Section V. To Actions Claiming Injunctions, Damages, Vm Declarations . of Right, Founded Upon Wrongs. Appendix C.,'Sect. V. ( To all Actions for Wrongs. .) 1. Denial of the several acts (or, matters,) complained of. (Signed,) Delivered (To Actions for Detention or Conversion of Chattels.') 1. The goods (or chattels, or, as the case may be) were not the plaintiff's. 2. The goods were detained for a lien to which the defendant was entitled. Particulars are as follows : — 1882, May 3. To carriage of the goods claimed from London to Birmingham : — 45 tons at 50c $22 50 (Signed,), Delivered ( To actions for personal bodily injuries, or injuries to carriages, goods or animals, by trespass or negligence. ) 1. The defendant did the acts complained of in necessar}' self- defence. 2. There was contributory negligence on the part of the plaintiff (or, the plaintiff's servant.) (Signed,) Delivered 262 FORMS — DEFENCE. (To actions f Of infringement of a patent.) Appx. D. s. v. i. . The defendant did not infringe the patent. 2. The invention was not new. 3. The plaintiff was not the first or true inventor. 4. The invention was not useful. 5. (Denial of any other mattei of fact affecting the validity oj the patent. ) 6. The patent was not assigned to the plaintiff. (Signed,) Delivered (Copyright.} 1. The' plaintiff is not the author (assignee, &c, as the case may be. ) 2. The book was not registered. 3. The defendant did not infringe. • (Signed,) Delivered (Trade-mark.) 1. The trade mark is not the plaintiff's. 2. The alleged trade mark is not a trade mark. 3. The defendant did not infringe. (Signed) Delivered (Light.) 1. The plaintiff's lights are not ancient (or deny his othet 'alleged prescriptive rights.) 2. The plaintiff's lights will not be materially interfered with by the defendant's building's. (Nuisance. ) 3. The defendant denies that he or his servants pollute the water (or, do what is complained of.) (If the defendant claims the right by prescription, or otherwise, to do what is complained of, he must say so, and must state the grounds of his claim, i. e.. whether by prescription, grant, or what.) 4. The plaintiff has been guilty of laches, of which the follow- ing are particulars : 1870. Plaintiff's mill began to work. FORMS — DEFENCE. 263 1871. Plaintiff canie into possession. Appx. ». 1883. First complaint. ss. VI, vn. 5. As to the plaintiff's claim for damages, trie defendant will rely on the above grounds of defence, and says that the acts complained of have not produced any damage»to the plaintiff. {If other grounds are relied on, they must be stated, e. g., the Statute of Limitations as to past damage.) (Signed,) Delivered ( To action for seduction .) 1. The said A. B. was not the servant of the plaintiff. 2. The defendant did not seduce and carnally know the said A. B. (Signed,') Delivered Section VI. To Actions for Recovery of Land. Appendix C, Sect. vi. 1. The defendant is in possession of the premises by himself or his tenant. \ 2. The defendant has no notice to quit. (Signed,) Delivered . Section VII. Counter-claims. The defendant lent $500 to the plaintiff on 1st May, 1882. The defendant counter-claims $500. 1 1. The defendant has suffered damage by the plaintiff's breach of a contract for the sale and delivery by the plaintiff to the defendant of 5,000 tons of steam coal at I4.00 per ton F. O. B. at Pictou, by equal monthly deliveries over the first five months of 1882. 2. The April and May instalments were not delivered. Particulars of the damages : Difference between market price in April and May, and the contract price, $0.50 per ton on 2,000 tons 1 1 000 00 The defendant counter-claims $1,000.00. (Signed,) Delivered 264 Appx. K. s». 1, II. FORMS — REPLY, ETC. FORMS OF REPLY, &c, TO BE USED PURSUANT TO ORDER XIX, RULE 5: Section I. {General Fotm.) 18. . (Here put the letter and number.) In the Supieme Court. s Between , Plaintiff, and , Defendant. Reply. The plaintiff, as to the defence, says that— 1 2 The plaintiff, as to the counter-claim, says that — 1 2 (Signed,) Delivered "■ Reply. {In action on guarantee to which defence raised of time given to principal, and counter-claim, for non-delivery of goods.) The plaintiff, as to the defence, says that — 1. He joins issue. 2. The agreement giving time to the principal expressly reserved remedies against the surety. The plaintiff, as to the counter-claim, says that — 1. The defendant was not ready and willing to accept and pay for the goods. (Signed,) Delivered . .• Section II. Example of a Statement of Claim, Defence, and Reply. 18. . (Here put the letter and number.) In the Supreme Court. Between A. B., Plaintiff, , and / C. D., Defendant. Statement of Claim. The plaintiff's claim is for work done and materials provided by the plaintiff for the defendant at his request. FORMS — REPLY, etc. 265 Particulars : V|>i>\. !•;. 1882. January ist to 31st May. To rebuilding house »»• '•• at Dartmouth, as per contract, dated the 24th December, 1881 '....' $3000 00 To extras, as per account delivered 500 00 $35°o 00 Paid on account 2000 00 Balance due $1500 00 The plaintiff also seeks to recover interest on the above balance from the 31st May, 1882, till payment or judgment. Place of trial (Signed) Delivered the of 18 . . {Heading as in General For?n.) Defence and counter-claim. Defence . The defendant says that : — . 1. Except as to $200, parcel of the money claimed, the architect did not grant his certificate pursuant to the contract. 2. As to $200, parcel of the money claimed, the defendant brings {or has brought) into Court $200, and says that sum is enough to satisfy the plaintiff's claim herein pleaded to. Counter-claim. The defendant says that : — 1. The contract contained a clause whereby it was provided that the plaintiff should complete the works by the 31st of March, 1882, or in default pay to the defendant $4 a day for every subsequent day during which the works should remain unfinished, and they so remained unfinished for 61 days to the 31st of May. The defendant counter-claims $244. (Signed,) Delivered the 22nd of January, 1883. {Heading as in General Form.) Reply. The plaintiff says that— 1. As to the first paragraph of the defence, he joins issue. 2. As to the second paragraph thereof, the plaintiff accepts the $200 in satisfaction. 34 266 FORMS— REPLY, ETC. I / The plaintiff as to the counter-claim says that — -\ Appx, E. r s - ,M " The liquidated damages were waived by ordering extras and Mos. 1, 2. material alterations in the works. 4. The defendant waived the liquidated damages by preventing f -< the plaintiff from haying access to the premises till a week^ after the agreed time. (Signed,) Delivered the of 1884. Section ' III. Defence Including an Objection in Point of Daw. (0. 25, r. 2.) JVo. 1, {Heading.) Defence. ( To action on guarantee for price of goods- ) The defendant says that — 1. The goods were not supplied to E. F. on the guarantee. 2. The defendant will, 'object that the guarantee discloses a., past consideration on the face of it. Delivered (Signed,;) No. a. { {Heading. ) Defence. ( ( To action for verbal slander, actionable only by reason of special The defendant says that — 1. The defendant did not speak or publish the words. 2. The words, did not refer to the plaintiff. 3. The defendant will object that the special damage stated is not sufficient in point of law to sustain the action. _ ,. . •: (Signed,) Delivered , FORMS— JUDGMENT. < £67 Wo. 3. A pi» v. F. {Heading.) Nos. 1, 2. Defence. ( To action on a marine policy, stated to contain clauses that the policy was to be proof of interest, and without benefit of salvage. ) The defendant says that — i. The defendant did not make the policy. 2. The loss was not by the perils insured against. 3. The defendant will object that the policy was avoided by 19 Geo. II. c. 37, s. i. , (Signed) Delivered APPBMT1IX IF 1 . FORMS OF JUDGMENT. (O. 39, r. 1.) BT«. 1. Default of Appearance and Defence in Case of Liquidated Demand. (0. 13, r. 3, O. 27, rr. 2, 3.) 19.. {Here put the letter and number.') In the Supreme Court. Between A. B., plaintiff, and C. D., and E. F., defendants. 30th November, 19 . . The defendants (or the defendant CD.) not having appeared to the writ of summons herein (or not having delivered any defence), it is this day adjudged that the plaintiff recover against the said defendant $ , and costs, to be taxed. No. 3. Interlocutory Judgment in Default of Appearance or De- fence where Demand Unliquidated. (O. 13, r. 5.) (Heading as in Form 1.) The day of , 19 . . No appearance having been entered to the writ of summons (or no defence having been delivered by the defendant herein.) It is this day adjudged that the plaintiff recover against the defendant the value of the goods (or damages or both, as the case may be) to be assessed. 2()8 FORMS— JUDGMENT. No. 3. Appx. I'. Nos. 3—5. Judgment in Default of Appearance and Defence in Action for Recovery oE Land. (O. 27, r.. 7, O. 13, r. 8.) (Heading as in Form /.) 1 30th November, 19.. No appearance haying been entered [or no statement of defence having been delivered] herein, it is this day adjudged that the plaintiff recover possession of the land in the writ of summons [ot statement of claim] herein mentioned and described as BTo. 4. Judgment in Default of Appearance and Defence After Assessment of Damages. (O. 13, r. 5.) (Heading as in Form 7.) 30th November, 19.. The defendants not having appeared to the writ of summons herein (or not having delivered any defence), and a writ of inquiry 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. Wo. 4. A. Final Judgment after Assessment of Damages bv an Official Referee. O. 34, 1. 45.) (Heading as in Form 1.) The plaintiff having on the ...... day of , 19 , obtained interlocutor^ 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 Supreme Court, and Esq., official referee, having found and assessed the said damages at $ as appears by his certificate dated the Therefore it is adjudged that the plaintiff recover against the defendant $■■■■, and costs to be taxed. Bio. 5. Judgment After Appearance and Order Under Order xiv, Rule i. (Heading as in Form /.) The day of The defendant having appeared to the writ of summons herein, and the plaintiff having by the order of , dated the day of 19. • , obtained leave to sign judgment under the Rules of the Supreme Court, Order XIV, Rule 1, for (recite order.) FORMS— JUDGMENT. 269 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. Nos. 6—8. The above costs have been taxed and allowed at $ . I No. 6. Judgment at Trial by Judge- Without a Jury. (Heading as in Form i.) 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 by (Mr , the solicitor for) the plaintiff A. B., and by (Mr , the solicitor for) the defendant CD., the affidavit 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. BTo. 7. Judgment After Trial with a Jury. (Heading as in Form i.) - 15th November, 19. . The action having on the 12th and 13th November, 19.., been tried before the Honorable Mr. Justice , with a special 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 be) : Therefore, it is adjudged that the plaintiff 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 be.) 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 official (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 : 270 FORMS,— JUDGMENT. , Wo. 9. Appx. F. Nos. »— iia. judgment after Trial of Questions of Account by Referee. (Arbitration Act.) {Heading as in Form i.) 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. 10. Judgment Upon Motion for Judgment. (O. 38.) • {Heading as in Fotm 1.) 30th November, 19.. This day before Mr. X. of counsel for the plaintiff {or as the case may be), 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. (D. 34, r. 32.) {Heading as in Foim 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 I and costs to be taxed. The above costs have been taxed and allowed at $. Judgment entered the day of , 19. . So. 11. A. Judgment of Dismissal. (O. 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 dismissing the action FORMS— JUDGMENT. 071 and the said having ordered that judgment be entered ac- cordingly. Appx. v. . ' Nos. 18-14. j: Therefore {t 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. i\o. 13. Judgment in Pursuance of Order. (O. 39, r. 7.) (Heading- as in Form /.)' 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. (O. 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 this 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 jS No. 14. Judgment for Peaintiff's Costs after Confession of Defence. (O. 24, r. 3.1 (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 $ 272 FORMS — JUDGMENT. 5To. 15. V|i|ix. 1 ? . xor. i5~K. Judgment for Costs after Acceptance of Money paid into Court. (O. 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 the 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 $. ><>. 16. Judgment where no Judgment Entered at Trial by Jury. (Heading as in Form 7.) 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 the day of , 19 . . No. 17. Judgment on Motion after Trial of Issue. (O. 38, r. 7.) (Heading as in Form 1.) The day of 19 . \. The issues 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 . 273" FORMS — PRECIPE. > The above costs have been taxed and allowed at $ Appx. ti. Judgment entered the day of , 19 . . Part i. Nos. 1, 2. 1 Wo. 18. Satisfaction Piece. (O. 39, r. ii.) (Heading as in Form i.~) Satisfaction is acknowledged of the judgment entered .between the said plaintiff and the said defendant on the day of . . . , 19. ., for and costs. Dated the day of , 19 . . (Signed,) -A-ZFIEPIEIESriDIOC Gr. PART 1: FORMS OF PRECIPE. (O. 40, r. 12.) No. I. Of Execution. (O. 41.) 19.. (Here put the letter and nnmber.) 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 $6 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 r is to issue.') No. 2. Of Writ of Sequestration. (0. 41.) (Heading as in Form 1.) Seal a writ of sequestration against C. D for not. at the suit of A. B., directed to (name of Commissioners.) Order dated day of . 35 274 ' FOiRMSr— PRECIPE. NO. 3. Appx. G. ra,rt i. Of Writ of Possession. (O. 48,) N»». 8—8. (Heading as in Fotm 1.) possession d > A. B., of... Judgment dated day of . Seal a writ of possession directed to trie Sheriff of to deliver possession to A. B., of ... v No. 4. Of Writ of Delivery. (0. 49.) (Heading as in Foim 7.) Seal a writ of delivery directed to trie Sheriff of . . .,. . .to make a delivery to A. B., of JVo. 5. Of Writ of Attachment.. (O. 42.) (Heading as in Form 1.) Seal in pursuance of order dated ...... day of , an attach- ment directed to the Sheriff of against C. D., for not deliver- ing to A. B. , V No. 7. Of Inquiry. (O. 13, r. 5.) {Heading as in Form 7.) 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 No. a. Of Certiorari. (Heading as in Form 7.) Seal in pursuance of order dated , a. writ of certiorari directed to Dated the ., day of , 19. . (Signed) (Address) Solicitor for the ,...,.., FORMS^— PRECIPE. 275 NO. 9. Appx. «. Op Prohibition. -Parti. 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 Nog. 9—112. IVo. 11. Of Habeas Corpus ad Testificandum. (Heading as in Fotm 1.) Seal in pursuance of order dated a writ of habeas corpus ad testificandum directed to the , to bring before Dated the day of . . . .,. . 19. . (Signed) (Address) ,. Solicitor for the Mo. 12. Of Commission to Examine Witnesses. (O. 35, r. 5.) (Heading as in Form z.) Seal in pursuance of order dated ...... a writ in the nature of 1 mandamus or commission to examine witnesses directed to Dated the day of 19. . (Signed) 1 (Address) Solicitor for the . . .' 37,6 FORMS — PRECIPE. No. 13. Appx, «. Par't'i. Of Commission of Partition. No's.' 13-16. {Heading as in Form /.) 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. (O. 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 required.) Da&d the day of , 19.. (Signed,) ...... ., (Address) Solicitor for the No. 15. Of Renewed Summons. (O. 8.) (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 Subpcena. (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 FORMS — PRECIPE. 277 No. 17. App.Y. «. Entry of Action for Trial. (O. 34, r. 20.) •, Part I. Not. 17—190. {Heading as in Form /.) • 4 Enter this action for trial .'.<■• Dated the -.day of , 19.. (Signed,) (Address) ,. So, 18. Entry of Appeal. (O. 57, r. 9.) {Heading as in Foim 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) No. 19. Entry for 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. (O. 33. 1. 3.) {Heading as in Form 1.) Set down the dated the day of , 19.-, of Mr , the referee in this for hearing as a special case. Dated the day of , 19 . . (Signed) (Address) 278 Appx. H. So. I. forms — pr^c i re,: No. 31. Memorandum of Service of Notice of Judgment. (0. 16, ^.43.) {Heading as in Form 1.) . ' '* Enter memorandum qf 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. Bated the day of > , 19 . . (Signed) 1 • (Address) No. 33 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 be, the infant or person of unsound mind) will be bound by the proceedings in the above cause in 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 infant or person of unsound mind) may, on entering an appearance at the Pro- thonotary'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.) FORMS OF WRITS, ETC. (O. 40, 1. 14, and O. 41, r. 1.) No. 1. WRIT ON DELIVERY. 19 . . , {Here put the letter and number.-) Between A. B., Plaintiff, and C. D., Defendant. Victoria, 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 by the judgment or order for the return of which execution has been otdered to issue), to be returned to A. B., which the said A. FORMS — WRITS, ETC. 279 B. lately in our Supreme Court recovered against C. D. (w;C..D. was ordered to deliver to the said A. B.) in an action in the said A »P X - «• Court.* And we further command you, that if the said chattels Kos - "*•' cannot be found in your bailiwick, you distrain the said C. D. by all his lands and chattels in your bailiwick, 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. t 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. No. a. The like, but 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 untit 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) .t And in what manner, &c. And have you there then this writ. Issued, &c. {If in either of the preceding forms it is wished to include ' damages, costs, and interest, proceed to the t 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 .adjudged {ot 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 JS 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 f 6 per centum per annum from the day of , and that you have that money and interest before us in our Court iinmediately after the execution hereof, to be paid to the said A. B., in pursuance of the said judgment {or order.) And in what manner, &c. And have you there then this writ, Issued, &c 2«0i FORMS— WRITS, ETC. No. 3. 1|»|>V. II. Nos. 3-«. Writ of Attachment. (Person.) (0. 42.) {Heading as in Form 1.) Victoria, by the Grace of God, &c. To the Sheriff of greeting. We command you to attach CD., 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. No. 4. Writ of Sequestration. [O. 41.] {.Heading as in Form, 1.) Victoria, 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 E. F.," as the case may be) by a judgment {or order, as the case may be) of our said Court made in the said action {01 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 mes- suages, lands, tenements, and real estate whatsoever 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 certain, 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 1 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. (O. 34, r. 48.) {Heading as in Form /.) 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 FORMS^WRIT OF EXECUTION. 281 been duly served with a subpoena, and paid or tendered his fees for travelling and attendance as a witness, and refuses or neglects to A i'i» x - H - attend to give evidence. These are, therefore, to command you Mos ' 7 ' ,A ' •forthwith to apprehend the said E. F., and to bring him before ifor 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,) Sfo. 7. Writ of Execution (as Heretofore Known.) (O. 41.) {Heading as in Form i.~) Victoria, by the Grace of God, &c. To the Sheriff of the County of , or to any other of our Sheriffs, greeting. Whereas, . .'. 1 ... 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, ...... .that of the goods, chattels, lands or tenements of the said '■ within your precinct, you cause to be paid and satisfied unto the said at the value thereof in money, the aforesaid sums, being . . . . 1 . . . 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 Court 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 /.] Victoria, by the Grace of God, &c. To the Sheriff, &c. 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. ) ,36 282 FORMS — WRIT OF SUMMONS. No. 8. Appx. II. Mos. 8-iq. Writ of Possession. (O. 48.) {Heading as in Form 1.) Victoria, 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 of all that with the appurtenances in your bailiwick : There- fore we command you that you enter the same, and without 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 th&n this writ. Issued, &c. IS: 9. Writ of Attachment (Absconding Dhibtor. ) (O. 46, r. 2.) {Heading as in Form 1.) Victoria, 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 com- mand you that immediately after the ' execution hereof, you do return this writ into our Supreme 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 for Agent (Absconding Debtor.) (O. 46, r. 14.) {Heading as in Ftrm 1.) Victoria, 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. FORMS — SUBPCENA. 283 -A-iFiPiEiisriDinx: cr. a PP x. j. Nos. 1—3. FORMS OF SUBPOENA, &c. No. 1. SuBPtENA ad Testificandum (General Form.) (O. 35, r. 26.) 19.. {Here put the letter and number.) In the Supreme Court. Between plaintiff, and 1 .defendant. Victoria, by the Grace of God, &c. To {the names of three witnesses may be 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 evi- dence on behalf of the plaintiff {or defendant. ) Issued, &c. No. 2. Habeas Corpus ad Testificandum. (O. 35, r.'26.) {Heading as in Foim t.) Victoria, 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 conduct him to the prison from which he shall have been brought. Issued, &c. No. ». Subpcena Duces Tecum (General Form.) (O. 35, r. 26.) {Heading as in Form /.)' Victoria, by the Grace of God, &c. To {the names of three witnesses may be 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 evi- 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. 284 FORMS — WRIT OF INQUIRY. No. 4. 1|>|'V- •'• JJos. 4-6. SUBPCENA AD TESTIFICANDUM AT SITTINGS. (O. 35, I. 26.) {Heading as in Form /.) Victoria, by trie Grace of God, &c. To {the names of three witnesses may be inserted) greeting : We command you to attend at the sittings of Our Supreme Court for to beholden 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. S. Subpoena Duces Tecum at Sittings. (O. 35, r. 26.) {Heading as in Form 1.) Victoria, by the Grace of God, &c. To {the names 0/ three witnesses may be 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 the 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 documents to be produced.) Issued, &c. Mo. 6. Writ of Inquiry for Assessment of Damages. {Heading as in Form 1. ) Victoria, 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 s 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 shall take thereupon to Our said Court, under your seal, and the seals of those by whose oath you take the inquisition, together' with this writ. Issued, &c. FORMS — PROHIBITION, ETC. 285 No. 7. Api>\. J. Certiorari to County Court. $ os ' ? — •• {Heading as in Form i.) Victoria, 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 forthwith, 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 whatspever 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 /.) Victoria, by the Grace of God, &c. To the , greeting : We, willing for certain causes to be certified of command 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 tljis writ, that We may further cause to be done thereupon what of right We shall see fit to be done. v Issued, &c. No. 9. PROHIBITION! {Heading as in Form, /.) Victoria, 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, and that the said Court has no jurisdiction in the said (cause) or to hear and determine the said (plaint) by reason that {state facts showing want of jurisdiction.) We therefore hereby prohibit you from further proceeding in the said (action) in the said Court. Issued, &c. 286 FORMS— WRIT OE COMMISSION. Mo. 11. Appx. J. No - n - Commission to Examine Witnesses. (O. 35, r. 5.) {Heading as in Form i.) Victoria, 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 confidence 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 before you or any two of you, so that one Commissioner only on each side be present and act at the examination, and We command you as follows : 1. Both the said and the said shall be at liberty to examine on interrogatories and viva voce on the subject matter 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 additional viva voce ques-> tions, whether on examination, cross-examination, or re-exami- nation, shall be reduced into writing, and with the answers thereto shall be returned with the said Commission. 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 leaving it at their usual place of abode or .business, and if the Commissioners or Commis- sioner of that party neglect to attend pursuant 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 witnesses ex parte, and adjourn any meeting or meetings, or continue the same from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, without 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, 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 Commis- sioner 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 accordance with his religion, by or before the Commissioners or Commissioner pre- sent 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 Commissioners FORMS — WRIT OF COMMISSION. '287 or Commissioner present at the examination, and to be previously sworn according to his or their several religions by or before the A PI»x. J. said Commissioners or Commissioner truly to interpret the ques- Mo n - tions 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 /Commissioners or Commissioner who shall have taken the depositions. "- 7. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified 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 execution 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 considered by you respectively to be binding on your respective consciences. In the absence of any other Commissioner, a Commissioner 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. / Witnesses' 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 sp^ak 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) skill and knowledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the Commission within written. So help you (or me) God. 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 Pommission within written as far forth as you are directed and em- ployed by the said Commissioners, 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. 288 forms — summonses and orders, Clerk's Oath. Appx. K. ftos. 1, 1a . yon 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 depositions of all and every such witness and witnesses produced before and ex- amined by the said Commissipners 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. j^FFttJSTJDTJZ. JcZ. [SUMMONSES AND ORDERS.] No. 1. SUMMONS (GENERAL FORM.) (O. 54, r. IO.) 1 19.. {Here put the letter and number.} In the Supreme Court. ' Between , Plaintiff. and t" ^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 No. 1, A. General Form oe Originating 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 ot trust. Between A. B., Plaintiff, and C. D., Defendant. ^ et 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 questions: (State the questions.) FORMS — SUMMONSES AND ORDERS. 289 Dated the Api»x. K. This summons was taken out by solicitor for the above- *<»»• .*>*, Ic. 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 expedient. No. 1, IS. Originating Summons not Inter Partes. (O, 54, r. 4.) 19. . {Here pul 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 wa£ taken out by of , solicitor fdr the above-named The respondent may appear hereto by enteiing appearance either personally or by solicitor at the Prothonotary's office at Halifax. * Note. — If the respondent 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 expedient. No. 1, C. Notice of Appointment to hear Originating Summons. (O. 54>'-4B.) [Title, &c, as in Forms No. ia, 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 n"oon, 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]. 37 290 ?ORMS — SUMMONSES AND ORDERS. No. 2. Appx, R. n«s. 8, 3. Order (General Form.) (O. 54, r. 15.) {Heading as in Form /.) '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 the day of ; 19 . . No. 8. Summons for Directions Pursuant to Order xxix, {Heading as in Form /.) L,et all the parties concerned attend the Judge in Chambers at the Court House, Halifax, on day the. . . . ., .day of 19. ., at o'clock in the noon, on the hearing of ah application on the part of to shew 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 thin/g. Dated the day of This summons was taken out by , solicitor for To FORMS — SUMMONSES AND ORDERS. No. 4. Order for Directions Pursuant to Order xxix. {Heading as in Form I.) Upon hearing the solicitors on both sides and upon read- ing the affidavit of .filed herein the following direc- tions are hereby given : — 291 Appx. K. i\os. 4— o; 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. None. Defendant in a week to give particulars of payment by him to the deceased. That the plaintiff is executor, and that the goods were supplied by deceased to the defendant. Defendant in a week to produce letter of rst fanuary, i88g. Plaintiff may interrogate as to payment only : interrogatories to be initialed by me. Plaintiff undertakes to produce pass-book of deceased at trial. ■None. None. John Smith to be examined at Yarmouth within a fortnight before examiner of the Court or special examiner to be named by parties, or in default by me. Halifax. ' fudge. Notice of trial to be given at once by' plaintiff. i No. 5. Order for Time. (O. 6o.) (Heading as in Form /.) 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 day of , 19. . No. 6. Order under Order xiv. (No. i.) ; (Heading as in Foim 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 writ with interest, if any, {or possession of the land in the indorsement of the writ described as ) and costs to be taxed. Dated the day of , 19 ■ . 29'2 ' FORMS — SUMMONSES AND ORDERS* Mo. 7. Appx. K. slos. 5— 9a. Order Under Order xiv. (No 2.) 1 {Heading as in Form /.) 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. . So. S. Order Under Order xiv (No. 3.) {Heading as 'in Form /,) 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 de- feud this action, but that if that sum be not so paid the plaintiff be at liberty to sign final judgment for the amount indorsed 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. . Wo. 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 J he be at liberty to defend this action as to the whole of the plaintiff' s claim . And it is ordered that if that sum 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 plaintiff'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 /.) Upon hearing and upon reading the affidavit of filed the day of , 19. . , and foiu£s — summonses and orders. 293 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 A P» X - K - sum of $ , the plaintiff be at liberty to sign judgment for the "o». 10-18. same. p 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. . No. 10. Order to Amend. (O. 28, 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 plaintiff be at liberty to amend the Vrit 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.) (O. 19, 1. 7.) {Heading as in Fotm v.) Upon hearing and upon reading the affidavit of '. filed the day of 19. . , .and It is ordered that the . ... . .\ furnish the with a statement in writing, verified by affidavit, setting forth the names of the persons constituting the members or- co-partners of ' their firm , pur- suant 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. 13. 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 co%ts of this application be Dated the day of , 19 • ■ 294 FORMS — SUMMONSES AND ORDERS. No. 13, A. Appx. K. jros. i«a— is. Order for Particulars of Counterclaim. (0. 19, r. 7.) {Heading as in Form, /.) Upon hearing and upon reading the affidavit of filed the > day of ....... 19. • , and It is ordered that the defendant do within days deliver to the plaintiff's solicitor or agent particulars of the said defendant's set-off (counterclaim), that in default the said defendant 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. Ortjer for Particulars (Accident Case.) (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 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 application be Dated the day of , 19 . . No. 14. Order to Discharge or Vary on Application by Third Party (O. 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 , 19. . , 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. (O. 27, r. 1.) {Heading as in Fotm 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 ORDERS. 295 No. 16. Appx. K. Order for Delivery of Interrogatories. (O. 30, r. 1.) Nos. 10-19. {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 applicatipn be Dated the day of , 19 . . sr©. 17. Order for Affidavit as to Documents. (O. 30, r. 12.) {Heading as in Form /.) Upon hearing ~ . . . . It is ordered that the i 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. IS. 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 I It is ordered that the do, at all seasonable times, on reasonable notice i produce at {insert place of inspection), situate at , the following documents, namely , and that the be at liberty to inspect and peruse the documents so pro- duced, and to take copies and abstracts thereof and extracts there- from, 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.. Mo. 19. Order for Production (Underwriters. 1 {Heading as in Form /.) Upon hearing , and upon reading the affidavit of filed the day of , 19.., and It is ordered that the .do produce and show to the upon oath all insurance slips, policies, letters |pf instruction, or 296 FORMS — SUMMONSES AND ORDERS. other orders for effecting such slips, or policies, or relating to the Appx. K. insurance or the subject-matter of the insurance on the ship Mu ao ' 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 insur- ance 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 previous 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, accounts, accounts-current, accounts-sales, bills of exchange, receipts, 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 . . t No. SO. Order for Service out of Jurisdiction. 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. And it is further ordered that the said intended plaintiff be at liberty to serve [If 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 be required.] Dated the day of , 19 . . FORMS — SUMMONSES AND ORDERS. 297 No. 31. Appx. It. Order for Substituted Service. (O. io.) nos. vi-u. {Heading- as in Form i.) 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, 23, 1 Order for Renewal of Writ. (O. 8, r. 1.) {Heading as in Form 1.) Upon hearing and upon reading the affidavit of , filed the day of , 19 . . , and Tt 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 . . Mo.. 33. Order for Issue of Notice Claiming Contribution. (O. 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 , 19 . . No. 34. Order of Reference. (Arbitration Act.) {Heading as in Form 1.) Upon hearing , and by consent It is ordered as follows : 1. {State matters to be 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. 38 298 " FORMS — SUMMONSES AND ORDERS. - - 3. The arbitrator shall make and publish his award in writing Appx. K., Q £ an( j concern i n g the matters referred, ready to be delivered to w<> OT- 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 affirmation., 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 can- not agree, the Judge may, on application by either side, appoint 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 for all costs that he or they may be entitled to under this order, and under the award, together with the costs of the said judgment. Dated the day of 19. . Sfo. 37. Order 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. FORMS — SUMMONSES AN]} ORDERS. 299 Upon reading the affidavit of , filed the day of 19- ■> a ud , certified copy of the judgment in the A PP X - K - plaint above mentioned . Nos. .28, «8a. 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 19 . . so. as. Order for Arrest. (O. 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 until final judgment in the action, and if such final judgment is against him, for a period of thirty days thereafter, unless he sooner deposits in Court the sum of $ or gives to the Sheriff or Sther officer arresting him a bond executed by him, and sufficient sureties in the penalty of $ or some other security ^ satisfactory to the plaintiff, that he will not without leave of the Court or a Judge go out of the Province until final judgment in the action, and if such final judgment is against him until the expira- tion of thirty days thereafter. 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 afore- said, 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 solicitor procuring the same, or of plaintiff, if plaintiff is suing in person and without a solicitor. ^ no. as, A. Bond on Defendant's Arrest. (O. 44, r. 5.) Know all men by these presents that we, C. D. (the defendant) of , , E. F. of , and G. H. of , are held and firmlv 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. iq.. 300 FORMS'— SUMMONSES AND ORDERS. Whereas, the above bounden, CD., was on the -day of Appx. R. taken by the said J. K., as sheriff {or coroner) as aforesaid, S on. 89, 30. ^-y 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, by 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 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 he will not, without leave of the Court or a Judge, go out of the Province until final judgment in the action, and if such final judg- ment is against him, until the expiration of thirty days thereafter :' Now the condition of this obligation is such that if the said .'..... does not, without leave of the Court or a Judge, go out of the Province until final judgment in the action, and, if such final judg- ment is against him, until the expiration, of thirty ( days thereafter, contrary to the said order, then this obligation shall be void, other- wise to stand and remain in full force and effect. Signed, sealed and delivered, f _,' _,' ? *' V in the presence of J g'. H.» ( I,.' s.' ) Br*. 29. Order of Reference for Inquiry and Report under Ar- bitration Act. {Heading as in Form /.) Upon hearing and upon reading the affidavit of filed the daj' of 19 . . , and .... It is ordered that the following question arising in this action, namely, , be referred for inquiry and report to , under section of the Arbitration Act, and that the costs of this application be Dated the day of , 19. / No. 30. Order of Reference for Triai, Under Arbitration Act. {Heading as in Form 7.) Upon hearing the solicitors on both sides , and upon reading the affidavit of , filed herein It is ordered that the whole of this cause be tried before an official referee who shall have all the powers of certifying and and amending of a Judge of the Supreme Court, and shall direct judgment to be entered and otherwise deal with the whole action pursuant to Order XXXIV. Dated the day of , 19 , , Forms— Summonses and orders. No. SI. Order of Reference to Master. {Heading as in Form /.) 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 matters of account, namely, {stating them)], be referred to the certificate 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.. < 301 Appx. K. Nos. 31—33. No. 32. Order for Examination of Witnesses Before Trial. (O. 35. r. 4-I {Heading as in Fdrm 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 affirmation) 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. 88. 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 commission 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 be,) and that the cost3 of this application be . . . 1 ■ ■ Dated the day of 19 . . 302 FORMS — SUMMONSES AND ORDERS. No. 34. Appx. R. no. 34. Long Order for Commission to Examine Witnesses. (0-35, r- 50 [Heading as in Form. /.] Upon hearing and upon reading the affidavit of , filed the day of , ig . . , and It is ordered as follows : i. A commission may issue directed to , of and of commissioners named by and on behalf of the and to of and commissioner named by and on behalf of the for the examination upon interroga- tories and viva voce of witnesses on behalf of the said 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 witnesses as may be produced on their behalf , with liberty to the other party to cross- examine the said witnesses upon cross-interrogatories 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 writing, and with the answers thereto, returned with the said commission. 3. Within days from the date of this order the solicitors or agents of the said and shall exchange the inter- rogatories they propose to administer to their respective witnesses and shall also within days from the exchange of such inter- rogatories, exchange copies of the cross-interrogatories intended to be administered to the 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 conveyance by which the commission is to be sent out. 5 days previously to the examination of any witness 011 behalf of the said or . . . . . respectively, notice in writing 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 intended examination, and the names of the witnesses intended to be examined, shall be given to the commissioners of the other party by delivering the notice to them personally; or by leaving it at their usual place of abode or business, 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 witnesses, ex parte, and adjourn any meeting or meetings, or continue the same, from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, without giving any further or other notice of the subsequent meeting 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 FORMS — SUMMONSES AND ORDERS. 303 thereof, or extract therefrom, certified by the commissioners or commissioner present to be a true and correct copy or extracts, A PP X - K - shall be annexed to the witnesses' deposition. No. 34a. 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 commissioner. 8. 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 commissioners or commissioner, and to be previously sworn according to his or , their several religions by or before the said commissioners or com- missioner 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 depositions, together with any documents referred to therein, or certified 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 respectively, 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-interroga- tories, and depositions to be taken thereunder, together with any such document, copy, or extract as aforesaid, and official copies thereof, and all other costs incidental thereto, shall be Dated the day of , 19 . . Mo. 34, A. Order for Issue of Request for Commission. (O. 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 : • E. F., of G. H., of and I. J., of And it is ordered that the depositions taken pursuant thereto 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 depositions have been filed. JJQ4 FORMS — .SUMMONSES AND ORDERS. Xo, 84, IS. Appx. K. \os. 34b, S4c. Request for Commission. (O. 35, r. 5, a.) [Heading: — To the President and Judges of, &c, &c, or as the case may be.'] Whereas an action is now pending in the Supreme Court in Nova Scotia, in which A. B. is plaintiff and CD. 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 determina- tion of the matters in dispute between the parties, that the follow- ing persons should be examined as witnesses upon oath touching such matters, that is to say : E. F., of G. 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 President 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 defendant 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 examined upon the interroga- tories which accompany this letter of request (or viva voce) touch- ing 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 ( reduced into writing, and all books, letters, papers and documents pro- duced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examina- tion by the seal of, your tribunal, or in such other way as is in ac- cordance with your procedure, and to- return the same, together with such request in writing, if any, for the examination of other witnesses, through Her Majesty's Secretary of State for the Dominion of Canada at Ottawa, for transmission to the said Supreme Court in Nova Scotia. No. 34, C. Order for Appointment of Special Examiner . To Take Evidence Abroad. (O. 35, 1. 4.) {Heading as in Fotm 1.) Upon hearing the solicitors on both 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 FORMS — SUMMONSES AND ORDERS. 305 on the part of the at aforesaid. The solicitors to give to the solicitors days' notice in writing of the „ P ^.' ,1 date on which they propose to send out this order to for ex- ' edition, and that days after the service of such notice the solicitors for the plaintiffs and defendants respectively do exchange the names of their agents at , to whom notice relating to the examination of the said witnesses may be sent. And that. days (^exclusive of Sunday) prior to the examination 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 docu- ments referred to therein, or certified. copies of such documents, or of extracts therefrom, be transmitted 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 depositions. And that the costs of and incident to this application and such examination be costs in the action. Dated the day of , 19 . . 1 Mo. 85. Order for Examination of Judgment Debtor. (O. 40, r. 44.) 19 . . [Here put the letter and number. ] In the Supreme Court Between , Judgment Creditor, and * Judgment Debtor. v 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 judgment 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. • TVo. 36. Garnishee Order (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 , , 39 306 FORMS — SUMMONSES AND ORDERS. It is ordered that all debts owing or accruing due from the Appx. K. above-named garnishee to the above-named judgment debtor be ftos. 87, 37a. attached to answer a judgment recovered against the said judgment debtor by the above-named judgment creditor in the Supreme Court, on the day of I9--, for the sum of $...., on which judgment the said sum of $. . . . remains due and unpaid. And it is further ordered that the said garnishee attend the Judge in Chambers at on day the day of 19. ., at. . . .o'clock in the. . . .noon, on an application by the said judgment creditor, that the said garnishee pay the debt due from him to the said judgment debtor, or so much thereof as may be sufficient to satisfy the judgment. Dated the day of 19 Wo- 87. Garnishee Order (Absolute.) (O. 43, r. 3.) 19 . . {Here put the letter and number. ) In the Supreme Court. In Chambers. Between , Judgment Creditor, and - . . . , Judgment Debtor, , Garnishee. Upon hearing the solicitors for the judgment creditor and the garnishee , and upon reading the affidavit of , filed the day of , 19.-, and the order nisi made herein dated the day of , 19.., whereby it was ordered that all debts owing or accruing due from the above-named garnishee to the above-named judgment debtor should be attached to answer a judgment recovered against the said judgment debtor by the above- named judgment creditor in the Supreme Court on the day of , 19. • , for the sum of $ , on which judgment the said sum of $. . . . remained due and unpaid. It is ordered that the said garnishee do forthwith pay the said judgment creditor the debt due from him to the said judgment debtor (or so much thereof as may be sufficient to satisfy the judg- ment debt), and that in default thereof execution may issue for the same. Dated the day of 19. . Sfo. 37, A. Order for Issue between Judgment Creditor and Garnishee. (O. 43, r. 4.) {Heading as in No. 36.) Upon hearing the solicitors for the judgment creditor and the garnishee, and reading the affidavit of , and the order nisi herein, dated the day of 19. , FORMS — SUMMONSES' AND ORDERS. 307 It is ordered that the judgment creditor and the garnishee proceed to the trial of an issue wherein the said judgment creditor w p ~ ,« shall be plaintiff and the said garnishee shall be defendant, and ' ■ ' that the question to be tried shall be whether the said garnishee was indebted to the judgment debtor in any and what amount at the time the said order nisi was served. And it is further ordered that the issue be prepared and delivered by the plaintiff therein within ten days from this date, and be returned by the defendant therein within seven days, and be tried at and that the ques- ' tion of costs and all further questions be reserved until the trial of the said issue. Dated the day of 19 . . No. 38. Order on Client's Application to tax Solicitor's Bill of Costs. 19. . {Here put the lettei and number.} In the Supreme Court. In Chambers. In the matter of the taxation of costs, and in the matter of one of the solicitors of the Supreme Court. It is ordered that the bill of fees, charges and disbursements delivered to the applicant by the above-named solicitor be taxed, and that the said solicitor give credit for all sums of money by him received of or on account of the applicant, and that he refund what, if anything, he may on such taxation appear to have been overpaid.' And it is further ordered that the said solicitor do not com- mence or prosecute any cause or matter touching the demand pending the taxation . And it is further ordered that upon payment by the applicant of what (if anything) may appear to be due to the said solicitor the said solicitor do, (if required) deliver up to the applicant, or as he may direct, all deeds, books, papers, and writings in the said solicitor's possession, custody or power belonging to the applicant. And it is ordered that the costs of this application be Dated the....- -day of 19.. No. 39. Order on Solicitor's Application to Tax Bill of Costs. 19. . {Here jut the letter and number,') In the Supreme Court. In Chambers. In the matter of the taxation of costs, and in the matter of , one of the Solicitors of the Supreme Court. Upon hearing ,' and upon reading the affidavit of filed the day of , 19- • > and : It is ordered that the above-named solicitor's bill of fees, charges and disbursements, delivered to (hereinafter called the said client) be taxed, and that the said solicitor give credit for $08 FORMS— SUMMONSES AND ORDERS. all sums of money by him received from or on account of the said Appx. K. client, and that he refund what, if anything, he may on such taxa- Nos. 40, 41. t j pn a pp ear t nave been overpaid. And it is further ordered that the said solicitor do not com- mence or prosecute an)' cause or matter touching the demand pending the taxation . And it is further ordered that upon payment by the said client of what (if anything) may appear to be due to the said solicitor, the said solicitor do (if required), deliver to the said client, or as he may direct, all deeds, books, papers, and writings in the said solicitor's possession, custody or power, belonging to the said client. And it is ordered that the costs of this application be Dated the day of , 19 . , No. 40. Order to Tax After Action Brought. {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's bill of costs, charges and dis- bursements delivered to the defendant, for the recovery of which this action is brought, be taxed, and that the plaintiff give credit at the time of taxation for all sums of money by him received from^ or on account of the defendant. And it is further ordeied that the plaintiff do not prosecute this action touching the demand pending the taxation. And it is further ordered that upon payment of what, (if any- thing), may appear to be due to the plaintiff, together with the costs of this action (which are to be also taxed and paid), all further proceedings therein be stayed,, and that the costs of this application be Dated the day of, , 19 . . No. 41. Interpleader Order (No. 1.) (O. 56.) 19. . {Here put the letter and number.) In the Supreme Court. In Chambers. Between , Plaintiff and Defendant. and between Claimant, and , Respondent. #ORMS— SUMMONSES AND ORDERS. $(5)0 Upon* hearing and upon reading the affidavit of filed the day of , iq. ., and .... . Appx - K - ' STos. 41A, 42. It is ordered that the claimant be barred, that no action be ~ brought against the above-named (Sheriff) and that the costs of this application be Dated the day of 19. . No. 41, A. Interpleader Order (No. i, a.) (O. 56.) 19.., No.. In the Supreme Court. in Chambers. Between Plaintiff, and Defendant, Claimant. Upon hearing the solicitors for the plaintiff, the claimant, and the sheriff of , and reading the affidavit of It is ordered* that the sheriff withdraw from possession of the goods seized by him under the writ of execution herein and claimed by the claimant, that no action be brought. And that the pay to the the costs of the inter- pleader to be taxed, and possession money to the sheriff. Dated the day of , 19 . . No. 43. Interpleader Order (No. 2.) (O. 56.) 19 . . {Here put 'the letter and niumber.) In the Supreme Court. In Chambers. Between , Plaintiff, and . . .' , Defendant, and .... : , Claimant. Upon hearing , and upon reading the affidavit of ... , filed the day of , 19 . • , and It is ordered that the above-named claimant be substituted as defendant hr this action in lieu of the present defendant, and the costs of this application be Dated the day of , 19. , 310 FORMS — SUMMONSES AND ORDERS. No. 43. Appx. K. Nos. 43, 44. Interpleader Order (No. 3.) (O. 56.) 19 . . {Here put the letter and number. ) In the Supreme Court. In Chambers. Between Plaintiff, , and , Defendant. and between , Claimant, and the said ......-, execution creditor, and , the Sheriff of , Respondents. Upon hearing , and upon reading the affidavit of , filed the day of , 19 . . , and It is ordered that the said Sheriff proceed to sell the goods seized by him under the writ of execution issued herein, and claimed by the claimant, and pay the net proceeds of the sale, after deduct- ing the expenses thereof, into Court in this cause, to abide further order herein. And it is further ordered that the parties proceed to the trial of an issue in the Supreme Court, in which the said claimant shall be the plaintiff, and the said execution creditor shall be the defend- ant, and the question to be tried shall be whether at the time of the seizure by the sheriff the said goods seized were the property of the claimant as against the execution creditor. And it is further ordered that this issue be prepared and delivered by the plaintiff therein within from this date, and be returned by the defendant therein within days, and be tried at And it is further ordered that the question of costs and all further questions be reserved until the trial of the said issue, and that no action shall be brought against the said sheriff for the seizure of the said goods. Dated the day of 19. . No. 44. Interpleader Order, (No. 4.) (O. 56.) {Heading as in Fotm 43.) Upon hearing, &c. It is ordered that upon payment of the sum of $ into Court by the said claimant within from this date, or upon his giving within the same time security to the satisfaction of a Judge (or as the case may be) for the payment of the same amount by the said claimant according to the directions of any order to be made herein, and upon payment to the above-named sheriff of the pos- session money from this date, the said sheriff do withdraw from the possession of the goods seized by him under the writ of execu- tion herein and claimed by the claimant, FORMS— SUMMONSES AND ORDERS. 311 And it is further ordered that unless such payment be made or security given within the time aforesaid the said sheriff proceed to A PP x j R - sell the said goods, and pay the proceeds of the sale, after deduct- N " s ' * 5 ' **• ing the expenses thereof and the possession money from this date, into Court, in the cause, to abide further order herein. And it is further ordered that the parties proceed, &c. And it is further ordered that this issue, &c. And it is further ordered that the question of costs, &c. Dated the day of 19. . No. 45. Interpleader Order (No. 5.) (O. 56.) (Heading as in Form 43.) Upon hearing, &c. It is ordered that upon payment of the sum of $.... into Court by the said claimant, or upon his giving security* to the satisfaction of a Judge (or, as the case may be), for the payment of the same amount by the claimant according to the directions of any order to be made herein, the above-named sheriff withdraw from the possession of the goods seized by him under the writ of execution issued herein. And it is further ordered that in the meantime, and until such payment made or security given, the sheriff continue in possession of the goods, and the claimant pay possession money for the time he so continues, unless the claimant desire the goods to be sold by the sheriff, in which case the sheriff is to sell them and pay the proceeds of the sale,, after deducting the expenses thereof, and the possession money from this date, into Court in the cause, to abide further order herein. And it is further ordered that the parties proceed, &c. And it is further ordered that this issue, &c. And it is further ordered that the question of costs, &c. Dated the . . day of , 19. • \o. 46. ' Interpleader Order, (No. 6.) (O. 56.) (Heading as in Form 43.) The claimant and the execution creditor having requested and consented that the merits of the claim made by the claimant be disposed of and determined in a summary manner, now upon hearing , and upon reading the affidavit of .filed the day of , 19 • • . and It is ordered that And that the costs of this application be Dated the day of , 19- • 312 * FORMS — SUMMONSES AND ORDERS. No. 47. Appx. K. tins. «-49. Interpleader Order, (No. 7.) (O. 56.) {Heading as in Form 43.) Upon hearing . 1 . . . . , and upon reading the affidavit of filed the day of 19 . . , and • It is ordered that the above-named sheriff proceed to sell enough of the goods seized under the writ of execution issued in this action to satisfy expenses of the said sale, the rent (if any) due the claimant, and this execution. And it is further ordered that out of the proceeds of the said sale (after deducting the expenses thereof, and rent, if any)", the said sheriff pay to the claimant the amount of his said claim, and to the execution creditor the amount of his execution, and the residue, if any, to the defendant. And it is further ordered that no action be brought against the said sheriff, and that the costs of this application be Dated the day of , 19 . . No. 48. Order Dismissing Summons (Generally.) (Heading' as in Form 1.) Upon hearing and upon reading the affidavit of filed the day of 19 . . t and It is ordered that the application of be dismissed with cbsts to be taxed and paid by the to the (or, and that the costs of and occasioned by this application be the \s in any event.) Dated the day of 19. . No. 49. Order to Replevy. (O. 45, r. 1.) 19. . (Here put the letter and number.} In the Supreme Court. Between A. B., Plaintiff, and CD., Defendant. ' By virtue of the provisions of the Rules of the Supreme Court, I hereby authorize arid direct you without delay on security being given you according to said Rules (Order XI/V), to replevy and deliver to the said A. B. the goods and chattels (or cattle) which he claims in this suit, and which are of the value of $... .(here insert the value stated in the affidavit) and which he alleges that the said C. D. unjustly detains; that is to say: — (Here describe the goods, &c, to be,replevied), arid forthwith to return to me this order, and what you shall have done under the same. Dated the day of 19 . . (Signed,) To the High Sheriff of the County of Prothy. Sup. Ct., Co. of. FORMS— SUMMONSES AND ORDERS. gig No. 50. Appx. K. Affidavit for Replevin. (O. 45, r. 2.) Nos. 50-52. {Heading as above.) I, A. B., of , in the County of ., make oath and say : That I have the right to the possession of the following "cattle {or goods, as the case may be), to wit : , as I verily believe, and that C. D. unjustly detains the same; and that the said cattle (or goods, as the case may be), are to the best of my belief, of the value of dollars.' Sworn to at , this day of , A. D. 19.., before me, No. SI. Bond for Replevin (O. 45, 1. 5.) [Bond in the usual form ft am , A. B., {plaintiff,) and E. F., and G. H.~\ Whereas, the said A. B., has obtained an order for replevin against C. D. to obtain possession of certain cattle {or goods) to wit : , which the said A. B. asserts to be his property. Now, the condition of this obligation is such, that if the said A. B. shall not prosecute his suit in which the said, order was inade, with effect and without delay, or if suit is carried on and continued between the said A. B. and C. D. touching the property of the said cattle {or goods) and the Court shall adjudge that the said cattle (or goods) shall be restored to the said C. D. with damages for de- taining the same, then if the said A. B. shall restore the said cattle {or goods) and pay\and satisfy any judgment that may be obtained against him, this bond shall become void. ( Where the plaintiff himself does not join in the bond, the form must be uttered to conform to the fact,) No, 53. Bond to Obtain Return of the Property. (O: 45, r. 9.) [Bond in the usual form from C. D, {defendant) and E. F. ana G.H.1 Whereas, the said C. D. claims to retain certain cattle {01 goods) to wit: , to recover possession of which A. B. has obtained an order for replevin. Now, the condition of this obligation is such, that if the Court adjudges that the said cattle (or goods) shall be restored to the said A. B. with or without damages for detaining the same, then if the said C. D. restores the said cattle (or goods), and pays and satisfies any judgment that is recovered against him, this obligation shall be void, but otherwise shall remain in force. ( Where the defendant himself does not join in the bond, the Jorm must be altered to conform to the fact, ) 40 314 FORMS — SUMMONSES AND ORDERS; No. 58. A|>|>v. K. \<>s. 53-55. Order for Examination Touching Means. 19 . . {Here put the letter and number.) In- the Supreme Court. In Chambers. Between , Judgment Creditor, and .' , Judgment Debtor. On hearing and on reading the affidavit of filed the day of , 19 . . , and It is ordered that the above-named (or that , an officer of the defendant corporation) attend before the Judge at Chambers, on the day of 19. . , at in the noon, to be examined on oath touching his means (or the means of the said corporation), of paying the judgment debt, and that the costs of this application be Dated the day of , 19 . . No. 54. Order to Bring up Witness in Criminal Custody. [Heading as in Form i.~\ Upon reading the'affidavit of It is ordered that the keeper of Her Majesty's prison at shall have before on the day of , 19. .", at o'clock in the forenoon, the body of a prisoner in his custody (as it is said), then and there to testify the truth and give evidence in this ....... on behalf of , and so on from day to day until his attendance as such witness shall be no longer required, and thereupon he be taken back without delay to the said prison and there detained until he be discharged by due course of law. Dated the day of 19 . . No. 55. Receiver Order Interim (O. 50, r. 6.) (Heading as in Form 1.) Upon the application of for the plaintiff and the plaintiff by his undertaking to be answerable' for all sums to be received by the receiver hereinafter named. It is ordered that be appointed without security until the day of next inclusi\^e or further order to receive the rents and profit of , but without prejudice to the rights of any prior incumbrancer or his possession (if any) and the tenants of the said estate are (without prejudice as aforesaid) to attorn and pay their rents in arrear and growing rents to the' said so long as he shall continue to be such receiver, and that all questions as to passing his accounts and payments thereunder and all further questions be reserved until further order. Defendant to be at liberty to apply in meantime. Dated the day of. r , 19.. ' FORMS — SUMMONSES AND ORDERS. 315 No. 56. Appx. K. .Receiver Order. (0. So, r. 6.) ' "os. ss, 51. {Heading as in Form /.) Upon hearing ...... for the plaintiff, and upon reading the affidavit of It is ordered that be appointed receiver upon first giving - security by bond to the satisfaction of one of the Judges of the Supreme Court, to receive the rents, profits, and moneys receivable in respect of the following property (that is to say) : But this appointment is to be without prejudice to the rights of any prior incumbrancers upon the said premises, who may think proper to take possession of or receive the same by virtue of their respective securities, or, if any prior incumbrancer is in possession, then without prejudice to such possession. And that the tenants of the said premises do attorn and pay their rents in arrear and growing rents to such receiver. And that such receiver have liberty, if he shall think proper (but not other- wise), out of the rents, profits, and moneys to be received by him, to keep down the interest upon the prior incumbrances, according to their priorities, and be allowed such payments (if any) in pass- ing his accounts, and that such receiver shall on the day of next, and at such further and other times as may be ordered by the Judge, leave and pass such accounts, and shall on the day of next, and at such further and other times as may be hereafter ordered by the Judge, pay the balance or balances appear- ing due on the accounts so left or such part thereof as shall be cer- tified as proper to be so paid ; such sums to be paid in or towards satisfaction of what shall for the time being be due in respect of the judgment signed on the day of for the sum of $ debt, and $ for costs, making together the sum of $ ; and that the costs of this order and of carrying the same into effect and of obtaining the discharge of the receiver shall be primarily payable out of the sums received by the receiver, but if there shall be no sums received or the amount shall be insufficient, the amount of the deficiency shall be paid by the judgment debtor to the judgment creditor. It is further ordered that the balance (if any) remaining in thp hands of the receiver, after making the several ^payments aforesaid, shall forthwith be paid by the receiver .into Court to the credit of this action, subject to further order. And any of the parties are to be at liberty to apply to the Judge in Chambers as there may be occasion. Dated the .' day of 19. • No. 57. Order for Interim Injunction. (O. 50, r. 6.) {Heading as in Form /.)■ Upon hearing for the plaintiff and upon reading the affidavit of filed the day of 19. . , and the plaintiff , by his said undertaking to abide by any order the Court or a Judge may make as to damages in case the Court or a Judge should hereafter be of opinion that the defendant shall have sus- 316 FORMS — SUMMONSES AND ORDERS. I _ t taiued any by reason of this order which the plaintiff ought to pay. Appx. it. j t j s or( jered an( j directed that the defendant his agents and Mos. 58—60. servan ts , and every of them be restrained and an injunction is hereby granted restraining them and every of them from until after the trial of this action or until further order. , Dated this .day of , 19. . No. 58. Order to Try by Jury. (O. 34, r. 6.) {Heading as in Form 1.) Upon hearing the solicitors on both sides. It is ordered that this action be tried with a jury. And that the costs of this application be ' Dated the day of , 19 . . Wo. 59. Order for View by Jury. (O. 50, rr. 3, 5.) {Heading as in Form /.) v Upon hearing the solicitors on both sides and upon read- ing the affidavit of , filed herein. It is ordered that a view of the place in question be had as prescribed by the statutes and rules of Court in that case made and provided, and that the sheriff of the County of ....... .do have six or more of the jurors summoned for the trial of this action, to view the place in question, and before the trial thereof, on the day of 19,. . , that the said jurors do meet at the house of known by the name of and that on the part of the plaintiff and on the part of the defendant do attend the same day and show the place in question to the said six or more of the said jurors, and that no evidence be given on either side. The hereby consenting that in case no view be had, or if a view shall be had by any of the said jurors that the trial of this action shall proceed, and that no objection shall be made on account .thereof. v 1 Dated the day of 19 . . IV*. 60. Order for Security for Costs. {Heading as in Form 1.) Upon hearing the solicitors on both sides, and reading the affidavit of- It is ordered that the plaintiff give security for the defendant's costs in this action to the satisfaction of the Judge, and that in the meantime all further proceedings be stayed. And that the costs of such application be Dated the day of *, 19 . , FORMS — CHANCERY BUSINESS. 3l7 No. «1. Appx. I,. Order, for Service in case of Vacant Premises. Mos - *' a - CO. 9, r. 9.) {Heading as in Form /.) Upon reading the affidavit of It is ordered that service of the writ of summons in this action under Order IX, Rule 9, be good and sufficient service of the said writ for the recovery of possession of the land or property claimed in this action. Dated the day of , 19 . . -A.FFttl5rJDT2£ X,. Equity or Chancery Business. iVo. I. Summons. In the Supreme Court , 19 . . In the matter of the estate of A. B., late of , in the County of , deceased Or Between CD., petitioner, and E. F., defendant. The defendant E. F. ^or G. H., of, &c.,) is hereby summoned to attend at Chambers on the day of at o'clock in the noon, to be examined, (or to be examined as a witness) on the part of the , for the purpose of the proceedings directed by Mr. Justice , to be taken .... .,. Dated this May of 19. . X. Y., Prothy. This summons was taken out by of , in the County of , solicitors for Bfo. 2. Advertisement for Claimants not being Creditors. (O. 55, r. 32.) Pursuant to a judgment (or order) of the Supreme Court made in (the matter of the estate of , and in) an action by against , the persons claiming to be next of kin to (or the 318 FORMS — CHANCERV BUSINESS. Jlos.. :!, 4. r heir of, as the case may be) , late of ,_in the county of s * a |,x J 4 " , who died in or about the month of , are by their . solicitors, on or before the day of , to come in and prove their claims at Chambers at the Court House, in Halifax, or in default thereof, they will be peremptorily excluded from the benefit of the said judgment {or order.) The day of , at ... .' . . o'clock in the noon, at Chambers, is appointed for hearing and adjudicating upon the claims. Dated the day of 19 ; . A. B., Prothy. i\o. 3. Advertisement for Creditors. (O. 55, r. 32.) Pursuant to a judgment {or an order) of the Supreme Court made in (the matter of the estate of A. B., and in) an action S. against P., the creditors of A. B., late of , in the county of , who died in or about the month of , 19 . . , are on or before the day of , 19 . . , to send by post, prepaid, to E. F., of the solicitor of the defendant C. D., the executor Co- administrator) of the deceased {or as may be directed), their Christian and surname, addresses and descriptions, the full par- ticulars of their claims, a statement of their accounts, and .the nature of the securities (if any), held by them, or in default thereof, they will be peremptorily excluded from the benefit of the said judgment (or order.) Every creditor holding any security is to produce the same before the Judge, presiding at Chambers, in Halifax, on the day of , 19 . . , at ... . o'clock in the noon, being the time appointed for adjudication on the claims. Dated the day of 19. . , ' G. H., Prothy. No. 4. Notice to Creditor to Produce Documents. (O. 5s, 1. 34.) " {Short Title.) You are hereby required to produce in support of the claim sent in by you against the estate of A. B., deceased, {describe the document required to be produced) , before Mr. Justice , at Chambers, at the County Court House in Halifax, on the day of ., at o'clock in the . .noon. Dated the r .day of! , 19. . G. R., of &c, solicitor for plaintiff {or defendant, or as the case may be. ) To Mr. S. T. FORMS— CHANCERY BUSINESS. 319 No. 5. »|>|>v. 1. Affidavit of. Executor or Administrator as to Ci,aims of "«"»• «-«• Creditors. (O. 55, r. 36.) In the Supreme Court. ( Title.) We, C. D., of &c, the above-named plaintiff (or defendant, 01 as may be), the executor (or administrator) of A. B., late of in the County of , deceased, and E. F., of &c, solicitor, , severally make oath and say as follows : — I, the said E. F., for myself, say ps follows : 1. I have in the paper writing now produced and shown to me and marked A., set forth a list of all the claims, the particulars of , which have been sent in to me by persons claiming to be creditors of the said A. B., deceased, pursuant to the advertisement issued in that behalf, dated the day of , 19 . . And I, the said C. D., for myself, say as follows: 2. I have examined the particulars of the several claims men- tioned in the papfer writing now produced and shown to me, and marked A., and I have compared the same with the books, ac- counts, and documents of the said A. B. (or as maybe, and state, any other inquiries or investigations mp.de), in order to ascertain, so far as I am able, to which of such claims the estate of the said A. B. is justly liable. 3. From such examination (and state any other reasons) I am of opinion and verily believe, that the estate of the said A. B. is justly liable to the amounts set forth in the sixth column of the first part -of the said paper writing, marked A., and to the best of my knowledge and belief, such several amounts are justly due from the estate of the said A. B., and proper to be allowed to the respec- tive claimants named in the said schedule. 4. I am of opinion that the < estate of the said A. B. is not justly liable to the claims set forth in the second part of the said paper writing, marked A., and that the same ought not to be allowed without proof by the respective claimants (or I am not able to state whether the estate of the said A. B. is justty liable to the claims set forth in the second part of the said paper writing, marked A., or whether such claims, or any parts thereof, are proper to be allowed without further evidence.) 5. Except as hereinbefore mentioned, there are not, to the best of my knowledge, information, and belief, any other claims against the estate of the said A. B. Sworn, &c. No. 6. Exhibit Referred to in Affidavit (No. 5.) (O. 55, r. 36.) A. , (Shorty Title. ^ List of claims, the particulars of which have been sent in to E. F., the solicitor of the plaintiff (or defendant, or as may be), by persons claiming to be creditors of A. B., deceased, pursuant to the advertisement issued in that' behalf, dated the .day of I9-- 320 FORMS — CHANCERY BUSINESS. This paper writing marked A., Was produced and shown to Appx. L. ^ an( j j s f^g sarne as referred to in his affidavit sworn before Ko ' *■ me this day of , 19 . . - W. B. &c. First Part. — Claims proper to be allowed without further evidence. Serial No. Names of Claimants. Addresses and Descriptions. Particulars of claim. Amount claimed. Amount pro- per to be allowed. Second Part. — Claims which ought to be proved by the Claimants. Serial No. Names of Claimants. Addresses and Descriptions. Particulars of Claim. Amount Claimed. Sfo. 7. Notice to Creditor of Allowance of Claim. (O. 55, r. 40.) {Short Title.) , ' The claim sent in by you against the estate of A. B., deceased, has been allowed at the sum of $ , with interest thereon at I per centum per annum, from the day of 19. ., and $ for costs. {If part only allowed, add, If you claim to have a larger sum allowed, you are hereby required, to prove such further claim, and you are to file such affidavit as you may be advised in support of your claim, and to give notice thereof to me on or before the day of 19. . next, and to attend by your solicitor at Chambers at the Court House in Halifax, on day of , i9-.,at .o'clock in the noon, being the time appointed for adjudicating on the claim.) Dated this day of , 19 . . G. R., of, &c, Solicitor for the plaintiff {or defendant, ot as may be.) To Mr. P. R. FORMS — CHANCERY BUSINESS. SOI No. 8. ., „ i Appx. I. Notice to Creditor to Prove His Claim. (0. 55, r. 40.) Nos. 8, 9. (Short Title.) ^ You are hereby required to prove the claim sent in by you against the estate of A. B., deceased. You are to file such affidavit as you may be advised in support of your claim, and give notice thereof to me on or before the day of next, and to attend by your solicitor at Chambers at the County Court House at Halifax, on the day of , 19.., a t o'clock in the noon, being the time appointed for adjudicating on the claim. Dated the day of, , 19 • ■ G. R., of, &c, solicitor for the plaintiff (or, defendant, or as may be.) To Mr. S. T. So. 9. Certificate oe Referee. (O. 55, r. 47, h.) (Title.) In pursuance of the directions given to me by Mr. Justice , I hereby certify that the result of the accounts and in- quiries which have been taken and made in pursuance of the judg- ment (or order) in this cause dated the day of , is as follows : 1 . The defendants the executors of , the testator, have received personal estate to the amount of $ , and they have paid, or are entitled to be allowed, on account thereof, sums to the amount of $ , leaving a balance due from (or to) them of $ on that account. The particulars of the above receipts and payments appear in the account marked , verified by the affidavit of , filed on the day of , and which account is to be filed with this certificate, except that in addition to the sums appearing on such account to have been received, the said defendants are charged with the following sums, (state the same here or in a schedule) and except that I have disallowed the items of disburse- ment in the said account numbered and, (Or in cases where a transcript has been made.) The defendants have brought in an account verified by the affidavit of , filed on the day of and which account is marked and is to be filed with this certificate. The account has been altered, and the amount marked ....... , and which is also to be filed with this certificate, is a transcript of the account as altered and passed. 2. The debts of the testatoi which have been allowed, are set forth in the Schedule hereto, and with the interest thereon and costs mentioned in the Schedule, are due to the persons therein named, and amount altogether to $ 3. The funeral expenses of the testator amount to the sum of I , which I have allowed the said executors in the said aq^ count of personal estate, 41 322 FORMS — CHANCERY BUSINESS. 4. The legacies given by the testator are set forth in the Appx. I- Schedule hereto, and with the interest therein mentioned remain Sio. 10. ,jue ^0 the persons therein named, and amount altogether to 5. The outstanding personal estate of the testator consists of the particulars, set forth in the Schedule hereto. 5. The real estate to which the testator was entitled consists of the particulars set forth in the Schedule hereto. 7. The defendants have received rents and profits of the testator's real estate, &c, (in a form similar to that provided with respect to the personal estate. ) 8. The incumbrances affecting the said testator's real estate are specified in the Schedule hereto. 9. The real estates of the testator directed to be sold, have been sold, and the purchase moneys, amounting altogether to $ „. . , have been paid into Court. N.B. — The above numbers are to correspond with the numbers in the order after each statement ; the evidence produced is to be stated as follows : — The evidence produced on this account (or inquiry ) consists of the probate of the testator's will, the affidavit of A. B., filed and paragraph numbered of the affidavit of C. D., filed. No. 10. Affidavit Verifying Accounts and Answering Usual In- quiries as to Real and Personal Estate. (O. 55, r. 49.) In the Supreme Court. (Title.) We, A. B., of &c, , C. D., of &c, , E. F., of &c the above-named defendants, severally make oath and say as follows : 1. We have according to the best of our knowledge, informa- tion and belief, set forth in Schedule I hereto, a full account and inventory of the personal estate of or to which G. H , the testator in the judgment (or order) dated , made in this action (or matter) named, who died on the , day of ........ , was pos- sessed or entitled at the time of his death, and not by him specifically bequeathed. 2. Save what is set forth in the said Schedule I, and what is by the said testator specifically bequeathed, the said testator was not to the best of our knowledge, information or belief, at the time of his death possessed of or entitled to any debt or sum of money due to him from us, or any of us, on any account whatsoever, nor to any leasehold or other personal estate whatsoever. 3. The said testator's funeral expenses have been paid. The same consist of the items of disbursement numbered and in the account hereinafter referred to (or if not paid, it should be so stated, with the amount due and to whom dwe.) FORMS — CHANCERX BUSINESS. 323 4. We have in the account marked A., now produced and ' shown to us, according to the best of our knowledge, information a i>p x - *•• and belief, set forth a full account of the personal estate of the y °- 10 - said testator, not by him specifically bequeathed, which has come to our hands or to the hands of any of us, or to the hands of any person or persons by our order, or the order of any of us, or for our use, or the use of any of us, with the times when, the names of the persons from whom, and on what account, the same has been received, and also a like account of the disbursements, allowances and payments made by us or any of us on account of the said testa- tor's funeral expenses, debts and personal estate, together with the times when, the names of the persons to whom, and the purposes for which, the same were disbursed, allowed or paid. 5. And we, each speaking positively for himself and to the best of his knowledge and belief as to other persons, further say that except as appears in the said account marked A, we have not, nor has any of us, nor have nor has any other person or persons by our order or the order of any of us) or for our use, or the use of any of us, possessed, received, or got in any part of the said testator's personal estate, nor any money in respect thereof, and that the said account marked A does not contain any item of disbursement, allowance, or payment, other than such as has actually been disbursed, paid or allowed on the account aforesaid. 6. To the best of our knowledge, information and belief, the personal estate of the said testator, now outstanding or undisposed of, consists of the particulars set forth in Schedule II, hereto. 7. Save what is set forth in Schedule II, there is not to our knowledge, information, or belief, any part of the said testator's personal estate now outstanding or undisposed of. 8. We have, according to the best of our knowledge, informa- tion and belief, set forth in Schedule III, hereto the particulars of all the real estate which the said G. H. was seized of or entitled to at the date of his death. 9. Save what is set forth in the said schedule, the said testator was not to the best of our knowledge, information or belief,' at the time of his death seised of or entitled to any real estate, whatso- ever. [ 10. We have, according to the best of our knowledge, informa- tion and belief, set forth in Schedule IV hereto, the particulars of all the incumbrances affecting the said testator's real estate, and what part thereof such incumbrances respectively affect. 11. We have in the account marked B, now produced and shown to us, according to the best of our knowledge, information and belief, set forth a full account of all the rents and profits of the said testator's real estate which has come to our hands of to the hands of any of us, or to the hands of any person or persons by our order, or the order of any of us, or for our use, or the use of any of us, and the times when, the names of the persons from whom, on what account, in respect of what part of such estate the same have been received, and the times when the same became due, and also a like account of the disbursements, allowances, and payments made by us, or any or either of us, in respect of the said testator's real estate, or the rents and profits thereof, and the times when, the names of the persons to whom, and the purposes for ' which, the same were made. 12. And we, each speaking positively for himself, and to the feest of his knowledge and belief as to other persons, further say 324 FORMS — CHANCERY BUSINESS. No. 10. that, except as appears in the said account marked B, we have not, A w« X iii nor k as anv of us > nor, has any other person by our order, or the order of any of us, or for our use, or the use of any of us, pos- sessed, received, or got in any rents or profits of the said testator's real estate, nor any money in respect thereof, and that the said account marked B does not contain any item of disbursement, payment, or allowance, other than such as has actually been dis- bursed, paid, or allowed, as above stated. The First Schedule above referred to. i. $100 cash in the house. 2. ^400 cash at the testator's bankers, Messrs. A. and B. 3. $1,000 Dominion of Canada Stock, standing in the testa- tor's name. 4. $50 due from John James, for half year's rent of house at to 1st May, 1901. 5. $140 balance remaining due from John Thomas on account of half year's rent of farm at , to 6. $300, a debt due from Samuel Jones on a bond, with interest from , at per cent. 7. A leasehold house situate at , held under a lease for a term of , which will expire on , at a rent of $ a year, underlet to James Evans for a term which will expire on at a rent of $50 a year. 8. $25, half a year's rent due from the said James Evans to The Second Schedule above referred to. (The particulars to be set forth in the same manner as above.) The Third Schedule above referred to. (To contain a short particular of the real estate.) The Fourth Schedule above referred to. (To contain a short particular of the incumbrances, and show- ing what part of the above real estate is subject to each.) forms — Chancery business. 325 Appx. L. No. 11. No. 11. Account of Personal Estate, being Account A., referred to Form No. io. (0. 55, 1. 49.) In the Supreme Court. ( Title. .) This account marked A was produced and shown to A. B., C. D., and B. F., and is the account referred to in their affidavit sworn this day of Before me ( To be signed here by Commissioner or officer befote whom the affidavit is sworn.) Receipts. No. of Item. Date when received. Names of persons from whom received. Evans and Co . John James .... Samuel Jones . . James Evans . . William Williams On what account received. Found in house Balance at bankers Half year's dividend on $1,000 stock. Half year's rent of house from to Bond debt of $300 and interest from Half year's renr/of lease- hold house due Produce of sale of the above leasehold house Amount received. Disbursements. No. of Item. Date when paid or allowed. 19.. Names of persons to whom paid or allowed. James Price Messrs. A, & B.. John George James Price For what purpose paid or allowed. Undertaker's bill for funeral Expenses of Probate — A debt due to him* for medical attendance . . Bond debt of $1,000 and $25 for interest there- on from to Amount paid or allowed. 326 Eorms — Chancery business. Appx. L. No. 12. No. 18. Account of Rents and Profits, being the Account B referred to in No. io. (O. 55, r. 49.) In the Supreme Court. {Title.) This account marked B was produced and shown to A. B., C. D., and E. F., and is the account referred to in their affidavit sworn this day of Before me (to be signed here by Commissioner or officer before whom affidavit sworn.') Receipts. — V On what account and in respect of what part of the Estate received, and when due. No. of Item. Date when received. Names of persons from whom received. John James. Thomas James . John James. Half year's rent for farm in town of , due One quarter year's rent of house at -* , due Same as No. 1, due.- Amount received. D I SBURSEMENTS . No. of Item. Date when paid or allowed. Names of persons, to whom paid or ' allowed. For what purpose paid and allowed. Amount paid or allowed. 1 19.... t Sun Insurance Office Thomas Carpen- ter James Francis One year's insurance S 2 Repairs at John James' 3 City Tax, half year due 10th October. FORMS — CHANCERY BUSINESS. 327 o > ■^3^5 -w 5^ d * a o . Gj -J-> . 2 to hj - •->« l-i a 0) 2 3,d M ft +■ w ■*-* ■•-ciS o u u O *. — ' ointed fits of this C 05 frft W > g did M ►* ea + J w ■£ "> o 4-» w « a d tf the R the re [oi , i: A. B., :ceive stator H O t of to re he te £U » ** J d . . -(-» 8 :q o • U ' ' >lHH ■ cS O O o o ■ • +J ■ ■ rt • ■ 4-> , , • -t , 1 ft O to OJ o M-l XI tn es ni - j ft o •S »a p "o ft •^ a v all ■sua d tn o & oS £ w nl P. a «ja5 a* 3 <4H . °a > o u u "S p o a < a " 5i o.g.6 S-, P u o t-< y tnm ^ Sort 11 p °a" FORMS — CHANCERY BUSINESS. 329 a t/5 ^ o oj cd Si u 3s -o o 3 i o o ,Q O u * :.«.S •§£.S o 9 " St* ■sl° h.t-1 m *J -g o w ^ ,_ a «g-S O o Q o 3 3 3 3 3 *if cd ■ ^.m a; [J +J HH Appx. L. No. 13. 42 330 FORMS — CHANCERY BUSINESS. No. 14. Appx. L. \os. 14, 15. Ordinary Conditions of Sale. (O. 51, r. 7.) Conditions of Sale. 1. No person is to advance less than $ at each bidding. 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 to subscribe his name and address to his bidding, and all written notices and communi- cations 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 deposit) 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 outgoings are to be paid by the vendors. 6. If any error or mis-statement shall appear to have been made in the above particulars, such 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 purchaser, as the case may be, and the amount of such compensation is to be '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 specified, 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 purchaser, and for payment by the purchaser of the deficiency, if any, in the price which may be obtained upon such re-sale and of alj costs and expenses occasioned' by such default. Wo. 15. Affidavit of Resui/t of Sale. (O. 55, r. 49.) In the Supreme Court. I ( Title.) I, A. B., of &c, the person directed to sell the estates comprised in the particulars hereinafter referred to, do make oath and say as follows : — I i. I did at the time and place, in the lots, and subject to the Conditions specified in the particulars and conditions of sale now FORMS— CHANCERY BUSINESS. produced and shown 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 numbers 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 respectively the highest bidders for and became the purchasers of the respective lots the numbers 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 judgment. 6. I have received the sums set forth in the fourth column of the schedule hereto as deposits from the respective purchasers whose names are set forth in the second column of such schedule opposite the said respective sums in respect of their said respective purchase moneys, leaving due in respect of the said purchase moneys the respective sums set forth in the fifth column of the said schedule. 1 The Schedule above referred to 331 Appx. L. No. 15. No. of Lot. Name of Purchaser. Amount of pur- chase money. Amount of deposit received. Amount re- maining due. 332 Appx. L. \<>s. 16, 17. EORMS — CHANCERY BUSINESS. Wo. 16. List of Debts allowed. (O. 55, r. 49.) James v. Jones. List of Debts. No. of Entry of Claim. Names of Creditors. Addresses. Amounts allowed for Principal, In- terest & Costs. Total Amount due 2 James Allen. .. Charles Cohen. John Dennis ] and Owen Thomas J Halifax, in the Coun- ty of Halifax, Sur- geon... Costs Windsor, in the County of Hants, Gentleman, exe- cutor of John Thomas Interest from fifth October, 1882, at Truro, : County of Colchester, Gro- cers, and co-part- $100 00 4 00 2 20 . $106 20 73 40 1 $67 00 4 20 2 20 5 $100 00 5 00 62 00 2 10 2 40 Interest from 16th October, 1882, at Another debt Costs 171 50 Ho. 17. List of Legacies Remaining Unpaid. (O. 55, r. 49.) James v. Jones. List of Legacies. Names of Legatees. Description. Amount of Princi- pal and Interest. Total Amount due. $100 00 7 50 $107 50 5000 480 Interest from ist January, 1880, 5480 Jane, the wife of John 250 00 5000 \ 200 00 14 11 214 11 Total— $ FORMS — CHANCERY BUSINESS. No. 18. 333 Appx. 1. List of Apportionments Among Creditors or Legatees, flos. '8, i»- (O. 55, r. 49.) Apportionment among Creditors (or Legatees.) Names of Creditors (or legatees.) Addresses. Amounts before certified to be due and sub- sequent interest. Totals due. Amounts appor- tioned. Halifax, woollen draper. . . Truro, in the County of Col- chester, Executors of Wm. Young, deceased. $200 oo 17 10 $217 10 217 10 Total-$ $57io 57 40 Thomas Young and Robert Young 200 00 17 10 No. 19. Receiver's Recognizance. (O. 50, r. 16.) , of , of ,, and , of Before our Sovereign Lady the Queen in her Supreme Court of Nova Scotia personally appearing, do acknowledge themselves, and each of them doth acknowledge himself, to owe to Proth- onotary of the said Supreme Court at the sum of , to be paid to the said or his executors, administrators 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 be 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 found. Witness our said Sovereign Lady Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, 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 bound en . .- first giving security he should be appointed receiver of) the rents and profits 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 {ap- proved of the said as a proper person to be such receiver, and hath) approved of the above bounden and as sureties for the said , and hath also approved of the above-written recognizance with the under-written condition as a proper security to be entered into by the 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. 334 FORMS— CHANCERY BUSINESS. , Now the condition of the above-written recognizance is such ppx. . ^hat if the said do and shall duly account for all and every i os. 20, ?4. t k e gum an{ j sums Q j mon ey 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. BfO. 20. Ape [davit Verifying Receiver's' Account. (0.50,1.20.) In the Supreme Court. {Title.) I of , the receiver 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 purporting to be my account of the rents and profits of the real estate and of the outstanding personal estate of , the testator [or intestate] in this cause, 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 knowledge 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 tespect 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 account, 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. Sfo, 24. Form of Ordering Accounts and Inquiries. (O. 32, r. 7.) This Court doth order that the following accounts and inquiry be taken and made, that is to say : 1. An account of the personal estate not specifically bequeathed of A. B., deceased, the testator in the pleadings named, come to the hands of &c, Appx. L. Sfo. 25. FORMS— CHANCERY BUSINESS. 335 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 specific- ally 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 testator'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 incum- brances. 10. An inquiry, what are the priorities of such last-mentioned incumbrance s . And it is ordered that the testatoi'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 adjpurned, 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 trustee 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. 336 FORMS — CHANCERY BUSINESS. .A-iPiPiEisrzDix: nvr. Payment into and out of Court. (O. 22, r. 11.) 1. Where it is directed by the Ccurt or a Judge that money paid into Court shall be 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 Judged and forthwith report his doings in relation to such investment. 2. The dividends, interest, or income derived from securities in which 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 Prothonitaries and by the Accountant 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. INDEX. 337 INDEX TO JUDICATURE ACT AND RULES. Abatement. Abated causes, when struck out of Cause Book Adding parties becoming interested Assignment . . . . , .... Bankruptcy .... .... Certificate of abatement Death ... .! Devolution of estate .... .... Marriage .... .... .... Pleas or defence in, abolished .... See also, Change of Parties by Death, &c. . . . Abolished Proceedings. Abatement, pleas or defence in, abolished Audita Querela abolished . . : . Cross-action where counter-claim will a Vail . . Cross-appeal .... .... .... .... ... Defectiveness of actions .... .... .... Demurrers .... .... .... .... Exceptions to affidavits in answer . . .... Injunction, to restrain proceedings at law writ of. . .... .... .... Local venue .... .... .... .... ... Mandamus, writ of . . .... .... .... Merger by operation of law .... .... New assignments .... .... .... Office of Equity Judge . . .... .... Pleading, rules to be used . . .... .... •Prohibition to restrain proceedings at law .... Rules nisi in certain cases . . .... .... motions for new trials .... .... .... Showing cause in certain cases .... Subpoena for costs .... .... .... .... .... Terms as divisions of legal year, but not as limits of time. Writ of Injunction .... .... .... mandamus .... .... Absent or Absconding Debtors. Affidavit on suing out attachment, what to state . . .... .... 137 summoning agent, what to state ... .... .... .... 139 by party objecting to attachment, what to state . . .... 138 Agent ; affidavit necessary before issue of summons against. . 139 appearance and declaration to be filed and served by .... 1 139 by agent or trustee, when to be made .... .... 139 defendant within six months .... .... 138 of, for personal examination when required. . .139-140 entitled to commission, costs and fees, in certain cases . . .139-140 examination of, before whom and when .... .... .... 139 execution against granted by Court or Judge .... .... 140-141 goods and credits in hands of, and choses in action bound by service of process on , . , . . . . . .... , . . . 139 PAGE. ■ ■ • ■ 53 51-52 .... 51 5i ■ • • • 53 5i .... 51 51 .... (65 51-53 65 124 56 184 51 7i 81 6 149 92 159 7 70 2 56 6 156 114 156 128 9 149 159 338 INDEX. Absent or Absconding Debtors. — Continued. Agent; issue raised by, trial of.. .... .... .... •••■ 140 may put in special bail .... .... .... ■ ■ • ■ • • ■' ■ 141 not appearing, may be proceeded against for contempt 140 third person, claim of . . .... ' .... 140 determination of ... . .... • ■ ■ • 140 Amount of levy . • • • • ■ • ■ • • • • • • • ■ • ■ 137 Appearance, by agent or trustee, -when to be made, &c . . 139 in default of, after six months, procedure . . .... 138 Appraisement of goods * 137 Attachment .... .... .... .... . ■ ■ ■ ■ ■ ■ ■ 137 application to set aside .... .... • • ■ • ■ • 138 court may direct trial, &c .... .... 138 set aside to have no other effect in suit .... . . 138 Bail, special, to relieve property . . .... .... .... 141 Costs, amount for which sheriff to levy under attachment ... . . 137 court or judge may direct security to be given for. . 138 of agent and just allowance to be allowed 139-140 when agent liable for .... .... ... .... 140 Execution, plaintiff to give security before issue of, &c .... 141 when agent entitled to sue out against plaintiff 139-140 Forms 141-282 Goods, appraisement to be made when exhibited to sheriff .... 137 in agent's hands, when bound by service of process.. .... 139 perishable, in discretion of judge, when may be sold ,. . . 137-138 Judgment may be postponed in certain cases 139 Rehearing, defendant entitled to within three years .... .... . 141 Trial, new, may be ordered by judge, if dissatisfied . . .... .... 139 none without attachment or agent's admission .... .... 138-139 question of fact arising on inquiry .... .... .... 141 See Foreign Companies .... .... .... .... . . . : 141-143 Account (Action for.) Affidavit in support of summons .... .... .... .... . . .,. 39 Application for an account .... .... .... 39 Indorsement of writ with claim for . . .... .... 24 Judgment for, when to be brought into chambers .... .... 170-171 Order for account; Form, Appendix L, No. 24 .... 89-334 Summons in order for account . . .... .... .... .... 39 Stated, how pleaded .... .... . . ... 62 Accounts. Allowances to be made . . .... .... .... .... 89 Creditors, advertisement for .... .... .... 173, 176 Computation of interest generally .... .... .... .... 176 Forms .... .... .... .... .... .... .... 322-329 Form of judgment for . . .... .... .... .... .... 89, 334 How taken and evidence of . . .... .... .... .... .... 188 Interest in cases of legacies .... .... .... .... 176 generally . . .... .... .... .... 176 where debt does not bear interest .... 176 Judgment and inquiries in case of personal property .... .... 89 Order, notwithstanding further relief sought .... ..... 88 Proceedings if delayed .... .... .... . . . ." .... 89-90 at chambers .... .... .... .... .... 172 Service of notice of judgment or order .... .... .... 47 Summons to proceed .... .... .... .... 170, 172 Surcharging .... .... .... .... .... 89 Time for bringing in .... .... .... 170 Verification by affidavit and form .... .... 89-322 Vouchers .... .... .... .... 89 See Issues, Inquiries and A cc °unts . . .... .... 88-90 INDEX. . 339 Accounts (Actions Involving). Reference under statutory proceedings relating to arbitration of damages, matter of account .... .... Trial of without jury .... .... . . . „ ., . . . Accountant of the Supreme Court. Duties of in respect to moneys paid into and out of Court Action. Abatement of .... .... .... .... .... Administration. See Parties . Declaratory .... .... Default . . ' ... Definition of .... .... Discontinuance . . .... For what proceedings substituted Form and .commencement of . Joinder of causes of action . . Of mandamus . . .... Stay of To perpetuate testimony Action for Land 1 . Appearance to .... by landlord .... by person not named in writ limiting defence form . . . Execution in ... . .... when it may issue Joining claims in .... .... Judgment in default of appearance . . pleading Service of writ in vacant possession Specially indorsed writ in certain landlord and tenant cases Summary judgment where writ specially indorsed Title need not be pleaded in certain cases .... .... Writ of possession ; form ... .... .... Additional Rules. Provision as to making.. .... .... .... ... Address eor Service. Indorsement on writ .... .... .... .... Of plaintiff suing in person .... .... .... Of solicitor. . .... .... .... .... On appearance of defendant or his solicitor .... .... Where no writ issued .... .... .... .... Adjournment. From chambers to court .... .... .... For further consideration .... .... .... .... In administrations .... .... .... .... Of hearing of motion or application . . .... reference .... .... ■ • • ■ • • • ■ trial .... .... .... • • ■ ■ See Trial. Administration. Advertisements for creditors and claimants .... .... Appearance by person not a party .... ... Applications for administrations .... .... 95 1 02 94 336 51 45 7i 32 73 1 72 21 21 ••53 54 159 6 108, 109 34 3i 3' -32 32 32- 214 119 122 53 54 34 74 28 23 146, 37 65 2S2 18 . .. 24 24 . .. 24 30. 31 ... 24 161 ioo, IOI 175 .... 157 IOO • • 97, 98 173, 176 47, 48 166,167 340 * INDEX. Adm inisTrati on. — Continued . Appointment of person to represent estate . . .... .... 48 Conduct of proceedings .... .... .... . . 47 Control of trustees .... .... .... .... 169 Determination of specific questions without administration .... 166,167 Evidence on summons without action .... 168 Forms of statement of claim . . .... .... .... . . 233 Forms of defence . .... .... .... .... 255 Judgment on summons without action . . .... . . 168 Liberty to attend without order . . .... .... 47 May apply to court for directions or to judge 169 No administration unless necessary .... .... 169 Persons to be served with originating summons .... 167, 168 Proceedings in chancery chambers in insolvent estates and intestacy 166 Sale in, conduct of .... .... .... 149 Service on certain parties dispensed with .. .... ..45,46 Special directions as to judgment in chancery chambers . . 168 Summons and order for administration in chancery chambers 166, 168 See also, Executor, Accounts, Originating Summons, Parties, Trusts, Chambers. Administrator. Actions by' or against .... .... .... 41 Affidavits of claims .... .... .... .... .... 174 Denial of representative capacity .... .... .... .... 63 . Joining claims by or against .... .... .... .... .... 54 Admissions. By pleading or in writing . . .... .... .... 86 Not specifically denying in pleading .... .... 58 Costs when notice comprises documents unnecessary .... 87, 88 Evidence of admission of documents .... .... .... 87 1 facts 87 notice to produce documents.. 87 Forms .... . . : . .... .... .... 226, 227 Judgment on admissions .... .... .... 87 Notice to admits facts .... .... .... 86, 87, 227 documents 86, 226 produce documents .... .... .... 87, 225. Opponent's statements . . .... .... .... .... 86 Advert i sement . Substituted service by .... 27", 171-172 Advertisements for Creditors and Claimants 173-176 Adjournments for directions .... .... .... .... jyr Affidavits in certain cases to be made by administrators or executors may be postponed .... .... .... .... j_75 Allowed claims, list of .... .... .... .... .... ^5 Claim coming in late ... .... .... .... .... .... r yc jyg Costs to creditors .... .... .... .... .... . ' T ,fi Creditor need not make affidavit .... attend except to produce security .... 174 Executor or administrator to examine claims Forms .... .... .... .... .... Judge, authority of .... .... .... Notice, how given ... .... .... .... to creditors of result .... Penalty on creditors for non-compliance .... Peremptory advertisement .... .... how prepared 173 Persons not attending on advertisement excluded 173 To produce security and deeds and documents on notice 174 174 3i7> 3 l8 175 176 175 .... 174 173 What to contain 74 INDEX. 341 Affidavits and Depositions. Admissibility of at trial to prove particular facts Alterations and interlineations in Answer to interrogatories .... .... .... Form of, Appendix B., No. Applications for money in court Argumentative matter in Attachment of debts, form of Authority to administer oaths . . . Before whom to be sworn .... By receiver, verifying account . . . Form of, No. 20, Appendix I<. . Certified copy may be used . Corporation aggregate, required to produce documents, who make affidavit Commissioner's duty to express time and place of taking Compelling attendance Cross-examination on ... . .... of deponents .... Depositions, how taken and signed return and filing of .... Description of deponent Defects in title or jurat, &c, not fatal Defendant to serve list of affidavits Discovery of documents .... Form of No. 8, Appendix B Fxhibit, alterations in .... not to be annexed title of certificate on Ex parte order. . Filed too late Filing of in chambers ... Garnishee order, for .... Hearsay .... .... How sworn . . .... .... abroad .... intituled . .... Illiterate deponents .... In reply .... .... .... Interlineation, and alterations Interpleader Form of ... . Intituling Irregularity in . . Jurat where several deponents Leave to serve out of jurisdiction .... May not be sworn before certain persons May be re-used .... .... .... Mode of drawing .... .... .... Must be filed Notice of intention to use affidavit . . . cross-examination of deponent . trial after affidavits closed, &c Notices, how to be received in evidence . . On application for account . . — motions generally ... Plaintiff to file and serve list , Reply Scandalous matter may be struck out Service ■ • • ■ • • ■ • before whom sworn .... what to contain ■ .... Several deponents ... Showing cause . . .... may 86 no "3 109 113 i°5 106 no in "3 81 225 112 112 112 112 112 161 129 no no no 109 in 112, 113 107, 342 INDEX. Affidavits and Depositions.— Continued. Signature of deponent necessary- Substituted service .... Summons, service of .... Subpoena, service of ... . .... Trial on Under Order XIV. , r. I Verifying accounts Form of Verifying admissions. .... Form of Writ of summons, service of Written or printed book-wise .... See Evidence, and also Discovery and Inspection Affirmation. Oath includes .... ... • • • Agf,nT> See Absconding Debtor . . .... .... Foreign Companies .... .... Service of writ of summons on .... .... . I- Agreement. Of issues of fact without pleadings .... Amendment .... .... .... Appeal may be amended Application for leave .... By court or judge .... By court of Appeal. . .... Clerical errors .... Costs .... .... .... Date of order .... .... Delivery of amended pleadings Disallowance of .... General power of ... . .... Indorsement on writ .... In case of non-compliance with Leave to plead or amend after Marking amended pleadings Misjoinder and non-joinder Non -joinder and misjoinder. . Of parties .... .... statement of claim, when new defendant added Order for, need not be drawn up Pleadings . . .... .... Power of court to amend on appeal Powers of judges to amend Rules . . Statement of claim .... .... Time limited for .... .... With leave by court or judge .... Without leave .... .... ,Writ and service .... .... See Pleading .... Answer. To be direct and full .... .... lies no 28 28 108 113 37 89 322 87 225 28 139 141 H3 191 • 76-77 77 ... 76 77 77, 187 74 77 77 77 76 77 76 207 76 77 42 42 51 43 158 76 184 45 43 77 77 76 43 59 Answer to Interrogatories. Any one or more used at trial without putting in others .... .... 84 Exceptions to interrogatories not to be taken, but sufficiency to be determined by court . . .... . . , . .... 81 Form of 80, 224 INDEX. 343 Answer to Interrogatories. — Continued. Further answer ordered either by affidavit or viva voce . . If insufficient further answer may be ordered Judge may order other answers at trial than >those used . . To be by affidavit .... filed within ten days .... .... .... .... See also Interrogatories .... .... .... Appeals. Annual session of court of appeal at Halifax, and when held Appeal cases by whom printed .... ... .... .... Application for new trial, where made . . to be by notice of motion .... "Case," what the term includes .... Case, by whom printed .... .... .... certifying of .... .... .... filing of .... .... .... .... Causes from same county to be grouped . . Costs .... .... .... .... Court to be always open at Halifax .... powers of to amend on .... .... Cross-appeals . . .... .... .... time of, from filial judgment and interlocutory orde Entry of ... . .... .... .... .... .... .... form of . . .... .... Entries of causes for arguments .... .... Entering cause, consequence of not doing so Evidence, how brought up .... .... Ex parte applications .... .... .... From judge at chambers .... .... Further evidence .... .... .... Inferences, &c . . .... .... .... Interlocutory order, not appealed from, does not bar court. Interpleader .... .... .... .... Interest to be allowed where execution stayed .... Judge who tried action with jury not to sit on hearing of appeal . Judgment, where judgment wrongly entered on findings .... Limitation of Rules I, 2, 3, 4, 5, 6, 9, 10; 11 and 13, of Order I/VII Minutes of trial, when unnecessary to file .... .... .... New trial may be ordered .... .... .... Notice, on whom to be served .... .... .... copy of to be left with prothonotary at Halifax may be amended at any time .... .... to be served within ten days .... .... Part of judgment or order may be appealed from .... Powers of court as to further evidence, inferences, &c Printing of . . .... .... .... .... .... Rules for the hearing of appeals to be made by court Referee, appeal from .... .... .... Security or deposit to be made or given Stamp on case for .... . • . ' .... Stay of proceedings .... .... .... Subjects of appeal. . .... .... .... Substitution of judge .... .... . .... Time for appeal .... . • ■ ■ ■ ■ • • in ex parte applications .... from finding of facts by judge .... To be by rehearing and after notice.of motion . When findings wrongly entered causes and matters for argument entered Appearance. , Address for service required .... .... consequence of not giving .... .... /.. Si 81 84 So 80 189 ... 184 186 77, 184 191- 114, 344 INDEX. Appearance. — Continued . After time expired .... .... .... .... .... By landlord in action to recover lands .... • • • • .... partners .... .... .... .... .... person sued under firm name .... .... . . ,. . .... not named as defendant in action to recover lands several defendants .... .... .... .... .... third party brought in by notice .... .... as defendant to counter-claim claimants in interpleader . , . . .... .... County for appearance to be named in memorandum on writ Default of. See Default ..... .... .... , solicitor in entering after undertaking.. Defective, no address, not receivable .... .... Defendant appearing in person to give address one or more of several appearing .... , Form of ... . .... .... ■ • ■ • How entered .... .... .... .... .... In actions to recover lands . . .... .... .... .... for claim for damages and liquidated demand . . mesne profits and damages .... .... .... cases of default hot provided for, action to proceed .... Limited in action for land ... .... .... .... .... notice to be given .... .... .... ■'.... form of .... .... .... .... .... May be entered any time before judgment .... .... Memorandum of appearance to be entered in Cause Book .... form of ... . .... .... on writ, county for appearance to be named in Notice of, to plaintiff. .. . .... ' .... .... form of .... .... .... .... .... .... how given .... .... ... .... .... of motion to set aside proceedings before .... .... One person sued in firm name ... .... .... .... Partners, appearance by ... . .... .... ..... Place for appearance to be named in memorandum subscribed Set aside where address illusory or fictitious .... .... Several defendants in one memo .... .... .... .... Solicitor appearing to give address .... .... .... not appearing after undertaking, may be attached .... Third party, by .... .... .... .... '. . . . Time for .... .... .... .... ... .... .... when writ served out of jurisdiction .... " .... To originating summons .... ... ... .... .... Where entered .... .... .... .... 31 .... 31 144 .... 145 31. 32 •■•31.33 49 .... 64 180 .... 30 32 .... 31 31 .... 30 33 31. 213 31 31. 34 34 .... 34 36 .... 32 32 214 31 3i 213 ... 30 30 3°. 213 30 ... 32 145 144 3° 31 31 3° 31 49 31 29 159 3° 32 31 writ Application to Court. How made . . ... .... .... .... Arbitrator and Arbitration. Award, time for enforcing ... .... .... Compulsory reference to .... .... Costs on award . . .... .... .... .... Form of order of reference ... .... .... To direct how judgment to be entered .... .... Setting Aside Awatd .... .... .... .... Abolition of rules nisi. . . .... .... Appeal on question of law in confpulsory reference. Notice of motion .... .... .... .... Argument. Sessions for .... .... .... .... Entering special case for .... .... .... .... 156 . . . . ... i^q. 95 199 297 115 115 156 .: 186 . . . . .... 156 187 9 1 INDEX. 345 Argument. — Continued. . Appeal, causes and matters for . consequence of not entering .... .... Printing evidence and documents for ... Quorum of judges for. .. . .... .... Special session for . . .... .... Arrest op Defendant before Finai, Judgment (.Capias.) Application by defendant for relief Arrest of defendant about to leave the Province .... >. . form of order for .... .... .... Bond with, two sufficient sureties may be given by defendant form of ... . .... .... .... .... to be returned with order .... .... .... Concurrent orders for arrest .... . . . .' .... .... Costs of arrest ..... .... .... .... .... Discharge of defendant if plaintiff does not proceed to trial Forms of order for arrest and of bond .... .... Indigent Debtors' Act, relief under .... .... .... Misnomer ... ... .... .... .... .... Security by defendant. . . .... . . '. . .... .... subject to order of court .... Sheriff's duty sureties when allowed to render in action upon bond when to justify .... .... .... .... Arrest of Witness On refusal of to attend on subpoena .... .... .... Form of warrant for. .... .... .... .... Assessment of Damages. Need not be pleaded to . . .... .... .... .... On claim for detention of goods and pecuniary damages Reference to, order of court where matter of calculation . . To what time damages to be assessed .... .... Writ of inquiry as to ... . .... .... .... .... Assessors. Allowances to accountants, &c. . . .... ... . . : . Court or judge may call in aid of ... . .... .... In Chancery chambers • . ... .... .... .... Judge sitting with .... .... .... 1 Remuneration of ... .... .... .... Trials, with . . .... .... .... Assignment. Debtor may compel interpleader .... .... .... Of choses in action' conveys right to sue interest pendente lite ■ ■ .... .... . '■ ■ . securities to . surety .... .... .... ;..* Attachment of Debts. See Execution Affidavit in support of order .... form of .... .... Costs to be in discretion of judge .... Disputed liability ... .... .... Discharge of garnishee . . ... .... Debt Attachment Book .... .... Effect of garnishee order .... .... Execution against garnishee, .... Form of Garnishee Order (attaching debt ) 44 ■ ' ■ • (absolute ) PAGE . . 188-9 190 . .- 190 187 . . . ,187 131, 134 131 131 131. 299 132 299 133 132 132 133 299 !33 133 132 132 132 134 133 102 102 102, 280 63 ■ • • • 33 102 102 .101, 284 204 . . . . 18 170 ... 94 18 94, 102 ft < 8 7 5i 8 129 2 3 x 131 130 130 130 129 129 305 306, 346 INDEX. Attachment of Debts. — Continued. Issue tried if garnishee disputes liability ; Payment, effect of .. . .... .... . -. Proceedings of third party interested in debt Order for. . . .... .... forms ... 3 .... .... Record of attachments .... Service of order \ .... .... Third persons, order for to appear . . decision as to .... PAGE 13° • 13° 130 . . 129 305-6 • ■ 130 129 . . 130 130 Attachment of Goods. See Absent or Absconding Debtor and Suits against Foreign Com- panies .... '■-.•■' •' ■ ■ ■ ■ ■ • ■ • • • ■ 137-141 Attachment of Person. See Execution, Directors or officers of corporation, against. . . .... ' .... .... 124 Discovery may be enforced by . . .... .... .... .... 84 Effect of attachment .... .... .... .... 129 Form of writ .... .... .... .... ... .... .... 280 Leave to issue writ ... .... .... .... .... .... .... 129 Notice of motion for , ... .... .... ... .... .... 156 Rule nisi in application for abolished .... .... .... .... 156 Referee cannot enforce order by .... .... .-. . . ... 100 Solicitor undertaking to appear, and not appearing ... • ■ • • , • • • • 3 1 neglecting to give notice of order for interrogatories or discovery 84 What judgments enforced-by . ... . . . . . '., .,. .... .... 120, 124 Attachment of Wages . . attendance. > In Chancery chambers . . . .' ... .... .... Attorneys. Definition of ... . .... .... .... .... .... Audita Querela. 1 Abolished, application in lieu of ... . .... Awards. - Costs on .... .... .... .... .... .... ■ Questions may be referred in certain cases. . . .... Time for enforcing . . . . .... ■ ■ ■ ■ , • • ■ ■ Who shall be official referees .... . . . . .... Baie. See Arrest of Defendant before final judgment (capias) ... Bankers' Books. ' Inspection of, at place of custody. ... .... ,".... Notice to inspect, form of .... .... .... .... Bankruptcy. Party to action becoming bankrupt, no abatement. ... Trustee in bankruptcy*, joinder of claims by .... .... form of claim .... .... BieES of Exchange. Defence in actions on .... .... Joinder of parties in actions on .... .... Special indorsement in actions on ... . A . . . . .... forms of. . . . .... 130 172, 173 ( 208 .... 124 199 20 123 20 i3i-!34 82 226 51 54 222 .... 63 40 • • ■ • 23 239-241 index.- 347 PAGE 130 88 25 82 192 Books. Attachment-Book '■ Books of account may be prima facie evidence Bankers' books, inspection of 82 Cause Book .... Inspection, of books of account .... See Officers and their Documents ... Business. ' Applications and proceedings at chambers 159-162 Chancery or equity chambers ; 165-179 Distribution of, and sittings ' q_ io Of the prothonotary's office 192-194 Capias. See Arrest of Defendant before Final Judgment 131 Case. Stated by referee .... .... .... .... .... 100 See Special Case .... .... .... .... .... 90-92 "Cause."- Definition of ... . .... .... .... .... .... .... r Causes. Distribution of .... .... .... .... .... 10 Jury, causes tried first 15, 16 tist of jury and non-jury made up 15, 96 Prothonotary at Halifax to group causes from same counties .... 188 Ten causes, not more, to be called in one court room 11 Cause-Book. Abated cause to be struck out of .... .... .... .... 53 Entry of actions in . . .... .... .... .... ... 25 dates in .... .... .... .... 193 Cause oe Action. Amendment of indorsement as to . . . . .... .... .... 76 Arising out of the jurisdiction .... .... .... 28 In actions for land, when may be joined .... .... .... .... 53 Joinder of causes of action .... .... . . . . ■ .... ... 53-54 Survival of, change or addition of parties on .... .... . . .51-53 failure of party entitled, to proceed upon .... .... 52 Certiorari. Allowance of, by commissioners .... .... .... .... .... 194 Form of writ to County Court ... .... .... .... .... 285 Form of (general) • • • • • ■ • ■ .... .... ... 285 Cestui Que Trust. Judgment for or against, in administration .... .... 46 Right of, against trustees not barred by statute of limitations .... 7 Chambers. Adjournment for further consideration .. . .... .'.., .... 161 into court .... .... .... .... .... , . . . . 161 from court to chambers ... . .... .... .... 161 Affidavits and evidence in ... . .... .... .... .... .... 112 to be filed .... .... .... .... .... 161 Appeal from judge at chambers .... .... .... .... 161, 183 Applications at, to be by. notice or summons .... ... .... 159 for payment and transfer out of Court . . .... . . . , 159 Costs at i 201,202 - of neglect to attend • • ■ ■ . ■ • . • • • • • • • • • .... ... 201 348 index. Chambers. — Continued. PAGE Ex parte applications .... .... .... .... .... .... ' 159 Form of summons other than originating- summons . . 161, 288 order ... .... .... .... .... ... .... 162, 296 summons for directions pursuant to Order XXIX . . 78, 290' order for directions pursuant to Order XXIX .... 78, 291 Further consideration •• . .... .... .... .... .... 179 Judge for.... 162 Ivist of summonses .... .... .... .... .... .... 161 Matters not disposed of ... . .... . . .... .... .... 161 Matter, more than one included .... ... v . . . . 161 not to be re-opened . . .... .... .... .... .... 160 Orders, drawing up of dispensed withHn certain cases. ... .... 158 Order of business .... .... .... .... .... .... .... 162 Originating 'summons ... .... .... .... .... .... 159, 162 Persons summoned failing to attend ... .... .... .... 160 Re-consideration where judge has proceeded ex parte .... .... 160 Summons, see service of orders, &c, ...... 205, 200 • alteration of .... . . . , .... .... .... 159 originating 159,162 failure to attend on .... .... .... .... .... 160 forms 288, 289 for directions in . . . .... .... .... .... 78, 295 summary judgment .... .... .... .... 137 how issued .... .... .... .... .... 161 hearing of ... . .... .... .... .... 162 service of . .... .... • • • • .... .... 161 Chambers in Relation to Chancery (or Equity)' Matters. Administrations and trusts. . .... .... .... ..... 166-170 applications for . . .' . .... .... 167 none unless necessary .... .... .... 169 when no accounts have been rendered . . .... 169 Advertisements for creditors and claimants . . .... .... 173-176 for necessary parties .... .... .... 172 form and contents of, (Appendix I,, 2 and 3) 174, 317, 318 preparation and insertion of .... ..,." .... 173 Affidavit need not be made by creditor on proof of claim unless notified .... .... .... .... .... .... 174 Applications for administration . . .... .... .... .... 167 Attendance of parties, &c, directions as to. . .... 172 Business at .... .... .... .... .... '.„... .... 165 Claims, examination and verification of lists of .... 174 forms. (No. 5 and 6, Appendix L.) 319 Claims, adjournment of hearing .... .... .... .... 17^. 319 allowance or disallowance of ... . .... .... .... 175 allowed, list of made and filed .... .... .... .... 176 notice of those allowed and disputed .... .... .... 175 form of notice. (Nos. 7 and 8, Appendix I,.) . . 320,321 Costs in .... .;. .... 170, 172, 174, 176 Deed, settling of .... .... .... .... .... .... 171 Delay, consequence of .... .... .... .... .... jy Directions for proceedings .... .... .... .... .... jyi advertisement for necessary parties .... 172 to serve others .... .... .... .... ... jg8 Distribution of assets ........ .... .... 166 Documents, discovery and production of .... .... j66 Entry of summons.. . ... .... .... .... .... _ r y 2 Evidence on application .... .... .... ' jgg Exclusion of persons not claiming within time specified 173 175 Expert, assistance of ... . . . . .' .... .... .... 170 Form of order on summons to proceed .... .... .... 173 Forms for equity business. Appendix 1,, Nos. 10-20'. , . . .... 322, 334 J / INDEX. 349 Chambers in Relation to Chancery (or Equity) Matters Further consideration .... . ; ' . , form of summons for .... Further notices Generally what matters disposed of Guardian ad litem . . .... .... Guardianship of infants Infant, application for guardianship Interest, rate of on legacies, and where debt doesnotbear Tudgment . . i time for bringing in directing accounts List of matters to be taken in Managemeut and sale of property Nature of business to be taken in Notice of judgment, service of dispensed with absentparties bound .. Notices, service of by post .... .... Order, how drawn up ... Originating summonses in administrations and trusts- . - ■ Originating summons, how prepared and issued forms of '. Payment or transfer of money .... Peremptory advertisements ' .... . . . : Power of executor not prejudiced by application Proceedings on summons to proceed Proceedings relating to infants .... Proceedings relatingto creditors and claimants Proof of claim, when required Referees in Representation of party by distinct solicitor Securities, production of on notice Summons-book .... '. ... Summons to proceed Service of originating summons • ■ ■ • ..... Settlement of deed, procedure on Solicitor, attendance of distinct Special directions Summons requiring attendance of witness — form — Summons to proceed ' Time to plead , — Trustees may apply for special directions Change of Parties by Death, Devolution, Assignment, &c Abatement .... .... .... .... Abated cause, striking out .... .... .... .... Adding parties after final judgment .... .... Certificate of abatement .... .... .... .... Continuance by or against parties .... .... .... Defendant compelling plaintiff to proceed .... .... Effect of death, marriage or bankruptcy pendente lite Effect of assignment or devolution pendente lite ' .... Ex parte application to add parties. . . .... No abatement . . Order to be served on interested parties called on ... . Order on appointment of guardian ad litem .... .... Parties becoming interested to have notice . . .... Persons under disability, application by Power to add parties .... • ■ • ■ , • ■ • • • • ■ ■ Successor in title or estate to be new party , . . . .... Service and effect of order calling on parties interested Varying Order . . .... .... .... .... .... Cheque. ■Writ may be specially indorsed in action on ... PAGE Continued. 179 179 171, 172 .... 166, 167 .... 170, 166 .... 170 176 .... 168 .... 170 165, 166 166 165, 166 171 171 176 173 c6o. 162 159 288, 289 166 159. ' 173 169 172 170 173-176 176 177, 178 173 174 172 172 159, 160 ■ 171 •• 173 > 168 ■• 317 172 • ■ 166 169 51-53 •■ 51 53 .. 123 53 •■ 5i 52 •• 51 51 ■• 5i 51 ■• 52 52 • 51 52 • 51 5i •• 52 52 .. 23 350 INDEX. Chief Justice. To have precedence among the judges . . .... Vacancy or absence provided for .... Choses in Action. Assignment of . . .... .... .... conveys right to sue .... .... Disputed by assignor or person claiming under him Christmas Day. Not counted in limited time .... Circuits and Sittings. ' i Duration of circuit sittings .... .... Extra or summer terms .... .... Five circuits in province .... Halifax sittings . . .... .... Lists of jury and non-jury causes to be made up PAGE 3 ... 208 194 11-14 •■ 13 II 10 15 CtAIM. Counter claim .... .... Indorsement of claim .... .... .... forms of .... ... Joinder of causes of action .... .... Precise statement of, not essential Special indorsement of, when may be made form of .... Statement of ... . To be indorsed on writ Where action is in a representative capacity forms of See Defence and counter-claim . . .... Parties .... .... .... .... Statement of claim .... .... Third party procedure Writ of Summons, &c . . .... .... Clerical Errors. Amendment of . . . .... ..... .... Ci,ose of Pleadings. Effect of non-delivery of a reply .... .... on time for notice of trial .... .... .... On simple joinder of issue ... .... .... .... Rules as to .... .... .... .... .... CO-DEFENDANT. Contribution or indemnity from, rules as to. . .... Co-heir. Party to administration proceedings .... .... .... Comm ISSIONERS. Affidavits sworn before .... .... .... .... Allowance of certiorari by .... Authority to administer oaths, .... .... examine witnesses, aged, infirm, &c Duty on taking affidavits to state time and place of swearing Title of certificate on exhibits See Affidavits and Depositions, &c. . . .... .... /64 22, 23 216,. 222 53i 54 22 23 216 61 22 23 222 63-65 39-51 . 61, 62 48-51 22 77 ••• 75 95 ... 70 69, 70 50 45. 46 no 194 .... 194 194 no 112 109-112 INDEX. 351 Commissions to Examine ,Witnesses. Application for, on summons for directions Commissioner's oath, form of . . . . Depositions, opening .... setting aside .... Form of commission .... .... Forms of order for .... .... Power to order .... .... .... Request in place of .... .... forms .... .... .... Committee of Lunatic. Action may be defended by Common Law. , , All legal rights to be recognized .... .... .... Equity to prevail in case of conflict .... .... .... General provisions as to administration of law and equity . Rtjjes of law upon certain points .... .... .... Company or Corporation. Discovery in aid of execution against .... .... Enforcement of judgment or order against .... .... Execution against shareholders .... .... .... Foreign, suits against .... .... .... .... Interrogatories to .... .... .... .... .... Service of writ upon .... .... .... .... Concurrent Writs or Orders. Issue of .... .... .... .... Of capias .... .... .... .... .... Renewal .... .... .... .... .... .... To be issued within twelve months . . .... .... Within and without jurisdiction .... .... .... Conditions Precedent. Averment of, implied in pleading. ... .... Conduct op Action. By parties to administration suits not directed to attend .... Confession pf Defence. Form of judgment for plaintiff's costs, after '.'... .... Howpleaded form of pleading ... • • • - Consent. Enlarging time by . . ■ ■ ■ ■ For infant, by next friend or guardian . . Issues of fact stated by Of person to be added as plaintiff Of new trustee, how proved .... To trial by affidavit Consideration. See Further Consideration Contempt of Court. Disobedience to order for attendance of witness is Referee may not commit for • - • • • • • ■ PAGE • 78 287 . I06 106 . 286 302 I04 104 303, 304 43 301 6 9 4-9 4-9 . . . . 127 124 . ...^123 141-143 80 .... 27 25 132 26 25 25 58 47 173 271 7i 224 •• 195 44 .91-92 42 • • 112 113 179 104 104 352 INDEX. Continuance. page Absence of material witness . • . ■ . . ■ '- What affidavit must state .... . . v Contract. Pleading to allegation of Defendant abroad, breach within the jurisdiction ... Joinders of parties in actions on Contribution. Notice to person liable to contribute to or indemnify defendant Copies. Certified copies admissible in evidence to the same extent as 97 98 •• 59 29 ■39. 4o 48 originals . . Taking copies on inspection Corporations. Aggregate required to produce documents Who may make affidavit .... See Company. Costs. Accountants .... .... ... Action for .... .... .... Administrator Affidavits, allowance incase of .. in answer to interrogatories Agency correspondence . . Amendment defendants in case of Appearance, unnecessary Attendance, useless Award C6pies . . Defendants, one .to another Delivering documents . . ' Depriving of, reasons to be given . . . Discretionary . . ... - Distribution, costs in case of Evidence taxed bill conclusive Executor, &c, out of fund Extension of time . . Figures , Guardian ad litem, solicitor as Improperly incurred, vexatious, &c. Inferior court, cause from .... Inquiries as to legacies, &c Inspection of documents Interlocutory . . Jury, on trial with . . Lien , not to affect set-off ...'-• Mortgagee . . .... Neglect, &c,. of solicitor Notices not required when no appearance Perusals Pleadings, copies of .... .... separately by same solicitor . Prothonotary, taxation by to certify bill to give items 103 82 86 86 95-204 204 199 196 200 200 201 203 203 202 201 199 201 204 200 200 195 198 201 199 196 202 201 198 , 203 196 198 201 199 196 198 196 196 199 199 200 200 201 199 199 199 201 ^ INDEX. \ Costs.— Continued . Retaxation . . ... . , judge on.. .... * •'" Security for amount, &c, of bond for Set-off "....""... not affected by lien Several issues .. ' Tariff .. ""....""..."" - Taxation, when final , ' .'...'" ' ' " ' Taxed bill conclusive . . Tender Unsuccessful claim, costs of not payable out of estate " Unprovided cases .... Coun^er-Ci,aim. See Third Party ; Pleading ; Defence. Against plaintiff and third parties .,. . any person connected with subject-matter ... plaintiff .... stranger .... . . J. Any right or claim may form counter-claim Amendment of . . .... .... Appearance to by new party . . .,. form of x entry of .... .... Balance of counter-claim, judgment for .... Counter-claim not stayed by discontinuance, &c Defence to contain settlement of, if any .... arising after pleadings may be used • Effect same as cross-action ... .... Equitable, may -be set up ' Exclusion of counter-claim on application of plaintiff Form ... i Further defence to matters arising, pending i . . . Misjoinder of plaintiff. . . .... .... Payment into court in satisfaction of, by plaintiff Plaintiff's reply to be reply to counter-claim .... .... Reply by party thereto .... . .'. . .... .... to, subject to rules of defence .... . . . . .... Specific statement that defence is by way of counter-claim . • Striking out on leave .... .... .... .... .... for trial by separate action .... .... Title of counter-claim when third parties .... .... Withdrawing on leave .... .... .... .... County Courts and Judges. Order to remove judgment from. .... .... .... To be official referees .... .... .... .... When judge of may hold sittings .... .... .... Writ of certiorari to ; form of .... .... .... 353 PAGE 204 204 196 197 .... 197 202 .... 198 196 199, 200 199 .... 199 197 .... 198 203 64 5 5 5 56 76 64 215 65 65 56 70, 71 56 5 56, 64 263 70 40 68 56 64 70 64 72 64 64 72 299 20 15 285 - Courts. Divorce and matrimonial causes, jiidge of Supreme Court may be judge of , .... 2 Equity court included in supreme court ' 3 One supreme court of judicature for Nova Scotia. . 2 Supreme court, powers of what to include 4 Vice Admiralty, judge of supreme court may be judge of . . 2 Creditors. . Form of general indorsement by creditor to administer estate 45 Rules as to creditors and claimants in chancery chambers 216 173-176 354 INDEX. Criminal,. page Jurisdiction of judges to extend to criminal as well as civil matters 4 Rules not to affect the procedure or practice in criminal pro- ceedings .'.'■ • s ■ '• • • 206 Cross- Appeals. Consequences of omission to give notice 184 If respondent intends upon hearing of appeal to contend that the decision of court below should be varied, he shall give notice of such intention to all parties affected . . ■ ■ ■ ■■ 184 Notice of motion by way of cross appeal unnecessary 184 See Appeal. Notice of Motion on Appeal. Evidence in Court of Appeal. Cross-Examination. Attendance for, compelled .... .... .... .... 113 Of deponents on notice .... .... .... .... .... 113 form of notice .... .... .... 230 Officer of corporation making affidavit on production of documents liable to 86 Order for in interlocutory applications .... .... .... .... 109 Restrictions on irrelevant .... .... .... .... . . . ; 98 Damages. Assessment of damages by writ of inquiry ... .... .... 33 in case of continuing wrong .... 102 on default of appearance .... .... . . 33-34 pleading 73 form of writ . . .... .... .... .... 284 Forms of indorsements for .... .... .... .... 219-222 Judgment in default of appearance after assessment ; forms of 268 Need not be pleaded to .... .... .... .... .... ... 63 Reference to officer of court where matter of calculation .... 102 Witnesses at assessment to be examined viva voce and in open court. . 103 1 Days. See Time. Sunday, Christmas Day and Good Friday, not counted in certain cases 194 Date. Amended pleadings .... .... .... .... .... Concurrent writ .... .... .... .... Every writ to be dated day of issue . . .... .... .... Pleadings, to be marked with .... .... Of judgment .... .... .... .... Death. Effect on action . .... .... .... .... execution . . .... .... .... .... .... Not to abate action if cause survive ..... .... .... Debenture Holder's Action. • Sale in case of .... .... .... .... .... 154 Debts. Assignment of, rule of law as to. . .... .... .... 7,8 Attachment-book to be kept by prothonotary .... .... 130 Attachment of .... .... .... 129, 131 Defence in action for .... .... .... .... 63 Special indorsement .... .... .... .... .... 23 Summary procedure in action for ... . .... .... .... ...37 3q 77 25 22 58 117. 118 51 , 53 122 5i INDEX. 355 Deceased Persons. Administration of their estates Declaration Statutory. " Oath " includes .... .... .... .... Declaratory Judgment. .... .... .... Decree. "Judgment " includes Deed. Equitable relief against Form of claim in action to rectify .... Default. Appearance at trial . . ... .... .... By not proceeding after death of party . . .... Judgment by setting aside .... .... Default of Appearance. Account order for .... .... . . .'. Affidavit of service .... .... .... .... By infant or person of unsound mind .... By third party served with notice .... Claim for damages and liquidated demand . . . Damages, inquiry as to .... .... Entering judgment on specially indorsed writ In cases pot specially provided for .... .... Judgment by default in special cases : foreclosure . . .... B mesne profits .... .... partition .... .... recovery of land .... several defendants . . . specially indorsed writ . . Default of Pleading Close of pleadings on default Defence, delivery of : actions generally several defendants •■•• action to recover land . . with mesne profits assessment of damages claims for goods or pecuniary damages several defendants liquidated demand motion for judgment Reply, delivery of : dismissal for want of prosecution . . pleadings deemed closed .... setting down for trial Setting aside judgment by default . . Statement of claim, delivery of . . Third parties, default by Defence, Statement of. Abatement, no plea of . . All grounds of defence to be raised in Balance of counter-claim over claim, judgment for Bills of exchange, promissory notes, or cheques 45, 48 ; PAGE 166, 170 71 .... 4 217, 237 97 52 75 75 ■■■ 39 67 •■ 32 49. 5° •• 34 33 •• 33 36 ■■ 35 34 • 35 35 •• 33 33 75 73 73 75 74 73 73 73 73 75 95 75 95 75 73 49 65 58 65 6 3 356 INDEX. Defence, Statement op. — Continued. Costs of improper denial or non-admission Counter-claim exclusion of to stand if claim fails .... must be specified specially Damages need not be denied .... .... .... Debt or liquidated demand .... .... .... Delivery of .... .... .... .... time for .... .... .... .... .... Forms of defence .... .... .... .... Form of entry of appearance limiting defence interlocutory judgment .... .... .... .... judgment for plaintiff's costs after confessing defence Not guilty by statute .... .... .... . , . . .... Payment into court . . ' .... .... .... .... .... Recovery of land • • ■ ■ ■ • ■ ■ • • • ■ \ setting aside false, &c ... . . .... Specially indorsed writ. . .... .... .... Tender pleaded .... .... .... .... .... .... Third parties, defendants to counter-claim .... appearance of .... .... form of indorsement .... .... notice of claim by defendant . . .... reply by - . ' to be summoned . . .... Withdrawal of . . .... .... .... .... See also Pleading ... .... .... .... .... Third Parties Defence and counter-claim ... .... .... .... Defendant. What the term includes . . .... Delay. Matters in any statement which may lead to, may be struck out . . Delivery of Pleadings. Between the parties .... .... .... For use of judge .... .... .... .... Delivery, Writ of. For specific delivery of chattels Form of praecipe for writ What judgments enforced by .... Demurrer, Proceedings in Lieu of .. Denial of facts in Pleadings. Facts not denied need not be alleged by 6ther party if onus does not lie specifically to be taken as admitted except as against infants and lunatics General denial not sufficient Must ariswer point of substance . . .... Not to be evasive . . . . Of contract .... representative character to be specific Depositions. Examination of witnesses on ' .... abroad How taken and signed . . PAGB 64 .... 5 6 64 .... 65 64 .... 63 63 .... 56 63 254, 263 214 267 271 58, 65 66, 69 65' . . . . 71 63 . . . . 66 64 .... 64 64, 223 .... 48 64 .... 64- 72 ..56, 61 48,51 •63,65 208 60 57 96 146 274 278 119 7i 60 58 58 59 59 59 59 63 103- 104- 107 106 105 INDEX. 357 ' Depositions.— Continued. In action to perpetuate testimony Notice to opposite party of intention to use either party of return of examinations taken abroad Opening examinations of witnesses taken abroad Order for taking evidence by forms of .... Return of . . . .... Setting aside When receivable in evidence .... See also Affidavits and Depositions -. i ' Detention. Default to claim of . . May be ordered " Directions, (Summons for.)--. Form of summons order General summons for .... .... form of . . - - . i Disclosure as to Parties, &c. Parties suing or sued as firm .... .... form of order .... . Solicitor's declaration, whether writ by his authority or not Discontinuance . . . . ' Counter-claim not stayed by .... .... Defendant's costs on ... . .... .... .... Form of notice of discontinuance ..... .... .... judgment for defendant's costs on .... _. . . . Striking out defence on application of defendant .... Subsequent action may be stayed if costs of discontinued are not paid Withdrawal of record .... .... .... PAGE - .. 108 107 . . 106 106 103, 104 3°!. 303 ■ 106 106 ' • 106 109, III 33 147 78 290 291 78 290 143 293 25 72 65 72 229 271 72 72 72 Discovery. By interrogatories .... .... .... .... .... In aid of execution . . .... .... .... .... .... Of names of partner's .... .... .... .... .... Discovery and Inspection Affidavit in answer to interrogatories form of . . reply to order for discovery . . form of Answers to interrogatories to be evidence Attachment of solicitor for neglect to notify client of order for terrogatories, discovery or inspection . . Banker's or trader's books, inspection of copies of may be furnished • • • • Corporation, affidavit by officer of ■ • • • Corporations and other bodies, members of may be interrogated Costs of interrogatories, when unreasonable, &c • security for • ■ • • • ■ • • ' * " * . Cross-examination of deposing officer, &c, of corporation Disobedience to order for inspection or to answer interrogatories discovery of reply • • ■ • form of • ■ • • • • • • • produced on notice to produce . . Exceptions to affidavits in answer Form of interrogatories 79-86 127, 128 143 79-86 80 • 224 81 • 225 84 . 84 82,83 83 86 80 80 84,85 86 84 81 225 225 82 81 80, 224 358 INDEX. Discovery and Inspection. — Continued. Former officers of corporation may be examined Infants Inspect, notice to • • • ■ .... form of Inspection, order for form of order to produce documents for inspection objections to disobeying order for inspection Insufficient answers to interrogatories Objections to interrogatories privilege Proviso as to more than one set of interrogatories Solicitor, liable to attachment specific documents Time for answering interrogatories . . Sheriff, in action against Dismissal of Action. Form of order dismissing summons ( Appx. K., 48) . . to dismiss for want of prosecution Discontinuance . . . • Of action for not giving notice of trial . . failure to grant discovery where statement of claim not delivered motion when all parties not served Non-appearance of plaintiff Not proceeding after death of party Distribution of Business. To be regulated by Rules of court Divorce Court. Judge of supreme court may be judge of .... Rules not to affect procedure or practice in Docket. Causes for argument from various counties to be grouped How made up . . . t Documents, Officers and.. Delivering documents, mode of .... Discovery, inspection, &c How marked Indexes to be kept by officers of all filed Notice to admit form of . . Notice to produce form of .... Printing of documents and evidence to be used at argument. See also Service of Orders, &c . . .... PAGE 86 86 82 226 82 295 82,83 84 81 80 ^ 3 79 84 83 80 85 312 294 72 95 84 73 157 97 52 9, 10, 20 2 206 .... 188 96 192-194 •■•■ 57 81, 84 i°, 139 192 . . . . 86 226 .... 87 228 190 205-206 Ejectment. Appearance by party not named as defendant .... Default of appearance or defence as to part Defence of person in possession Other claims not to be joined except mesne profits or arrears of rent or double value Service of writ in case of vacant possession . . Specially indorsed writ . . Summary judgment for * Writ of possession form of 31-32 34 65 53 28 23 37 146 28 INDEX. 359 page; io 60 40 i95 202 i9S 189 190 188 S8-9 277 189 189 188 189 188 Election Petitions. Judges for trial of, how selected . Embarrass ing. Matter in statement may be struck out Order may be made to prevent embarrassment of defendant in action in which he has no interest Enlargement of Time. By consent . . .... Costs of application for . . Court or judge to have general power to enlarge or abridge time Entries for Argument. Arrangement on docket . . Consequences of not entering Cross appeal Grouping . . .... .... IJorm of Inscribing according to precedence of bar July session • . • ■ Name of judge to be stated . . Re-entry not necessary. . Time for entering . . . ... . Who may make Entry for Trial, Either party after notice may enter . . .... .... 95 Given to prothonotaries on or before the Tuesday preceding the first day of the sittings or term .... 96 If no entry notice of trial to lapse < 96 Time for, generally .... 96 Entry of Judgment By consent Date of entry .... Examination of affidavits and documents by prothonotary. Forms How entered .... .... .... ... - ... Judgment for an act to be done . . .... * .... .... Pursuant to order, certificate or return of writ .... .... Referee may direct judgment to be entered .... .... Solicitors, consent necessary ■ • - ■ . ■ • • ■ • • • ■ ... Satisfaction piece and form of .... .... Wrong on findings . . .... • • • • • ■ • • ■ ■ • • Equity. Assignment of debts and choses in action .... .... Business at chambers ..... .... ■ ■ ■ • "• Causes, trial of .... .'• • ■ • • • • Common law and statutory rights and duties . Counter-claims and third parties .... .... Court and judge included in Supreme Court . Custody of infants . . .... • • • • Defendants' equities .... .... ' Equities appearing incidentally .... Equity of redemption in goods may be seized . Pinal determination of all matters in controversy . Law and equity to be administered concurrently Mandamus, injunctions, and receivers .... Merger . . .... .... • • • ■ • • ■ • Plaintiffs' equities ... .... • • ■ • 117 118 117 -118 118 267 -273 117 118 118 100 118 119. 273 115 7,8 165 179 92 6 5 2 9 5 6 124 7 4-9 9 7 2 360 INDEX. Equity. — Continued. Prohibition or injunction .... .... .... Rules of, to govern . . ... Suits for recovery of land, rents, &c, by mortgagors . . . Stipulations not of the essence of the contract Trusts, Statutes of Limitation not applicable to express . Waste, equitable .... .... .... Error. General power of amendment .... .... .... Estate. Account of personal, form of. (Appendix L,., No. 12 Administration of without action Allowance of income out of .... Costs out of Of infants and lunatics^. . .... Outstanding, inquiry into . . . Parties in administration of ... Recognition of equitable .... Representation of estate of deceased person Representatives of . . .... EvBNT. When costs follow .... • • • • Evidence Action brought to perpetuate testimony . . when Crown interested Affidavits of service of subpoena, what to state Admissions . . . Answers to interrogatories, how used at trial Books in taking account are prima facie ■ ■ ■ Certified copies admissible Commissions to examine witnesses ... forms of Court of appeal ' Depositions, how taken and signed Disobedience to order for production Errors, correction of in subpoena .... .... Examiner to have copy of order and pleadings .Examination of witnesses and mode of conducting under order for Expenses of witnesses .... Foreign judgment not conclusive evidence .... Forms for praecipe for subpoena Further, on appeal .... .... .... Improper rejection and reception of . . .... In chambers In another cause In court of appeal Judge may allow affidavits to prove particular facts at trial. . . Jury to be directed as to findings, &c Number of names in subpoena . . .. 1 duces tecum Notice to admit documents .... facts ..• - .... .... produce documents Notices, how to be received in evidence Omitted by accident or mistake, how supplied ... On motion, petition or summons On trial', to be viva voce in absence of agreement cross-examination Perpetuating testimony .... PAGE 6 .. 9 7 .. 8 7 •• 7 77 166 149 195 152 89 45-48 4-9 48 48 196 103-109 109 109 108 ...86-88 84 .... 88 103 104 286, 302 183-184 105 104 108 .... 105 105 104 109 .... 108 184, .... 114 112-113 .... 103 184 .... 103 17 .... 108 108 86 .... 86 87 .... 205 97 109 103 103 108-109 IJJDEX. 361 Evidence.— Continued. Referee, evidence before Rules as to affidavits supbcena Service of subpcena Slander and libel, in mitigation of damages. . Solicitor's name on praecipe for subpcena Subpcena for chambers .... Taking before examiner .... Trial not necessary in action to perpetuate testimony Writ of inquiry subpcena, forms of .... .... when to be served . .... See also Affidavits and Depositions, &c . . Discovery and Inspection ... Examination of Witnesses. About to leave the province, infirm, &c. Notice in case of . . .'. Administering oath by examiner Affidavits at trial may be used subsequently Conduct of examination money .... Copy of order, pleadings or documents for examiner Depositions taken down in writing . . only to be used at trial in certain cases ■ ■ ■■ opening . : . setting aside Evidence after trial, how taken ... - , ... Examination, rules as to, applicable of debtors for garnishee purposes Notice before use of depositions Objections to questions" •-,•• •••- Order for examination before officer of court Refusal of witnesses • • . ■ costs of refusal ■ • ■ ■ Special directions may be given report by examiner Subpcena ad test, or duces .... Forms of orders : appointment of special examiner abroad for commission to examine witness examination of judgment debtor witnesses before trial Execution. After judgment on contingency . . .... .... Against shareholder of joint-stock company or officer of Application necessary in certain cases before issue of for relief instead of audita querela Articles exempted from levy Assets in futuro Audita querela, application for relief instead of . Award, time for enforcing . . Bank notes, &c, may be taken under. . . . Bond of indemnity to sheriff Coin, &c, may be taken .... Corporation, execution against .... Costs of executing act required to be done Custody, discharge of defendant from Date and form of Debt and costs, separate writs for .... Demand not necessary . . Discharge of defendant from custody 46 . PAGE 100 .... 109-113 108 108 98 108 108 . . .'. 1 103-107 .... 109 101 .... 283-284 ...108 109-113 794*6 103 104 107 107 105 104 i°5 i°5 106 106 106 107 107 129 1 7 105 104 105 106 107 106 108 d 304 3°4 3°5 .... ... 301 120 123 122 124 126 123 124 124 125 126 125 124 .... 12 5-124 127 121 122 119 127 362 INDEX. Execution. — Continued. Duration and renewal of .... Effect of service of judgment or order .... Enforcing judgment against firm .... for costs land. ■ -^ .... other property payment into court recovery of money . . • • • ■ to do or not to do an act • • • • order of court or judge Equity of redemption in goods may be taken Exemptions from levy Firm, judgment against . . .... Form of praecipe for execution • ■ ■ * Forms of writ of execution .... Goods, &c, when bound by writ .... 124, 125 Husband and wife How soon it may issue Indemnity to sheriff Indorsement of directions to sheriff. . name of solicitor or party suing in person "Issuing execution against any party," meaning of term Judgment or order upon condition on contingency . ■ . • • ■ • • • ■ • • Land, recovery of Levy for fees, poundage and expenses Mandatory judgment, enforcing of Non-performance of condition on which judgment obtained Officer to see judgment before issuing execution .... Order of writs Other than for money or lands modes of enforcement remain Party suing in person, indorsement of name of Praecipe for execution and form of . ■ ■ ■ .... 120, Redemption, equity of, in goods may be seized Renewal .... evidence of . Return of writ ... Rights to enforce heretofore existing Securities, transfer and effect of Separate writs for debts and costs Sheriff, bond of indemnity to indorsement of directions to . to pay over money recovered return to be made by with writ Stay of , Surplus to be paid to defendant. . Terms " writ of execution ; " "issuing execution against any party," meaning of . . . .... .... .... Third party, enforcing judgment by or against Transfer of securities, effect of What ' ' writ of execution " is to include . . When execution to issue on judgment for other than for money or land, 122 goods bound by writ .... .... 124,127 Within six years .... 122 after or change of parties 122-123 Writ, when to bind goods 124-127 " Writ of Execution," what term includes .... 120 Discovery in aid of.. .... 127-128 Against agent of absent debtor . . .... i?g Compelling attendance and production 127 Costs of witnesses under order to produce documents, &c , . . , 128, PAGE 122 .... 119 144 121 119 119-120 119 .... 119 120 .... 123 124 126 144 120, 273 121, 281 126, 127 123 • • 121 126 • • 121 121 -• 120 119 • • 120 119 ■• 121 I23 .. II9 I20 •• 123 19-120 123 . . 121 273 124 122 122 126 I23 125 122 126 121 125 126 122 125 120 I2 3 125 120 INDEX. 363 Execution.— Cpntinued. PAGE Examination of judgment debtor 127-128 For interlocutory costs • xgq Order for execution against garnishee , 129 Other than for money .... .... I2 y Production of books and documents. 127 Security to be given on issue of execution against absent or abscond- ing debtor i^x Writs of Execution . . 128 Attachment (person) .... 129 (debts) 129-131 Delivery (chattels) 146 For costs .... 122 Garnishee orders . . .... 129 Goods of absent or absconding debtor . . .... 137,143 Possession (lands) 146 Preceding the coming into force of these rules . 128 Replevin.. 134-136' Sequestration and subpoena 128 Venditioni exponas .... .... 128 Execution of Trusts. Form of general indorsement for . ■■ ■ • .... 217 Executors. Character must be denied specifically 63 Control of in administration suits 169 Joinder of personal claims with claims as 54 Representative character to be shown on writ .,.., 23 form of 222 Statement of claim by or against, forms of 233-234 Suing or sued on behalf of estate 41 When entitled to judgment in administration action . . 46 Existing. Meaning of term " existing " 2 Procedure and practice existing to remain ■ • ■ • 18 where no provision is made by Act or Rules 208 Provision as to exercise of jurisdiction . . 3 Saving of rights and obligations of existing judges. . . 4 Expense. Court may prevent defendant being put to, iu action in which he has no interest ■■•■ 40 / Expenses may be levied with execution 121 Of producing deponent for cross-examination not to be demanded in first instance ... . 113 Experiments. May be tried for inspection of property under order of Court 148 Experts. Assistance of at Chambers ■■■' !7° Express Trusts. Statute of limitations inapplicable to 7 Facts. Notice to admit 86 Party to prove facts sufficient in point of law 16 See, also, Admissions 86, 87 Evidence 103-109 , Trial 9 2 - io 3 364 INDEX. Fees. Costs of proceedings to be regulated by rules of Supreme Court Of counsel, allowance in taxation .... * (Ji counsel, allowance m taxation Pauper not liable to any cjourt fee . Filing. Affidavit or other proof used in cause must be filed Depositions .... Enlargement of time for, by consent Filed papers not to be taken away. . . .... .Order for, need not be drawn up .... Pleadings. &c, when judgment entered .... Prothonotary to file copy of writ of summons What includes ■'• • ■ Writ of summons, copy to file left with officer Final Order. Notice of appeal to be served within ten days What may be appealed from Finding. Of judge to be written .... Firm. {See Partners. 1 Foreclosure. \ Adjoining counties, property in Assignment of property and delivery of documents As to subsequent encumbrancers Evidence Form of statement of claim in action for defence Joinder i Notice in certain cases ,. . On what evidence entitled to judgment Parties . . Practice previous to first day of October, 1884, continued Sale .... Suits for recovery of land, rent, &c, by mortgagors. . Foreign Companies, Suits against. — , Agent, examination after judgment. . Goods in hands of agent liable for amount of judgment. . How sued when doing business by agents .... Other provisions not abrogated . . .... .... Proceedings where no agent Provisions of Order XI/VI to apply in certain cases Security before judgment, how plaintiff may .obtain . . Time allowed agent to communicate with the constituents See also Suits against Absent or Absconding Debtors Foreign Country. Action against defendant in Notice of writ and not the writ itself to be served in . . Time for appearance of defendant in ... . Foreign Judgment. Defence to original action available . . PAGE .. 19 204 ■ ■■ 45 in 106 195 193 158 117 25 60 25 Forms. Appearance . Claims ■ ■ • Appendix A., Part II . Appendix C 183 183 88 143- •■•- 155 155 •••• 155 35 .... 234 255-256 •• 51-52 35-36 ■• 35-36 4i 35 155 7 141-143 142 142 141 143 142 142 142 142 137-141 28 3° 29 109 213-216 .232-253 INDEX. 365 Forms.— Continued. PAGE Defences Appendix D. .. .' 255-263 Equity Business. .... Appendix L 3x7-335 Appendix A., Part III . . . 216-222 .... Appendix F. 267-273 Appendix B .... 222-232 Appendix K 288-317 of Court Appendix M . . . . '■ ■ • • 336 Appendix G 273-278 . Commissions. .Appendix J 283-288 Appendix E 264-267 Appendix A., Parti 209-213 Appendix H 278-282 Indorsements Judgments . Notices, &c. Orders . . Payment into and out Prsecipes Subpoena, Mandamus, Reply Writ of Summons ■ . • Writs Appendix A. Part I. — Forms of Writ of Summons, &c 209-213 Form of Memorandum for Renewal Writ, (No. 6.). .. 213 General Form of Writ of Summons, (No. I.) '209 Notice of Writ in lieu of Service out of Jurisdiction, (No. 5.) 212-213 Specially indorsed writ for service out of jurisdiction (No. 4) 211-212 under Ord. Ill", Rule 5, (No. 2.). .210-211 Writ for Service out of the Jurisdiction, or where Notice in lieu of Service is to be given out of the Juris- diction (No. 3) 211 Part II. — Forms of Entry of Appearance 213-216 Affidavit for Entry of Appearance as Guardian (No. 8) 216 Entry of appearance limiting Defence (No. 4) ... . ■ 214 Order XVI., Rule 50 (No. 5) 215 Order XVII., Rule 5 (No. 6.) .... 215 to Counter claim (No. 7.) 215 Memorandum of Appearance in General (No. 1 ). . > 213 Notice of Entry of Appearance (No. 2) .... 213, 214 Notice limiting Defence (No. 3) * 214 Part III. — General Indorsements on Writs of Summons . . . 216-222 Damages and other Claims (Section IV .) 219-222 Indorsement for Costs (Section III).. 219 Indorsements of Character of Parties (Section V) .... 222 1 In matters of an Equitable Nature (Section I.) 216, 217 Money Claims where no special Indorsements under Order III., Rule 5 (Section II.) 217-219 Appendix B. — -Notices, &c . . 222-232 Acceptance of Sum paid into Court (No. 4.) . . 224 Admission of Facts pursuant to Notice (No. 13.) 227, 228 Affidavit as to Documents (No. 8.) .. .... . ... 225 in support of Garnishee Order (No. 23) 231 of Service of Summons (No. 22) . • ■ • 230, 231 on Interpleader (No.- 24) 231 Answer to Interrogatories (No. 7) ■•■• 224 Confession of Defence (No. 5) .. . 224 Interrogatories (No. 6) •••• 224 answer to (No. 7) 224 Issue (No. 15) 228 Notice of Counter-claim (No. 2) 223 Cross-examination of Deponents at trial (No. 20) . . 230 Discontinuance (No. 19) .... 229 Motion (No. 18) ^ 229 Payment into Court ( No. 3 ) 223 Renewal of Writ of Execution (No. 21) 230 Trial (No. 16) 1-228 without pleadings (No. 16 A). . 229 to admit Documents (No. 11) • • * 226,227 Facts (No. 12) 327 366 INDEX. Forms— Appendix B— Continued. PAGE Notice to inspect Documents No. 10) .... ■••• 226 Produce (General Form) (No. 14) . . . ■•- 228 produce Documents (No. 9) ....- 225 Third Party Notice (No. 1) . . 222,223 Appendix C. — Forms of Statements of Claim to be used pursuant to Order XIX, Rule 5) . • 232-253 Actions claiming Injunctions, Damages or Declarations of Right founded on Wrongs (Seetion V) .... 247-252 for Damages for Breach of Contract or Duty arising out of Contract (Section IV) . . 243-247 Recovery of Land (Section VI) .... .... 253 .included in Order III, Rule 5, Classes A., B., C, D., E. and F. (Section III,) .... 239-243 of an Equitable Nature (Section II) .... 233-239 General Form (Section I) .. . .... .... .... 232-233 Appendix D. — Forms of Defence to be used pursuant to Order XIX, Rule 5 254-263 Counter-claims (Section VII .... .... .... 263 General Form (Section I) .... .... . . . .■ .'. . . 254 To Actions claiming Injunctions, Damages or Declarations of Right founded upon Wrongs. Appendix (C), (Section V) 261-263 for Damages for Breach of Contract or Duty. Ap- pendix (C), (Section IV) 260-261 Recovery of Land. Appendix (C) .... (Section VI) 263 included in Order III, Rule 5, Classes A., B., C, D., E. and F. (Section III) 257-260 General Defences 259^-260 of an Equitable Nature. Appendix (C), ("Section II) 255-257 Appendix E. — Fotms of Reply, 6fc, to be used pursuant to Order XIX, Rule 5 . . .... . •. . . .... 264-267 Defence including an Objection in point of law, (Section III) 266-267 Example of a Statement of Claim, Defence and Reply, (Sec. II) 264-266^ General Form, (Section I).. . .... .... 264 Appendix F. — Forms of fudgment.. .... 267-273 After trial with a Jury (No. 7) .... .... .... 269 by Court without Jury (No. 11) .... 270 before Referee (No. 8) 269-270 of Questions of Account before Referee (No. 9) .... 270 Assessment of damages by Referee (No. 4A) .... 268 By Default after Assessment of Damages (No. 4) .... 268 in case of Liquidated Demand (No. 1) . . . . 267 For Costsiafter Acceptance of Money paid into Court (No. 15) 272 Defendant's Costs on Discontinuance (No. 13) 271 Plaintiff's Costs after Confession of Defence (No. 14) 271 Of Dismissal (No. 1 ia) .... .... .... 270 Interlocutory Judgment in Default of Appearance or Defence where Demand Unliquidated, (No. 2) 267 In Default of Appearance in Action for Recovery of Land, (N0.3) ' .... 2 68 Pursuance of Order, (No. 12) 271 Judgment after Appearance and Order under Order XIV, Rule 1, (No. 5) _ .... 268-269 at Trial by Judge without a Jury, (No. 6)' 269 On motion after Trial of Issue, (No. 17) 272-273 Upon Motion for Judgment, ( No. 10) " 270 Where no Judgment entered at T.rial by Jury, (No. 16) 272 Satisfaction Piece, (No. 18) 273 Appendix G.—F01 ms of Pfacipe 273-278 Amended Summons, (No. 14). .' 276 INDEX. 3g7 Forms— Appendix G.— Continued. / Certiorari, (No. 8) Commission of Partition, (No. 13) to Examine Witnesses, (No. 12) Entry for argument generally, (No. 19) . . of Action for Trial, (No. 17) . . ' Appeal, (No. 18) ' " Special Case, (No. 20) Execution, (No. 1) Habeas Corpus ad Testificandum, (No. 11) . . ... Inquiry, (No. 7) Memorandum of Service of Notice of Judgment, (No. 21) . . . Notice of Judgment, (No. 22) Prohibition, ^No. 9). Renewed Summons, (No. 15) ' Subpcena, (No. 16) Summons, Amended, ( No. 14) Renewed, (No. 15) Writ of Attachment, (No. 5) " Delivery (^Nio. 4) Possession (No. 3) .... Sequestration (No. 2) .... Appendix H. — Forms of Writs (Absconding Debtor), Summons for Agent (No. 10) Writ of Attachment (No. 9) Summons for Agent (Absconding Debtor), (No. 10) Warrant to Arrest Witness (No. 6) Writ of Attachment (Absconding Debtor) (No. 9) (Person) (No. 3) Delivery ( Nos. 1&2)... Execution (as heretofore known) (No 7) on Order for Costs Possession (No. 8) .. Sequestration ( No. 4) . . . . . . . . • Appendix J. — Forms of Subpcena, &c... Certiorari (General) (No. 8) to County Court (No. 7) . . .... ... Commission to examine Witnesses (No. n) •■■■ Habeas Corpus ad Testificandum (No. 2) .... Prohibition (No. 9) .... .... .... .... Subpoena ad Testificandum (General Form) (No. 1) . . • at Sittings or Term (No. 4) . . . Duces Tecum (General Form) (No. 3) at Sittings or Term (No. 5) .... Writ of Inquiry for Assessment of Damages (No. 6) . . Appendix K. — F01 ms of Summonses and Orders .... Affidavit for Replevin (No. 50) .... Bond for Replevin (No. 51) ... to obtain Return of Property Replevied (No. 52) ... on defendant's arrest (No. .28, a) . . .... Garnishee Order (Attaching Debt) (No. 36) . . (Absolute) (No. 37) for issue between creditor and garnishee (N0.37A) 306 Interpleader Order, No. 1. (No. 41) No. 1, a 2. (No. 42) 3. (No. 43) 4. (No. 44) 5. (No. 45) 6. (No. 46) 7. (No. 47) Order (General Form), (No. 2) Dismissing Summons (Generally) (No. 48) .... PAGE 274 . 276 275 • 277 277 277 277 • 273 275 274 278 278 275 276 276 276 276 274 274 274 273 278-2::- 282 282 282 280 , 281 282 280 278 » 279 281 281 282 280 283 -288 285 285 286-288 283 285 283 284 283 284 284 288 -317 313 313 313 2Q9 3°5 306 306 37A) 306 308 309 309 309 310 310 3" 311 311 312 290 312 368 INDEX. FORMS- 299. -Appendix K. — Continued. Order for Affidavit as to Documents (No. 17) Arrest (Capias), (No. 28) .... Bond on Defendant's Arrest. .... Delivery of Interrogatories (No. 16). ... Directions pursuant to Order XXIX, (No. 4) Examination Touching Means of Witnesses before Trial (No. 32 of Judgment Debtor (No. 35) ... Issue of Notice claiming Contribution (No. 23) Particulars (Accident Case), (No. 13) (General), (No. 12) ••■ Counter Claim No. 12, a ... . (Partnerships), (No. n) .... Production (Underwriters), (No. 19) Renewal of Writ (No. 22). . Service out of Jurisdiction (No. 20) ... . Special examiner to take evidence abroad, {No. 34) c. Order Substituted Service (No. 21) Time (No. 5) of Reference (No. 24) 297, for inquiry and report under Arbitration Act, (No. 29) ... . .... for trial under Arbitration Act (No. 30) to Master (No. 31) on Client's Application to tax Solicitor's Bill of Costs (No. 38) 307 Solicitor's Application to tax Bill of Costs (No. 39) 307, 308 to amend (No. 10.) .... .... 293 discharge or vary on Application by Third Party (No. 14) 294 PAGE 295 299 300 ... 295 291 ... 314 301 ••• 3°5 297 ... 294 293 ... 294 293 295-296 297 . . . 296 304 ... 297 291 298 300 300 301 dismiss for want of Prosecution (No. l 5) Produce Documents for Inspection (No. 18).. Replevy (No. 49) .... .... Remove Judgment from County Court (No. 27) 298 Tax after Action brought (No. 40) under Order XIV., No. 1 .... 2.. . .... 3 4. . . Dong Order for Commission to Examine Witnesses (No. 34)... 302 Short Order for Issue of Commission to Examine (No. 33) _ Order for request for Commission, (No. 34, A) Request, No. 34, B ■■■■ .... Replevin, Affidavit for (No. 50) • ■ • ■ ( . . . Bond for (51) . . . to obtain Return of the Property (No Summons (General Form), (No. 1) .... for Directions under Order XXIX No. 3). Originating summons, (General Form) (No. 1, A). not inter partes, (No. i, B) notice of appointment to hear (No. 1, c) Appendix L. — Equity or Chancery Business .... Account of Personal Estate (No. n)| Rents and Profits (No. 12) .... Advertisement for Claimants not being Creditors (No Creditors (No. 3) Affidavit of Executor or Administrator as to claim (No. 5) .... Affidavit of Result of Sale (No. 15) verifying Accounts, &c . .... schedules therein referred to verifying Receiver's Report (No. 20; Certificate (No. 9) . . . Witnesses 52) 294 295 312 299 308 291 292 292 292 303 2) 301 3°3 3°4 313 313 3*3 288 290 288 289 289 317-335 325 326 3i8 318 317.' of creditors .... 319 330-331 322-324 324 •■•• 334 321-322 INDEX. Forms— Appendsx L.~ Continued. Exhibit referred to in Affidavit No 5 (No 6) List of Appointments amongst Creditors or Legatees (No Debts allowed (No. 16) . . . Legacies remaining unpaid (No. 17) . Notice to Creditor of Allowance of Claim (No. 7) to produce Documents (No. 4) _ , , » prove Claim (No. 8) Order for Accounts and Inquiries (No. 24). Ordinary Conditions of Sale (No. 14) Receiver's Account (No. 1-5) Recognizance (No. 19) Summons (No. 1). .. . .... Appendix M.— Payment Into and Out of Court Accountant General, Duties of Prothonotary, Duties of Fraud. Forms of statement of claim How pleaded , Pleadings, forms of defence jii -^ Particulars . . Frauds, Statute of. Must be pleaded .... Pleadings, forms of Further Consideration. At chancery chambers . . .... In insolvent and intestate estates On report of referee .... .... .... Garnishee. Costs, discretionary . .... Debt attachment book . . . .... Discharge of garnishee .... .... Effect of garnishee order . \ . , Examination of debtor as to debts .... Form of affidavit in support of order .... . order attaching debt .... absolute .... Issue if garnishee disputes liability . No costs if amount attached does not exceed thirty dollars order for trial of ... . Not appearing on summons . . Order to attach debts .... for execution against . . . . . 1 third party . . . : ■ . . Service of order, effect of ... . .... Third party interested, proceedings .... .... What debts may be attached .... See Attachment of Debts Gazette, Royal. Rules of court to come into force with this chaptar . . General Issue by Statute. How pleaded .... .... .... .... Plea of not guilty .... .... General Rules. Existing practice in absence of other provisions ... In absence of Chief Justice senior judge substituted. . s Repealed rule not revived unless expressly 47 '""" 369 PAGE 319-320 18) ... 333 332 332 320 318 321 ■■■■ 334-3.55 33° •■•• 327-329 333 "334 317 336 336 336 251 59 255. 257 258 57 59 257 258 179 166 IOI 131 130 130 129 129 231 305 306 130 131 306 129 129 129 130 129 ... 130, 131 129, I30 • • • 129 -131 19 65 58 208 208 208, 370 INDEX. Good Friday. page Not to be counted in computation of limited time .... 194 Guaranty. For payment of money, writ may be specially indorsed . . .... 23 Form of pleading in action for .... .... 242 Guardian. Accounts of, how passed .... .... .... .... 151 Application for guardianship of infants to be made at chancery chambers .... .... .... 166 Costs of solicitor appointed guardian ad litem of infants or lunatics 198 Form of affidavit for entry of appearance as .... .... .... 216 To infants and lunatics .... .... .... .... . . .43-44- Halifax Sittings. Civil and criminal .... .... 10-11 Habeas Corpus ad Testificandum. Form of writ .... .... . . .\ / 283 New writ on adjournment of trial .... .... 98 HeiR-aT-Law. As party to administration of trusts .... . .45, 168 When unnecessary as party ... .... .... .... 48 See Parties . . .... .... .... . . .39-51 Holidays. Reckoning time with regard to . . .... 194 Vacation in Halifax .... 186 See Sessions, Sittings, Vacations, &c 186-192 Husband and Wife. Action by or against wife .... .... .... .... 43 Execution against husband .... .... 122 Joining claim by or against, with separate claims .... .... .... 54 Marriage of party to action .... 51 Service in action against .... 27 See Change^ of Parties by Death, &c .... 51-53 Joinder of Causes of Action .... .... .... 53~54 Idiots. How may sue and defend .... .... .... 43-44 Plaintiff to apply for guardianship of, in default of appearance .... 32 Service on .... .... .... 27 Improper Forms. Costs of ... . .... 22 Indexes. See Officers and their Documents .... .... 192-194 Indorsement of Address. Plaintiff suing in person . . .... .... .... .... 24 Solicitor and plaintiff ... .... .... .... .... 24 I When no writ issued .... .... .... .... 24 Indorsement of Claim on Writ 22-24 Forms of, Appendix A, Part III .... 216-222 Account to be taken, -special claim for ... .... 23 Amendment by Plaintiff without leave .... 76 on severance of causes of action .... 54 INDEX. 371 Indorsement op Ci,aim on Writ.— Continued. Amount demanded for debt and costs in money claims Claim need not be stated with precision Damages and other claims, forms of Debt or liquidated demand, special for ,. . .... forms of .... Forms of indorsement in Appendix C, Section III A, Part III . . . administration actions cancellation or rectification of deed character of parties .... .... costs, for money claims where no special indorsements. partnerships .... .... .... portions, raising of ... . .... rectification of deed ... .... .... special indorsements specific performance trusts, execution of .... In matters of an equitable nature .... Made on writ of summons before issue . . Precise statement of ground of complaint, or remedy or ' essential .... Representative character of both plaintiff and defendant to be shown . . Special indorsement for account .... debt or liquidated demand in money Indorsement of Service. Date of receipt of writ of summons to be indorsed immediately on receiving. Service, within three days after service Indorsement on Writ of Execution. With directions to sheriff page .... 23 22 219-222 24 239-243 239. 243 216, 217 216 . . . 217 222 ... 2lq 217-219 ... 216 217 . . . 217 239-243 . . . 217 217 216-217 .... 22 relief not 24, 23 39 23 28 Infants. Affidavit for appointment of guardian . • for appearance by, form of . . Admissions in pleading by Appearance by, in action • • ■ ■ to petition or summons • • Authority from next friend to be filed Consents to procedure on behalf of Default of appearance by Estates of Guardian ad litem for Investment of money recovered by May sue by next friend and defend by guardian Party to special case Proceedings relating to, in chancery chambers Questions as to custody and education, Equity Rules Service of notice of judgment or order on order on change of parties writ on to prevail 43 44 216 58 43 44 44 44 32 152- 154 68 32 ,69 43 il .. 166, 91 170 9 48 52 27 Information. Actions and suits formerly commenced by, how instituted Injunction. Amendment of law, as to ■ ■ • • Before, at' or after judgment. ■••• Cause in Supreme Court not to be restrained Early trial \ ■ • ■ ■ • • • ■ Enforcement of mandatory judgment .... 9 149 6 147 123 372 INDEX. Injunction. — Continued. Indorsement of claim on writ .... form of Practice on applying for interlocutory injunction - Stay of proceedings in lieu of injunction Writ of, abolished, and substitution of order. • See Interlocutory Orders as to Mandamus, &c Inquiry. May be. directed at any stage of proceediugs. . Reference to referee for. Writ of Inquiry. Application of certain rules .... Inquiry of damages before officer of court Form of praecipe for ... writ of . . . .... Inquiries and Accounts Allowances without directions ... .... Directions as to taking .... Expedition ordered Form of ordering account and inquiries Notice of claim beyond admission Numbering of accounts Order for, at any stage . . Proceedings in chancery chambers . . Personal estate, inquiries .... Substituted referee . . .... Verification of account . . See Chambers, in relation to Chancery Matters Insolvency. No abatement on or other person RAGE 22 221 .... 148 6 .... 149 147-149 .... 88 102, 177 101 102 274 .... 284 . 88-90 89 .. 88-90 89 •-•■ 334 89 .... 89 88 173-176 89 .... 90 89 165-179 Inspection. Banker's and trade books By judge and by jury Documents, inspection of . . . . .... form of order for Order for .... See Discovery and Inspection .... .... Interest. Allowance of on appeal Execution for, generally Special indorsement containing claim for . With writ of delivery . . Chancery Chambers. legacies .... Rate Where debt does not bear Interim Orders. As to subject-matter of litigation and as to payment of amount in dispute into court . . detention, preservation and inspection of property Order for sale of perishable goods .... Interlocutory Judgment. Default of appearance .... .... .... .... by some defendants delivery of defence .... .... .... Form 51 .. 82 148 81-85 295 •■ 147 79-86 •• 185 121 •• 23 147 ■ 176 176 . . 176 147 147 147 •• 33 33-34 •• 73 267 index, 373 Interlocutory Orders. . PAGB Application, how made Evidence to support may be by affidavit " ...i. ""'.... 10 q > Injunction or mandamus by . S** Inspection of subject matter, samples, &c .'..." T Zi Notice of appeal from VsV t8= Not to prejudice appeal 4 ' ll 5 . Payment into court to satisfy lien """-.-- Via iaq IeSfb O v n0f . Pr0Perty .-"--.... *™ Sale of perishable goods / " 9 '.^?"uy View by judge and by jury "148 Interpleader. Adverse titles .... lgo Affidavit by applicant .... r 8 form of ' 2I Application of rules jgj Claimant not appearing to be barred !8i Costs, discretionary /jg 2 Decision, when final : jgt Form of issue 22 g Forms •■■■■ .... '.... 308-312 Generally ° * Issue ordered jgo One order in several matters z 82 Process of Court, claim in case of goods seized under 182 Question of law .... .... jgj Sale when sheriff has seized j82 Sheriff's interpleader I7 o Special cases . ! x 8i , Stay of proceedings 1 j8 Summons calling on claimants to interplead 180 Summary adjudication by consent .... .... 181 Time to apply if defendant . . 180 Interpretati on. Of terms in Judicature Act ... .... 1 Rules of Court; . . 207 " Writ of execution " and " issuing execution against any party " 120 f Interrogatories. / . . 79-81 Affidavit by officer, &c, of corporation 86 in answer . . .... .... .... 80 form of .... 224 order for further ... . 81 order for vivi voce answer .... > 81 reading at trial .... .... .... . . . . • .... .... 84 sufficiency, how determined .... .... ......... 81 time for filing 80 use of part of affidavit at trial ... .... 84 by sheriff's officer . . . . , . >. • ■ ■ ■ • / - 85 Application for. . .... .... 79 Attachment in default of answer .... 84 Corporation, order on officer of . . • • • • 80 former officer . . • • • • .... ■ • • • 80 Costs of improper ... .... 80 secured by deposit . . . . ' .... .... 85 allowed only when interrogatories reasonable .... 84 Cross-examination of deponent when officer of corporation 86 Defence^ struck out on default of answer .... 74 Delivery of by plaintiff or defendant .... .... 79 Deposit 1 before delivery .... 85 374 ittt>EX. Interrogatories. — Continued. > \ paGB Dismissal of action on default of answer .... , .... 84 Disobedience to order to answer - ■ . . .... 84 Enforcing answer 81 Form of interrogatories .... .... « 80, 224 answer to 224 Further answer by affidavit or viva voce 81 Irrelevancy .... 79, 80 Leave to interrogate 79 Note at foot of 79 Objections to answer ■ ■ ■ • .... 80 not answering, action dismissed . • ^ 84 Scandalous, objections to answer on grounds that they are 80 Solicitor neglecting to give notice of ... ' 84 Submitted to court ' .... .... 79 Trial, use of interrogatories at ... 84 Unreasonably, &c, exhibited, costs of 80 See Evidence .... .... 103-109 Intervener. In action for land .. . .... .... 31 Sec also Third Party 48-51 Investment. Application as to, in chancery chambers .... 166 In what securities money under control of court to be invested . . . 68-69 Irregularity. Application to set aside for .... .... .... 207 , Costs .... .... .... .... .... .... .... 207 "f Effect of non-compliance with rules .... , 207 Fresh steps taken after knowledge of .... 207 In affidavits .... . . .-. .... .... in See Amendment ... , • • • • • ■ 76-79 Issue. Non-delivery of reply as joinder 1 of .... .... .... .... 75 joinder of .... .... .... .... 70 Interpleader .... .... ... .... .... .... .... 180 Joinder of . . .... .... .... 59, 70 Legal and equitable, how tried. . .... .... .... 4,17 Pleadings subsequent to joinder of .. . ... .... .... 69 See Reply and Subsequent Pleadings .... 69 Issues, Inquiries, and Accounts .... .... . . 88-90 Accounts, how taken .... .... 88, 89 All just allowances to be made .... .... Defendant requiring issues to be tried by jury .... >,. . , 16 Evidence .... .... .... .... Expediting accounts or inquiries .... .... 89 Garnishee proceedings .... .... .... 129, 130 Issues to be settled if necessary . . .... .... .... .... 88 Judge to write out findings on 1. . . . Judgment or order made directing accounts taken form of .... Judge may direct jury to answer questions of fact Notice of claim beyond admission ... .... Outstanding estate to be inquired of .... Plaintiff desiring issues to be tried by jury. . . Referee, when new may be appointed .... .... Substituted referee . . " « Special jury, trial of issues by .... Trial of, before discovery or inspection .... inquiries made 334 '17 .. 89 89 .. 16 90 .. 90 94 83,84 INDEX. 375 Issues, Inquiries and Accounts.— Continued. Verification of account by affidavit Vouchers .... .... When inquiries or accounts may be made or taken See Special Case .... .... Trial , Issues of fact without pleadings. Effect of judgment j Formal pleadings may be dispensed with Judgment according to agreement Order for payment on finding of issue Questions stated for trial in an issue form of .... . . : . Joinder of Causes: of Action. Administrator . . .... Amendments, consequential, may be made Bankruptcy trustee Causes may be joined .... severance if necessary application to sever . .... Costs on severance .... . . .'. Executor . . Foreclosure or redemption .... Husband and wife . . .... .... Joint and several Recovery of land '. . . v Joinder of Issue, Close of pleadings .. .... ; ..,. Effect of non-delivery of reply . . .... How and when joined .... Pleadings subsequent to Toinder of Parties. PAGE 89 .... 8 9 88 .. 90-91 ■ ■ 92-95 92 .... 91 92 .... 92 91 •••■ 228 54 .... 54 54 ■ • ■ ■ 53 53 .... 54 54 ••• 54 • • 51-52 .... 54 54 ■•■• 53 f .... 69 75 ■•59. 69 69 Amendment by substituting and adding parties Claims by and against persons in alternative . . . Joinder of two defendants in case of doubt . . Parties to joint or several contracts See Parties . . .... .... .... .... 43 39 ■■•■ 40 39 ■• 39-51 Judge (Single). Appeal from decision at chambers . . . . , Applications to in chambers, how made Business to be disposed of by single May deliver judgment of court or any other judge when authorized to do so .... .... .... direct trial by jury . . .... call experts in chancery chambers reserve case .... .... .... .... .... .... final decision not more than sixty days . . .... .... write out findings . . .... .... .... .... .... Power to inspect subject of litigation .... .... 1 .... enter judgment .... .... .... .... .... order administration without action in chancery chambers . . Restricting cross-examination ... .... .... .... , Rule, order or decision, on notice may be discharged or set aside by court ... .... .... .... To constitute a court in certain cases .... .... .... decide all questions coming before him ... .... .... .... Trial of any question or issue of fact before .... .... Trustees, &c, may apply to, for directions . . When cause to be tried before .... ... 16 See Chancery chambers .... .... ■ ■ • • .... 165-199 161 159 10 188 94 170 10 17 88 148 98 166 189 10 10 94. 95 . . 169 376 INDEX. JUDGES. Aid of assessors, may be called in .... .... .... Chief Justice to have precedence .... .... .... Circuits, summer, judges presiding at to preside at spring, circuits Distribution of business among. .... .... .... Election petitjon, trial of, how selected for. . .... .... Existing status not to be affected .... _ ■ ■ • ■ General powers to make rules relating to appeals, &.C., pleadings, practice and procedure, and sittings • .... How appointed . . .... Jury may be directed by to give special verdict .... answer questions of fact in certain cases ' Jurisdiction when acting in pursuance of statute, common law or otherwise .... .... .... Not to sit on the hearing of any. motion for a new trial in cause or matter tried with a jury before self , Oath, form of .... how administered . .... .... .... Power to annul, or alter or amend rules .... sit and act for transaction of business. . Precedence of . . ■ • ■ .... Provisions for former extraordinary duties of judges Qualification of ... . .... .... Saving of rights and obligations of judges at the time of passing ofAet To have equal power, authority and jurisdiction .' What offices may hold . . '. t , Judgment. Admissions of fact in pleadings, judgment on Affidavit, necessary for prothonotary to examine . i After trial ... .... ' Against one of several defendants .... . .,. . .... Any judge may deliver judgment of court or any other judge when i authorized • • • • • ■ ■ • ■ • • ■ Appeal from part of .■■'■ notice of to be left with prothonotary at Halifax Attachment to enforce . i. . Arbitrator or referee to direct, how entered . . Balance of successful counter-claim .... Certificate, sufficient authority to sign .... Change of parties after . . .... .... Conditional, execution on ... . .... Contingent, execution on .... .... Costs for where defence arises after action brought . . in discretion of judge .... .... application dismissed with Counter-claims, on . . . . ' .... ... .... Date of, when pronounced in court .... .... documents left with officer .... .... Debt or liquidated demand .... .... .... several defendants .... .... debt and damages . . .... .... detention of goods and damages .... several defendants .... other actions .. several defendants ... .... setting aside judgment by default .... .... third parties .... Default of appearance : See Default of Appearance . . amount of judgment and interest at trial, of plaintiff or defendant damages unascertained PAGE 18 3 14 9, 10 10 4 18 2 ^7 188 3 3 18 9 3 4 2 87 118 98 40 188 183 185 120 "5 65 118 122 120 120 71 38 39 56 117 118 73 73 74 73 73 74 73-75 75 75 33 33 97 33 INDEX. 377 Judgment.— Continued . Default of appearance : defendant out of jurisdiction detention of goods recovery of land mense profits and rent several defendants special or otherwise indorsed writ pleading : .... .... action to recover land mense profits, rent, &c several defendants . . .... Delivery of pleadings Discontinuance, on .... Enforcing judgment. See Execution Entry of : affidavit filed .... .... at trial .... certificate . .... certificates of judge. . . .... .... date of .... .... delivery of pleadings on .... examination of documents .... for an act to be done . . .... how made . .... pursuant to order .... .... return to writ, pursuant to wrong on facts .... Execution of. See Execution Existing rights saved .... Final : affidavit for debtor to show cause .... on default of appearance . . pleading . .... ..'. examination of defendant before . . interpleader, in writ specially indorsed Forms of judgment. See Appendix F. . memorandum of service of notice of .... order to remove judgment from county court . F'urther consideration Includes decree .... Injunction, motion to stay proceedings, instead of Interlocutory judgment : damages, in action for detention of goods on default of or pleading Interpretation of term .... Intervening parties .... • Issues determined . . .... Land, judgment for, enforced writ of possession Leave to sign .... Motion for judgment . - • ■ to set aside Notice of motion for .... One judge may deliver judgment of court Part of action, judgment for. issues tried .... .... Partners, against .... Payment into court, judgment for costs . . Plaintiffs, for one or more Postponing trial of part of cause . Records of dates, filing, &c . . .... 48 PAGB .. 28-30 33 .... 34 34 ■ ■ ■ • 33 33 73. 75 74 .... 74 75 .... 117 72 119, 128 .... 118 97-100 .... 118 99 117, 118 117 .... 118 118 .... 117 118 .... 118 115 1 19-128 123 129 33 •• 73-75 37 .... 181 37 267-273 278 298-299 116 2 6 •• 33-34 appearance 33-34 .... 2 123 .... 116 119 146 37-39 "5-i 1 7 115-117 115-116 188 .... 138 116 144-145 ■ 67-68 .. 39-40 116 .... I93l 378 INDEX. Judgment. — Continued. Relief to defendant on counter-claim Return to writ, sufficient authority to enter. . Rules not to curtail right to enforce Satisfaction pieces form of Sequestration to enforce Setting aside : absence at trial . . .... application where made default judgment wrong judgment on facts found Signing for costs : on accepting payment into court, in satisfaction . discontinuance ... .... Specially indorsed writs .... affidavit of plaintiff .... defendant application how made . . judge may finally dispose of give directions part of claim, defence as to several defendants showing cause against .... Time for motion for by leave after service of writ See, also, Appeal Counter-claim Default of Appearance . Pleading Entry of Judgment .... Execution Deave to sign judgment and defend Motion for Judgment Officers and their documents . . . Parties Pleading Jurat. Defects in . . . Where more than one deponent. . See Affidavits and Depositions PAGE 65 .. 118 123 .. 119 273 .. 120 •• 97 97 •• 75 "5 .67-68 72 37 37 37 37 38 38 38 38 37 116 117 183-186 ■•63-65 32-36 ••73-75 1 17-1 19 1 19-128 37-39 115-117 192-194 • -39-51 56-61 in no 109-115 Jurisdiction. Defendant out of the jurisdiction .... Of single judge the supreme court .... distribution of business by to hear appeals makes rules. regulate sittings refer questions Jury. Addresses to . .... Cases tried by jury Causes heretofore deemed of an equitable nature tried without jury Dispensing with . Fines for non-attendance Judge may direct trial by . Juries, special .... .... .... List of jury and non-jury trials . . May be required to answer questions of fact .... 28-30 . 10 a 3 " 4 ^-10 18-19 18-20 18 18 16-17 93 94 193 16 94 96 17-18 INDEX. 379 Jury.— Continued. PAGE 93 .... 16 16 .... 94 95 .... 16 16-17 186-192 92-102 Non-jury causes tried at any time the judge may appoint. Notice to be given for v Plaintiff or defendant requiring, must give notice Special jury - Trial with jury to be with one judge Waiver of , When causes to be tried before .'. See Sessions, Sittings, Vacation, &c Trial Justices of the Peace. Affidavits of service of writs of summons may be sworn before 28 Land. Actions for recovery of, forms of .... .... . t . , 253 Entry on by order . . 147-148 Sale of, under execution or foreclosure, when situate in adjoining counties 155-156 Suits for recovery of land, rents, &c, by mortgagors 7 Action for recovery of : Appearance limiting defence 32 form of 214 Appearance by landlord so to state .... 31 person not named as defendant 31 Execution in, enforced by writ of possession 119 Joining claims in ... . 53 Judgment on default of appearance ■ • ■ ■ 34 form of . . 268 for default of pleading 74 Sale under foreclosure of mortgage . . 155-156 Service of writ in vacant possession .... 28 Specially indorsed writ in certain landlord and tenant cases 23 Summary judgment where writ specially indorsed .... 37 Title need not be pleaded in action for land in certain cases. 23 Writ of possession .... .... 146 form of .... .... 282 When in adjoining counties ... 155-156 See Sales by the Court 152-156 LAW. All courts to give effect to Rules of, (except court of probate and sur- rogate courts) .... * 6 Amendments of .... • • • • 7-8 Equity to prevail in cases of conflict not specified ■ 9 Forms of defence including an objection in point of law 266-267 General directions as to administration of law and equity 4-9 Law and equity to be concurrently administered 4 Rules of law 4-9 Questions of law : Abolition of demurrer .. .... ..., 71 Disposal of at trial or otherwise 71 Judgment wrongly entered on findings of fact .. 115 New trial for misdirection ... .... 114 Proceedings in lieu of demurrer. . .... 71 Special case raising questions of law 90 See Special Case 90-92 Libel. Evidence in mitigation of damages 1 98 Payment into court in action for, not allowable 66 Rule 26 of Order 34 not to apply to 97 380 INDEX. LlEN. Amount of lien claimed may be paid into court Of solicitor not to affect set-off for costs.. . Limitations, Statute of' Inapplicable to breach of express trust How pleaded .... Liquidated Demand. Indorsements for- •-■• Taxation of costs in payment of . . Liquidators' Accounts. Passed and verified as receivers' .... PAGE 148-149 198 7 '■58 23 •23 151 Lists. Of causes to be made up .... . . 96 Separate lists of jury and non-jury causes to be made up, bow made up 96 < Local Venue. None, except when otherwise provided by statute . Lost Writ. Copy to be sealed and served in lieu of . . Lunatics. Admissions in pleadings by . . Appointment of guardian in Chancery Chambers Consent to proceedings on behalf of . Default of appearance by .... Estates of How to sue or defend .... .... Order for sale of realty of effect of .... .... conveyance Party to special case Proceedings as to real estate of Proceeds of sale under order, how disposed of. . 4 Report of sale to be filed Service of notice of judgment or order on writ on .... Malice. Allegation of .... Malicious Prosecution. Form of pleadings . . Mandamus. Action of : Claim on writ ... form of .... .... Enforcement against corporation by attachment .... ordering act to be done at expense Extension of time ... Judgment .... Order substituted for writ ... .... Power of Court . . When ma)' be granted by Court .... Interlocutory : Practice on granting 92 26 .... 5 8 170 .... 44 32-33 .... 152 152 .... 152 153 •■• 153 91 152-153 152-153 ••■' 153 48 ... 27 59-60 252 159 221 124 120, 123 124 e of party 124 124 159 159 159 9 •9. I2 3. J 47> H9 INDEX. 381 Marking. Pleadings, how marked Marriage. In case of, Court may order husband to be made a party or served with notice Of any of the parties, not to abate action Married Women. Service when husband and wife both parties Sue and be sued, as provided by law Special case .... PAGE 58 51 •51 Master. Meaning of term To be official referee .... Masters at Chambers. Judges of County Courts to be Matter. Definition of Arising after pleadings . . Memorandum. Of form of service of notice of judgment notice of judgment . . .... Merger. Abolished in certain cases . . .... .... .... Mesne Profits. Default, in action for .... Mis-joinder. See Parties . . .... .... .... Mis-nomer. In capias .... .... .... .... Month. Means calendar month .... Mortgage. Assignment of property and delivery of documents Foreclosure of mortgage .... .... forms . . .... Lands situate in adjoining counties . . .... Mortgagee, right of, to costs out of particular estate or funds • ■ • Mortgagor's powers ■■■■ .... Plaintiff claiming foreclosure or sale, on what evidence entitled See, also, Chambers in relation to chancery (or Equity) matters 27 43 91 207 20 163 2 70, 71 278 278 34 39-51 133 194 155 ■••• 155 234-235 •■•• 155 196 .... 7 35 .... 165 Motion for Judgment. . . — 115 Admissions of facts in pleadings 87 After trial by referee 115 of issues- .... .... 116 Application to set aside where judgment wrongly entered on findings 116 wrong judgment .... 115 Applications to be to the court . . ..•• .••■ .... 115 382 INDEX. Motion for Judgment. — Continued. Limit of tiine for • • • ■ .... Motion for judgment by leave after service of writ Pending application turned into motion for judgment on hearing cause .... .... .... Powers of court .... .... Setting aside judgment by referee down motions for judgment. . .... Some only of issues found Witnesses, directions for examination of on motion for judgment Motions and other Applications Abolition .of rules nisi. . . Adjournment of ... . Application to Court or Judge in court to be by for moneys in court . . .... Ex parte by leave Failure to give notice, effect of .... Length of notice .... Notice to parties affected .... dispensed with in certain cases ... to defendant who has not appeared. . . sheriff. state grounds Order, date of .... Statement of persons to be served with petition Time between notice and motion for hearing a petition . . Writ, no order for return of service of notice of motion with See, also, New Trial .... .... Judgment . .... Multifariousness . See Joinder of Causes of Action . . Multiplicity of Proceedings. To be avoided .... New Assignment. Abolished ... .... . , . . New Trial Amendment of notice Application to be by notice of motion, not by rule to court (in banc) . . Court of appeal may order .... Grounds for granting or refusing must be stated .... New trial as to part, not to affect other findings Power to enter judgment on motion for kules nisi for, abolished .... Security when proceedings stayed .... Substantial wrong . . .... .... Time to serve notice of motion for Next Friend. Consents by, to procedure . . Infant to sue by .... Lunatic, when to sue by Not to be added without consent Written authority of, to be filed PAGE .... 116 117 of 116 .... 116 "5 .... 115 116 .... 117 156-158 156 157 156 158 156 •• 157 . 156 •• 156 156 •■ 157 157 •■ 156 157 ■■ 158 156 •• 158 157 157 114 "5 53-54 70 114 114 114 114 184 114 114 114 116 114 114-115 114 114 44 43 43 44 44 INDEX. 383 Non-compliance. By creditors and in chancery chambers Costs of dismissal of summons on application to set aside for irregularity Effect of ... ... Not fatal .... '....'"".. " Objection to irregularity must be stated . . " On irregularity Prompt application .... "'V " With rules of court any rule of practice or procedure PAGE • 207 174 207 207 207 207 207 207 207 207 Non-joinder See Parties , Not Guilty by Statute. How pleaded .... .... No other plea ... .... Plea same effect as before Notice. Of summons in chancery chambers by advertisement : trial .... writ by advertisement .... .... Notice in Lieu of Service of Writ. Application to set aside Time for appearance .... When defendant foreigner out of jurisdiction form of notice . . order . . Notice of- Motion on Appeal. Appeals to court to be brought, by in a summary way Appellant may appeal from whole or any part of judgment order by .... .... .... Court may direct service of, on any person not a party, &c. amend as may seem fit t No petition, case or formal proceeding necessary other than . . Notices. Affidavits of solicitors or their clerks evidence of service Forms of. (Appendix B.) General provisions . . .... .... .... Hours for service .... How to be received in evidence , . . . . .... Mode of service .... Of court, service by post To be in writing unless expressly authorized to be given orally . . -What solicitors and clerks may make affidavits of service of . . Particular Notices : Limiting defence in ejectment .... ■ • ■ ■ , form of . . Of appearance by landlord . . disputed claim in chancery chambers judgment to do a specific act .... order or judgment in administrations, &c . form . order, &c, on person under disabilitv trial ... .... .... .... To sheriff to bring in body • • • • •third party .... See Trial .. 42 39-51 58 58 58 172 96 27 • • ■ ■ 32 29 • ■ • • 3° 212-213 296 183 .... 183 183 .... 183 183 .... 205 222-232 . ... 205 195 205 205 . . . . 206 205 205 32 214 31 175 118 171 278 48 • 96 157 48-51 95-97 47 384 INDEX. Oaths. Affidavits, before whom sworn . . Authority to administer Clerk's oath on commission to examine witnesses Commissioner's, on commission Interpreter's, form of, on commission ... .... Judge's oath of office .... ' ' Oath ' ' includes solemn affirmation and statutory declaration . On commission to examine witnesses .... Witnesses on commission to examine .... .... See Affidavits and Depositions Examination of Witnesses . . .... Office Copy. Authenticated copies ... Certified copies to be evidence . . .... .... Copy of affidavit .... .... OFFICERS AND THEIR DOCUMENTS. Authenticating documents .... .... Bill of items, prothonotary to furnish Books to be kept at prothonotary 's office and entries therein . . . Certiorari, commissioners allowing. . .... .... Dates of judgments, record of . . . .... .... Documents numbered and dated Duties of officers, judge's power to make rules regulating Enrolment of judgment or order unnecessary Filed papers not to be taken away Fines, statement of . . .... Forms to be used by .... Indexes or calendars to the files or bundles of all documents toibe Officers of court, their duties regulated by rules of court Pending business .... Progress of cause, certificate of .... .... Record of time of filing documents to be kept. ... Seals of prothonotaries .... .... Securities to prothonotary as obligee, how enforced Official Referee. Appointment of PAGE no 107, 194 288 287 287 3 2 107 287 109-113 • 103 -109 192 103 in 192 194 192 194 ■ 193 J 93 20 192 193 !93 kept 193 192 20 21 193 193 192 193 Powers and duties of. See Referee 100, 101, 177, 179 Opinion. Of court may be taken on questions of law, before trial of questions of fact .... Order. Amendment of slips and errors in Definition of .... Drawing up in chancery chambers Form provided for at chambers form of Forms of orders .... Hours for serving .... May be enforced as judgment Mode of service .... Substituted for writ of capias injunction 90 See Execution Interlocutory Order Judgment ... mandamus . replevin . . 2 173 162 290 288-317 195 205, 123 2o6 131 149 159 119 134 -128 147 -151 115 -117 INDEX. 385 Orders. Absconding Debtors : attachment .... subsequent attachers assessment of damages ... summons to agent security for release of property security on execution .... re-hearing ..... forms .... .... .... Account, application for Accounts, issues, inquiries . . Action : form and commencement of.( joinder of causes of ... . ( matters arising, pending . . . . ( Address, indorsement of ( Admissions .... ( Affidavits, generally . . . . ( in chambers ( ' trial on .... ( Amendment .... ( Appeals .... .... .... ( Appearance . .... .... ( Application for account. Applications and motions . Arrest of defendant Attachment of debts Case, special Causes of action, joinder of Chambers . . equity Change of parties Claim, indorsement of. . statement of. Companies, foreign Concurrent writs ... Costs . . .... Counter-claim and defence . Debtors, absconding .... Debts, attachment of Defence and counter-claim Defendant, arrest of .... Default of appearance pleading .... .... Delivery, writ of .... Demurrer, proceedings in lieu of Directions, summons for Disclosure by solicitors Discontinuance .... Discovery and inspection .... Entry of judgment . Equity Chambers Evidence . . Execution and sequestration writs of( Firms, actions by and against ( Form and commencement of action ( Foreign companies ( General rules .... ( Indorsements of claims ( Inspection and Discovery ( 49 ( ( ( ( ....(. ( ■-••(' ( ( ....( ( ■■••( .(. Declaration on originating summons. ( ■ •(Or. XLVI, rr. i to 5). ( " " " 6 " 10) ..('; " "n".i 3 ). ( " " " 14 " 20) ( " " r. " 21). ■•( " " r. 22) , ( ;: ;: r - " *>. ■■( " r. " -24) ( " XV, rr. 1 and 2) ( " XXXII, rr. itoio) I, rr. 1 and 2 XVIII, rr. 1 too) .. XXIV, rr. 1 to 3). IV, rr. 1 to 3). XXXI, rr. 1 tog). XXXVI, rr. 1 to 19 a) " 20 " 24) 25 " 30) 1 " 14) 1 " 17) 1 " 18) 1 and 2) 1 to 16) (. ( •I ( •( ( ■( ( ( ( ' XXVIII, ' LVII, ' XII, XV, LII, XLIV, XLII, XLIII, XXXIII, , XVIII, LIV, LV, XVII, III, XX, XL VII, VI, LXIII, XXI, XLVI, XLIII, LIV a, XXI, XLIV, XIII, XXVII, XLIX, XXV, XXIX, VII, XXVI, XXX, XXXIX, LV, XXXV, XL, XLI, XLVII a I, XLVII, LXX. Ill, XXX, r. rr. 15) 2) 9) 7) 9) 16) 49) 10) 7) 6) 7) 1 and 2) 1 to 23) 20) 24) 9) 4) 20) 15) 13 A.) 14) 2)- 5A) 7) ) 4) 31) II) 49 > 38). 47) 4)- 11) 1 and 2) 1 to 7) 1 " 3) 1 " 7) 1 " 3i) PAGE .... 137 138 138-139 I39-I4I .... 141 141 .... 141 • • ■ 141 39 .. 88-90 21 •■ 53-54 70-71 .... 24 86-88 .109-112 112 .... 113 76-77 . 183-186 30-32 .... 39 156-158 •131-134 129 .129-131 90-91 •••53-54 159-162 •165-179 51-53 . . 22-24 61-62 • 141-143 25 .195-204 63-65 ■I37~i4i 129-131 . . . . 162 63-65 131-134 •• 32-36 73-75 . 146-147 •• 7i ■■ 78-79 25-26 . . - • 72 79-86 . 117-119 • 165-179 103-109 • 1 19-128 . 128 .143-146 .... 21 141-143 . . . 208 22-24 ■■ 79-86 386 INDEX. Orders . — Continued . Interlocutory orders .... .... Interpleader .... Interpretation.. .... .... ■ Issue of -writs of summons. . Issues, inquiries and accounts . . of fact without pleadings . . . Judgment, entry of ... . .... motion f or . . . .... where writ specially indorsed Joinder of causes of Action . . Jurisdiction service out of Mandamus, action of .... Master at Chambers .... Motion for judgment new trial .... .... Motions and other applications . Non-application of rules Non-compliance .... Notices .... Officers and their documents Orders, interlocutory ... .... service of . . .... Originating summons declaration on Parties .... change of .... Payment into court and tender • • • Pleading, default of . . . .' generally .... Pending the action, matters arising Proceedings in lieu of demurrer . . . Possession writ of .... Renewal of writ Replevin Reply ' Rules . . .... general .... non-application of Sales by the court.. .... Sequestration, writs of and execution Service of orders ... .... writ of summons .... out of jurisdiction . . substituted Sessions, sittings and vacations . Sittings, sessions and vacations. Special case .... Statement of claim .... Substituted service .... Summons for directions issue of writs of . . service of ... . writ of . . . Tender, payment into court and Time Trial.... without pleadings .... Trustee Act proceedings under. . Vacations, sittings, sessions Writ of delivery .... possession . . .... summons .... Writs of execution and sequestration Or. L, r r, i to 23) LVI, r r. 1 to 17) .... LXIX, r r. 1 and 2) V, rr. 1 to 6) • XXXII, r r. -I to 10) XXXIII rr. 8 to 11) .. XXXIX, rr. 1 to 11) .. XXXVIII, r r. 1 to 12) XIV, r r. 1 to 9) .... XVIII, r r. 1 to 9) XI, r r. 1 to 5A) LIII, r T . 1 to 4). LIV, B, r r. 1 to 3) XXXVIII, r r. 1 to 12) XXXVII, 1 to 8) .... 1,11, r r. 1 to 16V . . LXVI, r r, 1 and 2) LXVIII, rr. 1 to 4).... LXIV, r r. 1 and 2) LIX, r r. I to 17) .... L, r r. 1 to 23) : LXV, r r. 1 to 8) . . LIV a) XVI, r r. 1 to 56) .... XVII, 1 to 10) XXII, r r. to 1 to 17).. . XXVII, r r. 1 to 14) . XIX, r r. 1 to 29) .... XXIV, r r. 1 to 3) XXV. r r. 1 to 5 A) .... XL VIII r r. 1 to 4) VIII, rr. 1 to 3) XLV, r r. 1 to 9)... XXIII, r r. I to 6) LXX, rr. 1 to 3)... LXVI, rr. 1 and 2) • . . ■ LI, r r. 1 to 12). . . . XLL 1 to 47) LXV, r r. 1 to 8) . . ■ - IX, r r. 1 to 10) XI, r r. 1 to 5 a). . . . X) LVIII, r r. 1 to 24) LVIII, r r. 1 to 24) .... XXIII, r . 1 to 7) . . . XX, r r. 1 to 6) X) XXIX, r r. 1 to 7) . . . . V,rr.ito6) IX, r r. 1 to 10) II, rr. 1 to 6) .... XXII, rr. 1 to 17) .... LX, rr. 1 to 9) XXXIV, rr. 1 to 48) • XXXVIII A, r r. 1 to 6) LIVc, rr. 1 to 6) . . LVIII, rr. 1 to 24) .. XLIX, rr. 1 and 2).... XLVIII,. r r. 1 to 4) II, r r. 1 to 6) XLI, r r. 1 to 47) .. PAGE ■ 147-15? 179-183 207 • ■ 24-25 88-90 ••91-92 117-119 .115-117 •37-39 53-54 • 28-30 159 . 163-164 ■115-117 114-115 ■ 156-158 206 •-■ 2 °7 205 192-194 147-15 1 • 205-206 162 ••39-51 51-53 .66-69 73-75 •56-61 70-71 ... 71 146 ... 26 • 134-136- 69-70 208 206 . 152-156 1 19-128 . 205-206 . . 27-28 28-30 ... 28 • 186-192 186-192 90-91 ..61-62 _ 28 • • 78-79 24-25 . . 27-28 22 ..66-69 194-195 92-102 •-•55-56 164-165 . 186-192 146-147 146 .... 22 1 18-128 INDEX. 387 Orders. — Continued. page Writs of summons, issue of .... (Or. V, r r. I to 6) . . .... ..24-25 service of ( " IX, r r. 1 to 10) 27-28 concurrent.. ( " VI, r r. 1 and 2) .... 25 Orders, Service of. Affidavits of service, what to contain ... .... 206 Constructive service .... .... .... .... 206 Original need not be shown except for attachment .... .... 205 Party suing in person afterwards employing solicitor 206 Service of documents where personal service not necessary .... .... 205 by post . .... .... 205 on solicitor appearing for person not a party .... 206 Where no appearance or no address .... .... .... 205 personal service not necessary, what to be sufficient 205 Originating Summons. Administrations and trusts .... 166-170 166-170 .*.. 160 160 36 162 .... .... 162 162 .... .... 162 .... .... 160, 162 159 .... 207 159 29 .... .... .... 160 Appearances to be entered. Attendance on notice of Default of appearance to For determination of rights Application for Discretion of judge .... Evidence .... Service .... .... .... • Form and issue of ... . Interpretation of term Preparation of .... Service of, out of jurisdiction Time of service See Proceedings under Trustee Act , 164 Particulars. Forms of orders for • 293-294 Further and better 57 Order for, no stay of proceedings .... 57 Time for pleading after delivery . . .... 57 When to be stated in pleading ••■• 57 Parties. Abatement, parties may be added . . .... ■••■ 5 1 Adding parties : at any stage of proceedings 42 bankruptcy, death or marriage .... .... 51 beneficiaries in addition to trustees ... . ■ 4 1 by motion or summons before trial 43 in a summary way at trial • • • ■ - • • ■ ■ ■ ■ • 43 on notice . . • • • • • • • • • • ■ ■ 43 > 4 8 third parties 4 8 ~49 Additional plaintiff 39~40 how added 4 2_ 43 statement of claim 43 Additional defendant 4°~4i amendment of writ of summons 43 statement of claim 43 Administrations ; 45~4 8 Amendment, how and where made . . 43 Appearance by new •■•• 5 2 third 49 Assignment ■■•■ •••■ _ ■■■■ 5 1 Beneficiaries may be joined, added, or substituted. . 4! 388 INDEX. Parties.- — Continued. Beneficiaries need not be joined in foreclosure Change of parties ... adding new, ex parte .... .... after judgment .... .... application to discharge order by persons under disability time for assignment pendente lite bankruptcy death .... .... successor in interest may be joined effect of order .?. . marriage . . husband may be joined service of order ... . . . / Character of parties to be indorsed on writ forms of indorsement. . Class : one may sue or be sued on behalf of a representatives of an unascertained Compromise of trust proceedings Counter-claim, persons interested in to be added where misjoinder of co-plaintiff Co-partners . .... .... .... Death of ■'■■■ ' .... Defective action, parties may be added Defendants jpintly or severally . . Devolution of estate of .... Doubt as to proper parties .... .... doubtful plaintiff .... .... Executors and administrators alone .... beneficiaries may be added .... in cases of foreclosure .... Firm, actions in name of .... Foreclosure .... .... .... joinder in cases of Heir-at-law, inquiry as to need not be joined in foreclosure person appointed to represent Infants sue by next friend ... appear by guardian .... form of affidavit by solicitor Interpretation of term ' ' Party " .... Interrogatories by .... .... i Joinder of parties. . .... Jointly and severally liable .... .... Lunatics .... .... .... Marriage of ... . .... Married women .... ..... .... Misjoinder not to defeat action . . .... affect counter-claim Mortgagor suing alone, when .... Non-joinder . .... .... Notice to third party .... .... Next of kin . .... Numerous parties may be represented by one .... One person carrying on business in name of firm Original in new capacity , ■ ■ • . .... .... Partners can sue and be sued in name of firm . . Party appointed by court .... .... Paupers by and against .... .... Plaintiff, joinder of .... .... .... appearing PAGE 41 • 51-53 51-52 122-123 52 52 52 51 51 51 51 52 51 51 52 23 222 45-47 45-46 .. 42 64 .. 40 143-146 5i • 5i 40 ■ 5i 40-41 . 40 4i • 4i 41 • 143 41 • 41 45-46 • 41 46 • 43 43 for 216 79-86 39. 4° 40 ■• 43 51 ■• 43 42 .. 40 7 42-43 48-49 45-48 45-46 •• 145 51-52 ■• 143 41 44-45 39 IM>EX. Parties.— Continued . Plaintiff, joinder of not to cause embarrassment, &c Representative character to be endorsed on writ forms of such indorsements . Representation of a class Residuary legatee Service with notice of leave on continuing parties _ motion dismissed where parties not served Serving new defendants with statement of claim Striking out .... Substituted plaintiff application for substitution Third parties : appearance by . .... contribution against default of appearance by pleading by . defence by , defendant may bring in . . execution by and against form of notice of counter-claim garnishee. .... indemnity against indorsement of writ served on form of . . . .... issues affecting .... notice to .... .... .... recovery of land ... reply to counter-claim by .... service of counter-claim on summons to. . . .... .... Trustees represent beneficiaries. . Trust proceedings, compromise in case of Wrong plaintiff. . .... See Administration and Execution of Trusts . Change of Parties by Death . . Defence and Counter-Claim . . ■ ,. Parties ( Generally) Partners .... Persons under disability . . , . Paupers . . . . .... Third Party Procedure .... .... 389 PAGE .... 39 23 .... 222 45-48 .... 46 48-49 .... 52 157 .... 43 42 • • ■ • 40 43 .... 49 48-51 .... 49 75 .... 50 5 .... I2 3 222-223 .... 223 130 ...48-51 64 223 75 5. 48-49 31 .... 64 64 .... 64 41 . . . . 42 40 ...45-48 51-53 ...63-65 39-43 .143-146 34-44 ■ • -44-45 48-51 Partition. Evidence on . .... .... .... .... 35 Form of praacipe for commission of .... 276 Form of statement of claim for, or sale of real estate 238 Where notice of judgment or order for, to be given .... .... 47 plaintiff claims foreclosure, administration or partition, entitled to judgment, on what evidence .... 35 Partners. Appearance by . . .... ... 144 no, except by member of firm. . .... ,•■■ 144 under protest .... 144 Attachment of debts due firm .... ..... .... 145 Co-partners, &c, actions between .... 145 Application of rules, &c. . .... .... 145 Disclosure of names 143 form of order for. . .... .... .... 293 court or judge may direct .... •••• v .... ..57,143 390 INDEX. Partners. — Continued . Execution against firm . . by name of court May sue or be sued in firm name Notice, in what capacity served Person trading in firm name .... Service on . . .... Pauper. Affidavit verifying case . . Assignment of solicitor or counsel . . Case before counsel .... Duties of pauper's solicitor. . Freedom from court fees Prohibition as to giving or taking fees Rules as to proceedings as .... Suing as . — .... • ■ ■ • .... Taxation of costs of ... . .... PA&E 144 •• 145 143 •■ 144 145 •■ 143 44 •■ 45 44 •• 45 45 •• 45 44-45 •■ 44 45 Payment. Of disputed chose in action, debtor, trustee, &c, may pay the same into supreme court . . . . ■ • .... 8 The manner of payment into and out of court to be subject to regula- tions in Appendix M .... 68 Payment into and out of Court and Tender. Acceptance by plaintiff in satisfaction .... time limited for . . ■ • • .... notice to defendant . . form . . .... Application to convert stock, &c. .... Claim satisfied by payment to be specified Costs taxed .... .... Counter-claims, payment may be made by plaintiff. . . Debt or pecuniary damages ... Execution to enforce payment in How appropriated .... ■ ■'■ ■ made . .... .... In consolidated actions . . Interim order for payment in Judgment for costs after acceptance form of judgment. Jury not to be informed of Lien claimed, payment into court ordered. . . Money to remain in court if not accepted of persons under disability . . how invested .... paid in previous to Rules subject to control of court Notice of payment (before defence). form of . . .... of acceptance in satisfaction . form of . . Payment into court, how appropriated out to plaintiff solicitor on written authority to be pleaded in defence .... Plaintiff may accept or refuse .... Provisions relating to payment of money into and out of court deemed to be provisions relating to practice and procedure Rules in Appendix M . . . .... Signing judgment for costs if not paid Taxation for costs after acceptance in full satisfaction 67-68 .. 67 68 68, 224 69 . 66 67-68 . 68 66 . Iiq 68 . 66 68 ■ 147 67-68 . 272 69 148-149 67 68-69 69 ... 68 69 ... 66 69, 223 . 67-68 224 68 66 66 66 67 19 68 68 68 INDEX. 391 Payment into and out op Court and Tender. — Continued. page Tender 66 Time for payment .... 66 limited for acceptance in satisfaction . . .... 67 When admissible .... .... 66 Where lien claimed, payment into ordered . . .... 148-149 With leave after defence .... 66 Appendix M. 336 Accountant-General to invest according to order of court or judge and report .... .... 336 Books to be kept by prothonotary and Accountant-General • ■ ■ • 336 Books to be kept by prothonotary and Accountant-General to be open to inspection .... .... .... 336 Report to be made annually by prothonotary and Accountant- General.. .... .... .... .... .... 336 When money is to be invested, prothonotary shall pay over to Accountant-General . .... .... 336 When securities are to be sold, &c, Accountant-General to carry out directions and report .... .... 336 Penalty. Leave to compound penal action . ■ ■ ■ .... .... 149 Notice when part goes to the Crown . .... 149 Order to compound, what to state .... .... 150 Crown's half, how appropriated ~. . . . .... .... ■ • ■ ■ 150 Pending Action. Confession of defence .... • ■ ■ • ... ■ ■ ■ ■ 7 1 form ... 224 Pleading matters arising ... . ■ -^ 7° before statement of claim ... .... 7° after statement of claim 7° Pending Application. May be turned into motion for judgment, when 116-117 Perishable Goods. Power to make order for sale of . . .... • • ■ • I37 _I 38> i4'7 Perpetuation of Testimony. Action to perpetuate testimony 108-109 Attorney-General may be^ made defendant * ■ • • 109 No examination before action ■■ • • • ■ ■ • i°9 Trial not necessary ■ • • ■ • • • • io 9 Person. Interpretation of term 20 7 Personal Representative. May be made party to action or served with notice in case of death of any of the parties to an action 5 I Petition. Address for service on 2 4 Evidence on, by affidavit •■■• io 9 Exception of petitions from certain rules of pleading 5»"59 For purchase money to be paid into and out of court 15° Hours for serving ^95 In cases of appeal not to be necessary io 3 Interval between service and hearing J 5° Mode of serving 205 20b 392 INDEX. Petition. — Continued. page No new pleading except petition or summons .... ... 58-59 Persons to be served, statement of .... .... 158 " Petitioner " includes applicant by motion or summons 2 " Plaintiff " includes petitioner. . .... 208 " Pleading " includes petition .... : ... 1 Service .... .... .... 205-206 Pleading. Abatement, plea in, abolished .... .... 65 Admissions oi facts not denied.. . .... .... 58 denial to be specific, or by necessary implication. 58 except as against infants and lunatics .... .... 58 All facts must be pleaded to prevent surprise .... 58 Alternative reliance on several contracts or relief .... 60 Amendment of pleading .... ... 60, 76-77 Bankruptcy of parties . . .... ... .... .... 51 Burden of proof .... 60 Claim, statement of .... .... ... .... 61-62 Close of pleadings .. .... .... .... .... 70 by default of pleadings .... .... > . . . . 75 Condition of mind . . .... .... .... ...59-60 Conditions precedent need not be averred .... .... 58 Confession of defence .... .... .... ■ ■ • • 71 Consideration for bill of exchange 60 Contents of .... 57 Contracts, implied from letters, conversations or circumstances. . . 60 contract to be alleged as a fact with general reference 60 Copies delivereed on entry for trial .... .... 96 to be certified by prothonotary .... .... 96 Costs : confession of defense arising after action brought .... 71 •facts improperly denied oradmitted . , 64 prolixity of .... .... .... 56 Counter-claim .... 56, 63-65 Dates to be in figures .... .... .... 57 Damage, special, need not be alleged in certain cases 61 Default of 73-75, 76 Death of party 51 Defence .... 63-65 Definition of .... .... 2 Delivery of .... ■•■■ ... .... .... 57~58 amended pleadings 76 by filing if no appearance entered .... .... 58 copy of pleadings at trial to prothonotary 96 defence .... .... .... 57, 63 in manner now in use .... .... . . 57-58 reply 57. 69 statement of claim .... 57, 61-62 vacation .... ... 186-187 Demurrer abolished .... .... .... .... 71 . Denial must be specific . . .... .... 59 answer point of substance .... .... 59 not to be evasive .... ' .... 59 of contract ... .... .... 59 representative character to be specific . . .... .... 63 Discontinuance .... .... .... .... .... 72 Documents, contents of . . .... .... 59 disclosed in pleadings must be produced 81-82 Embarrassing to be struck out. . . .... .... .... 60 Evasive denials 59 Evidence not to be stated .... 57 Executor, character as, to be specifically denied .... 63 INDEX. 393 Pleading.— Continued. Facts not denied specifically taken to be admitted except as against infants and lunatics only to be stated . . .... relied on to be raised . . arising pendente lite confession of, by plaintiff costs .... counter-claim . .... further defence or reply Figures and not words .... Filing, in what cases .... Forms of pleadings in various actions. Appendix C, D., E 232-253 Fraud, particulars in ... . * Fraudulent intention Further and better, particulars . . Implied contract or relation Includes petition and summons . . Inconsistent facts, with previous pleadings . . Interpretation of term .... Issues of fact settled Joinder of causes of action .... .... issue .... close of pleadings by no pleading after reply without leave Joinder of parties .... .... Knowledge . . .... .... .... Land, action to recover. See Land. Leave to deliver after reply .... further defence or reply .... Legality or sufficiency in law must be denied Mandamus . . .... Marking, pleadings with : date of delivery description of pleading letter and number .... title of action .... Marriage of party ... Material facts to be stated Matters arising after action brought . .... Must be consistent with previous case ... .... New assignment abolished . . .... amendment instead of New grounds of claim only by amendment. . . No technical objections to .... Not guilty by statute .... no other defence without leave . . Notice to be alleged without the form .... Numerical figures .... Paragraphs numbered . . f . Particulars in certain cases Payment into court. . .... .... Pendente lite, matters arising .... .... .... Possession of defendant in action for land .... Preliminary question of law • • ■ • Presumption of fact .... law .... ... Printed or written, or partly printed and partly written Prohibition .... .... Prolixity, costs incurred .... .... .... Release must be pleaded .... .... Relief must be specifically stated .... ■.< 5° 254 -263, 56, PAGE 58 58 57 58 70 7i 7i 70 70 57 58,60 264-267 57 59-60 57 . 60 58-59 2 . 90 53-54 • 59 70 . 69 39-4o . 60 69 • 70 59 • 159 58 ■ 58 58 • 58 51-53 57 70 58-59 70 70 ■58-59 60 58 58 60 57 57 - 57 .66-69 70 65 90 60 59 57 206 201-202 58 . . . . 62. 394 INDEX. Pleading. — Continued. Reply ... .... •••• Right as executor to denial specifically Rules substituted for old rules . . may be made regulating .... for payment of money into and out of court Set-off "• Setting aside judgment by default .... Signature of solicitor or party necessary .... Slanderous words spoken of a woman ' Special damages need not be alleged in certain cases Specific denials.. Statements in, to be in a summary form brief Statement of claim .... defence reply Stating evidence, improper. . material facts sufficient Statute of frauds .... limitations- • -i Striking out counter-claims defence pleadings Subsequent to reply, time for leave required . . Sums to be in figures .... Technical objections not allowed on grounds of form Third parties ' Time for : after particulars ... amendment .... .... close of pleadings . . counter-claim, amendment of reply to delivery of defence reply ... statement of claim enlargement of set-off, amendment of. Trial, delivery of pleadings on entry for without pleadings- Undue influence, particulars in Vacation .... .... What facts must be pleaded. Written or printed .... Wilful default, particulars in .... Woman, slanderous words spoken of Written alteration by way of amendment 56: PAGE 69-70 63 56 18-19 68 63-65 75 -57 61 61 59 57 57 61-62 ■63-65 69-70 57 58, 72; 57 59 58 56 84 60 69 69 57 60 -5i 57 76 70 76 64 63-65 70 61-62 195 76' 96 55-56 57 186-187 58 57 57 61 77 Point of Law. How raised .... Possession. Affidavit of service of judgment before issuing writ of , Effect of writ of . 1 . . . . Mortgagor may sue for, if no notice from mortgagee to take . Service of writ, where vacant possession . Separate execution for possession and for costs Writ of possession .... Posting op. In place of service . . .... .... . . , , , , , 7i 146 446 7 28 146 146 205 INDEX. 395 pQUNDAGE. PAGE To be levied under writ of execution 121 Precipes. Forms of, (Appendix G.) .... 273-278 Precedence. Of Chief Justice 8 Qther judges .... .... .... 3 Vacancy in office of Chief Justice 208 Preliminary. Questions of law may be heard prior to trial go Preservation of Property. See Interlocutory Order 147-149 Printing. Evidence and documents to be used at argument 190-192 Pleadings may be printed or written, or partly printed and partly written ... .... .... 57 Rules for printing case for argument 190-191 Special case . .... 91 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 191 Procedure. Additional Rules may be made by judges .... . .18-19 Chambers .... ... 159-162 Chancery Chambers. .... .165-179 Divorce or other matrimonial causes .... .... 206 Effect of non-compliance .... .... 207 Existing, to remain in force where no provision made by Act or Rules . .... .... 208 Practice or procedure in criminal proceedings unaffected 206 Prohibition .... .... .... 206 Provisions of the Act and Rules to receive' liberal construction .... 20 Referees, procedure before regulated .... 20 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 . .... 18 Trial by jury 16-18, 94 Proceedings. Action, other than .... 21 Amendment, if defect or error in 1 ■■■■ .... .... 77 Other than action ■„ 21 Production of Documents. Before examiner • ■ • • 103-107 For inspection . . .... 81 Notice to produce ... .... • ■ • ■ • • ■ • 87 Subpcena duces tecum ' 107, 108-109 forms of 283-284 See Discovery and Inspection 79-86 Prohibition. Application of certain rules to .... ■ • • 206 Cause in supreme court not to be restrained by . . 6 Form of writ .... ■ • ■ ■ • ■ • • • • • 285 Injunction may be granted by interlocutory order of the court .... 9 Pleadings in .... . • ■ ■ • ■ • • • • ■ • • * ■ • 20 ° Prolixity. , PAGiJ Costs of in writs and indorsements .... .... 22 in affidavits . . ; • ■ - .... no discretion of taxing authority . . .... 201-202 /pleadings.. _ '. 57 title of affidavits .... 109-110 Pleading to be a summary statement . .... 57 Promissory Note. Action on, writ may be specially indorsed 23 All or any persons severally, or jointly and severally, liable on may be joined as parties ' I 40 Form of statement of claim . .,.. .... .... 240 defence .... 257-258 See Bills of Exchange. 1 \ Property. Absent or absconding debtors .... .... 137 Detention, preservation and inspection of .... 147-148 Inteiim preservation of 147 Sale of perishable .... .... .... .... 147 stock or goods of perishable nature of absent or absconding debtor .... 137-138 Where property to be repleyied is concealed .... 135^136 Prothonotary. Definition of term ... .... 208 Duty of with decision ... ' . . .-> .... 17 to furnish bill of items when required .... 199 To group causes for argument before court at Halifax .... 188 examine bills of costs .... 199 keep record of attachments . . .'■ ■■ .... 130-131 When may tax costs . .... .... .... 199 See Officers and their Documents .... .... 192-194 Questions of Fact. Consent to pay money arid costs on findings . . .... .... '92 Entry of judgment on findings . . ...... .... .... 92 Issues by consent and order . .... . . 91-92 Jury may be required to answer in certain cases. . .... 17 May be referred by judge in certain cases .... ... 16-18 Recording proceedings on issue . . 92 Without pleadings . . ... 91-92 Questions of Law. Abolition of demurrer ... .... .... .... 71 Judgment wrongly" entered on findings of fact ... .... 115 New trial for misdirection .... .... .... 114 Proceedings in lieu of demurrer .... .... ..... 71 Special case raising questions of law .... 90-91 See also Law. Quorum of Court. Four judges to constitute .... .... jgy Real Estate. Allowance of income out of Amendments of law as to 149 7 Bound by a judgment or mortgage, situate in adjoining counties 155-156 Conduct of sale of 149 Foreclosure, partition, &c... .... .... .... ,c k/ INDEX. 397 Reai, Estate.— Continued. Infants, estate of .... .... .... Heir-at-law as party to action ....41 Legatee witb charge on Lunatics, estate of . . Mesne profits and damages .... Recovery of . .... .... .... Sales of . .... .... .... .... .... Situate in adjoining counties Nova Scotia, service on defendant out of jurisdiction • ■ Writ of possession . . .... .... See Chancery Chambers . .... PAGE • 152-154 45-46, 48 46 . 152-154 34 .... 34 154 x i55-i56 28-30 146 • 165-179 Receiver. Application ex parte to appoint . . .... Appointment of, matters to be considered .... • Adjournment for security to be given .... Deposit of completed accounts in prothonotary's office Form of accounts. (No. 13, Appendix L.) ■ • • • statement of claim for .... Indorsement of claim for , • ■ ■ ■ .... Interlocutory order for .... 1 Passing accounts by .... Penalty for neglect . . .... .... Power to appoint Security to be given by form of. (No. 19, Appendix L.) Verification of accounts .... ■ ■ ■ • form of (No. 20, Appendix L.) Record. Entry of findings of fact, and certificates of judge at trial . Supreme Court to continue to be a court of . . .... Withdrawal of . . . .... - ■ • • • • • • • 9. 148 .... 150 150 .... 151 327-329 234. 237 22 • • 9. 148 151 .... 150 9 .... 150 333-334 ••■■ 151 334 90 3 72 Rectification. Statement of claim in action for 237 Referees. Adoption or variation of certificate on further consideration Authority of referee . .... Control of court over referee Dying, declining to act, &c . . Discretion as to costs .... • ■ ■ • .Effect of findings or certificate Evidence and procedure before .'. Forms of orders of reference Generally, provisions respecting Judge may appoint in case of death, refusal to act, &c Motion to set aside certificate of . .... limit of time for .... No authority to commit Notice of referee's report Official referees, appointment of Power to direct judgment to be entered 4 form of judgment submit questions to court . . as to discovery ... to order trial before special or official Report of referee^ • • • • , To sit de die in diem ■ • ■ ■ Trial and proceedings before 178-179 17. 177-178 ... 90 IOI ... 177 177 300-301 177-179 ... 90 178 ... 178 100 . . . IOI 20 100-115 269 IOO-IOI IOO ... 94 IOO-IOI . . . IOO IOO-IOI 398 tirofiX. Referees in Chancery Chambers. Accounts, &c, may be referred how taken . . . ■ ■ Certificate, form of.. .... may be prepared by solicitor . . in case of account . to be filed discharge of .... Chief clerk in England, to take place of. Computation by, may be acted upon without order Opinion of judge may be taken . . Parties and witnesses bound to attend, &c • Powers of .... Relief. All remedies to be granted and multiplicity of suits avoided Equitable to plaintiffs and defendants Common law rights, recognition of .... Counter-claims and third parties .... Indorsement on writ of relief claimed .... Power to grant relief to defendant and third parties . . Separate causes of complaint .... y . . . . See Execution. Interpleader. Renewai, of Writ Evidence of . Execution evidence of . . Form of memorandum for notice of order for. . .... praecipe for renewal' Leave to renew within twelve months Lost writ ... Renewal for six months .... .... Rents. Form of statement of claim for .... Mortgagors, in certain cases, may sue for Repeal. Powers of court to . . .... .... Repealed Rule. When not revived ... .... PAG^ .... 177 177 178, 321 177 .... 178 178 .... 179 177 .... 177 178 .... 177 177 7 4-5 6 5 22 5 62 26 26 122 122 26, 213 230 297 276 26 26 26 217 7 . . 18-19 .... 208 Replevin. Affidavit for, to be filed before issue of order . .... form of .... .... Bond to sheriff form of . .... Defendant may retain possession on giving security. . Form of bond to retain property . .... Order of, form of .... .... ... Return to order, what to contain Search of defendant's person and premises. . . Service of order . .... .... when to be made .... .... Sheriff's duty, on receipt of order .... .... .... When property concealed, building may be broken open after demand Writ abolished, order substituted .... form of order .... .... .... 134-136 ... 134 134, 3*3 ■••• 135 135, 3 J 3 ... I3 6 313 ... 312 136 135-136 135 ••• 135 135 135 134 312 INDEX. 399 PAGE Reply and Subsequent Pleadings. Amendment to supersede new assignment 70 Forins •••• .... 264 Leave necessary after reply 69 New assignment abolished , . . . 70 Pleadings closed on joinder of issue .... 70 Time for pleadings after reply , 70 limited for reply 69 Where counter claim pleaded .... 70 Reporters. May be appointed 99 REPRESENTATI VE . Action by, on behalf of estate 41 Deceased person .... ■ ■ 41, 46,48 Denial of representative capacity . . .... .... .... 63 Heir-at-law 45-46, 48 Next of kin .... .... . . 45-46 Representative action ... .... .... .... 41 Writ by or against . . .... .... .... 23 Return. Notice to sheriff, if not complied with, to entitle person to apply for order for commital .... 157 Service of writ of summons, before whom sworn .... 28 Rules for the Concurrent Administration of Law and Equity. ( 1 .) Plaintiff to be entitled to relief on equitable grounds .... 4-5 (2. ) Defendant to be entitled to relief on equitable grounds 5 (3.) counter-claims and third parties •■•• .... 5-6 (4.) Equities appearing incidentall 3' ... . .... .... 6 (5.) Defence or stay of proceedings instead of injunction or prohibi- tion .... .... .... 6 (6.) Common law and statutory rights and duties 6 (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 purpose held, may annul or alter and amend and make further or additional Rules of Court 18 Particular ly : (.1.) To regulate sittings of court and judges in chambers. ... 18 (2.) the pleading, practice and procedure, and the rules of law in certain cases. 18 (3. ) For the providing of juries .... .... 18 (4.) For hearing of appeals, matters brought up by writs of ce t tiorari 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 .... 18-19 (5.) Relating to payment into or out of court, what deemed to be 19 (6. ) Generally to regulate practice and procedure, costs and matters deemed expedient for the better attain- ing the ends of justice ••-• .... 19 Interpretation of term ' ' Rules " 1 Judges to continue to have power to make Rules • • •'• 19 May modify statutes in certain cases 19 Official referees . N 2 ° Repealed on address of Legislature 20 Rules of 1884 not to affect criminal or divorce proceedings 206 400 INDEX. Rules op Court. — Continued. . To be laid before Legislature published in Royal Gazette .... .... regulate distribution of business. I. duties of officers of court .... .... have force after publication in Royal Gazette Page . . 20 19 18-19 20 • • 19 Rui.es of Law. Upon certain points declared, viz. : (1 (2 (3 (4 (5 (6 (7 (8 (9 Statute of Limitations inapplicable to express trusts Equitable waste .... Merger .... .... .... Suits for recovery of land, rents, &c, by mortgagors Assignment of debts and choses in action . . Stipulations not of the essence of contracts Mandamus, injunctions and receivers .... Custody of infants .... Cases of conflict not enumerated ... Rules Nisi. Abolished in actions certain other cases .... .... .... motions for new trial Sale. t In interpleader .... .... Debenture holders action .... Judge to approve sale, and all parties to join .... Of goods of a perishable nature . . .... property, sale by auction or private contract Power to order sale of real estate .... .... Sales by the court. . . Title may be referred to counsel . .... .... Under will, administrations, execution of trust, &c . . Value to be fixed by affidavit .... Sales by the Court. Foreclosure : Assignment of property and delivery of documents Deficiency, judgment for .... Property in adjoining counties. . . Sales of mortgaged property, how ordered in behalf of encumbrancers Sheriff or person appointed, sale to be by Surplus, distribution of Generally : . Affidavits as to value .... .... General power to order sale of real estate Judge to approve sale, and all- parties to join .... Title may be referred to counsel .... .... Lunatics' and infants' estates : Effect of order for sale . . .... conveyance sale .... .... .... .... Proceedings as to real estate of lunatics, infants, &c. Proceeds of sale under order, how disposed of . . .. Samples. Order to take .... • .... Satisfaction Piece. Form of .... .... How signed 137 7 7 7 7 7-8 8-9 9 9 9 156 156 114 181 154 154 147 166 154 15^-156 154 ... 149 154-155 155 ■■■■ 155 155-156 subsequent 155 ..: .... 155 155 154 154 154 154 153 153 153 .... 152-154 ■ 153-153 147-148 . . 119, 273 .... 119 INDEX. 401 Scandalous Matter. May be ordered to be stuck out of any statement Objection to answering interrogatories containing Restriction on cross-examination Striking out from affidavits .... pleadings .... Seai^s. Authentication of documents and copies by prothonotary's seal Of prothonotaries .... the Supreme Court Search. Certificate of proceedings by prothonotary .... .... Indexes to files or bundles of all documents open to public . . . Prothonotary to keep proper books open to public .... Securities. Appeal security on, how regulated . - - • .... . Assignment of, to sureties ... .... .... Before execution against absent or absconding debtors ... Bond on arrest under capias . . .... .... ■ ••• %o sheriff on replevin .... .... .... How plaintiff may obtain security in suits against absent debtors . Security to retain property replevied • .... •■■• Transfer by execution .... ... . .... When made to prothonotary as obligee, how enforced .... Security eor Costs. Amount, time, manner and form .... • • -,• .... Court or judge' shall direct deposit or security on appeal . . .... may direct security in case of subsequent attachers , Security' by bond to party Time for, how computed . - • . -, Where plaintiff resides out of Nova Scotia Seduction. Form of claim for ... • ■ • ■ Trial of, by jury. Sequestration. Corporation, judgment against enforced by Disobedience to order to do act within limited time . . Effect of writ of . . ■ • • , Form of praecipe for writ of . ■ • • ■ writ of . .... • • • ■ Judgment for recovery of certain property enforced by Not to be issued for costs without leave . . Payment of money into court enforced by . • Proceeds dealt with as formerly in chancery Service. Acceptance of service by solicitor Attachment for not entering appearance . . Address for service : defendant appearing in person defendant's solicitor illusory address set aside plaintiff's address .. . •■•• ••■■ proceedings may be posted up in certain cases. Affidavit of service : 1 day of service to be mentioned in before whom sworn in certain cases 5i PAGE 60 .. 80 98 .. Ill 60. 192 192 2 193 . . . . I92 I92-I93 185 8 .141 132 135 142 T 3 6 125 193 ... 197 185 • • • 138 197 194-195 196 •■ 250 16-17 124 .:■- 128 128 .... 273 280 I 19-120 128 .... 128 128 .. 27 31 ■■ 3° 30-3 1 ■• 3i 24 •• 3i 28 .. 2a 402 INDEX. Sbrv i ce. — Continued . Affidavit of service : default of appearance, on ... . form of affidavit of service what to state .... Appeal, service of notice of . . Body of persons, on ... . .... ■ ■ • • , Contribution, service of notice of claim for Corporations, on • ■ • • ■••, Counter-claim, service of order on third party affected by Court notices, may be sent by post , Date of, to be indorsed on writ Defendants added, service on Dwelling-house, service at . . . . . . ~ Filing to be service in case of non-appearance Garnishee, on .... .... of order on to bind debts Quardian, on .... Hours for effecting .... . : . . Husband and wife, on .... .... Indorsement of time of . . .... Infant, on Inspection, service of order for . . Intervening party, on Land, action to recover, service in Lunatic, on. .... not so found New trial, service of order to show cause Notice in lieu of writ, service of . .... Notice of motion . attachment of debts, notice for before appearance . .... without leave, if time to appear has expired with leave, if- time to appear has not expired with writ by leave .... Notices of court, how served • ■ ■ • .... Order : adding or changing parties • • • • .... discovery or inspection .... .... "Out of jurisdiction . . .... .... affidavit of grounds ... concurrent writ, for .... .'. defendant not British subject, &c leave necessary .... time for appearance . . . of originating summons. . Partners, on ... \ .... Personal service .... Petition before appearance Posting up in ' lieu of Substituted service affidavit in support order for .... form of order. Subpoena, how effected . . .... Summons before appearance Third party, on . .' Time for service of summons Writ of summons .... .... by whom made ; . out of jurisdiction Undertaking to accept . leave required. PAGE 33 230-231 206 ■ 183 27 48-49 27 64 205 28 42-43 3 2 -33 58 129 129 27" 195 27 28 27 84 64 28 27 27 114 30 129 157 157 157 157 205 52 84 28-30 1 28 25 3° 22 29 30 -144 27 157 205 28 28 28 297 108 157 49 194 27-28 27 28-30 22 27-31 143 tttDEX. 403 Sessions, Sittings, Vacations, &c. Additional jurors for special sittings, rule for Adjournment of court when judge does not arrive Adjourn and extend, judge may Civil sittings in Halifax Contempt during vacation ... .... Commencement and end of vacation Criminal sittings in Halifax Court always open .... County court judge, when may hold. Docket for arguments, calling of .... Entries of causes for argument consequence of not making Equity judge, exemption of Extension or adjournment .... Halifax sittings, civil and criminal . . Jury fines .... .... .... collection of .... causes to be tried first Minutes of judge .... Non-entry, consequence of .... .... Non-jury causes tried any time .... .... Order of court to be taken out in session in which judgment Printing of causes and matters for argument. Quorum .... ... .... Special sittings .... .... .... Stamps on cases .... .... .... .... Ten causes, limitation to .... Terms abolished, except as a measure of time .... .... Vacation .... .... .... Set-off. Against assignee of chose in action Effect on costs generally .... How and when pleaded . . .... Lien for costs not to be affected by . . . .... See also Counter-claim. Setting Aside. Award, no rule nisi for .... Defence . .... .... .... Irregular proceedings .... .... Judgment by default .... .... ~~ wrongly entered at trial ... Notice of motion to set aside certain proceedings • .... Settled Account. How pleaded .... ... PAGE .... 18 15 .... 15 10-11 .... 187 . . 186 11 186 .... 15 189 .... 188 190 .... 15 15 . . .10-11 193 .... 193 15-16 .... 99 190 • . ■•■■ 9 delivered 190 190-192 .... 187-188 • • • I4-I5 191 11 9 186 8 . . . . 196 56-64 .... 198 156 7i 207 75 115 32 62 Settling Issues of Fact. If parties differ in, court or judge may settle same. Sheriff. Discovery by sheriff's officer .... Indemnity to Interpleader by . Notice to bring in the body . . • ■ • ■ when out of office .... Poundage, in what cases ■■*■ Rule Misi in application against, abolished. . To make return of execution pay over money .... .•'-•' What sheriff may take under execution ... 88 85 126 .... 179- -180 157 157 121, 125 156 126 124 125 -126 404 flOXEX. Sheriff. — Continued. See Absent and Absconding Debtors Execution ■ • - • .... ' Capias .... .... Replevin .... .... .... Showing Cause. Abolition of rule nisi for new trial . . .... .... in certain other cases . . .... Singular and Plural Number. Singular number to include plural, and plural to include singular. Sittings. Distribution of business . . .... .... .... Halifax, civil and criminal • ■ ■ ■ .... . . . ; In other counties . . .... Judge may make rules for .... See Sessions, Sittings, Vacation, &c PAGE I37-I4I 119-128 13*1-134 134-136 114 156 208 9-10 10-11 •• 11-14 .. 18 186-192 SLANDER. Evidence in mitigation of damages .... Payment into court in .... .... , ... .... Rule 26 of Order 34, not to apply to .... Slanderous words spoken of any woman, not necessary to prove special damage .... .... Solicitors. < 66 97 61 Acceptance of service and entering appearance . liable to attachment on default . . . Address of, for service on writ. . . .... 1 on memorandum of appearance Bound to assist pauper gratuitously Costs of guardian ad litem.. . .... x misconduct ■ .... against, omitting to attend at chambers Disclosure by ... . .... Interpretation of term .... Lien not to affect set-off . . .... Not to take affidavit when interested Omitting to put in appearance. . . give notice of order for discovery Personal liability for costs .... Scale of costs .... .... .... Striking off rolls, no rule nisi in application - ■ Signing pleadings ... .... .... Special Case Agreement as to payment of money and costs • • Application of Order XXXIII Documents, how drawn . .... Effect of judgment . . .... .... Entry for argument .... .... Facts and documents to be stated concisely. . Form of case without pleadings . entry ■••• ■ • • ■ , .... Formal pleadings may be dispensed with In interpleader .... .... Inference of fact .... Judgment according to agreement ... .... Married woman party . . ^ Order for payment on finding of issue .... Parties may state special case 27 .... 31 24 •■•30-31 45 .... 198 197-198 > .... 161 25-26 .... 208 198 in 31 .... 84 .196, 197-198 .... 199 156 • • ■ ■ 57 . . 90-92 91 .... 91 90 .... 92 91 .... 90 . .... 92, 228 .... 277 . . . . 91-92 .... 181 90 .... 92 91 .... 92 90- •J ' INDEX. 405 Special Case.— Continued. . Persons under disability Preliminary questions of law Printing case Signature of counsel or solicitor. Special case without consent Stated by an official referee . . . . PAGE .... 91 90 .... 91 91 . . . , 90 IOO-IOI Special Damage. Need not be proved in action for , words importing unchaste conduct to a woman .... .... 61 Special Jury. Trial with ... Special Verdict. Judge may direct Specially Indorsed Writ. Bond, on ... . Bill of exchange, on Cheque, for a Contract, express or implied Debt or liquidated demand . Default of appearance, to Forms of special indorsement prescribed the forms .... Guaranty under seal or not Option of plaintiff to issue Promissory note, on . Recovery of land, with or without rent or mesne profits Statute, when fixed sum .... .... ... Statement of claim unnecessary. . Summary judgment under. . . .... Trust, on a Writ, form of .... .... . • ■ ■ Specific Performance. Enforcement of . • ■ • •. .... Form of claim .... defence. .... •■•■ •■•• Statement of Claim. Account stated to be alleged Admission of part of claim . . judgment for. . Alternative relief Amendment of . . ... ■ • • • by exclusion of part of claim .... once without leave .... .... Contribution, statement to be served with notice of Costs of prolix pleadings when unnecessary . . Delivery of statement of claim . . in what cases unnecessary « rules as to delivery of unnecessary in specially Distinct claims to be separately stated Exclusion of part of claim . • ■ • Forms in Appendix to be used • • • • of statements, Appendix C Indorsement of writ on Issues settled if statement insufficient ... 94 17 23 23 23 23 23 33 23 239-243 23 23 23 23 23 61 37 23 210-211 123-164 .... 238 257 62 .. 38 38 .. 62 62-76 •• 54 76 48-49 56 ..62 ,56 .. '61 61-62 indorsed writs . 61 .... 62 54 •••• 57 232-253 . . 22-24 406 INDEX. Statement oe Claim.— Continued. page Joinder of joint and separate claims . . .... .... 40 May be altered without alteration of writ .... .... .... 62 Must show place of trial .... 62 Place of trial to be stated .... .... 62, 92 otherwise to be county in which defendant is to file appearance .... >■■■ .... 92 Relief claimed must be specifically stated .... 57-62 Settled account, how pleaded in 62 Separate causes of complaint .... .... , 62 Specific statements of relief . .... 62 either simply or alternatively .... 62 Time for delivery of . .... .... . ■ 61-62 Unnecessary in certain cases .... .... 61 Variation from indorsement . .... .... .... 62 Venue in statement .... .... 62,92 Writ specially indorsed 61 Statutes. Of frauds, how pleaded . . .... . r . . .... .... 58 limitations, how pleaded.. 58 not to extend to express trusts .... 7 Plea of not guilty by statute . •- — 58 Special indorsement, where money to be recovered is fixed 23 Statutory Declaration. " Oath " includes .... 2 Stay of Proceedings. Appeal to court of appeal, no stay of execution or of proceedings except in certain cases. . • 185 Application for, by any person whether a party or not 6 at any time by motion in a summary way .... 6. By payment of debt and costs incurred • • • • 23 Court or judge may direct if it seem fit. . . . .6, 114-115 Deposit of money, &c, on motion for new trial .... .114-115 Directed at any time .... •■•• • -'•■ .... 6 Execution, stay of . . .... 124 Frivolous or vexatious proceedings .... .... ... 71 Interest, when execution stayed .... .... 185 On notice of motion for new trial .... .-•• 114-115 Solicitor's name used without authority .... .... 25-26 Where injunction might have been obtained .... 6 Striking off Rolls. No rule nisi for .... .... .... 156 Notice of motion to state grounds .... .... .... .... 156 copy of any affidavit to be served with notice .... 156 Striking Out. Unnecessary or scandalous matter in pleadings. . 60 tending to embarrass or delay 60 at any stage of proceeding 60 costs may be ordered between solic- itor and client .... . . ._. 60 SubpcENA. Affidavits of service of, contents of .... .... .... 108 Cross-examination of deponents on . . .... .... 107 Chambers for, on order from judge .... .... 108 Correction of errors in .... .... .... .... 108 Costs, no subpoena for . . .... .... 128 Forms of subpoena prescribed .... .... .... io§ INDEX. 407 Subpoena.— Continued. > Forms. Appendix J i Issue to any party in any cause or matter Precipe for to be delivered and filed Referee, attendance before may be enforced by Service of within 12 weeks after issue of writ . . Service by delivering copy . . .... Three names ,in one subpcena or one for each . . Wituesses bound to attend on subpoena Subsequent Pleadings. Default in .... .... See Reply . . .... Subsequent to Action. Matter how pleaded Substituted Service. Affidavit in support of application for Form of order for .... Notice, order, or document of .... .... Summons to proceed Writ of summons of Suit. PAGE 283-288 107 108 IOO 108 .... 108 108 107 75 70 70 28 297 206 171 28 What term includes .... .... Summary Judgment. Application for writs specially indorsed by summons returnable 4 clear' days after notice affidavit verifying causes of action . stating belief that there is no defence Corporation defendants .... ,. . . Defence by affidavit or payment into court .... as to part, judgment as to other .... by one defendant, judgment against another Forms of judgment . . .... .... . 291- Leave to defend on giving security .... .... terms of time and mode pf trial Recovery of land, in case of .... .... Special' indorsement, what constitutes .... Summary judgment, on application .... unless defendant satisfy court by affidavit otherwise .... Summary judgment, unless defendant satisfy court by affidavit or otherwise that there is a good defence to action on merits ... .... unless defendant discloses facts sufficient to entitle him to defend . . . . . : Time for delivery of defence .... Summer Term. Extra or summer terms Time of sitting of court at summer term . .... .... Summons. Application at chambers to be by notice or . . Form prescribed ; the form of order on, prescribed ; the form ■ affidavit of service of . praecipe for, amended .... order for dismissal of . • . 37 37 37 27 37 37 38 38 2 93 38 38 37 23 37 37 37 37 63 13 14 .... 159 161, 288 162, 290 230 276 312 3 408 INDEX. Summons.— Continued. page Hearing of . . .... .... .... 162 Originating summons .... ' .... 159 Summons book . ... • .... .... 172 To proceed .... .... .... 170-172 Various forms of orders and summonses. Appendix K ..... 288 Writ of summons .... .... .... .... 22 Summons for D irec'tions 78, 79 Costs of ^application, omitted froms • 79 Contents of summons . , . . 78 Form of summons .... .... .... 290 Orders thereon .... .... .... 78 form of order . . , . .... 291 Sunday. y Lapsing of time on ..... .... 194 When not counted . . .... ... .... 194 Supreme Court. / How constituted .... .... .... 2 jurisdiction exercised ... 4 Jurisdiction .... .... .... .... .... .... 3-4 Name of .... .... .... 2 Powers of 4 To be court of record .... .... Where, and when shall sit .... .... 9-15 Surety. Assignment of securities to . . .... .... .... 8 1 Taxation of Costs. After action brought, form of Order for, Appendix K., No. 40 '■ ■ ■ ■ 308 Copies of documents, taking . .... .... 201 Inspection of documents 201 Notice of .... .... .... - .... .... 199 On default of appearance (liquidated demand ) . . . . . - ; .... On payment by defendant ... .... ' .... 23 Special allowances and general regulations 200-204 See also Costs . ■ ■ ■ • .... 195-204 Taxing Authority. Definition of .... .... 207 Technical Objection. Not to be raised to pleading on alleged want of form 60 - Tenant for Life. Waste by . . . .... .... .... .... .... 7 Tender. See Payment into Court. .... .... .... 66-69 I Terms. Abolition of, except as measures of time .... g Interpretation of . .... .... .... j ( 207 terms "writ of execution" and "issuing execution against any person " 120 See Sittings, Vacation, &c 186-192 Testimony. Action to perpetuate ... 108-109 INDEX. 409 Testing Writs. The teste of all writs is abolished . Third Parties. Appearance by .... Contribution against co-defendant Costs .... .... .... Default of appearance by pleading by .... Defence by Defendant may bring in to counter-claim Execution by and against Form of notice . . .... Garnishee ... .... .... Generally^ Indemnity against. . . .... Indorsement of defence served on form of .... Issues affecting. . .... Leave to defend .... . Notice to .... Procedure, general . . Questions against, how tried . Recovery of land .... .... Reply to counter-claim by Service of counter-claim on . . Summons to ... . .... Third party notice . . Time. Abridgment or enlargement of costs on - ■ ■ • .... Affidavits answering interrogatories .... in evidence by affidavits Amendment : counter-claim ... statement of claim . . .... Appeal : court of appeal to .... ex parte application ■ ■ • ■ limit of time for Appearance ... out of jurisdiction of writ. application to discharge or vary order chang Christmas day, when not counted Close of /pleadings Computation of time for vacations Concurrent writs ■ ■ • • Costs when time extended ... Counter-claim, amendment of . reply by third parties to Delivery of pleadings : counter-claim .... .... defence .... pleadings, subsequent to reply reply ' statement of claim . . Discontinuance, for . .... Enlargement of time costs of . . • • • ■ — Entry for trial. . •••■ •-■■< mg PAGE 25 49 ... 40-51 .... 50 49 • • • • 75 49 5, 48-49 64 .... 123 . . . 222-223 .129-131 • . . 48-51 .... 48 64 .... 223 75 .... 49 . . . 5, 48-49 38-51 •■• 50 ■••31-32 64 .... 64 64 48-49 195 202-203 80 113 76 76 183 185 183 .... 30-31 29 j parties 52 194 70 .... 194-195 186-187 25 . . . . 202-203 76 64 63 63 70 69 61 72 195 202-203 • ... 95-96 52 410 INDEX. Time. — Continued. Essence of contract . ; • ■ • • . ■ ■ - Execution .... .... .... Expiring when prothonotaries' offices closed Good Friday, when not counted . . Inspection of documents, for .... Interrogatories, affidavit in answer .... Judgment, for setting aside . . .... Month, means calendar month. . . Motion for judgment .... where issues of fact New trial, time for application for ... .... service of notice of motion for application for Notice of appeal from interlocutory order from judgment . by respondent Notice of motion .... .... trial .... .... .... on affidavit, evidence to cross-examine, on affidavits Payment into court in satisfaction acceptance by plaintiff Service of pleadings, hours for . . .... on Saturdays . . .... .... Service of notice of motion for application for new trial Setting aside judgment on non-appearance at trial .... down on motion for judgment. .. . Sessions, vacations and arguments .... Sunday, when not counted .... time expiring on Terms may be referred to as measures of Vacations, sessions, &c .... Writ of execution, issue of in force for one year .... summons in force .... Title. Need not be pleaded in action for land ■■■■ Title, Date, and Application of Rules. How cited .... When Rules come into operation .... Trespass. Injunction against .... .... .... Mortgagor in possession suing for . . .... Trial. Addresses to jury .... Adjournment of ... . .... .... .... Amendment at . . .... .... for trial of real questions Arbitrations Arrest ot witness .... form of warrant to arrest witness Assessors . .... mode of trial with .... Authority to refer ... Book to enter findings ... .... certificates in .... Cause list, how made up .... Chambers judge .... .... .... Default at trial by defendant PAGE ... 8- 9 120-122 .... I94 194 . . . . 82 80 .... 114 194 .... Il6 Il6 .... 114 114 .... 183 183 ... 184 156 - ■ • 95 "3 .... 113 66 ..66-67 *95 •■- 195 114. . . . . 97 116 186-192 194 .... 194 9 186-192 122 . . . . 122 26 65 21 . . . . .... 21 9 7 98 .... 97 76 .... 76 95 102 102 .18, 100 100 100 99 .... 99 96 .... 93 97 INDEX. 411 Triai,.— Continued. Default at trial by plaintiff Defendant, application by to have issues tried by special jury Defendant, not appearing .... .... Delivery of copies of pleadings for judge Different questions may be tried in different ways Entry for trial at sittings of term .... at speeial sittings.. copies of pleadings for judge. . order where both parties enter seniority, how determined . • • time for ... .... by opposite party who to make when to be entered withdrawal by consent .... Entry of judgment at trial. . . .... Equity causes ... .... Evidence, how given .... before referee . .... to be taken in writing .... , rulings on .... .... may be taken by stenographer . - ■ minutes of to be filed . . .... Issues of fact : contingent judgment, on application to enforce different facts may be tried in different ways . . • garnishee disputing liability .... order for trial, before jury . questions of law may be raised before single judge to tr}' Judge may direct how judgment be entered Judgment, motion for .... entry of amendment of Jury, absolute right to, how qualified .... certain actions to be tried with costs follow event . court may direct trial without. defendant may require jury discretion of judge as to findings wrongly entered setting aside judgment. . form of judgment after trial by 1 1 issues of fact .... judge may order list of jury and non-jury causes .... new trial • • •• , single judge to try. time for appeal Lists for trial May take place anywhere .... Mode of trial : before a judge or judges with assessors. . .... and jury single judge, unless special order special referee .... \ an official referee . with or without assessors different questions in different ways ' judge may alter ... refer to special or Official referees. . . PAGE 97 94 97 96 •53. 94 95-97 96 97 96 96 96 95-96 96 96 96 72 98 93 103 100 99 99 99 99 94 130 94 90 95 98 115-117 117-119 77 94 16 196 94 94 94 "5 269 - 94 94 96 114 95 183 96 92 94 .94, 100 95 95 94, 100 .94, 100 94 94 94 94 412 INDEX. Trial. — Continued. Mode of trial : judge may direct order trial of issue by jury subject to directions of court notice of order to change in certain cases New trial .... . .\ . Non-appearance of defendant plaintiff . . proving claim ... .... setting aside judgment on . . . place of application time for application • Notice of trial : affidavit evidence before entry ■ by plaintiff ... dismissal for 1 want of prosecution by defendant • .... countermanding by consent or by leave effect of for sittings .... Halifax or elsewhere elsewhere than in Halifax form of, provided .... .... the form. Halifax, in. . . .... .... length of . short special sittings ... statements in. .... to lapse if no entry time for .... ' on affidavit evidence Order of entry for ... Place of trial appointed by judge different for different questions statement of claims, plaintiff to name place in Plaintiff not appearing . . .... Postponement of .... .... .... Preliminary question of law .... .... fact Procedure at trial .... .... Reading affidavits ... .... . . . answers to interrogatories • • ■ ■ Referee, by .... Separate, of distinct causes of action, on order. . . Single judge .... .... Sittings, at what .... Striking out statements which would prevent fair trial Time oftrial ' ' ' Viva voce evidence at .... .... in absence of agreement .... Who may enter for trial .... Trial Without Pleadings Trust. Compromise, parties in case of .... .... Trustee. Application by for directions Beneficiary in case of property had on express trust. . 16-18, PAGfi 94 94 94 94 94 114 97 97 97 97 97 97 "3 95 95 95 95 96 96 96 96 96 95 228 96 95 95 97 95 96 95 "3 96 92 92 94 9 2 97 97-98 90 94 -100 103 84 100 53 95 96 60 93 103 103 95-96 55-56 . . . . 42 169-170 .... 7 £">- INDEX. 413 Trustee.— Continued. page Court may order trustee to be made a party to an action in certain cases 51 Indorsement of character of . .... .... .... 23 form of .... 222 May sue and be sued without joining parties beneficially interested ... 41 New, consent of how proved .... 112 Right of to costs out of particular estate . 195-196 Trustee Act, Proceedings Under 164 Trusts. Action by or against trustee.. 41 Parties to action to execute .... .... .... 45-48 Proceedings by originating summons . 166-169 Special indorsement for claim on .... 243 Statutes of limitation not applicable to express or to breach of 7 Type. To be used for printing papers for argument to be small pica leaded . . 190 Underwriters. Form of order for production of documents 295-296 Unreasonable. Defendant not to be embarrassed or put to expense by unreasonable attendance at proceedings ... 4° Unsound Mind. Actions by and against lunatics and persons of ••■• •• 43~44 Assignment of guardian ad litem .... • • • • • • ■ • 3 2_ 33 Proceedings as to property of persons of ... . I5 2-1 54 Service of notice of judgment on person of .... ■ • • • 4$ writ on person in charge of 2 7 Vacation. See Sessions, Vacations, &c 186-192 Venditioni Exponas. None necessary .... ■ • • • I2 ° Venue. » No local, for trial of any action, except when otherwise provided by statute 9 2 Verdict. Special, judge may direct jury to give ... r 7 See Jury ; New Trial ; Trial. 80 Vexatious. Interrogatories, costs of, to be borne by party in fault Viva Voce Examination. Rule in reference at trial of any action or assessment of damages 103 Wages, Attachment of I3 ° Waste. No equitable by tenant for life, unless intention expressly appear 7 Prevention of, apprehended . . _ 9 Representative action to restrain 4° Wife. See Husband and Wife, 414 INDEX* Wufhi, Default. Form of statement of claim . . .... Withdrawal of Record. See Discontinuance .... Witness. Absence of material . Arrest of Attendance before referee .... Examination of before examiner . .... generally to be viva voce .... by interrogatories . . .... Residing abroad, examination of, opening ... .... Restrictions on cross-examination of Rules as to examinations of witnesses residing abroad Subpcena for attendance of .... .... I Technical objections of witnesses taken de bene esse ■ ■ Under Habeas Corpus .... See Evidence . Examination of Witnesses. PAGE" ■ 233 72 97-98 102 loo 103 103 103 106 98 106 108 106 98 Writ. Currency of .... Date of in general .... .... Forms Lost, substitution of copy Order to issue need not be drawn up Renewal of Teste of, to remain abolished To bear date of issue .... .... Writs Against Absent or Absconding Debtors. See Absent or Absconding Debtors Foreign Companies, suits against Writ of Attachment. See Attachment of Person ... Writ of Delivery. See Delivery, Writ of .... Writ of Execution. See Execution • .... .... 26 22 209-212 . . . . 26 158 . . . . 26 22 22 I37-I4I 141-143 Writ of Enquiry. On default of appearance in certain cases . pleadings . Proceedings at trial of Substitution of inquiry before officer .... See Inquiry. Writ of Mandamus. See Mandamus .... Writ of Possession (Lands). Form of praecipe for 129 146-147 119-128 •■ 33-34 73-74 101-102 102 159 274 writ 282 To have effect of writ of assistance, as well as of writ of habere facias possessionem .... 146 Writ of Prohibition. Form of praecipe See Prohibition . . 275 206 INDEX. 415 Writ of Sequestration. page Effect same as writ of, had in England before commencement of English Judicature Act Form of praecipe for .... writ for See Sequestration. Writ of Summons Action to be commenced by .... Date and teste of .... Form and contents of, and costs of undue prolixity Forms Writs for service abroad . .... form of ... . Address : of plaintiff and solicitor in person .... Indorsements claim : action for account . . . amendment fotm prescribed forms nature and requisites of parties in representative capacity, special indorsements. . . .... Issue : concurrent writs .... .... disclosure by solicitor of authoritv to issue .... of names of partners when issued by firm. . riling copy .... place of issue . . preparation of writ sealing and issue .... .... Renewal : currency of writ .... .... loss of writ , renewal .... Service : affidavit for leave for substituted .... of service to mention day of . . . in action to recover land — vacant possession indorsement of service . . on corporation or society husband and wife .... infant or lunatic .... partners or apparent firm third party * parties subsequently added personal service substituted service undertaking by solicitor to accept ... Service out of jurisdiction : affidavit for leave form of order for. in what cases allowed . . mode of giving notice notice in lieu of writ, when to be served time for appearance 128 273 280 . . . . 22 22 22 22 209-212 22 211-212 v 24 ... 24 24 . .62-76 22-23 216-222 22 23 23 25 25-26 143 25 24 24 24 26 26 26 28 28 28 28 27 27 27 143-144 48-49 43 27 27 27 29 296 28-29 3° 30 29 APPENDIX A. Crown Rules. SUPREME COURT RULES (CROWN SIDE). IX THE SUPREME COURT OF NOVA SCOTIA. The Judges of the Supreme Court, of Nova Scotia, at a meeting called for that purpose, do hereby, in pursu- ance and execution of the powers and authorities enabling them in that behalf, order and direct in the following- manner : 1. All existing rules or practice on the Crown side inconsistent with these rules are hereby repealed, and the following Rules shall henceforth be in force. 2. Xo order or rule annulled by any former order shall be revived by any of these Rules, unless expressly so declared, and where no other provision is made by these Rules, the present procedure v and practice remain in force. Custody of Records. 3. The Clerk of the Crown in each county shall have the care and custody of the records and other pro- ceedings on the Crown side in that county. Date of Proceedings. 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 shall otherwise direct, and shall take effect accordingly. Affidavits. 5. Order XXXVI (affidavits and depositions) of the Rules of the Supreme Court shall, as far as it is applicable, apply to all civil proceedings on the Cro^vn side. The following rules shall apply to all proceedings on the Crown side : 1 2 CROWN RULES. I 6; Upon any motion or summons evidence may be given by affidavit; but the court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit. 7. Affidavit^ used on the Crown side shall be in- tituled "In the Supreme Court, Crown Side." 8. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts, from documents, shall be paid by the party tiling the same. 9. Affidavits sworn in Nova Scotia shall be sworn before a judge, commissioner or officer empowered by Statute or under the Rules of the Supreme Court to administer oaths. 10. Every commissioner shall express the time when, and the place where, he shall take any affidavit or recog- nizance ; otherwise the same shall not be admitted to be filed or read without the leave of the Court or Judge ; and every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office. 11. All affidavits, declarations and affirmations in causes or matters depending on the Crown side, may be sworn and taken in the United Kingdom of Great Britain and Ireland, or the Channel Islands, or in any Province, of Canada, or in any colony, island, plantation, or place under the dominion of Her Majesty, or in foreign countries, before any judge, court, notary public, or person lawfully authorised to administer oaths in such country, colony, island, plantation, or place respectively, or before any of Her Majesty's consuls or vice-consuls in any foreign countries out of Her Majesty's dominions; and the judges and other officers of the Supreme Court shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, notary public, person, consul, or vice-consul, attached, appended, or subscribed to any such affidavits, affirmations, declara- tions, or to any other document. 12. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every CHOWN RULES. 3 paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct' portion of the subject. Every affidavit shall be written or printed book- wise. No costs shall be allowed for any affidavit or part of affidavit substantially departing from this rule. 13. Every affidavit shall state the description and true place of abode of the deponent. 14. In every affidavit made by two or more depon- ents 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 SAvorn by both (or all) of the "above-named" deponents. 15. 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 other- wise direct. 16. The court or a judge may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. 17. 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 fey 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 initialled in the margin of the affidavit by the officer taking it. 18. Where an affidavit is sworn by any person who appears to the officers taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence 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 otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent. 4 CEOWN RULES. Id. The court or a judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a mem- orandum to be made on the document that it has been so received. 20. In cases in which by the present practice an original affidavit is allowed to be used, it shall before it is used be stamped with a proper riling stamp, and shall at the time when it is used be delivered to and left with the proper officer in court or in chambers. An office copy of an affidavit may in all cases be used, the original affidavit having been previously hied, and the copy duly authenticated by the Clerk of the Crown. 21. No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspond- ent of such solicitor, or before the party himself. 22. Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk or partner. 2H. Where a special time is limited for filing affi- davits, no affidavit filed after that timeshaill be used, unless by leave of the court or a judge. 24. Except- by leave of the court or a judge, no order made ex parte in court founded on any affidavit shall be of any force, unless the affidavit on which the application was made was, actually made before the order was applied for, and produced and filed at the time of making the motion'. 25. Upon motion 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 ad- ditional affidavits shall be used except such leave shall have been first obtained. 2(i. Affidavits of service shall state when, where and how, and by whom, such service was effected. Certiorari. 27. Writs of certiorari may be allowed for removing proceedings into this court on motion to the court or a CROWN RULES. 5 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. 28. 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 recognizance with two sureties in the sum oi two hundred dollars, with con- dition to prosecute the certiorari with effect 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 recogniz- ance shall be entered into before a commissioner of this court, and the sureties shall justify before a commis- sioner. The recognizance shall, as nearly as may be, be in the form No. 4 in the appendix to these rules. 29. No notice of motion for a writ of certiorari shall be effectual, nor shall any writ be granted thereon/unless the recognizance and affidavits of justification shall have been riled, as prescribed by the preceding section, before the notice was given, and the same verified by affidavit. 30. No writ of certiorari shall be granted, issued or allowed to remove any judgment, order, couviction, 6r other proceeding had or made by 6r before any judge of the County Court, stipendiary magistrate, or justice or justices of the peace of any county, district, city, town corporate, or liberty, unless 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 untess 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, conviction, or other proceedings shall be so had or made, in order that such judge, magistrate, justice or justices, may show cause, if he or they shall so think tit, against the granting, issuing or allowing such writ of certiorari. 31. No order for the issuing of a writ of certiorari 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, b CROWN RULES. unless at the time of moving a copy of any such warrant, commitment, order, conviction, inquisition, or record, verified by affidavit, be produced, or the absence thereof accounted for to the satisfaction of the court or a judge. 32. When cause is shown against the motion for a writ of certiorari to remove any judgment, order or con- viction, 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. 33. No objection on account of any omission or mis- take in any judgment or order brought up upon a return to a writ of certiorari shall be allowed, unless such omission or mistake shall have been specified in the notice of the motion for such certiorari. 34. 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 opposed, the unsuccess- ful party shall pay the opposite party his costs of the motion, to be taxed, unless the court or a judge shall otherwise order. But in criminal proceedings if such motion is unopposed the part}' moving shall recover no costs. 35. 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. 36. The court or a judge may direct further or addi- tional security to be given before the writ shall issue. 37. If the person on whose behalf application is made for a certiorari to remove a judgment, conviction or order is in custody under any warrant or 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 notice 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 imprison- ment, notwithstanding the term limited for his imprison- CROWN RULES. 7 ment shall have expired. If the recognizance shall be forfeited, a warrant for the apprehension of the defendant may be granted by a judge, which shall authorize his arrest and imprisonment for the unexpired term. Informations, Indictments, &c. 38. Every indictment found by the grand jury in the Supreme Court, may, if necessary, be certified to a judge, in order that such judge may (if he thinks proper) immediately issue his warrant for the apprehending of the defendant. 39. If any defendant in any information depending in the Supreme Court shall be committed to prison, and detained for want of bail for his appearance 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. 40. If any such defendant is convicted upon any such information as in the last preceding rule mentioned, 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 Rule 112, for moving for a new trial if the court be then sitting, and if the court be not sitting, within the first eight days of the sittings next after that in which the trial was had, and in default of his doing so within that time, or within such further 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. 41. With the exception of ex-officio informations filed by the Attorney-General on behalf of the Crown, no criminal information or information in the nature of a quo luarranto shall be exhibited, received, or filed with- out express order of the court, nor shall any process be issued upon any information other than an ex-officio information, until the person procuring such information to be exhibited shall have filed at the office of the clerk CROWN RULES. of the Crown a recognizance with two sureties who shall justify by affidavit in the, penalty of $200 effectually to prosecute such information, and to abide by arid observe such orders as the court shall direct, such recognizance to be entered into before a commissioner of the Supreme Court. 42. No application shall be made for a criminal information against a justice of 'the peace, stipendiary magistrate or police magistrate, for misconduct in his magisterial capacity unless a notice containing a distinct statement of the grievances, or acts of misconduct com- plained 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. 43. 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 offence complained of, and if the applica- tion be made against a magistrate or justice of the peace for misconduct in his magisterial capacity, the applicant must depose on affidavit to his belief that the defendant was actuated by corrupt motives, and further, if for an unjust conviction, that the defendant is innocent of the charge. *b v 44. If the prosecutor on any information not ex- officio does rtot proceed to trial within a year after issue joined, or if the prosecutor causes a nolle prosequi to be entered, or if the defendant be acquitted (unless the judge at the time of trial certifies that there was reason- able cause for the information), the court, on motion for the same, may award the defendant his costs to the amount of the recognizance entered into by the prosecutor on filing the information. (r 45. If on any indictment or information in the Supreme Court by a private prosecutor for the publica- tion of any defamatory libel, judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information, and upon a special plea of justification to such indictment or informa- tion, if the issue bo found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea. CROWN RULES. >» Quo Warranto. 46. Every application for an information in the nature of a quo warranto shall be by motion to the court after ten days' notice in writing, unless the same be ex- officio. 47. The notice shall set forth the name and descrip- tion 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 where- by the application will be supported. 48. No order for filing any information in the nature of a quo warranto 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, unless the court otherwise orders. 49. 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. 50. The court may refuse the motion for an informa- tion 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. 51. 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 circumstances being shown. 52. Where several notices of motion for information in the nature of quo warranto have been given against several persons for the usurpation of the same offices, and all upon the same grounds of objection, the court may order such motions to be consolidated, and only one in- formation 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 2 10 CROWN RULES. order be made to consolidate or stay any proceedings against any defendant unless he give an undertaking to disclaim, if judgment be given for the Crown upon the information which proceeds. 53. If a defendant on an information in the nature of quo warranto does not intend to defend, he may, to prevent judgment by default, enter a disclaimer at the office of the Clerk of the Crown, and file a copy there, and deliver another copy to the relator or his solicitor. Upon the disclaimer being filed, judgment of ouster may be entered and the costs taxed as in judgment by default. Mandamus. 54. Application for a prerogative writ of mandamus shall, during the session, be made to the court after ten days' notice of the motion, and in the vacatipn 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. 55. 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 interested 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. 56. 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 discretion of the court or a judge, if the order should be made or the prosecutor obtain judgment. 57. The order for a mandamus need not be served, but the cost of service of the order may be allowed, in the discretion of the taxing officer, where the writ is not issued. 58. 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. Crown rules. 11 59. When a writ of mandamus is directed to com- panies, corporations, justices, or public bodies, service shall be made upon such and so many persons as are competent to do the act required to be done, the original being delivered to one of such persons, except where by statute service on the clerk or some other officer is made sufficient service. 60. The court or a judge may, if they or he shall think tit, order that any writ of mandamus shall be per- emptory in the first -instance. 61. 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 return 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 circumstances may require. 62. Any person by law compellable to make any .return to a writ of mandamus shall make his return to the first writ. 63. 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 for the successful party, without any motion for judgment being made or required. 64. Where, under Rules 63 and 96, the applicant obtains judgment, he shall be entitled forthwith to a per- emptory writ of mandamus to enforce the command con- tained in the original writ, and the judgment shall direct that a peremptory writ do issue. 65. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of mandamus issued by the Supreme Court or any judge thereof. 66. When it appears to the court that the respondent claims no right or interest in the subject matter of the application, or that his functions are merely ministerial, the return to the writ, and all subsequent proceedings down to judgment, shall still be made and proceed in the name of the person to whom the writ is directed, and if the court thinks fit so to order, may be expressed to be made on behalf of the persons really interested therein. 12 CEOWN EtOLES. In that case the persons interested shall be permitted to frame the return and conduct the subsequent proceedings at their own expense ; and if judgment is given for or against the applicant it shall likewise be given for or against the persons on whose behalf the return is ex- pressed to be made ; and if judgment is given for them, they shall have the same remedies for enforcing it as the person to whom the writ is directed would have in other cases. 67. Where, under the last preceding Rule, the return to. a writ of mandamus is expressed to be made on behalf of some person other than the person to whom the writ is directed, the proceedings on tjie writ shall not abate by reason of the death, resignation, or- removal from office of that person, but they may be continued and carried on in his name ; and if a peremptory writ is awarded, it shall be directed to the successor in office or right of that person. 68. In any case of mandamus, in which a proceed- ing by way of interpleader may be proper, the provisions of Order LVI. of the Rules of the Supreme Court, (interpleader), shall be applicable, so far as the nature of the case will admit. 69. No order for the issuing of any writ of man- damus 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 ae prosecutor, and if the writ be granted the name of such person shall be indorsed on the writ as the person at whose instance it is granted. Obdebs in the Natuee or Mandamus. 70. An application for an order in the nature of a mandamus, to justices, or to a county court judge, or to any magistrate, shall be by notice of motion for an order, in the same manner as is provided in Rule 54. Peohibition. 71. An application for a writ of prohibition on the Crown side shall be made to the court after two days' notice of motion in all criminal causes or matters ; and in civil proceedings on the Crown side by a similar motion or by summons before a judge at chambers. Grown rules. 13 72. The order may be made ex parte in the first instance on special circumstances being shown, in the discretion of the court or judge. Appearance to Indictment, Information and Inquisition. 73. A defendant to any information or inquisition in the Supreme Court must enter or cause to be entered an appearance to such information or inquisition at the office of the Clerk of the Crown. 74. As against any defendant to any indictment, information, or inquisition, the prosecutor may obtain a certificate from the Clerk of the Crown of an indictment, information, or inquisition having been filed. The certificate may be in Form No. 23, or to the like effect. 75. Upon production of such certificate to a judge, such judge may, if necessary, issue a warrant under his hand to apprehend the defendant and cause him to be brought before him or some other judge, or before a justice of the peace, to be dealt with according to law ; the warrant may be in Form No. 24 or 25, or to the like effect. 76. If it be proved upon oath before such judge or justice of the peace, that the person apprehended and brought before him is the person charged and named in such indictment, information, or inquisition, such judge or justice of the peace shall, without further inquiry or examination, commit him to prison by a warrant, which may be in the Form No. 26, or to the like effect, or admit him to bail. Provided that nothing in these Rules shall affect the jurisdiction of a judge to admit any defendant to bail at any time after commital, and before conviction, if he shall, in his discretion, so think fit. 77. When any information is filed and the defendant does not enter an appearance, the prosecutor may serve a notice upon the defendant to appear within five days, and in default of appearance may move the court ex parte for leave to enter an appearance for him, or if the notice was personally served for an attachment. 78. If the defendant on any indictment, inquisition or misdemeanor, or information, wishes to avoid arregt 14 CROWN EtfLES. upon a warrant, be may give 24 hours' notice of bail to the prosecutor, and enter into a recognizance before a judge, or justice of the peace, with sufficient surety, or sureties, to appear and answer the indictment, inquisition, or information, and personally appear at the trial, and not depart without leave of the court. 79. If the defendant be taken on a warrant he shall give 24 hours' notice of bail, and enter into a recog- nizance as in the last preceding rale mentioned before he can be discharged. 80. If any defendant to an indictment, inquisition for misdemeanor, or information, shall be detained in any prison for want of bail, the prosecutor of any such indict- ment, inquisition, or information, may cause a copy thereof to be delivered to the gaoler of the prison for such defendant, with a notice indorsed thereon, that if the defendant do not within eight days after such delivery cause an appearance and a plea, or demurrer, to be entered to such indictment, inquisition, or information, an appear- ance and plea of not guilty will be entered for him ; and if the defendant do not enter such appearance and plea, or demurrer, within eight days from the delivery of such copy of the indictment, inquisition, or information and notice, the prosecutor, upon filing an affidavit of the delivery of such copy and notices indorsed thereon to the keeper or gaoler, as aforesaid, may cause an appearance and plea of not guilty to be entered in the indictment, inquisition, or information for the defendant and pro- ceedings shall be had thereon as if the defendant himself had duly appeared and entered such plea. 81. The process against a body corporate or a muni- cipality to compel an appearance shall be by writs of venire facias and distringas. If such defendants do not appear within four days after the sheriff has returned that he has distrained the defendants' land and chattels, alias and pluries writs of distringas may be issued with such increased amounts upon each succeeding writ as the court or judge may order. 81a. On the trial of every indictment for a criminal offence under the Criminal Code, 1892, the accused shall be placed at the bar and the form of procedure used, and the oaths administered to the jurors and witnesses, shall be the same as those formerly used and administered on trials for felony. July 4, 1893. CROWN RJJLES. 15 Bail. 82. Applications for bail in felony, or misdemeanor, where the party is in custody, shall be by summons before a judge at chambers to show cause why the defendant should not be admitted to bail, either before a judge at chambers, or before a justice of the peace, in such an amount as the judge may direct. Recognizance. 83. Every recognizance shall after the acknowledg- ment thereof be transmitted to the office of the Clerk of the Crown in the county in which the proceedings are instituted, and filed there. * 84. No recognizance shall henceforth be forfeited, estreated, or put upon the estreat, roll without the order of the court or a* judge, nor unless an order or notice shall have been "previously served upon the parties by whom such recognizance shall have been given, calling upon them to perform the conditions thereof, and no default shall be considered to be made in performing the conditions of a recognizance by reason of the trial of any information or indictment, or the argument of any order ■ or conviction or other proceedings, having stood over by order of the court, or by consent in writing of the parties. 85. Every recognizance to appear and answer to any indictment or to any ex-officio or criminal information, shall, unless the court or a judge shall by order dispense therewith, contain, besides any other condition which may be imposed, a condition that the defendant shall person- ally appear from day to day on the trial of such indict- ment or information, and not depart until he shall be discharged by the court before whom such trial shall be had. 86. Whenever it has been made to , appear to the court or a judge that a party has made default in perform- ing the conditions of any recognizance into which he has entered, filed in the office of the Clerk of the Crown, the court or a judge, upon notice to the defendant and his sureties, if any, may order such recognizance to be estreated without issuing any writ of scire facias. The further proceedings to estreat the recognizance and collect the amount thereof, shall be under the provisions of Chapter 179, Revised Statutes of Canada. 87. Nothing in these rules contained shall be con- strued to affect, alter or modify the provisions of Chapter 16 CROWN BULBS. 179, Revised Statutes of Canada, or of Chapter 1 > 84 of the Revised Statutes of Nova Scotia, 1900, where the same are applicable. Scire Facias. 88. No proceedings shall he taken on the Crown, side of the Supreme Court by scire facias upon recognizance. Pleadings. (a ) — Pleadings on Indictment, Information or Inquisition. 89. Every pleading other than a plea of guilty or not guilty to an indictment, information, or inquisition, shall be intituled in the Supreme Court, Crown Side, and shall be dated of the day of the month and the year when the same was pleaded, and shall bear no other time or date. It shall be written or printed on paper, and a copy shall be delivered to the opposite party, and be -filed at the office of the Clerk of the Crown. 90. All the proceedings shall be entered on the record made up for trial, and on the judgment roll, under the date of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the Court or a Judge. 91. Every special plea, or demurrer, shall be in writ- ing, and shall be signed by the solicitor or the party if he defends in person. 92. One order only to plead, reply, rejoin, join in demurrer, or in error, or plead subsequent pleadings, in all prosecutions by way of indictment, inquisition or information, shall be given, and such order may be drawn up and served as well during the sittings as in vacation ; and every such order shall expire as follows, that is to say : Every order to plead, in ten days next after service thereof, unless the time be extended by order of the court, or a judge ; and every order to reply, rejoin, join in demurrer, or in error, or plead subsequent plead- ings, in eight daj^s next after service thereof, unless the time be extended as aforesaid. On the appearance of a defendant to any indictment, inquisition, or information, an order to plead may be obtained ex, parte. 93. Time in which to plead may be extended on application by summons to a judge at chambers, upon such CROWN RULES. 17 terms and for such time as the judge in his discretion may think fit. (b) — Pleadings in Quo Warranto. 94. When any information in the nature of quo warranto has been filed, the defendant may plead to such information within such time, and in like manner, as if the information were a statement of claim delivered in an action, and subject to these Rules, this pleading, and all subsequent proceedings, including pleadings', trial, judg- ment, and execution, shall proceed and may be had and taken as if in an action, and where the judgment is for the relator judgment of ouster may be entered for him in all cases. 95. The prosecutor in answer to a plea that the defendant has held and executed the office or franchise for six years before the exhibiting the information, may reply any forfeiture, surrender, or avoidance by the \ defendant within the said six years. (c) — Pleadings in Mandamus. , 96. "When any return is made to the first writ of mandamus, the applicant may plead to the return within such time and in like manner as if the return were a statement of defence delivered in an action : and subject to these Rules, this pleading, and all subsequent proceed- ings, including pleadings, trial, judgment, and execution, shall proceed and may be had and taken as if in an action. (d) — Pleadings in Prohibition. 97. Whei'e pleadings in prohibition are ordered, the pleadings, and subsequent proceedings, including judg- ment and assessment of damages, if any, shall be, as nearly as may be, the same as in an ordinary action for damages. Copies of Proceedings and Service. 98. Copies of all informations or indictments, and of all pleadings thereupon, and of mandamus and return, and traverse, or other pleadings thereupon, and of con- victions, orders, and every other proceeding, filed in the office of the Clerk of the Crown shall, when required, be made at his office and delivered to the respective parties or other- parties requiring the same on payment of the proper charges. 3 •18 CROWN RULES.- ' 99. When under these Rules, service of any writ, notice, pleading, order, summons, warrant, or other document, proceeding, or written communication, is not directed to be personal, service at the last known place of abode or business, with a clerk, wife, or servant, or upon such other person, or in such other manner as the court or a judge may direct, shall be deemed to be a sufficient service. Special Cases and Demurrers. 100. Order XXXIII of the Eules of the Supreme Court, (special case) shall, as far as it is applicable, apply to all civil proceedings on the Crown side. The following Rules shall apply to all criminal pro- ceedings on the Crown side : — 101. Demurrers and special cases 6hall be entered for hearing at the request of either party without any order for a concilium, seven clear days before the first day of the session of the Supreme Court in banco at Halifax, or on any entry day during the session, and nqtice thereof shall be given forthwith to the opposite party. Paper Books. 102. Rule twenty-three of Order LVIII of the Rules of the Supreme Court, shall, as far as it is applic- able, apply to all proceedings on the Crown side. 103. All books shall be filed at least two days before the argument, and in default the case shall be struck out, unless otherwise ordered. Notice of Trial. 104. Notice of trial shall state the place at which the trial is to be had, and the day on or after which the record is to be tried. 105. If the prosecutor or relator does not, within six weeks after issue joined, or within such extended time as the court or a judge may allow, give notice of trial, the defendant may give such notice. 106. Ten days' notice of trial shall be given in all cases, unless a longer notice shall be ordered by the court or a judge, or the party to whom it is given shall consent to take short notice of trial, which shall be understood to mean four days' notice, or any longer period. CROWN RULES. 19 107. Notice of trial for Halifax shall not be, or operate as for any particular sittings, but shall be deemed to be for the day stated in the notice, or for any day after the expiration of the notice, on which the record may come on for trial. 108. Notice of trial elsewhere than in Halifax shall be deemed to be for the first day of the then next term at the place for which notice of trial is given. 109. No notice of trial shall be countermanded, and no record withdrawn, except by leave of the court or a judge, which leave may be given subject to such terms as to costs or otherwise as may be just. Continuances. 110. No continuance by way of imparlance, curia advisari vult, vicecomes non misit brtve, or otherwise, shall be necessary, nor shall any entry thereof be made upon any record or roll whatever, or in the pleadings. New Trial. 111. Applications for a new trial, where such ap- plications may by law be made, shall be by motion to the court in banc after notice. 112. Notice of the motion shall state the grounds and be given within twenty-four hours after the trial, and the motion shall in all cases be made within the first four days of the following general or special session of the court at Halifax. The time in either case may be ex- tended by the court or a judge. 113. When notice of motion for a new trial has been given the further proceedings on the verdict or judgment may be stayed, until the decision on such motion by the court or the judge who presided at the trial, on such terms as the court or a judge may think Jit. 114. The applicant for such new trial shall in all cases be entitled to an order so staying the proceedings on remaining in custody or on filing a recognizance with two sureties, who shall justify, in such reasonable amount as the court or the judge shall direct, to appear before the court to receive sentence when required, and to pay such fine, penalty and costs, as may be adjudged against him. 20 CROWN RULES. 115. On motion for a new trial the presence of the defendant or defendants will not be required, unless the court shall otherwise order. Judgment by Default. 116. In case no plea, replication, rejoinder, joinder in demurrer, or other pleading shall be entered within the time limited, judgment as for want of such pleading may be entered at the opening of the office on the next following morning after the expiration' of the time limited, upon filing an affidavit of service of the order to plead, reply, &c, as the case may be, unless an order of the court or a judge extending such time shall have been obtained and served, in which case judgment shall not be signed until the day after the expiration of the time granted by such order. Judgment. 117. On all trials for misdemeanors in the Supreme Court, except upon information filed by leave of the court and ex-officio informations where the Attorney-General prays that the judgment may be postponed, judgment may be pronounced during the sittings at which the trial has taken place by the judge before whom the verdict has been taken, as well upon the defendant who has suffered judgment by default or confession as upon those who have been tried and convicted, and whether such persons be present or not in court. 118. The judge before whom the trial is had may either issue an immediate order or warrant, for commit- ting the defendant in execution, or respite the execution of the judgment, oh such terms as he thinks fit, and for such time as is necessary, for the purpose of enabling the defendant to move for a new trial, or in arrest of judg- ment, and if imprisonment is part of the sentence, may order the period of imprisonment to commence on the day on which the party is actually taken to and confined in prison. 119. If a defendant is convicted and not sentenced at the trial, and is not under recognizance or under sufficient recognizance to appear to receive the sentence of the court, or if it is made to appear on affidavit, or otherwise, that he is likely to abscond, a judge's warrant may be obtained at any time after verdict and before final judgment, and either from the judge at the trial or from CROWN RULES. 21 a judge at chambers, to hold him to bail, or to require him to give such further bail as the judge in his discre- tion thinks fit, upon a certificate, if he is not under recognizance, of the conviction, and a certificate of his not being under recognizanee, to be obtained from the Clerk of the Crown, or if he is under recognizance, upon a certificate of conviction, and an affidavit of facts show- ing the necessity of further bail. 120. If judgment is for the Crown, or the prosecutor, and the defendant is not under recognizance to appear to receive sentence, he may be served with a four days' notice to appear on a certain day to receive the sentence of the court, or the prosecutor may issue a writ of capias ad satisfaciendum to take the defendant, to remain in cus- tody without bail, or, mainprize, until he satisfies the judgment or obtains his discharge. 121. If the defendant is not in custody and is under recognizance to appear to receive sentence, the defendant and his bail may be served with a four days' notice, that on a day named therein the court will be moved for judgment. Such service need not be personal. 122. On moving for final judgment, and if the defendant does not answer on being called threei times, the prosecutor, on an affidavit of service of notice, may move under Rule 86 to estreat the recognizance, and upon the estreat of the recognizance a judge may grant a bench warrant for the apprehension of the defendant. 123. The court on giving final judgment, or the court in banc on affirmance may, if they so think fit, on the application of the defendant then present, respite the execution of the judgment for such time as is necessary for the defendant to obtain the Attorney-General's fiat for a writ of error, or appeal to the Supreme Court of Canada, upon the defendant entering into a recognizance with two sufficient securities, upon such terms as the court orders, to render himself into custody, or to prose- cute his writ of error or appeal with effect, and may order the period of imprisonment, if that is part of the sentence, to commence on the day on which the person shall be actually taken to and confined in prison. 124. When any defendant, after verdict, is brought up for sentence on any indictment or information, the affidavits produced on the part of the defendant, if any, shall be read, and then any affidavits produced on the 22 CROWN RULES. part of the prosecution, after which the counsel for the defendant shall be heard, and lastly, the counsel for the prosecution. 125. When any defendant is brought up for sentence after judgment by default, confession, or retraxit, the prosecutor's affidavits shall be tirst read, then the defend- ant's affidavits, after which the counsel for the prosecution shall be heard, and lastly the counsel for the defendant. 126. If no affidavits are produced the counsel for the defendant shall be first heard, and then the counsel for the prosecutor. Appeals. 127. Order LVII of the Eules of the Supreme Court (appeals) shall apply to all civil proceedings on the Crown side, including mandamus, prohibition an(| quo warranto. 128. Order LVII of the Eules of the Supreme Court (appeals) shall, so far as applicable, applv to criminal proceedings on certiorari on the Crown side. Execution. 129. Order XL of the Eules of the Supreme Court (execution) shall, as far as it is applicable, apply to all civil proceedings on the Crown side. The following Eules shall apply to all criminal pro- ceedings on the Crown side :— 130-. A judgment or order requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attach- ment, or by committal. 131. No writ of execution shall be issued without the party issuing it, or his solicitor, filing a praecipe for that purpose. The praecipe shall contain the title of the proceeding and the date of the judgment or order on which it is founded, the names of the parties against whom the execution is to be issued, and shall be signed by or on behalf of the solicitor of the party issuing it, or by the party issuing, if he do so in person. 132. Every writ of execution shall be indorsed with the name and place of abode, or office of business, of the solicitor actually suing out the same ; and when the r OKOWN RULES. 23 solicitor actually suing out the writ sues out the same as agent for another solicitor, the name and place of abode of such other solicitor shall be indorsed upon the writ, and in case no solicitor is employed to issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued out by the party in person, mentioning the city or town, and also the name of the street, and number of the house of such residence, if any such there be. 133. Every writ of execution shall be made return- able, immediately after the execution thereof. 134. In every case of executionthe party entitled to execution may levy the poundage, fees, and expenses of execution over and above the sum required. 135. 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, with interest at the rate of six per cent. per» annum, from the time when the judgment was entered up, or from the date of the order. , 136. Every person to whom any sum of money or any costs shall be payable under a judgment shall im- mediately after the time when the judgment was duly entered be entitled to sue out one or more writ or writs of execution to enforce payment thereof in the form used by this court in civil proceedings, or as near thereto as practicable. 137. Every order of the court or a judge in any cause or matter may be enforced in the same manner as a 1 judgment to that effect. 138. A writ of execution, if unexecuted, shall re- main in force for one year only from its issue, unless re- newed 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 party issuing it for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, either by being marked with a seal of the court, bearing the date of the day, month, and year of such renewal, 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 a writ of execution so re- \ v/ 24 CROWN RULES. newed shall have effect and be entitled to priority accord- ing to the time of the original delivery thereof. 139. The production of a writ of execution or the notice renewing the same, purporting to be marked with such seal as in the next preceding Eule mentioned, show- ing the same to have been renewed, shall be sufficient evidence of its having been so renewed. 140. Writs of execution shall have the same force and effect as the like writs have heretofore had, and shall , be executed in the same manner in which the like writs have heretofore been executed in civil proceedings. Writs. , 141. All writs on the Crown side shall.be issued at the office of the Clerk of the Crown, and shall be signed by him and sealed with the seal of the court. 142. Every writ shall be prepared by the solicitor or party suing out the same. Every writ shall, before •being issued, be indorsed with the name and address of such solicitor and party ; and, if sued out by the solicitor as agent, with the name and address of the principal solicitor also. With the exception of writs of subpoena ad testificandum, all writs issued shall be entered in a book to be kept for the purpose by the Clerk of the Crown. 143. The teste of all writs shall be abolished, and everj r writ except as hereinafter by these Eules provided shall bear date on the day on which the same shall be issued. 144. Every writ, unless by these Rules otherwise provided, when returnable to the Supreme Court shall be made returnable forthwith ; and such of the aforesaid writs as may be made returnable at chambers shall be made returnable forthwith before a judge, at chambers, unless otherwise ordered ; provided that every writ of habeas corpus ad subjiciendum shall be made returnable immediately. 145. Every order to return a writ shall require such return to be made within four days next after service of such order, if served in Halifax, and within eight days in all other cases. Every writ returnable in court shall, together with the return thereto, be filed in the office of the Clerk of the Crown, and every writ returnable before a judge shall after the decision of the judge thereon, be CROWN RULES. 25 so filed, with the return and any order made thereon, or a copy of such order ; provided that any writ of certiorari to remove inquisitions and depositions taken before a justice of the peace, or a coroner, upon the commitment of any person charged with any offence, shall, as soon as the court or a judge shall have exercised their or his discretion thereon, be transmitted to the person from whom they have been received. 146. Every writ to compel an appearance shall require the appearance to be entered on a day certain, and in case no appearance shall be entered at the end of four days, exclusive of the return day thereof, further process may issue to compel an appearance, which further process shall be dated on the return day of the previous process ; and every writ of capias ad satisfaciendum shall have eight days at least between such date and return. Habeas Corpus. (a ) — Ad Subjiciendum . 147. An application for a writ of habeas corpus 'ad subjiciendum may be made to the court or a judge. 148. If made to the court the application shall be by motion for an order, which if the court so direct may be made absolute ex parte for the writ to issue in the first instance ; or if the court so direct they may grant an order nisi. 149. If made to a judge he may order the writ to issue ex parte in the first instance or may direct a sum- mons for the writ to issue. 150. Provided that no application for a writ of habeas corpus on a warrant of extradition shall be made to a judge at pbambers during the session of the court. 151. The writ of habeas corpus shall be served per- sonally, if possible, upon the party to whom it is directed; or, if not possible, or if the writ be_ directed to a gaoler or other public official, by leaving it with a servant or agent of the person confining or restraining, at the place where the prisoner is confined or restrained, and if the writ be directed to more than one person, the original delivered to or left with such principal person, and copies served or left on each of the other persons \x\ the same mariner as the writ, 4 26 CROWN RULES. 152. If a writ of habeas corpus be disobeyed by the person to whom it is directed, application may be made to the court, on an affidavit of service and disobedience, for an attachment for contempt. In vacation an applica- tion may be made to a judge in chambers, for a warrant for the apprehension of the person in contempt to be brought before him, or some other judge, to be bound over to appear in court at the next ensuing sittings, to answer for his contempt, or to be committed to the county gaol for want of bail. 153. The return to the writ of habeas corpus shall contain a copy of all the causes of the prisoner's detainer indorsed on the writ, or on a separate schedule annexed to it. 154. The return may be amended or another sub- stituted for it by leave of the court or a judge. 155. When a return to the writ of habeas corpus is made, the return shall first be made, and motion then made for discharging or remanding the prisoner, or amending or quashing the return. 156. On the argument of an order nisi or summons for a writ of habeas corpus the court or a judge may in his or their discretion direct an order to be drawn up for the prisoner's discharge, instead of waiting for the return of the writ, which order shall be a sufficient warrant for any gaoler .or constable, or other person, for his dis- charge. (b) — Other Writs of Habeas Corpus. 157. Applications for all other writs of habeas corpus must be made on affidavit to a judge at chambers. 158. An application to bring up a prisoner to give evidence on any cause or matter, civil or criminal, before any court, justice, or other judicature, may'be made to a judge on affidavit for an order. 159. When a prisoner is brought up by habeas corpus, the counsel for the prisoner shall be first heard, and then the counsel for the Crown, and then one counsel , for the prisoner in reply. Motions. 160. Order LII of the Rules of the Supreme Court (motions and other applications), shall, as far as it is CEOWN RULES. 27 applicable, apply to all civil proceedings on the Crown side. The following rules shall apply to all proceedings on the Crown side : — 161. Unless the court or a judge give special leave to the contrary, there shall he at least two clear days be- tween the service of a notice of motion and the day named in the notice for hearing it. 162. Except as may be otherwise provided by these Rules all applications on the Crown side shall be niade by way of motion supported by affidavit, but no affidavit shall be necessary for an order demandable as of right by the Crown, or where it is not necessary to state matters of fact. 163. When any motion is made, founded on evi- dence by affidavit, a copy of such affidavit intended to be used shall be served with the notice of motion. 164. All cases of conviction and of orders, removed into court from any inferior jurisdiction, shall be entered for argument upon notice of motion to show cause why the conviction or order should not be quashed. 165. If on the hearing of a motion or other applica- tion the court or a judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the courtor 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 shall think fit. Attachment foe Contempt. 167. An application for an attachment for contempt shall be by motion for an order nisi. The service of an order nisi for an attachment shall be personal. 168. Every writ of attachment for contempt shall be made returnable on a day certain during the session. In case of a return of non est inventus thereon, one or more writs may issue dated on the return day of the previous , writ. 169. If the sheriff returns cepi corpus, on application to a judge, an order shall be granted for a writ of habeas corpus to issue to bring in the body of the defendant, 2B CROWN EXILES. 170. When the defendant is brought before the court on the attachment, a motion may be made by the prose- cutor, or if he does not make it, by the defendant, that he may be sworn to answer such questions or inter- rogatories as may be put to him by the prosecutor, and must give such bail to answer them before a master or such other person as the court may appoint, and for the master or such other person to proceed to examine the matter and report to the court thereon. 171. In default of bail the defendant shall be com- mitted to the county gaol, but if at any time after he be prepared to give it, he may be brought before the court or a judge on an order on the person in whose custody he is, which order shall be granted on application to a judge. 172. On the defendant being sworn an order may be granted and served on the prosecutor to file inter- rogatories with the master or person appointed by the court within four days after the service thereof. If no interrogatories are tiled at the end of the fourth day, on obtaining a certificate from the master or person so appointed to that effect, the defendant shall be discharged out of custody by an order of the court or a judge. 173. The answers to the interrogatories shall be signed by the defendant, and also acknowledged by him before any commissioner to administer oaths in the Supreme Court. 174. On an intimation to one of the parties that the master or person appointed by the court is prepared with his report, a motion may be made on a four days' notice to be served on the other party, that on a day certain he do make his report to the court. 175. The defendant shall be present in court on such report being made, and if he is in custody, an order if necessary, shall be made for a writ of habeas covpus to bring him into court. 176. If the defendant be out on bail, the prosecutor shall, if possible, give notice to the defendant and his bail that the defendant is required personally to attend the court on the report, and that if he does not so attend the court will be moved to estreat the recognizance. 'p i 177. If the defendant be reported in contempt, the court after hearing the parties on the report may either CEOWN EXJLES. 29 pronounce sentence at once, or commit him to the county gaol until some future day for that purpose, when an order shall be made directing the keeper of the gaol to bring the defendant into court. 178. On proceeding to sentence, affidavits in miti- gation or aggravation may be read, and the defendant or his counsel heard, and the prosecutor's counsel be heard in reply. 179. If the defendant be sentenced to imprisonment, the order for sentence shall be lodged with the gaoler of the prison to which he is committed. 180. If the defendant is reported not to be in con- tempt, the court may order him and his recognizances to be discharged, and with costs if the court shall be of opinion that the prosecutor's complaint was groundless and the attachment vexatious. 181. All interrogatories in writing on attachments shall be signed by counsel or solicitor. 182. It shall be lawful for the master or person appointed to examine to disallow any question or interrog- atory that he considers irrelevant or otherwise improper. i Time. 183. Order LX of the Rules of the Supreme Court, (time), shall, as far as it is applicable, apply to all civil proceedings on the Crown side. The following Rules shall apply to all criminal pro- ceedings on the Crown side : — 184. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or the practice of the court, the same shall be reckoned exclusively of the first day, and inclusively of the last day. 185. When any limited time less' than six days from and 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 com- putation of such limited time. 186. When the time for doing any act or taking any proceeding expires on a Sunday, or other days on which the offices are closed, and by reason thereof such act or 30 CROWN RULES. proceeding cannot be done or taken on that day, such act or proceeding shall, as 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 shall next be opened. 187. A court or a judge shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time for doing any act or taking any proceeding, upon such terms (if any) as the justice pfthe case may require ; and any such enlargement may be ordered at the discretion of the court or a judge, although the application for the same is not made until after the expiration of the time appointed or allowed. 188. In all causes in which there have been no pro- ceedings for one year from the last proceeding had, the party, whether prosecutor or defendant, who- desires to proceed, shall give a calendar month's notice to the other party of his intention to proceed. A summons of a judge, on which no order has been made, shall not be deemed a proceeding within this Rule. Notice of trial, though afterwards countermanded, shall be deemed a proceeding within it. Amendment. 189. Order XXVIII of the Rules of the Supreme Court, (amendment), shall, as far as it is applicable, apply to all civil proceedings on the Crown side. Costs.' 190. Order LXIII of the Rules of the Supreme Court, (costs), and the provisions respecting costs and fees of solicitors and counsel'mentioned therein and the provisions in force in Nova Scotia respecting sheriff's fees, shall, as far as they are applicable, apply to all civil and criminal proceedings on the Crown side. 191. In all cases not specially provided for the unsuccessful party shall pay costs unless the court or a judge otherwise orders. Notices. 192. Order LXI V of the Rules of the Supreme Court, (notices], shall, as far as it is applicable, apply to all pro- ceedings on the Crown side, civil or criminal". \ CROWN RULES. 31 NON-COMPLI ANCE . 193. Order LXYI1I of the Rules of the Supreme Court (effect of non-compliance), shall, as far as it is applicable, apply to all proceedings on the Crown side, civil or criminal. Interpretation Clause. 193. In these Rules, unless repugnant to the context, the singular number shall include the plural, and the plural number shall include the singular. "Crown side" means the Crown side of the Supreme Court. " Judge at chambers " shall include a judge at chambers in Halifax and elsewhere. "Judgment" shall include order and conviction. Forms. 196. The forms in the appendix when applicable, and where not applicable forms of the like character as near as may be, shall be used in all proceedings on the Crown side. 197. In cases in which the forms of procedure are omitted from the appendix, the forms given in the ap- pendix to the "Crown Office Rules, 1886," of the High Court of Justice of England, shall be followed where applicable. Returns by Sheriffs and Clerks of the Crown. 198. On the opening of the court on the first day of every criminal sittings at Halifax, and of every sittings in the other counties, the sheriff shall hand to the presid- ing judge a return in writing under his hand of all war- rants, or otherjprocess for the collection of fines, penal- ties, amercements, or forfeitures, received by him since the commencement of the last preceding criminal sittings or sittings in the county, and of his proceedings thereon, giving in each case the date, name, amount, the sum col- lected, and the disposal of it, and if the whole amount was not collected, giving the reason thereof. 199. On the opening of the court on the first day of every criminal sittings at Halifax, and of every sit- tings in the other counties, the Clerki of the Crown shall -A, 32 CROWN RULES. hand to the presiding judge a return in writing under his hand of all the fines, amercements, forfeitures, and penal- ties imposed by the court since the commencement of the last preceding criminal sittings or sittings in the county, and of all recognizances, bonds, and other securities for- feited, or in his opinion liable to forfeiture, during that period which have been taken or filed in, or returned to, or removed into the court, with a detailed account of all proceedings taken since the commencement of the last criminal sittings, or sittings in the county, to estreat any recognizances, or collect any fines, penalties or amerce- ments, or forfeitures, giving the names and descriptions of the parties liable, and the suit or proceeding, if any, in which the recognizances were given, or the fines, for- feitures, or penalties imposed ; and if any, warrant or other process issued to collect the sam^ has been returned during the same period, it shall accompany such return. 200. The Clerk of the Crown shall at the same time furnish the presiding judge with a list of the indictments found, but which have not been tried. When to Come in Force. 20 1 . The foregoing Orders and Rules may be cited as the Supreme Court Rules (Crown Side). They shall come into operation on the fifth day of February, 1901, and shall also apply, so far as may be practicable (unless otherwise expressly provided), to all proceedings taken on or after that day in all matters then pending. Dated the second day of February, A. D. 1901. SUPREME COURT RULES (CROWN SIDE). FORMS. l. General Form of Writ of Certiorari. (Rule 27.) Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to {here insert direction), and to every of them, greeting : We being willing for certain reasons that {here insert descrip- tion of proceeding to be removed as in the order for the certiorari') (as is said) be sent by you before Us, do command you, and every of you that you or one of you do send forthwith under your hands (or seals), or the hand (or seal), of one of you before Us, in the Supreme Court at , in the County of , all and ^singular the said proceedings with all things touching the same as fully and perfectly as they have been made by you (or some of you), and now remain in your custody or power, together with this Our writ, that we may cause further to be done thereon what of right and according to the law We shall see fit to be done. Issued at , in the County of the day of , in the year of Our Lord One Thousand Nine Hundred and (To be indorsed.) By order of court {or of Mr. Justice ), at the instance of This writ was issued by M. N., of X.', solicitor for {or, if the case is so, "agent for" G. H., the solicitor for), Notice to Justices of Application for Certiorari to Remove Con., viction, or Order of Justices. ('Rule 30.) To A. B. and C. D., Esquires, two of Her Majesty's Justices of the Peace, in and for the county (city, or district) of ......... (or E.F., Judge of the County Court, or Stipendiary Magistrate, as the case- may be) : Take notice, that the Supreme Court at will be moved on the day of , or so soon after as counsel can be heard {or that application will be made to a Judge in Chambers at ., on the day of ,) at the hour of , in the . . .noon, on behalf of E. F„ for a writ of certiorari to remove into the said court a certain record of conviction {or order), under 5 34 FORMS. the bauds and seals of you, the said A. B. and C. D., as such Justices as aforesaid (or as the case may be), made on or about the day of , whereby the. said E. F was convicted of {here describe the offence, or describe concisely the order intended to be temoved). \ Dated, &c. (Signed.) E. F., (or by his solicitor stating himself to be the solicitor for the above-named E. F. «. Affidavit of Service of Notice of Application for Certiorari to Remove Conviction or Order of Justices, &c. (Rule 196.) In the Supreme Court, "1 Crown Side. J I, G. H., of , clerk to , solicitor for E. F., mate oath and say : — 1. That I did, on the day of , serve A. B., Esquire, one of Her Majesty's Justices of the Peace, in and for the county of with the notice hereunto annexed, marked A., by delivering a true copy of the said notice to the said A. B., at , in the said county (or where the service is not personal, as follows : — ) That I did, on the day of also serve C. D., Esquire, one other of Her Majesty's Justices of the Peace in and for the said county, with the said notice by delivering a true copy of the said notice to and leaving the same with (the wife, clerk 01 servant) of the said C. D., at the house or residence of the said C. D., situate at , in the said county. Sworn to, &c. Filed on behalf of 4. Recognizances to be Filed Before Notice of Motion for Certiorari is Given to Remove Conviction, Judgment or Order. (Rule 28.) Be it remembered, that on the day of 19. . , B. F., of , N. O., of , and P. Q., of , come before me, R. S., Esquire, one of the Commissioners of the Supreme Court in and for the county of , and acknowledge to owe to our Sovereign Lady the Queen the sum of Two Hundred Dollars of lawful money of Canada, to be levied upon their several goods and chattels, lands and tenements, to Her Majesty's use, upon con- dition that if the said E. F. will make application for an order for a writ of certiorari to remove into the Supreme Court a certain record of a conviction (or judgment or order) made on or about the day of A. D. 19.., by , whereby E. F., at the suit of Her Majesty on the prosecution of , {or as the case may be) was convicted of (or ordered to) (Here describe shortly the offence or substance of the order) ; and if said order or a writ of certiorari is refused, will pay such costs as the court or a judge FORMS. 3:5 taay direct; and if such order is granted that he, the said E. F., will prosecute with effect and without wilful or affected delay, the said writ of certiorari and the proceedings to quash said conviction {judgment or order) and will respond the judgment to be finally given in the matter, and w ( ill pay such costs as the court or a judge may direct; then this recognizance to be void, or else to remain m full force. Taken and acknowledged the day and year first aforesaid, Before me, (Sgd.) R. S., Com. Sup. Court for County of (Sgd.) E. F. N. O. P. Q. Notice to Opposite Party of Motion for Certiorari to Remove a Conviction, Judgment or Order. (Rule 27.) In the Supreme Court, 1 Crown Side. J , Take notice, that a motion will be made before , at on , the day of , A. D. 19.., at o'clock, or so soon thereafter as the Court {or the Judge) shall be at liberty to hear the same, for ah order for a writ of certiorari to remove into the Supreme Court a certain record of a conviction {ot judgment or order) made on or about the day of , A. D. 19. . , by , whereby E. F., at the suit of Her Majesty, on the prosecution of , {or as the case may be) was convicted of, {01 ordered to.) {Here describe shortly the offence or substance of the order. ) The application will be made at the instance of , and will be supported by affidavits and exhibits, copies of which are served herewith. [If the objection is on account of any irregularity or omission, or mistake in drawing up the conviction, order or judgment, insert the grounds.] Dated, &c. 1 (Sgd.) To the prosecutor or I C. D. of his solicitor. Solicitor of above-named J defendant. N. B. — These forms must be varied to make them applicable to other proceedings. 6. Judge's Order for Certiorari for Conviction, Judgment or Order. (Rule 27.) (Heading as in No. 5.) Upon reading the affidavits of filed the day of , 19. . , and upon hearing counsel on both sides, {or as the case may be. ) It ia ordered that a writ of Certiorari issue to remove into this gourt a certain, {as in the notice No. j.) 36 FORMS. Certiorari to Remove Conviction, Judgment or Order. (Rule 35.) Victoria, by the Grace of God, &c, to {here insert the names of the judge, justices or cgurt to whom the writ is to be directed), greeting : We being willing for certain reasons that a certain record of {here describe the conviction, judgment or order, as in the judge's order, form No. 6) as is said, be sent by you before Us, do command you, and every of you, that you or one of you do send forthwith under your seals, or the seal of one of you, before Us, in Our Supreme Court at , all and singular the said record, with all thing* touching the same, as fully and perfectly as they have been made by you, or some of you, and now remain in your custody or power, together with this Our writ, that we may cause further to be done thereon what of right and according to the law we shall see fit to be done. Issued at (To be indorsed.) By Order of Court {or of Mt. Justice ) At the instance of the within-named defendant, {or as the case may be.) This writ was issued by, &c. 8. Retutn to Writ of Certiorari. (Rule 196.) Indorse the wtit thus : The execution of this writ appears by the schedules. ( The Schedules consist of the convictions, orders and other documents to be returned, hereunto annexed. The answer of A. B., Esquire, one of the justices within mentioned To be signed and sealed by one of the justices. [1,. s.] 9. Entty of Appearance to Information, &c. (Rule 73.) In the Supreme Court, "I Crown Side. j The Queen against A. B. Enter appearance for the above-named A. B. to this information. Dated, &c. (Sg'd.) CD., of , Solicitor of the above-named defendant. Poems. 3? 10. Notice of Motion to Discharge Prisoner Out of Custody when Prosecutor has not Proceeded within the Time Limited after Defendant's Apprehension. (Rule 39.) In the High Supreme Court, \ Crown Side. J The Queen against A. B. Take notice that application -will be made to this Court (or to a fudge in Chambers') at the expiration of eight days after service of this notice, or as soon after as counsel can be heard, that the above- named defendant be discharged out of custody upon his entering an appearance to the information in this prosecution, on the ground that the prosecutor has not proceeded as required by Rule 39 of the Rules of the Supreme Court (Crown Side). Dated. &c. (Sg'd.) C. D., ofL., Solicitor of the above-named defendant. To W. G., the Prosecutor, or the Solicitor for the Prosecutor. 11. Notice of Motion for Discharge of Prisoner Out of Custody After Conviction when Prosecutor has not Proceeded to Bring Him up for Sentence. (Rule 40. ") (Heading as in No. 10.) Take notice, that this court will be moved at the expiration of eight days after service of this notice, or so soon after as counsel can be heard, that the above-named defendant be discharged out of custody upon giving his own recognizance, the prosecutor not having brought up the said defendant for sentence as required by Rule 40 of the Rules of the Supreme Court (Crown Side). Dated, &c. 12. Recognizance to Prosecute Information (Criminal): (Rule 41.) Be it remembered that on the day of , A. D. 19. . , before , Esquire, Commissioner of the Supreme Court for the County of cometh x A. D. (the prosecutor), of and C. D., of and E. F., of , and severally acknow- ledge to owe to G. H. (the defendant), the sum of Two Hundred Dollars, upon condition to prosecute with effect a certain informa- tion exhibited in the Supreme Court against the said G. H., by order of the said court, dated the day of , A. D. 19.., for certain misdemeanors, and abide by and observe all such orders and things as the said court shall direct in that behalf. Taken, &c. 38 FORMS. 13. Recognizance to Prosecute Information Quo Warranto. (Rule 41.) {Similar to No. 12, except that the information must be described as) & certain information in the nature of a Quo Warranto, exhibited against the said G. H., on the relation of the said A. B., in the said court, to show by what authority he claims to exercise the office of a {member of the Municipal Council for the County of , or as the case may be), whereof he is impeached, and to abide by and observe all such orders and things as the said court shall direct in that behalf. Taken, &c. 14. Notice to a fustice of the Peace of Intention to Apply for a Criminal Information. (Rule 42.) To A. B., Esquire, one of Her Majesty's Justices for the county of Take notice, that the Supreme Court at , will be moved on the day of , or so soon after as counsel can be heard, on behalf of C. p., for an order to show cause why an in- formation should not be exhibited against you for certain mis- demeanors, in unlawfully, maliciously and corruptly, and contrary to your duty as such justice of the peace. {Here set out the nature of the offence. ) Dated, &c. (Sg'd.) H. I., Solicitor for the said C. D. Notice to Several fustices. Commence, as above, and continue why one or more information or informations should not be exhibited against you or some or one of you, &c, as above. 15. Information, {Criminal.) (Rule 196.) In the Supreme Court Crown Side, To Wit. 1 Be it remembered, that A. B., Attorney-General of our present Sovereign Lady the Queen, in the Supreme Court, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes in his own proper person, conies here into court, before the Queen herself, at, , upon the day of A. D. 19. ., {the day the order was made. ) And for our said Lady the Queen gives the court here to understand and be informed, that {state offence, and then proceed in the same manner as if it were an indictment.) Second Count. — And the said Attorney-General of our said Lady the Queen, for our said Lady the Queen, further gives the court here to understand and be informed that, &c, FORMS. 39 {To Conclude.) ^ Whereupon the said Attorney-General for our said Lady the Queen prays the consideration of the court here in the premises and that due process of law may be awarded against him, the said B. G., in this behalf to make him answer to our said Lady the Queen, touching and concerning the premises aforesaid. (Sg'd.) A. E., Attorney-General. 16. Information Quo Wananto Against Trustee of a School (Rule 196.) In the Supreme Court, ") Crown Side, \ To Wit. J Be it remembered, that A. B., Attorney-General of our present Sovereign Lady the Queen, in the Supreme Court, before the Queen herself, who for our said Lady the Queen in this behalf prosecutes in his own proper person, comes here into court before the Queen herself at , on the day of , in the year of Our Lord One Thousand Nine Hundred and , {date of order), and for Our Lady the Queen at the relation of A. B., of , gives the court here to understand and be informed that School Section No , in the county of . .' is a School Section within the meaning of Chapter 52, Revised Statutes of Nova Scotia, Of Public Instruction. And within said section, pursuant to the provision of said chapter, three trustees {or as the case may be) are to be elected as and for the board of trustees for said section in manner as by the said chapter provided, and that the place and office of trustees of the School Section, No , is a public office and place of great trust and pre-eminence within the said section, touching the rule and government of the schools in said section. And that C. D., of , in the said county, merchant, {or as the case may be), heretofore, to wit on the day of , in the year of Our Lord One Thousand Nine Hundred and , within the said school section in the county aforesaid, did use and exercise, and from thence continually afterwards to the time of exhibiting this fnformation, has there used and exercised, and still does there use and exercise, without any legal warrant, authority, or right whatsoever, the office of trustee of said school section in the county aforesaid, and for and during all the time last above-mentioned, has there claimed and still does claim to be a trustee of said school section, and to have, use, and exercise all the privileges and per- form all the duties belonging and appertaining to the said office, which said offices, privileges, and duties he, the said C. D., for and during all the time last above-mentioned, upon our said Lady the Queen, without any legal warrant, authority, or right whatsoever, has usurped and still does usurp, that is to say, within the said district, in the county aforesaid, in contempt of our said Lady the Queen, to the great damage and prejudice of her royal prerogative, and against her crown and dignity. Whereupon the said Attorney-General of our said Lady the Queen, for our said Lady the Queen prays the consideration of the court here in the premises. And that due course of law may be 40 FORMS. awarded against hirn, the said CD., in this behalf to make him answer to our said Lady the Queen, and show by what authority he claims to have, use, and enjoy, and perform the office, liberties, privileges, and duties aforesaid. (Sg'd.) A. B., Attorney-Genet al. 17. Notice of Motion for an Information Quo Warranto. (Rule 46.) In the Supreme Court, ) Crown Side. / Take notice that the Supreme Court at Halifax will be moved on the day of , 19 . . , or as soon after as counsel can be heard, on behalf of A. B. of , merchant, {or as the case may be), that an information in the nature of a Quo Warranto be ex- hibited against you C. D., to show by what authority you claim to exercise the office or franchise of a of on the ground : — That {here shortly state the giounds of the application.') And further take notice, that in support of this application will be read the affidavits of E. E., and another, and G. G., sworn respectively the day of , 19 . . , and the exhibits therein referred to, copies of which are served herewith. Dated, &c. (Sg'd.) X. Y. of Z., Agent for M. ,N. of S., Solicitor for the above-named A. B. To C. D., of T. 18. Disclaimer Upon an Information Quo Warranto. (Rule 53.) In the Supreme Court, 1 Crown Side. -"J The Queen on the relation of A. B., against C. D. And now, that is to say, on the day of , 19.., comes the above-named C. D., by his solicitor {or in his own propel person), and says that he altogether disclaims and disavows the office, liberties, privileges, and franchises in the said information above specified, and cannot deny but that he has usurped upon our said Lady the Queen, without any legal warrant, royal grant or right whatsoever, the said office, liberties, privileges, and fran- chises in the said information above mentioned, and confesses and acknowledges the said usurpation in manner and form as in the said information is above alleged. (Sg'd.) C. D., {or by his counsel.) FORMS. 4'1 19. Judgment of Ouster on Disclaimer to Quo Warranto. (Rule 53.) Heading as in No. 18. The day of 19 . . . The defendant having, on the day of , 19 • • , entered a disclaimer upon this information, it is this day adjudged' that he, the said C. P., do not in any manner intermeddle, &c, {proceed as in form for judgment on Quo Warranto, form 43.) 20. Writ of Mandamus. (Rule 61.) Victoria, by the Grace of God, &c. to of greeting. Whereas, by {here recite Act of the Legislature, or Charter, if the act required to be done is founded on either one or the other. ) And whereas, We have been given to understand and are informed in our Supreme Court before us that {insert necessary inducement and averments.') ■ And you the said , were then and there required by {insert demand), but that you the said , well knowing the premises, but not regarding your duty in that behalf, "then and there wholly neglected and refused to {insert refusal), nor have you or any of you at any time since in contempt of Us and to -the great damage and grievance of , as we have been informed from their complaint made to us. Whereupon, we being willing that due and speedy justice should be done in the premises as it is reasonable, do command you the said and every of you, firmly enjoining you that you {insert command) or that you show Us cause to. the contrary thereof, lest by your default the same complaint should be repeated to Us ; and how you shall have executed this Our writ make known to Us in Our said Court at , forthwith then returning to Us^this Our said writ, and this you are not to omit.' Issued, &c. To be indorsed. By order of court (or of Mr. Justice 1 ) At the instance of This writ was issued by, &c. 21. Return to Writ of Mandamus. (Rule 196.) The return may either be indorsed on the back of the original writ, or engrossed on a separate schedule. When indorsed on the back of the original writ. 42 FORMS. The answer of {the parlies to whom the writ is directed) to this writ :• — We, the, &c«i {the Defendants') to whom this writ is directed, do most humbly certify and return to Our Sovereign Lady'the Queen, at the time and place in this writ mentioned, that we have, &c, {when the return is an obedience to the writ, the words of the mandatory part of the writ should be recapitulated in the past^ instead of the future tense) . As by the said writ we are commanded. {To be signed by the parties making the return, Or a sufficient number to form a quorum, unless they are a corporate body, in • which case it is sufficient to attach the corporate seal). When the return is engrossed on a separate schedule. Indorse the original writ {or the copy served) thus: The return of .to this writ {or if the return is obedience, say, the execution of this writ) appears in the schedule hereunto annexed. The answer of ( To be signed and sealed as above. ) Writ of Ptohibition. (Rule 196.) Victoria, by the Grape of God, &c, to , Judge of our County Court, District No , or Stipendiary Magistrate {or as the case may be,) greeting. Whereas, we have been given to understand that you, the said {here state the matter complained of.) And that the said has no jurisdiction to hear and determine the said by reason that {here state facts showing want of jurisdiction.) We therefore hereby prohibit you from further proceeding in the said ' Issued to , This writ was issued by, &c. 28. - ' Certificate of Indictment Found or Informatian Filed in the Supreme Court. (Rule 74.) In the Supreme Court, \ Crown Side. J The Queen vs. A. B. I hereby certify that A. B. stands charged by indictment found {or information filed) against him in this court, at , on the FOliMS. 43 , day of , 19 . . , with {here shortly state the offence) and that the said A. B. has not appeared or pleaded to the said indict- ment {or information) nor is he under any recognizance so to do. Sated, &c. (Sg'd.) C. D., Clerk of the Crown. 84. Warrant of Arrest. (Rule 75.) In the Supreme Court, 1 Crown Side. J Nova Scotia to wit : Whereas, it is certified to me by the proper officer in that behalf that {as in certificate No. 23.) These are, therefore, to command you forthwith to apprehend the said A. B., and to bring him before me or some other judge of the Supreme Court, or before some one or more of the justices of the peace in and for the "said {county) of , to be dealt with according to law. Dated, &c. (Sg'd.) J. MACDONALD, Chief fustice of Nova Scotia. To the sheriff of , and to all constables and other peace* officers whom it may concern. 29. Warrant to Admit to Bail on Indictment Found or Information Filed. (Rule 75.) In the Supreme Court, 1 Crown Side. J , ' Nova Scotia to wit. Whereas, it is certified to me by the proper officer in that behalf that {as in certificate No. 23.) These are, therefore, to command you forthwith, to apprehend the said A. B., and to bring him before me or some other judge of the Supreme Court in Chambers at , or before one or more justice or justices of the peace, near to the place where he shall be taken, to the end that he may find sufficient sureties for his im- mediate appearance in this court, and forthwith to plead to the said indictment, " to try the same at the then {or -next) sittings of the Supreme Court," and personail-y to appear in the said court on the trial of the said indictment {or information) and also upon the return of the postea, if he x shall be convicted, and be further dealt with according to law. Dated, &c. .(Sg'd.) J. MACDONALD, Chief fustice of Nova Scotia, 44 FofcMs. »«. Warrant of Committal. (Rule 76.) In the Supreme Court, 1 Crown Side. J Whereas, By my warrant (or the warrant of the Honourable Mr. Justice dated the ...... day of , 19. . , after reciting that it had been certified to me (or him) that (as in the certificate} I (or he) commanded the sheriff- of and all constables and other peace officers whom it might concern, forthwith to apprehend the said A. B., and bring him before me (or the said judge) or -some other judge of the Supreme Court, or before some one or more justices of the pea'ce in and for the county of , to be dealt with according to law ; And whereas, The said A. B. has been apprehended under and by virtue of the said warrant and being now brought before me (if before a justice Of the peace and one of Her Majesty's justices of the peace, in and for the county of: ), it is hereupon duly proved to me upon oath, that the said A. B. is the same person who is named and charged in and by the said indictment : These are therefore to command you to whom this warrant is addressed, forthwith to take and lodge the said A. B. in the county jail at F., in the county of , together with this warrant, there to be imprisoned by the jailer of the said prison until he shall be dis- charged by due course of law. Dated, &c. (Sg'd.) J. MACDONAIvD, Chief Justice of. Nova Scotia, To »7. Notice to Defendant to Appear to t Information in Pursuance of Undet taking in Mnlarged Order. (Rule 196.) (Copy, the enlarged Order containing the undertaking to appear, and write the following notice at the fool) : In the Supreme Court, 1 Crown Side. J , The Queen rs. ) B. R. Take notice, that in pursuance of the above Order, an informa- tion has been filed in Her Majesty's Supreme Court at' '. .., against the above-named defendant for certain misdemeanors. And that he is hereby required to cause an appearance to be entered in the said court thereto immediately in pursuance of his undertak- ing contained in the above Order. And in default thereof the said court will be moved on the day of or so soon after as counsel can be heard, that the prosecutor be at liberty to enter an appearance thereto for the said defendant, and to sign judgment i S'ORMS. 45 cfnte^tt Lt^f™ attachment may issue against him for his contempt in not performing his said undertaking. ) Dated, &c. (Sg'd.) M. N. of I., agent of G. H., of Y., Solicitor for the Prosecution. To B. R., the above-named defendant, and to his solicitor or agent. ,^£ { J iS inte ,? ded to apply for an attachment,' this notice must be served personally . 28. Notice of Bail to Avoid Arrest, (Rule 78.) (Heading as in No. 27.) Take notice, that the above-named defendant will appear before a judge in chambers at , {or before a justice of the peace in and for the county of , at ), on the day of . 19. ..at the hour of .. . ., in the. . . .noon, and put in bail to appear in this court on the .... day of 19 . . , to the indictment found {or information filed ) against him in this prosecution for 'certain misdemeanors, and to plead thereto and try the same at the present (or next) sittings of the court, and personally to appear at the trial of the said indictment {or information ), and so from day to day, and not to depart without leave of the court. And the names and descriptions of such bail are A. B., of, &c, and C. D., of, &c. Dated, &c. ' (Sg'd.) M. N. of T., agent for X. Y:, of S., Solicitor for the ab/ove-named defendant. To C. D., the Prosecutor, or to Mr. P., the Solicitor, or agent for the Prosecutor. 29. Recognizance to Answer Indictment ot Information. (Rules 78, 79.) Be it remembered, that on the day of 19. . , A. B., C. D., and E. F., come before me, G. H., Esquire, Commissioner of the Stipreme Court for the county of , and. acknowledge to owe to our Sovereign Lady the Queen the several sums following {that is to say) the said A. B. the sum of dollars, the said C. - D. and the said E. F., the sum , of ....... dollars each of lawful money, of Canada to be levied upontheir several goods and chattels, lands and tenements to Her Majesty's use, upon condition that if the said A. B. appears in Her Majesty's Supreme Court at ...... forthwith, and answers an indictment (or infotmation) against him for certain (misdemeanors) according to the course of, the said couit, and tries the same at the present (or next) sittings of the said coutt, or so soon after as the case can be heard, and personally appears from day to day on the trial of the said indict- ment, and does not depart until he is discharged by the court before, whom such trial is had, and appears from day to day, and does not depart until discharged by such Court, then this recognizance to be void or else to remain in full force, Taken, &c, 46 FORMS. 30. Notice to be Indorsed on Copy of Indictment or Information t& be Served on a Defendant in Prison for Want of Bail to Answer. (Rule 80.) In the Supreme Court, 1 Crown Side. /' The Queen against J- J- Take notice, that unless you stiall, within the space of eight days next after the delivery hereof, cause an appearance, and also a plea or demurrer, to be entered in this court to the within in- formation {or indictment), an appearance and a Pfea of Not Guilty will be entered thereto in your name, pursuant to the rule in that case made and provided, and that the issue to be joined thereon will be tried at the next term (or sittings') of the Supreme Court to be holden in and for the county of Dated, &c. (Sg'd.) M. N., of- L., agent for X. Y. of S., Solicitor for the Prosecution. To J. J., the above-named Defendant. / 31. 1 Affidavit of Service of Copy Information, or Indictment, With Notice Indorsed, on Defendant in fail. (Rule 80.) (Heading as in No. 30.) I, A. B., of, &c, make oath and say, . . That I did on the day of , 19 . . , deliver to the above-named defendant, then a prisoner in the county jail, and for the county of at the said prison, a copy of the paper writ- ing hereunto annexed, marked with the letter (annex a copy of the information and notj.ce indorsed, ) and of the indorsement thereon. Sworn, &c. 83. Writ of Subpoena, to Answer an Information. (Rule 196.) Victoria, by the Grace of God, &c, to A. B. : We command you that laying aside all pretences and excuses whatsoever, you be and appear in our Supreme Court at before Us. on the day of, 19. . , to answer to Us, of and concerning such matters and things as shall then and there be objected against you on our behalf, and further, to do and receive all and singular such matters and things as our said court shall then and there consider of con- cerning you in this behalf. And this you are not to omit under the penalty of Five Hundred Dollars, to be levied upon your goods and chattels, lands and tenements, if you shall make default in the premises, FORMS. 47 Indorsement When on Criminal or Ex-officio Infotmalion. In the Supreme Court, before the Queen herself, Attorney-General of our Lady the Queen, prosecutes this writ against the -within named A. B., upon an information exhibited against him by the said . . . ! , in the said court for certain misdemeanors whereof he is impeached. When on Quo Warranto. v Attorney-General, &c, prosecutes this writ against the within-named A. B., upon an information in the nature of a quo warranto, on the relation of C. D!, exhibited against the said A. B. by the said Attorney-General, in the said court, to show by what authority he claims to be (a school trustee for section . . i . , or as the case may be), whereof he is impeached. This writ was issued by, &c. Affidavit of Service of Subpoena to Answer 'to an Information. (•Rule 196.) In the Supreme Court, \ Crown Side. J The Queen ' against , A. B. I, C. D., of, &c, make oath and say : That I did on the day of , 19. . , «erve A. B., the above-named defendant, with the writ of subpcena to answer in this prosecution hereunto annexed, and of the indorsement thereon, by delivering a true copy of the said writ and indorsement thereon to, and leaving the same with, (a servant of the said) A. B. at the bouse ' or residence (or office) of the said A. B., situated at , in the county of And at the same time showing to the said (servant of the said) A. B., the said original writ of subpcena; and which said writ appeared to this Deponent to be duly and regularly issued out of and under the seal of this honorable court. Sworn to, &c. ' (Sg'd.) C. D., Filed on behalf of the Prosecutor (or Relator.) 38. Writ oj Attachment to Answer an Information. (Rule 77.) Victoria, by the Grace of God, &c, to the sheriff of , greeting : We command you that you attach A. B., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before Us in our Supreme Court at , on the . . . . . . day of > to answer to TJs for certain misdemeanors whereof he is impeached, and that you have then there this writ. Issued, &c. 48 FORMS. 34. Writ of Attachment to Answer Information Quo Warranto., (Rule 196.) (Same as No. 33.) (Except that instead of the^ words "To answer to us for certain misdemeanors, &c," say : — ■ To answer to us upon an information in the nature of a Quo Warranto, exhibited against him by , our Attorney -General, in our Supreme Court at , to show by what authority he claims to be, &cs This writ was issued by, &c. 35. Writ of Venire Facias, to Answer. (Rule 81.) Victoria, by the Grace of God, &c; to the sheriff of , greeting : ' We command you that you cause to come before us, in our Supreme Court at , on day of 19. ., A. B., to answer to us for certain misdemeanors whereof he is indicted, and have you then there this writ. Issued, &c. This writ was issued by, &c. 36. Writ of Distringas, to Answer. (Rule 81.) Victoria, by the Grace of God, &c, to the sheriff of , greeting : , We command you that you distrain A. B., by all his lands and chattels in your bailiwick, so that neither he nor any one for him do put his hands to the same, until you shall, have another com- mand from us for that purpose. And that you answer to us for the issues thereof, so that you may have him before us in our Supreme Court at on the day of , 19.., to answer to us for certain -whereof he is indicted (0; impeached} and to hear his judgment f6r his many defaults, and have you then there this writ. Issued, &c. 37. 1 Writ of Capias to Answer to Indictment, or Information. (Rule 196.) Victoria, by the Grace of God, &c, to the sheriff of , greeting : , ( We command you that you take A. B., if he shall be found iu your bailiwick, and him safely keep, so that you may have his FORMS. 49 \ body before us m our Supreme Court at , on the day • j'-'l'i'P 19 -"' toans werto us for certain crimes whereof he is mdicted (artmpeached.) And have you then th«e this writ. Issued, &c. 88. Summons to Admit to Bail on a Criminal Charge. (Rule 82.) In the Supreme Court, 1 Crown Side. J The Honourable Mr. Justice . . : in Chambers. (If indict- ■ ment or information found, insert title.) Upon reading the affidavit of &c., filed the day of > !9 • • , and upon hearing counsel for A. B. It is ordered that all parties concerned attend the judge in chambers on the.' day of , 19.., at the hour of , in tlie noon, on the hearing of an application on behalf of the said A. B., to be admitted to bail. Dated, &c. Notice. — To be served upon the Attorney-General, committing ■magistrates, or coroner, and prosecutor, or in case of murder 01 manslaughter on the widow, or next of kin, of the deceased, or as the judge may direct. 89. Order to Admit Prisoner to Bail. (Rule 82.) In the Supreme Court, 1 Crown Side. / The Honourable Mr. Justice ; . , in Chambers. (If indict- ment or information found, insert title.) Upon reading the affidavit of , filed the day of , 19. . , upon hearing counsel for It is ordered that upon A. B., giving security by his own recognizance in the sum of , with (two) sufficient sureties in ' the sum of each, before one of Her Majesty's justices of the peace, in and for the county of , (or before a judge in qhambers or a commissioner) for the personal appearance of the said A. 1 B., at the next term or sitting of the Supreme Court, to be holden in and for the said county of , then and there to answer to all such matters and things as on Her Majesty's behalf shall be objected against him, he, the said A. B., be discharged out of the custody of the keeper of the county jail at , in the said county as to his commitment for {here shortly state as in com- mitment.} Twenty-four hours' notice of the names and descriptions of the proposed sureties must be given to the Prosecutor, if any, and the ■ Attorney-Genet al, unless the judge ordet otherwise. 7 50 FORMS. 40. Notice of Bail upon Order of Judge. (Rule 196.) Whereas, the Honourable Mr. Justice , has made an order bearing date the '. day of , 19: . , that {recite the order., see No. 30.) Now take notice that in pursance of the said order, the said ...... and (four) sufficient sureties will enter into such recog- nizance as aforesaid, before (as in theo'r der) at , on the day of at the hour of in the . . . .noon. And that the names and descriptions of such sureties are (her e give names, &c, of sureties.) Dated, &c. (Sg'd.) M. N. of L., agent of G. H., of Y., Solicitor for the said To the Attorney-General, the Prosecutor, (if any) (or widow, or next of kin) and to the committing magistrates (or coroner.) 41. Warrant to Apprehend Defendant Sentenced at Trial when not Present at the Trial. (Rule 118.) > Whereas, the above-named Defendant, A. B., was on the day pf 19. . , at the sittings: (or term) of the Supreme Court, in the county of , before me, the Honourable Mr. Justice , tried, and by a jury of the country convicted of certain • misdemeanors, and it was thereupon considered' and adjudged and ordered by me that for the offences whereof he was so convicted, as aforesaid, he, the said A. B., should be imprisoned in the county jail at , in and for the county of , for the space of (three calendar months). v These are, therefore, to command you to apprehend and take the said A. B. and lodge him in the said prison at aforesaid, there to be imprisoned and kept in .safe custody by the jailer of the said prison in execution of, the said judgment. Dated, &c. 42. Order to Commit when Defendant Sentenced at Trial. (Rule 118.) In the Supreme Court, \ Crown Side. J The Queen against ' A. B. The defendant, A. B., being present here in court, and being by\a jury of the country convicted of certain misdemeanors (of felonies) whereof he is indicted in this prosecution, it is ordered that he, the said defendant (do pay a fine to our Sovereign Lady the Queen of dollars of lawful money of Canada, and further that he be imprisoned until the said fine he paid ; and the said defendant is now here in court committed to the custody of the keeper of the county jail at , until the said fine be paid, or as the case may be.) Dated, &c. By the Court. FOHMS. 51 43. Judgment for the Crown on Quo Warranto After Trial With a Jury. (Rule 196.) In the Supreme Court, \ Crown Side. J (Name of County.) The Queen on the relation of A. B. against C. D. 15th Apt it, 19 . . The information in this prosecution having on the 12th and 13th days of April, 19.. ', been tried before the Honourable Mr. Justice , with a ( special ) 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 Crown with costs {or as the case may be.) Therefore it is adjudged that the defendant, C. D., do not in any manner intermeddle with or concern himself about the office, liberties, privileges, and franchises in respect of which the said information has been filed, but that he be absolutely forejudged and excluded from exercising or using the same, or any of them, for the future. And that the said A. B., the relator above-mentioned, do recover against the said C. D., his costs in this behalf to be taxed. The above costs have been taxed and allowed at . 44. Judgment for the down on Mandamus After Trial With a Jury. (Rule 196.) In the Supreme Court, 1 Crown Side. J {Insert Name of County.) The Queen, on the prosecution of A. B., Plaintiff, against C. D., Defendant. .... 30th March, 10. ■ The issue of this writ of mandamus having on the day of 19 . . , been tried before the Honourable Mr. Justice , with a (special) 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 Crown with costs {or as the case may be.) Therefore it is adjudged that a peremptory writ of mandamus be awarded in this behalf, and that the plaintiff do recover against his costs to be taxed. The above costs have been taxed and allowed at . . . , 52 FORMS. 45. Writ of Supersedeas to Certiorari and Procedendo to carry back Orders, Convictions, &c. (Rule 196.) Victoria by the Grace of God, &c. To greeting : Whereas, by our writ we have lately commanded you and every of you, or one of you, should forthwith send under your seals, or the seal of one of you, before us in our Supreme Court at , all and singular (as in the writ of certiorari) as fully and perfectly as they had been made by you, or some of you, and then remained in the custody or power of you, or any of you, together with that our writ, that we might cause further to be done thereon what of right and according to the law we should see fit to be done. We do for certain reasons Us thereunto moving, command you that you do wholly supersede whatsoever is to be done concerning the execution of that Our said writ, j And that you proceed upon the said orders in such manner as if the said writ had not issued. ■ Issued, &c. (To be Indorsed.) "By order of court," or "By order of Mr. Justice " (as the case may be.) This writ was issued by, &c. 49. Summons for writ of Habeas Corpus and Subjiciendum. (Rule 149.) In the Supreme Court, 1 Crown Side. J The Honourable Mr. Justice , . . , Judge in Chambers. Upon reading the several affidavits" of, &c, filed the day of 19 . . , and upon hearing Mr of counsel for It is ordered that all parties concerned attend the judge, in chambers on the day of , 19. . , at the hour of ,- in the . . . .noon, to show cause why a writ of habeas corpus should not issue directed to , to have the body of , before a judge in chambers at , forthwith to undergo, &c. Dated. &c. 47. Order jor writ of Habeas Corpus and Subjiciendum. (Rule 149. ) : In the Supreme Court, 1 Crown Side. / The Honourable Mr. Justice , Judge in Chambers, Upon reading the several affidavits of, &c, filed the day of > 19- ■ » and upon hearing counsel on both sides (or as the case may be.) FORMS. 53 It is ordered that a writ of habeas corpus issue, directed to . .., to have the body of A. B. before a judge in chambers at . . . , forthwith to undergo and receive, &c. Dated &c. 48. Writ of Habeas Cot pus ad Subjiciendum. (Rule 147.) Victoria by the Grace of God, &c, to greeting : We command you that you have in our Supreme Court, {01 before a judge in chambers), at immediately after the receipt • of this our writ, the body of A. B., being taken and detained under your custody, as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, to undergo and receive all and singular such matters and things as our said court (or judge) shall then and there consider of concerning him in this behalf ; and have you there then this our writ. Issued, &c. (To be indorsed.) By order of coart (or Mr. Justice ) This writ was issued by, &c. 49. Notice to be Served with Writ of Habeas Corpus Ad Subjiciendum.. (Rule 196.) In the Supreme Court, \ Crown Side. / Whereas, this court (or the Honorable Mr. Justice )• has granted a writ of habeas corpus directed to , command- ing him to have the body of before the said court ( or before a judge at chambers) at , immediately, to undergo, &c. Now take notice, that you are hereby required to have the body of the said , before the said court (or before the ,said Judge as aforesaid), on the day of 19. . , at the hour of in the . . . .noon, and to make a return to the said writ, or in default thereof, the said court will then, or so soon after as counsel can be heard, be moved for an attachment against you, for your contempt in not obeying the said writ (or if in vacation that application will then be made to one of the judges of the said court for a warrant for your apprehension, in order that you may be held to bail to answer for your contempt in not obeying the said writ.) Dated, &.c. (Sg'd.) M.,N.,ofL., Solicitor for To (the persons to whom the writ is directed, and any other person upon whom it may be deemed necessary to serve the writ). 54 FoftMs. so. Notice of having Obtained Writ of Habeas Corpus Ad Subjiciendum on an Informal or Illegal Commitment. (Rule 196. ) (Heading as in No. 49.) Recite the granting of the writ as No. . . t then say : Now take notice that by virtue of the said writ, the said A. B. will be brought before the said court (or before a judge in chambers) at on the day of (at of the clock, &c.,) in order that he the said , may be discharged out of custody as to the commitment by 'which he is now detained in the custody of the said gaoler. Dated, &c. (Sg'd.) M. N., , Solicitor for the said To A. B. and C. D., Esquires, the committing magistrates, and to the prosecutor. 51. Affidavit for Writ of Habeas Corpus Ad Testificandum or Order to Testify. (Rule 157.) In the Supreme Court, "I • Crown Side. j , I, A. B., of, &c, make oath and say: — 1. That C. D., now a prisoner confined in the county jail at , in and for the , undergoing a term of imprison- ment for (6r under commitment to take his trial for [here shortly state offence] is and will be a material and necessary witness on behalf of on the trial of an indictment (or before the grand jury of the county of , upon an indictment to be preferred against E. F., for certain .. t , which indictment stands for trial (or is to be preferred) on the day of , 19. . , at , in and for the county (or as the case may be) of 2. That the cannot safely proceed to trial (or prefer the said indictment) without the testimony of the said CD. Sworn, &c. 52. Writ of Habeas Corpus ad Testificandum. (.Rule 196*). Victoria, by -the Grace of God, &c, to the jailer of our prison at of and for our : We command you that you have before (description of court) on the day of 19.., at , the body of , being committed and detained in our prison under your custody, as FORMS. 55 is said, then and there to testify the truth and give evidence (on our behalf against A. B. for felony ; or otherwise describe the pro- ceedings as in a subpoena), and so from day to day until the said shall have given his evidence, as aforesaid. And when he shall have given his evidence then that you take him back without delay to our said prison under your custody, and cause him to be detained therein under safe custody, until he shall be from thence discharged by due course of law. Issued, &c. 53. Ordet Instead of Wiit of Habeas Corpus ad Testificandum. In the Supreme Court, 1 Crown Side. / The Queen against A. B. Upon reading the affidavit of C. D., filed the day of ......... 19 . . , and upon hearing the solicitor for It is ordered that the jailer of Her Majesty's prison at , of and for the (county) of (or as the case may be), do have before at , on the day of 19 . . , the body of E. F., committed and detained in his custody, as it is said, then and there to testify the truth and give evidence (on behalf of the Queen against G. H., upon an indictment for felony; or other- wise describe the pt oceedings in which the prisoner is required to attend, as in a subpcena) „ and so on from day to day until the said E. F. shall have given his evidence as aforesaid. And when he shall have given his evidence, then that you take him back without delay to the said prison, to be detained therein until he shall be from thence discharged by due course of law. Dated, &c. 54. Writ of Attachment. ( Rule 196. ) Victoria by the Grace of God, &c; to the sheriff of greeting : We command you to attach C. D., so that you may have him before us, in our Supreme Court at , on the day of , 19. ., to answer to us for certain trespasses and contempts brought against him in our said court ; and have you there then this writ, Issued, &c. 56 FORMS. 55, Affidavit for Habeas Corpus to bring up a ptisonet to be charged with attachment. Rule 169.) In the Supreme Court, 1 Crown Side. j \ The Queen against A. B. I, G. H., of, &c, clerk of I.J.I of, &c, the solicitor for the prosecutor in this case, make oath and say : 1. That on the day of last, a writ of attachment was granted by, and duly issued out of this honourable court, directed to the sheriff of '.' , against the above-named defendant for his contempt in not {describe the nature 0/ the contempt.') 2 . That the said defendant is a prisoner for , now con- fined in the county jail at , of and for 3. That the prosecutor is desirous that the said defendant should be brought before this honourable court (or a judge in chambers at ), in order that he may be charged with and committed upon the said attachment. Sworn, &c. 56. Writ of Habeas Corpus on return of Cepi Corpus. (Rule 169.) Victoria by the Grace of God, &c; to the sheriff of , greeting : We command you that you have the body of before us, in our Supreme Court at , forthwith- after the receipt of this our writ, to answer to us for certain trespasses and contempts brought against him in our said court before us, and whereof by your return, sent to us, you have charged yourself. And have you then there this writ. ' ' Issued, &c. 57. Recognizance to Answer Interrogatories. (Rule 170.) Be it remembered, that on the day of : . . ,' 19 . . , in Her Majesty's Supreme Court, before the Queen herself at , come , of , and , of , and acknowledge themselves to owe to our said Lady the Queen the several sums following, that is to say, the said the sum of , and the said . .'. and the sum of each, of lawful money of Canada, to be levied upon their several goods and chattels, lands and tenements, to Her Majesty's use. Upon condi- tion that if the said shall answer to all such interrogatories as shall be exhibited to him in the said court, touching a contempt supposed to have been by him committed against the said court, and shall appear from day to day in the said court, and not depart from the said court without leave, then this recognizance to be void or else to remain in full force. Taken, &c. By the Court. INDEX TO CROWN RULES. 57 INDEX TO CROWN RULES. [ The J* tter R - re f ers to the rules, and the letter F. to the forms rhe number is the number of the rule or form, as the case may be, and is not the number of the page, ] ABRIDGMENT of time, R. 187 ADDRESS for service, R. 99 ADJOURNMENT of motion, R, 165 AFFIDAVITS, application of Order xxxvi of Rules of Court, to civil proceed- ings on crown side, R. 5 evidence by, R. 6 title of, R. 7 statements in, to what extent admitted, R. 8 in N. S., how sworn, R. 9 commissioners to administer oaths, what bound to do, R. 10 affidavits, &c, otherwise than in N. S., how sworn, R. 11 form and language of, R. 12 description and abode of deponent, R. 13 names of more than one deponent in jurat, R. 14 how filed, R. 15 . scandalous matter in, R. 16 erasure or interlineation in, R. 17 affidavits of the illiterate or blind, R. 18 defects in, when and how cured, R. 19 stamp on, office copies, R. 20 affidavit not to be sworn before solicitor, &c, acting for party sworn, R. 21 affidavit not to be sworn before clerk or partner of solicitor of party, R. 22 time for filing affidavits when limited, R. 23 order made ex parte on an affidavilAot produced or filed to be void, R. 24 additional, to oppose new matter, not to be used without leave first obtained, R. 25 affidavits of service, what to state, R. 26 answers to interrogatories: See Attachment for Contempt and see Service AMENDMENT, Order xxviii of Rules of Court, to apply to civil proceedings, R. 189 APPEALS, Order i/vii of Rules of Court, to apply to civil proceedings on Crown side, R. 127. APPEARANCE TO INFORMATION AND INQUISITION, defendant to enter appearance in office of Clerk of Crown, R. 73 certificate of indictment being filed, R. 74 ; and see F. 23 apprehension of defendant under judge's warrant, R. 75 : and see FP. 24, 25 committal of defendant, bail, R. 76. default of defendant to appear, R. 77. how defendant "for misdemeanour may avoid arrest, R. 78 8 58 INDEX TO CROWN RULES. APPEARANCE TO INFORMATION AND INQUISITION— con- tinued defendant when apprehended, who bailed, R. 79 defendant for misdemeanour in gaol, how to put in appearance, R. 80. appearance of body corporate or inhabitants, how compelled, , R. 81 certificate of indictment found or information filed in the Supreme Court, F. 23 : and see R. 74 warrant of arrest, FF. 24, 25 : and see R. 75 warrant to admit to bail on indictment found in Supreme Court, F. 25 : and see R. 75 warrant of committal, F. 26, R. 76 notice to Defendant to appear to information in pursuance of undertaking and enlarged order, F. 27 notice of bail to avoid arrest, F. 28 recognizance to answer indictment or information, F. 29 notice to be indorsed on copy indictment or information, to be served on a Defendant in prison for want' of bail to answer, F. 30 affidavit of service of copy information or indictment with notice indorsed on Defendant in gaol, F. 31 writ of subpoena, to answer an information, F. 32 writ of venire facias, to answer, F. 35 affidavit of service of subpoena to answer to an information, F. 32 A writ of attachment to answer an information, F. 33 writ of attachment to answer an information quo warranto, F. 34- APPEARANCE TO WRITS, R. 145. , APPREHENSION of defendant on indictment found, R. 38 ATTACHMENT FOR CONTEMPT, application, how to be made, R. 167 writ of, when returnable, R. 168 return of cepi cotpus, R. 169 interrogation of defendant, R. ic7o committal in default of bail, R. 171 interrogatories of prosecutor, R. 172 answer to interrogatories of prosecutor, R. 173 report of master, R. 174 presence of defendant at hearing of master's report, R. 175 notice to defendant of master's report, R. 176 defendant reported to be in contempt, R. 177 affidavits in mitigation or aggravation, R. I78 sentence lodged with gaoler, R. 179 defendant reported not to be in contempt, R. 180 all interrogatories to be signed by counsel, R. 181 irrelevant interrogatories, R. 182 writ of attachment, F: 54 affidavit for habeas corpus to bring up a prisoner to be charged with attachment, F. 55 writ of habeas corpus on return of cepi corpus, F. 56 recognizance to answer interrogatories, F. 57 BAIL, bail for felony or misdemeanour when party is in custody, R. 82. summons to admit to bail on a criminal charge, F. 38. order to admit prisoner to bail, F. 39. notice of bail, upon order of judge without habeas corpus, F: 40 CERTIORARI, application for writ of, R. 27 recognizances and sureties on application for writ of, R, 28 INDEX TO GROWN RULES. 59 CERTIORARI— cofatinued , recognizances to be filed before notice of application, R. 28 recognizances, requirements of, R. 28 notice ineffectual without recognizances filed, R. 29 limit of time for application for, R. 30 copy of commitment, &c, to be verified by affidavit, R. 31 . conviction, etc., may be quashed on application for writ, R. 32 objections on account of mistakes in judgment or orders of justices to be stated in notice, R. 33 costs of application, R. 34 no costs when unopposed, R. 34 form of writ, R. 35 additional security may be ordered, R. 36 prisoner discharged on application for writ, R. 37 forfeiture'of recognizance, R. 37 general form of writ of, for orders, &c, F. 1 notice to justices of application for, to remove conviction, or order of justices, F. 2 affidavit of service of notice! of application for certiorari for conviction, or order of justices, F. 3 recognizance on amplication for, F. 4 notice of motion for, to remove conviction, or order of justices, F -5 . ' judge's order for certiorari for conviction, or order of justices,. F. 6. certiorari to remove conviction, or order of justices, F. 7 return to writ of, F. 8 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 " LVII: see Appeals " LX: see Time " LXIII : see Costs " LXIV : see Notices " LXVIII : see Non-compliance And see Forms COMMISSIONERS TO ADMINISTER OATHS, RR. 9, 11. COMMITTAL, warrant of, F. 26 CONDITIONS IN RECOGNIZANCES : see Recognizances CONTEMPT : see Attachment for Contempt CONTINUANCES, continuances not necessary, R. no COPIES OF PROCEEDINGS, < copies of proceedings may be obtained at office of Clerk of Crown, R. 98 CORPORATE BODY, appearance of, how compelled, R. 81 COSTS order LXIII, of Rules of Court, to apply to proceedings, R. iqo unsuccessful party to pay, R. 191 on certiorari, R. 34 to successful party, R. 191 COUNSEL, signature of, R. 181 t 60 ' INDEX TO CROWN RULES. CUSTODY OF RECORDS, Clerk of the Crown to have custody of records, R. 3. DATE OF PROCEEDINGS, orders, &c, to bear date on which made, R. 4 DEMURRERS AND SPECIAL CASES, Entry of R. 101 DISCLAIMER TO QUO WARRANTO, R. 53, F. 18, judgment on ' F. 19 DISTRINGAS, writ of, F. 36 DOCUMENTS, service of, R. 99 ENLARGEMENT OF TIME, RR. 112, 187 ESTREAT OF RECOGNIZANCES, R. 122 : and see Recogniz- ances EXECUTION, Order xi, of Rules of Court to apply to civil proceedings on Crown side, R. 129 Criminal Proceedings, judgment or orders which are enforceable by attachment, R. 130 priscipe for writ of execution, R. 131 indorsements on writ of execution, R. 132 return of writ of execution, R. 133 poundage arid expenses of execution, R. 134 directions to sheriff, R. 135 ' enforcement by writ, of moneys due under a judgment, R. 136 order of a -judge, how enforced, R. 137 renewal of writ of execution, R. 138 evidence of renewal, R. 139 effect of writs of, R. 140 FORMS, forms in Appendix to be used Where applicable, R. 196 subjects to which the forms apply and under which they are indexed Attachment Bail Certiorai i Habeas Cotpus Indictments and informations Judgment Mandamus Non-compliance Paper books Quo warranto Recognizances Scire facias Special cases and demurrers Time HABEAS CORPUS, (A . 1 ad subjiciendtim where to be applied for, R. 147 procedure when application is to Court, R. 148 procedure when to judge, R. 149 habeas corpus on extradition warrant, R. 150 writ, how to be served, R. 151 disobedience to writ, R. 152 return to writ — indorsement thereon, R. 153 amended or substituted return, R. 154 procedure on return of writ, R. 155 INDEX TO CROWN RULES. 61 HABEAS CORPUS— continued discharge of prisoner before return of writ, R. 156 summons for writ of habeas corpus ad subjiciendum, F. 46 order for writ of habeas corpus ad subjiciendum, F, 47 writ of habeas corpus ad subjiciendum, F. 48 notice to be served with writ of habeas corpus ad sub* jiciendum, F. 49 notice on having obtained writ of habeas corpus ad sub- jiciendum on an informal or illegal commitment, F. 50 (B.) other writs of habeas corpus where to be applied for, R. 157 for prisoner to give evidence, R. 158 counsel, in what order to be heard, R. 159 affidavit for writ of habeas corpus ad testificandum, or order to testify, F. 51 writ of habeas corpus ad testijicandum, F. 52 order instead of habeas corpus ad testificandum, F. 53 Writ of habeas corpus to bring up a prisoner to be charged with attachment, F. 55 Writ of habeas corpus on return of cepi cotpus, F. 56 INDICTMENTS AND INFORMATIONS, indictment found in Supreme Court, and apprehension of defendant, R. 38 failure of prosecutor to proceed with indictment — discharge of defendant, R. 39 defendant, if convicted, to be brought up for judgment within eight days, R. 40 recognizance to prosecute information or quo warranto — excep- tion for ex officio informations, R. 41 information against justices of the peace, R. 42 information, how and when to be applied for, R. 43 costs of defendant if information or trial not proceeded with, or if defendant be acquitted, R. 44 costs in some cases to follow judgment on indictment or infor- mation for libel in Supreme Court, R. 45 -entry of appearance to information, F. 9 notice of motion to discharge prisoner out of custody when prosecutor has not proceeded within the time limited after defendant's apprehension, F. 10 notice of motion for discharge of prisoner out of custody after conviction, when prosecutor has not proceeded to bring him up for sentence, F. n. v recognizance to prosecute information (criminal), F. 12 - recognizance to prosecute information quo warranto, F. 13 notice to a justice of the peace of intention to apply for a criminal fnformation, F. 14 information (criminal), F. 15 and see Pleadings INFORMATION: see Indictments, Pleadings, and Appearance to Information, &c. INTERPLEADER, R. 68 INTERPRETATION CLAUSE, R. 193 INTERROGATORIES : see Attachment for Contempt INQUISITION : see Appearance to Indictments and Pleadings JUDGMENT, when, may be pronounced at sittings or term at which trial took place, R. 117 respite of, for new trial or in arrest of judgment, RR. 118, 123 defendant under recognizance to receive, if about to abscond, R. 119 62 INDEX TO CROWN RULES. arrest of defendant to satisfy judgment, R. 120 notice to defendant and his bail that judgment will be moved , for, R. 121 estreat of recognizances for want of appearance to receive final, R. 122 proceedings relative to sentence, R. 124 affidavits to be read before sentence, R. 125 procedure where no affidavits are produced, R. 126 warrant to apprehend defendant sentenced at trial when not present at the trial, F. 41 order to commit when defendant sentenced at trial, F. 42 judgment for the Crown on quo warranto after trial with a jury, F-43' judgment for the Crown on mandamus after trial with a jury, F. 44 _ 1 " " TUDGMENT BY DEFAULT, default of pleadings, R. 116 JURISDICTION, convictions of courts of inferior, R. 164 JUSTICES OF THE PEACE : see Certiorari MANDAMUS, application for writ of, how to be made, R. 54 notice to persons affected by proceedings, R. 55 persons affected by proceedings may shew cause, R 56 order absolute need not be served, R. 57 service of writ, where several respondents, R. 58 service of writ on companies or public bodies, R. 59 1 writ peremptory in first instance, when, R. 60 date of writ, R. 61, and see F. 20 return to writ, R. 62 judgment where point of law is in answer to a return or plead- ing, R. 63 rights of applicants obtaining judgment under RR. 63 arid 96, R. 64 no process against persons obeying writ of mandamus, R. 65 where respondent is merely ministerial the persons really in- terested may be permitted to frame return, R. 66 \ return to writ by perspn really interested. Proceedings thereon, R. 67 Order LVI of Rules of Court, to apply to an interpleader in any mandamus, R. 68 issue of manda'mus — affidavit of prosecutor, R. 69 writ of mandamus, F. 20, and see R. 61 return to writ of mandamus, F. 21 and see Pi/sadings. MANDAMUS— ORDERS IN THE NATURE OF, application for all snch orders, how to be made, R. 70 MONEYS DUE UNDER A JUDGMENT, R. 136 MOTIONS, Order LII of Rules of Court, apply to civil proceedings, R. 160 notice of, how long, R. 161 all applications to be by motion, R. 162 copy of affidavits in applications, R. 163 quashing convictions or orders of inferior jurisdictions, R. 164 Court may direct notice of any motion to be to other persons, R. 165 NON-COMPLIANCE, Order i,xviii of Rules of Court to apply to civil and criminal proceedings, R. 193 NOT GUILTY: see Pi^adings INDEX TO CROWN RULES. 63 NOTICE OF MOTION, R. 161 NOTICE OF TRIAL, •what it shall state, R. 104 who may give it, R. 105 length of notice, 106 in. Halifax to be deemed, for what day, R. 107 elsewhere to be deemed, for what day, R. 108 countermand of notice, R. 109 { NOTICES, Order lxiv of Rules of Court to apply to civil proceedings, R. 192 : and see service; OUSTER on disclaimer to quo warranto, F. 19 : and see Quo War- ranto # PAPER BOOKS, Rules of Order I/VIII to apply to proceedings on the Crown n Side, R. 102 when to be delivered, R. 103 PLEADINGS, (a.) Pleadings on Indictment, Information, or Inquisition title and form of pleadings, R. 89 date of " " R. 90 , special plea or demurrer — signature of counsel, R. 91 order and time to plead, R. 92 extension of time to plead, R. 93 (<5.) Pleadings in Quo Warranto •' plea to information and subsequent pleadings, R. 94 , reply to plea, R. 95 (c.) Pleadings in Mandamus plea to return and subsequent pleadings, R. 96 (d.) Pleadings in Prohibition pleadings and subsequent proceedings, R. 97 and see Special Case PROCEEDINGS, copies of, R. 98 date of, R. 4 PROHIBITION, application for, how to be made, R. 71 order may be made absolute, ex parte, R. 72 writ of prohibition, F. 22 » and see Pleadings QUO WARRANTO, application for quo warranto, how made, R. 46 notice of motion in above application, what it must contain, R. 47 on filing information, affidavit required by relator, R. 48 objections to title of defendant, how to be specified, R. 49 refusal of motion — costs, R. 50 substitution of another relator, R. 51 consolidation of several orders nisi, in the same matter, R. 52 disclaimer of intention to defend, R. 53 information quo warranto against a member of a school board, F. 16 notice of motion for an information iquo warranto, F. 17 64 INDEX TO OROWN RULES. QUO WARRANTO— continued disclaimer upon an information quo warranto, F. 18 judgment of ouster on disclaimef to quo warranto, F. 19 and see Pleadings RECOGNIZANCE'S, recognizances to be filed in office of Clerk of Crown, R. 83 now forfeited or estreated, R. 84 conditions in recognizances, R. 85 default in performing conditions, R. 86 see Certiorari RECORDS, custody of, R. 3 RELATOR : see Quo Warranto REPLICATION : see Pleadings RETURN, , by Sheriff of fines collected, R. 198 by Clerk of Crown of fines, &c, imposed, R. 199 by Clerk of Crown of indictments found, R. 200 RULES OF COURT : see Forms RULES, repeal of, R. 1 come into operation 5th February, 1901, R. former orders or rulesnot revived, R. 2 SCANDALOUS MATTER IN AFFIDAVITS, R. 16 SCIRA FACIAS, no proceedings, upon recognizance, R. 88 SENTENCE: see Judgment SERVICE, affidavit of, R. 26 sufficient service of writs and documents, what is, R. 99 affidavit of service of notice of application for certiorari, F. 3 affidavit of service of copy of information with notice indorsed on defendant in prison, F. 31 affidavit of service of subpoena to answer an information, F. 32A SHERIFF : see Execution SPECIAL CASES AND DEMURRERS, civil proceedings — Order xxxm of Rules of Court to apply, R. 100 criminal proceedings — time for entering demurrers and special cases, R. 101 and see Pi^adinGS SUBPCENA, writ of, to answer an information, F. 32 SUPERSEDEAS, writ of, F. 45 ^ TIME, ' Order i,x of Rules of Court to apply to civil proceedings, R. 293 days, how to be reckoned, R. 184 Sunday, Christmas and Good Friday, when not to be reckoned, R. 185 expiration of, for doing any act expiring on a Sunday, or when offices closed, R. 186 enlargement or abridgement of, by Court or judge, R. 187 cause not proceeded with for a year, R. 188 TIME FOR RETURNS OF WRITS, R. 145 INDEX TO CROWN RULES. 65 TRIAL, notice of, R. 104 . NEW, application for, how to be made, R. in stay of proceedings upon application for, RR. 113, 114 time for applying for, extension of, R. 112 • defendants not required to be present, on application for, R 115 WARRANTS, WARRANTO, warrant to apprehend defendant sentenced at trial, F. 41 " of arrest, F. 24 " to admit to bail, F. 25 " of committal, F. 26 \ WRIT OF HABEAS CORPUS : see Habeas Corpus WRITS, where to be issued, R. 141 preparation and indorsement of, R. 142 date of, R. 143 return of, R. 144 time within which writs are to be returned, R. 145 appearance to writs, R. 146 service of, R. 99 writ of attachment to answer information, F. 33 writ of attachment to answer information, quo warranto, F. 34 writ of certiorari, general, F. 1 writ of certiorari to remove convictions, &c, F. 7 writ of capias to answer to indictment or information, F. 37 writ of distringas to answer, F. 36 » writ of habeas corpus ad subjiciendum, F. 48 writ of habeas coipus ad testificandum, F. 52 writ of mandamus, F. 20 writ of prohibition, F. 22 writ of restitution, F. 148 writ of subpcena to answer an information, F. 32 writ of supersedeas to certiorari and procedendo to carry back convictions, F. 45 writ of venire facias to answer, F. 35 YEAR, cause not proceeded with for one, t R. 188 [ The letter R. refers to the tulcs, and the letter F. to the forms. The number is the number of the rule or form, as the case may be, and is not the number of the page.] APPENDIX B. Winding Up Act. RULES UNDER THE WINDING UP ACT. 69 / RULES UNDER THE WINDING UP ACT. In pursuance and execution of the powers given by the Eevised Statutes of Canada, Chapter 129, Section 92, and of all other powers and authorities enabling us in that behalf, we order and direct in manner following : 1. Every petition for the winding up of a company v under said chapter, may be intituled in the matter of the Winding Up Act, and of the. company to which such petition relates, describing the company by its most usual style or firm.— [English General Orders, Nov. 1862, Eule 1.] 2. " Every such petition shall be advertised at least ten clear days, before the hearing, once at least in two Halifax daily morning newspapers, and in cases in which the ofBce, or principal, or last known, place of business, as the case may be, of such company, is or was situate outside of Halifax, then once at least in a local news- paper, if any, circulating in such district. — [lb. Rule 2.] ' ' - ^ . . 3. Every notice of application by petition for wind- ing up the business of a company under said chapter, may be served at the office, if any, of the company, and if no office, then at the principal or last known principal place of business of the company, if any such can be found, upon any member, officer or servant of the com- pany there, or in case no such member, officer or servant can be found there, then by being left at such office or principal place of business, or by being served on such member or members of the company as the court may direct.— [Eule 3.] t. Every petition for the winding up of any com- pany by the court, shall be verified by an affidavit refer- ring thereto, in the form or to the effect following : In the Supreme Court, In the matter of, &c I, of, &c, make oath and say that such of the statements in the petition now produced and shown to me, and marked with the letter A, as relate to my 70 RULES UNDER THE WINDING UP ACT. 1 » own acts and deeds are true, and such of the said state-" ments as relate to the acts and deeds of any other person or persons, I believe to be true. Sworn, &c. Such affidavit shall be made by the petitioner, or by one of the petitioners if more than one, or in case the petition is presented by a company, by a director, secre- tary, or other principal officer thereof. It may be sworn before the said petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition. — [See Rule 4, General Orders, 1862.] 5. Every contributory or creditor of the company shall be entitled to be furnished, by the solicitor of the petitioner with a copy of the petition within twenty-four hours after requiring the same, on paying at the rate of ten cents per folio for such copy. — [Rule 5.] 6. Every order for the winding up of a company and the appointment of liquidators shall be advertised in such manner as the court shall direct. — [Rules 6 and 14.] 7. The form of security to be given by a liquidator on his appointment shall be a bond to the Queen, to be made by two or more sufficient sureties, or such other form as the court shall order. — [Rule 10.] 8. The liquidator shall, with all convenient speed after his appointment, make out and leave at the office of the Prothonotary, Halifax, a list of the contributories of the company, and such list shall be verified by the affidavit of the liquidator, or one of the liquidators if there are more than one, and such list shall, so far as is practic- able, state the respective addresses of and the number of shares or extent of interest to be attributed to each such contributory, and distinguish the several classes of con- tributories, and such list may from time to time, by leave of the judge, be varied or added to by the official liquidator. — [See Rule 29.] 9. Upon the list of contributories being left at the office of the Prothonotary at Halifax, the liquidators shall obtain an appointment for the judges to settle the same, and shall give notice in writing of such appointment to every person included in such list, and stating in what character and for what number of shares or interest such person is included in the list, and in case any variation or addition to such list shall at any time be made by the' RULES UNDER THE WINDING UP ACT. 71 1 ' ' "\ liquidator, a similar notice shall be given to every person to -whom such variation or addition applies. All such notices shall be given ten clear days before the day ap- pointed to settle such list or such variation or addition [See Rule 30.] . 10. The result of the settlement of the list of con- tributories shall be stated in a certificate by the Prothono- tary, and certificates may be made from time to time for the purpose of stating the result of such settlement down to any particular time or as to, any particular person, or '- stating any variation of the list. — [See Rule 31.] 11. Every application to the judge to make any call on the contributories, or any of them^ shall be made by summons stating the proposed amount of such call, and such summons shall be served four clear days at the least before the day appointed for making the call on every :, contributory proposed to be included in such call, or if ,- the judge shall so direct, notice of such intended call may be given by advertisement. — [Rule 33.] 12. When any order for a call has been made a copy thereof shall be forthwith served upon each of the con- tributories included in such call, together with a notice from the liquidator, "specifying the amount br balance due from such contributory in respect of such call, but such order need not be advertised unless for any special reason the judge shall so direct. — [Rule 34.] 13. At the time of making an order for a call or calls, the further proceedings relating thereto shall be ad- journed to a time subsequent to the day appointed for the payment thereof, or for the payment of the first call thereby made, and afterwards from -time to time so long as may be necessary, and at the time appointed by any *■ such adjournment, or upon a summons or notice of motion to enforce payment of the said calls, or either or any of them, duly served ; and upon proof of the service of the order and notice of the amount due and non-payment, an order or orders may be made for such of the pontribu- tories who have made default, or for such of them against whom it shall be thought proper to make such an order or orders, to pay forthwith the sum which by such former order and notice they were respectively required to pay, or any less sum which may appear to be due from them respectively. Any order for the payment of money made under this rule may be enforced against all persons named therein, or bound thereby, in the same manner as a judg- 'j - 72 RULES UNDER THE WINDING UP ACT. ment to the same effect could be enforced under the pro- visions of Order XL of the Eules of the Supreme Court. Any such order shall have the same force and effect as a ; judgment for the recovery or payment of money, and shall be entered as a judgment by the Prothonotary in the book mentioned in Order XXXIX, Eule 1, of the Rules of the Supreme Court. A separate order under this rule may be made against each or any individual contributory. It shall not be necessary to serve any such order before enforcing the same by execution. Any such order against a contributory who has been included for shares held in his own right, may be made in the form marked "A," in the schedule hereto, or to the like effect, and any such order against any contributory who has been included as executor or administrator of any deceased shareholder, may be made in the form marked " B," in the said schedule, or to the like effect. Such forms may be varied as circumstances may require. 14. Notices of meeting of creditors and contributories held under the said Act may be given by mailing the same to the creditors and contributories to their last known address within such period as to admit of their being delivered at least ten clear days before the meeting, and by advertisement in two Halifax daily morning newspapers at least ten clear days before the meeting. — [See Eule 45.] 15. No contributory or creditor shall be entitled to attend any proceedings in court or before the judge unless and until he has filed with the prothonotary an appearance in the matter, giving his name and address and the name and address of his solicitor, if any ; and upon any change of his address, or his solicitor, his new address and the name and address of his new solicitor. — [Rule 62.] 10. Services upon contributories and creditors shall be effected, except when personal service is especially required, by sending the notice or a copy of the summons or order or other proceeding through the post in a pre- paid letter, addressed to the solicitor of the party to be served (if any), or otherwise to the party himself to his last known address or place of abode ; and such notice or copy, summons, order or other proceeding shall be con- sidered as served at the time the same ought to be de- livered in the due course of delivery by the post office, and notwithstanding the same may be returned by the post office. — [See Eule 63.] »•'./} RULES UNDEU THK WINDING UP ACT. 73 • 17. No service under these rales shall be deemed invalid by reason that the Christian "name or any of the Christian nam's of the person on whom service is sought to be made, has been omitted or designated by initial letters in the list of contributories, or in the sum- mons, order, notice or other document wherein the name of such contributory or creditor is contained, provided the judge is satisfied that such service is in other respects sufficient. — [Rule 64.] 18. Whe;i the court or a judge by any judgment or order shall award costs, or direct the payment of costs, or make any direction or provision respecting the pay- ment of costs, in every such case, the court or judge may, in and by the same judgment or order, fix and tax in a lump sum, the amount of such costs, and direct payment of such lump sum in lieu of taxed costs. 19. In these Rules the expression " court " shall in- clude " judge." Halifax, January 28, ^91. (Sgd.) jas. Mcdonald, h. Mcdonald, hexry w. smith, j. x. ritchie, charles j. townshend. : r*.-': , )5 -•, Hide 13. S. S. ' -rtvln the matter of ..., and in the iriatter of the Winding Up Act, Chapter 129, Revised Statutes of Canada. Upon reading the order for calls herein, dated , and the affidavits of , and upon hearing , and on motion, the proceedings upon the said order for calls having been duly adjourned to this day ; In the Supreme Court. It is ordered that , of , in the County of . . '.' .': , one of the contributories of the said ......,, do forthwith pay to ...'... , the liquidators of the said , at ■■■■.., the sum of , being the amount due and payable by the said contributory upon and in respect of the call of per cent., payable on the , day of , 19. . , made by the said order for calls, dated 10 74 RULES UNDER THE WINDING UP ACT. I , and that the said liquidators have judgment and execution against the said ... ., for the sura of $ . . , together with the costs of this application, which are hereby taxed and allowed, at the sum of $ . . , making in all the sum of $...., and that the said liquidators do recover the said sum of $, . . . debt, and the said sum of $...., costs against the said .Dated Halifax, the day of , a.d. 19 . . "B." Mule 13. In the Supreme Court. S. S. In the matter of the , and in the matter of the Winding Up Act, Chapter 129, Kevised Statutes of Canada. Upon reading the order for calls herein, dated , and the affidavits , and upon hearing , arid, on motion, the proceedings upon the said order for calls having been duly adjourned to this day ; It, is ordered that , of , in the County of , executor of the last will and testament of (or administrator of the goods, chattels and effects which were of) , late of , in the County*of , deceased, do forthwith pay to , the liquidators of the said ... , at , out of the goods, chattels, moneys and estate which were of the said , deceased, at the time of his death, and which have already come, or which may hereafter come, to the hands of the said as such executor (or administrator) as aforesaid, the sum cjif $...., being the amount due and payable by the said , as a contributory of the said , upon and in respect of the call of...... per cent., payable on the day of , 19.., made by the said order for calls, dated , and that the said liquidators do re- cover against the said , the said sum of % . . . . , and also the sum of $ .... , for the costs of this application (which are hereby fixed and taxed at that amount), which said debt and costs in the whole amount to $ . . . , to be levied upon the goods, chattels, moneys and estate which were of the said , deceased, at the time of his death, and which have already come, or which may here- after come, to the hands of the said , as executor (or administrator) as aforesaid to be administered. Dated Halifax, the day of , a.d. 19 . .