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Les diagrammes suivants illustrent la mithode. 1 2 3 1 2 3 4 5 6 If? u » ; THE ONTARIO JUDICATURE ACT. 1881, RULES OF THE COURT AND FORMS, WITU TQK ORDERS OF THE COURT OF APPEAL, AND OTHER ACTS, ORDERS AND RULES RELATINa TO THK PKACTICE IN THE SUPREME COURT OF JUDICATURE, !| WITH PRACTICAL NOTES. i^'t'iiP BY JAMES MACLENNAN, ESQ, ONE OF HER MAJESTY'S COUNSEL. .^''^fii i" '^^^ ''"'s, TORONTO COPP, CLARK & CO., PUBLISHERS, 9 FRONT STREET WEST. 1881. KETO (1,4 Mii Kiiterfid according to Act of the Parliament of Canada, in the year one thniiAari eight Imndrtd and eighty-one, by JAMKS MACLENNAN, Ksq, one of Hit Majpiity'8 Cuuntiel, in the Uflli^e of tlio MiiiistiT of Agriculture. PREFACE. This book on the Judicature Act is submitted to the profession, in the liope that it may bo of assistance in studying and mastering the changes wliich the Act is about to introduce in the constitution and practice of the Courts. The book was w iertaken at the suggestion of the Attorney-General for Ontario, under wliose auspices the Act vv^as passed, and who was good enougli to phice the notes which he had made in preparing the the Bill for the Legislature at the service of the Editor, and who has also favoured him with valuable suggestions in the preparation of the work. Although the Act consolidates the Courts and provides for a uni- form procedure, the former enactments relating to practice remain in force except so f.or as they are inconsistent with the new. Until some years have elapsed and the practical working of the substituted pro- cedure has been tested by experience, it bcemed unwise to attempt to define the extent to which the former practice will still be applicable. The plan of this book, therefore, is not to present anjiihing like a treatise on the practice of the Supreme Court, but to facilitate the understanding of the new Act, l»y explaining the object smd effect of its provisions, in the light of the decisions under the English Act, and by pointing out, as far as possible, the extent to which the existing practice is varied. With the old practice all practitioners are more or less familiar. The new procedure, even where in a general outline it resembles the old, will be found to present numerous dillerences in its details, while in some of its features it introduces practice altogether new. Amongst the more important provisions may be mentioned the enlarged powers of the Court in regiird to the granting of a mandamus, injunction or receiver, and the allowance of amondiaenta ; the pro- visions for signing judgment on a summary application when the writ has been specially indorsed ; the very liberal provisions with regard to the joinder of parties and causes of acticju ; the foi-m of pleadings ; the bringing in of third parties interested in the matter in controversy ; the raising by counter-claim and the settlement in the action of cross- claims or demands which the defendant may have not merely against the plaintifl' alone, but also against the plamti£f and third persons. IV PREFACE. To all tlioHO matters special attention has boon givon in tho hope that tho way of tlio practitioner may bo somewhat cleared in making himself iicquaiiitod with matters more or loss unknown to tho existing practic '. It hiis boon ondoavourod to make the roforencos to authorities bearing not only on those matters, but also on all tho other provisions of tho Act, jis complete as possible. Tho cases in our own Courts have not boon neglected, and such as seemed useful havo been noted. It has, howovor, boon thought best not to swell tho book by a refer- ence to too many cases decided xmder tho existing practice, until it htw been ascertained by judicial decision how far tho old authorities are applicable to the new procedure. To do otherwise might often tend to mislead rather than to guide. It will bo iKjticed that some subjects are dealt with both by the Act and in the schedule of Rules. In such cases tho Editor's plan has been in general to introduce the annotations which seemed necessary amongst the Rulo.s, where more of the details of tho procedure are to be found. Such statutory enactments and Chancery Orders as will obviously remain in force have been printed in the notes to tho Rules which deal with tho same or kindred subjects, so that tho reader may find, so far as po.s.sible, collocted together, all tho provisions ho may wish to refer to. It ha.s been thought that this course is more convenient than tho collocting of the disjecta membra of the old enactments and orders in the form of an Appendix. Tho Orders of tho Court of Appeal have been added (Appendix I.), that the book may be, as far as possible, complete as a work on practice. A Time Table (Appendix II.) has been compiled, shewing at aglance the time for l.ikiiig the more important steps in an action. The Index, always difficult of preparation so as tj suit all minds, will, it is hoped, be found satisfactory. In conclusion the Editor has to acknowledge the valuable assistance rendered to liim liy Mr. Thomas Langton, which has enabled him to place tho book in the hands of the profession long before it could otherwise have been done He also desires to claini tho indulgence of the profession for tho errors and imperfections which may be found in tlie book, and which he cannot hope to have ecapsed. TORRLKVBN, 2ud Juue, 1881. TABLE OF C0NTP:^^TS. — ♦ — Paob. Tabi.I! of Cases ix I NTHODUCTION XXV THK ACT:-PiiEUMiNARY. Short title ; sec. I I Commencuuient of Act ; sec. 2 2 PAUT I.— Constitution ok St'PKEME Court. Union of existing Courts ; sec. 3 2 Existing Court of Appeal continued ; sec. 4 6 Oatli of olHce ; sec. f) 6 Saving of rights and oldigations of existing Judges ; sec. 0. . . . 6 Provision for former extraordinary duties of Judges ; sec. 7- • . . 7 Seal oi Supreme Court ; sec, 8 7 l'.\RT II.— JUKISDICTION. Jurisdiction of High Court of Justice ; sec. !) 8 Transfer of pending business ; sec. 10 8 Provision as to pending business ; sec. II 9 Kules as to exercise of jurisdiction ; sec. \'2 lO .Jurisdiction of Court of Appeal ; sec. \'.\ .... lO Powers of Court of Appeal '2 Surrogate antl ( -ounty Court ([Klerks not to draw or advise on certain documents ; sec. 65 64 OflRcial ( iuardian ad litem ; sec. 66 (55 Return ; sec, (»7 68 Provision as to property ve"ted in Accountant ; sec. 68 69 ExjK'nses of Accountant's office ; sec. 61) 69 In8])cctor of Sheriff's and other offices ; sec. 70 70 Inquirii'9 by Inspector ; soc. 71 71 Books, &c., to be jiroduced for insi)ection ; sec. 72 71 Powers of Commissioners to take affidavits ; sec. 73 71 Solicitors and Attorneys ; sec. 74 71 PART VI.— CouNTv ConiTS and Judges. Qualification of C(mnty Court Judges ; sec. 75 72 Local Judges of the High Court ; sec. 76 72 Powers of County and Division Courts ; sec. 77 73 Counter-claims in County and Division Courts and transfers therefrom ; sec. 78 73 Surrogate Courts, fees of Judges ; sec 79. . . 74 Rules of Law to apply to Inferior Courta ; sec. 80 75 TAniiK OF CONTENTS. Vll I'AU'I" VII.— MlSCRLLANROIS rnoVlSKINH. pAf)F. Ontoi's in Coniicil ;ih to iillowiinccH ami nalarios sul>jf(:t to ratiti- tatioii !)>' lAgiHlativf Asseinhly ; sec. HI !<> TranHfer of liooks iuiil papers ; sec, H'J 75 < 'oini)clliii^' attiinlaiico ot witiifssis ; Bcc. H3 T^j Poiin of warrant ; sec. HI 70 Saving aa to ( 'ircuitH, fiv. ; st'c. Hfi 7ti .liiilgniont l>y .ludgo who resigns, or is transferred to another ( 'ourt alter case heard ; see. H(» .\ct not to anply to certain matters ; see. 87 . .lustioes of the I'eace in NipiM.siiig, ipialilieation of ; sec. 88. Inspection, &e., of Court Mouses; see. Repeal ; see. !H( Interpretation ; sec. IM 89 7;» 7y 7J» 71) 7'.» SCHKDlILi:- -KIILK.S OF Court. I. •» A. 4. 5. (I. 7. 8. !>. 10. II. I--'. 13. 14. 1'.. Hi. 17. 18. ID. L'O. '21. '2'2 h. '24. 25. 26. 27. 28. 29. .?0. 31. .12. 33. 3. 4. 5. Form ami Commoncpmcnt of action Writ of Sunnnons and I'rocedure, &c Indorsement of ( 'laim, &e Disclosure l)y Solieitoia and I'laintill'a Kenewal of Writ Service of Writ tif Summons 1. Mode of Service 2. On Particular Defendants ( >n Partners and other Bodies In Particular Actions (ienerally Service out of Ontario Appearance, &c Default of Ap])earance, &c Leave to Sigii .Judgment where Writ specially indorsed Application for ,\ceount. il'i'., where Writ indorsed under Order 3, llule (> Parties .loinder of Causes of Action Actions hy and against Lunatics and I'eraons of Cnsound Mind Pleading ( Jenerally Pleading Matters arising jjending the Action. Statement of Claim Defence Discontinuance Iteply and .Sul)se(iuent Pleadings : Close of Pleadings Issues Amendment of Pleadings I (emunt. r Default of I'lcading Paynu nt into ( 'ourt in Satisfaction Discovery and Inspection Admissions Inquiries and Accounts Questions of Law Trial Kvidence fJenerally Uummiasions to Examine Witnesses RCI.KS. I- 4 II- 29- 31- III 28 30 32 33- 44 45- r.o- ()9- 49 (58 79 86- 88 89-114 1 1.')- 123 124 1 2.5- 1 no ir.i-ir)7 ir)8-i.-)9 160-169 170- 172 173-175 176 177 17S-)88 189-202 203-214 2ir)-218 219-2.39 210-243 244-247 248-253 2.54-281 282-285 286-300 PAiir. 82 92 !»5 1114 !().•. 107 107 109 111 113 114 114 118 123 80- 85 132 I. 39 140 165 171 171 191 194 197 203 205 206 2(t7 207 214 221 226 228 244 245 248 252 264 266 \ III ONTARlU JUDICATUftB ACT, 1881. SCHKl)Ur,E-(Co»'J-3»i3 300 40. Attiichiiu-nt of the IVrsoii 304-305 300 41. Attiichmcnt of Debts 3t;(>-378 302 42. Writ of I'oKsession (Lands) 37!»-38l 312 43. Writ of Dtlivery (t'liattels) 3S2 312 44. ('banjie (»f Parties by Deatli, &c 383-391 313 4r». 'rransfer anil Consolidation of Actions 392-395 317 40. InterltK'utory Unlern as to Mandamus, In- junctions, or Interim Preservatiun of rro|«!rty, &c 396-403 321 47. Motions and otiier Applications 404-41 1 324 48. Ai)iilieation8 at (Miambers 41'J-4I4 327 49. « Mlicurs and Oflices 4ir)-427 329 .W. Costs 428-4.'»0 338 r»l . Notices and Paper, &c 451 -4.')3 352 .'•.2. Time 454-403 363 .-i3. Atli.lavits 404-470 367 .')4. Divisional .and other Courts 471,472 358 55. ElToct of Non-compliance and Errors 473,474 369 .5(;. Acco\intant's ( Ulice 475-479 360 .')7. .'8. Adcock V. IVtcrs. 9»J. Adcrin v. ThriLfley, 185, 210. Aitkin v. Diiiilmr, 17fi. Alden v. Hoonier. 3(f8. Allan V. riper. I«i9. Allen, Re. Uetfiim v. Allun, 29. V. KcMinctt, IftO. Allliuscn V. LiilxmcluTe, 239. Ambroise V. ICvelyii, lUO. 193, 206, 222. 253 Ambrose Luke Tin and Copper Co.. Ke, 467. Amt'8 V. liirkenlioad Do ' .s, 307. Amuiiny v. Nawub Nuzin of Bengal, 186. Amos V. Cbadwick. 318, 319. Anderson v. Yntcs, 147. V. Batik of Hritis'i Colum- bia, 237, 239. V. Til mas, 274. V. T(twy;()od, 318. Andrews In lie, 27. V. St.'wart, 134, 135. .\nj>lo-Italian Bank v. Dnv PS, 26, 291. V. Wells, 136. Anon per Limiley, J., (\V. N. 1876, 12), 22. (W. N. l><7rt, 21). 25. (W. N. 187ti, 3 ), 25. (W. N. 187f.. 38), 25. per Lush. J.. (CO, L T. 32), 9r>. - per Archibald, J., (W, N. 1876, 63), '.»7. (1 Chiirl. Ch. Ca. 49). 97. (W. N. IH75, 2()n). 97. per Qnain. J., (1 Charl. Ch. Ca. 35). 98. per I.ush, J.,{W. N. 1875, 202). !*8. (1 Charl. Ch. Ca. 38), 109. (Law Times 13th Nov., 1875; 1 Charl. Cb. Ca. 4ii), 114. (Law Times, Dec, 1875; 1 Charl. Ch Ca. 45, 46), 184. Anon (W. N. 1876, 12; 1 Charl. Ch, Ca. 65), 134. per HuddliHt.m. B., (W. N. lS7ft. 2i)i»). 134. 13.-). (\V. N. 187f.. 63; 2 Churl. Ch. Ca. 2(»), 134, 1«.5. (W. N. 1876, 64). I3.V (1 Charl. Ch. Ca. 4.^). 135. (W. .\. ]87rt, 12), 1X6. (\V. N. 1876. 22; 2 Charl. Ch. Ca. 18), 135. (L. T. 4th Deo , 1876. 1 Charl. Ch. Ca. 4:>). 13t(. (W. N. 187t5, 63; 2 Cliari. Ch. Ca. 22). 136. per Quain, J., ( 1 «^liarl. Ch. Ca. 4«; W. N. 1876, 24'.«, 250), 137. (L. T. 8th Jan.. 1S7.-.; 1 Charl. Ch Ca. 62). 137. (2 Charl h. Ca. 2.^), 163 (\V. N. 1876. 203, 1 CharL Ch. Ca. 69), 161. (2 Charl Ch (^a. 2.'>), 157. (1 Charl. Ch. Ca 73), 177. (W. N. 18'5, 218, 2:iu), 178. (W. N. 1876, 22'.»), 17>.t. (\V. N. 1876, 202, per Lush, J.), 19/. (L.T. 27lh Nov., 187r.; 1 Charl Ca. 86. per Lush, ,1.1. 200. (W. N. 1876. 40; 2 Charl. Ch. ?ti. 38). 2' 13. (1 Charl. Ca. [Court] 99). 203. (W. .\. 187f>, 24; 2 Charl. Ch. Ca 3!)). 210. (W N. 187C) 37), 222. (2 Charl. Ch. Ca. 61 ; W. N. 187r.. 23), 238. (2 Charl. Ch. Ca. Gl ; W. N. 1^7i"., 2:;). '^411. (1 Chittv's Rep. 7ne Winton, 238. Bridson v. Smith, Re Smith, 225, 279. Bri£rht V. Tyndall, 249. Bristol and Somerset Ry., In Re, 28. British Mutual Investment Co., v. rilkin^ton, 820. Broadhurst v. Willey, 228. Brocklebank v. I'^ast London Ry. Co., 27. V. Kings Lvnn Steam Ship Co.,"343. Brodcr v. Saillard, 264. Brown v. Weatlierhead, 147. V. (Japron, 166. V. Black well, 188. V. White, 164. V. Merilla. 307. V. McGuffin, 308. V. Shaw, 326, 366. V. Sewell, 352. Browning v. Sabin, 301, 304. Bryant In Re, 24 V. Bull, 26, 291. Buckton V. Higgs, 228, 311. Budd V. Davison, 259. Budding v. Murdoch, 209. Bullock v. Corry, 239. Bunn v. Bunn, 239. Burdick v. Garrick, 458. Burridge v. Nicholetts, 18S. Bush V. Beaven, 22. V. Trowbridge Water Works Co., 215. Bustros V. White, 30, 166, 237, 239. V. Bustros, 94- Butler V. Butler, 169, 161. V. The Standard Fire Insur- ance Co., 458. Burgoine v. Taylor, 260. Burke v, Rooney, 222, 356. BurncU v. Burnell, 280. Burton v. Roberts, 308. Bush V. Seven Oaks, V. Preston, 2()6. CoUette V. Goode, 189, 208, 209, 210. Collie re, 159. Collins V. Welsh, 339. • V. Vestry of Paddington, 457. Colonial Insurance Co'"poration v. Prosser, 181. Commercial Bank v. Javvis, 3^7. Commissioners of Sewers v. Gellatly, 150. Commissioners of Sewers v. Glasse, 238 Connolly v. O'Reilly, 457. Consett". The. 841. Conybeare v. Lewis. 203. Cook V. Dey. 108, 109. - V. Enchmarch, 168. V. Fryer, 149. V. Toinlinson, 264. Cooney v. Girvin, 148. Cooper V. Biissett, 96. V. Lane, 109. Cormack v. Grofrian, 166. Corner v. Shaw, 169. Cotton V. Corby, 458. V. Vansittart, 308. V. Ilousman, 98. 197. Cowans Est. re, 307. Cox V. Barker, 1-14, 166, 170, 214. V. Keating, 205. V. Wright, 147. Coy V. Lord Forester, 188. Cracknall v. Janson. 173, 210. Craig V. Phillips, 457. Craae v. Juliiun, 108, 109. Crane v. Loftus, 314. Credit Company, re, 240. Foncier v. Adair. 178. Green v. Wriuht. 339. Cremetli v. Crom, 303. Cresy v. Be van. 214. Croft V. Lumley. 122. Crom V. SannieLs. 329, 355 Cross V. Cross, 147. Crowe V. Bank of Ireland, 231. V. Barnicot, 179. Crowle V. Uussell, 16. Cruiciishank v. Floating Baths Co., 48. 247. Cruise v. Kuttingell, 114. Crump V. Cavendish. 136. Culloy v. Buttifant, 3():»„ 368. v. Wortley. re Wortlev 314. Cuppk'S V. Yorston, 109. 157, Dale V. Coon, 188. Dallas V. Glyn, 301, 302. Dallingerv. St. Albyn, 212. Danford v. McAniilty. 187. Darcy v. Whiltaker, 8H. Darling v. Rice. 149. Daubney v. Shuttleworth. 325, 326. 3.i4. Dauvillier v. M}'ers, 263. David V. Dalton. re lluckwell, 740. Davidson v. Dough's, 308. Davies v. Felix. 272, 275.276. v. Garland. 1(16. Davis V. Code, 134. V. Godbehere, 272, 276. V. McCaffrey, 29. V. Prout. 148. V, Spence, 137. V. The Flagstaff Mining Co., 74. re, 29. Davy V. Garrett, 172, 180, 181. 841, "210. Daw V. Eley, 233. Dawkins v.Lord Penrhvn, 186, 189, 216, 221. Day V. Brownrigg, 23, 217. V. Radcliffe, 146. 155. 168. Dear v. Sworder. 174, 200. De Gendre v. Bogardus. 143. De Hart v. Stevenson, 150, 154. Delufield v. Tanner, 126. Delniar v. Freemantle, 325. Denison v, Franklyn, 134. Dennis v. Seymour, 136. Dent V. Dent, 308. TABLE OP CASES CITED. • •• XIU Dent V. Sovereiiyn Life Tns. Co., 265. Fairclough v. Marshall, 19. Depuv V. Welsford, 147. Farrell v. Wale, 259. Dessilla v. Schunck, Ac, 167. Faund v. Wallace, 274. Devoiiaher v. Newenhatn, 216. Felkin v. Lord Herbert, 238. Deykin v. Coleman. a54. Fenner v. Bedford, 25. Dicks V. Brooks, S'.'S. Field V. Field, 317. Dickson v. Neath, Ac, R'y Co., 304. V. Great Northern Ry. Co., Dix V. Groom, 2J2. 339, 341. Deed. Peck v. lloe, 312. V. McArthur, 149. Dollman v. Jones, 271. Finch V. Tiie Guardians of York Dolphin V. Layton, 3o7. Union, 210, 215. Dow V. Dickenson, 275. Fisher v. Hughes, 243. Dowdeswell v. Dowdeswell, 146 . V. Keaiie, 24. Downey v. Roaf, 3:19. V. Owen, 2:i9 Doyle V. Kaufman, 10(5, 356. V. Tiiames Junction Ry. Co.. Drake's Patent Concrete v. Damer, 188. 25. Dresser v. Johns, 308. Tlifi T 177 —- X IIU »l ., 111. Fitzsimnaons v. Mclntyre, 168. Diickett V. Gover, 143, 156, 219 Fletcher v. Rogers. 23. Duckitt V. Jones, 181, 195. Flower v. Low Leyton Local Board. Duncan v. Vereker, 210. 25. Duriinff v. Lawrence, 211. Forman v. Dawes, 188. Dymond v. Croft, 114, 130, 182, 326, Forrest v. Davies. 326. Foster v. Alvez, 319. Bade v. Jacobs. 237. V. Gamgee, 194. Earl of Glensjnll v. Frazer, 237. Fotherby v. Metropol. Ry. Co. ,23. Lewes v. Bismett, 302. Fowler v. Knoop, 159. Earp V. Henderson, 187. V. Lee, 135. Eden v. Nnisli, 16. V. Roberts, 3ii8. Edginj^ton v. Proudman, 202. Fox V. Suwerkrop, H7. Edison Telephone Co. v. India Rub- V. Toronto and Kipissing Ry. ber Co.. 20!). Co., 458. Edwards v. Edwards, 27. V. Wnliis, 329. Frankland Re, 303. Eraser v. Burrows, 235. Freason v. Loe, 221, 2.)3. V. Bennett, 312. Egremont Burial Board v. Egremont Freeman v. Butler. 238. Iron Ore Co.. 23t). Frencli v Lewis, 3n7. Eisdell V. Coninirlmni, 308. Friend v. London, Chatham and Eldridge v. Burgess, 259 314. Dover Ry. Co., 239. Elliot V. Beard, U)7. Fritz V. IIi>bson, 289. Ellis, Agar re, '?!». Fryer v Wiseman, 2(54. V. Desilva, 341. Fulwood V. Fullwood, 24. V. Munson, 175. Furness v. Booth, 1(50, 161, 174 Elsom re, Thomas v. Klsom, 147. Elwon V. Vaughan. 154. Gandee v. Stansfield, 239. Emma Silver Mine Co. v. Grant, 253. (iarbutt V. Faweus, .1 5, 324. English V. Tottie, 230. 243. Gardiner v. Hardy, 2ti47yJ25. Escott V. Gray, Ac, Mining Co., 151. (Gardner v. Irvin, 2:i8. Etty V. Wilson, 275, 27*1. Garling v. Royds, 3ii2. Evans V. Buck, 144. 174. Garnett v. Bradley, 340. V. Gann, 177, 178. Garth v. Cotton, 18. Evelyn v Kvelyn, 181, 187, 221, Gaskin v. Balls, 23, 24, 319. 253, 327. Gatti V. Webster, 139. Eyre v. Cox, re Jones, 93, 96, 103, (Jawthorpe v. Gawthorpc, 22, 26. lOR, 192, 193. Gen. Steam Nav. Co. v London and — • V. Hughes, 177. Edinburgh Shipping Co., 317. XIV ONTATIO JUDICATURE ACT, 1881. German Band v. Schmidt, 188. Gibbons v. London Financial Association, 338, 366. Gilbert t. Kndean, *266. T. Comedy Opera Co., 270. V. Smith. 276, li79, 280. Gilleland v. Wndaworth, 208, Gillott V. Ker, 226. Gillrie, re, 29. Ginty v. Rich, 311. Girvin V. Grepe, 137. (ilass V. Munsen, 220. Glassop V. lit ston, &o., Local Board, 270. Gledhill v. Hunter, 168. Gobbet V. Cavendish, 237. Goddard v. Poole, 314. Godden v. Oorsten, 98, 197. Godfrey v. Harrison, 148. Golding V. Wharton Saltworks Co., 210. Goldaworthy, re, 29. Goodrich v. Marsh, 146. Gordon v. Bonter, re, 309. V. G. W. R., 457. V. Hanna, 1()9. Graham v. Campbell, 26. Grant v. Holland, 30. V. iMcDonell, 308. — V. The Banque Franco Egyptienne, 296. V. Winchester, 149. Gray v. Lewis, 146. Great Australian Mining Martin, 116, 116. Northern, ifec.. Committee Inett, 325, 366. Greaves v. Fleming, 228, 342. Green v. Browning, 116. Co. v. Colby, 140. V. Seviii, 176. Gretton v. Mees, 228. Griffin v. Allen, 341. Griswold, B. B., & G. Ry. Co., 308. Groom, re, "28. Quest v. Poole and Bournemouth Ry. Co., 23. Guy V. Guy, 147. U'fl Estate, In re, 26, 323. Habershon v. Gill, 22. Hakewill, Ex parte, 28. Hall V. Eve, 187, 195, 205. V. Ley, re lleiron Est., 295, 301. V. Old Talargooch Lead Mining Co., 170. V. Pritchett, 308. V. V. ■V. Hallidav, re, 28. HalliweU v. Counsel], 219. Hamelyn v. White, 126. Hamilton v. Johnson, 275, 278 Hamlyn v. Betterley, 88. Hancock v. Lablache, 148. Uanmer v. Flight, 136, 187, 172, 180, 181. Harbord v. Monk, 1>'1. Harding v. Barratt, 307. Hare v. Hare, 250. Hargreaves v. Scott, 362. Harnett v. Vise, 339. Harris v Aaron, 38. V. Fleming, 116. V. Gamble, 16(», 174, 210. Meyers. 802. Owners of the Franconia, 117. Petherick, 339. V. Warre, 184. Ex parte, re Lewis, 319. Harrison v. Bottenheim, 134, 137. V. Leutner, 203, 346. Harrv v. Davy, 155. Hartley v. Dilke, 109. V. Owen, 243. Harvey v. Boomer, 149. Hastie v. Hastie, 328. Hastings v. Hurley, 114. Hawker, ex parte, 308. Ilawkesley v. Bradsliaw, 198, 226. Haycock's Policy, In re, 20. Hazlefoot v. Chelmsford Local Board, 188. Heap V. Marris, 172, 180. Hedley v. Bates. 24. Heiron's Est re Hall v. Ley, 295. 301, Hemp V. Warren, 106. Hennessy v. Rohmann, 322, 323. Herring v. Bischott'^iheim, 184. Heugh V. Chamberlain, 209. He ward v. He ward, 457. Higginbottoni v. Aynsley, 194, 222, Higglnson v. Hall, 234. Hill v Campbell, 239. Hillman v. Mayhew, 179, 317. Hind v. Whitiiiore, 149. Hinrichs v. Berndes, 23. Hirsch v. Coatcs, 308. H. M. S. " Bellerophon," 238. Hodges v. Hodges, 198, 217. Hodson V. Moehi, 177. Holding V. Poole, 148. UolUngsworth v. Hrodrick, 318. Holloway v. York, 179, 180, 183, 817. TABLE OF CASES CITED. XV Holt V. Jesse, 327. Hondupas Ry. Co. v. Tucker, 144, 145, 167. Hoole V. Earnshaw, 99. Hooper V. MnitlantI, 148. V. Giles, 199, 223, Hope V. Hope, 1(»8. Horlock, The. 24. Ilorrocka v. Rigbv, 174, 201. Horsley v. Cox, 803. Horwell v. London General Omni- bus Co., 158, Ifil, 163. Iloskin's Trust Re, 38. Trusts, 339. Hough V. Edwards, 308. Houseman v. Houseman, 16. Howard Re, Padley v. Camphausen, 94, 115. V. Robinson, 238. Howell V. West, lt)7. Uuckwell Re, David v. Dalton, 140. Huggins V. Guelph Barrel Co., 194. Huggons V. Tweed, 176, 201. Hughes V, Evans, 1 18. Humphreys v. Edwards, 317. Hunter v. Grocnsill Ro, 307. Hutchinson v. Glover, 239. V. Hartmont, 302, 321. Hyde v. Warden, 26, 27, 322. Imperial B.ank v. Summcrfelt, 134. Ingilby v. Shafto, 238, 239, Innes v. East India Co., 3i)8. International Financial Society v. City of Moscow (;as Co., 35'.>,457. Irwin V. Lancashire, 113. Ivory V. Cruikshank, 2J3, 292. Jackson v. Mawby, 302. V. North Eastern Ry Co., 314. Jacquot V. Boura, 99. James v. Crow, 259. V. Norton, 339. Jenkins v. Davles, 223, 280. v. Morris, 274. Jenkyn v. Bushby, 238. Jcssup v. McLean, 148. Job V. Job. 30. John V. L!oyd, 213. Johnasson v. Bonhote, 186, 218, 221. Johns V James. 243. Johnson v. Diamond, 308. v. .luhnsMn, 134. V. Moffat, 108. V. Smith, 235. Joint Stock Discount Co. v. Brown, 146. Jones, re, Evre v. Cox, 93, 96, 103, 106, 192, 193. V. Brown, 186, 306, 307. V. Jones, 538 V. Hough, 271. V. Monte Video (las Co., 235. V. Thompson, 308. V. Turner, 181. 210. Joselyne, Kx parte, 3U7. Joy V. McKinn, 188. "Julia Fisher." The, 175, 343. Jupp V. Cooper, 295, 301. Kain v Farrar, 238. Keate v. Phillips, 157. Keim v. Yeagley, 348. Kelly V. Ardell, 220. Kelsey v. Kelsey, 26. Kendall v. Hamilton, 80, 151. Kennett v. Westminster Improve- ment Commissioners, 309. Kerr v. Stripp, 458. Kevan v. t^rawford, 269. Khedive, The, 29(), King v. Corko, 208, 212. V. Davenport, 222, 366. v. Sandeman, 226. Kinne, re, 29. Kinney, re, 29. Kino v. Uudkin, 153, 156. Kirkwood v. Webster, ."62. Kitching v. Kitching, lt>',t. Knatchbull v. Fowle, 264, 269. Krehl v. Burrell, 24. Labouchere v. Earl of Wharncliffe 24. La Grange v. Mc.Andrew, 3o, 82, 283. Lake v. I'ooley, 24o. Lambert v. Ilutciiinson, 153. Lane v. Grav, 242. v. Eve" 259. Langley, ex p.iite, 24. Langridge v. Campbell, 228. Lascelh's v. Butt. 3o. Laurenson v. Dublin Metropolitan &.Q. , lly. , 113. Lawson v. Laiillaw. 4.')8. Learnmoulii v. Croll, 2o3. l.eatbley v, Mo.Vndrcw, 150. Leggo V. Boyd, 188. L V. Colyer, 178. Lees V. I'aUiMson, 179. Lfigh, re, 29. v. Brooks. 47. re, Rowclille v. Leigh, 239, 263. X\l ONTARIO JUDICATURE ACTI, 1881. Lerceulcy v. Harrison, 166. Lewis V. l?arl%('r, 318. V. Nnl)bs, 14!). re ex ])i\rtv Ilnrria, 319. Leymnii v. Latimer, 'J 16. Lind V. Isle of W ijrht Ferry Co., 238. Li>er|)0()l, Ac, Co. v. London, Ac. Co., 2{i5. Lloyd, in re, Allen v. Lloyd, 27. . V. Diniinnck, 145, 314. V. Lewis, 307. Lloyd's Bunking Co. v. Ogle, 133, 135. Lockhart v. Gray, 807. Loinax, re, -J 8. London v. Hoffey, 2l'i, 276, Long V. Crossley, 1 54, 20S). V. Long, 291. Longman v. Kast, 4fi, 48, 263. Loundes v. Ik'ttle, 23. Lovell V. Holland, 155, Lows, ex parte, 25!). Lydall v. Martinson, 261. Lyon V. Tweddell, 242. Lyons v. Cohen, 216. Mackereth v. Glasgow n, 186. Morris v. Smythe, 121. Morrison v. Cornwall Minerals Ry. Co.. -^49. Morriston v. Patent Fuel Co. re, 324. Morton v. Miller, 13n, 1S2, 325. V. Quick, 8 1 8. Moseley V. Rendell, lti9. Mostyn v. W est Mostyn Co., 176. Monnsey v. Karl of Lonsdale, 209. Moxham, Tlie .M, 26f>. Muirhead v. Direct U. S. Cable Co., 137. Muilin V. Pascoe, 468. MuUins V. Howell, 328. Munro v. Munro, 29. Mnrdock v. O'Sullivan, 148. Murray v. Infield, 296. V. Simpson, 807. Myers v. Defries, 339, 341. Macauley v. Rumball, 309. Macbeth v. Smart, 178. Macdonald v. Bode, 177. V. Carington. 170, 174. McAllister v. Bishop of Rocheater, 16.S, 235, 286. McAndrew v. Barker, 467. I 1 New \ i jI. ^ ^' )\ ^ y .1. B Noad V B V TABLZ OF CASES CITED. XVll McArthur and the Township of Southwold, re, 464. McConncll, re, 147. McCorniick v. Park, 808. McCorquodak" v. liell, '239. McDennott v. Keeling, 121. V. McDennott, 312. MeFtirliine v. iMurphy, 148. McInUwh V. G. W. ily., 237. Mclntyre v. The Canadii Co., 126. McLaren v. Sudworth, 307. McLay v. Sliarpe, 174, 178. McMaster v. Bent tie, 134. McMurray v. Nortliern U'y, 220. McNaiiy;iiton v. Webster, 308. Mcl'liiiil. K.\ parte, 25 McPlierson v. McC'abe, 148, 149. Natlian v. Batchelor, 216. V. Gih'8 309. National I'rovincial Bank of England V Brailiey Bridge, ttc. Co., 164. Naylor v. Far'rer, 173, 176, 201. Neale v. McKenzie, 188. Neate v. IMnk, 27. Keedliani v. llivers Protection, &c., Co.. 324. Nelson v. Nelson, 291. Kx parte, lloare, 291. Newbiggin-by-tlie-Sea Gas Co. v. Arnistronc:, 10, 82, 1C4, 283. New Britisii Mutual Investment Co. V. Peetl, 238. Newby v. Von Oi)pen, 113. Newcomen v. Coulson, 203. Newell V National I'rovincial Bank of Kngland, 175. Newingtoii v. Levy, 194. Newman In re, 308. V. Rook, 310. V. .^elfe, 1-24. New Westminster Brewing Co. v. il.:'!nali, ir)7, '264, 269. ' :;V ■>' V. Kwin. 308. ..',"'< V. Dracaciiis, 24, 3'22. S )ll V. Allen, 23. .y tl-oM V. Jackson, 178. Head V. .Murr.-iw, 185. — — V. Noad, ly.'i. Jlobels Isxplosives Co. v. Jones. 212. Noble V. Kdwardes, 21. Noel V. Noel, 149. Notlinrd v. Proctor, 27. Norris v. IVazley, 155, 2 fi, 355. v. Irish Land ( o. , 22. Northampton Coal Iron and Waggon Co. v. Midland Waggon Co., 2 12. B Norton v. Merriman, 177, 178. Norval t. Canada Southern Co., 458, 459. Noyes v. Crawley, 189. Nurse v. Durnford, 82. Ry. Oastler v. Henderson, 36, 272. O'Brien v. Clement, 188. O'Donohue v. Maguire, 188. Offord V. Offord, 209. Original Hartlepool Collieries Co. v. Gibb, 175. Orr Kwing v. Johnson, 24. Owen V. Wynn, 288. Padley v. Canaphausen, ro Howard, 94, 115. Padwick v. Scott, 174, 201. Paine v. Chapman, 220. Palmer v. Flower, 249. Pape V. Lister, '239. Paraire v. Loibl, 227. Paris Skating Kink Co., In re, 23. Limited, No. 2, In re, 321. Parker, In re, Cash v. Parker, 2('). Parnell v. Great Western U'y Co., 258. Parpaite v. Dickinson, 97. Parsons v. Harris, 225, 279, 326. V. Standard Ins. Co., 460. v. Tinling, 840. Patch v. Ward, 238. PaUerson v. Wooler, 264. Paxton V. Bell, 343, 344. Payne v. Little, 147, 149. Peacock v. Harper, 269, 270. v. Reg. 366. Pearce v. Spickett, 225. v. Watts, 215, Pearson v. Campbell, 109. V. Lane, 163. Pease v. Fletcher, 26, 322. Peek v. Trinsmaran Iron Co., 27. Peile V. Stoddart, 239. Peoples Garden Co. re, 324. Peppitts Estate re, Chester v. Phillips. 150. Percy & Kelly Nickel & Co. re, 343. Perkins v. Slater, 368. Peterkin, v. McFarlane, 208. Petre v. Petre. 18. Phillips v. (Jill, 92, 325. v. Harris, 134. V. London & S. W. R'y Co., 273. 274. V. Phillips, 187, 210. Pickering v. llfracombe R'y Co., 808. will ONTARIO JUDICATURE ACT, 1881. I'U'roy V. Yoiinir, 254. Plijot'v Stewart, M(i. Pike V. Kccni', 1 :!'.», 151. 'i-lS. IMIchcr re, IMIclii-r v. Iliruls, 168. !5fi6. rilkin;;ton v. l?iikor, 3'J<». I'ifXT V. i'ilMT. 'J'.t'i. I'lunct, Unildiiiir Soci.'ty v. Tart, til 2. IMiiiiptoii V. Spillcr, 'Jl. I'lum V. XormaiitDii Iron, A-c. , Co. l'.tr>, 'J 5 '2. I'olitii V. (iray, "i.i. " I'oniiDeranii'i " The, l(i',i, "JOH. I'liiisl'nrd V. Swaiiie, '2;HS(. I'ortcr V. LdpcH, 'iti. I'ost, V. LcVH, i;i4. I'oltiTV. ("liiimlicr!<. '2(11. I'owfll V. .Fcwcshiiry, "214, '217. V. IVek, 4,57. I'ratt, V. lirowii, 1 ;!>.». Tn'ston v. LaiiiDiit. lit!, IStl, 21(i. I 'rice V. Thomas, liiT. Re, ;ii)3. I'riricc v. f.onuli, '2'Ji». I'riiiccHs of W ales V. Mai'l o I.,ivia'- jxjol, 235. I'rinu'le v. (iloaj;, '.'AiS. Prioleaii v. IJ. S, AiiiL'ricii. i'.ify. Protector iMidowiiiciit ("o. v. Wliit- larii, 3()4. i'roviiu'ial Pernniiiciit Hiiildinij; So- ciety V. (ireeiiliill, 3ti8. Pruyn v. Soby, MS. Pryse v. Pry.se, 21'.>. Pnllen v. Siielns, 186. Piirnull \.(i. W. lly. Co., 274. Queen's Insurance C". v. Iloyd, 134. Quin V. llession, 17 J. Rafael v. ( )n'i:ley, 1()9. Rami V. I awless, 140. Rawley v. Rawlcy, 175, 177. 'Ray V. Barker. !3n, )3(>. Real and I'ersoinil Advance Co. v. McCarthy, 22, 2ii4. Redman V. Hrownscombe, 14S. Redonilo v. (^haytor, ;-;43. Rees, re Rees v. 'Jeoryje, 15(», Regina v. Alien, 2H. V. .-Vmer, 32. V. I'.axter, 29. V. Hell, 29. V. Benson, 308. V. (Mmrciiwardens of Ali .Saints, 23. V. Clarke, 28. V. SlieriflF. 29. Kegina v. Smitli, 20. V. Snooks, 29. Republic of Bolivia v. Jiol. Nav. Co., 240, 278. of Costa Rica v. Krlanifer, 342. of C(.sta Rica v. Strous- bers, 303. of Li l)'!ri('.v. Imperial Bank, 23ti. of Liberia v. Roye. 23.'i. Restell V. Steward, ISl, 108. Rex V. Delaval, 2^. Rhodes V. Jenkins, re Mansel, 457. Rica (iold Wasiiiiii,' Co., re, 184. Riciiard.s v. Kitchen, 3itl. V. Mor<;^an, 239. Riciiardson v. Klmit, 3o8. V. (J reaves, 310. Rio (Jrande Co., re. 38. Roberts v. (Mty of Toronto, 3n8. V. Kvans, 148, 153. V. (iuest, 130. lioberlson v. (looley, 188. V. Howard, 08, 197,214. Robini5on v. Chailwick, 2n4. 319. V. Nesl)itt, 308. v. Robinson, 202. Roche V. Jordan, 220. Roe v. Davies, 2(l8. liniW'.y V. .Miller, 314, 32 » . Roijers v. Horn, lofi, 327. V. Hunt, 12ti. Rolfe V. McLaren, 201, 210. Rose V. (lardeii Lodge, itc, Co., 3'24. V. Mickey, 4 57. Ross V. Clifton, 188. V. Gibbs, 98. V. Grant, 30. re, 20. Rotherhani v. Priest, 135, 137. Rowclitfe v. Leigh, re, Leigh, 230,263. 242, 243. Royal Can. Bank v. Stevenson, 36t). Royal Mail Steam Packet Co. v. Braham. 113. Royle, re, 9t>. Humsey v. Reade, '24«, 28(>. Runnach's v. Mesquita, 133, 134. 135. Runtz V. Shi'Micld, 329. Russell v. Kast Anglican R'y Co., 307. Ruston V. Tobin, 157 Rutter V. Tregent, 190. Salaman v. Donovan, 300. Sampson v. Seaton & Beer R'y Co., 300. TABLE OF CASES CITED. XIX Hnndys v. Louis, 177. Simsuin V. Snnsom, 308. Sartrnnt v. Ueiul, '27, 322. Saunders v. Stull, 216. Saviif^o V. SncU, 243. V. Tyers, 249. ro, 289. Saxby v. Kiifitorbrook, 23. 24. V. Olosto Wnyjijoii Co., 47. St-eptro Licensed Victuallers Fire Ins. Co. ro, 4.")7. Solineiiier v. Hntt, 104. Sclioniberi,' v. Zoebelli, 98, 181, 197. Schroeder v. Cleugli, 295. V. The Ontral Bank, 20. Scott V. The lioyal Wax Candle Co., 113. Scutt V. Freeman, '27('). Seaton v. Fonwick, 126. Seenr v. Lawson, 154, 155. Seymour v. Corporation v. Brecon, 310. Slianiey v. Moore, Re, 308. Sliarp V. Lethbridge, 318. Shaw, lie, 28. V. Karl of ersey, 22, 23, 24. Sheetian v. Great Western llv. Co., 157. Shoftieid Water Works v. Veonmns, 214. Shelfoi-d V. Louth and E. C. Ry. Co. , 133. 137. Shephard v. Beane, 160, 174. Sheppard v. Ilavball, 175,343. Sliilleto V. Collett, 28. Siddons v. Lawrence, 339. Sievewri^^ht v. Sievewriglit, 2Hfi. Simmons v. Storer, 349, 351. Simpson v. I)ennv, 146. V. Grant, 215. Skinner v. I'almer, 220. Sloman v. Governor of New Zealand, 108, 113. Smart & Miller ro. 3o7, 308. Smith V. Barnes, 238. V. Cowell, 291. V. Day, '.'5. V. Dobbin. 126. V. Gibson, 249. V. llaseltine, 143, 1,54. V. Horsfall, 145. V. Hiciiardson, 167, 168. V. Tett, 168. V. West, 181. V. Wilson. 98. re, Bridson v. Smith, 225, 279. Smyth V. Levinge, 185. Solicitor, Re n, 301 ,302, 304, 825, 8«8. Somerville v. Joyce, 109. South of France Pottery Works Syn- dicate, The, 324. Southwark and Vauxhall Water Co. V. Quick, 238, 239. Sowden v. Sowden. 194. Sparks v. Younge, 307. • Sparrow v. Hill, 342, 352. Spencer A McDonald re, 148. ."^prunt V. i'uf^h, 27. Spurr V. Mail, 198,227. Stahlschmidt v. Walford, 203. Standard Bank v. Boulton, 149. Stanford v. Hurlstone, 23. Staples V. Young, 174, 201, 341. Steel V. Cobb, 124. V. Dixon, 161, 163, 164. Steven, v. Bhelips, 306, 309. Stilson V. Kennedy, 110. Stirling v. Du Barry, 329, 338. St. Nazaire Co., re, 209. " St. Olaf," the, 203. Stoker V. Grant, 180, 210. Stooke V. Taylor, 341. Storer v. Simmons, 265. 266, 310. Stovel V. Coles, 149. Street v. Gover, 174, 200. Strelley v. Pearson, 322. Stubbs v. Boyle, 46, 262. Sturla V. Freccia, 25. Sullivan v. Rivington, 263. Summers v. Morphew, 307. Sutclirte V. .James. 187. Sutton v. Huggins, 222. Snttons Trust, in re, 20. Swansea, tfec, V. Duncan, 117, 159, 160, 162. Sweetnam v. Lemon, 309. Syers v. I'ickersgill, 318. Sympson v. Prothero, 308. Tapp V. Jones, 807, 309. Tasmania Ry. Co. v. Clark, 255. Tate V. Corporation of Toronto, 308, 309. Tawell V. Slate Co., 168. Taylor v. Eckcrsley, 26, 27, 322. v. Jones, 329, 353, 354. v. Oliver, 238. V. Sherley, 2^6. Re, 28. Tebbs V. Lewis, 160, 164. Tcnnant v. Walton, 178. Thomas v. Elsom, re Elsom, 147. V. The Queen, 176, 178. Thompson v. Marshall, 133, 136. XX ONTARIO JUDICATURE ACT, 1881. Thompson v. Fhonoy, lti7. V. Tomkiimon, 122. V. VVoodfitie, Re Wood- fine, 170, 175, 176, 17H. Thorloys ('tittle Food Co. v. Mas- aam, 23. Thorno v. aeel, 134 136. Thorpe v. Holdswortlt, 19C, 279. Tiffany v. Bullon. 308. TiI(le«loy v. llurpcr, 143, 157. 190, 208. Tilley v. Thomas, 21. Tilney v. Stunsficld, 302. Tobin. re, 146. Tomlinson v. Hnllnrd, 219. Tottenliain V. Barry, 1 1,5. Towlo V. T()|)imiii, lt-6. Tozer v. Walford, 25. Traill V, I'orter, 94, 103, 116. Treleven v. Bray, 14, 15, 168, 163, 174. Trevena v. Watts, 177, 179. Trinacria v. llicliardson, 177, 178. Trust and Loan Co. v. Boiiltori, 126. Turquand v. Fcaron, U:^, 185, 364. V. Wilson, 24.), 246, 28(1, 368. Turner v. Burkenshaw. 239. V. Hodnc'hford Gas Co., 163, 174. V. Hevland. 339. V. Neil!, l:s4. V. Samson, 219. ex partc!, 307. Turney v. Bayloy, 2-12. Twj'cross V. Oraiit, 314. Tyler V. Bell, 221. Tyne Alkali Co. v. Lawson, 339. Tyson v. Mayor of London, 2o. Union Bank of London v. Manby. 235. U. S. America v. Wagner, 235. Val de Travers Ashphalte Paving Co. V. London Tramway Co., Vallance v. Birmingham 7, Sin. V, Kerr. '277. Wimsliiirst, v. Harrow Ship liuiiding Co.. IVMK \\wrnvi\ V. Cox. 181. \Vin:,'rovi' v. Tiiomiwon. 314. Wimiett V. lU-nwick. 157. \Vins(!oni', ro, 'J8. Wintcrtifld v. lirndnum, 175, 343. Wintli" V, WiHidins, ".lO. Wise V. iiirkcriHliiiw. 308, 31(t. Willintii V. Viitii', If)".*, 166. Witt V. Corcormr. 38. V. I'urlicr, '-'77. Wood V. Aii;,'i()-lliiliaii Hank, 238. V. Italian Hank, '213. V. Kay, I'.tD. V. Midi,'li'V. ISfi. WoodHni" III', Thompson v. Wood- fine, 170, 176, 176, 178. Woolf V. J'ernhprton. 147. Woolston V. Haines, 135. Worrakcr v. IVyfr, 06. Wort ham v. I'cmbertoii, 147. Wortlt-y Uo. t'nlicv v. Wortley, 167. Wri;,'ht v. Cliironl, 260. V. Mori^nn. 123. V. itcdijravo, 16. V Swindon lly Co., 21:", 814. Wye Valley Hy. Co. 'v. llawe-. 16!'. 16(», llil. "162. 163, 16P. Wylie V. McKay, 220. Wymer v. Dodds, l.')4. Yetts V. Foster, 272, 276, 276. Yorkshire I'ankin}^ Co. v. Beatson, 136. Wacrijon Co. v. New()ort Coal Co.. i.")!>, 164. Younsj V. Hrassey, 25, US. V. Kitchin, 20, 177. Vau \\l 3i ADDENDA KT COnUlUENDA, I'a.;k 10. 38. " 40. (t 7(5. t« lit. <( 124. »( 173. t ( 187. ( t •JO(t (( 221. it 301 •' 300. " 314. " 341. " 342. -At tlio end of hh1i-h. (3) and imto («0. for Order 402 rend Order (12. -In tilt) refeieiice to I'lmrn- v. /.(*//' /.ti/ton Lmuil /tiiun/, iii.stead of f) C'li. li. 4r.7, read T. Cli. 347. -In tlu! ruforenoo tn Xintr v. /'//(/•, instead (if Mac. k (!. 47(». read 3 .Mac, A, (1. 470. -{•'or Chr'iHl'H Jfos/iittil v. Mtirlln, read Ci/lhi/f n/ VhrlMf v. Afarlin. -In Hocond liiu! after note ('•), liefore "to tlie Kivisional Court," insert " to apply ; ' and for Kulo 470 read 471. -Under hcc. 32, " hcu alwo AV Chnnull, 8 ( 'li. I). 4!l2, ami Metro- jiolilitii Ami/Iiiiii /)islr!rf V. /////, '} A\<\t. ('a. TiHi'." -At the end of hoc. 30, for "Order 470." read " Rule 471." -In the lirst line of Bee. 84, for " Form I8!>," read " Form 184." —In note to lUile 44, for J/astiinjs v. Jfiisliiiij.'<, read Jf', W. N. 1881, p. 74 ; L. T. May 7tli, 18SI,p. 7."" -After reference to L'rtickuKt/l v. Jdii.^'Hi, add "and fVtinur v. J/o.s.v<-.x, VV. N. 1881, p. (59." —After Diiii/ord v. McAiiitlli/ add reference to 50 L. J., Q. B. 204. -Under Rule 178. "See alao Jfcm/rik^ v. Monlniiii, 44 L, T. 80, wiiere, on a motion for injunction, an amendment to enable a new case to lie Hct up waa rt;fu.sed. -In note to Rule 203 "Order 158," referred to, slumld bo " Rulo 158." —At the foot of the page, after l'<' Solirltor, 14 Cii I). 152, add "but see Mmin v. /'(rr//, 51) L. .1, Cliy. 251, when; it was h(dd tliat notice of motion for a Avrit of attachment must be served itersonaliy, unless some reason existed for dispensing with i)cr,«onal service." -Under lUdc 371. " See also Walker v. /,'ool; W. N. 1881, p. 10, wiicre an oi-dcr to attacli ilel)t.s due from j)artiierslii]> firms described Iiy tiu.'ir ])artncrsliip names, without stating the names of the partners, was refused." -Under Rule 383. "See also Barter v. l)nl„ux, \V. N. 1881, p. 77." —The decision in Jidhics v. BromJcij referred to lias been rcverseil in appeal, the Court of A])])cal holding tiiat tiie order of the Judge at the trial had given tlic ^ilaintiO" tin; costs of tlm cause, and therefore tiic order of tlie Divi.sional ( "ourt, giving them to the defcmlant, was wrong (nee \\'. X. ISSI, p. 71 ; L. T. May 7th, 1881. p. 7). —The decision in Sparrow v. Hill, 44 1>. T. 140, has been reversed in appeal (see L. T., May (ith, 18S1, p. (5), the Coart of Appeal holding that the Master, in allowing tlie plaintitV the general costs of the cause, had correctly construed the order of the Court under which the costs were being taxed. \ |4' [fnr a i^uo |tl)u Kii;;! Until I Ihiiviii^r (Ij uiul ('(|iiil |{y I.Ih I'HtaliliHlir joivil ri^li [OoiirtH of jfirijot of i [in Kn^'liiM Two >, lfHtill)liHlu) [tiio ini|i('t , l>y Uiii K.\ tlu! (Jovt^r jiitli^'nionts lint llltl I thu liind, I ustiililisluH j niont by tl ThiH Hta I (lurinf4 f-liH : important, ! unriglitDoii [ torinjf tlio o(juitiil)lo c I to prevent ii juristlicti justice wlii I imperfect c it was in m In the y( j formed npt similar jurii the Govemi IN^riJO.'lK^MON Tilt' |iit U^gal iiiiil winitulilo rlKlitH. I'y till' <'(p|iid,itMl.iniial Ad. of I7'''J (Iki lawfi nf Knirhitid were [('staMislicd, lUH t.l>o lawn nt' l.lin I'loviiiri!, vvitli ri'H|iiM;t. I.o |trii|>ri'ty and Icivil I'i^lilM, and it. wan di'iilatrd tliat. Mio Itnhs of ividonct^ in thi; UloiirtH (if IjHW and K(|nil.y Hlioidd Im tint hiihhi hh in Kni^iand. TIm' ctlbot iif iliin Act. Wius !,(> niak<< tliii |it'inci|)l«iH m' K(|iiit,y, its (mtaMiHliud [in Kn^dand, pari of tint law of Iho I'rovinco. Two ycafH arSii-waidH, in \7'M, Mm (.'oiirt of Kinj^H I'.iiicli wart |«>Htal>liHlu!d, NvilJi tlu! wuni) jni'iHditilion as that (.-xtTciHod in Kn^land Ky till! liii|i()rial ('oiirtiH of (^)iiii(!irH [{cnoli and (Joniiiion I'li^iiH, and alHo jhy tiio KxflHdiutir Ooiirt in niattjirs of rDViuiiU!, and l>y tlio Haini; Act the (Sovt'nior ii, (%»iiii<;il was (loiiHtitutcd a Court of Apiiual from tin; jiid},'iiiunt,s of tilt) (Joiirt of Kinj^n ({cncii. Hilt altli<>iiir|i |)(>th law and trinity hiul liuttii inado part of tho law of tlio land, no Ooiirt of IO(|iiity wius tliuii, or for a l(»ni^ tiino aftcirwanlH, ustahlisluid, nor whh any proviriioii nuulu fortlio roooj^niu.-ii or enforce- luont by tho King's UdiicIi of any (Mpiitalilu riglitH wliatovt-r. ThJH Htatu of thingH continiiod from tho yoar \7'M. till 1H.'J7, and (luring that hmg lusriod no CMjuitaldu claims or rights, howovor just or important, could hu onforccd ; no hsgal demand, howovor, iinJMHt or unrighteous, couhl ho resisted. The JiidgoH were obliged in ;wliiiiniH- toriiig tho law to givo full ollocfc to legal rights, aiul to disregard all wjuitahlo chums and dofuncos, and in many cases thoy were pfjwerless to provent or redress tho grossest fraud and injustice — and for want of a jurisdiction to givo oH'oct to tho o(iuital>lo rights of litigants the justice which was administered in tho Courts was often of the most impei'fect charjuster. Instead of being atlniinistered according to law, it was in many cases adniinistenjd regardless of law. In the year 1837, the Court of Chancery was established. It was formed upon tho plan of the Court of Chancery in England, with similar jurisdiction and macliinery, and an appeal was provided for to the Govemor-iii-Council. XXVI ONTARIO JUDICATURE ACT, 1881. IPi m hi t III i I 'illl f ; From this time the resemblance oi our judicial system to that of England was complete. In 184J), the growth of the country and tlie increase of legal business called for the establishment of another Court, and the Court of Com- mon Pleas was ustal)lished with a jurisdiction co-extensive with and co-ordinate to that of the Queen's Bench. At the same time a new Court of Appeal, composed of all the Common Law and Equity Judges Wiis created in place of the appeal to the Governor-in-Council. The improvements made in England in both the Common Law and E(]uity Courts were from time to time adopted here by the Legislature and the Judges. Tlie most important of these were the Acts of 1852 and 1854, called the Common Law Procedure Acts, which were ad( )pted by our Provincial Act of the same name in 185G. This Act removed much of the com[ilexity and technicality of the old procedure, simplified and shortened writs and pleadings, and greatly increased the chances of a case being tried and decided on its merits. Something was done too, but a very little, to prevent the necessity of bills in Chancery to I'e strain actions at law. In Chancery, also, gi'eat improvementH weie made fx'om time to time. The Judges of that Court were ever alive to the importance of inivking the Court as perfect as possible, and scarcely a year has passed since the year 1853 without some important beneficial changes being made in the practice ; and it may perhaps be said that no better or more etficient Court of Ecjuity ever existed in any country than the Court of Chancery of Ontario. In the march of improvement it wjis iinpossible that the great vice of a eing defeated in his suit because he had brought it in a wrong Cdurt. The Act made no change or disturbance in the existing nuichinery or practice of the several CV)urts, but a Cc •.union Law juris- diction was given to the Court of Chancery which it had not before, and a very extensive eipiitable jurisdiction, which they did not pre- viously possess, was given to the Common Law Courts. Under the old system of separate Courts of Law and Equity there was necessai'ily a similar division, both of the Bench and the legal INTnODUCTION, XXVU Ijirofession, and not the loast difficulty in the way of a change was the iiiatural aversion botli of Judges and practitioners to meddle with a (system and practice vnth which tliey were not familiar. There was a time when the practise of Law and Erpiity was so dis- Itinct that no one conld be found who was, or professed to be, peritus \ }ifriusqne juris, eithoT as counsel or solicitor; but fortunately, for a I (food many years, an acquaintance with both systems has been required (•f ovory candidate for admission to the legal profession, and there is I no doubt that during the eight years since the Administration of I .Justice Act has been in force both Jiulges and lawj'ers have become I so familiar with the princii)lcs and practice both of Law and Equity that they are now well prepared for the complete fusion and uniformity )f Law and Equity provided for by the Judicature Act. The English Judicature Act went into ertect in 1875, and in fram- ing the present Act the Legislature of Ontario has had the great ad- I vantage derived from observing the working of that Act, and of seeing the actual operation of some of the same features under the Act for tlie Administrurts of Queen's Bench, Common Plciis and Chancery, to be called " Tlie High Cimrt of Justice for Ontai'io," and the other com- posed of the existing Court of Appeal, to be called " The Court of Appeal for Ontario." Each of the three Courts of which the High Court is composed is to be a He])avato Division of that Court by the respective names of the Queen's Bench Division, the Common Pleas Division and the Chan- cery Division, and the present Judges f>f these Coiu'ts are to be the Judges of the respective Divisions, and they are all to be Justices of the Higli Court. Each Division is to have a President, and the present heads of the three Superior Courts are to be tlie Presidents of the respective Divisions of the same name, and they are to retain their present titles, and the Senior President of Division is to be the President of the High Court. The Court of Appeal is c(miposed as at present. The head f)f the Court is to bo called the Cliief Justice of Ontario, the Judges are to lie called Justices of Appeal, and the Judges of the High Court are to be e.v officio Judges of Appeal for the same purposes as the Superior Court Judges formerly were. XXVlll ONTAUIO JUDICATUIIE ACT, 1881. JUIMSDICTION. The High Court is to have all the juristUotion now exercised by the Superior Courts and Coiu-ts of Oyer and Terminer and Gaol Delivery, or any of tlieiu, or Ijy any of tlie Judges thereof ; and there is to be no distinction or dillbrence in the jurisdiction or powers or practice of the several Divisions. All are to have the same duties and powers, and to be governed l)y the same rules of law and practice. The jurisdiction of the Court of Appeal is to remain as at present. In connection with the jurisdiction to be exercised by the Courts, the Act contains in suctions 10 and 17, and the sub-sectit)ns thei'eof, a number of very iinp>ortant provisions for the pur[)ose of securing the complete adjustment in one suit of all the claims and counter-claims, both legal and ecjuitable, of the parties. m SITTINGS AND DISTltlBUTIOX OF BUSINESS. So far as relates to the ordinary administi-ation of justice. Terms are abolished. Every case in the High Court is, as far as possible, to be tried, de- cided and disposed of by a single Judge, who, for that purpose, is to constitute the Court. Sittings are to be held in every County Town as often as may be necessary for the trial of all causes and issues, legal and equitable, and whether with or without a jury. Besides the Sittings presided over by a single Judge, there are to be Sittings of the High Court in Divisions called Divisional Courts. A Divisional Ct)urt is to be constituted by three and no more of the Judges of the High Court ; but when necessary, owing to pressure of business or otherwise, it may be composed of only two Judges. All necessary arrangements for constituting such ninnber of Divisional Courts as may be i'e([uisite for the transaction of business are to be made from time to time under the direction of the Judges of the High Court. Any number of the Divisional Courts may sit at the same time, and there are to be three regular periods for such sittings in each year, called the Hilary, Easter, and Michaelnnis Sittings. Besides these regular sittings, the Court is empowered to sit at any time and at any place, according to the exigencies of business. The business to be transacted by Divisional Courts is indicated by Order 64, and is to be regulated from time to time by Rules of Court. The Court of Appeal also may sit at such time and place as may be found necessary and may, if deemed expedient for the due despatch of business, sit in two Divisions at the same time, two Judges of the High Court being called in ad hoc for each Divisional Court. INTRODUCTION. XXIX RULES OF COURT. A full and complete Schedule of Rules is provided, which are to come into effect at the same time as the Act, and ample provision is made for amendment and alteration of the Rules by the Judges from time to time whenever required. There is also a very important pro- vision made in Section 5() f(jr an annual Council of the Judges of the Supreme Court to consider and report upon the working of the Act and the Rules, and any amendments that may be required. OFFICEUS AND OFFICES. The existing officei's of the Superior Ccjurts are to be officers of the corresponding Divisions of the Higli Court, but the Master in Ordinary, and Local Masters of the Court of Chancery, and tlie Taxing Officers, are to be otticers of the Supreme Court. Tlie Master in Cliancery, the Clerks of the Ci'own and Pleas, the Referee in Cham1)ers, tlie Account- ant, the Inspector of Titles, the Referee of Titles, anil Liocal JJasters of the Court of Chancery, are all to liave the same judicial and other powers in all the Divisions of the High Court wliich tliey now have in the respective Courts to which they are attached, and they and the Judges of the County Courts are made official Referees for the trial of all matters which may be referred to them. There is to be an officer of the Supreme Court called the M.^ster in Chauibers, who is to have, in regard to actions in the High Court, the powers at present exercised by the Clerk of the Crown and Pleas of tlie Court of Queens Bench, and also by the Referee in Chambers of the Court of Chancery. In the discharge of his duties he may call to liis assistance any official Referee, which includes the officers named ;ibove. The same jurisdiction given to the Master in Chauibers is given to the County Judges in actions begun in the country, except in regard to the allowance of service of writs of summons out of O.itario, but in order to secure uniformity of decision for some tiiue after the com- monceuieut of the Act, the powers of the County Judges are not to arise until the first of January, 1882. THE ACTION AND rilOOKHDlNlJS THEREIN. All cases now begun by Avrit, bill, or information, .U'o under the Act ti) be begun by summons issued out of the High Court. The summons is to 1)6 issued by the same officer as at present, and is to specify the Division of the High Court to which the action is assigned. All inter- locutory and other steps and proceedings to final judgment are to be carried on in the office from which the summons issues, and are to remain attached to the same Division, unless otherwise ordered. XXX ONTARIO JUDICATURE ACT, 1881. Every writ of aumnions is to be indorsed with a statement of the nature oi the chiini made, or tlie relief or remedy sought ; and pro- vision is also made for a special indorsement, upon which, in case of default of appearance, a finid judgment may be signed, and up(jii which also, even in case of an appearance, an order for judgment may be obtained upon summary application, unless the Court is satisfied that there is a good defence to the action on the merits. The provisions of the Act, with regard to parties, and the joinder ot causes of action, are very extensive, and are calculated to enable tlii Court to do complete justice in every case to all parties concerned. One remarkable provision enables the members of a partnership td sue and be sued in the name of the firm. ■i !i:;t PLEADING. In form the new pleadings resemble the old Conuuon Law pleadings. l)ut in substance they are more like the Chancery pleadings. Tlio ordinary pleadings are three in number, and consist of (1) the state ment of claim, (2) the statement of defence, set-ott" or counter-claim, and (3) the statement of reply, correspcmding respectively to the (iM declaration, plea and replication. No pleading subsequent to reply, except a joinder of issue, is to be allowed Avithout leave of the Court m a Judge, and then only upon terms. Pleadings are to be as brief a- the nature of the case will admit of, at the peril of costs, and the sub- stance is rugulutod by the following general provision (Rule 128) : "Every pleading shall contain, as concisely as may be, a statement " of the material facts on which the pai'ty pleading relies, but not tlif "evidence by which they are to be proved;" and also a munber of special directions, all tending to secure simplicity and clearness of statement. The efiect of a new amgnment is to be obtained by amendment of the statement of claim, and the plaintiff may also meet the defence by anticipation, or amendment, in his statement of claim, according to the practice in Chancery, instead of by statement of reply. Great freedom is allowed in setting up defences which have arisen pendente lite, and also in the amendment of pleadings. J.Ti^ pleading, or any distinct part of any pleading, may be demurred "' \ "Vty may plead and demur to the same pleading by leave of >!!'<. or on filing an affidavit, and either party may enter the .Iv 11 1 (S i'.v argument at once. DISCOVERY. I The great utility and importance, and even the necessity, in order | to the proper administration of justice, of requiring the parties to 1 INTRODL'CTrON. XXXI Liako disclosure to each other on oath, seem very obvious ; yet the tnicticu of discovery has, until t[uite recent times, been confined almost .'\clusivelj' to Courts of E(iuity. It is now, however, both in England md by tlie Ontario Act, extended to all actions. DocuiuentH are tu be [disclosed upon an attidavit in the form heretofore in use, and which is lof tlie most searching character, and the parties are liable to be lexamined on oath at the instance of each other. In England this t'xaiiunation has always been, and is still to be, upcm interrogatories ; but under the Ontario Act, the practice, which has been hi use for iiearly thirty years in the Com-t of Chancery of vica voce examination, is to be contiiuied. TRIAL Hereafter, actions are to have no locality, except actions of eject- [muut. Actions in all the Divisions of the High Court aro in general to l)e entered for trial at the sittings appointed for each County, and, as has already been stated, are to be tried and dispo.sed of, as far as (possible, by a single Judge. Tiie Judges may, however, if convenience jrc(iuii'es, provide for the trial of cases from the Chancery Division at a I separate time, and before another Judge. This arrangement will effect a great saving of judicial poAver. In [Counties where the l)usine3s is light, it may all be done at This Act, except any provision thereof which is (jommcnro- 'ee Jud. Act of 1873, 8. 2). Section 54, as to the powers of the Judges to nmko rules, goes into eH'oet on the jmssiug of this Act. Section (>!>, ehiirgiiig t' c expenses (if the Accountant's Oliiee on the funds in (!ourt, tiiKes etfeet from the Ist April, 1881. Section 81, providing for tho comunitation of the fees of Surrogate (!ourt .hulges, ojierates from the Ist January, ISSl. Section 88, providing for judg- njents heing delivered \>y a Judge after his resignation, goes into etl'eet on the jjassing of the Act ; and the new jurisdiction of the County Court Judges and Local Mastei's, under order 421 (sche- dule), goes into etlect Ist .January, I88'J. llule 480, as to County Court sittings, goes into etlect immediately. Union of rxi.stiiiK Courts into 1 1 i! PART I. CONSTITUTION OF SUPREME COURT. 3. From and after the time a[)pointed for the com- mencement of this Act, the soverul Courts liereinafter DntiWupromo mentioned (that is to say) tlie Court of Api)eal, tlie Court '"'"^ of Queen's 13ench, the Court of Cliancery, anil the Court of Common Pleas, shall be united and consolidated to- gether, and shall constitute, under and stibject to tho provisions of this Act, one Supreme Court of Judicature for Ontario. {/See Jud. Act of 1873, s. 3). The English section is the same except that it consolidates also the Courts of Exchetpier, Admiralty and Probate, the Court for Divorce and Matrimonial causes, and the London Court of Bank- ruptcy. Subseijuently, so much of the Act as related to the Court of Bankruptcy was repealed (Jud. Act of IST.'j, sec. 9). In Ontario the jurisdiction of the Courts of Queen's Bench aad Common Picas includes that of the English Court of Exchecpier "in matters which regard the Queen's revenue, including the condemnation of contraband or smuggled goods " ( R. S. O. c. 39, B. 4) ; and the Court of Chancery has "the like equitable juris- diction in matters of revenue as the Court of Exchequer in England possessed on the 18th March, 1805" (R. S. O. c. 40, 8. 37) ; the day named being the date of the passing of the Cana- dian Act, 28 Vic, c. 17, s. 2. The Supreme Court does not sit as a Court unless it be to make General Rules and Orders : s. 54, sub-s. 3. The Judges of the Supreme Court are also to hold a Council once a year to consider the Procedure and Administration of the Law, and to report thereon (s. 50). The Master in Ordinary, and Local Masters of the Court of Chancery, and the Taxing Officers, are declared to be Officers of the Supreme Court and attached thereto (s. 58 (2), { post). All the Judges of the Superior Courts of Law and Equity, and their Buccessors, are Judges of the i:iupreme Court, thus mark- SUPREME COURT. 3 ing the uniformity which ia horeafter to exist in the admiiiifltra- geo. 3, tioii of jii!ar <>f Ontario, Till' liii|K'iial Aft of iS7.'{, suctitin o, jii<»vidfd that tin- jitnsoii.s tlii'iraftt r a|)|)ointftl ti> till tlitj plafi'H of tlio hortl ( 'hiof .lustifc of JMiiiland, tilt! Ma^tiT of tliti Ittdls, tlio liord ( 'liiif .liiHtifu ol tilt! ( 'oiiiiiioii I'iiJMs and tilt! Loiil Cliicf llar other two, sliali ho tho lirst President of the High Court ; ami, on his ceasing to he President, tho President of the saitl High Court shall ho that one of tilt! Presitlents of tho Queen's Bench, C'hancerv ami Common Pleas Divisions, who, for tho time being, is first in order of .seniority. (See Jud. Act of 187;i, .s. r) ; Jutl. Act of 1875, s. G ; P. S. (). c. .'58, ; s. G ; o7 Vic. c. 7, s. 5.) In England, the Lortl Chancellor is the President of the lli^iii Court, anil, in his absence, tho Lord Chief Justice of England, In Upiier CJanada, by 25 Vic. c. 18, s, 1 (U. H. O. c. 38, s. 6), the Chief .fustice of Apjieal has rank antl jnTceilence over all the other Jutlges of Her Majesty's Ctmrts of Law and Ktjuity. By K. 8, O. c. .S8, s, G (oniiiotlying Consol. U. <,!. c. 10, s. ti ; 0. 12, s. 4, and 37 Vic. s. .I), it is ])rt)vitlctl, that the .Justices ot Appeal, the t.'liancelltir of Ontario, and the Chief .Justices i>t i the Superior Courts of Common Law shall have rank ami .precedence among themselves, according to their seniority of 1 i llliililil rorUT OP AIM'KAL, .•kppiMiitmont to ftuy <'f tli(( said odiccs ; and tliiit tho Vice- ggc 3_ ( ;iriiii'flliirs (ind tlif I'lii'^iic .luilg.s of tlu^ S\i|>iriiir CuiiitMiif l.iiw «ii1,.sh. s, • sli.ill li;i\i' I'iUik iiii'l prt'iM'di'inu! iiiiniii;? tlicm-tilvcs accitidin;^ tu Heniority of ftii|M>iiitiiU!iit ti) tlieir runpoctivu oliicus. See, 4. (8) IJiioii liny viiciun'v li.iiipciiiiiLr iiinoiii,' i]w .1 ikIi^'cs, tlio Jiidi,'t' !i|i]»oiiitiMl to till such ViiiMiicy in (siilijcct to tilt' piovisioiiH of this Aft, iiiitl to any Knliis of Court which uiiiy l>i' niaih' pni'suiint thereto) to ]w- conie iiml lie a niemlter of th(! .sunic Division to which the . I inline whose jdacn has hccunic vauint helonycd, (Jud. Act of IS?;!, s. lU.) So ill Kiiglinul hy tho section rofi-rrcd to. (U) Nothinu; in this Act sliall |)rcv<'iit, or shall he con- strued iis intended to jirevent. the ti'ansfer of any Judi,'e of any of the said I divisions from onu to another of the said Divisions. I5y the Enj,'U.-
  • lli.i^'h Court, shall he ex ojlicio Judj^es of the (Jonrt of Ajipeal, for the same j)ur[)oscs and with the same duties and powers as by tlio said Act is provi(h> I with respc^ct to the Jud:;es of th(* Courts of Queen's Ijcncli, Chancery and (.'oninion Pleas. {See Jud. Act of 1875, a. i ; P.'S. O. c. ."58, ss. o, lO.) Hy l\. S. (). c. 38, it was provided as follows : ".S. 'I'lio (Jourt of Appeal, at present existing, is herehy ('i)iitiinif(l, under the name aforesaid, and shall consist of a t'hief .histice (who shall have the title liureinaftta- uicntioned) aiid tliiec i'uisue Justices (to 1):' calleil " Justices of Apjieal "), appointed from time to time as provided hy 'I'he Jh'itish North .A.iuerica .\ct, 18(57, and the Judges for tlu! time Iteiiig of the Superior Courts of Law and I'^ipiity, who shall lie '.'• ojlirii) .Judges of the Court of Appeal, so as to provide for the cases mentioned iu tile toiith section of this Act." " 10. lu case of there being a vacancy in the Court of Appeal, or in ciwe, from illness or some other cause, one or more of the Judg .s of the said Court, is or are not ju-esent at some sitting of tile Court, or iu case one or more of the said Judges is or are under some legal u.^qualihcation to hear an appeal, the Judges of the Courts of Queen's Bench, Chancery, aiul Common Pleas, ONTARIO JUDICATURE ACT, 1881. < tilth of Sees. 4-6. slifill choose from amongst their mimber a .Judge, or as many Judges as necessary, to supply for the time the phvce or places vacant, or the jiluce or places of the .Judge or .Judges of the fJourt of Appi.al so absent or disqualihed ; and the Judges so chosen and acting shall have authority to continue to hejir Appeals partly heard before them, and to give judgment in all Appeals heard before them, notwitlistanding that such vacancy may in the meantime have l)een iilled up, or that the Judge who was absent may have resumed his duties." In Kngland, 1)y section 4, of the Act of 1875, as amended by section lo, of the Act of 1876, the Court of Appeal consists of live c.r.-ojlicio Judges, and six ordinary .Judges ; and provision is matle for the attendance in appeal, where needed, of a Judge of each of the respective Divisions of the High Court. S, The oath to be taken by the Judges to be hereafter appointed sliall be the following : " I do solemnly and sincerely promise and swear, that I will duly and faith- fully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as ; so help me God." The oath is to be administered to the Chief Justices and the Chancellor by tlie Lieutenant-Governor in Council, and to the Justices of the High Court, other than the Chief Justices, in presence of the Piesident of the High Court ; and to the Justices of the Court of Appeal, in open Court, by the Chief Jnstice of Ontario, unless the Lieutenant-Governor in any of such oa.ses shall otherwise direct. ( See R. S. O. c. .38, s. 7 ; c. .39, s. 9 : c. 40, s. 7 ; Imp. Act 31 and 32 Vic. e. 72 ; Jud. Act of 1873, s. 9 ; Jud. Act of 1875, s. 5.) By C. S. U. C, c. 10, s. 8, and c. 12, s. 8, it was provided that the oath should be administered to the Chief .Justices and the Chancellors by or before the " (Governor in Council." The 11. S. O. c. 39, 8. 9, and c. 40, s. 7, required the oath to be taken before the Lieutenant-dovernor in Council. Since Confederation the oath has sfmietinies been taken twice, viz. : both before the Gove nor and the Lieutenant-(iovernor. The Puisne .Judges of the (-1 mion l,aw Ccmrts have heretofore been sworn in open Court oy the Chief .Justice of the Court, and the V^ice-Chan- ceUors in open Court in jtresence of the Chancellor. In England the Ix)rd Chancellor takes the oath in presence of Her Majesty in Council, " or otherwise, as Her Majesty may direct" (31 & .32 Vic. c. 72, Sched. 1st po^t) ; and the other Judges take the oath in presence of the Lord Chancellor (Jud. Act 1875, s. 5). The oath taken by the English Judges (31 & 32, Vic, c. 72) differs a little in form from that given in the present Act, which follows the form hitherto prescribed in this Province. (II. S. O., c. 38, 8. 7 ; c. 39, s. 9; c. 40, s. 7.) Siivii.g of 45, Every existing Judge is, as to all matters within .'.biiKHtlons tlie legislative authority of this Province, to remain in of existing the same condition as if this Act had not passed ; and, POWERS OF JUDGES — SEALS. Sec. 7. sub-s. 2. Sec. 8. nilijoct to the provisions of this Act, each of the said Bxistinif Jiulges shall be capal)le of pcrfoniiing and liable to ptM'fonn ail diitit^s which he would have been capable )f |it;iforniing or ]ial)l(! to perform if this Act had not jpassed. {'See Jud. Act of 1873, s. i:.). Tlie Kn<,'lish section enumerated the matters as to which " every Jexi^tiiig Judge" was to "remain in the same c<)nditi()n," viz., tenure of olHce, rank, title, salary, pension, patronage and 30W(;rs of appointment or dismissal, and all other privileges and niis(pialilieatious. " 1. If, in any case not expressly provided for by this Provision JAct, a liability to any duty, or any authority or power, ^"'Jillionit' [not incident to til" adniiuistratioii of justice shall have iiiuy iiutieK Ibeeu imposed or couferreil by any statute or law (a) upon" " '^'"'' jthe Judgos or any Judge of any ol the Courts unired and Icousolitlated as aforesaid (save as hereinafter mentioned), [every Judge of the said High CiMirt shall be capable of Iperforining and exercising, and shall be liable to perform and empowered to exercise, every such duty, authority and power, in the same manner as if this Act had not [passed, and as if he had been duly appointed the .successor {of a Judge liable to sucli duty, or possessing such authority [or power, before the passing of this Act. {iSee Jud. Act 'of 1873, s. 12). (a) The English section has here the wonls "or custom." (2) Any such duty, authority, or power, imposed or con- ferred in any such case as aforesaid, u]»on the Chief Justice of Ontario, the Chancellor, the Chief Justice of the Queen's Bench, or the Chief Justice of the Common Pleas, shuU continue to be performed and exercised by them respectively, and by their respec- tive successoi's, in the same manner as if this Act had not passed. [See Jud. Act of 1873, s. 12). The English enactment is to the same effect. 8, The Lieutenant-Crovernor in Council may, from Seal of time to time, determine and declare the seal to l)o used in^"""" the Supreme Court, and b/ which its proceedings shall be certified and authentiiiated ; and until there is a seal for the Supreme Court, the seals now ju use in and for the existing Courts may be used in ai.d for the respective Divisions of the High Court, and in and for the Court of Appeal respectively. (.S'ee Jud. Act of 1873, s. 61 ; R. Sup. C, April, 1880, R. 45 ; R. S. O. c. 40, s. 3). The English Acta do not provide for the st als to be used, oxcept that section 61 of the Act of 1873 enacts that iu every 8 ONTARIO JUDICATUKE ACT, 1881. Seo 9, District Registry " such seal shall be used as the Lord Chancellor sub-8. 2. shall from time to time direct." By R. S. C, April, 1880, Sac. 10. ^' '^^' ^* '** provided that " the official seals to be used in the Central Office shall be such as the Lord Chancellor shall from time to time direct." Jurisdi 'tion of lligli Court of J U!iti(:e. iiiii I Tninsffr of business. PART II. JURISDICTION OF HIGH COURT. t). The Higli Court of Justice shall be a Superior Court of Record, autl, subject as in this Act moutioued, shall have the jurisdiction which, at the commencement of tliis yVct, was vested in, or capable of being exercised by, the Court of Queen's Bench, the Court of Chancery, the Court of Common Pleas, and Courts of Assize, Oyer and Terminer, and Gaol Delivery (whether created by Commission or otherwise), and shall be deemed to be and shall be a continuation of the said Courts res[)ectively (sul)jnct to the provisions of this Act) under the name of the High Court of Justice aforesaid. (iSee Jud. Act of 1873, s. IG ; R. S. O., c. 41, s. 1 et seq. ; 36 Vic. c. 8, ss. 52 & 55, Out.) (2) The jurisdiction aforesaid sliall include (subject to the exceptions hereinafter contained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court, or Chambers, or elsewhere, when acting as Judges or a JuJge in pursuance of any statute or law ; and all lowers given to any such Court, or to any such Judges or Judge, by any sta- tute ; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisiliction. (AS'ee Jud. Act of 1873, s. 16.) In the corresponding English section (16) the same Courts are mentioned as al)ove, and sever.-d others ; and the jurisdiction is said to be " transferred to " the High Court — an exjn-cssion which is not used in this Act. 10. From and after the commencement of this Act the sevei'id jurisdictions vested in the said High Court of Justice, shall cease to be exercised excejjt [in the name of] the said High Court of Justice as provided by this Act, save as othcjrwise in this Act provided. (*S'ee Jud. Act of 1873, s. 22). The English section uses the word " by," instead of the words in brackets. PENDING BUSINESS. Sec. 11, sub-8. 2. 1 1. In all causes, matters, and proceetHngs whatsoever, ^hicli sliiiU have been fully heard, and in which jutlg- iK'ut shall not have heen given, or having been gi\en, Provision a* shall not luive been signed, drawn uj), passed, entered, *^i' {jusSu"^"'' lotlierwise perfected, at the lime appointed for the com- Init^nceTnent of this Act, »uch judgment, decree, rule, or lonler, may be given or made, signed, drawn vip, })assed, [eiitei-ed, or perfected, respectively, after the conimence- Inient of this Act, in the name of the same Court, and [by the same Judges and Officers, and generally in the lisanie manner, in all respects, as if this Act had not massed ; and the same shall take effi^ct, to all intents and |l)urposes, as if the same had been duly perfected before Ithe commencement of this ^.ct. (See Jud. Act of 1873, Is. 22.) This corresponds with the English enactment. See note to jsub-section (2) iii/ra, (2) (a) Every judgment, decree, rule, or order of any Court whose jurisdiction is hereby (b) [vested in] the High Court of Justice, which shall have been duly perfected at any time before the commencement of this Act, may be executed and enforced, and, if necessary, amended or discliarged, by the High Court of Justice, in the same manner as if it had Iteen a judgment, decree, rule, or order of the said High Court ; and all causes, matters, and proceed- ings wh;itsnever (c), which shall be pending in any of the Courts whose jurisdiction is so {b) [vested] as aforesaid at the commencement of this Act, shall be continued and concluded ((/) in and before the High Court of Justice ; and (e) the said High Court shall have jurisdiction for so continuing and concluding matters criminal as well as civil. (iSee Jud. Act of 1873, s. 22 ; Order 62, post.) {a) Tlie English enactments from which these arc taken, apply to the Court of Ap)> jal, as well as to the High Court ; asi the Statute was creatine t'.ie Court of Appeal. (h) Instead of " vestt 't'," the English Act has " transferred to." (r.) The English section lias here the words " whether civil or criiuinal." The Provincial Legislature lias no jurisdiction over "procedure in criminal matters." (See B. N. A. Act, s. 91, No. 27.) i'l) The words that follow in this sub-section to the cud are not in the English Act. See note to sub-s. (3). (e) While the Provincial Ijegislature has no jurisdiction over " procedure in criminal matters," its powers of legislation include I :| 10 ONTARIO JUDICATURE ACT, 1881. It III I Sec. 11, ^-h® "Constitution" ami "Organization of Provincial Courts, sut)-8. 3. l)oth of criminal and civil jurisdiction " (B. N. A. Act, s. 92, Sees. 12, 13. No. 14). (3) The said High Court shall have the same jurisdiction in rehitiou to all such causes, matters, and proceed- ings as if the same had been connnenced in the High Court of Justice, and continued thtn-ein down to the time at which this Act goes into effect ; and, so far as relates to the form and manner of procedure, such causes, mattei-s, and proceedings, or any of them (a), shall be continued and concluded in and before the said High Court, as shall be directed by Rules or Ordei-s of Court. (See Jud. Act of 1873, s. 22 ; Order 492, post.) (a) The English section referred to contains the same provision with respect to the High Court as this sub-sectioii does up to this point ; but, instead of what follows, the English Act pro- vided that such suits should be continued and concluded either in the Courts from which they were transferred, or according to the course of the High Court, as the said Court might think lit to direct. The Court afterwards gave the directions which have been followed in Order 492, pout. Uiilesasto |^ The lurLsdiction (a) fofl the High Court of Justice jjiiisAiction. and the Court of Appeal, respectively, shall })e exercised (so far as regards procedure and practice) in the manner provided by this Act, or by such Kules and Orders of 1 Court as may be made pursuant to this Act ; and where no special provision is contained in this Act or in any such liules or Orders of Court with reference thei-eto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective existing Courts if this Act had not been passed. {See Jud. Act of 1873, s. 23.) (a) Instead of the word "of," the English Act has the wordi "by this Act transferred to." In cases where no new rule of practice is laid down by the Act or llules, and there is a variance in the old practice of the Courts, that practice is to prevail, which is considered by the Court most convenient (Newbiijyin-hy-the-Sea Gas Co. v. Armstrotuj, 13 Ch. D. 310). Jurisdiction tif Court of Appeal. JURISDICTION OF COURT OF APPEAL. 13. The Court of Appeal shall be a Superior Court of Record, and shall [continue to have all the jurisdiction and power which the said Court has heretofore had, save as varied by or under this Act ; and in civil cases shall also] have jurisdiction and power to hear and determine appeals from any judgment or order, save as hereinafter COURT OF APPEAL. u mentioned, of the Hiijh Court of Justice, or of finy Judges Sec. 13. f)Y Judce thereof, subject to the provisions of this Act, knd to such Rules and Orders of Court for regulating the terms and conditions on which apiicals shall be allowed, as may be made pursiumt to this Act. (See Jud. let of 1873, ss. 18, ID ; R. S. O. c. 38, s. 18, et se^j.) The wonla in brackets arc not in the English suction. Tlie Bection otherwise corresponds with the first part of the English Bectiou 19. 'I'lie following enactments aa to the Court of Appeal shf>w ' tlie jurisdiction and power whicli the said Court has heretofore bad," and which are continued by the present Act. K. S. O., |c. 38 : 18. The Court shall have an appellate jurisdiction in both Icivil and criminal cases ; and an appeal sliall lie thereto from leverv judgment of any of the Superior (Jourts, or of a Judge Isittiiig alone as and for any sucli I'ourts, in a cause or matter |dejtfuiling in any of the said Courts, or under any of the powers Igivun by " The Aduiinistration of Justice, Act," — including judg- Iments : ' ((() Upon any case stated by an Arbitrator, or upon any appeal (authorised by law from the decision of any Arbitrator or Ueferee, lor upon any motion to set aside or refer back an award ; " (h) Upon any motion for the issue of a writ of mandamus or [upon any (juestion arising upon the return f)f such writ ; and " (') Upon any application for a rule to (juash a by-law of a I Municipal Council in whole or in part whether a rule nhi has I been refused, discharged, or made absolute. {'1. ) No other appeal from a decision of either of the Superior I Courts of Law shall be allowed, unless the judgment, decision lor otlier matter appealed against appears of record. (8.) Where a new trial is granted or refused upon matter of ! discretion only, as on the ground that the verdict is against the weight of evidence or otherwise, no appeal shall be allowed. 19. The Court shall also have jurisdicticm, — (a) In appeals from County Courts, as provided in " Tha i Count!/ Coitrtx Act." " {!)) In appeals from the Surrogate Courts, as provided in " T/ie \Siirriiiint(' Coitrt'i Act." ' ((•) In appeals from Stipendiary Magistrates, as provided in the I tweiity-lifth section of " T/ie Act Jicspectiiuj the Adiiibmtration \of Jiidict hi Uiiunjnnizcd Tracts." " ((/) In appeals from a Judge of a County Court, as provided in Th)' Act r('.'ccedings in the Court below, or to award restitution ami payment of costs, or to make such further or other order as the case may riMjnirc. "24. Tl^e Co' ^'. have power to make such order, as to the whole or . n ' . . ' ' he costs of an ajjpcal as may seem just." 1)11 in appeal |4, For all tlie i)ur))o,ses of and inculeutal to tho hear- Hifiii Court, ing ami deti'i i.iinatiou of any such a])}K>al, and the ainend- ''"",'■'•"' '^i'' men t, execution ; 1 ei ■ amomt of anv iudifineut or jiral to li.ivo ' 1 " /. all iioweis of order made on sueli ap|;'';.', lud lor the purpose of every iii-ii Court, ^j.}^^^. .^,,(-ij^)j.ity giv-on to the Court of Appeal by this Act, the said Court of Ai)peal shall liave all the power, authoi'ity and juvisdictioii by this Act vested in the High Court of Justice. {See Jud. Act of 1873. s. It), second part ; R. S. O. c. 38, s. 22). This corresponds substantially Avith the second part of the English section 19. 15. The jurisdiction and power of the Court of A])- peal, in respoct of the said m;itters and all others, shall be and are subject to the provisions of this Act, and to such Uules and Orders of Court for regulating the terms and conditions on which such appeals shall be allowed, as may be made pursuant to this Act. [See Jud. Act of 1873,'s. 19, lirst part). Same in effect as the English enactment referred to. RULES OF LAW. H>. In every civil cause or matter commenced in the '" High Court of Justice, law and equity shall be adminis- tered by the High ("ourt of Justice and the Court of Ap- })eal r('s[M'ctively according to the Rules following (Jud. Act of 1873, s. 2-t ; See K. S. O., c. 4t), ss. 4, 5). (2) If any jdaintiff' or [)etitioner claims to be entitled to any eiputabh; estate or I'iglit, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whut- .Juiisilii'tion mil)j(H't to rwli's, elf. Law auil niuily to comuir- riMitly .'nl- iiiiMistori'i RULES OF LAW. 13 soovor asserted by any dofcndant or ros]>ondont in See. 16, such cause or matter, or to any i-elief fonmled n))on«'ii'X'- *' '• a lojLjal right wliich heretofore couhl only liave bt^en ijiven by a Court of F!(|niiy, tlie said Courts res]K'e- tivclv, an sanie or tlio lik(; pur- pose properly institutecl before the passing of this Act. Jud. Act of 187;}, s. 24, .sub-.s. 1). Taken froai the Imp. Act. Tbin ami the ni;xt section deal with the old anomaly of dilTcr- cnt Cmuts reeounising ditrereiit rigiits and dutit-'s, apjilying (liU'erent remedies to the same ease, and in .some eases even ( iifoix'iiif,' rules of law in eontliet with one aiiotlier. 'l"he removal iif the eontliet of law is provided for by s. 17. The rest of the matter is dc.ilt with in the i)resent stetion, the provisions of which have been summarized thus : — • The ]ilaiiitifi' may assert an cipiitable claim in any Division of tlic Hiyh ( 'ourt (sub-s. 2) ; and maj' obtain an e(putal)le i-einedy in any Division {Ih'ul) ; the defendant may raise any ecpiitabh; answer or defence to any claim ; that is to say, anytliinj; which wf)uhl hitherto have been good by way of answer if the suit had Ikuii brought in Chancery (sub-s. ,S), or would have allorded ground for an injunction if the action liail been brinightat law (sub-s. (J) ; and he may assert, by way of coiuiter claim against the pl.'dn- till', any claim, legal or eiputablo, whicli he might have raised i)y a cross suit at law or in t'(juity (sub-s. 4) ; the difendant may also obtain relief relating to or connected with the oi iginal subject of the action aijainst other persons, whetiier alre.idy parties or not (Vihl). All Courts are to recognise e(pHtal)le rigiits incidentally ajipearing (sub-s. ;">) ; no cause is to be restrained by injunction ; what would have been ground for injunction ia to be raised by way of defence, or upon an ajjplication to st.iy proceedins^s (sub-s. 0). Subject to these provisions, connnon law rights and duties are to be recognised (sub-s. 7). Every t'ourt is to apply all appropriate remedies, and dispose of all matters iu controversy (sub-s. 8). For deliuitions of "plaintiff,'' "petitioner," "defendant," see s. 91. (3) If any defendant chiims to be entitled to any equit- KcinitiM-' able estate or right, or to relief upon any (iquitalde'^^'^'""*''' ground against any (Used, instrument or contracit, or iigainst any right, titk; or claim as.sorted by any plaintilf or petitioner iu such cause or mattt'r, or alleges any ground of equitable defence to a.ny cl.din of the plaintilf or petitioner in such cause or matter, the said Courts respectively, ami every J udgc; tliere- of, shall give to every equitable estate, right, or ground of relief so claimed, and to every eipntable defence so alleged, such and the same eli'ect, by way u ONTARIO JUDICATURE ACT, 1881. Sec. 16, siilis. 4. (Ji>lllili:r- lii'l'i'iKlaiits. jlil , ' il i! f W 1 I mm of defence against the claim of such plaintiff or I j)otitionoi', as the Court of Cliancery ought to have I given if the same or the like matters had been relied on by way of defence in any suit or proceciding i instituted in that Court for the same or the like purpose before the j)assing of this Act. Identical with Jud. Act, 1873, s. 24, sub-s. 2). (4) The said Courts respectively, and every Judge thereof, shall also have power to gi-ant to any defendant in respect of any ecpiitable estate or right, or other '■ matter of eqiiity, and also in respect of any legal estate, right or title claimed or asserted by him, nil such relief against any plaintiff or petitioner as sucli defendant shall have properly claimed by his plead- ing, and as the saiil Courts respectively, or any Judge thereof, might have granted in any suit insti- tuted for that pur[)ose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original sub- ject 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 shall have 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 have been 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 of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant. {lb. sub-s. 3). This sub-section is identical with the English sub-section 3. It will be observed, that the third person must be "served with notice in writing of such claim pursuant to any Rule of Court or any Order of the Court." The result of the General Jlules and the decisions interpreting them is, that (1) a counter claim may be made against the plaintiff, or the plaintiff and an- other person ; but no claim to any relief in which the plaintiff is not interested can be raiseil against a third person by way of counter-claim : Trelcaven v. Bray, 1 Ch. D. 17. The defendant may bring a third party into the action if he claims contribution, indemnity, or other remedy or relief over against him, or can shew that on any ground a question in the action should be decided as between him and such third person. In that case, he cannot obtain any present relief against the third person ; but he may have a decision which will be binding RULES OF LAW. 15 18 between him and tlie third person in any Bubsequent action geg. jg^ [n wliioli nliof is sought { Trekamn v. Btay, ubi nupra ; and see mh-sn. fi, 6. notetii U. XVI., r. 17). r.^)) Tho sftid Courts respectively, and every Judge there- ^I'^'taWo of, sliall recognize and take notice of all C'quital)le generally, estates, titles, and rights, and all equitable duties and liabilities ap})earing incidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognized and taken notice of the same in az^y suit or pro- ceeding duly instituted tlierein before the passing of this Act. {Jb. sub-8. 4) ; Identical with the English sub-section mentioned. 1(G) No cause or ju-oceeding at any time pending in the As ONTARIO JUDICATUUR ACT, 1881. Sec. 16. .iforcs.iid <;i)ininol) l,:iw and .Statutory KuIl'h uix' The prerogative of tlic frown to intervene in actions afTectintl the rif^hts or revenue of the Sovereign li.w nut been atlcetiil hv the .Imlicature Act. {Attoriici/d'cinrti/tiiiil J/iniih(rCuiiii('rrrocei'dings in the action (L'l/ni v Xdi^/i, 7 Ch. D. 7Sl. See also Jluuscnutii v. lluufieman, 1 I'h | I), -l^o). (7) Subject to the nforesaitl provisions for givinj? etToctj to equit.vblo rights and otliov nmttcr.s of equity in niann(M' iiforosaid, and to the otlier expve.ss provij to sion.s t)f this Act, tlie .said Courts respectively, ami every Judge thei'oof, shall recognize and give effect! to all legal claims and demands, and all estatw.l rights, duties, ol)ligations, and liabilities existing liyl the Common Law or created by any Statute, in tliol same manner as the .same would have been reco:: ; nizi^l and givtni effect to if this Act had not p.isseilj by any of the Courts whose jurisdiction is [vested in] the High Court of Justice. {See lb. sub-.s. 0). Same as the English sub-.seGtion I'cferred to, except that tkj latter has the words "transferred to "instead of " vested in ; and after the word " law " has the words " or by any custom." RULES OF LAW. 17 18) (a) The Hi-;h Court of Justice and tho Court of Appeal Sec. 16, ro.spi'ctivoly, in the oxoroi.se of tlio jurisdiction vest- ^^'^ •*• "^ ed in them by tliis Act in evt^ry cause or matter ^'O- ^"^^ pemlini; before them respectively, sliall have jJowerCoiiipictM to ;,'raiit, and shall f^rant, either absolutely or on,it,n,'.'in ' such reasonable terms and conditions as to them »'*''^''y '■""" sliall seem just, all such remedies whatsoever as any i>os-fiiii.-. of the ])arties thereto may appear to be entitled to in respect of any and every le<^al or equitable claim properly bi-ought forward by them respectively in such cau.se or matter ; (b) no that, as far as possible, all matters so in controversy between the said parties respectively may bo comidetely and finally deter- mined, and all multiplicity of leijal proceedings con- cerning any of such matters avoided, (lb. sub-s. 7). (a) Same as the English sub-section referred to. (h) Mr. t'liarley, M.P., inbiseclitionof the Jiulieature Act said: I' If the clo.siiig words of this section he verified by experience, ^his Act will prove a second Magna Charta to the suitor." 17, Whereas it is expedient to amend and declare the RuIm of i.iw jaw to be hereafter administered in Ontario as to tho poi'iiir'^''"" latters next hereinafter mentioned : Be it enacted as Mows: (Sec Jud. Act of 1873, s. 25; Act of 1875, 10; R. S. 0. c. 40, ss. 36, 86, 87; c. 49, ss. 4, 5, 21, 13; c. 50, ss. 131-133.) This recital does not follow the language of the English section sferred to (25) ; the difference is immaterial. The object of khe section is to render uniform the rules of law administered in pc several Divisions of the Court on the points as to which such iiles were formerly in conflict. This had been done to a con- biderable extent in Ontario by the Administration of Justice Act» 1873, 36 Vic. c. 8 (R. S. O. c. 49, ss. 4, 5, 21, 23; K. S. O. 40, ss. 80, 87 ; c. 50, ss. 131-133, &c). The method which has been adopted in the present section is deal in the first ten sub-sections with specific cases in which Conflicting rules formerly existed, and to provide what rule is to prevail for the future. The first sub-section in the English Act, and one substituted ^or it by section 10 of the Jud. Act, 1876, provide for the lidmiuistration of the estate of a deceased person who is isolvent, and makes applicable thereto the same rules as the Jankrupt Law provides for estates administered thereunder. ^' The British North America Act "gives exclusive jurisdiction to the Dominion Parliament in matters of " Bankruptcy and Insolvency " (s. 91, No. 21 ) ; but the subject is not without legis- lative provision in Ontario, for by 29 Vic. c. 28, s. 28 (R. S. O. c. 107), it was enacted, that " on the administration of the estate of any deceased person, in case of a deficiency of assets, debts due > the Crown and to the executor or administrator of the deceased person, and debts to others, including therein, respectively, debts 2 «,*:••■' ;■ IS ONTAUIO JUDirATlTUK ACT, 1881. M llnl t'l i>|>|>ly 111 ix|iri'ss Kquitllili WJSt<'. Sec. 17 ''y j'xlK'n*'"*'" •li""'^'^' <»•" orilor, nm\ other iltibtn of rncord, »l(!l)tsli\ xiilisM. '.'-1. H|icci)ilt\, Hiiiiplc coiitrmrt flihts, (iml HiK'h (ilfiinis for coiitnict ilol)tN, hIihII Im; pivid /lari /itmsit luid witliout iiiiy pii i< r (MICH or priority of dohtu of oiu! raidx or iiatiirt! nvor tlms ■ ■ ;inothir ; Imt iiotliiiiu lu'roin (lontfiiiifd hIihII pri.'jiidico any lin oxiHtiii^ during tliu lifotiuif of tlio duiitor on any of iiiu rual "• porHon.'il ostatt'," SI iinii-iiif (2) No diiim of II cfiN/«t 7«fi tnisfc against his tnistocM'iH ■""''""" any proporty licM on an c^xpn^ss trust, oi- in n's| of any hnvwdi of sn of actioii luiscs 'ipon a Icasr or otiicr contract iiiado by him jointly with iiny other jHirsoti, (a) and in that caHo he may sno or distrain jointly with snth otiior p(irson. {See Ih. Hiib-s. ii.) (rt) rp t<» tluH point tliis Hul)-seetitm cttrrcHimndH with the iMiyiisli ; what follows Ih not in tlie Knglirth Hul)-Hection. In caBuH llnukr thiH 8ut)-8ection thi; inort>,'iv<,''"' "'"■y Honictinies havt! to make tlic iiiiirtyaj^co a party ; Imt "uiiIinh theru Ih a prohahility tiiat Itlie n-lief for wiiidi tho inortgigor such will iiijnriou»ly allect th. In the five next succeeding sections of this Act, * Assignee shall include any person now being or hereafter becoming en- titled by any first or subsequent assignment, or any derivative or other title, to a chose in action, and possessing at the time of action brought the beneficial interest therein, and the right to receive and to give an effectual discharge for the moneys, or tiie cliarge, lien, incumbrance, or other obligation thereby secured. "7. Every debt and chose in action arising out of contract shall be assignable at law by any form of writing, but subject to such conditions or restrictions with respect to the right of transfer as are contained in the original contract ; and the assignee thereof, shall sue thereon in his own name in such action, and for such relief as the original holder or assignor of such chose in action would be entitled to sue for in any Court of Law in thii Province. " 8. The bonds or debentures of corporations made payable to bearer, or to any person named therein or bearer, may be trans- RULES OF LAW. 21 fcrrcdby delivery, and if payable to any person or order shall Sec. 17 (aftor !,'i'mral eiidorsation thereof by such person) be transfer- sni).ss. 7, ,<. ablo by (k'livery from the time of Hueh endorsatioii. "(-. I Any such triinsfer shall vest the property of sncli bonds 'y«'t:n""''ii or (l('b( iitiires in the iiolder thereof to enable him to maintain an ' actitiii tbcrt'on in his own !ianie. "!). The plaiutifl' in any action or suit whtjre the assij^nment is required by tiiis Act to lie in writing may claim as assignee of the orii^inal )>arty or first assignor, setting forth brielly th« various assignments under which the said rfivm'. in arlion has beooniu vested in him ; but in all other respects the ])leading« and i)nioie00). * See Whines, d-c, Co. v. Slieffield, Jkc, Committee, 37 L. T., 131 ; Oawthrope v. Gmvtiirope, W. N. 1878, 91 ; Haherskmi v. Oill, W. N. 1875, 231 ; Heal andPers. Advance Co. v. McCarfhi/, 27 W. K., 706. t See Shmo v. Earl of Jersey, 4 0. P. D., 120. + The application niay be made exparte, but only in cases of emergency as when immediate or irreparable damage is being done or apprehended. In ordinary cases a notice of motion must be given {Anon, per Lindley, J., W. N., 1876, 12.) (a) Mandamus. M;iiuliiimi». The jurisdiction as to mandamus before this Act Included the old prorogiitive writ of mandamus, and the further jurisdiction set forth in II. S. O. c. 52, which embodied Con. iS. U. 0. chaps. 23 and 28, and such parts of 35 Vic. c. 14, as related to this subject. By Con. S. U. C. c. 23, s. 1 (see the Act with Chief Justice Harrison's elaborate notes, Harrison's C. L. P. Act, p. 462 d seq.), which corresponds with R. S. O. c. 52, s. 4., it was enacted (following Imp. 17 and 18 Vic. c. 125, s. 69) : " That the idain- tiff in any action in either of the Superior Courts of Common Lav excejjt Replevin (jr iJjectment may endorse upon the writ and copy to be served a notice that the plaintiff intends to claim a writ of mandamus ; and the plaintiff' may thereupon claim in the declaration, either together with any other demand which may be enforced in such action or separately, a writ of manda- mus commanding the defendant to fulfil any duty in the fuliil- ment of which the plaintiff is personally interested." Under the corresiMinding English enactment it was decided that the power given is only in the case of duties of a public nature, not in the case of tliose arising simjjly by contract : (Benson v. Paull, 6E. & B. 273 ; Norris v. IrUh Land Co., 8 E. & B. 512). The duty too must be one in which the applicant is interested ; and the remedy by mandanius is only available where there is no other effectual legal remedy : (Bush v. Beavan, 1 H. & C. 500). A mandamus was granted to improvement commissioners, directing them to levy a rate to satisfy the claim of the plaintiff, a creditor ( Ward v. Lowndes, 1 E. & E. 940, 956) ; and to apply their funds in payment of debentures ( Webb v. Conimiasioners '//. Co., L. K. C. P. 188 ; OneM v. Poole ami Bourne- imoiith III/. Co., L. R. 5 C. P. 5.>3). See as to the discretion of [tlie Court, Nklioll v. Allen, 1 B. & S. 910, 934. Tlie present lenaotinent goes further, however, than the previous statutes, [and enacts that a mandamus may be granted " by an interlocu- Itory order of the Court in all cases in which it shall ajipeir to the jCmirt to hti just or convenient that such order shoulil be made." I Wliere a puren.tory mandamus is granted the decision is suIj- jject to review [Reij. v. Church Wardcn.t of AH Saint.s', 1 App. ICiis. GU.) A mandamus will not be granted against a public ; I){i(ly when the performance of the duty sought to l)e en- I forced is impossible l)y reiisou of want of hinds (Be Briatol and I 6'(*//(c/w< A'//., 3 Q. B. D. 10.) Although the Court or a Judge ■ has power to grant a mandamus on an interlocutory application, it will not bu d(me unless the plaintiff clearly shows that he will sutler some injury by waiting for the result of the action (In re Pnrh Skatiiui lilnk Co., 6 Ch. D. 731 ; Widnes Alkali Co. v. Slt>'ffi('ld and 'Midland Bail. Co.'s Committee, 37 L. T. 131). The casts in this Province have been numenms, and will be found collected in Robinson and Joseph's Digest, 2208 to 222(5, and 4015, 4016. (h) Injunction. An injunction will now be granted in all cases where it is just Injuin ti and convenient ( Thorleii's Cattle Food Conipanij v. Afa.s.sain, (5 Cli. D. 582 ; Iliiirichs v. Bernde.<, W. N. (1878) 11 ; Saxhy v. Ea.ster- hiirk, 3 0. P. D. 339). It is with regard to settled legal reasons or jirinciples that the Court will decide what is just (Beddoiv v. U,>lilow, 9 (Jh. D. 89 ; :Shaiv v. K of Jer.'^r,/, 4 C. P. D. 359 ; (lodin V. Bnlh, 13 Ch. D. 324 ; iJn'ij v. Brownrhjij, 10 Cli. D. 294 ; Fldcher v. Borjers, 27 W. R. 97). The right to an injunction to restrain trespassers formerly ileijcnded on whether the person sought to l)e restrained was in possession or not, and if in possession whether he was a mere trespasser or acted under colour of right (See Loundc.'^ v. Brocoehis(l P. D. 7'-'; C. P. The Horlock, 36 L. T. 622), the Court restrained all persons from dealing with shares in a ship forming part of the estate of a deceased person (See also Boyle V. Bettws L/antwit Collienj Co., 2Ch. D. 726). In Velati An interlocutory injunction ought to be conditional upon an gg^ 17^ andertaUiiig for damages (^'w//amv. Cnmphfll, 7 . 4!»i.) An Hub-s. s. order iiaviiiL,' been made restraining the defendant from proceeding ritli certain buililings, ho appealed, oU'ering an undertaking to '"•i"'"''''""*- »bi(it! 1)V any order the (Jourt might make at the liearing as to mdliiiif down or altering any buildings erected by him ; tlieCiourt jf Apiiial, bt.'ing of o|)ini()n that the riglit to an interlocutory injunftii)n was not established, discharged the order, taking from the dit'eiidaut an undertaking in the terms (/f his (/Her, but held Ithat. witliimtany undertaking, the (Jourt would have- jurisdiction [at the trial to order the jwdling down of any buildings erected lafter tlie commencement of the aetifni, or after notice had been iven to tlie defendant that the plaintiff oljjected to the building (Sinllh V. I)((ti, \\i Ch. i). 651). It was held that an action for an injunction may be conunenced Iftgainst a Local Board without tho month's notice required by the JPublic Health Act, in all cases where Ixifore tho Judicature lActs a liill would have been sustained in Chancery for an in- [junction ; and although damages are claimed l)y way of subsidiary jrelief (Flower v. Low Li'ijton Local liminl, 5 dh. L. 4r>7). Whore lif the defendant succeeded in the House of Ijords her success {would be useless unless the fund Avas protected iu tho mean- time, it was held that the injunction ought to bo continued pemliug tlie appeal {Pufiiii v. (Jnu/ ; Sfiirla v. Firccid, 12 t'h. I). 4;iS.) Jn BIcu-iU v. Dmrlin;/ (W. N. 187o, L'O'J), an action of ejectment .against a landlord, the plaintitV was re- BtraiiK'd from issuing writs against the tenants. In JJrukes I PitU III CuiiiTcfc V. Dfinur (fhid'I'AO) an order was granted restrain- ing tlie defendant from ))ulling down jxirtially erected houses. in Fiiimr v. liiJ/onl (lh\, 'Jl) a defendant was restrained from parting with a bill of exchange (see aho Anon, Ihid ^7). In Aii'iii tl/ii'l 38) an r.c jxirfp application for an injunction restraining a man from trespassing with a horso and cart was re- fusetl. tlie Judge remarking that " injunctions are not ordinarily granted for mere tresfKUss unless serious injury is threatened to the ])roperty." On a fresh application being made in this case, afternotice to the defendant, no order was made on the defen- dant consenting that damages should be assessed up to the date of the trial ( Mai.-!ii v. Barrow, Id. 100). In El- parte MrPhaU, 48 U J. Ch. 415, Jessel, M. E., refused leave to serve a writ out of the jurisdiction on the gnmnd that the plaintiff could have as effectual a remedy by application to the local (,'ourt. As to pr()viding for an injunction whore the wric is to be served out of the jurisdiction, see Yoiuia v. Brassey, 1 Ch. IJ, 277. i ' J J> Where a defenI7. liit.vio)! :. MdiiUidiisi', (J. ('oo|i. 41 ; Ki/sci/v. Kfl-'.'». \'. (', M.). Unt till" proHcnt cniK^tinfut iMupowiMH (Ik \\\ii\i Court to ;ip|toint iv UtHH'ivor "in nil ciscs in wiiicli it nli.ill .•il>pi'ivr juHt or convenient ;" jvml in /'iusc v. l''/iff/ir>; \,. \l. I Cji. I>. '2~',\, where the plfvintill' was inorti;;ii;ee of jiropei'ty, hh to soinc of whiili iiis title w.'is lej^jil and as to soini" eiiuitahhi, H; \'. ('.. on ;vn ind'iloi'utory aitplieation. appointed ii iveeeivor fi tho whole ((' v. (ittu'l/iorjic, W. w: I" >.'Ven|i, Kir IS7S, !M) In an action f(H" partition, whero one of the co-ownora is in ocenp.ition, (V/<' nvotion heforo !ippoar;uice of the dofendivnt, tluM'o liciiig ovidonce of in\niediate dani;er of tiie i-hattels in (pu'stion hoinj; disposed of ( '/'((//Air v. h'rh rKlri/, '2 Cii. D. ."{()'_'). Wherein an administration action the defond^mt. the sole surviving executor and trustee of the testator, iiad heen personally condonnuMi in ctists in an action to test the v.iliditv of the will, and .an oxociition iiad ) )een issued .against him, and tliere h.id heen a return of nulla hoiin on the applii'ation of tho present ])l;iin tills, who wort' executors of the dcccised execut(U' of the testator, who was .also .a creditor of the testator and a residuary Icyati'o, a roct'iver of thi> procci'ils of the sale of jiartof the testator's real estate, .and of the rent of tho other part and of the outstanding jiorsoual estate was grantod (lutirllirojX' v. (utirt/iropc, W, N., 1JS7S, 91). A receiver was ajipointod at the instance of a plaintilV wlic had recovered jmlgnicnt, and sni'd out an elegit against Ids dehtor whose only interest in land was an eijuity of redemption in fee {Aiiiilo-ltiiliiui Haid- v. Darii.'i, [) t'h. !>. 2~i>). A receiver was ap[)ointed in tho case of a married woman entitled for life for her separate uso to dividends on stock (/in/itiif v. Jiiill, 10 (Jli. D. In a creditor's action for administration against an oxccu- trix, a decree had heen made and ;i sununons taken ont for a roeeivor ; hut ponding the summons the solo defendant died. Tlie Court, on tho application of the i)laintifV, appointoil an in- terim receiver, whoso i)owers were to oxteiul for ten days after the appointment of an administrator i/c hiniis mm, tho plaiutiiV nndcrtaking to use all ])ossil)lo speed in ohtaining tho appoint- ment of such administr.ator, .-mil to aoce])t short notice of motion to discharge tho receiver (In re Parker, i{ecnj.feil, Ca.'^h v. Parker, I'J Ch. 1).\'!>.S). Except in c.-.sos of emergency the applicati(M!iv('i' will Ik- ii|>|iiiiiit(!i| vvitlimit „„| (ciiiitv {/'. ;{()•_'). IV'iniiiiH wlio jirn tlct'ply iiitci'cstoil in tint |)n>|M'r iii.iii.-i^'iMiiciit of a (■iMiccrn will (it, .liwiiyn l>ii i'0(|iiinMl t<>f(iv(! HiMMirily (//(»///(' v. llitliim (!ihU (ht. V\x. \)'.7H\). Ill ,111 fiction for tlio Bjiocilie ixMforniiiiici^ of an iij^nnitiu'iit to ""i' ■cfpt fi Ictist! (if II ftirni ill wliirli jiKJj^'iiicnt, liiul hccn givi-ii for he liclViiilfiiit, the |rl;iitititrhfiviii^ii|i|H';vl('ii ; tin; ( 'oiirt of A|i|i(:)il (1)11 iircvioiiH fi]>|>liciiti'. 720). Wluro security i.s reijuirod, tho receiver has iif> title until hi» Hocurity ia perfected (I'Ji/wonln v. Klnuinh, 'JCli. 1). '2!tl). A defendant may iipl»ly for an injuntition and a l{«x;fiv(!r {Siir- cfi'iil w lii'iul, I < ill. I). (!()0, in which ca.se lioth idaintill" and defeinifint fi]»pli(;d, and tlu; ])lfiiiititt' was appoint^Ml [icrHonally, on tilt' yroiind that he wan the most suitable jjorson, aH the hu.sineaii nM[iiiieil almtwt profe.saioual skill.) Tile ai»pi>intinent of a receiver is in tlioiliHcrotion of the Court, and the ('ourt of .Ai)i)eal will not, jih a rule, interfere with that discretitiii (Niitli,'e to ( lect for himself, tlip ('ourt will merely intei lere «o far as to get it free from ill('i,',il restraint, without handing it over to anybody. This was tbi conrst< adopted in h'rx v. Di'htiutl (,'{ Murr. Il.'io), in the (^is(! of a girl eighteen years of age, who was delivered from a eiistiidy considered illeg;vl, and left at liberty to go where she |)le,is('(l. lint, in the alisenee of any right of elioiee, tlm ('onrt g(»es furtlior, and transfeis the infant i.o the |iro|ier legal custody. The riglit to siieh an election, it has now been clearly deeidtMl, depemU npon ;ige aloiii-, and n8on on Infants, \'M\ li .s'cy. ) Hut this jurisdiction w;ia not exercised except where the ('ourt had the means of applying jnoijcrty for the use and maititen.-uiceof theinfant (//»,) My U. S. (). c. l,SOs. 1 (following ■'. S. U.(\ c. 74, s.8; 18 Vic. c. I'2(>s. I), it w.asprovided that the Courts of haw or I'lipiity, or any Judg(! of anch Courts, ; on the a])plication of the mother might make order allowing her access to the infant "at such times and subject to such regula- tions Jia such ('ourt or .ludge thinks convenient and just ; and if such infant is within the age of twelve years may make order for the delivery of such infant to the ' mothm- to remain in her caro and custody " until such infant attains the age of twelve years subject to aui'h regulations as such ('ourt or ludge may direct ; and such Court or .Tudge may also make order for the mainte- nance of such infant by p.ayment by the father thereof, or by payment out of any estate to which such infant may l)e entitled of such sum or sums of money from time to time as according to the ])ecuniary circumstances of such father or the value of such estate, such (^ourt or Judge thinks just and reasonable." K. S. 0. c. l.SO, s. 4, p. 1182: "No order directing that the mother aliall have the custody of or access to an infant shall be made by virtue of this Act, in favour of a mother against wliom adultery has been established by judgment in an .action for criminal con- versation at the suit of her husband against any person." In exercising its general jurisdiction the conduct of the mother is t.aken into consitleration (/iV Tai/lor, 11 .Sim. 178 ; He Bartktt, 2 CoUyer, (>G1 ; Shilleto v. Colk-tt, 8 \V. R. 683 ; lie Wiiiscom, 2 H. .K: M. 541 ; lie S/uiiv, referred to in 11 Sim. 182-195; .Re HaUiday, 17 Jur. 5(i). Under enactments in England allowing an application by a mother it was held that a married woman may petition in her own name without naming a next friend (Re Groom, 7 Hare, 83) ; or m forma pauperis (Ex parte Hake will, 3 D. M. &G. 116); and that the order m.ay be made ex parte if the necessity of the case requires it (Re Taylor, 11 Sim. 178). Seo. 17. INFANTS. ITndor thn .TndioatHro Ac^t, nil tlio Piviaions of tho Tligh Oonrt ,tivv iiiiw jiiriHdiction with rcji.inl to tlm (iam iiinl ciiHtody of liffiiits ; (iiid, in the (iXcii'lN*- of that jnriHdiuti in, tho ruloH of •"""'t'* Kiiiity iiro ti> [)ri;v;vil. Hcforo tlio juriHiliction of tho Court ;() diprivo II father of tho ^uanlianHhip of his I'hildrcn can BO called into action, tho ( lonrt must ho MatiHlitMl that ho haw ho coiiiiucti'd hiniHcIf, or plaiu'd hiinnolf in HU(di a ]ioMitii)n, aH tu rcudrr it not nuToly hottc^r for thi; ohildron, iiut oH.scntial to their H.il't^t}- or wcdfaro in houio vory HcrioiiH and important roHpoot, Ithat the father's ordinary rij,ditH should ho intorfiTcd with. IThe aliidavit.-f of tho mother and others, in answer to ;i rule for ■a haheas corpus hy a father to reniovo his child (a hoy of nino [years) from the custody of the child's maternal grandfather, l«lisclosiiig facts which shewed the ;i]>plicant to ho a person of |inteni|ieratc .and vic-ious life, anil in thi^ hahit of using gross and IdisguMting language, as well as personal violence to his wife;. Itlu' Court di'ciineil to interfere, tiic present tuistody of tho child Ibciiig uuohjectionahle (/h y^' (f'oW,v«'o/7////, '2 Q. H. I). 7.')). 'I'hc [Law as to the custody of infants under tho law in England waH [nuicli discussed in two cases recently decideil (lie Ars not licnMii lic^ton^ iniilicn '" livrly iiitMilioiiod, in wliicli (luiro i.s imy fnnllitt m ; V!iiifiinv< li(>l\vi<(>M lln> Uiilcsol' l'',i|uily ami Iho IJnlis of llit> (*(>iiniioM liiiw with fcrciciit'c to tlio .siiim iiititit'i', tlii< Rules of Ki|iiity hIimII itrovail. Till' fiillowin^ (li'cisidtiH illuHtriiti' fcliiM Hulinot'tioii :— Tilt' lulc in .'ill the ilivisimis is now, miilci' lliiM Huh-Hi'ftidii, tli.'it an (U'licr Itir t'li:in,i;iiif; a Mitlifitnr nIkvII Ih' nuuli' wiilnnit ,'iiiy |ii'(iviHi(in ivs to p.'iynicnt. tif tliusoliiMt.iir'HfustH ((irtiiif v. Ilitllnm], \\ ('. I'. !>. ISO ; lioHft V. (Irmil, iliiil). Hi'i' ii.s to privilcm'il tloni nii'iil.M. Hiis/ros V. W'/iilr, I i). \\. |). i'l'A ; tw to ■ V. Huff, '2 (Mi. I). TiS.S ; ./i>l, v. Joh, ti Cli. h ."(il'J ; ;is to an.swcrin.ij criniin.'vtiii^ int('rro).{,'iton('H, Aflnrli ij \ lliirni/, '* {). IV |). ."I'JI ; us to (lisniissiii!.; jin iiction, /,(( (Intmy V. Mi'AiiiIri ir, I <}. W. |), 'JIO ; as to joint and si'vorai li;iliilit\ on Olio I'ontrai't (Ki iiditll v. Ilmiiilfim, I App. ('as. HtU). WliiTi' tile tonus ol" a liill oi" salo (vro such as t,o hind afti'i aotpiirod m»oo ohai'iioii without hoiiio wilful /<./i V. ./(>/), () Ch. I». M\'2 ; and see linrlx r v. MitcKnll. I'jch. I). ,-);u). I'A RT Hi. SlTTINtJ.S AND DlsrUIIU'TlON OV lUJSlNESS. II Kill roruT. of IS. TIu» division of tho losxul year into t<>niis shiill he alxdishod (a) so fir as rtdatcs to tho administration of jwstioo ; and tlitM'o shall (!>) not ho tonus applicahlo ti) any sitting or husincss of tho lliu;h Court of .Justico ((-•). or of any oominissionors ((/) to whom any jurisdiction may bo assiojnod undor this Act [or of any commissiouors of assizo] : but in all (<0 I'asos in which, undor the law now existing, tlio tonus into which tho legal year is divided are used as a measure for determining the tiiiif at or within which any act is required to be done, the same may continue to be referreil to for tho same or the like jnirpose, unless and until provision is otherwise maile by any lawful authority. {See Jud. Act of 1873, s. 20, tiVst part ; R. S. O. c. 41, s. 12 ; G. O. Chy., No. 413 ; Order o7, post.) (a) Terms survive for the purpose of a motion to set aside an award (Christ's Hosjntal v. Martin, 3 Q. B. D. 28). Ity Itide neuron's lie Linl dili'iuv! [(not 'I'riuit; (/,) The I the wolil " (,') The I Aiipeid ;' (,/) Th.' lliMli Aet. St 'Mitiu-y < (Sue note t (.) Th With th lOl'll'spOllI tiee ami ro.spcetivol shall iiave place, for i such ('O'li sioiiei'S. or [Slatutc|, (luring or second par For " Sta! ami is other tVoiii lime of the ('oi aftor men latiiig tlu^ of .IllKtil't! tlio said (' lUiide pun tiuues in taiin^d in i carrying t such Oi'dr Act of 18 ((7) In E authority i '^1. P the hearii of the H respective V \ HITTINdS OF roiMlT. :U lly Kill'' !"!>, HittiiiK'M iini (V|mniii(c i.o lir lichl l»y <'••' Bpci. 19 21 (Jiii'i'ii M I'm'IH'Ii mill ( 'oiiiiiiDii rli','1^ DivitjiiiiH III. Ihc hiiiim' Miiich ■ iUkI iil:irio liiw (It. S. (>. f. 11, h. (») iiroviili'H foi- st 'Mitoi'V ' 'iiiiiiniHHioiii'rHof Assi/.i? wlii'ii' no coniniiHHion ih iHwinil. (St'i' notf to Ht'(^ 'J'J of UiiH At^t). (.) Tliti I'lii.i^'linli Ai'l. IwiH tlm Htltlilion.il wonl "oflni'" licic. Willi tilt' i'X(.'f|itionH iiliovf niriil ioiii'il, Ijic IMtli Hct'tioii Htijirn riirii's|ioiiilM with tilt! liist |)jvrt of t.lif I'liij^liHli Hcftioii 'JCi, l<>. Siii.jfci, to iiiiir.st.rcniirt, Mi(« iii,i|, or otliorwisf, is r<'i|uirfd !,(» \h\ discliiir^'cij diiriiii,' or iiflt-r ti'nii. {Sm Jiid. Aft of |H7.'5, s. liG second part; K. S. O. c II, s. Vl ; OnU^r 57, pout.) Kor " Statiitt; " tlu! I'lii^^'liMli St'ntion has " Act of Parlianiiiit, " and is otliorwisi! tlu; Hiinii!. !I0. (") Tlic liiiMit(Miiiiit-( Jovcnior in (-'ouncil uiiiy ViuitionN, t'i'om tinit^ to tiiii(\ ujioii any n^port or r(M-oniMi(Uidiition of the (Jouuc'il of .)uil;,'<'s of tlit! Sniircnio Court lit^rciin after iniMitioncd, make, mvokc, oi' niotlify, ordtfi'.s rciju latiiiL,' tlui vac'atit)nH to Ik; obst^rvod hy tlid \\\\i}\ (-Jourt of Justit'o and tlu! C'ourt of A|»p(!al, and in tli(! ollic-os of tlio said Courts rcspiictivoly ; and any Ordcn- in (Jouncil made pursuant to this stiction shall, so h)n,<^ as it roii- tiiuu's in forco, Ix^ of tho samo (dfoct as if it were con- taiiuMl in this Act ; and lluh'S of Court may Im; iiuuhs for curryinif th(! samo into olfciot in tho same inanntir as if such Ordor in Council wore part of this Act. {Sw, .Jud. Act of I87:i, s. 27, first part ; Order 57, ])ost.) (n) In Euglaiul it is Hor Majesty in Council to whom this authority is given. '*i. Provision shall be made by Rules of Court for Sittin-s in the hearing in Toronto, (ci) during vacation, ])y Judges ^'*''^"""' of the High Court of Justice and the Court of Appeal respectively, of all such applications as may require to «.NT\IMi» .imUfATIMll A<'T, ISS). S«ot.23,83. I><^ iiiniKMiiiitoly «»r |)i'i)iu|)lly liiMinl. («SVf! Jiid. Act of ^ IS7:». H. L'S ; Oid.T IT'.). /»(w/.) (d) Tho lOii^lisli HiM'liiiti liain Ikmo IIk* wnnlM " l.iiiiilnii m MiilillcNt'x," mill JM otIii'i'wiMii llii' siiiiio. •>•» Coimuissiuiis of nssizo or an V oti Id" i'oimiii.ssions, .'llr'i- ('.■111 lill'i-ro|H'r inillidrily ("), ii,ssi;^iiiiis^ lo llit* pcrsonn In \u\ llicrcin iiaiiitMl (/'), llio duly ol tryiiii; tiiid dctt'i'iiiiiiiii .; wiiliin iiiiy |>liii'(' or dislrifl s|>i'ciiilly lixed lor lliiit |tiir|>os(' liv HUi'li I'omiuissiou, liny iMiisfs or uintlors, oriiiiy tjinsl ions or issues of fiiel or of liiw, ttv piirlly of I'liel, iind piirlly of law, in liny eniise or nittller, depending; in the saiil lli^'li ('ourl. ; or llie (>xei'eise of Muy civil or eiiininnl jiirisdic tion enpMlile of lM>ini,' e\(>reised Ity I, he said lli.i,di ('oiirt; aiK .HIV ei • niMiission so issued sliail lii> ol' llii^ saiii" valiility as if it \v»'r(> enaeted in I lie liody of (Jiis Act: ami any eoniinissioner or eonnnissioners, shall, wIkmi (tii- ! ,u;a!j;ed in lin- <'\erfise of any Jurisdiel.ion so assijuiied to liini or them, lut detuned to (oiislitut(^ a Court of the said lli,i,di Court of . Justice. {S,r dud. Act of 187.'J, h. 2!».) ((() 'I'lu- lMinli«li ciiiii'tmoMt jiivcM tliis iiutliority cxpn'ssly to llcr Majesty. in ('iiuiula it litis ItctMi (|ut'stii>n(i I'reviiKH'. and the iipiteiutaient of Superior ('ourt .ludgtj behums to tlie Deniiiiiou. (See A'(.7i«(r v. ,t we/', t'J U. C. .*{!M). (h) The l'!niilish section limits the appeintmont to " any .ludj^e or iludge8 of the lli^ii Court or otluM' persons usually named iu coniuiisaious of assi/e." 'I'he Dominion (Jovorumeut is under- stood to elaiiu tiuit » Provincial iiegislatnro has no authority to limit the class of persons from which Judges arc to be selected. uiiios >.f *m. All causes iind matters in the High Court of I pnlvilu 'for «T"stiee, shall be distributed among tlio several Divisions P , gldrkfil wjtii Mil) iiiiiiii' (,f iiiio III' Mm .linlmiM (it Mm iliHcri'Moii of miiIph, a, 111' iilikiiitill or |ii:liliotiur. '\'\\\i imu'tii'ii Iihh not Imhhi inlopttMl || I lilt |ll'l'M|t||t Alit. . 'ti Siiliii'i't to iiiiv Hiili'H oC ('(iiii't uikI Io tlin iirovi AH^iKnnif'iit ■ • iif'lii'liilllii' jinllS nl' lllis Actliml tn tllll |MIWrl' 1)1' tl'illlMlrl', 111! (MIIHtiH liiiHJiMHUt'. ||pl lllllli'l'M |li'llilillK il' •''"' <''HII't. of (.^lli'nll'H liolicll '•■• [,',',',',/,*'/'|'],„ Im coiiiiiuMinMiii'iil of tilis Art iin- lioicliy assi^nn-il to tlin ili«liC./iiit iiiDnn'M liiMioli DiviHioii of tlm lli;,'li ( !oiirt ; ii.ll ciiHHMS liil initti-rs piMiiliii.; in tlm Court of (!liiiii(V(ry at tlm )iiiiii 'iiiviii'iit of this Ai't urn Imrnity iissiifimil to tlir, iin>' assij^imil to tlm ('Oiiiiimii JMras Division of lir 11 i'^'li Court. (.S^v.linl. Ai;t of iSTii, h. .'H ). I i'H'siil.M IV liko provisioii for iiiiiiiliii;i{ ImMiiicHH, in Kii^,'liinil (Msr- Lin rliiHHdri of (!;iH(!H Hi'i) uMHi^iiiMl to tlm oxolusivti jiiriHiJii^tion of Lk: ClriiiiH'ry Divinion ; iiml tlm otinn' DiviHioim liavi! Htill rxolii- Ivc jiiiisiliction ovrr hiu'Ii iniittiM's hh |»riivioii«ly wia'o witliin tliu nti'liisivi' juriMilii'tion of 'lie Courts wlioso n.'iini^s tiitiHo hivi.sionH Dw li:tV(t. TiioHii iii'i'.in)^riiii'iits iiru not niuiuit to Ini porniatmnt, 111 lire HuUjlH^t to ItllluH of (JiMU't. !*5. Siilijcut as aforcsaiti, (UMiry canso or inatt(!r aftor- hti'ils (■()iiiint>ii(!uil in tlm Kiiiil lli^^'li < 'onrt of JnsticMt sliall assi'^'imil to onn of thn Divisions of tin! said Hi;;li |oiu't, liy nmrkinL; t'm doiMinmnt l)y wliicli tho .samo I'oniiiiiMUM'il with tlm nanio of such Division. I In Hm^bnil, by tho first p.-vrt of suction M, of tho Aot of 1875, DocunifiiitH ku jilaintilf iniiy iiHsigii tlm ouho to any Divisiim, H>il»j^i<^ti ,.',[„))„ ,!,,,„. ithu [lowur of tho Court to aftorwiinlH tnuirtfor it to anotlmr ,','|,.,ii:((i to Ivisidii. irndor tlio [tro.st^nt Act, following.; tho statutory rulo lie rnarkeil bw ill forco witli roHiusct to tho oxistinL' C!ourts, writs of"''*,''.","',"" I. • i,i , » > n I 1/1 111 I.' • • i)f Uivi.liuu liiiiiiiiiiH ui tlio (2iioon s liuncli anil (/oniiuon lloas Divisions j,, ^y[,jp(, to bii issnr! altiTiiat-'iy i»otwoon thoso two DivisioiiH (Rulo aHsigned. (1, ))(>■<'. sul>). • til'! action boing transforrod aftorwards r ^ V, i„)st). vll int(M'loout y and other .stops and |)roceeding.s in or boforothe said Hii^h Court in any causoor matter sub- (imnt to the cominonoenient thereof, shall be tak 1 t, subject to any Rules of Court and to the power of transfer) in tin Division of tho said High Court to which such cau^-o or matter is for the time being attached. (.S'ee Jud. Act of 1875, s. 11, sub-s. 1). Same as tho English sub-section referred to. 34 ONTARIO JUDICATURE ACT, 1881. Sec 26. Power of TvllUHflT. -]'.' i:. mm I 36. Any cause or matter may at any time, and at anv stage thereof, and either with or without application from any of the parties thereto, be transferred from one | Division or Judge of the High Court of Justice to am other Division or Judge thereof, by such -^ thority ml in such manner as Rules of Court may dii ;i (a) oriis^ transfers might be made from one Couil; to another befool the passing of this Act. (6) (See Jud. Act of 18":ii s. 36 ; R. S. 0. c. 49, ss 21—29 ; 41 Vic. c. 8, s. 4, Oiit;j (rt) Up to this point the section is the same in effect as section j 36 of Imp. Act of 1873. (b) The following enactments show the mode by which trans ! fcrs were " made from one Court to another bcfoi'e tlie passing oil this Act." R. S. O. c. 49: "21. The Court of Chancery, in any suit or other proceeding instituted in that Court, shall have jurisdiction in all matttKj which would be cognizable in a Court of Law ; but in casn, aij any stage of a cause in Chance rj', it appears to the Court or Judge thereof that the suit or proceeding may for any reason Ij moi'c conveniently, expeiHtiously or inexpensively carried on oil dealt witli in a Court of Law, the Court of Chancery or a Juik'ti thereot may order the suit or proceeding to be transferred tc sud • one of tlie Courts of Common I^aw as the said Court or Jutk'ti thinks proper ; and such order may be made by such (Jourt ml Judge i^ud sponte, or upon tlie appHcation of eitlier party to tl:c| Court or Judge on notice to the other parties interested, and uiatl be made at any stage of the suit or proceeding ; and the Court o;| Judge may make any order as to costs which seems reasonaU ' ' 22. Where an order is made under the foregoing section tktk proper officer of the Court of Chancery shall annex together ail the pleadings and papers lilcd with him, and transmit the saiiitl together with the onler of transference oi a copv tliei-eof, to sudl office of the Court of Common Law as tlie ord - 'lirects. "23. If it appears to a (Jourt of Common Law or a Judge tliereiil that any equitable question raised in any action or othc" yvt\ ceeding at Law, cannot i)e dealt with by a t^ourt of Law so ast.T do complete justice between tiio parties, or may for any otlitil reason be more conveniently dealt with in Equity, the Court «l Judge may order the action or proceeding to be transf erreil Sj the Court of Chancery ; and such order of transference niayltj made by the Court or Judr,e xua .spoii/e, or upon the .apjilicati'il of either party on notice to the other parties interested, aiul iiia;| be made at any stage of the action or other proceeding. " 24. Where an onler is made under the foregoing section, tlii| proper officer of the Court of Common Law shall annex to^'ttlie:! all pleadings and papers filed with him, and transmit the saiiitl together with the order of transference or a copy thereof, to siiei| officer of the Court of (Jhancery as the order directs." The Statute 41 Vic. c. 8, s. 4 (14 a), further provides that ''(t^ Chief Justices of the said (Jourts of Queen's Bench and Couiimi Pleas shall, on the first day in eacu Term and from time to tin thereafter as occasion may require, meet together and exanii ithe list of motions, rules and other matters set down for argil Aj, togethc] itbaf'tW Id ComiiKl ime to tin lid exanri In for arp ELECTION PETITIONS — SINGLE JUDGE. 35 aent, and direct the transfer of such and so many of the said gecg. 27. 28, lotious, rules and other matters, from the one Court to the snii-s. •!. Br, as shall as nearly as possible in their judgment equalize the imouDt of business to be done by ^iach of the said Courts ; and, ifter such transfer, the motionsj rules and other matters so .ransferred shall be heard and disposed of by the Court to which the transfer is made, as if the said motions, rules and other natters so transferred had originated in the Court to which the transfer is made ; and the judgments, orders and decrees so made by either of the said Courts shall have the same force and effect if made by the other of them." See Rule 393 pod 31. The Jufli'ijs bo be iilaced on tlu; rota for the trial T?"t'i "'' , . • • P r\ • • JlUl^;es tor jf election petitions tor Ontario in each y(!ar, under the election [provisions of " The Controverted Elections Act of On- I'^t'ti"".-- ;;irio," shall be selected out of the Judges of the Supreme ICourt in such manner as may be ])rovided by any Rules )f Court to be made for tiiat purpose ; and in the mean- time, and subject thereto, sliall be selected as hitherto, Itliiit is to say : the members of the Court of Appeal and lof tlie Queen's Bench; Chancery and Common Plea.s [Divisions aforesaid shall, on or before the third day of JMichaelmas Term in every year, select, by a majority of votes of tlie members of such Court or Division, one of the Jud!,'es tliereof : Provided that th(3 Judges who at tlie commencement of this Act, sliall be upon the rota for the trial of such petitions during the then current year, bIiuU continue upon such rota until tlie end of such year in the same manner as if this Act had not })assed. {Sen Fiul. Act of 1873, s. 38; K. 8. O. c. 11, s. 33). The English enactment confines the rota Judges to the Queen's L'ncli, Ci)mnion Pleas and Exchi-quer Divisions of the High ^ourt. By the Controverted Elections Act of Ontario, chap. 33, Ihe duty was imposed upon the Judges of the Courts of Appeal Hid Ch-vucery in common with the Queen's Bench and Common Vluas. ?i8. Every action and i)roceeding in the High Court of Kusincss to Fustice, and all business arising out of the sanus, except I'J.^','^.'','','^',':'''' as hereinafter provided, shall, so far as is practicabl(! and Judiic as r,ir bonvenieut, be heard, determined and disposed of before "^iH',.'"^'' In single Judge {a). {See Jud. Act of 1870, s. 17, lir.st part; R. 8. O. c. 39, ss. 20-20 ; c. 50, ss. 281, 282). |2) A Judge sitting elsewhere than in a Divisional Court is to decide all questions coming i)ro}ierly before him, and is not to reserve any case, or any l)oint in a case, for the onsideration of a Divisional Court (6). (See Jud. Act of 1873, s. 40 ; Jud. Act of 1875, s. 22 ; Jud. Act of 1870, s. 17 ; R. Sup. C, 1875, Order 57 ; R. Sup. C.„ Dec. 1877, R. S). i i I:':' 36 Sec. 28, sui)-s. a. Sec. 29, )iul)-s. 2. Single JudKi!. ■(I ' 'usiness of Divisional Courts, and is as follows : ' ' The following proceedings and matters shall be heard and determined before the Divisional Courts ; but nothing horeiu contained shall be construed so as to take away or limit the power of a single Judge to hear and determine any such pro- ceedings or matters in any case in which he has heretofore had power to do so, or so as to require any interlocutory proceeding therein, heretofore taken before a single Judge, to be taKen before a Divisional Court : " Appeals from orders of a Judge in Chambers. " Proceedings directed by any Statute to be taken before the Court, and in which the decision of the Court is final. " Cases of Habeas Corpus in which a Judge directs that a rule nisi for the writ, or tlie writ, be made returnaljle before .i Divisional Court. "Other cases where all parties agree that the same be heard liefore a Divisional Court. "Applications for new trials in the said Division where action has been tried with a jury." See Rule 317. Divisional ?JJ>, All business which may from time to time be so High' Court oi"d«i'otl by Rules of Court shall be transacted and dis- posed of by Divisional Courts of the said High Court of Justice, which shall for that pui'pose exercise all or any part of the jurisdiction of the said High Court. (2) Any number of such Divisional Courts may sit at the same time. at.. DIVISIONAL COURTS. 37 1(3) A Divisional Court of the said High Court of Justice See. 29, shall be constituted by two or three, and no more, «»h-s8. 3-6. of the Judges thereof; and, except when through seos. 30, 31. pressure of business or any other cause it may not conveniently be found practicable, shall be com- posed of three such Judges. \{i) Every Judge of the said High Court shall be quali- fied and empowered to sit in any of such Divisional Courts. 1(5) Bat where the Divisional Coui-t is constituted of two Judges oidy, such Court shall not hear or adjudicate uj)on any application against the judgment of either of such Judges. 1(C) The President of every such Divisional Coui-t of the High Court of Justice shall be the senior Judge of those present, according to the order of their prece- dence under this Act or otherwise. (See Jud. Act of 1873, s. 40 ; Jud. Act of 1876, s. 17). Sub-section (5) has no corresponding provision in the English I Act. In other respects the section (29) corresponds in effect [with Jud. Act of 1873, s. 40. Section 17 of the Jud. Act of 1 1876 provided that two Judges and no more should sit unless jtliere were special reasons for having a larger number. This [restriction to two has not been followed in the Ontario Act. The [three Divisions of the High Court do not necessarily correspond [with the Divisional Courts referred to in this section and else- Iwhere in the Act and Rules (see next two sections). For the Ibusiness assigned to Divisional Courts, see Rule 470, set forth [in note to section 28, supra. 30. Divisional Courts shall, as far as may be found Cons .uition Ipracticable and convenient, include one or more Judg(> courts*'""" lor Judges attached to the particular Division of the said [Court to which the cause or matter out of which such Ibusiness arises has been assigned. (iSee Jud. Act of [1873, s. 41.) The English section enacts to the same effect. 31. Subject to any Rules of Court, it shall be the .Tudges to [duty of every Judge of the High Court who shall not f;J,''s^„'e'ss Vf" [for the time being be occupied in the transaction of any nny Division [business specially assigned to him, or in the business of [any other Divisional Court, to take part, if required, in [the sittings of such Divisional Courts as may from time [to time be deemed necessary for the transaction of the [business of any of the Divisions of the High Court ; ;!! 38 ONTAUIO JUDICATUKr; ACT, 1881. m Ordor not subject to ap]>eul. Sees. 31-38. (a) All such arningements iis may be necessjiry or l)ro[)er fox* that purpose, or for constituting or hold- ing any Divisional (Courts of the said High Court of Justic(! for any other pjirposo authorized by this Act, and also for the pro[»er transaction of that piirt of the business of the said Divisions respectivoly which ought to be transjicted by one or more Judgos not sitting in a Divisional Court, shall be niiide from time to time inider the direction and superin- tentlence of the Judges of the said High Court ; (b) And in case of difference among them, in sticli nianniu' as a majority of the said Judges sludl determine. (See Jud. Act of 1873, s. 41.) This section corresi)onds with the English enactment except that the latter is conlineil to the Queen's Bench, Common Pleas i and Excho(i[uor Divisions, omitting the Chancery Division ; and except also that in case of difference among the Judges, the j English section requires the concurrence of the Lord Chief j Justice of England in the decision of the majority in ordor to j give it effect. APPEALS. 3!}. No order made by the High Court of Justice or any Judge thereof, by the consent of jiarties, or as to j costs only which by law are left to the discretion of the I Court, shall be subject to any appeal, except by leave of i the Court or Judge making such order. ( L. J. Ch. 375 ; lie Hio Grande Co., 5 Oh. D. 282: He Bosk-in's Trust, 6 Ch. D. 281). The rule laid down in this section has always been the rule iii I the Court of Chancery. (See Daniel's Practice, 5th ed. , pp. 83', | 1329, 1332, and cases there cited.) 33. No appeal shall lie from the judgment or order of j any Divisional Court or Judge of the High Court to the [ ainoniit does Court of Appeal without the special leave of the Judge not^exoeed ^^, [jiyigionai Court whose judgment or order is in ques-| Liiiiitiitiou of .ipiieal Tliuse resti .' a APPEALS. 39 tion, or of tho Court of Appeal, unleHS tlio titlo to real Sees. 33-36. estiito or Homo interest tlioroin or the validity o^ a nateiit is iiffocteil; or unless tlio matt(^r in coiitrovoi.iy on the appeal exceeds the sum or value of $200, exclusive of costs ; or unless the matter in (piestiou relates to the tak- ing of an annual or other rent, customary or other duty or fee, or a like deman l)y any DiviNiotinl r miiI ; and no n|i|M Conrt of Appeal. {Scv. .hi.l. Act of IHT,\, h. .'"•(); H. S. O. c. .'J8. H. l(i; 0. Ml), H. 22; o. M, h. 281, mil. h. 2 ; s. I.'?, (oite ; Onl(>r 470, po^i.) TliiM H(>i>ti(in vnrii'H from Hcctiuii f)() of the ^lIl^liHh Act, wliicli Ih .•iHfolluwH: " Kvory order iniulc l>y a .Inilnci of Mio Haiti \\\\i\\ ("omi; in Cliaiiilu'iH, »'XiH'|)fc oriloiH iiiailo in flio cxcrciMd of hiicIi (liHiTotion aH .'(forcHaid, may Im>h('I, aHJilc ordiHcliargt'il upon notion. by any PiviNional (Vuirt. or liy tlit> .liidgc Hitting in Court, aiHCKJ injt to tlii> oouiHO and piactioo of the liiviHJon of ilio Higli Court to wliioli tln> partivMilar eaiiHi' or matter in wliieli sueli order {h niiide, may Ih> asHigned ; and no a|i|)eal nliall \w from any Hnrli order to net iiHide or diseliarge which no mwh motion haH h(Mui made. indesn by Hjiccial leave of tlie .Judge liy wlioiu Huoh «)rtk'r was made, or of thti t^ourt of Apiieal." Appi.ii from Jl'}, Savo as aforo.said, and Hul)jpeal lies fri>m any jiidmncnt or order of tlic H'>j;h Court or a Judgo tlicreof, nave that an order made by n .Judge in Chandlers must tirst be moved against lieforo n Divi- sional Court uidess l>y special leave. 'I'he .'Jlith section of the present Act regulates appeals Irom a .Judge's order made in Chambers. No iippo.ti Jl^, No appeal to the Court of Appeal sluill be unless pro- ,, , i .• .i r • • ■ -l- x xi )fr notice allowed iniless notice tneretit is jjjivimi m writing to tlic uui s,Hurity,ipp()[^i(o party and to the CMerk of the (^rowii and PIchh, or Registrar of the proper Court, ^vj^Iiiii_ono inmith, after the judgment complained of, or within sucli further titno as the Court appealed from, or a Judge thereof, may allow ; nor nidess [within .S months after the judgment complained of or within such further time as the Court or Judge aforesaid may allow] the appellant gives proper security to the extent of $400 to the satisfaction of the Court ajipealed fixmi, that lio will effectually prosecute his appeal, and pay such costs and damages as may be awarded in case the judgment appealed from is [in whole or in partj affirmed. ( See K. S. O. c. 38, s. 26). The words in brackets are now. Appeals from High loiirt. Ii9, Save as aforesaid, appeals from the judgments of the High Court or a Judge thereof in civil cases, shall be within tlie same time and in the same manner and vovnr o\- AiM'KAr.. 41 i.r II [witli Hid Haino cflni'l. iis litTclornro IVoiii lil<(\iinl>,'in(Mil,H (»fBoo«.39 42 [(111- Sii|MM'i(ii- ('oill't Of II .IikIj^i' tlirfoi)!'. (Si'.r. |{. H. O. t;. :\H, m. 45-48. ) Set! note to HtMiliiiii I.M, iiiifc, fur tlio (iiiiuitiiitnitH rcj^nliit.iiij; tluiHo iniitturH. ill IFi»(»ii I.Im' rn(|in'st, of Mio IJiiiL'n or .IikI-m-h wiUi ri<.viMi..n , 1 • < 1 1 -1 1 I -1 I 11 1 1 f(.f llllHIfll'l (ir for wlioiii ln' IH ri'(|iit'Hlrforiii iiiiy other ofliciiil or iniiiiHtcriMl iiclH for or on Itcliiilfof iiny •)iid>.;<' aliscMit from illiic^HH or jiiiv otiicr ciiiiHc, or ill tlio pliico of iniy .fiidt^c wlioH(M)Hti'(> liiiK lii'coiii(< viiciiiit, or iiH III) ndditioiiiil .liid^^f; of iiiiy Pivisioii ; iiikI \vliil<* no sittin/^ and iictiiiji^ iiiiy sik^Ii Jiid;^')- of tho Court of A|>|><'iil hIiiiII Iiiivi^ all tlio power and an tlioritv of a .ludji^t^if tlicsnid IW^h Court. (San find. Art of lH7:t, H. r.l ; H. S. (). r. .'W, h. «.)). Tin; I'lngliHli Hrctidii Ih idciit.icul with tliJH, oxiH^pt t)uit tlir vciiui'st Ih to hi) Ity tho l/oni ( 'liuiict'llor. 'I'lic n(;(-tioii of tlir i jJi'viHcd Stiituti! rcifi'rriHJ w;ih coiiliiuMl to " Hitting" for (mother [ .hid^', sjiyiiij.; iiotliiiif^ of " iKitiiif^ " for liiiii or [jorforiniiig for liim ' "any other otiioial or iiiiiiiHtoriid act." 41. Ill any cause or inalter |KMidinjjj lieforo tlif! Court !-,,« , of .\|>|ieaJ, any direction incidental theret.o, not '"volvinL,'^"',K,'',|'|',"|]}' the (h'cisiou of tlie ap|>eal, may lie ^dven l>y a sin^^de Apii.ii Ju(li,'e of the Court of v\ppeal ; and a sin^le.lud;,'(! of the ; (Viurt of Appeal may at any time durin<^ vacation makr- iiiiv interim order to prevent prijiidiiM! to the claims of lUiy parties pendiiiji;; an a[)peal as lie may think fit ; lait every such ord(U" made liy a sinj^de ,lnivi>ii>ii:i it sliidl at any tiims sooin expedient to tlm ljieut(!naiit-(-!ii,,.|^,,t Governor in Council, or to the Jud<,'es of the Supreme '^I'l"'''- i ('ourt, or a majority of tluim (of which majority two I Judges of the Court of Appisil, including the Chief Jus- tice unless absent on leave, shall form |»art), the Court of Ap[)eal may sit in two Divisions at the .samcs time ; and in such case, and to enuhlo two Divisional Courts to he held, the Judg(;s of the said Sui)reme Court, or the said inajoiity of them, shall select from the Judges of the High [Court so many of the Juilges thereof as may be necessary, Itogether with the ordinary Judges of the Court of Ap- 1 1 i.f II 1^ I 1) ^1 , i 42 ONTAIIIO JUDICATUKE ACT, 1881. S«o. 42, l)Oiil, to form two DiviHioiiH of ili(>i siiid (^ourt, and tlui Hiii>H. •>. Jii(ljf(i.s HO ohoHoii and aotinjj; hIwiII liavo all tlm powor uiid '""'■*'»**' authority of tiio JudgoH of tho said Court of A|>|kmi1. (2) UnloHH otlicrwiHo nrranj^rd Ity tlni tJueal, unless the title t(j real estate, or souie interest therein, or the validity of a patent is affected ; or unless the matter in controv(!rsy on tho append exciMuls the sum or value of .f 1,000, exclusive of costs ; or unless the mat- ter in (pmstion relates to the taking of an annual or other rent, customary or other duty or fee, or a like demand of a ji;enoral or pid»lic nature affecting future rights. {/!>. , See R. S. (). c. 38, s. 41) ; 38 Vic. c. 11, ss. 17, 49 [D] 42 Vic. c. 39, s. 8, [DJ. The restriction as to appeals to tlio Supreme f 'ourt from Ontario was not in any previous Statute. The Parliaments of tho Pro- vince of Canada and of the Dominion of Canada have passed Acts restricting the right of Appeal to the I'rivy ('ouneil in Englaml ; and the Dominion Act, 42 Vic. c. M!), restricted appeals to tin Supreme Court from the Province of (Juebee to cases wluii the matter in controversy amounts to the sum or value of §'_'OtlO or upwards, and certain other speoilietl cases. TART IV. TRIAL AND PROCEDURE. .lu.igiiu'iit 44, At the trial of any action no jiarty shall be en !ri\vi^ i',!r ' titled to judgment on the ground of his pleading being iMity uiiitss true, if the facts proved are not sufficient in point of law tuViaots"" to entitle him to judgment. {See R. S. O. c. 49, s. 5; R. Sup. C, Dec. 187(5, R. 3; Jud. Act of 1876, s. 17.) In the Court of (^hancery the Judge at the hearing has always disposed of both (juestious of fact and (piestions of law." He de- cides not only whether the plaintitf had proved the truth of his case, or the defendant the truth of his defence ; but also whether | the claim or the defence is a valid one. At Common Law it was otherwise The Judge at nid priii,* was a commisaiouer to try the issues of fact joined between the jiroveil. MODES OF TRIAL. 43 imrticH aH npponrinj? upon tlio rononl, nml to dirctct a vordirt for g^o, 45, iiliiiiitiir or (loftiiidivnt iio(!onlingly. Il«' had powor to dooido qut'stiotiH of law ariHiiig itundciitally in tlio courm; of thu trial of the JMHiuiH of fact and in many otlnsr wayH to di^al with matti^rH of law ; hut thu liroad i|UtJHtion whothor tin; plaintill'H tilaiin, aHHuniinj,' hisfaiitn jnovud, waH ^ood in law, or whether tho (k'fciidant'H dt'fenco, if tr\i(! in faot, waH ^ood in hiw, it waH not witliin hiH provinco to (hitorrninc. 'I'Iioho (juoHtionH (!ouhl ho itioujiht i)uf(M'o tho Court in himr, hy (hiniurror, or hy motion for juil^uK'nt iiDii-ohntanfr iivrvdirlo : and in othur wayH ; hut not l)«jf()ro the .ludgi! at tho trial. Tho cH'oct of tho Kiif^dinh Aotn ia, that thoro is no longer any iiowur to loavo tho d»!(!iHiftn of tho oaHo to tho Divinional ('ourt. And, with certain Hiiecilied oxceptionH, the trihunal to review thu (lueiHion of a .ju(lij,'o at a trial (unrHCtico of tho Court of Cluuicory. {See 11. S. O. c. 4U, 88. 4, 31; c. 50, ss. 252- 2r)8.) In I'ngland the ordinary raodo of trial in Chancery has always been l>y a single Judge. That has hcen tho practice for many years in tliu Ontario Court also. The Chancery Act (U. S. O. c. 40, s, !)!)) sliows the method of trial by jury in Chancery, where that courac might Ih) resorted to. Tho following sections of the Common Law Procedure Act R. S, 0, c. 50, shew "tho mode of trial now provided hy law inactions in the Courts of Queen's Bench and Common Pleas." "2.'>2. Inactiught in either of the Superior Courts, or in any li the County Courts, and the assessment or eiKjuiry of danii'.gei; in every such action, may and (subject to the provisions of v.lie 255th section) in the absence of such notice fis in subHit'tion two of this section men- tioned, shall be heard, trieil an|)j)onoiitiiot lUiiiounciiigat tin; cloHtj,si)atch of 8"^*^'"R" '■"■ , . * , _,, 1 1- • • ^1 Irialdf non- inisiiuiss and the public couvenicnco may nnjuiro, there jury uaseu. shall be sittuigs at every county town, for the ti'ial of ciusoH and issues, wliether legal or equitable, which arc to l)f heard and determined by a Judge without a jury, and ill case such sittings are appointed at any county town for tlie same time and l)efore the same J udge as jury cases, separate lists shall be made of the jury and non-jury ca.ses, and tho jury cases shall first be disposed of, unless where the Judge shall see fit, for soin(! special I't'iuion, to direct otherwise. This section is subject to section 255 of the Common Law Procedure Act. (See R. S. 0. c. 40, ss. 23-27 : c. 41, ss. 1-12 ; c. 49, s. 3 ; c. 50, s. 249.) 4n ONTAUIO JUDICATUHE ACT, 1S81. ^f: 1 1,', " )i It ,i 8«o. 47. ANMl/t'M. liclcl-c'CS iillll ASSI'SSIII'S. Tlio Sfirttli Hcotioii of thi) ('. li. V. Act \h Hot forth in t\\v notf to Hci-tiiiii t;') of tliJH /Vet. It givuM a iliHurotioti ton prcHidiiig .IikI^^v to ilii'i'ct II tritil Ity a jury ; uikI to tlio ( 'oiirt or Jmlgo in eortuin otlu-r oiiHeH to diroct ii triiil without ft jury. 'rh(^ follow iiig iiro th« ntntutory (^nucttncntH with rufuruncu td thi' holilin^' of CourtM of AHHi/ti anil NiHi I'riuM. R. H. (». o. tl : " 1. CourtM of .XMsiziMUul Nini I'riuM, iind of (Jyt-r and 'rorniimi nud (ifuonil (iaol Dtdivrry Hhall !>«< held in every County iind ITnionof CountioHin oaeh and every year, in the Vacation hetwccn Hilary and KaHter 'rcrinu, and tho Vacation butweeu Trinity and Mii^liaelnuiH 'rerum, "(*2) In addition to tins two (J(UirtH ho to hu lield for tliu County of York, there HJiall, in vvvry ytwir, he a third Hueh Court in iiml for tile said ( 'ounty of \'ork, in the N'acation l«'tween Mii;i;a(^liiiiis and Hilary TeniiH, and a fourth hiuiIi ('ourt in and for the hhIi! ('ounty, in the iiart of the Vat-atiiui following i'luHtor 'reiiii, l)etweeu I'laHter 'lerni and the lirHtday of duly. "(■i) In adilitiiiii to the two ('ourtHHo to lie held for tlu! County of W'entwortli, there Hhall Ih> a third Mueh Court held in '.iu:li and every year in ami for tho said County of W'eutworth, in tin Valuation lietweeu MieliaelniaH and Hilary Teinm. "(4) .All tlu' said CourtM shall he helil, with or without com uiiMHion, as to tlu! l.icuteuaut-( pri'sitliiig tiu'reat, he held separati; and apart fiom tlie ( 'ourt o' ()ycr autl 'terminer ami (icncral (Jaol Uclivcry, cither on tin sanio day (M' on a iliUcrcnt day. 47. (Sulijoct to liny Ruh'.s ot' C/oni't iiiid to such rii^'lil ns luay exist to Iiavo jwivticiilar cuhcs siiliinittcd to tin vt'Ttlic't of M jury) iiiiy (jucstiou nrisiii^ in any Ciuisc oi niuttiM" (otlK>r than a criminal proocoding by the (Jrowiu befoiv the Hi^'li Court of Justice or before the Court ot Ajipeal, may bt^ ref(MTeuding, for inquiry and report to a Judg(3 of n County Court, or to an otUcial referee, or to any otiici person agreed on by the [)arties ; and the ri'|)ort of such relV'ree may be udo})ted wlu)llv or partially by the Court, and may (if so ado[»t(ul) be enforced as a judgment by ik Court. {Sec Jud. Act of 1873, s. 56 • ]{". S. (). c. i)0 ss. 181), IDo, 1U7 ; Lomjman v. East, 3 C. P. D. Uli.) See note to next section. On moving to set aside or vary the judgment on a report of a referee, some evidence of what took place at the trial must be Eroduccd (Sliihhn v. lioyle, 2 (}. li. D. 1*24). An oliicial referee as no power to order judgment to be entered (Luikjiiuw V. Eiust, 3 C. P. L). 1-42). In a case involving critical knowledge of pictures the Court of Appeal refused to send the case for trial before a special referee, as the fortune and character of the defendant were involved, and he was entitled to have the matter ASHKflHORH— RRFKIIKRS. 47 Bee. 47 Nllll-N 'J Roc. 48, II nijlit to 111. U.sr 0! (Jl'OWllI lourt ot Divi- inattci ■ jc ot ;i Otlirl )t' siieli ( 'oiirt. \>y tlu' c. r)0 A-2.) eport ol must be referee oinjtiuiv owletlge case for of the e matter trittl in a imblic Court (A.r»//A v. Urooh, 5 f 'h. I). TiU'i). Ah n rule tliat Court iH (UHiiieliiK'd to interfero with tlie «!X( reine of ii (lii4entii>n (Snxhif v. filimlr Wnin/im (Jo., VV. N. IHHO, -2H). I'2) Tlif llij,''' <'<»ift, or any DiviHioiml Court or .lii(li,'ti us ut'on'suid, or tlio ( !oiiit of A|»|tfiil, iiiiiy ul.so, in any Hiirli niiiHd or mutter uh iitoresuid in wliioli it may think it expedient ho to do, call in the aid of one or more aHS(y the (!oMrt. (Sc.i; tind. A(;t of IST.'J, 8. 50, micond part ; ii. O. Cliy., No. 5 1 1.) iK In any cause or matter (otlutr than a erlminul !''""<''" , iiroceedniL,' oy the V'rown) hetore the sani lli;;n Court, i„.r,,ri- i\) ill which all parties interested who are under no d is- '''■''''■'''''' iihility consent thereto, and also ('J) without such eons(uit ia uiiv H'H'li cause or matt«!r recpn'j'inj^ any |>rolonj,'ed cxaaiination of documents or accounts, or any scdciidillc or local investi<,'ation which cannot, in the o|)inion of the Coiu't or a .lud;.;e convoniently Ik) made l)((fore a jury, or coiulucted l>y tlu! ("ourfc or Judj^e dircn-tly, — tlu! (Joui't or ;i.)u(l.;,'e may at any time, on sui'li terms as may he thought jiroper, order any (piestion or issue of fact, oi- any tpiestioii of account arising; in the cause or njattt^r, to he tricid either lici'ore a .ludn(! of a County (-ouj't, or hefore an oHicial rcfcn'(\ or (if the parties so a^ree) hefoi-e a spi.-cial referee. (Sec Jnd. Act of 1873, s. 57, first part.) i'l) All such trials bofon* referees shall be C(mducted in such manner lis nmy be prescribed by Rules of Court, and subji^ct thereto in such manncii- as tlu! Court or Judge ordering the same shall tlirect. (Jud. Act of liS73, s, 57, second part.) Scetioas 47 and 48 are taken in substance from the Iiii]». Act (if 187.M, ss. 5(5 and 51. Tlie variations arc as follows : — liy see. ilG of the English Act the reference is to any oliieial or special referee, instead of being as in the Ontario Act to a Judge of the County (Jourt or to an otheial Referee or to any other person agreed on by the parties ; with respect t(j ni;itters emhraeed in sub-a. 2 the words " or any Divisional Coiu't or Judge aforesaid '' are not in tho Knglish Act ; and instead of the oxpiessiou "the Court or Judge directly," the EngHsh section 57 has the words "tl>,e Court through its other ordmary oliicers." The English Act does not provide for a reference to or trial before a County Court Judge. Equitable jurisdiction being giving to all the Divisions of the High Court, these sections are intended to give to the Queen's i ;[ ^^^ «!* ONVWMO iriMt vr\ iiv \\'\\ |M,'»| )\,\n»n.>4,.,| )\\ t|\,> \\\(\\t ,\| ('|\r»ni'my, 'Hill ni'i'i'MMiM V Itt (•I'tliiiii .mHo\ U (i(v>>i\ <^V t<^ !»(<\ i*« n.<( tlH'»l, littf tt>'»v tin th> ^^\\^>MM- iMH<'<*\ tlu> i\\^\ 1*1 >\\\\ \\\\t>\\\\^\\ i>» i-imiii 111 lid'l. Ill i^xx v)»l<'">*<>^'\ <»( ^r>'^*i|\t(vMUl (> |>liOi*nni'i| ii\'>tiiill:»(i>ii» ot >^o<'M»>'o»>f >> <»v rtoi'<^\u\t'«, i>>' rt «r\.>n(iiu' o» lixvd (t>\ i"n \\h>\'Vi os»*.<»>^t I'lMWx'Uto^ytly l^> \\\,»il»> h.li\».« i» \\\\\ i» i'imilni(,',| Uv fW tNMUi \i»xA\ ^\\\^^^y{\\ ri>o KwuUxl* Vi'l, Mu ((ii'Uli.tHiM «M^^\N^\i«." rt* U\ ;» \>'i\'\yt i'l»!r,()i\> u) i rtcVtci' nl H\i' I'miil ol rh-y^yx-ovv M\ ('"mjjIau.) ^1>^^'l^-^h•l•>^ \s\A oivciil *<\ l>i' »»»:\ilii to ri M.'^v, f\\\A \\vAVi'\>«>U\i'ti->l ^y rt< '\\\\\ \ 'II^Ania>» hrtU. '«,',! Ill tlii-i Tii'viiir. \ f«\\ <"'V\^Un:\t\,\« ,»( fl^ii olViS't 111 lIl.'Xi- 'lOi'lliill'i vmII In- luililil Aiwvr M 4*^, ''* ^'l < i>r ;> >>'riM\M»i'i' liV iM (n!>l I'V li'liMtUVt .^I^J"^^;; '^^, •'""SU\» W this .\0i'lH vh.^^i hmJ ,m' *h, 0>Mn<. !\\\<\ shM h;»\> M\(i>U iunl\ov\(y loi (lii> j»>U' Ix^lt-'S vxf l\xuv;, l^^^^^l^1l^•^ \o surh Ivuliv*) l>y (lii'l'oinl .xf >UV\ ^Vl'tMNN^ \<)>vM> rt\y\ iJWiVsHiMV of <*(>!>( Of l»l\V MMi'll ( I'illl T>0, ^\\i\\ XX^SJVVt <0 iUl S»tol\ J(»>\iNV>iUugM l»or» n>fiMXH\H inn.i tv'i thoiv ^^^|vM•<^s tlu' OxMUt or .'uilni' h\\:\\\ h-.wo, in !«Nvvsvii»,»rs ;^,l,^'ition to Axw v>1hor i>o\\o or (l\o liKo nowors *iv jjiwu to rtuy ro\u( \vl>oso jntisiliotion is hi>ni Hijji* »\M\vt \mi\mx> ju'lutrnforn iiuii Jna. Aot of ls:S. s >;> . KV. S O . o. ^0. s.s lS'>l>'J7). \V>,i)o tho!60 »>lait.5on.^l ui.vU^s of wfoi'-Mivv' ;»iv piov i.loil. Www IS nothmj: va iho Aot ov IJnlos to tsiko ,o> o th>> powor ol' oi>iu )■>«ls^^^^• rofcrvn.v to ,■» MasTw inuior tl\>' oUl {n.utioo ^So^> ( Vntii' .•*V,7»i-v. F;<\ytif>c .S\iv>,.< (\vv;Ai^ii. I 0. r. l>. VY>0). An »«-*rki mHst K- jfot *suio \n the division of whioli it is a rule s^*H .V TV 31, In 4 ho oflivV of ovorv IVputv Kivistiijranil PtMmtv T**o Rup*- V • ' • . • .' • 'Oerk i,M"tho Crown such seal shall Vo usoil :u> tho Lion Ml It ni\t'lli'( lilM.li'M n|r niiuii' 4il IlliUMllI 'li'M'IMitl mIiiiII (Vlitll lilMI' In llllio llill'i.!, VV ll idl n^ti> iiii|iri'MMi'tl nil i>\ !•( V \vi il mill III lid iImi'iimh'IiI j ii(iiiiif hM.llllMl (Mil lir Ht' IHimI ill MII'll llllliK ; mill nil MItoll Wlil'l ''•"•I'""' ((III I ilni'iiHiiiil't, mill nil i><iii|ililliMil iniiM mill ciiiiImi IIimi- I lie < '|MY»II 111, |llll I'l'l I I 1)11 III III' IIIMlll'll willl llli- M'lll III IIIIV MIK'll tr|ii|t\ lli'!',i''lli'l "• I'l'jinlv < 'ti'l I; III lllf < 'inwli, lilnill III, ,,|| 11,11 I M 111 I llill I'llM illl'M III' I I 'I 'I'M I'll ill IM illl'lH'f wil li ■ ■ill liiilliit |m'iir IIh'ii'mI (iSV.'.linl A il nl I ''/.'l, m O I ; It M (» I' ( . " I'll Till' ImiI'Ii'iIi Wi'i'limt imIi'IU'iI In |i|iniili"i fni l||i< niihi nf llio hlinllli'l IIi'I'ImIiIi'M, I'llili'I'i Hull; filli'll mi'IiIm mIiiiII III. ii'iiil ill I'V'IV IHlh'll li'lSi'^ll \ "'' 'I"' I'l'lil I 'llillli'i'lliil IIIMV iIIH'I, 'Mill (liiiliiiiio ||l\i' M.tllH' |ililV IsiilllM l«,M nllllvt' Willi lili'H'lli'l' III 11(1' Hill' m( il. iiimI ||,l ||4 I'IIitI III l'\ illl'lll'l' X'i Miivo nil li\ lliin \i-l III liy Miiv i iiIi-m ul I lii< < 'mil I. I'"i'"ii itii'i\ l III lii'i vviMi> jiiiiv iili'il. nil I'liiiii'i mill tni'l limlii (iiM,.,|p| (■M I|I1VIII|I 'it !|li':ui\ ^I'l HIMV III') III |l|iii'l"|l||i« wllii'll III llin I'lilllllH'lH'l' •" lilt Jill hui'iii I lii'i \ rl \\ I'l i> ill Imi I'M ill nil V II vl ii<>ii' |iii I'll lii'liiili JM li\' lliin Ai>l> \'i<'ili>il ill I III' iiiiiil M if/li will !!• (ml. r I III' I mil I'l ll|l',linl«(«Mt/ '/Villi llll'i ^> 1 1„ ((mi.« [Coiirl niiili'i III iiv \illili' III' IIIIV liiw, (/I'lU'inl imli'i, iii"f<'.iiil hull' u iiiiliiii'V I'l . I'liil wliiili nil' Mill iiii'iiii'ii'ili'iil. Willi lllir^ \rl III vvil It mi V nili' t III I 'mil I liiu v I'mil'liiiH' III II luHi'il mill |iniil I'li'il ill lliKnnnl llittli I'miil. nl' .1 umI ire, in IwH'li mill iIk' liKo I'liMi'i, mill I'ni hiH'Ii nml llm lihi' |iiii limci, ill lllii'ti' III wllirll lIli'V WnllM |in\i> lii'i'li ii |)|iliril,lil iill llli< li"i|ii'i'l ivi' I'niill't III' wllii'll llli' jlll IMilirl.lnli IM nil M'sli'il, il lliin Ai'l linil iinl jinn'ii'il ( iS'fc .1 ml. Ail. nl' IS/;i, H ;:i ; .Iml Arl. nl' |H.'/ti. n ",| ) I'lii'i Hi'i'linli in lulti'll hiiIinI iiliLliilly rimii iiii|i Ail. iiT lM7r>, |h '.'I, wllii'll ilMi'M Mil' wiilil " I.I iiliftli'i li'il " iimliiiil "I " vi'hIi'iI 'I'li.il iii'i'limi Willi iiiilinliliili'il Im Mi'i'lnni V'l m liii|i Arl. nl IK'/.'!, III.'! il I'l'li'i'.t III llii< ('mill. Ill' A|i|H>iil iw will Mil Ilii' lli|(li (iiiitl.. lit>l.l''.H H ul' ('mill, ill llin Mi-limlilln In llli)! AitUlnl'")"' sIimII i'iiiiii> itiln n|iortilinii nl. Ilii> I'liiiiiiii'iii-ciiii'iil. nl' lli Ai'l, mill iiH In nil iiiiiMi'in In wIihIi IJk'V ex IiihI r.lmll I tlii'ili'i'liiilli fi'miluln llin |.lnl•l>l'llill^^'l in Ilin 1 1 ij^li (Jniid, lot .liislii'iv I 111, Hiirli h'lilcn nl' < 'mill nml n Inn nil j'.mli utlii'i' Kiili','^ nr(!miil. (il" imy) nn inny Im miuln nlLfw lthi> im.s.siii!; inul lii'lurn llio cmiiiiiniifiMnniit, of l.lii.'i Ai'l., [uiuliT till' im*.lioi"il._v nl" lli;* imxl. Mci'l.inii, iiniy Ik; (iiiii'ilifil lur alliTi'il liy llio iinllinril.v liy wliiirli imw i.'.iili'.'-i nf (Jnnrl, a nilo j^BiHuy lio niiiilo tit'Uu' tint (MiiiiiiicucoiamiL of l.iiiH Acl. (>Sf:e [Jiul. A- tot' 1875, H. 1(5.) Saiuo .18 tlu! KngliHh Boction rofcrrud fco, 4 • iipiiii,. 60 ONTARIO JUDICATURE ACT, 1881. Sec. 54. ^4. At any tiiuo after the passing and before the wii.» may cominencemeiit of tins Act, the Chief Justice of Ontiuio. make links, tlu' Justicc^s of Appeal, the Chief Justice of the Queens Bench, the Chancfdlor, ami the Chief Justice of tlu. Common Pleas, or any five of them, and the o1 her J U(li;ps of the several Courts intended to he united -ind consoli dated by this Act, or a majority of such other Ju(l of them, and the other Judges or the majority of the other j Judges, of the consolidated Courts ; also that the rules so iiiaiif j and all others should (like other rules) be laid before Parliameiit With these dilforences the English section corresponds with tlit above, including (a) and (b). (c) For the hearing of appeals from County Courts, or a Judge of a County Court, from Surrogate Courts. Stipendiary Magistrates, or Division Courts, by aiiv j two or more of the Judges of the Supreme Court,! instead of the same being heard by the Court oil Appeal, or a Judge thereof (as the case may be); and for i-egulating tho selection of the Judges of the j Supreme Court, who shall hear such appeals, ami J for regulating all matters relating to the practice onj such appeals. (R. S. O. c. 38, s. 19; 41 Vic. e. !!,j B. 3 ; 42 Vic. c. 19, ss. 16, 17 ; 43 Vic. c. 8, s. 21 and, This aub-aection is not in the English Act. . (ci) Generally, for regulating any matters relating to tbi practice and procedure of the said Courts respectively, j RULES OF COURT. 61 or to the duties of the officers thereof or of the said Sec. 84. Supreme Court, or to the costs of proceedings ^>i1.-hs. ^^- thoreiu ; («) tiud every other matter deemed expt^dient for the better attaining the ends of justice, advancing the remedies of suitoi'S, and carrying into effect the provisions of this A.ct and of all other Acts now or h(!reafter in force respecting the said Courts. ( iSee Jud. Act of 1875, s. 17; R. S. 0. c. 49, s. 45, sub-s. 7.) (a) What follows this i ■! not i 1 1 the English Act, and is taken from n. 8. O. c. 4U, s. 4r>, r. (■2) The said .iu.igcs shall have pow^er, subject to the approval of the Lieut(Miant-Govcrnor in Council, to make rules from tiint^ to time logulating all fees payable in stamps. (3) From and after the conimonccment of this Act, the said Supreme Court may at any time, with t !i(3 con- currence of a mainvi*:y of the Judges thereof pi-esent at any meeting f f-ii;> purpose held, alter and annul any Rules of Coui* 1« r the time being in force, and have and exercise the same power of making Rules of Court as is by this section vested in the existing Judges before the commencement of this Act. This sub-section provides for rules to l)e made after the Act goes into operation, and correspond with the provision for tiie sarnn puri)ose in the Imperial Act of 1873, s. 17, except tliat tlie lattor rc(iuired that the Loril Chancellor should be one of the majitrity. (4) All Rules of Court made in pursuance of this section, if made before the commencement of this Act, shall from and after the commencement of this Act, and if made aftei- the commencement of this Act shall from and after they come into o])eration, regulate all matters to which they extend, until annulled or altered in pursuance of this section. (See Jud. Act of 1875, s. 17) ; This sub-section is 'lentical with the English enactment. (5) Subject to any Rules of Court which may be made under the ju-ecediug provisions of this section the Judges of the Court of Appeal shall continue nfter the commencement of this Act to have all the powers which they now })0ssess as to making Rules ot Court for the regulation of the practice in appeals ; and the Judges of the Pligh Court shall as regards 52 ONTARIO JUDICATURE ACT, 1861. Ilflil Sec. 54, matters in the said High Court have in like maiuipr 3ub-8.s. G, 7.. all the powers which the Judges of the Court of Chancery and of the Superior Courts of Law have respe^^tively for the regulation of the practice of the said Courts. (See R. H. 0. c. 38, s. 56 ; c. 49, s. 45); What these powers are will be found in the sections of the Revised Statutes referred to. (6) Where any provisions in respect of the practice or procedure of any Courts, the jurisdicti'". af which is vested by this Act in the High Court of Justice, are contained in any Statute, Rules of Court may be made for modifying such provisions to any extent that may be deemed necessary for adapting the same to the High Court of Justice, unless, in the case of any Act hereafter passed, this power shall be expressly exdii ded with respect to such Act or any provision thereof. {See Jud. Act of 1875, s. 24). Taken from the L'uglish section referred to, which includes the new Court of Appeal as well as tl i High Court, and in thai respect was not required here. (7) Any provisions relatipg to the paymeiit, transfer, or deposit into, or in, or out of any Court of any money or property, or to the dealing therewith, shall, for the purposes of this section, be deemed to be provisions relating to practice ar.c' procedure. {Se Jud. Act of 1875, s. 24). Taken from the English section referred to. (lovpinor in 55. The Lieutenant-Governor in Council may fi-oni autiwriz"*'^^ time to time authorize the following persons, viz. : the .pertain Chief Justice of Ontario, the Chief Justice of the Queens 1 •J H(l"GS to *> ria make Rules. Bench, the Chancellor, and the Chief Justice of the Com- mon Pleas, to make Rules of Coiirt under this Act ; every such appointment to continue for such time as shall be specified by Order in Council, and the Judges so appointed, or any three of them, may make such Rules, and the same shall have the same effect as if made by all the Judges of the Supreme Court, under the preceding section. (See Jud. Act of 1876, a. 17, latter part). By the Act of 1876, section 17, authority to make Rules of j Court, whether made under the Act of 1875 or the Act of 1870. was given to any three or more of the following persons, of whom ! the Lord Chancellor must be one : the Lord Chancellor, the I Lord Chief Justice of Englanti, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, he Lord Chief Baron | of the Exchequer, and four other Judges of the Supreme Court, If COUNCIL OF JUDGES. 5:^ to be from time to time appointed for the purpose by the Lord SeCBi,5, 56. Chancellor in writing under his hand. The Rules so made are to be laid before Parliament within forty days after they are made if Parliament is then sitting ; or if not, within forty days of the commencement of the then next ensuing session. The object of thi.s provision was to assign the duty to a less numerous body (nine) than all the Judgus of the Supreme Court. In Ontario the Supreme Court consists of thirteen Judges The present Act gives tlie power to the Supreme Court, as was done in the Act of 1873 ; and the possible case of the number making at any time united action difficult or impossible, is provided for by the 55th section, giving the LieuteTumt-tiovernor in Council authority to api)oint for the like duty the four Chiefs of the Courts, or any three of them. The result of sections 54 and 55 in the present Act is, that after the Act goes into operation the power of making rules is as follows : (I.) Uules may be made by the Supreme Court for governing its several divisions (sub-s. 2). {'2. ) Subject to any such rules of the Supreme Court, the Judges of the Court of Appeal may make rules for that Court, and the Judges of the High Court may make rules for the High Court, (The Enghsh Acts do not give any such power to the Judges of the High Court. The Act of 1870, s. 15, gives power to the Presiidunt of the Court of Appeal, with the 'concurrence of the ordinary Judges of the Court of Appeal, or any three of them, to make rules as to the Court of Appeal. ) (.3.) The Lieutenant-Governor may authorize the three Chief Justices and the Chancellor to make rules ; and rules so made are to have the same eflfect as if made by all the Judges of the Supreme Court. 56. A Council of the Judges of the said Supi-eme council or Court, of which due ijotice shall be given to all tlie said i^'^a^i^l" Judges, shall assemble once at least in every year, on procedure such day or days as shall be fixed by the Lieutenant- Istration'of Governor, for the purpose of considering the operation of •^"•ticf. this Act and of the Rules of Court for the time being in force, and also the working of the several offices and the arrangements relative to the duties of the officers of the said Courts respectively, and of enquiring and examining into any defects which may appear to exist in tl»e system of procedure or the administration of the law in the said High Court of Justice or the said Court of Appeal, or any other Court or by any other autliority ; and they shall report annually to tlie Lieutenant-Governor what (if any) amondments or alterations it would in their judgment be expedient to make in this Act, or otherwise relating to tlie administration of justice, and what other provision (if any) which cannot be carried into effect without legis- lative authority it would be expedient to make for the better administration of justice. An Extraordinary 54 ONTARIO JUniCATUKi-: ACT, 1881. i;: If: m Sec8.56,57. Council of tlio said Judges may also at any time bo con- voniul by tlio Lioutonant-Governor. {See Jud. Act of 187.-?, s. 75.) This section correa|)on(l8 witli the Imp. cnivctmcnt, except that, insteiul of tlio liiuutenaiit-(!overiior lixing tin; diiy fur the iiuiiual asseinl)ling of the Couneil, tliat oHice ia to bo jK-rforineil by the OhaiuH'llor with tlio conciirrenoe of tho Lont (!liiof .luaticc of Engliiiul ; that, inatoail of tho icijiort being to tho liicuttiiiiint- (Tovonior, the report is iiuule to one of I lor Majeaty's principal Secretaries of State ; and that, instead of an extraordiuan' Council being convened by the liieuti:nant-(!overnor or the ( hief Justice of Ontario, such Council ia to bo convened In ]'>i!<;lau(i by the Ijord (Mianoellor. In the edition of the Judicature Acta by Mr. Charley, ISt.P., p. r2!(, it is said of this section that, "it ia calculated to product the most benodcial etl'ecta, by breaking down tho barrier of pre- judice which still subsists, it is to be feared, between tho sayts of E([uity and of tho C!omnion baw. Viewed in the light of this section the Supreme ('ourt is a dcliberaiive assembly." In another text-book it is said that "".ho Judges arc constituted;! standing commission on law and justice " (Ijcly & Foulkes, p. 57). iSI. All statutes relatiui,' to the several Courts con- solidated by this Act, aud the J I'dges thereof, or wluu'oiii any of such Courts or .1 uilsjres ai'O mentioned or referred Statuttjs ri'latiiig to fxistilig Courts t'< ipiiiyiii!^' to to, shall be construed and take elfeet, so far as relato.ito umiliMiiis ^i^y thing done or to be done after the conunencement of Act. this Act, as if the said High Court of Justice, an(l the Judges thereof, as the case may be, had been named therein instead of such Courts, so consolidated as afore said, or the J udges thereof ; and in all oases not hereby expressly provided for in which, under any such Stiitute, the concurrence or tlie advice or constMit of the Judi'e or any Judges, or of any number of tho Judges, of any one or more of tho Courts so consolidated is made noa^ssary to the exercise of any {X)\ver or authority ca|)ablo of being exercised after the oommoncement of this Act, such power or authority may be exercised bv and with the concurrence, advice, or consent of the same or a like number of Judges of tho said High Court of Justice; and any general or other commis.siou by virtue whereof any Judges of any of the Coiu'ts so consolidated may, at tho commencement of this Act, be empoweretl to try, hear, or detormine any causes or mattei-s civil or criminal. sh;dl remain and lie in fvdl foi'ce and effect, unless ami until they shall respectively bo in due course of law revoked *,* altered. {See Jud. Act of 1873, s. 7f^). Taken in effect from tlie lihighsh Act, omitting the reference therein to the newly created Court of Appeal. OFFICERS AND OFFICES. nn PART V. OFFICKRS AND OKFIOHS. i»H. !*>ul))oct to orders of the Lioutonaut-Govornor in 8ec8.68,59. iCouiicil, all otUcors, savo as lion^iiiaftcir iiK'iitioiUMl, wlio ()iii,.,,rs or ■it till' tiiiuiof tlio coininotic(MU(Mit oi tliis Act shall ho ';,'<''*H"*^'. , It,!. ii»' V. ("oiirts I" I"' i iiitiicluHl to the Court of (Jhauoory shall ho attaclunl to uUiu'licM tn the (Ihaiu-ory DivisuJii of tho said High Court ; juid all [Ivf/uvr*'' (Mlicors who at tho time of tins cominouceinout of tliis wi""^ "f tiio Ai't ;sli;ill ht! attacluul to tho Coui't of (^u(um's I»ciu;h shall cvur't."" he attijcliod to tho Queen's Ik'uch Division of tin; sahl lliifli (.'ourt ; and all olUcers who ;it ilio time of the com- iiitMU'tMuont of this Act shall he attach(Hl to the Court of ("oiaiuon PUias shall he attaclusd to tin? Common Pleas Division of th(! said High Court. (Comj). K. Sup. C 1,S7.'), Order (50,11. 1). (2) Suhject as afor(!said, the above provision shall not a[)i»ly to the Master in Ordinary or local Masters of the Court of Chancery, or to the taxing olHcers, and all these officers shall he offic(!rs of the Supreme Court and attaclied tliereto. (3) All officers .sliall hold their offices l)y tho same tenure, auil u[»on the same conditions as to scicuiity and otherwise, as if this Act had not passed. («S'ce Jud. Act of 1879, s. 23). (4) Where a douht exists as to the po.sition under this Act of any existing officer attached to any Court or Judge iirt'ccted by this Act, such doubt may be determined by Rule of Court. The Lieutv or un(l(!r (his Act arc or sliall ho yivcn lotiicin or any of tlicni) th(^ same judicial and other powers in respect of l)usiiiess in each and ovctry of tlu! Divisions of tli(( .said ilitfh Court as they hav<' now in respect of the laisinc.ss of the ( V)urt to which they arc attached; and tiie orders and decisions of the said oHicei's shall bo suh- jcct to aj)peal as hei'iitofore. (See II. S. O. c. .'}!), ss. '•2'.)-:V2 ; c. 40, ss. S, \), 10, L>S, 21); c. f){), s. ISi), ct so/. : c. 110. .s. L';?; Uej;.-Gen. of Kel.'y, 1 S70. 21) Q. 15. U. ('. (i2:)! (.'. (). Chv.. Nos. 11, If), :{'4-;58, 107, 211-2r).j. lOf). r);u-r);u, r.()0-r)'_'(>, ()27, (i.S.S, (VM\, iVM. (XL'u Index, iioat). 'J'he Chy. Act ])rovided for the appointment of an Aceoimtaut, with sucdi duties as the Court should from time to time direct (R. S. O. c. 40, s. 8). ((') T!ie Inspector of Titles and Referee of Titles arc ofTicers appointed for the purposes of the Quieting Titles Act, R. S. <). c. 110. The Chancery orders relxting to them are numbered from 4!I5 to ol.'b (./") The statutory provisions as to the Local Masters of the Court of Chancery "are R. .S. O. c. 40, ss. 11 and 14. The orders resoeotiug them are IS'os. 34-36. (;/) By the 4'20th Rule poM,, a new officer ia created, to l)e called Mast rr in the .l/(/.sYf' ;• (■/( Vhtiinhrrs, who is to have tlie jurisdiction hereto-^'"""'"'''*- fore lieiouging to two of the officers named in this section, namely, the Clerk of the Crown an(', Pleas of the Court of Queen's Hench aiul the Keferee in Chambers, with certaiu exceptions mentioned in the llules. (//) Clerk of the Croivii and Pleas of the Queen's Bench. By K. S. 0. 0. 39 (The Superior Courts of Law Act), s. 29, Clerk, (following 33 Vic. c. 11, s. f), and 37 Vic. c. 7, s. 47 (Out.),] " a p[,?"^" ©"'{^ majority of all the Judges of the said Superior Courts of Law, ''^' wiiieh inajority shall include the two Chief Justices, or one of the Chief Justices and the senior of the Puisne J udges, of the said Courts, may from time to time make and publish General Rules for the following purposes, that is to say : 58 ONTARIO JUDICATURE ACT, 1881. Sec. 62. I^ii m m ill " (n) For empowering the Clerk of the Crown anear to the aaid Clerk of the Crown to l)e pro[H;r for the decision of a Judye. the ( Jlerk ^mav refer tlie same to a Judge, and tlus Judge may either dispose (if the matter or refer the same back to the Clerk with such directions as he may think fit." («■) Referee in Chambers. R S. O. c. 40 [consolidating 34 Vic. c. 10, s, 2 ; 37 Vic. c. 7, Refi-rec in i H. 4S ; -U) Vic. c. 7, Schedule A. (41),], "the Chancery Act," has Clmmbers. tin; following prov-isiou : '••28. The said ('ourt may make and publish General Orders for the following purposes : "(1) For empowering the referee in Chambers to do any such tiling, and to transact any sucli business, and to exorcise any I such authority and jurisdiction in resjjcct of the same aa, by virtue of any Statute or custom or by the practice of the said I Couit, is now or may hereafter l>e done, transacted or exercised I by ii Judge of the said Court sitting in Chambers, and as may be 1 specified in any such order, except in matters relating to — "(rt) Grauting writs of Habeas Cor^jus and adjudicating upon the return thereof ; "(/() Appeals and applications in the nature of "appeals ; "{(•) Proceedings under the sixty-first to the sixty-fifth sections, I inclusive of this Act ; "('/) Applications for writs of arrest ; "((') Applications for advice under the Trustee Acts ; "(/') Matters affecting the custody of children ; and "((/) Proceedings under the eighty-fifth section of this Act ; " Hut in case all the Judges of the Court are absent from the City of Toronto, or there is no Judge sitting in Chambers upon I the day on which any motion in respect to any of such expected : matters is returnable, the referee may adjourn such motion upon ; such terms as he may consider proper ; "(2) For conferring upon any of the Local Masters of the Court j all or any of the jwwers which the said Court is hereinbefore I authorized to confer upon the said referee in Chambers, and to I make such regidations as to filing and keeping records, and the transmission of the same, or of copies thereof, to an officer of the ! Court at Toronto, as to the Court may seem expedient." The Chamber business of the Court of Chancerj' was at thi* time regulated by the 197th of the ConsoUdated Orders, which 1 was as follows : "197. The following business shall be disposed of in Chambers, together with such other matters as the Court from time to time I thinks may be more conveniently disposed of then than in full Court, viz. : "1. For the sale of the estates of infants, under the Consoli- dated Statutes of Upper Canada, chapter 12, s. 50 ; "2. As to the guardianship, maintenance, and advancement of infants ; t>. .•^%> IMAGE EVALUATION TEST TARGET (MT-3) tf 4 fA 1.0 I.I 1.25 !f IM IIIIIM 1^ IlilM m U 11.6 Photographic Sdences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 9) r >^ f>(i ONTARIO JUDICATURE ACT, 1881. Sec. 62. UofiTt'i' in t'baiiilM'i's. ■1^-^ IIP fl:). \^§ "3. For the administration of estates upon motion, without bill ; "4. For time to answer or demur ; "5. For leave to amend bills ; "(). For changing the venue ; "7. To postpone the examination of witnesses, or to allow the production of further evidence ; "8. For the production of documents ; "9. Relating to the'conduct of suits or matters ; " 10. As to matters connected with the management of property; "11. For the payment into Court of moneys, by parties de- siring on their own behalf to pay in the same." The powers wh.ch, under the authority of this Act, were con- ferred upon the R«jferee in Chambers, appear from Chancery Order No. 5G0, w'^ieh is as follows : "The Referee . Chambers is hereby empowered to do any such thing, and to transact any such business, and to exercise any such authority jvt ^ jurisdiction in respect of the same, as, by virtue of any sta* ; • custom or by the practice of the said Court, 13 now done .. - ? \,asacted by a Judge of the Court sit- ting in Chambers e> \>t -he matters following : "1. (i.'-anting VVriis o* Habeas Corpus, and adjudicating upon the return thereto ; " 2. Appeals and applications in the nature of Appeals ; "3. Proceedings as to Lunatics under the Consolidated Statutes of Upper Canada, chapter 12, section 33, and the 28th Victoria, chapter 17, sections 5 to 11, inclusive ; " 4. Applications for Writs of Arrest ; "5. Petitions for advice under the Property and Trusts Act, 29th Victoria, chapter 28, section 31 : " 6. Ap])lications as to the custody of Infants, under the Con- solidated Statutes of Upper Canada, chapter 74, section 8 ; " 7. Applications as to Leases and Sales of settled estates ; to enable minors, with the approbation of the Court, to make bind- ing settlements of their real and personal estate on marriage ; and in regard to questions submitted for the opinion of the C(turt in the form of special cases on the part of such persons as may by themselves, their eoramittees, or guardians, or otherwise, concur therein, under the 28th Vi';toria, chapter 17, section I ; * ' 8. Opposed applications for Administration Orders ; "9. Opposed applications respecting the Guardianship of the person ana property of Infants ; "10. Ex parte Injunctions ; "11. Proceedings as to partition and sale of real estate under the Ontario Statute 32nd and 33rd Victoria, chapter 33 ; " 12. Application for leave to appeal or re-hear after the time limited for that purpose has elapsed. " On 26th June, 1873, the following general orders were made affecting the Referee in Chambers : — " 625. From and after the twenty-sixth day of June the Referee in Chambers shall discharge all the duties which by any ACCOUNTANT — OFFICIAL REFEREES. 61 statute or by the general ordere of the Court have been required geei. 62-3. to bti discharged and performed by the Accountant. R6ferf*e iu "626. All General Orders of the Court in which the word chambcre. •Accountant' occurs shall be read and construed as if the words ' Referee in Chambers ' were substituted therein for the word ' Accountant. ' " "633. The duties of the Accountant being by the foregoing order, No. 625, to be hereinafter discharged by the Referee in Chambers, and it not being practicable that he should also dis- cbarge the duties of Referee and Inspector under the Act entitled "An Act for Quieting Titles to Real Estate in Upper Canada," the Registrar is, until further order, to be the sole Inspector of Titles in respect of future petitions filed under the said Act, and sole Referee of any petitions, the proceedings under which are to be conducted in Toronto." (d) The Consolidated Orders as to Accountant were these : — " 14. The Accountant is to take and dispose of such references Accountant of account and other matters as shall from time to time be made to him by any order. " 15. The Accountant is, in regard to matters referred to him, to have the same powers as the Master-in-Ordinary to issue warrants, make appointments, and settle and sign reports and certilicates, and is to have all other powers and privileges of the Master, except taxation of costs ; and the reports, certificates, and other acts o' the Accountant, are to have the same eCFect, and be subject to the same orders and rules, as those of the Master." These two Orders were abrogated by the 559th Order, 23rd Feb. , 1871. But on the 3rd, March 1871, they were restored by Order .•198, which was as follows : "508. It being found that inconvenience to suitors is likely to result from the present abrogation of Consolidated Orders 14 and 15, in regard to the Accountant, those orders are hereby restored until further order. The fees formerly payable to the "Accountant under the 16th Consolidated Order, are hencefor- ward to be paid in law stamps " On 26th June, 1876, there being no separate officer called an Accountant, the duties were assigned to the Referee in Chambers by Chancery Order 625, already mentioned. By Rule 479 post, tlie Registrar is interim Accountant. 63. Subject as aforesaid, the Judges of the County Official Courts and the officera specially named in the last pre- ^ *"*"*' ceding section, shall be official referees for the trial of such questions as shall be directed to be tried by such referees. {See Jud. Act of 1873, ss, 57, 83; R. Sup. C June 1876, R. U-16 : R. S, O. c. 50, s. 189.) (2) In case the business is found to require other or ad- ditional official referees, and the Presidents of the said Divisions so certify, the Lieutenant-Governor from time to time may appoint other and additional official referrees accordingly. {See Jud. Act of 1873, 8. 83.) ''r II ^ 62 ONTARIO JUDICATURE ACT, 1881. if Seoi.6S-64. (3) In the case of officers who are paid by salary, the fees on any reference or trial shall be paid in stamps, other referees shall be paid by fees. Thin section does not correspond with the provisions of the Eng- lish Act as to official referees. The English Act ap^iears to have cuutemplated an immediate appointment of a new set of officers as "official referees," which has not been thought necessary for the present here ; the authority of official referees being given t(i the County Court Judges, Masters in Chancery, Local Masters and other officers specially named in section 62 of the present Act, and the apimintment of others l)eing deferred until the Presidents of the Divisions certify that otliers are necesiiary. i^pai Mas- 04. Tlu^re shall be a Local Master in every County or UeKistK^ Union of Counties other than the County of York, aiul and Deputy every Lo(!al Master hereafter api)ointed shall reside in the Crown, tho county to which ho is appointed. See sub-section (12), authorising the High Court, with the cou- currence of the Lieutenant-! lovernor in Council, to relieve present officers from the operation of this provision. No part of the G4th section is taken from the English Acts. (2) Where there is no Local Master at the commencp- ment of th s Act, or when a vacancy occurs in tho otKcc of LocjvI Master, the Judge of the County Court for the County shall be the Local Ma.ster until and unless another person is appointed Local Master. In such case if there are two County Judges— a Senior and Junior Judge — both Judges shall be Local Mastei-s until and unless one of theui or some other person is appointed sole Local Master. (3) Where a County Court Judge is the Local Master. the County Court Clerk shall be tho Deputy Registrar. (4) The offices of Deputy Clerk of the Crown and Deputy Registifir (not Local Master) shall be consolidated as vacancies occur in (hither ; unless where th(! Presi- dents of the Divisions of the High Court or a majority recommend otherwise. (5) Where a reference is made to a Deputy Clerk of the Crown, or an examination is taken by him, he sliall bo entitled to take and receive to his own use the fees on such reference or examimition. {See R. S 0. c. 50 8- 189 et seq. ; ante s. 43 et seq.) (6) The Lieutenant-Governor in Council may commute the fees of a Local Master, or of a Local Master and LOCAL OFFICERS. 68 Deputy Registrar, including his fees as an official See. 64, referee, for a fixed annual sura, such suni not to ex- *"•'""* " " ceed the average income derived from fees for the preceding five years. (7) The Lieutenant-Governor in Council may commute the fees payable to a Deputy Clerk of the Crown on references and examinations antl other matters for a fixed annual sum, snch sum not to exceed the aver- age income derived from such fees during the pre- ceding five yeai"s. (8) Any annual sum so fixed as provided in the preceding two sub-sections shall continue until varied by Order in Council, but any order for payment of any such annual sum as aforesaid may be rescinded, and the amount of such sum may by Order in Council be in- creased or diminishoe) during the preceding five years, (9) The local masters, depiity registmi's, and local clerks shall hereafter, like other otHccn-s, be appointed by the Lieutenant-Governor, and shall hold office iluriiig the pleasure of the Lieutenant-Governor (10) Where a Local Miister or l)e|)uty Registrar, or Deputy Clerk of the Crown, or other officer, is paid by a salary, he shall not, save as hereinbefore ex- pressly provided, take for his own benefit, directly or indirectly, any fee or emolument, save the salary to which he may be entitled: but the like sums and fees heretofore payable on proceedings in his office shall continue to be payable ; and all such fees shall form part of the Consolidated Revenue Fund of this Province, and shall be payable in stamps, subject to the provisions of the Act respecting Ljiw Stamps. {See R- S. O. c. 40, s. 16.) (11) No local Matser whose gross income from his office of Local Msuster or of Deputy Registrar and Local Master, is $2,000 or upwards shall, during the con- tinuance of his appointment, directly or indirectly, practise in the profession of'the law as Counsel, At- torney or Solicitor, or as a Notary Public, or Con- veyancer, or do any manner of conveyancing, oi- prepare any papers or documents to be used in any •t 'I s '",' iilll 64 ONTARIO JUDICATURE ACT, 1881. ^11 i- ■ ':4 ; i i iij ";! l-n Seos.64,65. Court of this Province, under the penalty of forfej. ture of office, and the further penalty of $400, to be recovered by any person who sues for the same bv action in the High Court, and one-half of such pecuniary penalty shall belong to the party mu\n, and the other half to Her Majesty for the use of tlw province ; but nothing in this section shall prevent the Lieutenant-Governor in Council, or the High Court, from requiring a Local Master whose income does not amount to $2,000, to abstain from practising under the like penalties. {See R. S. O. c. 42, s. 5). The next sub-section enables present officers to be relieved from this provision. (12) The High Court may, with the concurrence of the Lieutenant-Governor, relieve any person now hold- ing; the office of Local Master and Deputy Registrar, or any other officer from the operation of the 1st and 11th of the preceding sub-sections or either of them. (13) Every stamp affixed to any matter or pr' jeding under the authority of the Revised Statute resi)ect- ing Law Stamps, shall be cancelled in such manner as the Lieutenant-Governor in Council may direct ; and in case the Lieutenant-Governor thinks tit to dispense therewith, it shall not be necessary for the officer who cancels the stamps to mark thereon, in ink, the date of the issue or receipt of the matter or proceeding to which the stamp is affixed. (See R. S. O. c. 21, s. 15). (14) Every officer paid by fees shall yearly, and on or before the 15th day of January in every year, trans- mit to the Treasurer of the Province a just, true and faithful account, to be verified upon oath, of the amount of fees paid or payable to him in respect of his office during the preceding year. (See R. S. O. c. 16,8. 37; 43 Vic. c. 3.) (15) The Lieutenant-Governor or the member of the Government having chai'ge of the matter may require the return to state any particulars, or to be made in any form, that may be thought proper, and such return shall be made accordingly. siirr.)gatc ^5. No Clerk or Registrar of the Surrogate Court Oourt Clerks shall for fee or rewai'd draw or advise upon any will or not to draw ^ther testamentary paper, or any paper or document con- ap^wuit a guardian ad lUvm for an infant, ihe person desiring such appointment sliall, upon an allegation c'^nt.iined in the jinvcijH' of the infancy of the person for whom such guardian is sought, be entitled to an order ex parte from the Clerk of Keconis and Writs, or, where the bill is filed or the proceedings are taiien outside of Toronto, from the Deputy-Registrar of the < "ouuty where such bill is filed or proceedings are had appoint- ing a guardian cut litem to such infant. "Gil. With the order appointing such guardian shall be 8er\'ed on the guardian one copy of the proceedings had up to the time of such appointment, or of such part thereof as may be necessary to enable the guardian to protect the interests of [ the infant to whom he has been appointed guardian. " 612. Any person aggrieved by such order may move before I a Judge in Chambers, on such material as he may think proper, tit discharge the same, whereupon such order as may be con- sidered most conducive to the interests of the infant shall be I made. In carrying out these orders a Solicitor was named by the M'ourtto be always appointed guardian ad litem, and service of iliie bill on him for an infant held good service. This practice jwas found to save costs and to be otherwise beneficial to infants, jand it has been retained by the Rules in the Schedule (see Rule 36). The ex parte order is to be unnecessary, and the ofBcial guar- Idian is to be served for the infant vrithont any order for that ipurpoge being taken out. The folloMring are the Rules (36 and 37), |on the subject : "36. Where the action is for the administration or partition of 1 estate in which an infant is interested, or where the action is 5 !*■;; '«.!. 66 ONTARIO JUDICATURE ACT, 1881. ^ li f^t Oimntinn. m lip See. 66- ^^^ <^"y purpose other than the recovery of money from an infant !iiil>gs. 2, 3. defen«lant personally, or of lands, goons or chattels of whicli he is personally in possession, service on the official guardian shall < >tfl(!iai \^ good service on the infant defendant if such infant defendant is resident in Ontario at the time of such service. "(a) If in such case there is more than one infant defendant, for whom service is to be made on the official guardian, one copy only need be so served. "{h) From the time of such service the official guardian shall become aud be the guardian ad litem of the infant, unloas and until the Court otherwise orders ; and it shall l)e his duty forth- with to attend actively to the interests of the infant in the uetiun, and for that purpose to communicate with all proper parties, including the father or guardian (if any) of the infant, and also the person with whom or under whose care the infant resides, Id case such person is not the infant's father or guardian ; and the guardian is to make such other enquiries and to take such other proceedings as the interests of the infant may require. "(c) Any person interested may move before a Judge in Chambers, on such material as he may think proper, for an order appointing a guardian other than the official guardian so served ; whereupon such order as may be considered most conducive U the interests of the infant shall be made, and a copy of the order shall forthwith be served on the official guardian. "37. Where an action is brought against an infant defendant, for the recovery of money from him personally or for the rocdvery of lands, goods or chattels of which he is personally in possesaiou. service shall be made on the infant personally, and one copy of the writ shall also be posted (prepaid) to, or delivered at the office of, the official guardian." (6) The official Guardian, besides acting as guardian ml litem of infants under Rules of Court and otlier orders, shall perform such other duties as a Divi- sional Court or Judge may from time to time direct. (2) The same costs as hitherto shall be paid to tlie guardian by any party ; and the same costs as hitherto shall be payable to the guardian out of funds in Court ; but all costs so paid to the Guar- dian by any party in respect of any business done after the commencement of this Act shall be bv such Guardian paid forthwith into Court with the privity of the Accountant of the High Court, and shall be placed to the credit of an account to be in- tituled " Account of Official Guardian ad litem ." and all costs payable to the Guardian out of any funds in Court, in respect of any business done af\«r the commencement of this Act shall be transferred to the credit of the same account. (3) Where the estate is small, and, in view of the amount at the credit of the said account, the amount or part OFFICIAL GUARDIAN. «7 of the amount payable out of the estate for the Seo. 66. Guanliau's costs does not appear to bo required to huI'kx m> pay tlie sahiry and disbursements of the otticial Guardian the Court, may withliold payment o«it of such estate of the suiU or any part of the sum due for the Guardian's costs in respc'ct of such estatt! ; ami may distribute the estate tus if such costs were not payable by or out of the same. (4) Tliere shall be paid to the said Guardian in respect of all business done after the commencement of this Act a fixed salary of such siuu per annum as, in view of the amount of business done or to be done by the Guardian, and the sum at the credit of the saitl account, the said Judj^es shall think reasonable, and the Lieutenant-Governor in iJouncil approve ; which salary shall be over and above all necessary disbursements ; and the salary and disbursements sliall 1)6 paid, monthly or otherwise as shall be deter- mined by rule of Court, out of the fund at the credit of the said " account of official Guardian ad litem" and not otherwise. (5) The surplus appearing from time to time at the credit of the said account beyond what may be recpiired to, pay the charges on the said account, shall be trana,- ferred to the " Suitoi-s' Fee Fund Account." The "Suiuora' Fee Fund Account," which is an account kept by tlie (Ji)urt of Chancery, was first created by 20 Via. c. 56, a. 2m<'iul (Iminlinii. 8eoi.66,67, (7) The Official (jruardian ad litem sliall once evory «i.\ monthH lile in tho Accountant's olKco an artiuaos of th(* Accountant's office iucliidiiij,' all salaries shall, from the Ist day of April, IHHl, bo the first charge on the income arising from the funds in Cotii-t. Not in tiic Knglitth Acta. iiixiH'.tor of 10, Tlje Lieutenant-Governor may from time to time "I'l'i'nimres^ ap]>oint one of the officers of the High Court, or some other competent person, to inspect the offices of the Sheriffs, Local Masters, Deputy Registrars, Dejiuty Clerks of the (Jrowii, Local Registrars of the High Court, llcjifis- trars of Surrogate Court, Clerks of the Peace, and County Crown Attorneys, and Clerks of the County Court, in the respective Counties of the Province, The seutiona relating to an Inspector (70 to 73) arc new. The duty of the lnsi)ector for the time being shall be:— (1) To make a per.sonal inspection of the said offices and of the books and Court papers belonging thereto respectively ; (2) To see that proper books are pi-ovided, that they aiv in good order and contlition, that the proper entries and records are made therein in a proper manner. at proper times, and in a proper form and order, and tliat the Court pajjers and documents are properly classified and |)reserved ; (3) To ascertain that the duties of the officers are duly and efficiently jierformed ; (4) To see that proper costs and charges only are allowed or exacted ; (5) To a.scertain that proper security has been given by any officer required by law to give security ; (G) To ascertain whether uniformity of practice prevails in the several offices of the High Court and in the County and Surrogate Courts ; (7) To report upon all such matters, as expeditiously a' may be, to the Lieutenant-Governor. (See 43 Vie- c. 8, 8. 23.) IN8PBCT0R AND SOLICITORS. 71 71, When the Hivid InHi)cctor has occasion to institute Beoa. 71-74. ail iiKiiiiry into the conduct of any officer in relation to »"'»•"• '^■ his ov their otficial duties or acts, it shall l)e lawful for iii.niiri the Hiiitl Inspector to recpiiro such officer, or any other '""«i"" '"' person or persons, to give evidence on oath ; and for this purpose tiio said Inspector shall have the sanio power to suiniiion such officers and other pei-sons to attend as wit- iK'sseH, to enforce their attendance, and to compel thcni to produce books and documents and give evidence, aH iuiy Court has in civil cases. {See 43, Vic. c. 8, s. 24.) The enactment referred to is that appointing an Inspeutor of Division Courts. 1/5, The said several officers shall, as often as reiiuired »ookt», vu-.. I»y the said Inspector, produce for examination and in- f|',',|.1.',|''}i','r s|)ectiou all hooks and documents which are recpiired to '""«i *""" he kept hy them, or which ni ly lioreafter be re(piired to l)e k('pt ))y them ; and shall report to the Inspector all such matters relating l.> any cause or proceeding as the Insiiector shall require. {See, 43 Vic. c. 8, s- 26.) Xi, Every person who at the commencement of this p„werM ni Act sliall bo authorized to take recognizances of bail, or C""""'"' to aihnhiister oaths and take affidavits and affirmations, .idmiuist.r in any of the Courts whose jurisdiction is hereby vested""^''*- in the High Court of Justice, shall be a comniissioner for the saiil purposes in all causes and matters wliatsoever which may from time to time be depending in the said High Court. {See Jud. Act of 1873, s. 82 ; R. S. O. c. (53; 0.80.) SOLICITORS. 14. From and after the commencement of this Act all soiicitorK IKJi-soiis hei-etofore admitted as solicitors or attorneys of, ""'' ^^^^' or by law empowered to practise in, any Court the juris- diction of which is hereby vested in the High Court of Justice, shall be called Solicitors of the Supreme Court of Ontario, and shall be entitled to the same privileges, and l)e subject to the same obligations, so far as circum- stances will permit, as if this Act had not passed. (2) All persons who from time to time, if this Act had not passed, would have been entitled to be admitteil as solicitors or attorneys of, or been by law em- powered to practise in, any such Courts, shall be entitled to be admitted on payment of the fees now required for admission to the Courts of Queen's Bench, Common Pleas, and Chancery, and shall be neyB. ! I, ;t! M S 'I 1 1 72 Sees. 74-76. sub-B. a. ONTARIO JUDICATURE ACT, 1881, SO admitted by any Divisional Court, and shall be called Solicitors of the Supreme Court of Ontario, and shall, as far as circumsttmces permit, be entitled as such solicitors to the same privileges and be an'o- ject to the same obligations as if this Act had not passed. (3) Any solicitora or attorneys to whom this section applies shall be deemed to be officers of the said Supreme Court ; and that Court, and the High Court of Justice and the Court of Appeal i-espectively, or any Division or Judge thereof, may exercise the same jurisdiction in respect of such solicitors or at- torneys as any one of the Superior Courts or a Judge thereof might, previously to the passing of this Act, have exercised in respect of any solicitor or attorney admitted to practice therein. ( See Jiul Act of 1873, s. 87.) The provisions of this section are in substance contained in the English section cited, except the reference in the second sub- section supra to the fees to be paid. i PART VI. COUNTY COURTS AND JUDGES. 32 Vic. 22, s. 15. Section one of chapter 22 of the Acts of the 1, repealed. legislature of this Province, parsed in the 32nd year of her Majesty's reign is repealed, and section two of chap- ter 15, of the Consolidated Statutes of Upper Canada shall not be affected by the said Act or by any other en- actment of Lhe Legislature of this Pmvince heretofore passed and purporting to repeal the same. The Ontario Act, 32 Vic. c. 22, s. 1, purported to repeal sec- tion 2, Consol. U. C, c. 15, which limited the appointment of County Court Judges to Barristers of at least five years standing at the Bar of Upper Canada. The Legislature, by this section, has withdrawn this assumed repeal, and left the matter as it stood at the time of Confederation. Iiocal 'J'O, The Judges of the several County Courts shall be Judges of the High Court for the purposes of their juris- diction in actions in the High Court ; and in the exercise of such jurisdiction may be styled " Local Judges of the High Court," and shall, in all causes and actions in the High Court, have, subject to Rules of Court, power and authority to do and perform sdl such acts, and transact ■I" FT COUNTY COURTS. 73 all such business as the Judges of the County Courts Sees. 77, 78. have now in actions in tlie Courts of Queen's Bench and Common Pleas ; and to do and perform such other acts and business in res[)ect to matters and causes in and be- fore the High Court as they may by Rules of Court in that behalf from time to time be empowered to do. (See R. S. O. c. 39, 8. 29 ; c. 40, .s. 28 ; c. 50, s. 148 ; R. Sup. C. 1875, Order 35, R. 4 ; R. Sup. C. April, 1880, R. 11 ; Order i2\ post.) The 42l8t and aubsenuent Rules post define the power which the County Court Judges are to have in actions in the High Court. 77. [Every County and Division Court] shall as re- p<.wer»..f gards all causes of action within its jurisdiction for the ^"U"^'' time being, have power to gi'ant and shall grant in any proceeding before such court such relief, redi-ess or remedy, or combination of remedies, either absolute or conditional, and shall in every such proceeding give such and the like effect to every ground of defence or counter- claim, equitable or legal (subject to the provision next hereinafter contained), in as full and ample a manner as might and ought to be done in the like case by the High Court of Justice. (See Jud. Act of 1873, s. 89.) The English section has, instead of the words in brackets, the following : — " Every Inferior Court which now has, or which may after the passing of this Act, have jurisdiction in equity or at law, and in equity and in Admiralty respectively." The two sections are the same otherwise. In England the County Courts had equitable jurisdiction under 28 and 29 Via c. 99, and other Acts. 18, Where in any proceeding before any such [County Couuter- or Division] Court any defence or counter-claim of the cmmtyor defendant involves matter beyond the jurisdiction of the ^^^••l''"' Court, such defence or counter-claim shall not affect the transfers competence or the duty of th. Court to dispose of the therefrom, whole matter in controversy so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the Court has jurisdiction to administer shall bo given to the defendant upon any sjtob" 7"v7 counter-claim: yy^-^^'^"^'''^' ^ Provided always, that in such case it sha^ f^lawful Provi*> for the High Court or any Division or Jud^ihersebf, if it shall be thought fit, on the application of/^^ P^^y to the proceeding, to order that the whole BWcepd^Akvl transferred from such Court to the Hig any Division thereof; and in such case V7^. W II. 1 74 ONTARIO JUDICATURE ACT, 1881. Sm.79. Mllb-88. 2-5, Kiy Hiirrogate i'liurt fees of JiuIkcs. such proceeding shall be transmitted by the Clerk or other proper officer, of the County or Division Court to the said High Court ; and the same shall thenceforth be con- tiuiied and prosecuted in the said High Court as if it had been originally commenced therein. ( See Jud. Act of 1873, s. 90). Adapted from the English section referred to. It has been held under that section that an inferior Court has jurisdiction to entertain a claim set up by way of counter-cliam, although it is in respect of Uiatters which arose beyond its local jurisdicticn, but the power to grant relief in respect of such counter-claim ig limited to the same amount as the plaintiif has claimed in the action (Datrin v. The Flayslajf Minimj Co., 3 C. P. D. 228). IJI, Tlie Lieutenant-Governor in Council may, with the consent of any County Court or Surrogate Court Judge, commute the fees payable to him under the Sur- rogate Court Acts for a fixed annual sum ; such sum not to exceed the income derived from such fees in some preceding year ; and any sum so fixed may, as vacancies occur, be rescinded, or may be varied and the amount increased or diminished : provided that in no case shall any Order in Council name a sura exceeding the receipts for fees during some preceding year. (2) In case of such commutation, the like sums and fees heretofore payrtble to such Judge shall continue to be payable, and shall form part of the Consolidated Revenue Fund of this Province, and shall be payable in stamps, subject to the provisions of the Act res- pecting Law Stamps. (See R. S. O. c. 40, s. 16). (3) Where there is no commutation and the fees aforesaid exceed the sum of $1,000 in any year, the excess shall be received by the Registrar and paid over to the Treasurer of the Province for the uses of the Province. (4) The preceding sub-section shall not apply so as to reduce the aniounv; payable to the Judge in any year to a sum less than the aggregate amount of the fees payable to him for such year in respect of fees pro- vided for by the Consolidated Statutes of Upper Canada, chapter 16, schedule " B," and exclusive of the additional fees assigned to Surrogate Judges by the Act passed in the fortieth year of Her Majesty's reign, chapter 7, schedule " A " (65). (5) Out of the excess aforesaid a sum not exceeding $666 may on the authority of an Order in Council be paid to the Junior Judge of the County (if any). i^^ip MISCELLANEOUS PROVISIONS 75 (6) This section, and the several sub-sections thereof, Sees. 80-88. shall operate from the first day of January last, §0. The several rules of law enacted and declared by Rules ofiuw this Act shall be in force and receive effect in all courts |","Jr!oY *" whatsoever in Ontario so far as the matters to which such Courts, rules i-elate shall be respectively cognizable by such courts. {See Jud. Act of 1873, s. 91.) Taken from the English section. PART yii. MISCELLANEOUS PROVISIONS. 81, Every Order in Council determining the conimu-Onicisiii tation allowance or the salary of any Judge, Official nUowancen ' Guardian or other officer, under the authority of this Act, '"'j''"'w,','"' shall be laid before the House of As.sembly forth witii, if mtiiieation the Legislature is in session at the date of the Order ;{^j^p^]^'^j,'^'',''. and if the Legislature is not then in session, the Order i)iy. is to be laid before the said Hoi\se within the first seven days of the session next after the Order in Council is made. («). In Ciuse the Assembly at the said session, or, if the sessiou does not continue for three weeks after the said Order is laid before the House, then at the ensuing ses- sion of the Legislature, disa[)prove by resolution of such Oi'der iu Council, either wholly, or so far as relates to any of the persons therein named, the Order in Council, so far as so disapproved of, shall have no effect from the time of such resolution being passed. 8/5. All books, documents, p?pers and chattels in the Transfer of possession of any Court the jurisdiction of which is here- jiapers t"' by vested in the High Court of Justice, or of any officer ^."{j')"!;"" or poi'son attached to any such Court as such otficer, or by reason of his being so attached, shall be dealt with by such officer or person in such manner as the High Court of Justice or the Supreme Court may by order direct ; and any person failing to comply with any order made for the purpose of giving effect to this section shall be guilty of a contempt of the Supreme Court. ( See Jud. Act of 1873, s. 92.) Adapted from the English section. 83. Upon proof to the satisfaction of the Judge pre- ConiptiiiiiK siding at the sittings at any Court of the service of a of w^tncs'ses. it r.\ I ; ':\\ m w:3 H i< .li 76 ONTARIO JUDICATURE ACT, 1881. Sees. 83-85. subpccna upon any witness, who fails to attend, or to roniiiiu in attendance in accordance witli the requirements of the subpauia, and that a suthcient sum for his fees a.s u witness hud heon duly paid or tendered to him, and that tlio presence of such witness is material to the ends of justice, the said Judge may, hy his warrant, cause such witness to bo apprehended and forthwith brought before him or any other Judge who may thereafter jji-esido at such sittings, to give oviresence, as such witness, shall be required, oi', in the discretion of the said Judge, he may bo released on a recognizance (with or without sureties), conditioned for liis appearance to give evidence. {See 39 Vic, c. G, Dom.; .32 & 33 Vic. c. 30, .s. 20, Dora). This section is not in the English Acts ; it corresponds with the '2iul section of the Dominion Act respecting the attemlanco of witnesses Jit criminal trials (39 Vic. c. 6). So, l)y the Controverted Elections Act of Ontario (c. 11, s. jVJ) it was provided that on the tri.al of an election petition under this Act the Judge or .Tmlgea may, by order under liis or their hand or hands, compel the attendance of any person as a witness wlio appears to him or tlieni to have been concerned in the electimi to >vhich the jjetition refers, and any person refusing to obey such order shall bo guilty of contempt of Court. The remedy heretofore in civil actions has been the circuitous and inadequate one of obtaining an attachment against the witness for his non-attendance, or of an action against him on the Statute, .') Elizabeth, c. 5), or of an action at Common Law (see Archbold's Practice, 11 th Ed., p. .S5G). For the English practice before the Judicature Act see 1 Arcii- bold's Practice, 11 edition, p. 170, et Meq. Form of w;irrant. Saving fts ti> I'iix'uitM, eic. lii 4 i 84. Such wan-ant may be similar to form 189, in ap- pendix J liereto, and may be directed to any sheriff or other officer of the Ccirt, or to any constable, and may be executed in any part of Ontario. 85. This Act is not intended to affect, and shall not affect, the issue of any Commissions of Assize, Nisi Prius. Oyer and Terminer, Gaol delivery, or other commission for the discharge of civil or criminal business on circuit or otherwise ; or th'j . uihority of a Judge or a retired Judge of any of the Superior Courts, or a Judge of a County Court, or one of Her Majesty's Counsel learned in the law, to preside without any commission at any COURTS OP ASSIZE, ETC. 77 C!ourt of Assize, Oyer and Terminer, and General Gaol Sec. 86. Delivery, or at a Court held under this Act in the exl. Th^ tion Act, < inspection, apply to C far as appl Court Hoi in the sale 90. Fr there shall MISCELLANEOUS PROVISIONS. 79 Chancery, and may give his decision either during the sitting or geoi, 86-90. afterwards ; and such decision shall hare the like force and effect and be subject to re-hearing and appeal in the same manner as the decision of a Judge of the Court of Chancery." The principal English statutes relating to assizes are 13 Edw. I. (Stat. West 2), c, 30 ; 25 Edw. I. Mag. Car.), c. 12 ; 31 Cha. II., c, 2, s. 17 ; 1 Geo. IV., c. 5o ; 3 Geo. IV., c. 10 ; 11 Geo. IV. and 1 Will. IV., c. 70 ; 2 & 3 Will. !V., c. 47 ; 3 & 4 Will. IV. c. 71 ; 2 & 3 Vic, c. 72 ; 12 & 13 Vic, c 6 ; 17 & 18 Vic, c 35 ; 22 & 23 Vic, c. 32 ; 26 and 27 Vic, c. 122 ; 39 & 49 Vic, c 57 : 40 & 41 Vic, c 46 ; 42 & 43 Vic, c. I. 80* Where a Judge of one of the Superior Courts JudgmBnta resigns or is transferred to another of the said Courts, judge''*''^'"^ after the passing of this Act, or where, after the com- mencement of this Act, a Judge of the Supreme Court resigns his office, and any case which has been fully heard by such Judge, either alone or jointly with other Judges, stands for judgment, he may give judgment therein as if he were still a Judge of the same Court ; and any such judgment shall be of the same force and validity as if he were still such Judge : Provided that such judg- ment of the Judge be delivered within six weeks after his said resignation or transfer. The Lord Chancellor has a like power. 81. Nothing in this Act, or in the Schedule thereto, This Act not affects or is intended to affect, the [)ractice or procedure certafn^ in criminal mattera, or matters connected with Dominion matters. Controvex'ted Elections, or proceedings on the Crown or Revenue side of the Queen's Bench or Common Pleas Divisions. (See Jud. Act of 1875, ss. 19, 21 ; R. Sup. C. 1875, Order 62 : R. Sup. C. April, 1880, R. 54). 88. It shall not be necessary for any Justice of the Justices of Peace heretofore or hereafter appointed, for the temporary Nipissi^ng,'" .ji'licial. district of Nipissing, to possess any property q."*''*'«a- r.»!iilcation whatever, or to be a sttited resident within : 'fO said district. (R. S. 0. c. 7, s. 7). 8«). The provisions of the Prison and Asylum Inspec- inspection, tion Act, chapter 224 of the Revised Statutes, as to the JJ^Ji^'j,"^ inspection, construction and repairing of Gaols, shall Houses, apply to Court Houses, and the said provisions shall so far as applicable be read as if the words Court House or Court Houses were inserted after the words Gaol or Gaols in the said Act. REPEAL. 90. From and after the commencement of this Act Repeat there shall be repealed, so far as relates to this Province : 1 . 1 i Ik ' II m 1 ni^:i| II 80 ^1:1 WW' 8m. 91. Interpreta- tion of terms. ONTARIO JUDICATURE ACT, 1881. (1) Sections 15 and 16 of a certain Act of the Parlia- ment of the United Kingdom of Great Britain and Ireland, passed in the fifth and sixth years of the reign of His Majesty King William the Fourth, and chaptered 62 ; without prejudice to anything done or suffered before the said commencement xinder the enactments hereby repealed. (See Imp. Act 22 and 23 Vic. c. 12, s. 2). (2) Any enactment inconsistent with this Act. {See Jud. Act of 1875, s. 33). (3) Section 3 of the Act respecting the Heir, Devisee and Assignee Commission, chapter 25 of the Revised Statutes, so far as relates to any Judge, who was not appointed until after the 7th of March, 1879, or who may be hereafter appointed. {See Journ. L. A., March 7, 1879, p. 186). INTERPRETATION. 01. In the construction of this Act and of the Rules, unless there is anything in the subject or context repug- nant thcioto, the several words hereinafter mentioned shall have, or include the meanings following (that is to say): " Rules of Court " shall include forms. " Cause " shall include any action, suit, or other oiiginal proceeding between a plaintiff and a defendant. " Suit " shall include action. " Action " shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court ; and shall not include a criminal proceeding by the Crown. " Plaintiff " shall include every person asking any relief (otherwise than by way of counter-claim as a defend- ant) against any other person by any form of proceeding, whether the same be taken by action, suit, petition, motion, summons, or otherwise. *' Petitioner " shall include every person making any application to the Court, either by petition, motion, or summons, otherwise than as against any defend- ant. " Defendant " shall include every person served with any wiit of summons or process, or served with notice of, or entitled to attend any proceedings. INTERPRETATION. 81 n ' " Party " shall include every person served with notice Bm. 90. of, or attending any proceeding, although not named on the Record. " Matter " shall include every proceeding in the Court not in a cause. " Pleading " shall include any petition or summons, and shall also include the statement in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to an}' counter-claim of a defendant. " Judgment " shall include decree. " Order " shall include rule. "Oath" shall include solemn affirmation and statutory declaration. " Existing " shall moan existing at the time appointed' for the commencement of this Act. {See Jud. Act of 1873, s. 100.) The above definitiona are all taken from the section cited. " Proper Officer " shall, unless and until any rule to, the contrary is made, mean an officer to be ascer-. tained as follows : — (a) Where any duty to be discharged under this Act or the Rules is a duty which has heretofore been discharged by any officer, such officer shall con- tinue to be the proper officer to discharge the same, until otherwise provided by Rule; (6) Where any new duty is under this Act or the Rules to be discharged, the proper officer to dis- charge the same shall be such officer, having previously discharged analogous duties, as may from time to time be directed to discharge the same, in the case of an officer of the High Court of Justice not attached to any Division by the President of the High Court, and in the case of an officer attached to any Division, by the Presi- dent of the Division. The above interpretation of " proper officer " is taken from B. Sup. C, 1875, Order 63. 6 ■ i f k . II SCHEDULE. RULES OF COURT. [In addition to the Rules contained in the Schodulo to tho Kiig- lish Judicature Act, 1875, tho following atlditional or araciuliug Rules have been issued, viz. : ,.>i I December, 1876; May, 1878; December, 1879; ! t Pit Rules of Supremo Court, August, 1875; Deceml)er, 187.') February, 1876; Juno, 1876; 1877 ; June, 1877 ; November, April, 1880; May, 1880. Most of these have, with moro or less variation, been embodied in the Schedule to the Ontario Act, which contains other ndes also.] " NoTB. — Where no other provision is made by the Act or these Bnles the present procedure and practice remain in force." This note is the heaiUnu of the Rules in the Act. The follow- ing are the sections of the Act as to the former practice of the Courts : — Old practice. "12. The jurisdiction of the High Court of Justice and the Court of Appeal, respectively, ahull be exercised (so far as regards Erocedure and practice) in the manner provided by this Act, or y such Rules and Orders of Court as may bo made pursuant to this Act ; and, where no special provision is contained in this Act or in any such Rules or Orders of Court with reference thereto, it shall be exercised, as nearly as may bo, in the aame manner as the same might have been exercised by the respective existing Courts if this Act had not been passed. "62. Save as by this Act or by any Rules of Court may be otherwise provided, all forms and methods (as nearly as may be) of procedure which at the commencement of this Act were in force in any of the Courts whose jurisdiction is by this Act vested in the said High Court under or by virtue of any law, general order, or rule whatsoever, and which are not inconsistent with this Act or with any rules of Court — may continue to be used and practised, in the said High Court of Justice, in such and the li^e cases, and for such and the like purposes, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so vested, if this Act hail not passed." Variaacea of Under the corresponding sections in England it has been held old practice, ^jj^t, in cases where no rule of practice is laid down by the new Orders, and there is a variance in the old practice of the Chan- cery and Common Law Courts, that practice is to prevail which is considered by the Court most convement (Newbiggin-by-the-Sea Oaa Company v. Armstrong, 13 Ch. D. 310) ; Niirae v. Dumford, ib., 768 ; LaOrange v. McAndrew, 4 Q. B. D. 210.) The 54th section, sub-section 6, of the Act, provides as follows : Power of ««6. Where any provisions in respect of the practice or pro- j^J^o^ cedure of any Courts, the jurisdiction of which is vested by this Court, Act in the High Court of Justice, are contained in any Statute, OOMHENOEMENT OF ACTIONS. 88 Ruloa of Oonrt may be made for modifying such proviaiona to any BuIm 1-8, extent that may be deemed neceaaary for adapting the aame to the High Court of Juatioo, unleaa, in the oaae ot any Act horcaftor paased, thia power ahnll be oxpreaaly excluded with reapeut to anoh Act or any proviaion thereof." The 492nd Rule post providea that "Any Rule of the aevoral Ordora in thia acheaule may be cited by the marginal number of the Rule, or by the number of the Order, and ot the Rule t include a criminal proceeding by the Crown. Aa to the elfect of thia definition, aeo Dnrcif V. WhUtaker, 33 L. T. 778 ; 24 W. R. 244 ; Hamlyn v. Betterley, 6 Q. B. D. 63. An action may, by amendment of the writ and statement of claim, be turned into an information and action, the sanction of the Attorney-General being obtained (CaUlwdl v. Payham Har- bour, ii-c, Co., 2 Ch. D. 221 ; see Rule 10, post). .^ 2. With respect to interpleader, the procedure and'"**''*i'i<'iU RleA, or any other preliminary proceeding, for an onler for the administration of the estate, real or {lersonal, of such duceuHvd person." By Order 638, infra, any adult person may apply for this order to the Master of the County Town of the County, other than the County of York, where the deceased resided at the time of his death. "468. The notice of motion is to be in the form or to the effect set forth in Schedule U, hereunder written, and must be served upon the executor or administrator." The following is the form referred to : "Notice of Motion for Administration Order, under Order 4OS. In the matter of the Estate of fi. F., late of the Township of Vaughou. in the County of York, deceased. A. B. against C. D. / To C. D., Executor of E. F., deceased. Take notice that A. B., of the City of Toronto, in the County of York, Esquire (or other proper dencrifdion 0/ the parly), who clairaa to be a creditor upon the estate of the above-named E. F., will apply to the Court of Chancery, in Chambers, at Osgoode Hall, m the City of Toronto, on the day of , at thu hour of , for an order for the administration of the estate, real and personal, of the said E. F. , by the Court of Chancery ; and upon such application will be read the affidavits of (ntate the materutln upon which the application is founded) this day tiled. If you do not attend, either in person or by your solicitor, at the time and place above-mentioned, such order will be mode in your absence as may seem just and expedieut. Dated, &c. O. U., Of the City of Toronto, Solicitor for the above-named A. B." "469. Upon proof by affidavit of the due service of the notice of motion, or on the appearance, in person or by his solicitor or counsel, of the executor or administrator, and, upon proof by affidavit of such other matter, if any, as the Court re(^uires, the Court may make the usual order for the administration of the estate of the deceased, with such variations, if any, as the cir- cumstances of the case require ; and the order so made is to have the force and effect of a decree to the like effect made on the hearing of a cause between the same parties. " 470. The Court is to give any special directions touching the carriage or execution of the order, which it deems expedient ; and in case of applications for any such order by two or more persons, or classes of persons, the Court may grant the some to such one or more of the claimants as it thinks tit ; and the carriage of the order may be subsequently given to any party interested, and upon such terms as the Court may direct. "471. An order for the administration of the estate of a deceased person may be obtained by his executor or adminis- trator, and all the provisions of the foregoing orders are to extend to applications by an executor or administrator. "472. No accounts or inquiries in respect of the real estate are to be directed, unless notice of the application has been given to the heirs and devisees interested therein, or one or more of them. Chancery Order 46i>. Order thereon. Chancery Order 470. Special dit-ections therein. Cliy. Ord«r 471. Execu- tor or admin- istrator may apply. Cliy. Order 472. Where real estate affected. CHANCERY ORDERS 473-477. 85 Bnl* 8. (;iiy. Ordur 47U. 8iii>ple- iiK-nUlonlt'r Its t<) ri'ul cHttkte. Chy. Onic r ■174. En- quirieH \>y Master. Chy. Order 475. AdVHr- tiNcment tor <;rc(litorii. "473. After inqninos dirootod in rcspoot of the personal estate, the Court mav, in a proper case, after notice given to those in- terested in the real estate, or to one or more of them, make a Bupi)lumuntal order in resiMsct of the real estate, upon such terms as the Court sees fit. "474. In taking an account of a deceased's personal estate under an order of reference, the Master is to en. ; ij iw^''":&:!i', 111 "478. In case a creditor neglects or refuses to comply with the next preceding order he is not to be allowed any coats of proving his claim, unless the Master otherwise directs. "479. The executor or administrator of the deceased, or such other party as the Master directs, is to examine the claims sent in pursuant to the advertisement, and is to ascertain, as far as he is able, to which of such claims the estate of the deceased is justly liable. "480. The executor or administrator, or one of the executors ■ or administrators, or such other party either alone or jointly with his solicitor, or other competent person, or otherwise, as the Master directs, is, at least seven clear days before the day appointed for adjudication, to file an aihdavit, which may be in the form No. 3 in Schedule V, verifying a list of the claims, the partic 'liars of which have been sent m pursuant to the advertise- ment, aid stating to which of such claims, or parts thereof, respectively, the estate of the deceased is, in the opinion of the deponen;, justly liable, and his belief that such claims, cr parts thereof, respectively, are justly due, and proper to be allowed, and the reasons for such belief. The following is the Form No. 3, Schedule V, referred to in this Order : " No. 3. — Affidavit of Executor or Administrator as to Claims, wider Order 4S0. In Chancery. (Title.) Form of affidavit. We, C. D., of, &c., the above-named plaintiff [or defendant, or as may be\, the executors [or administrators] of A. B. , late of , in the County of , deceased, and E. F., of, Ac, solicitor, severally make oath and say as follows : — I, the said E. F. [solicitor], for myself, say as follows : 1. I have, in the paper writing now produced and shewn to me, and marked A, set forth a list of all the claims the particu- lars of which have been sent in to me by persons claiming to be creditors of the said A. B., deceased, pursuant to the advertise- ment issued in that behalf, dated the day of 18 6 •3 ■c Namei Claiiua Second Pari o Si; 1 Nan Clain CHANCERY ORDER 480. li 87 And I, the said C. D. , for mjrself , say as foUoMns : 2. I have examined the several claims mentioned in the paper writing now produced and sh?wn to me, and marked A, and I have compared the same witu vne books, accounts and documents of the said A. B. [or as man '"^> ^>^^ state any other inquiries or investigations inade], in order to ascertain, as 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], 1 am of opinion, and verily believe, that the estate of the said A. B. is justly liable to the amounts set forth in tha sixth column of the first part of the said paper writing marked A ; and, to the best of my knowledge ancl belief, such several amounts are justly due from the eocate of the said A. B., and proper to be lulowed to the respective 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 justly liable to the claims set forth in the seccad part of the said paper writing marked A, or whether such claims, or any parts thereof, are proper to be allowed witnout further evi'ience]," " Exhibit referred to in Affidavit No, S. (Short 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 , 18 . This paper writing, marked A, was produced and shewn to and is the same as is referred to in his affidavit, sworn before me this day of , 18 . W. B., &c. First Part. — Claims proper to bo allowed without further Evidence. o ■c Names of Claimants. Addresses and Descriptions. Nature of Claim. Amount Claimed. e c. Amount projier to be allowed. $ C. Second Part — Claims which ought to be proved by the Claimants. o 1 Names of Claimants. Addresses and Descriptions. Nature of Claim. Amount Claimed. S c. Rule 3. 88 ONTARIO JUDICATURE ACT, 1881. 4S1 to be iniule Cliy. Onler 4S2. Mus- ter's action thereon. Bale 3. "481. In case the Master thinks fit so to direct, the making ciiy. Orilpi- if the affidavit referred to in the next preceding Order, is to be When postponed till after the day appointed for adjudication, and is then to be subject to such directions as the Master may give. "482. At the time appointed for adjudicating upon the claims, or at any adjournment thereof, the Master may allow any of the claims, or any part thereof respectively, without proof by the creditors, and may direct such investigation of all or any of the claims not allowed, and require such further particulars, infor- mation, or evidence relating thereto, as he thinks fit, and may, if he so thinks fit, require any creditor to attend and prove his claim, or any part tliereof ; and the adjudication on such claims as are not then allowed is to be adjourned to a time to be then fixed. (;iiy. Order "483. Notice is to be given by the executor or administrator, 4sa. Notices or g^jj^ other party as the Master directs — t(i 1)1' given * •' til iieditors. 1. To every creditor whose claim, or any part thereof, has been allowed without i)roof by the creditor, of such allowance, and such notice may be in the Form No. 4 in Schedule V. 2. And to every such creditor as the Master directs to attend and prove his claim, or such part thereof as is not allowed, by a time to be named in such notice (which may be in the Form No. 5, in Schedule V), not being less than seven days after such notice, and to attend at a time to he therein named, being the time to which the adjudication thereon has been adjourned ; and, in case any creditor does not comply with such notice, his claim, or such pivrt thereof as aforesaid, is to be disallowed, unless the Master thinks fit to give further time. " The following are the Forms 4 and 5 referred to in this Order : "No. 4 — Notice to Creditor that Claim Allowed, under Order 4^3. (Short Title.) Km 1113 of The claim sent in by you against the estate of A. B., deceased, 11. tire. 1ms been allowed at the sum of $ , [with interest thereon at $ per cent, per annum, from the day of , 18 , and $ for costs, or a« the case may be]. " No. 5. — Notice to Creditor to prove his claim, under Order 4S3. (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 , Master in Chancery [or as the case may be], on or before the day of ,18 ; and to attend personally, or by your solicitor, at hie chambers, on the day of , 18 , at o'clock in the noon, being the time appointed for adjudicating on the claim. Dated this day of , 18 . G. R., of, &c., solicitor for the plaintiff [or defendant, or as may be]. To Mr. S. T. If part only allowed, add — If you claim to have a larger sum CHANCERY OKDERS 484-487, 638, 639. 89 allowed, you are hereby required to prove such further claim, Binle 3. and you are to file [&c. , as in Form No. 5]. Dated this day of ,18 . G. R., of, &c., solicitor for the plaintiff [or defendant, or as may be]. To Mr. P. R." "484. A creditor who has not before sent in particulars of his chy. Onlir claim pursuant to the advertisement, may do so seven clear days *^*- Tiim'K previous to any day to which the adjudication is adjourned. [n'cinims"^ "485. After the time fixed by the advertisement, no claim is ciiy. opi.i to be received (except as before provided in case of an adjourn- 4.^1. claims ment), unless the Master thinks fit to give special leave, upon |'|''.''^ ',!"'"' application, and then upon such terms and conditions as to costs ' and otherwise as the Master directs. "486. Where an order is made for payment of money out of ciiy. or.itr Court to creditors, the i)arty whose duty it is to prosecute such '*''i- OkI't order is to send to each creditor, or his solicitor (if any), a notice [j),'w %!.','.["[ ' that the cheques may be obtained from the Registrar ; and such ,„it. notice may be in Form No. 6 in Schedule V, and such party is, when required, to produce any papers necessary to enable the creditors to receive their cheques." The following is the Form No. 6 referred to in this Order ; "No. 6. — Notice that Cheques may he received, under Order 486. (Short Title.) The cheques for the amounts directed to be paid to the creditors Form cf of A. B., deceased, by an order made in this [matter or] cause, ""'ti'-'' t'l dated the day of 18 , may be received at the ''"''"'""• Registrar's Office, in Osgoode Hall, Toronto, on after the day of , 18 . G. R., of, &c , solicitor for the plaintiff \pr defendant, or an may be]. To Mr. W. S., &c." "437. Every notice by these Orders, required to be given, is, Cliy. Order unless the Master otherwise directs, to be deemed sufficiently *^'^- ,^"^'' ''" given and served if transmitted by post, prepaid, to the creditor ",^^,,^'1'*'^" to be served, according to the address given by the creditor in the claim sent in by him pursuant to the advertisement, or, in case the creditor has employed a solicitor, to such solicitor, according to the address given by him. " " 638. Any adult person entitled to apply, under Orders 467 ^'ly- <>'<''•'" or 471, for an administration order may apply to the Master in ordcr^' "" the County Town of the County (other than the County of York) where the deceased person whose estate it is desired to administer resided at the time of his death ; and such Master may, on 14 days' notice beiog given to the person or persons entitled under the present practice to notice of such an application, make an order for the administration of, and proceed to administer, such estate in the least expensive and most expeditious manner. "639. Such Master shall have full power to deal with both Powits ot the realty and personalty of the estate, the subject of adminis- Miisttr. tration, and shall dispose of the costs of the proceedings, and shall finally wind up all matters connected with the estate, without any further directions, and without any separate, 90 ONTARIO JUDICATURE ACT, 1881. Bale 3. m\- CMy. Orilur iHO. Order for partition m I S ft Chy. Order i>4l. Wliere lands iu several counties. Oliy. Order 1)42. Appeal from Master. Chy. Order iHS. Cost of such HUitS. interim, or interlocutory reports, or orders, except where the special circumstances of the cose absolutely call therefor ; autl in so doing ho shall be guided by the practice heretofore had in the administration of estates upon an application made in Charaljcrg for an administration order. Provided always, that all moneys realized from the estate shall at once bo paid into Court, and that no moneys shall be distributed or paid out for costs or other- wise, without an order of the Judge in Chambers or the Court, and on the application for such order, the Judge may review, amend, or refer back to the Master his report or order, or make such other order as he deems proper. ' ' 640. Anv adult person who has, heretofore, been entitled to a decree or order for the partition of an estate, may, on serving one or more of the persons entitled to a share of the estate of which partition is sought, with a fourteen days' notice of motion, apply to the presiding Judge in Chambers, or to the Master in the County (other than the County of York) wherein the land sought to be affected by the proceeding lies, for an order for the partition or sale of the premises in question ; whereupon such Judge or Master may make such order for partition or sale, or such other order as may be proper, and the Master shall thereupon proceed in the least expensive and most expeditious manner, according to the practice now in force, for the partition or sale of the premises, the ascertainment of the rights of the various persons interested, the adding parties, the taxation and payment of costs, and other wise. Provided always, that where an infant is interested in the estate, no order shall be made for partition, or sale, until such infant is represented by its guardian mi litem ; and provided also that all moneys realized from the estate shall at once be paid into Court, and that no moneys shall be distributed or paid out for costs or otherwise, without an order of the Judge in Chambers or the Court ; and on the application for such order, the Judge may review, amend, or refer back to the Master his report or order, or make such other order as he deems proper. "641. When, after an order has been made under Order 640, lands are discovered in another County, an application may be made to a Judge in Chambers for the partition or sale of such lands under the order formerly made, and, where two or more orders have been made by Masters in diflferent Counties, an application may be made in Chambers for an order as to the conduct of the future proceedings. "642. There shall be an appeal to the presiding Judge in Chambers — on any day that he may sit in Chambers — against any decree, order, report, ruling or other determination of any Master ; the notice of such appeal shall be a seven days' notice, and shall set out the grounds of objection, and the appeal shall be set down for argument not later than the Saturday preceding the day on which it is to be argued, and shall be brought on for argument within a month — not including vacation — of tne making of such decree, order, report, ruling or determination, or within such further time as a Judge may think proper, and the presiding Judge may then hear, or adjourn into Court, or otherwise dispose of such matters on such terms as he thinks proper. "643. In all suits hereafter instituted for administration, or partition, or administration and partition, unless otherwise ordered by the Court or a Judge, instead of the costs being allowed according to the tariff now in force, each person properly J < CHANCERY ORDERS 644-S47. 91 represented by a solicitor, and entitled to costs out of the estate Bnla. 3* —other than creditors not parties to the suit — shall be entitled to his actual disbursements in the suit, not includine Counsel fees, and there shall be allowed for the other costs of the suit payable out of the estate, a conunission on the amount realized, or on the value of the property partitioned, in the suit, which commission shall be apportioned amongst the persons entitled to costs, as the Judge or Master tliinks proper. Such commission shall be as follows : On sums not exceeding $500 20 per cent. For every additional 100 up to $1,500 5 " For every additional 100 up to 4,000 3 " For every additional 1,000 up to 10,000 2i " For every additional 1,000 I " and such remuneration shall be in lieu of all fees, whether between "party and party," "as between solicitor and client," or "be- tween solicitor and client." "644. When two or more suits are instituted for administra- chy. Order tion, or partition, or sale, the Judge may, in his discretion, dis- 044. {Jlow al^ or any, of the costs of any suit or suits, which in his opinion has or have been unnecessarily prosecuted. "645. Order 434 shall apply to cases in which an adult is in- Chy. Order terested in the estate as well as an infant, and also to suits for ^'^^ redemption. " Order 434 (which is printed in note to Rule 78) authorised a decree to be obtained in Chambers in certain cases where the suit was against an infant for foreclosure or sale of mortgaged pro- perty. The present order extended this practice to cases where some only of the defendants were infants. "646. Order 435 sliall apply to redemption suits ; and under chy. Ortler Orders 434 and 435 there may be granted, where it is prayed 646. for, and notice is given in pursuance of Order 647, a decree em- bracing the additional relief which this Court is entitled, under "the Administi'ation of Justice Act," to give, in mortgage cases, on the hearing of the cause pro confesso, and such a decree may be granted, notwithstanding that the defendant has been served by publication, or otherwise, or is a corporation ; provided always that where the bill has not been personally served the daim of the plaintiff shall be duly verified by aJffidavit. " Orders 434 and 435 are printed in the notes to Rule 78, post. The effect of Order 646 is to enable the Registrar to issue decrees on prcecipe in redemption suits, Order 435 having given that power in suits for foreclosure or sale only. "647. In suits for foreclosure or sale, where the plaintiff prays chy. Order for an order for the inomediate delivery of possession, or for an 647. order for immediate payment against a defendant, he must, in addition to the notice required by Schedule S, endorse upon the office copy of the bill served upon the defendant, the further notice : ( Where order for immediate possession prayed) : ' And the plaintiff will be entitled to an order for the imme- diate dehvery of possession of the mortgaged premises to him. ' ( Where order for immediate payment prayed) : 'And the plaintiff will be entitled forthwith to execution against the goods and lands of you {nami7ig the defendant agaiiut M 92 ONTARIO JUDICATURE ACT, 1881. j ! 'lii, r ' I II ^h (I ciiy 048. (149. Rules 3-5. ^ohom the plaintiff m entitled to thisielitf) to recover payment of the amount due by you.' Onler "C48. Every Deputy- Registrar shall have the same power, as to the issue of decrees on prvecipe, as by Order (546, »nd the Con- solidated General Orders, is given to the Registrar of the Court." Chancery Order .38 gave power of Deputy- Registrars to issne decrees on pn-ccipe in suits for foreclosure, sale, or redemption, between the original mortgagee and mortgagor. Order 648 extends the power to all cases for the foreclosure, sale, or redemp- tion, of mortgaged property. Order "049. Every decree or order hereafter made by the Court, whether the service of the bill or other proceedings on the de- fendant has been personal, by publication, or otherwise, shall b« absolute in the hrst instance, unless the Court shall otherwise order. ciiy. Oi-dor "650. The Local Masters and Deputy-Registrars shall enter 050. in a book or books, kept for that purpose, all decrees, or orders, made by them, and they shall, on the conclusion of every suit, or matter, annex together all the pleadings and papers, filed with them in such suit, or matter, and transmit the same to the Clerk of Records and Writs, who shall duly enter and file the same." other ^- AH other proceedings in and applications to the High I'loueediogs. Qonrt may, snbject to these Rules, be taken and made in the same manner as they would have been taken and made in any Court in which any proceeding or applica- tion of the like kind could have been taken or made if the Act had not been passed. [In case a defendant is let in to defend, under the 11th section of the Revised Statute respecting Absconding Debtors, the actions shall proceed as in ordinary cases under the Act, subject to the pro- visions in other respects of the said Revised Statute.] (Comp. lb. R. 3; R. S. O. c. 68.) The first clause of this Rule corresponds with the English Rule. According to this Rule, proceedings commenced in Chancery by Petition, and proceedings relating to arbitrations under 9 and 10, Will. Ill, c. 15, are not affected by these Rules, (Re Phillips \. Gill, 1 Q. B. D. 78.) I \ .i I A P mm ORDER II. WRIT OP SUMMONS AND PROCEDURE, &c. 1. Every action in the High Court shall be com- menced 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, and specify- ing the Division of the High Court to which the action is assigned. (Com|^8. 6 Costs of improper form. r Form of Writ. S Writ and notice for service out ofjuriadic- tion. 94 ONTARIO JUDICATURE ACT, 1881. 9 Date and teste of Writ BnlM9-10. British subject, and is not in British Dominions, notice of the writ of summons is to be served in lieu of service of the writ, and] such notice shall be in form No. 3 in the same Paii;, with such variations as circumstances may require. (Comp. 76., R. 5, schd., forms 2, 3 ; R. S. 0. c. 50, ss. 48-53 ; G. O. Chy., Nos. 90-102 ; Eng. C. L. P. Act of 1852, s. 19.) The words in brackets are not in the English Rule, but do not vary the effect of the Rule. At (a) the English Rule has the words "or of which notice is to be given out of the juris- diction." In other respects the Rule corresponds substantially with the English Rule. The second clause in brackets is adopted from R. S. 0. c. 50, 8. 45, and is not in the English Rule. Under section 19 of the C. L. P. Act of 1852, iia England service on a foreigner resident out of the jurisdiction was directed to be made m a similar way, and that enactment has been held to be in force in England since the Judicature Act ( Westinanv. Aktiebolaget, E.M. Snkkarefabrlh, 1 Ex. D. 237), and to apply to the Chancery Division equally with the other Divisions (^e Howard, Paifky V. CampJiatisen, 10 Ch. D. 550). As to the form of affidavit of service (see Buatroa v. Buatroa, 14 Ch. D. 849, and Appendix C, Form No. 38). 5. Every writ of summons and every other writ shall bear date on the day on which the same is issued, and shall be tested in the name of the President of the High Court of Justice, and shall require the defendant to appear thex'eto in ten days after service, if the service is to be made in Ontario. Comp. R. Sup. C, 1875, Order 2, R. 8.) Corresponds substantially with the English Rule. The writ is in England tested in the name of the Lord Chancellor ; or, if the office of Lord Chancellor is vacant, in the name of the Lord Chief Justice of England. In Ontario by section 3, sub- section 7 of the Act, the President of the High Court is "that one of the Presidents of the Queen's Bench, Chancery and Common Pleas Divisions, who, for the time being, is first in order of seniority." Every writ mup/u ha\ ? the full title of the action, including the names of all the defendants, but need only be directed to the particular defendant or defendants intended to be served with it. Where different times have to be mentioned for different defend- ants to appear, the proper course is to issue concurrent writs (Traill v. Porter, 1 Ir. L. R., Ch. D. 60). Amendment 6. The Court or a Judge may, at any stage of the pro- ceedings, allow the plaintiff to amend the writ of summons, in such manner and on such terms as may seem just, {See R. Sup. C, Feb., 1876, R. 6.) Identical with the English Rule. of Writ. INDORSEMENTS OF CLAIM. 95 The plaintifif will have to pay the costs of the amendment. Bales 10-12 An order to amend has been held to be necessary, even though the writ has not been served (per Lush, J., Anon, 60 L. T. 32 ; 1 Char. Ch. Ca. 34). When a statement of claim hn.« been delivered nn n.mendment of the miiorsement on the writ seems to be unncceuHary {Lunjt V. Large, W. N. 1877, p. 198 ; but see Conybeare v. Leivis, W. N. 1881, p. 31 ; see also He Jonex, Eyre v. Cox, 24 W. 11. 317). An action may, by amendment of the writ and statemmcnt of claim, be turned into an information and action without prejudice to a pond- ing motion in the action, the necessary sanction of the Attorney- General being obtained {Caldwell v. Payfiam Harbour Reclamation Company, 2 Ch. D. 221). Further provision for the amendment of the indorsement on the writ is made by Rule 11. When a writ has been amended so as to introduce a new claim it must be served in the same way as the original {The" Cassiopeia," 4 P. D. 188). ORDER III. INDORSEMENTS OF CLAIM, &c. 11 1. In the indorsement required by Order 2, Rule I , Piecbi StjltClUt'llt it shall not be essential to set forth the precise ground of not t-s-sentiai complaint, or the precise remedy or relief to which the plaintiff considers himself entitled. The plaintiff may by Amundim nt leave of the Coiirt or Judge amend such indorsement so iis to extend it to any other cause of action or any addi- tional remedy or relief. {lb. R. 2.) Identical with the EngUsh Rule. The object of the indorse- ment is to identify the claim to which the action relates ; one advantage of this being to facilitate a settlement without the action going further. In some cases the indorsement will take the place of pleading {see Rules 75, 159, &c). Order 3, Rule 1, in the English Schedule requires that an indorsement of claim shall be made on every writ of summons before it is issued. That Rule has not been adopted in the On- tario Schedule; but the 25th Rule, post, provides, that the plaintiff may, if he chooses, leave with the ofhcer who issues the writ a copy of the writ with all the indorsements, and it will sometimes be convenient and save costs to do so. Though the plaintiff's precise ground of complaint, or the precise remedy or relief claimed, need not be set forth under this Rule, still a claim for an injunction or receiver should be endorsed where the obtaining of either is a substantial object of the action (see notes to Rule 5, and Colboume v. Colbourne, there cited). As to amendment of the indorsement on the writ, see notes to Rule 10. 2. The indorsement of claim may be to the effect of f'onii..f such of the forms in Part II. of Appendix (A) hereto as""'"'"""'"* shall be applicable to the case, or if none be found appli- cable then of such other similarly concise form as the nature of the case may require. (76.' R. 3.) Identical with the English Rule. <)<; ONTARIO JUDICATURE ACT, 1881. iriii Bale8l3,l4 3, If the plaintiff sues in a representative capacity, or I :| if the defendant or any of the defendants is sued in a Willie representative capacity, the indorsement shall shew, in rtiVi('"(.ntn- ^"^'^116'' appearing by the statement in Appendix (A) live cM|.;i(ity hereto, Pai't II„ sec. V., or by any other statement to the like effect, in what capacity the plaintiff or J. jfendant sues or is sued. (Comp. lb. R. 4.) Identical with the English Rule. In Worraker v. Pryer, 2 Oh. D. 109, it was held by Jessel, M. R., and in Re Royle, 5 Oh. D. 640, by Bacon V. 0., and in Adcoclc V. Peters, W. N., 1876, p. 139 ; 2 Charl. N. C. (Oourt) 288, by Malins, V. 0. , that in an ordinary creditor's action for administra- tion of the real and personal estate of a deceased debtor, the action must be by the plaintiff on behalf of himsolf .uid all the other creditors ; and the writ must be indorsed accordingly. In the earlier case of Cooper v. Btmett, 1 Oh. D. 691, Hall, v. 0., had taken a contrary view. In the later case of Jie Jones, Eyre v. Cox, 24 W. R. 317, Jessel, M. R., said that when it appeared in the statement of claim that the plaintiff was suing on behalf of himself and other creditors, it was not necessary to amend the writ by the insertion of those words. Where the decree is applied for by motion under the Ohancery Order 468, 638, &c., it has not been the practice to require the style of the cause to shew that the suit is on behalf oi all the creditors, &c. 14 Special 4. In all actions where the plaintiff seeks merely to indorstiuent recover a debt or liquidated demand in money payable by the defendant with or without interest — arising upon a contract, express or implied, as, for instance, on a bill of exchange, promissory note, cheque, or other simple contract debt, or on a bond or contract under seal for payment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt, or on a guaianty, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque or note, or on a trust, — the writ of summons may be specially indorsed with the particulars of the amount sought to be recovered, after giving credit for any payment or set-off. (76., R. 6 ; Comp. R. S. 0. c. 60, 8. 19.) Identical with the English rule ; and the rule substantially corresponds with s. 19 of the 0. L. P. Act, R. S. O. c. 60, but differs in two points : First, the rule includes the case of a liquidated sum payable on a trust, which the former section did not ; Secondly, there are no words in the rule, as there were in the section, limiting its operation to cases in which the defen- dant resides within the jurisdiction. It will be observed that the use of this endorsement is optional ; but if used, it will INDORSEMENTS OF CLAIM. 97 lantially 50, but ise of ft tion did were in e defen- ded that it will «ntitlo the plaintiff to final judgment in case of default of appear- Jirile 14. .-lucc ; and even notwitliHtauding appearance, unlesH the defendant can satisfy a Judge that he has a defence or ought to bo allowed to defend (nee Rule 80, pout). For forma of special indorsement see Appendix A, No. 7. Such forms must he substantially followed to entitle plaintiff to sign judgment under Uules 72 or 80, but a merely formal diflcrence will not prejudice (per Archibald, J., Anon. W. N. 1876, p. 53. Whore a writ had Vieen served before the commencement of the Act it was held that there could be no indorsement under this Rule, so as to eual>le tlie plaintiff to sign judgment under Rule 80 (Anon 1 Charl. Ch. (!.i. 4."»). TiierL" are, liowcver, two decisions to the contrary: ncc W. N. 187.'), p. '2(>(). I (Jharl. Ch. Ca. 49 ; andW. N., 187t>, p. 12, 1 Charl. Ch. Ca. .55, and notes to Rule 80. As the object of the special indorsement is to give the defend- ant an opportunity of avoiding further proceedings by payment of the debt, as well as to entitle the plaintiff to a summary remedy, the indorsement must give sufftcient particulars to enable the defendant to satisfy his mind whether he ought to pay or resist. In Anon. W. N. 1875, p. 220, I.ush, J., said that it could not be intended that a list of items, extending perhaps over three or four years, should be endorsed on the writ. In an action for the price of goods sold, the dates and amounts of consignments were held necessary (Parpai/e v. Dickinson, 38 L. T. 178; 26 W. R. 479. Tlie following indorsements have been held insufficient : (1) "The plaintiff's claim is £399 9s. Id. the defendant's share insufflrimf or contribution to the payment of certain bills of exchange and inilorscmi nt promissory notes in which he and the plaintiff's were jointly lialde, and which bills and notes have been taken up by the plaintiffs " ( Walker v. Hich, 3 Q. B. D. 8). (2) "The plaintiff's claim is £.399 9s. Id. being seventy-five per cent, of the mvoice price of goods supplied by the plaintiff to the defendant under an agreement" (giving its date and nature). "The plaintiffs also claim to recover from the defendants the following bills of exchange, drawn by the plaintiffs and pay- able to the order of the defendants, being bills drawn for the price of goods supplied by the plaintiffs to the defendants as aforesaid. " A list of bills was then set out in the indorsement giving their dates and amounts {Parjmite v. Dickinson, supra). The following have been held sufficient : (1) "The plaintiff's claim is £36 5s., for balance of goods sold " imlnrsc- (Anon. W. N. 1875, p. 220 (see sw^jra) ; 1 Charl. Ch. Ca. 44). "'«"*'1«'.V<''' •See, however, Parpnite v. Dickinson, supra, as to effect of ^*'"' absence of dates. (2) "The plaintiff's claim is £49 5s. 8rf. ; the following are the particulars : 1879, Feb 14 To goods ...... 15 Do fto. &c. May 21 Brit. Com. Bank draft returned . . Notary charges on same . |> ! Bufticivnt, £ s. d. 16 1 4 13 &c. 6 20 1 6 99 8 98 ONTAKIO JUDKIATUUK AOT. 1881. RnUU. Cr n March 8 April 'J3 " V!l» By Brit Com. liiiiik (Irutt Hv ft 8 4 0. \\ I). 392; 6 ftnd £'2 V. V. I), 'jr.). ([\) "I'lio phiintitT'n oliiiin in for £1 '< Qs. IM., hoiiiR tlio baliuico tliio to iiiiii from tlio iluf«'ii(liuit, for iiioiutyH paid lil tlio ■Aid (lofoiulimtH n!(|iioNt. iiiul on Inn Ituliiilf for tliu nuroliiiHo of o«rtiviii Mtooks -iiul HliiiroH, hotwooit tho ',\rd •luno, INvU, luid the SUt August, IS7'.>, nn iiooouut of which Iihh houu roiidorcd and excoedn tlu'oo folios " (/Jn^oi v. Hurwilz, VV. N. 1870, p. IW). Tho ground of tho docision wah that huoIi an imh.rHoiiiont would hftvo 1)0011 sutluMoiit undor tho V. \i. I'. Act ; "<'<' INiv. Stivt. c. TiO, B. 10, and tho Schodido whoro tho form given atatoH that au account provioualy dolivurod may bo roforrod tu hy ita date. m PftrtiouUrs of olaiiu. ParticHlars. In an AnonymouH case, hoforo Quain, J., at (Miambors, \,. T. 4th Dcoombcr, IS7r), I (Miarl. llh. (!a. .Sf). and hWi v. (}ihh<. W. N. 187.'), p. 'J:KS ; I (Miarl. C\\. Vix. 'M), it was proHumod tl-at, undor tho Judicaturo Aut, partituilaiH of claim would hu uii- necessary, as the statcmont of claim or thu indorsomont on tho writ should give full particulars. This view has not, howevir, prevaikul, see liarker v. Wood, W. N. 1876, u. 5(>, '2 (iharl. (!li. Oa. 15, where Archibald, .)., made an ontcr for particulars, saying, "1 can see groat convenience in allowing particulars before the statement of claim, aa tho defendant may withdraw." Where the plaintill', as a claim, gave notice that tho particulars wore those endorsed on the writ, Lindley, J., made an order for additional particulars (6VWo»v. Hotisman, W. N. 1870, p. 22; 2 Charl. Ch. Ca, 30). Tho form of application in such case would seem to be, not for particulars, but for a further statemont of claim (Schombn-g v. Z-yebelli, VV. N. 1876, p. 106, 2 Charl. Ch. Ca. 30). Particulars will not be ordered as a matter of course in money causes. When they can be indorsed or stated in the claim they ought to be so (per Lush, J., Anon. W. N. 1875, p. 202, 1 Charl. Ch. Ca. 35). If, therefore, sufficient particulars are not indorsed, the costs of an application to obtain them should be borne by the plaintiff. Where the defendant required particulars of a sum for which credit was given by the claim, in order to enable him to frame his set-off or counter-claim, he was held entitled to receive them {Oodden v. Corsten, 5 0. P. D. 17 ; W. N. 1879, p. 190). A specially indorsed writ and a notice delivered as a statement of claim under Rule 159, together constitute a pleading which may be demurred to (Robertson v. Howard, 3 C. P. D. 280). As to particulars of counter-claims «ee notes to Rule 127. INDOIIHKMI'INTH OK Ct.AIM. !»!» 5. Wlicrn tlin pliiiiiiilV'H cliiiin Ih for ii dolit or tii|iii Rai«iis.l7 (IiiIimI tlt'Miiiinl only, tint iinlnrHniHMit., ii< Nidp Hlnlin;^' llii> ^n iiiitun' of tlio fliiiin, hIiiiII Htiitn llio iiiiioniit. cliiiincil I'mi' itLiMriinipni (Iclit, or ill ivHpn't of hiicIi c I'linim iif ilfl.l or Ii'iiiiiikI tivi'lv, mill hIiiiII fiirtlior stalo Uiiil, u|ioii |iiiyiii*Mit. tlifn>oriiiiiii«i williiii |i'iL;lit| tliiyn iillor Hrrviri«, or, in ••nHcitrii writ mil,' i'di'siTv U'ii williiii t liM jurisdiction, within tJio t.iiiit> iillovsi-<| lor ii|)|M>ii.''iiU(M\ further protMM'iliii^H will Im Hiaycil. Sik^Ii stiid'iiK'nt niiiy lt<> in lJi(« f< nil in Appcnilix (A ) lifict«), Pint II., H(M\ 2. Tint . ()., lS7r», Order '.'}, R. 8; a. (). Chy., Nos 407 et m/.; ():}8 et aeq ) {(i) The Rule up to this point ih tho flame as the KngliHli Itulo. The pniofediugs under Onter I, Itulc '{, arc tlio.so jirovided for by the Ohaiicery orders under which a notice of motion is given j instead of a writ heing issued, and which are set forth in the notes I to Order 1, Rule 3, iDiie. rr I . • 7 Where the claim is for the foreiiloaure of a niort!,'a|icarance 43 Preparation i.f Writ. 44 Kraling issue of Wiit. Filing. il6 Kntrjr. 19: In all cases there shall be a statement on the face of the writ of summons naming the office in which the defendants' appearance is to be entered. (Comp. R. Sap. C, 1875, Order 5, R. 2, 3 ; R. S. O., c. 50, Sch. A, Form 1 ; G. O. Chy., No. 86, Sch. C.) 13. Writs of summons shall be prepared by the plain- tiff or his Solicitor, and may be written or printed, or partly written and partly printed. (Comp. R. Sup. C, 1875, Order 5, R. 5.) The English Rule gives directions also as to the description of paper to be used. and 14. Every writ of summons shall be signed and sealed by the officer issuing the same, and shall thereupon be deemed to be issued. (R. Sup. C. 1875, Order 5, R. 6.) Identical with the English Rule. 15. The plaintiff or his Solicitor [may] (a), on present- ing any writ of summons for sealing, leave with the officer a copy, written or printed, or partly written and partly printed, of such writ and of all the indorsements thereon, and such copy shall be signed by or for the So- licitor leaving the same, or by the plaintiff himself, if he sues in person. (S. Sup. C, 1875, Order 5, Rule 7.) (a) The English Rule has the word "shall " instead of "may ;" it is otherwise substantially the same. 16. The proper officer shall make an entry of every writ of summons in a book to be called the Process Book, which is to be kept in the manner in which pro- ^1 if!!!"' IN ill : ^T' CONCURREKT WRITS. 103 cess books have heretofore been kept by the Clerks of the Bq1m86,S7 Crown and Pleas ; and the action shall be distinguished by a mimber in the manner in which actions are now distinguished in such last mentioned books ; and in case of any further proceeding in the action, an entry thereof shall be made in another book to be called the Procedure Book, which is to be kept in the manner in which Pro- cedure Books have hei'etofore been kept by the said Clerks. (Comp. R. Sup. C. 1875, Order 5, R. 8.) (a) The English Rule requires the action to be distinguished by the date ofthe year, and a letter as well as a number. There are also some other minor variations. . a» 17. The plaintiflf in any action may, at the time of, or Plaintiff at any time during twelve months, after the issuing of " n^u'*ent the original writ of summons, issue one or more concur- Writs rent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked by the officer issuing the same with the word " concurrent " in the margin, 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 shall be in force. (Comp, R. Sup. C, 1875, Order 6, R. 1 ; R. S. O., c. 50, s. 26.) The twelve months are calendar months (Rule 454). The time named in the English Rule is the same. The time by the C. L. P. Act, c. 50, ss. 26-27, was six months So ako by the English 0. L. P. Act, s. 9. With that exception the prcsbut "rder is erubstantially the same as section 26 of the Ontario C. L. P. Act. The English Rule requires that the word "concurrent" and the date should be marked with a seal, such seal to be im- pressed upon the writ by the proper officer. By the terms of the Rule the concurrent writ can only be issued within the twelve months for which the original writ is current. And under similar language in the section of the C. L. P. Act above referred to, it was held that a concurrent writ could not be issued after the renewsd of the original writ {Cole v. Sherard, 11 Ex. 482). See, however, Rule 462, as to the power of a Court or Judge to enlarjo^e the time for any proceeding ; and Be Jones, Eyre v. Cox, 46 T r. Ch. 316 ; W. N. 1877, p. 38, M. R. Where different aes are to be mentioned for different defen- dants to appear, the ^ oper course is to issue concurrent writs {Traill v. Porter, 1 ^r. L. R. Ch. D. 60). So that that course will be proper where, under Rule 46, defendants out of the jurisdic- tion have different times to appear, or where some defendants are within and others without the jurisdiction {see next Rule ; and Btddington v. Beddington, 24 W. R. 348, 34 L. T. 366, 45 L. J. (P. D. & A.) 44). 1-ui^iALA "tiiijunvn 104 ONTARIO JUDICATURE ACT, 1881. I! ■ ■■, 1^ i-'i.. Ill Bale928,29 18. A writ for service within the jurisdiction may be •js issued and marked as a concurrent writ with one for ser- Coiicurrent vice, or whereof notice in lieu of service is to be given, vi(;« ^within' out of the jui'isdiction ; and a writ for service, or whereof and without notice in lieu of service is to be given out of the jurisdic- tion, tion, may be issued and marked as a concurrent writ with one for service within the jurisdiction. (R. Sup. C. 1875, Order 6, R. 2.) Identical with the English Rule, and corresponds in substance with R. S. O., c. 50, s. 52 (see Beddington v. Beddington, ante). Whether writ issued hy )iis .'iutlutritjr. ORDER IV. DISCLOSURE BY SOLICITORS AND PLAINTIFFS. 1. Every solicitor whose name shall be [signed to or] indorsed on any writ of summons shall, on demand iu writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith whether such writ has been issued by him or with his authority or privity. (a) If he answers in the affirmative, then he shall also, in case the Court or a Judge so directs, disclose in writing, within a time to be limited by such Court or Judge, the profession or occupation, and place of abode of the plain- tiff, on pain of being guilty of a contempt of the Court from which such writ appears to have issued. (b) If such solicitor shall declare that the writ was not issued by him or with his authority or privity, all pro- ceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a Judge. (Com. R. Sup. C, 1875, Order 7, R. 1 ; R. S. O., c. 50, s. 56 ; Eng. C. L. P. Act of 1852, s. 7.) The words in the first line, "signed to or," are not in the Enghsh Rule. The clause (a) is not in the English Rule, and is taken from the Ontario C. L. P. Act, 1852, s. 7 ; it is less neces- sary in England, because the plaintiflf 'a address must now, under the English Rule, be indorsed on the writ, which is not required by the present Rules. The clause (b) is the same in the English Rule. Where a soHcitor has commenced an action in the name of a plaintiflf without authority, the plaintiff may, on notice to the defendant and the solicitor, move that the action be dismissed, and that the solicitor pay the costs of the plaintiflf as between solicitor and client, and the costs of the defendant as between party and party. {Ntwblggin-by-the-Sea Oas Co. v. Armstrong, 13 Ch. D. 310.) PARTNERS — RENEWALS OP WRITS. 105 2. Where a wi*it is sued out by partners in the name Rules 80 ,31 of their firm, the plaintifls or their solicitor shall, on de- 30 lUiind in writing by or on behalf of any defendant, declare Names and forthwith the names and places of residence of all the memifere of persons constituting the firm. IZltl^ "* (a) If the plaintiffs or their solicitor shall fail to com- ply 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 may direct. {b) Where 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 hud been named as the plaintiffs in the writ ; but all pro- ceedings shall nevertheless continue in the name of the drm. (R. Sup. C, 1875, Order 7, R. 2.) This rule is the same as the English Rule. By Rule 100 post, any party to an action in whicli partners either buC or are sued in the name of their firm may apply by summons for a statement of the names of the partners, to be fur- nished in such manner, and verified on oath or otherwise, as may be ordered. ORDER V. RENEWAL OF WRIT. 31 1. No original writ of summons shall be in force for currency of ■ more than twelve months from the day of the date there- ^"*- [of, 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 a Judge for leave to serve the wi'it after, and j notwithstanding the lapse of, the said period. (a) The Judge, if satisfied that reasonable efforts have Jbeen made to serve such defendant, or for other good eason, may order that the service shall be good if made i^ithin twelve months of the date of the order ; and so from time to time during the currency of the further period allowed. (b) The writ shall in such case bo renewed by being larked with the date of the day, month and year of such ?newal ; such renewal to be so marked by the proper bfficer upon delivery to him by the plaintiff or his solicitor If a memorandum in Form No. 7 6, in Appendix E. ■ X ' . 1 :■•' li E I ill IP- ill Irl' 106 OKTARIO JUDICATURE ACT, 1881. Bales 31,S2 (o) In such case the original writ shall 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, ft*om the date of the original issue of the writ. (Comp. P Sup. C, 1875, Order 3, R. 1 ; R. S. 0., c. 50, ss. 27-29; G. O. Chy., Nos. 93-98.) U<-newaI. The English Rule provides for the renewal being marked with a seal. The rule introduced an important change. Theretofore the writ, if not served, might, as of right, during its currency, be renewed for six months from the date of renewal, and so on from time to time during the currency of the renewed writ ; so as to keep the action .' i*;hout service, and thereby defeat the Statute of Ijniit it- >' an indefinite time ; whereas under this Rule a writ ca j ) renewed by leave, and if reasonable efforts have been mado to serve the defendant, or for other good reason. It is tvily the original writ that can be renewed. Where, there- fore, a writ v^nch f>- \ been once renewed was lost, the Court refused to diibtl tbt .uricer I'o seal a verified copy. {Daviety. Garland, 1 Q. B. 1). 260). The twelve months are calendar months ( Rule 454) and run from the date of the writ. (Re Jonea, Eyre v. Cox, 46 L. J. Ch. 316 ; W. N. 1877, p. 38). By Rule 462 a Court or Judge may enlarge the time for any proceeding, and although the prescribed time has elapsed. In Be Jonej, Eyre v. Cox, supra, Jessel M. R., allowed a writ to be renewed after its period of currency had expired. But where the Statute of Limitation had in the meantime run, the Queen's Bench Division held that it could not renew the writ. (Doyle v, Kaufman, 3 Q. B. D. 7, affirmed in Appeal p. 340). Where a writ was taken out in the 0. P. Div. so as to save the Statute of Limitations, but not served, and after the period of the Statute had run, but before the expiration of the writ, an admin- istration action was commenced in the Chancery Div. , it was held that the writ in the C. P. Div. did not keep the debt alive for the purpose of the administration suit (Manby v. Manby, 3 Ch. D. 101). 2. The production of a writ of summons purporting to have been renewed in manner aforesaid shall be sufficient prima facie evidence, for all purposes, of the writ having been so renewed, and of the commencement of the action as of the date of the issue of the writ in manner provided as aforesaid. (Comp. R. Sup. C, 1875, Order 8, Rule 2; B. S. O. c. 50, s. 28 ; Eng. C. L. P. Act of 1852, s. 13.) This corresponds in substance with the English C. L. P. Act, 1862, 8. 13, and with R. S. O. c. 60, s. 28. A defendant, served with a writ after the twelve months, can probably not treat the writ as a nullity, but should appW to set the writ and service aside (see Hemp v. Warren, 2 DowL a. S. 758, and Rule 473, post). 39 Evidence of renewal. same manner iiiii SERVICE OF WRIT OF SUMMONS. ORDER VI. SERVICE OF WRIT OF SUMMONS. 1. — Mode of Service. 107 Rnles 33,34 an 1. No service of writ shall be required wJiere tlieuniiertaking defendant by his solicitor accepts service, and [undertakes servile' ' to enter] an appearance, (R, Sup. C, Order 9, Rule 1 ; G. 0. Chy., No. 47.) The English Rule has the word " enters " instead of the words in brackets. I ! 1 I »4 2. Where service is required the writ shall, wherever Pirsonai it is practicable, ba served [by the same person and in the ati'tuTioiiJii same manner as .service is now made ; and where personal servico. service is required] if it be made to appear to the Couii; or 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 of notice for sei-vice, as may seem just. (R. Sup. C, 1875, Order 9, R. 2 ; lb., Order 10 ; R. S. O. c. 16, ss. 32, 33 ; c. 40, s. 95 ; c. 50, ss. 20, 23 ; Eng. 0. L. P. Act of 1852, s. 17 ; G. O. Ohy., Nos. 99-102 ; Eng. Consol. Ordera, No. 10, R. 6, 7.) Instead of the words in brackets the English Rule has the I words "ill the manner in which personal service is now made ;" [ the subsequent part of the Rule corresponds with the English Rule. The modes of service heretofore have not been the same in [Chancery and in a Common Law action (see Chy. Gen. Orders, 87, (tseq., and Kev. Stat. c. 40, ss. 92-94, and Rev. Stat. c. 50, 83. 20-24). Under section 20 of the C. L. P. Act (Rev. Stat. ]c. 50), service of the writ was required to be personal wherever Ipracticable, and therefore leaving a copy with a female servant jat the lodging of defendant has been held not to be good service hPrke v. Thomas, 11 C. B. 543) ; though if the service were l«hewu to have come to the knowledge of defendant, leave to [proceed might be granted. The above service, if of a bill in Chancery, would probably have been held sufficient under Chy. pen. Order 87 (see Elliot v. Beard, 2 Cliy. Ch. 80). Where, however, the service had not been personal, notice of motion !to take the bill pro confenso was required to be served personally, Pr a? the Court might direct (.see Chy. Order 107 and 108). Sae notes to Rule 42, as to service of corporations. Personal service may be by delivering the process into the defendant's hand ; or by seeing him and bringing the process to tis notice (Thompson v. Pheney, I Dowl. 441) ; or if he refuses to 'eceive the copy, after being told its nature and being tendered 'then by placing it on his person (Bell v. Vincent, 7 D. & R. ' ^ or by throwing it down in his presence (1 Dowl. 443). 108 ONTARIO JUDICATURE ACT, 1881. ' Ki'r P Rule 34. It. «. <) c. .'»o, H. ;, "No niiloago aimll Ik; taxtid or allctwcd forthe service of any writ, pajjor or proccctling, witliout an alKdavit Ijein^j made and produced to tiie iiropur Taxin;,' Oliicer, .stating the mini actually disbursed and paid fur suuli mileage, and tiie name of the party to whom such payirntiit has lieen made ; and, except in tiie cases provided for in tiie 'J.'lni section of this Act, no fees shall be allowed for the mileagi; or service of writs of summons or other »ii.',iue process urdess smved and sworn in the allidavit of service to have been served, l)y the Sherifl', his Deputy or Bailiff, being a literate person (or i)y a Coroner when tho Sheriff is a party to the suit), nor uidcsn a return of the Sheriff or Coroner (aa the case may V)e) is indorsed thereon." 'I'ue jiraetice was formerly similar in Chancery uinltr Order '2'.)8, but tiiat Order was rescinded liy Order 6 1(5, and .iiij reasonal)le sum paid for serving proceedings may now be taxed, no matter by whom tlie service was eftected. The provision for substituted service has been held in Eng- land, by Denman, J., in Chambers, to relate only to service of writs of summons or notices thereof, and therefore substituted service of a notice of ai)plication for a writ of attachment was refused (Anon. W. N. 1S7C, p. 105 ; 2 Charl. Ch. Ca. lO). It is presumed, however, that notices under Hule 108 may ho bo served, and that, umler their general jurisdiction, the Courts of this Province may order sueh service of all papers not required to be personally served. An order to proceed in absence of service, will not be made ; substituted ser^'ice must bo obtained if person.al service or acceptance of service cannot be obtained (W. N. 1875, p. L'Ol! ; 1 Charl. Ch. Ca. 37). Substituted service was not in use in the Common Law Courts. Tho ecjuivalent practice was that provided by K. S. O. c. 50, s. 20, under which, if reasonable efforts hatl been made to elf(!ct service, and either tho writ had come to the defendant's knowledge or he wilfully evaded service, an order might be obtained to proceed as if personal service had been effected. In Chancery, substituted service was allowed wherever necessary (see Hope v. Ilupe, 4 1). M. & C. 328). This Rule gives a wide discretion to the Court : for it allows substituted service to be ordered if, from aiiy cause, the plaiutiS is unable to effect prompt personal service. Substituted service will not be ordered, under this Rule, of a writ which could not have effectually been served personally— a> a writ against a colonial government (Sloman v. Governor of Xtw Zealand, 1 C. P. D. 503). In Cook V. Dei/, 2 Ch. D. 218, it was held by V. C. Hall, that the substitution of notice for service mentioned in tho latter part of the Rule is not intended to apply to ordinary cases of persons not able to be found, but who wore within the jurisdiction. He therefore directed substituted service of the writ by advertisiiii;, and by leaving a copy at defendant's office and lodgings. In such cases the time for appearance runs from the time the order t.ikes effect, that is, from the service of the writ at the place mentioned or issue of the advertisement, whichever is the later (Crane v. JuUion, 2 Ch. D. 220; see also Johnson v. Mofat, W. N. 1875; 1 Charl. Ch. Ca. 39, 248). SERVICE ON PARTICULAR PERSONS. |(»!t Tlio mode of substituted service to bo allowed in any case Rules 34 36 dept'iiils upon tlie circuinstancos of the case (see Cook v. /Jei/, '2 (Jh. IX -M«; <-'i-ane v. JuUUm, Ibid, 2'2() ; VapeH v. Jirnoer, 24 j^,'.;.';",'!."""' VV. K. ■!() ; Rafael v. Oriifley, 34 f.. T. 124 ; A riitUaye v. Filzwilliain, W N. lH7.")/i). '2.S8; (Jlmrl. Ch. Ca. 31); Bank of WliW'ham-n v. Thom/i.'om, W. N. 1877, p. 45; Jf/a<% v. Uom'ijwvU, 24 W. R. 851 ; Uartleij v. Dilke, 35 L. T. 70G ; Anon. I Cliarl. Ch. (Ja. 3S ; Alliin V. y'(>.T, 5 L. J. (U. C.) 118 ; CupptcH v. Yorston, 2 (Jliy. Ch. 31 ; SoinrrvlUe v. Joyce, 1 Chy. C!h, 358 ; Voopi'r v. /vaAif, I (Jhy. Oh. 3G3 ; Pearmn v. Campbell, 2 Chy. Ch. 25 ; (Jordan V. //aH«a, 6 I'r. Hep. 200 ; Cannijf'e v, Taylor, 2 Or. 017 ; W. N. 1881, p. 0). An order, directing substitutional service upon solicitors of (iofeiulant in a former action, was set aside, it being shewn that the solioitors had ceased to act for defendant in such forniei' action (The I'oinmeranki, 4 I*. D. 195). Substituted service, when duly effected, is for all purposes ccjuivalent to personal service ( Wall V. lia-nett, 3 Q. Ji. D. 303). 1 , I i 2. — On partiailai' Dejendants. 3. A married woman shall be sorved in the same manner as a party to a suit or matter, not under any disability, is now served ; and the like proceedings nniy be had on such service and with the like effect, as it" the married woman were a feme sole. (^ISee G. O. Chy., No. 613; R. S. 0. c. 125, s. 20.) This Rule corresponds with the Chancery Order No. G13. The Kuglish Rule K. S. C. 1875, Order 3, Rule 3, provides that, wliere the husband and wife live together and are both defendants, ser- vicii on the husband shall be deemed good service on the wife, but authorizes the Court or a Judge to order that the wife shall be served with or without service on the husband. The Married Woman's Acts in this country have made a difference (It. S. O. c. 125). 4. Where the action is for the administration or par- tition of an estate in which an infant is interested or where the action is for any purpose other than the re- covery of money from an infant defendant personally, 07- of lands, goods or chattels, of which he is personally in possession, service on the official guardian shall be good service on the infant defendant if such infant defendant is resident in Ontario at the time of such service. (a) If in such case there is more than one infant de- fendant, for whom service is to be made on the official i,'uardian, one copy only need be so served. {h) From the time of such service the official guardian shall become and be the guardian ad litem of the infant, unless and until the Court otherwise orders ; and it shall be his duty forthwith to attend actively to the interests M;irri-.| Wiiiii.iii. .-Iff ISi-rvirc oil odiri.Tl gnar'li.'iti. no «)NTAUU) JlMUCATirUK A(rr, IHHl. li-l 4 5 Rulei30 38of thf^ infant in tlin action, and for tliuti |Mii'|)ONn to ooni ninnioaio witli all propor partioH, including <HtH of tho infiint riiav rotpnro. (o) Any poj-Hon intcM-ostrd may nnivo Itofon) a JikIj^p in ('liamliorH, on Hnrh nnittU'iaJ nn hr may think pn)|Ho oonsidiM'tMl most condnoivo to tho inl(ry of money from him porsoiuillyor for tho recovery of hauls, ^oods, or chattels of which hois personally in possession, stn'vicii shall ho nnido on tho in- fant personally, and one copy of the writ shall also lie posted (prepaid) to, or delivered at the ofiice of, the oflicial guardian. (K. Sup. C, 1875, Order 1), K. 4 ; G. O. Chy, Nos. 517-520.) Tliis varioa from tho English Rule. Personal service on an infant is made in the same manner us upon lui udult (Dan. Chy. I'rac. (5th Ed.) 368, 370.) 6. Where a lunatic or person of unsound mind not so found by inquisition [or judicial declaration] is a defend- ant to the action, service on the comniittee of the lunatic, or on the pei'soii with whom the person of unsound mind resides, or under whoso care he or she is, shall, unless the Court or Judge otherwise oi'dera, be deemed good service on such defendant. (Comp. R. Sup. C, 1875, Order?, R. 5; R. S. O., c. 40, s. 70; c. 220, ss. 49-51 ; 0. 0, Chy., Nos. 517-520.) Same as the English Rule, except the words in brackets. The R. S. O. c. 40 s. 65, authorizes the Court of Chancery or a Judge to declare a person a lunatic without an inquisition. • in iiiiHut lUM'SOIIHlly. I.IIIIAtU!. HKHVKIK ON PAilTI(!ULAit PKIIHONH. II I Wlioro n liiiiiitio IkuI no coiiiiiiittno, Norvino v/nn dirnotnil to ))(tBalN88 41 oil till) kiiiMHir III' nil iiMyliiiii wIidiii tliu liiiiittin wim living ('I'/ittrn V, .SWA, W. N. IH71», p. HI, '27 W. It. «JI7.) Hy K. H. ()., 0. 'J'JO, H. W, tho liiH|KH;tor of I'rimiiiN niul I'lililio (!liiu'itinH iH f'.oiiiti!il. (.y«e} (i. (). (Jliy., No. f»lH.) 'S,--On Parliicrn and olhrr lioillen. 40 8. Whfirn partnors an; huimI iti thn iiMriin of thfiir firm, r.irtncri. tho writ hIiiiII I»« Horvnd oitlior upon any ono or morn of the |)iu'tiioi'H, or, at tho pritiitipal ))la<;n within Ontario of tho lmHill(^sH of tho partnorHJiip, upon any pi^rHon having at tlio tiiiu! of Horvioo tho (unitrol or nianagiMiiont of tlio [mrtiior.Hliip IxiHiiKtHH tlioro ; and, Hiihjifot to thu riiloH lioroiiiiiftor (iontaincd, hiicIi Hoivico Hhall ho dooniod good Horviiio upon tho linn. (li. Sup. C, IbTf), Ordor 'J, j(. G.) Hiunu AH the KiikUhIi Uiilu. 41 9. Wiioro ono porHoii carrying on ImsinoHH in tho niuno pnrHon of a finii apparontly coiiHiHting of nioro than ono porHon, ''j''"^ ''"*'' shall 1)0 siiod in tiio tlrin nanio, tho writ may lio Hitrvod iiumoornrm. j at tho principal placo within Ontario of tho husinoHH ho Icanii'il on upon any pot-Hon having at tho tinio of Horvice the control or inanagoinont of tlio Im.sinosH thoro ; and, jsubjoct to any Kulo.s of Court, Huch Horvico wiiall bo [deemed good Horvico on tho perHOii ho sued. (K. Sup. C, {June, 187G, R. 4.) Same as tho Engliah Rule. The power to partners to sue and bo sued in tho name of their Etirm is uuw. In sueli cases, if partners are suing in the name of Itho firm, they must, on demand of tho defendant, diseloso tho Eiiamus of tho partners ; and whether suing or being sued, they may be ordered by a Judge, on the application of any party to the actiun, to make such disclosure (Rule 30). If a hrni is sued as ^uch, service may be effected either upon any ono or more of tho partners, or at tho principal placo of business of tho partnership upon any person having the control or management of the busi- iiess. The partners are to appear individually in their own Uaiues, but all subsequent proceedinga go on in the name of the Brm (Rule 57). After judgment against partners, execution may issue against ny property of the ^rm, or against any pe."«ion admitted or djudged to be a partner, or against any person served as a bartner with the writ who has failed to appear. If the judgment Witor claims to be entitled to issue execution against any one ^e as a partner in the firm, he may apply for an order to that Sect, and an iaitae may be directed to try the question (Rule 346)* 112 ONTARIO JUDICATURE ACT, 1881, Rale841 43 If n IniHinofln is cnrried on by n ninj{lo imlivitlual ho may U huimI ill Mjd lirrii niuiio. Iliilo 41 |niiviu huuiI hurt), ami thu writ nuiy hu Hurvud at hix [•ia(U) of liuHinuHS in thia Province {O'ytil v. (HdMu, 40 li. J g. H. IJM). 49 (lorpora- tfimH. H. H. S. I t I ill 10. Wlioro l»y any statuto provlHion is madn for Hcrvicf of any writ of Hiiiniiu>ns, hill, petition, or otl »r process upon any corporation or any Hocioty or fellowship, or mi\ body or nuinlxtr of p(M"HonH, wlictlKU" (lorporato or otln'i wise, ov(!ry writ of .s'uunions may ho Horvod in tho nuui ncr HO provid(!, U. 7; H S. O., c. r)0, m. 21, 22 ; iv 149, s. 43 ; c. 150, h. GO.) Thu following sootionH of tho (J. L. P. Act, Rev. Stat. c. W), 88. *Jl and '2'J, pruscribe thu mode of service of a writ of suiiiiiKini" upon corporations : "21. I'.vury Hiu'h writ issued against a corjjoration aj;gre({,itt, 21. and, in tin- absence of its appearamc by attorney, all [)apur.s aini ])roct'cdiiii;s in the action Itufori' (in.vl judgment may beHervcdon thi! .Mayor, Warden, Reeve, President, or other head otHoer, nr on tile Township, Town, ('ity or County Clerk, or on the Casiiier. MaTiagcr, Tre.vHurer or Secretary, ( 'lerk or Agent of such corpd r.atioii, or of any brandi or agency tliereof in Ontario ; ami every person who, within Ontario, transacts or carries on any of the business of, or any business for, any corponition wiiose ciiief place of business is without tlie limits of Onhirio, shall, for the j)ur])ost; of being servtul with a writ of summons issued against such corporation, be deemed tlie Agent thereof. /''.,«. 22 "'2'2. Kvery writ of summons issued against a railway, tele gr.aph, or express corjionition, and all subsctjuent papers and pro cecdings, in the event of an appearance not having been duly en- tered, may be served on tho agent of such cori)oration, at any branch or agency thereof, or on any station master of any railway company, or on any telegraph operator or express agent, having charge of any telegraph or express office belonging to such corpo- ration ; anil any such master, operator or express agent shall, for the purpose of being served with a writ of summons issued against such corporation, or any paper or proceeding as aforesaid, m the event of non-appearance, be deemed tho Agent thereof." Chy (icn. Orders 01 & 92 prescribe the mode of service of a bill upon corporations. These Orders are as follows : cii. Ord. 91. "91. Service of a bill of complaint within the jurisdiction ot the Court upon a corporation aggregate, is to bo effected by per- sonal service of an office-copy thereof on the warden, reeve, mayor or clerk, in case of a municipal corporation, or on the president, manager or other head officer, or the cashier, treasurer or secre- tary, at the head office, or at any branch or agency in Ontario, ' or on any other person discharging the like duties, in the case of | any other corporation. /»»., 92. "92. Where a foreign corporation aggregate, defendant to » I bill of complaint, has no branch or agency in Ontario, service of the bill upon such corporation may be effected, oat of the jurir HKIIVICK ON COIIPORATIONS. iia ilictioii, hy piiMDtKil Hnrvi(!o of uii od'n'ir (!(i|)y tlicroof on tlii- ^Q]ei42,4S wanluii, roovu, miyor, olork, pnsHiilcMit, iiciiia^ur, or otlior Ik'ihI otlioor, or on tlio cinhinr, tnmsuror, or HniiniUry of huoIi (lorpora- tiiiii, or iitliur |)(.rson iliHuli;ir>{iiig tliu liku diilicH, lUi in thu otinu of Hervioi) in Ontario." *.'«,. ti« ti» tlicst) OnlorH, Cnmiihi'll v. Tdi/lor, I (-'hy. Oh. '2; /. as V. v'uhin; •-' (Miy <'li. 'J'H. I'lr till' I'loile of sorvini^ ooinpanios incorporfttcMl hy Hpeuial Act Kivl liy Itltttil'H pIltiMlt, MIU! \iv.V. Stilt. <:. I'M>, K. I.'l, illld c. 1.10, A. 00, iw to uiinipiiuioM incorpiiratol Ity tin; jiutliority of tlin Le^'isl.itiiro of Ontario ; 'unl M'J-.'J Vic. i;. I'J, h. H, nml tO Vio. c Hi, s. (il, in to Lonii);niiort ino«»rporntt!(l l)y tin; iiutlio-i. > of tlio DoiaiiiitHi I'lirliiuncnt. U has 1m!i;ii liiilil that a foreign corporation, liavin^ a jilac of Ini'tiniiss and trading in I'lnxlaml, may Itc Riii'd tliorc, and Hi!rv(Ml in till iiiannor pointiMJ mit in section Hi of the i). It. P. Act of ISiVJ, tiio otliocr lii'.in>^ for thin purpose in Knjjjland a licad oHiccr (iV(;« V. 'Die Itoijal Wax CandU Co., 1 Q. B. D. 404. i iSV« also lioinU Md'd Steam Packet . 512; Ciimc v. Kuttingtli, .W. N. 1876, p. 250; 1 Charl. Ob. Ca. 40.) ORDER VII. SERVICE OUT OF ONTARiO. (Comp. R. S. 0. c. 50, s. 48 ; R. Sup. C, 1875, Order 2, Rule 4 ; lb., Order 11 ; R. Sup. C, June, 1876, R. 5; G. O. Chy., Nos. 90, 100, 102, G20.) Previously to 2 William IV., c. 33, a writ from Chancery might be served out of the jurisdiction ; but unless the party served chose to appear, the suit could not be proceeded with as agaimt him. The following Statutes and Orders bearing on the subject were subsequently passed in England : — 2 \Vill. IV, c. 33; 4 and f) Will. IV, o. 82 ; 3 and 4 Vic, c. 94 ; 4 and 5 Vic. c. 52 ; G. 0., May, 1845 ; 15 and 16 Vic, c 86, s. 3 ; ConsoL Orders, Order 10, Rules 6, 7, &c. The practical effect was that in England the Court of Chancery at the time of the passing of the Judicature Act of 1873 could sanction service out of the jurisc'ic tion in any suit. By the Provincial Statutes affecting the Court of Chancery, and the Orders made by that Court in thii Province, the Court had a like jurisdiction. [See Consol. Ch. Orders No. 101 ; 12 Vic. c. 64, s. 9 ; 20 Vic, c. 56, s. 21 ; CodboI S. U. C, c. 12, s, 74. (R. S. O. c. 40, bs. 93, 94).] ■^^ir4f-'.'f'!P SERVICE OUT OF ONTARIO. 116 In the Common Law Courts, the power of serving a defendant |, . ^j out of the jurisdiction was governed in England bjr sections 18 aud 19 of the C. L. P. Act, 1852, and in this Province by the C. L. P. Act, Ont., 88. 49, 50 and 51. These sections cover two cUsses— (1) British subjects resident abroad, and (2) foreigners ; and their operation was limited in several respects. The authority given by the 44th and 45th Rules supra ia more extended than that given by the Common Law Procedure Acts. These Rules embrace all the cases in which it seems intended that the jurisdiction of the English High Court should for the present bo exercised ; and they will probably include all which the Court in Ontario will ordinarily sanction. But looking at the 47th Rule, the jurisdiction does not appear to be contincd to the specified cases, though its ordinary exercise may be. The present statutory authority of the Court of Chancery is to be found in the Chancery Act R. S. O. c. 40, ss. 93, 94 (following Oonsol. U. C, c. 12, 88. 71, and 28, Vic. c. 17, s. 12. See also 40 Vic. c. 7, Soh. (A), No. 50). " 93. An absent defendant or respondent may be served at any cji. Onl. 08. place out of ihe jurisdiction of the Court with a copy of any bill or proceeding without an application being previously made to the Court for the allowance of such service, and the service shall be allowed on proof to the satisfaction of the Court that the same was duly made. " 94. Where a defendant or respondent in any suit or matter is Tb. 94. absent from the Province, or cannot be found therein to be served, the Court may authorize proceedings to be taken against him according to the practice of the Court in the case of a defend- ant whose residence is unknown, or in any other manner that may be provided or ordered, if the Court, under the circumstances of the civse, deems such mode of proceeding conducive to the end« of justice." The eflfect of the Rules in this Order is slightly diflferent from that of the English Rules. Under the latter no writ which, or notice of which, is intended to be served out of the jurisdiction, can be issued without the leave of the Court or a Judge (Order 2, R. 4). Leave to issue and serve the writ is asked for in the same motion (Young v. Brasaey, 24 W. R. 110; 1 Ch. D. 277 ; Traill y. Porter, Ir. L. R., 1 Ch. D. 60) ; and if an injunction is asked for ex parte, that application should be maue at the same time ( Young v. Brassey, supra). The application is not one which can be entertained by a District Registrar or a Master (Eng. Order 54, Rule 2 (a)), and has been regarded by one Judge (V. C. Hall) as of such importance that he has directed that m [ all cases iu liis Court he is to be personally consulted ( Tottenham V. Barry, 12 Ch. D. 797.) An affidavit is necessary in all cases showing the cause of action and where it arose ; affirming the truth of the facts constituting the cause of action (see Great [Australian Mining Co. v. Martin, 5 Ch. D. 1) ; and stating the [amount or value of the property in question, the place where the [dbfendant may be found, and whether or not the defendant is a j British subject. Service of process upon a defendant not a [British subject might involve unpleasant questions of jurisdic- ition. In such case, therefore, notice of the writ, and not the jwrit, is served (Beddington v. Beddington, I P. D. 426 ; Westman Vt. Aktiebolaget, Ac., I Ex. D. 237) ; and that practice applies to [the Chancery Division as well as to the other Divisions (Rt \Homrd, PadUy v. C j^mphauten, 10 Ch. D. 650.) !■■ 'i) i ■ 116 ONTARIO JUDICATURE ACT, 1881. Rale 45- Under the Ontario Rules it is not uoccssary to obtain leavd to issue or servo the writ, but an order allowing the servii-o iiftcr it has boon eiVeeted will be made upon })r()of that tho service was duly made and that tho case was a proper one for service out of the IVovineo under the above Jlules (Rule 48.) It has not been the practice of the 0(mrt of Chancery to rc(iuire service in such case to bo allowed, but if no answer wns lilod the plaintifl' had to move in dhamliers to take 1)111 pro confenso, 'J'he atlidavit usually necessary on such inotiim is merely to establish the fact of the service and that the iMii'son Hurved is really the defendant. As to the mode of identiiicutiun 800 Armour v. liolwrtrnm, 1 Ohy. Ch, 25U, iwvVStilnony, Kciiiirdii, 1 Chy. Ch. y.'K). Probably such an aflidavit will still be re(pured imder tho new practice ; and it is presumed that the athdavit should also rIidw that prima facie the plaintill' has a gooil cause of action, as in England is necessary on applying for leave to issue and Herve the writ (see Great Attstralian Miniinj Co. v. Martin, ftCli. 1), 1). Under the analogous practice in a Common Law action of an application for leave to proceed in default of appearance, an ftlti- davit has heretofore been required, to satisfy the (!ourt tluit the plaintitV has a good cause oi action (sec Rev. .Stat. c. r»0, ss, 49 and Al). If default is made in appearance. Rule 45 (c.) provides that the plaintitF shall prove his claim before (d)taining judgment iu the cases to which Rule 45 (c) applies. If the case is not one in which service should bo allowed, tho proper course is, not to raise the question by statement of dcfonce, but to move to rescind tho order allowing service (PrcMonx. Lamonf, I Ex. l). 3«1.) Applications for leave for service, or for allowance of service, oi writs of summons »nit of Ontario do not fall within the jurisdiotioii conferred upon County J utlges and Ijocal Masters by Rule 422. 4,% Service out iu wimt m m 1. Sorvico out of Ontario of a writ of sunnnons or of Ontario: notiop of a writ of siuuinons nniy bo allowed by tho Court or a J udge in the following cases : (a) Whero the whole or any part of the subject-matter of the action is land, stock, or other property, situato within Ontario, or is any act, deed, will, or thing aflecting such land, stock or property ; (b) Where the contract, wjiich is sought to be enforced I or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or I other relief are or is demanded in such action, was uiadej or entered into within Ontario ; See Hati-ig v. Fleming, 13 Ch. D. 208 ; Oreen v. Browning, M L. T. 760. (c) Where there has been a breach, within Ontario, ofl any contract wherever made ; See Oreen v. Browning, supra. '.,.■! SERVICE OUT OF ONTARIO. 117 Promliin! ill COHO «)f iU'Kl iipliear. (d) Wlicro any action or tliitjg Honglit to bo rostrainod or Bale 48. romovod, or for which tlaiimgoH uro sought to bo rocovored, WI18 or is to bo done, or Ih sitmito, within (Ontario. "Action" is ii miHprint for "act." Tlio (vhovo rulo oorrcspoiidH othcrwJHo with tlio lOngHsh Order II, Rule I. A Htattiinoiit in the nature of shuidor of titio, mtuhi out of the jurisdiction, concerning property within tlie juriHiUction Iihh heen held not to he ivn act or thing airecting HUch property within the meaning of tliis chiuae (Vawy v. Arnott, 2 C. P. D. 24). (c) Whoro tho acjtion i.s ui)on a contract or jndgmonfc though tno Hamo bo not within any of tho four chiHsos already otiumcratod, but it aj)poars to tho Hati-sfaction of tho Court or a Judgo that tho dofc!idant lias asH(!t8 in Ontario of tho valuo of $200 at loast wliicii may l)o rendorcd liable to tho judgment in case the plaintiff should recover judgment in the action ; and, if the de- fendant does not ap[)ear, the Court or a Judge is to give any directions which the Court or Judge from time to time sees fit as to the manner of proceeding in the action, and tho conditions on whioli the same may be procfioded with ; and shall recpiire tho plaintiff, })efore obtaining judgment, to prove his claim and tho amount of thibt or damages (if any) to the satisfaction of tho Court or Judgo, and in such mode as tlio Court or Judge, having rciforenco to the nature of tho case, may direct. [See R. Sup. C, 1875, Order 11, R. 1 ; R. H. O. c. 50, ss. 50, 51.) This case is substantially provided for in tho same manner by R. S. 0. c. 50, 8. 51. As to service of a foreign corporation, having no place of busi- ness within the jurisdiction, see note to Rule 42. In England it has been held that the jurisdiction itt of cliiitii \w hIiiiII no Htiit<< in Iijm iDtMuoi'iuuluin ol' ii|)|u(M>i|)l of ii nuMiionuKlitni of Ap|M. (Iu« otlitHM' sliitll I'orlhwitl) niter the ii|)|)(setpH>nt proeet'din^s shall, neverthelesH, eontinuc in the name of the linn." ^K.. Hnp. ('., 1875, Order 12, n. iL'.) iSatuo as Kngli^h Kalo, l"\»r tlio nnnisions for naocrttviniag \vh(» aro tl>o [JArtuors in » tiriu utr Uulo lOiK Miiil uiulor til III IliUlUV IK Where any (iiM'son earryinj; o«\ lmsin«>sH in the nmno of a linn appaivnlly eonsistiujuf of n>ore than oih^ p(M'.son shall Ih» sm'd in the name of the linn, he hIuiII appe.ar in his own name ; luit all snbseipunit proceiMlinys simll, nevertheless, eontiniu' in the Jianie of the tinn. (ii. Sup. (\, .hmo, 1871), K. t).) Santo as tho Euulish Uulo. .1f» Twoor more 10. If two Ol* nioix? ilefendants in tho sanio action simll arivsiuiiuiu, rtpm^jji. i,y ^i,j} same solicitor and at tho same time, the names of all tho defendants so appoarinjj; shall bo inserted in o.io memonuuUnn. (11. Sup. C, 1875, Order 12, 11. 13; Knle of T. T., 185G, No. 2, Ont.) Saiue ns tho English Rulo tuul as prosont llulo of Q. B. & G. P., Ont. CO muler- takiui!. 11. A solicitor not entering an appearance in pursu- anc«.> of his written undortjiking so to do on behalf of any defendant shall be liable to lui attachment. (R, Sup. C* 1875. Onlor 12, R. U ; Rules of T. T., 1856, No. 3, Ont.; Rules of HUary Term, 1853, No. 3, Eng.) This is the same as the English Rule, and also as the present Rule of Q. B. and C. P., Ontario. The plaintiff may also pro- ceed in such a case under the 33rd Rule ante, which provides that "No .'*ervice of writ shall ')e required where the defendant by his solicitor accepts service and undertakes to enter an ap- pearance." w AI'I'RAHANOR. 121 12. A (lofoiiiliuit, iniiy nppoivr id niiy tirno lu'foin jml^ BuleiBlHS moiit.. It' lin itpptMir at iitiy i'luui Mlvv ilio Miix! liiiiitnl m for Mppcarntu'o ho hIirII, on (ho hmiiio U(;o wiicn tlioiTof lo Uio phiintiirH Kolicifor, or to Uio' phiiiiUd" him ",\]l'^Z''' Holf if ho HiioH ill porHoti, iiiul ho Hhiill not,, iiiMohh thoi'iii'i'mliiini Cmiit <»r H .MkIk" othorwiHo onh-iH, h<» onUlJoil to any IJ^',';','!,,,""*^'"' further I iiiio titno for ih'llvoriiij^ hiH (h^foiico, or for any k'^mi otiicr piirpoHo, thiiii if h(^ hnil appoarod itcconlii)^ to tho wrii((r); aiitl if tlii^ (lofrtithint appiwii'H aftor tho tiiiio ii|)|i()int(Ml hy tlii^ writ, iiiwl oinitH to ^ivo NiK^h iioti(!o «if his app('arano(\ th(« piaiiitid' may pnxM'od iih in oaHo of iioiiappcniiiiioo, ( II. Sup. C, lH7r), Ordor 12, Iv. If); U. S. (). 0. 50, H. (>().) {a) Tlio ralo up to UiIh noiiit in idiiiitioHl witii tlid IOii^IIhIi nilo. Till! rcniniiitiur of thu nilu iH tivk. c. fiO, h. (»(), liitttT imrt. For the tiiiu) liinifcoil for upiKtiuiiiKin in c/iho of hoi'vIco out of tlio jiiriMiliotiiiii nee Itiihi 4((. In ordinury ciiHt-H tho tiiiut Ih tun (lays iiftor Horvioo of tho writ, iiHiliiHivo ot tlio day of Hdrvico {nre App. A, l'"onn No. I.) , A form of notiuo of appoiiniiuH) will ho ftmiitl in App. H, No. VA. H'4 atllliri' 13. Any porHoiv not naiiiod aH a (hifondant in tho writ Appc of Huiniiion.s for tho rooovory of land, may, without loavo, ''y i"™'" a|ipoar aixl dofond, by filing with his appoaranco an an a iiirimi ailidavit stating that ho is in ]K)HH0HHion of tho land ""'■ oithor by himH(df or his tonant (as tho caso may bo), and statiiij; fui'thor, in oaso th(» poHHCHHion \h by his t(!nant, that tho dofondant named in tho writ in his tonant. : Tho aftidavit may be in tho form of affidavit numbered 3.3, in Ap[)on(lix 0. This rulo is now, as dispensing with loavo whore tho alildavit iu tiled by the dufoiKlant stating as thuroin nicntionod. The intention would appear to bo that in simple cases in which i leave would have been given luider tho former practice as of course, and an aiKdavit in tho form given can be made by tho tdefeiulant, no leave need bo applied for. Under s. 10 of the lEjectmeut Act (Rev. Stat., c. 51) it was often a (juestion whether la person could bo said to l)e in possession by himself or his tenant [Within the meaning of that section ; for cxamjde, a mortgagee out lof possession in an action against his mortgagor ( Afr. DirmoU v. jA'ee^iH*/, 7 L. J. 150, U. C, see also Morris v. Smythe, 2 L. J. .12). In such cases it will be necessary to apply for leave under Elule 63, as heretofore. U. [Where such affidavit is not filed] any person not Apncaran. <■ named as a defendant in a writ of summons for the |5J ,{^[V^lj"f/,j ecovery of land, may, by leave of the Court or Judge, land, appear and defend, on filing an affidavit showing that he :r,i ■• '! 122 ONTARIO JUDICATURE ACT, 1881. Korin of appoaranco IM BulMSS^is in possession of the land, either by himself or his tenant. (R. Sup. C, 1876, Order 12, R. 18; R. S. 0. 61, 8. 10 ; Eng. C. L. P. Act of 1852, s. 172.) Except the words in brackets, the Rule is the same as the Eng- lish Rulo, and is the practice of Q. B. k C. P. For cases under the existing practice see Harrison's G. L. P. A., 518. See also notes to the preceding Rule. The Court will not on the application consider nice qucstiont as to the right of possession (See Croft v. Lumley, 4 E. & B. 614, and Thompson v. Tomkinson, 11 Ex., 442). In Longhourmv, Fisher, W. N., 1878, p. 28, an equitable tenant for life was given leave to defend an action of ejectment in the place of her trustees, using their names and indemnifying them. 16. Any person appearing to defend an action for the iVy'kndrord, recovery of land as landlord in respect of property whereof he is in possession [in person or] by his tenant, shall state in his appearance that he appears as landlord. (R. Sup. C, 1875, Order 12, R. 19; Comp. R. S. 0. c. 51, 8. 12.) Same as R. S. O. c. 51, s. 12. The English Rule has the vord " only " instead of the words in brackets. Notices of 16. Where a person not named as defendant in a writ by'perion* °^ summons for the recovery of land enters an appear not named as ance according to either of the foregoing Rixles, the appearance shall bo entitled in the action against the party or parties named in the writ as defendant or defendants ; and the pei'son so entering an appearance shall forthwith give notice thereof to the plaintiff's solicitor, or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the action (a) ; and if such person appears and omits to give notice of his appearance, the plaintiff may proceed as in case of non-appearance. (Comp. R Sup. C, 1875, Order 12, R. 20 ; Rules of T. T., 1856. Na 93, Ont.) (a) The preceding part of the Rule corresponds with the Eng' lish Rule ; what follows has been taken from R. S. 0. c. 50, sec. 60. A form of notice of appearance will be found in App. B., No. 13. 17. Any person appearing to a writ of summons for api)earance the recovery of land shall be at liberty to limit his 'i*n*d. '"" °' defence to a part only of the property mentioned in the I writ, describing that part with reasonable certainty in his memorandum of appearance ; or in a notice intituled in the cause and signed by him or his solicitor, sttcb a defendant ill writ, 6« Ijimited DEFAULT OF APPEARANCE. 128 notice to be served within four days after appearance Biilet66 69 [upon the solicitor whose name is indorsed on the writ, if Notice. any ; and if none, then filed in the proper office] ; and an appoarance where the defence is not so limited shall bo deemed an appearance to defend for the whole. (R. Sup. C, 1875, Order 12, R. 21 ; Oomp. R. S. O. c. 51, s. 13.) The C. L. P. A. c. 60, s. 13, does not provide for the alterna- tive of the notice being in the memorandum of appearance ; and tho Knglish Rule does not contain the words in bracketa, theae beine taken from the Out. C. L. P. A., b. 13. •r 18. The notice to be served as mentioned in the last Form of preceding Rule may be in the Form No. 14 in Appendix *"**'"'■ (B) hereto, with such variations as circumstances may require. {Comp. R. Sup. C, 1875, Order 12, R. 22.) Same as the English Rule. 19. Any person appearing to a writ of summons in Limiution other cases may limit his defence to the question of the to amount amount to which the plaintiff is entitled, and in that claimed onij case may in his appearance, or by notice served within four days thereafter, state that he disputes only the amount claimed by the plaintiff; and he need not file any further defence for the purpose of disputing such amount ; and the plaintiff is to proceed as if the defendant had filed a defence disputing the amount of the claim. The notice disputing the amount of the claim may be in the Form No. 15, in Appendix (B) hereto, with such variations as circumstances may require. A similar notice was provided for by Chancery Gen. Order 436, in mortgage suits. The extension of the practice to other suits is new. It has been decided that a defendant filing a dis- puting note in a mortgage suit may on the taking of the accounts shew that the Statute of Limitations applies so as to prevent the recovery of more than six years' arrears of interest ( Wright v. Morgan, 1 App. R. 613, overruling the decision reported, 24 Gr. 457). But the Statute must be pleaded if the defendant wishes to set it up as a bar to the suit (Cattanach v. Urquhart, 6 Prac. R. 28, explained, 1 App. R. 616 ; see also notes to R. 147). ORDER IX. DEFAULT OF APPEARANCE. ,p 1. Where no appearance has been entered to a writ of ^y person of summons for a defendant who is a person of unsound mind, niind not so found by inquisition, or judicial declaration in lieu of an inquisition, the plaintiff may apply to the ur^ mm If' ■ : 'S I '24 ONTAIUO .?IM»I(!AT«mn AOT, IHHI. nn ilio hivn-in^ of hiioIi ii|ii)li<>iil.ioii iJiitt tli(> wi-il. mI' hiimi nioiiH wiiM (Inly H«H< Of n. ^\u\}(fy fitr nit ontoi' Oiiili iJio |Mil)(f poiHtiii l)n nHHiMiiiMl ^iinriliint of RUi'li (ioloiKlaut, liy wIhiiii Ii(« tuny h|i|m>iii' and ilnl'iMnl tlin HiMioii. (m) Uii(. no Hiu*)i ordor hIiiiII \»> uvuh uiiIchh il, ti|i|i(>iirN r Hiioli iippr orvoil, iinii waH, alYor ilio ox|Mriilion of (.Ii*> liino nllowcil loi- ii|)|M>i I(Mih<. hIx I'lcnr davM lii^riiio iJio diiy in llio no(i(M> ninnod lor licarinj^ a|)|di<'iilion, Horvi'd ii|)c)ii,iii' loCi at tlio dwiOlin^ lio\iHo of, Ili<« perHon wiiJi wIumii «ir nntlor whoHo oaro mucIi dorcudant. wuh al, ilio titiin of Korvinjt hiicIi writ, of Hiiinnioim. (, f.20; U. H. ().. 0. 4«). M. n not) npoak of mi olllcinl giinriliaii, miil inclitdoN tlifl oiMo of lilt iiifiiitt whioli in Itoro provid«Ml for liy Kiilo 70. It wotiM m'ottt ffnttt llic toritiH of Wttic .'111, fcliiit ('Vcii tlmiij^h iiii Appoat'intoo nhotild be oiitcicd for ii Imtatic, if lio liitn no inni- niittoo or gitiU'tliiUi nif litrm, tlio ])liiiii(iilV oiiniiot, procnod ntilil a ffii:trintoa. This Utilo is hasod upmi tho Kn^lixh Chancory Onlor Vii, Rnio l\. Tltoro aro, lt<>\vovor, two altorations, vi»,. , tho sahntitutinn of " tho ollioial guardian or Hotno otitor propor poi'Hon " iov, "one of tho Solicitors of tho ("oiirt," aitd tho oniiHHion of porsoiis of woak tniitd front tho porsoita rogardod an mm com/Mtcn wfuli*. In tho ("otirt of (Miattoory porsoitH of utivat ago and !ncapfti»loo( attonding to husintma havo Ikmui ordorod to bo dofcndod by fnariiian 8 ; Nnoman v. Seljt, 1 \V. R.. 7«4.) For further iitforniatiou on this subject, suo Morgan's (Jliy. Or- ders, p. 400, 4th ICd. 2. In caso of a.n infant defendant, who has hoen served with a writ of sunntiona, othorwiso than by thci same being served on tho orticial guardian, if no guardian ai litem is appointed within 7 days after tho tiino for ap- j>OAi'!vnce had oxpii*ed, the phiintilf may serve the official guaixliau with notice of the said particuUira ; where'pon from the time of such service the official guardian shall become and be the guai'dian ad litem of tho infant, unless and until the Court otherwise orders ; and it shall be his duty forthwith to attend actively to the interests of the infiEuit in the action, and for that purpose to communicate ro n.v infanta. nKKAiii/r nv wvr.snsmm. 190 will) nil protHM' |iiirti(M iiml liiki' himIi oilier pro (MMMlin^H ii>' llin ititiHrH of I lin iiiraii'< iiiiiy r)<(|iijr(t. C. 0. Cliy., NoH, <;i(», 111 I.) Kill' till* I'liNi'N ill wliioli Norvico in it'iinimil In ho Dllnctoil nii nri infniil/ iIi'Ii'IhIiiiiI' |M>rHiiiiiJly {mr it. iT/.) TliiN <'iiin««|MmilH HiiliH(,iiiit,iiilly willi <'liy. OrdiT 010 ninl Mi" iiruclii'i' iJii'ioiintliir, i>x('i'|tl, Uml, l.liikt/ <»i(l('r i'<'(|inn'(l iiii '.(■ /mr/f iinliT I'll' till' iiii|iiiiiil.iiM'iil. I/O liii tjtki'ii, wlii'Ji iiinlcr lliJH Itiilo will nil liiiiK'''' I'" inn!iiiriii'''v il(iit'ini('o iinil*fiiiilt, iilo lui iilliiliivil of Horvici!, or ol iiot>i(;o in lioii of Horvici^ |or Mio inidortfikin^ of tlic dcfondiinl/H Holii'ilor iK'(if«|i|,iii^ Hurviiin iirid nj^ifcinj^ to Diiti'i' nil (i|»|H>iirinin>, with iiti iididiiAit, verifying IJio iiiidrrliikiii^ lilod, mm thooiHo may Imi.J (ll. tSiip. , Order i:i, 1 1. L>.) TiiiH liiilo i^orrcMiiDiidH wiili tlio I'/ii^JiHli Itiile, ex(!iipt, Uuii ilif claiimt ill lii'iiclu't.H m not in Mio latior. I{iiliraii(:i! to a writ iti(li)i'H(Ml, iindiir Uiilo Hi, with a eiitim for an acjoiint. Tlu! Hulmtitiition of iiotioo in lieu of mrviee of tlie writ in nutliiii'ixiMJ ill eei'tain oaHeH where the ilefendant iH out of the jui'iHilictioii {mr Onler 7) ; aJHo, if they tli(! dcdWrirhiiit wliorn wiir-r»- writ the writ of suuiinoriH is Hpocially indorHcnl undor Older '.'*, ^JX'nl'Ji Rule 4, tho plaintiff may Hign final jndgincnt for any Hurn not exceeding tho sum indorHed on tlie writ, togotlier witii interest at the rate specified, if any, to tho dato of the judgment, and a sum for costs, [and tho plaintiff may, at the expiration of eight days from tho last day for ap- pearance, and not before, issue execution upon such judg- ment] ; but it shall be lawful for the Court or a Judge !fr= 126 ONTARIO JUDICATURE ACT, 1881. f//w/ H BnlN78,78to set aside or vary such judgmont upun such termH as may seem juHt. (R. Sup. C, 1875, Order 13, R. 3; K. 8. O. c. 50, H. 64 ; Eng. 0. L. P. Act of 1852, h. 27.) Tho words in braokcta are not in the English Rule, which ii otherwiso tho same. Tlioy have boon taken from II. S. (). c. M, s. 64, with which, in that respect, the English O. L. P. Act of 18Q2, B. 27, currcspunds. Forms of tho judgment will be found in App. I., Nob. 147 and 148. Ujidurll. 8. O. c. 50, s. 64, it was provided that an applicntion to sot aside a judgment must be based upon aHiduvits " accouiitintr for tho non-appearance and disclosing a '<, m i'iHum ,,1 (l»i>n», 'iltiill l<«t HMiM>r(niHi'i| it) mu ntlici \\i\\ in «\ MpIi inw nrlion ui'M Iik liiml (''""si. H Mnp «', |M,-,A. Oi,li.( l.'l, li (1. li f) (» ,• fill. H (i:, I>:mu. r I, V \A Ml' IMH't, MM "M, !M ) ^'lli^ lint i'<)|>iiHil'i « lilt III!' »»>'« I'luuliMli Hull', I'ti'i'pl llifil ilih IIUHOV H»i>\iili"« in ll((> II(mI idliMlftliM' lot IV will: III' iMI|IMlYli< ivm)i>4>i ()(,' il-nui»ui">. i(wli'i>il i>r llu' I'liuiMii i»l(iivii In IkiiIii'Im 'I'Iip j»vn«'li(' > u\ (»rlii*\>'i i\( I'tw iim»ii'»h <\ n", iIimI llii' |>l(itiliir, In llii> n>ii' |»»iM iili'il li>\ l\v flu'i Knli', illi'il Mtiil mi'MimI !i ili'i'ldi iiliMti, III i>i| will) n milii'i- (i> |>|i't>il ill I'liilil il'iN'i, iiml lliiMi il iiii |i|ii:i >\\>i«' |>li''»\l\'il siiiiii'il iiili'i liiiiilni \ jiiili|iiii'iil liii Mini 111 II |ili.| 'VIliMI iliim.lui'H \M>\»' rt'»'Jt'<»m'il I'lnli'l llii> |iii''ii'lll Itiili' inlm l>\>>i\(iM\ jiiilnmonl' u»ivv III' iMiliMi'il ininiiMlinli'ly ii|iiiii ili'Inill ni :»^i|ii'-iriiiii'(' ; innl (III' iiiili'i'ii'iiii'iil I'll (III' mil iiill (umimh iIm iininiiv ii'< (\* ildiiitim'o M idii'iil iin\ I'lrnliii!! \ i,-i III .'» iiili'i lii.'iid'i \ jinljiniriil M ill I'l' li'iiiiil in \|i|ii'nilix I . \-' I V\ ;in>| ol illllullli'lll III lli'l mil 111 :»|«|ll'Htilllil' lllIlM llilMHil III. Ill ol il;\lll:l.ui'«, III Vl'Hrllillv I , Nil lill \{ \\\'iilil ii'i'li\ dill, iniili'i (lii'J Unl"', wlii'ii' (111' inliiti i< ImMIIUIU I\M (111' r.)H>i'lli>' li'i'iiVi'l\ ill i'IiiIIIi'Ih. (Ill' plilinllll MIllV, \»|iiMi ili'lrtiiU i»l i>)i|n'iU(n\i'i', li.i\>' iiiilonti'iil; Ini Mii' ili'liu'iv nl thi' \'lii*((i'l« i lUiil m.»\ (lii'ii I'lili'ii'c (li!t(' |inlnni"nl iiiiili-i (liili> :t4'> \h^o»ti V> {\uiA\yh.ui{; \V N, IN,M. p. '.UK, /i,c «,»inilil, .1 , iil ( il.»lll|l>Ms\, \<.(HHi iV'i S III iVtm* \h\ mHii'iUiUli'i' 'illilll lu> iMdcrcil iti Mil Mi'lliMl '""' {W (ho «\>i')ip>vuMUi't', ^l^ \( .'HI mipcirinii'i' 111' I'lid'K'il Ind ( lii> ili'li'inv l>i> iiiuuo.l lo |i;ni <'iil\ . I 111' I'l mil id' iiliiill 111' III lilii'i l\ in «'n |u«li;i»\''iu , (li:i( (In' |>i'|miiii w Inmi' (i(li> im ii'iiicid'il \\\ I In' win sliiill ri'i'ovi'i |i«i'«ti'<'niiii nl' (lio liiinl. niul'llir ivu I \li<'n',>( (ii v\ lui'li (lie ilt'li'iii'.' ■'.,'< Mill II I i|ih {{ '■iiii|i K. Sup r. ls,^^. Onli'i- i;i. |{, , . u m o ' Kuii *' I V Ao( oi" is.v. M \:: ) t' i» I . :i rhl!» I'.MIWip.MlilH W ld» d»t' l'".lli;ll^*ll Hull', 'lllil I'l III MUli'il:llli'i' lill Hrtnio ;>s (ho I'ornior pijn'doc, A (\irui ii( juiIkuh'iU wliii'li imiv In ,S ( :»>l,-»p(i'«) . \\ h('\>i> (111' pliundd" li;)s iiiilor'.i'il u I'liiim I'nr iiu'miu' « pj-^^i^i^s ;ui\\U's ol iN'M(. or tlaninui'N lor Ini'iii'h ol" I'lUiliiu'l. t » n A.-tu'in r.''! l«n.i, ujHM\ a Nvr\( t'l'v iho ^^'^'o\«'n o(' ImihI. Iio luity t'lilcr jiiil!,: uuM\t ius \\\ (ho l,is( pi-t'invliuiij ludo luontioiioil, lor tin ];\\xd ; ;uui <\i,i\ piMOi'0>l ;is in (ho odior jiroooiliiij;' l!iili'.< ot" tins v>\\h'r. .-IS to Mioh olhor oliiiii so iuihiisod, (I!. Sup r. is;:*, t^nlor is. n. S; U. S. O. o. .'»|, h. VO; I'H 0. k r. Ao( ot' is;m;. s. -j;);.^ rh-.* IS tho sanio as t\y Kuijlish Ivulo. Tho fonucr lum'tiit' ooittuuHX this I't^ht to tho suit ot n huullonl aij;iuiml ti louanl. ,l|i|illM|fN IM ttM I'll I'CII'lf I Ml Nil I'tiilm iillii'i- Mum limxi' mi'tillMHi.il in lln- llnlc cum, wHIi'ikI Rti|»,«V7 7»» liMtvi', III' |iiImi'|| ^rilli n iliiliit Im lli" M""iV"iv 'if I'l'"' ''"' l!iil'' im, /"I'M \ li'im III liiiliMiii'liI wliii'll Itinv li" iiil'tjil' 'I I'l if»'-i I Miicli i-iijii. ,v,|| I"' I. HIM. I Im \ iiiiiMilU I , No l.'il III W'll'll' I||I' iM'ii'HI i'l IM ll'IIM'll. Ill II (Mt|( I :( 1'", 'll|i| ''l'l»l"""' 1:11 I I . '"' (""''("■ llin |iIh!iIiII I'hlimM limMliciiM " III Mii|i>. Ml I I'lp (((|in'Mi, mc |((w»HI(i vvlicir IIm' lll'liilll i'l III! ll|i' ImIiiMIIMI I mI IMII mI 'lit (..||,i|('>, in"""'" Inl II lull I ll lull, ill" (llililll ill illt'lll Im> ('(it il |("l hi n ilMl;{(l»M((, III iinli'i lilt /i/('"'/i'' Im IIm' IIi'iM'iI I III . I'i')iiil',' lli'i;mliin, I,,, I'll Id iiiil I 'II . Ill ' 'li'i ll 111 I 'I'lml V ' li'i I; 'll ill" i'lir.vn illnl rii'lll, fl'l llll' I'llMI- IIIIIV ll", 'lit Mini. »M'mI"IM'" lit' (M(V) iml III 'iiii'li I'iMi'i ( ii'i iii'iulv H'l iM'i'i' III* I, ii't |»i inid'il I'll |iy||ii<|ili Ill |ii iH'l iiM III I III' I 'mil I III' t 'li'ini ' ) V i'l ll"'' iii'inii 1 1. n ' 'iiv . Nii't :u', I t.'i !.'h;, i, i . i, |.' , K hi iiii'iiiiii'il I I'll llii'i lliil", lil(i' llll' l(''i|. iif III" lliiliit iiiidi'f ||||.| Mull I. il lllllv Il|l|illl "ll'l" III IMl'lI'M Mllll'l !• ill dlllll, llUfl Ik'I'K |l|'»il" III ll|l|l' "11 IIIM'I'. Till' < li'iii'i III 1 1| ili't'i .'I'l, l.'lfi mill l.'IO. I iTm I I'll III IM fill mint' (lii> jiiimoiil 1 1' ■ Hull', mil V 1 1 1'lil 11 f I 'I'll"! Ill (ill "I'I'i'iiii '•, null. Ill I iili.i(i|i linn i mill till' |im'l I' '■ iif I Iih • 'inn ) uf ' li'in'ii / Ici.i imiI. Iii'ri.(,((f'i»n I'liiilili'il 11 iiliiiiilill 111 iililiiiii 'I ll'l II I III iiiili'i llll iiiii'fl/ii Ut iillii'i i'udhh, (tnli'iH lli'lH ini'l Mill [.I'll I'll I'll iiilMiiiiiii||.t'ii.l.i'iM lii'iiiii iitiltitii'il III It Hiiiiniiii V W'tv (III mill 11(11 Nk Ckmiii nf |i|i|(iil|i'iil, MM /ll if'i'(/li' 111 inllilitilil I 'll llll iii'l.iniin ilio (.Mvi'li, lli"ii|/|| i'Miin III 1 ii.i"« III Till I'i'liKiii I', im|i< nil I M'ili'iii|il mil an- (iH'ii i ilr'i) (si'ii \|i)in Nii'i IllH, 17" I IU« (iii'iiiiiiii'il lli'il. Ill" Hill iil.iiiM (iniiit l'lli> Kill" i'l, I M i< 1 1 11 1 ill' It iniliilili'ii I In III' 11 'Ml I I "11 /I I "' i/i' II I mil I ll'l |ir'ii|l|rl.iiill 111 I'Viili'lli'ii ' ll'il I'l lliitl, |i'i|i|li I'll liy U|i' (iliinl-li'i' iif till' I 'iiinl 111 I 'liiitiiiii| V iiii'li'i * 'i ill I n il>l mill f.'iri, itiiil l.'ifi iii I'liiro III liiii'i'liiMiiiM, iliii, wlii'i'i iin imiWi'i- *V'i,ii lili'il, iiiii| lli'il. till' |ii'l'jiiii III. Ill iiiliuiiiiLilj III mil mill |imlil.iiiM I'mi h will ln' qiiMilnr Ui llll' fill III |iiiiviiliiil liy III" |ii'ii lii'> III I'limii'iy wli<'ii> Mi« ii|'|ili i';iliiiii I'l liiii'li' 111 II l.iiriil .Mnili'i nil iiiol i'lli (o" A |i|i<'M'li <« I 'iiiriM 1(1 Mill r/"l I'lii' |il wlii'in |ii I'liiiiiil Niirvioi' Ii/kI >II>I, )iI < »i I'lliM'lnil, I III' ( 'liinii'i'i V |iiiii'liri' ill I'lli^i'B III' fiit«il(i!itif»>, K'l; , (ll'l lliil. l'ii|liii'i< (Illy |iiiiiir III UiM (ilililll ; l.ll" (ililci (III /irirri/M' wnM llliwli' nil |iiiiill|i'tliiii III nil iillii" iiijiy III III" r,ill Kill |i(ii"l 'if I lie, Ki'lViri' (I li'ii ( >|i| t!lli mill (ill!) Wli'ii' llll ,i|i|iiiii iiiii' liuFi liii'ii iiili III! Ill ill)/ 'if Uw •■■.if.in ri'lmii'il In 111 tiiiii Hull', il, im iiiiliiniU.i i| Uml. i\, jiiiIimiii iil, rIi'iiiI'I mil III" Mij.;iii'il MM /iiiriiiir, mill 11 n hI.iiI.i'IihiiI, '»f il")((i(:c. in idnit illril :|i|llllM.III|.r I'lii'l. I illlllirii'lll, l.ii i lillt.l" l.lin |i|mMl,llf '.n il i|'<'r''^t II 111 ll'l' III" iMllliiif ||| iii'lirn IM ( 'll IIIII I y III I li;il. i 7i||l, (|l. |« |ir<-- iiiiiu'iI) ll ilrciiiM 1(11 inii'-ijn' l/iiiy ll" iH'iiiiiil, liH In rit'ilcr'; ifi f'lr*".- i.'liiHiii'ii, niili< iiiiil ri'ili'ii(|il.i(iii i;iii(:m iniiliir Or(|<^tN \'A'i ,'Ui'l <>(♦» WliiTi! JiiliiiiiiiHliiati'iii Im miiii)/.IiI. liy jy li<5 iiiiisl i'\|i('ililimiMly, mill loul, i'X|>iii!iivcly, nlil.iii/ii-.ii iiii'lir I.Ik; Iiu'.siiiil, Itiili'. ilnliimrily, linwiiviir, .'ulinlnifltrati'in nr |iartil.i'»ri will In; ImjhL iililiiiin.'d (III iiiolioii .'iijcoriliii^ Ut f.lic jircflcnt f)r.T.i;t,if:«. ^■mr \:\o ONTAHIO JUDICATUHK ACT, 1881. Rulo 78. /'r(FVi';ir lIlM'l't't'S. mm Ch. (Mil. :is. Oil (Mil. i:!'J, t'li (irr!vyt(l for, tlit' iidu-iipiHar- ivnco of till' (lt'f«Mi(lniit will not ciititlo <.lit\ jilfvintii to (ilituin oil pnrrifir suoli ollior (Iccico. TliiiH, wluTo iiiiiiivMlijitc Um- closure WiiH askfil and the iiioit.^';ij,'or iiiatlt! default in ii|i|ie,'iraiu'(', only tlie usual foroeloHure deerei^ wa.s made (/'"'','/ v. Hint, 4>S I,. ,]., Cii. {\W). In sucli eaHo a judgment eouliiiniii),' tlic additional rt^lief, if |iro|ier, (•.■in lie olitained on motion lor jmly- met under Kules T".' and ',11^}. liefore Hettin;^ a eaHe down nii motion for judgment tlie |)laiiitiir imiHt deliver a Ht;iteim;iit(if elaim, ov the notiee aiitliori/.eil in lieu tiiereof (see Minimi v Mrt,ni v. Mil/rr, lii. r»l(>). 'I'lio followiiij4 Cliaueory Orders show the preHeiifc i>raotieo of tho Court of ("lianeery referred toiii this Uule : ".SS. i'A'ery |)e|iuty-Ui\nistrar may issue deeree.s on /icihi/x for foivelosure, h;i1i! or redemption, wlieri^ the suit is hetwctn tin orii,'in;il iiiortnagee and niorti^ai^or only, .and is to enter such dc- eri'es in a liooU, to lie ajuirovi'd of liy the ( 'oiirt, and Uejit for tli.it purpose liy the Deputy- Kej^istrar.' "4;Vi. Where the cause is heard upon ;i.n order to tiilu; tin bill /)*•() f •()/(/(. vxo, in a suit for foreclosure or .sale, and im refer- ence ;vs to iucumliraiiceH i« riHjuired, tlu^ plaintitl' is to prodiKTiit the hearing : 1, Tho inortg,'ijj;e deed, and the iis.siginnents thereof, if any; 'J. All allid.ivit which is to state the amount advancoil uiwii the security ; the amount p;iid, whether hy rcw'!]it of ri'iits or t)ther\vise ; and tho amount remaining due for jiriucipal ami interest, distinguishing how mucli fur princiii.il and interest, distinguishing how much foi'tlu' ])riiiciiial and how much for the interest. The allidnvit is to state whether the mortgagiul preiniaes, oraiiyjiart of them, have ln'cn in the oecti]iation of the niortj^ageo, or of any one under whom he claims ; and when then has been any such oijcupation, the allidavit is to statu it; nature, the time it continued, ami tho fair routahlc v.ilne of tho property. "4IW. I'pcui production of such proofs uiul documents, tlu t^ourt may at once detcrniine the amount (scr p. <»J). "4;{r). Whoro tho dofondiuit answorH the hill, admitting thofJti.Oril.iMr.. execution of tho inortgago anil othor factH, if any, entitling tho plftintill' to a rooipo to tho RogiHtrar, to bo entitlt'il to Huch a dcsciroo as wonhl uncbsr tho jtraotico of tho (.'(lurt luivo boon niado upon hoaring of tho oauHo /n'o roii/rxno. by Order ()4(» (.w p. !H), this order was made to ap])ly to reileniption Huits. 'riiero i.s a further exteuHiftn of Order 4'{5 by Oriler i>4(i. "4;((). Where no answtn* is liled, tho de(!ree \h to bo drawn u|»(;ii orii, cm. \\\)i>\\ jiroiluction of an ollice-eo{)y of the; bill and an allidavit of tlie service tiiereof, showing the Hamo to have been indorHed with the notice Het forth in Sehedulo S, hereunder written. 11. Wlipro tho action is for tlui Ibrc-cloHuro or nidc-nij)- JlMl^;lrl.•fpl Iniiitill not tioii of a niortgago, or .salo of iuortga<^(!;:so, as the case recjuires, may order a receiver of the real and personal estate of the defendant against whom the bill has ordered to bo taken ]>ro cunfcuxo to be appointed, with the usual directions ; (u* may direct a sequestration of such real and personal estate to be issued ; and may, if it appears to l)e just, direct payment to bo made out of such real ancl personal of such sum or sums of money as at the hearing or any subseipient step in the cause the plaintifi' seems to be entitled to ; provided that, unless the decree is absolute, such payment is not to be •lirected without security being given by the plaintiff for restitu- tion, if the Court afterward should think tit to order restitution to be made. !■ I 132 ONTARIO JUDICATURE ACT, 1881. il Rnle879.80 "119. Th« rights and liiibilities of a i)lairitifr or tlofciiil.int iiiulor a (locrt'c inailo upon a Itill taUon pro cmifi'Mo exti-nd to tlic. *■'' '^"'- ^^'^^ roprcHi'iitativos of a (U'coaHod plaintill" or dcfiMidaiit at i\n\ time wiicM tiio docrco was proiioiiiuiod ; and, witli rrfcronrt: to tJi.; altorod statu of parties and any new interests aeiiuired, tlic^ ('(niit may, upon motion, served in such manner and sni)porteil i)y .tiuii cvidcnee as under the eircumstaiKJCs of tiie ease the Court may deem sullieient, permit any party, or tlie re[in'sentative of fuiy party, to adopt sueh prociredings as the nature and eircunisliuices of tiu' case may re(|uire, for tlie purjiose of liaving tius docico (if absohite) didy executed, or for tiie ])uri)oso of having the ni;vttor of tlie decree and tlio rights of tiio parties f the bill or otiier |iroceeding on tiic da- fondant has been personal, by publication, or otlurwiso slmll be absolute in the lirst iustauce unless the Court shall otlioiwist; oriler. " MO Ix>avc to siKU final juiigmout. ORDER X. LEAVE TO SIGN JUDCrMKN T WItHRIi; WRIT .SPEOI ALLY INDOU.SEl). 1. Wlioro tho dofnndaut uppciirs to a writ of siniiinoiis .spooialiy iiulursed, under Onlor .'5, JIulc 4, [ [a) ami ih plaiutitl' is not ontitlcHl to a jiulgiuont oi* order, under tin' preceding Order,] he may, on an allidavit (6) (made iiv himself, or by any other person wiio ean swear positivclv to tho debt or oau.se of action), verifying the cause ot'iic- tion, ami stating that in his belief there is no defence to the a,etion, [serve the defendant with a notice of niotioiij to show cause before the Court or a Judgewiiy tho plain tiff shoukl not lie at liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs. A copy of the atHdavit shall accompany the (f) notice of motion. The Court or a Judge may tliere- vipon, unless the defendant, by affidavit or otherwise, sati.sfy the Court or a Jmlge tip^.t he has a good defence to I the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend the action, make an order empowering the plaintiff to sign jutlgmeut ac- cordingly. (Comp. R. Sup. C, 1875, Order l4,K.l; R. Sup. C. May, 1877, R. 3, which repealed R. Sup, C. 1875, Order U; R. 1.) (o) These words iu brackets are not in the English Rule, (i) Instead of the words in brackets here the English Rule has tht I LEAVK TO SIGN JUDOMENT, 1 X\ wnnlfl "call on the dofondanfc." (r) The !•> iip'i Rnlo has hero Rule 80. the worils " suinmoiiH or." The IIuU-h arc otIierwiBC the same, ami the jiniotico tlioy provido for \» now. Tlic words in hrackotH ('*) liavc J)('on introduced in con- 8C(|ueni'e of the dcH-iHion in /iaid- of Mniitrrnl v. f'dinrron, 2 Q, 1$. I). r)3(>, where! it was held that Hincc, under the orit^inal Hull', tlio atlidavit was nMjuired to he made hy the plaintifl' him- self, tlio WwU' eould not apjdy where a corporation wa.s piaintid". A plaiiitifl" may n,pply for jndfimi'nt under this I'ule wliere the ilefun;lant is a corporation (Slwlfurd v. Loitth A 1ursuancc of the Mules of the Supreme Court (()rdcr 3, R. 4, marginal numher 14). 2. My said claim so indorsed is for [here state the claim as in the mlorri< ploiiH liiivo l)(uxiviiiiiiiitii>ii of n ili iiljiinlilt' i!(iiil{nioiil, in ili!/y l»>uaiii, .1., not to apply in the cihu of a writ served before the ooininoiieeinent of the Act (Aikhi. \, .']'., Dee. I87"i, I I'liarl. ("h. Ca. 4.^) & Mi). An order waH hdwiivtr made in sueli fv ease by l/indley, .1., in Aiioii. \V. N. 1870, p. ID; 1 (Miarl. ('h. Ca. .W, whore it" was held that hoo. 22 of tlio Act (Out. Act, H. II) gave power to <1<» ho ; and by lluddle.ston, R. in Anon. W. N. IS7r), p. 'J«U), I dliarl. Vh. (!a. 4!>, where tin defendant did not appear; and in DciiiKon v Friiiii-/i/ii, \,.l. S Jan., IS7(), I Charl. (!h. t'a. 01, where the writ had Iiccb | rouewod subseipiently to the coininonceinont of the Act. It w.aa t^oiiHidorod doubtful whether Ordor 3, Rule 4, .vijimA refer.s to anything but a monetary tlemaud ; ami therefore, in an I action in which it was sought to charge a wife's separate ostatn on a guarantee, an order under the present Rule (80) was rofiist'dl with liberty to amend the writ (/hiKcrworth v. 7Vt' ami ]\"ik\ W. N. I87(;, p. y, 1 Charl. Oh. Ca. 50). A formal error in the indorsement of tho writ, such as ttil misplacing of a date, is no answer to an application uiulur tbiil rule (Anon. W. N. 1870, p. 58, 2 Charl. Ch. (Ja. 20). On such a motion the Jmlgo or Master «loc3 not [ireteml to tiyl tlie action (Amlrnrs v. >Strwart, 2 Charl. Ch. Ca 50; W. XT 1870, p. 7) ; though to a certain extent the question of lialnlit'l must bo entertained {r/iiUips v. Jlarrin, W. N. 1870, p. oi]'\ Charl. Ch. Ca. 20). To entitle the defendant to defend he is only required to sbo«| a "bona fide" defence (Andrews v. Stewart, mpra) ; to suggfSl 0, defence ami show some probability of getting it from tifl plaintiir or proving it himself (Harrison v. liottenhcm,^\ *V. It. 252) ; or reasonable ground for supjiosing that there ijJ "plausible" defence {Beckimjham v. (hoen and Thome v. Aftl \V. N. 1878, p. 215) ; or grounds for fairly disputing theclaiiT (Bunnacles v. Mesqidta, 1 Q. B. D. 416) ; or that the matteril LKAVK TO srON .MTIKIMRNT. isn H'l (linil)tful timfc it onji;fit. to ho nllowod to «" to ;i jury {Aiiwl,rv. /ji'i; W . N. IH7l», |». H(l ; H<>lh,-rn.ni v. /Vi-^/. I!» I,, .I.e. I'. KM ; Atioii. I (!li(nl, (!|i. Cii. 15). Nor will a oH not a|i|)oar, or liloH no iillidavit (\V. N., I.S7*), p. 12) ; or if no fairly aiKiialdo point tio shown on tlio part of thu dcfomhant (/l/('//o-//(///V///, Hunk v. Wilh, ;W li. 1'. I!»7 ; Thonir v. Sr,l, \V, N., 1878, p. 215 ; Anon. W. X., IH7(>, [). 22 ; 2 (!harl. Ch. i'.n. 18 ; Annnni, ,!•'•., v. Horlw, \V, N. hS7."), |>. 2:W; I <;iiarl. Oh. On. HI). Tlio simplo .Uh- mi.ssal of tlio plaintiir'H motion will he; oipiivalont to Icavo to dcfund (Miirniilr Ph-v, A-r. (!„. v. /V/'/v/, W, N., 1870, p. 52; 2 Ciiarl. (111. (Ja. I!)); and, if tho onlcr t,'iviii^' )iim hjavo to dufond doi'H not naino a time, tin; dofomlant miiHt deliver \\\n defenco within oi^lit dayw (>«'<' Uulc! I(!2), or judgment iii.'iy l)e obtained hy defanlt, even tlionj,di no Htatoment of (daim is (hliv- cred (Alk'inn v. Tiujlitr, W. N. I87<,il'\ 1 Ex. I). 2{!2). Si-<' also A innitu/ v. NmiHih Nir.ia nf /i'li'i"/, \\ . N. 187'), p. 2:}0 ; 1 Charl. Ch. Ca. 47, where it was 'alleged that tiio plaintilF's atlidavit was untrue, ami the tlefenee was stateil to lie that the services for which tho plaintiff claiineil renmneration had never heeu performed. Vyiiert in a cLaim for payment of sums of money, the defence set up is that of a denial and contradiction of the accounts on which the claim is founded, it is crroneoua to make an order under this Rule refusing leave to defend, except t>pon the condition of the •rssBSBaass i;ui ONTARIO JUDICATURE ACT, 1881. r f i Ijcavc to Higii .judg iricnt. Rules 89)Ex "Icfondant paying into Court a definite Hum within a certain time, anil that, unleas ho doea so, judgment shall he signed against liiin, This is especially the case where there are mortgages, and tlio (M-editor has been a mortgagee in possession ( IVatlliKjfurd v. Mutiinl Sorlctii, T) App. Cas. (585). (H) hi'dfc to (Icfrtid on pniiment of mnneji into Court w'dh'in a rcdsondhl)' (inw, or on otiifr tcrnis ; — Where it is not clear that there is a defence, l)ut the defendant shews such a state of facta as leads to the inference tiiat at the trial he may be able to establisii a good defence (/>'a// v. litwkcr, 4 Kx. D. 279). A defendant is not entitled as of right to defend upon paying money into Court without an affidavit of merits (Crump v. Cavendis/i, 5 Kx. I). 211.) A defendant who has paid money into Coui't has been ht'M entitled to have it paid out to him if successful in the action, not- withstanding that a notice of appeal has been given : Yorkshire Bankinij Co. v. Bmtmn, 4 C. P. D. 2i;i In Anon. L. T., 4th Dec, 187") ; 1 Charl. Ch. Ca. 45, Quain, J., gave leave to defend where a proper counter claim was the defence, but confined the defence to the counter claim. In RobrrtH v. GueHt, W. N. 1876, p. 10 ; 1 Charl. Ch. Ca. 5.3, judgment was ordered to be signed unless the defendant paid the money into Court where the defence was a counter claim for costs in a suit in Chancery, in which an order for the costs had not been obtained. (4) Leave to defend as to part on terms, and as to the residue unconditionalh/. — When the defendant's affidavit admits part of the claim to be due, discloses a defence upon the merits as to the residue. There is no power to grant leave to defend as to part of the claim only on condition of payment of the amount as to which there is uo defence. The proper judgment is that the plaintiff have judgment for the amount admitted ; the defendant to be at lilierty to tlefend as to the residue (Dennis v. Seymour, 4 Ex. D. 80, and 6'e(^ Rule S3). Where a statement of defence does not show a good defence to the plaiutifl "s claim judgment may be signed under this order for so much of the claim as is not answered. (See Anon. W. N. 1870, p. 53 ; 2 Charl. Ch. Ca. 22 ; Hanmer v. Flhiht, 3") L. T. IS'. S. 127 ; W. N. 1870, p. 54 ; 2 Charl. Ch. Ca. 23.) On appeal, however, in the last case, 36 L. T. N. S. 27t>, it was con- sidered that the facts set out in the pleadings did not support the claim in respect of which the plaintiff sought to sign judg- ment, and the order was therefore refused. Ml I'roceUure. 2. The ai)plication by the plaintiff for leave to enter (a) judgment under the last preceding Rule shall be made (6) on notice returnable not less than two clear days after service. (Comp. R. Sup. C, 1875, Order 14, R. 2.) (a) The English Rule has here the word " final." (h) Instead of "on notice," the English Rule has " by summons." The Rules are otherwise the same ; the application will be made in Chambers. In England it ia made to a Judge in Chambers (see Arch. 249, Note c.) For form of the notice of motion see App. B, No. 11. CAUSE AGAINST SIGNING JUDGMENT. 137 3, TJio (Icfendiint nmy sliew cause Jiguinst sucli npiili- RulesSaGS lation by offerintj to bring into Court tlio sunn indorscMl ^.^ on tlio writ, or by atfiduvit. In sucli aliidavit lio sliull siiowinn state whether the defence lie alleges goes to the whoh; of^i^"*"' to part only, and if so, to what jKirt, of the plaintiif's cliiiui. And the Judge may, if he think fit, order the de- ft'iidaiit to attend and bo exauuned upon Oiith ; oi' to produce any books or documents or co[)ies of or extracts tlifrefrom.' (R. Sup. C, 1875, Order 14, E. 3.; Identical with the I'^nglish Rule. The affidavit must be made l)y tlic defendant himself, where he is a person who can make an affidavit (Midrhcud v. Direct U. S. Cable. Co., 27 '". l\. 708 ; Shelford v. LoHth, ,tr., R'y Co., 4 Ex. D. 317)- Although a defindant, a corporation, cannot make an ivtlidavit, the Rule nevertheless applies, and the corpo- ration must show cause luider the words "or (ttherwise " in Itule 80, ».».'., by some other means than the affidavit of the defendant (//;). The defendant's atfiilavit mu^t disclose the defenci;. A mere atlidavit that he; has u good defence is not sufficient (per Quain, J., Anon, 1 Char. Ch. Ca. 48; W. N. 187"), pp. 2A\)-'1M). Tiie iilUilavit will not he insufficient merely hccausc it contains unly hearsay evidence (IlarrUon v. Botte.nheim, 2(5 W. It. 3G2). Tliu appUcation may ho adjourned, if necessary, for better par- ticulars of the plaintiff's claim (A.ston v. Hurwitz, W. iS'., 1879, p. Iil4). In Anon. L. T. 8th Jan., 1875 ; I Charl. (.'h. Ca. 52, on ill! appeal from a Master who had ordered money into ( 'ourt, a fresh affidavit not used before the Master being read, leave to defend unconditionally was given. The Judge may, in his discretion, allow the plaintift' to file affidavits in reply to the defendatit's affidavit {/>((*•/.>■ v. Spence, 1 0. P. U. 719, this ease was not approved in The Central »«;/;/'-« Co. V. The N. Wede.-< Weujuon Co., 39 L. T. G28, hut has been followed in Girmn v. Grepe, 13 Ch. D. 174). The filing of an affidavit in reply, under this Rule, is however not a niattin- of right [Rothvram v. Pried, 49 L. J. ( !. P. 104 ; W. N. 1879, p. 190). 4. Ill any case if it appears that the defence set u[) by Dctence as the defeudaut ai)plies only to a part of the plaintiff's "'''""• claim, or that any part of his claim is admitted to Ix^ due, the i)laiiitilf shall have judgment forthwith for such part of his claim as the defence does not apply to or as is udiiiitted to be due, su.)ject to such terms, if any, as to suspeiuliug execution, or tli') payment of any amount levied or any jiart thereof into Court by the slierjti', the taxation of costs, or otherwise, as the Judge may think til. And the defendant may be allowed to defend as to the residue of the plaiiitif'i's claim. (76. R. 4.) The English Rule has not the words ' ' in any case " at the beginning and has the words "the amount" instead of the words "any amount." The two Rules otherwise correspond (see Hanmr v. Flhjkt, 24 W. R. 340; 36 L. T. 279, C. A. See notes to Rule 80. \:\H ONTARIO JUnirATlTRE ACT, 1881. 1,.-^ I Ml Whmv Ml'Vl'lllI li'li'iiiliintH Rulei84-86 T). Tf it appoin'H to tho Juf('iuiant ms u ^ooil (l(tt(Mic(i to tlio action, oi* ou^lit to \hi jioi'mittod to defend tlio aetion, and that any other (htiendant has not Hueh deiene(4 and ought not to \)^^ permitted to d to entcM* linai iud<^'m(>nt ai^ainst tiie liUttir, and may issue execution upon sueli judi^nKWit without prejudieif to his rii,'ht to procniiMl with his letion ayaiimt the fonner. (H. Sup. (i., 1875, Onh^r II, II. 5.) Tliis Ivulo iH now and uorroMpondH with tliu IOii;^'liHli Kiili;. Soo nt>tc8 to Kulo HO, Uriiy.' t(.il(«- (]. la>ave to (hif(!nd may he ;;ive uneonditionallv, or Inlitl limy Im i-,. i, .'•• -i n"- ihsdliKf (H s\il»)e(!t to sueli t(>rms as to j^ivnii; s(«!unty, or otheiwiso, ■""""""'' as the (!oui-t or a Judge may think lit. {/b., U. (i.) Idouticiil with tho Kn^lish liulu. Soo notos te llulo 80. Whoro loavo ia given to dofond, boo Kido 1(52, as to tho titno witliin which a defonoo is to ho dolivcrod. ORDER XI. APl'LirATlON FOR AC(JOlJN'l', &(!., WIIKUK WKIT INDOKSKl) ITNDKU ORDKU III., lUJLE (>. 1. In default of ap'Hiarance to a writ indor.scd iiiulpr Ai'tion fdv ircoinit. Order 3, Rido G, and after ap|)earaiiee [in a casci in wliicli tlio preceding Ordei-s do not entithi tlu5 plaintitV to ;i judgment or order on pra'cipo or otherwiH(% then] iiiilcss tho dc^fendant, hy allidavit or otherwise, satisty the Oomt or a Judge that tliere is some prelinunary (juestiou to lie tried, an order for the account claimed, with all direc- tions now usual in the Court of Chancery in siiniliii' aises, shall bo forthwith made. (Comp. R. Sup. C, 187r), Order 15, R. 1 ; G. O. Chy. No. 467, et seq.: R. S. O. c. 50, ss. 180-1 97 ; Imj). Act, 15 & 16 V. c. 80. ss. 45, 47 J Order 9, R. 10, ante.) Same as the English Rule except that the words in hrackeb are new. liidiirstiucut Order 3, Kule 6, provides for the indoraement of a claim for an )f elaini for account in all oases of ordinary account, such as a partnershiii, " or executorship, or ordinary trust account, where the plaiiititl desires to have an account taken in the first instance. Tin present Rule provides for two cases : first, default of appearance ; in which case the order will be made as of right ; secondly, appearance ; in which case the order is to be made unless tlu defendant shows that there is some question which ought to bt tried first. •ii'ciimit. DKFAUr.T OF AI'I'KAUANf'K. i:v.> Ikfoi'i: tiikiii>{ |ir(K;ou(lingH iiiidor tluH Riilo, tlio plniiitiit' imiKtsQiei 86.87 lilu nil alliilavitof Horviou or iiotico in lit^ii of Horvioc (mr Uulo 7I). I'liilcr till) (!()rn!s|)<)ii(lin^ Mii^'liHli Knl*!, wlxtro tlin fw:, |). 'J-!>, I ('Imrl. (111. Cii. r»(», (Hid /'nilf V. liiiiinii, cited in llayiicH' (Miy. \'rwi. (»7. N(it(! M.) An iicciiiint oF tlu) iiinount duo in a rdrciddMiii'i; action may alHo ho ol)taiiiod ((lulll v. Wihutn; 12 Cii l». 771), and in Hiii'ii (^aHt■H any matter rci|iiii'od on fiiitlK^r consideration as to costH may 1)0 pidvoil by aliidavit (Jiiaiiti/ v. Klliott, W. N. IHHO, p. 9!!). Tiic licnolik of the Uiilc is only to })o f{ivon wlusro a writ iH in- (lorHed iindor Kiilo l<> witli a idaini to liuvu an account taken. Tii»i |ii'oviHo to that llulo Htattis tiiat tlio Riihi docH not .ijipiy to pKiiicdiiif^H undei' Onler I, llule .'{, I.e., to jiroceodingH taken for adiuiiii.stiation f>r ()artitioii in a Humniiiry way wilhuiit. wrif, (in wliicli caHo, of ooiiiHo, tliero couhl ho no indorHcinent), or to caHt'H of forocloHuro, Halo, and rodem|»tion, wlioroa judgment may 1)0 (ilitaiiuid on /trariftr, or on motion in (HiamhorH. A Korm of indoi'Huiiient claiming un account in udminiHtration actioiiH \h givmi in Appendix A., No. U (*/ and c). It waH i)ointod out in (Idfli V. WiliKlir, !2Cli. I>. 771, tliat tlio form of judj^'inent ^^[iven inSeton, 4tli Kd., p. S, uontainiii)^ the foUowin^^ wordH "a Jud^e not rci(|uiring any trial of this action other than the hearing,' of this apniication ' -may not always ho aj)propriato, and they aro not to be used indiHcriminatoly ho aw to projudico any isHuo that may ho raiwod hy tho Huhsecjuent [)leadingH. Tlie provisions of the Rule 2.'{(), for enforcing firdors for dis- covery or inspection of (h>cuments, aro not ai)plicahlo to tho order for accounts uiulor this Rule {.Pike v. Kiini:, 3') L. T. .S41 ; 24 W. K. 322). L'. An apjilication for Hiicli order us montioned in tlio Aii.iiciitiuti last pi-ocodin;,' llulo slnill l)o niiido («) on notice, und I'0 ,11,11"!,!'" supported by un alHdavit filed on l>elialf of the plaintilf, stiitiiif,' concisely tho grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has exijired. (K. Sup. C, 1875, lb., K. 2.) («) Instead of "on notice " the English Rule lias the words "by summons," The rules are otherwise identical. Where the defendant has not appeared, besides the allidavit mentioned in this Rule, the plaintiff is required l)y Rule 71 to file an affidavit of service. In cases where an order allowing service is necessary (sic Rule 48), the allowance should, doubtless, also be proved. If an order has not been obtained, the application to allow the service and for the directions of the Court required under Rule 45, and for an order under this Rule, may sometimes be con- veniently made at the same time. The application will no doubt be made in Chambers. Notice will probably be unnecessary where the defendant has not appeared, but if necessary it will probably be sufficiently served by complying with Rule 131. A form of summons from which a notice of motion may be framed will be found in Dan. Forms (3rd ed.) 206. I 10 Ol^rAUlO .tlUMiMI'IMi! -M'l', IMKI MN Ntl I'lilllll •iIiiimIiI, III uimi'I i|. \li\i>ii'i| ltt<)iii« miiiihoii Ix itiiiit" iitiili'i HiIm llnlnt In /i'< Hin-lf wll. I> lltoltitll WiH llllti| III iiliUnl iMi'l lllllil II xltlli'Mli Ml Ot I'llHIl «:ix .l.'ll\.'l<'.| M<. I. f, '(.,.» S •'.i//it/, "• W II "111 '.\ \\\\{ lliK piii|iiin l\\i> mil"! mo mil In |iin\i'hi oi«(iM.'( lor (lt<> iiilniiitiMi ml iitii nl IIik I'Mlnlti, ii>iil i>i |ii'i HOtUll, l>r l\ l|ii| |t|i|MiM<. Ill lor llll< |ltll'liliil|l III 'lil|i> III in) o>ih|t oIiImImoiI on niolinn willionl miv )i|-i>\ iou'< nolii'K lit ol lii'i |ii •■liiiiinfii \ |iroi'i'i ( ii'lli'l III Olili'llnl llli' i\\\\\{ ol' l'|iin\i'or\ in lli;il liolinll. i .S. v « ] t» I 'li\ , Num Sl>«> nod' (O InIiIi' Nil, -lll'r,^ \Ulii ii|i|iI\ III 'i>iini> ivi hh hI niltMiuixlivitioii mill purl iMim, i^ in |ii'iiliitlili< llnil iii'MmIIhIi'mh k iu.lunii'lll iM iHili'l will III Mlli'll i':l I lli> IIIUmI II |l|irii|lMill ily >il>t.)Uir itviuiiii'i liii'iiliiini'il III lliiii Ihilc OICDKK' Nil v K s o ,v Ao. Mw. ;:\ s;n. r MMII'.S. vvW I Ml poiNons u\;iv lii> lonii'il mm |>l;iiiil ill'M in wliom l||i< rijjht («> :in\ ix'lu'l" I'l.iimo.l in iilli>';oil lo osimI. vvlu'llicr Ami, vv il liiMit !»nv ;»in m \\\ \vlir !»s ht> or lliov luiw ln< ciidlii'illiv io\»v(l\, si>\oi.iH\. i'ly \\\ (lio Mlli'iiiiilivo V ;»ini\M>l' tho plain! ilVs HH n>nv Im> lonml lo lio ("iililliilld 1 Un< tho iltMouil ml. (houi>h nnsui'i>ossrul. hIimII ho rnlillcil tr> his v>osi\ o«>Msioi\o«l U\ so ioimns;' ;iny porMon orpoiMuiiH NX l»o sh;»U not lio tonnil out It loil to i-oliol', nnlo.ss llio ( 'mirl n\ ilisjv\si)\s; (>t' tlu^ i>os(s ot' tlio iirtiou shuli olhoiwiso aitxvl Jx. Sup. r.. lS7.-». Onlor hi. \{. I ; l{,. S. 0. 40. .) S.iino ;»s tho Kw^^lish Kulo, tho l,»»t >"I;u\so of wliit-h is taki'ii trvMix !» l;>ot" thoO. I,, r. Aot ot" IS.VJ (,sv<' May's ('. I- I'. Aot). Vl\o v'l^.iniivs inttsvhjooil ii\to l''nijl,>nil 1>\ tlio .liulioiilnri' Act Moro \ovy m;\ton;U oh;u\gos. Most ot" tl\»MU l\,ul in Oiiljuio Uccii rtliwvly maiio \vvvt ot tlio jurisiliotioii iinil pnu'tioo «»l' tlio t'oiii- mon U.'xw t\nnf-s by tho A(ln\inistratioii ot' .lustioo Act, U. vS, (•, 0. +0, s ,%. whioh pi>niiK->l that R & I'x. " r>. For tho pur^vvso ot o.u-rying into olVcot tho ohjootH of this < ♦*, *. .V _\ots AMvl tor v\-»us\nc OvunpK'to ;vuil lit\;vl justioo to bo douo in lUI niAttor* ill «\uostioi\ in any aotiou at law. tho (\)urt or a .lutljje thoiwf. aiVvxniinj: to tho oironn»st^n\oos of tho oaso, may. at the t. ;a1 or at .^ny othor st;i^> v>t an action or othor procoodini;, pro- nouuvv such juvlgjiiont, or n\;UvO suoh onlor or decree iis the I'AlltillM Vt,\tnntrfH. n mil AM iiiK'iltli' il|)lilx •>! Ilic |tiiilliN(l III' 'III! Ii mil' III iiiili'i MM l.ii iiilill(i>( Uiltil |ii'tMiiiiM MM iimiIm'I Ik V |ii Ki 1 1 >lni|i. MJiildtii' nil! |iiiil|ii<, iir l)i'iilini< iimliii iimiii"i| iijiiMil ill'i M>i ili'li Miliiiilii, |inili'N l'> lif inmli' mM'I lll'IMIIItllM III Im' hllll'tl MM MM III ll'IIMMllilMl Mll'l IiImI ; MM'I IIIMV HI III II V iIImimimi' III I III' 1 1|; III 'I Mini iinilli Ml In <|ii< III inn nil M, ( iiiii I, iif |i;i|mII\ iiihIiI Till' lllilll'llllllM Ai'Im l>y way of i.'iiiinti'i' rLiim, nn|. mrrrly a |iiimiii.'uy mi:I, nd', Imt anyUiin:/ t.tiat foriiU'iiy hn rmilil liavi; iiiailn Mm Hiilijcrtol a. crn.HM act.jnn 'ir -'.nit. Ami 111; may main' Hiirli ('niMil,i:r (;laiiii, not, only ,'i;,;.'tiiirtt, tli*; I'liviiilill', lull, a.giiiiiHt uiiy Miini piUHnii, if only it \j. ti!);"), tlie action was for trespass to land, of wliidi the plaintill" was lessee. 'I'he defence was a right of way grauteti by the lessor, and it was held that the plaintiif might amend his claim by adding the lessor as a defendant ; claiming against liiui, in case the right of way was establislied, damages for ))reacli of covenant for <[uiet enjoyment. , Order 10, R; 4.) Same aa English Rule. See Cox v. Barker, 3 Ch. D. S.'i!), where this Rule w.as con- sidered and given a liberal constructiim, the judgment of V. C. Bacon, which was aflirmed on api)eal, contains the following passages : — " I take it that it was tlie intention of the Legislature, when any question of any sort, or any set of (luestions, arose, to endeavour by one hearing and one decree to dispose of all luatten in litigation between all the parties who were interested in the subject of the litigation." Wlicic ilrfi'iulant III it iiitiiri'.st- cd HI .-ill thy ri'li(-f Iirayeil. PARTIES — DEFENDANTS. 145 "The Act of Piirliament, at the same time that it has enabled 5^18592.94 any person stating a claim to bring before the Court all persons interested in that claim, and to include in the claim every (jues- tion that can belong to it, or arise out of it, has, at the same time, carefully provided that no one shall Ije prejudiced by tlie fact of his being joined. The Rules are distinct on the subject." .5. The pl;uutiff may, at liis ojitiou, join as })artii\s to '^.[|.||j^^_,'J'.;^^^^ the same action all or any ot" the poi-.sons scvorally, ovou ununon jolutly and severally, lialde on any one contract, including jy|^^,,,{"''^ ""' purfios t" I'.ll.s of exchange and promissory notes. fR. .Sui-. i', 167.'), Order 16, R. 5 ; See G. 0. Chy., No. 02). Same as English i\ule. By Rev. Stat. Ont., c, .'>0, s. 134, it is provided that all the parties to a bill or not" may be joined in one action ; Init l)y sec. 18,') the nou-jdind r ;n auy joint drawer, maker, indorser, or acceptor might be pleaded in abatement. By the present Rule it is optioiial Avitli tli- jilaintiff in actions on billj and notes, as well as in actions on any other contract. to proceed n^itiusf. any cue or more of the parties jointly or severally lit' !; - Under Con. v.jiiy. Onler G2, a plaintifi' jnight select one ormore of several persons liable. Under the corresjionding Englisli ( 'on. Order (VII, R. L'), it was held in Smith v. /lor.ifdlJ, 24 Beav. IVM, that if the plaintill' chose to sue all or some of them, and tliesuit became defective or aliated by reason of a transinission of the interest of one of them he could not afterwards proceed against tile other. This gloss on the Order was described as liighly tuchuical (Orii,!/ v. LcwU, L. 11. 8 Ch. lO.So, KKVJ), and will i>ot he imported hy analogy into the present Rule (lAojidv. Dbii- mi'd-, 7 Ch. D. 3!)S). In the latter case two of live defemlauts became bankrupt, and it was held that the action niiglit proceed a;.'ainst the other three without bringing the trustees of the bankuipts ijefore the Court. 01 G. Wliere in any action, whether founded upon con- Several tractor otherwise, the plaintiff is in doul)t as to the per-in,.'"s,.sor sou from whom he i.s entitled to redress, lie may, in sncli'^""^''- luaauer as hereinafter mentioned, or as may be jMescribed by any special order, join two or more defendirnts, to the intent tliat in such action the question as to which, if ■tuy, of til'; detendants is liable, and to what extent, may b? detoruiined as lietwocn all jiarties to the action. (R. St!|). C, 1875, Order IG, R. 6.) Identical with the English Rule. This Rule is applicable to actions which have been already oomnaenced, as well as to those in which the jdaintitf is in douI)t [at commencement of action (jx'r Cockburn, ('. .1., in /loinlura.*, !'lr. v. Tucker, 2, Ex. D. 304). There the plaintiffs cl.aimed ii','aiiist L. specil'iG performance of a contract alleged to have ))een male by T , the authorized agent of L. , they afterwards alleged that L. denied that T. was his authorized agent, and were thcre- 10 •.j,i»iiit«-twai4%*«'j^'hy. Ord 61 [post, p. 152) provided that in all suits containing real or personal estate vested in +,rustees under will, settlement or otherwise, the trustees should sufficiently repre- sent the benelicif-^ies subject to the power of the t'ourt to add the beneiiciaries or a ly of them at the her.ring. This Rule is an ex- tension of that Chancery Order. In a suit for redemption a trustee of the Equity of Ite- demption has been held to sufficiently represent the tru.st estate (MilU- V. Jennitujs, IW Ch. D. 63'J ; see Day v. .Raddlfc, 24 W. K. 844) ; so trustees of real estate, in a partition ,»uit under tk Partition Act (Simpson v. Deiiiuj, 10 Ch. D. 2 5 ; Goodrich v, Mars/i, W. N. 1878, p. 180). It has been hekl in England that an administrator ad litim does not sufficiently represent the estate where a general admin- istration of the estiite is necessary (Dowdcmvell v. Dowd.cumH, y Ch. 1). 294). As to whether the Court may appoint a rejm'- sentative of the estate in a case where general administration of the estate is necessarj' for the purposes of the suit, ■•»■(■ Cliy. Gen. Ord. 50 ; Rev. Stat. c. 49 s. 9 ; Daniel's Prac, otli Ed, 181 ; Morgan's Chy. Acts and Onlers, 201 ; Joint Stock Discomi Co. v. Brown, L. R. 8 Eq. 370 ; Be Tohln, 6 P. R. 40. Where the subject of a settlement was an equitable chose in action, and the legal estate was not in the trustees of the settle- ment, but in the trustees under a prior will who were chargtil with misapplication of the fund, the cetitid y their next friends in manner pnictised in the Court of Chancery before the passing of the Act. Not the same as the English Rule referred to. Prior to the Married Woman's let of 1872, a married woman I a)uld not sue at law without her husband being joined as a co- |l)iaiutiff: Lush's Prac. 33 (2nd ed). In Equity she might some- jtnnes be sole plaiutiff, but was required to sue by next friend. jit had long been a settled rule ot the Court of Chancery that IT US ONTARIO JUDICATURE ACT, 1881. Rnle 97. Married women. wherever the husband and wife without a next friend suo nr defend together, or where the husband sues as next frieml dt hi,, wife, tlie suit or defence is regarded as that of the husltaud aldin', and wouhl not prejudice any future claim by the wife ( Wahr v Parker, 2 Keen 59, 70 ; JIii). Wliere the suit related to the soimratc property of a wife, she was required to sue ]>y next fritiid, otherwise the defendant niiglit demur (Jfoli/hnj v. Fwilc, I Cr, 206 ; lilac/churn v. McKinktji, 3 t'hy. Cham., 05 ; Wnhp v. Parker, sii/irit). This Rule apidied not only where a bill wa.s lileii, but in all applications made exclusively on the wife's beluUf (7.'. Waitiih, 15 lieav. 508; Council v. Girvin, 1 4'hy. Cham., !)4|; and this practice is not .altered by the Judicature Acts in Kn;;- land (L'uhcrls v. Eraun, 7 Ch. D., 830). Where the wife .sued l)y next friend, the husband was still required to be a jiartv, and he was usually made a defendant ( Wake v. Parb r, mij/m ; Puherts v. Eruns, 7 Ch. D., 830 ; Ifancvcky. Lahlacht , 3(.'. 1'. li, 1!)7) ; unless he had no adverse interest, in which case he might l)e co-i)laintiff (Meddoiccroft v. Campbdl, 13 lieav., 184 ; Bcnrd- more v. Gref/orij, 2 11. & Al., 491 ; iJarla v. Pruut, 7 l^ciiv.. 2SS.) A eiiange was introduced in 1872, by the Married Woman's Property Act, 35 Vict., c. 10 (sec now llev. Stat., c. iL'.j, see, 2(>), Avhich enacted that a married woman miglic sue alone for {\k recovery of any wages, earnings, money or property by that or any other Act declared to be her se]»arate property, and also th.i! a married woman might be sued ah)ne in respect of her separate engagements, contracts or torts as if she Avere unmarried. Since that Act, v/here a married woman may sue without ntxt friend it is not necessary to make her husband a party, xuiks.* he has an interest, and is made a party in respect of tliat intorct (see MrFarlane v. Murphif, 21 (Ir. 80 ; Bondi-ad v. Wliitiiiup. 22 Gr. 222 ; Miinhck v. O'kuUirai,, 25 (ir. 392) ; but if the hus- band lie joined as a co-i)laintirt", the wife is required to sue i'V next friend, otherwise tlio rule applies that the suit is that of ih hus])au(l {Pe Sjx'nccr and McDonald, 19 Cr. 407). The Act of 1872 allows a wife to sue alone and without a next friend in relation tv) sucli estate only as by that or any other Act is ueclared to be her " separate property" (Pedniaii v. BnjmK- roiiiln', r. U. 84 ; Ifoopcr v. MaU.'aiid, 7 P. H. 50). If the pro- perty does not answer the description of separate property, siit must sue ))y next friend {Priuju v. Sohji, 7 P. H. 44). The Act oi 1872 i.s the oidy Act wliieli gives the (pxality of se])arate estate t^ unsettled pr(i2)erty of a n:arried woman ; and wliether or tiothir unsettled real i)roi)erty acquired that (piidity deijeiids upi':i whether the marriage took place before or after 2nd March, 18'i iSee Rev. Stat. cap. 125, s. 20, and God/rei/ v. Harrii^on, S 1'. li- 272). These oliservations do not ajiply to actions relating to iitt j seii.irate engagements, contracts, oi- torts, or for alimony. Tile defoiidant may raise tlie question of the want uf a nest i friend, either by demurrer {Jexsiip v. McLean, 15 (4r. 489 ; 7i/i"'i' j hum V. McKlnlau, 3 C'hy. rogated. If the next friend is not appointed in a retisonable time, a motion may l)u made to limit the time there- for, or, in default, that the Bill l)e dismissed {McPhcrnon v. McCah<\ supra). The time limited is the saTue as upon appli- cation to limit the time for furnishing security for costs, as to whicii see dranl v. Wlwhi'Mi'r, G P. R. HG. A suit cannot l)e brought by a next friend on liehalf of a mar- ried woman without her consent, and if so brought it may be dismissed with costs to be paid l)y the next friend [Cook v. Fry r, 4 Boav. 13). A defendant cannot act as iiext friend of a married woman plaiutilf( P(t///'e v. Liltle, 13 Beav. 114 ; Bennett v. SprcKjne, 4 C. L, J. N. S. 45 ;. see Leu-if v. Xobb.i, 8 Ch. D. 591). The next friend must be a person of substance, as he is liable for the cost.. l[{'uie alleged (Darlinij v. Rice, 1 App. Rep. 46 ; Standard Bank v. BMlUm, 3 App. Rep. 93 ; see FieJd v. McArthnr, 25 C. P. 167, ; -7 C. P. 15). These authorities have been followed in subse- I iiHcnt cases, though not without expressions of dissent on the patt of some of the Judges (see Clark v. CreUjhtou, 4.'> Q. B. 514). 10. Where there are numerous paitie.s Iniviui,' tlie same Where : iiitere.st in one action, one or nioiv of such p-irties niay J,'unierous. I sue or be sued, or may bo authorized by the Court to lot'end, ill such action, on behalf of, or for the benefit of, wiiiiifimtiiiliO 150 ONTAUIO JUDICATURE ACT, 1881. ParlioH iimiicrouH WW PersiiMs Rule898,99 nil piutics so iiitorcstoil. (1{. Sup. C, IBTf), Order Ifi, K. U; G. O. Chy., Nos. 28-01.) Tliis is tlic sftino as tho Kiiglish Hulo rofurreil to, and corrcs- [miikIs with what had h)iig been tho praotioi! of t\u' Cent (if Chancory (see Dan. C'h. I'r. pp. '207, rt siy., 1088, »m1. T.). A {ilaintitr suing undur this llulu must indorse his writ accord- ingly (set) llulo 13, ante). In /)( Hurt V. Sti'voiKon, 1 Q. B. 1). 31H, it was liuld tliat (ino ]>art-ownor of a ship niiglit sue undur this Kulo on helialf of liim- Holf and his co-owners for freight. So alH(» one underwriter on beiialf of all (Lvathhii v. McAmlmv, W. N. 187r>, p. '2.')!); 1 C^harl. Oh. Ca. 58). In such suit the other nienil)erH of tlic class, if fairly represented, are hound by the judgment (Coni.iiiiK.vouvn of Sciccrs V. GvlhUlii, ,'{ V\\. D. 010; LnU/i/ci/ v. Mi-Ainhi'in, W. N. 1870, p. 38;' '2 Charl. Cii. da. 24). Where one of thf class objects to the proceedings, he may, on ajqilying, l)c inaili a party defendant (misoii v. Churc/i, 9 Oh. 1). Hf/i). ^I'hat is tb proper course if he is really not represented by the plaintifl'. Hv cannot otherwise aj)peal from an order obtained by the plaintill ( Watson V. Care, W. N. 1881, p. 15 ; 44 L. T. 40). 11. In any caso in which tho right of an huiv-at-law represent a" ^^' ^^' tho next of kin, or of a class shall depend upon the oias.s construction which the Court may })ut upon an instru- ment, and it shall not be known or shall bo diHicult to suscertain who is or are such heir-at-lav or next of kin or class, and tho Court shall consider that in order to save expense, or for some other reason, it will be convouicnt to have the question or questions of construction deter- mined before such heir at-law, next of kin or class, sluill have been ascertained by means of inquiry or othiirwisc, the Court may appoint some one or more person or per- sons to represent such heir-at-law, next of kin or class, and the judgment of tho Court in tho presence of sucli person or persons shall be binding upon the party or parties or class so represented. (R. Sup. C, June, 187G. R. 7). Same as the English Rule. Where upon the construction of a will, questions had arisen as to what classes of representatives of the testator were eui itled, and great difficulty was foreseen in attempting to find the iieir, wliu in the result might be held not entitled, un order was made uuder this Rule appointing persons to represent the various classes oi persons, some or one of which might be held to be entitled, before the questions of construction came on to be decided (R- Peppitt's Estate, Chester v. Phillips, 4 Oh. D. 230). In Be Rees, Jiees v. George, 49 L. J. , Ohy. 568, persons who had not been parties, but had been served with notice of decree. were directed to be served with notice of hearing on further consideration, where an order was asked for against them personally. PARTIES — PARTNKRS. 151 ]'2. Any two or moi'o ixn'souH claiini'iif];, or l)nitif» Bales li;il)li', iis (jo-partin'rH, in;iy suo or l»i« sikmI in tlin 11111110 of 100, 102. llioir n'.spcctivc, firms, it' uiiy ; and iiiiy party to an action i'ihIikhh. may in sucli caso ap[)ly by Hiiniiiioiis to a .Iii(l;,'o f'oi- a stiit('in('ut of tlio names of tlio ptirsons wlioai'o co-p.irtncis ill itiiy siioh firm, to bo fnrnisliod in such niiiniKM', and vcrilitid on oath or oth(U-\vis^ >F /f;^ Hiotographic Sdences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716; C72 -^SOS m ,\ \\ cS^ o A <> 'W^ %■ 1 V.' ..■. ' 154 ONTARIO JUDICATURE ACT, 1881. Bale 103- The Court will not virtually try the cause, however, on such an application. Where, therefore, a plaintiff, a buihier, sued for ■?i'(l"'d'di ""* work and labor done, and made two persons defendants who j>artift!<. occupied the position of lessee and lessor, alleging that there was a doubt which was liable to him. Lush, J., on the application of tliu lessor, refused to strike him out on his statement that the lessee was liable to do all repairs (Anon, W. N., 1875, p. 203 ; 1 Cliarl. Ch. Ca. 59. ) Under an order striking out a defendant and giving the plaintiff leave to amend, he may not amend by striking out another defendant, even though that defendant s interest was determined (Wj/mer v. Dodd.% 11 Chy. D. 436; Elwm v. Vaughan. W. N., 1879, p. 69). A defendant sought to be struck out is entitled to notice, that he may be heard as to the (question of his costs ( Wynier v. Dodds, sup.). Addinif Partien. — Any person who might have been joined originally under the T)receding Rules may be added under this Hule (see i:iuith v. Haseltiue, W. N. 1875, p. 250, 1 Charl. Ch. ('a. 56 ; Lon;/ v. Cronnley, 13 Ch. D. 388), subject to the restric- tions herea*t,i I'dumrda v. Lowther, 45 L. J., C. P. 419). There an action was brou^jht against a publisher of a newspaper for libel, and after issue joined the proprietor of the newspaper was added as a defendant on the plaintiff's application. A plaintiff assigned his interest to a third person, who obtained an order giving him liberty to prosecute the suit in the name of the original plaintiff. Held, on the application of the defendant, that the assignee was bound to set forth the assignment, by amendment or otherwise, in tlie statement of claim, and that all proceedings after the order should be entitled in both causes (Seear v. Lawson, 16 Ch. D. 121, C. A.). But the Courts do not interpret the Rules as empowering them to add parties at the in- stance of a defendant to the same extent as upon the plaintiff's application. Addimj Plaintiffs — Tlie addition of a plaintiff is subject to tlie 1)rovision of clause (h) of this Rule ; that the addition shall be l)y lis consent. In De Hart v. Stevenson, 1 Q. B. D. 313, one of several co- owners of a ship, sued for fieight dues. The defendant ajjplied to add the other co-owners as plaintiffs, confessedly in order to obtain the benefit of their liability for costs. The application was refused, on the ground that it was not shown that the presence of the others was necessary in order to completely adjudicatt upon and settle the question arising in the action. In Lowj V. Crossley, 13 Ch. D. 388, an action was brought b}- a tenant for life for specific performance of an agreement, signed by her "for myself and those entitled after me," to accept a lease of a coal mine. After notice of trial the plaintiff died, and the persons entitled in remainder of whom the plaintiff's ex cuter was one, wishing to adopt the suit, were at their request added as plaintiffs, at the trial. The question whether the action would ADDING PARTI r 155 nevertheless fail was not considered by the Court. Fry, J. , said, Bale 103. " I think that at present I have nothing to do with that. The " object of the provision was, not that a party's case should be ^^^1^ " framed so as to succeed, but that it can be adjudicated on " by the Court, whether in his favor or against him." In Cormack v. Orofrian W. N., 1876, p. 22, the action was by a ship owner against consignees of the cargo for demurrage, and a counter claim was put in for damage to the cargo. Leave was refused to the plaintiff to add as co-plaintiffs the other owners, though it was admitted to be hard that the plaintiff should have to meet the counter claim alone if others were liable as much as he. In Beck v. Dear, W. N., 1876, p. 40, 2. Charl. Ch. Ca. 25, the addition of a plaintiff was refused where the object was to bring a counter claim against him (see also Norris v. Beazky, 2 C. P. D. 80). See also Seear v. Lmoson, 16 Ch. D. 121, (supra) where a plaintiff was in effect added on a defendant's application. Adding defendants : — Whether a defendant will be added or not upon a defendant's application, depends upon whether the adjudication upon and settling of the questions arising in the action requires the presence of the persons proposed to be added. (See Harry v, Davy, 2 Ch. D. 721.) In general a defendant will not be added against the plaintiff 'swill, unless justice requires it. In Norris v. Beazky, 2 C. P. D. 80, a defendant sought to add a person as a defendant. The person sought to be added con- sented, and the object of the application was to enable such person to set up a counter-claim against the plaintiff. The plaintiff objected, and it was held that this Rule should not be made use of in a manner harassing to plaintiffs, by forcing them to include in their action persons against whom they do not seek to proceed, unless a strong case is made out, showiug that in the articular case justice cannot be done without the person being rought in. Denman, J., there said that " we ought not to act upon it (the Rule) by adding a defendant without the consent of tne plaintiff, except in cases where it is clearly made out that it is necessary to do so. " The addition of a defendant contemplated by this Rule is not of a person against whom the original defendant may have a remedy over (as to which, set Rule 107) ; nor of a person claimed by a defendant to be liable to the plaintiff, instead of himself (Lereculey v. Harrison, W. N. 1876, p. 39, 2 Charl. Ch. Ca. 26 ; Lovell V. Holland, W. IS. 1876, p. 53, 2 Charl. Ch. Ca. 26.) In such case the defendant can defend himself without the pre- sence of the other party ; and if the plaintiff does not proceed against the other party, the defendant is not injured. In Day v. RadcUffe, 24 W. R. 844, an administration suit, where the plaintiff 's title as a beneficiary under a will was doubt- ful, and the trustee under the will was the only defendant, the beneficiary interested in disputing the plaintiff 's claim was added. In Ashley v. Taylor, 10 Ch. D. 768, a defendant died, and the cause of action in the claim did not survive. Upon the plaintiff's motion, alleging further facts which s'aewed a cause of action which did survive, the administrator of the deceased de- fendant was added. bi b :l m 156 Rales 103, 104. 104 How appli- cation 18 to be made. ONTARIO JUDICATURE ACT, 1881. An oiHcer of a corporation cannot bo added merely for the purpose of discovery ( [ViUon v. Church, 9 Ch. D. 552). In Kinu v. Ruilkin, G Ch. D. 160, a peison to whom the de- fendant had assigned pendente lite was added at the trial at his own request. Two cases have arisen in which a third party had applied for leave to come in as a defendant. For such a case no exijress provision is made. In MH/h v. Griffith, 45 L. J. Q. B. 771, an action of ejectment was brought by a lessor against a lessee who had incurred a forfeiture. On motion of a mortgagee of the lessee to be added as a defendant, the Court refuscl to make an order, holding that the questions involved m the action were wholly on the covenant between the lessee and lessor. In Wihon V. Church, 9 Ch. D. 552, a representative action, a bond- holder who had a substantial interest and disputed the plain- tift's contention, was, on his o\/u application, added as a de- fendant. {b) No person shall bo added as a plaintiff siun<; with- out a next friend, or a.s the next friend of a plaintift' under any disability, without his own consent thereto. (K. Sup. C, 1875, Order 16, R. 13.) Same as the English clause. In D-icL'M V. Gomr, G (Jh. D. 82, a company was made by mistake of law a defendant instead of a plaintiff. Time was given to obtain the ,<> \sent of the company to be joined as co-plaintiffs (see Mason v. /farris, 1 1 Ch. D. 97). It would seem that the consent need not be filed. Jessel, M. H., in Duckett v. Cover, 25 W, R. , 554, said : " An application to strike out the name of a person added as plaintiff without his consent can only be made by the person so added ; " but see Cape Breton Co. v. Fenn, VV. N. 1881, p. 23. The authority given by a married woman to a next friend to sue for her is not a document which can be filed : Jioyers v. Horn, 2G VV. R. 432. (c) All parties whose names are so added as defendants shall be sfu-ved with a notice in manner hereinafter men- tioned, or in such manner tus may be pi'escribed by any special order, and the proceedings as against them shall be deemed to liave begun only on the service of such summons or notice. (Comp. R. Sup. C, 1875, Order 16, R. 13 ; R. S. O. c. 50, s. 73, et. seq). Same as the English clause. For the manner of service, .see Rules 105 and 106. 16. Any application to add, or strike cut, or substitute a plaintiff or defendant may be made to the Court or a Judge at any time before trial by motion, or at the trial of the action in a summary manner. (R. Sup. C, 1875, Order lu, R. 14.) The same as the English Rule. ^^iifi I ADDING PARTIES. 157 The application to add, or strike ont, parties should be made pioinptly. {Shej'han v. Great Eastern Jiii. Co., 1(5 Vh. I). 59; W'MUiim V. Andrewi,, W. N. 1875, p. L'37, 1 Charl. (.'h. Ca. (50; Valiince. v. BinnliKjIinm, etc., 2 Cli. D. HGi).) It may be after delivery of statement of claim (Anon. 2 Charl. Ch. Ca. 25) ; or at the trial, even during examination of witneasus (Huston v. Tohin, \V. N, 1880, p. 1!)) ; but not after decroo (AttDrneii-Oeneral v. Voiincilof Birmluijham, \V. N. 1880, pp. 112, 148 ; 15" Ch. 1X423), aiul sliould in general be made in Cliambcrs ( H'iUon v. Ckiirc/i, 9Ch. 1). 552); and on notice {Tildesleif v. J/ar/ier, 'A Ch. D. 277); but an order nisi has under peculiar circumstances been made ex parte, to bpcome absolute unless nu)ved against within a time named in the order (Jie Wortley, 4Ch. D. 180 ; Wilson v. Church, sitpra. ) Tlie order, whether for ad»'., 1878, p. 18G). The (lireetions for service of the writ on new defend- ants do not meet the case of consoliw d(>fendant at tho time wlieii lie is scM-ved with the writ of summons or notice, or afterwards witliin four days after his appearance (R. Sup. C, 1875, Order IG, K.' 1().) Same as the English Rule. 19. Where a defendant is, or claims to be, entitled to contribution or indemnity, or any other remedy or relief, over against any other person, or where from any other cause it appears to the Court or a Judge that a question Snle 104. t05 Amended wilt wlicre nt'w defend- uiit addcil. Aiiicndeil st.ir.c'Munt i)f ulaini. 107 Contribution or indemnity between de- fendants and other persons 158 ONTARIO JUDICATURE ACT, 1881, Tliiid p'lrtii's. V Bale 107. in tlio iiction (a) shoultl be determined, not only as between the piaintifT and defendant, but as between tlic plaintiff, defendant and any other [)er8on, or between any or either of them, the Court or a Judge may on notice being given to such last- mentioned person, make such order as may be proper for having the (jucs- tiou so detemined. (//>. R. 17 ; see s 16, sub-s. 4 of Act, ante.) Identical with the English Rule. This Rule, with the next six Rules, provide machinery for giving effect to s. IG, sub-s. 4 of the Act. (n) "Question in the action : " as to the ^leaning of these words, see Jlorwell v. London General Omnibus Co. 2 Kx. U. 365 ; 40 L. J. Kx. 700. By Rules 90, 91 ami 92, plaintiffs are given the fullest liberty to join as defendants all persons against whom, jointly, severally, or in the alternative, they may jointly, severally, or in the alternative claim I'elief. By sec. 16 of the Act, in furtherance of one of tlie nu.iu objects of the Legislature, namely, to liave the claims of all persons interested in the subject of the litigation disposed of in tile same action, a further and entirely new jurisdiction is con- ferred upon the Court. By that section a defendant to an action may obtain (1) agninut a plaintijf— any relief at might l)e granted in an independent suit by the same dt .idant against the same plaintiff' ; (2) ai» !i 1 1' " j)emlent action against him. Wo cunsidorod that wc had Bale 107. " powur to do 80, but thought that it would ho inadviHahlo tliat -'a plaiutitf who might havo a good caso against an original^'''!"'' " dufeadant gIiouIiI ho comi)elled to wait for his rcmudy wliilo ' ' " the defendants were liglitiug inter hi',. Tlie only object of the " UulcH was to bind the third |)aity uonclusivoly, by the judgnu-nt "given as botwucu tho plaintitt' and tho original dufendant, l>ut "if lie wants to got an indemnity or other relief against the " third party, ho must bring an action of his own." To tlie same effect arc Wanivr v. Twlnhuj, 2-1 W. I». 't'M\, ami Meaxm-PH v. Thomas, W. N. 187'), p. 20.3 ; I Charl. i'li. Ca. (Wi. .Vc*', however, the issue directed to l)o tried in Jim/ot v. L'/ififon, 11 I'll. \). :V.}2 ; also /iutM-r v. JiiUlfr, 14 Ch. I). 32i». Two classes of cases in wiiich a third party may bo brought in, ixrc provided for l)y the Rules. (1) When V defendant is, or claims to be, entitled to cctntrilm- tiiMi ami indemnity, or any other lolief, civer against any other IKirson. These arc the cases of the most freijuent occurrence, and oxaniples of them will be found in the forms of tiie notice required tftbe given to tho third party {xcc Appcmlix Form No. 18.) For the mode of procedure, nee Ruh:s 108, 110, 111, 112. The claim which the defendant has against the third party, need not l)e ilii'j Co. v. Duncan, ir^ L. 1., Q. B. 640 : in such a case tho third person '*is to 1)0 cited to take part in the original litig.ation, and 80 to be bound liy tho decision on that rj ; I'stion once for all ' (.S. ('. 1 (.}. h. \). 649). " The ol)ject of the Act was not only to prevent the same question being litigateil iwice, but to obviate the scandal which sometimes arose by tho same (piostion being ditfereatly decided l)y ditfonint juries" (livneckv v. Fru.it, 1 Q. B. I). 422, per Blackburn, L. J. ; ^ce also Jie Collie, 2 Ch. D. ol.) The third parties will not bo allowed to be brought in, however, if the ])laintitf will bo prejudiced (Bower v. Hdrtlei/, I (^). 15. I), ti-W; Wi/c Vnlleii J{'y Co. v. JIawes, 1(> Ch. I). 489; .sre also Swan.mt, ,0c., v. Duncan, 1 Q, B. D. 648-9 and Rule 112). In iValker v. Balfour, 25 W. R. 511, it was held tliat a third party brought in under Rule 107, was not entitled under that llulc to have any other person against whom he has a claim added ; but in Fowirr v. Knoop, ,% L. T. 21'.., W. N. 1877, p. 68, tiie third party against whom an indenmity Wivs claimed, was allowed under the cttncluding words of sec. 1(5, sul)-s. 4, of tiie .Act to bring in a fourth party from whom he claimed indennnty upon the same grounds upon which it was claimed from him. I'erhaps the point cannot yet be considered as settled (see Yort't/iire W(ia 'i wliidi tho nliiiiitilV may (> allowo raised, iiml what |»roc('ediiii,'s shall Iw t.vkoii (Unlo KMM. and to what cxtiMt the |)<>i'soii hrotight in .iliall iii< lioiind or niado liaMo (l{iili> II I j ; itud ill (toiisidci'iiig how far tln' ((tiostions allowod to Ik; ntistil hIiouIiI I>u doturminod in tin; action, tho |ilaiiitiH"s <;oiiV(!iiioiicu in as in tlio formor (dass of (lascs to IxMMiiisiiltiMl (Kiil(> ll'.'aiid Sioiinsid, ,{-,;, V. Dniicnii, I (). H. 1). p. (lU; llmmrx. /hiiilvi, I g. IV I). <;.'C2 ; As.vi<-;iit,'' Valli ij li'ii Co. v. II,iw,h, if. Ch. |). 48!»). For tlio mode of itrooodnro, we I!uUn IOi>, 111,1 12. All oiilttr will !>(• niado fur tlio trial, with tho issuos in which tho plaintiir is intoro-itod, of tithor issuos hotwoi-n oo-dofoini- ants, if thoy arogormanoto tho niattor in dis|nit<'. and oonvoiiiiiit to 1)0 tiiod with tho forinor issuos, hut not nuUss tho plaiiitiir con, sonts (M,inin-\. /iri. X)l, n, W. N. I.S7S, i». •-Mlj- or doos not ol.joot (/Af^i*/' v. /i'asV-m, II (Ml. I). :V.)2). In /liKidf V. Miin/<»i, tho piaintiU" Jointly with dofoiidant H., ontorod intoa oontraot with dofondaut 10. to work in |tartnorsliii( an advontiiro on lands holonging to H. riaintifrallogod that K. oht viiird tho oontracit l>y iniHro|iros>'nt ition, and askod for rosois- sion, or, in tho altornativo, U\f dLssolution. Dofondaut H. oh- taiiiod loavo to sorvo a notii-o of a olaiui ho had against dofondaut I']., arising out of tho suhji rt ni.vttorof tho a(!tion. Oil an aiipli- oatioii hy dofondaut H. under Itiilo III, for dirootions as to the trial of tho issuo hotwoon h. and Iv , an ordor was iiiadu, allow- ing li. to prosocute his oiaiiii in tho ponding action. In Tihhs V. hdi'ts, W. N., IHTri, p. 204, tho idaiiitiiT, an in- toiuling vondoo, suod an aiiotiouoor for his doposit. Thu auotiouoor olainioil part of it for oomniission, and tho vondor, who was hrought in as a tliird party, olainiod tho dc'iio.sit as for- foitod. Lush .). oi'dorod tho right of tho third party against the auctioiioor to ho triod. in Jiinerke V. Front, I (I. \\. D., 41!), an aotion w.as hrought for not acooptiiig goods, and tho dofonoowas raised (amongst others) that tho goods wore not according to contract ; tho defendants were allowed to hriiig in persons to whom they Imd ro-8old upon the same tonus, in order to hind them hy a deciaiou as to the •luality of the goods. Whore a defendant makes a claim against a co-defendant for indemnity or other relief, his projicr course is to proceed under Uule 107, and not hy countor-olaiui (FurncnH v. Booth, 4 (Jli. D. .">8G). The contrary ruling of V. C Hall, in Slirphard v. JJfane, '2 Ch. \). '22li (an earlier case) has not heon followed, and was suhsequontly disapproveil of l)y tho same Judge in Jfarrii v. U', G Ch. I). 748. The dofondaut may raise a question against a co-defendant hy a pleading which also states a defence ag.ainst a plaintiff ; but sucii 2)leadiiig is not a couuterulaim, and should not be ao entitled (Fanictsi v. Jioof/i, mipra). Where a defendant is sued in differout divisions by differ- ent persons for the same money, the proper course for Lis pro- tection is matter for tlivj discretion of the Court. (Associated Home Co. v. Whkhcord, 8 Ch. D. 457). As to the costs of third parties, ste Rule 111. I THIRD PARTIRR. ir.i 20. Whore ft dofondatifc is ont.itltvl to contribution, Bule 108. imlomnity, or otlior nunody or rditif over iijuiiinst any m^ person not a party to tho action, ho may Horvti a notico Nniic,. t.. to that ..(ivot ; ^;;-;- ^ (a) A <;o|)y of such notico shall In* flh-il with thc"^'*" nr()|M'r u(Hc(T, ;;n(| sorvod on hiicIi |)(!rson, accordinj; to the Riih's nOatinj; to tho Hcrvico of writs of suniinonH ; (/<) Tlio notic(! shall state tho nature and grounds of tho cliiiiii, anlivcrin<^ his statement of dofenco ; (r) Such notice may he in the form or to the efVect of tho Form No. IH in Appeiidi.v ( |{) hereto with sucli variations as oir(!umstanccs may r(M|uiro, mid thfU'ewith shall ho serveil a copy of the. statcMuent of claim, or if there hr. no statc^mr'nt of claim, thon a coj)y of the writ of simimoMH in tin? action. ((Jomp. R. Sup. (J., 187r), Order ID, U. 1«.) This in tlu! H.'imii .'is tho Knj^lish IJiilo, except th.at tho latter roquirt'S tlu; notice to ho stam|K!(l witli tho seal witli whirli writs of sumiiioiiH arc sealiiil, and inserts at (ff) tho words " liy tJiu leave of the tJoiirt or Jn(lg('." 'I'he form of iiotie, and llorimil v. London '(Ini. OnuiihiM C'lt. 4() L. ,1. Kx. 700 ; 2 Ex. D. 305 ; Imt see Sf.<',l v. DUuii, 42 L. 'V. 70.3, 28 w. 11. am). The notico of which the form is given in the Api)enilix No. 18 need only he given wliere the third party in not already a party to the cause. Where the relief over is jiil- in^H to \w (l(>livor(Ml,orHuch aniondniiMitH in any plnuliii^'s to Ik( n>ad«s and f{«'n(!nilly may direct hucIi proceed iiii^s to 1)0 t!ik(M), and ^ivt^ hiicIi diro'tionH, aH to the Conii or •I ud^o nIimII appear propitr for having tlio cpieHlion inoHt conveniently determined, and with roHp(>ct to the iiimlo and <>xtent in or to whicii the person ho Hervtul Hhali ho bound or nnuUt iialth) hy the (lecinion of iho (pieslion, [and as to tlio costs of tlio proce(Mlino., h g. li. I). 2(18.) The wordH in hraekuts arc nuw. OtliorwiMo thi8 m tliu 8iiiiK< .m the KiigliMli Hu]o. Before tho trial of any innuo riiiHod ngiiiiiHt the third party can be had, thu iliroction of thu ('ourt or.liidgo iiiiiHt Ix; oiitaincd under tliis llulo aa tu thu inodu in which thu quuHtion iti to Im (lutoriiiinod. In III! action hy thu hohlurH of tx \n\\, iiidonniity i\» to part was claiiiiod hy tho acceptors frtmi thu drawer on tliu ground that tiio cunsithration had in part faih^l ; tliu drawur (htiiied faihirc of coiiHiiU'ration ; an order wan inaih) Hid)8titutiiig tliu drawtir for thu plaiiititV, and aUowing him to »\\m on thu hill, ii|)i)ii tho acceptor's uudurtakiiig to pay thu aniotint not in dinpiitc, ami thu dra'ver'H paying to tliu plaiiititl' thu balance in dinputo (Natioiutl I'rovhir'iiit liank of Emilaml v. BnidUij Jini/i/c, .liv, Co., VV. N. 1870, p. «;} ; 2 Oliarl. Ch. (^a. 30). In an action by an intunding purchaser against an auctioneer for deposit inoiiuy, the vundor who appeared as third party \v.i3 ordered to plead to thu statement of claim as it stood, and dclivtr defence anil counter-claim if any to the plaintifl' and original defendant, plaintilVto have leave to ruply, and «lefendant to aiiiciid his defence within six days [Ti-hbn v. Liwix, VV. N. ISTo, j). 'J04, 1 Charl. Ch. Ca. 60 ; see also Sled v. Dixon, W. N. 1880, p. 113 ; lieiwcke v. Froxt, 1 Q. B. D. 419.) From these cases it will bo seen that the Court or Judge will make whatever order seems proper under all the circumstancLS, \ having duo regard to the interests of tho plaintitT as well as tho other parties. If the interests of the plaintiff will be prujudieeil or delayed the Court or Judge may refuse to give any directions as to the method of trial (Schneiiier v. Batt, 44 L. T. 142). It was held in England under the corresponding English Rule, that no power was given to the Court to impose terms as U> costs on the parties bringing in the third party (see Yorkshire Waggon Co. v. Newport Coal Co., 5 Q. B. D. 268.) This will not be ao under the> present Rule, as the concluding words "and as to the costs of the proceedings " have been introduced to meet the objection. Where a third party was brought in under these Rules by notice given by an original defendant, and the plaintiff failed, the third party waa held not entitled to cost^ against the plaintiff THIRD PARTIES — JOINPRR OF CA1THRN OF ACTION. le.*) ( ti^iUinmif v. .S'. K. /(if. Co. , 2ft W. H. 3.'>2, but noo procoding note BoIm «..(l Witham V. r»t»ir, W. N. I8H(», p. I0».) lUWlft. 24. A pliiintifr in not to ho uniH^M^HHiirily dolaynd in 119 rocovcrini' liis vhi'uu l>v rnwon of (nioHtioiiH l«!twt'y tho (N)ui-t or J 11(1^(1 iH to ^ivo huc1» dirrctiou uh iiiiiy *>•' |'"Ji^I^.',','*,i«. n(!i!i'H.siiry to provont hu«;Ii lay of tlio iiltiintifl', wh.;rf' rtiioi-jitt!(l mt iih to (hihiy thu phuntiiF. It has, thoruforo, not hcon foUowud in Honiu hitvr uuhuh (huc BUrof V. Ward, I Can. L. T. I'2«J.) 25. Whom a porson not alrnady a party to a anit i.s U.< ■ rvice on be wjrvod with notioo of a Jiidj^mnnt or onh-.r for tlio pur- '"'"J,',^"' pose of binding hiiti ;.,h if ho had boon origit»ally a party, noun 1 mii-a. and such pf>rHon is an infant, or porHon of uiiHound mind not HO fonn(i by inqnisition or judicial dechiration, the notice sliall bo served in the saino manner as a writ of summons. (See R. Sup. C, April, 1880, R. 7.) iSamo as tho English Kulo. For modo of Horvico in such case, see Rules 36, 37 and 45. n . 2G. In any cause [or mattorj for the administration of •'■*''*■!•'' *" the estate of a decoa.sod person, no party (a) other than the tu.n jiroifU- executor or administrator shall, unle.sa by leave of the '"*^*' Judge, be entitled to appear either in Court or Cham- bers on the claim of any person not a party to the cause against the estate of the decejusod in respect of any debt or liability. The Judge may direct any other party to the cause to appear, either in addition to or in the place of tho executor or administrator, upon such terms as to costs or otherwise as he shall think fit. (R. Sup. C, April, 1880, R. 8.) The English Rule has not the words in brackets, and has at (a) the words " to the uause." Otherwise the Rules are the same. ORDER XIII. JOINDER OF CAUSES OF ACTION. lis 1. Subject to the following Rules, the plaintiff may what o»u»ei unite in the same action and in the same statement of "'^**'^" claim several causes of action ; but if it appear to the joined. if \M oNTAino .n'mrATunw An-, IHHI. 1 Iln1«\i9 (N)nvl or n •Iml^ff ll\i)< itny kiii'Ii i'inini> of iicMdii ) ( 'unrl, t>r ilniljTi' tnny onli'v bi>hihiiIi» hinh nl niiy ttlfUH'li ('iiiibor of n«'(ii>n (<> l><< liiitl, (>v innv ntitKo Hiifli udirc onliM' hh innv i>o n» tM'KHiivv i»r rxpcilicnt I'nr (ln< Ht<|tnrii(t' iliH|Hmi»| tluMvof. (H. Su|., r. t>r.l.'f 17. I{. I ; l(. H. ()., r. ftlT, «M. SI H(') ; KuK. i'. I,. V AH. Ml' ISr.'J. h. -il.) I«li>(()ii'(») \\\\h 1l\<> Knulish Mnlc. \'i\il(M (Ni' (ovn\(M jnui'tii-K (iniiM- in Mil" Ailiniiii«itnMi>n of ,lim tioi' Ai't, rtt lontit. *<<• '2<)«!v. 07 » »t). < 'ourt i>I ( 'liuiu'crv fHilnuIr lonKil'.'uionsni'BB. ni' (lio \nn1imi nf Bi'|i(»iM)f nii Rinl ; hy\{ h!MihIi( Io di'iil wiMt (In- ii^IiIh hI' nil |i(iiiirHnt- ♦ orcsdil in HtilijiM'f ninH)') iMimiilH lul'itu' tlii> rmirl 'I'lii' t'lxnfw o{ < 'oinmiin |,;»\v litnifi'il tln' miliji'i'ln of liti^iitiiMi li n'lonMUM' tn |>intii'B ; nni> »v\\ 8 4 i)f "^ho ('. Ii. \\ Aof. I{ O. olmp oO, allowoil ckubi-b of in'tion of wlwifovcr Uiinl in ho iii( IIiim (\tonii io replevin ov ejeeinteni. 'I'lie ( 'oininiHsionerR \\ lio reemn- n»enl,'»i)>iilV iniglii lie diiRietl noiio jeoiiiuiii(>i> hin tMBo l\v rtti ineonvenieni eoi\(i>ini«lioM of eliiin\H, Tliev naiil m their (ivsi ii^poii. " A plaint ill' \m noi liUelv in dinnnijt' liin el.'inn tov e\itnin;>( i-onveiRniion l>y ivddin^ tv eliiim whieli niuy dit'.'et .vifention to i\ ipiesiion of wlnMlier he i« entitled to tlu' jniee i*f jfood» sold, or other ineonginons matter," The jnineipleH which formerly >j>>verned in ( 'Imneery and the ron\mon I, aw Conrts on thiw suhjeet have heen nniierHeded liy llir 1\\ih^seonia\ned \n thi»and the ]>reeedin>j;r an ohjeelion of it«elf (nee i '.i,r v. liiii'h r ,'i ( 'h. 1 *. .'irill); and tli»> rijjl\t to jon» several eannew of aetion in not liniilcd to eases m here thi\v are hetween the same ()artieB, nor (hrvo iui pro- vided in this { >rder) in the B.ime rinht. Tl\e ]nvsei\i l\\ile is an extension of r, S4, of the ('. Ii. P. Act, and it IS ai>prehend(>d that, the \vord» " eaiis<' of aetion" iiuist tvoeive the same eonstnu'tion a" (h(. I'J:)). The Kuh^ must, theivfoiv, as put hy an aide eonnnentator on tin' Knclish .ludieatnio Aet. W taken to ineiiide. not only dillerenl, lei;al ivlatiMis arisinj; out of t he same transaetion, Init also Henar.ito and independent transaetions (Wilson. .Iiid. Aet, jt. KS7. '-'nd Kd.) I'nder the pnHH^ling Onler jvny nuinlxM" of plaintills may ho joinovl. elaimiui; relief against any nnmher of delendantH, jointly, severally, or in the alteni;itiv< ; ami the present Order gives .1 very wi,le diseivtion to pl.untilV. .as to the subji et-inatters whioli ni.iy Iv iin estimated in the aetion ; hut it w.as not intended tli.it any tuimber ot plaintiiVs sh.mld ho at lilvrty hy a nnmher of sejurate trials in one action to settle .all tlie ditVcroiit com- plaints they n\i>rht have .against .all persons whatsoever. Since the Administr.ation oi .lustice v\ot, tht> viewof mmieof the .ludgcs in the t\nirt of t^h.ancery hjus hoen, that a Kill respecting sovor.al distinct subjoctiuatters wjvs not open to the ohjoi'tion of mnltif.ariousnos.s providinl all the dotVnd.anhs wore interested in oAoh of the several causes of aetion (siee lirown v. Cdjiron, 'iO Gr. 674 (n.) .fniNitPH (»r lAimpfl nr actimn. Kh .(ii'll'-ntiif |'ii>fi(:ti(i> A<'(« niiil Union it, in nulnitiftcil flint, RgliillA, tl|)'|i' IMliy I"' i'> >l>l 'ti'tinll ! (I) Mi'Vi'inl mill)''!'! imtltitH; in wlii'li rn»i- (ill Mk- prirficq »>i (It" ni'fiiili bIiimiIiI III' iiiti'li'Mli'il ill Mii'li nf Mif ilifli-ii'iil. miliji-i') iumI t,i'ilil)i-r<'iit ilcfi'tiiliiiifii limy 111' nil 'li«ltiM't. ijimiiiiiIk immI Ml i^iiiy iMit, nf ilinljiiit li'^nl rMJnti'iiiM iif (lie pill (ii'M : iir, \'i) t>tii' miliji'ct iiiiitf.i'i' ; ill wliii'li I'lmi' tlii- )i!niiiti(T'» (iiny I'luiiii ii'lii'f B<'|i'i'f, iiiiittiT. (Inli'i 17. ili'iiliiiii with Miiliii'i'l, iiirill"iq, iiumiifinq niii i,| tiiiiii'd |l!Util'B. 'I'lll'l'l' IIMIMt, tlll'l I'fllll', ll" cillll'l i'll'lllity "f Blllljc':!, miitliT. in wliii'li I'liBi' Oii|i'i l(i Kivi'H iiiii|ili' lilii'ity in tlii- 'li'iic" of |i(»i(i<'B. or iili'iitif V "T |i(ii(ii'H, in wliiili < hhi' Oi'Iit 17 i(iv«» (I liki' lilii'ily ill l.liM I'linici' nf niiliji'i;!, iiiat.fcrH ' ". Ill lloii'linnH liii. Ci). V. '/'iiilrir, 'I I'x |l .'I'll, t.li»'r>' wim 'irio miliji'i't; inrittiii, ri I'lmt.iin'f, inii.i|i' ntiil Innkiji 'Mn' |i|iiinf illl-l f,«. Ill' ritilitjy lniiii(/|it, (i^niimt, twu (JpftiiihiiilB nii tdlally ilmtiti't, ('{iiiHi'H (if (irtinn ; !iK(iinHt, il<'friii|iinl. W'l'Ht. f'lr liii'ii'li (if tK coiit.rii'f, t(t |i('iH(iimlly |(i(il< nfti'i- till' piiiint.ill'M h(iii wlid vv/m in (l<'li'at*i ln'!ilt.li lit llm (lol'i'tKlfint, \V('fiii, 7 ''ll. I>. I, HMpfiniio dlfcrnuttvc c'iubi'h of actriiin were li^ld l,n liiivn liccii prnpi'dy Joiniwl rtKHiiint tli<- Hftr/in .: I \li I i k k ONTARIO JUDICATURE ACT, 1881. (1) A claim which cinbarrasaca a fair trial of the action may be struck out (Hulea 122, 123, 178). Thi.s was doue in Smith v. UichardKon (.tiipra), where the vendor of goods and indorsees of a Rill given by the purchaser to the vendor for the price, jointly sued the purchaser to recover the price, and also upon the dis- honoured Bill. (2) The Oourt may rlirect the different causes of action to be trieil separately under the concluding clause of this Rule (See /iii(fot V. I'Jastnn, 7 Ch. 1). 1 ; Child v. Stt'miiinf, SCh. D. 095, and pai/ V. Raddiffi; 24 W. 11. 844 ; Barker v. Cox, 3 Ch. D. 359). This course might formerly have been directed under a. 85 of Rev. Stat. c. 50 (See Filzsinunons v. Mclntijre, 5 Pr. Rep. 119). 2. No cause of action shall, unless by leave of the Court or a Judge, be joined witli an action for the recovery of land, except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are or is held, [and exce})t claims in actions on mortgage.-j for the I'ocovery of the mortgage money and for foreclosure or sale.] (R. Sup. C, 1875, Order 17, R. 2 ; R. S. O., c. 50, s. 84.) Same as the English Rule, except the words in brackets. In actions of ejectment and replevin, a. 84 of the C. L. P. Act did not allow the joinder of other causes of action. That excep- tion in cases of ejectment is continued in a modified form by the present Rule ; but an action of replevin seems now to stand in no different position from other actions, no special provision having been made by this Order for cases of replevin. Formerly, no claim could be joined with a claim for possession in ejectment, except a claim for mesne profits in the case of a landlord against a tenant (Rev. State 51, s. 70) ; and nothing was required to be stated in tlie writ or the issue to enable the plaintiff to claim mesne profits (Smith v. Tett, 23 L. J. Ex. 93, 9 Ex. 307). Under the Judicature Act a claim for mesne profits, or any other claim, joined by leave or otherwise under this Rule, must be indorsed on the writ (see Form No. 6, App. A. and Rules 77 & 210), and set up in the statement of claim (see Form No. 68, App. P). Where the leave of the Court or Judge ia necessary under this Rule, it must be obtained before the writ is issued (Re Pitcher, Pitcher v. Hinds, 11 Ch. D. 905). Under this Rule it has been held that a foreclosure action is not an action f'^r the recovery of land ( Tawell v. State Co. 3 Ch. D, 629), so that no leave was necessary to join with a claim for foreclosure of a mortgage, a claim for the administration of the trusts of the mortgage. So also an action to establish title to land, to declare that a lease was entered into by mistake, for a receiver, and an injunction to restrain defendant from receiving the rents, was held not to be within this Rule (Otedhitl v. Hunter, 14 Ch. D. 492, not following Whetstone v. Dewis, 1 Ch. D. 99). In an action for recovery of land, leave has been granted to join a claim for recovery of a deed relating to the land, and for an iifj unction and receiver (Cook v. Enchmarch, 2 Ch. D. Ill); a claii 24 W. estate (Kitch In Cham claim the pn The serted practic naiits I JOINDER OF CAUSES OF ACTION. 169 a claim for a receiver of the rents and profits (Allen v. Kennett, 24 W. K. 845) ; ami a claim for the administration of the pers(mal estate of an intestate whose land was sought to bo recovered (KiHing v. KUckimf, 24 W. Li. 901, W. N. 1870, p. 225). In ManUtif v. Keneabj, 24 W. II. 918, an action for recovery of Chambers in (Jray's Inn, of whicli l>r. Kcnoaly was trustee, a claim was allowed to bo added for execution of a conveyance of the property to new trustees. The concluding clause of the Rule in brackets has been in- serted to prevent any doubt as to the contiriuance of the existing practice, by which, in one suit, a mortgagee may sue u])on cove- nants for payment of the mortgage money and delivery of posses- sion on default in payment, as well as for foreclosure or sale. Bnlei 116-119. 117 3. Claims by an assij^uoc in insolvency as such shall not, claims by unless by leave of the (yourt or a Judge, be joined witli filsolvt^ii.y. any claim by him in anv otliei' capacity. (Comp. R. Sup, C, 1875, Order 17, R. 3.) 8ame as the English Rule, except that for " an assignee in insolvency," the English Rule has " a Trustee in Bankruptcy." The general rule as to joinder of causes of action being now without the proviso contained in C. L. P. Act, s. 84, that they be in the same rights, it is necessary to specify cases in which causes of action accruing in different capacities shall not be joined. This is one of the cases (.see also Rule 119). 4. Claims by or against husband and wife may be Claims i.y or joined with claims by or against either of them separately, bami'anu'* ■r. Sup. C, 1875, Order 17, R. 4 ; R. S. 0., c. 50, s. 86 ; *i'^'- Eng. C. L. P. Act of 1852, s. 40.) Same as the English Rule. By the Common Law Procedure Act (Rev. Stat., c. 50, s. 86) a husband might add claims in his own right in an action brought by him and his wife, for a cause of action accruing personally to the wife in respect of which they were necessarily co-plaintiffs (see Harmon, 0. L. P. Act 87.) no 5. Claims by or agains^^i an executor or administrator Claims by or as such may be joined with claims by or against him execu'tor. personally, provided the hist mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator. (R. Sup. C, 1875, Order 17, R. 5.) Same as the English Rule. The joinder of claims provided for by this Rule, was not poss'ble under the former practice {see Williams on Executors, 6th Kd. 1729) ; and difficulty was experienced in deciding whether an executor or administrator should be sued as such or personally. Fir instances, see Ashby v. Ashby, 7 B. and 0. 444 ; Corner v. Shaio, 3 M. & W. 350 ; Bolinghroke v. Kerr, L. R., I Ex. 222 ; Monekyv. Rendell, L. R. 6 Q. B. 338 ; AbboU v. Parjiit, L. R. 1 Q. B. 346. |i > ! 170 Bules 119.123. I4<» .liiiiit and suveral iilaiins. 141 Power to or- der separate trial. Apiilication to strike out. 1 4:1 Order to strike out ]ileadiiigs. ONTARIO JUDICATURE ACT, 1881. The Rule does not apply to a counter-claim, so as to enable the defendant to set up by way of counter-claim, claims against the plaintiff personally and as executor, where he is only suing in a distinct personal character {Macdonald v. Carimjton, 4 (J. P. D. 28). G. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant. (R. Sup. C, 1875, Order 17, R. 6.) Same as the English Rule. 7. The last three preceding Rules shall be subject to Rule 1 of this Order, and to the Rules hereinafter con- tained. (R. Sup. C, 1875, Order 17, R. 7.) Same as the English Rule. The words "subject to Rule 1 " refer, as the side note shows, to the last clause of Rule 115, giving power to the Court or Judge to order separate trials of the different causes of action where necessary ; and Rules 122 and 123 make further provision or prescribe the modus operamli for carrying out the same object (See Cox v. Barker, 3 Ch. D., p. 372, per Baggallay, L. J.). 8. Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of in one action, may at any time apply to the Court or a Judge for an order confining the action to such of the causes of action as may be con- veniently disposed of in one proceeding. (R. Sup. C, 1875, Order 17, R. 8 ; R. S. O., c. 50, s. 85 ; Eng. C. L. P. Act of 1852, s. 41.) Same as the English Rule. Compare similar power given in Rule 127 and 168, in regard to counter-claims, and see Hall v. Old Talargooch Lead Minimi Co., 45 L. J., Ch. 775, 34 L. T. 901 ; re Woodjine, Thompson \. Woodjine, 38 L. T. 753 ; Bagot v. Easton, 7 Oh. D. 1 ; Dessilla v. Schunk, tw(H>ii Hct-olV mid oi-ohm-iIciiiiiiuIh. Counlcr- Till* iiiodo in wliicli n (Icft'iiiliiiit iii-oimhmIh to ohtiiin aiuli vrm» i-Uiiii. rclii>f in Ity oountor-oliiini, whioli Iiiih Imm'ii ilcliniMl iw "ii itlcailin^ wluMV i\ (l(>f(>n L, .1. Ch. iir.). It 18 of tht' osHonoci of i\ (Muintor-rliiini that it cIiiiniH rohif K^aiiiHt tho nhiintitV. 'Phcrt' ( nocoiintiM-t'laini iigainHt a oo- «lefon(hint alone ( U'ii/'ho' v, 7'»/'»«i;i(/, 'J4 \V. R. A.'U) ; MrLai/v. ShiiriM', \V. N. I.S7(», p. 'Jl<»; n,iir,'b'v. Vnuhhvk, \V. N. IHHl. )), 54. Shf}thtu'({ V. Hciitii', '2 Ch. |). '2'2',\, in not to Iks conHidcri-d an authority hoo llnnin v. (/onihlc, W i'h. I). 74S ; FiinnsHV. Hoolfi, 4 (Ml. D. 58(5). So thi-re oan ho no ooiintir-chiiin uKaiiint A thinl party, iiiih'HH a oKaim in niaiU* against ithiintitV ahiiig witii Biioh tlurd party (Dear v. Sirordir, 4 (h. |). 47t) ami Huh! I()4), AgiiinKl Whore a oounter-ehiiiu ia hroiiglit against a plaintilV ahme, it iH plaintiff. not iieoesHary tliat tlie ohviiii laintitV it is suhjcct to certain restrictions : othors. ^ J J ipjj^, relief sought to he ohtainod against liiiii must relate apccitically to or ho conneeted with the suhjcct matter of die action (PiKlirkk- v. Scotf, '2 V\\. I). TM) ; see Harris v. ihiinbU, 6 Cb. 1). 748). (2) The counter-claim must, as before mentioned, claim relief against the plaintitV along with such other person (liulc 104 ; Trclcnii v. h'rai/, 45 L. J. Ch., 113, 1 Ch. D. 170; VMn; v. Swordcr and Harris v. Vatiiblf supra ; Tunwr v. Htduesford Gas Co., 3 Kx. 1). 145.) Where relief ia not claimed against the thinl party along with the plaintilV, the proceedings must be under Rule 107. (Vfiitral African Tradimj Co. v. Gover, 40 L. T. 540; 48 L. J. Ex. 510.) Furthermore, a third party cannot counter-claim against the defendant who brought him in {Street v. Gover '2 Q. B. I). 498). Jn Evans v. Buc/:, 4 Oh. D. 43'2, it was held that a person cannot be brought in as defendant to a counter-claim against whom relief is claimed iu one of two iucousistent alternatives {see note to Rule 91). ;« ■ i I rouNTER-nr.AtM. I7f» In ftiiy cftHo, ft ••(Hiiitn-i'liiiiii van only 1»o not tip wlic>r«» iiii Bole 127, notion iiiiKlit l>*) limu^lit. A ('(luiittu-clditn Iikh Mirrcfrirr b('<>n iliHallowcil wlicii^ it Hct up u il<>lit hIN^uimI to liavo licni iii- (■iirn'il liy till! plaiiiliir wlinii mi iiifiuit himI nut nttilicil under l^inl 'IVnilcnlcirH A.'t (A'.fWr// V. /.'(»«/'/.// I t^. h. |». m)). So in ail nctioti liy lui lulniiniHtnitror for tin* liftlainui of iiii inti'Htnte'H Uitnkinv; A(!rount, n dclit due from an intt'Htati! on ii tioti^ wliicK iH'cainc diiiMiftcr liiH dcatli waH not hUowimI to lMiHetii|i, liccaiiH)! nil adiniiiiHtration orilrr had lict'ii before action olitaiiieil, of wliiith t)i( for it in the adiniiiiHtratioii proceed- iiiK'H (iV( /<'(// V. i\'iitiiniiif I'ldi'iiiriiil liiiuk- «/' MiiijIiiik/, I < '. V. \). I'.Mi ; I ( 'harl. < !i. < 'a. H'J). So almi, where the claim wet up in tlio ciiuiiti^r-claim had heeti extingiiiMlied Wythe olitaiiiiiig of a jiiil^iiieiit ill another MiviHion, \vliie}i jiidffmeiittlMMlefeniiant waH not at lilierty to enforce without U-nvv {/liriiiiiiijlKiiii h'ufnliH Co. V. Smil/i, i;«'('h. !>. rm\.) St-e also Hrili/iill v. 'Miiifldtnl, \V. K. 1881, p. 4,'{ ; 4t I/. '!'. L'lH, wiieie a ioiiiit(!r-claini for dainag(!H for fonwiile entry under tin; Statute of iliehard II. failed, lieca\iH(! tiiiit Act gave no civil remedy. In Hc'lihll V. Miiilliniil, \V. N. ISHI, p. 3.1 ; 44Ii. T. 248, it wan c.mmi.i lii'ld hv I'rv, .1, that acoiiiiter-ciaim in an iinlependent action, and ''l"i"i. ^'"^ ' - ' ' _ . |„p ,1,1 I, I, I,. rt'licf may he given upon it in rcHpect of acaiiHi^ of action that aroHi after the iHsiu) of tlie writ in the original action. In J'JIHh v. Jut Minisoii, W. N. IH7(), 'Jr»;», ,V> L. T. fiHr.. the Court of Appcwvl liail held that hiicIi a eounter-claim Hliould, nmler Order Mi, Htate tliat it waH founded on faetH which had arinr'H Hiiice the ai;tion wiiH brought ; ami, in IH77, in Orhjiwil llarlli jhxiI. dol'ii'r'n'fi Co. V. Uihh, r>(!li. I). Tl.'l, .IcHHel, M. I{. had exprcHHCMl tin; opinion that (lamagcH olaimed by counter-claim muHt bu limited to the ilatt! when the writ issuod. The counter-claim cannot l>e jirocecMled with after the {trinci- pal action has been diHcontinued ( Vni'iittHnir v. Krii/>/i, \V. N. 1880, p. II, wliitdi was (pie.stioned, however, in licililull v. MuU- laud, 44 li. T. 'jr)()) ; and an order will not bo madc! upon tho counter-claim until tin; original claim is dealt with (Aitkin v. Dun- hat; 4() L. J. Cliy. 48!), LM W. K. IMW) ; but whether jshuch nuHcd by the claim and counter-claim whall be tried together is a matter of convenienoe (AV Woix/Jhir, TfiunipHon v. Woodjine, .S8 L. T. 75.S ; 47 h. J. Chy. KVl). A defendant who sots up a counter-claim becomes in the posi- tion of a plaintilV in a cross-action ( IViiifrrJiild v. /iiunlninn, ,'{ Q. B. D, ,S'J4) ; and when out of the jurisdiction was in one case ordered to give security for costs (The J. Finhn-, 2 W I). 115); but a defendant will not be entitled to security where his counter-claim is in respect of the same subject matter as the plaintiff's claim (Mitpk'mn v. Mamii, 5 (), IJ. 1). 144 ; .sn' ;vlso Shp/ypmi' V. //iii/hall, 13 (Jr. (581); and where he admits tho plaintiff's ol.iim and sets up a counter-claim founded on a distinct claim, he cannot demand security for costs from the plaintiff if out of the jurisdiction: (picvre, however, where he sets up a counter-claim for an amount greater than the plaintiff's claim (See Winter field V, Bradnum, supra.) (SVc also notes to Kule 42{>). Where two or more plaintiffs sue for a joint claim, the defen- dant may set up separate claims against the plaintiffs severally {Manchester dk Sheffield Hallway Co. v. Brooks, 2 Ex. D. 243), priiiliril lull 5 , V V V' It li V.!' 176 Rule 127. ONTAKIO JUDICATURE ACT, 1881. ICxi'lu^lilIl llf COIIIltl'I"- i'l»iiii wlii'i'c ii nvi It iR not necessary tlint tho ninount ciniined hy tho defondnnt nhoiiid he o(|iiiil to thu oliiiin of tho [ilaintitr (Montijn v. WfM i/o,il;iii (V. I C>. W 1). I4r)). W'licro till! iHsiu's of fiict in the elnim and counter claim wore idiMitical, it was heilS, I (^harl. Ch. Ca. 71). In order to prevent the ahuso of tho extimaivo powers of counter-claim given to defeiidanta tho ('ourt may impose restric- ticms in two ways : (1) Under thi! last clause of the present Rule, by refusing per- mission to the defendant to avail himself of the counter-claim if in the (i[)inion of the Court or .Iuilg«' the same cannot con- iiiiiit to try. vonieiitly lie disposed of in the peuiling action ; a motion of this kind was held, in hlugland, to he jirojierlv made in ('ourt (iV(;v- lor v. Fanri; -JC. W. K. 8()!» ; -vc also lliuiqonx v. Twcvd, 10 Ch. I). ;i.V.t. and Wule l'->()). In yaiflor v. Fitnrr, .lessel, M. II., said that, in his o])inioii, under (hder li), liule .S, a defendant might set up any nuniiier of counter claims. There was no limit laid down in that Rule either to their nundicr or nature ; hut it was left to the tliscre- tion of the Court or a.hulge to do so, otherwise lifty causes of action of the most diverse nature might be joined together aud set up, and witnesses of all kinds called in support of each. How woulil it lie ]>(issii>lc for the <'ourt to try all those in oiu; action? There nuist also be some limit to the character of the elaiiu set ■up. Sujipose, for instance, an action for account brought by a -surviving partner against the widow, who was also the execu- trix, of the other, to which the widow set up a counter-claim for damages for breach of promise of marriage, could that be said to be a counter-claim which could be conveniently disposed of in the pending action ? It was impossible. The Judge nuist exer- cise the discretion given to him by the Rule in allowing or reject- ing a counter-claim. In that case, the matters set up by defendant were totally un- connected with the partnership, the subject of the plaintiff's claim. In his Loi'dship's opinion they could not bo conveniently disposed of as a counter-claim, but were lit subjects for a cross actiofi. No injustice, he said, would be done to the defendant by striking out the counter-claim, because his Lordship would not be allowing the plaintitl', as in some eases, to get money from the defendant which be might not be entitled to, and which the defendant might not atFord to spare ; for the defendant would be able to get his money iu the cross action before the plaintifif, who would only get an order for taking accounts, could get any order for payment in the present action. (2) Under Rule 168, by striking out the counter-claim on motion, generally made in Chambers (see Naylor v, Farrer, iup. and Coe, Prac. in Cham. 78. In Ca. li a deft incouj thu oi Ac matte in goi cro.is juct ni voniei ('(lUIlt of the 187.'i, COUNTER-CLAIM. 177 In Bartholomew v. IfnwlinffM, W. N., 1870, p. 50, 2 Oharl. Ch. Ralol27. Oft. \V2, Aroliilmlil, J., Hftiil, "Thoro ia no (l()ul)t whatovor that ft (k>fuii m, is thcn.'fort^ ' ii''""!,i ill ^onoral, propor. So also a counter-claim in th'^ uiituro of a cnws ilomand, pecuniary or othorwiHc, UMCoiinected wi^'i thu Huh- joct matter of tho plaintiffH claim, provided there is .'> incoii- vutiieiice in having a trial of l)otli in the same action. tj£iuiii>U'x : — Action by a stockbroker for ]>rico <,( shares. (!()Uiiter-claini for frauilulent niisrepreHtuitations as to the value (if the nharea (Anon, i (!harl. (!h. (!a. T.i ; J'Jmn.i v. Ouiin, \V. N. 187'., p. 1!)!», 1 Ciiarl. (Hi. (Ja. 70). Action for price of iron. (Jounter-claiin for inferiority of iron (Auiiu. I ('iuvrl. Ch. (Ja. TA). Action for price of coals. (Jounter-claim for non-delivery of hiilaiicc of coals (JVurlon v, Merrimaa, W. N. 187r>, p. 'ilJi; 1 Cliarl. Ch. (Ja. 8(»). Action for negligent construction of ship, (-ountcr-elaim for extras duo beyond tho contract price ( Triiiucria v. Richardson, W. N. 1875, '-'I'J ; 1 Oharl. (!ii. (Ja. 74.) Action by builder. (Jountcr-elaim for breach of covenant in Iniilding contract ^'7Vt'i'f«a v. Watln, W. N. i87o, iioO ; I Charl. (.;h. Ca. 79). Action by lessor for rent. Counter-claim for an alleged debt and damages for non-porformanco of lessor's agreement (Atwood V. Milh'r, VV. N. 187(J, p. U ; I (^harl. Ch. (Ja. 82. See Atkin- mmv Ellison, VV. N. 1875, p. 191) ; 1 Charl. Ch. Ca. (59). A couuter-claiiu was allowed claiming against an assignee a sL't-otT of damages due from the assignor ( Youmi v. Kitchen, 3 Ex. 1). l'J7.) Wliere A sued B on a bill and B defended by alleging that A was really trustee for (! wlio owed B money, B was allowed to bring iu aud claim set-oli' [Macdonakl v. Bode, VV. N. 1876, p. 23). Action by executors to charge a married woman's estate with a debt to their testator. Counter-claim by her and lier husband, also a defendant, for money belonging to the wife, not part of her separate estate, and for chattels in the possession of the testator at his death, and alleged to be the property of tlie hus- band (Hodson V. Mochi, 8 Ch. D. 509). A mortgagor was allowed to set up, in a foreclosure suit, a claim to open signed accounts (Eyre v. flughen, 2 (Jh. I). 148). A County Court judgment was allowed to be set off against a judgment of a Superior Court (Sandys v. Louis, VV. M. 1875, 249, 1 Charl. Ch. Ca. 81). On the other h.and, counter-claims will not be allowed to be Counter- set up which cannot be the subject of an action (see liawley v. claims not Rawky, and other cases, p. 175), or which raise questions not cap- *'^°**'*- able of being conveniently tried in the action. Examples: — In an action of assault and battery, Quain, J., said that he would not allow a counter-claim to be set up for 12 m n • ' 3 ■ , '-' I i; 17H ONTARIO JUDICATURE ACT, 1881. 11 .. Rnlal27. aeductiou of the tlofemlftnt'H daughter (C/w/«'«« v, lirown, W. N. 1875, p. 'J.S1 ; 1 (Jhiul. Ch. Cii. 77). Action for assault. A couiitor-ohiim for breach of agrticnictit to repair a house was struck out, tliough an endeavour was niiidi; to connect the causes of action Ity sliewing that the parties were talking about the state of the lioune at the time of the assault {Lee V. Culi/ir, VV. N. 187(5, p. 8 ; I Charl. ('h. Ca. 8«J). Action for libel consisting in the circulation of a letter by ilefendant among the shareholders of a (JoUiery < 'oini>auy. Tlic plaintiff was one of tlie directctrs in the comi)any, who wero charged iu the letter with consniracy and fraud. Counterclaim lor damages for loss sustained in respect of shaies bouglit on false representations. Lindley, .)., said, '"I'liis is one of tliosu eases where it would be very difficult to keep the jury from mixing up the two claims." The counter-claim was tlierefori.' struck out without prejudice to any action ilefendant migiitbriui,', and the plaintill' was put on terms not to issue execution on any judgment lie niij^ht obtain witliout leave of the (Jourt or a .ludgi; (Nicholson v. Jackson, VV.N. 1870, p. 38; '2 Charl. Ch. Ca. 37). Action for the speciiie performance by H. of an agreement for purchase by him of certain patent rights. H. and N., who weiu made co-defendants as claiming some interest in the Hul)juLt matter of the contract, alleged that the plaintill" li.ad agreed ty way of ciiuntiT-t'liiiin "inlor the new nrociodure, the view takin at ( himi- berx waH, that tlieexurciHingof that now ri^'ht wanliko tho pleatlin^ of a (lefonco whioh did not arino till aftor tho action, and thoro- f(»n) wiionevcr leave was granted to get up tho counter-elaini, the plaintiir was given time to eleot whether lie would prooeeil or (liHeoiitinuo, and if he diHoontinuod he whh allowed Iiih costH up U* tho date of the countor-elaini (Anon. \V. N., 187"), p. '-"JK, 1 1H7"», p. 187;'), p. uai. Charl. Ch. Ca. 7« ; CtippehuH v. lirown, \V. N Charl. Ch. (Ja. 77 : Tri,<,,in v. Wn/tn, \V. N Charl. Ch. Ca. 7!) ; and -sir Itulo ir)7). Fiinn of Cimntir-Vlaiia, — A eountci claim and statement of lU'feiioe must Im- inehidt!d in tho same jiloailing, and tin' saHio ruii'H a[)ply in many respocts to a oountor-ciaim as to a Htati'inent of claim (see //o/Zo/ra// v. York, 'J') W.ii. ()'J7). Hy tho express terui.s of tiio Rules, the relief prayed for Ity way of ccuintorclaim must 1)0 spooilically stated (Kulo I3.'l) ; and tho facts sufiporting each cause of action, are, as far as may bo, to be kept distinct (Kulo 134) ; but a counter-claim under tho (Ontario Acts anil Huics is not governed by as strict i-eguiations as in Knglaiid. ituks 10 and 'JO of tho English Order li) have n( t been a(h)pted here. Kulo 10 provides that " where any defendant seeks to rely ui)on any facts as su])porting a right of sot f)ll' or oountor-olaim, ho !lo under the Kuglish system in regard to admissions {■sci' note to Rule 148) and to Kulo 120, which rociuirod the plainlitl' to deal specilically in his reply with each allegation in the counter-claim of which he o combined in tho same document, they are ([uito distinct pleadings. 'Die para- graphs of the document, may be numbered consecutively; and the counter-claim need not be separated from the defence by any marked line or separate heading ; but it is necessary that all the facts which the defendant relics upon by way of couuter-claim should appear in that part of tho document which in fact con- stitutes the counter-claim ; and it is not enough if tho facts be found scattered through the defence and counter-claim. If the 'ii IMO RuIm 137, 188, Vl«'.i>lr'« ONTAIUO .tUntrATI'IlP, ACT, IMMl. f;ii'(s ii'licil 111) l»v wnv iif (li^ft'Uco rtn> rtlso rplieil n|t(tiH>i mi|ijiMil llio I'lmnti'i- I'ljiim. lln'V iiimv Ih' iiii'iii|i(ii!Hi'il in tin- ciimili'C >'l,'(mi 1>V ivfi'itMii'i" (otlio itiii!i^ri>|ili ill «liicli (licy nw w{, Inil'i in (In. ilefptum (liirmn,ih,i)» ln(!irii> Ai'l mhiiIcI himmii In Im', (Iiii( it j^ lii>(. ni'r('«-iin V, Ity Hi'pniad' imnilu'vin^ kI |iritiij;rii|>li«. Iii'inlinu'', m' i<( lli'l W i«('. III ilisi(i|>)^IUsi|| (lie ilt'fi'IM'i' t'rnni (lie riinnlt'l rliiini. It alimilii lie Hiitlii'ii'iH, il' (Ih> IjuMm mi wlm-li (In' ilcli'inlanl. H'Ijim. wln'tlii'i' liy wuy of ilcfciii'i' or I'miiidT I'luiiii, mn I'liin'iscly !»(;i(('il Mini wiilnml pnilivily (Unlc I'JM). lu'cpinji ii« liif ivj inny I"' wi'|i;u,iti'. Jiiiil "liMliiii'l, III!' (.•icIm ii'laliitii In hcvi'I ill Mini liwiiiii'l, r.»ii«('M 111 ni'diiii ii'lii'il nil Ity «iiy III' rcniiiti'i I'liiiin (Wiili' I;i4l. A piiunr fur (lin I'lnind'r inlii'l ili'nuril slninlil In' inlilnl (liiili' IM.'U riii'ii, liy (iinvlii^jy (n tin' ili'i'isinii in II i?/.«, IS iii>( Jiyln'il. il will Ito (rilu'ii (li.U i( Im iiol >viiiiti'i| ( //.i/An/Mi/ v. )'(>)•/!•, shpvif], A tnriii nl'ciMiiib'ri'liiiiii iH ^ivi II ill \|>|i. I'. Nn. (lit. Ah til (111' (iiin' (nr ilclivoi'liin ii ininHi'i- 1 iaiiii in (lie niisi' nl n piTHoii alri'.nly |i,ir1y (n (lie ('iiusc. mo Uuli' l(t4. .'iinl in tlii'i'dsi' nl ;» (Ini'l p.irly. IJiiln M>">. I. I''\('vy plciniiiiij- siijill ciinliiiii ns I'onciHcIy iin imiy 1m' a sdilomnnl of (lie iii;i(i'ri;il (.n'ts nii wl.ii'li (lit> |tail\ pliNhliiii;' ii'lios. lni( n<){ (lii> cvnli'iicc l»y wliii'li (imy iirc to lio jM-ovoil ; HUi'h h(!i1<'I1hmi( hIimII ho diviiloil inln |);«r.igr!»|ilis. luunlicrnil (>onN(>(Mi(ivoly ; lunl nncli |iMr!iiL,M'!i|i|i sli.ill i'i)ii(:iiM. ;is tn'iirly ;is inny he. m si'|imi;i(i' iillnyiH imi ; il.Uos. siuiiH iiinl uiniilu'is sluill In' ('\|in'ss('il in (imiir; auil \\o{ in wonls ; NJiviiMl iiii' ot" ( "oimsi'l Hliall not, in' ii'tcs savy ; fovmn similar to (1iohi> in A|i|>iMiiiix (D) Ik'in'Io miy I'o iis(>.l. (V\. Sup. (\. IS?."!. Oiil.M- l'.» l{. I.) riiis 10 the saiiu' hs (lie l-aiulisli liiili'. Till' " uiatciial t'.icts " aic not ooiitiiioil In t'ai'ts wliioli niiisl !'■' 5>n>vi>il in iwlor tn c (;\lilisli tin' »';iiiHn nl' aotiiiu ; luiy I'aotM wlinli ivMy ;itV('i'( (lie ilainap's, ami wliii'h (In' plaindlV i^^ cntilli'il to pn>\i' at (lie trial, arc jMnin'ily ploailiiliU' in a slati'iin'iil nl cliuiii [Millintjlitn x. l.,yri»',>./«n//, 4.'> Ii. .)., I'ii. 744; A tli. D. ;»80i ; init it a ploiViliii« states only luatorial tacts, it will not lie strnoii nut iiicroly ln' .- uiso (Ik t.iots ai'o statoii at too groat icn.utli (H(iii> v. Mdni.", 2 ^^t W l>. ti.'lO) ; unless tlio ploadiui; is so proliv as to oiii lianass {Ihirij v. (Ivvitt. 7 t"li. I>. at 4S,S ; Mursh v. /'tuilr/nut. a*.. W. N. lS7().p. ~y i'rolixity may oonsist in (1) iicoossary fails hoiiig stAtoil at uuiUio lougtli ; or ("J) statoiuouts of uimoocssaiy facts (pit- Haggallay, 1.. .1.. in Ihirij v. (!>virft, 'AS L. T. 77). H is inipropor to stato arguiuonl, or iiiforonoos ami oouoinsioiis nl law (/'cir.v V. Oiirrftl, stii>rn : \wv Mollisli, L. .1.. Waf-'ion v. KihixylK supra : lidnuxr v. Fli<]hl. .Sa L. T. I'27 ; Williamson v. L. .(• .V. H . Ihj. Co. \'2 V\\. 1)'. 787) ; or matters of law that might bo raised l>y demarror \,Stolr.* v. (iruiit, 4 C I'. D. -")) , or " charges ■' audi as wore sometiinea iutroilucuil in Eiiuity mii.KH itv rr,KA(MN(». ini nlcfiiliiiLf Mii'l Wfin iiu.r<>|y «(,(i(('mi'iilM rif fho iilfndor'H vif'W of RtiIaISR tlni ''ipllly {W'lll^iill V. Unilwill, Hilin II \ ; iiv I'vidciico, r. i/., fmlj Hliiiwiri>{ Hint, ;i |M'is"ii Ih llii' Immi ril- lnw of n ilircnicii |if-rB»iti (/■;iW(/(i V. Hnh/ii, \y N,. IHHO, |.. (i2 ; «" filfl.i ///-(/i-r v. Alhim, lAl'' ht» Cii. Mft I,. I' '.'("» : Kl \,. .1. < '. I". tKi.'l ; ./„„>■» v. Tiirnry. \V. N.. I*<7r.. |i 'J:i!» ; (I >lfi,iiii'0}i V /.. ,(• /V. ir /('// '''»,. >.'»/(n/| ; viil"ni'i' ill Mil' hIiii|ic nf Miliiii'<'' W iHvri, 11 '.! .'IH|. I >ni'Hiii>'iilH ii'liol iiri !i« H'l'iiiuMi'iMs (it<' ii'it.liiiii; liiit. rviili'iKM- (/'"'■// V. ' iiiniiy ffiB'-H in whidi f(uf« iiiiil I'viilt'ii'M' iiri' HO mi \imI ii|i (IH III' In kIiiiohI iiiilint iiiLfiiiHliiiliji' \p,r Ar.'liiliMJ.I, .1.. ill Sniill, v. W-^t, \V. N.. IHTU, y. tut. '.* ('Iiiirl. I'll. Cm 411 'IT ■ iil;iiiitill' iiiM.i| nut hImIi' iin'l''r wlml |iiirfi(>iilfir form of iii'l III! In' in |iioi'iM'iliny ; nor In wlml. Ic^mI r<|iitioii lie iliiiinH to 'i|:ini| to I III' '|i'f''nilMlll { ,U' hii/l'ilifilll A'//. I'n V, /hfrii-i, .'Hi I, 'I jriOiiiid l!t|; Ihiiniinv F/i,i/,f, '2 1 \V. 11. :i»r,). Wiiiif in nmli'iijil in, ii hIhIi'Iiu'IiI of llic fiwiH imd of the f(|i< f cliiiiiicil ; mill tin' farfcs ih'ciI imt Im' iliHlrilnifcil so «h f.o show wliii'li of tlii'in Hiiiipoil I'Mi'li rliiiin to ii'lii'f .'-(o lont; ni tiny hIiow lliiil till' |il(iinliir in ciilitlci! lo miiv oih' kin'l of ri'liif iluinn'l. or. ii'ii' tlii'ii' in (V I'l.'iini for ynniiiil ic'l 'f, to iinv I'liff iil all, Mic |i:ii.i(;i;i|ili I'oiifiiiiiin^ tin in will no'j Imj (lt'iniitr;iltl aini'iiiltni'iih of t.|ir> nLati'tiiotit of clitirn liy Hi''lin}4 forth the I'in'iiiimlnni'i'H iiinliT wliirli Mi'' rnorn'y w(i>< ivi'.'ivcil, w/iH iliHiiiiHH.'il [H'lrlliil v. Hiirhr, VV. N., IS7''>, \< ■''>•)• Till' ilrl'i'inlant. Ih I'tililli'il to Iimvi- th<' |il.'uiil iH'm ''iihi' |ir<'-jfnt.<'<'■ ot'lrrid (hi'i'W.N.. 1871, |i|i. '201.' 'J'JO): or an ann'iKln.. ..^'of Mk' ilaim IlllVV III' ii|i|>li'(Miir (.SV'/oi;;//)' ;•(/ V. Xinln/li. \V. N., IHT'i, f>. If'<». 'J rhfirl. Ch. f'ii. :if.). Ill an action for yoodw huIiI ami ili'livrri'"!, a coiint.cr ilaim for iI.'1.tii;il;i'h lor inferior i|iialit^y wan hcI. n|>. I'/irtii'iiiarn of tlif dam- ii^;i'K cUiini'd wi'ic ordcri'd (Anon. \V. N., IH7r», p. L"J() ; mu' hIho iiiitc.'* l,o Itiili'H 1 1 and ITitJ). Ill an actioi; for Hiandcr, part.icirarH uh to natrnis of pcrKorm ull(')^i'i| to liavd lici'ii |iaHHint;liy when Mh' ftlamli'roim wordw wer* ii'tnl. and part.ii'iilarH an t.ii Mie allcj^'nl dani!itf''H. were rffiiMcij ( ir/)».7-(;'./ V. Cn.r, VV. N. lH7(i. p. KMl ; '2 ( 'harl. ('h. Ca. Xi. Sir ;i\h<) Citliiiihil /iisiirinirr ( 'i)ri>iirii(ii)n V. I'riiXKir, \V. N. IS7<», p. fir.; 'J ("harl. Ch. Ca. .T) ; ll,xlrll V. Sli'ward, W. N. IHVn, p. •-•31 ; I Charl. Ch. Oji. H7). Till' plaintiiriii an action for recovery of land, nitiHl Hot out nil the iiiatcriiil fncts itpoii which his titlu in founded («'-'• note to KuKi 1 14). Till' proviHioii, that Hif^^naturc ot coiuihcI w not to he tiecesHary, docs not mean that it is improper ami oii^lit to he ntnick out (lin-nnnlv. Ifavwirk, VV. N. IH7(>. J). l.'Jt). In Dnrkiltv. Jumn, W. N. 187<», i». 17 ; .13 Ii. T. 77, couuHorH signature waH 8aiiiltl he inarkcti. ONTARIO JUDICATURR ACT, 1S8I. r>. Kvorv ploaditig may Im> oithor ))rinto(l or writi.oii, or piirllv jtiintcd ami pcrlly writicti, l»ut no iiioro tliiui fo\ir 0()])i(>,s ot" any plcadiiiu; oi- oiliiM' doonnunit aro to ho allowod (o miy party in a canso or niattrr, oxclnsivo ot' tlio (Ii-al't, l»nt iiu'lnsivo of all otiicr copicH that may lie roipiircd, or niado, in tho pioirr(>sH of" tho caviHtv (iSVc' 1(, Suj.. V. 1875, Onlor ID. \{. .')' ; (i. (). tJhy., Noh. ()G, 40;i) 'I'liis |{iiI(M'i>ntjiinH till! Haino jnovisiDiia jih Cliy, < Jen. <>r(lt>rn ()0 .111(1 10.'{. oxocpt that Ity Ocn, Onl. (»(» ilaton mul huiiih wore roquirod to \w oxpiossctl in lif^iiniH iiiMtoail of wonlH, wheic tiic jiloading waa wlioUy priutctl. (). If nuwv ihaii throe oopi(\s, <>x('liisivo of tho tho ploadiniif or dooumont printiul for tho jiur- posos of tho cause or matt(>r, and in that, cuho ho nhall in lioii of all oharyi'H for oopi(>s ho allowed .'50 eent.H per folio of the pleadinij; or (huMimeiit. and liis reaHonahle dis- hursenu nt8 of procuring the same to l)e printed. (See l\. Sup. i\ 1875, Order li), H. T) ; (J. O. t'hy. No. 404). Tliis is the Hanio as the ("hy. (ion. Old. 40t. The Kiigliah Hiilo ."> is not simil.vr. 7. Kvery pleading or other tloouinent required to he delivered to a party, or between partie.s, Hhall ho de- livered to th(» solieitor of every part.y w!io appears hy a solicitor, or to the party if he doi^s not appear hy ji soli- (Mtor ; hut if no appt>rance has been (Altered for any party, then such pleading or document shall ho delivered hy ht>ing posted up in the otHce from whicli the writ of summons was issued. (Comji. U. 8up. 0. 187;"), Order ll>, K. 6.) Same jus tlio FiUglish l^nlo, except that tho latter ])rovideB for the tiling of tlio pleading or doeument insteatl of posting. For the dolinition of " pleading " kcc see. tH of the Act. By the next Hide every pleading in an action is reiiuired to he delivered ; and delivery inelmles tiling (Hnle ITtO). .\ notice of motion for jndgiuent is a doennient wliich may he delivered hy posting as mentioned in this Rule ( /)(/»((»!'/ v. (,'rofl ;U'li. 1). .")1'2 ; Morton v. Miller, 3 l.'h. , 1). ;')!(); WHUams \. Cardwtll, '25 \V. K. (HG). 8. Every pleading in an action shall be delivered between p.arties, an«l sh.ill bo marked on the face with the date of the day on wliich it wa.s tiled, and with the I'eference to the Division to which tho action is assigned, the title of the action, the description of the pleading, and the nan\e and place of business of the solicitor and agent (^if any) of the party tiling the same, or the nanic I RlJIiKH OF I'hKAUINO. 183 iind miilrcHH of ilio party Kling tho Kiimn if lio iIooh not Rnlos iirl. by aHolicitor. (Con. p. It. Sup. (!., iHTf), Onlcr lHi>; MM'U. \). HIO). I.M 1). Kvory Htatcnicnt of claini hIihII Htat(5 Hpfuiilically tlioHdiif r('li(!f wliicli llm plaintid' chiinis, fitli(U' Hiniply or in (Ih' '|„!'"|,',7,d ' iilt(M'niitiv(% and may also ask lor jncncral rtdiof. A nd *'r'-''i'i''"".v. tla^ Huini! rnl(> .slnill a|t[)ly to any rountor (diiini nnidn, or \v\'h\[' ('laini<', tho plaintiil'HCMiks rolicf in roHfioct of Hovoral DiKtinfi (listiiiot claims or can.scs of compliiint fonnd(Ml npoii ||'/'','^|jj|','^' separate and distinct fiu'ts, tlicy shall \){\ stated, as far as may he, sc|mratcly and distinctly. And the sanio iiile shall api»ly when; thSueh an occurrence is not easily conceived under the present system, where the facts are stated, and not the legal result of facts only. Should it happen, however, the statement of claim may be amended. This Rule is not to be construed as rendering an amendment of the statement of claim necessary in other cases than those in which a new assignment would have been necessary under the old pleading at law. In other cases, if new matter is raised by defendant, the jjlaintifF may either amend, or may reply by traverse, or confession and avoidance, or both (See Hall v. Eue, 4 Ch. D. 341, and Earp v. Henderson, 3 Ch. D. 254). Rales 143-145. 144 20. No defendant in an action for the recovery of land ^p/*"""!; *" who is in possession by himself or his tenant need plead n-iuvtry of his title, unless his defence depends on an equitable estate '"'"'• or right, or he claims relief upon any equitable groiind against any right or title asserted by the plaintift'. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in pos- session. And he may nevertheless rely upon any ground of defence which he can pi'ove, except as hereinbefore mentioned. (R. Sup. C, 1875, Order 19, R. 15 ; Comp. R. S. 0., c. 40, s. 87, c. 51, s. 14.) Identical with the English Rule. This Rule only applies to a defendant. In an action of eject- ment the statement of claim is as much subject to the foregoing Rules as any other action, and the plaintiff must therefore set forth the material facts upon which he relies to prove his title. A statement of claim was held embarrassing which did not set out the plaintiff's pedigree, or show thfi devolution of title by which the land in question became vested in the plaintiff {Phil- lips V. Phillips, 39 L. T. 329 and 55G). Where the plaintiff's case depended on the heirship of A. , and that fact was stated simply, without showing how A. became heir the pleading was held sufficient {Evelyn v. Evelyn, 42 L. T., 248 ; 28 W. R. 531. The defendant relying on an equitable title must, in his statement of defence allege the nature of the deeds and documents on which he relies ; and it is not sufficient to allege that by virtue of divers mesne acts and mesne assurances, all the estates and interests of the plaintiff's predecessor in title are now vested in the defendant (Sutdiffe v. James, 40 L. T. 875. A defendant who pleads merely that he is in possession, is at liberty to question the plaintiff's title {Danford v. McAnuUy, W. N. 1881, p. 43). 21. Nothing in these Rules contained shall affect thepieaofnot right of any defendant to plead not guilty by statute. fi!|{[fte'*' And every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has hereto- fore had. But if the defendant so plead he shall not plead any other defence without the leave of the Court or 188 ONTARIO JUDICATURE ACT, 1881. R. G. T. T., 1850, No. 21, Rule 145. a Judge. (R. Sup. C, 1875, Order 19, R. 16; Rog. (Jon. T. T., 1856, No. 21, Ont.) Same as the English Rule. Whore a plea of " not guilty " by statute is pleaded, Keg. (Jen. Trill. Term, 1856, No. 21, will still bo applicable. That Ihile is OS follows : " In every case in which a defendant shall plead the general issue, intending to give the special matter in evidence by virtue of an Act of Parliament, ho shall insert in the margin of the plea the words 'by statute,' together with tlie year or years of the reign in which the Act or Acts of Parliament upon which he re- lies for that purpose were passed, and also the chapter and section of each of such Acts, anct shall specify whether such Acts are public or otherwise, otherwise such plea shall be taken not to have been pleaded by virtue of any Act of Parliament, and such memorandum shall be inserted in the margin of the issue, and of the Nisi Prius Kecord." The words "according to Statute" instead of "by Statute," written in the margin, are sulficient (RohcrtHon v. Cooky, 7 U. C. Q. B. .305). If the defendant omits to follow the requirements of this Rule, he cannot give special matter in evidence to bring himself within the terms of an Act of Parliament which allows a plea of "not guilty " (Coy v. Lord Forester, 8 M. and W. .312 ; Joij v.McKinn, 1 U. C. C. P. 1.3). An amendment may sometimes be allowed to supply the omission, even after verdict {Edivarib v. Hodges, 15 C. B. 477 ; Vannatter v. Buffalo d: Lake Hiirun Railway Company, 27 U. C. Q. B. 581). But where a defendant pleaded "not guilty," intending to justify under a Statute, but the Nisi Prius l^ecord had not the words "by Statute " in tlie margin, the Judge at Nisi Prius refused to allow an amendment by the addition of those words, as it was not shown that tliey were in the margin of the defendant's plea (Fornian v. Dawes, 1 Car. and M. 127). The parties may so act at the trial, and sub- sequently, as to be precluded from raising the objection of the omission to name a particular Statute in the margin of the plea (liurridiie v. Nkholetts, 6 H. & N. 383). The plea of "not guilty" by Statute put in issue, not only the defence which the Statute gives, but also all the defences which were admissible under the general issue at Common Law (Ross V. Clifton, 11 A. & E. 631). An equitable defence is not admissible under the general issue by Statute (Brown v. Blackwell, 35 U. C. Q. B. 239). The Court will not in general with this plea allow other pleas (Neale v. McKenzie. "^ Dowl. P. C. 702 ; Fisher v. Thames Jum. Ry. Co. 5 Dowl. P. C. 773 ; O'Brien v. Clement, 5 M. & W. 435 ; Legije V. Botid, 1 M. & Gr. 898 ; O'Donohue v. Maguire, 1 Prac. Rep. 131 ; bale v. Coon, 2 Prac. Rep. 160). In Hazlefoot v. Chelmsford Local Board, (not reported but cited, Charley's Jud. Act, 3rd Ed. 503), on action for taking gravel, Jessel, M. R., gave leave to defendants to plead the defence of sale by and payment to the authorized agent of the plaintiff in addition to not guilty. A plea of the general issue by Statute is not demurrable though no Statute is applicable (Cairn^t v. Water Commissioners of Ottawa, 25 U. C. C. P. 551). RULES OP PLEADING. 189 •al issue ;ed but taking sad the , of the though yttatoa, 22. Admissions aro, in all cases where it is practicable, to bo by i-et(irenc(! to the ninnbers of the paragraphs in the pleailing to whicli they relate, with such qualitioa- tious as may be necessary or proper for protecting the interests of the party making such admissions : thus — " the defendant atlmits the allegations made in the tirst, second and third paragraphs of the plaintiif's claim." {See G. O. Chy., Nos. 125, 151.) Not in the English Rules. See notes to Rule 148, post. 23. Each party in any jileading, not being a petition or a writ of summons, must allege all such facts not apitoaring in the previous pleading (if any), as he means to rely on, and must raise all such grounds of defence or reply, as the case may be, as if not so raised on the plead- ings would be likely to take the op})osite party by sur- prise, or would raise new issues of fact not arising out of tlio j)leadings, as (for instance) fraud, or that any claim lias been barred by the Statute of Limitations, or has been released. (R. Sup. C, 1875, Order 19, R. 18.) .Same as the English Rule. See notes to Rule 148, jwst. In Bi/rd v. Xi(nn, 5 Ch. D. 781, where a statement of de- fence dt^uied the making of an .agreement alleged, and proceeded to say that the person by whom it was alleged to liave been niiule was of unsouml mind, it was held that the only issue was the unsoundness of mind of the alleged contractor. In Colldte V. Oovde, (7 Ch. D. 84'J) the defendant alleged that a song was not duly registered by reason of the time of registra- tion not being entered ; he was not allowed to prove that the rei,'istratiou was void by reason of the name of the publishers nut being truly stated. Both the above cases depended to a great extent upon the English Rules as to admissions, which have not been adopted in the Untai'io Act (see note to Rule 148). As to the mode in which fraud must be plcailed see note to Rule ]3(}. Where the Statute of Limitations bars the remedy only, it must be pleaded, and cannot be taken advantage of by denmrrer ( Wiiktlee V. Davis, 25 VV. R. GO, notwithstanding the remarks in ^Vo.VM V. Crawley, 10 Ch. 1). 31, which was decided before the appeal in Dawkins v. Lord Penrhyn, 4 App. Ca. 51). But where the Statute takes away the title, as in an action for recovery of land, it is clear that the defence may be raised by demurrer {Dawkins v. Lord Penrktjti, 6 Ch. i). 318 ; 4 App. Ca. 51). in the last case Lord Cairns said : " The analogy of the Statute of Frauds is not au analogy of any weight. The Statute of Frauds must be pleaded, because it never can be predicated beforehand that a defendant who may shelter himself under the Statute of Frauds, desires to do so. He may, if it be a question of an agree- ment, confess the agreement, and then the Statute of Frauds will be inapplicable. With regard also to the Statute of Limitations, Bales 146, 147. ■ 4« Manner of making admiMMionH. I4» Wliat fiict.^ must l)t' Iiliindeil. i ! im !■■ H^^^H i' l^ra^ V nil 1. JM (,• B^Hn i ■^nl ." ^B ', Hn k- HI 1 II P 190 Bulei 147, 148. 148 Silfiici' of I)l(!ai{lng IK) adiniMsion. ONTARIO JUDICATUUE ACT, 1881. an to personal actiona tho causo of action may ruiiiain, i^vt.ii although six years have passed. It cannot bo pretlieatod tliat the defendant will appeal to the Statute of Liniitations for hiH (iio- tcction. Many people, or some people at all events, do not ild so, therefore you must wait to hear from the defendant wlicthir he desire.H to avail himself of the defence of the Statute of Lim- itations or not. Hut with regard to real property it is a ((ucstiun of title. The plaintitf has to state his title, the title upon which he means to rely ; and the Statute of Limitations W'tli regard to real property says, that when the time has expireu within wliicli an entry or claim must he made to real property, the title hliall be extinguished and pass away from him wlio miglit have had it. to the perst>n wlu) otherwise has tlie title by possession, or in whatever other way he may have it " (4 App. Ca. 58-50). See also notes to Kule 141. 24, Save as above otherwise provided, the silence of a phmding as to any allegation contained in the previous pleading ot" the op[)osite party is not to be construed into an implied admission of the truth of siicli allegation ; ami any allegation introduced for the purpose of ))reventiiiL; sucl) implied admission, and not for the purpose of making intelligible the grounds of defence, is to be con- sidered impertinent. (Sen K. Sup. C, 1875, Order I'J. R. 21 ; a O. (Jliy., No. 153 ; R. S. 0. c. 50, s. 1 17.) This Rule introduces the practice of the Court of Cliancei y as to admissions ((r. O. 12.']). It was a principle of C/'onunon Law pleading that eaoli party was to l)e taken to admit tliose alk'j,'a- tions in the pleadings of the opjjosite party which he did not deny. " Save as above otherwise provided," the exceptions referral to in these words are those which require the pleading to spuci- lically deny the right of the party to claim in a representativi' capacity ; or the alleged constitution of a partnership tirin (Rule 140) ; or the legality of a contract; or its sufficiency in point of law (Rule 141). The English Rules imder the Judicature Acts, ;n regard to ad- missions (lill'er from the above (.fee Order 19, Rule& 17, -0, 22), the effect of which is that, so far as regards statements of .driiiii and defence and counter-claim, and as regards parties who are nut infants or lunatics, the want of a specific denial of a fact wdl operate as an admission, and will entitle the party whose plead- ing is thus admitted to move for judgment under Rule 'V2'2; and thus upon a technical constructit)n of pleading, final judgment may be signed (see Thorpe v. HohUivorth, 3 Ch. D. 637, and lintter v. Tre<]('Ht, 12 Ch. D. 758) ; and the merits might sometimes not be reached (see Tildedeij v. Harper, 7 Ch. D. 403 reversed however in appeal, 10 Ch. 1). 393). The Rule of the Court of Chancery adopted in the present Rule has not been found in practice to render the arriving at an issue a difficult thing, or to unduly increase evidence. By Rule 240 (which is founded upon Chancery G. 0. 124)eacli party is to admit such allegations in the pleadings of the oppo- site party as are true ; and if he does not do so, Rule 163 gives to II J :} T ■ ^ PLEADING MATTERS AIUSINO PENDINO ACTION. !»1 Icr with ru8|M't't Rnlei 149-lfil. 1 1» InidiisistoMi the Court or .1 udgo powor to mako a proper to auy oxtra costs oocasioneil by tlio failure to admit 2r). No plciuliiig, not luMiii^ a petition or suninioiiH, shall, except Ijy Wiiy of lUiKMidinont, riii.so any now '".l.^ill-s ^Tound of claim or contain any allejifjition of fact incon- sistent witli the jtrovions pl(M(liii<,'s of the party pleadiiit? the sumo. (//>., R. Sup. 0., 187;"), Order ID, R. ID.) This is tlie same as the Kiiglisli Rule, and the former practice was substantially tlie same. A second pleading may add a fact to, but must not oontradii't, the lirst {/xr Hrett, li. J., lircs/diiir v. liarwlck, 'MS \.. '\\ .")•_' ; L't W. II. 'JOI) ; uor raise a fresh cause of action (ColldnihfH v. Fllt/lit, \V. N. 1877, p. r-T)). In an action for goods sold, the defence w.as coverture ; plain- tiff replied, that he was not aware that defendant was a married woman, and thouglit she was a widow, and that she obtained credit by representing herself to bo entitled to an annuity under a separation deed. Held, that the reply did not raise a claim in- consistent with the previous pleading {Cullctt v. Dkkciixon, \V. N. 1878, p. :.'.'). ,,,^ 2G. Delivering a .statement of claim or defence or other Dtiivcry pleading or proceeding when mentioned or referred to in JUJ these Orders, includes filing, where, by the ])ractice of the Courts heretofore or under thesis OrdfM-s, such state- ment, pleading or j)roceeding ought to be Hied. The English practice does not re(iuire pleadings to bo filed. 1 ""»,'. ORDER XVI. PLEADING MATTERS ARISING PENDING THE ACTION. tM 1. Any ground of defence which has arisen after action Di f.irodciiv- brought, but before the defendant has delivered his 7^"*^ Statement of defence, («) may be pleaded by the defend- ant in his statement of defence, either alone or togeth(;r with other grounds of defence. (Comp. R. Sup. C, 1875, Order 20, R. 1.) Same as the first ])art of the English Rule, except that in the latter at (a) the words "or before the time limited for his doing so has expired" arc inserted. Reg. (4en. T. T. 185(5, No. '_'•_', was to the same effect (xce. also Rev. Stat. c. 50, ss. 1()() and 107, and llarr. C L. P. Act, pp. 115 and 731). The result is, that under this Rule the defendant may in his defence set up any ground of defence which he has at the time of delivering the •It'fence, whenever such ground arose ; and not merely grounds of defence which arose before the time limited for delivering tlie defence. As to whether a ground of counter-claim arising after action brought can be set up, see notes to Rule P27, p. 175, and Btddall v. Maitland, and other cases there cited. 1 02 ONTARIO JUDKJATUUK ACT, 1881. Balaa 152-154. 2. Tf, after a statement of defence has hoen dolivorcd, fuiy ground of defence arises to any set-otf or couiilor- eliiini alleged tlierein by the defendant, it may l)e pltMidcd ii.'i..r.Mioliv- hy tlie plaintilf in reply, [or he introduced by aiiicnd- fwi.',! til' nient into the statement of claim, within thrc*! wrck.s after the defence or the last of the defences shall liuvc Itecn delivered, unless the time shall be extended l»y tlii! Court or a JudgeJ. {(Jomj). 11. Sup. C, 187r), Order l!0. 1.14 I'lmiitiT laliii. 00. s. Chy. D4; No.s. 141)- AltlM- Knulish Iliilo in tht) casts of 11 pl.iiiitifl", cxcupt tliut tins *• rtls in liriickctmin! new, and that kvvvo of tho (!ourt or a .Imlgo '\h ri'i(uiiv(l umlor tlio Knj;li^li Itiilc. The Hiinio lilicrty in lure given to a iilaintill' after tliutinif of lU'livcriiij,' a reply lias cxpiriMl nn is l>y tiic pnuMMliiig Iliilo [jivcii to a (lt;ft'ii(laiit after the (Unlivery of his defeneti. !). In iinv such case tho uniondinonfc of tho plouding Aiiicniiincnt. nlod may i)o ina(l(? without au ordtT, on tilini^ a prwcipe ami an atliilavit that tho m:itt(!r of tho iiinciKlniciit ai'oso within ciLtht day.s, iioxt hoforo tho day of tho niakin<^ of such anicndiucut. {See II. S. O. o. f)!), .s. 1()7.) Tho ailiilavit hero required issiinilarto thatrocpiired in obtain- ing It'avo to plead a plea i>i(is '_', and Jtc Jonci, Eyre v. rVw, 'J.'> W. 11. .SO.S). The ailidavit should set forth tho new grounds of defence or reply, and explain any delay (llaynes' Ch. Pract. 8S). 7. Where any defendant, in his statement of defence, piaintifr [whether by way of ameu(liiu?nt or otherwise] allo<:f('s any J^'i^y^i'iJjj'l^^^^^ ground of defence which has arisen after tho conniH^nco- defcuee. inentof the action, the plaintiff nuiy delivcir a confession of such defence ; which confession may bo in the Form No. 17 in Appendix (B) hereto, with such variatit. "is as circmustaiices may reqnire ; and he may thei-eupon sii^n jmlginent for his costs u]) to the time of the pleadiniij of such defence unless the Court or a Judge shall, either before or after the delivery of such confession, otherwise order. (Comp. K. Sup. C., 1875, Order 20, H. 3 ) This is substantially the same aa the En, (»(i(J). TIkmoih im (liHi'iciu'i' in IImh i<'h|m'i'I, lu'lwtM'ii i\ plcti of ltiuilmi|i(.i'y n\ui imv odii'i- pli'ii {h'lixttr V. (iiiiiiiirr, mi/nti). A pirn )lm(. ilclVriiliint vvjvM !\M ;». i\ V. (107, «M\ v. ISI>). l""or I'ornt of t'onfcHMion sr'r App. (H) No. 17 ; ivnil of jinljj uu'i.l, for i'oh(h. Apii. (I) No, lUr». Wbon U<>00!>«.Aiy T'ona, OK'DKIt XVII. STATKMKNT OK (1I.AIM. A utattMiuMit of claim in noivMNaiy wlioro tJn* ilcfonilant. liaH not iliNpiMiscil with it at thi>tinioof ii|ip<'aran('<< (.vrc form 77 in Appcii ii>\. ami Knio loS) ; ami cvon wln-ro no appcaianco it* t'litcrcil, if tlu' oaso is imio in wliicli llio plaintitV can only olitain jiiilgiiiciit l>v motion fof jmlgnu'nt (hco Mintoii v. Mi'fitlfc, Ui L. .1 c'li. r.sn. No s(.itiMmMit) of claim is noccHsary wlicro (1) tin' ilfft lulant (iooB not. ri(piin> one; or {'2) tlu< Coin I. iliHiu'iiMCH Mith it {(Viorlloii V. Did-i- \:\ Cli. I). KiO); or l.'t) tlio (li'fcmlant. hiw not appoart'ti. anf < IviiK s 7- to 7'.M ; or (I) a (lcl'(taim->l leave to defend, and no order is made an to delivery "f 1»leadin,i;s (.Itliiis v. Tr, \V. N.. KS7(>, p. II ; Mariinli- "if )■ ,e //or/iour Co. v. /'.Vr//. W. N., 187(5, |>, f>-'). If the del'endant dispenses with the delivery of slatcnieiit. of ol;vim, the summoii" is lileil and heeomes the only pleadinjj iumth ».'\ry (Kule lo.SAK \\ hert> ii statenuMit. of elfvim is nceeHsary, if the writ has hciMi specially indorsed, llie pliiintitV may deliver notice under Uule I.V.). that his claim is that which appeam hy the indorsement upon the writ. Where such notice will not svtlicc. the }>tatement of claim will he framed in iieoordance with tl uodols uiven in Appendix 1>, No. '.\H, rl xfr a stiitement. even though tho do fondant h.-.s stated in his appearance that he does not r<'(piirooiie (Uule 1.">S I') ; suhjcet to the power of the Court (Kule MS (/), or the ta\n\ji otliccr (U"It' l-''*^ ')• with rej;ard to costs occiwioued thereby, if the delivery he unnoeessary or improper. Form of S(iUf'»ifiit of Claim.- A statement of claim will, to some extent, follow the writ as to the names of the partitiH aiid the character in which sued or suing. I'rohably, as formerly, the jdaMitilV will not be conlined to tlio particuiftrs of his oaiise of acti»>n specially indorse! (Kulo II antf ; Sowden v. Sowden, 4 Vr. Hep. ^27(5 ; Hiimiins v. Oitclph Jiarirl Co., 7 I'r. Hop. 170) The pl&iutitl' ueod uot ask rulicf ogoiiist all tLo defoudautit HTATKMKNT OK CIiAIM. lU/) nntn"il '•< '''"' wrif., hiil, nmy <"liiiin iiKiiinsh noirin only, if hn liliiiiiiloiiM |>i'iMM<(<, i;illi I'M). AiHii IM'iiit'iii^ Mm Ht'iitiMiinnt, mr Kiiiim \'J^\i, l.'IO, An t.i> the Ojiiif*<t.n hImmiIiI ho Htit. out, mr lliili< \'M 'I'lic fivi'lH in Rn|i|ii)rt of oiicli Hi'|(iirivto ,'fiiiHo of (ict.ion nlioiild l»«i Kopnnt.niy Hl.iiti'il 11.^ fur /iM ni ly Im< (Uiilo lilt). Ilmlcr tin' I'Ji^ limi i'iil<<>4 it ItiiM liKiMi Htiiil tliHt, in )^i>Moriil, n (lofcncn nlioiild not 1)0 iint.ii'i|>ivti'il iiMil iinHWrn-il {//nil v. I'Jrr. i i'\\. I). .'Ml ; Ctiirkr V. Ciiliiiir, U'l \i. .1. ().. It. |>. M). Till- ri'liff (IcMiriMl iniiHt !>(> fiuki'.d f(ir(|{iil<' l.'l.'l). 'I'll!' |iliiiM> wlii'ii' Mil' pl.'iinliir |ii<(|MiH(H to tiy the iKttioii iH to l)i< ini'iitioni'il in tli< Htntcnii'iitof I'litini ; iiml thr |iliiintiir JiaH III) iiliMoliito right to havo tlin triiil id iiiiy |iliu'i' he niiincn in liviiry Kiiwl of iK'tion, cxiMipt cjf'ctnn'nt (Itiiln 'Jfil) ; uml, nnhiHH itr('|>i'ii(ii'r,'nnM! of (lonvcnii-ncn in gri'iitly in fiivoiir of Runin < thtir pliKM', tlio plivco of ti'iiil will not ho <'liivnL;<'i| (hoc! /'Iiim v. N. p. 105 ; ||'<»»/ v. A'//y/, W. N. IH7!», |>. 'JOU). 'I'liiH, in olVt'ct. Ii.im Im-oii tiio |(i(i(tico hitherto in Chancery {N^naitv. Mwul, i\ I'r. Hop »!>). 'Plif Mi^^iwitnro of ('oiiiihoI, thoii^^h iiniioooHHiviy (I'nIo I'JH), hnit hwrn H;ii(l to ho iloHir.ihhi (l)iirl,in v. ./mnn, VV. N. ISTd, p. 17; ;»:» I-. T. 77). lu'lorHoinoiitH hIioiiIiI I)o ni.-ulo of tlio niiittoiH niontionotl in Hiilo llt'J. l''or tlio tinio for ilolivory, nrr Itiiloa I^H uml ■H'M ; nntl tho tiioih^ of (lolivory, W.iiIom I.'H ivikI I.'I'J. A oopy Hhoiihi he fihid fw well !VH Horvod ('{iilo ITiO). Rnlfl* 107, l&R lAM 1. Thn (lolivory iil' Htntdrnoiit.s of (rliiini hIihII hoTimn wiunn nwilMliMJ as (ollowH ; ^'il^'rH. "^ {(i) If (Iir <|o(nii(|juit .hIiiiII ti(»t Htiiln tliiit lio (Iocs not ro(|nico tlio ilclivcry of a Mtatoiiiciit of chiiiii, the piaiiitiir HJiall, uiiloss otluirwiHi! oninniij l»y tiio (.'oiirt or a .Jii(l;^ti, (lolivcr it. witliiii tliroc iiuiiitli.M IVoin tlio f inm of" tlio dofond lint's oiitoi'iii!^ Iiis apiiciirjiiKM!. ((Joiii|i. K. Siip. (I., IHTTi, OniorUl, l{,. 1 (d) \ Older H, H. (<(,) ant,;; Onlnr 15, R. 'J, iinti: ; l{.. S. ().,<•. 50, h. !»:{.) 'riiki'ii from tlio h'/ii^liHli Iviilo, ox(M!|)t that tho latttTiiiuiicn hIx wtHiks iiisto.'iil of thro(! inontliH. Ah to oht!iiiiini< fiirtluir tiino for dolivory, hoo //ii/i/inhiMom v. Ai/Hxin/, .'{ (Ml. I). '2H8). TIk! tliro(> inontliH aro (laloiidar itioiiIIih (I'iiIo 401); and in con. Milting thom loii)^ vacwition i.s not roi^konod (Hiilo 'KJI). Ko tho iikkIo of dolivory, scr IJiiIoh |;{I and ll'.2. (h) If tlici dot'endatitsliiiil st:it(i tliat lie- (loos not roijiiirr th(i d(i|iv(My of a statciiiiMit of (daiin, til(^ piaiiitit!" shall fill) a copy of tho simiiiions with all indorH, p. '202, per Lush, J), Where the indorsement is not suffici- ently expHcit, particulars may be ordered, and further time to ut in a defence given if necessary (see Cotton v. Hoit.sman, W. e 19( Bole 159. 1876, p. 22 ; 2 Charl. Ch. Ca, 3G) ; but the proper form of application in such case would seem to be for a further statement of claim (Schoml)erfj v. Zoehdli, W. N. 1876, p. 106 ; 1 Charl. Ch. Ca. 36). Particulars of himp sums, for which credit was given, were ordered in Oodden v. Cord''.n, 5 C. P. D. 17. For further information with regard to particulars, see Reg. Gen. Trin. Term, 1856, Nos. 21 and 22 ; and Harrison's C. L. P. Act, 628 to 630, and notes to Rule 14, ante. ORDER XVIII. DEFENCE. The defendant may waive the delivery to him of a statement when of claim (Rule 55). If none is then delivered he need not, but necessary, may, if he chooses, deliver a statement of defence (Rule 161). But a statement of defence is necessary in all cases where the plaintiff delivers a statement of claim (Rule 160) ; and also, under Rule 162, wliere leave has been given to defend, even though no statement of claim is delivered. For the time for delivering statement of defence (.see Rules 160 and 162). The facts relatiu'^ to the defence must be stated in the same Korm. manner as is provided in respect of other pleadings (Rules 128, 135 to 140). P I' facts not in the statement of claim, on which the defendant n. is to rely should be set out ( Rule 147). Where distinct grounds .< " defence are relied on, founded on separate and distinct facts, such facts should be stated separately and distinctly (Rule 134). Though a defendant is not taken to have admitted what he does not deny (.see Rule 148), he should never- theless make all proper admissions (Rule 240) ; otherwise he may have to bear the costs rendered necessary by the failure to admit (Rule 163). The character in which the plaintiff sues (Rule 140), and the legality or sufficiency of a contract in point of law, if intended to be disputed, must be expressly traversed (Rule 141). il 198 ONTARIO JUDICATURE ACT, 1881. Eoles 159-161. Pi I ■ in ItfO When f 1 1 1 ■i»r In an action for the recovery of land the defendant need only state that he is in possession (Kule 144), unless he has some equitable ground to set up. Inconsistent pleas may still be used where applicable, e. g., in an action for money, a denial of the loan, and plea that if lent it has beea repaid or release given (Barvkot v. Hann, W. N., 1876, p. 24 , 9 Charl. Ch. rj.-t .30). A defence amounting to pleas of not guilty and justification, may be properly pleaded (Jiestelly. Steioard, W. N. 1875, p. 231, 1 Charl. Ch. Ca. 87). The offering of an apology, payment into Court and a justification may be pleaded together in an action for libel (Hawkesley v. Brad- shaw, 5 Q. B. D. 302). As a general rule, the defendant may deny the plaintiff's causes of action, and plead payment into Court in respect to the whole or any part of them (Banian v. Oreenwood, 3 Ex. D. 251, in which the decision mSpurry. Hall, 2 Q. B. D. 615, was questioned). A defendant may plead "not guilty by Statute " where that defence is applicable (Rule 145) ; also grounds of defence arising after action brought (Kule 151 e< seq.) ; but pleading in abatement is abolished (Kule 142). As to the form ot a counter-claim see note to Rule 127. 1. Where a statement of claim is delivered to a defend- bfdeiivered! *^^* ^® ^^^^^^ deliver his defence within eight days from the delivery of the statement of claim, or from the time limited for appearance, whichever shall be last, unless such time is extended by the Court or a J udge. (Comp. R. Sup. C, 1875, Order 22, R. 1 ; R. S. O. c. 50, ss. 100, 101; c. 51, s. 3; G. O. Chy. Xos. 88, 89, 408, 620; Eng. C. L. P. Act of 1852, s. 63.) Same as the English Rule. The eight days will be counted from the time for appearance, where a statement of claim haa been delivered with the writ or before appearance (Rule 158 c). Long vacation is not reckoned in the eight days (Rule 461). The time may be extended by consent (Rule 459), which should be in writing (Ambroise v. Evelyn,, II Ch. D. 759). No order is then necessary ; but if consent cannot be obtained, the Courts will probably be liberal in granting further time under Rule 462, on motion in Chambers. By the practice in Chancery, as a general rule the costs of a first application for further time were costs in the cause, but those of subsequent applications were ordered to be paid by the applicant (Dan. Pr. 643, 5th Ed.) Where the time is extended a demurrer may be filed within the extended time {Hodges v. Hodges, 2 Ch. D. 112). Formerly, a defendant who obtained further time to answer was not at liberty to demur. (See note to Rule 191). 2. A defendant, who has appeared in an action and •Uim"^'*'^ "'^ stated that he does not require the delivery of a state- ment of claim and to whom a statement of claim is not delivered, may deliver, a defence at any time within eight days after his appeai'ance, unless such time is extended by the Court or a Judge. (Comp. R. Sup. C, 1875, Order 22, R. 2.) (See Order 15, R. 2 ante; Order 25 post.) Same as the English Rule. 1«l Where no m( V. QO I STATEMENT OF DEFENCE. I 99 If the defendant waives the delivery of a statement of claim, and none is delivered, no statement of defence is necessary. The matter in controversy is then taken to be identified by the indorsement on the writ, by consent of both parties (see Hooper V, Giles, W. N. 1876, p. 10, 1 Charl. Ch. Ca. 68). Bales 161-164. 16'.! 3. Where leave has been given to a defendant to de- Where leave fend mder Order 10, Rule 1, he shall deliver his defence, giveu"" if any, within such time as shall be limited by the order giving him leave to defend, or if no time is thereby limited, tlien within eight days after the order. (R. Sup. C, 1875, Order 22, R. 3.) Same as the English Rule. A defence is to be delivered within the time specified, though QO statement of claim has been delivered ; otherwise the plain- tiff may sign juilgment by default (Atkim v. Ta>ilor, W. N. 1876, p. 11 ; 1 Charl. Ch. Ca. 5.3; Margate, Ac, v. Perni, W. N. 1876, p. 52 ; 2 Charl. Qh. Ca. 19). It is suggested by Sir W. T. Charley (Jud. Act 3rd Ed., p. 523) that the present Rule applies only when a writ has been specially indorsed and the defendant has dispensed with a statement of claim, and that in other cases Rule 160 applies. 4. Where the Coui*t or a Judge shall be of opinion costs of that any allegations of fact denied or not admitted by deufair'*"'^' either or any party ought to have been admitted, the Court may make such order as shall be just with respect to any extra costs occasioned by their having been denied or not admitted. (Coinp. R. Sup. C, 1875, Order 22, R. 4; G. O. Ohy., Nos. 124, 125, 180, 234.) For the words "either or any party," the English Rule has "the dofenoo ; " otherwise the Rules are the same (see Rules 148 and 2t0). Every party is subject to costs if he fails to ad- mit allegations of fact which the Court or Judge is of opinion that he ought to have admitted. 5. Where a defendant by his defence sets np any vvh...re roim counter-claim which raises questions between himself and '■'^I*'''*"", . . ,,..„, • 1 , 1 alleets third the plaintin along with any other person or persons, he persons, shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all the persons who. if such couixter-claim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period within which he is requii-ed to deliver it to the plaintitf. (Corap. R. Sup. C, 1875, Order 22, R. 5.) Same as the English Rule. For the practice where persons not already parties to the action are made defendants to a counter-claim, see Rule 127. 200 Rules 164-168. Mil ; hi \ 4 Service of (lefeuci! on tliini ]),irty. I07 F{i'|ply liy tiiiril i)arty. •^h Rule, ospect to service of writs of summons, see I6« A|i|>('ai'aiice by Uiird p.irty. Htriking out »'<)unter- < Uini. ONTARIO JUDICATURE ACT, 1881. Where, in an action for the price of iron, the defendant set up a counter-claim for a deduction, which ho had had to allow a pur- chaser, owing to the inferiority of the quality of the iron, it Wius held unnecessary to add the purchjvser's name to the title of the action {we Anon. L. T. 27, Nov., 187G ; 1 Charl. Oh. Ca. 85, per Lush, J., who said Order 22, Rule 5 (the present Rule) does not ai>ply to such a case). 6. Whore any such j)erson as in the last preceding Rule mentioned is not a party to the action, he shall be sununoned to appear by bein<^ served with a copy of the defence, and such service shall be regulated by the same rules as are hereinbefore contained with respect to the service of a writ of summons, and every defence so served shall be indorsed in the Form No. lO in iVppendix (B) hereto, or to the like effect, (R. Sup. C, 1875, Order 22, R. 6.) Samt .T t For the i i Nos. 33 and 49 ant>:). 7. Any pOi's.Mi no. ■ defendant to the action, who is served with a doionoe and con.jter-claim as aforesaid, must appear thereto as if he had been served with a writ of summons to appear in an action. (R. Sup. C, 1875, Order 22, R. 7.) Same as the English Rule. See Rules 50, et neq., as to appearance. 8. Any person named in a defence as a party to a counter-claim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim. (R. Sup. C, 1875, Order 22, R. 8.) Same as the English Rule. The time for delivery of reply will be eight days from the delivery of the defence containing the counter-claim (see Rule 160). A third party is limited to a " reply ; " he may not counter-claim against a defendant who brought him in (Street v. Gover, 2 Q. B. D. 498). 9. Where a defendant by his statement of defence sets up a counter-claim, if the plaintiff, or any other person named in manner aforesaid as party to such counter- claim, contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an in- dependent action, he may at any time within three weeks from the delivery of such statement of defence, apply to the Court or Judge for an order that such counter-claim ma> heal justi STATEMENT OF DEFENCE — DISCONTINUANCE. 201 Bnles 168-170. lAO may be oxcludod ; and tlio Court or ii Judf»o tnay, on the hearing of such application, make such order as shall be just. (Comp. R. Sup. C, 187."), Order 22,R. D.) Instead of " witliin three weeks from the delivery of such statement of defence," the English Rule has "before reply;" otherwise the Rules are the same. An application under this Rule may, in England, be made in Court (a jc Dinr v. Sworder, 4 Oh. D. 47(5), but, as a general thing, should be made in Chambers (see Nnijlor v. Farrcr, '2G VV. R. 809). It is to be made within three weeks from the de- Uvery of the statement of defence ; t/iuprp, whether it may be made after a reply is delivered, or whether a reply is not a waiver of the right to apply. For the principles upon which the Courts act in excluding counter-claims, see notes to Rule 127, p. 170 («'." also Ndylor v. Farrar, mipra ; Pculwick v. Scott, 2 Ch, D. 730 ; Dear v. Sworder, 4 Ch. D. 470). The decision of a Judge under this Rule, if appealed from, wiU rarely be interfered with (Hu(j(jo>i>i v. Tweed, 10 Ch. D. 359). 10. Where in any action a set-ofF or counter-claim is Judgment established as a defence against the plaintifl"s claim the oTcounte'r*^ Coiu't may, if the balance is in favor of the defendant, ^'''''"• give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as ho may be entitled to upon the merits of the case. (lb. R. 10.) Same as the English Rule. "The balance in favor of the defendant ;" these words mean the balance upon the hearing of the action (Rolfe v. McLaren, 3 Ch. D. 100). Judgment upon the counter-claim may give the defendant complete relief as in an independent action, by order- ing payment of any balance fouml in his favor {Stnplen v. Young, 2 Ex. D. 324) ; or by awarding to him such other relief as he may be entitled to. In Horrocks v. R'i'jh}i, 20 W. R. 714» a defendant, who had purchiised the entirety of a leasehold, resisted a claim against him for specific performance of a contract for sale of a moiety of the leasehold ; he was also mortgagee, and in the latter capacity, as alternative relief by way of counter- claim, he called upon the plaintiff to redeem him, and it was held that he was so entitled, with his costs as of a foreclosure suit. As to costs, where a balance is found in favor of tiie defendant, and in other cases of claims and counter-claims tried together, see Staples v. YoiDi;/, supra ; JJlake v. Applei/nrd, 3 I'.x. D. 195 ; Potter V. Chamber.% 4 C. P. D. 09 and 457 ; Ghatfield v. Sedqewick, lb., 459 ; Bailies v. Bromley, Q. B. D. 197, and notes to Rule 428, post. ORDER XIX. DISCONTINUANCE. 1. The plaintiflP may, at any time before receipt of the DiBLoutinu defendant's statement of defence, or after the receipt"""* I70 I 202 ONTARIO JUDICATURE ACT, 1881. c'(jjiu Fdrmiir iiraclirrt. ! Bale 170. thereof before taking any other proceeding in the action (Have any interlocutory application), by notice in writing, [filed and served,] wholly di.scontinue his action or with- draw any part or parts of his alleged cause of complaint ; and thereupon he shall pay the defendant's costs of the action, or if the action be not wholly discontinued, the defendant's costs occasioned by the matter so withdrawn, (a) Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Substantially the aame as the English Rule, except the words in brackets, wh-ch are new. Under the former Chancery practice, the plaintiff might dis- miss his bill against the defendant at any time before decree, on praecipe. The dismissal was with costs ; but where no answer had been filed, no costs had been incurred, unless perhaps instruc- tions to answer (see Bisnet v, Strachan, 8 Pr. Kop. 211). On special application dismissal might be without costs ; but after decree the bill could only be dismissed by consent. In the Com- mon Law Courts, the plaintiff might discontinue his action at any time before judgment upon payment of costs (2 Arch. 1483 ; Har- rison's C. L. P. Act, 634). By Reg. Gen. T. T. 1856, No. 24, the consent of the defendant was rendered unnecessary, whether before or after plea, but the discontinuing rule was rerpiired to contain an unilertaking on the part of the plaintiff to pay the costs and a consent that if they were not paid within four days after taxation the defendant should be at liberty to sign judgment of non pros. Before that Rule consent was necessary in order to discontinue after plea. The Rule was a side bar llule before verdict or argument of demurrer ; in otlier cases a motion waa necessary. The discontinuance was an abandonment of a pending action, but it left the plaintiff at liberty to commence another action for tiie same cause. Discontinuance was not effectual until payment of costs (Ed(jln(jton v. Proudman, 1 Dowl. P. C. 152); and if the costs were not paid, the defend- ant's only remedy was to sign judgment of non pros. The present Rule, besides allowing the plaintiff as formerly to discontinue the whole action, authorizes the withdrawal of a part of his cause of complaint ; formerly, the discontinuance could only be of the whole action (Benton v. Polkingthorne, 16 M. & W. 8) The present Rule does not permit the plaintiff to discontinue his action after it has been entered for trial (Matthews v. Antro- bu8, 49 L. J. Ch. 80). Leave must in such case be obtained under clause (b) post. The discontinuance is only of right, either before defence put in ; or, if defence is put in, before taking any step other than an interlocutory application. The form of discontinuance will be found in Appendix B, No. 29. Under the English Rule (which does not contain the words as to the notice being filed and served), it was held that a written notice by the plaintiff's solicitors as follows : " We are instructed \-li\ DISCONTINUANCE — WITHDRAWING RECORD. 203 to proceed no further in the action," Pommerania, 4 P. D. 195). waa a sufficient notice (The. Snie 170. A discontinuance has the effect of discontinuing any counter- claim set up in the action ( Vavasspttr v. Krupp, W. N. 1880, til, which waa questioned however in lieddali v. Maitland, 44 . T. 248) ; or an appeal (Conyheare v. LeioU, l.S Ch. D. 469). Where, however, a plaintiff who had given an undertaking as to damages discontinued his action, it was lield that the Court would nevertheless direct a reference as to damages (Newcomen V. Voulmii, 7 Ch. D. 704) ; and where a case had been referred to arbitration, and the arbitrator found in favor of the defendant as to all but a small part, the leave to discontinue was refused [Stahhchmidt v. Walford, 4 Q. B. D. 217). The words, "shall pay " give the defendant an absolute right Cost* to all costs of the action, and they are not in the discretion of the Judge under Rule 428 pont (see The St. Olaf, 2 P. I). 1 13). In Bolton v. Bolton, 3 Ch. D. 276, these words were held to amount to a judgment, upon which execution might issue with- out further order (see note to Rule 172). Costs of work in preparing, briefing, or otherwise relating to affidavits, &c., properly and not prematurely done, down to the time of discontinuance, are taxable (Harrison v. Leutner, 16 Ch. D.559). An order of a Master which stayed an action on payment of costs, was varied by substituting the word "discontinued" for "stayed," to prevent the possibility of the action being again proceeded with (Anon. W. N. 1876, p. 40 ; 2 Charl. Ch. Ca. 38). If the statement of defence sets up matters arising after the issue of the writ, the truth of which the plaintiff cannot deny, and which afford a good answer in law, the plaintiff's proper course will be, not to discontinue, but to enter a confession of the defence under Rule 157. 170 b (b) Save as in this Order otherwise provided, it shall Withdrawal not be competent for the plaintiii 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 sucli terms as to costs, and as to any other action, and otherwise, as may seem fit, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. Same as in the English Rule. At Common Law, a plaintiff who had entered a cause for trial might withdraw the Record at any time before the jury were sworn ; this was often a harai't of hi.s allogod fjjrounds of (lofontu) or couutor-claiiii to ho with- drawn or .struok out, hut it sliall not ho conipiitont to ii dofondiint to witlnh-aw lii.s dofcMico, or any part thoreof. without suoh loavo. (Oonip. R. Sup. C, 1870, Order 23. R. 1 ; llojr. (I(!n. T. T., 185<;, No. 24 Ont.) Same as the Kngllah Uulo. Under this Rule ono of tho dcfciidajita in an action for the re- covery of land was allowed to withdraw his defence after the action had l)een in the pa])er for trial, hut had l)ecn postponed till another action relating to the same i)ro[)crty sliouhl he roady for trial, upon tlie terms of givin;^ to the plaintifTs all tlie relief to which they could he entitled at tho trial, and j)aying the costs oceaaioiKul by tho defence, and tho coats of summons for leave to withdraw (Heal and Personal Advance Co. v. McCarthy, 14 Ch. I). 188). 2. Whoro a cause has hocn entered for trial, it may be withdrawn by either plaintiff or defendant, upon pro- ducin<;; to th(! proper ofKcer a consent in writing, signed by the parties. (II. Sup. C, Dec, 1875, R. 9.) Same as tho Knglish Rule, which was framed to obviate the necessity of applying to the sitting Judge for leave under Rule 170 (see note to that Rule). 3. A defendant may sign judgment for the costs of an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, (R. Sup. C, June, 1876, R. 10 ; See Reg. Gen., T. T., 1850, No. 24, Ont.) Same as the English Rule, which was passed to obviate the necessity for the construction placed on Rule 170 in Bolton v. Bolton, 3 Ch. D. 27G (see note to Rule 170). In that case, a variation of the ordinary form of writ of execution was settled ; the alteration being necessary by reason of there being no judgment to produce to the officer as ret^uired by Rule 9 of the English Order 42. That Rule has not been adopted here. A form of the judgment is given in Appendix (1) No. 164. ORDER XX. REPLY AND SUBSEQUENT PLEADINGS. At Common Law, no time was limited for reply ; but the de- fendant might compel a reply by giving with his plea notice to REPLY. re ily in four ilayn, othorwiso judj^niont. In Chancery, implication WM re(|uir(til to lie lllcil, or tliu cauHu H<:t down to lie licanl on liill aii'i answer or motion for dctcrcc, within one niontii alter the liliiig of tlie last aiiswiir of all the defendants ((J. (). ir)J) ; othcr- vim the defendant might niovu to dismiss ((l. (). '2T,i). At Common Law, tliu replication wnn cither a Himple joinder of iflijuo, or .set up .special matter, according to the foi'm of tiic pro- vimis pleas. ]n Oiianeery, the (Jen. Ord. 150 and If)! made pro- virtioti for ailmis.sions in the reiilication of facts net fortli in the iiiiswer ; hut in practice, ailmissioMH were Hiddom, if ever, made in that way ; and the niplieation was nu^rely a formal joinder of m.sue which closed the pleadings, if the plaintill' wished to reply spiioial matter, that could only he done by an amec'-uent of the BilllCV V. Kc'tliiKj, (i I'r. Rep. .'{lO). In Williamson v. L. .t-.V. W. Ily. Co., 12 dh. I), at p. 7!»0; Hall, V. (J.,aaid: "When the Kulcs were prepared, the view waa taken that, after defence new matter should generally he intro- iliiuudliy way of amendment, and that i.s in my opinion the moro consistent cour.so, but it has not been in fact alway.s enforced as the rule under the (Jeneral ()nler.s." 'I'ho tendency of the Kiiglish authorities 8eem.s, liowcvcr, to be towards the (Common haw plan of alleging in a reply any new matter on whiidi the plaiiititr relies by way of confession and avoidance (8ce //nil v. fe, 4(Jli. I>. .'{41 ; 4(i L. .). <;h. 145 ; :{5 I.. T. '.)2(i ; 'Jo W. K. 177). Under the Ontario Uules of pleading the plaintiff may cither reply, or amen be delivered within three weeks after the last of the defences ('^'lo 173). As to the reply to a counter-claim, see llules 126 h and 167. As to the further reply to a counter-claim founded on matter arising after the reply, see Rule 154. 205 Balei 172, 173. «J ^ V 173 1. A plaintiff shall deliver his reply, if any, within Delivery of three weeks after the defence or the last of the defences '"'''^ shall have been delivered, unless the time shall be ex- tended by the Court or a Judge. (R. Sup. C, 1875, Order 24, K. 1). Same as the English Rule. 206 ONTAUIO JUDICATURE ACT, 1881. Bales 173-176. 174 Leavfl for «ub8tH|uaiit pluadiDKH. ITS Time for delivery. Tho last of tho defences moans the last defence of all thu defences (see Vollvtt v. I'rexlon, .'I Mac. & (J. 4.S'_' ; (!iiy. G. O. IM ; and Ainhnme v. Endyn, 11 Ch. D., at p. 7(V2). Long vacation is not reckoned in computing the time (Rule 461). As to extending the time, nee notes to lluluu IT'S, 1(>U uiui 462. 2. No pleading, subaoquent to roply, othoi" than a joinder of issue shall be ploiidod without loiivo of the Court or a Judge, and then upon such terms as thcs l.'ourt or Judge shall think fit. (U. 2, R. Sup. C. 1875, Oidti 24, R. 2.) Same as the English Rule. Pleadings cannot go beyond reply without leave, except that tho defendant may join issue if he chooses. That howcvtsr would not seem to be essential, as the pleadings aredccnieil to lie cidsetl without joinder of issue, at the expiration of tho time within which the delivery of subscijuent pleadings is necessary (Rules 175 and 176.) If the plaintiff replies specially, it may l)i; neocB sary for a defendant, cither to amend his statement of defence or to rejoin, so as to set up some new feature in tho case, in tiie nature perhaps of a confession and avoidance, or something destroying tlie effect of the reply (see Williamson v. L. it N. W. Jiy.C'o., 12 Ch. D. 71J2-3. ) In such case a defendant is only allowed to introduce by amendment without leave new matter where he basset up a counter-claim or set-off' (Rule 180); in oth(!r cases it will be necessary for him to apply for leave to amend or rejoin. In Norrix v. Beazhy, 35 L. T. 84.5, leave to rejoin was refused, the proposed rejoinder being regarded as unnecessary, and only amounting to a statement ot matters contained in the statement of defence in a more detailed way. 3. Subject to tlio last preceding Rule, every pleading subsecjuent to reply shall be delivered within four days after the delivery of tlie previous pleading, unless tho time shall be extended by the Court or a Judge. (K. Sup. C, 1875, Order 24, R. 3.) Identical with the English Rule. ORDER CLOSE OF XXI. PLEADINGS. ""• . . , , . . , . When plead- As soon as either party has joined issue upon any ing closed, pleading of the opposite party simply, without adding any further or other pleading thereto, [or as soon as the time for amending the pleadings under these Rules or under any order made in the action or for delivering a reply or subsequent pleading or demurrer, has expired,] the pleadings as between such parties shall be deemed to J:f/1 REPLY — I88UE8 — AMENDING. 2(t; Ih) doaod [without any joiiitlor of Ihsuo being pleaded hy Rnlea Any or eithor party |. («Jomp. R. Sup. C, 1875, Order 176.177. 25 ; Order 2U, U. 12 ; K. S. O., c. 50, s. 1 17.) Tho ulauaoa in bnickotH uro not in tliu English Hnlu, which ii in (ithcr roapuota thu aanic. 177 OKDER XXII. issui'X Wherein any action it appears to a Juilm) that tiie Hcuinucnt Htiitenieiit of claim or defence or re[)ly does not siilli-"' '•*""'''' ciently delint* the issues of fact in dispute between the parties, he may direct tho parties to prepare issues, and 8uoh issues shall, if the parties differ, bo settled by the Judge. (R. Sup. C, Order 2G.) Same as English Hide. Issues w('r( ilirected to bo framed under this llule for tryinj^ prehminary (luestions, under llulo 2,15, ill Watt v. Anglo- Italian liarJciiiij Co., lAmitcd, 34 L. T. 255. ORDER XXIIl. AMENDMENT OF PLEADINGS. Very extensive powers of amendment are given by this Order. On the same subject, seetion 8 of Rev. Stat, of Out. c. 49, enacted as follows : "8. At any time during the progress of any action, suit, orotlier ii. 8. <). c. proceeding at Law or in Equity, the Court or a Judge may, upon <•*• *• " • the apphcation of any of the parties, or without any such appb- cation, make all such amendments as may seem necessary for the advancement of justice, the prevention and redress of fraud, the determining of the rights and interests of the respective parties, and of the real question in controversy l)etween them, and best calculated to secure the giving of judgment according to the very right and justice of the case. " (2). Any such amendment may be made, whether the neces- sity for the same is or is not occasioned by the defect, error, act, default or neglect of the party applying to amend. "(3). All such amendments shall be made upon such terms as to payment of costs and otherwise as to the Court or Judge order- infr the same to be made seems just." (See also Rev. Stat. c. .W, 8. 270.) The tendency of the decisions under that section has been, that in the cases specified, permission to amend is not in the discretion of the Court ; but if the Court comes to the conclusion that an amendment is "necessary for the advancement of justice, the prevention and redress of fraud, the determination of the rights and interests of the respective parties, and of the real questions in controversy between them, and best calculated to secure the m^ i i!! ii V 208 Rales 177, 178. I»N ONTAUIO JUDICATURE ACT, 1881. giving of judgment according to the very right and justice of the case,' the granting or refusing of the auiendniont coasos j)racti- cally to be a matter of discretion (I'cU'rk'm v. McFarlanc, 4 App. Uep. 15 ; UiUt'kind v. Wadnworth, 1 App. llej*. 8'J). Under Rule 17s infra, the C'ourta are bound to allow all such amend- ments as may be necessary " for the purpose of detcrmininj^ the real (luesfcion or (juestions in controversy between the jiarties" (iiulo 178 and CulleUe v. Ooodc, 7 Ch. D. at p. 847). Under this Order certain amendments may bo made wUlumt f^aiw. The plaintill" may so amentl his atatemcut nce or reply ; or may order to be struck out or aiiuuuleil any matter in such statements respectively which may he scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action. All such amendments shall be made as may bii necessary for the purpose of detoriuining the real cpiestions or question in controversy between the parties, (li. Sup. C, 875, Order 27, R 1. Comp. R. S. O., c. 49, ss. 5, 8 ; c. 50, ss. 120, 270.) Same as the English Rule. On .1 |>;irty'3 (1) Amendnicnt on the application of a parly to a?nend his own own appli- pleadinj, tfo as to propvrhj frame kin case : In Tddesleii v. Harper, 10 Ch. 1). at p. .396; Bramwell, L. J., said his practice in Chambers had been to give leave to amend, unless satislied that the party applying was acting malAfide, or that by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise. Amendmeuts of this iirst kind are liberally viewed, and have been allowed after issue joined, anil the cause entered for trial, and accidentally postponed {lioe v. Davies, 2 Ch. U. 729); or at the trial {Kinij v. Corke, 1 Ch. D. 57), where on the evidence there was a prima facie probability that the plaiutifi' would be entitled to some relief other than that which he had prayed for (p. 60). In such a case perhaps the opposite party may obtain costs in- curred in respect to the old pleadings [see Dan. Prac. 351-52) ; or if a plaintiff, he may have an opportunity given him to consider isatioii. whc Kul was rais evei Na at aiue Ca. amci plaii on t intei tiie AMENDMENT OF PLEADINGS. 209 whether he will diacontinuc (aoo Edimn Telephone Co. v. India Bale 178. Hulihcr Co., \V. N. 18SI, p. 43). Lcavo to .iiri'^nd at tho hearing was f^raiitod, tiiougli tlic ])r()[)OH0(l aiiiendmcuts 8ct \\\> a case not rai.se(l i)y tho l)ill (liaddliKj v. Mardor/i, 1 ( 'h. I). 42 ; .if'<-, how- ever, the rumark as to the liead-note to tliat ease in /^' St. Nnyt'ii'c Co., \'l Cii. \). at p. !>'2). Loavu w.-is in one case refused at the iieariiifj; where no reason appeared why tlm hill was not amended wiien the answcir eaino in {Ojlonf v. Offurd, I <'harl. 0;i. (( lourt) 102). Loave was refused where tiie .Judge tiioughtthe ameiidnuint would merely enahle the defendant to raise, to the plaintiit's title to sue, a teehnieal objection which was not raised on the i»leadint;s (under liide 147), and whicli the defendant never intended to raise till he adroitly souglit to avail himself of it at tiieiieari'g [CoUctli' v. Uoodi;! V,\\. I). 842). A defendant who had put in a joint defence with another was allowed to amend hy raising defences separately from ids co-de- fendant ; and an aliidavit siiowing tlie nature of tlie iu;w defence sought to he raised or its mateiiality was not reijuired {Cnrr/ill v. lioirn; 4 i'h. 1). 78; .sec. also Loin) v. (Jro.s.s/<'>/, I'A VAi. \). 'ASS, ante, p. 154; and (Vutdrrfic.ld v. Jilark, 2") VV.'ll. 4(»!>). In the last case an aj)plication was made by the plaintifl's in January, 1877, to amend the'r statement of claim after reply delivered in May, 187(J, and hearing lixed for Fobruary, 1877. Within a few weeks of the hearing documents had been produced by the defen lant for inspection, wiuch contained particulars previously unk'iown to tlie plaintifl's, and which strengthened their case ; it wvj contended that the
    laintiff may, without any leave, amend l)is Ainen/), Cuul, Iron <0 \Vnii(f(Hi Co. v, Atitllmul WaijifonCo., 7 Ch. 1). 500). 5. Where any party lias amended liis pleadiiifj under l\ule 2 or .'i of this Oi'der, the other party uuiy [without h'ave amend his foi-UKU- pU'ading within four (hiys id'tcr tl»e (Udivery of the ph'adin<;; ho aiiMMuhNl nn(h'r Hueh IJule : or he may] apply to tlio Court or a Judii;e for leave to (a) amend his former pleadinjj; within such fuitli r tiin(> jind n|)on such terms as may seem just. (Comp. J{. Sup. ('., 1875, Order 27 K. 5 ; Order 2^, R. 3; G. O. Ohy., Ncs 153-ir)r).) The Knglish Rule has not the words in hrackots, and inaurts at ((f) tho words "plead or to." In other respects tlie llulos are tho same. G. Kither party may amend his pleadinjif at any time without order on tiling the written consent of the oi)posito party or his solicitor. Now. 7. In all cases not provided for by tho preceding llules [numbered from 2 to (5] of this ()rder, aj)plication for leave to amend any pleading may be made by eitlior party to the Court or a Judge in Chambers, or to the Judge at the trial of the action, and such amendniout may be allowed upon such terms as to costs or otherwise, as may seem just. (K. Suj). C, 1875, Order 27, 11. G.) Tho English Rule has not the words in brackets ; otherwise it is the same as this Rule. Tho I'higlish Rule seems to he intended to ])rovide the mode in which an application under Rule 178 is to be made. Tlio ol)ject of the i)i-csent Rule is probably tho same. It can have no refer- ence to Hulcs 179, ISO & 183, under which no application fur leave is necessary ; nor to 181, which sjjcaks of an a})plicati(m to disallow an amendment, and contains in itself provision as to tho nK)do of making the application. \\'here an application is made at a late stage, doubtless the pei-sou applying will have to pay the costs (see C/ie.-tcrfic/d v. Black; 25 W. R. 409 ; Canjill v. 'liower, 4 Ch. D. 78 ; King v. Corkr, 1 Ch. D. 57). The time to amend or deliver a new pleading will vary with each case. Fourteen days was allowed m Planet BiiUiUiiij Socktp v. Part, W. N. 1878, p. 204 ; a week in Chesterfield v. Black, supra; a month in IVilUanuion v . L. li(;fvti()ii sliould l»o in ( ^li.iinbcrs, as a general Rnles thing (Md^rriDt v. Marrlot, '20 VV. K. 41(5). 184-188. 8. If a party who lias obtained an onlor for loavo to "*'^ auioiid a |)l(!a(lin^ thilivonjil \\y liiiii doos not ain((iir(jan, 415-17, 4th oil., Dan. Prac. .'U«>, Tith od.) 9. A. pleadinu; may bo ainendcMl by written alterations How .iitira- in tho coj)i(^s IiKmI and sin-vcMl and by additions on pa|»er ,„aiie. to bo interleaved therewith if necessary ; unless the amendments retpiire the insertion of more than 200 words in any one f)lac(*, or are so numerous or of such a nature that tho niakin;^ them in tlio copies Hied and served would render the samc! didieult or inconvenient to read ; in eith(!r of which cases tin; amendnunit must bo made by delivering a print or fresh co|)y of the pl(:ading as amended. (Comp. R. Suj). C, 187r), Order 27, R. 8.) Substantially the same as the English Rule. In John v. Lloyd, \i. 11. 1 (Jii. (51, it was held that, thondi amemhnonts to a bill did not in any place oxoocd two fcdios, the Clerk of Records and Writs had discretion to refuse to lile tlie bill without a reprint, if tho amendments were numerous anil complicated. 10. Where any pleading is amended, such pleading M-^rkinK "f when amended shall be marked with the date of the picudingH. order, if any, xuider wliich the snme is so amended, and of the day on which snch amendment is made, in manner following, viz.: " Amended day of ." (R. Sup. C, 1875, Order 27, R. 9.) Same as the English Rule. {a) Where a pleading is amended tlie amendment shall be written in ink of a different colour from that used in the original pleading. i^j^ 11. Where a pleading is amended such amended plead- nelivery of ing shall be delivered to the opposite party witliin the i,ieadings. time allowed for amending the same. (R. Sup. C, 1875, Order 27, R. 10.) Same as the English Rule. II ! I ! L. 'i\ 3(M»). Where a ))oint whicli will determine the suit is apparent on the face of tlu; niaintifF'H atato- meiit of claim, so that it might he raised l»y (tomurrer if the action ho diainiHsed on that point, the defemlant will he entitled only to the costs as of a demurrer allowed (Alh)riivii-(}'ii<'r(i.l v. Gamplxll, !J> (ir. 'MVl); and charges of fraud have heen held not to justify a defendant in answering instead of demurring {SaundcrH v. Slull, IS <}r. 51)0). Full costs were, however, allowed where several important ((uestions of l.vw and fact were involved, and the case was not one which raised a singh; or simple question capable of l)eing disposed of by demurrer (Sim/i-ion v. Orant, 5 (Jr. '207). The later Ohancery (Jjvses in Knglaiid, prior to tho .fudicature Act, tend to show that the rjuestion of costs is in the discretion of tho Court, and the Court will generally ex- ercise its discreti(m so as not to deprive the defen |>;irl innst. Hjieeirv preeiHely tJie pfiit (leimini'd to. TliiM wiiH iilmi tlie t'oiniei' |ti)ieliee under wliieli it. \v;u lielil iiiMiillieieiit (n lile an jiiiHWer In " Hindi piul. of the liill iw the (hs- fendfMit. is fiilviHed he is liunnd lo iiiiHWei'," iin( ritiinlnr v. Srm- cnhnin, '-'Sell, ."t Lef. Ii»!» ; and M,nliii v. Kniiinh/, 'J(ir. HO.) A donniniM' can rarely !>(< to a sin>;le |iaragra|ili of a ph^ading. In Xttffiiui V. Itittchilor, W . N.. IHTti. p. I7-. where the plaintill' (lenuiri'ed t.i> one of two parai^rapliH ; the (,>iiei'n'H Iteneh l>ivi- sion overruled the dennirrer, an the tiiHt and Kceoiid parajjrapliH taken toj.;ether showed a, fi;ood defenee. In \V facts set out tends to show that lu! is entitled to some ndief, and tliat relief is asked for hy one of the prayers, tlu^ paragraph setting out that fact must stand." In the opinion of NIr. .Justice l,indley in the sjime ease if there was ;i prjiyer for general relief, and the [jleading showed the plaintill' entitled to any relief, the statement was not demunalde. 1<" the former practice in ( "hanciM-y a dennirrer for want of ccjuity was in very general ti-rms, and was not reipiired to state tho particular ground of denuirrcr. A plaintill' was therefore sometimes .it a loss to know what the point to he .■irguod on the demurrer wis. The preferable Common I/aw ])ra(!tiee has here boon adoi>ted. and some ground in 1 iw for the dennirrer nnist he stated, though the [>arty demurring may still, as formerly, de- nnir, ore tiuiiis, on other grounds not so stated (.ii'c the present l\ulo. and Ihnrkiiis v. Lord /*( nr/n/ii, 4 App. (^a. , at p. tiH). A demurrer to "such p.art of tho aniendod statement of claim as claimed damages alleged to have been sustained by reason of tho alleged wrongful acts of the ilefcndants in opening the accounts therein in that behalf referred to " w;is held good in form, and to a substantial part of the churn {Powrll v. Jviocnlmrij, i) Ch. D. -M). A note in the margin, under tho former Common Tj.t,w practice, stating that "tho matters disclosed in the picas ocmtained no answer to tho declaration "' was held too general {liostt v. Robesson, 1^ Dowl, 779). A denmrrer .alleged that "the statement of claim was bad in law ; " and, after other statements concluded with these words, "and on other grounds sutHcient in law to sustain this denmrrer ; " it was held that the last words were sutHcient to raise tho defence of the Statute of Limitations (Dawkins v. Lord Penrhiin, 4 App. Ca. 51). If no ground or a frivolous ground was stated, a demurrer might under the Common Law Practice have been struck out in Chambers (see Arch. Prac., p. 926, Pith Ed). However frivolous, it couhl not be treated as a nullity, even though no ground was stated {Lyons v. Cohen, 3 Dowl. 243). DKMUIlllKll. 217 Rnlei 190-198. ■ttl Fn an mitioti f<»r Id'nmili <»f ivti iik'""'"""'' ^'" p'l.Y •1"|>'iHit' in'Umy, till) Htiiti'iMi'iit of claim, iiml.cail nl' iimUIujl; fur ilfiiiiii^rH, iiskcil tor till' ili'|iimil, iMiiiK-y iiM a ili'lit. Archiiiiilil, .!., iit> ( 'liiunlici'H wiMiM iiofc hIi'iIu! out tlio ili'iiiiirri'i- iih i'livnldiiH, Imt ^avi- tlin liliiintiiriiNivc! toamoiid ( IKt/l'w V. I'nrhr, VV. N. IS7(i, p. 74). .'}. A (Ifimiincr hIimII li(M|«'livci, Oidor 'JO, II. .1) Saiiio tw tlio I'lngliHli Uiilo, Ah til the iiiaiiixM- itF (liilivoriii^ itloadiii^H, hiu) lliilim I'll and I.TJ. I''.ir till!.- (tlMiliviry, Hci! liiilfH ICO, l()|, l(i„', IC,?, I7.'». A ilcl'i'iiiliuit who liiiH iilttaiiicil an onlrr cxti'iiilin^ tli*' time within which tn ili'livcr his ilclrin'r, may ilcmnr within hiicIi <'xti'nili;il time (//(«/'/'. t V, llnilijiA, 'J (.'li. I), II 'J ; H(!i' I'liltJi'll V. .Inn Hliiiril, \)Va\. I). III). 'I'liiH waH I'liriniiily not allowed ; and a jtf'r, Sllu. liiO). 4, A (Intniidaiit df\siiin;^ to drni'ir 1^) pint of a Htato- l>fmiimi . n 1 . I , , . I ,. ill il 1 "'I'l lIl'I'flM I- iiionb 01 cliiiiii, and to put lu a dcioiK;); to IIk; other purb, t,„ hiMom shall (:onil)in(i Hii(;h d<'iiiiin(;i' and dcfciKM! in oik? pload- '''""J' iiig. And HO in nvciiy caso vvhnro a party (iiitillod to put ill 11 fiirth(!i' |)l(!iidiii;^ (hisirn.s to de phsaded by way of confession and avoidance are ros[)octiv(;ly true in siil>- stanco and in fact ; and that ho is further adviscfd and believes that the objections raised by such demurrer are good and valid objections in law. The aliidavit is to be annexed to and filed with the plea and demurrer, and a copy of the affidavit is to be .served with the plea and (lemurrer. {See R. S. O., c. 50, s. 118.) Pleading and demurring to the same pleading at the same time has not hitherto been allowed without leave. (See Kev. •Stat., c. 50, 8. 118, and notes to next Rule.) P"' t-5 218 ONTARIO JUDICATURE ACT, 1881. Niiiiiu iimttoi Ralea 6. If the party domurring desires to be at liberty to 194, 19S. phnul iis well as to {lemur to the matter ilenuuTcul to itti without tiling such aftidavit, he may, before demurring, l.iMvi' toiie- ap])ly to the Court or a .Jud<'e for an order iriviiiir liini phiKi 1(1 tlip leave to ho plead and d(4uui', Huch application boing sii|)- " "• ])ort(Ml by such aftidavit as now rccpiircMl in t\m SupcM'ior Courts of [jaw ; and tins Court or Judge, if satisfied tluit there is reasonable ground for the d«nnurrer, may nmkt^ an ord(ir aceoi-dingly, or may resei've leave to him to plead after the dennirrer is overruled [and may direct which issue shall be first disposed of J or may iiiiikv^; such other order and upon such terms as may be just. {See U. Sup. C, 1875, Order 28, H. 5 ; R. S. O., c. 50. s. 118 ; lleg. Gen. of May 21, 1877, 41 Q. B., U. C. 5G5.) The Rule contaiiia Hul)atiiutially the former Knglisli practice. The MngliHh Rule referred t(» does not contain the words in braokets ; it is otherwise in effect the same. Tlio practice of tlie .Superior ('ourts of Law referred to is con- tained in Reg. (Jen. 2ist May, 1877, which is as follows : "Tiiat leave sliall not ho given to deniur and traverse the same pleading, uuleas on atlidavit (distinctly denying some one or more material statement or statements in such), and tiiat unless in exceptional cases in the disereticui of the Court or .Judge, allidavits merely as to the belief of the existence of just grounds of traverse shall not bo aufHoient " (xee 41 U. (J., Q. B. Rev. Stat, cap 50, aiic. 118, also recpiiros the atlidavit to state that tiio party is advised aud believes that the objections raised by tlie proposed demurrer are good aud valid objections in law. Leave was given by Lindley, J. to plead and demur where the ground of demurrer was that the statement of claim disclosed no cause of action (\V. N., 1870, p. ;^7, 2 Charl. Ch. Ca. 46). After a demurrer had been overruled, the bill was amended and tiie defendant answered, not stating in his answer the ob- jection which had been raised on the demurrer. It Wivs held that tiie defendant might at the hearing renew the objection without pleadiug (Johnasson v. Bonhote, 2 Oh. D. 2!)8). 7. Where a demurrer either to the whole or ])art of a pleading is deliviered, either party may enter the de- murrer for argument immediately, and the party so entering such demurrer shall on the same day give notice thereof to the other party. (rt) If the demurrer shall not be entered and notice thereof given within ten days after delivery, and if the party wliose pleading is demurred to does not within such time serve an order for leave to amend, the de- murrer shall be held sufficient, for the same purposes, and with the same result as to costs, as if it had been 'Kutry for argumeut. Effeot of not euttii'iug. allov G;(| DEMURRER. 219 allowed on Jirgumont. (R. Sup. C). 1875, Order iJ8, R. 6; O. O. Chy., Nob. 121, 146, 418.) ThiH JH the flnirK; an thu Kii),;liHh Rulo, and the first claunu is BubHUiitially tlio Haiiiu an (^rdur7l uf tlic IJ. (3. (Jhauuisry Geiit-'ral OnlorH \HM. Utulor that Order it waH hidd reaHoiialde tliat the plaiiitil!' Hliould itavo an opportunity of Huhniitting to a (leinuri'tjr, and tliat a party wiio HutH down Iuh doniurrur on the saiuu dity au hu liluH it, niiiHt ho uon^idurud an waiving hiw right to taxt^l oontH on a Hid)niiHHion to thu doniurrcr within rtiaHon- ablu tiniu, whioii was oonHidorud to lie thu next four dayH l)oth incluHivu (litilihoin v. liurd, 1 (!hy. CJhaui. 8*2). Within Huch roaH(iiial)lu time the plaintiil' inight amend on the paynusnt of !$4 as costs [liahlwin v. liurM, HiqmtixwA Martin v. Until, (i lj. .1. 14,'i). A demurrer will unchjc .ulauae {o,) of the preHont Rule he allowed if the party whose pleading ia demurred to does not amend or set down the dennirrer for argument within ten days. The course of the demurring party will in general therefore bo to wait till the uxpiratiim of the ton days. For form of entry of demurrer for argument, see Appendix (E) No. 86 ; and of notioo of entry, Appendix (II) No. 28. As to service of an order for leave to amend, nee Rules 171), 180 & 185. 8. While a demurrer to the whole or any part of a pleadiii;^ is jKUuling, such j)loading shall not bo amended unless by order of the Court or a Judge ; and no such order shall be made except on payment of the costs of the deuuirrer. (Comp. R. Sup. C. 1875, Order 28, R. 7; Reg. Gen. T. T. 1856, Nos. 14, 15, Ont.) Same as the English Rule. Heretofore iit (Jommon Law, an amendment was allowed as of course on payment of costs, and aometimcs even without costs (see TomlinHon v. Ballard, 4 Q. B. 642 ; 2 Arch. 927, 12th Ed.). 9. Where a demurrer to the whole or part of any pleading is allowed upon argument, the party whose pleading is demurred to shall, unless the Court otlierwise order, pay to the demurring |)arty the costs of the de- murrer. (R. Sup. C, 1875, Order 28, R. 8.) Same as the English Rule, and as the P^nglish Chancery Order 14, Rule 13 ; Dan. Prac. 5th ed. 515 (nee Morgan, 4th ed. p. 448). The words "unless the Court otherwise order," imply that, in some cases, the Court ought to otherwise order ( Duckett v. iloovr, 46 L. J., (;h. 407, 25 W. R. 455). In that case, as fraud was charged, Jessel, M. R., considered that, if the fraud was {iroved, it miglit not be just to order the plaintifi" to pay the costs of the demurrer, and the costs were therefore reserved to the hearing. la Bnlliwellv. Coume.ll, 38 L. T. 176, a demurrer was allowed, and leave to amend given without costs. Whore a party fails to appear, judgment may be given for the party appearing, without argument ( Turner v. Samson, W. N. 1876, p. 163). Rnlet 195.187. I0« No aincnd- inuut pond- ing do- iiiurrer. mm\ 197 Costa of siio- (^cssful demurrer. f I ■lull m m ii 220 Rules 198-201. I<»M Costs ol" artidii v i>l<'iir (huiiurrucl to. (it. 8aj). C, 1875, ()nlor28, R. 12.) Aftor (luiiiurror ovorruled, if this (lofoiid.int (Ii-'hIich furtlior to (li'fi'riil, lio must iiHk luavo to iviiswur. Lc^avo will bu given aliiKwt iVH of cmrHo (liidl v. Wilkinsnn, "JO W. II. '27'), VV. N. 1878, II. ;{) ; unless till! case is om(! which cannot ho ln'tti^i'cd hy any auiL'ndnicnt, in which case loavi; will ho rifnscd (Ddirkliix v. Lord J'nir/i!/ii, 4 App. ( 'a. (i'J ; Ti/I). Wliori^ dcinurror is ovcnultid, the samo objection may In; raised at the hearing without being pleaded (Juknasnun v. lionhote, 2 Ch. 1). 'J!»8). 11. A (loiiiurror shall bo entorod for ari^iiinciit hy do- livorin;,' to the propiir olHc(n* a lucnionindiiiii of entry in the Form No. HO in Appendix (E). (11. Sup. C, 1875, Order 28, K. 1:5). Same as the Knglish Rule. Rales 201-203. Foriii of rhtry for urguiueut. ORDP]R XXV. T)1']FAULT 0¥ PLEADING. ilO.'l 1. [f the plaintiff, heing bound to delivei' a statomont nismissai of of claim, do(;s not deliver the same within the time"Vt!'"'."" II 1 p 1 1 1 /> 1 plaintillH allowed for that pixrpose, the defendant may, at the ex- iiciauit in piialion of such time, apply to the Court or a JudjUfe to j|!","' '""^ (li.sim.ss the action with costs, for wjint of prosecution ; and on the hearing of such api)lication the Court or Judge may, if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order, on such terms, as to the Court or Judge shall soem just. (R. Sup. C, 1875, Order 29, R. 1.) Same as English Rule. OnWr l.'iS regiilates the time within which the defendant is iiound to deliver his statement of claim, viz., three months after »'>nearance. The time hy the English Rule is six weeks. The Ride authorizes "the application to he made to the Court or a Judge." The practice in (Jhancery in this Province has been to make such aiiplicatious in Chambers (sec the cases in Robin- son & Joseph's Digest, 2922, et neq). In England, it ajjpears to be a m.atter for the option of parties, whether they will move in Chambers or i (Jourt ; and, if the motion is made in Court, it is a question to i >e decided by the Court in each particular case, whether the motion was under the circumstances proper to be made in Court {Evelyn v. Evelyn, 13 Ch. D. 138). But moving in Court instead of Chambers is disapproved of {Chesterfield v. Black, 13 Ch. 1)., 138 note; Freason v. Loe, 26 W. R. 138). If unnecessa y made in Court in this Province, the defendant will probably ue charged with the extra costs thereby occasioned. f- 1 222 203, 204. 40I JlUlHllUMlt oil lloflMUi aiit's default ONTARIO JUDICATURE ACT, 1881. Whom t))o pliiiiitiir nm. iJSS, onil ii|k.ii its (iwn luorits. Tho idaiiitilV waH onh^rtMl to [)ny tho coHtH of tho motion. NVhoro Olio of mivoral adinxH not yet huing * (iIohimI ;' and it wan Maid, that a dofi'n(hvnt'H propor eoiirHi) in to wiito to tho jdaintitl'H solicitor, and eiuinirc liow tlus action Htands as risgards tho otliur dofi'iidants (, I m/ini/V V. Kirh/n, 1, (h. D. IM). Wiu'it^ an onU'i- had lieon made diHinissing an action, nniiHs n Htatement of claim slio-ild lie delivered witliin a wn'U, and tlilB was not done, it was held that tlit^ aittion was at an end ; and an order <'oiild not afteiwaro inailo extending the time for delivering the statement (\\'/iinll dismiss tlu- action for want of prosecution, liindley, .1., saitl, " I shall certainly not lot the action go on simply to di'tormino who is to pay tho costs. All further proceedings in the action to he staytul, tho })hiintill"n»ay, at tho o.\i)iration of sucli time, ontor iiual jiidginont for the amount chiimod, with costs. (R. Sup. C., 1875, Order 29, R. 2 ; K. S. O., c. 50, s. 150). Identical with tho En^;lish Kulo, jiud in accordance with the C. L. V. Act, U. S. ()., c. oO, s. m). A defendant nniat "deliver his defence within eight days from the delivery of tlio statomont of claim, or from the time limited for appe^iraneo, whichever shall ho last, unless such timo is ex- tendetl by tho Court or a Judge " (Rule lOt)). It is hold 'n Kngl.and that if in an action on a replevin bond, the ])'.aintiit', instead of claiming damjvgos, claims the amount for which the bond is given, ami becomes entitled to judgment by default, his proper course is to enter linal judgment under this rule, luid not interlocutory judgment under Kule 200 (Die v. Groom, 5 Ex. D. 91). But this will probably not be so iu this I'rovl aniDij that I (lofaii of livl not ll nuMitl of till Kigna| In horH, I whord of cl4 \VilH(J p. •2•2^ 3. ifiilo tlieii Uul(', (k'fen sudi with JUDOMKNT BY DUfAULT OP PLIJADINC;. 223 tlO.1 PrnviruiO, ah ho in not iiiititlnd iii hiicIi ^•.nH^^ to oliiiin tlio wliolo Rulei iHiiiiuiitiif tho lioiiil ; it Iti'iiiK providoil hy 1{. S. (>., c. fi.'J, h. '2H, 204-206. that " III oiiHi' tln! pliiiiitiir Immjomuih ontiU !iI to HJ^n jiulK"i<;iit by (lufiuilt, III! hIiiiII Im! jit lilx^rty to hI^ii linal Juil^'iiittiil lor llit^ hiuii of livt; (liilliii'H, ami (^ohLh acronliri^ to llio |*r'i>|)(!r Hcali;, but hIkiII not Ih) oiititlcil to rccDV)!!- a large;!- hiiiii, dxchmiI n|ii)ii nii iimhchh- mnit Iniioro a IikI^'c ir •liiry, or upoii iiling tm; written connvnt of till! (l(!t'/«/- V. f//7''.w (W. N., IH7t», 10), l.imlley .1., in Cliain- hcni, belli that a ileft^mlanl is not boiiml to ihliver atiy ilefencc; whori! hi; hau given notiei; that he does not reijiiire a Htatcinent of i;laiin, ami no Htateineiit of elaini Iimh been ilelive.red. (SW WilHiHi .lud. Aut, '-iml Kd., [>. 'J08 ; IJaxter'n ,liid. Act, Ith Kd., p. 227.) 3. Wliorn in liny Hiidi action US in tlio last |»rf!(;(!(lin<^ Wl.i |{iile inoiitii)ii(Ml tlirrn urn Hi;vrri'(;<;(;(linj^ Jiuio, tlio plaintiir may cnU'v linal jinlt^nimit aj^ainst th(j (jefi'uilant so niakini,' ilcfaiilt, anil issiio (;xe(;iitioii npon sncli jiiil,ii;iii(Mit without |inijiiilii:i! to his rij^'lit to proiMjril with !iiH a(!tion aijaiiist thi! other (lofiinilaiits. (It. 8iH). C, 1875, (hdnr 2!), II. 3). This Ki'Ii! Ih the Haine as the ICnglish Hule, ami is new in ])or- mitting linal judgnHiiit to be enteri'd, and execution iHHued, ■igaiuHt one defendant, while the aetion proceeds agaiiiHt oth(;r ilt'funilantn. Sfc liult; 7.'{ for tlie eourHe to be puiHued where oiiu of aeveral iiefendantH niakoH default in appearing. BoeJenkiiM V. IMihch, I (!h. 1). (i'Mi. 4. If till! i)lainti(l"s iilaiiii b(i for tli(! (li^tcintion of jjoofls Intorloni- inciit im (Ic- iinil pciciniiary daiiiai^rs, or eitlior of tli(!iii, and tlu (lot'eiidaiit makes default as mentioiKMl in Rulo 2, tlio •;""'*''"''"'"» ,..,,, . , . , , • 1 lor 'liitnagfH. phuutili may (int(!ran mterlociiitory jud^nuMit ai^ainst tin; defendant, and tlu! value of tlu; floods, and tlie dania<^es, or the damages oidy, as the iiase may be, shall be assessed as hitherto. Hut the (Jourt or a .Jiiilg(! may ordei- that tho value and amount of damages, or either t)f them, shall bo ascertained in any other way in which any (piestion arising in ,in action may be tried. ((Jom[». K. Sup. (J. 187r). Order 29, R. 4.) / This Eulo is substantially tho same as tho English Ivido, excujit that the lattur ])roviiles in the first part of the Rule for a writ of ini[uiry issuing to assess the value of the goods, instead of ;)roviding "that tho same shall be assessed as hitherto." In fnori/ V. Cniih';i's (I liiiii'il. ONTARIO JUDICATURE ACT, 1881. 5. Whoro in any siu^h iiction as iti Kulo 4 moiitioiicd there am sevora! dct'tMulants, if oiu. of tlicin luak h dcfuult as nit>ii(i(»iitMl 111 Htild 'J, tho plaiiitill' may (^ntcr i . intor locutory JuilgiiuMit ajj;aiiiKt ilio ilcfcMidaiit so nmkin'f (l«>fiuil(., aiis ii:,'iiinst tlie deft'inlaut iiiakiii" default shall be assessed at tin? .same tina; with the trial ( f the action or i8.suoH thenMU against the other defend- ants, uidess the (1«)urt. or a Judge sha'l otherwise direct. (11. Sup. C, 1875, Order 21), \i. 5.) This Kulo \H tlio sjuno jis tho KiigliHli I{uli>, and is in .accord- ftuoo with tho former [irivctioo in tlic ('oninion \mw Coiuts. ('». If the plaintilf's eliim 1)0 for a, debt or liipiidated (hMuaud, iuul also for detention of goods and lu'cuniiuy danuiges, or pecuniary dan»!ig(>s only, and the defendant makes default, as mentioned in Ivide 2, the itlaintilf may outer tinal Jtnlgment for tho debt or licjuidated deniiuul, and also (>nter interlocutoi-y judgment for the value of the goods and the dauniges, or the (himagos oidy, as the case may be, and proceed as mentioaod iu Kulo 4. (K. Sup. 0." 187r), Order 21), R. G.) Sanioas tho Hnglisli l?ulo. See notes to Uulo •_'(>4. Uof.uiit iiy 7. In an action for the recovery of hmd, if the (h>fend- 'uVion for Jiiit makes (h^'ault as nu'utioned in Rule 2, the plaintiff i.m.i. may outer a judgment that the {)er.sou whose title is as- sertiMl iu the writ of summons shall recover posssessiou of the huul, with Jiis costs. (11. Sup. C, 1875, Order 21), R. 7.) Idontic.al with the English Rule. taio Whore cVmiw 8. Wlicro the plaintiff has indorsed a chiim for mesne •}"■'■'"'* '""hn'olits, arroai's of rent, or dauiagos for breach of con- tract, upon a writ for the recovery of hind, if the de- fendant makes default as mentioned iu Rule 2, or if there be more than one defendant, and some or one of the defendants make such default, the plaintilf may enter judgment against the defaulting defeuclaut or defendants, autl proceed as mentioned iu Rules 4 aud 5. (R. Sup. C, 1875, Ord. 29, R. 8.) Same as English Rule. 'Jll Other 9. In all other actions than those iu the preceding tctiong. Rviles of this Order mentioned, if the defendant makes default in delivering a defence or demurrer, the plaintiff JUDOMKNT IIY DICrAUI.T OF PLKADINO. 220 ntionod tlcranlt ■ inter nmking otluTs. inuking liii triiil tlcrciid- D direct. n nccord- its. luidatod I'cuuiiiry ftondant itilV may (Uniiaiid, value of y, U8 the I 4. (K. dofond- jdaintiir tlo is as- IsssoHsioii 5, Order lir mesne of con- tlie de- 2, or if ir one of liy enter Budants, Blip. C, [eceding makes Ijlaintiff may >iet down tli(5 action on motion for jn(l;i,'Mi(M)t, ami Rnlo» .sticli jud^^MK'nt .sliall l)o ffiviMi as upon \\v' staLcmcMt of 211-214. claim tiio (yonrt hIimII (ionsidnr tiio pliiintiU'to bo (Mititlod to. (II. Snp. ()., IH7f), It. 10; (;. ( ). ( !liy. No. 1^70.) Tlii.s Riili; is idcntiiN'il with i\n'. I')ii;j;lisli liulo. 'I'lic iiiutinn for judgiiiciil. is |iii>viii(iil t', p. I()!>. 10. Where, in iiiiy kiicIi action Ji.s meiilioned in tli(! ^\''"'' last pi'eeediiiif Uulo, thero arc* sev(Miil (lerrii(lants, tlion, ci,,! if one of sneli defcndantH make! .such dcrault, a.s afon\sai(i Jti (irV.T.'ll <|r l.lllls.Hllil ll.'lkl'K • ... • 1 I I . ' 'I'l'll'lt. the planitill may cither H(jt down tiio atrtion at once on iniition for jtidi^'nicnt at,'ainst the deienilant so m.ikiiii; default, or may set it down a^Minst liim at tho timo wiieii it is entered for ti'iai or set down on niotion for jii(li,'iueiit MLjainst ihc otlior did'ondants. (^11. 8ujj. (J., 187."), Oi'der L>1), II. 11.) This is identical witii tlu! I'lnylish Itnle. Sua lie Smith, /iri,lsaii V. Smith, \V. .\. I87<). p. lO.S. 11. In any (Mso in wliieli issnes arise (a) other tlian i" '"^scir lietwe(Mi plaintiir and d(d'on(hint, if any j)arty to any trti.,'M par such issue makes d(dault in (leliviM'inif any |»le,i(liii'', tlic '''"^ "''";',.„ , 1/(1 I ,• nmniil iltifitr oiipoHilc pai'ty may apply to the (.onrt or a J nd;L,'o ieen so examined as aforesaid on behalf of such body corporate, such body corporate shall be deemed to be fully represented by such officer. ("Persons who have ceased to be officers of a corporation may be examined under the ISCth section of the Common Law Procedure Act, in the same manner as officers." [42 Vic. c. 15, 8.7.]) The Chancerj'^ Orders make no provision for the case of a cor- poration. "157. Where the attorneys of the plaintiff and defendant reside in the same county, an order for oral examination under the preceding section in any action pending in eitlier of the Superior Courts of Law may be made by the Judge of the County Court of the said county but this section shall not apply to the county of York." The Chancery Orders do not contain any corresponding provision. For the authority of the Couniy Court Judge under the Judicature Act, see Kules 422, 423, post. "158. The order for the examination of a party adverse in c. 50, s. 158. point of interest, or of the officer of a corporation, referred to in section 156 of this Act, shall be granted as of course upon the production, by the party purposing to examine, of an affidavit of such party, or of his attorney or agent, stating that the depon- ent believes that the party purposing to examine, whether plain- tiff or defendant, will derive material benefit in the action or other proceeding from such examination, that there is good cause of action, or of defence, iipon the merits, and, if the ap- plication is made on the part of the defendant, that the ex- amination is not sought for the purpose of delay. " This order it not required by the Chancery practice. " 159. The examination may be had before a Deputy ('lerk of the Crown, or Special Examiner or local Master in Chancery, without an order, but in sucli case the Deputy Clerk or Special Examiner or local Master, upon the affidavit hereinbefore re- quired being filed with him, may issue an appointment for the examination of the party, and he shall return or keep (as the case may require) the said affidavit with the depositions taken under the said appointment ; and the party purposing to examine may serve the party to be examined with a subpoena and a copy the appointment. 60. The party so examining as aforesaid, shall cause a copy e order and appointment (or of the appointment where no er is required) ^J ^jprved upon the person so to be examined, tmd upon his ati|MfilH|||V'e^^ias appeared by attorney, at least f orty-eig^HHp^^^BM^^^^ppointed for the examina- tion, and shal^flBp^ipi^^^^^^^B be examined the proper charges for conduct mOney^^^^^^^ Uev. Stat. Kev. Stat. c. 50, 8. 159, DISCOVERY AND INSPECTION. 231 Rev. Stat, c. 50, s. liiS. "161. Any party or person to be examined orally under the T.ule219. proviaions of this Act shall be so exaniiuud before the Judge or other person specially named in the order for examination, or, ^'^j- ^'''|,,j where no order is required, before the Deputy Clerk of the Crown ' ' ' or Special Examiner or local Master in Chancery ; and shall, if 80 required by notice, produce on the examination all books, papers, and documents which he would be bound to produce at the trial under a .luh/imna daci's teciuti; and the party or person BO examined orally shall be subject to cross-examination and re- examination ; and such examination, cross-examination and re- examination shall be conducted as nearly as may be in the mode now in use in Courts of Common Law on a trial at Nisi I'rius, or in Chancery at the hearinj,' of a cause. " 162. Any party or person refusing or neglecting to attend at Rev. Stat, the time and place appointed for his examination, or refiising to °- ^^' *■ '"^'' be sworn or to answer any lawful ([uestion put to him by the examiner or uj any party entitled so to do, or his counsel, attor- ney or agent, shall be deemed guilty of ;i contempt of Court and proceedings may be forthwith had by attachment." The Chan- cery Orders provide, in case of .such refusal or neglect, that the bill may be taken as confessed, or may be dismissed, according as the default is that of the defendant or the plaintiff. (See Chy. Ord. No. 144, post). " 163. If the party or person under examination demurs or objects to any question or questions put to him, the question or questions so put, and the demurrer or ol>jection of the witness thereto, shall be taken down by the examiner and transmitted by liim to the office of the Court, to be there tiled ; and the vahdity of such demurrer or objection shall be decided by the Court or a Judge ; and the co.sts of and occasioned by such de- murrer or objection shall be in the discretion of the (Jourt oi Judge." (See Chy. Ord. No. 148, potit). " 164. The depositions taken upon any such oral examination as aforesaid shall be taken down in writing V)y the examiner, not ordinarily by question and answer, but in the form of a uarratr'e expressed in the first person ; and when completed shall be read over to the party examined, and shall be signed by him in the presence of the parties, or of such of them as may think tit to attend. " (2). In case the party or person examined refuses or is unable to sign the said depositions, then the examiner shall sign the same ; and the examiner may upon every examination state any special matter to the Court if he thinks tit. " (3). It shall be in the discretion of the examiner to ]iut down any particular question or answer, if there appears to be any special reason for so d<>iug, ami any (lutstion or (questions ob- jected to shall, at the request of either party, be noticed or referred to l)y the examiner 'n or upon the depositions ; and he shall state his opinion thtreoii to the counsel, attorneys, agents, or parties, and if ivquested by either party, lie shall on the face of the deposition.s refer to suoh statement." 1'he practice in Chancery is substantially the same. " IG-l. Wherever, by virtue of this Act, an examination of any party or parties, witness or witnesses, has been taken before a Judge of either of the Superior Courts or of any County Court, or before any officer or other person appointed to take the same, the depositions taken down by the examiner shall be returned to RfV. Stat. c. 50, s 11)4 Rev. StiU. c. SO, s. 105. L'32 ONTARIO JUDICATURE ACT, 1881. Rale 219. and k(!|it in tlio ofiici! ( 'Icrk's ollicc, 41 Vic. c. 8, H. 8. of tlio Court (Principal or Deputy ^'Icrk'a or ( icrkH ollicc, .-iH tliii o.i.su nuiy l)o) in wliicli tlic piix, MlJngH arc carried on ; and ollicc copies of hucIi dcpowitions may liu ^ivcn out, and tlic cxaininationH and dcpoHitioiiH ccrtilicd under tile iiaiid of the .ludj^'o or otiici' oiliccr or perHon taking' IlicHiime, or a copy therc(»f ('I'rtilicd under tln^ hand of the (MiM'kor l)c|)iitv Clerk of the Crown, or ('kirk of tlie County (Jourt, as the ca.sf may l)e, sli.iU witiioul proof of the Hi^nature, ]n: received ainl read in evidence, Having all juHt exceptions." The practico in Chancery in the Hanic. lU'v. Stat. " 1(K). lOvcry .rudf,'e, oflicor, or other perflon taking; oxaniina- ' • ^^' *• ^^^- tions under tliis Act, m.ay, ainl if need he hIuiII, make a Hpcciai report to the (!ourt in wldcii sucli proc(;cdingH arc [ti'ndiiig, t(uiching such «!X!iniination, and tlic con(hu't or alincnce of .any witness or other person tlicrcon or rclatinj,' thcnto ; and the Court shall institute sucii proceedings and make such order updn such report as justice may r((|uirc, iind as may l)o instituted iuid made in any case of coutcniiit of tlic Court." (.SVc Chy. Onl. 144, KW; (/, and KiO h.) The sul)sc(iuent Act, 41 Vic. c. S, s. 8, introduced further provisions here as follows : '8. 'I'lie I'evised Statute respecting the jtroccdure of tlic Su- perior Courts of t'ommon Law and of the (bounty Courts, chapter fifty, is lierel)y amended hy inserting after section one hundred and sixty-six, the following : " l(5(5ff. Notwithstanding anything in tliis Act contained, wliere an examination in a cause or proceeding in any ( 'oiirt is taken by the examiner, or any otlier duly authorized person, in shorthand, t\w examination may he taken by cpu'stion and answer ; and in sucli cases it shall not bi; necessary for tiie depositions to be read over to or signed by the person examined, uidcss the Juiigc so ilirccts, where tlie examination is taken Ijcfore a Judge, or in other cases, unless any of tiie parties so desires. " l(')G/>. A copy of the (vjpositions so taken certilied by the person taking the same as correct, shall for all purposes have the same efifcet as the original depositions iu ordinary cases." The Chancery Orders are the following : ,.;, o,.,j J38 " I'iS. Any party to a suit may be examined l)y the party adverse iu point of interest [without any special order for that pmjiose] ; and may be compellcvl to attend and testify in the same manner, iipon the same terms, ami subject to the same rules of examination, as any witness, excejit as hereinafter provided." An order is necessary under the Statute. (Jh. Oril. 139 "139. A person for whose immediate beneiit asuit is prosecuted or defended, is to be regarded as a party for the purpose of Order 138." This was not provided for by the Statute. til. Ord. 140 " 140. A plaintiff may be so examined at any time after .an- swer, and before and at the hearing of the cause ; .and a defend.aiit may be ex.amined at any time after .answer, or after the time for answering has expired. " By the Stiitute the examination was to be after issue joined. Ch. Ord. 141 " l'*^- ^ P^rty so examined may be further examined, on his own behalf, in relation to .any matter respecting which he has been examined in chief." So also by s. 15G of the Statute. DISOOVERV AND INSPJXJTION. 233 " 142. Where one of several iilaiiitilTs or "lofuiulants, who are Rules joint, contrivi'tDrH, or uniU'il in intiTcat, tias licoii oxainiiied, any 219 220 otli'T i>laintiir () of the Statute. " 14.1. Such explanaio'-y (examination must Kc iirocccdi'd with cii. Orr(> ronfc.i.io, or tliat it he (]i.s- niissed, as the case may he ; or make such order a.s .seems just." The Statute has no cc^rrespondin;^' ])rovisions. "14(5. Where the examinin<^ P'vrty uses any i)ortion of theCli.Onl. HC examination so taken, it shall he competent for the party aj;ain,st wliom it is used to put in the entire evidence so taken, as well that given in chief as that in explanation." This accord.s with tiie ])ractice under the Statute. (.SVr sec. 101, nti/>r(i). " 147. A ))arty to the record who Jidmits, upon his examina- Ch. Orel. 147 ti(m, that he has in his custody or power any deed, pa]ier, writing, or documents relating to the matters in (piestion in the cause, is to produce the same for the inspection of the ]iarty exauu'niiig him, upon the oi-der of the ( !ourt, or of tlie Master, or Kxaminer, htefore whom he is examined, and for that ]>ui'posG a reasonahlc time is to he allowed. Hut no party shall he ohliged to produce any deed, paper, writing, or document which would liave heen protected under the former practice." (Sec sec. 101, >>i(l)ra). " 148. I'^ither party may appeal from the order of the Master, Ch. Orel. Hs or Kxaminer ; and thereupon such Master, or lixaminer, is to certify under his hand the ([ucistion raised ami the order made thereon ; and the costs of appeal are to he iu the discretion of the Court." {Sen see 103, sujira). 1 2. Th(3 costs of every examination of parties or of officers of cori)orations before the trial, or otliei'wiso than at the trial of an action, as authorized by the prescuit prac- tice of the respective Courts whose jurisdiction is vested in the Hi.i;li Coux't, shall be costs in the cause, but the Court or J udge in adjusting the costs of tlie action shall at the instance of any party inquire, or cause inquiry to 1)6 made, into the propriety of having made such examina- tion ; and if it is the opinion of the Court or Judge, or the taxing master, as the case may be, that such examina- Co.sts of iirt'- liiuinary cx- auiination. 9^ 2S4 Bales 220-222. Oriler for pi'DiliK^tiun lit' ilncu Illl'lltS. ONTARIO JUDICATURE ACT, 1881. tion has been liad unroaHonably, vexatiously, or at uniioooHsary leiij,'tli, i\w costs occasionfid by tho oxamiim- (iioii shall be borno in whoh) or in part liy tlio party in fault. Tho taxinf^ master may make such in(|iiirv without any direction. (Comp. H. 8in) C, Order 'M, R. 2 ; R. 8. O., c. 50 ; ss. inC-lGT ; Order 50, H. 7 pod). Tho first pivrt of this llulo, makiug the coats, costs in tho cause is now. Tho reuiaindor of tho Kido is the; s.-vmo in ])riiiciiil(' ao tho Knglish llulo on tlio siviuo siihjoct, varying ehiofly l)y nftirr- iug to tho exainiuatiou, instead of roforriiig to iutorrogatorics, wliich aro tlio njothod ol' oxamiuatiou under the I'higlish i)r.ietice. 3. It shall be lawful for the Court or Judge at any time during,' the pendency of any action or proceeding,', to order the production by any party thereto, upon oath, of such of the docunuints in his pos.session or power reliiting to any matter in (piostion in such action or proceeding, as tho Court or Judj^e shall think right ; and the Court may deal with such documents, when i)roduced, in .such manner as shall appear just. (R. Sup. C. 1875, Order 31, R. 11 ; See R. S. O., c. 50, ss. lG'J-175.) Tho same as the English lUilo. It enables the Court or Judge to order production at any time during jiondeucy of the actiim >)r proceeding. Tlie next Itulo 222 eualiles either party " after the close of tho pleadings, or, when the application is on behalf of a plaintiff, after the time for delivering tho defence has exjiircd," to obtain an order of course for this ])urpo8e upon prneclpc. In Kuglaud, where there is no such rule restricting the time for the order to produce, and the order is on special apiilication, the current of decision is iu favour of not allowing a party discovery or access to documents until tlio defendant had put in his deftiici' ( Wehiitcr V. Wkewall, 15 Ch. D. 120, and other cases). Where a plaintiff of unsound mind sues by a next friend, the defendant is entitled to an affidavit of documents made by the next fiiond, or by some one accjuainted with the facts {l[i(j, Order 31, K.. 12 ; U. S. 0.,c. 50, s. lOU ; G. O. Chy., No. l.'U). ,SV(' notes to Rules 221 and 22.'>, This Rulo vfvrioa from tlio Kaglish Order, and from the praetico umlur tlio Commou Law I'roceduro Act, hut agrees Hiil)Htantially witli tlie Order in Clianoery leferreil to. The Kuj,diHh I'ule is not limited as this Rule is, with respect to the time of ohtaiuiug tilt; onler ; aud the Knglish iletasious thereon, such as Unh>n Ildtik of Lomlim V. Miiiilii/, l.'M'h. D. 2.'{!(, ive., will therefore not ajiply here. Nor does the Knglish llule pernnt the order to he obtained on ;'r'»'f'i^H', hut reipiires an application, though not necessarily an atHilavit, (which, however, the .fudge may retpiiro, if he sees ^t {.fohtison V. Siiiitfi, 3() L. T. 741). Rule 228 iti/ra, refers to the form of the affidavit to l)o made in pursuance of the order to produce. /SVc notes to that Rule as to what documeuts a party is bound to produce. The English Order ^\, R. 1 (not adopted by the Ontario Act) provides for the examination of the " o[)posite i)arty or parties"; and it has been held, that a person wiiom the dufendaut, by his counter-claim, had made a defendant, was not "an opposite party " as between him and the plaintitF, so as to entitle him to exiunine the plaintifl' under that Rule (Mollu;/ v. KUhi/, If) Oh. D. 1(12). The Ontario Rule 222 entitles any party to production from "the adverse party"; aud Rule 223 piovides that a third party, who has been served by the defendant, under Order 12, Rule 1!( (Rule 107, ante.) shall for all purposes of aud incident to tlio production of documents, and examination, be as bo- tweiiu liitn and such defendant, in the same situation as a defend- ant. It will probably, therefore, be held, that a third party, so servud, is not, on that ground, entitled to an order of production as against the plaintiff under this Rule. Rut, if the third party, after l)oing served, is made a defendant under Rule HI, he is in the same situation, with respect to the plaintiff, as any other de- fendant {Ih.; McAllister v. The Bishop of Rochester, 5 0. P. D. 194). The affidavit on production cannot be contradicted ; but, if from the affidavit itself, or from the documents therein referred to, or from the pleading of the jiarty, the Master or .Judge is of opinion that the the other affidavit is insufficient, a further affi- davit may be ordered (Jones v. Monte Video G'ns Co., 5 Q. B. D. 556; see also Campbell v. Mc Arthur, 7 Pr. R. AC. In other cases, where a plaintiff cannot make an affidavit, some proper person must do so for the plaintiff, and proceedings will be stayed meanwhile {Republic of Siberia v. Roye, 1 App. Ca. 139 ; see Priolean v. U. S. America, L. R. 2, Eq. 6.59 ; iT. S. America v. Wagner, L. R. 2 Ch. 582 ; Princess of Wales v. Earl of Liverpool, 1 Sw. 114 ; see also notes to Rules 221, 22.5). But it has been held that proceedings could not be stayed by a de- fendant in an action on a marine policy until the plaintiff had obtained an affidavit of documents from his assignor, who was not a party to the suit, noi under the plaintiff 's control, nor within the jurisdiction ( Eraser v. Burrows, 2 Q. B. D. 624). M »^i T •^mff 230 oNTAino .ii'MM'A'n'Hp; a<'t. IMMl. H,u\pg 'I'lx' (li'f(>i\il.'nt(H. Ix'furc |tul(iiiirin llicir sliili'iin'iil; nf ilcfcncp, nuiliT « lui'h lln'v lu'l'l llnii' Inml, in nnli r In tiMfi'i luin wlnllirr i( I'oul.'tiui'il u icMi'vv r,( iciit of mini) !il<>. Mh' (IcrcinlMiil' tltnt. il' W iliti \\o{. i\\i'\ wnnlil Hnlnttif io ili'in il held i\\:\\. \\\v \:\\\\\ having lu'cil imimvcvi'iI \'> I In' iilniiitiUM ui (co Bini]il(', ilw'V Wi'ic prhiuj fm'tr cnHIIci! (n (lie l.'iml dnwn In ||ii> t'l'ntrc of tln> I'.n Ml. Mnil unli'»F> (In' ili'l'i'inl.inlM finild hIimw llni(; flii> i>l;nii(ilVn wnc nut ni> mliili n n'V I'liii Id not i|ii'll('i| III iimul n til n( |i;iv(y SOI X'"' (IV n ■•••r.iuJrttif. to iniiilin'c tlii'ir Idle ili'cils (Kijyrmoul livriiil lliuitil v, /' /}■,^v Or,- r.)M/M»)/. IJ rU. |», ITiH). N.M- Hr/i.^Ar v. II /(mc(|/(, I.''
  • . A (liivii |vnl\ v\ Ini liMM ItiMMi s(M\c'i| 1>\ II ilcriMnlrint untlov < h'dcv rj. Ivulc 'JO. iuul Iimh chIi'I'm] tin M|i|ii';ir;\ni'p, slinll, for m11 )nn'|»ns('M ol'. nml iiiciiliMil lo I lie |iiiiiliii'(iiiu o\' t\<'.. mill io oMuniiiMlion. ho mm liclwi'cii liim MMM SIMM) ll< \'o\\ A:\\\{ in ili< sMnic silnntion iih m iIi'IoikImhI, :\\m\ il<>r in (li(> sinno sitmilinn .im m |il;iin(iir; lln' linn' for (Mlvin;; on( :in iivilor I'nv inoilni'l imi ny I'nr ('\,iiiiin:il i sliiill Ix^ iiriov 1 1(0 jiiu'lv so s( lAi'd li;iM (ji'liv t'lcil II n'ply, nil ^orsl^n for 1i1 Mill is < .>rn1'io(('(i ,1 iMirlv for .'ortAJn {nn-p<>sos. A(tiri»\ it .11- lUVVlUi'llOll iiy a oor- j>.ir»lii>ii. or where (li<> MpplieMlion in on lielinll' oT (lie ilereinlaiil ho siMviiii:: sneli (liinl ]vir(v. tlie (inn> slinU lie iirter (lie (iuic ("or ileliviM'insy (lie i'e]d\ Iims i>\|iiieiwo» el' the '2'^"Jnd Uule There \h ne i'erreH|>ondini; Hnic in (".Tiiiland. As (efhe peniden ef (lie |d,nnlilV in resjard le tliini parfi 's, s<>t> Mr Allis/rr \ Hishiip of fuirlnsti i\ 5 (' n. I'.M A i>erson (or \vIios(^ ininieiiiaie Itenelil a siiil is proseen(<\i >>r diM'en led is (o he ri'^Midetl as a |iail\ lor lh(^ )nivpos(» (d" e\aniina(ion or produelion oC tloeiiiiieiils. Same as «I. *\ riiy. No, \'\'.); i( isnot aniotujlhe l'aii,diHli lliiirs. 7. Wlicr*^ (li(^ |>ar(y required (o prodnee doeuinents is a oor)>(n-ation aijijreeaie. (lie idlidavil, sliall he made by one o( liie iMlieers of (lie ei>rpora(ioii. A fenn for the a(li.l;>vi( h\- (he odieer is L;iven in St-ht'iiulc Form No :v>. Tlio h'lde is ,\o\ ainen«r the '"ai^lish Kiiles, hut is m e> *nfin'ini(v with what v\as (In IHn. Piao.. oth Kd., p. \{\' and aetii th in ( liaiUH I'v i-'K' easen t Dt'ro i •ited). 4 id v'r<>ss-ox»in- lualJon rif Wlioro a h\\\ w;u« tiled l\v a Keiuililioan u;o\ ernnient, (he ilcfoiul- ant, havin»i pnt in a sutheiiMxt answer, was held entitleil to the usnal fttVidavit of doe\nniMits to he made hy one or more of the Mnustoi-s or otiieer.s of the (Jovornmont ^/u^/kA/i'c' of JAhcrUiv. Imyruil Iio>iL 1,. U.. It", K,,. 17i)). 8. The tie]>onom t^hall ho suhjeot to oross-oxaiuinatioii, aiul his alliiiavit shall have the s;uno otVoot (as nearly as tHRCOVKIlV ANIt IVfllT.f'rroN. I'M iimv 1„.) ID lii> iidi'liivil n{" llic |iiulv. iiiil'"^') wlmrn Mm Rnl ('mill 111' .lililiff H'"'M ri'fistiiii \i\y liiiMiirr ol ImtwiH'' Nut- ;ilM"iii; I III' I'lliiiIiHli Itilli'fl, 'i'i» !) 'ISIIIIM W III! (ill \{' CI'II'II'I I 1(1 III" (iHicf'iM (if M (•(iriKir OiKfiiiin II I' liii llf fdl • ilimi iiiiiv hi' t>siiMiini'il iii lli<> s;iiiii' m;iiiiii'r ii'^ fsisl iiii^ „„., ,i(fl, ''t lllt\>liXI\ li '»'Mn llllilMM'M. Ni'w. |(l. 'I'lic iiMiihnil III i>r' iiimiIc hy M |i!ii(,y n^JdiliKl wlioiri AlCnInvil nil I'l'ili'l Inr |il'iM|l|fl inli liii'! lii'i'M lii:i(|i', f;hnll M|if>('iry wliii'li. il Miiy. \^\' lln' iJnriiiiniilM lliciiiii iik'mI ifnn-'l, li»i iiliiri'I't In |ii iiiliicc, Mini Hiiiil iilliihivil limy !••" in tli" I'orin iiiiHwcr. N' I, ;ii 111 IHll'IH I \ iV.) I Id I'l II, will I f-lli'll V:il illl i'lMH UK cinMllllslilll i IIIIIV li'ijllilr (fun 1' Wi ('. |K7i Onli'f ;!!. I{ I.;;; d <>. (^ly. Nuh. !;!.■), 1.17, luid H('h. '()" llli'ivln.) I 'ill ii"i|iiiiiiIm Willi I In- lOlltjiiHli I! 'Ill'' f'liin ii'fi rri'il I' till' llllllVl' lilll I' IH lll'llllv Illl' Hll.llll' ilM IkIH Ik'CII ill MKC III Mm I 'mill dl' ( 'hiiiH'i'i'V. iS'if liiili'H Id Hull' '."",'. Tilt' liiriii civi'ii ill Mil' Mrln'ilnli' hIhhiIiI Ih' followMl. "'flic pliiliilmv Imiii in Illl' iIkIiI' luriii uml in iiilfmlril Im Ih' tlif (< in 111(111 liiiiii. 'I'll'' iilliiliu il. (if (Idciiiiiciit.-. in iiil.('iii''il ii'iw t.'i li(^ I'xIiiiiiHliv'', mill Illl' rmtii j^ivcii ill l.lic Act. JH Hd ' ( I'lr liiii'lhy, .1., W. N. |H7(1, |i. ;i!(). Ill ii.cl.idiirt lii'(/iiii Ifcfdic Uic Act,, i\.» well as HuliHi'ijiK'iil, iv'lidiiM, llic iilliilfivil uli'iiild lie ih the fdirn //iv( (Aimii. llCI'll lllllllt', II V. N IHT'i. |(. 'J 10). Winn r Hiilliciciit allidiivit luui t'liillnr iilliil'ivit will ii'd. lie dr(|crc(| llrllcM^ th( r« nil' tiii'N or .'iiliiiiuHidiiM Klicwiii^' lli.it tlicrc jirc ddciunciitu witli- lii'lil ( ■/'/" W'lish siniiii, -ic., ('iiiii/Kiiif/ V <-'iid. e. no. H« !('.!> 170; .(I Vic. c. H, h. !»). And now, iiniUir the .liidicatiip- Aet.M, the rij^lit \h rej^iilat(!d hy the iiili'M incvidiiMly i'>iHtiii^ in the ( 'diirt of ( 'h.'iiicciy ( /I ;/'//'^.sv/;/ v. /)(i»/- .1/' litilixh i'ithimhh;, 'J (III. I». (Ill, ()."iS) ; and the rdiiiin'.ii Uiw rules are cMtirely at an end (('(ittoii, \i. .1., in /'/>"/'■ v. ,liir,,l,H, .'iKx. I), ;{;!."i; .x.c iilrtd I'.iixh-m V. llV/f'/r, I (,,». i;. I). CJ.'f ; AUnrbii V. //(irrc//, ;«; L. 'I'. .''..'•.I). Tin; party inaUiii)^' an allidavit (in |ird'liicti'iii niii.Ht, if rif-'iea- t.ii'y, siH'k the nei'i'.Hsiiry iiifiiiiniti'in friiin hn ]irc.Heiit or fonnor .iL'i'uts (/■;,(/•/ (./■ f,7c»(///// V. Fniyr, 2 Mare, '.»!»; M'-/i>l<,.'()7 n. ). A .Tuilnrj. li;i(^ )],) discretion an to tlie dociiinentH to lie prodnccfl {BuKtniav. W/iitt', I Q. M. \t.4'SA). Kvery material diiciirnt;rit rnuHt be produced, unloas it in ahown to be privileged ; though, where 238 ONTARIO JUDICATURE ACT, 1881. Rule 228. *be materiality 'lepends upon tho determination of a question in dispnte, and tlie discovery .snuglit is calculated to cause consider- able trouble, or to prove oitprussive ai'd vexatious to tlie party from whom it is souglit, tin- (Jourt will act upon Rule '2.Srt, .-nd jioHtpone the discovery until the question iias been deternimed ( IVuod V. A >iij ; 23 W. II. 2i8). A defendant is not compelled to produce documents of title to land of which he is in [lossession, but he is bound to make an alKdavit of them (Ay«) British Mutual Investment Co. v. Pud, 3 c. P. I), imi). Privileged documents include a party's muniments of title, whicli he swears do no*, contain anything impeacliing his ease, or supporting, or material to, the case of the defendant (Miiut v. Mori/an, L. R. 8 (.'h. 3()l). It was held in that case, that it was suHicient to swear to the best ot the dei)onent's knowledge, in- formation and l)elief. The contrary had been hehl in Manhi/ v. /it inii-ke, 8 D. M. & (t. 470. It is insutUcient to swear generally that the documents are privileged. The affidavit must state the facts upon which the objection is grounded [Gardner v. Irvia, 4 Ex. 1). 4!t ; 48 L. J., Ex. 223 ; 40 L. T. 357 ; 27 W. R. 442, Ca. Sve also Wehh v. Ead, 5 Ex. D. 23). A party is not bound to produce tlocuments having no bearing on the issue, or documents relating exclusively to his own title, or to the evidence by whi(di his case is to be established (D'ltc v. Eleij, 2 H. & M. 725 ; Inijilhi/ v. S/iafto, 33 Beav. 31 ; Coimm- sioner.i of Senders v. Crla-s.se, L. R. 15 Ki{. 3(i2. In such case his opponent is m>t entitled to see his deeds, &c., in order to "pick holes " in them {Owen v. Wijnn, 9 Ch. D. 29) ; but it must appear that they do not relate also to the title of the opposite party (Cle(i<) V. Eilinumison, 22 ]*cav. 125 ; Lind v. hh of Wiijht Firrii Compani/, 8 AV. R. 5i() ; /^i.flniji of Winrhixter v. Bawhr, 2'J Beav. 479 ; FcJkin v. Lord Ihrhirt, 9 \V. R. 750 ; Bolton v. Cori^vntm of Lirerpool, 1 Myl. antl K. 88 ; Jenkipi v. Bunhhij, 14 \V. 11, .131 ; Southwark and Vanxfuill Wad r Contpanij v. Qniek, 3 Q. B. D. 315). For what was held a suHieieut description of the djcu ments and entitling them to protection on this ground, cl'v Bewieke v. araham,^U L. T. 220. Mortgaged deeds are privileged until the mortg.agee is paid what is due (ChirlieMer v. J)onet/all, L. R., 5 Ch. 497 ; P'^ldi v. Ward, L. R., I Eq. 430; Lindley J., \V. N., 1870, p. 27 ; Jon,s\. Junes, Kay, App. vi. ; Bi-id(/ewater v. DeWinton, 12 \V. U. 40; Howard v. Buhinson, 4 Drew, iit p. 520 ; ir^-^-.s v. Stonrtoii, 13 W. R. 489 ; Freeman v. Bntler, 33 lieav. 289 ; Smith v. Barim, L. R., 1 E// v. Shafto, 38 Beav. 31 ; Gandw v. Stan.-fjii'ld, 4 De(r. & J. 1 ;' Pi-ih- v. Stoddart, 1 M. & G. 19ii ; Tunnrv. /liirbiis/iaw, 11 W. 11. 851) ; papers relating to a fonner action anil privileged thereii) {Bullock v. t'ufrif, 3 i),. 15. I). 3.")t'i ; B(i' •■ Baron, W. N. 1870, i>. !)0); and a doctor's report oi .111 t'Xiiuiiiiation at the instance of a party's solicitor { Friend v. Lomlvn, Chatham and Dover liallwai/ Co., 2 Ex. 1). 437). A party may also ohject to the production of documents ou the ground, sworn to in affidavit, that their proiluctiou would tfud to involve li'ui • a criminal charge, or to sul)ject him to a penalty or foi'feilure ( W'djh v. A'((.. !41); letters from a party's unprofessional agent to defendant, relative tu tlie subject matter of an action, not sent in order to be laid before the party's solicitor (/I /i(/t')\so/( v. Bank of British Colnndna, '.'('h. 1). 044); an agreement of compromise between the defen hud some other suHicieiit cause for not coiiiplving with such notice. ^R. Sup. C. LS75, Order :5l, K 11.) C()rrcsi)omls with the English Rule. Soo iiott's to IJules '22'i and 228. xVs to iuspci;Lion of a coinpiiny's books In- a sliaivholilcr, see Ji( Cm/it Co., W. N. 1871>, i>. 21. A defendant hefui'L' putting in lii.s dufenco gave notice that lie re- quired tiie ins[ieetion of a dec. 2;{). In LoLrv. Puohi/, W. M, 1S76, p. .l-t, an action for hreaedi of covenant in a lease, the defendant had made an assignment of one undivided moiety of leaseliold pi'o[)erty, consisting of h'.nd, brewery and fixtures ; the plaiTititf having ai)[died for an order for ins[)ection of documents, and the defendant having objected that the documents related solely to his own title ; Archiliald, ■!., made the order, because it was a case of an undivided moiety, the interest in which could ouly be realized liy the usa/ruct of the whole ])ro[)erty. 1 2. No allowance is to be made for any order for pro- duction or any notice or inspection under any of tlie pre- ceding Rules, unless it is .shewn to the satisfaction of the taxing officer that there were good and sufhcient reasons for taking such order, ."giving sucli notice, or making such inspection. (R. Sup. C. Aug., 1875, R. 15.) Same in substance as the English Rule. i DISCOVERY A\D INSPECTION. 241 13. Notice to any party to produce any documents Bales referred to in his pleading or allidavits 'nay bo in tho 231-234. form No. 23 in AppfMidix (B) hereto, or *o the same v»;il effect. (R. Sup. C. 187;"), Order 31, R. 15 ; K. Sup. C. Form of April, 1H80, Form B. 10 a.) "H^^^, The Eiiglisli Rule is in fi>rm imperative, stating that the notice "shall be " in the form referred to. 14. The party to whom .such notice in given shall, Notire to in within two days from the recci[)t of such notice, if all ^''''' ' the docunitMits therein referrcvl to have been set fortli l)y him in such affidavit as is mentioned in Rule 10 '^; or if any of tlie documents referred to in su(^h notice ha\'(! not been set forth by him in any sucli atUilavit, then within, four ilays from the receipt of sueh notice ; (hsliver to the party giving the same a Jiotico stating a tiuKi within' three days from the delivery thereof at which tlie docu- luouts, or such of them as he does not object to produce, may be inspected at the otHce of his solicitoi-, and stating which (if any) of the documents he o'DJects to ])roduco, aiul on what ground. Sucli notice may be in the Form No. 2."), in Appendix (B) hereto, with such variations as circnmstances may require. (R. Sup. C, 187o, Order 31 , R, 16 ; see R. S, O., c. 50, s. 170.) Same as English Rule. * Tho 'uargiual number is '228. 15. If the party served with notice under Rule 13 "'^ Order for in - omits to give such notice of a time for inspection, or default"" objects to give inspection, the party desiring it may apply to a Judge for an order for inspection. (R. Sup. C, 1875, Order 31, R. 17.) Identical with the English Rule. * The marginal number is '231. IG. Every application for an order for inspection of Ai'i'iii^HtioQ documents shall be to a Judge. And, exce}>t in the case of documents referred to in the pleadings or atKilavits of the party against whom tlie application is made, or dis- closed in his affidavit of documents, such application shall be founded upon an affitlavit showing of wliat documents inspection is sought, that the i)arty a))plying is entitled to inspect them, and that they are in the pos- sossion or power of the other party. (R. Sup. C, 1875, Order 31, R. 18.) Identical with the English Rule. 16 i '2i-2 Rule 235. When iu- spi'ition nbjcct('(l to. ONTARIO jDICATURE ACT, 1881, 17. If the party from whom discovery of any kind or inspection is souglit objects to the same, or any {)iirt thei'eof, the Court or a Jud^'e, if satisfied that the right to the discovery or inspection son^lit depends on the de- termination of any issue or question in dispute in the action, or that for iiny othcu' reason it is desirable tliat any issue or qutsstion in dis|»ute in the action should be (hitermined before d(!ciding u[ton tlie right to the discov- ery or inspection, may order tliat such issue or question be determined first, and reserve the question as to the discovery or inspection. (R. Sup C, ]oe determined lirst, reserving the question as to discovery or inspection. In a suit by an alleged next or kin to an intestate, against the soliiitor to the Treasury, to whom administration had betn granted, held tliat the defendant was not Ijound to make an affidavit of documents relating to the estate, luitii a prima facie case had been made by the plaintiff that he was next c f kin (Lane v. Gray, L. il., 16 Eq. 552). In Rv.ucUffe v. Leiijh, 6 Ch. D. 25(5, where an executrix disputed a horse dealer's account, and the dispute was whether or not cer- tain horses were sold on commission, the Cvsixdi of the profits of the business to him accordingly. The defendant by hi.s answer admitted a right to a weekly salary and to one- twelfth of the profits of the business, coupled, however, with an agreement on the part of the plaintiff that the latter should take the statements of the defendant as to the profits to be true, and should not demand or question the liusiness transactions, or be teotitled to examine ov investigate the business books : — Held, ve contain any variation therefrom, and any other directions i""^ '■■"'"-■ which the Court or Judtte shall see fit to make. V ^.\^ IMAGE EVALUATION TEST TARGET (MT-3) h /, {./ y. (A 1.0 I.I 1.25 28 04 5 |M 2.0 lA III 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. )45B0 (716) 87vt-4503 iV iV ^^ \ % v \ ^ % \> ? s\ O^ <^' ■■( R 1 ' I % 1^ |{' 'I II [1:1 HI [j-'i II <5 ;* tt I' ' li . ! * fif: :| 248 Sale 248. ONTARIO JUDICATURE ACT, 1881. ORDER XXX. 4-1 M I'arties may iMincur in QUESTIONS OP LAW. 1. The parties may, after the writ of summons has •t'u'tinK'" been issued, concur in stating the questions of hiw arising speeial case, jj^ ^j^g action in the form of a special case for the opinion of the Court. (Comp. R. Sup. C, 1875, Order 34, R 1 ; R S. O. c. 40, s. 85 ; c. 50, ss. 181, 185.) (a) The parties to a special case may, if they think fit, enter into an agreement in writing, that on the judgment of th« Court being given in the affirmative or negative of the question or questions of law raised by the special case, a sii , *" money, fixed by the parties, or to be ascertained by ti.'j Court or in such manner as the Court may direct, shall be 7>o'd by one of the parties to the other of them, either '' i >r without costs of the action ; and the judg- ment (' 'iL Court may be entered for the sum so agreed or ascei ; lirtd, with or without costs, as the case may be; and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. (See R. Sup. C, 1875, April, 1880, R. 9 ; R S. O. c. 50, 8. 182.) !b) Every special case shall be divided into pai-agi'aphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. (R. Sup. C, 1875, Order 34, R. 1.) (c) 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. (R. Sup. C, 1875, Order 34, R. 1 ; Comp. R S. O. c. 50, ss. 181, 185.) The several parts of this Rule correspond with the English Rules referred to, except in omitting a provision as to stamp duty. The power of stating a special case in the Common Law Courts of Ontario depended upon K. S. 0. o. 50, sees. 185, 186 ; c. 51, Bcc. 24, and the previous statutory enactments to the ■'xtae effect. The like power in Chancery is given by R. S. O. o. 40, sec. 86. That section was taken from 28 Vic. c. 17, sec. 1 (Canada), which had the effect of introducing the Imperial Act, 13 & 14 Vic. 0. 35, on the subject. 1^. SPECIAL CASES. The provision in the last ptdrt of the Rule, enabling the Court to refer to documenta, is new as respects the Common Law Courts. These Courts were confined within the four comers of the case, so that it was often necessary to set out documents, a Sart only of which was likely to prove material. The power to raw inferences of fact also did not exist in Common Law Courts aa of right ; though it was commonly specially reserved to the Court in well drawn cases. In cases stated in the Court of Chancerv, the Court had both these powers under ss. 8 & 14 of 13 & 14 Vic. c. 35, Imp. ; 28 Vic. c. 17, s. 1 ; R. S. O. c. 40, 8.85. A special case must be upon a real state of facts, not a hypo- thetical one (RepuMic of Bolivia y. BoUinan Naviqation Co., 24 W. R. 301 ; Brujht v, Tinidall, 4 Ch. D. 189 ; Prtfue v. Pryse, L. R. 15 Eq. 86 ; Smith v. OibHm, 25 L. T. 559 ; 20W. R. 88; Savagt V. Tyers, 20 W. R. 817 ; Bardwell v. Sheffield Water IVorL^ Co., L R. 14 Elq. 517) ; and only such questions of law can properly be raised as must necessarily arise in the action (/?r;>Mft/Jc of Bolivia V. National Bolivian Navigation Co., 24 W. R. 31)1). A very special order having by consent been made for the pur- pose of obtaining the judgment of the Court under this Rule, or under the English Order 40, R. 8, (corresponding with Rule 319, post ) the Master of the Rolls discharged the order, as the efiFect of it would be to make the Judge an arbitrator between the par- ties, who would thus, contrary to their intention, be deprived of the right of appeal {Republic of Bolivia v. National Bolivian Navigation Co. W. N. 1876, p. 77 ; 24 W. R. 361.) A special case was amended by leave, at the hearing, by add- ing a party in existence before the case was filed, but accidentally omitted ; and the case as amended was ordered to be set down against the added defendant (Barnaby v. Tasnell, L. R. 11 Eq. 363). Where new parties come into existence after a special case is set down they should be made parties to the proceeding [Pahwr V. Flower, 18 W. R. 887 ; Atty v. Etough, L. R. 13 Eq. 462 ; Savage v. Snail, L. R. 11 Eq. 264). Upon the argument of a special case stated in replevin, the plaintiff has the right to begin ( Vigar v. Dudman, 24 L. T. 734). Where the answers to the special case dispose of the action, the proper course is, to take the decision as a judgment making declarations to the same effect ; and the answers ought to be followed by the words : " and the Court doth declare accord- ingly. " In such a case the Registrar was directed to draw up the judgment as answering the special case, on motion for judgment [Morrison v. Cornwall Minerals R'y Co., 16 Ch. D. 66). 24U BqIm 248, 248. 11 II 'J4» 2. If it appears to the Court or Judge, eitlier from the Preliminary statement of claim or defence or reply, or otherwise, tliat Ji^'^*'^'"" ° there is in any action a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court or Judge may make an order accordingly, and may direct such question of law to be raised, either by special case or in such other manner as the Court or Judge may deem expedient ; and all such further proceedings as the 250 Bules 249-258. -mo Preparing l!llSC. 431 Persons tinder disa- Wlity. Entry for argumeat. ONTARIO JUDICATURE ACT, 1881. decision of such question of law may render unnecessary may thereupon be stayed. (R. Sup. C. 1875, Order 34, R. 2.) The English Rule has here tho words " for the opinion of the Court. " The Rule is otherwise the same. Rule 248 enables the parties to state a case by consent ; the present Rule enables a Judge to raise a question of law by special case or otherwise, without reference to consent. This Rule is not limited to cases in M'hich the point of law ap- pears by the pleadings. The Court may look at the circum- stances, whether brought to its knowledge by pleadings, affidavit, or otherwise {MetropolUcn Board v. ^w River Co. 1 Q, B. D. 277 ; affirmed, 2 Q. B. D. 67). Hence, an order may be made after writ and before statement of claim [Ibid. ) The Court of Appeal will not interfere with the discretion of the Court below in such a matter, except in a very strong case, (Ibid.) After appearance the plaintiffs, on an affidavit (uncontradicted by the defendants) that the sole question between the parties was, whether the defendants were bound to supply water by me- ter for road use, obtained an order under the above Rule : Held, that the order was rightly made {lb.). The writ of summons was indorsed, "the plaintiffs claim damages from the defendants for I ~'^sing to supply them with water by meter, under sec. 41 of th^ -Vew River Act, 1852." The Court directed a special case to be set down for hearing on the application of the executrix, the first tenant for life and the trustees being defendants, the Eersons interested in remainder, who were absent in New Zea- md, being omitted as parties (Bayky v. Miles, 21 L. T. 784). 3. Every special case shall be signed by the several parties or their solicitors, and shall be filed by the plain- tiflf. Copies for the use of the Judges shall be delivered by the plaintiff. (R. Sup. C, 1875, Order 34, R. 3.) The English Rule requires the case to be printed, and printed copies to be delivered to the Judges. The Rule is in other re- spects the same. Signature of counsel is not now necessary [Hare v. Hare, W. N., 1876, p. 44). 4. No special case in an action to which a married woman, infant or pei-son of unsound mind is a party shall be set down for argument without leave of the Court or a Judge, the application for which must be supported by BufHcient evidence that the statements contained in such special case, so far as the same affect the intei'est of such married woman, infant, or pei-son of unsound mind, are true. (R. Sup. C, 1875, Order 34, R. 4.) Identical with the English Rule. 5. Either party may enter a special case for argument by delivering to the proper officer a memorandum of TRIAL. 251 ielivered 3.) d printed other re- Hare, W. ried rty shall ;)ourt or ted by such mar m of such liind, are idum of entry, in the Form No. 87 in Appendix (E) hereto, and Bales also if any man*ied woman, infant, or person of unsound 2*2, 268. mind be a party to the action, producing a copy of the order giving leave to enter the same for argument. (R. Sup. C, 1875, Order 34, R. 5.) Same a8 the English Rule. A special case must be argued before a single Judge, unless all oartics agree to its being heard before a Divisional Court (see a. 28 of the Act, Rule 471, post). 6. This Order shall apply to every special case stated in Application an action or in any pi'oceeding incidental to an action ;" "^ *'' wheiher under the said or any other Act. (See R. Sup. C, April, 1880, R. 10.) Same in effect as the English Rule. f ORDEK XXXI. TRIAL. With respect to the trial of actions, there are important differences between the provisions of the English Judicature Acts uid Rules, and the provisions of the Ontario Act and Rules. The Utter preserve very nearly the modes of trial in ue,-^ in this Pro- vince, under the Administration of Just- :)e Acts and otherwise. By the English Rules the trial of an ac.on may be in any one of the following modes, viz. , before a Judge or Junges sitting alone ; or before a Judge sitting with assessors ; or before a Judge and jnry ; or before an official or special referee with assessors ; or before such referee without assessors ; and the party giving notice of trial may (subject to certain conditions and provisions) choose any one of these modes of trial. If he chooses any mode other than a jury, the party served with the notice may require the trial to be by jury ; but a Judge has power to order the trial without a jury, of any question or issue which might before the Act have been without consent tried without a jury ; in other words of any case which, before the Act, would properly have been brought only in the Court of Chancery. The Judge has also power where neither party requires a trial by a jury, to onler the trial in any other mode than that of which notice has been given. In this Province, section 45 of the Act regulates the trial, and is as follov-d : "45. Subject to Rules of Court, in causes and matters which, Jud. Atl, »t the time of the passing of this Act, are within the jurisdiction s- 45- of the Courts of Law, the mode of trial shall be as is now pro- vided by law for like cases in actions in the said Courts of Queen's Bench and Common Pleas ; and, subject as aforesaid, in causes and matters over which the Court of Chancery has, at the time of the passing of this Act, exclusive jurisdiction, the mode of trial shall be according to the present practice of the Court of Chancery," and «ee the notes to this section, ante, pp. 43-46. Both the English Rules and the Rules in the Ontario Act provide tor a trial before referees in certain oases, at the instance of the 252 Bales 85S.855. an* Venue aboliibed. ONTARIO JUDICATURE ACT, 1881. Court or a Judge, and provide also for the Court or a Judge ordering the different (questions of fact arising in an action to be tried by different modes ; or one or more questions of fact to be tried before the others (see sees. 47, 48 of the Act, and Rule 256 post), 1. There shall be no local venue for the trial of any action except an action of ejectment, but the plaintiff shall in his statement of claim name the county town in which he proposes that the action should be tried, and the action shall, unless a Judge otherwise orders, be tried in the place so named. Any order of a Judge, as to such place of trial, may be discharged or varied by a ~ 1 Court of the High Court. (Comp. R. Sup. "" 36, R. 1.) Notice of trial. oes not except actions of ejectment ; limits tEel{pH9QH||l|e"rule to actions which the plaintiff proposei to have trie(5**SSSwhere than in Middlesex ; and provides that, where no place is named in the statement of claim, the place of trial shall be the County of Middlesex, unless the Judga other- wise orders. In Chancery no actions were local, all , jre transitory. At Common Law some actions were local, and some transitory. In a local action the venue had to be laid in the county in which the cause of action a 'ose, though the trial might be ordered to take place elsewhere. In a transitory action the plaintiff might lay his venue where he pleased, subject to the power of the Court or a Judge to order it to be changed. The practice as to chang- ing the venue was, that either party might apply for an order for that purpose. The plaintiff, if the application was his, had to show reasonable ground for the change, and if the application was the defendant's, the defendant had to show distinctly a pre- ponderance of convenience in favour of trying where he propos- ed, instead of where the venue was laid (Church y, Barnelt, L. R. 6, C. P. 116). The above Rule leaves the matter in the discretion of the Judge, to be exercised according to th^alance of convenience, and it is for the defendant to show a preponderance of con- venience to oust the plaintiff's right to fix the place of trial {Plum V, Normanton Iron, ) thereafter for the place so named or ordered ; or if the plaintiflf does not give such notice of trial, and if the pleadings were closed six weeks before the commencement of such sitting (c) the defend- ant, instead of giving notic of trial, may apply to the mtas fo*^ Court or Judge to dismiss tlie action for want of prosecu- want of tion {d) ; and on the heaiiug of such application, the pi-osecu oa q^^^^ ^j, jQ(jge ^nay order the action to be dismiiised ac- cordingly, or may make such other order, and on such TRIAL. 253 lerms, as to the Court or Judge may seem just. (Comp. Bnles R. Sup. C. June, 1876, R. 13; R. Sup. C, Order 36, R. 266,286. 4; G. O. Chy., Nos. 161, 273.) (a) The English Rule does not permit the defendant to give notice of trial, until the plaintiff has failed to do so for six weeki After the close of the pleadings, or such extended time as a Court or Judge may allow. The Ontario Rule, supra, is in accordance with the Chancery practice G. O. Chy. No. 161. (6) This is the period allowed under the Rule 259 for the notice of trial. (c) ^\^lat follows is identical with R. Sup. C. June, 1876, R. 13, and is amewhat analogous to the mode of proceeding under Bection 2'\ > of the C. L. P. Act (R. S. O. c. 50), but simpler, and corresponds substantially with the existing Chancery practice. {(1) In cases where there are more defendants than one, before moving under this Rule, it appears that the proper practice is to write to the plaintiff 's solicitor, and ask him what is the state of the pleadings, as the close of the pleadings may have bet;n post- Sned by an extension of time granted to one of the other de- idants (Ambrolse v. Evelyn, 11 Ch. D. 759). It has been said, that, if a plaiutiif desires to avoid the cost of the hearing of the motion, he should tender to the defendant the costs of the notice, and give the usual undertaking to go on (Eotlyn v. Evelyn, 13 Ch. D. 138 ; Freaaon v. Loe, 26 W. R. 138). 95« 3. Subject to the provisions of the Act and of the pre- Trial of ceding Rules, the Court or a Judge may, in any action at qll^stioM any time or from time to time, order that different ques- in different tions of fact arising therein be triod by different modes, ™ or that one or more questions of ftict be tried before the othei-s, and may appoint the place or places for such trial or trials, and in all cases may order that one or more issues of fact be tried before any other or others. (Comp. R. Sup. C. 1875, Order 36, R. 6.) Same substantially as the English Rule. In The Emma Silver Mining Co. v. Grant, 11 Ch. D. 918, Jessel, M. R. said (p. 930), that a " case to be brought within this Rule ought to be one of simple issues. I do no* think it is convenient to travel through a long record, and to get a number of compli- cated issues, and except them, so to say, from the pleadings. " He explained in what cases the Rule had theretofore been acted upon. All had been cases in which the application was by the defendant. He said at page 926 : — " The first case that came before me was a case in which a lady alleged that she was the legitimate child of somebody, and that as duch she was entitled to take some very long and expensive and intricate accounts against some trustees. The trustees showed by affidavit that the lady was bom before the marriage of her parents, and that there were very strong groimds indeed for supposing that she was not a legitimate child at all. I thought it a proper case, inasmuch as the expense of taking the accounts woold have been enormous, and the whole suit woiud have ended I" 1 1 irl^- 254 ONTARIO JUDICATURE ACT, 1881. ■ 'I ! 'i , lip Bal« 2S6, in nothing but oostn if the plaintiff did not establish her legiti- macy, for the issue of legitimacy or illegitimacy to ba tried nrst under thin Rule. I so directed, and, as I am informed, the result was that the lady did not succeed in establishing her legiti- macy, and there was an end of the action, which was exactly what I anticipated. " In a case of this kind, mv opinion is, that the Judge must have some evidence which will make it at least probable that the issue will put an end to the action. The plaintiff is not to be harassed at the instance of the defendant by a series of trials, each trial taking issue on every link of the plaintiff's case. That is not the meanine of the Rule, as I understand it, but it may Sioperly be appliea in such a case as that I have stated, where the udge has serious reason to believe that the trial of the issue will put an end to the action. " I have had a case in which the plaintiff alleged a very long title to, and claimed an estate. He alleged himself to be the heir-at-law of a person who was entitled to this estate. He , wanted a great deal of discovery, and the possession of a large property. The defendant said that the plaintiff was a pauper, that it was a mere experimental action, and that there was not a shadow of ground for his claim. In that case I felt no hesitation in directing an issue whether the man was heir-at-law. It turned out that he was not, and, I believe^ the case was abandoned and was never tried at all. "There was a third case I remember before me at Chambers (I only give these instances as illustrations) in which a man brought an action on behalf of himself and all other tenants of a manor to restrain the inclosure of a common. The defendant said, ' This will be a very expensive action to try ; it will involve the customs of the manor as to rights of common,' and that, u usual, they had put up a man, who although not technically, waa really a pauper, to sue on behalf of himself and all others, the only result of which action could be that the defendants, if suc- cessful, would have to pay the costs out of their own pockets. They alleged and proved by affidavit that the person who wa» plaintiff, and who said he was tenant of the manor, was not so, and that his name, or the name of his ancestc^. had never ap- peared on the court rolls of the manor. The only answer that I could get from the plaintiff wa^, that he believed, that he was a tenant, but that he could not show how. I thought before the defendants were put to the enormous expense of a trial of all the issues, it was right to put the plaintiff to the proof that he was a tenant at the time when the action was brougnt. . . . " The defendant has of course a right to shape his own caae and to say to the plaintiff : ' You must prove every part of your cane ; if I can put my linger on one part of your case and shew that there is no foundation for it whatever, it is quite wrong to subject mo to the whole expense of a protracted investigation, and especially when you, the plaintiff, cannot pay the costs of it."' In the subsequent case of Pkrcy v. Young, 15 Oh. D. 476, the learned Judge stated that the Rule was intended to be ap- plied in exceptional cases only ; that the object of the Judica- ture Act was to trv all disputes together, and that it was con- sidered a beneficial object. "Separate trials of separate issues •re nearly as expensive as separate actions, and ought certainly TRIAL. 255 sr legiti- ied hrst aed, the ar legiti- exactly Ige must ible that lot to be q{ triali, i&. That it it may irhcre the issue will very long ;o be the tate. He of a large a pauper, was not a hesitation It turned idoned and Ihambers (1 an brought of a manor adant said, involve the id that, as lically, was others, the tnts, if sue- /n pockets. n who was I was not 80, ,d never ap- jwer that I kthe was* , before the [al of all the lat he was a E not to be encouraged, and they should only be granted on special Sales grounds." It was there held that a defendant in a partnership 2ft6-289. who had set up, by counter-claim, an agreement by the plaintiff for sale of his interest in the partnership to the defendant at a stated price, was not entitled to have this issue tried before the plaintin's issues in the action. In the Tasmanian Railway Company v. Clark, W. N. , 1879, 106, the Court of Common Pleas refused leave to try the liabi- ity of a surety, before that of the principal ; and the Court of appeal declined to interfere with their discretion. Where a reference would be ordered by the Judge as to a question of account, it is proper that the question of liability should be tried separately from the question to be so referred (Liverpool ami Brazil Navigation Company v. London and St. Catherine, dkc, Co'y, W. N., 1875, p. 203 ; 1 Oharl. Ch. Ca. 121). In Milisaich v. Lloyds, W. N., 1875, p. 200, an action for libel, an application by the defendant to have the question of libel tried before the question of damages was refused by Lush, J. , who said : " I do not think that I could in this case separate the question of damages from the question of fact without injury to tne plaintiflF." In Dent v. Sovereign Life Assurance Company, W. N., 1879, p. 33, the validity of a life policy being the matter in dispute, an application by the plaintiff that the issue, whether the deceased was a man of temperate or intemperate habits should be tried first, was refused by V. O. Bacon, who said that "this particular issue could not be so severed from the rest of the cnse as to admit of its being heard separately by a jury. " 4. Every trial of any question or issue of fact by a jury Trial by jury shall be held before a single Judge, unless such trial be specially ordered to be held before two or more Judges. (R. Sup. C. 1875, Order 36, R. 7.) Identical with the English Rule. Sec. 28, ante. .,_j^ 5. Notice of trial shall state whether it is for the trial Form of of the action or of issues therein, and the place and day trial? " for which it is to be entered for trial. It may be in the Form No. 27, in Appendix (B) with such variations as circumstances may require. (Comp. R. Sup. C, 1875, Order 36, R. 8.) By the English Eule the notice of trial is to state the place and day in actions in the Q. B., C. P., and Exch. D. only. The above Rule, otherwise corresponds with the English Order 36, Rule 8, as amended by Rule 12 of December 1875. 6. Ten days' notice of trial shall be given, unless the Ten (i.iy>* party to whom it is given has consented to take short n"'"'^''- notice of trial ; and shall be sufficient in all cases, unless otherwise ordered by the Court or a Judge. Short notice of trial shall be five days' notice. (R. Sup. C, 1875, Short notice Order 36, R. 9 Comp. R. S. O., c. 50, s. 244 ; G. O. Ch., No. 163.) This Rule is identical with the English Rule, except that short notice of trial is there declared to be four days, instead of five. live (layH. 2«o ONTARIO JUDICATURE ACT, 1881. P'l' I m m t:' m BalM 1° Ontario, at Law, eight days' notice of trial bad to be given, and 259288. '" Chancery, fourteen days. R. Sup. C, 1875, Order 3fi, Kule 13, provides, that no notice of trial shall be countcrntunded except by consent or leave of the Court or a Judge. This Rule has not been adopted in the Ontario Schedule. By the Common Law practice countermand is permitted, but not by the Chancery ftractice. It is supposed that, until the matter is regulated hy urther Rules or otherwise, the Queen's Bench an r.j.e brought, unless provision is made under Rule 263, for the separate trial aft any Gouaty town of actioni I ENTRY OF ACTIONS FOR TRIAL. 2n7 M to bo tried there from the Ohancory Division. Umlor this Rule Bales the Judges will probably appoint separate sittines for Toronto, 263-266. and other points where the ousiness is large antf could not be conveniently disposed of at the same time as other cases. 11. Actions in all the Divisions shall be entered uotrimvor later than the third day next before the first day of the ^'^^^^y '"" Assizes or sittings; but the Judge may permit any action to bo entei'ed after the time above limited, if tipon facts disclo.sed on affidavit, or on the consent of both parties he sees lit to do so. This Rule shall bo construed to apply to County Courts. (See R. S. O. c. 50, s. 248.) By the C. L. P. Act, sec. 248, the record of nm priua was to be entered at any time during the iivo days next before the com- mission day ; and on tlie saiil commission day at any time before noon, unless the Judge should on affidavit permit it to bo entered afterwards. In Chancery (Order 1G3) cases were set down, and notices served at least fourteen days before the sittings. The present Rule follows neither practice ; it forbids the entry on the day the Assizes or sittings begin ; and requires it to be made not later than the third day next before such first day, unless with the Judge's permission. It may bo made on any earlier day after notice of trial is given (Rule 260). The provision that the Rule shall bo construed as applying to County Courts arises from tho present Rule of the County Courts differiiig from that of the Superior Courts in this, that section 248 of the C. L. P. Act provides that the record of niii prius shall be entered at any time during the five days next before the com- mission day and on said commission day at any time before noon ; while in the County Courts, by section 250, the provision is that the plaintiff is to enter the record on or before the first «lay of the sittings of the Court without anj' restriction as to live days or to the hour of noon ; and by the 490th Rule it is provided omy that the practice for the time being of the High Court is to apply where the present practice of the County Courts corres- ponds with that of the Superior Courts. 12. Where the Deputy Clork of the Crown and Deputy Actions with Registrar in any County are not the same person, all ,7n*}|2"p,i, actions shall be so entered with the Deputy Clerk of the Crown, except in cases under Rules 10 and 1.3, but the Deputy Registrar shall attend the trial of actions brought in the Chancery Division, and shall be entitled to the same fee as if the cause had been set down with him for hearing. No corresponding English Rule. By s. 64, sub.-s. 4 of the Act, ante, the offices of Deputy Clerk of the Crown and Deputy Registrar (not Local Master) are to be consolidated as vacancies occur, unless the Presidents of the Divisions, or a majority of them, recommend otherwise. 13. In case of provision being made for the trial at a when entry separate time and place of actions brought in or assigned ^j^^^fs- 17 trar. 258 RnlM 366,867. 4«r Separate UhU of do- fandoil and undefended iHAUe«. I? \'h ,>:'nt i tA.' * • r'.''' '*#^ t. 4 } n ll if! ONTARIO JUDICATURE ACT, 1881. to the Chancery Division, the actions shall be entered for trial with the Registrar, or Deputy Rogintrar, as the case may be, according to the present practice of the Court of Chancery. No corresponding English Rule. See Rule 263 ante. 14. The party entering any action for trial shnll in- dorse on the copy of the pleadings delivered as Pvforosaid, whether the matter for trial is an assessment of damages, or an undefended issue, or a defended issue ; and the officer with whom the action is so entered shall make two lists, and enter each action in one of the said lists, in the order in which the actions are mterod with him ; and in the first list he shall enter fdl the assess- ments and undefended issues, and in the second list all defended issues, and the Judge at the trial may call on the actions in the first list at such time and times as he finds most convenient for disposing of the business. ( See R. S. O., c. 50, s. 249.) Substantially the same as the enactment in the section of the C. L. P. Act referred to. Thero is no corresponding English Rule. Where at the trial it appears at the close of a plaintiffs case, that thv-re is no evidence against one of the defendants, it is within the discretion of the Judge whether he will then direct a verdict in such defendants favour, or wait till the whole evitlence in the cause closes (ParneU v. Oreat Western Railway Company, 34 L. T. 126). In such a case the action being for negligence the other defend- ant called witnesses, the effect of whoso evidence was to throw the blame on his co-defendant, and they were cross-examined by his counsel ; a verdict being found against this defendant and in favour of the other ; it was neld that these circumstances did not entitle the unsuccessful defendant to object to the verdict. (lb.). Where there are several distinct issues to be tried the Judge may without the consent of the parties accept the verdict of the jury upon those issues on which they agree and discharge them upon the others, leaving the parties if they think fit to take down the undecided issues to a new trial ; and the Court will give judgment on the decided issues, and has power to send down the undecided issues to a new trial (Marsh v. Isaaet, 45 L. J., 0. P. 505). Where a party is taken by surprise by a point made against him at the hearing, the Judge may, if he thinks right, at any stage of the trial aflow him to produce rebutting evidence ; and if such permission is refused the Court of Appeal wiU, in a proper case, permit the fresh evidence to be taken on the appeal {Bigsby v. Dickinson, 4 Ch. D. 24). In a suit for an injunction to restrain a nuisance caused by a chemical manufacturer, the plaintifiTs Counsel applied at the dose of hui speech for liberty to adduce evidence to explain (as I TAIAL. 2.^'.) the plftintiflTs witnesses hart had no opportunity of doing) certain eridence of the defondant's witnesses as to various vajmurs triiing from a material (asphalt) stated to be used in the niauu- fscture of varnish made hy the plaiiitiir, and to show that tho word asphalt had a tlouble meaning : — UfUl tliat the evidence ehould ho admitted {lb). A .Iiidge may at any period in a case allow further evidence to bocalli'd for his own satisfaction, l»y eitliur party, even tliough it is doubtful whether the party is entitliMl lo put in such evidence as of right (BuM v. Davimn, 'IS) \V. II. I9'J). After a judgment by consent has been passed and entered, it cannot afterwards ho varied on tiio ground of mistake, except for reasons sulHcieut to set aside an agreement (Attornen-Oeneral v. ToinUne, 7 Cli. D. 388). As to appeals in such ciisea, see a. 32, ante, and notes. Rnle* 267-269. wm^ 96 ^ 15. If, when an action is calloil on for trial, tho plain- Non-apiMM- tiff appeal's, ami tlio dofenilnnt ilo(;s not appear, then the *"?,", j^nt plaiiititT may prove his claim, so far as the burden of proof lies upon him. (K. Hup. C, 1875, Order 3G, 11. 18.) Heretofore, in actioub f ejoctmont, if the defendant did not appear at the trial, the plaintiff wau entitled to a verdict without any proof (U. '. O. c. 51,8. 32). Hereafter, ejectment suits will be ou the same footing in that res]>ect as otlier suits. In the cases dealt witii by this Rule, it does not appear neces- sary that the plaintiff should prove service of the notice of trial {Vkorllonv. Dickie, 13 Ch. I). lOO). Tliis is in accordance with the practice at Law. There had been a previous decision by Fry, J., tlie other way (Cockuhott v. London Geneml Cab Co., 26 W. R. 31, W. N. 1877, p. 214). 16. If, when an action is called on for trial, the defend- Non-appear- ant appears, and the plaintiff doe.s not appear, the defend- j"^j®,°', ant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter- claim he may prove such claim so far as the burden of proof lies upon him. (R. Sup. C, 1875, Order 36, R. 19.) Same as the English Rule. In such case the defendant is entitled to judgment dismissing the action with costs (J-Jklridge v. Bnnjesa, 7 Ch. D. 411). The defendant need not prove service of notice of trial on him {James 1. Crow, 7 Ch. D. 410 ; following Ex parte Lows, 7 Ch. D. IGO ; not following Cockle v. Joyce, 7 Ch. D. 56. See Charlton v. DkJck, 13 Ch. D. 160). But wher' notice of trial had been given by the plaintiff, and ho filed a liquidation petition, under which a trustee had been appointed, amino one appearetl at the trial for the plaintiff or trustee, proof of service of notice on the trustee was held to be necessary (Eldridge v. Burgess, 7 Ch. D. 411). The practice in England, where the plaintiff does not appear, is not to swear the jury, and any costs which the defendant may incur, by having the jury sworn in such case, the defendant may not be entitled to get taxed (Lane v. Eve,, \V. N. 1876, p. 86 ; see FarreU v. Wale, 36 L. T. 96). w\^ \m\\\\\\ sv\\my\m u4. !•<'»' PC Au vs\\\\^ A A mm wm M\ \Am u m\\ wm \\\ \ m^\\ ,\\v\\ .A fi\u, . \ .,v H» M\>^ \v\,\^\^' \mm H'liMM i -■ •, .v\\ v^u\\\\A\v v.\ \\\\* vMa \a my m , Mm, l\ \\ , ,, , ■ , ■;- ■. ^ \.\V . V* \\\ m mv\\\% W \A \\\ Ammrn^ \SK^rW\ ,vv w >\^^\ wyv\WM w^v^VWv^' \m4#V'Wi' \ mr^v: \%V\ jhWAXt m%\ v^^*^ "^Vy*- h^^\ M^'mK^\ yW^\ m\'m \-^ \VW\\\ t>»w^\|^ MyNs^'-VNt ^^ w'isHK^ov \s\{\\^- mw, 1te"^\*< V '^ %\\\ tW .1■v^^^v V><»,\V \^yyss*f »\\>* \uv\ ^^ i\M ^> ^%l^ li^v> ^«#s**t ^Vn »^^ '^x'** Wn^wt (^'(>>^v\vv\y>U \\usv H '*rili I ''•it H III Ml'\ ,l'"«(t"ft ifill" M'Jl'lH' l;|('> l|'./(/l/.(iMi/ (1*/ #M illlllti-ll (Ull Min .riili I'll I III'. W l'/H> lj(r> U'lillliltlif tilt mU} V'»^ ^i'l Hiiiji, ,( ., ;i!l,M« liiii. j,i.iiiin(f»j |:(/rt,i()l//)(/i,f(H, iiih \M\\\\m ijt.li It ||hti.il lit \uh '(I lllh (.,(ii,ii lisnitjijiihti III i ii> iw)i!i J/jt HHtiii i //ii'i iiidijHfk >^(\>''-'i tif ^ k»ii. |t|iiiii Mil. iiIhI mI* (III HH(l»(iii iiiH,Uiiian umt iii,mumihni .((li'i |iu- iii'il, ilKoi.i Hull |!).ifc>«iM(i \iH mi'ii^ii hiHi,fifK!(J:/;j^ ii| hllllt>l |Hllv. iH IHljiilMK liih M(ri(< tiil hHihhi NiiiH}(ii'j- ytmt<^f rtHiiii ii'Hiiiji II Miiii I'. iUu,,mH, ihfiih a, ti:"^'^""'^ W M.h Hl«. M •»ll'i ) ilin hiMlt'ilj Hull' liij.i Mih |iilJM,ti((M H/I||ili*( J/(/'l/**., tiilhit hiiiti i>i W iiiM'Im III M Iimm|» III Iij< Ifchi im (l(" jii.il fiimi\ luiii ni^a ht tin ImlHimtil Hti lli(> cHjn* ((I lli(. ^tihuiiinM iM\ (i|iiii(l('H iiiiilxt ||(« I'lMoll'th Mill*' l« «((|r«t'^i('U'(ll^ (>('■ *i^7^f* tw Hilt l(iili« jiiiiclili'M, i<«(-(i(i(, lli'd: (l(f. H'lhhhnhi )f« ^f/(f, thi^ulfi^A ht iiti hiiltiim.il 1^1 Itiii i'ii|tv Iff lix' yU^mUimu H * 't'l Till* mmIiI ltiil"(Ht.|(i»'(il, M( Mc /•/•f f il)/'nf.f^ ftin^ hfy tn llii' l''uiui Nit I / I, l(t A |»|i''(i'l(»Af» H '•nt1^l*^ ifim (MltudMl Till 1 1 (ill, M I'lijiy (if (,((f« tt'hi,n\ inhHWlun .»>» >«Mryii*<« ^/; M ♦ili'il, i"illi.il IliK uhl iiihii txi-iitii, wnt i\''ii"'[ih"i w,*}t fch*^ 'M^t-ff 'i'i '! I ■M r. H 262 278-278. 47 « Trial boforo leforee. •4»r I'liici'ecliugs at trial be- li)re referee. 47 $« Hfforoe has .luthority of .1 lulge. ONTARIO JUDICATURE ACT, 1881. showing tho result of the trial, and delivered to the successful party as soun as he Wiia entitled to sign judgment. The pDssna- sion of the postoa provjd his right to iudunicnt, and was the warrant to tiio proper officer to enter the judgment. There is now to 1)0 no ««,s» prius record ; a certified co[»y of the ple-uliugi for the use of tho Judge, is under llule 262, to l»o deiwsitcd on entering the action for trial ; and the certificate provided hy the new Rules takes the place of the postea. In (Chancery, there was no nisi ]>rius record, and no copy of the plean of documonts before referee, see Daumllier v, Myers, W. N., 1881, p. 69. 26. Nothing in those RiiIeB contained shall authorize any referee to commit any person to prison or to enforce any order by attachment or otherwise. (R. Sup. C, 1875, Order 36, R. 33.) Identical with the English Rule. 27. The referee may, before the conclusion of any trial before liim, or by his report under the reference made to liim, submit any (piestion arising therein for the decision of the Court, or state any facts specially with power to the Coiirt to draw inferences therefrom, and in any such case the order to be made on such submission or statement sliall be entered as the Court may direct. (R. Sup. C, 1875, Order 36, R. 34 as amended by R. Sup. C, March, 1879, R. 5 ; R. S. O., c. 50, s. 211.) Identical with the first part of English Rule 34 referred to. 28. The Court shall have power to require any expla- nations or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration, to the same or any other referee ; or the Court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence, as the Court may direct. (R. Sup. C, 1875, Ordei 36, R. 34.) Corresponds with the efifect of the English Rule referred to. The powers given by these Rules are more extensive than those conferred by the C. L. P. Act, sec. 211, which simply enabled an arbitrator to state his award aa to the whole or any part thereof, in the form of a special case for the opinion of the Court. And the Court could only deal with the case as stated. Under this Rule the Court may require of the referee explanations or reasons, or send the matter back for re-trial or reconsideration, and to another referee if it thinks fit ; or may itself decide the question on the same evidence, or with additional evidence. Where a referee has made a report, it has been held in Eng- land that an application to show cause why the issues should not be remitted to him for further consideration, should be with- in the time limited for moving against the verdict of a jury (Sullivan v. Hivington, 28 W. R. 372). Here a notice of motion is substituted for a rule or summons (Rules 404, 412). BnlM 278-281. 47f» But not to oominit to prison. Referee tri»y BubmitqucH- tiona to the Court. Court may remit oaae, or decide on evidence taken. 2»)4 Rale 882. ONTARIO JUDICATURE ACT, 1881. ORDER XXXII. H .,„j EVIDKNCK GENKRALLY. Kviiionno on i_ Jn tho ubsonco of any ajjrocmont between the parties, iction, and subject to those Itulos, tho wituoasos at the trial of any action or at any aaaessmont of damages, sljall bo ex- amined viva voce and in open Court, l)ut tho Court or a Judge may at any time for suHicient reason order that any particuhir fact or facts may bo proved l)y affi- davit, or that the affidavit of any witness may be road at the hearing or trial, on such conditions as the Court or Judge may think reasonable, or that any witness whose attentlanco in Court ought for some sufHcieut cause to he dispensed with, be examined before an examiner ; pro- vided that where it appears to the Court or Judge that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be pro- duced, an order shall not be made authorizing tho evi- dence of such witness to be given by affidavit. (Comp. K. Sup. C, 1875, Order 37, K. 1 ; G. O. Chy., No. 176.) The ICnglish Uulo proviilos for tho oxaniiuing by intorrogatories, or otlierwist), of a witness whose attondanco is diaponsod with. Tho Rules are otlierwiso the same. Tho authority to permit tho use of alfiilavita at a trial is new, so far as relates to Common Law (Courts. In Chancery, exhibits might formerly be proved at the hearing in that way. See also Chy. U. O. 176. The consent to take evidence by affidavit must be a formal written consent, and not one to be gathered from a correspondence l>etwcen tho parties (New Westminster Brewery Co. v. Hannah, 1 Ch. D. 278) ; and m.ay bo given by guardian ad litem {Knatch- bull v. Fowle, 1 Ch. D. 004). The guardian of an infant may decline the responsibility of consenting or refusing to consent to tho use of amdavits, and leave the Court to motion, or petition. 3HI AfndavitH how framed. Deposition!! Ill m m 266 ONTARIO JUDICATURE ACT, 1881. Bnlei 286.287. ' ) i .1 1 to give such deposition in evidence therein, on such terms, if any, as the Court or Judge may direct. (R. Sup. C, 1875, Order 37, R. 4; G. O. Chy., Nos. 266-269.) Identical with the English Rule. Where a necessary witness is going abroad, (or is from illness, age, or other infirmity, likely to be unable to attend the trial, an order will be made tinder this Rule for his examination before an officer of the Court in the presence of both parties. A Hke order will be made wherever it appears to the Court necessary for the purposes of justice ( Warner v. Moaaes, 16 Oh. D. 100, C. A. ) In The M. Moxham, 1 P. D. 115, a commission to take evidence in Spain as to the law of Spain, was refused, as it was not shown that competent Spanish advocates could not attend the trial with- out difficulty, and in tlie opinion of the Judge it would, under the circumstances, be more satisfactory to have the witnesses ex- amined in Court. The examiners office in England is not a public court, which any person may enter. By Imp. Act, 15 and 16 Vict. c. 86, an ex- amination was to be held in the presence of parties, their counsel, solicitors, or agents ; that was neld to mean that all other per- sons are excluded (/j^t Jessel, M. R., in Re Western of Cc ■ada Oil Com}Htmj, 25 W. R. 787). See, as to excluding partie who are to be witnesses, Sicveivright v. Sievewrwjht, 8 Pr. R. 80. Leave to cross-examine garnishees was refused by Lindley, J., in Storer v. Simmons, W. N., 1876, p. 40. ^e Rules 283, 373. Notice of motion. 98r CommiRsion to whom directed. ORDER XXXIII. COMMISSIONS TO EXAMINE WITNESSES. (See Rules of April, 1880, Form H, 30.) This Order is new. The English form of the order for a com- mission, as well as the form in use in this Province give in sub- stance directions similar to those contained in this Order. But this Order renders the long form unnecessary. The form to be henceforward used is given in the Appendix, No. 129. 1. Upon an application for a commission to take evidence, the applicant is in the notice of motion state the name of the commissioner to whom he ;i3R. i the commission to be issued ; and where the oppopiw party desires to name another commissioner, he is, ou the return of the motion, to give notice to the applicant of the name of any other commissioner. 2. Upon the hearing of the motion the Court or Judge (or officer before whom the motion is made) may order the issue of the commission directed to the persons so named or to such other person or persons as may seem proper. EVIDENCE BY COMMISSION. 267 3. The order or certificate for the issue of a commis- sion is to state the name of the commissioner to whom it is to bo directed and wiiothor the examination of witnesses thereunder is to bo taken u)>on oral questions or upon written interrogatories, and also whether or not notice of the execution thereof is to bo given to the opposite party ; and in case notice is to bo so given, then the name and the adth'css of the person on whom such notice is to bo served are to be stated in the order. (G. 0. Chy. No. 221.) 4. The examination of witnesses under a commission ia to be taken upon written interrogatories, and upon such oral questions lus may be put by either party upon the subject matter of such interrogatories, or arising out of the answers thereto; or in ease all parties consent, the examination may 1)0 had altogether upon oral (juestions. But all oral questions shall be reduced into wi-iting and with the answers thereto returned with the commission. 5. Where the examination is to take place upon written interrogatories, the interrogatories in chief are to bo delivered to the oj)posite party (unless otherwise ordered) at least eight days before the issue of the com- mission; and the cross-interrogatories are to be delivered to the opposite party (unless otherwise ordered) within four days after the receipt of the interrogatories in chief; and in default of cross-interrogat )ries being so delivered, the opposite party may send the commission without cross-interrogatories. 6. Au examination may be executed ex parte, unless the opposite party shall, upon the hearing of the applica- tion for the order cr Master's certificate for the issue of the commission, require notice of the execution of the com- niiasion, and give the name and place of abode of some person resident within two miles of the place where the ccmmission is to be executed, upon whom notice may be served. 7. Where notice of the execution of the commission is required to be served, forty-eight hours notice shall be sufficient ; such notice is to be in writing, stating the time and place of the intended examination, and is to be addressed to the peraon named for that purpose in the order or certificate for the issue of the commission ; and service upon him, or upon a grown up person, at the address stated in the order or Master's certificate, shall be sufficient. If the name or address stated in such Bales 288-292 Particulars tn bo stated In order. 480 Mode (if examination Examination on written interroga- tories. Examination ex parte. Notice of execution of commis- sions. If >ll 1 1 268 Snlea 292-297. '403 ('opies of fviflenoe. 494 Oath of witnuss. 499 P^xamina- tioii through ail inter- preter. 49tf Depositions to be signed. 497 Keturii of i^oniniission and use thereof as tividenoe. ONTARIO JUDICATURE ACT, lf.81. order or certificate shall prove to be illusory or fictitions, or if the party so notified shall fail to attend, pursuant to the notice, the commission may be executed ex parte. 8. 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 there- from, certified by the commissioners or commissioner j)resent to be a true and correct copy or extract, shall be annexed to the witnesses' deposition, 9. Every witness to be examined under the commission shall be examined on oath, affirmation, or otherwise iu accordance with his religion, by or before the said com- missioners or commissioner. 10. 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 commissionerp or commissioner, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to inter2)ret the questions to be put to the witness or witnesses, and his and their answers thereto. 11. 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. 12. 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 Judge or officer, on or before such day as may be ordered in that behalf, enclosed in a cover under the seal or seals of the said commissioners or com- missioner, and office copies thereof may be given in evidence, on the trial of the action, by and on behalf of the said parties 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 party, as to his belief of such absence. EVIDENCE BY AFFIDAVIT. 209 13. Where, upon the application for a commission to take evidence, the opposite party shall desire to join in the commission and examine witnesses on his own behalf thereunder, or shall name a commissioner, each party is to pay the costs of the commission consequent upon the examination of his witnesses and the appointment ^f his commissioner, without prejudice to the question by whom such costs are ultimately to be borne : and if for any reason the commissioner named by either party shall refuse to act in the execution of the commission upon receiving forty-eight hours notice in writing from the other of them so to do, the coiiimission may be executed by the commissioner giving such notice alone. 14. The trial of the action shall be stayed until the retiu-n of the commission. 15. Every order for a commission shall be read as if it contained the above particulars, and shall not set forth the same, but may contain any variations therefrom, and any other directions, which the Court or Judge shall see fit to make. Rnles 298-SOl. CoRta. SUy of action. OrdiT for coniiiiissioii ti) lie mid aa iiu'luiliiig above jiar- ticulnrs. ORDER XXXIV. EVIDENCE BY AFFIDAVIT. »oi 1. In case the parties in any action consent to the ^'»n ♦■" ^'^ evidence being taken by affidavit as between the plain- pialnti'tT. tiff and the defendant, the plaintiff within fourteen days after such consent has been given, or within such time as the parties may agree upon, or a Judge in Chambers may allow, shall file his affidavits and deliver to the defendant or his solicitor a list thereof (R. Sup. C. 1875, Order 38, R. 1.) Same in effect as the English Rule. The consent must be in writing (Neto Westminster Brewery Co. V. Hannah, 1 Ch. D. 278) ; and may be given by the guardian ad litem of an infant (KnatchhuU v. Fowle, 1 Ch. D. 604, and see further, note to Rule 282). As to affidavits in an English suit sworn before a Jiige de Paix, iu Belgium, (see Kevan v. Crawford, 45 L. J. Ch. 658). It has been held in England that affidavits in reply may bring forward additional evidence in support of the original case, ami one not restricted by this Rule, or Rule 303, to the point raised by the defendant's evidence (Peacock v. Harper, 7 Ch. D. 648 ; 26 W. R. 109 ; see note to Rule 303). Where the parties to an action agree under this order to take the evidence by affidavit, and either party subsequently finds himself unable to procure affidavit evidence either by reason of 270 RalM 301-^04. WtiPii to lio tll«' Ity motion AjipLoaiidn, calling on the opitosito party to show cauHo at tiie expira- tion of eij^ht days from tin; dato of tlio ordor, or so soon after as tho case can bo hoard, why anew triiil should not be directod. (11. Sup. C, March, ISTJ, K. G.) Thu Kngliah lUilo is to tho sauio oflfuct. 3. Tho application rduUl bo machf within tho first four (lays of tho sittings of tho Divisional Court, for hearing such applications which may take phico noxt aft(!r tho trial. (Oomp. 11. Sup. C, Doc, 187G, R. (J ; II. Sup. C, March, 1879, R. 6; R. S. O., c. 50, ss. 284-280.) (a) In case tho decision of a question rai.sod at thoji^pj^ trial is reserved, and is not given until the sittings aforo-'uove said, by tho Judge reserving tho same, all motions respecting the ti'ial sliall bo made within ten days after the day on which tho decision is given, if so many days expire in such sitting.s, and if not, thou within tho iir.st four days of the ensuing sittings ; and until the time for moving as aforesaid has expired, judgment shall not be signed, unless the Judge wlio tried tho action certifies in the manner hereinafter provided. (R. S. O., c. 50, s. 2S5.) This is to tho same effect as the provision of the C. L. P. Act referred to, save in mentioning "sittings" instead of "term" (see Rule 480, post). (b) In case of a trial during the sittings of a Divisional Court, all motions respecting the same shall bo made within six days after the day on which the verdict is rendered, if .so many days expire in such sittings, and if not, then within the first four days of the ensuing sittings ; and until the time for moving as aforesaid has expired, judgment shall not be signed, unless the Judge who tried the action certifies under his hand, that in his opinion execution ought to issue in such action forthwith, or at some day to be named in such certificate, and subject or not to any condition or qualification. (R. S. 0., c. 50, B. 286.) This is to the same eflFect as the provision of the C. L. P. Act referred to, save in mentioning "sittings" instead of "term," and with this addition — " except that the certificate is required to be on the back of the record." 18 mmw till •^»\ V,.AV ,11 a 0«tA««i4 .M'tM»'M«'IMi' Art. |MM| i\\V(M-< rt tb'« <-«*;tl !»n ^( »M(i' lli'li'Mil'Mll M K l>nMl illol Ut li((i|i I It.. jvuiy «iilu<\ n» il'»\>< HtMu till' lituc kI iI«i' Miiiui' lii'itij) A V <^«*\\ U\:\\ ^A\\\\ i\i»l lii> timnli'il iii\ lIu' utminil nl ^U^x^lt^l'rhon iM 1*1 (l\i> ilUpiOpPt mllUi'i'iiiin i«t li'|i'rlin|| nl rt|*|^U»vUyon ii »\t»(l<> m*»u>"<»(i*'yi»l>\ >M'>'f«'il \\\ iln' IiImI nl lIu-nilinKi \\\\\\ \\' \i iHNpoiW »»» BM»* ;\1i jmvi o|\l\ ol (lir IIimHi'I in imuiI i n\ imv, tl\i* \\MUt \\\:S\ i^*\i>l\\iiil jiiiluiui'nl H'« li* |itul IIii'Ii'mI, .mhI ih\i*«'( n \»o\\ i\\t\\ i\« (»\ ilic oiIh'i )>iMl ptilv. ^li Mii|i \\\\''\\\\\^<\\ \\\i\\ t>\»> Knnlioh )\nli* ^\^V^^^^>I^\ rt »U\ail\lT\(liMI l(\ IIU' .hlil().<' ill |inin| nl' i;vV, HI ♦ Uo HM^M>*)V('I .■«>i««oii 1*1 »i'|i'('i\<»ii ol i'\ iili'Kii' ill iiiiy lltiiti'iiiil mj^tt^'V, Wrto. n< l.i>\ , m\>nnii \\\\ rt (ivw liiril ii« i>l ti(ilil Till' \ N^W \N»\v<« \\^\\ only U\<* \io>\i>i <«i ylrtlil it lli'W liltil nl Itin i*»'t\i>^«x\MU\ \*(v M»»(^./ V H tt//.»iv, :irt I I" ;((U) Tliji «*V>'<>'»\\-\^ \>«"> rtU^^I>'«ll i>l .limlicn All ^I.^ < S \* <^ ,VV * >,''Mn, \\ |\i,-li .'onltiiiiiil ti i>ii>\ ixinii In lln' unnii' t^l\v\"l >'^» tlw ^^^^v^»>u^ \\i»li' (oi'i' .?.»»<■»«< V .WniMt, 14 I'll I' ll|'4 ; .*Hl!i'*li^Vv \ iV.^S.j'.'t ,1 W^fah M,.vA«M /nH,"tAH? » 'n . n 1,1 |l |t, mS), ,\ «V« t\'<>'»\ W tnllui'i'iiMn \f\^K^i \ Hr).7.t.v, ,'UN I r .'<(in, ivni nl (tin ill«.'.v\ni\ nl iii'« ••■Wx^onx^S \in\-t* \i \\;\i\ l><-nn (\>v<\ U ni i(m(n nnunlllniN n ( .IrtiVrwiM V ^^\i^tr%^^ :M'> \, V Tin U«t >H W»V i»«l>»K'*»\ti{»l m»i««\'*n trt,^>> i» rtlln(iv>l 111.' I. III. 1. 11 I" .111 * Mc\\ '«l «\.\\ lv> iM>lo\n niAlnix'tl jIh In .>iii> ili'loinl *«t \x;<)\\>li.l ;»« l>> .ni.illn'r (/'to m..'/ v «.' ^ o A n«^w i\\:\\ \\\i\\ l>o onionvl on !«i\\ »niiv>lion ni an A\MUNn. \>hrt *^»<'. 0»lov 'MK \\. I ; .w vh> A xiitMion lor A \u\» InxX h\ toivo nl Kiilo ;lVM. tlio Pivi- s.?xNVii»l iV>ul h** ^^^>*vr. »ho«i tho nirtti^naU t\w lu-l'on' il, to <*tvr A«»\thcT jxuigtucnt »m\ tho grxntml* that upoa tho litulings' MMtMiM (ftiM .h(t«.'M)i!Wt. *^1h (III' |im|«K(I'|(Ii r'ttl'h^»'\\\: wto >tih-ii"\ ttiM . f((f tPiiii'.K ttiii( '■ M iii'(t (tdii {ihii-hi V fi'i-ih; i lit ir 0) 'rii'> (lllifli.K ll In (llM |t|vlnliltlit( ('lll|t( If Mlfi(«« |l»« till (iM'lldW, Hr« iijiiiiilKI lii'iiiii iii'ii iiii(i.i( i/'Vo/v ir(/.(ii((, fj (';. !• !ih(i/ , (.» If (,lif. .IimIlii' ildi'i'l (III' )ii( V I" (liiil 11 I'l'ifnlii vi'iiih't' { i'fllt V (''imli't , lie !• I» IM7) .J,,, I Am iidlt'i (m iilitnv <'inii4« Nitiill (!(»(( mIiiv 'iC |ii(i«»i»«(| ^'"v "' lllKti III ( ||I« Ml'( llHI, Itllll'I't ll(l< I'lHIir "tll'lll Mdll'l (lull. If (ilmll llii( III- Mil l|i| (ii (lit' wIimI*' III iMiy |iM.f(^ III til*' f(i'(i'(M p I II iiii|. *' . I)'. /ft, HiiIm ;i!». Ii ft ; Miiitii' 111 liltM l'li'(ill>tli Miiltv •tit II (Ml llll< Miylllllt'lll. til' (III (i|il|.| (ii 'iIi'iW t'dll'io, (,l|/v ' "ii'io^l I'lMiiiHi'l III' (l(t< jiiitlv iiiMi(iiii I itiy lilt" ii|i|tli(ii(i(iti mIiiiII lr«> ,,,,,,1|,\,M,',;, iiiii, mill tiliiill mImIk liillv (lit. itidiMiih (iT (,lii^ ii|.|iliM((,i/(ti I" •"«'" I'l'' mill mIiiiII Iiiivx iliii ii'|ilj Ni'W, Wlii'ii' lilt' )t<(tMiiii fill lliK M|i|illi'tt((iiii l« «i(»((tl, Ml*' f»(1)(|nv(f,<« IIIIImIi b(||(|' IIim {illl||||l|« Iff ttll)|l»|q liy |||I> All. til liy (lnFlu lllllt'M ((. in" piiiv jili'il dm' iuiltiiiit'iil. Miiiy III' iililfiiMiitl ill (iny '»f.li»'.r ,'„' iniini'i'l, I lii> iiiil|.>iiit'iil. iiT ( ||i> ( !i ' I, mIimII In- 'iMiiint'l liy (iim III! jii'ltMiit'iil (II. Hlt(f. (.',, hV/fi, «»ft|. r I'), I!,. 1,(1 <• r '/Mat !!t|i \,:\. i|/)/i ), i^Hi |.|||. V il.'ll' Mil' l'lltM|lllllll(, (M (.(|M,(, llp'iM (.lltl Uu'.i.n liH IiiiiihI, llin .IimIjii'h Midi I'll 11 vvi mil/ jiiil(/i(i< III,, Ml will' Ii i-iiMn (III' Mill II 'i> (.11 1 '11 (it (III' I l|jli(. I III 1(1 III' ti(. tiiiiy (i(. ii.|i|i<>itf n) ((< (oii'lti (y» (III' Ihvlnliiiiiil < 'null. Ill ill Uin < !iiiitl, "f A|i|it'ftl {mr fdilti il\'l \ii\} Itiili'M 'I'.' Ill 71 |ii'iivlili< fill l.liK |iliiiii(.i(l 'n Hip;iiiii(/ fidJil \ui\i/iiit\tit wi(.liiiii(, Miiy iiiii(.iiiii wlii'i" (III' wii(. lu R|ii'i iiilly iii'I'ir -I' 'I lliiln '/It |iiiivii|iii(/ II ni'il.i'iii wli't'; ri't zip |iiiiii'iiiii'i' iM t. 32) ; or a non-suit directed (Ftty v. Wilson, 3 Ex. D. 359) ; or either refused (see London v. Roffey, 3 Q. B. D. 6 ; Dauis v, Godbehere, 4 Ex. D, 215). 3. Where, at or after the trial of an action before a Judge, the Judge has directed that any judgment be en- tered, any party may, without any leave reserved, apply to set aside such judgment and to enter any other judg- ^p MOTION FOE JUDGMENT. 277 ment, upon the ground that, upon the finding as entered, Bnles the judgment so directed is wrong. (R. Sup. C, 1876, 317,818. Rule 7, 2nd part.) Identical with the Enghsh Rule. (a) An application under this Rule may be to a Di- visional Court of the High Court or to the Court of Appeal. (R. Sup. C. Dec. 1876, R. 7, 2nd part.) (a) By the English Rule the application is to the Court of Appeal only {see sec. 37 of the Act ; and Rule 471 post). According to the practice of the Common Law Courts, unless leave were reserved by the Judge at the trial any party dis- satisfied with the trial could, under any circumstances, only move for a new trial ; never for a verdict or judgment. The above two Rules provide for the High Court a diiFerent practice in two instances. An issue agreed upon or raised by the plead- ings may be general in its terms ; for example, partnership or no partnership at a given time ; when the case is fully gone into it may be found that the question which the jury have really to determine is some smaller one ; as, for instance, the date of executing a deed ; having taken the opinion of the jury upon this last question, it may become the duty of the Judge to con- strue the deed, and direct the finding upon the issue to be entered accordingly ; and upon this finding the result of the cause may depend. Again, when all the issues have been found the Judge may direct judgment to be entered. In either of these cases, if the Judge is mistaken, his mistake may, under the above Rules, be corrected without leave reserved, and without a new trial. Where a Judge has directed judgment to be entered on an interpleader issue, an appeal lies to the Court of Appeal under this Uule ( Witt v. Parker, 25 W. R. 518 ; see Wilson v. Kerr, 18 U. C. Q B. 470). 31S 4. Where issues have been ordered to be tried, or After trial issues or questions of fact to be determined in any man- fact^"** ° ner [and there is no direction of a Court or Judge for the entry of judgment,] the plaintiff may set down the action on motion for judgment as soon as such issues or questions have been determined. If he does not so set it down, and give notice thereof to the other parties, when ten days after his right so to do has arisen, then after the expiration of such ten days any defendant may set down the action on motion for judgment, and give notice thereof to the other parties. (Comp. R. Sup. C, 1875, Order 40, R. 7.) The words in brackets are not in the English Rule, which is otherwise the same. The introduction of these words appear to make no ditference in the construction of the above Rule ; they are implied though not expressed in the English Rule. ■?y 278 Bales 319-321. :I19 After trial ■)f somo only of the issues of fact. 3H0 No motion after one year. Postpone- ment of motion by Court. ONTARIO JUDICATURE ACT, 1881. 5. Where issues have been ordered to be tried, or issues or questions of fact to be determined, in any manner, and some only of such issues or questions of fact have been tried or determined, any party who con- siders 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 de- termination thereof should be postponed, may apply to the Court or a Judge for leave to set down the action on motion for judgment, without waiting for such trial or determination. And the Court or Judge may, if satis- fied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable, as to post- poning the trial of th«^ other questions of fact. (R. Sup. C, 1875, Order 40, R. 8.) Identical with the English Hule. Where an order was taken, by the consent of the parties, to de- termine certain issues of fact in a manner which the .Judge after- wards held to be beyond the powers of the Court, Jessel, M. R., refused to proceed with the trial, on the grounds that any deci- sion founded upon this consent order, would not be binding upon the parties (Republic of Bolivia v. National Bol. Nav. Co., 24 W. K., 361). 6. No action shall, except by leave of the Court or a Judge, be set down on motion for judgment after the ex- piration of one year from the time when the party seek- ing to set down the same first became entitled so to do. (R. Sup. C, 1875, Order 40, R. 9.) Identical with the English Eule. 7. Upon a motion for judgment, or for a new trial, the Court may, if satisfied that it has before it all the ma- terials 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 shall be of opinion that it has not suflicient mateinals 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 determined, and such accounts and inquiries to be taken and made as it may think fit. (R. Sup. C, 1875, Order 40, R. 10.) Identical with the English Rule. See Hamilton v. Johnson, 5 Q. B. D., 263 j Milliasich v. Lloyds, 46 L. J., O. P. 404. MOTION FOR RELIEF ON ADMISSIONS. 27!) 8. Any party to an action may at any stage thereof Enle 322. apply to the Court or a Judge for such order as he may, jj.^ upon any admissions of fact in tlie pleadings [(«) or in Sinnin.iiy the examination of any other party] be entitled to ; [,',otioi"u,,on [(6) and it shall not be necessary to wait] for the deter- adniisHions mination of any other question between the parties (c) jlngs.* " [((/) or ho may so ap[)ly where the only evidence consists of documents and such affidavits as are necessary to prove their execution or identity without the necessity of any cross-examination ; or he may so apply wliere infants are concerned and evidence is necessary, so far only as they are concerned, for the purpose of proving facts which are not disputed.] (e) The foregoing Rules of tliis Order shall not apply to such ajjplications, and any such applica- tion may be made by motion as soon as the right of the party applying to the relief claimed has appeared from the pleadings. The Court or a J .Ige may, on any such application, give such relief, subject to such terms, if any, as such Court or Judge may think tit. ( /) (Comp. R. Sup. C, 1875, Order 40, R. 1 1 ; G. O. Chy.-, No. 270.) (a) The words here in brackets are not in the English Rule. (b) Instead ol" the words in brackets here, the English Order has the words "without waiting." (c) Where one defendant does not appear, or does not deliver a defence, and another delivers a defence on which the plaintiff's right to relief is admitted, the plaintiff may proceed agauist the latter under this rule, and against the former by default. (Re Smith'n Estate, Bridmn v. Smilh, 24 W. K. 3i)2 ; Parsons v. Harris, G Oh. D. G94). {(1) Tlie words here in brackets are not in the English Order, and are taken from Chy. O. Out. , No. 270. (e) What follows is identical with the latter part of the English Rule. (/) The object of this Rule is to enable a plaintiff or defendant to get rid of so much of the action as there is no controversy respecting. If the whole issue is not in controversy, cither party may be entitled to move on the admissions of the otlicr. { Thorp V. HoUhworth, 3 Oh. D. at p. 640.) It is in the discretion of the .Judge whether to give relief on the motion ; and the Court of Appeal will not review his discre- tion [Mellor V. Sklehottom, 5 Oh. D. 342). In the exercise of such discretion, parties are, as a matter of convenience, not allowed in England to make umlcr tiiis Rule applications which involve a serious (question of law t(j bo argued that might better be decided on demurrer or at the trial (per MeUish, L. J., in Gilbert v. Smith, 2 Ch. D. G86 ; Mi'Uor v. Side- bottom, 5 Ch. D. at p. 344) ; but the reasons may not apply here. The plaintiff claimed a charge upon certain bonds of a foreign state which were deposited in the bank to the credit of the cause. The defendants, in their answer, admitted the plaintiti'a' title, i \ b i Lliyiiiff 280 Rules 322-324. ;<43 I'l iiiliiig ap- )ili(Mtioa ttiiiii'il into iiiDtidu for ,jiiilj,'Miiiit or 1 It'll I'iiia of I'aiise. 344 Motion for judgment by leave after service of writ. ONTARIO JUDICATURE ACT, 1881. and an order was made liefore the hearing for the sale of the bonds ((^iuldiiKilon v. Jackmnville, Peimacola and Mobile Hallway Co., 3!) L. T. VI). Knlc 222 provides that "where, in any such action as men- tioned in the hist preceding Rule, there are several defendants, then, if one of such di'fendants makes such default as afore- said, the plaintill may either set down the action at once on motion for judgment against the defendant so making default, or may set it down .ngainst him at the time when it is entered for trial or set down on motion for judgment against the other defendants." A statement of defence was delivered in an action brought against a husband and wife upon a joint and several promissory note given by them ; the statement purported to be the defence of both, ))ut raised no defence as regarded tlie liusband : Held, upon motion for juilgment, tliat the jdaintifFs were entitled to final judgment Jigainst the husband without waiting for the de- termination of the case against the wife (Jenkins v. Davies, 1 Ch. D. ()9(>). Under this Rule in a partition action, .an inquiry was directed as to the persons interested in the property (Gilhart v. Smith, 2 Ch. D. G8G), and in Burnellv. Biirnell, 11 (!h. U. 213, an order for sale was made. An order was made for taking the accounts of partnership- dealings (Turqitniid v. iVilsoii, 1 Ch. D. 85). In Rwmsey v. Keade, 1 Ch. D. (i43, the agent of the trustees of a will was ordered to deliver up all securities relating to the tes- tator's estate, and to account for all sums received on behalf of the estate, for a dissolution of partnership. 9. Where it is made to appear to the Court or a Jiulge, on the hearing of any application whicli may be pending before the Court or Judge, that it will be conducive to the ends of justice to permit it, the Court or Judge may direct the application to 1)e turned into a motion for 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 may 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. (G. 0. Chy., No. 614.) Same in effect as the Chancery Order referred to. There is no corresponding English Rule. 10. Where at any time after the writ of summons has been issued it is made to appear to the Court or a Judge on an ex parte application that it will be conducive to the ends of justice to permit a notice of motion for a judgment to be forthwith served, the Court or Judge may order the same accordingly ; and when such per- ENTRY OP JUDGMENT. 281 give mission is granted, the Court or Judge is to directions, as to the service or the notice of motion and filing of the affi(hivits, as may be expedient. G. 0. Ch. No, 271, is to the same effect. There is no corres- ponding iluglish Rule. (a) Upon the hearing of such motion the Court may grant or njfuse tlie ai)plication or instead of either grant- ing 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 mav require, and upon such terms as to costs as the Court thinks right. (>See G. O. Chy. Nos. 271, 272.) The Chancery Order No. 272 is to the same effect. BnleB 324-327. ORDER XXXVII. ENTRY OF JUDGMENT. .'143 1. Every judgment shall be entered by the proper J'^ignic"*. officer in the book to be kept for the purpose. The forms in Api)endix (I) hereto may be used for entering judgments, with such variations as circumstances may lequire. (Comp. R. Sup. C, 1875, Order 41, R. 1 ; see R. S. O. c. 50, s. 302.) This Rule is identical v.'ith the first and third sentences of the English Rule. The intf.rmediate part of the English Rule provides for a copy of the pleadings being delivered to the officer by the party entering the judgment : thd English practice being that pleadings are not filed in the first instance, but simply delivered between the parties. The practice in this Province has l)een to file them ; and this is to be the practice here under the new system (Rule 150). ,,„-j 2. Whei'e any judgment is pronounced by the Court r^ate of or a Judge in Court, the entry of the judgment shall be ji'dgni^nt ° dated as of the day on which such judgment is pronounced iiroiiomioed and the judgment shall take effect from that date. (R. Sup. C, 1875, Order 41, R. 2.) Identical with the English Rule. :<-J7 3. In all cases not within the last preceding Rule, the Date of entry of judgment shall be dated as of the day on which other "aseu. the requisite documents are left with the proper officer for the purpose of 3uch entry, and the judgment shall take effect from that date. (R. Sup. C. 1875, Ord. 41, R. 3.) Identical with the English Rule. 282 ONTARIO JUDICATURE ACT, 1881. li Rales 328-331. Il ; „ ■ '9S :I4!» Kiitiy on iirdcr or I'crtiticate. Nori-siiit. 4. Whore, under the Act of these Rules, or otherwise, it is provided that any judgment may be entered or il'^w signed upon the tiling of any affidavit or production of 'ni'i^ it" t ^"^ document, the officer shall examine the affidavit or document produced, and if the same be regular and con- tain all that is by law required, ho shall enter judgment accordingly. (R. Sup. C, 1875, Order 41, R. 4.) Identical with the Englisli Rule. T). Where, by the Act or these Rules, or otherwise, any judgment may be entered pursuant to any order or certiticate, or return to any writ, the production of such order or certificate, sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accoi'dingly. (R. Sup. C, IBTT), Order 41, R. 5.) Identical with the English Rule. 6. Any judgment of non-suit, \inless the Court or a Judge otherwise directs, shall have the same effi^ct as a judgment upon the merits for the defendant (a), hut in any case of mistake, surprise, accident (b) [or otherwise], any judgment of non-suit may bo set aside on such terms, as to payment of costs and otherwise, as to the Court or a Judge shall seem just. (R. Sup. C, 1875, Order 41, R. 6 ; G. O. Chy., No. 184.) (a) Up to tliis point the Rule corresponds with the English Rule, and makes a material change in the previous practice at Law. Formerly, a judgment of non-suit lert a plaintifl" at law free to commence another action for the same cause. 'I'here was no such practice in Chancery. (6) The English Rule has not the words "or otherwise ;" this is the only difference between the above Rule and the correspond- ing part of the English Rules. The effect of this difference is, perhaps to give a somewhat greater discretion to the Court here than in England, as to setting aside a judgment of non-suit. ijouerai 7. Where a sale is ordered, the Master may cause the wh'e7ea'siiieP*'°P^^'^3'' •^^' '• ^°™P^^®'^* P^*^"^ thereof, to be sold either is ordered, by i)ublic auction, private contract, or tender, or part by one mode and part by another, as he may think best for the interest of all parties, and he may fix an upset price or reserved bidding, but such price or bidding must be so fixed at the meeting held by him for the purpose of settling the advertisement, and making the other arrange- ments preparatory to the sale, and must be notified in the conditions of sale. The Master is to settle all neces- sary conveyances for the purpose of carrying out the sale PROCEEDINGS WHERE SALE ORDERED. 283 in caso the parties differ, or in case there shall be any Bale 381. persona inidor any disability (other than coverture) in- terested in such sale. There is no corresponding English Rule. The Chancery Orders bearing on tlie subject of the present Rule will probably govern the practice in all the Divisions (mcp sections I'J ami i>2 of the Act ; Newhuii/in-hy-t/ic-Sen Oa.H Company v. ArmslroiKj, 13 Ch. 1). 310; La Grange v. Mc Andrew, 4 Q. H. D. 410; and Rule 4, ante). The Chancery Orders on the subject of sales are the following : "2)9. To enable the Master to exercise all or any of the Ch. Ord. 219. powers conferred upon him by, or to take the accounts and make the enquiries referred to, in the following Orders, it shall not be necessary that any of the matters therein mentioned, sliall have been stated in the pleadings, or that evidence thereof shall have been given before the order of reference, or that the order should contain any specific direction in respect thereof. "220. Under au order of reference, the Master shall have Ch. Ord. 220. power : 1. To take the accounts with rests or otherwise ; 2. To take account of rents and profits received, or which, but for wilful neglect or default, might have been re- ceived ; 3. To set occupation rent ; 4. To take into account necessary repairs, and lasting im- provements, and costs and other exjjenses properly mcurred otherwise, or claimed to be so ; 5. To make all just allowances ; 6. To report special circumstances ; 7. And generally, in taking the accounts, to inquire, adjudge, and report as to all matters relating thereto, as fully as if the same had been specially referred." "374. Where a sale is to take place under an order of the Ch. Ord. 374. Court, no copy of the order, or any part thereof, is to be brought into Chambers, or the Master's office, but the original order is to be used, unless the Judge or Master requires a copy. " 375. An appointment or warrant in respect of the sale is to Ch.Ord. 375- be obtained from the Judge or Master, and served upon all necessary parties. "376. At the time appointed thereby, the party having the oh. Ord. 376 conduct of the sale, is to bring into Chaml)ers, or the Master's office, a draft advertisement, but no particulars or conditions of sale, or any draft or copy thereof. " 377. The advertisement is to contain the following particu- Ch Ord. 377. lars : 1. The short style of cause ; 2. That the sale is in pursuance of an order of the Court. 3. The time and place of sale ; 4. A short and true description of the property to be sold ; 5. The manner in which the property is to be sold, whether in one lot or several, and if in several, in how many, and what lots ; n 2^4 ONTARIO JUDICATURE ACT, 1881. Rale 331. ^- WImt proportion of tlio purchase money ia to ho paid down hy way of deposit, and at what time or times, and whotlusr the residue of such purchase money is to i)o paid with or without interest. 7. Any particulars in which the proposed conditions of sale difl'er from the standing conditions. (.'Ii. Ord. 378. " 378. At the time named in the appointment or warrant, the .Tu(l>,'e or Master is to settle tiie advertisement ; tt) lix the time and jdace of sale ; to name an auctioneer, where one is to ho employed ; and to make every other necessary arrangement pre- paratory to the sale, so that nothing may remain to he done but to insert the advertisenuint ; an7th Order this aOOth Order is to apply to all cases of reference to tho Master as to title, aa well ua to aalea by the Court. Ch. Ord. 301. "JWl. Tho Master is to determine all questions upon the abstract and the sutliciency thereof ; and, if desired by the pur- chaser, may recjuire the vendor to make the same aa perfect as he can ; and if tho vendor neglects or refuses to do so, he may permit tho purchaser to supply defects therein, at the vendor's expense. Ch. Ord. 302. "392. Tho Master is not to make a report on the abstract, but is to mark the objectitms as aUowcd or disallowed, as the case may be ; and when he iiuds the abstract perfect, or as perfect aa the venclor can make it, he is to certify to tliat effect at the foot or on the back ; and such finding is to lie linal unless appealed from within fourteen days thereafter. Ch. Ord. 393. "39^1 After an abstract is confirmed, or is accepted by the purchaser as sutiicient, no objection to the abstract is to be allowed. Ch. Ord. 304. "394. After acceptance or confirmation of the abstract, the verification is to be proceeded with, and the vendor is with all dilligence to afford the purchaser all the means of verification in his power, in the manner, and according to the practice usual with conveyancers ; and after having done so, he may serve a notice on the purchaser to make his objections or requisitions, if any, within seven days, or that otherwise he will be deemed to have accepted the title. Ch.|Ord.305. "395. Upon being served with such notice, the purchaser, if dissatisfied, is to serve his objections or requisitions within the time thereby limited ; and the like course is to be followed upon such objections or requisitions as is prescribed by Orders 390, 391, and 392, in relation to the abstract. Ch. Ord. 300. " 396. In case of the refusal or neglect of the vendor to verify any portion of the abstract to the best of his ability, or to furnish any necessary proof or documents in his power, the Master may authorize the purchaser to do so at the vendor's expense. Ch. Ord. 307. "397. The foregoing Orders, 390, 391, 392, 393, 394, 395 and 396, are to apply to all cases of reference to the Master as to title, as well as to sales by the Court." Ch. Ord. 441. "441. Decrees for foreclosure or sale, where a reference is required, are, after the proper recitals hitherto in use, to directs in general terms, that all necessary inquiries be made, account. PROCERDIKOS WHERE SALE ORDERED. '2H'i taken, coatH tnxud, and procccdingu liiid for redumption or fore- Rale 331. cltmuro (orfor nMluinptioMor Hiilo (rt.t thrnisf maij he), and that for thuHe purpost'H tho cauHd in roforrtid to {muniinj llif M(tio fcm! and constnicd an if tliu Haino SL't forth thu particulai'H contaii I In tliu nuxt thirti^ii Orders. " 44'2. Upon Huch rcfurencc tho Master is to in(|uirc and statf, ch. Ord 44? whether any person or persons, and wim, other than the iilaintiil', has or have any lien, oliargu, or incuni)>rance upon thu lanrance upon the said estate, and 1 have therefore caused you each to be made a party to this suit, and appointed the day of , at o'clock in the noon, for you to appear bufore me, at my Chambers at , either in person or by your solicitor, to prove your claims. "Now you are hereby required to take notice : 1st. That if you wish to apply to discharge my order making you a party, or to add to, vary, or set aside the decree, you must do so within fourteen days from the service hereof ; and if you fail to do so, you will be bound by the decree, and the further proceedings in this cause as if you were originally made a party to thu suit. 2nd. That if you fail to attend at the time and place appointed, y(ju will be treated as disclaiming all interest in the lan^l in (juestion, and it will be dealt with as if you had no claim thereon, and your claim will be in fact foreclosed. "W. L., Master. "To "445. Any party served with a notice under Order 444 may (;j, q,j 445 apply to the Court at any time within fourteen days from the date of the service, to discharge the order making him a party, or to add to, vary, or set aside the decree. 288 ONTAKIO JUDICATURE ACT, 1881. RnlM " '^'^fi- The Master, before ho proceeds to hear and determine, 331-334. '^ *" require an appointment to the eflFoot set forth in Seheduhs T to be served upon incuiul)raneera made parties l)oforo tlie hoar- ''''•^''^•'*'**'- ing, whether the bill has been taken 2"'o cow/fwo against such persons or not." The appointment referred to is the following : * Appointment, Servku Under Ohdbr 446. ' ' In Chancery. " Between A. B., Plaintiff, and "C. J>., Defendant. " Having been directed by the decree to tliis cause, dated the day of , to enijuire whether any person otlier than the plaintiir lias any lien, cliarge or in(uunl)iance upon the lauds in the pleadings mentioned, being (in-iert (h'Hcnpt'mn of land), I do hereby appoint the day of nu.\t, at o'clock, in tiie noon, at my Chambers at , to proceed with tlie said enqiruic . " And you are hereby reipiired to take notice : " 'riiat if you fail to attend at the time and place appointed, you will ))e treated as disclaiming all interest in tlie land (pies, lion, and it will be dealt witli as if you had no claim thereon, and j'our claim will be in fact foreclosed. "W. L., Milder ." 8. Upon a roferenco under a judgment for redemption, take account t,]ie Miistor is, witliout any siiecial direction, to take an in red('iin)- <• i • i i i c i • • • i account ot what is due to the d(!iendaut for principal money and interest, and is to ta.x; to him his costs, and also appoint a time and phice or times and places for jiay- ment according to the preseut practice of the Court in that behalf. There is no corresponding Ei-glish Rule. For the analagous practice in Chancery, see G. O. Chy. No. 2l20, 441 to 445, printed in notes to liule 331. Master to tfi)n HUita. Ordor on 'iofault. 9. In a redemption suit, in default of payment being made according to the report, tlie defendant is to be en- titled on an ex parte application in Chambers to a linal order of foreclosure against the phiiritilf, or to an order dismissing tlie bill with costs to be paid, by the plaintiff to tlie defendant, forthwith iifter taxation thereof. There is no corresponding English Rule. 10. Ill a redemption suit where the plaintiff is declared where plain- foreclosed, directions luiiy be ijriven, either by the final tit! ui " V . "^ rediimption order foreclosing tlie plaintiff, or by subsequent orders, foreclosed. ^'"^^ "'^^ necessary inquiries to be made, accounts taken, and proceedings had for redemption or foreclosure, or re- demption or sale, as against any subsequent incumbrancers, or for the adjustment of the relative rights and liabilities :t:<4 Directions PROCEEDINGS FOR ilEDEMPTlON, FORECLOSURE, ETC, 28 pasHinj,' of tlic said Act. (Oom[). li Sup. C, Order 4'J, R. 1.) ' Insteatl of the words in hrackcta, the Eiij^lish Hulo lias the M'ortls, "Court wlioso jurisdiction li.as been tranufcrrod by tho same Act." The lUilos arc otlicrwisu the same. K. S. 0. c. (5(5, 8. 7'2, jirovidca the mode of enforcing a decree, rule, or order for the payment of money, a.s follow s ; Kov. Stat. "7'-- Eor the purpose of enforcing payment of any money or c. 00, 8. 72. of any costs, charges or expenses payable by any ilecreo or order of the Court of ('iiancery, or any rule or order of thi; Courts of Queen's Bench or Common I'leas, or any rule or order of a County Court, the person to receive payment shall be en- titletl to writs of Jicri /(witts and iriKlifioui r.ty^oHa.'* respectively, against the property of the person to pay, and shall also l)e en- titled to attach and enforce payment of the debts of or accruing to the ])erson to pay, in the same manner respectively, and sub- ject to the same rules as nearly as may be, as in the case of a judgment at law in a civil action. "(2) Such writs shall have the like ellect as nearly as may be, and the ('ourts ami Judges shall have the same powers and duties in respect to the same and in respect to |tho proceedings under the same, and the i)arties and Sherilf respectively shall liave the same rij^hts and remedies in respect thereof, and the writs sliall be executed in the same manner and sui)ject to the sanu; comli- tions, as nearly as may be, as in the case of like writs iii other cases ; but subject to such (Jcneral llules and Orders vary- ing or otherwise atrecting the practice in regard to the saiil matters, as the Courts respectively may from time to time make under their authority in that behalf. "(.S) In case a decree or order in Chancery directs the i)aymcnt of money into Court, or to the credit of any cause, or other- wise than to any person, the person having the carriage of the decree or order, so far as relates to such payment, shall be deemed the person to receive payment within the meaning of the two preceding sub-sections." R. S. C, c. 66, s. 73, makes tlie following provision as to writs of sequestration. Rev. Stat. " 73. The Court of Chancery may also issue writs of seques- c. 6C, .s. 73. tration as hitherto, or in such cases as by (jleueral or other Orders the Court may think expedient ; and nothing in this Act or in The Act respecting Arrest and ImprisDiiment for .Oebt, shall be construed to take away the jurisdiction of the Court, under or by means of such writs." The following are the Chancery Orders on same subject : Ch.Ord.291. "291. If a party who is ordered to pay money, neglects to obey the order according to the exigency thereof, the party i to any money. i'.ufoiTCll on\p. K. > liaa tlic 0(1 by thii ; a tlocrcc, money or (U'croc or ler of thi! Ic or ortler hall be eu- H|)octivcly, also 1)0 en- .)r accruing I, and sub- 10 case of ii I as may be, iiul duties iugs uniler . liave tbu vrits shall inu! coiiili- writs III kn-s vary the saiil time make to he payment e, or otber- riagc of the it, shall be aning of the irision as to „ of sequcs- al or other ill this Act ■ nebt, shall lourt, umler Ibject EXECUTION. «>( »1 III to eglects the party firosecutlnp the onlor, may, at the; oxpiratioii of tho time limited Rules itr tlio iii'i'foi'manco tliercof, a|)i)ly in (JhaniburH for a writ of 339.341. Bciiucstratioii against tbi; ficfauitiiig party, nnil iipoii ])r()of of ihiu sorvioc of a iiotKiu of tiio motion, unb'ss tin; ( iourt tbiiiUs proper to (lispenai! witli sutili Horvico, and upon protjf by allidavifc of auob otiicr matters, if any, as tlio ( !ourt r(!([nires, tlie ("oui't may order a writ of HciiucHtration to issue." (I'y I!. Sup. ('., I.S7-"), Order 17 (not ado[itcd iicre), tbo writ in |■]ll^daMd m;iy issue witiiout order). For tho stops to l)c taken before resorting to a writ of sei|ues- tration, sou NcI.idh v. NcUdu, (5 i'r. II. I!>t ; l^nini v. Linni, C> I'r. II. VM. .SVr also Ex. p. Nchun, lie H»(in; 14 ('b. J». li. " '2!t2. (Commissions of Hi'(|U('stration aro to be directed to the Ch Onl. 29'.;. Siu'rill', unlos.s otlierwi.so ortlerole in respect to tlie same ( Willnx-k v. 7V/vr//, .s 10.x. I). ;ii>;{). /V creditor, who iiad roeovcsred jndgnu'iit in an action in the Chancery Division for payment of a sum of money, sued out an cU'ijit against bis delitor, wliose only interest in land was an ctpiity of redem[»tion ii\ fee. Tbc ere.liof. ONTAKIO JUDICATURE ACT, 1881. 4. A judgment for the recovery of any property other than hintl or money may be enforced : By writ for delivery of the property : By writ of attaclunent : By writ of HoqiKvstration. (R. Sup, C, 1875, Order 42, R. 4.) Identical with the English Rule. In Irury v. Cmikshnnk, W. N. 1875, p. 249, 1 Charl. Ch. Ca. 123, an action for rent and for the return of specific goods, judgment having been signed for the amount of rent in default of appear- ance, the plaintitf was allowed to sign judgment also for the return of the specific goods, and to then jiroceed under the pres- ent Uule as he might be advised liy writ of delivery, attachment or se(piestration. In BaltUy v. Scars (Times, 7th March, 1876, cited Charley's Jud. Act, ,3rd Ed. p. 6()!)), it is stated that a rule «j.si for an attachment under this Rule was granted agjvinst a defendant for refusing to give up a diamond ring or pay for it, execution having proved futile, as the defendant was a married woman. For Execution .against Municipal Corporations, see Rev. Stat., 0. 174, 88. 408 and 409. 5. A judgment 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 attachment, or by committal, (R. Sup. C, 1875, Order 42, R, 5.) Identical with the English Rule. On a notice of motion to commit the defend.ant, Malins, V, C, ordered a writ of attachment to issue against him (Piper v. Piper, W. N. 187G, p. 202). 6. In these Rules the term " writ of execution " shall include writs oi fieri facias, capias, \a\ sequestration, and .attaclinient, and all subsequent writs that may issue for giving effect thereto. And the expression " issuing exe- cution against any party " shall mean the issuing of any such ])rocess against his })erson or property as under the preceding Rules of this Order shall be applicable to the case. (R. Sup. C. 1875, Order 42, R. 6.; (a) The English Rule has here the additional word *' elegit" The Rules otherwise correspond. 7. Wliere a judgment is to the effect that any party is entitled to any relief subject to or iipon 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 en- titled to relief, apply to the Court or a Judge for leave to issue execution against such party. And the Court or Judge may, if satisfied that the right to relief has arisen EXECUTION. 21)3 other 1875, Ca. 123, ulgment appuar- for the Dhc pres- achment ^.h, 1876, lat a rule igainst a .ay for it, 1 married ev. Stat., any act ;ain from achment, 11.5.) ins, V. C, ;r V. Pipfr, Id "elegit" acoording to the terms of the judgment, order tliat execn- Rales tion issue accordingly, or may direct that any issue or 845-347. question necessary for the determination of tlio rights of tlie parties V)o tried in any of the ways in which questions arising in an action may be tried. (R. Suj). C., 1875, Order 42, R. 7.) Identical with the English Rule. 8. Where a judgment is against partners in the name Judgment of the firm, execution may issue in manner following : partnew. (a) Against any property of the partners as such ; {b) Against any person who has admitted on the pleadings that he is, or has been adjudged to be a partner ; (c) Against any person who has been served, as a part- ner, with the writ of summons, and has failed to appear. If the party who lias obtained judgment claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Coui"t or a Judge for leave so to do ; and the Cinirt or Judge may give such leave if the liability be not disputed, or if such liability be 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. (R. Sup. C. 1875, Order 42, R. 8; see Rule 57.) Identical with the English Uule. 347 9. No writ of execution shall be issued without the pr^dp^ for party issuing it, or his solicitor, filing a jn'cecipe for that writ. purpose. The prwcipe shall contain the title of the action (a) the date of the judgment, and of the order, if any, directing the execution to be issued, the names of the parties against vvhom, or of the firms against whoso goods, the execution is to be issued ; and shall bo signed by or on behalf of the solicitor of the [)arty is.suing it, or by the party issuing it if he do so in [)er.son. The forms in Appendix (E) hereto may be used, with such variations as circumstances mtiy require. (R. Sup. C, 1875, Ordt;r 42, R. 10, as ame'Kicd by R. Sup. C, June, 187(3, R. 17.) (a) The English Rule has here the additional words, "the reference to the record." The above Rule corresponds other- wise with the English Rule as it now stands (see Bolton v. Bolton, 3Ch. D. 2/6). rq •> - iyi 'Jilt RuloH 348-351. lllllol'MC- IIUMll of i:ntni> and mlihi'SM, :M1> l»iite. r iiidorHcd with tlii^ iKiinn 1111(1 pl.-icc (»{' iiliixlc or olHoo ot ImNJiicss of tiic Holicilor ju'(ii;illy suiiij; out tli(' siiinc; and wlmii tho solici- tor Mfluully suiii^f out tlio wi-it kIiuH huo out tlio siinic us !ii,fciit for luiodicr HolicMtor, llio iianio nnd plains of aliodo of sii.li otlK-r solicitor shall also Ihj iudors(ul upou tla; wi'it ; and in t'as(> no solicitor shall he employed to issue the writ, then it shall he iiulorscd with a, nu'niorandnui expressing; (Imt t]i(> same lias Iteeii sued out hy th(( plaiii- tilV or defendant in person, as the case may l»e, m(Mitionin<^ the city, town, or [(a) other pl!ice|, and also the name of flie (h) sti'cet, and numliei-of the hous(^ of such plainlilV's defendant's residence, if any such tluM-e ho. (( Vinip. X. '' ip. a, 1875, ()rd(>r 12, H. 11 ; i{e,^^ (Jen. T. T., i.-.,) !), No. nr), (,)nt.) ((() ii'stciulof " other pliice " thu KugliHli IJulo has tho word " ivirisl. " [•I Till' •Migliy'', IJnlo lias h(Mi> tlic luMitional word " hamlet." Tho tw.> Ktilis ;,io otliorwiso identical. 11. bjvery writ of execution shall hear dato of the day on which it is issued. Tlio forms in Appendix (J ) hereto niav he us(>d, with such variations as circumstances may recjuiro. (K. 8up. C, 1875, Order 42, R. 12.) Itloiitioal with the English Ihilo. Where a plaintiff had given notice to tlio defendant to discon- tinne the action, and tlie costs iiad been taxed, no fiirtiier order of tlie (\nirt was held to be necessary to enable the (.'hief Clerk to issue a writ to enforce payment, and that the writ may l»o varied to suit the circumstances of the ease (Bolton v. Jioltoii, ^ Ch. 1). 'J7(l). Ac note to Ilulea 170 and 17'2, pp. 20.S and 204. 12. In every cjiso of exocutiou tlu; party entitled to execution may levy the pouud.ago, fees, and expenses of execution, o\ er and above the sum recovered. (R. Sup. C, 1875, Order 42, R. 13; see R. S. O., c. 60, s. 44.^ Identical with the English Rule, aud to the same effect as R. S. O., e. G(), s. 44. 13. Every writ of execution for the recovery of money shall be indorsed with a direction to the sheriff, or other oHioer or person to whom the writ is directed, to levy the money really due and i)ayable and sought to bo recovered under the judgment, 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 was entered up ; provided that in cases where there is . 1 EXKCUTION. 295 Rnlen 361-3ft2. ;\n iit^rcomont, iM't-worn iho particH that, innro tlinn hIx por coiit. iiitcn^st sliall Ik; HcciirnI liy tlio jiKlj^riumt, tlinn tlin iiKloi'HcnuMit may bo awonliiij^'ly to low tlio aiiioimt of inlonf.st, HO ai,'r(HMl. (Coiiip. II. Sup. (!., 1875, ()nl(!r 12, K. 11; 11.^^'! (iiMi. T. T., 1850, No. 55, Onfc.) S/iiiio in firiMif iiH i\w. Mtij^liHh IJulc, oxccpt tli.at tlic nito of in- toroHt tlnucin iifviiuMl in four pt^r cdiit. iiiHtciul of six. liitciH'Hf, on cohIh nniH from tlui d.-itts of thi! cnrtiTKiato of fciixa- tion, tliJit IxMii^ tilt! ddtt' yiv<'n in the form of writ No. l?/) in Apj). (.1.) (Sr/ironin- v. C/rinjIi, Ut L. J. (1. P. im). Kormorly Ht ('oniinou Liiw inttMTHtran from tlio oth tho ('ostH of tii(! ordur nisi and of th(^ pr(!viouH ordur of (^onrsi! (In re lli'iron'a I'Uliitc, //all. v. Lcjl, 12 (jh. 1). 7'.>">). It was, how(!V(!r, dtuMcUid in Jii/i/) v. (Jooptr, f) ('. I*. I). '2(1, tliat an attaciiment aj.;ainnt thi; HJicrilF for not returning a writ of _//'. fa. \h not ol)tainiid an of oourao, but can ouly bo applied for on notioo. Tho ilulo of T. T., 185(1, No. W, is as folb)WH : " A pntrlpe for ovcry writ of oxooution shall bo filod with tlio jiiili! T. T., proiR'r olllcur, and the indorsc^inont on ovory suoh writ, for dol)t 1H60, No. 55. or (lamagcs, shall bo to tho tiiloct, and as nearly as tho oiroum- staiices will allow, in tho form following : ' liCivy (or Ink i') the sum of C , boing tho dobt (nr i/aindijrs), and tho sum of C hoing tho costs taxed in this cause, M'itli interest ((uronlinif fo the circinnMdiii'c/t) ; also tho sum of ;C for tliis writ () Tlie Court or Judge at the time of giving judgment, 852, 363. or tlie Court or a Judge afterwards, may give leave to issue execution before, or jnay stay execution until any time alter the exjdration of the period t hereinbefore prescribed. (Comp. 11. Sup. C, 1875, Order 42, R. 15.) * The English Rule has here the additional words, "or one or more writ or writs of eleij'U," t This word in the English Act is in the plural ; the omission of the "s" is, no doubt, a clerical error. With these two excep- tions the Rules are identical. Rev. Stilt. By the Ont. C. L. P. Act, s. 298, it was provided that, " The ' '• ^''' " '^^^- party in whose favour a verdict has been rendered, or when the plaintiff has been non-suited at the trial, the defendant may. in the Superior Courts, enter final judgment on the lifth day, and in the County Courts on the third day of the Term next follow- ing such verdict or non-suit, and thereupon sue out execution. " Rev. Stat. By section 299, the Judge before whom an action was tried or c. 60, 8. '.!09. damages assessed, might authorize judgment to be entered and execution issued fortliwith, or on any future day. Under the present Rule leave may be given in all cases alike to issue execn- tion before, or to stay execution until after the prescribed periods. It has been held that the recovery of costs, payable under an order, will not be stayed by the Court of Appeal, pending an ajiptal to the House of Lords, if the solicitors to whom they are payable, give their personal undertaking to refund, in case of the order being reversed (Grant v. The Jianque Franco- Eg i/ptienne, 3 C. V. D., 202 ; Mortjan v. Elj'ord, 4 Ch. D., 352 ; Th't Khedive, 5 P. D., 1). The Court of Appeal is the proper Court to which to apply to suspend any order which that Court has made, consequently the application should be made to it, to stay proceedings under its own order, pending an appeal to the House of Lords. (Ibid. ) Murray v. Infield, 1 Charl. Ca. (Court) 142 was an action for libel; a verdict for the plaintiff for £100. " Huddleston, B., said that although he was now able to order immediate execution, he would adopt the old (English) practice, and give execution in fourteen days. In Taylor v. Sherley, 1 Charl. Ca. (Court) 143. " Following the old practice, " Pollock, B. gave execution in fourteen days. Currency of writ. 15. 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, (a) be renewed by the party issuing it, for one year from the date of such re- newal, and so on from time to time during the continu- ance of the renewed writ — either by being marked [ (6) in the margin with a memorandum signed by the proper officer who issued such writ, or by his successor in office, stating] the date of the day, month, and year of such EXECUTION. 297 renewal, or by such party giving a written notice of re- newal to the sheriff, signed by tlie party or his attorney, and [ (c) having the like meniorandiun] ; and a writ of execution so renewed sliall have efl'oct, and be entitled to priority, according to the time of the original deliv(( iv'wd ill any of tlio wiiys in wliicli any • HH'slioii ill an ucliou may Ixi tri(ul. AimI in (mIIkt chho Hucli (!()urt or Ju(lt,'t^ may iinposo hu(!|i IcnuH iih Io (mjhIh, or olli('r\vis(', as hIimII himmii juHt. (11. Su|). ('., IHTTt, Order 4L>. H. lit.) S.-iiiu* as iho lOngliHh lliilo. Tlu" priictioo at ('onimoii I, aw in roviviii^ jKHMiniary jiiil^'iiUiiitH f')r till' iinrpd.'Ki (if oxccutioii, afti^' tlui Iai)Ht! nf hIx y<'ai'(<. <>r tlio •Icatli of partifM, wjih I'nniuTly ^"vi'IiumI liy hh. .'{'J'i to ,'{;{() of tlin i\ li. I'. Act. 1{. S. (),, c, r)(> (corn'Hpoiiiliii^' with Kiik. <'. I-. I'. Aot, 8. I'JH, cf si)f.). Ifiidcr tlniso proviHJoiiH tlm j)arty Hcckiii^ oxciMitioii coulil ajiplj' t(i tlu' Court or a .ludgo for Icavo to oiitor a Huuj^cstion to tins I'll'i'i-t tliat Hiicli |tarty w.'ih hIiowii to l)o ontitlcd to I'xoiMitioii, and to allow oxi'ciition to Ihsuo. And if iho c.'iHo was inado clear, llic suj^j^cstion and tlio oonsoiiuont oxi'cntion wcro allowed. If tho ease was not made clear, tliu BUgm'stion and execution constMiucnt upon it wore diaailowcil, and the i)arty was left to his writ of revivor. Tliis was a new action, in which l>y thi^ y a Judge ; hut a sonu-what aiinpler process ia pro- vitled ; if the caae ho clear, tho Judge m.ay order execution to issue ; if it l.o not, ho may direct an issue to try the right. Tho executor may obtain leave to issue execution, on an ex parte application (Attrccr v. Lawrence, 20 W. LI. 500). 19. Evoiy order of tho Court or a Judgo, wlietlior in an action, causo, or niattor, may bo enforced in tho same manner as a )iulf»inent to tlio same ellect. (R. Sup. C, 1875, Order 42, U. 20 ; See R. 8. O., c. G7, s. 12.) This waa so by K. S. O., c. 60, a. 7*2, and c. 07, a. 12, {we in note ti> Uulea 831), .%0 niilv), as rcapeeta an order for the payment of money. Tho present llulo is i(lontical with tho English Rule. 20. In cases other than those mentioned in Rule 17, any person, not being a pai'ty in an action, wlio obtains any order or in whose favor any oi'der is made, sliall be entitled to enforce obedience to such order by the same process as if he wei'o a party to the action ; and any ]ierson not being a party in an action, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforciiig obedience to such judgment or order as if he were a party to the action. (R. Sup. C, 1875, Order 42, R. 21.) Same as the English Rule, and corresponds with Chancery Order, No. 297. 21. No proceeding by audita querela shall hereafter be used; but any party against whom judgment has been KXKCl'TION. 2yu .Siiviiij? (il t'xiHtiii;.: lij^litH. jjivoti may ivpply to ili(» (Jourfc or a .1ii«Il,'(i for a Htay of Bnlei («x«'('iitioii or oilier rclitil' 111,'iiiiiHt, Hiich jii(l;,'iii('iit., upon tlio 389,360. (rroiiiid of I'lK'ts wliicli liavo luiHon too Into (o itn picjuli'il ; iind tlio (*ourt or .)ii(Il(o iiiiiy jL^ivo such r(tlii-|', and upon Hiicli tcriiiH as may bn just. (II. Sup. (J., lM7rt, Onlor 42, K. UL'.) ThiH ilulu JH iiloiiticM witli tliu lOn^'liHli iiiilu iifirnil in. Auditti ([Uvrvlii wuH IV If^^iil [trocoHH in tiio iiiitnii! of mi iictidii, whcn^hy fi party a^jaiiiHt vvlioiii jii(l(,'mciit iit l>;iw liiul Imm-h olitaint'd niifi^'lil. pri^vnit cxci'iitinii on tln^ ^I'liuml of Hunir ni;iil/rr i)f ilclVnct! wliicli tlicni Wiin no (i|i|i •. 'unity ol' luiHin^^ in tlio orij;inid iiction (hcv \{. H. (>. c. M), h. 1,'t . ; iiud IliirriHou'H ( J. L. I*. Act, 177). 22. Notliini; ill any of tlio IIuIch of this Ordor shall tak, Onier 42, K. 2.'}.) Idciitic.'U with tliu Kii^disli Itulo. The following (Iluinoory OrdiiiH iii.ay ho rufcrred to lioro: — "288. If a party who Ih ordcrod, otluirwiHo tluin hy an order cli ord iiHK. of cdur.sii, to do any Jict other than to pay inoiicy, in a liinit(;erformanco tlieruof, he eiititle, In ease the ])arty aliall he taken or detained in eustody C'li. Ord. 280. under tiie writ of afctaeiiment, witlu)ut oheying the order, then upon the Hheritl's return that the iiarty has heen ho taken or detained, the party prosecuting tht; order shall he (Jiititled, upon prwripi', to a coininission of seciueatration against the estate and etFocts of tiie disohedient party." " 2!)0. If an attachment cannot he executed against the party Cli.Or'l 2!»o. refusing or neglecting to ohey the order, hy reason of his lieing out of the jurisdietifui of the Court, or of his having /disconded, or tliat with duo diligcnco ho cannot he found, and the Court is satialicd l)y affidavit that such is tho case, the party prosecuting the order shall he outitled to an order for a commission of sequestration against the estate and efl'cets of the disolieilieiit party, and it shall not bo necessary for that purpose to sue out an attachment." " 293. Every order reipuring a party to do an act, other than en, Oid. 29:;. the payment of money, shall state tho time after service of the order within which the act is to be done ; and upon the copy of the order served, there shall bo -mdorsed a memorandum in the words, or to the effect set forth in Schedule N." The following is the part of Schedule N referred to : " Indorsement on Order, served under Order 293. "If you, the within named (here insert the name of the party), Sehcdnle N. neglect to obey this order by the time therein limited, you will wm P m) ONTAino .nuMrATunn wr, IHHl, HniM '><> \'\(vhh\ fi» l(i» Avri>nh>(l liy iln> «ln«i ill' i lunl yoii will n\nn lii< jinlilx •'MU)-Wl4. I" l>i»\«' yiMir cMirtlo nt'mn'Nlt'K'il Im (lif jiiir|iiim' ol i'iitii|ii>lliii^ yim (ii vilii>y l hhIiIk Hio miiil older, or In Kiinpi'iiil llto o|it hioo \ullon liiniio:! " 'J.'V Nolliinu; in iImh Oidor mIuiII nHocl. (Im> (inK ..i \vl>ii'li wrilH of o>-'onlion nwiv l>o iHMdiMJ, [W. Hii|», (),, 1 87 A. (Inloi I'.!. |{. •.!!.) lil«>i)(ioal \\\i\' llio luiglinli KnIo. .'I«M < »oit>v of OVivl.'.l OUDKK \ \ \ I \. WKITM OF KIKin KACI AM. *o. I, Writs of /('('»•»■ /Ji.'/ti.y ^i») hIiiiII Iimv<> llio hiiiiio lorco and olVoot iiM llio liUo wiilM liiwo IioioIoIok' IhkI, iuhI mIiuII l>o oNOtMilo.l in (,|\o Hinno miiiinoi' in wliii'li (lit* liko wi-IIh h,'»vo l>oi»'(()lof(> l>oon i>\0(Mi(oil. (|{. Hup ('., 1875, OnltM- i;i. l{. 1.) (ii) Tlu' KMttli»l» lv\il<> huH loMo (li(> wonlw "luul of r/c;/' Is \n otio'i'wmo (oo k,»iiu> .•»» Mio uliovo Iviilc (MhprwritJt O \Vii(,s of I't'thfitloili CVfOliiKt lllity Im< iHHtUMJ iiltd oxtvnloil in (lio njUDo oiisoh mid in IIicniiiiio iniiiuior iin hon'tot'onv (Coinj). H. Slip. {\, 1875. Onlor i:i. Ii. 'j.) ri\o l'',\\i;lish Knlc. ho I.-vc .-vh rcliiloH lo wrilH of vi'iiililiniii «'x- ;>(>».»>' is ll)o s;nui>. l>ul. it I'mlirjjocM otluT wiIIh, viy,. : wiIIm nf " iii.*tn»iti}s nuihv i'i,-ni.< (,'rli'sioslu-i.i, uixl nU oliior wriU ii> iiid oi ;> urit ol',;1f« n'^'dojii.'i or of KU X I.. ATTAt^MMHXT OV TIIK PKKSON. Kir.vt ol 1. A writ of attudnuont [ajjiiiivst. flio povHon hIiiiU \w atuohmout. JJ^,^,^^| undor tho stuno oiromusliMU'os ami in (lio .sniuo inanmM* and] sli.all havo (ho saino olfool, an llt^ro(.ol'on' ac- oouliui; to (lu> praotioo of tho Oourt, of (Mianoory. ((\)nii). K. Sup. 0., 187;"). OnW 44, II. I ; H. S. O. o. 67, ss. 10, 11 ; G. O. Chy., Nos. 1>8S-'J04.) Tho Euclish Kulo has not tho worda which ftro in brackets ; it is othorwiso U't tho aamo olVoot. R, S. (\ 0. rt7. soos. 10 aiul 11, apply in torins to tho Court of Chanwry. ;is woU iw the Oourts of Q. B. and 0. 1*. and County Court*, and are as follows : RevSut. *' 10. Privess of contempt for non-payment of any sum of .-. «T. s. 10. money, or for uon-paymcut of any coats, charges or expenses, %iii ATTAriiMi;NT (»i'' 'tilc; imjihon. •M>\ lit> linlilo I (ii it|'|>l,V In, iM 111 |l< )'X|iilll Hup, v., iiiuo Www mill mIiiiII liko wriln ['.. ist:., HHUcil niul iniiuiiii'i' I*** 'iiilitiitiii I'f- :. : wrilH of •,•/(. liii.i^'i'ii, wiitu ill iviil lolofoiv ao |v. {Corny. 07, sa. U). l>rjielcot8 ; it [he Court of Iftiul County jftiiy sum of lor expenses, iinV'tl'l*' ''.V itii.V Hi'<l' l.lii> <'iiiiir nf ift\ft'i\'H ;|||4 ^(|f( lli'iirli iir < 'iiiiiiiiiiii rlt'iiN III III II. .linliM' llii'iiiif, m |iy imy ilmi'ii, iii'ilcr III mil' III Ii I 'iiiiiil'V I 'mill, m ii .liiilui' Ihi'iciii', ih iiImiIimIii'iJ; ikiiil III) iH'iHiiii hIiiiII III' ili'liiiiiKii, hiii'mIi'iI mi III III III liiiil liii null iiiiVtiii'iil' III iiiniii'V iiiiJi'HH a H|i<'i'iiil imli'i Till' Mii> |iiii'|iiihi' Ih tniiiln nil ikii iilllilin il> III ullliliivilM I 'iliililJMliiii^ Mill MiiiiM' riirl.H mill I'll i'IiiiinIhiii'i'k iim urn ii MMiiiy Im mi imli'i fm iv wiil. r MiIm Ai'I ; itiiil in mik'Ii i'ii'4i> Mii' mii'Ml., wIlKll lillnWI'il, mIiiiII III! Illllilr liy IIH'IIIIM III' II, Wl it. Ill M.U.II' linii'llli oiiirii»|iiiMiliiiy an in'iti ly nn iiiiiy lif In ii. w it, uf iii/iimi ml imlin- fdi'tnnliiiii. " II Mill, ill I'liMi- IV iiml.v IM nrii'Hl.i I iimli'i u wiil. uf iuii'mI,, il. Iiiv Mini ulinll iiiil. Ill' IH M«my lu'l'mi' Hiiiii)' mil, a wiil. lihIit IIii> |iiiwi'iIiii|» ' "', * I • KPi'limi nllliiM All, III iililmii IV .linfiM 'ii imlnr lli'iiliii, m In tili' lUiy III! lliiT iilliilivvili l.liiiii llii' hIIIiIivviIh nil wliirli llin tinlur i«r Uii< will. Ill' ihtomI. wim iiliUiiiKil." Till' ( 'liikiii'i'iy Onli'i' nil IliK HmiiK hiiIiJi'iI, in IImh : "'2HH. If II jiml.y wlin Im iiiili'ii'il, nl.lii'i wini' l.limi liy mi niilir i j, (,,,| vnx uf I'liiiiHi', III ilii iiiiy Hill., n|,|iilll'^' iJii'i'i'iif, Mm pivrly iinmi'riil.iii).^ Min ntijiw hIihI . iil, l.lui I'liiiiilinii iif Mm> limn liniili'il, iiiinii liliiijr willi Mill l.'i t'liil.riir mi 'illlilivvil. iif Mill Hi'i'vii'i' iif l,lii' niifrr, iviiil nl' llin nnii |im I'm iiimii'i' tlii'i'i'iif, III' I'lilH.ii'il, ii|iiiii /iMi'i'i/ic, l.ii II wril, nr wiil'H nf aU.iii'li iiii'iil. iv^iviiiHl, Mm iliMiilii'ilinnl. |iml.y." Hill. Itiili' .'105, itim/, ri'i|iiiri'M a nnl.ii'K l.n Im Hiivril iiiiil Icivvi' l.n hiMiiiliviimil liiifni'ii mi aUiimliiimiil/ w iHHimil, 'J, No Hiirli wril, (»r iiltiicliiiiniil. HJiiiJI Im inmnMl wil lioiil, (,.iivr i.. tim li'iivo III' I.IkH JiHiil. or II, tlinl/^n, lo Im ii|i|ilii'i| I'm' on "'"" IKlMcd III) l.llO |llll'l.y It^llillHl, VvllOMI llin al,l.lli:|||IM-|||i JH to Ix) iHHiKMl. (I{. Hup. (!., lM7r., Onliir 44, |{. 'J,) liloiilioiil wiMi Mm l*!iif.;liHli Itiilo. TliiH Itiiln intriiiliiiM'H mi iiii|iiirtmil. rlimi^n in Urn C|imi<:(!ry i*rm^t.ii'i! ; iiiiiHiiiimli iiH II writ nl' hI,I,iii.IiiiiiiiI, cum imvir, for l.lic fiiliiri', iwHim iiH nf ri^lit wit.linut, mi nnlnr, j^rmil.ml uftrr not.ii;!! to till! party (Alnul v. /firliiH, H ( Hi. I). r>'2H ; UhIIhh v. i/li/n, :\V\\. I), l!>0; /{r /Innni'H IChMv ; Hall w. /j mil lii'lim lumwti. Will lii>l liiitiil HIM vlio. Iiitl,, lt< H|i| VOll on lllli Mnlil'illll (/'lllllli'l| Mil> itll mill (l|l|ilv III MM iippliiviihMi lin Mil nllrd'iinii'nl ( \iiim . \V N, iM/d. |i jUfi Am iiili'ttinMiliii V imlci', iiihIim Hiilm .'l!Hli7 ^i/ , iitiHt, mtiy Jm onltniTil liy nUoiltiiioiili ( //n^ /(. \W. Hut- It jiiiluini'iil uv HI lid. II mi CI !'"ifi(i | I'lii (III! |iii\im'iii iiilii «'iiiiil 111' imiiu'v, i'iiiiiimI, |ii< t>iiriii|.|M! I h\ i»(l(»i'liim'iil A |>i>rniiit ttlltki'lii'il I'nr iiiini. 'i!\'h. Hill, ill tinliM In |llllli^ll (Uiyi'in' wlm \\i\4iiiii'i| 1 1 If n nlutiMJ S'iMioil. iiml ;illiuvi'il III lii> ili«>i'liiii (M'll il 111' iiiiyn (|iiMiii«(fi lii-rmii Ui> ovpiinlmii III Bin II |ii'iiiiil [Ihiiiii v ,l/i //I r«, I I'll < 'lifun, \n U\ nMiiotttitotlh ill itiMiuitn |ii>l)ililiu ill Kii^liiinl ill. Iiii< iliili> ni ih(> Av'l; llii>r«' (H.M' i,\u'liihf V, h'-iji.h, I ('li l> HI ; I'lilln/y fhttth\tMt, Ihhl , SI; /iV I) '.S'ii/(i'»/(Pri IH.f , llri; />i(//iM v, (Jlmi, ;m'Ii. i>, looi /fiWi/ii»M'. /^I<./.l(^ i iv n »',;i), KtA ATPAfllMKNT i^V l>Kin'M. v,>,N((oMi.Mi 1. K''"* \Vlion» (ho jinlniMiMil (/i) '\h Ww llin jiMMivrry liy, i\M i>\.-imu\» ,,,. pivmoiil li|>'r ii|ii>ii oiilli lii>riiri> ii. MmhIoi'. *>r liOv«!«l M.'isdn-, or uti Mxiiiiiiiior, ov liiiloro uiin of llin (Morks »>»• l>('pMlv CltM'lvs \A' llio (Vowii, or Im'Toio llio .hul^^' of iho i'ouMly roiiii of llio Cnimlv williiii wliicli 8Ui'h dolilvM" n'siih's, or lid'oni utiv olliciiil n>f'i>r(>i<, j ((/) (oiu'hiu!4' I'l"^ ost.'ilo Mini olVi'dn, Mii.i mh Io llio |ini|ii'rlv juiil tuo;u»s \\o luul wlioM (ho ili>l»t or liiiliilily which was tlio Hubjtvt ot" tho notion in whii'h jiiilj^iiiosil. htiH hwn ol>(.'Ui»0(l nijainst him wns iuiMirroil, niui ns to I ho propiTty !nul moans ho still hiis of ilisclun^inij tho Miiiil jinlu;iiuMit, jMul !»s to tho ilispvis'il ho h:is niiolo of iiny proporly siiico vvutmotiujjf suoh iloht or incurring such liMliility, iiiiil iw to any :vu{ what iK'hts iiro owinsj; to him. | (l{. S. ()., c. r>0. s. ;U)i; .NVf a/go o. li), s. 17 ; R. 8up 0., 1875, Onlor 4:>. U. I.) This Uulo varica frrnii both tho t>nt!iriu Statute ami tho English Rule. ATTACIIMHINT (»Jr |»»i;iiTfl. a(»;i ivli'i', Iml-, mil tmlli'i' SI 1 1 II -ili I III, lilll V l<< nil I nil nitl, iimv '»' V N, IHVV. ■ nlliiM \vi"i'. Ill' I'IiIiMIMm! loliuii'"! Ii" 1/ (1/ /.iii'i' miyi'lM' wltit lot- w utitl.i'il )>iinl.Fi Im'Ii'Ii> I Cti. <'l)inii. |, lid' iliili' I'l It I iUilhji V '/ii.t V. , H'OVlTV ''V, •ly (Mllilli'il all ««t«l«"'i ,< II. INluftltM'. OHO ttf llltl iM-luro (111* illiiii w'liifl* (MriM'O. I (1/) 10 |ico|»i'rty which \vii« -.it llMH l"«'» hi< j>n>lH'>"ty ,1 "puliriiuMit, oi'hm-IV «"">•'" ilit.y, i»i>'l 'i** (K.'S. 0..C, n 0., 1^75, w I tho Knglish (tl) 1'lin Wtinln ht'i'n III lii'ttt'hKfN ttrn Ukmi fidiii Uin KkkIIwIi IIiiIp, rtiiil ')!(> iiHMK oilKMnivo Ihiui III" i'oiMin|)tiii)llii)^ wihIm Iii Mill IhiliMin l> (/.) My tl. M (» . I-, 07. «B. I«, i;i (wl.i.li iin. (.1... «HiM« a» \i. «, (I , I' III, fl Vll) il. i« |lluvilllil| H« rilllnWH (IIm'U' Mill 11(1 I'llllfH' iMitiihn^ |iiiiviHiiMi ill I'Iiii;ImiiiI) ' " \'i. KiVtiiy ihM'ft'it, imIi> hi iinldi nf llii« Hii|ii'iiiii ( iuiiiU nf liftW, mill l'Ii|iilt.y, mill nf Mh' ('iiiinly ('mnU, iliii'ilint/ (Im \my iiM'iil III iiiiiiii'y III' iiT I'lml.n, in, mIikII, mh fui i\<* (|. ll'lllJl'W In WIH'll lllllMl'V, I'linll, l'llMl^i<'B, III l'< (ll'IIKIU, llli lllil'inl'll II |iiill!!"""l. "•"I I III' |M'iMiiii I" ii'i'i'ivi' |myiiiiM(' (I I ii'ililm , lui'l l.lii' lii'iMiiii In iiMilii' |iiiyiiii'Ml. 11 ili'lil.Mi, wiUilii I III' iiii'itiiiii(; iiT tliin Art i tiii'l Ihi'HiiJil |ii'iBMii Ftliiill ii's|ii'ilivi'ly lidvi' IJii' niiiiiii n iiii ilit'S, mill IIm> ( 'mil In lUiil .liiiltj"« mi'l IIh' hIIIi'iiim nf JiinMito bIkiII in Hiii'li i'iiF«"« liiivi' l.lii' Hiniiti jinwi'iH mill iliilinM, iim In i'iiii'i>n|iiiii(| ill)/ I'li'^i'H (iiiili'i llii« Ai'l. "Ill III i'n«i' II. ili'i'ii'M nr (inlcr in < 'Imni'i'i y iliii'i'l.« llio pny liii'til. nf iiiniii'y iiil.n I 'iMlil., Ill' 1,11 Mm cii'ilil. (if miy ciiiinn, nr iiIIm'I winii llimi in any |iii|'Miiii, llm )iii.,v I**') williin MiK iiii'iiniii)/ nr Miin Ai'l.. Till' |iri(i'lii'i< ill I'lnj/Uiiil wiMi ii'^iird l.n mii'li ntnuH i» iliMi'irnt |/,V l'',,i,d-l, Wr. ; llrfil V, /•nnl'io/.r, \, ||, H, jinlf^iiiniil, \h iif^iiiiiHl, a liody i-orponil.*!, t.lio |i('rHiiii I'lilil.loil l.o I'lifoinn l.lin jii(l(^iiii!Mt. limy in lik»; iiiatiiii'r rxniiiiim niiy nl' (Jm oHiiuifM of HiKtIi hody (.<)r\n>v fiti;, ii|M»ii oiiUi, Imfuic tlid iliiil^'ii (if Mm Ooiuity ''(jiirf,, or otlii-r nllicnr, rnrnrnul l.u in iJmimxI. |)rrv;<)ilinjr I'liin, t,oii<;li in<{ t.lii< Minium iind niHidiiiii:«-H nf Mu-, Hl.oitklioldi'.nt in Haid body ('(iriioral-n, Um ainuiinl, and |tail.i<;iii)i,iH of hUicIc hold or (ivvnud liy itatili HMickliiildiM-, and lln! aiiioiint, paid tliorooii ; aJHo as !,(» any and what dohl.H aio owirit( t,o IJm Hiiid hody corporato, and aH U> tho nHtato and ciYf.i-JH of tli(> hody oorporato ; and aa to iho diHpoHal tnado hy tho body corporato of ttiiy proporty hIuco contracting tho Rnl** nm, mi. Ui'v. nui. U'7 HInl ". ii'l. n hi tHHf Afit'lii^dllfif) f'lr ' ziKiiinv ll'ili lit iiltl- r.ftn 'it i.itt- (rf/ritlii/rm. ^ m i 304 Rnlei S67-S69. ('oin)irUinK nttoii(i«ui'i>. Sorvioo of apiHniit- lueuL Rev SUt. c. 49, 8. 18. ONTARIO JUDICATURE ACT, 1881. H of oxaniinafcion, and tho sumo oonsotiiuMioos of noghictinijf to attond or rofu.s- ing to disohiso tho niattors in rospoct of whioh ho nmy Im exaininod, as in tho caso of a witnoss. This is tho niodo proviihMl liy Oh. , lulo I (;W() oH/f ) aorvioe on tho solicitor of the ^)arty was sutli- ciont {Hrownhui v. Snlnn, 5 Ch. D. 511) ; or, at his residence {Re. a Solicitor, 14 (Mi. 1>. l.VJ.) 4. Any person liahlo to bo examinod unclor cithor of tlio two jirocoding Hnh's may bo sorvod with an appoint- n\ont signed by tho Jndgo or olVicer ; such sorvico to ho made at h\ust 48 hours before tho time appointeil for the examination ; ami tho person to be examined is to be jmid the same fees as a witiusa. (a) In case of such sorvico, the same sliall have the same etVect as tho service of a rule or order under tho present practice, for the purposes of the 18th and 19tli sections of tho Administration of Justice Act, and the 305th section of tho Common Law Procedure Act. Seotions 18 and 19 of tho Administration of Justice Act, R. S. 0. , 0. 49, are aa follows : " 18. In ease snch debtor does not attend as required by the said rule or order, and does not allege a sutKcient excuse for not attending, or if attending, he refuses to disclose his property or his transactions respecting the same, or does not raalte satisfac- tory answers respecting the same, or if it appears from such KXAMINATtON OK .lUnOMKNT HKIITOR. 30R HI oxftiiiiiintion that hiioIi (Inhti)r Imn coiicnalod «ir iimdo nvrny wiUi Roie 360. liJH (inipcrty in 'H'llor to tldlciit. or ih'I'iimil liia cnMlitorH or any of tliDiii, HiK^li (loiirt or .Inilj^i' inay onli'i' hiicIi di'litor to Im! coiriiiiit- tuil to ttu> < iomni'm (la'il of tlin ( '.unity in wlii(!li Im rnmiliM for liny t"rm not oxi^ 'o liii;^ twnlvn iiiiiitiH ; or hihiIi ( Joiirt or .liiiii/t! miiv, I'y '"nli! or oi'ilor, dirmit that a writ of fi/iiiiH ml Kd.Hs/'itrlrn- iliiiii. m ly Ic issui'd as^aiint any uniOi diOihir, find d writ of cuiihix til. n(tlion nnrli jndi^nii'nt, or in iMii' siiidi ih^litor in at larj^c npon hid, Hnc:li (.'unit or .Ind^^o niiy tnakc a ridi' or ordi-r for Mn till! prcmiHi^H, for a rnio i>v order, tliat any one or more of the ollii;er.s of Hindi hody tioi'porfite (to his n.inied in smdi ride and order), Khali iie orally examined iipmi o.itli heforo a .liidj^e or any other pi'r.son (to he named in Hi:eh rule or order), toiiehiii)/ the, niuneM iinil resideneiM of the Htoid *• ^^'' attoiiding, or if atteudinjj, ho refiiscH to ilisulose his [iroperty or Ills transactions rcH[i,!eting the Hanio, or does not make satisfactory answers rcspcctinj^ the Hamc, or if it appcir.s from sindi examina- tion that such dehtor has couccalcd or made away with hi.1 prop(!rty in order to defeat or defraud his creditors or any of thcin, .such Court or Judije may order smdi (hd)tor to he com- mitted to the (yommoii (Jaol of the (!ouiity in which lie rcHiiles for any term not exceeding twidve months, or such Court or Judge may, hy rule or order, direct that a writ of fiipiax ad ^nt\Kfarif,ndum may he issued against such dehtor, and a writ of ta}nas ad satisfaciendum, may thereupon be issued upon such judgment, or in case such debtor ia at large upon bail, such 20 306 ONTAIUO JUDIGATUHK ACT, 1881. Ralei 369.371. WmM i m .17 O Oourl or ,}\u\lH) limy oilier attm-liiniMit of tlcbUi. Oniorthnt Knrnishon appoar. S71 Oniei fiir attiu'liiiiciit to liind debts. i I: Court or .Ttulgo in.iy imiko n rulo or ortlor for huoIi (lohtor's boing couiiiiittiMl to oloHu uuHtody ; luitl in huoIi oivau tlio Hliorill' on duu iiotioo of Hiich rulo or onlor, hIiiiU fortliwitli tako Huch ilchtor and oonunit liini to ohmo ouHtody until iio ohtainH a rult; of ( Nmrt ov .ludmi's ordt^r fin- again allowinj^ liini to go out of ''i.y, u|t(m Hwi ex parte, nppli- oatioii of tlu^judyiuont creditor, or tlio poivsoii ontitlod to onron'o tli(* ju(lfi;iiiotit, oitlior Ixd'oro or at'ttu' tli(< oriil twMiniiialion nuMitionod in tlu> procctliim two Rul(>.s, and upon allidaAit hy liiiiiHoir < ■ lii.s Holic-itor (or .soiuo other person or persons avvaro of tho tHcts ro.s|)ocl.ivoly |, stating lliat judginont hiis Imhmi roeovorivl, and that it is still un- satisliod, and to what aiiiount, and that any othor p(u*,sou is indclttod to tho judfjfiiuMitdohtor, and is within Ontiuio, ordor that all dohts owinjj; or aocrninjj; from such third ])(>rson (luM'oiiiaftor nillod tlio ,u;arnisli(M!) to tins ju(l;j;uu)nt (lobtor, shall bo attach(>d to answer tho Jiulyuiont (hiht; and by tlu^ sauio or any subsisquont ordor it may be ordorod that tho sjjarnish(»o shall appear befoi'o tho Court or a dud!;i> or an ollioor of tho Court, as such Court or Jutlije shall apjmint, to show cause why ho sliould not pay tlu> iuj;nient creditor, or tho poi-son tnititled to en- force the judgment, the debt duo from such garnishee to the judgment debtor, or so much tluu-oof as may be sutli- ciont t.o satisfy tho judgment debt. (R. Sup. C, 1875, Ordor 45, R. 2 ; comp. K. 8. O. c. 50, ss. 307, 308.) The iwiasago in braokiit.s is now. Tho Rulo otherwise cor- rosi>onila with tho Knglish Rulo, and ivlso with tho Revised Statute referred to. G. St>rvice of an ordor tliat debts duo or accruing to tho judgment (U^btor shall l)o attached, or notice thereof to tlio garnishee in such nuinner as the Court or Judge shall direct, shall bind such debts in liis hands. (K. Sup. C, 1875, Order 45, R 3; comp. R. S. 0. c. 50, s. 308.) This is identical with tho English Rulo, and corresponds with part of sec. 308, R. S. O. c. 51). The following are sonio of the more recent decisions upon the corresponding English enactment : Before the Judicature Acts it Wits held that the or(h;r l)inds the deht in the hands of the garnishee only ; and that if the amount had been paid into the Court of Chancery, it was not bound, and that Court would not interfere to give effect to the order (Stecens v. Pfielips, L. R. 10 Ch. 417 ; Jones v. Brown, 29 L. T. 7D). So formerly it wjvs held that money in the hands [iii^ ATTACHMENT OP DEUTS. of ft roodlvor could not bo att/Mihod {IfunHpU v. Kant, AvfiHan Pt/. Co., 3 M. i% a. 101 ; Anii'H v. Hirbn/inid l>or.kn, *2() Hiiav. Xvi ; He lliuitrr v. ilmnHiU, L. |{.. H (!. I'. '24; Joiwh v. lirowii, '2!> L. T. 7!> ; HOC /"/v/iiV; v. hi win, ll> I). (J. II. 547). Hut in Hr Cdwii.h'h EkMc (14 (!li. I). <»:JH), it wiiH hold l»y Mftll, V. (J., to ho othor- wimi unihir tho .liidionturo A<;t ; and a roooivor in an admin ia- trntiiiii action, who had lioon diroctod to pay nionoy to a Ittgatoo wiiH, uiiihir tliJH Ordor, diroctod to pay tho naniu to jiid^inont croditorH of tho h^j^jatoo. V. ('. Hall hold that tho ItuloH aH to tiio attaoliMK^ntof dohtH " aro applicaltlo to a fuiul ))ayai)lo under au onlor of tho (Jourt, hut in tho liandH of a roorivor, juHt aH iruKili aH if tho fund wi^ro not in (iourt, hut in tho luindH of a truHtoo wiioHo duty it waH to pay it ovor to tho dohtor." Hoforo tho J- 'ioaturo ActH, it waH hold tliat on a judxinont AgiiiuHl a ootnpauy, niuuoy in tho handw of an oilioial li(|uidator miglit 1)0 attaohod (Mr. 'juirtv Tnnicr, '2 I). K. & J., ,'154) ; and fchou).;h thin waH aftorwardrt quoHtionod in ///' Hinder v. (Iri'iimll, L. K. 8 0. I'. '24, tho Judioaturo Aot will prol)al)ly ho hold to havo rouu)Vcd any iliHioulty in holding tho nionoy attaohahlo. Mouoy in tiio handn of a SlnirilF, tho |)roooodH of an oxooution loviod hy him, may ho att;iohrd (Mirrrn// v. SiinpHon, 8 Ir. (). li. App. xlv. ; in Re H mart v. i\filhr, ',\ I'r. R .'{85), or of a Divinion Court Ikiliir [Lorkhart v. Oruii, '2(!. I>. J., N. S. I(W); though tho contrary haH hoon hold in England {/Jolp/iiii v. Laijlon, 4 C. P. 1). I.'lb). What tho (!ourt or .ludgo \h oni[)oworod to attach in, l L. 1'. (.1.) 140 ; Jfe CWwmi'a Edafr, 14 Oh. 1). (i.S8) ; tho Rule applioH to dohtH accruing aH well a» (lol)tH actually owing (h(!0 S/xirku v. i'uinii/e, 8 Ir. ('. L. '251 ; Tap/iv. Joiii'ti, \j. 11. 10, (i. H. 501 ; ex pnrfe. Jotie/i/ni:, 8(;h. 1). 327). DohtH accniing may ho ordt.Tod to ho i)aid wlion thoy fall due ; and it ia not noooHHary to wait and ol)tain a fronh order for [)ayuiont of each inHtalmont aH it hocomoH payahlo {7'pv. Jones, li, 11. 10, Q. R. 51)1). Tiu; garniHhoo cannot i)o compollod to pay before credit given him has expired (Ifardhiij v. Bar rait, 3U. i). L. J. 31). Money due to a Railway Oomi)any for tho purpoHc of diatribu- tion among its shareholdera under an agroomont Hanctioned hy Act of I'arlianiont, may bo attached hy a creditor of the Company (liour.h V. The Seinm Oaks, ,vr., lUuhiniy ('oiiipavi/, 4 lOx. D. 133). Rent due by a tenant may bo attached (Mltrhell v. Lee, L. R. 2, Q. B. '25!)). But rout not duels not Jittachable ((Jomiiu'rcial Jiank V. Jarm, 5 U. 0. L. J. GG ; McLaren v. Hadwortk, 4 U. (J, L. J. '233). Money in the h.ands of an agent in this Province may be garnished whore the garnishee resides out of tho jurisdiction [Brovm v. Merills, 3 U. O. L. J. 31), but not where the garnishee is a foreign corporation (Bunk British North America v. Lawjhrey, 2 0. L. J., N. S. 44). Money sent by a father to his son, the debtor, as a gift, through a bank, was garnished before the debtor was advised of the deposit ; held, not garnishalde, as the father had till then power to revoke the gift (Caisse v. Tharp, 5 l*r. II. 265). ao7 Knle 871. ^;i.}l 308 ONTARIO JUniCATUIlK ACT, 1881. RnleSTl. After tlio lumlogy of n Ji. fa. undor wliioli tlio goods of nny oiu) of tlioHO iigiiiimt wlioiii it Ih jhuiioiI miiy l>o tiikoii, ii delit tlni! to ono of Hovoml jtidgiiuuit dolitoi-H iiiiiy Itu iittiicliod to Hatisly thi' jiidgiuoiit tvgiiiiiHt all (.)/»//(/• V. Mi/iin I M. &, 10. I07r)), Sin- |iliiH money in the liiindH of niortgiig(H an attonu^y's lien or control over it in n-npeet of general eosts (Ddiuilmii v. /)(iiiifl,iH, 15 (ir. :U7 ; AV;/. v. /^;m.o(, 2 I'r. II. ItoO ; liiud: V. ('. v. W'ollnrc, 2 I'r. K. a.VJ ; Coftiniv. V I'r. H. 5Mi), Ah to tlio elleot of iui attaoliiiu lit ii]ioii an attorney h lion nfc fiirtiier Hoiii/h V. /•JthoKnls, \ II. j"k N. 171 ; /'^mMl v." ('(miiKj/Kiin, 2H L. .1. I'A. '2ia; Si/iiipwn v. I'rothfro, 2(5 L. J. Cli. ()7I. * A fair te.st as to a del)t being attaehaltle has Iteeii said to Im whetiier the ileht is the siilijiiot of set-oil' ( WfhMvr v. HV/m/c/-, 31 Ueav. \VX\ \ McNaiitj/ifim v. Wehstn; (> IF. ('. L. .). 17). Uii- liqiiidateil damages oaiiiiot ho attaolunl {Jo/nixon v. Dim.iDiul, 1 1 Kx. ~t',\) ; tliougii secured by bond in a pi^nal sum (/'/». ; (/risirold Ii. />'. .(• l>. liji. Co., 2 I'r. U. 17>S), though the amount has been ascertained by tlio venliot of jury, but no judgiiu'iit yt't liiul (Joms V. 'riiDiiijiKon, K. |{. & \']. (i.S ; Dnsfur v. ./o/iiin, 2H L. J. C. I'. 281 ; Jn re ^'l^wlnlln, '.i Ch. I). WH ; lioiidv. //oiiiien, 5 I'r. K. 15 ; V'.i/. v. Citrixn-itfionof Toronto, .S I'r. K. 181 ; J!,ink of Toronto \. Hitrton, 4 I'r. R. 5(5 ; (Hwi/nne v. A'ccv, 2 I'r. 1{. 282; lioherts v. C/V// (;/" Toronto, HJ (Ir. 2;{()"). Where a claim for work doiio under a contract, and one for uii- liijiiidatcd damages arc reteritid, thero can bo no gariiiHhnient until after awanl ( 'I'ute v. The ('orporution of thv (.'it;/ of Toi-onto, 10 U. C Ii. .1. <)(), W I'r. R. 181) ; nor can salary not yet payabk- bo garnished (Hall v. Prite/iett, lUl 15. I). 215; A'.' iSlian'lei/ v. Moor,', !» U. C. L. J. 2l)4). As to pensions and auporanuatioii allowances, sec {/nnes v. Eiu'^t India Co., 17 0. B. ;{51 ; J)ent v. l>ei>t, L. It. 1, l*. & D. ,%(>; Kf i>arte /rawker, L. R. 7, Ch. 214; ^Ki/A-ox v. Terrell,;] Ex. I). .S2H ; Sansoni v. !^anmm, 4 i'. I), (il)). A debt, ?)OH(i ,rt'(/(' assigned before the judgment is not attach- able (//);>r/( V. Coates, 18 C B. 757); nor a debt so assigned bo- fore the attaching order ( Wiie v. Birkrns/iuw, 2l> L. J. Kx. 240) even tliough the garnisheo had no notice of tho assignment (Pickirhiij V. Hfracombe liaUwaij Co., L. R. 3 C. I'. 2;}5 ; lioh- inmn v. Xe.fhiti, L. R. 3 C. V. 2154 ; liroum v. Mvthijfin, 5 I'r. R. 231 ; (■'/•(Ih; v. MeDonell, 39 U. C. Q. B. 412). Where the garnishee had given to tho debtor a checpie for tho debt, but, on service of the rule ni.ii, stopped payment of tho cheque, it was held that tho debt eould be attached {Cohen v. Hak, 3 Q. B. D. 371). A debt owing to two cannot be attached for the debt of one (Re, Smart v. Miller, 3 Pr. 11. 385 ; MeCor- mkk V. Park, 9 U. C. O. P. 330). A notice to treat under the English Lands Clauses Act, on which notice nothing had been done, was held not to create an attachable debt (Rie.hardson v. Elmit, 2 C. P. D. 9). Upon a judgment against an executor as such, a debt due to the testator's eat&te may be attached (Burton v. Roberts, G H. & N. 93 ; FowUr v Roberts. 2 Giff. 226 ; Tiffany v. BuUen, 18 C. P. ATTACHMKNT OP DRBTS. 30'> ffl). Tlid order in micli oano hIkmiIiI hIiow on its fiioo that it Ih (liriictc'il to tlio oxtMMitoiH liH Murli {Slriu'im v. J'hiiH/m, L. K. 10, Cli. 117). A (Ic.lit o attaclnMl to an.MWcr a |ti'ivat(! dcUt (lliniunr. entered nf the death of a garnishee, ho aH to i^et exeention a^aiiiHt hJH ri'pre.stuitative (/i*!' Witrilv, Vtiiiri', H \'r. \i. '\'2'.i). An (ixiientor or ailtnini.'arty to the jiidf^nient cannot |iroe<'ed nndt'r thin l!ide without iiiakinj.; iiiniHelt' a party to the record {/{iii/ii K. fi IV TiK). The creditor niUHt he one whf> is cid.ith^d to onforiM' iinniediate piiynM^nt. 'I'licreforc: the hohUir of a iiond of a oor|>oration containing a condition that ail hondhiihh:rH Hhonhl he p;iid /xiri /mtinii, waM held not to \tv HUch a creclitor, sinci! an attai^hnient would jiave j.;i ven him priority <»ver other hondholderH {KcniKit V. Wi'ntiiunitlir hiifinircuirut (foriuii'iHMiowrH, I i I'lxch. 34!»). Tho dehtH are hound from th(( date of the ord(!r f)f attacdiinent ; and no Hct-oH', and notiiin^^ ;dreetin^ the H^atc; of thi; aeeoiintH hutwcen tiin garnishee and th. ; hco Nntlian v. (JUch, r> Taunt nfiH), but not after {'I'dpp v. Juiwn, L. R. 10 Q. H. 591) the date of the order of attachment. Where there are Rovi> liitl'iniy. .17 4 Order for third (icrson 3rd Proceedinjfs ».s to claimB of third persons. ONTAUIO JirDIPATftllW AOT, 1HH|. or HO nuioli (. \{. H. O., (V no. H. ;l(»!). ) TliiH JM iiliMilii'ivl wiMi Mn> KMulinli Itiilo, iiml in in Niilininiinn Mio Hi>itu> im Mii> |noviHi(iii ( i. \, I*. Art., m, HOD. S. li Illl> ^llnliHlH>ti>nnining liiM liiiltility Ih> triotl or il(Hlion in an ai'tinn niiiy bo tried or (li'loi ininoil. (|{. S\i|». ( !. lH7r», Unlcr 15, |{ 5 ; (lomp. \{. H. O,. e. r>(), h. MIO.) TliiH Ir iiloitMon) wilh tlic lOiinliwIi IJiilo, ami ^Ivch n HJinplor iniiohiMoiy Mwvn U. H. (>. o. ftO. h. .'110. To i liin liaMlity, lio innnl. niiliHry th(> .lu(l>ti> thivt lio liiiH \vi\\ ui'DiMiil tor iliMpiitiiiK lii^^ liiil)ililv Inr tlio (l«'li(. (.Vct/'mr<> an lioMon Ih pt'inlinM iiKiiiiiHl; i\w uiiiniHlii'(* :it, |.|i(> unit' of (.!)(< jutiKinont' (it'lilor, (iml Mit'io ih no collnHion IikI.wci'Ii t'>'.';\;. iiio ('o\irt will not umnl. ii writ. UKiviiiHt. tlm uiiiniHiitM) (/»V/ii»n/,(l that' Mi(< iloht, \h not. liaMn t.o ivt.t.ai'hincnt., allow tlio jndginonti oroilit.or to jh'oimmmI agaiimt tho giniMHln'o {Srjiiiiniir V. lilt (\>)yi,ir'2Sr), luitr, was not intondcd to apply to such a caso ; but ifiuvri', in tho Ontario Uoiirts. 9. WlnM"o in ]>iMco(»di«i!j; to olitain a.n attiioliniont of dol>ts it issui»or«»s(t>d l»y the ujarnisiioo tiiat tli(» «lol>t Houglit tt> bo ntt.i»ohod bolonsjps to sonio tliii'tl porHon, or that any thii*d ]>orsou has a lion t>r oiiarijo upon it, tho Court or Judii*^ may ordiM* such thii'tl jnu'sou to apjioar and Htate the nature and j)artiouhu*s of his chiini upon Huch debt. (K. 8up. C, 187r),OiHlor 45, K. 6 ; Oomp. R. S, 0.,c. 50, 8. 313.) This Rule is tho same as tho English Rule referred to, and corrcsjHuids in substance with sec. 313 of R. S. O., c, 50. 10. After hojiring the allegations of such third person under such order, and of any other person whom by the same or any subsequent order the Court or a Judge may ATTAOIIMKNT or IMCIITH. .'ill RniM 876-37», n Biilmtftiioo .'17 n 'K'-'l onli^i' )'•» aitpciir, tir in cmho oI' miitIi Uiir'l ^nMHun tiol, up |H>iiriiif{ wlii^i Mi'<|iil iiri'di'din^ Ut IIm< iirnfiilin^^ I'liltiM of t.liiM Onjcr, iiidI iiiiiy luti- Uin (tiaiiii (if hikOi Uiinl pi^iHoti, ur tuny iiiiiko him^Ii nlJirr ohImi' im Hiirli (/'mirl, or Jiiil^iwtlniil iJiiiiK III, ii|ioii Hiii'li toriiiM, ill iiH nifioH, wiUi r)'M|ii'(!l, l,o Uin limi or ,„i\,. I!. H. (),. (^ fiO, H. :IIM, HiiliH. IJ.) Mitiiio UN iliii I'Iii^IIhIi Ft.iilo, (iml iMirri'H|iiiii., I!, r»0. H.,o MUvhrll V. ///v. I,. |{„ 2 y i». yr.o. II. i'liyiiKMil, miidn l»y or cxciiiilion |i)vi('(| upon >,|i(i""f'ii'«'i'><' ^iiiiii.'tlinn iini|<>r iiiiy midi proi^inKJin)^ km (tf'oii'Miiid mIkiII l<«i i/y t,i»y';ri(j(it. II viiliil iliHrlinr^i' lo liini uh ii^aitiHl. t.lio jiiil;j;tn):iil, j;liHli Itiilc rdformd to, and corrcB- [khmIh ill HiilmtiiiM!!) with |{. H. (>., v.. 50, h. ,'{I7. .'irr I'J. 'rimro hIiiiII Iki l<(!pt l»y tlm piopor f)ITi(!<-r n, didit Ao Ktiirinni iittiiidiiiiont l)ook, luid in Hii(di liook Miitrif^K idiull Ix; niiuli; )<',!,',{ ),y ol' tlio iittii.(diiriont iind procncdin^'H tlior<'.on, with nain*!H, i""i"f (iiitciH, iind HtiitmimntH of tlio iinionnt rtor'H examination could not ho made on an application for that purjjose, though it might perhapa he madu by way of puniahment, on an application to commit. I' ' t vvrn. \{ \)V.U \ 1,1 I \ V iwilmni-nl ll\H M |v(Hv ill* I M t'l |ntHm>H'i|Mii nf i\\\\ \\\\\\\ \\\\\\ 1»> cMfnti'i'il \\\ \\\\\ III |iitMMi> l»<>»i'torovi' U'mmI Im ih-liiMi'i of i'|i'i'ih(i'Hl In llit> H^\^^o^'^^^V I'lMlMH i\| rowUKKM \,-.\\\ [W Mll|t, ( '. |M;n. \)\yh^\ 1M. K I ; ,V,v «l O rh\ . No "',M ) Moufd'rtl \\\ih tl\i> l''i»ul(«li lluliv '^ \\ h.>n> 1\\ !n\\ (u(I»Mi>n iln'»i'iii iiiuiiinl 'Oli>il 1<^ ili>liMM \(p pOHMi'M^ion 111 )»n\ liinih In hhikp n( j ihi' piiion pinHi'i'iiliim hih j««^<''^M< i\\\\ OliliM lot lllfll |iUI|tnHi>, I I Ml lM\llll<>>l 10 -^m* «M\I M \\ I ll Ol lion on llliiiM lilt III \\:\\\\ '.ll.'W U^ «ImO SOI V ioo Ol mii'll jllllmUl'MI Itllil llllll I III" Nfuno l>!iR noi hoon oUo\ Oil ^H Miip »', iMili, ( hili'i |M, \«U \\\\\t\ i'Xi'i-|i| III.- «iMi|'i iit lir!ii'l«i>lN winch rt\-<- not in lln» lvn^li<»l> Uulc. l>ul "ii'in i(n|ilii'il lliiii'tit. .'V A Wlit of |ionHO>»nion Hlnill liswn llio ollool ol' ii \vrii Ol" !»SSl<»} . Not \n i\w lM\jili«1\ K«l «>!«. t> >v lo»in <>l Mil* ol ]>o-»«o«<>ion. vrv Vwww I 'H in \|i|ii'nili> (.1) I'ho <'lnol Mn>o bvlworn rt will iil iniBi-»l:n>i'i> mnl ii writ of ^i> "tlolVnil .mil KivjN " \\w plinnlill " in\l(iiii niiiv ov ^l>5^ l^'o u<>'''n ov o|V.ma>n :ni\ ol llioin " |v.. Ilntiii'll's fXNnns ^>SV^) ; l^. ii-nili'inu! in\ni'i'i>»m\(y i»|i|iliiMk lions (ov .1 now \\u< wl\oii> ,i .1. lon.lanl nron^lnlly ii>»nini'H iiuh- st^Mon «l>ov lv\iv>i oioi>to-l l>v tlio hIioviII (Mi'o />.i< ./, /'. ,'^\. A' U '2T ; h\hiw^h\-. /iVmjmVi'. i\ V\. \\ 1(11 i Mi'lhrmoU V. ^^Arw.Vi. 4 IV K, V>.V2), j,j^^ WUIT OF OKI, IV KKV (('M ATTKI,S), u><* iysnil in llio niiinin>r hoivtot*Mv in \jsv in ;>ot i«M>s of .7<^/»)>«/f in lln' Suporior iVmi?; of Common h-^w. (K. 8up. C. 18"r>. Onlor ID.) l«iontioAl with tho Knclish \\ulo. Tho manner of iHsiiing inut enfoivin*: snoh writs .n tho Q, U. and C V. appoarss l"i*omll. 8. 0. c 6rv $.. ^ whioh IS *s follows ; " .>(%. In All OAsuMs whoTV $»iHvifio jivHvls. ohattols, «l«>o«1s, soourie ties, i^r vaJuaWo jv^ivi^, or other articles of tho like kiiul, ar. i ; . I'llANni" (((' I'Alltirr) »!♦ fili'Mtl. M«(, lint iliiiMtH(ili'il III ''r"iM>. , ttml Mil' (ildlnlKt (kh \ti(iu MC, )1WI, |||M Iiiiiii'mI iif III" |ihiiitllll, nlii'ic II U'cnvi'iy "I 'l''llvi'iy 'if III" |Mii|iill V ill mjiI'I'Ik In iji'ulii'il. (Ilri'cl: It wiH (if ini'Ciiflnd in Innuh nil till' |iiil()iiii'iil, i'miiiiiimihIIiiu! Ill'' ilcri'iiilMiil t<|i' /'HIi'hIIv IimI>< llvi'i ii|i liii IImi Mil III" |iMi|iii I y ili'iiiMidli'l, (iiiil, III /•((«" (if icfiiMMl, lll'll III" il"l"lli|>llll; III' illli"il"i| Mini 'l"l'illl'"l III lill'iiili lllllil \lt' riiiil|ill">i \lllli III" l"l|ii" of III" HI 11, Mini mImii IIimI Hit' i/'iikIk mIi»( I'li'tllil'i i>f III" il"l' ii'I'iiil Im iIiiiiIiI" III" vdlii" lit Ml" J(|ii(imIv I»i IjllliillJMtl II" ImImII Mini Itllll lllllll lllC fill lIlM lllll<'| (if fllf ( Vlllf f, |;ll I'llMlJd' III I'lifiKi'K nlii'illi'til'K (»l Ml" ttlll ) lit, id III" Klifl'ill 'if ill" iiImIiiIIII, III" < 'mill III .IikIu" (iimv (i|(I<-( (Ii" f-!|iMi(f mi iiml*" III III" i|"I"IiiImiiI 'I |iMiii|ii III" V Mill" I if riiK'li ('IimMi'I ; liiil Mi" |i|/iiii llir "IimII "lllii'i Im' III" MMiii" III liy mm"(imimI" will. Ill Wfilt'if ii M IU>h liol lllllll iiljfi', ilt'ulli III liiiiiltiii|ili'V III' iiiiy of lUi' f"" '''"•. '^'|'/,V//f/t,/'' till' rilllMn III' ni'limi nillvivi' in "iilil.iliiin, nnil mIimII i,i,i,iimrfmt/^. Illii'illlll' ijl'l'l'i'l i\l' liy ll|l' ll'wi((lllll<'lll, "IMlli'ill ' I'l'l'Vlit" iilil mill ili"iiiiV"lii"ill. Iim'MiiiiIm llf uinUniU (/"'I'l »i «i(if, "'''• '♦'•'''"'" W'liii'li liim lini'iiiii" il"l""l IV" liy ii'Miiii I (if i|",'i.l,li 'Il 'i(.li"r' 1 IWIHI' W'T" liiiiji Hii" " Mii|i"i')"il"i| liv '■iiiM|il". iii"«|("ii-ii7", iri'Mi'clM 'if firii j. ri'iliii". Mill. Ml" (iiui'i'iliii" WMM ililf'Ti'iil. ill Ml" "("V"!/!!! 'I'/iirU. Ill Ml" ( 'iimiiiiiii l/MW ('iMii'M llf MiIh I'l'iviii'" Mmi utivi'uii Wtm jrilVi'llli'il liV II. M, ( (, " no, M '^.'/.H, ifmif (Jli'l'T fl|('.<'' >Mili./i- iiii'iil.'4 III" |iiiii'"iliii" VM,ii"i| M. lil.M" /i"i''ii'liii(4 l.'i Ml" ruil.iii" llf Ml" ili'li'i'l. wliii'li liMil I iiiii'il mill Ml" «(,M.(/(' (I.I. will' Il if, 'I'' itrr'5'l. ill Ml" I'liH" III ili'iiMi. Ml" iiimiiMlf wim "m|i''W"r"'l i,t> t:uUT n mi^yrHliiiii llf Ml" i|"M,Mi, mill |ir(('!""(| wif.li Mi" ivitnu m i\ip. lllllll" III' 111' ii(/MiiiHl. Ml" |ir(i|i"i' |i(iiM"w ; mill Mi" f.ruf.fi '.f f.foit »ii^!i(i'wliiiii mi^(|it. I1M.V" li""ii Miiv"i«"(l (iri'l Mi"(l If t.h". f»l)i.irif.iff iiiiiiMi'il III ii|il,i>r Mi(> iii>('i>nHM.i y Hiij/f/i'Ml.i'wi, Mi" (l"f<'(i'l>i,nt fu\i/hi liy niiitiiiiiMiH r"i|iiii" liiiii l.'i (III H((, mi'l in (["fiiult, uini)ii i\o mi imimi'If. Ill ('lHi.iii!"ry, Ml" miiM.iir wiim u;iiv"rii'!'l in Mii« I'r'c/irc;" f/y f,hft Cliy. Oi'tlciH iiiiiiilM'riil fioiii ;t.'J7 l.'i -Vil. 'riiii |»rtiM(iiil; ( Milor /iiln|it;» ill Hiilmf,(UHic t,h»! (ihjir»';<;ry ]fTiitA'Anth, 'riicro In iKiUiiiiu in Mm iiltnvo Kill" in /ilf^r Mi" "xisMni/ law iM to wliiit ()ivUHrH ol aiiMoii (In and wliiit. dn nnf, Hiirviv". N>,r m tliisro luiyiliiii^ in |niiH"iV(i t,n (iiiy |»(;rH«ti a ri^ht nf fuA.Mtu wtiu.i, by tlu) (inliiiary iiiIch of law Iiiim |iaHH"(l frnrn iiirn. Tfin.it, nu f.hh bankniptoy (if a plaititiir, wlusro Uk! ri;^lif, nf acMon im inn: whi';h pasHoa to tlio truHtvu, the itctinii caiiiint hn jcarried on by th*: iiii'lir t'/t ii\>-r fff'i i ^1 314 Rnin* :t»4 Assignment ptndfntf itU ONTAIMO JIII>U'\TUU« ACT, 1Mfl|. Imiiki'uii^, \\\\t f>iily l>y Ml" t.ni«^i {Jttrhmi v. Sniih Kiti^frni li\i, i I), n ( ' ll l» Hfl) If, in HXi'li II I'liHo. Mn-ii' mo twn liiiHiicH, mill one rifiiHi'H In ^it on. Mm (itliri' tnity *l<) ho, miil iiiiiku liiN CO tniKtft' i» ili'fiMiilmii {thiif). On (III' ItiiiiKnijili'v of pltiinliir, llio ili>ri>ni)iiii(, wiMliiiii; {.„ Imvo (.Iii< iii'tiiiii iliHini'^soil I'lM' uiinl iif itiimi'i'iitiiiit, wiiH i'i'i|iiiii'il 1,1) fivo iintii'o (i> Hii' (niH|('(> ( W lifilif v, Sirhnfun A')/. Co I ( 'h. |) »U ; .x.. iiIho a*. AtkiiiM, I rii. I> H'2 i Ciitihion v. /(,>»(/.»•, ll IV K. 117). In nil iit'tiiin l>v (li>' I'mlnim'r nf rv Itill nf i-xclimiHK (inii'ii«t. Ili(> iliinu'i mIiii li.'iil lM>i'iiini< loinkriipl, iinil hiiIIckmI jinluinoiil. Iiy iloliuill. till' (niHt.i>i> ii|i|ilii jinlKini'nt to lio Nt>l aniili' nn jwivnii'iil 111' i'ihIh, iviiiI l.liuli till' lriiH)i<(< lii« iil. Iiltrily li> ili'lVml in llil' II mil' 111 lln> ili'liliii" ((r'.i././.i(i/ V. /'ii.i/. . W. N, ISVri. p. '2;i(l, I Cli.vil, rii. Civ I '.'ID. An (inlcr to iiilil piu Mom iinili>r tlio IIiiIih of lliiH thiliM' in nn oiiliM III' iMuirHo ; ii|i|ilii',iliiin in Comt in nut niM'i>Mxiiiy (Cnuif v, l.ofOis, 'Jl W U, !i;i : h',>ir,ii\. Milln; ll>i„'., I(M»). A« to tho oiiHi' of ooimolnliitoil lU'lniiiH, hco AV Wotilrj/, \ L'li. I). ISO. Wlioro, after iiiil),r'n<'"t. it in merely tlimired t.o iMHiieexeeiition, mill rigliln or li.vliilides lime lieemne eliiin^eii liy ileiit.li or nlli' i wise, the peVNon HeeUin^ to inHiie evei'iition iniiy proiUHul iiiultT Kiile ;i."i(i, /)(».. H I ). Wheiv live defi'iuianls were joint ly ami Heverally liahle, Iwn of wliotn lieeanie hanknipt, l''ry. -I., oll'ere'l to allow the trial U> Btaiiil. th.vt the other three might nerve nofciee on tim tniHteeH iif the lianknipts if they wisheil to do ho ; t\H they ileeliiieil, tlio trial was ordereil to jiroeeeil (IJoifil v. Dhitiiinrk; 7 < 'h. I>. .'I!IH). Where a petitiom>r had died after an order directing? eni|iiiri('», it was ordered that the petition bo oarrioil on liy the cxeeutorB (AV Afi-in\^ Kstntv, 1 Ch. I). 8'J). In WhiijroiY V. T/uunpsou {\\ (th. I), -ll IV 'onrt ap|>'>iMt.<)(l a person to represent the estate of ; plaiiitill. ^vho died insolvent and intestate, so that iid.mt inigli' ivo 8oniel>ody aj;ainst whom to n\o\e to ha n; action disinist. . lor want of proaooution. Where an injury liiw boon t«) tlio estdte of thi di>oe;vaed, the aetion survives to his ]>< r.son ' r.. proaciitative ( Tu'i/rro.<.i v. Oiwit, 4 C. P. D. 40). 2. In case of an assisjumout. creation, or ilovolution of any ostato or titlo pendonte lite, the action may bo con- tinuod by or against the j>oraon to or ui)on whom hucIi est:ito or title has como or devolved, (R. Sup. C, 1875, Order 50, R. 3 ; see G. O. Chy., No. 337 ; R. S. 0. c. 50, s. 229.) Identical with the English Rule. ciiANOR or I'AiiTirn ny dkatii, kt»! aiA .1. Wliiti'o Ity iniiHiiii (iC iimrriiii^it, i|i>iilli, or \iuuUi\\\>lry, RniM nriiii.V •tlJicr nvfut, orcin lini^ iiri»(i llm irnnriicnrtwiMwil. of 8(IS-3II7 M\ ml inn Mini (tiiiiH(Mt( '* •'Idi.ii^m nt' rnitiHrniMHioii of irit.<'r«IWA (pr liiiliilil V, or l>v ii'mhuii ((riuiy iimhuh iiilnicn(,i>(| r(imini/""'"' •^'*'''' IIiIiM'XIHIkIKM- (llItT I Im> riilMllll'llccinCIM. o| tJlIt llCUMn, it , ImnKiwif lioi'oiiD'H iH'cuHHiiry or (IcHinilJo Uiitl. iiiiv iuthoii not. nlmiKly ''"*'';"♦ '""* II |mrly to Mm> lu'lioii hIiuiiIiI Ih< iiifii|i> n |iMit.v (hcirto, or iliiil Miiy |M>rMoii Mlr(r<'l.o in imol.lior r(i|i(M'ity, nn order lliiit, tlm pro cnoilin^'H ill iJio iM'tion hIiiiII Im> nurii'd on li( iirtion iiti'l HiK'li now lifirty, niuy lio (ililMiiicH in\ /inirl/ic,(ii) ii|(oii tin nllrjful.ion oCtunl) cIdhh^o, or IriiiiMiiiiHHioii ol' iiil.MntHl. or linJiilil.y, or of hiicIi pftrHori iiil,nit>«t.n(l liiiviii^ »'oiin> into rxiMloncM, (('oin|i. I{, Hup. (!., |H7r», Onlor r»((, |{. 4 ; |{. H. (). o. .'JH, h. 4I> ; Iim|.. Aol. ir. mill HI Vi.'., (!. Hi), H. r.y ; (1. O, (!liy., N... 'M',7.) {a) 'I'Imi lliixlinti lliilii lifintliii wiimIh " r.r jiurh," iimt«iaril't*irwiir'rv<"i '-f «hiill olihnrwiHo ilinMil,, l»n himvciI upon Mm (ionlJnnifi^ ' [iiiH.y or piii'tioH t.o llm ncl.ion or lliiMr noiicilorfi, nnd aJHf) u|K)n ntmli HiK^li imw pm-l.y (imiIomh tim pi!iHon nnikin^ tliC appliiinl.ioii Im liiinHnlf iJio only now piirt.y), nnil tlm ordnr nIimII from t.lm t.inm of Hindi H»irvi(!n, Hiilijfvit, rmvfit.lifdfiHH U) iUci imxl/ (iv»! following KiiIch, Im l»indin({ on t.lm por- HoiiH Horvod tliornwitli. (a) (i.s a guardian a'f, litem in the action, shall be served with such order, such h. 316 387-391. :i88 Indorsement oa order. Appx. Form 20. 389 Application to discharge order by persona under disa- bility. »90 Application to discharge order when served out of Ontario. :}Oi Application in 'ase of order allow- ing service by publica- tion. ffi ONTARIO JUDICATURE ACT, 1881. person may apply to the Court or a Judge to discharge or vary sucli order at any time within twelve day.s from the service thereof. (K. Sup. C, 1875, Order 50, R. 6; G. O. Chy., No. 339.) Same as the English Rule. 6. Upon every copy of such order served, there shall be indor.sed a memorandum in the form or to the effect set forth in Form 20 in Appendix (B) hereto. (6'ee G. O. Chy., No. 341.) No form is given in the English Rules. The form of indorse- ment in the Appemlix No. 20 is the following : "Take notice, that if you desire to discharge this order you must apply to the Court for that purpose within twelve days after the service hereof upon you. The original statement of claim in this cause is Hied in the office of the at {and if the service in nfti'r a jadrpnent directing a reference to a Master or other officer, add) and the reference under the judgment in this matter is being prosecuted, in the office of the at , " 7. Where any person being under any disability other than coverture, and not having had a guardian ad litem appointed in the action, is served with any such ordjr, such person may api)ly to the Court or a Judge to dis- charge or vary such order, at any time within twelve days from the appointment of a guardian ad litem for such part J, and until such pei'iod of twelve days shall have expired such order shall have no force or effect as against such last mentioned person. (R. Sup. C, 1875, Order 50, R. 7 ; G. O. Chy., No. 340.) Same as the Env' . .^ Rule. 8. Where the order is sei'ved out of Ontario, the party served is to have the same time to apply to discharge the order, as a defendant has to appear to a writ of summons so served ; but an application may be made for shorten- ing the time. (Comp. G. O. Chy., No, 342.) Not taken from any English Rule. 9. Where the Court or a Judge authorizes publication instead of service, the Court or Judge is at the same time to aj>i)oirit such time for applying to discharge the order as seems proper. (Comp. G. O. Chy., No. 343.) Not taken from any English Rule. mi wtmrnm TRANSFERS AND CONSOLIDATION. 317 ORDER XLV. TRANSFERS AND CONSOLIDATION OF ACTIONS. 1. Actions may be transferred from one Division of the High Court to another Division by order of the Presidents of such Divisions. {See R. Sup. C, Order 51, R. 2.) The English Rule referred to gives this authority to the Lord Chancellor, with the consent of the I'residcnts of the Divisions from, and to which the transfer is made. In England the or.ler is made by the Chancellor on written consent of all parties, (jr on notice [H amphrc.ijH v. Edwards, 45 L. J. Ch. 112; VV. N. 1875, p. 208 ; 1 Oh. D. 41). It applies to transfer of petitions, though actions alone are mentioned in the Rule (Re. Buijd's Truds, I Ch. D. 12). For cases under this Rule, see Cannot v. Morgan, 1 Ch. D. 1 ; Hillman v. Mat/hew, 1 Ex. D. 132 ; JloUoway v. York, 2 Ex. D. 333 ; Oen. Steam Nau. Co. v. London cfc Edinburgh /Shipping Co., \V. N. 1876, p. 56, 2 Charl. Ch. Ca. 67. 2. The Presidents of the Queen's Bench, Chancery and Common Pleas Divisions sliall, from time to time as occasion may require, meet togetlier and examine tlie list of motions, rules and other matters set down for argu- ment in each Divisional Court of the High Court, and direct the transfer of such and so many of tlie said motions, rules and other matters from one Divisional Court to anotlier as shall, as nearly as possible in their judgment, eciualize the amount of business to be done by the said Com'ts. {See 41 Vic, c. 8, s. 4, Ont.) This Rule does not require the consent of the parties or previous notice to them. 3. Where aii order has been made for the admiuisti'a-' tiou of the assets of any testator or intestate, a Judge of any Division shall have power, without any further con- sent, to order the transfer to such Division of any action pending in any other Division by or against the execu- tors or administrators of the testator or intestate whose assets are being so administered. (R. Sup. C, June, 1876, K. 18.) The English Rule applies also to the winding up of any Com- pany under the Companies' Acts, 1862 and 186!), and conlines to a Judge of the Chancery Division the power of making the transfer. The order was made ex parte in Field v. Field, W. N. 1877, p. 98. 4. Actions in any Division or Divisions may be con- solidated by order of the Court or a Judge in the man- Rules 392-395. Transfer by order. ,193 Prtyiuents of Divisions tr make ti'aiisfcrs neoessiiry to equalize business. .194 Tmui-fer under ad- Miinistration order. .193 Consolida- tion of actions. Ui.r.'fli|f||^jPf 318 ONTARIO JUDICATURE ACT, 1881. IIM' :: m i\} ^ . ' Rule 398. ner heretofore in use in the Superior Courts of Common Law. (R Sup. C, 1875, OiJer 51, R. 4.) The expression, consolidation ot actions, is used in two senses. First, if a plaintiff brings two actions against the same defend- ant, for matters which might properly be combined in one action, and the double proceeding is shewn to be vexatious, a Court of Law, in the exercise of its ordinary power to prevent any abuse of its own process, might consolidate the actions ; that is to say, stay proceedings absolutely in one action, and require the plain- titi' to include the whole of his claims in the other ; and this has been done with costs against the plaintiff. (See Cecil v. Brv/rjes, 2 T. R. G.39 ; Anon, 1 Cliitty's Rep. 709 [n.] ; Beardsallv. Cheet- ham, E. B. & E. 243 ; 2 Chi'tty's Archbold, p. 185, etseq., ed. 13), But the term consolidation is more freipiently ubed in a differ- ent sense. Where actions are brought Ijy the same plaintiff against different defendants, but the questions in dispute in all are substantially tlie same, the Court, if the defendants apply, will stay procceilings in all the actions except one, until that one action has been determined, upon the terms that the various de- fendants agree to be bound by the event of the action which pro- ceeds. This practice has been applied to the case of actions against the several underwriters upon policies of insurance ; to the case of separate guarantees by different instruments of separate parts of a debt (Sharp v. Lcthhrkhjp, 4 M. &G. 37) ; joint and several obligors of a bond conditioned for the good behaviour of .another i)erson {Andcn^ou v. Towtjood, 1 Q. B. 245) ; principal and sureties on a replevin bond [Bartlett v. Bartlctt, 4 Scott, N. K. 779) ; and the several members liable upon jen established as being just and convenient' {Gaskiii v. Balbi, 13 Ch. D. at p. 329, per Thesiger, L. J.). A receiver in Chancery has a right, without any authority or direction from the Court of Chancery, to bring an action to com- pel payment of a debt due to him in his character of receiver (Expatte Harris, He Leivis, 9. Ch. I). 423). i ^ippfpp t i i ■ i ) . 1 ; 1 ■[■; 320 Rale 395. U,-v. Utiil. c. y.i. s. lit. Jurisdioliim of County (.'ourtff. Kpv. Stilt, !•. 5;t. Kev. Stat, c. .')4. Rev. Stat, c. 4;», s. 20. Rev. 8t.it. c. 47, 1. 54. .Jurisdiction of Division Courts. ONTARIO JUDICATURE ACT, 1881. A truntoo ftppi)iiituil upon liis own mulorbakiii'Jt in .i Muit tn art aa ri'(!(!ivi!i' of the trust propi-rty is imt umli'r ordiniry ci renin- st.'iiKH's, ill lOiij^^laiiil, entitled to a Hal;iry as roccivi^r {/'i/kiiii/ldn V. /;<(,'.•(';•, Ih-ill-ih Miifii'i/ /iiri'.'ifiwiif ('d. V. I'ilh'ninlitn, •_' I W.' II. 2;U). Mut ill tiiis I'roviiici! trusti'i'H arountitiutl to coinpiuis.'ition as such (it, S, (). c. I(»7, ss. :{7, 41). ThisordiT applies to (!ouiity ami Division Courts as woll as to the llinh ('ourt, ami .a party suiiiL,' in a (lounty or Divi.sion ('ourt is oiititliMl to ii inimlanuis or injuiiijlioii, ite,, wherever, if the (jauseof aotioii had lieeii of an amount witliiii tlm jurisdietiou of the lligii ('ourt, he WouM be lUititliiil to those remedies tliuru, Tiie lial)lc. " 5. In actions of replevin wlnu-c^ tin; value of the goods or other property or oU'ects distrained, taken or detained, docs not exceed the i^uin of •'j"-t>l), as lu'ovided in ' Tlu' /{rji/crin Ad.' " (). In Jnterploader matters, as provided by ' The Iiderplcmkr ^i rt . The County (Courts have also "jurisdiction in actions of eject- ment for the recovery of corporeal hereditaments (where the yearly value of the premises, or the rent payable in respect thereof, does not exceed .i^-DD) in tlu> following cases, namely: — (1) Wiicre the term and interest of the tenant of any sueli cor- p(nH'al hereditament has exiiired, or h;is been determined by the landlord or the tenant, by a legal notice to quit ; ('2) Wiiere tlie rent of any such corporeal iKu-editameut is sixty days in arrear, ami the landlord has the right by law to re-enter for non- payment thereof. The Division Courts have jurisdiction in (1) all personal actions where the amount claimed does not exceed iSGO (II. 8. O., c. 47, s. 51); (2) all claims and demands of debt, account or breach of contract, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed $100 (41 Vic. c. 8, s. G) ; (3) all claims for the recovery of a debt or money demand, the amount or balance of which does not INTERIJl PRESERVATION OF PROPERTY. 321 iiit t.it ai't /'ilkhiiildn •J I w! i;. ipcuHivtion well ;\n to • DiviHidii nM'(!V('r, if ii'isilii:i,i(m lio.-i llicru. it " every I of ai'tioii !!• to j,'iaiit well ii'licf, ;r ahsiiliiti; '. Hiii'.li ami iter-claim, itaft-iM' coil- I light to 1)0 yourts have uea claiiiuMl lit anil eon- iTtaiiu^l liy idaiit. foriir ill any and 11 rt, wliat- vil tiuiciii lis or other not exeeeil itri'plcader iH of eject- ; where the in I'esiicct namely : — y siieli cor- ned hy the (•2) Whore ty days in ter for non- i)iial actions . ()., c. 47, or broach . money or not exceed )ovcry of a ch does not exceed $200, and tho amount, or original amount of tho claim, is ascertained by tho c' ,i!>*;uro of tho dofondant, or of tho person whom, as executor o. ailministrator, tho defendant roproscnts (43 Vie. 0. 8, h. 2) ; (4) all actions of replovin, where thu value of the goods or other property or etf'oets ilistrained, taken or de- tained, does notoxeeed the sum of $()(» (il. S. U. c. 47, s. .%) ; and a minor may sue in a Division Court for any sum not exceeding $100, due to him for wages, in the same maniior as if ho woro of full age" (il. S. O. c. 47, s. 58). In any of thcao cases, therefore, the (!ounty and Division Courts can give tho same remedies as tho lligii Court {Martin v. Bannider, 4 Q. li. I). 491). 1. Whoro by any contract a prima facln caso of lia- bility is ostaI)lisli('.tl, ami tlioro is alioi^cvl as mattor of defence a rii^ht to bo roliovod wholly or partially from such liability, tho Court or a Ju(l<^(! may mako ati order for tlio preservation or iutiiriin enstoily of the siibjeot- miitt(ir of the litigation, or may order tliat the amount in dispute bo brought into Court or otherwise .secured. (11. Sup. C, 1875, Order 52, R. 1). Same as tho English Rule. This provision gives increased power to the Court for prcserv- ing the rights of tho parties uninjured, during the pending of litigation (sec Ifutchinmn v. Jfartmont, W. N. 1877, p. 20). There must be an action or matter pending (Re. Paris tikalinq Rink Co., lAiniUd, No. ii, 2;') W. 11. 707). Hall, V. C, there said, "I have jurisdiction to issue a writ of mandamus in every cause or matter before me. In this case, however, while thu motion has hccnataudiiig over, the petition has been (lismissod, and there is no longer any matter pending before me in which J can make an order." 2. It shall bo lawful for tho Court or a Judge, on the application of any ])arty to an action, to make any order for tlio sale, by any person or persons named in such order ami in such manner and on such terms as to the Court or Judge may seem desirable, of iiny goods, wares, or merchandise which may be of a perishable natui-e or likely to injure from keei)ing, or which for any other just and sufficient reason it may be desirable to have sold at once. (R. Sup. C, 1875, Order 52, R. 2). Same as the English Rule. The power given is new. An order may be made for the sale of a chattel which, for a "just and sullicient reason, it may bo desirable to have sold at once." Thus in Bartholomew v. Freeman, 3 C. R. D. .316, the Court ordered a horse to be sold, on the ground that it was con- suming its value in food, and there was no reason why it should not be sold. In au action for an unpaid balance on the sale of a horse, and for breach of warranty oi another horse received in part payment, plaintiff applied for leave to sell the horse so received in part 21 Rales 395-397. Itcv. Stat. 0. 47, H. r,i\, it(!v. at.it,. c. 47, », .OS. Ordor for intcriiTi prc- Hcrvatiiiri of property. 307 Sale of I)nrinhablo gOdils, >' ■^r:;,-:i:| 322 ONTARIO JUDICATUHK ACT, 1881. Rales 397, 398. Orilflr for dotciitioii anil iiispcc- tioii of projHTty. payiTicnt: IlcUl^ by Quain, J., that no order was necessary, and that he llule was not applicable (Anon., I ('harl. Ch. (Ja. 1*27 L. T., !th Due., KSTf)). 3. Ft slijiU bo liiwful for tlio Court or a Judge;, upon the !i|)|)li(!iitiou of any party to an action, and upou sach tornis as may sooni ju.st, to niako any ordcsr for the de- t(Mition, [)r('S(4'vation, or insp(al(l, J., )sed his defence property was l[)()iuted him re- lis ])urpose iiad lludge [Iliide v. [rant an interim \ii from ceasing was in posses- UlCh. D. 113). Lerty was legal, Inixcd), applied laid that it wa.? |7' V. Fletcher, 1 |l Ch. D. 600; 17 of the Act, I to injunctions, I; T/ieHwUk, 4. An application for an onlorundor section sovontnen, Rales Hiib-siiction oi,L,'lit, of tlin Act, or uiulor Rules two or 399-402 throo of this Order, may he, niiid(5 to the (Jourt or a .Uidifo. .f^^^f by any party. If the application bo by the {)laintifF for Appliration an order under tho said sub-section eight, it may bo made I,""|,'j y""'*" eitlusr ex parte or on notice, and if for an oi-der under the said Ivules two or three of this Order, it may be made, after notice to tho defendant, at any tinie after tho issue of the writ of summons, and if it be by any otlnsr party, tlion on notice; to the plnintilf, iiiid at any time after appearance, by the jtarty niiikiiig tho a|)plication. (U. Sup. C, 1875, Ord(!r 52, R. 4.) Same as tho Kngli.sh Rule. iS'w notes to section 17 of the Act, sub-section 8, and to Rules 31)7, :VJS. The Rule, it will be observed, authorises the making of an order on the application of the plaintiiV, eitiier rx parti' or with notice ; it will not in general be made ex parte ; but in a ease of rniergeney it will (Meluifih v. Milton, 24 VV. U. 071) ; Ihnnessj v. liolinumn, 3() L. T. rtl ; W. N. 1877, p. 14). Where it was alleged that trustees were on the eve of bank- rnptcy, a receiver was appointed on an ex parte a])])lication before the service of the writ (AV //'.v K^tate, 1 Ch. D. 270). 5. An api)lication for an onhu" under Rule I may be Application made by tho plaintilf at any time after his right ther<;to kui*'V ap})oars from the pleadings, or, if there be no pleadings, is made to a{»pear by allidavit or otherwise, to the satis- faction of the Court or a Judge. (R. Sup. C, 1875, Order 52, 11. 5.) Same as the ICnt'lish Rule. G. No writ of iniunction shall be issued in any case. Writ of ..... 1 II 1 1 • 1 i. 1 1 injunction An injunction shall be by a judgment or ord(!r, and any abolisiusd. such judgment or order shall have thecO'ect which a writ of injunction now has. (R. Sup. C, April, 1880, R. 32.) Same in effect as the English Rule. 40< 7. Where an action is brought to recover, or a defend- Amount of ant in his statement of defenci; seeks by way of counter- JJi^y^'flJ^^j claim to I'ccover specific property other than land, and int" court, the party from whom such recovery is sought does iiot j"ii{','.rraup dispute the title of the party seeking to recover tho same, but claims to retain the jiropcrty by virtue of a lien or otherwise as security for any sum of money, the Court or a Judge, at any time after such last mentioned claim ap- pears from the ))leadings, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such Court or Judge, may order that the party claiming to recover the 324 ONTARIO JUDICATURE ACT, 1881. Rules property be at liberty to pay into (^ourt, to abide tin; 402-405. event of the action, the amount of money in res{)ect of which the lien or security is claimed, and such further sum (if any) for interest and costs as such Court or Judt^e may direct, and that upon such payment into Court ho- ing made, the [)roperty claimed be given up to the parly claiming it. (R. Sup. C, 1875, Order 52, K G.) Same as the Engliah Rule. The power given by this Rule ia new. 40U Conduct of sales under 8. Where the trusts of any will or settlement are be- trnstsTf'wiii ^^^S fi'dministered, and a sale is ordered of any property or settle- vested in the trustees of such will or settlement upon trust for sale or with power of sale by such trustees, the conduct of such sale shall be given to such trustees, unless the Judge shall otherwise direct. (R. Sup. C, March, 1879, R. 7.) 404 Applieatinn to Court or Judge in Court to be bjr motion. 405 N'o rule or order nisi p.xcept when tiithorlMd. ORDER XLVII. MOTIONS AND OTHP^R APPLICATIONS. 1. Where by these Rules any application is autliorized to bo made to the Court or a Judge in an action, such ap})lication shall be made by motion. (R. Sup. C, 1875, Order 53, R. 1.) By the English Rule it is onl;/ to a Divisional Court, or to a Judge sitting in Court, that the application is by motion. When made to a Judge in Chambers, the rule or order to show cause continues in England to be the course. Where, under the new Rules, an order is to be obtained et parte on application to the Court or a Judge, tlie application need not be made in Court, but an order of course may be obtained (Hoffey V. 3fUler, 24 W. R. 109, W. N. 1875, p. 225). An application to stay proceedings in an action must be made in the Division in which the action is pending. No other Judge or Division has jui-isdiction to stay proceedings (Garbutt v. Fawcus, 1 Ch. I). 155 ; Re Morriston Patent Fuel Coinpam/, W. N, 1877, p. 20 ; Be South of France Pottery Worh Syndicate, 37 L. T. 260 ; Jie People's Garden Company, 1 Ch. D. 44 ; Walker v. Banaghar Distillery Gomimmj, 1 Q. B. D. 129 ; Rose v. Garden Lodge, etc.. Company, 3 Q. B. D. 235 ; Needham v. Rivers Protection, Ac, Company, 1 Ch. D. 253). 2. No rule or order to shew cause shall be granted in any action [or matter] except in the cases in which an application for such rule or order is expressly authorized by these Rules. (R. Sup. C, 1875, Order 53, R. 2). The English Rule has not the words which are in brackets ; it ia otherwise the same. For want of the omitted words there is MOTIONS — HOW MADE. 826 a difference in England between rules or orders made '.a actions Balea and those made in other cases, such as applications to set aside 406«407. an award, &c. (Re PhiUtps v. aUl, 1 Q. B. i). 78) ; but this dis- tinction will not exist in this Province. An order nid to strike a solicitor off the Rolls, when he is not before the Court, will not be granted. The proper course is to serve notice of motion. (lie a Solicitor, W. N. 1880, p. 30). See Re Cartwright, 34 L. T. 72. 40tf 3. Except where (by the ])ractice existing at the time Notico of of the passing of the said Act) any order or rule has orders*^' heretofore been made ex parte absolute in the tirst P^'j* '"'" ^^ instance, and except where by these Rules it is other- wise provided, and except where the motion is for a rule \\a) or summons] to shew cause only — no motion shall be made without jjrevious notice to the parties affected thereby. But the Court or Judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparal)le or serious mischief, may make any oi'der ex parte, upon such terms as to costs or other- wise, and subject to such undertaking, if any, as the Court or Judge may think just ; and any party affected by such order may move to set aside [(6) or vary] the same. (R. Sup. C, 1875, Order 53, R. 3). (a) The English Rule has not the words, " or summons." (h) The English Rule has not the words, " or vary." With these exceptions the Rules are identical. Where the party who has given notice of motion fails to appear the party served and ax)pearing is entitled to an order for his costs (Berrij v. Exchatxje TrcuUiuj Co. I Q. B. D. 77). But if the notice of motion is invalid, as by reason of the notice lieing too short, or expiring in vacation, the party served, not being bound to appear, is not entitled to costs if he does appear [Daubney v. Shuttleworth, 1 Ex. D. .'53). As to when costs will be given, where the Court decides that it has no juri liction see Broivn v. Shaw, 1 Ex. D. 425, and Great Northern Co. v. Inett, 2 Q. B. D. 284. Where a defendant has not apiiear<;d to the writ the posting up a notice of motion under Rule 131 will be good service within this liulc (Dymond v. Croft, 3 Ch. D. 512 ; Morton v. Miller, ibid, 510). As to the practice where defendant is out of the jurisdiction, see Gardiner V. Hardy, W. N., 1870, p. 1 85. A ruLi calling on a Sheriff to show cause why he should not pay to the plaintiff's solicitors the money levied under a fi. fa. is not a rule to shew cause expressly authorized by these Rules, and therefore, under Rule 405 and the present Rule, the appli- cation should be made on notice of motion to the Sheriff (Delmar V. Freemantle, 3 Ex. D. 237). 407 4. Unless the Court or Judge give special leave to two cie the contrary, there must be at least two clear days '^^y^' °°*''' 320 Rulei 407-411. All proper partie» uot ■ervoU. r: 409 Adjourn- ment. wm 4IO Service beforo appearance. 411 Service with writ or before time for appear- ftace. ONTARIO JUDICATURE ACT, 1881. betwoon the service of a notice of i otion and the day named in the notice for hearing the motion. (R. Sup. C, 1875, Order 5;J, R. 4.) Identical with the English Rule. Where one of several defendants served did not appear or put in a defence, on the plaintiff moving to sign judgment .against him and other defendants, tlie llourt directed a notice of motion to be served ))y filing it witli the proper officer two dear ilay.s before the next motion day (ParsonH v. IlarrlH, 6 Ch. D. 094). Where an order in Chambers was ma,de on the 14th, and notice of motion was given on the 19th for the '"Jlstorauch other d.ay Jis counsel can be heanl," thus not allowing two clear days after notice : held, that the motion could be properly made on the 2'2nd, which was tiie eighth and last day for the motion (Forrent v. Daines, 20 W. 11. 'hii). But in JJauhnei/ v. Shidtle- worth, 1 Ex. D. 5.3, where a notice of motion was given on the 20th for tlie 22nd, or as soon after as counsel could be heard, the notice was held to be b.-vd ; and Kelly, (). H., said that the Court had no more power to amend the notice by altering the day named than it had to pass an Act of Parliament. 5. If on the hearing of a motion or other application, the Court or Judge shall be of opinion that any person to whom notice has not been given ought to have had such notice, the Court or Judge may either dismiss the motion or application, or adjourn the hearing tliereof in order that such notice may be given, upon such terms, if any, as the Court or Judge may think fit to impose. (R. Sup. C, 1875, Order 53, R. 5.) Identic . with the English Rule. 6. The hearing of any motion or application m.ay from time to time be adjourned upon such terms, if any, as the Court or Judge shall think tit. (R. Sup. C, 1875, Order 53, R. 6.) Identical with the English Rule. 7. The j)laintiff shall, without any special leave, be at liberty to serve any notice of motion or other notice, or any petition or summons upon any defendant, who, havuig been duly served with a writ of summons to appear in the action, has not appeared within the time limited for that purpose. (R. Sup. C, 1875, Order 53, R. 7.) Identical with the English Rule. 8. The plaintiff may [also, without any special leave, serve a notice of mot. on for an injunction, and may] by leave of the Court or a Judge to be obtained ex parte, serve any [other] notice of motion, upon any defendant along with the writ of summons, or at any time after liiili mui APPLICATIONS AT CHAMBERS. 327 sorvico of tho writ of surntnons und boforo tho timo liniitod for tlio ii|)i)Oiiriinco of such dofonduiit. (U. Sui>. C, 187.0, Order 03, 11. 8.) The words in brackets arc not in tho l']n<,'lish Flulo, wliich is otherwiHc tho saino. 'I"hc ahovo Iliilo tliiiH niakos a (listiiiutioii betwcou notices of motion for an iujimction ami otliur iiotiooH of motion, authorizing tho former to he Hisrvod huforo appoaranco, without luavc, but rocjuiring leave for such service in tho case of other notices of motion. The Knglish Rule roiiuiros previous leave in all cases in which notice is served jjofore tho time limited for appearance. Bales 411, 412. ORDER XLYIII. APPLICATIONS AT CHAMIiKRS. 1. Every application at Chambers 4f!i ill Toronto author- Aippiica- ized by these Rules, and not made ex parte, shall bo niniic in a made in a summary way, on notice iiist(!ad of by .sum- »'"'""'»''y mens. (Comp. K. Sui). C, Order 54, 1875, R. 1.) '"'^" Tho English Rule rc(|uircs all Chamber ajiplieations to be made by summons. The above Rule ro(|uires (Jiiamber applica- tions in Toronto to be made on notice instead of a sunuiions, thus providing for a uniform practice on applications t(. the Court and in Chambers. This practice will apply wiiethcr tlie applica- tion is to a Judge in Chand)ers or tlie Master in (Jhambers, under Rule 4'20, or to an olHcial referee under Rule 4l21. Application at Chand)ers elsewhere than in Toronto, to any Judge, except a County Court Judge, will be made on notice. See. Rule 405 ante. Applications to a County Court Judge or Local Master are by Rule 425, to bo made by summons. Such an application noces- j sarily requires a previous appointment to be made with the Judge j or Master. Orders in Chambers should be dated of the day on which they are linally made, and should not be antedated, nor contain recitals of affidavits dated after the date of the onlor [Asldiy v. Tai/lor, 10 Ch. D. 70S) ; nor be drawn up stating tliat parties appeared who, though they appeared, wore not served with the notice or summons (Ercli/ii v. Eoc.lipi, '28 \V. R. a.Sl). Where an order is expressed to last until a particular day " or until further order," the words " further order " moan an order made on an earlier day than the day specitieil (Bolloa v. London School Board, 7 Ch. D. 760). Where an order is made by consent, such conscmt may bo with- drawn at any time before the order is ])assed and entered if given through inadvertence {lioijcr.'i v. Horn, 2(5 ^V^ R. 4.32. Not so, where the matter was fully understood .at the time, and the client afterwards changes his mind (Holt v. Jesse, 3 Ch. D. 177). Where the counsel and solicitors of a defendant, being aware of all the facts on which an order ought to be made, con- sented in Court, in the defendant's presence, to an order against him, the defendant was not allowed to withdraw his consent on ML»S ONTARIO JUDICATURR ACT, 1881. Rules 412-414. I Ptl' !' i 41 VU'. K. 7. 8, 413 Ki>nii of (iider. 411 KlatiiuT and tiii.e of appealing therefrom. tlio ground that IiIh ailviHci'H iiiiHtook tlicir iiiHtnictiotiH, an 2. Two of the officers of the High Court shall, in addi-.iu(i«tiient tion to their other duties, be judgment clerks of the High '^'''■'■'**'- Court, for the purpose of settling tho form and tei ms of such special judgments as may be referred to tlnnn for that purpose by any Divisional Court, or a Judge of any Division, or by the Master in Chambers. Not in the English Rules. 417 3. Where the offices of Deputy Clerk of the Crown i)pp„tv and Deputy Registrar in any County are not held jy cieri<.softhf il I J °.i ,x , /^i 1 /», 1 i-i 1 11 • Crown .inJ the same person, the Deputy Clerk of the Crown shall in oejiuty actions in the Queen's Bench and Common Pleas Divi- Registrars, sions have the powers and duties of a Deputy Registrar (not local Master), in addition to the powers and duties MM ON\Mll(> .MIMi A runi'l AtT, IMHI w MUll (III' l'.'|iil(\ HiMMMlltd •'.\\:\\\ III ilrlimrl III ll|i'l ( 111' « 'i iiw n. Ill :iilili( imi (ii (III' jiiiw I'l I iiiiil iliil iii'i lii'n>(i»(i>i 1' lii'liiiiiuiiit 111 !i l>i|in(\ lii'iiiil r II W Iwi i> I In- (\>i< iMIii'i"! Ill' iinili'il III (111' iiiii ' jii'iniii 111' 'iliiill lip >it\li'i| 1 iir.ll l!riM-(l:ll I'l ( l|i' lllill I'liilll , iill'l I'Vi-n lod'l I'liro Ml t lli":i' ( >l ili'l '1 ( ii I III' Mil 111 ( W II nlliri'!!. (II I'll lli'l Ol ( lli'lll, !ill:l II 111' ili'i'llli'il (iill|i|il\ (ii (111' l.iii'ill Hli^liHhlU ^.sVv «! o riu , N,i., :\:\, ;u. :i.i. M, .hm, :\\\, ;:i. ,Vr ) I'llli Kill.' Ill rd.rt r.illdtllli"! ;lll ( lli' |i|i'ni'll< |lii\Vi'l'l iif (lin i>iMMi( \ t 'li 1 !«i ii( ( 111' I 'i .Ml n III. I l'i'|in(\ lii'!ii'i( I Ml '1, mill (livi"! (ii Orti'h ol dli'ii' iilUri'l'i (111' I'. 'Ml I 1 111 (111- ii(lli'l II I l\i'll il'i lll'i iiivil rill' (iiUVi'V* ;lllil illll ii"i 111 !» ni'lill(\ |{i')ii'i( I ill fll I' Mi'i fill 1 1\ Ml ilio i.iUiiw iiiii ( "li.iiii 1 1 \ itiili'i'i, ,'i;i 111 .'I'.i «'ll 1>1\I f^ ' ;!.'( I'll'IX IV'I'llIX li.Tlltl II II 1.1 lil'l'|l III lll'l Hlllll. II I'lioll (ii iio I'.iUi'ii '' rill' .Siiiii'iiin 1 -iiiii \. Till 1 III'. ill. Ill u iiii ii I' nil S,-.1\,mIi1\' r<".>iilii(\ Ml M lllill iiin li Oi'|in(\ Ki'!4i'ili'.ii s iillii'i' in:i\ 111', lit 111 .i|ii'iil\ llii' iiiiiiii' III III .•»,vfi'ill. lirilli'. :\ ■(iiliriliil ill lliii ('.Mill, iiiiil llillliiii 1111 nllii'i' in tllC >ll\ .'1 l.'W'l \\ lll'l. ' lIli- lllli. 1' 1. 1 .\li'h l'l|llll\ l!i)M'l||.M 111 l»l(U.-l(«'.l, l\|'.in W li.ir.i ill Willi. |il.viilini'. I, ll.illi'rii, niili'l'i. 11 II I'rtUli. .Hill I'lliri il.i.inili 111 1, .111.1 \\lill"ll riiillilllllllriH inir in l>'l.lll.l|l 111 |11 ll.i I'llllll'H lllllllll.'ll'.l III 111.' I'llill' 111 llll' l.lll'ill M.C'.Irl .11 nr|illt\ lu'fjixlljll ill Mlli'll I'lMllllV. Ill:l\ lii' ml \ I'll " rVi Oi\1 ,14 " .! J 1 ,., .»! M.i^li I .1 .111.1 l>r|i|ll\ lii'il i| I .111 II M|i, , I i\ , |\ .lie (ii p\ ' ii'iiul.ilii'ii 111 llii'iv vi'M|ii'i'l ivi' ii|lii'i'.'«, inc In In' m I'iMVO :\Uk\ ;«|nih<';i'IiiiIv lii'^iHl r^iii ivs}>Oi'(i\ rl\ . \\\ r tl\o IlimI M;istors ;r.iil l>i'piilv Ki'^'.inlnirn i'('m|ii'.'Iivi'Iv. w 1vl;>tuM\ ;» 'i|U IS tili'.l Willi a l>rpiilv lu'i'.mlrMr. Ilu' l.in'al Nlrt-iiov .'Mill Oiiimly Komislrar ri'spci'lni'ly ni llif < 'niinl y «lirn' snrh bill h;»s li<\'ii (il>iil. :\vo (ii li;»\(i ;ill siii'ii piiwiTM miil miiIIiiiii tios u\ n-lMlton to sui'h suil ,'»s lii-liiiii; (o llio MmmIcI' juiil '. 'UiK nl KooiM\Js .'Ui.i NN Ills ii'spoi't" I'lv Oh Oril .sr> " ;>tv In iuUiiliiM .1 the p.iw ITS mill Mill liniilios (MH I'l'i'oil u|iiin 1 .lo.vl NL'»stiM-s by ihilcr .'!.'>. the I.hi'mI MmsIit in ( ic ('uiiiilv M hoiv tho h\\\ liMs 1h'(M\ liU'il ni;i\ hi'.u- iiiiil ilis|iiisi' ul' .ill ;\|i|ili(',i tioi's \x\ tho pr.\i;ross o\ siu'li suit Kir llu- liilKiwiii..; |iiir|iii U's, vi/. : 1 I'll ;»j.p.v,i\( gu.-u'ih.'Uis ii / /('.''(•)) t'lir nilMiils ; •J? For tiiuo to ;vi\swor or iloinuv ; S For lo.-wo to amonil Ivforo roplioMtion ; 4. Vo postpone tlio ox.vnunatinii oi witi\i'880s, or tt) lUIovv fur- tiicr tinio for tho protliu-tion ot" ovuloiioi" ; .">. For ioinihtv for costs." 0|i(i|r|i;HH /\N|> li|r|r(('(r,M »;tl MVi'I'l u| (III' iiml (li vi'M III I iiM liin mvti < n\'l Iki III in ixlli'i' M I'niili I \\ llli ll I'Ml'll \V lltl'll Mlll'll ' ll;lllli> III nil DM ollii'l' III liifjiHlr.ir iH 111 ili'l !i. \\ :\\ iniivil iiiir: Ml II I I'll' l.niiiil ni'l \ril ■ll\ i'l\ Ml r ill mil' lll.lllllrl. 1 1' |ii'i li'i nil ll \ll|il li'li|i(r li'niii rlili!' Ill ;Ulo\v fur- ;)7 All nlilitM wlili ll IK" liifMlii li|i tiy llt'i '!|i'll« (if Ki'ii.rd'i Mrilh'ir/ Mil WiIIm williiiiil. Il|i I' illlMDI I .111. ill ,r III ml ll iifiy III- 1,'iivM iiji liy lln' I'i'jimIv I(i>/.M'iI mm willi wlinin llii lull I'l IiImI I'll 'ml ni |M I'lvi'ty l'"|iiilv Hi'/mmI I Ml iimv i'l'iui' ilicici'H nii fnn'iiiir {>, i,i,t -m (ill full iliiaillii, Mfili', Id ii'ili'iii(il i'lii, wlii'l" lliii Mint, in ImLwcii lllii III l);iiiiil itiiii l|iii|fiiiIi i rn, ,ilii| iliiiilil 1 11 ii, lili'il (\ iMi niM ll |li'|iiily I|i'|iimI,| Ml iliiiiiif/ Ul<- |i| Illl(.i; niv llinlll IlK, Mliil I'l (ll li'iii'iiMll wlUi Mlicll nlilMI (he iiiiiiiiiiil- III li'i'fi |iMV'ilili' ml" 'III" fliiili.m' I'l'ii l''iii)(l A'liiiiiit, '" Till' iiiiliiiMiy |iiuvi'in mill ll III ii'ii 111 llin |ii'|iii(,y <'|i||( i,f (.(k, ( 'imVII illllliiHIll I V M|i|li'MI lll'lll I 111 IlillliVVIIIJI lU'l lldllH 111 ll .'1 O [iil Ii I'Mi ll l>' lllllv < 'll ill 'll III ( lllWII mIimII Iu:i||i Wllfil I'll III' I'l" Mill riiiiiliH 111 I mini 111 ml liiiM! Ill Inn ' 'iiiihl y iii I li(i ,'-',ii nil nn ( mh i (,M, ' '' '• " '' till I Mil' t 'il'l llH III I III' ( 'nil III V < I 111 I Im mIimII MlillH llli ■'.lllllj.'ll Wl itM ill llli- • 'hi Illy • I'lll I M I' 'I I vi'h !l 'Ilii' I'l iiii'iiM I '|i I Ii Miii| I'Mi'li hi'iiiiLy f 'ji'i |< (,f Mil' < 'f iWfi U. ' '' rvrl V "III I M!i|i i| li\ liiiii, limn uli'il, nlli' ■ mim hi wliill, '-niiiily llli' Will I I nil ll. mill iiIimII iiiilii.. I llli' Iiiti nmii" M" m !,'> " II Wlii'ii' Mil' I. mi;!' Ill Milmii m Incdl, llin will, Ini Mi iiii'iii'i'iiiriil. Ill Mil' (1.1 (mil limn', Im' Mill i| 'uiI, limn Ilii' i/l |.|ii> |iiii|ii't i 'mini y I'll vviMiin ','/. ^ I I 1,4(1 Win ii'Vi I 111' liliilillll m '|i 1. Ii'liiiil II I liny i;iiit, in-ili liiliiil III I'll III r III Mil' lii|ii'iiiir ('niiil.M, WihIi' II l,'i in'iilii'i' t.n ilMii'i 111 mull ('niiiln in liiiinv .ii|i|(/i Mi('"'>l, l,li'' will,, (Ic'liirii liiin, pli ,'i. Ill' liny nMni lU'iii' ilini^ lilnl in Mi" '■Mnt' in Mi' hUhd of liny I >"|iiil V < 'il'l I* "I III,' ''i"wn, Ml" |iIjiiiiI.iII '.i iI' li ii'l)i.fif, may ili'Ml.uiil hihI n riiV" Ii iin Hin Ii I )i|.ii t.y ( ,'|i i 1; n, ( 'i|>y 'if Mi" naiili' ri'll ilii'il liy Mm Miinl I l"|iiil.y l.n li" ji l,i ii" loiiy of flic ni ij^in.il, mill Mlll'll i'i(|iy Mil I'i'il.ilicil hIiiiII Ii" i"i"iv"iI 'V kiicIi <''.nfK nr .lii.li ih< t, iiimIi ''"* «»'^ Vi. * l«0 •'", III /III rJlMili, III ll 11 11 .1 l,h ' (ll IfMIIJli ;ii| IV (if'i ,f !7",l. r;\iiy I *"|iii I V < 'III ll of Ml'' ( 'i fiiiir Im ir.'i 111 l,ii iinliii' in vvnlini; 'lilivrcl fn liiin in Iiih '.fli':" fill Hull, |iiir|iiMi', Mini |),'iviii"iil. Ill III" ii"i' 'rilllinll', inllllCIHllI l.ll l,ll" ' 'll'lk M:|':'»f, any if ' or r| of ,Si I'liiiM ill Imi rmil.iiijy ini'iilinniil in iiiii h nofici', t^ij/cflii-i wiMi ;ill i'\iiiliil,M liji'il III, Mm 1,1111,1, M.nil III >|i f.iiill. Mii:ii'>f ll". rii/iy l>i: ,vl jiiii).',i'il Ki'ill.V "I 'I iMiiifi'in|it, of ( 'mill., .uiil h" (l";i]f wiMi in f,fi»; iIlHi'lcllnli iif 1,1m ('ollll, III r(Hi|||iJ.Hy ; .ili'l if, .'ilt.nr Miicli li'>t,l(;(;, till' Nrii I'riiiH ii'mril im iinl, in (.'oiiif ;i,t, ll"' t.iini; of fri(»viii;; any r.il" rii|iiirini( ;i ii'fitciiii: MiiTcfo, fli" ji'i'ly niovuij.' n, ly, iiii liiin;^ ;ui alliil.ivil, of llm hiivhc of iml.i':", aii'l t.liat, tli : T'. :'ir'l, on siiiU'cii, lias not IxM'ii fmunl in flu; Maid |ii'iii"i|>al 'Wiic:, Ik: ali'>W':(i liy till- ( 'oil ill (,o iiiovi; hiidIi riiln without tin: firo'lii';tK;n '>f the nuioni, " 'J.SO. 'I'lm H.iiil Di'puty (!l"rl» ,^r\. 332 ONTAUIO JUnU'ATURR ACT, 1881. Kulofi 417, 418. Ri'v. St.it C. ill. s. 3.'iS, Ui'v. Stat. «'. (ill, n. 7. Knl.' :'0. RuXv. 21. Uule I'C. 4IM Entry of orders. .aU(M-tif>y of tli( |);i.rty oiiiil/lcd U> the /)(i.i/fr/, any i"<'('"ril in llicir (Mistotiy ui>()ii n").l.iii}; a rocoipt. foi' tlio hjiiiio, l)nt t.licy hIkiII not (Iclivi'i- to .iiiy i>,v;'tv ;iiiv cxliiliit Hied, without .-i .IihIkc^'h order to that cUVct ■' " .'{."t.'l. I'liduT |>arty m;i/ aa of riyht, ii,(Oii yivinj^ two djiys not.icc to the iii>j)osito it.irly, liavc tlic t.'ixatioii of co.^t.'^ liy any l>r|>nty < McrU of tho ('r,)wnaud IMcaw rcviMcd l>y the principid < 'U'l'k of tlic Court wlii'v.'iu tlu' pi'oci'tMlinLtK li;ivi> liccn li.ad ; ;uid tho (.(uirt or ;i .lutl^c may, l>y rule or HuuniiouH, call ujmiu IIk' ]>i'pn(y ( "li'rk who h.is l.axcd ;iuy liill to mIiow caiiMr why he shi'uld not. pay tho foxts of rcviniut; hi.'^ t.ixatioii .'ind of the ;ip- jdii'ation. if in the opinion of a Court nv .ludj.M'. mi (he allid.avitrt and hcarini; tho parti* s, such Deputy ClcrU was K"'"'.V "'•' ^jross nciiiincticc, t)r of wilfidly taxiiijr foes or ohar).;(>s for scrvir. or di.slnirscnu'ntM I.irs^cr or other th.an tlios(\ sanctioned l>y the ride:* ai\d pr.ictiee of the ( "onrt. " Section 7 of the Mxei'ution ,\et, \\. S. (). c. {\C>, is as follows; "7 All writs of execution may issue from the olliecs wherein tlie judgment h.is hcen entered ; ;ind in the SiiptMior ('ourts of Law after the transmission of the jnd,!.;inent ''oil tn the princip.d ollicc, such writs m.iy. .'it the option of thi> part.y entith^l tiicn to, be issvicd out of .siu-h in'iiicip.al otii(!^^" I?y Or.ler III., Kules 10, II. If. (m.argin.al nund.ers '20. L>1, and 'J()) itir''. it is provided that ; " 10. In any action wh.atovor, the plaintilf. wherever ruelM^s Hench and ('lunmon IMeas Divisimis, astlie case m.vy he, as heret(>f(n'e in the s.iid Courts. Writs for tlio oonuncm-ement of actions in the Chancery Division shall he issued liy the ]U'opcr otlicers hitherto .attached to the ( 'ourt of (Miaueery. XVrits issued hy tlu' ClerU of Records and Writs, or hy r. Deputy llo.ijistr.ir ov Dei>nty CK'rU of the Crown Mid Picas need not ho scaled or siL;n(>d hy the Ch>rU of th(> rrocens." "It). Till' propiM- otiii-er sli.ill make an tntry <>f every writ of summons in a hook to he called the I'roces.s Hook, whicli is to he kept in the maimer in which process books liave herctofons heeii kept i>y the Clerks of the Crown and Pleas ; jind the aciion sliaii be distiiiLruisheil by a number in tiie maimer in whi<"h actimis arc now distiiiijuislied in sui'li last mentioned hooks ; and in case of any further proeiMNling in the action, and eidry thereof sh.fd he made in another book to be eallotl the Procedure Book, which is to be kept in the manner in which Procedure Hooks liave hereto- fore been kept hy the said Clerks." •4. ((f) Subjoet t() tht' foroutoiue; Ordor-s. where !in action is cominoitci'tl in tho ollicc^ of a hoputy Resist r;ir or De- puty (^lerk of tho Crown or Local Registrar, (b) all such orders ii\ the action a.s require to be entered (except orders made bv the t'oiintv Court Judiic or the Local Ma.ster of the county under the authority and juriadictiou vested in OFKICKIIH AND ()|i"Fl(;K^. :vMi ilicin iMulcr t.li('H(! Rule:,; sliiill 1)(! <'tilci'(!il ill, Topoiito ; Rnles (iinl, vvli(!i'(! lunM'.ssiiiy, an ollirn (!i»|»y (if tin; Ordi^r ko <) lil<'«l witli till- |in)(M'c(|iiiL:s in tlio iiction. (Src, K. Slip. (;.. lS7r», Older ;'..^i, Hiiln li). (a) Tlic I'liif^'liHli l!iil(; f^ivi'H like (iiriii'tiniiH with icfprriicc to the llintrict l!cj.;iHtritH ('stdliliHlicil l.y tlir ,Iii.lii:;itin(! Act ot IS?.'}. Tilt' iiutliiirity to iiiiikr urilcr.s wlicri^ iirtiorm piix^tiod in tin: l>iH- trict Hcgintry is givoii to tlir District Ri'^irttrar, not to the ('i)iiiity ( 'oui't .IihIj^o (M- jiiiy other olliccr. (/() 'I'lic '.!()lh I'uh', (iiifi-, |)rovi(h:s th;it, " in ;iiiy jidioii v ii;it- cvcr the |il;untill' wherever' resident ni;iy iH.siK^ a writ of HiiiiinioiiB out iif the i)ni|ier uliice in Toronto, oi' in any '''nmty ;" and thij 2'2iiil l{iil<.' |irovddos tliat, "In all eawi'S there .shall he a Htatenieiit oil the tace iif tlu! writ of Hiiniiiion.H nainini^' tlu; oliico in whicli "ii' dof(!iidaiit'n a])iie;irancc \» to he entered." I Iff [». Sections M02 and oO.'J oi' tin; (Joniinon Law Proco KnVry ot diirn A<'t and sr.'tioo 7 of tln^ " K.X(!(;iiti()n A.;t " Hlial I ;;;;;« •i';,^,^,,^ apply as nearly as may he to Di^piity Ki^^isti'ars as wtdl '■'('■'■"'ionby a.s Depuly (derks of tlie (!i'owii. (Si;i; Ji. (Sup. (J. I HTTi, iii.^iHtr!.rii Onior ;5f), Jl. ;}; 1{.. S. ()., e. 50, .ss. 12, 302, 'M'.i ; o. 6t). .s. 7.) Siiction.s P2, :K)2 and :]()'.] of the 0. L. P. Act aro as follow.s : " \'2. All proceediii^,4 to (iiial Jmlgnient in actions, whether i{,,v stat. tr.insitory or locil, shall ho carried on in tliu odicu from winch e. .'/O, h. .!2. the first process i.ssues." " liO'J. I'Acry Deputy (derU of the Crown and I'leas and evt^ry [(,,y ^^^^ Coiiiity < 'ourt (derU shall keeii a n^gular 'took, in which .shall ho c. co, «. 308. iiiiiiuted and dock(!ted all jiidj;tneiitH (,'iitered hy Hindi Deputy f!K;rk or ( 'ouiity CoiP't (Jlerk, and .such iniiaitc .shall contain : I. The name of every plaintill' ami for .service out of Onti;rio, or to allowing service out of Oiitai'io, of a writ of sum nons «»r of notico of a writ of summons : provided also that in counties iu wliich there is a Ijoe.J Master who does not practise as a Barrister or Solicitor, JURISDICTION OF COTNTY COURT JUDGES IN CHAMBERS. ;i:$5 e statutory en- iind who hiiH not taken out a ctM'tificate to practise, such Rule 422. liocal Master shall, in I'ci^ard to causes and actions liroughtin his county in *he (Miancery Division, have (in iuldition to his powers as a Iarty who has no solicitor does not reside in, ov has not a place of liusiness in, the county oi- union of couiitie.. Such consent by a solicitor may be; general by a menioranduHi in writing hied in the otlice of tlie Do[)uty Ilegistrar or Deputy Clerk of tlui Crown ; or iriay be confiiuMl to any ])articular action or application and 1)(^ manifested as in the case of any other consent by a solicitor in a cause or matter. (iSeo 11. S. O., c. oO, s. 148, :^ub-s. 2.) The Knghsh Mule excepts frotn the jxiwer of the Master or District Registrar auth tlie new oliieor, tlie Ma.-^ter iu (Ihainliers, hut are not for the present given to the County Court Judges or Local Masters under this Rule. Where the Loeal Mastei- does not praetioo as a harri.ster, he alone is to have the authority in th;; ( 'hancery l)ivi,sion, of a Judge in Chiind)ers. VVlien lie does practice, or lias taken out a ccrtiiieate to pri'.etise, the County Court -Judge is to have the same authority in regard to causes and actions l)rought in the Chancery Division, as he has in regard to (!;\us(S and actions ni other Divisions, suhject to the restrictions in paragraph (a) of this hulc, and in ivule 4'J4. (a) 'Idda suction of the Rule varies from the statutory enact- ment referred to which is aa follows : — " 148. in actions in either of the Superi(n' ( 'I'urts, tlie .ludire or i,,,., ut * .U't.ing Judge of the County (.'ourt for the County in wiiich the c. oi),'h.'hs action has l)e(n brought or the venue laid, may, uiionthe applica- tion of the plaiutilf or defendant in such action, grant summonses ana orders for time to declare, plead, reply or rejoin, and for 4». MU\ ONTAUIO .lUDlCAI'lUlK ACT, IH81. r.miilv til r.i\ miMit M.iiiilov i>f 4pi>Uo,itioi'. p.'irt.iiMil.'UM III' tloiiiiiiiil, or III' Moi oil', mill niay ^r.'int, HiiitiiiiiiiiMiH .idiI uiili'lH lnr |);iv;;,, li!, ii|' iiiullcv llllo ( 'nllll., lur Mio iillnwaiH'c (it li.ul, or loi' H(«i'iiii(.y I'ihi'iimIm , jinl hui'Ii .IihIj,'!' mI' I.Iii> ('iniiily ('■Mill iD.'vy Iwar iviul iIi'Iitiiiiik' miu'Ii iittpliriitiuiiH, f^i'iuil. him'Ii HUiiinioiiHi'H, iui|ii)S(< HUi'li tiMiiiH, mill iii.'iKii Hiicli onli'iH iiH mi;,;lit, l>t> ^rmili'il, ini|tiis(Ml mill iiiiulo in Ui<> like i'iihch liy ii'liiil^i' ul' one of IIk^ Sii|ii'niir ( 'oiirlM Milling in ( tlimiilnTH. " (Vl). TluH Ncclinii uli.ill |iiui iipl'ly ti' 'iiiy .'H'tiitii wlii'i'i'lii (li(i V(Miui> in l.'iiil III (111' ('uiiiity ol \'iirk.iir lomiy ivi'tiuii wliiTriii Uic iitdniicv lor I'll*' (Iclt'iuimit, nr in imhc of (.wnur iiiuri' ili'lriiil.'iiil,H, wluM'o tlu> titiiinu'V I'm- miy oiii' or iiiuro nf tiicin ii'hjiIi'h in h ('iMiiity or Union of ('onnt.icN iliU'iTonl Ironi IJitil. in wliicli iJic ■•lUoriii'v lor tlio nliviniiH', or, il' lie |in>Ni>i;iil,i'H in piMHun, in wliii^li till' iiLiinliir ri'.sulcs." !•. Till' powor Mini niillioril y ol" ;i ('oiiiily Cuiii'l. .1 ii(li,'o (ii ninkc <:v juird' (irtlor.s sliiill iiol. lio siilijcot (,(» lll(^ liiiiitii- lioii set I'ltrth in (lio |in'n'ilini^ |tMr;iij;i'.'i|»li (a), niid iiiiiy lie iii;nl(> (1ioiil,'1i tlio solicitorH I'di" all piu'tio.s do not reside in (lie siiiiie enmity. Wy (lie t'xistiii}; |ii\vetiee in (lie ConrtH of (k>uoen'H IWinoii iiiiil ("iMimion IMeas the ;nitliority of .-i Ccniity Court .lii(l>;e iippliiMJ oniv \> here (he ;i((orneys for ;ill piirtii h resided in the ( 'oiinty. 1(1. l>ii( no nioiH>y sliiill Im> distj-iltuted or ]»Mid out lor oosts or otlierwise. widiout (lie order of ii, Divisionid Couri. Ol- of a dudi;t> of (lie Ilii^Ii Court in Oourtoi CliMiiiliers (^exeepl iiioiu\v l>:iid iiitrO ( imirt by a deieudaiit liy \v;iy of salisiiielioii or anieiids, aiul not l)eIoM,!j;in,i; in wlude ov in |);ir( to an infaid or fh me corrrf); and on (li(> ai)|>liealion tor sueli order, the ("'ourt or .1 iidjjjiMiiay rmiew. amend or ret'er haek to tin* Mastei- lii.s iH>|)ort or order, i>r ill, \k(> sueli other order ;is tln> C\nirt or J iidgo deot\»vS jMoper. (Nci' (!. O. ('Iiy., No. 03".).) rUe latter part of the (.^hancery <1idor roforrod to is aa foUowa : '• No nionovs sli.%U he distrihiited or ]>aiil out for eo.sts or other- wise, without ail order of tlu> .linljj;e in (,'iiainbora or tiio ('ourt, and on the applieativ>n for sneh ordor, t've -ludjJ!e may review, amend, or refer baek to the Master his report or order, or make such other ordiT as he deems proper." 11. Kvery applieation to a County Court Judijo or Local Master under the Aet or tlioso Riilos shall, where notieo ot" the applieation is m^ecssary bo made in a sum- uiarv wav bv suniinons. {See Iv. Sup. C, 1875, Order 155. K. f>.^ T^e corresponding FiUglish Rule directs that " every applita- tion to a District Registrar shall be made in the same nianiuT m which applications at Chambers are directed to be made by these Rules." Ari'I-ICATIONS m CollNTV .rii|t(li;,S in CltAMIlKllH. 337 •liiTfin the k'lii'rcin llic li'I'i'iiilaiitii, 'iiiili'H III :i wliicli tlic I, in wliioli 25-427. ((/) A MiiiiiiiioiiM i;li!ill Im> ill I lid \\>v\n No. I OH in Uiilr .\|i|M'iiili\ (II) Imti'Ih, willi MiK'li viiriiiiioiri n.-f circiiiii 4 il.lllli'iV't n'(|iliir. \{ (tlliill Im' ;i(|i||c ; m'i| |ii ;i|| |||c |nT;;Mint It lie ndVcil. ( ,S/r |{ Sil|i. (!., ,\|ilil, nil WlMilil ll l:l I issd, i;. ;;i. Till' l'',M|'li".li li'iili' i:i I 111' M.'iini (/») A .".llllllllMlin .sli.'ill III' |ili'|i;iri'(| liy iJic ii|>|ilii';illl, III- Ilis solii'il III , ;ili(l i;li;ill iirni^m-d Ity IIm' |HM|irr ojlii'rr ;i iid irll S(» Klj'liril Mliiill III- (Iri'iiii'H In l>r IMSIIi'i I In \> lO IH'ISOC (ilihiiiiiiiL; M. KiiiiiiiKms sIimII Ii'hm- ;i "'Miiy (ln'ii'iil' willi l.lii' (itlii'i r fii^'iiiii-,' i.lin sjiiiic. { Src. ]{. Sii|>. ('., Ajtril, |HK(), I!. ;;..)' (//) Till' l'!iij;liMli iiiilc rii|uiri'n I he hiiiiiiiioiim I >> IK' iiffilnl iiisl.c;ii| III lii'iiM' mj'iii'cl v^n I'.' If iiiiy mill Icr :i|i|H':ii:; lo I lir ( 'oiiiil y ' '"iirl. .1 inl;,'c, r^wr r CI i:>ti'r III < liJiiiiiH'r.s ii)|><'r lor l.lu',1,1,1,,,. „r M; ili'i'isioii ol' II .IikIl,'!- of ihr lli;;li ('oiiil, Ik; may Vi'icv IIk; "'»''' ''•">''■ saiiir I'O Hiicli .liiili;r ; ami siii'li .1 ii'Il^h of (ln' I li<.^ii < loiirl, iiiiiy I'idicr (liM|iosii of llir mailer, or vi-ii'V (Im na,iim lia.(;l< III I 111' < 'iiiinly < 'iiurl. .1 imI:;"' or olliri'r al'oro.saiil w ilJi .siicli iliiTcl ions as siii'li .Indian ol (ln' llii^li ('oiiil, may lliink lil,. {Srr I!. Sup. ('. IHTT), Onlrr :'>'>, \l. (i ; I,'. Sii)). ( ;. IS?.'), Older 51, ilul.' ;; ; \lrij;. (ji'ii. IliLT. IHTO; «w L'!i \'.{'. <,,). I'... |.. c.L':;.) 'I'lic I';iiu;li.4li Oilier !!.'>, IIiilc (i, itiiikcH l.liin prnvi.i^ioii wit.li refer- riii'i' 111 miiM.iTH wliirli I'liiiii' lii'lufc t,li(! hi^Uict ii'<'j.MHt,r;ir, ,i,ii, (;iiiit„iiiisi a iikt; jiruvi.Hion wil.li ti'lrri'iKu'. to iiri.t,t('rH Ix^I'drc, (.Ik; ( -lerk of tlic (Vnwii. II. Iris liccii liilil iimliT llic I'liiL'Iiuli Orilcr .'ifi, I'liir tj, t.iiat, t.lic iirilrt.rr (!;iiiiiiit. lie rifcrrcil l.o a .1 iiil'.^'i^ iiiilrHH a hiiiiiiiioiis lias \>ee.n !.;ik(!ii mil ('ailing mi tim iiUicr siije tn a|>|Mtar licfun; the Mastur .11- l)intrittt ilcj'istrar, as tlm caHo iiiav !>••. on tin; apnlication ly ill', on Itn; app i\V, N. l,S7r., p. 'jnO; 1 Cliarl. (,"li. Ca. 118). !)'). Any person alleeteil l»y any order' oi- derision of Appc the ('oiiiity JmlLfe or ollie.er aforesaid may appeal tJicro- t'nini to a .Judji^e of the, lli^di (Jourt a.l (Jliainbers. (a) Sucli appeal may Im iiiad(i notwitlistaiidiri;^ tliat llie order or deei.sion was in resperit of a proeee(liiii( 'A ; /i<7/ v. iV. provisions of tlie Act, tlio cost« of disorotion of .^j^,j incident to all proceedings in the PIi.i,di Court shall lie in llie disci'ction of the Court ; hut nothing herein oou- savirigas tot;iined shall deprive :i, trustee, luortgiigee, or other person truH ei', I' 0. ^j. _^^^y right to costs out of ii ])articular estate or fmid t(i which ho would he entitled according to the rules hitherto acted upon in Courts of Equity : Provided, that whore ofi-s-sues any action or issue is tried by a jury, tiie costs sliall triM be ore ^'QjJQ^y ^^\^q event, unless, upon application made at tlio COSTS. 3S9 trial, tor f^ood C!uiS(! sliowii, tlid Jii(l<,'«) Ix'.fnro wliom such Rule 428. Mctioii or issiKi is Iricil, or tli»! (loiirfc, slmil ol.lici'wisc or(i, -If, I'ifi, l.")7, l.-)S, !(;;{, 170, IIM>-2(H>, -JIS, •_'•-»(), '2:H), '_'H, -JJ^S, .-iTX, iCSand 4H!». Under the various statutes iillectin;^ costs, tlie ruh; in tlio ( 'oin- miin jjaw (Courts was, tliat costs followtjil tlu; event, (^xcej)t in the cas(!S in wid(^li it was otiu^rwise provided hy statute. In ^Jhancery, except in tii(! case referriMl to in tiiu rule of a trustee or iuorti,Mt;i'e, t'tiv, they have lieen in the discretion of tin; ( !ourt ; Imt tiie nde juited upon was, that in tlie ahsiMWii! of special circuuistances the party failing jiaid the costs (A'f //n.i/.iny v. ■/'(V'.sV.s, '25 W. I!. IT.) i Jiiiihs V. y„rh)n, 1 Charl. ('a. |('ourt| KW ; Downi'H v. lioaf, <> I'r. J{. 8!)). The discretion as to costs provided for l)y this l!ule, when .an ,^otl<)n is tried l)y a jury, can he exercised oidy hy the .luilge who tri(!s, upon an application made at the trial, or hy a divisional ('(iiirt. The Divisional ('ourt has origin:d jiirisdi(!tion under this iiule to make an order to de]iriv(! ;i successful party of tlie costs of an action tried hefore a jury (.yfi/cr.t v. Di'/rhn, and Si). hut where the! .Judge has cxercisc^d his iUternativc jurisdiction the Divisional Court has no jurisdiction to entertain an a])peal fnuu his order (.l/(//'.s'/rM v. Ijiitii'iisliiri and Vtirk-s/iin /idihriiif ('tuii/Kiiii/, 14 l>. T. 'J.'}!)). The .ludge laniiot entertain an ;ipplieation made suhseijuently, nor can a .ludge at (,'haml)er.s (Iiii/:rr v. 0'//v.s, 2 Q. H. D. 171 ; '/'//'" Alkali Co. V. Liiirsoti, -M) I.. T. 100). " zVt the trial" would sccin to mean at the .same sitting of the Court (//'«'/), or "suh- stantially at the trial" (Coirnis v. llV/,s/(, .1 (!. 1'. D. at j). ;!:{). A .Judge before whom a second trial is ludd, has )>owt;r^o order a plaintiir who recovers a nominal sum to pay the costs f both trials (Creen v. Wrhfht, '2 C. V. 1). SM ; FieU v. Creat Korthern Rij Co., a Ex. D. 2G1). After ,an order of reference to a Master luidei the (J. L. P. Act, and an award made, the C'ourt has no jiowe,- to give coats (WimshurHl v. Barrow Ship Building Co., 2 Q. B. D. 335). 340 ONTARIO JUDICATUIIF, ACT, 18S1. Rule 428. 'I'lii- id'cct of tliis (Irik'i' is tn rrpc.-il tlio ])rovi()ii8 Htiitutos as to Odsts. Wiicic, tlirri'tnri', a iil.iiiitiH' in ;iii articpii I'oi' siaiidri nK. taiiiod a vcniict, Imt rci'iivfrcil cmly a tardiiiii^ (laiiinyrs, and lln- .liid,L'»' dcidiiicd to iiiaivi! any ordc^r tn' j;iant any ciTlilicatr, umiI till! Master taxed tlu; cunts t'lir tin,' |ilaintill in tlu! ordinary \v;iv, //('/(/, tiiat tin; Master was riglit, llic costs under siicli circiiiii- HtanccK following " tlii' event '' ((liiriirf/ v. /Irdi/lri/, ,'{ A pp. Ca.s. 1M4; /•iirsi>,i.'< v. 7'iit/iii;/, 2 C, !'. I). !!!• ; see 'also h\i: i>„,-t> Mcrro-'x ('d'ji, KM'ii. j) 4Sl). Costs now always I'nljow the event, iiidess tlie .lud^'e chooses to exi'i'cise liis discretion in niaUing an order as lie may do, except in the oases sjiceially ex- cluded in this Rule. It this lliile ailtcts the provisions of tk C. \i, !'. Act as to snits within the competence of a ('(.imty nr DivisioTi ( 'oiirt, tlie ("oiirt, in the exercise r>f its discretion in stuili (!ases, Mould prohaliiy act in accordances with the statutory en- Ut'v. Stilt. .:. 50, s. im; the siiliject follows : containiMl in K. S. (). no. :!47, ai'tmcuts oil which are as " ,'M7. In case a suit of the jiropi'i- competence of a County ( 'ourt is hrou^ht in either of the Superior ('ourts of Cuiiiiiidn Law, or ill ease a suit , certilics ill open ( 'ourt. immediately aftiT tlus verdict has hicn rdulctcd, or at any future time to whi(!li he may then postpone the consideration of grantiiiff or refusing the ecrtilieati!, that it i.s a lit cause to ho ■withdrawn from the County ( !ourt or Hivisidn Court, as the ease may he, and hrought in the Su))erioi' Court (ir a County Court, as the case may he. the ])laiiitili shall rcccvfr his costs of suit according to the practice of the ('ourt in which the action is hroiight, in like manner and suhjc't to the like dt- ductioii or set-olV for costs of issues ujion ■which the defendant liii.s succeeded, as lie would have done and wouhl iiavo heeii sul/juit to ill case his suit had been of the proper competence of tlio Court in mIucIi the action is brought. "'J. In case the .ludge who ))resides at the trial of the cause certities at the time aforesaid tliat the plaintiif had reaHoiial)le ground for believing he had the right of withdrawing his caii.se from the County Couvt or JJivi-ion Court, as the case may be, and bringing it in the Superior Court or a ('ouiity Court, as the case may be, anil that the defendant, without just reason, ilc- fended the same, the plaintill' shall recover his costs of suit according to the practice of the Court in which the action shuuhl have been brought, in like manner, and suliject to the like deduction or sct-ofV for costs of issues upon which the defendant has succeeded, as he wouhl have done, and wouhl have been suit- ject to in case he had brought his action in such Inferior Cnurt. " ;}. In case iho Judge Avho presides at the trial docs not certify as aforesaid, the plaintiff shall recover only County (,'ourt costs, or Division Court costs, as the case may bo, and the defendant shall be entitleil to tax his costs of suit as between attorney and client, and so much thereof as exceeds the taxable co.3ts nf defence which would have been incurred in the County Court or Division Court, shall, on entering judgment, be set off and allowed by the taxing ofHcer against the plaintiff's County Court or Division Court costs to be taxed, or against the costs to be COSTS. .'M t.ixod and tho fiinouiitof tlic visnlict, if it ho necess.-iry ; .'unl if tin; Rale 428. iiiiioiiiit of till' i'ohIs ho HL't oil cxciiciIh till' aiiioimt of tilt' plaiii- till's vtidict ami taxcMl costs, tlio ilifiiinlaiit shall \h: ciitilii'd to ixi'L'ii(ioii for tin; ('X('i'!-s auaiiist tlu^ iilaiiilill," Where ill an action of cuvi^iiaiit the ilufcinlant |iaiil inonty into (.'oiirt and denied the breach, and a referee to whom the issues Were referri;d, i-eported that the money paid in was siilli- cieiit 1(1 satisfy the elaini, it was held that the costs were in the ilisi'letioll of the ('oiirt, and that the liroper lliethud of exeicisill^ it was liy allowing,' |plaintitl' his costs up to tlii^ time of payment iiitol'ourt, and defendant the costs of the action after that time [HurkUm v. //(,7;/.s 4 K\. I), 174). The word " event " in this Unli; is com|)lt^x, and must lie read ilistriliutively as rt'L;ards distinct causes of action. The j^eneral coHits of the c.uise follow the jildi^liieiit. hilt the costs of {\\v. Jtar- ticiilar issues must he respectively taxed in tavour of the party who has succ.e(;ded on them {A/i/rrn v. Drfrh.t, 4 V\\. I), at p. ISO; Studkr. V. 7', in which the previous caso of Sfii/i/r.-i V. YiiiiiKj, '1 l']x. I). .'{'JT, wa.s not approved of ; .w also /v7/w V. /><,s///'((. (i (,». !'.. I). .')•_'!). It may he that tiicre is a distinction lietween cases wlii'ie a defendant sets uj) a eouiiter-claim for a del)t ;ind a couiitei-elaiMi for iinliipii- (iatcd dam;ii,'es. In the latter case the plaintiil' cannot foresee tliat the defendant will set np the counter-claim, Imt may prefer to bring a cross-action. U'liere, however, there are c:roHs- iiucdiiiits existing l)etween the p;irtics or cross-claims, each in tin natiu(! of a diibt, if the balance is in favour of the defeinlaiit, the jilaintiir should p.ay those I'osts which fall under the deiioiniiiation of ousts of tlii^ cause, as being the costs of a litigation improperly provoked by him [Jiitinen v. Iir/, (> Q. l'«. D. I'.>7). The "event" is the result of .'dl the [iroceedings incidental to the litigation, aiul the costs which f(dIow the evi'ut iiu'lude the costs of all the stages of that litigation, ;uid therefore where a new trial ■was had and the phiintiH' on the sec(nid trial re- covered a verdict, he was ludd entitled to the costs of the tirat tri;'.l as |)art of the costs of the action {FUlilv. ). Ill the Admiralty Divisitm it was held that in costs of a re- leruuec as to damages in an action of damages ilo not follow the costs of the action, but are in tlie discretion of the Judge as thu costs of a fresh litigation ( 7'Ac Consett, 5 P. 1). 77). Where a defendant paid money into Court in satisfaction of thu pluiutilF's claim, and gave notice of such payment to the plain- IMAGE EVALUATION TEST TARGET (MT-3) V ^ /. .// / .' <$>! 'V ^/) ^^ ^'^ c>;^i ^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 V ^^ s ^ <> % V 6^ n. .^x<.^ % A> f/j '^ ^ :\ \ ;\ tl* u :U2 ONTARIO JUDICATURE ACT, 1881. RalM 438. 429. Aiiiuunt of •ecurity for costs tiff, but the plaintiff did not give notice to the defendant that he accepted the sum paid, within four days, as required by Rule 218, but afterwards accepted that sum it was held that an order might be made under this Rule giving the plaintiff his coats {Oreavea v. Fleviing, 4. Q. B. D. 226). In Chatjield v. Sedgwick, 4 C P. D. 459, the plaintiff claimed a sum exceeding £50. The defendant pleaded a set-off, and also mads a counter-claim for goods to the amount of about £24. The action was referred to a Master, costs to abide the event. The Master certified that thf^re was due to the plaintiff on the claim £16, and to the defendant on the counter-claim £23, and that the balance due to the defendant was £7. Held, that defendant was entitled to his costs, as the question, was taking claim and counter-claim together — which was creditor and which was debtor, and, the finding being in favour of the defendant, that was the event which the costs were to follow. ^Vhere the plaintiffs claimed £404 17s. 9d. and the defendants .!■ up a counter-claim for £480, the arbitrator to whom the mr.tter was referred found in favour of the plaintiffs for £.371, and in fv 'r of the defendants for £.375. The (Jourt, on appeal from tR* " (s ict Registrar who had given the coats of the cause to the do d:.r-*3, ordered " the costs of, and and relating to the plain- ti '^ cl im, and the proof thereof to be paid by the defendants, &nd tti6 costs of, and relating to the defendants' counter-claim, and the proof thereof, to be paid by the plaintiffs " (Cole, Mar- chant d; Co. V. Firth, 4 Ex. D. 301). Where plaintiff sued for £561 for work done to the inside of a house and £67 for picture rods. The defendants contended that the plaintiff had agreed to do the whole work for a sum to be determined by the defendants' architect when finished, and they f>aid into Court the price fixed by the architect. The jury found or the defendants as to the first branch of the claim, but that the agreement did not apply to the second branch, which was then referred to arbitration. The arbitrator awarded the plain- tiff £37 Os. Hd. beyond the amount paid into Court. Held, that each party should be allowed or disallowed such costs as applied to the particular parts of the claim on which he had succeeded or failed, and the general costs of the cause, and of those items which applied generally, and could not be separated, should be apportioned, having regard to the issues on which each had suc- ceeded, and not all allowed to the plaintiff, because he had obtained a verdict for some part of the claim (Sparrow v. hill, 44 T. T. 146). 2. In any causo or matter in which security for costs is required, the security shall be of such amount and be at such time or times and in such manner and IS the Court or a Judge shall direct. (R. Sup. C, February, 1876, R. 7 ; G. O. Chy. No. 321 ; R. S. 0. 40, s. 97). given c. In a suit by a foreign government £120 security for costs had been given before the Judicature Act came into operation. A large amount of costs would be incurred before the suit was heard, and further security to the amount of £500 to cover future costs was, under Rule 429, ordered to be given. Further COSTS. 343 li security, it was said, could not be given for past cost* (Repttblic of Costa Rica v. Erlanyer, 3 Ch. D. 62). In Paxton v. Bell, W. N. 1876, pp. 221, 249, it was held that the old Chancery Rule as to the amount of secuiity for costs must prevail in the Chancery Division, unless some special reason could be shewn for increasing the amount. A defendant residing out of the jurisdiction has a right to take any proceeding to defend himself without being ctuled upon to give security for costs (Re Percy e given to the Registrar or Deputy Registrar. :h4 ONTARIO JUDICATURE ACT, 1881. > ii Htaiiips. Bales 4. Where it appears, by the writ of summons, notice, 431-434. or other proceeding by which a suit is instituted, or by 4.'ti an indorsement thereon, tliat the plaintiff resides out of Security for Ontario, the defendant shall be entitled on prcecive to an for. ' order, requiring the plaintiff within four weeks from the service of the order, to give security in $400 for tlie defendant's costs of the action, staying all further pro- ceedings in the meantime, and directing that in default of such security being given the action be dismisssed with costs against such defendant, unless the Court or Judge upon special application for that purpose shall otherwise order. Not in the English Orders (see Paxton v. Bill, supra). 5. Until a tariff of fees payable in stamps or otherwise is provided by Rule of Court, approved by the Lieutenant- Governor in Council, the fees to be so payable shall be the fees now so payable on similar proceedings (if any) in the Courts of Queen's Bench and Common Pleas ; and where there is no similar proceeding in those Courts, the f'-es to be so paid shall be the fees now payable on similar proceedings in the Court of Chancery. There is no corresponding English Rule. 6. As to taking copies of documents in possession of another party, or extracts therefrom, under Rules of Court, or any special order, the party entitled to take the copy or extract is to pay the solicitor of the party pro- ducing the document for such copy or extract as he may, by writing, require, 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 requir- ing the copy or extract is to be at liberty to make it, and the solicitor for the party producing is not to be entitled to any fee in respect thereof. (R. Sup. C. of Aug. 12, 1875, " Costs," R. 16.) The English Rule gives fourpence per folio ; with that excep- tion, the two Rules are the same. 7. Where a petition in any cause or matter is served, and notice is given to the party served that in case of his appearance in Court his costs will be objected to, and ac- companied by a tender of costs for perusing the same, the amount to be tendered shall be $5. The party making such payment shall be allowed the same in his costs, pro- vided such service was proper, but not otherwise ; but this order is without prejudice to the rights of either 433 (.'ios of diicuiiients in posHosslon til' aiiotlibr piuty. 434 Tender of costs on service of jietition. T^TV's' ' COSTS. 345 \i> th that excep- party to costs, or to object to costs where no such tender ifi made, or where the Court or Judge shall consider the party entitled, notwithstanding such notice or tender, to appear in Court. (Comp. R. Sup. C, Aug. 12, 1875, "Cc8ts,"R. 17.) This Rule corresponda with the first part of the English Rule referred to, except that the latter is confined to the Ohy. Div., and names £2 2ii. instead of $5 as the amount to be tendered. Bales 434-436. 4:i3 8. The Court or Judge may, at the hearing of any Disaiiow- cause or matter, or u{)on any a[)plication or ])rocedure in ofu"nneces-' any cause or matter in Court or at Chambers, and s^fy v"- whether the same is objected to or not, direct the costs of any pleading, affidavit, evidence, notice to cross- examine witnesses, account, statement, or other j)roceed- ing, or any part thereof, which is improper, unnecessary, or contixins umxeces-sary matter, or is of unnecessary length, to be disallowed ; or may direct the taxing otlic(^r to look into the same and to disallow the costs thereof, or of such part thereof, as he shall tind to be improper, Vinnecessary, or to contain unnecessary matter, or to be of unnecessary length. In such case the party whose costs are so disallowed shall pay the costs occasioned to the other parties by such unnecessary proceeding, matter, or length ; and in any case where such question shall not have been raised before anil dealt with by the Court or Judge, the taxing officer may look into the same (and, a.s to evidence, although the same may be entered as i-(,'ad in any decree or order) for the purpose aforesaid, and there- upon the same consequences shall ensue us if he had been specially directed to do so. (R. Sup. C, llith Aug., 1875, "Costs," R. 18.) Same as the English Rule, and founded on Eng. Chy. Order 40, Rules 9 & 10 {we Morgan Orders, 4th Ed., 581). The Master must inquire on taxation into the propriety of proceedings in an action, though not specially directed to tlo so ; aud he cannot refuse to do so where an order is made to stay j)ro- ceedings on payment of costs (liaines v. Wornuky, 47 L. J. Ch. S44 ; 39 L. T. 85). For the practice as to taxation of costs of an abandoned motion, or on discontinuance of action, see Harrison v. Lcutnfr, 16 Ch. D. 559. 4.16 9. In any case in which, under the preceding Rule Set-off of No. 8, or any other Rule of Court, or by order or direc-*""" *' tion of a Court or Judge, or otherwise, a*party entitled to receive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so 346 ONTARIO JUDICATURE ACT, 1881. RalM liable to pay, and may adjust the Ramo by way of deduc- 486-438. tion or set-off, or may, if ho shall think tit, delay the allowance of the costs sucli party is entitled to receivo until he has paid or tendered the costs he is liable to pay; or such otticer may allow or certify the costs to be paid, and the same may be recovered l)y the party entitled thereto in the same manner as costs ordered to be paid may be recovered. (R. Sup.C, 12th Aug., 1875, "Costs," R. 19.) Same as the English Rule. Where, by an award in an action, the plaintiff was ordered to pay a sum of money to the defendant, and the defendant was ordered to pay the plaintiff a part of his costs when taxed, it was held chat the defendant was entitled to have the debt set off against the taxed costs, and that the right to set-off in such a ease was not interfered with by tlie ordinary solicitor's lien for costs {Prinyle v. Gloag, 10 Oh. D. G7*J). Unnecessary 10. Where any party api)eai"s upon any apT>lication or aiouambcrs. pi"Oceeding in Court or at Chambe^ <, in which he is not interested, or upon which, accor .ig 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 Judge shall oxpresslv direct such coats to be allowed. (R. Sup. C, 12th Aug., 1875, "Costs," R. 21.) Identical with the English Rule. -See Eng. Chy. Ord. 40, R. 28 (Morgan Orders, 4th Ed., p. 389). 11. There shall be two or more taxing officers of the Supreme Court ; and they and each of them shall for the purpose of any j)roceeding before them or him, have power and authority to admini.ster oaths, and shall, in relation to the taxation of costs, perform all such duties as have heretofore been performed by the Registrar of the Court of Appeal or by any of the Masters, Taxing Officers, Registrars, Deputy Registrars, or other officers of any of the Courts whose jurisdiction is by the Act vested in the High Court of Justice or Court of Appeal ; and shall, in respect thereof, have such powei-s and authorities as previous to the commencement of the Act were vested in any of such officers, including examining witnesses, directing production of books, papers, and docum.ei ts, making separiit« certificates or allocaturs, re- quiring any party to be .^presented by a separate soli- citor ; and to direct and a .opt al! such other proceedings as could be directed and adopted by any such officer on references for the taxation of costs, and taking accounts of what is 4^8 in respect of such costs, and such other Qcneral |H>wer8 of taxing iiHlfcrs. prd. 40, R. 28 TAXATION OF COSTS. accounts connected therewith an may bo directed by the Court or a Judge. (H. Sup. (J,, 12th Augtist, 1875, "Co8t8," R. 23.) Tho provision at tho beginning of this Rule, that thoro shall be two Taxing Mosfcra of tlie Supremo f 'ourt, is not in tho Kng- lish Rule. The existing ofHcurs reforretl to arc not ail tho same in the two Rules. The Rules otherwise are substantially to the same effect. 347 Bnles 488, 439. 4»9 12. The preceding Rule shall not be construed as in- Revision of terfering with the power heretofore possessed by local '"""**'*^**^' ol^cers to tax costs. (a) Every bill of costs in a suit pending in tho Court of Chancei-y at the commencement of tho Act, every bill of costs in any action thereafter brought in any Division of the High Cvourt for the administration of an estate, or for partition, or for the foreclosure, redemption or sale of mortgaged premises, and every bill in any other action where the amount is to he paid out of an estate or out of a fund in Court, or wluire the amount taxed afTects the interest of an infant, shall be subject to revision according to the practice hitherto j)revailing in the Court of Chancery ; and the Orders of that Court numbered from 310 to 313, inclusive, shall in other respects be deemed applicable thereto. Not taken from any PJnglish Rule. The Chancery Orders refen od to are the following : "310. No bill of costs where the amount claimed exceeds Ch. Ord. 810. thirty dollars is hereafter tt) be taxed by the Accountant, Regis- trar, or Judges' .Secretary, but every bill exceeding that sum is to be taxed by the Taxing Officer, notwithstanding anything to the contrary contained in the order. " 311. Every Ijocal Master is forthwith, after taxing a Bill of Ch. Ord. Sll. costs, to transmit the same by mail to Toronto, addressed ' To the Taxing Officer of the Court of Chancery, 'J'oronto,' and he is to allow in the bill the postage for the transmts.sion and return of the bill, and shall prepay the same ; and is to allow in the bill the sum of one dollar as a fee for the revision of the bill by the Taxing Officer at Toronto, and a law stamp for that sum, with postage stamps for the postage, \» to be paid at the time of taxation by the party procuring the bill to be taxed ; and the Local Master is to transmit with the bill to the Taxing Officer at Toronto, the law stamp, and the necessary stamps for postage on the return of the bill to the Local Master. " 312. The Taxing OflBcer at Toronto, open receiving the bill Ch. Ord. J12. of costs, is to examine the same, and to mark in the margin such sums (if any) as may appear to him to have been improperly allowed, or to be questionable ; and he is to revise the taxation, either ra;)aWc or upon notice to the Toronto agent (if any) of the SoUcitor whose bill is in question, as in his discretion he may see fit ; but notifying such agent (if any) in all cases where the II 348 ONTARIO JUDICATURE ACT, 18'' 1. liil'i't m Bnle 489. taxation is not clearly cr.'oneoua, or whore the amount in (]uc8- tiou iaso large as in the judgment of the Taxing (JtHcer, toinaku suoii notification |>ro|^r. Such notification may be by appoint- ment mailed to tlio address of the agent (if any). If upon the revision the sums disallowed shall amount to one-twentieth of the amount allowed upon taxation, the Taxing Officer is to add to the amount taxed off, the amount of postages, and the sum of one dollar aforesaid, and is thereupon to re-transmit the bill so revised to the Local Master. Under these Orders the Taxing Officer has, power not only to strike nut items improperly allowed, but also to restore items improperly struck out, and generally to review the taxation {KeAm v. Ymijleii, 9 0. L. J. 55). (■!i. Orel. 313. "313. No sura is to bo inserted in the report of a Tjocal Master as taxed and allowed for costs, until such revision by the Taxing Officer ; but in a case of urgency, a writ of execution may issue to levy debt or costs, or iiotii, upon the order of a Judge, subject to the future revision by tlie Taxing Officer." (6) In other cases any party intorested may a.s of right have the taxation of the locul ottioer revised, without giving tlie two day.s' notice to the oiniosite party required in the 3.')3rd .section of the Common Law Procedure Act (K. 8. O., c. 50) ; which section shall in other respects apply to all the Divisions of the High Court. Not taken from any English Rule. Section 353, C. L. P. Act, is set out in the note to Rule 417, Bubsec. (b), aiil^. {(:) In the cases last aforesaid, the party desiring the revision shall give notice thereof to the ojiposite party, and on a praecipe being tiled with such local officer, such officer is to transmit the bill to the taxing officer at Toronto for revision, and the practice tliereon is to be as provided by the said Chancery Orders. No corresponding English Rule. See Chancery Order No. 311, supra. (d) Pending such revision judgment may be entered and execution issued unless the Court or a Judge other- wise orders, and in case of an execution being so issued, if the amount taxed is reduced on revision the party entitled to the costs shall forthwith give notice of the reduction, and of the amount thereof to the Sheriff or other officer in whose hands the execution had been placed, and the amount struck off on the revision shall be deducted from the amount indorsed on the execution. Not taken from any English Rule. By Chancery Order 313 it was provided that in case of urgency a writ of execution might issue upon the order of a Judge, sub- ject to the future revision of the costs by the Taxing Officer (see the Order in the note to Rule 439 a). TAXATION OF C08T8. 349 13. The taxing officer 8lia!l have authority to arrange Bales and direct whiit parties are to attend before him on the 440-448. taxation of costs to ho. borne by a fund or estate, and to 440 disallow the costs of any uurty whoso attendance such P«rtifi» to .,. 1 1 1 • 1 • 1 • . • • 1 • attend taxa- othcer shall in his uiscretion consider unnecessary mtidng. consecjuenco of the interest of such party in such fund or tistate being small or remote, or stifficiently protected by other parties interested. ( U. Sup. (.)., 12th Aug., 187f), -Costs," K. 24.) Identical with the English Rule. 441 14. Whore any party entitled to costs refuses or Noglfitto neglects to bring in his costs for taxation, or to procure [*[i"^„|,"^*;"^ the same to be taxed, and thereby prejudices any other party, the taxing othcer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglecting a notninal or other sum for such costs, so as to prev(!nt any other party binng prejudiced by such refusal or neglect. (H. Sup. C, c. 12, August, 1875, " Co.sts," K. 25.) Identical with the English Rule. ^ 449 15. As to costs to be paid or homo by anotrer party, T.ixati(m« no costs are to be allowed which do not appear to the |IIiriy and taxing officer to have been necessary or proper for the i"""^y- attainment of justice or defending the rights of the [)arty, or which api)ear to the taxing officer to have been incur- led through over caution, negligence, or mistake, or merely at tho desire of the pJirty. (R. Sup. C, c. 12, August, ISTf), "Costs," K. 2G.) Identical with the English Rule. Where, under an order directing an account of what was due to a party in respect of costs of proceedings taken to enforce a judg- ment in the Exchequer Division, the Taxing Master flisallowed the costs of certain abortive garnishee summonses, it was held tliat the Master was not precluded by the form of order from disallowing any costs he thought proper, and that, under this Rule, he was bound to do so (>Simmu)iH v. Slorer, 14 Ch. \). 154). . ._ 443 10. Where a solicitor's bill of fees, charges and disburse- Partii'ulars nients as delivered to a client or other person is rofiiper8, and writings in the said solicitor's jMjsses- sion, custody, or power, belonging to the said client. ((I) The order shall be read as if it contained tho above i)articulars, and shall not set forth tne same, but may contiiin any variations therefrom, and any other directions which the Court or Judge shall see fit to make. There is no corresponding Rule in England. This Rule con- tains the provisions usually inserted in an order for the taxatioa of a solicitor's bill. It will not be proper to insert them here- after, and the order will be read as if it contained them ; but it may contain any variations or additional directions. Form No. 130, in Appendix (H), is the form of order to be hereafter used in such cases. 17. The order, when gnintable of course, shall be issued on prmcipe by the Registrar, Deputy Registrar, Lo- cjil Registrar, or Dei)uty Clerk of the Crown. There is no corresponding Rule in England. 18. The rules, orders, and practice of any Court, whose jurisdiction is vested in the High Court of Justice or Court of Appeal, relating to costs, and to the allowance of the fees of solicitors and attorneys, and to the taxa- tion of costs, existing prior to the commencement of the Act, shall, in so far as they ai'e not inconsistent with the Act and the Rules of Court in pursuance thereof, remain in force and be applicable to costs of the same or analo- gous proceedings, and to the allowaiiceof the fees of soli- citors of the Supreme Court and the taxation of costs in the High Court of Justice and Court of Appeal. (R. Sup. C, Aug. 12, 1875, R. 28 ; R, S. O. c. 50, s. 334). This corresponds in substance with the English Rule. 19. The taxing officers shall perform their duties under and subject i<"> aiiy supervision which from time to time may appear to the Judges of the Supreme Court to be REVIKW OF TAXATION. 351 necessar}' or proper, and may by them be directed, in Bale* order to secure accuracy and uniformity in the proceed- 448-449. ings of the taxing officers. There ia no corrctiponding Kule in England. 447 20. Any party wlio may bo dissatisfied with the aUow- ()»>.ii><'tion u. ance or disaUowance by the taxing officer, in any bill of costs taxed by him, of the whole or any part of any item or itemn, may, at any time before the certificate or allocatur is signed, deliver to the other party interested therein, and carry in before the taxing officer, an objec- tion in writing to such allowance or disallowai»ce, sp(?ci- fying therein by a list, in a short and concise form, the item or items, or parts or part thereof, objected to, and may thereupon fxpply to the taxing officer to review the taxation in respect of the same. (R. Sup. 0. Aiig. 12. , 1875 ; R. 30.) I«lentical with the English Rule. • Wlicn a party carries in an objection in writing to an allowance or disallowance imder this Rule, ho is only bound to state tlu* items to which he objects, not the reasons of his objection {Simmons v. Storer, 14 Ch. 1). 154). See also Sparrow ^r. Hill, in/rn, in note to Rule 449. 21. Upon such application the taxing officer shall re iicvicw of consider and review his taxation upon such objections, ['jl^fn'"" ''* and he may, if he shall think fit, receive fui'ther evi- oiticr. dence in respect v,hereof, and, if so required by either party, he shall stat? either in his certificate of taxation or allocatur, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances re'ating thereto. (R. Sup. C. Aug. 1 2, 1875, R. 31.) Identical with the linglish Rule. 449 22. Any party v.'ho may be dissatisfied with the certi- iievipw of ficate or allocatur oi' the taxing officer, as to any item or|*^",[_"'" ''^ part of an item wiiich may have been oVyected to as afore.said, may apply to a Jixdge at Chambers for an ordei- to review the taxation as to the same item, or part of an item, and the Judge may thereupon make such order as to the Judge may seem just ; but the certificate or allo- catur of the taxing; officer shall be final and conclusive as to all mattei's w hich shall not have been objected to in manner aforesaid. (R. Sup. C, August 12th, 1875, R. 32.) Identical with the F]ngli8h Rule. -. re;! if' mm Is %,w^ II rf Ral«8 449^98. I. to Kvltlcnco tlllTI'DII. ONTARIO JUDICATURE ACT, 1881. Where quGHtioiiB of taxation are in till Madter's dincrotion, his iliHcrvtion will not bo intnrtun'd with unleHH it he maniTttHt that hu huH failo«l to cxcrcisu it in a ro. '•onahio manner (llartjreavrit v, Si-utt, M). I'. I). 21.) 'I'hc (lourt rcfiiBt'd to roviuw adocision (lisallowing the ecmtB of dliortliand wHtcrH' notea from day t(» day for uho of crnuiHel (Kirkwood v. Wrlmter, 9 Ch. \). iJ.M) ; W>IU V. Milcham, Ac, (la.i Vo'y, 4 Kx. 1). I.) Thu taxing master's decision as to the ammi'itof counsers Uicn will not ho interfered with unlesH a gross misUike ismwle (lirown V. Scml/, 16 (Jh. I). 017,). Where the (jnestion is one of the principle of tho whole taxa- tion, and not as ti) particular items, it is not neccHsary to specify objections as provivled in 11. 447 (N/xtrrow v. Jlill, 44 \j. T. 14G). 23. Hucli application Hliall ho Iieiu i and dotcnninod by tho Jiidgo upon tho evidoiicc whicli Hhiill liavo Imm-ii brought in bofbro tho taxing ollicor, »nd no fin-thcr cvidonco Hhiill be roccsivcul upon tho lu^iring thoroof unless tho Judgo sliall othorwi.se diroot. (R. Sup. C, AuguHt 12; 1875, R. 33.) Identical with the English Mule. See Knglish Chancerv Order 40, II. 3G (Morgan (Jhy. Orders, 4th Ed, 504). 1.19 NoticdS toltc written or prill tt«J. ORDER LI. NOTICES AND PAPER, &c. 454 K«Rtilati(inR :is t.i) print- ing pro- I'eeoiujp*. 45» Affidavits. 1. All notices required by the.se Rules shall be in niantiscrif)t or print, or partly in [manuscript and partly in print], unless expressly authorized by a Court or Judge to bo "iven orally, (Comp. R. Sup. C, 1875, Order 5G, R.l.) Instead of tho words in brackets the English Rule has the word "writing." 2. Proceedings, if printed, shall be printed with pica type, leaded, on good j)aper, of foolscap size. (Comp. R. Sup. C, 1875, Order 56, R. 2 ; G. O. Chy. No. 67.) The English Rule is more particular in its directions. 3. Any affidavit may be sworn to either in print or in manuscript, or partly in print and partly in manuscript. (R. Sup. C, 1875, Order 56, R. 3.) Identical with the English Rule. Rule has the COMPUTATION OF TIMK. OTTDER LI I. 'MiA BqIm 494-457. 1. *Ht TIME. Where by theHe Rules, or by any judgment or oiwler Moiitimiiiiiiii given or made after the cotntnoncemunt of the Act, ti»n<^7aTm.m'thM for doing any act or taking any proceeding iu Uniitcd by rnontliH, not exproHHcd to bo lunar niontliH, Hiich time Hhall be computed by calen. O. c. ;, 8. 8, 8ub-8. 1(5) AS follows : " !($. The word " holiday " shall include Sundays, New Year .. • llniiday. Day, (lood Friilay, Easter Monday, anpiit«ri4eut. 439 Scrrice. 4tfO I'leaiiing in vacation. 4»l \Mn\r vaiM- lion exclud- ci' ill time fie barred by the Statute of Limitations (Doyle v. Kaufman, '^() B. 1). 7, 340). See also note to Rule 31. Costs of ap- lo; The costs of ati application to extend the timo for ;ili(;ation for , , . ■,. i n • xi i c j oxt'tision of taking any proceeding shall, in the absence or an order time. j,y j.|jj, Court or a Judge directing by wliom tliey are to he paitl, be in tl;n (iiscretion of the Taxing Master. ( R Sup. C, April, 1880, R. 65.) Identical with the English Rule. 1 ' AFFIDAVITS. •a:u wenport, 4 Q. B. ORDER LI II. AFFIDAVITS. Rales 464-468. 4«« 1. Every affidavit sliall be drawn uj) in the first per- Form of son, and sliall be divided into paragraphs, and every para- " i(raph 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 \a\. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this Rule. (R. Sup. C. April 1880, R. 12; Rog. Gen. T. T. 185G, No. 112, Ont. ; G. O. Chy. Nos. G8, 258.) (a) The English Rule has here the word " book- wise ;" it is otherwise the same. The previous practice was substantially the same, except with regard to an affidavit being printed. 4«.-» 2. Every affidavit shall state the description and trtie Description place of abode of the deponent [and shall be signed by *jf, ^^jjj",?*^ him]. (R. Sup. C. April, 1880, R. 13 ; Reg. Gen. T. T. tobestaurt. 1856, 109, Ont.) The English Rule does not contain the words in brackets. 4«« 3. In every affidavit made by two or more deponents Affl .appended to or indorsed ujion (jvery Affidavit to affidavit a note shewing on whose behalf it is filed. »''"* "" fComp. R. Sup. C April, 1880, R. 15.) h. "Tt iT niwi Taken from the English Rule. 4«N 5. No affidavit having in the jurat or body thereof any Altenition.s interlineation, alteration, or erasure shall without leave'""'"''"*'''"* of the Court or a Judge be read or made use of in any matter pending in Court unless the interlineation or alttiration (other than V)y erasure) is authenticated l)y 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 arc rewritten, and signed or initialed in the 1 .■ ;i l.'S ONTARIO JUDICATURE ACT, 1881, Rules margin of the affidavit by the officer taking it. (R. Sup. 468^71. C, April, 1880, R. 16; Reg. Gen., T. T. 1856, No. Ill, Ont. ; G. 0. Chy., No. 131.) Taken from the English Order referred to, which contains alsci a special provision for the case of an affidavit being taken at the "Central office." 4tf9 Aflldavits by illitenttj |M'r'<(iii.s. 470 Stamps on ufliiiavits. r.ipie 6. Where an affidavit is sworn by any person wlio ap" peais to the officer taking the affidavit to be illiterate, the officer shall certify in the jurat that the affidavit was read in his jiresence to the doi)onent, that the deponent seemed j)erfectly to iniderstand it, and that the deponent iiiiide his or her signature in the j)resence of the officer. No such affidavit shall be used in evidence in the ab- sence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and apparently perfectly understood by the deponent. (K. Sup C, April, 1880, R. 17; Reg. Gen.. T. T. 1856, No. 113, Ont.) Identical with the English Rule. 7. In cases in which by the present ]iractice an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used, be dtilivered to and left with the proper officer in Court or in Chambers, (a) An office copy of an affidavit may in all cases be used, the original afli- )i office davit having been previously filed in the (b) [proper] office, and the copy duly authenticated with the seal of that office. (R. Sup. C, April, 1880, R. 18.) (a) The English Rule has here the words " who shall send to the Central Office." {h) The English Rule has the word "Cen- tral " instead of the word "proper." The above is otherwise the same as the English Rule. I:. !?fc: !; 1 ■! I ORDER LIV. DIVISIONAL AND OTHER COURTS. 47 I I'ro.peiiiDgs ^- The following pi'oceedings and matters shall be tr> he taken heard and determined before the Divisional Courts ; but oivisional nothing herein contained shall be construed so as to take Courts. away or limit the power of a single Judge to hear and determine any such proceedings or matters in any case in which he Inis heretofore had power to do so, or so as to require any interlocutory pi-oceeding therein, heretofore taken before a single Judge to be taken before a Divisi- onal Court, [a.] COURT APPLICATIONS. nr)9 Appeals from orders of a Judge in Chambers, [b.] Proceedings directed by any Statute to betaken before the Court, and in which the decision of the Court is final. Cases of Habeas Corpus, in which a Judge directs that a rule nisi for the writ, or the writ, be made return- able before a Divisional Court. ([c] Other) cases where all pai'ties agree that the same be heard before a Divisional Court. Applications for new trials in the said Divisions where the action has been tried with a jury. (Com p. K. Sup. C. December, 1876, K. 8.) (a) The preceding part of this Rule is tcolien from the English Order, Deceml)er, 187G, II. 8. (b) The English Rule names only the Q. B., C. P. and Exch. Divisions. (c) Instead of the word "other " the Lnglish Rule has the word "special." (jsee Rule 317a, ante). The English Rule also includes proceedings on the Crown side of the Queen's Bench Division ; appeals from Revising Barristers, and proceedings relating to Election Petitions, Parliamentary and .Municipal ; appeals under section 6 of the County Courts Act, 1875 ; proceedings on the Revenue side of the Exchequer Divi- sion ; and cases stated by the Railway Commissioners under tlie 36 k 37 Vic. c. 48. 2. Bills of exceptions and [vroceedings in error shall be abolished. I See R. Sup. C. 187.5, Order 58, R. 1.) Identical with the English Rule. Bales 471-473. 47.* Bills of oxopptions and error abolished. ORDER LV. EFFECT OF NON-COMPLIANCE AND ERRORS. 4»a 1. Non-compliance with any of these Ruli>s shall not Non-compU- render the proceedings in any action void unless the Court ^li'it *'^ ' or a Judge shall so direct, but such jiroceedings 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 Judge shall think fit. (R. Sup. C. 1875, Order 59.) s Identical with the English Rule. In International Financial Society v. City of Moscow Gas Co'y, 7 Ch. D. 241, it was held, that the mere fact that an appellant had misconstrued a Rule, and by reason of such mistake had omitted tu bring his appeal in time, was not a sutiicient ground for en- larging the time for appeal. 'M\0 ONTARIO JUDICATURE ACT, 1881. |1, I I' Rales 2. The Court or a Judge may at any time, and on 474^76. such terms as to costs or otherwise aa to the C'ourtor 474 Judge may seem just, amend any defect or error in any Amendment proceedings ; and all such amendments may be made as ern.ru. »uiy be necessary for [the advancement of justice] deter- mining the real (question or issue raised by or depending on the proceedings, [and best calcidated to secure the giving of judgment according to the very right and justice of the case]. (tSee 11. Sup. C, Aj)ril, 1880, R. 44 ; R. S. O. c. 49. ss. 7, 8 ; c. 50, s. 270.) The words in brackets are not in the Knghah Rule, and are taken from the statutory enactments referred to. M ' :!' ]« IFl! 473 Suiton' AcrountH in Superior Courts con- sclidftted. 47« Rev. Stat. c. to accountH I • OKDER LVI. ACCOUNTANT'S OFFICE. 1. The Suitor's Accounts in the Queen's B'^nch, Com- mon Ph\is, and Chancery, shall be consolidate* and shall be in charge of an officer to be called the Accountant of the Supreme Court. Not taken from any English Rule. 2. Section 121 of the Common Law Procedure Act ^ppiy to ' shall apply to the said accounts, and shall be read as if the words " Accountant of the Supreme Court " were substituted for the word " Clerk " wherever the word " Clerk " occurs in the said section. Not taken from any English Rule. Section 121 of the C. L. P, Act is as follows : Rev. Stat. " 121. Money to be paid at Toronto, into the Court of Queens 1'.. 50, 9. 121. Bench or Common Pleas, by any person, shall he paid into some incorporated bank designated for this purpose, from time to time, by order of the Lieutenant-(iovernor in Council ; or wl'cre there is no such bank, then into some incorporated liauk I;' public money of the Province is then being d;iK' > which has been api)ointe(l for this purpose l)y any iJc or ( )rder made in the same manner as other Generj i \l Orders of the said Courts respectively are by law dirrcU' made ; or if no bank has been so appointed, then into anj in which j)ublic money of the Province is then being deposited. " (2. ) The money shall be so paid in to the credit of the cause or matter in which the payment is made, with the privity of the Clerk of the Court [now the Accountant of the Supreme Court], and in no other manner ; and such money shall only be with- drawn on the onler of the Court or a Juilge thereof, with the privity of the Clerk of the Court [now the Accountant of the Supreme Court]. ..-lie 1 or > he oank ACCOUNTANTS OFFICE. :\6i " (3.) Where money is bo paid in under a plea of payment into Court, the Clerk [Accountant of the Sujjrenie Court], on the production of the receipt of the bank for the money or other satisfactory proof of such payment, shall sign a receipt for the amount in tho margin of tiie plea ; "(4. ) The Clerk [Accountant of the Supreme Court] shall keep a hook or books containing an account of all moneys so paitl in, and of the withdrawal thereof ; and shall prepare in the month of .January in every year a statement of all moneys so paid in and withdrawn respectively, and a statement of the condition of the various accounts upon the thirty-tirst day of the preceding De- cember, and shall transmit to the I'rovincial Secretary and to the .ludge or each of the Judges of the Court, a copy of such state- ment, with a declaration thereto annexed made before a Jusiice of the Peace or Commissioner for taking affidavits, in the form following : I hereby solemnly declare that the annexed statement is a full and true statement of the moneys paid into the Court of during the year 18 , and that it correctly shows the state of the various accounts therein mentioned upon the thirty- first (lay of December last. (Signature) A. B., Clerk. Subscribed and declared before me, at , this day of January, 18 C. D., Commisfiioner for Uik'uKj affidavits, or JuHtia' of the Peace. " 5. The book or books so to be ke[)t shall be open for inspection during office hours ; and the Clerk shall give a certificate of the state of any account or an extract therefrom at the desire of any party interested, or his attorney on payment of the sum of twenty cents for such inspection or certificate, and the sum of ten cents per folio for sucli extract, which sums shall be payable in stamps, according to the provisions of The Act reaijectivii Law Stamps." 3. Money is to be paid out of Court upon the cheque of the Accountant, countersigned by any of the following otficei-s, viz. : one of the (clerks of the Crown and Pleas or the Registrar. (R. S. O. c. 50, s. 121 ; G. O. Chy., No. 627.) Not in any English Rule. 4. Every cheque is to be initialed by the chief Clerk in the Accountant's office before the saine is pro.sented for the signature of the Accountant or other officer. {See a. 0. Chy., Nos. 352, 372, G27.) Not in any English Rule. 5. The Registrar of the Court of Chancery shall act as, and shall be, Accountant of the Supreme Court until and unless some other person is ai){)ointed A.ccountant of the Supreme Court. Not in any English Rule. Ralei 476-479. Rev. St«t c. 21. 477 Payment otit of Court. 4T8 Cheques to b<' iuilialod liy CliTk. 47* Registrar to uc't as Acc'ouatatil. :i02 ONTARIO JUDICATURE ACT, 1881. Bales 480, 481. ORDER LVII I' \m 481 Vacation J udij;es. SITTINGS AND VACATIONS. 4MO Sittings of 1- The Sittings of tlio High Court of Justice shall Ik; HiKii Court, three in every year, viz., the Michaelmas sittings, tho Hilary sittings, and the Easter sittings. (a) The Michaelmas sittings shall begin on the third Monday in November, and end on the Saturday of the second week thereafter ; the Hilary sittings shall begin on the first Monday in Feliruary and end on the Satur- day of the following week ; the Easter sittings shall begin on the third Monday in May and end on the Satur- day of the second week thereafter. (See R. S. O. c. 39, s. 11; R. Sup. C, Order 61, R. 1.) (b) In case it appears to the Judges of the said Court, or a majority of them, that the number of days so pro- vided for holding any sittings is not required, or is insuffi- cient, for the due des{)atch of the business to be transacted by the Court in such sittings, such Judges may from time to time, by rule or order, shorten the period for holding the sittings to such period, not less than two weeks, or increase the length of the same to any period, as the case may re-juire. (See R. S. O. c. 39, s. 12.) A similar power was given by the Ontario Statute to any two of the three Judges of the Queen's Bench or Common Pleas. (c) The preceding provisions of this Order are not to apply to the Chancery Division except when the Judges thereof shall be of opinion that the business of the said Division is such as to render the said provisions neces- sary or convenient for the due despatch of business, and shall give notice to that effect. ((/) Divisional Courts of the High Court are to sit at such further or other times as may be directed by the High Court or as may be necessary for the due despatch of business. The periods named for the sittings are those named for the Terms bearing the same name under R. S. O. c. 39, sec. 11. It will be observed that no Trinity sittings in August are pro- vided for. The English Order provides for four sittings in every year for the Court of Appeal and the sittings in London and Middlesex. 2. One or more of the Judges of the High Court shall be selected at the commencement of each Ijong Vacation, for the hearing in Toronto during vacation of all s\ich SITTINGS AND VACATION. .Ifi.S appliciitions as may require to be iinmediatoly or promptly Bnlei heard. Siurh Judge or Judges shall act as vacation 481-483. Judge or Judges for one year from ay>pointmeiit. In the absence of arrangement between the Judges, the vacation Judge or Judges .shall be the Judge or Ju. c. 43, 8. 13) : ^ "13. Except in the County of York, and subject to the pro- Hev. HUl. visions of section eighteen of " 7Vif Local Courts Act," tlie Sit- <• ■*•*. ••< lu- tings of the said County (Jourts, for tho trial of issues of fact and assessment of damages, shall be held semi-annually, to commence on the second Tuesday in the months of .June and Deoember in each year. "(2) The County Court of the County of York shall hold four such Sittings in each year, to commence respectively on the first Tuesday in the months of December and March, and on the second Tuesday in the months of May and September in each year." . . ■•'^» 4. In all actions, suits or other proceedings brought in costs wh.rr any County or Division Court in Ontario, in which the jl;';,!^'™^^ '^'^f l)laintifl' fails to recover judgment by reason of such jurisiiiciictn. Court having no jurisdiction over the subject matter thereof, the said County Court, or the Judge |)residing in the said Division Court, as the case may be, sliall have jurisdiction over the costs of such action, suit or other pro- ceeding, and may order by and to whom the same shall be paid, and the recovery of the costs so ordered to V)e paid may be enforced by the same remedies as the costs in actions, suits or proceedings within the pro[)er com- petence of the said Courts respectively are recoverable. Not in the English Rules. Where an .appeal from a County Court was struck out on the ground that the order giving leave to appeal had been granted by a Judge at Chambera without jurisdiction, and that there was, 366 ONTARIO JUDIOATUIIE APT, 1881. BuIm thoruforo, no juriadiction to entertain the appeal, the (*ourt of 4t?, 490. Appis-il from Inferior Oourta hel|)(dlant not having complied with the oonditiona rctiuirtid by tiiiit Act, there was no jurisdiction t<> hoar the case, and the rc8pon(h)nt moved to atrike tlie case out of tlie paper, the application waa granted with costs ((hfdi Northern ,i-r., (Jommiltec v. /nctt, 2 Q. H. I). 281 ; tii-i' alao /foynl Cannrlian Bank v. Stevenson, 22 U. (J. C. V. 5()2). inn I'ruc-.'.lini i tjimril.v (!)uri..i. R.!v Stat e. <;t. s. ti. Rev. Stfit. 0. 4». s. :10. Rev. Stat. 0. i3. s 81. i> r^. Snl)j(!ct to tlic provisions of tlio Art, iiiul to Kiiles of Court, tho j)l(!a(Uiij^H, pnictico and |)1'oc(hUuo for the time b(un<^ of tho Hi^h Court of Justice shall apply and extend to tho County Courts, whorovtir tho pnsscMit plead- ings, practice and procedun? of th(! County (courts cor- respond with those of the Suixsrior Courts of Law. Noeorreaponding Kngliah Rule. Tho following sectiona of tho (\)unty Courts Act, K. S. ()., c. 43, ahow the corrc8i)ondence of the present pleadings, practice avid procedure of the County Courta with tlioae of the Superior Courts of Law. " 2;{. The provisions of ' 77tc Hjcrtmrnt Act' shall, so far as ajiplicable, extend and apply to the actions and proceedings under this Act, and to the said County (Courts, in reference to such actions and proceedings ; but the Jutlges of the Superior Courts of Coinnion l^aw, acting under the 45tli and following sections of ' The Ay tiiio or iinpriHonrntiiit, or by both, for any wilful contempt or ro ,**y3 ^'"I, giMtanco to their regular procusB, rulen or orders ; but Huch line Hhall in no casu exceed iJIIUO, nor tihall HUch impriHonment uxcuud nix mouths. O R I) E II L X I INTF'MIIMIKTATION. 491 1. A "Judge" in tlio preceding Orders nieim.s a "Jh'Ikp," Judge of the HuprcMue Court, or a .fudgf! Iiiivitig authority '"*'""'"'*' • for tlie time heing of a Ju III coinrmm been '''.«««. delivered, the action shall be continued according to the ordinary course of the High Court of Justice, as if it bad been commenced in that Court. (2) In all other iMsos the action shall be continued up to the close of the pleadings according to the practice of the Court in which it was brought, find afterwards according to the provisions of the Act; subject, however, to an order, at the instance of either party, to proceed at any stage according to the provisions of the Act. {See Notice of Nov. 2, lS75, W. N., 1875, Pt. II., p. 4(51>.) Where, before the Judicature Act came into operation, a ver- dict had been taken, subject to a reference with power to the arbitrator to direct a verdict for either party, but the award was not made until after the Act came into operation, it was held that judgment on the award couM be signed without obtain- ing an order of the Court or a Judge {Lloyd v. Ltwin, 2 Ex. D. 7). 494 2. With respect to pending business in the Court of in Chancery Chancery, subject to any special order which may be ^'*"**'"- tl; t :u\}\ . ONTAHH* .MllMCATIiNri! \\'\\ IHMl. ,-' nitl<> 4D4 nti«ili> iit nny fiuiHo, uiiilloi' or |triii>t<<>i|iii^ iii'iulin^ iii. iJm> i'oiiMMiMH'<'iut>i\( nl' (lit« A»'(., dm |UtM'(Mlnit< in In lw> mm lollowH : All ommi'H, ninlioi'H, aiiil iiinctM'iliiiyM, f>sc('|il t>«UM(>'< it) wliii'li nt'illiiM' iKilici* iiC innlinii lor it tlocicc lnui l»iu>ii Mcrvt'il. nor n>|>lii'ii1ioii Ihm>ii lili'il, lioloio iIk'mmIiI (iiiio mIiiiII, MO till MM ri>|i)M lo lli(<.roiin Mini MiMiiiii>r til |»ro(M>(lmi>, lu> «'ouli>nn't| miuI cimi'linli'il in (In' HMnin nniti not' MM (ln>v wouM Iimm' Ihmmi in llii> <'nni( ol" (HliMnt't'iv (.SV,. Noln-o or Nov. ;l. IH/n. W. N.. lH7r>. IM,. II,, i» it;s.i ^r^^ ,\ll M>i«'l» piMiiliny ohuhch in wliicli, np lo lln> com n\<>ni'(>in»'n( ol (lio ,\('l. no nolicpol nixlion lor m iIim'H'i' IniM Ix'on Mi'rvi'il or ri'iiJM'Mhon lijoil, hIimII Im> i'tin(inni*MM Incy wonid Iwivn lii'i (itnc mI wliicli hiicIi \>olii'i> ol )nolioi\ or ii'plii'Ml ion I'onlil |imvi> lini«n Hcrvi'il oi lonl innnl tn'ronliniar 'n (ln> ordinurv conisi' ol iho lli^li ('onri ol' .IiihUim" ^Soo Ih) , v/»^ Any |>!U' n |MMnlin\; i';inMt< nniy Mpply in ( ■Iimiii horn (liMt, lor Npi't'iMl rt'UMons, m dirci'don inMV lie ^ivl>n tor *»ontinnin'jt sncli cmuno in'oordinij; lo llnMudiniiry tiourHc of (1(0 Hiy:l» <'v>nrl ol" .lii.'ilii-o, (Sco i/i.) ri\iM\uul will Mill iin.nit.r /iiii/i iiinilicil iiih ilniM'l, proi'i'i'il nnt^ u\ it |u>i)tln\^ nmiI <<> li<> fiMihiiuiMl innlcr tlir nM |ini('lirr {l\rl:i»s V. Shtf'i; I ('!». I». S:n. Wlii'ii' n« .i H»i( pi'MiliMn ;>( lid' liiiic llu' Ai'l cinnc inlo o|m>iii 1 1<>I» lU'liv ('rni){ a ili'toni'i' " Hi> ivM (,i> I'liddi' tile |il;uiililt to »o( (lo\\\> ll\o ;»o(>(i:i «m r.ioliiMi lur juilmmciil. innlcr Uiilo'Jll it^w//..vv. lhin{hi»t. 1 ri( n. sn. Ill ;> »n\{ to t;>lM' thi' :u'>'i>um(,'« ol ;\ p,n't,iu'rHlu|i, (111' ili'li'iiil.'vnis. liv (1\(M\' ;»M:<\\ or. liloil hoioro (lio ooninioni miiohI ol (ho ,\o(,, nil tu>Uo«l (1l th,>( tlio plaint ill' li;vil not iioooinilnl, ami (liat nioin'y» won' lino liNnu him to (horn. 'I'ho nlaintitV joinoti i^Hno funl movo.l nuilor (ho in'\v praodoo l)ofoit' (ho hoarini; ninlor Knlo .'fJ.. o :»ooi'nnt:< ot (ho par(nor.'o (akoii : firhi. that ho \x ,>s oiititlo,! to (ho or.lor nn.lor linlo '244 or ll'J'J r«rvM.in..«n, I I'll. I> S.')). WhoTi' ji lU'tVmlant in ti pomlinj? miit had failotl fo onlcr an appoar.uxiv. or put in an answor ■ llr all pin'ptt.si's as tho plaintilV's st.'itiMnont ol claim, so that tho plaintilV n\iijht prooood niulor Knlo 'Jll (/'ntridnU /*>> ttMnrnt /{iiiiilhuj Sorktjf \\ dn-nhill, I t'h. P. iVH). ITiulor an o^^U'r to tAX. a l>ala-.\on was tomid i'."m from a soliintor whioh should liavo hoon paiil l)oforo tlu' oommouoomont of tlu' .Vot :-//(/(/, that tho oaso oamo within Unlo Mtti"), and that an MtAohmont for uoupaymont Ov)nld not l)o issnod without notifc to tho solioitor In n ti SolU-Uor, i tJh. 1). 44i»). 6V also uotos to Rule V21, p. 178. ntitlinK nl. till' ift III lii> iiM ItnyM, oxt'cpl ■ II ||| llMII «riiii> iiio Hiii'i ml iiiiiiiiKM III ln> M;IM1I> IIIIIII uf O'lllllll'I'IV H7ri. ri \\ |) lu llit> tMim II I'm II ilooii'i' < omiliiiiii'il ill I omiliiim'il ill I whifli Hiii'li MM'll MOrVtMl III il ncritnliii}^ 'ii ■I ul' .liuilii'i' |»|tly ill ' 'liiiiii niiiv lie ^ivl•ll inliimrv omiiHi- .IniM'l iiriiriMil 111' nlil |iiiit'li''i' imc iiiIk npi'lil |.l, (IimI (llin WM' I 111.' Mil' iiliuiilill imcior Uiilo V'll iln' lii't'i'Hil.'HilH, .1 Mio Aft. 111! Mi'i'iuiiiliMl, mill ||.l lllllt. IIKIIll'.VH mu'il iHHiio Hini im.l.TKulx.TJ-'. Lilt 1m> liiUi'ii: Kiilo'lUorX".' Ilcil \') (>iiti>r liii |u> l>ill Hllilllltl 1" lout 111' cl.iiiii, ><>' (I'ntriiiiiU /'" :i). troin ;v Mdlioitiir "uciMiu'iit (»f the Iti;"), iuul that an witlmut notifi' Arii'iNDKiiisToTiii: roiii'iiioiNi; kiiLns A I'PKN 1)1 X (A). I' A III' I, HHlMMtU'' VVUII'HOKHUMVUiN'^. AND NO'linK, IN iJIOlI OK HUMMONH. N... I. (lllNIUIAI. I'^iiIlM nr Wlltl (tl- rtl)MMllNH, (,s',v Ai'tof lH7fi, A|i| liK A, I'Mitl , N imtii'i' llnit in ili'limlt nf ymii' no iliiiM(i; tin; lil.'iiiiliir iiiiiy |ii(i(;i'i'il lilt Hill, /iii'l iiiil(/iiM'nt iiKiy lir. j/ivcii in yiiiir iiliNi'ii'i'. VVitncHH, tlic llnii'iiiiiililn I'li'Hiilniit, if'f. Mvnxit'iiiiihni) III fir HiiliHrrilirit, fin llir wril. N.ll. - 'I'liiH writ if! to Imi hi'IviiI within I,! calcndjir inontliK I'lom thn ilati' tlii-ri'of, oi' if ri^iinwi"l, within I,'! (•(ili'iiiliir iii?iiilJiH liofii the i|(il,, the nitiiilicr of the lot and amcrmion. \ IndorHnii.riil to hv iikkIo on l/ir mrll r an (lie cusr iikii/ hi] after tlio Hor- vico, on you, of tliin writ and of tiio plaiutillH .-itatonient of oiaim dclivorod liorowitli, [or uiilicf of thin irril (tn the ntsi' mdij l)f], in- chisivo of tlio «lay of Huoh Horvici!, you oauso an appciarancu to l)e entered ftu- you in an action at tho suit of A. It., and your defence thereto, if any, to bo delivered ; and take notice tliat in default of your ho doing tho plaintilV may [troceed therein, aud judgment may bo given in your absence. VVitneas, tho Honourable Pre.sidcnt, &c. Memorandum and indorsemrntn as in Form No. 1. Indorsrmrut to he viadc on the writ. N. li. — This writ is to be used where tho di;fcndant or all tho dofcndanta or one or more defendant or defendants is or arc out of Ontario. When tho defendant to bo served is not a British 8id)joct, and is not in British dominions, notice of tho writ, ami uot the writ itself, is to bo served upon him. huiorsemint to he made on the writ after service thereof : This notice was served by A'. Y. on G. U., (tho defendant or one of the defendants) on the day of 18 . Indorsed tho day of 18 (Signed) (Aildross) No. ». Notice of Writ, in Lieu of Service, to be given out OF Ontario. [See Act of 1875, Appendix A, Pt. 1. No. 3 ; R. Sup. 0., June 1871), It. 2; It. Sup. C, April, 1880, Schedule. Form A, 3a.) In the High Court of Justice. Division. Between A.B., Pliiintiff, and C. D., E. F., and G. H., Defendants. To a //.,of Take notice that A. B., of has commenced ar? action against you, G. H., in the Division of Her Majesty's High Court of Justice in Ontario, by writ of that Court, dated the day of , A. D. 18 ; which writ ia 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 FOllMH — INDOUHKMKNTH 0\ WRIT. 371 noR IS liiKu 1]). 0., J^clltic^!slli[» of X. V. to the dofoiKhint [or plaintiH']. The plaiiitiU's chiim is for damages for iioii-c(nii[ilianco with thi! award of A'. }'. The plaiiitill's claim is for daniagcH for assault [and false iin- prisoiimeiit, and for malicious ])roH(HUition]. The plaiiitiifH claim is for r<)/M'rti/\, ami to rucovcr tho routH thoroof. title iind , ■ • i- I ;• /I rtMdVHr r«iiU [ //((' tii'o /iri'nitiiis fitnnn nun/ hi' ronihiinif. \ Till) pliiiiitifl'H cliiiin is fur dnwor out r cuvcaitihl No. 7. Skction IV. {See R. Snp. C, Appx. A., Pt. II., Section 7.) MoNRV (JiiAiM.s— HrKcrAF, Indoiwemknt.s under OrinER III., RiuA-: 4. 1. Tho plaintiffH claim is for the price of goods sold. The following are the particulars: — 187!) -.'ilHt Decemher— Balance of account for butcher's moat to this date $142 1880 — ^Ist January to .'{Ist of March — liutchor's meat supplied 297 $439 1880— 1st February.— Paid 180 Balance due .^259 2. The plaintiffs claim is against the defendant A. /?. as prin- cipal, and against the defendant C />. as surety, for the price of goods sold to yl. li. The following are the particulars : — 1881 — 2nd February. Ouarantee by 0. JJ. of the price of woollen goods to bo sup])lied to yl . B. 2nd February— To goods $225 3rd March — To goods 151 17th March— To goods 27 5th April — To goods 65 $408 3. The plaintiffs claim is against the defendant, as maker of a promissory note. The following ate the particulars : — Promissory note for $1,000, dated 1st January, 1879, made by defendant, payable 4 months after date. Principal $l,00u Interest 378 1 1 Executor. ONTARIO JUDIOATURK ACT, 1881. 4. Tho plaintifTs claim is a^ainat tho (lofcndant ^ . B. as ac- ceptor, ami at,'aiii8t tlic dofoiKlaiit C. D. as drawer, of a bill of exohango. Tlio following aro tho particulars : — Bill of cxchaiiffo for J2,000, dated lat January, 1880, drawn by defendant C. i). upon and accepted by defendant A. li., pay- able 3 months after date. Principal $2,000 Interest 5. The pliiintifT's claim is for principal and interest duo upon a bond. The following are the particulars :- Bond dated Ist January, 1879. Condition for payment of $500 on the 26th December, IWO. Principal duo $500 Interest 6. The plaintiff's claim is for principal and interest duo under a covenant. The following are the particulars : — Deed dated covenant to pay $.3,000 and interest. , Principal due $800 Interest ; ■ ^B H >i fWl wBH . kI f * g ■ ,; li^i.. : ; \ ] U'- ;•■ '; . ■' k Mhi '. ■■ ii I Hi m Asiiiiist txnciiti'ix. Assifjnee in insolvency. Trustees. Heir and devisee Qui tarn action. No. 8. Section V. See R. Sup. C. Appx. A. Pt. II., Sec. 8.) Indousements of Character of Parties. 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 execu- tor [or, <0e. ] of C. D. , deceased, for, tt-c. The plaintifl's claim is against the defendant A. B., as executor of X. Y., deceased, and against the defendant C. D., in his per- sonal capacity, for, die. The claim of the plaintiff is against the defendant as executrix of C. D., deceased, for The plaintiff's claim is as assignee in insolvency of ^. B., for The plaintiff's claim is against the defendant as assignee in in- solvency of A. B., for The plaintiff's claim is as [or the plaintiff's claim is against the defendant as] trustee under the will of A. B., [or under the settlement upon the marriage oi A. B. and X. Y.. his wife.] The plaintiff's claim is against the defendant as heir-at-law of ^. B., deceased. The plaintiff 's claim is against the defendant C. D., as heir-at- law, and against the defendant E. F. , as devisee of lands under thewiUof ^. i?. The plaintiff's claim is as well for the Queen as for himself, for . B. fts ac- f a bill of (80, drawn 1. li., pay- ,000 tluG upon a lont of $500 $500 fc duo under rest. .) ,tor] of C. D., B., as execu- . , as executor )., in his per- [t as executrix 3f A. B., for assignee in in- lira is against [or under the Ihis wife.] las heir-at-law J., as heir-at- of lands under Ls for himself, FORMS — SI'KCIAL INDORSEMKiNTS. No. 0. Section VI. Indohhements i\ Maitkks which i'oumrui.v itKi.«)N'(;Kr) to the KXCI.IIHIVK JUKliSKH TION oK K(ii;H'Y. (a) Creditor to ndmitmter Kttittc. (See R. Sup. 0. 187'), Appx. A., I't., II., Section 2, No. 1.) The plaintiiF's claim is as a creditor of A". }'., of deceased, to have tlie [real and) jicrHoual estate of the said A'. Y., administered. Tlie defendant ^'. /). is sued as tlic administrator of the said X. Y. [and tiie defentlants I'J. F. and (I. II. as hia co-heirs-atdaw], [b) Legatee to ndmhmter Estate. (S('. V 'i' t a ' 380 ONTARIO JUDICATURR ACT, 1881. (If ordor for iuimcilhtte jioMsi'Huitm U wanted (u/d), anil tiiko notico furtlior that tht! pliiintitl' ('laiiiiH to ho ciititltd to the iuiiMctliiito poHHOMsioii of tlio mortj,'a;{u(l |»roiniH('H. {At the nid of the iiidorstiiii'iit ddd), If you (hiniro a Halo of the iiiort^ag(Ml proniiHos iiiHtoad of a foiocloHuru, ami do not iiitoml to (lofond tho action, you must within tlio tinu! allowod for aj)poaranco, iilo in tlio oilioo witliin nanuMl, a notiro in writing', Hiynod hy yo\irHolf or your H(tlicitor, to tho following otloct :--" 1 duHiro a Halo of tho niortgagod proniisos in tho plaintill'ti writ of Huniniona nuMitionod, or a oonipotont ])art tlioroof, iuHtoad of a forocloHuro," and you muHt dopoait tho sum of §80 to moot tho oxponsos of such salo. { / ) Ihi Morli/nijnr for liedemption, {S('<' R. Sup. C. 187"), iVpp. A., I't. 11, 8. 2, Xo. 5.) Tho plaintilf's olaim is to havo an account taken of what, if anytiiing, is duo on a mortgage dated and made between [paj^/c.s], an(l to redeem the property eompriaod therein. (0) liamriij Portions. (Sit II)., Iso. (5.) The plaintifi"s claim is that tho sum of .? by an indenture of aottlomont dated for tho portions of the younger children of raised. (A) , which , was provided may bo Execution of TruHt,t. (See II)., Ko. 7.) The plaintiff's claim is to have tlio trusts of anindonturo datetl and made between , caiiied into execution. (i) Cancellation or Rectification. (SeeJI).,'So.H.) Tho jdaintiff's claim is to have a deed dated and made between [partieft], set aside or rectiliod, (j) Specific Performance. (See 10., ^0. y.) The plaintiff's claim is for specific performance of an agreement dated the day of , for the sale by tho plaintiff to the defendant of certain [freehold] hereditaments at (k) Alimony. (SeeO. O. Ghy., No. 488.) The plaintiffs claim is for alimony ; and tiie plaintiff demands as interim alimony until the trial of tho action the monthly (or weekly) sum of ^ to be paid to her on the day of each month (or week) at and the interim costs to which she is entitled by the practice in that behalf. Note. — Where the plaintiff desire.'^ to re(jister a certificate of Hit pendens the indorsement on the writ of summons viay contain mch short description of the property as may be necessary or proper for that purpose. FORMS — NOTICES OP MOTION. asi ml take to thu li! of thu t inti;ml \vt;(l for writing, ,ct-.-"I i writ of ;i;n(l of i meet the 5.) what, if ami compriaetl APPENDIX (H). NOTK'KS, &.C. No. 10. NoTR'E OK Motion to (JoiriiT. (.SVr R. Sup. (1, April, 1880, Koriu B, 17.) In the High Court ol luatiuu Division. Between riiiiiitin', iind iJci't'luljlllt. Take notice, that the (.'ourt will hv moved on huhiilf of on ) further proceedings be stayed until the delivery thereof ; Or, for an account in writing of the particulars of tlie injuries and '''••r . .rticii- expenses mentioned in the Statement of Claim, togetlicr with the i'-f.^V"*' time and place of tlie accident, and the particular acts of negli- gence complained of, and that unless such particulars lie delivered within days, all further proceedings be stayed until the delivery thereof ; Or, that the order of in this action, dated the day Toilisiiiiiiv of , 18 , be (discharged or varied by, &c.), on tlie '"' '•'"'y grounds disclosed in the allidavit of , filed in support of "^' ''■ this application ; ( Or, that this action be dismissed with costs to be taxed and paid To.msiniski to the Defendant by the riaiutiff for want 'of prosecution, the •'^''4'*"^ Plaintiff not having, &c, : ' - 3»1 \- Fur (111- (Mivcry I'' (tlll'IIIIHMltl*. Til liiMpocI JtM'UMIl'lltN. I'o Clllinillll WilllOSN llO- I'llll' lliitl. Kill' ('i)iii inisHlini to <<\.III|I|I0 wit. llrHHI'H. I'.l Ivf.T iliiilrr si'iv t.lHIl 17 of tlii> Art. To lOl'lT UlllIlT *«'(•- lloti IS ilf tlio Ai'l. I''i)l' CDIlipuI- M iiy ii'ft'v- l'l|i'l< to M.islor. Kor oxiitni- iiiitiiiii of jllllKllllMit ili'litor lis til lUtl.'IIIM. Kiir tri.'il o lilt ion ill County Ooillt." For intor- liloailor orilor (t>y SlKMiH"). ONTAIIJO JUDIt'ATURK ACT, 1681. Or, thtxt tlio aiiHwor witliin <1ay«, Rf.atinjn wimt (l(-(Minn'iiiH (vro or havd Itocii in |i(mK<'HHi(iii or power n^liiliiig to lliu iiihMoih in i|U('Hlioii in tliiH action ; Or, thai Uii> Im at. lilicrty '<• inHpcc't, niid t.alplication will bo made to , in Toronto, (or to at his otiicc in the city [or town of, Ac, CM the cnse ma;! he), on the day of at the liour of o'clock in the forenoon, (or if opposed, then to a Judge iu Chambora so soon thereafter as a Judge shall be sitting in FOIIMS — NOTKMCfi. 38.'i ('liamhorH, for fvii order for tlm ii(liriiiiiHtrfttin» of the eatnte, real and porHoiial, of hy the (/'oiirt, or for an order a|)|)ointin>< guardian of an infant) ; and upon Hueh application will Im) read tlio allidavitH of thin day liletl. Dated, ite. X. }'., Solieitor for No, 13, NoTICK OK I'Intky OI' AI'PKAHANCK. (.SV« U. Hup. (!., April, 1880). In the lli^h ('oiirt of .fuHtice. J)iviHion. Between I'laintifF, aiul Defendant, Take notice, tliat have this day entereil an appoaranoo at for the (lefenchmt to the writ of HUinniotiH in thiu action. The Haid defendant re([uiro fordo not re«£uirc] delivery of a Htatenient of claim. Dated the day of 18 . (Signed) Solicitor for the defendant. To No. 14. Notice LiMirrNd Dkke.nck, [Svo. lf>., Api>x. A., I'ait 1, No. 7. In the Hij,di (lourt of .luHtico. JJiviHion. Hetween A. li., pl.aiiitifT, and C. JJ., and E. F., defendants. The def(!ndant, C. />., limits Imh defence to part only of the property mentioned in the writ in thisj action, that is to say, to tlie north-west (quarter of the lot. Yours, &c., a. If., Solicitor for the said defendant C U. 'I'o No. 15. Notice Disputincj Amount. In the Higli Cjurt of Justice. Division. Between Plaintiff, DER ADDING OR ChANOINO PARTIES UNDER Order 44. Take notice, that if you desire to discharge this order you must apply to the Court for that purpose within 12 days after the service hereof upon you. The original statement of claim in this cause is filed in the office of the at (g«(/ if the service is after a jiuhjment directing a reference to a Master or other officer, add) and the reference under the judgment in this matter ia being prosecuted in the office of the at 25 "^ fr? in ii'. 1 386 ONTARIO JUDICATURE ACT, 1881. No. !?I, Notice of Paymknt into Court. (See lb.. Forms.) lu the High Court of Justice. Division. A. B. V. C. D. Take notice that the defendant has paid into Court $ and says that that sum is enough to satisfy the plaintiff 's claiui [or the plaintiff's claim for, ttc] Dated, &c. To Mr. X. Y., the plaintiff's Solicitor. Z., Defendant's Solicitor. No. %%, Acceptance of Sum paid into Court. (-See/ft., Form 6.) In the High Court of Justice, Division. .i. B. V. C. D. Take notice that the plaintiff accepts the sum of % paid by you into Court in satisfaction of the claim in respect of which it is paid in. Dated, &c. X. y.. Plaintiff's Solicitor, To Z., Defendant's Solicitor. No. ^3* Notice to Produce Documents. (See lb.. Form 10.) In the High Court of Justice, Division. A. B. v. C. D. 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. ]. Dated, &c. , [Describe documents required. ] ToZ., Solicitor for X. Y, Solicitor to the Im^ FORMS — NOTICES. 387 litifiF 'a claiui Solicitor. ;t. No. ^4, Notice to Produce (General Form). (See R. Sup. C, April 1880, Schedule, Form B, 10a.) In the High Court of Justice, Division. Between Plaintiff, and Defendant. Take notice, that you are hereby required to produce and shew to the Court on the the trial of this action all books, papers, letters, copies of letters, and other writings and documents in your custody, possession, ov power, containing any entry, memoran- dum, or minute relating to the matters in question in this action, and particularly Dated, &c. To the above named Solicitor for the above named Solicitor or agent $ paid )ect of which 3 Solicitor. No. !35> Notice to Inspect Documents. (See R. Sup. C, Appendix (B) Form 11.) In the High Court of Justice. Division. A. B. v. a D. Take notice that you can inspect the documents mentioned in your notice of the day of a.d. [except the deed numbered in that notice] at my office on day next the instant, 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. on the ground that [state the yrouml]: — Dated, &c. X. Y., Solicitor for }uires you to eferred to in ;ed the bhe No. !56t Notice to Admit Documents. (-S^ee/ft., Form 12.) In the High Court of Justice. Division. A. B. v. C. D. 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 [or plaintiff], his solicitor or agent at , on , between the hours of ; and the defendant [or plaintiff J is hereby lequired, within four days from the said day, to admit that such of the said documents as are specified to be originals weri respectively written, signed, or executed, as they purport ,, m'i^mryvfi 388 ONTARIO JUDICATURE ACT, 1881. respectively to have been ; that such ar 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 tliis cause. X. Y., Solicitor for Dated, &c.. To E. F., solicitor [or agent] for defendant [or plaintiflf]. O. H., solicitor [or agent] for plaintilf [or defendant]. [Here describe the documents, the manner of doing which may be as follows ;] ORIGINALS. Description of Documents. Dates. ":o(. A covenant between A. B. and C. D. li ill part, and E. F. second part January 1, 1878. Indenture of lease from A. B. to G. D Tndentufi^ of release between A, B., C. D., ' ''t Da ' 1 February 1, 1878. February 2, 1878. March 1, 1878, Letter — 'IctfiU'^ant ho plaintiff, Policy of lusiu-anoo on goods by ship "Isa- bella," on voyage from Toronto to King- ston July 3, 1877. August 1, 1878. May 1, 1879. Memorandum of agreement between 0. D., captain of said ship, and E. F. Bill of exchange for foOO at 3 months, drawn by ^. B. on and accepted by C. D., in- dorsed by E. F. and G. H Copies. Original or duplicate Description of Documents. Dates. served, sent, or delivered, wlien, how and by whom. Register of baptism of A. B. in the parish oiX January 1, 1848. Letter . . . plaintiff to defendant February 1, 1848, Sent by General Post Notice to produce February 2, 1848. papers March 1, 1878. Served March 2, 1878 Record of a Judgment on defendants at- of the Court of torney by E. F., Queen's Bench in an of action, J, S. and J. N. Trinity Term, 10th Vic. m FORMS — NOTICES. 389 icd as copies } have been or delivered lissibility of laintiflf]. endant], ' which may Oates. y 1, 1878. -ryl, 1878. .ry2, 1878. 1, 1878. 1877. ; 1, 1878. 1879. r duplicate sent, or hen, how and fhom. No. 21, Notice of Trial. (See lb., Form 14). In the High Court of Justice. Division. A. B.v. a D. Take notice of trial of this action {or the issues in this action ordered to be tried] at for the day of next X. Y., plaintiff's solicitor [or as the case may be]. Dated, &c. To Z., defendant's solicitor [or as the case may be]. No. 38. Notice of Entry of Demurrer for Argument. {See lb., Form B. 18). In the High Court of Justice. Division. Between Plaintiff, and Defendant. Take notice, that have this day entered for argument the demurrer of the to the in this action. Dated the day of 18 . (Signed) of To Solicitor for the No. 29, Notice of Discontinuance. (See lb. Form B. 19.) In the High Court of Justice. — ^ Division. Between Plaintiff, and Defendant. Take notice, that the plaintiff hereby wholly discontinues this action, (or withdraws so much of h claim in this action as relates to, &c. (If not against all the defendants add), " As against the defend- ant," &c. Dated the day of 18 . (Signed) of Solicitor for the plaintiff. eneral Post r 2, 1848. Tch2, 1878 ndants at- by K F., No. 30. Notice of Cross-examination of Deponents at Trial ON Affidavits. (See lb.. Form B. 21 and Order 35, R. 4.) In the High Court of Justice, Division. Between Plaintiff, and Defendant. 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. '■ ' 390 ONTARIO JUDICATURE ACT, 1881. And also take notice that you are hereby required to produce the said deponents for such cross-examination oefore the Court aforesaid. Dated the day of 18 . Solicitor for the To The Sohedulk above referred to No. 31. NoTiCB OF Renewal of Writ of Execution. {See lb., FormB, 22,) In the High Court of Justice, Division. Between Plaintiff, and Defendant. Take notice, that the writ of issued in this action directed to the sheriff of and bearing date the day of 18 , has been renewed for one year from the day of 18 . (Signed) Solicitor for the To the Sheriff of No. 33. APPENDIX (C). AFFIDAVITS. Affidavit of Service of Summons. (See R. Sup. C, April, Form B, 24.) In the High Court of Justice, Division. Between Plaintiff, and Defendant. I, of solicitor for the above named make oath and say as follows : — I did on the day of 18 , before the hour of in the noon, serve the above-named in this action with a true copy of the summons hereto annexed, marked A, by leaving it at the of the said situate, &c., with there Sworn at this day of 18 . Before me, &c. This affidavit is filed on behalf of the FORMS — AFFIDAVITS. 391 affidavit filed. No. 33. Affidavit by Landlord. [Not iu English Schedule.] Plaintiff, and Defendant, make oath and say as In the High Court. Division. Between A. B., C. D., I, of foUowE : — I am in possession 'A the land sought to be recovered in this action by myself (or by the said C. D., my tenant, (as the cate may be). Sworn at this day of Before me, &c. No. 34. Affidavit as to Documents. {See lb., Form 9.) In the High Court of Justice. Division. Between A. B., Plaintiff, and G. D., Defendant. 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 action set forth iu the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. 3. That {here state icpon ivhat 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 [he7'e 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 iu my possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such docu- ment, or any other document whatsover, relating to the matters in question in this action 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, and the pleadings and other proceedings in the action. m- 'M'l ONTARIO JUDICAL UUE ACT, 1881. No. 35. AmuAvir on Production wuen made by an Offioer o7 a OORI'OHATION. [Not in English Schedule] In tho High Coui't. Division. Between A. B., Plaintifl", anil C. 1)., Defendant. I, of , make oath and say as follows ; — 1. I am the (here state the name of the office held hy the deponent in the service of the Company on whose behalf he makes the affiiiarit). and as such, have knowledge of all documents which are, or have been, in the custody or possession of the said (Company), relating to the matters in question in this action. 2. I am cognizant of the matters in ([ucstion in this action. 3. The said defendants have in their jjossessioii or power, the documents relating to the matters in question in this action, set forth in the first and second parts of the first schedule hereto. 4. The said defendants object to produce the said documents set forth in the second part of the said first schedule hereto. 5. That (here state on what grounds the objection is made, and verify the facts as far as may be. 6. The said defendants have had, but have not now, in their possession or power, the documents relating to tho matters in question in this action, set forth in the second schedule hereto. 7. The last mentioned documents were last in the possession or power of the said defendants on (state when.) 8. That (here state what has become of the last mentioned docu- ments, and in whose possession they noio are.) 9. According to the best of my knowledge, information, and belief, the said defendants have not now, and never had, in their possession, custody, or power, or in the possession, custody, or power of myself, or of any of its solicitors or agents, or of any person or persons whomsoever, on its behalf any (proceed as in last form, ) No. 36. Affidavit in Support of Garnishee Order. (See lb., Form B. 26.) In the High Court of Justice. Division. 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 18 , it was adjudged that I [or 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 by a taxing officer's certificate dated the day of 18 > allowed at $ FORMS — PLEADINGS. 393 IFIOER 0' A the deponent Tie affidavU), (are, or have }y), relating action, power, the action, set 3 hereto. documents lioreto. t made, aiui w, in their matters in lule hereto. J possession tioned docu- lation, and ad, in their nistody, or , or of any •oceed as in 2. The said still remains unsatisfied to the extent of and interest amounting to $ 3. (Nome, ndilresH and description of garnishee) is indebted to the judgment debtor in the sum of 3 or thereabouts. 4. The said (insert name ofyarniuhee) is withiu the jurisdiction of this Court. Sworn at the day of 18 . Before mo This affidavit is filed on behalf of tho day 18 No. 31. Affidavit on Interpleader. (Seelh., FormB, 27.) In the Higli Court of Justice. Division. Between Plaintiff, and Defendant. I, of the defendant in the above action, make oath and say as follows : — 1. The writ of summons herein was issued on tlie of 18 , and was served on me on the day of I have not y ;t delivered a statement of defence herein. 2. The action is brought to recover . The said or are) in my possession, Lnt I claim no interest therein. 3. The right to the said subject-matter of this action has been and is claimed (if claim in writing make the writing an exhiint) by one who (state expectation of suit or that he has already sued). 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 may order or direct. Sworn at the day of 18 . Before me This affidavit is filed on behalf of the IS :r. and editor [or ! oath and and dated he above- >ve-named 1 be taxed, dated the Account stated, APPENDIX (D). PLEADINGS. No. 38. (See R. Sup. C, Appx. (C) Form 1.) In the High Court of Justice. Division. Writ issued 3rd September, 18 . A. B., Plaintiff, and U. F., Defendant. Statement of Claim. 1. Between tLs 1st of January and the 28th of February, Claim. 1879, the plaintiff supplied to the defendant various articles of drapery ; and payments on account were from time to time made by the defendant. II 394 ONTAniO JUDIOATUnE ACT, 1881, It f. ■ i\ 2. On tho 28th of Fcl)ruftry, I871>, a balftiico roinninod duo to thu |ilniiititi'(>f lS'i'25, mid nii noooimt waH on that day Hunt l)y thu |»hiiutitr to tliu dufun(huit Hhowing that hulauou. 3. On tho iHt of March follT»wing, defendant paid tho i)laiiitiir hy uhu((iio $.'i2 on aoeoiint of the Haino. Tlio rcHiduu of the uuid bahuiuo, amounting tu $'2\)',i, has never been paid. Tho phiintiir ohiiiiiH $ Tho plaintiff proposes that this action shoulil bo tried r Delivered tho day of 18 , by A'. V., PlaintilFs Solicitor. ^itby. No. »9. (See lb., Form 2.) A(liiiiiiiMtra- In tho High Court of Justice. Inteatlte''* J)iviHion. Writ issued 22nd December, 18 UHtuto. Claim. Defence. In tho matter of tho estate of A. B. decuasod. Between E. F., I'laintiiV, and a. JL, Defendant. Statkmrnt op Claim. 1. A. li., oi K., in the ('ounty of L., died on tho 1st July, 1880, intvstato. The defendant, ({. //., ia the administrator of A. li. 2. A . li. died entitled to lands in tho said county for an estate of fee simple, and alHo to some other real estate and t' "rsonal estate. Ihe defendant has entered into possesion 'e real estate of J. li,, and received the rents thereof. 3. A . li. was never married ; he had one l)rother oniy, who pro-deceased him without having been married, and two sisters only, both of whom also pre-deceased him, namely M. N. and P. Q. The plaintiff is tho only child of M. N., and tho defend- ant is the only child of P. Q. The plaintiff claims — 1. To have tho real and personal estate of A. B. administered in this Court, and for that purpose to have all projjer direc- tions given and accounts taken. 2. To have a receiver appointed of the rents of his real estate. 3. Such further or otlier relief as the nature of the case may require. The plaintiff proposes that this action should be tried at London. Delivered the day of 18 by X. r., of Plaintiff's .Solicitor. No. 40. In the High Court of Justice. Division. In the matter of the estate oi A. B., deceased. Between E. F. , Plaintiff, and G. H., Defendant. Statement of Defence. 1. The plaintiff is an illegitimate child of M. N, She was never married. The defendant admits the other allegations fiinod (hic to Hunt l»y the the plaintiff of tho Huiil itby. od. 10 Ist July, iiinistrator of for an estate I t' "rsonal II '6 real 5r oujy, who (1 two sisters f M. N. and i the defend- vdministercd [iroijer direc- i real estate, le case may be tried at 18 by ed. ^ She was allegations ^ FORMS — PLEAniNGS. contained in tho Ist and Urd para^'raphs of tho plaintifT's Htato« iiuiiit of claim. 2. 1'hu intestate was not entitl<'d to any real estate at his death. 3, The j)erHonal estate of A. IJ, was not Hudicient for tlie uny- nient of his (h^lttH, and huH all been applied in iiayiiient of hia funeral and testamentary expenscH, una part of his debts. Delivered tho day of 18 by X. K., of Defendant's Solicitor. .395 AdminiKtra- tioii of a TcHlutor'» Estate. No. 41. (.S'fe/fi., F(.rm3.) lu tho High Court of Justice. Division. Writ issued 22nd I.)eceniber, 18 In tho matter of tho estate of A . U. deceased. Between E. F., i'laintifl", and G. II., Defendant. Statement of Claim. 1. A. D., ol K., in the county of L., duly niado his last will, Cluim. dated tho Ist day of March, 1873, whereby ' c appointed tho defendant and M. N. (who them. On I to the value '^e since been •rder for such M. N. A Co. »n the terms, 1 the bill of securities on of the goods ding the bill i and handed he defendant be tried at 18 , by I ent of claim hereinafter ver was any •eof by the ' was agreed thereof, and should sell i the port of 3 month of or the same FORMS — PLEADINGS. 3. The said Messrs. M. N". db Co. accordingly drew upon the defendants, and the defendants accepted the bill of exchange now sued upon. 4. The defendants did all things which were necessary to entitle them to delivery by the said Messrs. M. N. <£• Co. of the said 1200 tons of coals under their said contract, and the time for delivery has long since elapsed ; but the said Messrs. M. N, Statement of Defence. [Title], At the time of making the alleged acceptance of the said bill the defendant vps an infant within the age of 21 years. Delivered the day of 18 , by X. Y., of Defendant's Solicitor, No, 5«. [Title]. (Reply where plaintiff does not introduce into his statevient of claim the allegations necessary by way of reply to the defence). Reply, The defendant C. D. , who at the time of the acceptance of the said bill was an infant within the age of 21 years, ratified and confirmed the said acceptance after he attained full age and before action, by a writing made and signed by him. Delivered the day of 18 , by X. F.. of Plaintiff's Solicitor, No. 53. (See lb.. Form 7). Bill (if Kx- changu and considera- tiou. In the High Court of Justice, Division, Writ issued 3rd October, 18 . Between A. B. and C. D., Plaintiffs, and E. F. and G. H., Defendants. Statement of Claim, 1. The plaintiffs are merchants, factors, and com-^jj^j^ mission agents, carrying on business in Toronto. 2. The defendants are merchants and commission agents, carry- ing on business at Montreal. 3. For several years prior to the 18 , the plaintiffs have be A^ the habit of consigning goods to the defendants for sale, as their agents, and the defendants had been in the habit of consigning goods to the plaintiffs for sale, as their agents ; and each party always received the price of the goods sold by him for the other ; and a balance was from time to time struck be- tween the parties, and paid. 26 i i'i' f . 1 ^ 402 ONTARIO JUDICATURE ACT, 1881. Oh the of , the moneys so received by the defendants for the plaintiffs, and remaining in their names, largely exceeded the moneys received by the plaintiffs for the defendants, and a balance of $ was accordingly due to tho plaintiffs from the defendants. 4. On or about the ,18 , the plaintiffs sent to the defendants a statement of the accounts between them, shewing the said sum as the l)alance due to the plaintiffs from the defend- ants; and the defendants agreed to the said statement of accounts as correct, and to the said sum of $ as the balance due by them to the plaintitl's, and agreed to pay interest on such bal- ance if time were given to them. 6, The defendants requested the plaintiffs to give them three months' time for payment of the said sum of $ , and the plaintiffs agreed to do so upon the defendants accepting the bills of exchange hereinafter mentioned. 6. The plaintifls thereupon on the drew two bills of exchange upon the defendants, one for $ , and the other for $ , both payable to the order of the plaintiffs three months after date, and the defendants accepted the bills. The said bills became due on the 18, and the de- fendants have not paid the bills, or cither of them, nor the said sum of $ The plaintiffs claim: — f and interest to the date of judgment. The plaintiffs propose that this action should be tried in Toronto. Delivered the day of 18 , by X. Y., of Plaintiff's Solicitor. prisonment. Claim. No. 54. {See lb., Form 13.) In the High Court of Justice. Division. Writ issued 3rd September, 18 Between A . B. Plaintiff, and E. F., Defendant. Statement of Claim. 1. The plaintiff is a journeyman painter. The defendant is a builder having his building yard, and carrying on business at Ottawa, and for six mouths before and up to the 22nd August, 18 , the plaintiff" was in the defendant's employment as a journeyman painter. 2. On the said 22nd August, 18 , the plain tiff came to work as usual in the defendant's yard, at about 6 o'clock in the morning. 3. A few minutes after the plaintiff had so come to work the defendant's foreman, X. Y., who was then in the yard, called the plaintiff to him, and accused the plaintiff of having on the previous day stolen a quantity of paint, the property of the de- fendant, from the yard. The plaintiff denied the "charge, but X. Y. gave the plaintiff into the custody of a constable, whom he had previously sen* for, upon a charge of stealing paiut. FORMS — PLEADINGS. 403 eived by the ;htiir names, titiflfa for the y due to tho fs sent to the lem, shewing n the defend- t of accounts 5 balance due on such bal- them three , and the ting the bills rew two bills md the other lintiffa three bills. and the de- , nor the said 4. The defendant was present at the time when the plaintiff was given into custody, and authorized and assented to his being given into custody; and in any case X. Y., in giving him into custody, was acting within the scope and in the course of his employment as the defendant's foreman, and for the purposes of the defendant's business. 5. The plaintiff upon being so given into custody, was taken by the said constable a consideranle distance through various streets, on foot, to the police station, and ho was there detained in a cell till Late in the same afternoon, when he was taken to the police court, and the charge against him was heard before the magistrate then sitting there, and was dis- missed. 6. In consequence of being so given into custody, the plaintiff suffered annoyance and disgrace, and loss of time and wages, and loss of credit and reputation, and was thereby unable to obtain any employment or earn any wages for three months. The plaintiff claims $ damag'^s. The plaintiff proposes that this action should be tried at Ottawa. Delivered the day of of Plaintiff's Solicitor. 18 , by X. >'., be tried in 18 ,by No. 55. jfendant is a n business at 2nd August, oyment as a ne to work as the morning, to work the yard, called aving on the ;y of the de- charge, but table, whom paint. [Title]. Statement of Defence. 1. The defendant denies that he was present at the time when Defence, the plaintiff was given into custody, or that he in any way authorized or assented to his being given into custody. And the said A'. Y., in giving the plaintiff into custody, did not act within the scope or in the course of his employment as the defendant's foreman, or for the purposes of the defendant's busi- ness. 2. At some time about five or six o'clock on the , being the evening before the plaintiff was given into custody, a large quantity of paint had been feloniously stolen by some person or persons from a shed upon the defendant's yard and premises. 3. At about 5.30 o'clock on the evening of the the plaintiff, who had left off work about half an hour previously, was seen coming out of the shed when no one else was in it, although his work lay in a distant part of the yard from, and he had no business in or near the shed. He was then seen to go to the back of a stack of timber in another part of the yard. Shortly afterwards the paint was found to have been stolen, and it was found concealed au the back of the stack of timber behind which the plaintiff had been seen to go. 4. On the following morning, before the plaintiff was given into custody, he was asked by X. Y. what he had been in the shed and behind the stack of timber for, and he denied having been ia either place. X. Y. had reasonable and probable cause for suspecting, and did suspect that the plaintiff was the person who had stolen the paint, and thereupon gave him into custody. Delivered the day of 18 , by X. >'., of Defendant's Solicitor. i^f*<$,i>tl^iJy .V( ■ ? 404 Fraud. Olftim. ONTARIO JUDICATURE ACT, 1881. No. 56. {See lb., Form 15.) In the High Court of Justice. Division. Writ issued 3rd September, 18 Between A. B., Plaintiff, and E. F., Defendant. Statement of Claim, 1. In or about March, 1880, the defendant caused to be inserted in the Newspaper an advertisement, in which he offered for sale the lease, fixtures, fittings, goodwill, and stock- in-trade of a baker's shop and business, and described the same as an increasing Vmsinesa, and doing twelve barrels a week. The advertisement directed application for particulars to be made to X. Y. 2. The plaintiff having seen the advertisement applied to X. Y., who placed him in communication with the defendant, and negotiations ensued between the plaintiff and the defendant for the sale to the plaintiff of the defendant's bakery at with the lease fixtures, fittings stock-in-trade, and good-will. 3. In the course of these negotiations the defendant repeatedly stated to the plaintiff that the business was a steadily increasing business, and that it was a business of more than twelve barrels a week. 4. On the 5th of April, 1880, the plaintiff, believing the said statements of the defendant to be true, agreed co purchase the said premises from the defendant for $*2,()00, and paid to him a deposit of $300 in respect of the purchase. 5. On the 15th of April the purchase was completed, an assign- ment of the lease executed, and the balance of the purchase money paid. On the same day the plaintiff entered into pos- session. 6. The plaintiff soon afterwards discovered that at the time of the negotiations for the said purchase by him and of the said agreement, and of the completion thereof, the said business was and had long been a declining business ; and at each of those times, and for a long time before, it had never been a business of more than four barrels a week. And the said premises were not of the value of $2,000, or any saleable value whatever. 7. The defendant made the false representations hereinbefore mentioned, well knowing them to be false and fraudulently, with the intention of inducing the plaintiff to make the said purchase on the faith of them. The plaintiff claims $ damages. The plaintiff proposes that the action should be tried at Brockville. Delivered the day of of Plaintiff's Solicitor. 18 , by X. Y., No. 57. Defence. [Title]. Statement of Defence. (See lb., Form 15 [2]). 1. The defendant says that at the time when he made the representations mentioned in the 3rd paragraph of the statement mm FORMS — PLEADINGS. 405 it caused to be it, in which he fill, and stock- ribed the same i a week. The ; to be made to nt applied to ihe defendant, the defendant !ry at I good-will, ant repeatedly lily increasing twelve barrels eving the said purchase the paid to him a ted, an assign- the purchase ered into pos- at the time of id of the said 1 business was each of those een a business premises were hatever, s hereinbefore fraudulently. Lake the said I be tried at 1 , by X. r., ' of claim and throughout the whole of the transactions \ itween the plaintiff and defendant, and down to the completion of the purchase and the relinquishment by the defendant of the said shop and business to the plaintiff, the said business was an in- creasing business, and was a business of over twelve barrels a week. And the defendant denies the allegations of he Gth paragraph of the statement of claim. 2. The defendant repeatedly during the negotiations told the plaintiff that he must not act ujjon any statement or rei>ro8enta- tion of his, Imt must ascertain for himself the extent and value of the said business. And the defendant handed to the plaintiff for this purpose the whole of his books, showing fully and truth- fully all the details of the said business, and from which the nature, extent, and value thereof could be fully seen, and those books were examined for that jjurpose by the plaintiff, and by an accountant on his behalf. And the plaintiff made the pur- chase in reliance upon his own judgment, and the result of his own inquiries and investigations, and not upon any statement or representation whatever of the defendant. 3. The defendant admits the allegations of paragraphs one, two, three and four of the statement of claim. Delivered the day of 18 ,hyX.Y., of Defendant's Solicitor. No. 58. (See lb., Form 16). Guarantee. he made the the statement In the High Court of Justice. Division. Writ issued 3rd September, 1881. Between A. B. and C. D., Plaintiffs, and E. F. and O. H., Defendants. Statement of Claim. 1. The plaintiflfs are brewers, carrying on their business at Claim. Guelph, under t' firm of X. Y. < on i\w pliiiiitiir'H liuid, ami n fiiMi'd to l('ivv(! tliou^^di n(|iifHtfd to do ho, wIiommiiioii tlio iilaintill' laid \m liaiidH on tho (h'fciidaiit in order to remove him, UHiiig ho mucli force and no more than was neecHHary for tliat purpoHC. Delivered tho day of 18 , by ^- y-, "f rhiintid'H Solicitor. Ai'liiiii a^'iiiiist Kail way (.Nim- I'aiiy lor ill jinii's by I'ollisidii I'aiisfd tliioii){h Mtj;llt{enco. No. 04. In the High Court of .liiHtice. Division. Writ issued Statkmknt op Claim. 1881. Between^, li., Plaintiff, and Defendants. 1. The defendants aro carriers of passengers upon a railway from Toronto to 2. In January, 1881, tho plain till' took a ticket from Toronto to and was received by tiie defendants an a passenger to be by them safely carried, in a train wliich started from Toronto for 3. Owing to the negligence of tho defenilants in the management of their railway, the train in wliich the plaintifT was travellini,' came into collision with an engine, at a short distance from Toronto. 4. Tho plaintiff was thrown from his seat by the said collision, and much injured about the head, and had his right arm broken. 5. [ The folloioimj imragraphu ma;/ he introduced hy amendment to meet Defence infra. Tho defendants allege that the plaintiff accepted the sum of !J300 in full satisfaction of all cause of action which he might have on account of tho said collision, but the facts are as follows : «5. A short time after the collision an officer of "lo dti .'mts Erocured the plaintifi" to accept the said n ti' id satisfaction y fraudulently representing that his i\ i re of a teroiK)- rary nature, and that if they should aft .t» turn out t be more serious than ho anticipated, he wo till be able to ouk-ain further compensation from the dofendani 7. The plaintiff fully believing the said repre> ntations, and acting upon the faith thereof, was induced thereby to accept the said accord .and satisfaction, and then accepted the same subject to the express condition that he should not thereby exclude him- self from further compensation from tho defendants if his injuries should prove more serious than he then anticipated. FORMS — PLKADfNOH. 400 8. After t)u) nccuptnricu of tlic. Hiiiil ntirtord niiil HatiHfiK^tioii, tho iiijuriuH MiiflcnKl ))y tlu! |iliiiiitil)' in tli-WW'^JB«« Y': ^ • Y" \A.*m)\^ ., ,, , u\\\u\M >^\H\VU'>\ \\\ !l\Hi>i>tl',)rnn»| liu. I'ijIliMiidi .III! 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Awx^l i^iv >\>^♦ \\>N\>^ ys\ u>s>\>> x^< ^vUf^^l'tOslii »(<|»-H>, rtHii II' wmilil VVS^WWV fW y>\)S^«^Ul|*S^■^- >^t ^ Usu*' ""^U^ 1*1 *».l>»"\ 111 » >i|ll«l'>|l' I 111' ."^ $ \UV rtHil lUVDtlxOil lioill iV' ♦>< ll\o x^»\^>^U>v^ |>\i^<«(»t'»(i>l> t"V< Jsi,V>^M^' ^MW^SVixVi thA» thu i\s-\u\\\ >^\\^\\\\^ llO liic.l a|. iMllHlMlllilim lI'lMi'Hhh, III, I liMii mil I.I •lIlUt'MMliI iHtil liiti i'lit« \\km\\\ \\\\ mil* vi"tt'< H^Atl^ Hi^ii- III (Iti'iiji Mtii i.iiii Hi\ iiillllliiii (|»Ui"(. Ill I'.lm ii >i|iimli| In. •iiiVml' .iltiMilil U)lll|| lilt) |i.tM lllio t • .>il KM lIllP Oil lllr 111' lI'Mtl tlllil II lUlM'tlKI \\ nil' 'lll'l H' M illllil > »l'lll«l-»ll' (III tl " »l>MM-tUMI i| liti I'lmtdnnl tit>titl>iiiit Illllil <»i> ni !li'*l\ liH^Hiilh i|iii»ilii'iU, lliii l(-(iM(i('f 1(1 i'luiiiiU'iihit mi H/'« lUi^ III '* jlH' ll('l()l)liM(li Uih\f liitxHhHuUtli III I'lih limtHti fUli lotUfUufHtl (i.KHIll- lllj.)-.i| iHiill IJii, .|(|y /,( Idfti,^ ^liufi ilit, I'lilKIIM'^^ lii.||.(|((l(|l(l ilf H ((»i(|M' (IkI^ tlih'hU fl 'I'liK il(.li.»(/lM|ilt Ikih lUHti'ttmniiii ilih unl^hh hui\ ^rMII h h{ lllli-l llll hiillllh'l I In (■/(/•'' jlcjl I; 1/ IIIIHHI' III, »' /» hI'lH l||l III IllN /l».f(/|/./. jll/ll Ml/. j/l*|(|j(lff 7» ^\ih ,ii llii< ili-li.iii|nii(' fi III. it l/.ii«». /(i(*l \\{i. fiiionlfir /i n Hi\u(Un f.tth M(jllMIM)|l.|||. itl|(.m.|| III llll. n(/|/(.|/|(.(i(. Ill lii.fi.iii'i', l/((>, ill. Hlnm-n ht |iini((' Im I|i/' i}^'li'iii\iiii\ II I'M'"', Ui'i"Hiiiih 111 mi'li Htiii^¥'Hif'f,fi jIlHi'llll.l lilM,l Mil' li'illl' ''/ ^ If , III ri'iliiMlf»« M'.llMM/*-, fMn IdiMfliMI li*' hfffU'iiM hUh I'lliUntPi' I i i,t¥l lit llll. Ill|ill ' •1,111 1, I I IiinM'.«. Mivlrtl'iii M*\nifU f 't'llii ijurt'liKli luiil »i<«lil,liMllillil.).i'/ll ''f M('» U^UHttl,'/ lltt-ftfMftii^A th y.^,fi t '***'>", 'll.lllilillMUll. iif illildi, Ui»i |il/il(il.l(f A ll , Irf tttiUhH, 'Uf/w^J W,A liny III , IKl'l nullii'l l.y \,\Ui lt/Hftst^\ (■/. i/|'*rtf«iiilitiil, fl. h I* liuMMi 111 \.Uh ii'ntMi utMiU'rtt^A ih ftft<» I; ! 412 Coiiiitur- ONTARIO JUDICATURE ACT, 1881. Btatement of claim, at the yearly rent of $450, for the term of 21 years, commencing from the day of , when the defendant C. J9's tenancy from year to year determined, and the defendant has since that date been and still is in possession of the house under the said agreement. 2. By way of counter-claim the defendaKu claims to have the agreement specifically performed and to have a lease granted to him accordingly. Delivered the day of 18 , by A'. Y.y of Defendant's Solicitor. U, Kej.ly. No. 10. [Title]. {Heplif iv/iere plaintiff does not introduce into Jiis statement of claim the allegations necessary by tvay of reply to the defence). Reply. The plaintiff, A. B., admits the agreement stated in the de- fendant, C. D. 's statement of defence, but he refuses to grant to the defendant a lease, because such agreement provided that the lease should contain a covenant by the defendant to keep the house in good repair, and a power of re-entry by the plaintiff upon breach of such covenant, and the plaintiff says that the de- fendant, since the making of the said agreement, has not kept the house in good repair, and the same is now in a dilapidated condition. Delivered the X. Y., of day of Plaintiff's Solicitor. 18 ,by II. (See lb., Form 25.) Recovery of -No In the High Court of Justice. Division. Writ issued 18 Between A. B. and C. D., Plaintiffs, and E. F., Defendant. Statement of Claim. Claim. I. A'. L., late of Barrie, in the County of Simcoe, duly execut ed his last will, dated the 4th day of April, 18 , and thereby devised his lands in the County of Simcoe unto and to the use of the plaintiffs and their heirs, upon the trusts therein men- tioned for the benefit of his daughters Margaret and Martha, and appointed the plaintiff's executors thereof. 2. A'. L. died on the 3rd day of January, 18 , and his said will was proved by the plaintiffs in the proper Surrogate Court on or about the 4th day of February, 18 .3. A'. L. was at the time of his death seised in fee of lot No. I in the 3rd concession of the township of , and lot No. 5 in the 4th concession of the township of , both in the County of Simcoe. 4. The defendant, soon after the death of K. L., entered into possession of the said lots, and has refused to give them up to the plaintiff. FORMS — PLiTA-DINGS. 413 3 term of 21 , when the led, and the assession of to have the granted to 18 -by The plaintiflFa' claim : 1. Possession of the said two lota. 2. $ for means profits of the premises from the death of K. L. till such possession shall be given. The plaintiffs propose that this action should be tried at Barrie. Delivered the day of 18 , by X. Y„ of Plaintiff's Solicitor. ^nt of claim fence). in the de- to grant to 3d that the o keep the le plaintiff hat the de- ls not kept dilapidated 18 ,by ily execut id thereby to the use erein men- Martha, and id his said jate Court of lot No. L lot No. 5 he County tered into hem up to No. 1^. (-^ee 76., Form 27.) Trespass In the High Court of Justice. Division. Writ issued 3rd October, 18 . Between A, B., Plain tifl", and E. F., Defendant. Statement of Claim. 1. The plaintiff was on the 5th March, 18 , and still is the Claim. owner an(I occupier of a farm in the Township of in the County of , being lot No. 4 in the 7th concession of the said Township. 2. A private road known as Highfiold Lane, runs through a portion of the plaint! iTs farm. It is bounded on both sides l)y fields of the jjlaintiflf's and is separated therefrom by a fence and ditch. 3. For a long time prior to the 5th of March, 18 , the defen- dant had wrongfully claimed to use the said road for his horses, carts and waggons on the alleged ground that the same was a public highway, and the plaintiff had frequently warned him that the same was not a p ;blic highway, but the plaiutifFs private road, and that the d 'fendant must not so use it. 4. On the 5th March, 18 , the defendant came" with a cart and horse, and a large number of servants and workmen, and forcibly iised the road, and broke down and removed a gate which the plaintiff had caused to be placed across the same. 5. The defendant and his servants and workmen on the same occasion pulled down and damage*' '■■he plaintiffs fence and ditch upon each side of the road, and w mt upon the plaintiff's field beyond the fence and ditch, and injured the crops there grow- ing, and dug up and injured the soil of the road ; and in any case the acts mentioned in this paragraph were wholly unneces- sary for the assertion of the defendant's alleged right to use, or the user of the said road as a highway. The plaintiff claims \ — 1. Damages for the wrongs complained of. 2. An order restraining tiie defendant from any repetition of any of the acts complained of. 3. Such further relief as the nature of the case may recjuire. The plaintiff proposes that tliis action should be tried at Woodstock. Delivered the day of 18 , by JC. Y., of PlaintiflTs Solicitor. 1 ■ 1 . m A. ■■• ' t'4-- 1 ■ 1 .■ ■? n\ 414 No. 13. ONTARIO JUDICATURE ACT, 1881, [Title.] Statement of Defence. 1. The defendant says that the road was and is a public high way for horses and carriages ; and a few daj's before the 5th March, 18 , the plaintiff wrongfully erected the gate across the roa 410 ONTARIO JUDICATURE ACT, 1881. No. 80. [Title, &c.] Entry of Appearance, by Party served with Notice, under Order 12, Rule 20. (5'ee/6., FormE, 24.) Enter an appearance for to the notice issued in this action on the day of , 18 , by the defendant under the Rules of the Supreme Court, Order 12, Rule 20. Dated the day of , 18 . (Signed) (Address) The said defendant require a statement of claim to be delivered. No. 81, Entry of Appearance to CouNr7.R-CLAiM. [See lb., FormE, 25.) [Title, &c.] Enter an appearance for to the counter-claim of the above-named defendant in this action. Dated the day of , 18 . (Signed) (Address) No. 83. Mandamus. (See lb., FormE, 14.) [Title, &c.] Required in pursuance of order dated damns directed to commanding to Dated the day of (Signed) (Address) Solicitor for the , a writ of man- returnable 18 No. 83. Prohibition. {See lb., FormE, 13.) In the High Court of Justice, Division. In the matter of a certain Between now depending in the Court Plaintifif, and Defendant. Required a writ of prohibition directed to the Judge of the above-named Court and to the above-named plaintifif to prohibit them from further proceeding in the said Dated the day of , 18 . (Signed) (Address) Solicitor for the FORMS — PILSCIPES. 417 OTICE, UNDBR . in this action idant R,ule 20. No. 84i Certiorari. (See lb., Form E, 12.) [Title, &c,] Required in pursuance of order dated directed to Dated the day of (Sicned) (Address) Solicitor for the a writ of certiorari ,18 . ment of claim No. 85. Entry for Argument Generally .AIM. :er-claim of the {See lb., FormE, 29.) [Title, &c.] Set down for argument the Dated the day of ,18 (Signed) (Address) a writ of man- eturnable K in the Court le Judge of the ntiff to prohibit 8 . No. 80* Entry of Demurrer for Argument. (See lb., FormE, 28.) [Title, &c.] Enter for argument the demurrer of to the this action. Dated the day of , 18 . (Signed) (Address) in No. 81. Entry of Special Case. (See lb.. Form E, 30, R. Sup. C, 1876, Appx. B, Form 13.) [Title, &c.] Set down for argument the special case filed in this action on the day of ,18 (or set down the dated the day of , 18 , of Mr. , the referee in this for hearing as a special case). Dated the day of , 18 . (Signed) (Address) No. 88. Search. (See lb., R. Sup. C, April, 1880, Form E, 32.) [Title, &c.] Search for Dated the day of (Simed) (Address) Agent for , 18 . 27 Solicitor. Ei: 'mm V I i 1. .(J. ii fj ' ' ': i 418 ONTARIO JUDICATURE ACT, 1881. No. 89. Entry of Action for Trial. {See lb., FormE, 26.) [Title, &c.] Enter this action for trial. Dated the day of , 18 (Signed) (Addresa) No. 00. Commission to Examine Witnesses (See lb., Form E, 16.) [Title, &c.] Required in pursuance of order dated examine witnesses directed to Dated the day of (Signed) (Address) Solicitor for the a commission to ,18 . No. 01. Habeas Corpus ad Testificandum (See lb., FormE, 15.) [Title, &c.] Required in pursuance of order dated corpus ad testificandum directed to the before Dated the day of 18 . (Signed) (Address) Solicitor for the a writ of habeas to bring No. 0!8. Entry of Appeal. (See lb., FormE, 27.) [Title, &c.] Enter this appeal from the order [or judgment] of this action, dated the day of 18 . . (Signed) (Address) m No. 03, Fieri Facias. (See R. Sup. C, 1875, Appx. (E), Form 1). [Title, &c.] Required a writ oijieri facias directed to the sheriff of to levy against C. D. the sum of $ and interest li' FORMS — PRAECIPES. tl9 thereon at the rate of $ per centum per annum from the day of [and $ coats] to Judgment [or order] dated day of Taxing master's certificate, dated day of Dated the day of (Signed) (Address) Solicitor for the [party on whose behalf writ is to issue.] jommiasion to No. 04, Vknditioni Exponas. (See lb., Forms.) [Title, &c.] Required a writ of venditioni exponas directed to t'le sheriflf of to sell the goods and of C. D. , taken under a writ oi fieri facias in this action tested day of Dated the day of 18 . (Signed) (Address) Solicitor for the writ of habeat bring No. 05. Writ of Sequestration. (See lb., Forme.) [Title, &c.] Required a writ of sequestration against C. D. at the suit of -4. B. directed to the sheriff of Order dated day of Dated the day of 18 . (Signed) (Address) Solicitor for the for not of m 1). iheriff of and interest No. 06. Writ of Possession. (Lands.) (See Ib.,Yovm.'l.) [Title, &c.] Required a writ of possession directed to the sheriff of to deliver possession to A. li. of J udgm ent dated day of Dated the day of 18 (Signed) (Address) Solicitor for the 420 ONTARIO JUDICATURE ACT, 1881. No. 97 » Writ of Dklivkhy. (CnATTBLs.) (See lb., FonnS.) [Title, &c.] Required a writ of delivery directed to the sheriff of to maKo delivery to ^. li, of Dated the day of (Signed) (Addreas) Solicitor for the 18 Hi No. 98. Writ op Attachment. (See lb., Form 9,) [Title, &c.] Required in pursuance of order dated an attachment directed to the sheriff of for not delivering to «4. B. Dated the day of (Sicued) (Address) Solicitor for the day of against C. D. 18 APPENDIX (F). SUBPOSNAS, &c., FOR EXAMINATION OP WITNESSES. (^ee R. Sup. C. AprU, 1880, Form O, 1.) No. 99. SuBr j;na ai) Testificandum. (General Form.) In the High Court of Justice. Division. Between Plaintiff, and Defendant. Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to greeting : We command you to attend before at on day the day of 18 , at the hour of in the noon, and so from day to day, until the above cause is tried, to give evidence on behalf of the (plaintiff or defendant. ) Witness, the Honourable President, &c., the day of 188 . No. 100. SuBPCENA Duces Tecum. (General Form.) (See lb., Form G, 2) [Title, &c.] Victoria, by the Grace of God of the United Kingdom oi Great Britain and Ireland, Queen, Defender of the Faith, to greeting : We command you to attend before at on FORMS — 8UBP(ENA8. 421 of ly of against C. D. WITNESSES. 1.) Form. ) Itiff, and Indant. led Kingdom of le Faith, to at on Jbhe hour of [the above cause or defendant.) tc, the roKM.) ted Kingdom oi le Faith, to at on day the day of 18 , at tho hour of in the noon, and so from day to day until tho abovo cauBO 18 tried, to give ovidenco on huhalf of tho and also to bring with you and produce at tho time and place aforesaid [apfcxfy documents to be predue.ed.) Witness, the Honourable President, &c., tho day of 188 . of No. 101. SuBP(ENA AD Testificandum at Assizes. (See lb., Form G, 3.) [Title, &c.] Victoria, by tho Grace of God of tho United Kingdom Great Britain and Ireland Queen, Defender of the Faith, to greeting : We command you to attend before our Justices assigned to take Assizes in and for the County of to l)e holden at on day the day of 18 , at the liour of in the noon, and so from day to day during the said Assizes until the above cause is tried, to give evidence on behalf of the Witness, the Honourable day of 188 . President, &c. , the No. 102. SuBP(ENA Duces Tecum at Assizes. (See lb., FormG, 4.) [Title, &c.] Victoria, by the Grace of God of tho United Kingdom of /ireat Britain and Ireland, Queen, Defender of the Faith, to greeting : We command you to attend before our Justices assigned to take the Assizes in and for the County of to be holden at on day the day of 18 , Jvt the hour of in the noon, and so from day to day during the said Assizes, until the above cause is tried, to give evidence on behalf of the , and also to bring with you and produce at tho time and place aforesaid (specify documents to be produced. ) Witness, the Honourable President, &c., the] day of No. 103* Commission to Examine Witnesses. (5'«'e/6., FormG, 11.) [Title, &c.] Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to of commissioner named by and on behalf of the and to of a commissioner named by and on behalf of the greeting : Know ye that we in confidence of your prudence and fidelity have appointed you and })y 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 either of you. — 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 ">r !-■ : r. m 4"J2 ONTARIO JUDICATURE ACT, 1881. tliercof or nrisinjr out of tho answers thereto, such witnesses as shall 1)0 produced on their behalf, with liberty to the other party to cross-examine the said witnesses on cross interrogatories, and viva voce on the subject matters thereof or arising out of the answers thereto, the party producing any witness for examination being at liberty to re-examine him viva rucc ; 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 shall bo returned with the said commission. 2. Not less than forty-eight hours before the examination of any witness on behalf of either of the Haid parties, notice in writing, signed !)y one of you, the commissioner 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 other party by delivering the notice to [name and adilresa of the pcraon named in the order for this purpose] (or to a grown u]) ])erson there) and shall be given also to the commissioner of the other party, at the address aforesaid of such commissioner or to a grown up person for him, at the said last mentioned address, and if the commis- sioner of that party neglect to attend pursuant to the notice, then you, tho commissioner of the party on whoso behalf the notice is given, shall be at liberty to proceed with and take the examina- tion of the witness or witnesses fx 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 disposition to part with the original thereof, then a copy thereof, or extract therefrom; certified by the commissioners or commissioner present and acting, to be a true and correct copy or extract shall be annexed to the witness' deposition. 4. Each witness to be examined under this commissioner shall be examined on oath, affirmation, or otherwise in accordance with his religion, by or before the commissioners or commissioner present at the examination. 5. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and viva voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English, through the medium of an interpreter or interpreters, to be nominated by the commissioners or commissioner present at the examination, and to be previously sworn, according to his or their several religions, by or before the said commissioners or commissioner truly to interpret the ques- 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 thereform, shall be sent to the witncsHCH as ) otiier party giitorioB, and ijf out of the examination and all Huch lation, eroBS- into writing, kfith the said ami nation of ies, notice in ■ the party on iting the time names of the ther party hy person named ion there) and r party, at the )wn up person f the commis- le notice, then If the notice is 3 the examina- . adjourn any ly to day until le of the notice or other notice ination, cross- lok, document, sc to be stated then a copy mmissioners or orrect copy bion. missioner shall in accordance commissioner understand the rogatories, and dated into the sant), then the 3 medium of an I commissioners be previously ly or before the rpret the ques- ireto. nission shall be commissioners ions. id depositions, in, or certified to the FORMS — COMMISSIONS. of the Supreme Court of Judicature on or before the day of inclosed in a cover under the seals or seal of the com- missioners or commissioner. 8. Before you or any of you, in any manner act in tho execu- tion hereof, you shall severally take the oath hereon indorsed on tho Holy Kvangelists, or otherwise in such other manner as is sanctioned by tho foim of your several religions, and ia considered by you respectively to be binding on your respective consciences. And we give you or any one of you authority to admimster such oath to the other or others of you. Witness the Honourable President, &c., tho day of in the year of Our Lord one thousand eight hundred and of agent for who reside at 423 »€> This writ was issued by of Bolicitor for the Commissioner' a Oath. You shall, according to the best of your skill and knowledge, truly and faithfully, and without i)artiality 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 God. Clerk's Oath. You shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, write down, transcribe, and engross all and every the questions which shall be exhibited or put to all and every witness and witnesses, and also the depositions of all and every such witness and witnesses produced before and examined by the said commissioners named in the conunission 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. Witness's Oath. You are true answer to make to all such questions as shall be asked you, without favour or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you 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 shall be administered to, and all and every the questions which shall be exhibited or put to all and every witness and witnesses produced before and examined by the commissioners named in the commission within written, as far forth as you are directed and employed by the said commis- sioners, to interpret and translate the same out of the English into the language of such witness or witnesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesseb into the English language. So help you God. fv^^wf^ 424 ONTARIO JUDICATURE ACT, 1381. Direction of Interrogatories, &c., when returned by the Com- misHioners. The of the Supreme Court of Judicature, Osgoode Hall, Toronto. No. 104. Habeas Corpus ad Testifioand "m. (See lb., Form G, 12.) [Title, &c.] Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, I>efender of the Faith, to the [keeper of our prison ?.t ]. We command you that you bring , who it is said is detained 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. Witness, the Honourable President, &c., the day of This writ was issued by solicitor for the who reside at APPENDIX (G). CERTIORARI AND PROHIBITION. No. 105. Certiorari to County Court. (See R. Sup. C, April, 1880, Form G, 8.) [Title, &c.] Victoria, by the Grace of God of the United Kingdom of Great Britain am) Ireland, Queen, Defender of the Faith, to the Judge of the County Court of greeting : We, willinw for certain causes to be certified of a certain causji pending in our Court before you against at the su. of command you that you send to us forthwith i° the Division of our H-gh Court of Justice at TorontOi the proceedings in the id cause with all things touchirgth^ same, as fully and entirely as the same remain in our said ( /ourt before you, by whatsoever names the parties may be called therein, together with the writ, that we may further cause ■ o be done thereupon ,. hat of right we shall see fit to be done. Witness, the Honourable President, &c., the day of This writ was issued by of agent for of solicitor for the who reside at FORMS — CERTIORARI, ETC. 425 [ by the Com- ture, U, Toronto. igdom of Great , to the [keeper vho it is said is , before at the hour 10 day until the if the we 80 given hia from which he c, the or the )N. 8.) Lingdom of Great }th, to the Judge e ■ a certain causj^. at the Bu. us forthwith »» kice at Toronto, jiga touchirg the In our said Oourt may be ciUed hher cause • o he Ibe done, tc, the stent for at No. 100' Certiorari {General). (See lb., Form G, 9.) [Title, &c.] Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to the greeting : We, willing for certain causes to bo certified of com- mand you that you send to us in our High Court of Justice at Toronto, on the day of the aforesaid, with all things touching the same, as fully and entirely as they remain in together with this writ, that we may further cause to be done thereupon what of right we shall see fit to be done. Witness, the Honourable day of This writ was issued by of solicitor for the President, &c., the of agent for who reside at No. lOY. Prohibition. (-Sfee/6., FormG, 10.) [Title, &c.] Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to the [Judge of the Coimty Court holden at ] and to [name of plaintiff] of greeting : Whereas we have been given to understand that you the said have [entered an action 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 [action] by reason that {»tate facts showing want of jurisdiction]. We therefore hereby prohibit you from further proceeding in the said [action] in the said Court. Witness, the Honourable President, &c., tuc day of This writ was issued by of agent for of solicitor for the who reside at APPENDIX (H). ORDERS. (See R. Sup. C, April, 1880, Form H, 1.) No. 108. Summons (General Form). (For use in outer Counties.) In the High Court of Justice. Division. Between and Plaintiff, Defendant. Let all parties concerned attend befora me at my Chambers on day the day of 18 , at o'clock in r '^^^'^ ONTARIO JUDICATURE ACT, 1881. th^^ noon, on the hearing of an application on the part of for (state object of apjMcation, as in a notice of motion, according to Forms in Appendix B. ) Dated the day of 18 . This summons was taken out by of Solicitor, for To No. I0». Orber [General Form). (See lb., FormH, 2.) In the High Court of Justice. Division. [Name of the Judge or Master'] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered and that the costs of this application be Dated the day of 18 . No. no. Order for Service out of Jurisdiction. (.S-ee /6., FormH, 18.) In the High Court of Justice. Division. [Name of the Judge or Master'] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the plaintiff be at liberty to issue a writ for service out of the jurisdiction again.it And it is further ordered that the time fc r appearance to the said writ be within days after the service thereof, and that the costs of this application be Dated the day of 18 . No. Ill, Order for Substituted Service. (See lb., FormH, 19.) In the High Court of Justice. • Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing and upon reading the affidavit of filed the dav of 18 , and FORMS ORDERS. 427 It is ordered that service of a 'opy of this order, and of a copy of the writ of summons in this ,i> tion, by sending the same by a pre-paid and registered post letter, addressed to the defendant at , sliall be good and sufficient service of the writ. Dated the day ^i 18 . No. 113. Order allowing Service made out of the Jurisdiction. (.S'ee Jb., Form H, 18, and Order 7.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of f'UH the day of 18 , and (t Id ordered that the service of the wiit {or notice of the writ) made upon the defendant as shown by the said affidavit, be allowed as good and sufficient service. Dated the day of 18 . 0. ii:5. Order for Renewal of Writ of Summons. (^e 76., Form H, 20.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendint. Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the writ in this action be renewed for twelve months from the date of its renewal, pursuan*^ to the Rules of the Supreme Court, Order 5, Rule 1 . Dated the day of 18 . No. 114o Order for Tike. (.S'ee 76., Form H, 3.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18, and It IS ordered that the shall have time for, &c. and that the costs of this application be Dated the day of 18 . 428 ONTARIO JUDICATURE ACT, 1881. 4| No. 115. Order under Order X, No. 1 {Fnal Judgment). {See 11)., Form H, 4.) In the High Court of Justice. Division. [Name of the Judge or Mauler] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the aiRdavit of filed the day of 18 , 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, and coats to be taxed, and that the costs of this application be Dated the day of 18 No. 110. Oadek under Order X, No. 6 (Rule 85), {leave to defend uneonditionally). (See lb., Form H, 5.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the defendant bo at liberty to defend this action by delivering a statement of dr fence within daya after delivery of the plaintiff" 's staton lent of claim, and that the costs of this applicatior be Dated the day of 18 No. 111. Order under Order X, No. 6 (Rule 85), (leave to defend on payiiient into Court). (See lb., Form H, 6.) In the High Court of Justice. Division. [Name of tlie Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that if the defendant pay into Court within a week from the date of this order the sum ol $ , he be at liberty to defend this action by delivering a s vatnment of defence within days after delivery of the plai itin 's statement of claim, but that if that sum be not so paid the plaintiff be at liberty to sigti final judgment for the amount indorsed on the writ 'jf summon'-, with interest, if any, and costs, and that in eithier event the costs of this application be Dated the day of 18 FORMS — ORDERS. 429 ment). in. idavit of igment in thiB ntcrest, if any, jplication be leave to defend ibera. id iffidavit of ;y to deft nd this in cl'iys iin, and that the ave to defend on imbers. ind affidavit of into Court within |; , he be at itnment of defence iu 'a statement of ho plaintiff be at t indorsed on the costs, and that iu No. 118. Order under Order X, No. 4 (Rule 8'.), (leave to defend as to part on payment into Court, and as to residtie unconditionally). {See lb., FormH, 7.) In the High Court of Justice. Division. [Name of the Judije or Master^ in Chambers. Eutween Plaintiff, and Dpfeudant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that if the defendant pay into Court within a \''eek from the date of this order the sum of $ , he be at liberty to defend tliis 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 pign judgment for that sum, and the defendant be at liberty to defend this action as to the residue of the plain- tiff's claim. And it is ordered that in either event the statement of defence be delivered within days after delivery of tlie plaintiff's statement of claim, and that the costs of this application be Dated the day of 18 . No. 119. Order to Amend, {See lb., FormH, 8.) In the High Court of Justice. Division. [Xamc of the Judge or Ma,iier] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the plaintiff be at liberty to amend the writ of summons in this action by , and that the costs of this application be Dated the day of 18 . No. 120. Order for Names of Partners. {See lb., FormH, 9.) In the High Court of Justice. Division. [Name of tJie Jiidge or Master^ in Chambers. Between Plaintiff, and Defendant. Upon hc.iriug , and upon reading the affidavit of filed the day of 18 , and i; '"ii 430 ONTARIO JUDICATURE ACT, 1881. It is ordered that the furnish the with a state- ment in writing, verilied b}' affidavit, setting forth the names of the persons constituting the members or co-partners of their firm, pursuant to the Rule of the Supreme Court, and that the costs of this application be Dated the day 18 . No. 1^1. Order for Particulars {General.) {See lb., FormH, 10.) In the High Court of Justice. Division. [Name of the Judge or Master,'] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , 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 deliver- ed within days from the date of this order all further pro- ceedings be stayed until the delivery thereof, and that the costs of this application be Dated the day of 18 No. n%. Orbkr for Particulars {Accident Case). {See lb., FormH, 11.) In the High Court of Justice. Divibion. [Name of the Judge or Master'] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and up«n reading the affidavit of filed the day of IS , and It is ordered that the plaintiff deliver to the defendant an ac- count in writing of the particulars of the injuries and expenses mentioned in the statement of claim, together with the time an>l place of the accident, and the particular acts of negligence com- plained 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 tin' costs of this application be Dated the day of 18 FORMS — ORDERS. 431 vith a state- he names of ers of their Court, and ers. No. tm. OKDEFi TO Discharge or Vary Order on Application by Third Party. (See lb., FormH, 12.) In the High Court of Justice. Division. [Name of the Judge or Manter,] in Chambers. Between PlaintifiF, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 . It is ordered that the order of in this action dated the day of 18 , be discharged [or varied by ], and that the costs of this application be Dated the day 18 lavit of ndant aintiff's claim Irs be deliver- ,11 further pro- that the costs %se). No. lliJ4i Order to Dismiss for want of Prosecution. {See lb., FormH, 13.) In the Higli Court of Justice. Division. [Name of the Judge or Master'] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of ,18 , 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 {coHta in the cause) Dated the day of , 18 . ibers. [fidavit of defendant an ac us and expenses ith the time an-i negligence corn- delivered within ;r proceedings in ,f, and that the No, 1^5. Order for Production under Order 27, R. 4 (Rule 222). (Seelh., FormH, 15.) lu the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing It in (>rdered that the do, witliin ten days after the service of this order, make discovery on oath of the documents which are or have been ui possession or power relating *'i any matters in question in this action and that the costs of ■-his application be Dated che day of , 18 ■ 432 ONTARIO JUDICATURE ACT, 1881. No. 136. Order to Produce Documents for Inspection ukdsr Order 27, R. 15-20 (Rule 233-238). {See lb., Form H, 16.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of , 18 , and It is ordered that the do, at all seasonable times, on reasonable notice, produce at the office of solicitoi*, situate at the following documents, namely and that the be at liberty to inspect and peruse the documents so produced and to take copies and abstracts thereof and extracts therefrom, at expense, and that in the meantime all further proceedings be stayed, and that the costs of this appli- cation be Dated the day of ,18 ' Ii- i! No. 13 7. Order of Kkference. (See Rule 244) {See lb., Form H, 22.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing and by consent It is ordered as follows : [State mutters to be referred] shall be referred to the award of who shall make an'l publish his i ward in writing on or before the next, on or before such further day as he may from time to time appoint and signify in writing signed by him and indorsed on this order and the costs cf the said cause, and the reference and award shall be Dated the day of 18 . No. 128. Order to remove Judgment from County Court. {See lb., FormH, 28.) In the High Court of Justice. Division. [Nam^ of the Judge or Master] in Chambers. In the matter of a certain cause in the County Court of wherein Plaintiff, and Defendant. Upon reading the affidavit of filed the day of 18 , and , and the certified copy of the judg- ment in the cause above mentioned. [OV UKDER terB. lavit of labie times, on ilicitoi", situate and that the documents bo )f and extracts I meantime all 9 of this appli- 4) ibera. ti£f, and idant. to the award of in writing on or day as he may g signed by him the costs ci the rv CouKT. mbers. y Court of intiff, and 'endant. day of !opy of the judg- FORMS — ORDERS. It is ordered that a writ of certiorari issue to remove the aaid judgment from the above-named County Court into the Division of the High Court of Justice. Dated the day of 18 433 No. 129. Orders for Commission- to Examine Witnesses. (See lb., Form H. 30.) In the High Court of Justice. Division. [Name of the Judge or Mmter,] in Chambers. Between Plaintiff, and Defendant. a com- Upon hearing apd upon reading the affidavit of filed the day of 18 , and It 's ordered as follows : 1. A commission may issue directed to of luissioner named by and on behalf of the , and to of , a commissioner named by and on behalf of the for the examination upon interrogatories and viim race of witnesses on behalf of the said and respectively at aforesaid before the said commissioners. 2. 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. 3. The costs of this order, and of the commission to be issued in pursuance hereof, and of the interrogatories, cross-interro- gatories, and depositions to be taken thereunder, together with any document, copy, or extract and the official copies thereof, and all other costs incidental thereto, shall be Dated the day of , 18 . No. 130. Order of Reference under S. 47 of the Act. (-See 77)., Form H, 31.) In the High Court of Justice. Division. [Naiiie of the Judge or Master,] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of tiled the day of , 18 , and It is ordered that the following questions arising in this action, namely. be referred for inquiry and report to under section 47 of The Judicature Act, and that the costs of this application be Dated the day of , 18 . 28 434 ONTARIO JUDICATURE ACT, 1881. No. 131. Order of Referrnce under Sec. 48 of the Act. (See lb., FormH, 32.) In the High Court of Justice. Division. [Name of the Judge or Master\ in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the afhdavit of tiled the day of > 1 8 , and It is ordered that the [state whether all or some and, if so, wliich of the question are to be tried] in this action be tried by And it is ordered that the costs of this application be Dated the day of , 18 . as : Si' No. IJW. Order for Reference to Master. (See lb., FormH, 33.) In the High Court of Justice. Division. [Name of the Judge or Master,] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that this action [or the matters of account in thi.s action, or the following questions in this action being matters of account, namely, state them] be referred to the certificate of , with all the powers as to certifying and am(jnding of a Judge of the High Court of Justice, and that the coats of the and of the reference be in the discrection of the said and that the costs of this application be Dated the day of , 18 . No. 133. Order for Examination of Witnesses Before trial. (See lb., FormH, 34.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing and upon reading the affidavit of filed the day of , 18 . It is ordered that a witness on behalf of the examined viva voce (on oath or affirmation) before [or 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. be M FORMS — OllDEUS. 4:ir> [K Act. era. itiCf, and iiulant. .avit of nd, if so, which Iby on be imbers. lutiff, and euilaiit. fidavit of f account in tliis being matters of he certiticate ot all the powers as ^ High Court ot the reference be the costs of this And it ia further ordered tliat the examination so taken l»o tiled in the olHce of , and that an otiice copy or oopiew thereof may be read and given in oviilonce on the trial of this cause, saving all just exceptions, witlioiit any further proof of the absence of the said witneHS tiian the allidavit of the scdicitor or ag(!nt of the as to his belief, and that the costs of thin application be Dated the day of 18 . No. 134i Oarnishbr Order (Attachinrj Debt.) {See. lb., Form H, Wl.) ]n the High Cmirt of Justice. Division. [Nmne of the Judge or 3Aa.v/!cr,] in (chambers. Between Judgment (h-editor, and Judgment Debtor. Garnishee. Upon hearing , and upon reading the affidavit of > filed the day of 18 , and It is ordered that all debts owing or accruing due from the above named garnishee to the above named judgment debtor be attached to answer a judgment recovered against the said judg- ment debtor by the above-named judgment creditor in the Migli Court of Justice on the day of 18 , for the sum of $ , on which judgment the said sum of $ , remains ^ ^ H I '•:! r^Trs 436 ONTARIO JUDICATURE ACT, 1881. of $ , on which judgment the said sum of $ remained due and unpaid. It is oidered that the said garnishee do forthwith pay the said judgment creditor the debt clue from him to the said judgment debtor {or so much thereof as may be sufficient to satisfy the judgment debt), and that in default thereof execution may issue fur the same, and that the costs of this application be Dated the day of 18 . No. 136. Order on Application to tax Solicitor'8 Bill of Costs. {See Ih., Forms H, 39-51.) In the High Court of Justice. Division. l-'yume of the Judge or Master] in Chambers. In the matter of Gentleman, One of the Solicitors of the Supreme Court. Upon ay. :b !on of it is orJe' . f.)\u the bill of fees, charges and disbursements delivered v tl- . applicant by the above-named solicitor {or by the above solictor to {aa the case may be) be referred to the to be taxed, and that the said do take an account of all sums of money received by the said solicitor of or on account of the applicant. And it is ordered that the costs of this application be Dated the day of ,18 No. 131. Order to try Action in County Court. {See lb., Form H, 42 ; R. S. 0. c. 49, s. 3.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between Plaintiff, and Defendant. Upon hearing . and upon reading the affidavit of filed the day of , 18 , and it is ordered that this action be tried before the County Court of , and that the costs of this application be Dated the day of , 18 No. 138. Ordbb for Examination TOUcHnro Means. {See lb., Form H, 44 ; R. S. O. c. 50, s. 304. ) In the High Court of Justice. Division. Judge in Chambers. Between Judgment Creditor, and Judgment Debtor. Upon hearing , and upon reading the affidavit of filed the day of , 18 , and FORMS — ORDERS. 437 emained due pay the said vul judgment ;o satisfy the on may issue be L OF Costs. jers. itleman, )reme Court. disbursements solicitor {or by ) be referred to do take an i solicitor of or tion be Court. 8.3.) nbers. iffidavit of le County Court n be ra Means. 304.) r, and affidavit of Ind it is ordered that the above-named do attend before the in Chambers on the day of next, at in the noon, to be examined upon oath touching his means of paying the judgnent debt, and that the costs ofthis application be Dated the day of ,18 No. 139- Intkrplkader Order, No. 1. (See lb., FormH, 48.) In the High Court of Justice. Division. [Name of the Jtulge or Master] in Chambers. Between Plaintiff, and Defendant, And between Claimant, and Respondent. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered tiiat 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 18 No. 140. Interpleader Order, No. 2. (See lb., FormH, 49.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between PlaintiflF, and Defendant, and Claimant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named claimant be substituted as defendant in this action in lieu of the present defendant, and that the costs of this application be Dated the day of 18 No. 141- Interpleader Order, No. 3. (See lb.. Form H, 50.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers. Between PlaintifiF, 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 18 , and 438 ONTARIO JUDICATURE ACJT, 1881, ir i^ l! It is ordered that the said sheriff proceed to sell the goods seized by him under the writ of fieri facias issued herein, and pay the net proceeds of the sale, after deducting 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 High Court of Justice, in which the said claimant shall be the plaintiff and the said execution creditor shall be the defendant, and that the question to be tried shall be whether, at time of the seizure and sale by the sheriff, the 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 after 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 ,18 No. 1*2 Interpleader Ordkr No. 4. (See lb., Form B, 51.) In the High Court of Justice. Division. [Name of the Judge or Master] 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 tiled the day of , 18 , and It is ordered that upon pa3rment 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 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 possession money from this date, the said sheriff do with- draw from the possession of the goods seized by him under the writ of fi,e.ri facias herein. And it is further ordered that unless such payment be made or security given within the time aforesaid the said sheriff proceed to sell the said goods, and pay the proceeds of the sale, after deducting the expenses thereof aud the possession money from this date, into Court in the cause, to abide further order therein. ^ind it is further ordered that the parties proceed to the trial of an issue in the Hieh Court of Justice, in which the claimant shall be plaintiff and the execution creditor shall be defendant, and that the question to be tried shall be whether at the time of seizure and sale by the sheriff the goods seized were the property of the claimant aa against the execution creditor. FORMS— ORDERS. 439 >11 the goods I herein, and the expenses order herein, ed to the trial lich the said ition creditor tried shall be iriff, the goods the execution prepared and from this date days, costs and all al of the said bhe said sheriff ibera. ant, Respondents. Bdavit of I of $ into is date, or upon ! satisfaction of he same amount of any order to named sheriff of sheriff do with- him under the ment be made or i sheriflf proceed f the sale, after ion money from ,er order therein, jeed to the trial ich the claimant mil be defendant, er at the time of rere the property 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 ali further questions be reserved until after the trial of the said issue, and that no action shall be brought against the sheriff for the seizure of the said goods. Dated the day of 18 . No. 143. Intbrplsadeb Order, No. 5. (SeeJb., FormH. 52.) In the High Court of Justice. Division. [Name of the Judge or Master ,1 in Chambers. Between Plaintiff, and Defendejit, And between Claimant, and the said execution creditor, and the sheriff of Respondents. Upon hearing and upon reading the affidavit of 61ed the day of 18 , and 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 for the payment of the same amount b; the claimant according to the directions of any order to be made herein, the above-named sheriff withdrew from the possession of the goods seized by him under the writ of fieri facias issued herein. And it is further ordered that in the meantime, and until such payment made or security given, the sheriff continue in pos- session of the goods, and the claimant pay possession money for the time he so continues, unless the claimant desires 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, or abide further order herein. And it is further ordered that the parties proceed to the trial of an issue in the High Court of Justice, in which the claimant shall be plaintiff and the execution creditor shall be defendant, and that the question to be tried shall be whether at the time of the delivery of the said writ to the sheriff the goods seized were the property of the claimant as against tlie 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 after the trial of the said issue, and that no action will be brought against the sheriff for the seizure of the said goods. Dated the day of 18 . 440 ONTARIO JUDICATURE ACT, 1881. i ''^ No. 144, Intbrplkader Order, No. 6. (5ec76„ FormH, 63.) In the High Court of Justice. Diviaion. [Name of the Judge or Master,] in Chambers. Between And between Plaintiff, and Defendant. C!-iraant. And the said the Sheriff of execution creditor and Respondents. 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 18 , and It is ordered that And that the costs of this application be Dated the day of 18 . No. 145. Interpleader Order, No. 7. (See lb., Form H, 54.) In the High Court of Justice. Division. IName of the Judge or Master"] in Chambers. Between Plaintiff, and Defendant. Claimant. And between and the said the Sheriff of execution creditor and Respondents. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the above-named Sheriff proceed to sell enough of the goods seized under the writ oi fieri facias issued in this action to satisfy the expenses of the said sale, the rent (if any) due, the claim of 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 18 . FORMS — JUDOMENTS. 441 318. Respondents. •equested and e claimant be ir, now upon filed the bers. Respondents, iavit of proceed to sell facias issued in ale, the rent (if cution. eeds of the said ent, if any,) the 3 said claim, and scution, and the ught against the 1 be No. 140t Order DisMiasiNo Motion (Oenerally). (Seelh., FormH, 55.) In the High Court of Justice. Division. [Name of the Judtje or Master] in Chambers. Between Plaintiif, and Defeuclent. Upon hearing , and upon reading the affidavit of filed the day of 18 > and It is ordered that the application of be dismissed (if the dismissal is with costs add), with costs to be taxed and paid by the to the Datc^ the day of , 18 . APPENDIX (I). FOKMS OF JUDGMENT. No. I4T. Default of Appearance cr Defence in Case of Liqcidated ""~ Dkmand. (See R. Sup. C, 1875, Apijendix (D), Form 1.) In the High Court of Justice. Division. Between A. B., PluintiflF, and C. D. and E. F., Defendants. The day of , 18 . The defendants [or the defendant t'. /).] not having appeared herein [or not having delivered an> statemeut of defence], it is this day adjudged that the plaiutifl recover against the said defendant J$ , and costs to be taxed. No. 148. Judgment in Default of Appearance or Defence where THE Demand is hiQViDATKV (Fixed costs.) [Title, &c.] The day of , 18 . The defendant not having appeared to the writ of summons (or delivered any statement oi defence or demurrer) it is this day adjudged that the plaintifif recover against the said defendant $ and $ costs. No. 149. Judgment in Default of Appearance in Action for Recovery of Land. (See lb., Form 2.). [Title, &c.,] The day of 18 . No appearance haAring been entered to the writ of summons herein, it is this day adjudged that the plaintifif recover posses- sion of the land in the said writ mentioned. S>H. fH n '! ■•- 1 1' ■ i; 442 ONTARIO JUDICATURE ACT, 1881. No. 150. JuDOMSNT IN Default of Defence in Aotiom for Rxoovbrt OF Land. [Title, Ac] The day of ,18 No statement of defence having been delivered herein, it is thia day adjudged that the plaintiff recover possession of the land iu the statement of claim nerein mentioned and described as fH t*- ■h»\ No. 151. Judgment in Default of Defence in Action for Rboovbrt OF Land with Damages. (-Se* Order 15, R. 8.) [Title, &c.] The day of , 18 . The defendant not having delivered any statement of defence, it is this day adjudged that the plaintins recover possession of the land in the statement of claim herein mentioned, and de- scribed as , in the County of and costs to be taxed, and it is further adjudged that the plain- ti£f8 recover against the defendant damages to be assessed. Certificate for $ , taxed costs, dated the day of . 18 . No. 152. Interlocutory Judoment in Default of Affeabakob or Defence where Demand Unliquidated. (See R. Sup., April 1880, Form D, 8.) [Title, &c.] The day of , 18 . No appearance having been entered to the writ of summons {or no statement of defence or demurrer having been delivered by the defendant) herein ; It is this day adjudged that the plaintiff recover against the defaidant the value of the goods or damages, or both aa the ease maWte, to be assessed, No. 153. JvvaiB^T after Appearance and Order under Order X. Rule 1. (^«c/6., FormD, 9.) [Title, &c.] The day of , 18 . The defendant having appeared to the writ of summons herein and the plaintiff having by the order of , dated day of 18 , obtained leave to sign judgment under the Rule of the Supreme Court, No. 80, for (recite order). It is this day adjudged that the plaintiff recover against the defendant $ and costs to be taxed. The above costs have been taxed and allowed at | , as appears by a Master's certificate dated the day of , 18 L. JOB Rbcovirt heroin, it is thi« a of the land in icribed aa FOR RWWVKRT sment of defence, »ver possesBion of entionod, and de- of ed that the plain- be asseased. the day Appkakamok or IDATED. .8.) „ it of BummonB (or [been delivered by (•ecover against the or both aa the cate UNDBR OBDRR X. PORMS — JUDGMENTS. No. 154. [Title, &o.] JuDOMSNT IN Default of Appearance or Defence, after Assessment of Damaoes. (See Ib.,VoTm3.) The day of 18 . No appearance having been entered to the writ of summons tor no statement of defence or demurrer havinc been delivered y the dcfen('.aiit] herein, and the damages which the plaintiff was entitled to recover having been asacssed at $ , as by dated the 18 , appears, it is adjudged that the plaintiff recover $ and costs to be taxed. 443 No. 155. Judgment after Trial by Court without Jury. {Nol.) (See lb., FormD, 10.) [Title, &c.] The day of 18 . This action having on the day of 18 tried before and the said on the day of 18 , having ordered that judgment be entered for the for $ It is this day adjudged that the recover from the $ and costs to be taxed. The above costs have been taxed and allowed at $ appears by a taxing officer's certificate dated the 18 . been I as day of No. 156. Judgment at Trial by Judge without a Jury. (No 2. See lb.. Form 4.) [Title, tic.] The day of 18 . The action coming on for trial [the day of and] this day, before in the presence of counsel judgmmtn. for the plaintiff and the defendants [or, if some of tlie dcferulanta do not appear, for the plaintiff and the defendant C. D. , no one appearing for the defendants E. F. and O. H., although they were duly served with notice of trial as by the affidavit of filed the day of appears,] upon hearing read the pleadings and what was alleged by counsel on both sides, this Court doth declare, &c. And this Court doth order and adjudge, tec. of summons herein , dated day Lent under the Rule W). It i8 this day le defendant | >wed at I day of ,18 .M No. 151. [Title, &c.] JuDoi wt after Trial by a Jury. (See lb., Form 5.) The day of , 18 . The action having on the 12th and 13th November, 18 tried before the Honourable Mr. Justice , been and a U4 ONTARIO JUDICATURE ACT, 1881. spocial jury of the County of , and tho jury having found [state fituVmys na in Juthje'a or officer's certificate], and tho Baid Mr. Justice having ordered that jutlgment he entered for tho plaintiff for % and costs of suit [or as the case may he] : Therefore it is adjudged that the plaintiff recover against the defendant % and $ for his costs of suit [or that the plaintiff recover nothing against the defendant, and that the defendant recover against the plaintiff $ for his costs of defence, or as t/te case may be. ] f i I J' P No. 158. [Title, &c.] Judgment after Trial before Referee. (See lb., Form 6.) The day of , 18 . The action having on the 27th November, 18 , been tried be- fore X. y., Esq., an othcial [or special] referee ; and the said X. Y., having found [state substance of referee's certificate], it is this day adjudged that No. I5». Judgment After Trial of Questions of Account by Referee. (See R. Sup. C, April, 1880, Form D, 6a.) [Title, &c.] The day of 18 . 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 said $ and costs to be taxed. The above costs have been taxed and allowed at $ ,08 ap- pears by a taxing officer's certificate dated the day of 18 . No. 160. Judgment on Motion (General). (See lb.. Form D, 19 ; Order 40.) [Title, &c.,] The day of 18 . (Date of Order of Court.) This action having on the day of 18 , come on before the Court on motion for judgment on behalf of the and the Court after hearing counsel for the having ordered that (as in order of Court. ) It is this day adjudged that the recover against the the sum of $ and costs to be taxed. The above costs have been Uxed and allowed at $ , as ap- pears by a taxing officer's certificate dated the day of 18 . 10 jury having Irate], and the jinlgtnent be suit [or as the wntitf recover i8t8 of auit [or (I ant, and that for his costs of iEB. , been tried be- B ; and the said iertyicatt], it is Account by ,6a.) ng been referred the to the do pay the against the said at $ , as ap- day of L). >•) tf Court.) 18 , come on lalf of the having ordered iover against the i at S .as ap- day of F0KM9 — JUDGMENTS. No. 161. JUDOMKNT IN PURSUANCE OF ORDER. {For itse where leave hnn been yiveii to s'nja jiulijiiieiU aniens some condUion shouUl h<- complied with. (See lb., Form D, 11.) [Title, &c.] The day of 18 . Pursuant to the onler of dated 18 , whereby it was ordered and default having been made It is this day adjudged that the plaintiff recover against the Haid defendant $ and costs to be taxed. The above costs have been taxed and allowed at ^ , a'i !ip- pears by a taxing otliuer's certificate dated the day of 18 . 446 No. 162. JUDOMENT IN PURSUANCE OF Order. (For use where Icare htis been yiven to tfign judynient unlens money should he paid into Court. [Title, &c.] The day of 18 . Pursuant to the order of dated the 18 , whereby it was ordered that unless $ Court by the defendant within a week, the plaintiff be at liberty to sign final judgment for amount indorsed cm the writ of sum- mons with interest, if any, and costs ; and the said defendant not having paid into Court the said sum of $ , as conditioned by the said order, it is this day adjudged that the plaintiff re- cover against the defendant $ and $ for costs. Certificate for costs dated the day of 18 . day of be paid into No. 163. JUDQMBNT ON CERTIFICATE OF ClERK OF CoUNTY OOURT. (See lb., FormD, 12.) [Title, &c.] The day of 18 . This action having been orilered to be tried in the County Court of and the Clerk of that Court having certified that the result was It is this day adjudged that recover against $ and costs to be taxed. The above costs have been taxed and allowed at $ , as appears by a taxing officer's certificate dated the day of 18 . No. 164. Judgment for Defendant's Costs on Discontinuance. (See lb., FormD, 13.) [Title, &c.] The day of 18 . The plaintiff having by a notice in writing dated the day of 18 , wholly discontinued this action, \pr withdrawn his ;*:•■' ! I'; .;f ■i; ' ! : i^'x-i 446 ONTARIO JUDICATURE ACT, 1881. claim in this action for or withdrawn so much of his claint in this action as relates to — or aa the cane may he.] It is this (lay adjudged that the defendant rec iirer against the plaintitr coats to he taxed. The ahovc costs have been taxed and alluwod at 9 , y* as apnoars by a taxing otHcor's cortiticate dated the day of \h . No. |«5. JanOMRST FOR PLAISTIIfp'H CoST.^ AITBa CoWFRSHtoy OT Okkknce. {See lb., Form D, 14.) [Title, &C.J The day of 18 . The defendant in his statement of defence herein having alleged a ground of defence which arose after the commencomimt of this action, and the plaintiff having on the day of 18 delivered a confession of that defence. It is this day adjudged that the plaintifT recover against the defendant costs to be taxed. The altove costs have been taxed and allowed at $ , as appears by a taxing oHiuer's ccrtilicate dated the day of 18 . No. 160. JUDOMENT FOR CoST.S AFTF.R ACCEPTANCE 0» MoHRV PAID INTO Court. (Seelh., Form D, 15.) [Title, &c.] The day of 18 . The defendant having paid into Court in this action the sum of $ in satisfaction of the plaintiff's claim, and tlie plaintiff liaving by his notice dated the tlay of 18 , accepted that sum in satisfaction of his enti"* cause of action, and the plaintiffs costs herein having been taxed, and the defendant not having paid the same within forty-eight hours 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 % as appears by a taxing officer's certificate dated the day of 18 . No. lOT. Judgment ON MoTiox AFTKR Trial of Issue. (See Order 32. ) (See lb.. Form D. 18.) [Title, &c.] The day of 18 . (Date of order of Court.) The (Issues or Questions) of fact arising in this action 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 , the Court having FORMS. 447 [lis claim in ' against the at $ • ^ day sssioH or lavi'.ig alleged ointint of this 18 dtdivcred rer against tho id at 8 I tho day dosRY PAID action the Bum id the plaintifif , accepted that d the plaintiff's ant not having 3 said taxation. )ver against the ^ed at $ ted the day (See Order 32.) Court. ) lis action by the be tried before cd before i ntion before the curt having It in this day adjudged that tho recover against the the sum of $ and costs to bo taxed. Tho above costs have boon taxed and allowod at | , as ap- pears by a taxing otiicor's certificate dated tho day of 18 . No. |«8. Form or Jupomrvt on Pr.«cipe kok Sam? or Foreclosttrk With Heferrnck as to lN(.'i'MnHANOF.s, &c., and Orderh roR Immediate Payment and Demverv ok 1'o8.sk.s.*;• all narties] 2. It is ordered that all necessary inipiiries be made, accounts taken, costs taxed and proceedings had for the partition or sale of the lanils and premises in the saiil allidavits mentioned, and for tile adjustment of tiio rights of all parties interest»Ml therein, or for a partition of part and sale of the remain], (If the Jiulife f/ivi'ji instructions as to the. jutfj/mtint (hereon, mid). And tlie saitl Judge diroctud, &c., [as (he cast: vuii/ he]. iiatc'd, &u. No. 115. APPENDTX (J). WRITS OF EXEUUTION. Writ of Fieri Facaiah. (See It. Sup. (J., Appx. F, Form 1.) In the High Court of JuHtico. Division. Hetween A. B., PLiintiir, and (J. ])., and otlitTH, Defendants. Victoria, hy the Grace of Cod, of the United Kingdom of Great Britain and Ireland, Queen, l^efeader of the I'aitli. To the Sheriff of greeting. We conunand you that of tlie gooe\, which said sum of money and inten.'st were lately before the Justices of our Uigli (Jourt of Justice in a certain action [or certain actions, as (he cane maij l)e\, wlu^rein A. II. is plaintiff, and C. D. and others are defendants {or in a certain matter there depending intituled " In the matter of E. F.," as the case may l>e\ by a judgment [or order aid by the said to and which have been taxed and allowed at the Haid sum, and interest on the said sum, at the rate of six per (U'litum |)er annum from the day of 18 , and tliat you have tiie said huiii and interest before the .histices of our High ('ourt at Toronto, immediately after the execution hereof, to be rendered to t\w said And in what nmnner you shall have executed this our writ make ai)pear to us immetliately after the execution hereof. And have there then this writ. Witness, &c. 18 . The day of Indorse i)U')d8. licvy $ and $ for costs of execution, &c., and also in- terest on !$ at (5 per centum i)er ainnim from the day of 18 ', until payment ; besides sherill's jioundage, ollicers' fees, costs of levying, and all other legal incidental exjtenses. This writ was issued by of agent for of solicitor for the The IS a and resides at in your bailiwick. i No. 111. Writ of Venditioni Exponas. (See R. Sup. C, Appendix F, Form 3.) [Title, &c.] Victoria, &c. To the sheriff of greeting. Whereas by our writ wc lately commanded you that of the goods and chattels (mahhiij the. nccennnnj variatiom of' /his form throiiijhout in the case of lanih and tencmcntu) of C J), [heri' re- cite the fieri f'aein» to the end\. And on the day of you returned to our Justices in the Divisicm of our High (\mrt of Justice aforesaid, that by virtue of tiie said writ tf) you directed you had taken goods and chattels of the said V. D. to the value of the money and interest aforesaid, which said goods and chattels remained in your hands unsold for want of buyers. Therefore, wo being desirous that the said A. li. should be satis- tied his money and interest aforesaid, command you that you ex- pose to sale and sell, or cause to be sold, the goods and chattels of the said C. D. by you in form aforesaid taken, and every j)art thereof, for the best price that can be gotten for the same, and have the money arising from such sale before our Justices afore- said, at immediately after the execution hereof, to be paid to the said A . B. And have there then this writ. Witness, &c. , the day of 18 . •8 ■; FORMS — WRITS OF EXECUTION. 403 ,TS. I.) )f in y<»ur certiiiii costs toil tVio id to aid Hiiin, and lUi \wr luunun tho said Hiun ; at Toronto, iidtTod to till! ox«JCutcd thin the execution No. 178, Writ of Poshrshion. (S<-e Ih., Korni 7.) [Titlo, &o.] Victoria, Ac, to tlio HhorilF of , greeting. VVhoroaa lately in our lligli (!ourt of JuHticc, by a judgment t)f the Division of the aauie C/ourt \A. /I. recovered) or [hJ. F. wiM ordered to delivur to A. //. j poHHCHHion of all that with the apjmrtenances in your bailiwick : Tlicrefore, we eoin- rnand you that you enter the same, and without delay cauHo tht; said A . li. to have poHHesHioa of the miid land and preniiHeH with the appurtenanecH, and that you defend and keep hiui and Iuh aHHigUH in peaeeal)le and ([uiet jxmHeHHion when and an often aH any interruption mayor nhall, from time to time, be given or olFored to them or any of them. VVitneHH, &c. |The latter part of thia form ia taken from the form of a Writ of AaaiataiKie, anil doea not correapond with the form «)f a Writ of Poaaeaaion lunler the Engliah Judicature Acta. | ., and also in- c day of ndage, ollicera' 1 expenses, of our bailiwick. :)U that of the ns of this for lu C. D. [here re- day of on of our Higli (aid writ to you le said 0. D. to hich said goods vant of buyers. shouM be satis- ou that you ex- )ds and chattels , and every i)art ir the same, and r .Justices afore- ereof, to be paid b. No. 170. WiuT OK Dkmverv. (»%<;//>., Form 8.) [Title, &e.] Victoria, ftc, to the aherifTof greeting: We eonunand you, that without delay you cause the following chattela, that is to aay [hire cnnini-rdti; the rhaUcLi re- covered hji the jiuUjitient for the return of which exerulion has been ordered to iHsiw], to be returned to A. li., which the said A. li. lately in our recovered against C. I). \or (I. I), was ordered to deliver to the said A. /i.\ in an action in the Division of our said (Jourt. * And we further command you, that if the sai.) ITitlo, &u.| Victoria, etc.. To tlio Hliuriirof , greeting,': VVu coiiiiiitiiiil yoji to attdcli C />. ho hh to hav(! him l>nforo ns ill tlic division of our lligii Ooiirt of tlunticc tlicro to tiiiswcr to \iH, iiH u'cll ti>iii;hit)|^ a (Mint('in|ik \vlii(!h lio it '\h nllogcttl liatli coiniiiittcd aj.;;iiiiHt us, as also hucIi otlicr uuttturn aH hIwiII l)(^ (lu'u aiiti tlii^n^ laid to liis char^is aiiil Further to |ierforiii and al)idit Hiu'h oi'dcr as (Uir Haid ( 'ourt shall make in this hohalf, and hcn'of fail not, and hiin;,' tliiH writ with you. WitncHH, etc. No. IH^, WltlT OK Sl\HIKHTIlATION. (Svc /!>., Korm 10.) [Title, &C.J Victoria, etc., To the HheriiV of , t;reeting : Wiu-reas lately in the Division of our High Cour*^^ of •lustiee in a certain action there de|iending, wherein A . li. is p i,in- tilland ('. />. and others are (h^femiants |((;', in a certain Ui ,cter there di'|)ending intituhid "In tiu! matter of /'a F., tin thv chhi'. iiutji /<( 1 liy ji juilgnu'nt \oi' ordiT a-t f/n- ninr mail Im'\ of our Haid ( 'ourt mad«! in i\w said ai^titui {nr matter), and bearing date the day of 18 , it was ordered that the said (!. D. should [pay into Court to tiio credit of the said action the sum of % ; or, (IS the nisi' iiiii;/ hr\. Know ye, tiiercfore, that we have given, and by these presents do give, to you full power and authority to enter upon all the lands, tenements and real estatts whatsoever of thesaitW'. />., and to collect, receive and sequester into your hands, not only all the rents ami profits of his said lands, tene- ments and real estate, hut also all his goods, chattels and personal estates whatsoever ; and tiiercfore we connnand you, that you do at certain ])ropcr and convenient days ;ind hours, go to and enter upon all the lands, tenements and real estates of the said C. /)., and that you do collect, take and get into your hands not only the rents ami profits of his said real estate, but also all his goods, chattels, and personal estate, and detain and keep tlu; same under sequestration in your hands until the said C. /). shall pay ii.t'* ("mirt, to the credit of the said action, the sum of .iji j^o;, t/ii' <•(/«(' 1)1(11/ he,] clear his contempt, and our said Court :; . > other order to the contrary. Witness, &c. ■: No. 18». Dei-ivery oh Assesskd Valuk of Chattels. (See R. Sup. C, April, 1880, Form F, 11.) [Title, &c.] Victoria, &c., to the aherifF of greeting. We command you that without delay you cause to be returned to the following chattels, namely ( Enumerate chattels re- covered by jiulyment for the return of which execution has been FORMS — WRIT8 OF KXICCUTION. 4Bft him Ix^foro ur lunticc tluTd t(l li«! it iH ftUcKod uittei-H iiH Hhall to iiorform (unl ;liiH bohiiU. iiiitl itno88, etc. High Court of liii A . /^ iH 1' 'in- i ooi'tiviii Hi -cter I'J. F., f till! said V. !>., lands not only the iilso all his goods, p th(^ sanio under !). shall p!iy "'■'> of$ l"'. said Court •^ . < ordi'ml to ishuv), whii'h th« naid lat(dy (nmovored against or waH ordered to (hdivt^r to tliu said), in an action in our Ifigh ( ionrt of .luHtiee. And we furtli(!r f Assize (or an the caw. maij he), at Toronto (or ii on IN THE COURT OF APPEAL. GKNEIIAL ORDKUS. SOtii Day ok Maiicii, 1878. All i>iior I, ITjxm, from and after thin dato, all ilulcH and Orders oriiors an to liertoforo iiiado, and now in forco re^ulatinj^ tlus practice livii oaiiHos mni proceed ini^H in civil causes in this (Jourt ant annulled, ^iiiniillril, 1 11 1 • <■ • 1 II oxcopt tiioHo except tlie Ivules now in rorce respectmj^ appeals to Her am.oaiH'to Maj(!sty ill Privy Council (a) and the following Orders rrivy made under the authority of the Court of Appeal Act are substituted for the same. (o) For these Orders, see Appendix E., p. 472. *•}. Unless otherwise specially ordered by the Court a{)pealed from or a Judge tluu'eof, the security required by sections 20 and 27 of the said Act shall be ])ersonal and by bond, and may bo in the form given in the Apiicudix, muoatis mutandis. (Form A.) Provided that in any case in which execution may be stayed on the giving of security under section 27, such security may be given by the same instrument, whereby the security prescribed in section 2(5 is given. Section 20 of the Court of Appeal Act above referred to has been re-enacted with some modifications in section 38 of tho Judicature Act (see ante, p. 40). Section 27 is printed in tho note to Rule 8. Notice of Appeal : — The first step to be taken in an appeal will be tho giving of notice of appeal under section 38 of the Act. In England the more communication by an unsuccessful party to his opponent of his intention to appeal is not sufficient notice of appeal (In re Bbjth A Youmj, 13 Ch. D. 416). In Ontario the form of notice and the mode in which it is to be given are provided by sec. 30 of the Appeal Act (R. S. O. c. 38) which is as follows : ' ' 30. A party desirous of appealing from any judgment of a Superior Court or of a Judge thereof shall file a notice of appeal with the Registrar of the Court of Appeal, and shall serve a copy thereof on the respondent, his solicitor or agent before giving thu security required by this Act. Notice of appeal. Rev. Stat. 0. ;18, s. 30. NOTICK OF APPEAL — 8ECUKITY. 457 PPEAL. OK Maucii. 1878. loH and Onlois ig tlu) priictiiM' t iir(!tiiimilli'tl, iippoiils to Her lowing Orders of Appeal Aft by the Court Durity required all bo i)ersonal I given in the Provided that stayed on the security may by the Hecurity re referred to has leotiou 38 of the in an appeal will 38 of the Act. insuccessful party sullicient notice of II which it is to hu ct (R. S. O. c. 38) ny judgment of a a notice of appeal shall serve a copy before giving tlie "2. Such notice may ho in the following form ; "In tiik OorrtT uy {q. I?., iUn. okC. I'.) " Hutween A. It., IMaintiir (Appiillant or lloHpontlent) nnd Furni (!. \)., Dttfondant (RcHpoixlent or A])]u:nunt) {ur an the cane may rt'i/iiire). "Take notice that A. i>. the ahove named i'laintitl' hereby appealH from the (jiulgment, decreii, rule, order, <»r deoiHion) Iinmouiieed in thJH cauHo (or inatter), by thJH (/'ourt (or by Mr. luHfcice ), on the day of IS , whereby a rule nini, ol)tained by the I'laintifl' for a new trial, was dittcliargod (or CM the caw imii/ he)," Section 3S of the Judicature Act provideH that no appeal Hhall bu allowed unlcHH notice of apix^al iH given aH mentioned in that H(!ction within one mouth after the judgment eomjilaiued of, iu>r unlcHH Hecurity lor eoHtw Ih given within three montlm after the jutlgment complain(td, or, in etudi caHe, within hucIi further time aH the (Jourt ap|)eiiJed from, or a •Judge thereof, may allow. The langiuige of the Hection in very Himilarto that of (Jon. Htat. IT. (1 c. 13, H. '2^}, uniler which it wan held that the mere statement of an unexplained over ij/ht cm the part of a Holicitor is an inHulIicient ground for extendmg the time for giving notice of appeal, though it might be r»therwiHe if ;ui important ((ueHtion of land were involved, an to which there was a contliet between the Courts (ihrdim v. (L W. It. <> I'r. K. 3(H)). A Court will not grant an ext8). The fact that an a{>- Eellant has niisconHtrued one of the llules, and so omitted to ring liiHap|)eal in time, has l)een held to be not suflicient {Intvr- naliomtl J'lnanrial Society v. City of Masroiv (las Co., 7 (Jh. I). 241). There nm.st be conduct on the part of the resiKmdent to raise an equity against him (In re Mansel, Rhoil.es v. Jenkins, 7 Ch. D. 711). -SVcalso In re Blyth v. Yovmj, 13 Ch. I). 410; and Rose v. Jlickey, 7 I'r. R., at p. 3!)2. Leave to rehear was refused where two rehearing terms had passed, and the only ground for the application was that this had hapi)eued through the inadvertence of defendant's solicitor, who in)agined that the defendant bad a year instead of six months in which to rehear ( Winnttt V. Renwick, G I'r. R. 233). Security for Costs. — The security provided for by sec. 38, is only for the costs of the appeal. In order to stay execution for the costs in the Court below, further security nniat be given under R. S. O., c. 38, s. 27, sub-s. 4 {Powell v. Peck, 8 Pr. R. 85 ; see also Reward v. Heward, 2 Ch. Cham. 245. ) Instead of giving a bond, security may be given by paying $400 into Court, and leave to pay in that sum will be granted on an ex parte application [Connolly \. O'Reilly, 8 I'r. K. 15!) ; see Chatham lb Dover, E.,v. The Erie and Huron Ry. Co., 7 I'r. R. 399.) Neither the giving of notice of appeal nor security for the costs of the appeal will prevent proceedings from being taken under the judgment of the Court below, either for costs {Potvell v. Peck, supra) or to carry out any directions contained in the judg- ment, such as a reference to a Master to ascertain damages (Butkr Order 2 r ml 4r>s ONTARIO JI!l)U!ATUnR A(!T, 1881. J', t 'I '/ ^i- 1: -J Court or ,lni1j;i' may lisiii'iixn lllSIll « illl . soiial |u|H>r i(nii, II Cli l>. \:W , Mmvlmt Wnlfonl v, IViil/unl, I,. I{. IM'hy. Hi-i ; iukI Cuftim v. Citrhi/, 5 U. ')^iv(ii fio ill ti|i|)rll,'iiit MM ii iiiiittrr of ri^hl, ii|>oti ^'iviiiu MicHiTiirify liy tlint Ki'i'iion |ir«'Hcrilii ('unijihtll v. h^ihranh, (> I'r. 15. ir»l> ; /''or V. i'lniinfit ,(• Xiiii.i'iiiiii h'lilhniii ('itiiiitiii)ii, 'JO Or. M't'J iilid n«'(;. '27 |»rinfi'd in notn to Order H, hifnt). 'I'lic Coiirl, iniiy on hiioIi iui ii|i|ilii-.'ilioii coimidiM' wild her tlm a|i|iriil in frivcdoim {Nnrnil v. Ciuiiiilti Soiithi'i'ii h'liilii'in/ ('hiiiikiii!/, 7 I'r. \l U\'2). Tim costM of fin .iiiiilicition to Hl.iy oxcMMition in l')tl^l(Uld, wliiMc Micro \H no ciiiu'tnn'iil, Hiiniliir to hcc. '27 .< Mrrri/ v. \ii-hills, I,, |{. H, ( !liy. 'JOr»). In lUinlh-k v. (htrrirk, \.. W. 5 Oliy. I.VJ, and Admr v.' Y,>ii,),j, II Oli. I». l.'iO, the iMmiH were made costs in the apitcal. In Ontario the coHtH have generally lieen in.'idi^ costs in tiie cause, hut have HoinetinicH hceii ordered to he paid hy the a|i|tlieant (hco Noi'nd v. ('iinmia S,nif/irni h'dihnti!/ ('iiiii/iini'n, ITi O. I,. .1. Mil ; 7 l*r., K. 4(»'2 ; Fox V. Tiinnito .(• Xi/iissiiiij ItiiUiiutj/ ('unijitinif, mu/ii'ii). IX, Tlio lioiid shiill 1m> )'X('(Mit(Ml liy tli(< a|i|H;lliiiit nr iHi|M'iliUil,s. or (iii«( (»r morn of tlioiii, and l»y two Hiilliinciit siin«(i(>s, iiiih>ss kucIi (toiirt or .liiil^o hIiiiII tliiiilc lit to vmiiy c.r ns(^ with tlKM^xciMition tJionuit' by tlio iiii}iclliiiit. iplMnmit. ,,, ,)■ • , .• ■ 1 If !• I I wo snliicicnt siirctu-s are reciuired. If one dicH en- hiu-oines insidvent, aMnMier will l>e ordered to ho buhatitutod (Situiutrrit v, riiniiral, 'J (Mi. ("luiin. I.W). It is irregular for .a solicitor to hocoino Huroty for tlio costs of appeal for his client [liti'kitt v. Wntijij, I Ch. ('haiu. 5). See ."iIho note to Order 7, infra. A married woman li.is heen hold to be not a pronor surety ( .Uiillii, V. /'„s,-or, 7 I'r. 11. .'J7'2. Soo K scourifcy rocjuirod by miction 27, siib- sootitin 4, siiall bo in doublo tho amount so divtictod to be p.iid ; provitled always tbafc, in oases wlioro tlie security to 1)0 ijiviMi sliall bo in m sum abovo two thousand dollars, it shall bo in tho discretion of tho Court ajiiiealed from, or of a Judge thereof, to allow security to bo given by a larger number of sureties, apportioning the amount among them as shall appear reasonable ; and provided further, that, where the amount by the judgment directed to be paid exceeds $10,000, it sliall be in the discretion of such Court or Judge to allow security to be given for such amount less than double as shall appear reasonable. Sec. 27, sub-sec. 4, above referred to, is printed in the note to Order 8, infra. What si'i'urity wliiMi (ijiy- nii'iit of iMoiioy II. AI'I'KAIi— HKCUIIITV Koll (lOHTH. ir.i) i |»n»|ii>r (•iiMc, iiH ii'|nu)ilil<' injury <>r•. Iiy tlio (i|Milir(iiit inilirk-v. (iitrrirlc, (111. I>. I.'l<>, tlic hilario tin* cdHtH t liaVO HdllM'UlimH S'lirnil V. ay- soctiou 27, Hub- so divtictoi'Mli-d IVdiii dirrctrt tlir Hiilf Ordori 5>8. or delivery of poHHeHHion of nnl piopeity or eliiittelH reiil, ^vi„it wIdh tlin Hficuiity nMiiiircd by Hectioii 'J7, hiiIi Kccliou .'I, hIiiiII ""'' "' *^ 'It'll Vri V *'f be tiikeii ill double tlie yenrly viiliH' f its .■iii'liili..w..l. disallowaii(;e. On a motion to diwallow a bond, atlidavitw may Ix; rifid in oppo- Hitioii to tlio afiiilavitn of jnHtilication made: liy tin: HiiicticH ; tlic roHpondtint iH not conlim^d to (a'oHH-i'xaiaiii.itioa of tho Hiirctit'H {(Jaiiiphifl V, Jtoi/iil (!(iii(i(lliin J{(ird; (1 I'r. I!. 4.'i), Wlajro the. Ht.atutory HMpiiri'iiiciitH an; olmcnvrd tin; bond will imt 111! diH.allowed on the j^jrouiid tiiat tin; HindicH .arc " Ht,;iiii!iii;^' .siiriitioH " of tli(! aj)(K!llaiit, in tlu; alwiJinic of H.-itinfactory cvidinrc of tlioir iuHUllicicnoy (Normil v. (Junmla Soallurn It'y Co., 7 i'r. U. ab'5). S. Tli(! ap|»(!llant may, after siicli d(!posit, make a.^^p"".!! .special application Ixd'ore the expiration of fourteen days "jay'lp" " " to stay execuition in any of the ca.s(;H mentioned in see- """'•• t" tion J7 oi th(! said Act. ti.,n within the H 'l.'iVi. Section 27 of I{ov. Stat. c. 38, al)ove referred to, enacts as follows : "27. LTjion the jierfectiny of such security, execution .siiall be Whhn i.tr- stivycd in tho original cause, except in the following cases : riiUon'^f be "1. If the judgment appealed from (brects the a.ssigniiient or fjiitijint til from iliriMttH tlio oxoiMition of » iMMivcyiiiUHi or any otiior iiiMtninioiit, ox«<(!utii>ii nIihII ikiI Im; Htaynl iiiilil tlio iiiHtniiuDiit liiiH lii'i-n cxoctititil iiinl ilii|iimiU«l with tlic |M'(.>iK)i' otiiocr of tlio ('iiiirt ii|i|toalu(l friiiii, to aliiilu tliu juili{im!iit of till) ( 'mirt of A|)|KWil ; ".'{, If tlio jiiil^iiiciit (i|)|M'iilt>il from (liriu-tH tlio hhIh or iiiiliv(>ry of posHCMHioii of ri'al |iro|ifrty or cliattt'lH rtwil, itxitinitioii Hliall not 1)0 Htay«Ml until HiuMirity lias Immmi riitiil into to tlio HatiHfa{ tlio poHHi'SHion of tho iiropoity l>y tho appollant, litt will not (Mimmit {m(Mit apiHtalod from dirootH tiio paymont of monoy, oxi-outiou Hhall not lu; Htayoil until tho appollant has ^i von Hiu'uritv, to tho HatiHfaotion of tho < !ourt a|ip(!alcd from, that o paiil, or tlio ]iait thcrtiof iiM to which the judi^mont may ho atlirnicd if it ho ailirmod only as to part, and all dania>;oH awardud agaiiiHt tho appollant on tin; appeal." AitpHliiiit 0. AftcM" tho acMMirity has \mm |)(M'foct( Mow siH-lioii ot ili(^ said A.('t, and sliali siiliiiut H\u;h draft to s.Ti'l'.M'r '" tlif ri^spondiMit, wlio shall rotiirn tlin saiiio witiiiii four Ways, with his inodilicatioiis or su^M;(^sti()nH, aiitl in tin- ovoiit of (lilforiMu;!', tho appcliant sliall ^i^ivo two days' notifo of ai) appliiMtioii to tiio Court or .Ju(l^(!, to sottlo thd caso, ill pursiiaiico of th(5 said suction ; and if in the opinion of tho (\jiirt or Judi^o, siu;h a|)plicati«)ii was occasioned hy tho unrcasonahh! conduct of t;itht!r party. such party may lie onh'rtKl to [lay tlui costs tlicroof. 10. Where tlio case lias boon sottlod hy tho ;)artios thcniselvcs, no costs shall bo taxed, oitlior botwoon party Mso scttitMi and party, or Solicitor or Attorney and client, for any not't!) i)"" matter stated in tho case, which was not reasonably allowed for, nocessary to raise tho question in appeal. The case should only contain so nuicli of tho proceedings as ia necessary to raise the questions involved in the appeal. In Par-soun v. Standtxrd Itis. Co. 4 App. 11, at p. 330, Burton, J. A., in remarking upon the unnecessary length of tho case, said: *' It appears to ua to be a very grave abuse and violation of the Rules we have mjide on tlie subject, and we do not intend to impose upon the Registrar tho task which the appellants have cast upon us of wading through this mass of matter for the purpose of dis- covering whether some portion of it may properly be applicable to this appeal, but we disallow the whole of the appeal books in Hiiiu'ci's- sary matliT .Htaioil ill HKA80NM I'OU AND AOAINHT AI'I'KAL. iirt ilirtintH. lU! Il|l|)lllllll>t, lilt iwtt! oil tlu' l»ri»- \w will pivy the from tlio tiimi of of, iviiil iiIho, ill I tlui pivyiiu'iit of limit will pay tlu> tlin pivyiiuMit of ipfllimt hiiM«iv(!ii iilcil from, tliiit 'f ,ho iippi^llaiit will tins itint tlieriMif , 1)0 alliiimi'l only I appollant on tlif il, tlui iippolliint iumI ill tho 31st t H\u;li tlfiift t" ,»no within four )iis, iiiul ill the ^ivn two (lays' Jiul^o, to HOtth' ; ami if in tin- iipplioation was of oitlior party. ists tlu'voof. I hy the ])artips botwocu party oliont, for any not reasonably ! proceedings as is I the appeal. In 30, Burton, J. A., ;ho case, said: "It lation of the Rules t intend to impose nts have cast upon the purpose of dis- perly be anplicable he appeal Dooks in the taxation. If n Himilar ciiHr Hhoiild orciir a^iiin after tliiH wanting it will Ixt our duty HcrioiiHly to conHiilcr wlictlicr it iH not a Httlli(!ient rcoHon for refuHing tliu wliolo (tontH of tlu- ap|ioal." II, The appeHatit Hhall serve his rciisons uf iippcal ahiiigwitli mihI mh part of thotlnift msc iiienliniiiMJ in the !)th Or(l«'r, and the rcHpcuHJciit HJiaJI scive his itnsons against the appeal, within ten ilnys IVoiii sinh service, or within HUt^h fnrtluir time asa.linl^o of the <'oitit of Appeal may allow. V4, If th(! apjieal is from a pai't only of the iii(l;Hpondent, 14. Upon beinj^ H(!rved with the respondent's rciasons against the appeal, or upon his havin^r made default in s(trvio(! thi^'eof, the applicant shall cause appeal I ks to he print(!d {iontaininj,' tli(! ease as settleil by the parties or thednd^e, and the n^asonsfor the appeal, and the i-easons ai^ainst the appeal, if such latter rea.sons liasc been serv(!d as aforesaid, and any noti(;e <^iven under the Kith of these orders, and forthwith dttliver onc! of such copies to the Re/^istrar by whom the satnMi. ir rciiNiiiiK at^'iiiiiNt Mill, sirvi'il, <'iitirt limy tirjir II I'll ill. A|i|ii'al liiiiikN III Im |>rliili'il iiiitl mil' riipy iiHi i| anil lill'll tlH Hialril (iiKc. I.ravr u\nj lie KivMi allrr lidiik llliMl to lllc ii'iusiiriH .'l^^'HIIIKt a[i|ii'al. Cniss aplirill iKit lirci'HHUiy ill any rase : Krs|i(iri(li!iit may t;\vi- Iiotlic (if (ilijrrtiiitis if lir ilcHJiT to vary iloriKiim. m UHfSWUi .Hi|»U«AI'l'«Mit At"!', I MM | «»vt\<»v« ly Tlti< tiMt'iiMiM Toi iiiitl iHjitliinl llit« ((|i|tiM)l mIiiiII i>iiii IT4I». j,jj,, ,, MinhMtiiMil (tl Htt« pitliilM itl' linv ltilt«\v i\)MM'tl IN, Tlti< •t|tpi>Ml ImmO(h mIimII lti> |ti iiili'il nil |iii|H>i III' i^iinil 1\«!\U'* ' ' '1'"*'''^' "*" i»nt' Hlilonl' llii» |in|ti'tit)ily, (iltil lit iji'inv i|iimiIii I'i'Ho \\\{U pii'i» lv|>o Ii'imIoiI, HI' hikkII |i|iii lv|ti« li'inliil, iiinl I'Vi'n (I'MlIt liui' nl' I'lii'lt |>iut'* mIiiiII lnt imiiiiIm'II'iI In ||h< M»inyii» \n imlox In (lio |i|i>iiillii){'i, im ii|i>iiiit midI iiIIii>i |MiHOi)M)l )Ul«Ht>in Nllltll Im> ItlllllMJ , lltll llll> tt|liMlMMN nl'llio JnilipW ol' )l»i>('n(nl !»|i|ii'(lli'i| IVnlil •illilll Mill ll! |illllli'i| « lll>t»< (|U> MlUUl> lll»\l> lllM'l! lllllMlllv iM'tllPlI ill lhl> IPI^Illlll M»|»OVl«i \\\\\ t> »1'r(«)«tMl'l> lit ll»0 MHIIIO mIimII lt(t ulviMI ill lIlK rtppoK'<, mill mIiiiM III" Miilllfii'iil 'I'lii' mI vlt' III' IliM «»)UiMi> ill »|\i< ( '(Mil ( liplow mIiiiII Iii« iimoiI mill ii'liiiiH'il in ooK mill ill I'Vt'iv j»iiii'iM'iliii(} ill ilii>i «'miiiI, il»'Himi!»tioi> " ii|>|M'llmii " III " ri>M(iiiiiil!"iil " Iti'liiy Hi>(\\i>i>ii \ M f\*t'if>i\uitt'>», ii'niiiioM nppi'iil liiiiiliM 111 I'lMildiii llii' iliilo iif tilt' lilut p>><\'l'<'«l(lUl ill ll"' "'11' "'• llllini'l', lUlll IK hIivIii (ill" llnlcM 0| till' \\\\\\y\ Ol |l|l> •UiV«'1;ll |l|lM|lllllH'4 III (III' IMHIIIIII'lll'I'IIIMIll III' lil.l »<0p\ \>1 nlllllHI.UV (IliM'i'iil ! itllli'lW |Mi< I III' liiiiilm will hull III' II' iv\v<<>l l\v (lie Ki'umli.ii, iu*i «il! Ilii' ;i|i|niiil lii> lii'iinl H>. Till' IvomikI rill' mIimII mil lllo llii> imimo wlllimil. Ilio l(\\\o\i| (', .liiil^x*. il" ilio )iii»ill«'«l H uli *^0. I( (111* |in>«« liiiM nol lii>iM» omoriilly I'mroi'lnil llio ^i»,M nnu *'>^<>'< >>>:>> tllMlIloW I III* I'OSi S 111' prilll illg, Ml' IIIIV lll'l'lillC .N\HV.^S« ; Mlll'll lllllor IIM lit |tUHl|lll|H' ^^lv,^M^ »»«mU rtUsi ji.iviui'ul v>l (>(tMtH lift iiiiiv hooiii JiiMt, Ow vii* »j| 'J'!,,, pvintoil >'!V'»o !»nil llio I'oiiio'i llion'ol' I'ltr llio tun* .Wi\vi>M o( (luM vMivl slijtll ho iliMivoi'i'il lo Iln» |{i'i(inlriir williiii I^A^'Mt^V <'»''<> >•■♦>•* •">''<''>' ''»*' :lll«>VV,lU.'l' III' (llO MIHMiril.V, llllloMM I III' *»s"<»iH\> . <>. «\u»o sliill Ito o\liMhli»\ llio (Viiirl 111" Apiioiil III' II *>r«ih m.> 5 , , ,. , ', 111 111 iK^Yi ^^ «1)»- •Mt.lsjv. .'luvlm o.iso i»l m\);loi'( or oinissmn by Mif ii|i|iiMliiiit iwiss.Mi t«v> 1^^ oomplv witU this \'n\K\ tho vospnuilonl. imiv iipplv lo ti ,»n»i;i>» vn>on (wo iIuvm no(ii ii|ipi»\l«M' (lismissiuij tlio iippoul ms for wmii. nl' proMoiMilion, .HUvl J ho .hhliji* in!«y lIuMoupon m.-iko suoli onlor mn In ilis miss\ujj tho !»ppo!\l or otlu• ||{^, ApjHVils sh;>ll ho iM»to«H>il hv < lit^ K»\u[islnir upon tiio ^vhi^v* list tor hoariuij, ;»t tho noxt (Vijular sitlinu[M of llio (Viiirt *^-^J!*' . whioh sh;»U oonuuonoo ut lojvst oisfht tliiVH iiftor tho n)coi|it tt IVM ^» U>Wl««V, lll»t l»««|tfl(()|t>l|l, (It MKi'll »(>M|i(()l(|»MlfM (1H nfv (llHtcMy HH^I iiHt'i'loil liv llt'> M|i|i<.|il, will) (tfilii-K (iC liMtiiii); )ii, l»>ri«tt, i,-i(i-(ulvpfi Mcvi'li iliiVM lii'liiM' llif IIimI liny ni hiicIi M(lti(i(.(M, luirl (,0"""""''"''* mIimII III, (llt< M" '( lllIK* llf'IIVKI III lll(* l'(«H|i(llll|»Wll, l,W(» pllllli'il llMulcM ^ •|{|, If. ill III" "I'illi'MI 111' lliK ('(Hill- (lliv 1.111 I icM (KrI, ''"'",' '""7 II i I I I I n ni,\tf>hthi't HI'I Vl'tj IHIJMll III ltl< Mill llic'l, l||l> I Mini tUI[y MilCcI, MM vif'O (>"r»l>"i I'l li(» In III" (KMiIk. IIIhI Mlliy |iiihI |ilt|l<> lllO 'h'HI Jin/ of (.ll»< l||l|lh|ll I',!iVl'|'','(pr'" I'lM' llllll |llll|in'll« IMillll Mllcll iMtllfl IU1 IMItV ««'»>((( ilMil, ' H"t! '"f ' ' ' ll,„l (.iipf'rtK "I'll Ir "il Ih'I pill I V II''I'I"'"Im '" <"l'l'*'"' "• I ll" lll'ilH-l lliiV "' '"'''f . I 1 I il I II < ' . t .1 l"Klvfnll N In iiii|i|Hi|l Ml iokImI till' (i(i(i('i;l, III" ' Miiil (riiiy lii'Mf III" ,i,,|„..,,(',,.(f| llllinl llMl I V, iIImI t HIV Uiv" il|ill/lll"lll. willlMlll, lIlf'jlllM "">V (■'"' »•"• vi'IiIImii III' Mil' jiiitlv "•• ii"t;liw>| i(i({ In m|i)ii'mi, mc tuny |himI|imiii> IIik liiMiiliii^ iijiMii |iHyiii"iil' lit Miii'li mimIm mm lIlK ( tiilli'l hIimII iIIiim'I., !|ft, I iili'i Ini'iilMt V M)i|ilii'iili < 'miii I, Ml M .fii'ljm (iitcfl'rf-i mIiiiII Iik IKH'Im liy liiilii'<< nl' iiinlinii Hii|i|ini Ind liy iini'liivil. „',',^f,,"',,'','„ »,« In lin Illml ill |,||i> nlliio nf iJio Koj/ImI on IioImim (,|,n (imIicm ''V '"'""O "' , , " (.,r.l|..fl III llinll.fl IM Mi>i vimI 'HI, 'I'l Ml" nC iMMlinn Lm^/^IIk-i wiMi io|.|cm nl' Mi" '/,;;„'';'|'*;'*^ iilllflm ilM llloil mIiiiII III* M"iv"iI III, ImtMl, l.wn I'liwr ilnyH'ity* linl'nii' llin liiiin nl li<iH"M llin lJ";^i«t,tar hlmll rinf, f-iix )|io umi $20 liir^iT CniiiiMi!) Wu'.H l.limi ^\i) l.n tJio n(;riinr (;n>iii-«<|, himI ',;;'^7;;'J;'* !?"!() In iJin jiiiiinr (/'niinHnl ; ami in iin <;»«<; ifinrn l.lian i"*"'l in !^K() to l.lio Hciiinr (JniiiiHol ami 8r>(» to tlif; junior r'ouriw;!. ,'lJ,,lToiii'al books to be Vriutiiil. Orders It shall not bo necossary to oortlfy or transmit tlio 39-45. (^vidonce, or tho objc.'ctions or (exceptions tlioroto in uny case in whicili tho appeal is fVoin a iutlij;nient, or docision upon tlu^ pl(!a(lino;s, oi' npon any action not rounded upon the evidence. ' (Wedno.sday, May I'Jth 1880.) Ai.ponis 40, An appeal shall bo sot down to bo hoard at the |^,'J",'i|'"i',I? first sittinj^'s of the Court for tho lioiirinj,' of ai'guinents, heard at sii which sliiiU conniHUico after Uw exi)iration of thirty days tin^s ((.111- ,. ii 1 • • 1 • 1 i- iiieiuiiiK :io troni tlie ilecision coriiphimed oi. days alter 41. An appeal shall be scet down for hearincr by de- livering to the Registrar of the (Jouit of A[)peal at least (Mf^ht days before the sittings at which the appeal is to li(>ard tho ccrtilied copy of tho j)Ieadings, ])rocoedings evidence and other matters reciuired by section 41 of chapter 43 of the Revised Statut(!S of Ontario, and ten appc^al books for tiuj use of the Judges of the Court of Appeal and the officers of the (..ourt. 43. The books shall be printed on paper of good quality, on one side of the ]>aj)or only, in demy quarto form with small ])ica typ(! leadcul, and every tenth line of each page shall be numbered in the mai'gin, and a state- ment of the reasons of ap})eal shall form a part thereof. What books 415. A full copy of tlio pleadings shall not be printed eoiit'i'in. ^i^ t^''*' ''*wks, uuless it be necessary for the pro[)(!r con- sideration of the (piestion raised upon the ai)i)eal, ex. (jr. in questions arising on demiuTor, or in arrest of judi,'- nu'ut, or for judgment ?/o?t ohsf- u a part thereof, ,11 not he printed ■ the proper eon- lie appeal, ex. (jr. I arrest of judi,'- fidicf.o. In other substance of the ice with the ex- to be intelligible. it evidence whioli jal, but the books nnl by the Judge ial by a jury, and )y himself. not be printed in material to the such parts as are it be unnecessarily disallowed on tiix- 40. All formal mattens, such as copies of tlio motion Orders pap(U'S and rules discharging or making rules »/,ft alwolute 4ii'63. shall \u) omitted, but such r»'fcivnc(! shall be marh; t() .li'.J^'j"™'^',, them including the dates ther(M)f, as may appear n(!e(>ssary niniidu' for giving a clear and intelligibit! .statement of tlie ca.se. lui.'s'.'&r-. |l() III' iiiiiiUi:f and with a copy of the printed appeal book, and of the il'sfrvfiri.' grounds and reasons of his a-pix^al. In case the nispon- ." "''"•'■"■, (umt IS 01 oi»imon tliat any necessary matter has been Dtniited omitted, ho m:iy at any time Ixifore th(! hearing leave {r;7i<'iify '"^ with tli(! Registrar a memoi"anduit> '-rielly referring to*'"'!' '■" such omitted matter. ''''"' "^''' 49. Hervico of all necessary notices may be made either i!^"s'r!m.!i" )n upon the attorney or upon his town agcMit, in the .same t^^'^'"'"''-^' """ manner as it the suit were m one ot the buperior (Jourts. us in sup,- rior Courts. 50. If the foregoing rules are not complied with, the if rules not appeal shall not be heard, unless the Court or a Ju(lge '^'juV. ilpiH'.'i shall on ajiplication made upon two days' notice to the "J')^ '■" '"- respondent otherwise order. 51. The costs to 1)0 taxed and allowed upon appeals s<'ii« "f from County Courts shall be on the same scale as formerly as q** Ti'Zr allowed upon appeals to the Courts of the Queen's Bench ^ *'■ or Common Pleas : And a sum not exceeding in any |2, may be allowed for correspondence during the pro- gress of the appeal. 5*i. All books, as well in Superior Court as County {^f'?''*' Court appeals, shall contain the date of the first proceed- contain ing in the suit or matter; and the dates of the filing ofl^^':;!','^ "'" the several pleadings shall bo stated at the commence- !>ro(:c. i> liSil '^ 408 ONTARIO JUDICATURE ACT, 1881. Orders the first Tuesday in March, the second Tuesday in May, 53 62. the first Tuesday in September, and tlie second Tuesday in November, or in case any of these days shall be a legal holiday, then on the following day. If neeessary, 54. In case of sittings at any other time being deemed lie*ordered. necessary or convenient for the despatch of business, due notice of the time of holdinc: the same will be given. Vacations. Two annually First and jlast (lays named ncludcd t herein. 55. TheT'e shall be two vacations, namely : the long vacation commencing on the 1st day of July, and terminating on the 31st day of August, and the Christ- mas vacation, commencing on the 24th day of December and terminating on the 2nd day of January following. 5G, The days of the commencement and termination of each vacation shall be included in and reckoned part of the vacation. Not reekon pd in com 5T, The time of either vacation shall not be reckoned imtation of in the computation of the time a])pointed or allowed by hi'c.'a*"^'^ these Orders for any act or proceeding, excejtt in the case appeals. of County Court appeals. Time for 58. The Court Or a Judge shall have jjower to enlarge aet"ic!, or abridge the time appointed by these Orders for doing "'•^y j",,""^' any act or taking any proceeding ui)on special applica- .-ibridged by tion, and upon such terms as the justice of the case may Court or rpniiirp .Judge. require. 50. In all cases in which any particular number of days, not stated to be clear days, is ja-escribed by these im-iudi:d in Orders, the same shall be reckoned exclusively of the first No money is to be paid out of Court excei)t upon an order of the Court or a Judge obtained upon notice to the opposite party. 00. Money is only to be paid out of Court upon the cheque of the Registrar, countersigned by a Judge. Orders 62-66. Bank of C'lirmici'cc. Wlitt.Ml iliriMtiiiii fill- that i>ur- JlDSf to 1)1! Kiviii by HeKistrar. Duiilicfttc i-t'Ccillt.H to bu obtained. Paul oiit oriiur of JuUi;c, ami by On phcqiio <'oiintor- sitineil by .Iua«e. APPENDIX. FOILM A. Know all men by these presents, th.it we {naimvcj all tliK Form of obligors with thdr placcx of rcmlrncci^ and addifioiix), are jointlj^ apiiealbond. and severally liekl and iirmly bound unto (iuiiiuihj the ulilhji'c.i iviih t/u'ir placea of rv^hlcnce ami addiloiis), in die penal sum of dollars, for wliieli payment, well and truly to be made, we bind ourselves, and eaeb of us by himself, our, and each of our heirs, exeeutors and administrators, respectively, Hrmly by these presents. Dated this day of Whereas (the appellant) complains that, in the giving of a certain judgment in a certain suit in Her Majesty's Court of Queen's Bench (or of Chancery or Co'jimon Pleas, as the cane may he), in the Province of Ontario, l)etween (tidinuvj the partle.t to the. C( nxe) , manifest errn: hatli intervened wherefore (the appellant) desires to appeal from the said judgment to the Court of Appeal. Now the condition of this obhgation is such, that if (the appellant) do and shall effectually prosecute .such appeal, and pay such costs ami damages as shall be awarded, in case tiie judgment aforesaid to lie appealed from shall be alHrmed or in part affirmed, then this oljligation shall be void, otherwise to remain in full force. .Signed, sealed and delivered, in the presence of erce at Toronto, A. B., Plaintiff, V. C. D., Defendant. FORM B. In the (ntyle of Court). I, E. F., of make oath and say, that I am a resident ^jj,'"™ °J iuliabitant of Ontario, and am a house affidavit of justitlcation 470 ONTARIO JUDICATURE ACT, 1881. holder in, {or a freeholder in , ) and that I am worth the Huni of , (the sum mentioned as the penalty, or such sum 18 the deponent is liound in,) over and altctve what will pay all my debts ; and I, J. II., of am a resident inhabitant of in {or a freeholder in sum {as in t/w foniur cu-sv) of l)ay all my debts. The above-named deponents, E. F. and (i. II &c., the day of 18 , before me. Commissioner, &e make oath and say, that I Ontario, ond am a householder ,) and that I am worth the over and above what will were sworn at Koiin of lirii'f state- ment of pluudiugu FORM C. Action commenced by writ dated 2nd Jiinuary, 1878. Declaration : Filed llith Jamuiry, 1878. Ist Count. — Trespass to goods. 2nd " — Common Counts. Pleas. Filed ;J4th January, \S1S.{ To 1st Count. 1. Not guilty. 2. Not possessed. 3. Leave and license. To 2nd Count ; Nunquaiii indebitatua. (Replication and otlier pleadings to be in a similar form, but sufficiently full to be intelligible. ) FORM D. Tariff. Fees to Solicitor or Attorney, a ft between party and party, and also as betiveen Solicitor and Client. Instructions for demand of assignment by debtor, or for compulsory liquidation, or for })etition, where the Statute oxpi'cssly requires a petition, or for brief, where matter is required to be argued l)y counsel, or is authorized l)y the judge to be argued by counsel, or proceedings on appeal §2 00 Instructions for other necessary ])roceedings 1 00 Drawing and engrossing petitions, deeds, affidavits, notices, adverti'Timeuts, pleadings, and all other necessary documents or papers when not otherwise expressly provided for, ])er folio of 100 words, or under 20 Making other copies when required 10 (When more than Jice cojjies are required of any notice or other paper, five only to be charged for, unless the notice or paper is printed, and in that case printer's bill to 1>e allowed in lieu of copies. ) Drawing schedule, list or notice of liabilities, per folio, when number of creditors does not exceed twenty .... 20 When the number of creditors therein exceeds twenty, then for every folio of 100 words over twenty 10 INSOLVENCY, TARIFF. 471 ilar form, but narly, and also Every common affidavit of service of papers, including attendance /JO Kvery coninion attendance i>0 Every special attendance on juilge, or before assignee or at nieetin.us of creditors '2 (M> For every iiour after tlie iirst 1 00 (To 1)0 increased by tlie jud^e in liis discretion.) Foe for settling special conipositiou deed, or consent to discharge 2 00 Fee on writ of attachment against estate and etl'ects of insolvent, including attendance 2 (X) Fee on rule of (.'ourt or special order of juilge (whether uifii or absolute) 1 00 Fee on .iith. (>d (fst. inchiding attendances 1 00 Fee on xuh. durcx tcnmi. including attendance 1 'In And if al)()ve four folios, then for each additional folio, over such four folios 10 Fee on every other writ 1 00 Every necessaiy letter oO Cost of i)rci)aring claim of creditors, and procuring same to be sworn to, and allowed at meeting of creditors, in ordinary case, where no disi)ute I 00 I'reparing for publication advertisements rc([uired by the Statute, incliuling copies and all attendances in rela- tion thereto 2 00 Preparing, engrossing, and procuring execution of bonds or other instruments of security 2 00 Actual travelling expenses, not exceeding in any case 10 cents per mile, actually travelled Actual disbursements for postages and other necessary expenses Bill of costs ; engrossing, including copy for taxation per folio 20 Copy for the opposite party 50 Taxation of costs 1 00 No allowance to be made for unnecessary documents or pa])ers, or for unnecessary matter in necessary documents or papers, or for unnecessary length of proceedings of any kind. Counsel. Fee on arguments, examinations, and advising proceedings, to be allowed and tixetl by the judge as shall appear to him proper under the circumstances of the case. Fees to Clekk. Every writ, or rule, or order §0 50 Filing every affidavit or proceeding 10 Swearing affidavit 20 Copies of all proceedings of which copy bespoken or re- quired, per folio of 100 words 10 Every certificate . 50 Taxing costs 80 Fee for keeping record of proceedings in each case 1 00 Any search 10 A general search relating to one insolvency, or the insol- vency of one person or firm 50 J iy 472 ONTARIO JUDICATURE ACT, 1881. For every hearing in any case on ft])plioation8 for diflchargo, contestations or othor spcoial liuaringH, wlierc the at- tendance of the clerk is deenictl necessary by the Judge, per hour 50 SHEIUFK. Same as on corresponding proceedings in Superior Courts. WITNESSES. Same as in Superior Courts. In case of any proceedings not provider! for by this tariff, the cliarges to be tlie same as for like proceedings, according to the tarili's of the Suiierior Courts. Thomas Mohs, C, ,/. fiF.O, W. IJUHTON, J. C. S. PAT'l'KItaiJN, J. Jos. C. A10iiKI.so^, on t(H*ms as to security, imder the sixteenth section of the afore- said statute, chapter thirteen, or otherwise, as the cir- cumstances or nature of tho case may require. 34». That the bond referred to in the foregoing Rule, number twenty-nine, shall be in the following form : — Know all men by these presents, that we, {naminff all tJie obligors, with their places of residence and additions,) are jointly and severally held and firmly bound unto, (naming the obligees, xvith their places of residence and additions, ) in the penal sum of i:'^:, SSI AIM'KALS TO I'KIVY COUNCIL. t7;5 iHchargo, [i the at- ■ by the r Courts. no thia tariff, the cuonliiig to tho AH, r. ./. niToN, J. '.USON, J. ausoN, J. two thoumuiil (lollarH, for whicli payment, well ami truly to l)« iiiaile, wf ill till! year of our l/ird, IS \Vliorea« (//if np/if/ldiif) allugeM, that in the giving of judgment in a certain «uit in Her Majontyn Court of Appeal, in Ontario, hetweeii {thr rr.yioudcnt) and {ffic (ijij/clldiil), manifeHt error hath intervened, wherefore {f/ir n/ii/i'flintt) denires to appeal from the said judgment to Hor MajeHty. in Her Majesty's I'livy Council. Now the condition of this o})ligation in such, that if ( number eight. [No. d of present Ordera.J { COUNCIL ses of appoalto rsonal, and by ich bond to be )r one or more cept in special number three, 1 of two tiiou- sliall 1)0 to the diall iind will and pay snch case the jndg- inod, or in part ication to the 1)0 by motion be ui>on terms n of the afore- ise, as the cir- lire. bregoing Rule. )wing form : — (naviing all tlie ions,) are jointly ming the obligees, the penal sum of Ariir:NDrx.-ii. ay- •* IP: i! L riMK TAIJLK. OitDKK Ti'J iIoiiIh with tiinu ({(iiu'i'iilly ; ami of thu onlnr^oiiK'nt or alimlt; inriit (if till' iKMiiiil ullowod tor tiikiiiu uiiy iircx-ci'iliii^. 'I'Ik- tiiiu- for liflivtM-iiig or (iiiKMidiiiy iiny plcivdiiig imiy lio iMiliiryoil l»y coiist'iit in writiiij: wifclioiit iiiiy ii|i|»li(!iitioM to till! Court by 1^. 458. Ami wiilo powiim ari' givou to thu ( Joiirt umlor U. 4(32. A( KM MI NT, Aftcr time for appearance A|i|>!i(;iitioii for. has expired Rule 87. AKi-'iDAvrr, By iilaintitV within 14 days Filing, wliori! L'Vi- after consent ; list of, to tluneo taki'ii I'.v he didiviTcd Rule 301. ooutiunt. By defendant within 14 days after delivery of ahove list, or such other time as parties may agree upon or Judge at ('ham- hei'H allow , Rule 302. By id.iintitl' in reply within 7 days after the expira- tion of tlie said 14 ilayH, or such other time aa aforesaid Rule 303. Notice to cross ■ex- Within 14 days after time amino on. for filing allidavits in reply, or as a (!ourt or Judge may specially ap- OF point Rule 304. AM KN DM 15 XT PLEA 1)1 N( IS. By leave or order, or hy Of statement of consent at any time .... Rules 178, 183. claim. Once without leave before time for reply ; or, if no defence delivered, 4 weeks from ap])eai ance of defendant who shall iiave last appeared . . . Rule 179. Of counter-claim . Without leave before time for pleading to reply, and before pleading to reply; or if no reply, 28 days ler- from defence Rule 180. In cases not ot At any time by leave Rule 184. wise provided for. liy opposite party, Within 4 days after de- in answer. livery of pleading amend- ed under Rules 179 and 180, or by leave within such time as may seem just Rule 182. TrMK TAMf-K. 47.'. iiiitrit or aliridy Tlie tiiiH- fill msL'iit in writing' vitlu pDWcrH arc AMKNDMKNT OK l'LKAI)IN(lS-rW. Avdiiliinci! (if nnlur 14 d;iys from date of order, giving Ifivvi'. if no (ttiiir linii' lie Mpeci- lied Rule IHf). DiHiillowiuicc, iippli- VVitliin 8 days aft( • ihe cutiitii for. delivery of tiie amended pleading Kule IHi. htilivi^ryofomciukd Within time allowed for pluiuling. nmeiidment \i\\\v. IHH. AI'I'KAL, Dtilivcry of cjimu to Within 30 ilays after al- lUigiHtrar. lowiuici' (if seeurity .... A]»ii. ( >ril. '.'1, From (!(iiiiity Court 4 day:< Horn the decision •Mnlgc, MaHt(M' in ap|i. .(UmI againHt, or hucIi (JhanihurHiirliOcul further time a.s allowed. Rule 427 (h). MaHtiT. From Judge at Within 8 days from the de- ('liainliors. ei.sjdn ajipealtifl aj^'aiuHt. . Kule 414. (living notice of ap- peal. Within 1 month tiuiii juii;.'- ment eiimpluim^il of, or Hweli further timi! as the Court apjiealed from or a .ludge thereof may allow. Act, s. :{8, (riving Hecurity for Within 3 month.s after the coHta. judgment, or within sueli further time as the Court or Judge aforesaid may allow Act, 8. 38. Moving to disallow bond. Within 14 days after ser- vice of notic(! of tiling . . App. Ord. 7. Moving to stay exe- Within 14 days after de- oiition. jiosit of liond for seeurity Api>. Ord. 8. Ileturn of draft case \Vithin 4day.s frcun service App. Ord. !). V)y respondent. Service of notice of At least 7 days before lirst hearing. day of sittings of the .. Court App. Ord. '2'2 Service of reasons AVithin 10 days from ser- against appeal. vice of draft case App Ord. 11. AI'PKARANCE, I5y defendant within 10 days from service of the jurisdiction. the writ is the time there- Rule 7 an 1 Form 1 ill by Hmited Append IX A. But he may ajipear subse- quently at any time be- fore judgment Rule 61. Without the juris- The time varies according diction. to the place where de- fendant is served Rule 4t). By third party Within 8 (lays from the service of the notice upon him Rule 110. A pplication by party 12 days from service of added o" change order, or, if necessary to of interest to dis- have a guardian ad litem w 470 ONTARIO JUDICATURE ACT, 1881. I< i 1^ .! i: i\ t\) i fi i' ' If '^ APPEARANCE, Co». ohargo or , vary above order. By party brought iu by eountcr-ohiim. In recovery of laud by nurs(tu not de- fendant. Wlieru defence lim- ited to part. (;01JNTKR-CL.\IM. Application to ex- clude. Appearance by party l)rought in by DEFENCE, STATE- MENT OF, Where statement of claim tlelivered. Where statement of | claim not re(iuired • Where leave given to defend. Where service out of Ontario. DEMURRKK, Delivery of. El "-y of, for argu- i;-. at. Notice of entry ENTRY F()l{ TRIAL EXECUTION. See Writ of Execution. (iUARDIANm//(>»i. Notice of applica- cation for appoint- ment. appointed, then 12 days from his appointment. . . Where order is served out of Ontario same time as for appearing to writ. . . Same regulations as to ])arty summoned by writ of summons Notice to be given forth- with on entering appear- ance Notice thereof to be given within 4 d.iys after ap- pearance Any time within 3 weeks from the delivery of the defence Same as party served with writ of summvms Within 8 days from the delivery of the statement of claiui or from the time limited for appearance, whichever be last ; unless extended 8 days from appearance, unless time extended.. . . Within time limited by order, or if no time lim- ited, then 8 days from order Varies according to place of service Within same time as any other pleading. . May be entered immediate- ly ; if not entered with- in lO tlays, demurrer held sulHcient On the day of entry Not later than third day before Assizes or sittings except by leave After expiration of time limited for appearance and 6 clear days before the hearing of applica- tion Rules 387 and 389. llule 390. Rule 166. llule 65. Rule 66. Rule 168. llule 166. Rule 160. Rule 161. Rule 162. Rule 46. Rule 191. Rule 195. Rule 195. Rule 264. Rule 69. TIME TABLE. 47' iiVAlUnA'SadlUem, (Continued). Application to vary order as to parties under disability added under 0.44. INSPECTION OF DOCUMENTS. INTERPLEADER. JOINDER OF ISSUE .lUDGMiJNT. Application for leave to enter linal judgment, under Rule 80. Application to set aside when ob- tained by default of appearance at trial. JUD(iMENT, MO- TION FOR. Where leave re- served. Where no leave re- served. When issuos ordered to be determined h.ive been deter- mined. When some issues only have been determined. 12 days from appomtment of guardian If all the documents re- ferred to in the notice have been set fortli in his atiidavit of documents within 2 days, and if any have not been set fortli, then within 4 days from service of notice the party served shall appoint a time within 3 days in which the docu- ments may be inspected. Any time after delivery of writ of summons and be- fore defence Within 4 days after the delivery of the previous pleading By summons returnable not less than 2 clear days after service Either at the Assizes or sit- tin<,'s at which trial took place or in Toronto To be set down and notice given by the party, if no other time limited, with- in 10 days after trial. If plaintiff do not set down and give notice within 10 days, defendant may set down and give notice. If plaintiff do not set down within 10 days after his right to do so has arisen, then defendant may, an(l give notice to other parti„i By leave, without waiting for (letermination >•{ others Rule 889. Rule 'iS'i. Rule Rule 175. Rule 81. Rule '270. Rule .SI 8. Rule .SI 8. Rule 318. Rule 8n>. i61 I ] -' '■> I i i i i I +78 ^'H,' ONTARIO JUDICATURE ACT, 1881. JUDGMENT, MO- TION FOR. (Con). fyimitation of time for moving. On admissions in the pleadings. NlOW TRIAL. If trial previous to oomraencement of sittings. If trial during sit- tings. 1 f decision on a ques- , tion reserved is not given until after the com- mencement of the sittings. Time for shewing cause. NOTICE OF MO- TION Unless by leave. When defendant has not appeared. NOTICE OF TRIAL, By either party. By defendant. Long and short notice. PAYMENT INTO COURT. Notice of acceptance. 1 year from time party first entitled, unless by leave. As soon as the right to the relief appears General powers of adjourn- ment, &c Within the first 4 days of the next following sit- tings Within 6 days, if so many remain of the sittings, otherwise in first 4 days of next sittings Within 10 days, if so many remain of the sittings, otherwise in first 4 days of next sittings 8 days from making the order 2 clear days at least He may be served any time after times limited for ap- pearance, without leave, or by leave along with the writ or any time after After the close of the plead- ings If plaintiff does not give notice when the pleadings were closed, 6 weeks be- fore the commencement of the sittings, def enrlant may move to dismiss. 10 days' notice, unless the party has consenred to take 5 days' notice. No- tice to be given before entering the action Any time before or at de- livering defence and after by leave ; if before de- fence notice to be given within 4 days from re- ceipt of notice, or if first stated in defence then before reply Rule 320. Rule 322. Rule 321. Rule 309. Rule 309 (h). Rule 309 (a). Rule 308. Rule 407. Rules 410, 411. Rule 255. Rule 255. Rule 259. Rules 215, 218. TIME TABLE. 479 PAYMENT INTO COURT— (Con.) Notice of acceptance. PLEADINGS. Closed. Subsequent to reply Copy of, to be de- livered to proper officer. REPLY, By party brought in by counter-claim. STATEMENT OF CLAIM. If not dispensed with. New defendant to have copy. Noti":e in lieu of, and further state- ment ordered. TRIAL. See Notice of Trial. WRIT OF MONS. SUM- C'oncurrent writ may be issued. Date of se.' icc. WRIT OF vECU- TION. Between original parties. After change of parties. If the sum be accepted in satisfaction of the whole cause of action plaintiff may tax his costs and sign judgment for them if not paivl within 48 hours On joinder of issue or ex- piry of time for amending. Only by leave, and then in the ab>ence of any direc- tions within 4 days from the last pleading On the day Ijefore day for holding the Court ^Vithin 3 weeks of defence, or the last of the defences. Same as if he had been serv- ed with statementof claim. To be delivered within 3 months from appearance, unless otherwise ordered. With the writ of summons or notice, or afterwards, within 4 days after ap- pearance Within such time as limited by the order, or if no time mentioned then same as statement of claim In force for 12 months, but may be renewed for 12 months Any time during currency of the original writ To be indorsed within 3 days by the person serving. . . May issue witliin 6 years from recovery of judg- ment, or by leave after 6 years By leave Rule 218. Rule 176. Rules 174, 175. Rule 262. Rule 173. Rule 167. Rule 158. Rule 106. Rule 159(6). Rule 31. Rule 27. Rule 44. Rules 355, 356. Rule 356. "I'l ■ I ' I , lt!m ',:' ■ ■ 1 ^ 1 1 ; i ' B i t i t. .li ' { ' ( iil N li wh. 1' INDEX. ABATEMENT See Change of Parties bt Death. &c adding parties on, 315 ^i^ia, «kc, assignment, &c., 313. bankruptcy on, 313. death, by, 313. former practice as to, 313, marriage, by, 313. pleas in, abolished, 186. ABOLITION, abatement, plea in, 186. audita querela, 298. bills of exceptions, 359. Courts, Appeal, 4. Chancery, 3. Common Pleas, 3. Queen's Bench, 3. cross-ai)peaIs, 461. sjectment, 93. error, i)roccedings in, 359. local venue, except in ejectment, 252 multifariousness, doctrine of, 166 new assignment, 186. iiUi priux record, 262. pleading, former rules of, 171 po.itea, 262. Terms, legal, 30. withdrawal of record, 203. except by consent, 204. ABSCONDING DEBTORS 92 ACCOUNT, application on notice, 139. directed on admissions, 278. at any stage, 245. on default of appearance, 138. on motion for judgment, 278. forms of pleadings in action on, 393 specially claimed by writ, 99 expenses of office of, how paid. 70 office of, 360. property vested in, provisions as to, 69 Kegistrar to act as, until othe- .'appointment, 361. ACTION. And .w JoiNnER of Causes op Action administration. And „, ,< Ai.ministbation. by creditor. Indorsement of writ, 9G ' forms of indorsement of writ, 379. of pleadings, 394-396. parties umler Chancery Orders, 58-61, 151 31 If 482 ONTAUIO JUDICATURE ACT, 1881. I !.■'< ft r- ' AGTIO S —{Continued). all stcpy to 1)0 taken in same Division, 33. assignir.c'iifc of pivrticuiar, to certain Division, 33. deliuitii)u of, 80, 8;{. Divisions of Higli C'ourt, assignment to, 33. form and comiuenccmeut, 83, 92. forms of pleadings in vr:.iou3. [See Pleauing, Forma.) hearing of. u obtained, 140. parties to proueedinga, 105. pa.ties under Chancery O.-ders nS-Gl, 151 ADMlNLSTHATol;, actions by and against, 148. ADMISSIONS, 244, 24r>. Chancery doctrine adopted, 190. costs where notice given, 244 documents, notice to admit, 244. And see Documents. ellect of refusal to admit documents, 244 facts in pleadings, 100. manner of making, 189. motion on. ,s>e Motion, Admissions notice to admit, 214. proof of admissions, 245. to be made by each party in pleadings, 244 A FKIDA VIT. Ami sre Evidence. account on default of appearance, l.'JS, i;]9 allowing seiviee of writ out of jurisdiction, 116 alterations in, ,S57. application to attach debts, on, 392. commissionei-s for taking, 71. cross-examination on, 270. defendant's, where writ specially indorsed, 137 documents as to, 391, ,'J92. erasures in, 357. evidence at trial. See Evidence, Affidavit form and contents of, 357, 2G5. garnishee order for, 392. illiterate persons making, 358. indorsement of party filing, 357. interlineations, 357. interlocutory motions on, 265. interpleader, 393. jurat, 357. may be read at trial by leave of Judge 264 oflSce copies of, 358. of service to state date of indorsement, 114. of service of summons, form of, 390. ' , on signing judgment by default, 126." on suiug out writ of possession, 312. plaintifi's where writ specially indorsed 133 print, partly in, 352, 357. service of, iii default of appearance, 125. stamps on, 358. writing, partly in, 352, 357. ':7J^^'''^' ^'' DOCUMENTS. Se. Documbkts. DiscovKar. forms of pleadings in action against, 396. 483 ..'!f ^'f^ I ■■J' 4S4 ONTARIO JUDICATURE ACT, 1881. AMKNDMKNT. Anin. dates of pleadings to be mentioned, 462, 467. delivery to liegistrar, 461. to responcient, 4(>2, 463. printing, 461, 462, 4(56. nou-complianoe with Orders as to, 462. bond, 458. Sec .Securit^y for Costs, wfro. case, in ajipeals from High Court, 460. contents of draft, 460. costs of unnec<;ssary matter, 460. printing, 4(51. return Ity respondent of draft, 4(50. service by appcdlant of draft, 460. certificate of judgment, making an order of Court aijpealed from, 464. notice of settling, 464. Chambers, from, 3!>,"32S, 337. Court of Appeal, to, 3!). Divisional Court, to, 39, 328, 3,")9. fresli evidence on, 328. how niiule, 3.37. time for, 328, 337, 338. time expiring on Sunday, 329. ■ ' clear days, " 4(58. consent order, from, 38. costs, affidavit of service, 463. no ajipeal for, wlien, 38. of postponement of hearing, 463. ta.xation of, corrcsj)ondence, 463. counsel fees, 463. fees generally, 463. unnecessary matter printed, 460. rUKE A(.'TS, bo, 53. AsrENhMKM' .' IXDKX. .\\'VEAL-(Conemuefl). counsel, foes, 463, 471, when two allowed, 4(i4. County C'ouit.s, from, iippe;vl hook.s, contents, 4(5(1, 4(i7. dates, 4(17. printing,', 4(i(;. ^'"I'l'lyiiig omitted matter, 467. unnece-ssary matter, costs of, 466 costs of correspondeiKje, 467. scale of, 467. unueees.sary matter, 4(;6. uon-complianee witli Orders, 467 notices, liow served, 467. printing appeal Ijooics, 466. .setting down, mode of, 466. notice of, 466. time for, 46(;. none neeessary, 461. notice in lieu of, 4(J1. discretion in matters of, .18. exeeution. S,',' Staying Kxecution, h>fra. tacts as to, 271. fees, what allowed, 403, 404, 467 470 Hnal order from, 40. ' ' forms, affidavit of sureties, 460, 470. bond in appeals from Ifigh Court, 343 469 to Privy Council, 472. ' notice of appeal, 4r)7. fresh evh'nee 'iL^'^lt'"" '" ''"""^^ ^ '""'•* •^--' -^^^^ on appeals from Chandlers, 328 notice of api)lieation for leave to use 3-^8 where surprise, 258. ~ " frivolous reasons, 458. hearing, appellant failing to appear at, 463 notice of, 4(33, 464, 467. postponement of, 463. Insolvency, in, costs, 465, 470. hearing, day for, 464. notice of appeal, 4(54. notice of heariu", copy for judge, 465. service of, 464. objections to judgment, service of, 464 petition not neeessary, 4(54. return of papers after disposal of appeal, 465 setting down, 464. ii > ^'J- tariff of fees, 470. transmission of papers from judge appealed from, 464. 4S.-) 486 ONTAIIIO JUDICATURE ACT, 1881. A\'VK\\.—{Continnfd). iiitorlocuti)ry uiotioiis, 4(),'{. aiiidiivits in su|)j)()it, IG.l. oluiir (lays, how rcckouud, 408. notict! iioci'ssary, 'lt»3. iritorlooutory order from, 39. limitation of, 'AH, ;{!», 40. Master in ( !lianii)er.s, from. .S'pr Chamukus. notice of aj)[)ua], .S.S, ."J!), 40. form ot, in Hi^'li C!oiirt, 456, 457. In.solvcncy ;i])])ualH, 4()4, time for givinj,', 40, 450, 404. extension of, 457. notice of hoariny, 40H, 404, 407. notices of motion, 4().'{. Orders of Court, of, 45(), 47.'}. part of juil^ment, from, 401. payment of money into and out of Court, 4G8, 460. Privy Council, a| .peals to, 450, 47-, 47;}. reasons a^'ainst apjieal. And sec Cross-appeal, >iuj>ra. contents of, 402. leave to .serve after appeal book printed, 401. neglect to serve, 401. service of, 401. reasons of appeal. contents, 40"2, frivolous, 458. part of judgment complained of, to bo specified in, 461. service with draft case, 401. "estrictions f)n, ;}S-42. aecurity for costs of, 459. allowance of bond, 459. by bond, 450, 458. 409. by paying -StOO into Court, 457. deposit of bond, 459. execution of bond, 458. form of bond, 343, 409, sureties. ailidavit of, 409, 470. married woniau, 458. solicitor, 45S. time for giving, 40, 457. security to st.ay execution, see Staying execution, infra. service of notices. practice of Court appealed from followed incases unprovided f.ir,467, -IGS for apjilicatioii to stay execution, 4;-)!). delivery of case to Iveui.strar, 4(;'' entry of appeal, WJ, -UM, KJij. giving security for costs, 40, If)? moving to disallow bond, 4.-,'i) return of draft ease, 4(>(). setting down ai)peal, 4(;2, 4(H, 400. settling eertilicate, 404. serving notice of hearing, 4(iH, 4(jt 4G7 reason.s against ai)pe;d, 401 vacation not reckoned in computing, 403 vacation, length of, 40S. not reckoned in computing time, 408. Vacation Judge, appeal from, 303. APPEAIiAX(;i^, address for service, 1 1 <). after time e.xjiired, 121. by landlord in action to recover land 1"! loo partners, iL'O. ' ~ ' *"" several defendants, 1'20. third party, 103. defaK:/?;^ "rt^..rj!^^"'^'^"' '^ ^'^^^'^^ *^ ^^^^-^ ^-^. »2i. default of solicitor in enteriiif, 120 notice of, 121, 122. °' entry in cause-book, 120. how entered, 119. landlord, notice of, 122. limited, in action for land, 122. form of, ] 23. limitation of defence to question of amount, 123 notice of, 123, i '•^.^. memorandum of, 119. form of, 119. notice to ])laintiir, 121, 122. place for, indorsed on writ, 102 set aside where fictitious address, 119 third party by, 103. time for, 94. when writ served out of jurisdiction, 117 where entered, 118. , n/. . ARGUMENT, cases and points not to be reserved for Divisional Tnnrf -,n ARRITR ATir»\:ii e n ^^ *'*""" J'i Court, 35. not affected by Judicature Acts, 92 ARBITRATORS, 246, 247. action not lo be brought against, 247 evidence before, 247. powers, 240. production before, 246, 247 ASSESSORS. &eTKiAL. aid of, may be called in, 47. remuneration of, 47. 487 ?■ i-: r i' m '■ If ■ ■ ■ ' I A l;:.i|U:i- ^^H ' jM It i '* KM ' 1: M8 ONTARIO .lUDICATUnR ACT, 1881. ASSUINMENT, (U'l)tH (iiid choHUB in action pnss hy, 19. ASSIZKS, coMiniiHsioiu.'rH, '.V2. entry for trial, '257. entry of judj^inent, '2(»1. notice of trial for, 2'y2, 2.').'). ATTACJHMKNT. And^.r KxKriiTioN. Coniinou liiiw rule adojited, .'{01. costH of, 301. disol»edieiK;e to orders for diHcovery, 24.'1. ellect of writ of, .100. ('iiforeiiiji,' jiidj^niuut other than for i)ayrient of money by, 292, 209. form of writ, ■154. interlocutory order enforced by, .S02. leave to issue neces.'^ary, .SOI. notice of motion for, .'{01. service on solicitor sullicient, 301. pending causes in, .'{02. referees cannot enforce orders by, 203. solicitor ncglectinj; duty as to di.scovery, 243. not ciitcriui,' appearance, 120. AITACllMl'iNT OK DKliTS, .-{02-311. And .sec Execution. A'lTOKNKVS. And.sv, Somcitoks. to l)e called solicitors, 71. AlDITAQin-^UKF.A, abolislicd, 298. applicjitinn in lieu of, 298. forme 1 practice as to, 299. AWARD. Sec IIkkkuknck. enforcing, by motion, .■{24-,325. moticui to set aside, when made, 31, 325. HILL OV SALK, etpiitable rights enforced, 30. IWLLS OF KXCICITIONS, abolished, 3r)9. lUJSINESS, D1STH115UTI0X OF LEGAL, 30-42. ('ASE. And nee Spec'iai, Cask. may not be reserved for JJivisional Court, 35. stated by referee, 2(53. CAUSE. And kcc Action. Divisional Courts in, 30. documents commencing, to be marked with name of division, 33. meaning of, 80. CAUSE OF ACTION, joinder, xcr .Joinder of Causes of Action. meaning of, 100. CHAMBERS, appeal from, 30, 39, 328, 329. County Court Judge, 337. by motion, 337. no stay unless ordered, 338. time for, 337, 338. INDEX. 48!) by, 292, 21)9, TION. division, 33. iijipoiii (yitm - {('ijti/l,i,i<>/). Court of .\|i|M';il, to, ;<;». Divi.siuii.il Court, to, .%, 3'J8. motion l)y, ;{'2,S. tiiiio for, ".'{'JS, 32!). «!iil;ir^'iri^' tiim; for, 33S. fri'Hli cvidi'iKu; oil, 3'_'.S. ju(l>,'i) to, from master, 3'_'.S. timo cx|)iriii^' ..n Smidjiy, 329. •ippIicatioiiH at, 3'J'/. on iioti(Mi ill Toidiito, .'{27 iuimmoiLs hy, in outor counties, 327, .3.36. County Court .Judges, ii\>\)yn\ fi 1, :{;{7. 3:i,s. ,jurindi(;tioii m llii^di Court in, 33t-.3.3f;. roforc'iice to .(iidu,. of liigi, (',m,.t, 1,.,^ ;^37_ disrli/ir^ri; (d oiiUmh iiiadt^ in, .39. jurisdiction of judgn in, 8. Master. And .srr .)(;iM.si)t(!TioN, Master in Cliaml.ens. appeal from, to judt,'f, ;i2,s. Iiy motion, .•{.■{7. no stay of proceedings, .3.38. time for, .328. jurisdiction of, ;V,H. leave to serve writ (mt of jurisdiction, .3.3r» reforenec to judj,'c Ity, .'{;{7. notice of motion in, forms of, .381. orders in, form of, .328. (^HANCELIA)R, e-vtraordinary powers and duties of, 7. oiliee retained, '.i. President of (Jliancery Divisifm, 4. CHANCERY. And we Counr of (Juanckuy, former practice, joinder of causes of action, l(j(J. joinder of parties, 140. procedure adopted where lunatics parties, rules of jilcading abolished, 171. suits now call(!d actions, 83. CHANCiEItY DlViHlON, l)usine.ss assigned to, :v,i. causes pending in Court of Chancery assigned to, 33. rrcsident of, 44. ^ o > Chancery Orders, certain, to ai)ply to all Divisions, 83. CHAN(!EJ{Y OJlDEltS, Nos. 14, 1") (Accountant), (il. 33-.3() (Deputy Registrars), 330. 37-39 do 3;{|. 38 (Pra'clpc Decrees Foreclosure, &c) , 58 (Parties) lol. ' 59-61 • do ir)2. 61 do 14(), 152. 62 do 145. 91, 92 (Service on Corporations), 112. 93, 94 (Service out of Jurisdiction), 1 15. 171, 130. 490 ONTARIO Ji;i-)K'ATU!!K ACT, 1881. N<)8. 118 (/;ro (•(>///(««« I )ijcieos), l.T I 11!) i:58-in 142-118 197 21!)-'22() 288 (1.) i:{2. lOxiiniiiKitioii of I'iirtics), 2.S2. do 2;{:}. DtisiiiosH ill ( !ii;iiii)i(;rK), f)!). MiiskT'H Oliico, Sales), 28:?. , Writs of y\tt:i(:iiiiu;ut) 2!)!), .'501. 288-2!)() (Attacliiiiciit and Sciiucstratioii), 29!). 2!) I (SwiiiuKtratioii), 2!H». 2!>2 do 2!)1. 2!>;{ (liidor.yuiiHiit on Mamlatory Ordord), 29!). ;{1()-:{12 (Kevisioii of (Jo.st.s), :M7. ;{i:i do ;H8. :m-:{77 (Mastor's OUicc, Sales), 283. .S78-:iSl do .S82-.S8!) do ;}!>()-:{!t7 do 408 (Vacation), :>">'). 4;{2-4:!l [I'ni-dpp iJocrccH), 129. 4:{r),4;{(» tlo i.'sn. 281. 285. 280. 441 (Mastoi'iH Ollioc, lM)rcclosurc or Sale), 2SG. 412-41,") l 1 do Of), 110. (512 do 0,"), 110. 62.'") (Accountant), 00. 020 do 01. (VX\ do 01. G;!8,(il)9 (Adniinistrntion), 89. (}4O,04;! (I'artition), !I0. 611-()17 (Administration, Foreclosure, cStc)., 91. 648 OoO {/'ni-cipc Decrees by Dep. Keg)., 92. 619 (Decrees Absolute)" !)2, i:!2. 6."')0 (l-'iline- I'ajierH), !)2. cnAN(}K OK l'AUrii:s by DivVril, &c., 29S-3(K). And see Abatb MKNT ; Pautiks, {!liangc of ; and Joindeh of Parties. CUKQUKS, out of Court, .'JOl. OHFIOK .)US'1'1(!K Oh' COMMON I'LIOAS, extraordinary powers and duties of, 7. office n;tained, ,'{. President of ('ommoii I'leas Division, 4. CIWKV .JIISTICI-: OK ONTAIMO, extraordinary powers and duties of, 7. CHIIOF JlTSTlCK OK Ql'lliON'S BEXCFI, extraordinary poweis and duties of, 7. office retaineil, '^. President of Queen's Bench Division, 4. le), L'SG. '287. '2AS. Aiul aee Ab.'.tb ARTIES. INDKX. CHOSE IN ACTION, aHsignnicnt of, I'J. (UUVAllT, cxiHtin;,' .•vrr.'iii-remonts not anccted ?(> Kavinn- a:; fo, 7(!. rU:ill(L\L KHROUS IN .JUDOMKNT, &c„ amon,li„. -S9 (•LHKK OK CROWN AND RLKAS, authoniy of, G." 4'Ji All,' .sY-e Plkading, Clo.so of. AND OTllKli COMMISSIONS. 32, 76. oj.osi'; OK |'li:adix(;s, m; OOLONIAI. COVKRNMHXT, Horvicu of writ on, i |;j. COMMKNCKMKNT, of .Act, 2. of rulcH of Court, 4!). (.'OMMJSSIONS, existing, mn.iin in fore-, r,i. COJVIMISSIO.NS OK ASSfZI And .sYT A.ssizi;s and ( ;i'i;f(;ir 0OMMISSIONJ.;i!S KOR OATHS A.VD AFFIDAVITS transfcrmi to Siija-enie (Joint. 71 ' CDMMISSIONIJRS, FORTAKIX-; KVIDllXuio ABRQ VD UGT l>«o CO.MMFSSIOXFiJS OF .\SSIZi;, constitut.j court of High ( 'ou'it, ;!2 how at)|)oii)tcd, ;jl'. l>o\vx'is and duties of ;L'. .saving as to exi.stinji,', 7(i. COMIWON LAW, equitable rules geiu,Tally prevail over, .SO former practiee. joinder of cau.«eH of a-tion, KU;. joinder of parties, I JO. rules of pleading alx.Iishod, It). COMMON I'LFAS D1VISI(.)N, iusine.s.s assigned to, ;i;i. ollicers of Court of Common Pleas attaelu'd to ^5 iwSitXr '" ""'"'' "' ''"'""■'" ^'^"^^^ --i^'icd to. 33. COMPANY, ^S'o?'wn;!:t l"' '="^"'"'^^'"" "^ "'^-r ^y i'^^-ont crcditor.303 CONCUURKNT WIHTS, 1(,;{, 104 ' CONDIKJT OF CAUSE, (/ourt may give to any [Kirty, l.">2 CONFESSION OF DEKE.XCi;", aris-ing after action ijrouglit' I !).'{ form of, 384. C'(»NFL1CT0F RULES, (.'ornmon l/iw an.l equitalde, l7-:!0. infants, custody ami education, 27 eiiuitable, generally jirevail, in cas( s of,' 30 removal of, hctweeu law and equity 17-:{0 V.)2 ONTAUIO .lUDICATURE ACT, 1881, CONSENT, .Judges' ro(|uirt'(l by existing statutes, 54. (iONSHNTOlJDKll, no iippeiil witlioiit leave, 38. wlieii (li.seliarged on apiilieation of one of ])arties, ;V27, 328. ( ONSUl.l DATfON OK .V( TIOXS, .M17, 31!». Ami .sw Thanhker. liy one iilaintill" against same defendant, 318. several defendants, 318. by several plaintitl's against same defendant, 310. etfeet of, 31!). Iin\v and when applied for, 317. re-opening order for, 318. CONSrrrUTiON AND.IUDliKS OK SUPllEMK COUllT, 2-7. (JONTIIMIT OF (lOUUT, ilisoliedienee to order as to doeiiinents by oflieers, 7*"). for U()n-i»ayinent of money altolislied, 301), 301. (X)N'rRA('T, denial of, 18."). .SV^' l'i.iv\i)i\fi. ecputalile rule as to stipulations not of essence of, ]>revails, 21. priiiiii fiirii' liability under; interim preservation of property, 321. contkhu'tiox, defendant elaiming from third party, 14, ir)7-10r). COriF.S of documents, taking, 344. COHI'OUATION, and.w Comi-anv. attachment of debts and e.xamination of otiieers of, by judgment creditor, 303. service of writ on, 112. foreign, 113. COSTS, 338-3r)2. abandoned motion, 325, 341, .345. .action, 338-342. admissions, failure to make, 1!)!). atlidavits unnecessarily dilhise, 2()5. against unsuccessful plaintill's, 140. > amemhnent pending demuriei', 21!). ap[)eal for, does not lie witliout h'ave, 38. unless (piestiou of principle involved, 38. what is, 38. api»eal. .SVc AriT.Ai.. attaclnnent, writ of, .301, .302. asking for, on motion, 301. attachment of debts. discretion of judge, .31 1. third person elaiming under garnishee order, 310. balance in favour of defendant on counter-claim, 341. claim and counter claim dismissed, 341. copies of documents, 344. County Court, in actions within competence of, 340. Co>irt no jurisdiction, .32."), 'Mo. denials unnecessary, I!)!), demurrer, allowed, 2!!). frivolous, 215. overruled, 220. pleading amended, pending, 2I!». iliscontinuanee by plaintill, 204, 34.5. , 328. KANSFER. IT, 2-7. ;;vails, 21. )roperty, 321. of, by jiulgmeiit VOHTH—iCoiifbiunl). tliscrotiun of Court as to, IV.iS appeal, .-{8. trial hy jmy, .S.S8. application ' ' at the trial " to disallow. 331) ... .t?'"stfc, mortgagee, &c., 338. iJivision Court, in actions within f-x jxtrtc motion, on, .-^-jr,. exten.sion of time, ll'td. facts improperly denied, ]<)(). 4. , to Divisional Court, IV.V.) tormer practice as to, 33!», 3,-,0 when to ai.ply, .T.o. inspection of documents, 240 interest on, •_>!).■). nivalid notice of motion. .S".") .•]•>(! .pirisdiction, wliere no, :i•2r^, .Sij.l new trial after nonsuit set aside, 3.39. uexttnend, against personallv. 147 no appeal M-ithout leave, .38. notice to admit documents, •>4t payment into court, on, 228~341 petition, ten.ler of costs of"p',,.rusing, .344 nm'im tir;/''f '^""''^'■'^•'''"» "f '•^•'•^^"^-- arising after action hrouuht I'l'- pio(lucti()n of documents, iMO. 'ui^m, i.,, prolix indorsement of writ, !);j pleadings, 17i.>. nglit to, out of paitieular estate, 338 saving as to former practice, 3.-)0 H't-I!fi*^3i^' '^^~' '^^^- ^^"'^ ■'"' ««^^''i'^v mn Costs. setting aside nonsuit, 282. signing judgment for, on .liscontinnan.'c, 203, 204 special ind.usement for money dem/uid !M» statemei.t ..t claini unnece.s.sa'rily .lelivercd; 196. buper\ j.snm of ta.xmg ollicers, .350 taxation, copies of documents, taking, 3 14. dis/illowance (,f costs of unnecessary procecdin-'s 34-, discretion of taxing master, 3,V_>. ° general powers of taxing masters, 340 msjiection of documents, 2-10. neglect to luin^r j,, i.jn f,„.^ .^[^,J objections to, .3")], ;^.-)i>. parties to attend, 349. party and jiarty, between, 349. review (>f. I,y ;i .fudge, .3.Jl. evidence on. 302. review of, by taxing olHcer, 3,") I. evidence on, 3.") I. revision of taxatii.ns by local ofHcers, 347 at option of a party, ;{47. costs, payable out 'of an estate, 340 execution pending, lUH. proceedings on, .347, .348. set-oli; 34,1. 342. f ■ J .Bi 494 ONTARIO JUDICATURE ACT, 1881. !:■ i'm If COSTS— {Coiitinnrd). solicitor's liill, directions in order for taxation, 349, 350. order for, on praxlpp wlicn, 350. tender on service of petition, 344. time, extension fif, 350. unnecessary apiiearance at Chambers, 345. unnecessary proceedings, 345. COUNCIL (»F JUDGKS, duties of, 53, held annually, 53. repc"^ of, 53. COIINTICR-CLAIM. See Pleading. against plaintifl", 14, 174. stranger, 14, l'^4. defendant may set up legal or equitable, 14. definition of, 174. equitable, in inferior courts, 73. (BOUNTY COURT. And see Inferior Courts. appeals from. See Appeal. clerk of, not to draw or advise on certain documents, 64. coats in suits within the competence of, 340. eosts whore no jurisdiction, 365. couuter-elain)s in, 73. Judges, qualification of, 72. jurisdieti(m in (liambcrs, 334-336. local Judges of High Court, 72. powers of, 73. procedure in, 366. sittings (if, how regulated, 364, 365. Terms abolished, 364. COUNTY COUR'I' JUDGES. See Chambkr-S. Judge sitting alone may constitute, 36. COURTS, construction of prior statutes affecting, 54. ( ;0 U III' OF A I' IM*: A L. And ,ste Appea l. additional Judges may be summoned from High Court, 41. assessors, may call in, 47. chambers, appeals from, 39. Court of Record, 10. divisions, may sit in two, 41. existing contiimed, 5. fees taken in, 463. has all powers of High Court, 12. how constituted, 5. Judges, ex officio, 5. oath of, 6. single, power of, 41. vacancies, provision as to, 6. jurisdiction, 10, 11, 12. aSVc that Title. motion to set aside judgment as wrong on fiadinga of jury, 277. powers of, 10-12. Court Houses, inspection of, 79. ^!«ir I,:,' ! INDEX. (!()URT OF CHANCERY. And see CrrANCKHY Division causes pon. ling ,n, assigned to Chancery Division, 33. ' duties of oliicers continued, Co. infcants, rules as to custody and education of. 27 offaccrs attached to Ciiancery Division 55 receivers fonn( r]y appointed hy, '2(i service of biJi out of jurisdiction, 115 COURT OF COMMON PIJOAS, pending business assigne.l to Common Pleas Division 33 COURT OF QUKEX'S IJKNCH ' .-.RrM^v ^f '!."'"'" '''''""'" ''" ^^^^'^"'^^ '^""^^1 f^i^i^i"". 33. CRIMINAL PKOCFFDINGs, practice and procedure unaltered, 7!) 364 CROWN SIDE OF Q. B., OU C. P. DIVISIONS proceedings in not aflected, 79, 364 DAMAGES, assessment of, 127. in action for land, 128. forms of pleadings in actions for, 402, et sen mterlocutory judgment on default of appearance, 127. filing of pleadings, making, 182. judgment, of, 281. DAYS, how computed, 353. motion for non-juridical, 354. DKBENTUKES, payment enforced by mandamus, 22 DKBTS, assignment of. If). notice of eoniiicting claims. Interpleader 19 DIOFAULT, ' ■ appearance, account, order for, 138. affidavit of service, 121. at trial, 259. by infant, 124. lunatic, 123. third party served with notice. 163 damages, inquiry as to, 127. foreclosure, &c., suits, 129, 131. judgment against some defendants, 126. for recovery of land, 128. mesne profits, rents, &o., 128. where writ not specially inrlorsed, 127. whore writ specially indorsed, 124. particulars of claim when necos.sary, 127. costs of, 127. posting up notice of motion, 182. pleadings, 182. signing judgment, 125. delivery of claim, 221, 222. delivery of defence, action to recover land, 224. mesne profits, 224. 495 'I'f m 496 ONTARIO JUDICATUUK ACT, 1881. ii; ^ : :i T III. J DEFAULT— (CoH/i»«e(Z). dolivcry of dofoiico — (Conthund), chiiiii for <{o(mU or uiili(iui(hitoil damages, 223. final judgment, 22.'{. against defaulting defendants only, 223. interlocutory judgment, 2'_'.S. against defaulting defendants only, 224. assessment of damages, 223. licpiidated demand, 222. li([uidated and unlii|uidated demand, 224. motion for judgment, 22+, 225. against , 333. seal of, 48. DEPUTY RECISTRARS, 02, 329. books to be kept bj', 330. County Court Clerks to be, when, 62. fees not to be taken, Avhen, 03. commutation of, (>3. office to be united with Deputy Clerk of Crown, 62. powers and duties, 329, 333. seal of, 48. DISCHARGE, order made in chambers, of, 39. And see. Appeal, Chambers from. DISCLOSURE BY SOLICITORS A's'D PLAINTIFFS, 104. t same time, 225. LULT. IS to, 53. of Defence. 4'^ 32. ,, Chambers from. ^FS, 104. INDEX. 497 [)ISOf)NTINUANCR, 201-204 by leave, 202, 20,"?. costs oil, 20:^, 204. effect ot'oo;;!*" "'''^ "'^'" J"'^^"^'''^* f"--. '^03, 204. former practice as to, 202 form of, L'02. no defence to subsequent action, 20'> time for, 201. whole or partial, 202. without leave, 201, 202 costs. Ami Hc- Costs, .liscrction of Court attaclinieiit of debts, 311. appeal where costs in discretion, 38 DlSMISSAr^''''''^'''" *" "'"*''' '"'* I'^'^*''"«''' 2^0. for want of prosecution. default in delivering claim, 221 giving notice of trial, 252 * disobedience to order for discovery, 243 non-appearance of plaintiff at trial •>5'-'• And tee Divisionai DIVISIONAL COURT, appeals from Judge in Chambers to, 35!) application for new trial, 30 cases and points not to be reserved for 35 causes and matters heard by 30 }iabeas corpm applications when made to 359 how constituted, 37. jurisdiction, discharging orders in Chambers, 30 359 ptiS'a'r °""°- »""■■«' -' -'•■"■'=". 318. 322. proceedings before, 30, 358, 359 Siii('li DiviHioii. .SVr tliivt 'I'ni.K. throo con.stitnti'il, 3. IXMJUMKNTS, .'.isIh wlirii- notico to inlniit, '2li. (liaoovoiv, alli.iavit, form of. 'J.37. wliiii ciHU'liiHivi', '235. by corpor.ition, '2'Mt. hy pf>r^l)i>ilii'ni't' to oriliT for, '243. iii.H|u'otion liy .Iiidgo at <'haml)or,s, '241. juii^,'i''n jiiriHilictioii whcro roforonci' to roforcc, 239. prior dcci»ion of cpu'stion aU'octing right, '24'2. SL'rvioo of onler, '243. "Mlicitor, ;ittacliment for neglect to notify cliont of order for. 'Ji;*. tinu' for, '2.30. cxamin.aiion of, by olRccr on entry of judf;inent, 282. inspi'ction. iSVf tli.at TirLr and Production, j/j/ra. marking, with naino of tlivision, 33, 1)2. notice to .admit, 244, '245. cost.s, '244. form of, 245, 387. omission to j^ive, 244. notice to produce, 241, 239. form of, 241, 387. co.sts of, 240. pleading (ntntenta of, 183. privileged, what are, 237-239. ])rodnction. See .also that Title. costs, 240. disobedience to order for discovery or inspection, 243. etl'eet of non-compliance with notice, '241. form of tiotice to inspect, 241, 3S7. notice to produce, 387. inspection. aUidavit on application for order, 241. application for order, 241. notice of, time for, '239. order for, '241. judgment del)tor, l)j% 304. ntUicc to produce, 239. form of, 300. order for, on pnF('i})C, 2.34. at any stage of action, 234. prior decision of question atfecting right to, 242. privileged, unnecessary, 237. referees, before, '239, 263. it, 2.%. irDiluotion, '23<) 239. it of itrdor for. -K^. ^2. on, 243. 242. INDKX. pru.lii.'ti,,!! {('•infnni,,/), II laMiiK In |i;u(,y'H (.\vn MMc ..nly, \\3H flnrviot! iif onlor for inM|M:cti(.ii, 'jl.'} time, Ikivv fixe. I, 'Jli. n-fiisal It) ;nliiiit., '.Ml. nAUwn '>iil. ill ;i(lii|;ivilH. 'ICut. N|M'.'i;il casp, Hial.cl ill, 'J Is. DtJ'I'llvS. ' ' ' ■ nxtnioniinary of ,..xiHl,ii,;,r ,|,„|.„,_ ,,,,,i , ,^^ ^, f^FM.( T«,K NON-C(»,M|.UAN(!i; WITH IMJU,-,s r,y K.'K<:T.M|.;N'r .SVv.A,.nu,wTu|;„;,.,.vKHl.,v,. .ilioliiiuii (p|, !);(. •'''"•inlaiit ii.'cj not [,|,.;i,| title, !)3. old |ii;ic(,ici> iii^ |);(_ pl''aiiiii^'s now uMcd, \y,\, MIdOCriON I'MTITIONS, •'udK,..s for licariiit;, lio'w Boiorf.'d, .T,. yoMiiiiinii, prowMliironHtf), not iitl'octed, 7y. KNTRY. And .w'l'iuAi,. Kntry for. dcmiirri'r for argmniint, 2I,S. of Older.'.!, 3.'tl». .special (MHO for ar/^iinicnt, 2r»0. III Inferior Coiirtu, 7;i. ' 1'|.ai)i.n(;, ">>»"IT.\l'.ld'; DHKEXCK, olFcct/^dven to, in all Divi.sioiH 12 n in Iiif.-ior Courts, 7;i. - . »»• to le^'al elairo, l.'l. KCiUITAUU.; KKJIITS, countor-claini in rcspcet of, 14 moideiital, reco,i.niz. contents of, 'Jd,"). costs of prolix, 'JOf). cross-oxainiuatioii on, '2(55, 2C)9. c(»tnpi'lliM^' attendancu for, 271. coats of, 271. cfl't'ct of noii-proihiction for, 271. motion, pi'tition, or suniniony on, 2C5. (lefcmiant's, time for tiling, 270. defendant to deliver list (pf, 270. hearsay niattura when allowed iu, 2(55. interlocutor^' motions, on, '2{\ri. judge may order facts to l)e i)rovcd by, 264. motion on, 2(iri. notice of motion for judgment where, 271. petition on, 2(55. plaintill's in reply, 2(59, 270. time for tiling, 2(>!>. to furni.sli list, 2(50. print, partly in and partly in writing, 357. reading at trial. 2(54. reply in, 270. summons, on, 2(55. where cross-examination desired, 2(54, 270, 271. appeal, on. iSec ArrE.\L. commissions to take evidence abroad, 20(5. examination of witnesses ex parte, 267. copies of evidence, 268. costs, 2(50. interjjreter, 268. interrogatories on, 267. mode of examining on, 267, 268. notice of execution of. 267. notice of motion for, 266. order, contents of, 267. return of commission, 268. signing dejiositions, 268. stay of action till return of commission, 260. to whom directed, 266. vivd race examination on, 267. t;ross-examination, 264. depositions, 265. commission to examine abroad, 266. examiner's otHce not public court, 266. when taken, 2(55. documents to be sealed by Deputy Registrars and Deputy ("lerksni Crown, 48. examiner, before. And see Depositions, supra. by order of judge, 264. experiments for obtaining, 322. fresh for judge's own satisfaction, 259. on appeals, 272, 328. where party taken by surprise, 258, 260. INDra. r)i)i Deputy Clerks III V.V K\ i<:x uuttUm, on, L'da. • >r.il in trial ]>y jury, 2G4. potitioii on, lii;5. refuroefi, hofort.', '2C>'2. ronow.il of writ, I0(>! siniinions, on, 'JO"). rira roi-e, usiuil mode of taking, 2fi4 rart inay 1h, put in as evidence, 24.'} «l.ortiian,l, rigl.t to have .Imposition in 'J'>,S iiiKlor (hancfry Orders, L'"_\s, '_';!•_' ";{'< " ' "iiderCominon i,;uv I'r'octMiui'J Act,' o-JS, 22!)-'2.T_> AMINKIl. 'SVr Evil. KN-ci.;, Deposition. against partners, III. again.st stranger to action, 2f)8 attaulnnent of debts, accruing del.ts, .'{Ofj, .'iOT. application cc /«nV^', .SOO assigned del.t, .SOS. claims l.y tliird persons, .'{10 .3] i copies of entries in " debt attacbinent book " .31 1 co.sts in descrction of .Judge ■]] \ ' date of order, 303 compelling attendance, .304, .30"). ' conduct money, L'8'J. costs, ,34. satisfactory answers, .30.3, .30;") ex.amin.ati.m of odieer <.f eori.or.ation, 30.3 executor, .ag.ainst, 308, .309. garnishee disputing liability, .310 execution against, 310. issue in.ay be directed, 310. special case to try liability, ,310 interests of third j.ersons, 310 311 ill an agent's hands, .307. m mortgagee's hands after sale, 308 in odicial Ji(iui.lator"s h.ands, .307 in receiver's li.ands, 30(5, 307. in sheriff's hands, 307. paid into Court, 30(5. notice to treat under English L. C C Act 308 m^fiff' 1 * 1 ll n m mlkf .Ml- ONTAIIK) JIDICATmiK ACT, 1 MS | , mi i I 1 KNI'irl'TION (('oiitlnimn. Ill l.'ii-liiiH'iil III' iIcIiIm [('Kiilinutil). iiiilcr liir, liii\\ iilil.'iini'il, .'IlKi. (iiUiH rtlii'l, Inmiiliilv, ;ii):», 111 I'.innislii'i' (i» hIiiiu raiiMi' fur nun |iayiii('tit, .'lOO iiiilor loi' ini|i(';ii;iiuH' dj' lliiiil |wtrlv, .'110. pHViiMiil iiil.i ( 'iMM I, « lii'K' iiiili;miiil I'lii', .'lO.'l lll'llHlllMH. iVc, ,'t()S, ]>u\\ii III .liiili'i', ;i()li |iiiiiiily III iiti;uliiii|,' t'li'iliturfi, 3U'J. rriil. 'MVt . Hiiitiiy. ;«»s. Hcivu'c (if giiniiHiiiM' diiliT, .'{Oil. H«'ttiiif{ ;iHiilr |)riii'iM'iliii);H, ;i(>'.(, Hol (ill liy .);,irniHlii'i'. ;illi>. HCVcial ii|ili;Ml('lll ili'liliil'i. .'tOH. tcHl, (if ilclil liciiif^ .•ill,iili:ilil('. ;i(KS. tliinl iHMHiUi cl.iiiniiif;, .'tlO. Inuring cUim df, ,1i(l, 311. ('lists, ;ii I . Iri.il iif inHiics, yi I, iiiui ;i|i|i('iii'.'m('i' (if, ,'tl 1 . trijil (if i-^niicM wiipu j^.irniHlict' (liHpiilcM li,'il)ilit.y, 310. niilii|\ii(l.'i(('(l il.'Mii.'igcH, ;i(KS. Iiy |ii'rsiiii i\iit a p.uty, "D.S, cnnilition.'d jniluiiii'iit, 'I'i'l. icivc 111 iMMiic, wlicii L;r.iiil('(l, 'IWl. (ufiircinj.; iicrfnnniiiu'i' of .in Actr, 'Jit'J. iinli rs (if i\ .liiil^c, 'JIKS, lirri fiwitix, HV.'ct (if, :iO(). iiKincv (ir i'osIh fdr, '2W). wiil, (if IV )iilitiiiiii crjidiitts ill .lid df, .1(K), iiimi(>(li;it('. wiii'ii, '2\H\. iiitori'st U'vicil, -',(.■». •■iasuin>; .'(g.-iinst Jiny |i;u'(y," nic.niiinu; df, 'J'J'J, land, rci'dvory rty, recovery of, 'J9'J, p(issessi(in, liy writ of, ,', .'lOO KXI'iCri'l'oK, (K'i'.iiiiil, ll^^•^ill•l^,, I as. a<-(iiiiiH liy ,um| .nK.'iiiiHl-. 1 10, fll(.!lclmi|.||f, (,f (|(.|,tH ,vjr,-ij„n('_ .-{((H ^Qf, KXKi;",'l'.;',;:si';,';:' ""■' ""■■■"■"•»'-■ ■'»"..» -.y »...i »« ,.». ft<<'niiii(, (III IK, tie,,, i.'jH, |;jy_ MXIWTINO. AiiilwcSAViNd. • If'liiiil.ioii (if, HI. !•'■' '"'■'' ''"ntiiiiKMl iinlfwi idli-m], 10, 49, 82, AA I'Airri:. Ami «(r Motk.n ;iimI NoTfcr; injMiicLi(„| j^ivui (,«.(!, 2.'{. IfflVO t,. M,.rv(. llof,ic..(,f ,„„(,i„„ wiUi wrif, •("« T>7 rcooivor fi|i|M.iMt(M|, lid. . •>-o. •>-/. KXTI!A(H!I)INAUV I'OWKIW AND DIJTniS OF /riDri.-^ - ■ /»» i, |.-».>.uiv^ ()|<. Sit ll(UI„.liirv- Issi;k4(iI' |."a,t ,. l i. I''AI-SKIMI-|!IS(»NMI;;nt. y-'^^^-'KHo, lA. . .-iiHl Ukkkhk.vce. foriiiH in|,'s, I no. ^.ec- U^;;,;!;;:'^; l^^*'^"'-" "^ <='-" -•'-- -> appoaran.,, ,27. /'V l.,.S00. And ,sr(. KxKcuTrov, Koi.i;(JL()Siri;K, f(irin i,f iiid(ir,senicnfc oil writ, 370, jiidgiiioiit (in pfrcipc, 447. nut "action to recover laud," 108 /"■"'■«/". jiid; .nton, |2y, |:{|, ISO procedure in M;iater'H of ' ' ' '' F< )K KI( J N Ci( )V HIINMENT service ol writ on, 113. iHice in auit for, 289. i04 ONTARIO JUDICATURE ACT, 1881. : J. : 1 > -1 .^^^H ^i.f' Ki9^M ■I'lH;. m ' 1 * f ; 1 - r- > J f K()R^fS, •acceptance of sura paid into Court, 386. iilHilavit of documents, 391, 392. for garnishee order, 392. for interpleader order, 393. landlord on appearing, 391. service of summons, 390. appeal, see ArPEAi,. appearance, memorandum of, 119. certiticatc of result of tri.il, 450. certificate of taxation, 450. commission to examine witnesses, 421. confession of defence, 384. entry for argument of demurrer, 417. special case, 417. indorsement of writs. See that Titlk. indorsement on defence for service on third person, 385. on order adding or changing parties under Ord. 44, 385. judgment, administration (Local Master), 449. after acceptance of money paid into Court, 446. after confession of defence, 446. after leave to defend on conditions, 445. after leave to sign judgment (Rule 80), 442. certificate of County Court Clerk, on, 445. default of appearance, action to recover land, 441. after assessment of damages, 443. liquidated demand, 441. default of defence, action to recover land, 442. aftjr assessment of damages, 442, 443. licjuidatcd demand, 441. discontinuance, for costs on, 445. foreclosure or sale, 447. motion for, after trial of issue, 446 partition or sale, 450. redemption, 448. trial by judge alone, 443. by judge and jury, 443. by referee, 444. notice, acceptance of sum paiil into Court, 386. cross-examinati.in of deponents at trial on affidavit, 389. defendant, by, to third party, 161, 384. discontinuance of action 389. disputi.ig amount of claim, 383- documents to admit, 387. tf> inspect, 387. to produce, 387. entry of appearance, 383. of demurrer for argument, 389. in lieu of service of writ, 370. statement of claim, 384. limited appearance of, 122. limiting defence, 383. of motion to Court, 381. in Chambers, 381. for administration order, 382. 385. 44, 385. avit, 389. INDEX. FORMS— (Con(!m? ^t- attaching del)t, 435. certiorari, 432. commission to examine witness, 433, County Court to try action in, 43(5. ' (hschargo order on application of third party. 431 tlismissnig, ^ J. ■»•" action for want of prosecution, 431 motion, 441. examination of witnesses before trial, 434 garnishee (attaching debt), 435. (absolute), 435. inspection of documents, 432. iuteri)leader, 437-440. judgment debtor, examination of, 436. leave to defend on payment into Court, 428. defend as to part of claim, 429. serve out of the juri.sdiction, 426. sign judgment on specially indorsed writ 428 names of partners, 429. particulars, 430. partners, disclosure of names, 429 production, 431. reference (Rule 244), 432. (section 47), 433. (section 48), 434. to Master, 434. renewal of writ of summons, 427. service out of jurisdiction, 420. substitutional service, 426. taxation of solicitor's bill, 4,S6. third party to discharge, 431. " time, 427. trial of action in County Court, 436 pleadings of, 393-414. S,'e Pleading, Forms of pnecipe, "'■ amend summons, 414. commission to examine witnesses, 418 entry of appeal, 418. action for trial, 418. appearance, general, 415. limiting defence, 415. nevv defendant. 415. third party, 416. to counter-claim, 416. argument (generally), 417. demurrer for argument, 417. special case, 417. .505 noG ONTARIO JUDICATURE ACT, 1881. ltvn'c'\\)ii —((^onf'niKt'd). renew suiuinoiis, 415. seareh, 417. writ of iittacliiucnt, 4'2(). certiorari, 417. delivery, 420. fieri fdcUin, 418. hahean curpnn ad (esti/icaiidum, 418. luiiuilaimis, 411). posHessioii, 4I'J. j)roliil)iti(»n, 41G. se(|iU'Htriiti()n, 419. veiidiliuiii rx/K»i(ts, 419. jirescribed, use of, 304. aubpouna (at Assizes), 4'JO. ad lent, (general), 421. duee.-< teeum at A.ssizes, 421. general, 420. summons (general), 425. warrant of arrest against defaulting witness, 455. writ of certiorari, 424, 425. writ of execution, attaelmunit, 454. delivery, 45;^, 454. fieri fticiax, 45 1 . on order for costs, 452. possession, 453. se(iucstration, 454. reiiditioni cx/ioiios, 452. writ of habeas corpus ad tent., 424. writ of proliil)ition, 425. writ of summons, 9.3, .■{()9. indorsement, 95, 371. eliaracter of p;irtics, 378. costs for, 373. damages and other claims, 373-377. genera], for money claims, 371 -.373. in actions formerly brought in l'^[uity, 379, 380. special (under Onl 3, U. 4), 377, 378. notice in lieu of, for service on foreigner, 370. prn'ci/ie for amendment, 414. renewal, 415. FRAUD, forms of pleadings in action for, 404. how pleaded, 184. FUNDS IK COURT. See Accountant. FURNISHINCI COPIES OF rillNTED DOCUMENTS, &c., 344. FU RTHER CON SI 1 ) E I { ATION, on motion for judgment, 278. FURTHER DIRECTIONS, 27(5. (GARNISHEE. .S'pc Execution. Attachment of debts. CUARANTEE, forms of pleadings in action on, 405. GUARDIAN, AD LITEM. Sec Official Guardian, 65. how appointed, 124. notice uf applicatiou for, 124. ti- #if;j INDEX. 507 rs, &c., 344. IIAHKAS CORPUS, Divisional Court writ returnable before, 359 HABEAS COliPUS AD TEST. form of, 428. pnecipc for, 418. HEAIilNG. ,SVr Trial. HKm COURT, appeals from, JO. And see Appeal assessors may call in, 47. costs in discretion of Court, 338 Court of Record, 8. iudSs" "' '''' ""''^"'"^ ""' ^'^'" G«'^«- -^^ ^^itl^ -f -ch Division. ofSrf of' A,'"'T'' '*^ I"'^^l^«'^«««rs in old Courts. 7. ot Oourt of Ap])eal may .sjt in, 41 style and title of, 3. transfer to other Divisions, fi vacancy, lilljn^r of, f). jurisdiction. See that Title. officers of. And nee Ofkiceks. Courts attached to correspoudiiiL' Divisions, 58. plauititi may choose 1 )ivision, 33 <)2 President of, 4. ' '. ' si'tt7n''"s'^of' ^T''^^ ^^ ^^ ■'''■' ''^''■'^*"'"« '"^W'^y t"' 4G, 47. lonj,'th and dates of, 33 eiiforcing (Rule 343) 2[)2. High Court may grant, by interlocutory order, 21 323 whether claim of title'or not"* ''" whether estates legal or equitabfe. "o indorsement of claim for, 93 patent actions, in, 24. restraining action abolished, 15 terms may he imposed, 21. to be claimed ))y writ, 93. trade mark cases in, 24". trespass, against, 22, 23. under new practice, 23 ' when granted, 23, 2o writ of, abolished, 3»3 INQUIlilES AND ACCOUNTS, 245, 247 directed at any stage, 245 on admission, 278. on motion for judgment, 278 INSOLVENCY. See Avtfu INSPECTIOX. *. also DocuMEVTs application for to a iudire *>41 costs of, 240. fo . -•*!• notice to inspect, 241 of company's books by shareholder, 240 ot foreign judgment, 240. of mortgage deed, 240. ir.quiries by, 71. production of books to 71 costs, on, 295. ' judgment, on, 295. I NTEliLOCUTOUY APPLICATIONS a„i appeal from, 39. ^^^^^^^^^S- And .ee Appe.vi. and Motio.n. fresh evidence on apjieal, 328. injunction granted on, 21 . mandamus granted on, 21. receiver appointed on, 21 what are, 39. "™ p'^'iliSfi^- .T?|;ArV'^T-^"™ .'K.S,.,VAn.,ON ... ^, «c., 3l.i-3_4. .See Mandami-.s, Kkckivek, Puksek- noit v.'.TioN OE I'ropektv, and Ti.me. appeal from. 39. See Appeal CaJl^S"*-'' """^ ^'^'''''" '^'""''*' *° '^^^'' 320. 321. INTERl'LEADI'^R, appeal in, 277. application when made, 83. •ilO ONTAllU) JUDICATURE ACT, 1881, \l)(TFAiV]A']\DVA{—{Conti)iiii->l). notice of conllicting claims, tlebtn and clioscs in actii. \ ID. old jjracticc continues, 83. l)roccdiiru, 83. INTKKPilKTATlON, 80, 81, 307. "Action," SO. "(:aUHc,"80. "Defendant," 80. "Existing," 81. "Judge," 3(57. "Judgment," 81. "Matter," 81. "Oath," 81. "Order," 81. "Party," 81. " Petitioner," 80. "Plaintili;"80. •'Pleading," 81. "I'roper Oliicer," 81. " Rules of Court," 80. "Suit,' 80. ISSUR OP WIUT. Sep. Writ of vSummons, Issue. IvSSlJES OF FACT. And see Trial and IIekerkncb. directing on motion for judgment, 278. motion for judgment before all determined, 278. preliminary trial of, 253. settlement of, 207. when necessary, 207. trial of, on application to enforce couditiimal judgment, 292, 293. by oUicial referees, 47. JOINDER OF CAUSES OF ACTION, action to recover land, administration with, 168. arrears of rent, 1G8. deed relating to land, 168. execution of deed, 169. mesne profits, 168. mortgages, claims respecting, 168. personal estate comprised iii same deed, 169. receiver, 168. recovery of deed, 168. of personal estate, 169. allowed generally, 165. alternative claims, 167. against different defendants, 145. inconsistent against same defendant, 167. xpi)lication to coniine action to certain claims, 170. contract broken by principal and agent, 167. distinct against same defendant, 167. separate defendants, 167. eflfect of new provisions considered, 166. excluding claims inconveniently joined, 170. foreclosure, 168. insolvency, by assignee in, 169. former practice as to, Chancery, 166. Common Law, 166. ) INDEX. 511 -{Contitntefl) . •fOJXDEIl OF CAUSES OF ACTION- liow limited, 1(5(5, |(57. Imsbiuid and wife, \,y, 10'). iiKioiivenient luiicnded, 170 i;i;;:f:K't;;i«';^^.S;;s;l;*;l?''"^ ««""'"■»- '"'-»"'■ '•«■ inultitiuioiiHiitflH aholislied, |(5(5. pornuiial and rei.rcsentative eajiacity, in nisolvoncy l)y assigiKc in, l(i!). executor or administrator, l,y an.l againat, 109 huHhand and wCe, ).y and against, n5!> separate claini.s in eounter-elaim, 1<»4. nets of facta again.st same defendant, J 07 tnal8 may he ordered, |(5S. trials Avhen ordered, 1(50 several arising out of same set of facts, 107 JOINDER OF ISSUE. »'e Pleawno JOINDEK OW PARTIES, abatement. Si^e Abat'kment. adding, application, how made, 150. at any stage, iry.i. bankruptcy, death, &c., 31.S, 315. eftcct of order (umler O. .W), .S1.5. ellect of provisirms a.s to, 153-156 on motion, 150. service of order, ,315. administration action, ( !hancery Orders 151 amendment, liow and when made, 150 ' ( Jiancery rules as to, continued, 151 change of ])arties. And ,w Aii.vTKMENT nr purpose of, 150. added to be served with amended writ 157 alternative claims against, 143. ' alternative claims against principal an.l agent 145 claumng contribution, &c., against co-defendaat, 102 against thml party, 157. ' doubt as to proper, 145. improperly joined struck out, 153 f'li^' ft f T ol2 ONTARFO JUDICATURE ACT, 1881. • J- .)01^'DER OF PAIVTIEH— (Continued). (ftvfendants — [Contimied). joiut cliiiiiis against, 143. jointly and severally liable, 145. judgment again.st one of several, 143. need not be interested in all relief claimed, 144. numerous class witli same interest, 149. protection against embarrassment, 144. undue expense, 144. service of notice M'hen added, 156. several claims against, 143. several liable on one contract, 145. when added, 153. efiect of new provisions considered, 148. plaintiffs, adding or substituting, 153. not without consent, 150. alternatively claiming relief, 140. amendment whore mistake of law or fact, 142, 143. doubt as to proper, 142. imjiroperly joined struck out, 142, 153. jointly claiming relief, 140. judgment for one of several, 140. numerous class with same interest, 149. sevei'ally claiming relief, 140. single on behalf of class, 150. striking out at anj' stage, 1 53. substituticm of right for wrong, 142. wrong persons made — amendment, 142. third jjarties. Sec also Parties third parties. contribution orintlcmnity against, l.")7. deteruunatiou of (questions against, 157, 159, 162. direction as to procedure on adding, 163. discretionai'y to add, 160. effect and construction of provisions relating to, 158. garnishee order, 310, 311. how added, 160. leave to appear, 163. non-appearance by, effect of, 163. notice to, 161. at trial, 162. form of, 161. how served, 161. questions, decision of, against, 159, 162. when and why added, 157. trusts, trustees, &c., may represent beneficiaries, 146. JUDGE. And ,se(? JuDGKS. absence, through illness, &c., 5, 41. appointment of Vacation, 31. copy of i)leadings for, 262. may exclude counter-claim, 173, 176. meaning of in Act and Rules, 367. mistake — motion to set aside judgment, 277. reference, from Master or County Court Judge to, 337. retiring may give judgment, 79. INDKX. ■nj\)(iE— (Continued). single, action tried by, 358. appeal from order or decision of 4() .usineHs to i.e disponed of l.y ,,h far as practieal.le, 35. not to reserve ease tor Divisional ( 'ourt, 35 power and jurisdietiou of, 3,; 41 vaeaiiuy of o||i<'t., 41. J r I )( i I'JS. And we JirnoE, annual comieil of, r>:]. eon.sent of, re.,uired l.y existing Statutes, 54 eonstruetion ot prior Statutes, adectin-, 54 ( ourt ot A])peal, 5. °' interlocutory orders, appeals from, 3y single, power of, 41. sitting in High (Jourt, 41. niscrei.vUi, appeal from, generally, 3S. striking out phadin-s, L'lO. election petitions, rota for, 35 existing, commissions afr.jcting, remain in force, 54 extraorduiary duties of, 7 meaning of, HI. High'cuniC *" "^'''*' '"""^ '^""''' "*' ^' ^' ^*^- extraordinary powers and duties of 7 jurisdiction, Imw exercised, IW jurisdiction of, 4. And .see J cjrisdictiox. Ju.J.res single, to liear actions, 35. -Jnn^^s. sittings of, 3(t. ■style and title of, 3. transfer to other Divisions, 5. may alter, annul and make new rules of Hourt 50 51 ^o may not reserve cases an.l points for Divisional C I'u K % must decide .juestions of law at tiial, 35 " not to sit on appeals from own decl.sions, 37. oaths of othce, (j. power to refer (luestions to referees. 46 lireeedence of, 4. rights, powers and obligations of 4 6 7 rota for election petitions, 3r> ' ' " saving of rights, &c., of existing, 7. 76 ^tatutes atlecting, construction of 54 V aoation. See Vacation J udoks JUDGMENT, after trial, 4S3. against (.uc of sevenvl defendants 143 appeal from part <»f, 461. ' " application t(» sign, in vacation, 363 balance on succesiful counter-claim, 173, 201 certihcate of, 261. > ^10, ^vi. change of jiarties after, 314, 315 sii^ofip^'iiS;"^""^^'*^'-^^*'- ^-««''t, 193. against some of several defendants. 126 at trial, when cause called, 259 33 :)I3 : i I' ^ *:;( m% 'i !i ■'•ll ONTAIUO JUDICATURE ACT, 1881. .WlHiMFST—iCwIiiiun/). (liimii^'Ls iiii!iHoi!rtjiiiic, includes decree, 81. .Tudge, retiring, may give, 79. land for, how enforce(l, 291, ', i2. writ of possession, 312. motion for. .SVc Motion kor J udgment. ncmsuit, oH'ect of, 282. setting aside, 282. not to be given for party unless entitled on facts proved, 42. on y)>'(fvv'/«MU action of foreciosui'e, administration, &c. , 12!l. partners against, 293. pemling suits, in, 299. referee's re]iort enforceable as, 48. relief to defendant on counter-claim, 209. reserving, 201. setting aside. And aw Motion for Judgment. default, by, 125, 225._ nou-ap[)earance at trial, 259. wrong entered on facts, 276, 277. signing for costs, on accepting payment into court in satisfaction, 227. on discontinuance, 20.3, 204, 445. specially indorsed writ, against s(mie of several defendants, 138. ailidavit of plaintiflf, 1.32. application to sign, how made, 132, 136. for part of claim, 137. showing cause against, 137. iiirt :: INDEX. 515 3. tormcr (.'ourts, U. irovod, 42. , &c., 129. .nnxaiENT CLERKS, 320. •lUlXiMIONT DEIITOUH, examination of, 302. JUDlO'ATUliK AC"i\ conimonceniont of, Ont. Act., 2. 70. 74 7y how cittMl, I. . . , i4r. •I (JIIIMTJICTK )N, abolition of, of former courts, 8 chaml)or.s, .ludgi. in, 8. Ma.stei- in, .S34. Chancery Divi.sion. Sm that Title. Courtof Ajipeal, 10. .S'.v- that 'I'itie. High Court, apjiuals from, II, 12. Huiglo judge of, 41, Divisional ( 'onrtH, ,^<'. cases and points not to he reserved, 35 chaml)ers, api)eals from, 39. new trial, motion for, 36. High C(nut, 8. Assize, Oyer and Terminer, and fiaol Pelivery, 8. Divisional Courts, 30. injunction, 15, 21, 23, irj. 3n, 227. And see that Title. And County Cockts against i)erson acting under colour of title ^1 terms imposed (m granting, 21. ' " ' tresi)ass, 21. waste, 21, judges of abolished courts, 8. mandamus, 21, 22. pending ))usiness, 9. receiver, 21, 2(), 27. single judge, 35. how to be exercised, 10. Inferior Courts, 73, 75. . and DivLsioN CouuTt. Judges, discovery where claim referred to referee, 239 High Court, fi. single, of Court of Appeal, 41. of High Court, 35. Master in Chaml,ers, 334, And See Chamber,s allowing service out of jurisdiction, 334. leave to serve writ out of jurisdiction, 3,34 service, out of. See Service and Wkit of Summons. solicitors over, 72. .HJRISDICTION AND LAW, provisions as to, 8-30. JURY. And see Trial. Sh '"''■""^'^^ entered, setting aside judguient, 276, 277. application for new trial, 36, 271-275 costs follow event, 338. oral evidence, 264. fW 516 ONTARIO JUDiCATUllK ACT, 1881. .\[U{Y—{ro)if.i,in('d). trial witlioiit, ii|i|(li(;at,ioii for now trial, 30. JUSTICKS ,)K i'lIK I'KACM': IN Nil'lSSINO, quftlilioiitiitii of, 7y. KNOWLKIXJK, liow plcailud, 184. lANI), lUitioii for recovery of. See Avnov) to IIecovkh Land and Wurr ok Sl'MMoNH. LANDLOUI), iv[)li(.'iiriiai'i! in dction rti,'iunst tfiiiant, I'-M, l-'2. forms ol pliMilings in an iiutiun Ijy, a^'.iin.st toimat, 4!0-41'2. LAW AND KQurrv, ailininistcTod concurrently, 1'2. contlict liotwucn, removed, 17. LAW, QlIHSTfONS OK. /SVr Si-ecial Cask. decision at trial, .'{;"). judj.!c inuHt deal witii, at trial, .'{.'5. [nvliniinai'v, trial of, 'J4'J, 'J48. rides of, I 'J, 17. LEAVK TO DKKHNI), by tiiird party served witli notice, 1 03. specially indorsed writ, l.'VJ, l.'{8. by one of several ilefenilaiits, 1.S8. unc(Miditi(nial or upon terms, l,S8. wlien j.;ranted, V,i2, l.Sfi, l.'JO. l.liAVE TO SKiN JUlHiMlONT, 13'i-130. S<;e Judoment, Specially indorsed writ, affidavit reiiuired, 132, 133. application, how made, 130. shewing cause against, 137. when granted, 133-13.''). LEGAL ESTATE, debts and clioses in action, assignment of, 19, 20. LEGAL UKiUTS AND DUTIES, recognised by all Divisions, 10, 17. LEGAL WASTE, equitable placed on same footing, 18. LEGTSLATUIIE, Orders in Council aa tn commutation to be lav! before, 75. LIBEL, defamatory worda to be set out, 184. LIEN. And see Solicitor. delivery of property on payment into Court, 323. LOCAL MASTERS, authority of, 56. County Court Judge to be, 02. fees, may be commuted, 62, not to practice, when, 03. LONG VACATION. See Vacation ; Vacation Judges. ND and WllIT OK lOMENT, Specially :atiou to bo livnl iilipoiiilriiunt (if guard iaii ml litem INI.KX. r,i I-IFNATFCS, at;ti()ii>t l>y and riKaitiHt, f,'ciiir.ally, 171. dofault r.l' apiMtaiiuicf, \'SA. dofciid hy (•..iniiiittcr ..r i,'iianliim, ,(,/ lUnn, 171. '■X ( coiiimittc.e of, III. guanlian (/'//;/«///, li.iw a|)[i()iiitti, 11. )t to l.(! t.ikrii til whcic no oonwnittcc, 1 1 1. Horviw! of writ on, 1 10. of noti<;u (,n. Km. 8IU) hy commit AH! or next friend, 171 MAMCi;, how j)leaded, IS I. MANI).A.\li;,S, applic.ition for, how and wlien made, W'lW. avail.ihle formerly only when; no other remedy, 22. dehcntures, eiifnrein;^' payment of, 22. diseretioii of court, '1\\. ofloct of new provision.^ .'i.s to, 'j;;_ onforoing (IJnIe ;!4;t), 2!cj. former praetioe as to, •_'•_'. Mi^di Court may ','raiit interlocutory o.'der, L'). Imju'ovement < 'oiiimissioiu^'s, agaiiist, li2. ' indorsement of el lim for, !).'{. interlocutory application, granted on, o|, 23. piil)lic ilutie.s, enforcin;Lr. -'J. railway comp.my ( niorciiiK .•issessment of coninensatiou against, 23 cntorcinf,' purdiii.scof land l.y, 2;i. e > ^• rates, levy of, enf< reed l.y, 21'. rights under eontrf.ct not" formerly enforced bv "•> K. S. (). c, .TJ, under, :>2. ^' "' under new jjractice, 2;j. when to be claimed by writ, '.)l\ MAUKI\(i, name of Division of pleadings, &c.. .'W pleadings, IS'J. M ARIil A( i I']. Sne Ahatkment and Husband and Wife MARIUKI) WOMAX, party to .special caH(;, 249. service of Avrit on, 10!). suits by and ai^'ainst, 147. MASTKU IN CHAMMEKS. See tuAm^EHH. jurisdiction of, IVM. olKcial referee may .sit for, lilU. MATTKR. AVr Action and (JArr.sR. definition of, 81. MERGER, none of legal estate without equita1)lo estate 18 MISCELLANEOUS PROVISIONS 75 MONTH, means calendar month, .353. MORTGAGEE, receiver, when appointed at instance of, 26. >l.s oNi'vuio .iri>ii'vn'ii); wX, IHMI N«»>i; r«i MiK srrrs, in. I'Mi i:ii. i;m. :»7<». mko. VB.><\U'i\( ol w(il in. !••». MOUr»i.\iJO!{ IN POSMlvMMlON. \i(.v\ 'Mw n» itwn i\ivnii', !'.• MOl'ION. ^vnocnUy, 'A'M. (>,fi;<\H'i( .l.'ImiKmj! \ * \\.> ili'li'UilmtiH. V'Vll. H< HM\ <.i»>i«, "}1\^ (Usi'\t'i(i>n <>( .i>ni(ii'. '.*rit. U>i\. j>.«\(i(«.>u !>.-t\<>«, h»mi«iii'B iliri'ili'il, v'Se j>!<»(i>r)i. il\MHolii(ii»i» ul. ','SO. ,»P,«>,o (nM\t rivimiitovs i\v. ;ws. m.t;. \\1\('\» uol)o<' >nvalul. IV21^. Kx i>iT?'M judsimont tor. '^'<< Motion iok .lri'i!M*:Ni' now \\v,\\. S,r i\\:\i Trn.R. noti.'o t>i, .U»'jM'u?»n>vi will'., .'Wi\, lonti ol, ;iSl. not mvwil on ;.ll i>,>ttu>!<. .'('.'tV ^»on(i\>n u\^ mIum.' .u'tomi.uit Iims not Mpjx'Mii M rvioo l\,>ton' ,«j»P<>,'»rnn,v. .'I'.'A. .'IV.'(>. mU1\ wvit. ;. ;<'.'7. two t'lo.u' ilnxx. 'ot|\n\i->i. ;l'2i^, ;i'j(i. \x U>M\ iH-ijniu-ii .'VJA. onltM"!*, tonn ot, ;«'JS. nilo 'i»>;. \\l\on n\.>do. .'W4, MOTION KOK .MIHiMKNT. V>7.\ '2S1, .•»v\v'nnts ana (^)»i(nuu^s tlin>"'((il on, 'J7S. Atlvr (vi;vl ot' issues ol' tiw-t, '.'77. '-7S. Ivfoiv \x h.il .l«ii,C('. .'<.\ -7.'>, ,iot,-»«lt uv »Jol ot" .totVn.v, '2'1\. 'J'J.'*. turtlu-r »\M\suior;\t\(M>. on. 'J7S, lu\->nn>j. pi\Hv on, 'J7S. l(\»\i. )nu-su;\nt i^": at any tinn^ attoi ^vnauvj: .>Pl '»"''>'''' "••"• '-'''^*'- lujoivtion ol a .hnljjv on, ilSl. jHXNVx^r of Otntrt ««», *27S. sfttinc asi«i«'' judcniont, Tonvt ol" Ai^jH-al to. 'J7T. lunhnj; of juvv \>r.>n>ily ontoivil, 'J77. iutlpnont wnnic on laofs, 'J77. Sit tine viowu. by loavo. hofon^ ;vH issnes ilotorniiuoil, -7S. time for. extrv!uo. 'J7S. time for vrhero issues lUrootoJ, '277. .1 :m. v\u\' of writ, 'JSO. J80. M"nnN i.'Mii .n•/() MOTION ON .VM^^MMI.,NM V, m',,,.''':'- ■''''■ NI"]{ l.iiiii. I'lir. ',!7;i, '■"■'' ''.V Jury. 271, Tl'l. p/irl. Ill (iii.iiiii ,|.M (,,,_ ',»7 ( Ht'rvicii III' onli.r iiJMJ. '.r/l, Mlfiy "I' |ilii|.ri.||,,nf„, 'J7f,, vvliKii ,(fiii,iii.".i|, ',r/i. NKXr I'lJII'lM., (•, N()Nt;()MI'|,(A,\(;k vvjTil i!.i;M,s(,i. roij.-r • lli'i'l, III-. ;i.v.). .'i-Ki, NoN'SlilT, (iHuotdf, 282. '!<|iiivali.nl to ju.|jr„„inf-, fur .iiifin-luiit. '2H'> v.i'\X'\u^ aniiic, 282, • - ciihIm (in, 282. NoT<;iIN/rY I'.VST.ATITi;, llOW j)l(!!l(|(;,|, 187. r»l;i ■ f Ml iiu oilier .l.^fcii,:,, ,.JI(,w(;.l without loavc-. 188 Miiviiig UH to i)l(,.;i, 187. vmjw :>ju ONTAIUO JUDiC'ATUI'.E ACT, 1881. ;{.s». 1)V (k't'viKlaul., IS'J atftiit;iiic'c of |i:iyMU'iit into oouit, 386. iMlinissioii oT tiut.-^, lit. 'J.H. .•Ulluil. (loCllllU'IltH, to, 'JH. ioiiii of, '_M."t, :jii'iif.iiu'r liy l.iiiilloi (I. l-'J. t'roN.s-i'Xjiiiiiiuitioii on allitliivita, 1170. (loCUMlL'tlts. to !uln)it, -JH, 'J 4."), :{S7. to inspect, 387. to produce. 3St>. entry «)f tlenuuTcr for argument, 'JiS. liow plca, -77. not duly served, 3-0. po.stiny up, where no api)earan('c service with writ. 3'J(i. when m'<'essary, 3'J4. of appearance, \'2'2. after time limited, I'il. of decree in administration actions, hVJ. payment into court in satisfaction, 380. prochu'c (h)cunu'nts, 380. service on defendant liefore appearance, 3-0. trial, '27)2. And sic Tkiai. Notice of. writinij; re((uired for, 3.")-. No TICK OK riilAL. .SVf Tkiai., Notice of. OATHS. detiuition of, 81. commissioners for taking, 71. forms of l«y couunissioners. itc, for taking evidence, 4'J3. judges to taki', on apiiointmciit, 0. (itlicers to take, TjO. OitLKiATIONS. of existing judges saved, 0. oKFICKKS AND OFFKVHS OF Sl'PEFxME COURT, 55-72, 329-338. ( tFFlCERS. And .sv* .luKisint tion'. all to he auxilarv to one another, 320. attached to s])eeitied Divisions, ."m. authority of certain, preserved. .">0. commissioners for oaths ami aliidavits, 71. di.ioheyiug tirders as to documents, 75. distrihution of business among, 50. duties, how assigned. 50. existing, transferred to Supreme Court, 55. how removal lie. .")5. judgment clerks, 325). INDICX. Master in ( 'liaiu'LTy, uutliority of, M .VlJlHtrlH, triuiHfcrrcd to Sii|.ifiii(. ( 'oiut nr. I';'<'l l-,V tVcs t,. funiisl, statuMfMts'tl.erfof, (it |ii-<'lH r. ' niciuiiiiK of, Nl. ' ' ".'ink and tcniiro of ofiirt; of, a"), fciiioviil of, gcncially, Tm. Hwiuriti.'s, existi.i^r, i:ontiniic(|. ,-,<; HoluMtof.s. -SVc dial 'litic HtatuH, liow Hcttl.d wh.-ni ,|„nl.t r-f. OKKICIAL (iUA|{I)iAX ,(/> A/yv.'l/ (J.l •iI'l'lKation for anotlic- ^'iiaidiaii I |() 'luty of, after service, )(»!). >icrviot) to 1)(^ made on, an Ik n |()<> uhoi.H! of l»ivisioti ))y plainlid', ;{;}, <):_> pla. •• ( MHUe (»f writ, l()|, OI!l)KJ;.^, entry of, ;^.32. execution of, 2!»S. ' foriria of. SW Fi>i;.\is. ui. ■!..,(. " rules," 81. ii' '' peal from consent, ;^8. OHDKliS IN ('OnN(![L, tiow annulled, 75. when lai , • < ■ of eouiiter-claini, ISl PARTIES, 140. adding, action conuneneed hy wrou" iierson 14'> at any stage, ] 5.^. '"' ' "' . bank,u,,tey, death, &c., 31;}, 315. defendants, 15."), edect of order, ;{|5. effect of provisions as to, 153, on motion, 156. plaintifl's, 154. ad mi service of order, 315 tr; amcjidnic! (Jhan •ati it, how and Mheu made, j on action, Chancery procedure 151. eery rules change of. And .svy^ A as to parties in certain matters, 151. add UATK.-MKNT. ing new, on pru'ripr, 315. •ge order 315, 31G. aftei' judgmerit. 31 a])i)licati()u to ilischar time for, 31o. assignuunt, p,v). former praotico, 313. iiiilorsoiiuwit Dii onlor, 31(5. form of, 31(>. m;iiri;igo, 31"). .Horvice of orilur, 315. '•liiinges made by ucw provisitms, )40-142. class, one may huc or be sued on behalf of, 149. representation of unascertained, 14i), 150. single defendant representing, 149. single plaintiir represi'nting, 149. effect of pi'ovisions as to adding, 1.'53. executors and admiui.stratoi's represent beneficiaries, 140. linn, actions in name of, 151. infant plaiutill's sue by next friend, 14(5. And • Infants. joinder of. -SVc .Ioindki! ok I'.virrrKs. married women as ]ilaintiirs, 147. misjoinder not to defeat action, 15'2. original, iii new cai)acity, 315. partners d.'serii)ed by name of tirm, 151. Ai. 1 net' I'.vutners. plaintili'. .Vcc that Title. princijial and age.'t, altcrnaiive claims against, 145. reiire-sentative ea;;^.aeity to be indorsed on m rit, 9(5. service with notieo of decree, 152. atniek out cm motion, 14(5. third party. And ,sy and against in name of tirm, 105, 151. apjiearanec by, 120. disclosure of names of plaintiffs, 105. execution against, 293. juilgnieut, t;nforcing ;igainst, 293. leave to issue execution against alleged, 293. may sue and be sued in name of linn, 105, 151. names of, to be furnished, 151. proceedings by and against generally, 105. re.si'. .x'u, .joi. existing rules may l.e niodiljt!,!, 52 onler of .Judge neci'ssary for payment out, ;};{0 PENDTNO JiUSINESS, assigned to various l)ivisi(ms, ,3.3. (Chancery Division, ;^07, Hf'H.' coinjdeted matters, !). continuance of under old practice on application .308 directions as to proceduri; after traTisfJ, 10 ' how concluded after transfer, f! 10 ' " Queen's Bench and C. P. Divi.sion.s. 307 right to enforce judgment, 29'J transfer to High (Jourt, 9. PETITION, service before appearance, 320. PETITIONER, definition of, 80. PLAINTTFF, tlefinition of, 80. not to be unnecessarily delayed, 105 pers.ms who may be joined as, 140. Jjrepares writ of summons, 102. PLEADING, 190-204. *« Joindku ok Pvimrs abatement, pleas in, abolislied, 18(5. abolition of former rules, 171, 172. action to recover land, defendant need not plead title unless equitable. 0.3 1S7 a(hnissions, 180, 100. i^^^^i'ni., .»,>, m,. allegations not denied not taken to be admitted 100 contrary rule in Englan. balanuu ill (lefundaiit's [■.ivoiir \j:] o()] by foroign -Icfondants ; .scruri'ty fo'rl-o.st.s, 17r, (>y tliird person ug.iiiist dotuiid;uifc, 174 claims iuismg after action hrou^dit, 175 (.ro\M. may .set up, in petiti.m of n>bt, I7(;. debt due from infant, 17"). n. , > ■ (lofence arising after a.^tir.n brought. 17,-) aetendaiit ni.iy .set lip, 17;{. delivery of, to third [ler.son, 1!»<» "GO ( iHcoutuaiauee of action, eifeet .'.n counter-claim 175 -ii^tinct ehum.s, facts to be kept distinct, 18.3. cHecfc of provisions as to, consi.lercd, 173-1 7<> equivalent to cross-aetifm, 175 evidence in reply on, 170. excluding, 17;{, '170. facts relied on t<, he specifieially stated, 189 ioriM ot, I7i), ISO. nulorseiiieiit of, L'OO. .judgment f.n- defendant on, 17.'5 001 may be excluded, 17.S, 17. separate against separate plaintiffs, 1 75 service on tJurd person, l!»!», -JOO sct-olf, M'liat claims may be 17'{' apecitie relief to he claimed,' iH'i' stnlangout, I7G, 177, 200. title of, l!>!>. unliquidated damages, 173 aa Jio b^m^;:;;,^^^;;"^ ^'-'^'"^ -^ -mmencement of Act, ,78. cjetault of, 221, -'t;. ' Ami ... I),.:„,vult defence ,S.. Statement of Defence, injra and demurivr combined 217 definition of, 81. • lelivery of, 17i>. amended. "JIS. claim, 172. 'lefence, 172. demurrer, 217. loD^ vacation, in. 354. manner of, l<>2. '•'"'"'"' reply, 172. r)2n I ■ -i f 526 ONTAIIIO JUDICATURE ACT, 1881. VLEAmS(i~(Co>ifhiucd). (leinurrer, '214-'2'21. allowiiuci!, coats, 218, 219, 220. allowed if not entered for argument, 218. .alternative case, to, 21 (i. anieudinent ])ending, 21!>. and defence conihined, 217. and |i]ea to same matters, 217, 218. coml)ined with other pleadings, 217. costs, 21"), 21!), 220. delivery of, 217. discouraged, wlien, 21o. effect of allowance, 220. effect of overruling, 220. entry for argument, 218. form of, 221. form of, 215, 414. frivolous — costs, 215. grounds of, 215, 210. leave to plead on failure of, 220. may be to wliole or part of any pleading, 214, 21(5. overruled — costs, 220. overruled — leave to plead, 220. Statute of Krauds, 214. Statutes of Limitation, 214. time for, 217. to amended statement, 214. when adu Issihle, 214. when proper, 215. denial of contract, 185. of representative capacity, 185. distinct claims to he separately stated, 18.3. grounds of defence to be separately stated, 183. documents, contents of, 18.3. evidence not to be state negligcMicf, 4()(i, 4(»,S. proniiHHoiy note, ;}<)!>, tres[)a.ss to luiid, 41.'}. I'rainUilent intention, 184 generally, 171. how (lelivered, 182. imi)lio(l contract, 184. includes i)ctiti(pn and sumniona 81 inconsistent pleadings le , de amatory wc.rds to be set out, 184. iiuijite, iVc, 184. marking, date of liling, 182. de.scrijition of pleading, 182 division, 182. name of party or solicitor, 182. title of action, 182 material facts to be stated, 180 matters arising after action brought, I'JI 17 192. :»i',s ONTAUIO JL'DICATUHB ACT, 1881. 5t(itoiiiLiit (if cliiiiii, I'M, 1!)7. aiiic'iiiliiiint sulistitutcd for now assignment, 186. coMts (»l uiiiicc.'i'ssiiry, l!)(j. WoJivfiy (). JoinuritM' to wiiolc allowed, *J1!). (li.stiiiut ehiiiUH, facts to lie kept distinet, 18.*). faets need not be distril)iited, \H'.i. form of, lilt. i/ldol'sellielits on, I'X). naming jiiaee of trial in, IU5, 252. notice in lieu of, I'.Ki. form of, .S84. particuhvi-.s of cause of action indorsed on writ, plaintiff not, eon lined to, lll-t. relief to be s[)eeilieally claimed, 183. •striking out, 210. time for delivery extended, 221, 222. when uecessary, 1!)-1. writ 8])ecially indorsed, 1!)7. furtlicr jiarticnlius, 11>7. .statement of ilefencc, 11(7-201. all gnnmds of defence to be raised in, 189, 197. coats of iniprojier denials, 199. defence on merits where money paid into court, 226. delivery of, 172. where a claina is delivered, 198. where no cl.iim delivered, 198. writ specially indorsed, 199. time for, 198. denial of plaintilfs representative character, 185. di.stinct claims, facts to l^e kept distinct, 183. further disclosing new facts, 192. grounds arising after action brought, 192. after delivery of, 192. inconsistent defences, 198. land, action to recover, 187. " not guilty ]>y statute," 187. payment into court pleaded in, 226. striking out, 210. for disobedience to order for discovery, 243. when necessary, 197. when unnecessary, 199. where leave to defend given, 199. withdrawal of, 204. stating conclusi(vns of law, 180. evidence, 180. facts, 180. statute of Frauds, 185. Statutes of Limitation, 189. striking out. And si'c. that Title, counter-claim, 176, 177-200. QGIGIICG 20*T. discretion of Judge, 207, 208, 210. power of, how exercised, 210. writ, plaintiff not, INDKX. PLEAmNfi-.(Co„(!nur,f). suhHtMiiiont to reply, i.'0(J. leave to deliver, L'OG time f<.r, 'JO(i. sums to 1)0 in figures, 180 time for, nr^TXTm ^""^' ^'''^''■'^*'"n not counted, 354 POINTS OF LAW. And ..r Sn,,*' Ca.v reserve.1 for Divi.sional Court, il ^'^"'■ POSSESS roX, WKIT OF ft,, w POSTEA, ^^^^ Oh. *MVujr..rl'o.saE.ssiON. aboiiahed, 2()2. PKACTK'F, criminal, unaltered, 79, .304 existing, eontinued, uniea.s altered 10 Ro varmncesin, 82. ' PRESERVATION OF PROI'FRTV \ i bringing into Court, .321. "'' ■''' ^'^■'^'-^^-''Tox and J?ece ueteution of, order for, ■i22 application how and when made 'J'>3 cxpernnents, in jiid of, .'{22 inspection, order for, .322. interlocutory order fi)r '.T''' p-vis^s; to,s;& K"^:i? "'*" ^"«-^- 323 sale of perishable goods, 321. apidication, how and when madf ^9^ samples, taking of, 3-"' ' '^^^• PRESIDENTS OF DIVISIOXS 37 consent to transfer of actions,'317. equaliznig busmess, 317 PRINTING, affidavit, partly in, and partly in writing 'i'-.o or-r appeal books, 4()1, 4(J'> 4(;(; "'^'^'"g. do2, 357. description of paper for, 352 pleadings, 182. type for, 362. PRIVILE(;eD DOCUMENTS PRIVY COUNCIL, appeals to, 450, 472 PROCEDURE criminal proceeding's 79 Crown side of (Jueen''s Bench, 79. interpleader, 83. PROCEDURE BOOK, 103 34 r)2i» IVEK. aSVp Documents. t> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I !f IM IIIIIM " IM mil 2.2 .1' lu 14 H 12.0 1.8 i- 1.25 1.4 lA ^ 6" - ► <^ /2 /a ^3 O 7 M Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 d V iV \\ ^9) V <> c> ^<, ^^. ^ .A o '^^ A^ &p c> 'fl'* 530 ONTARIO JUDICATURE ACT, 1881, t <3 i "", ^ ^ ^'> : [ (!■ ! > PROCEEDINGS not specified to be taken as heretofore, 92. I'KOOESS BOOK, 102. PRODUCTION .See Dochmknts. before Referees, &c., 239, 247. books and documcnta by judgment debtor, 304. PROHIBITION, writ of, 425. PROLIXITY, costs of, in pleadings, 172. defined, 180. striking out pleadings for, 172, 180. taxing master inquiries into, 172. PROMISSORY NOTE, forms of pleadings in action on, 399. PROPER OFFICKR, meaning of, 81. QUEEN'S BE? H DIVISION, business assignjd to, 33. ( Irown side, proceedings on unchanged, 79. pending busii.t!,'- .. Oourt of Queen's Bench assigned to, 33. Preaideatof, 4 QUESTIONS OF .vW, See Special Cask. RAILV/AY CUMI'ANV, ."issesament of compensation enforced by mandamus against, 23. purchase of land by, enforced by mandamus, 2.3. service of writ on, 1 12. ItATE, levy enforced by mandamus, 22. KECEIVEK, any party may obtain, 26, 322. application for, how and when made, 323. appointed before appearance, 26. writ served, 26. Common Law Courts did not appoint, 26. Court of Chancery formerly appointed, 26. defendant, at instance of, 27, 322, effect of new provisions as to, 26. High Court may appoint by interlocutory order, 21, 322, 323. indorsement of writ for, 93. interim, without security, 27. mortgagee having legal estate, 26. plaintitt appointed, 27. security, interim, without, 27. must be given by, 27. titki not complete before, 27. to be claimed by writ, 93. when appointed, 26. RKCORD, abolished 262. withdrawal of, 203, 204. by consent, 204. RKDEMPTION, accounts to be taken in suits for, 288. final order in suit for, 288. form of indorsement, 380. INDEX. nEDEMP'TlON-iContinued). procedure in suit for 089 attachment l)y, 263. authority of, 48. 245, 262 cominittiil by, 263. continuous sittings, 2G2 criminal matters not sent to, 46 death of, before making report 246 evidence before, 262 ' fees of official, 62. inquiries and accounts bv '>A'i inspection by, 262 •"-''• jurisdiction, 48. discovery, 23a. entering judgment, 46, 263. officers of court, 48. official, account, questions of, 46, 47. 246 adoption of report by Court or Judge 46 consent of parties when required 4?' enforcement of report as judgment 46 investigation by (/ocal oricieSC' 47 ^o'^e:;* 'if ^'"'^-^ ^- Master,'3^34''- questions may be referred 46 report of, 46, 245. trial of ((uestion or issue, 47 what officers to be, 61 p<»wers, 48, 245, 262. report, case stated by, 263. Court has discretion to adopt. 46 equivalent to jury's verdict, 48 tacts specially stated. 263 order where .luestion submitted to Court 2fii reasons and explanations required 263 ' remitting for f.lrther co«sid2ratfon o^S ait continuously, 262. ~ special, adoption of report by Court or Judge 46 consent of parties when required 47 documents, examination of 47 enforcement of report as ju.lgment, 46 . nvesfgations by (local or sciertiH^) 47 powers of, 48, 245. '' questions may be referred to. 46 47 remuneration of, 46. report of, may be adopted, 46 trial of question or issue, 47 trial by, ' '" authority in conducting, 48, 245 246 26'.> continuous sittings, 262 ' ^'^• enforcing attendance of witnesses. 260 how conducted, 47, 262. ' 531 r)32 ONTAUU) JUDICATURE ACT, 1881. trinl hy— {('oiitiinicd). iHHUC'8 of, 47. not IV piihlii! ( 'ourt, 2(52. Huhiiiittiiif; (|iU'.stioii for decision of ( V.urt, 263. triiil of »mc.sti(in of law hoforc rofcronce, 241). UKKKRKK l.\ CHAMHKllH, authority of, Hi). UKKKIJKNCIO. Ami afp Rkkkukks, Aiuutratoks. by conHcnt, 47. Court or .luilgc!, of ({uustiun, 40. of issue, 47. llKJ01Nf)Klt. .SVr l'i,KAl.IN(». UlCMHF. .SVr I'l.KADiNd. IIKMKDY, appropriate given in all Divisions, IT), 17. liKN KWAli OK WRIT. Set Wurr ok Summons and lixEiitrios. UKl'KALS. all inconsistent Acts, 80. UKl'LY ANl)SlJHSi;c,>lJKNT rLKADlNUS, 204. And .■^ee l'i,KAi.tNIN<1. kIMON I'LKAS :i:v2. '2-2V,. INDKX. liKVISKD .STATIJTKS DK (,\TAI'rf> m r , r!: ""— '> -^ ( I r,anHfcr8), .'U «=■ .»0. HH (i !». ,,(„, ('l,.,kH of Crown) TH H. -'0 (Seiviw), |(»7. :;:ni:'r'"T"''^*::n'''rntionH,. no H.H4(/oi„,h.. of eauHOH of action). I (ilj'.'i ,;h"' H- K-'l ( payinont mto Court) •"•7 •«;(• «• m, Mills an.i Not... ,'£.ii;;J;,^', H. ..f. (Kx;t.,.,„at,on of Parties), it'll « l«il. !<)-) -•7- H. Kit; .< .. ,, 7''- ^i^lll^^ilil'-'i'-f-l-^'row,.,. ,;;]•*'• «• -»-, _.).{ ( I rial), 4,\. « '-'.it, -JfiO. ■' 44 «• -'<)!, !.'(;-), <. 4;-,' «■ -'« (hx<;(;litioii), '_>!)(; " ""'• s. 302, 303 " XV.\ H.33.,((oHts. Mik,,ge). ji s. Ml (CoKts). ;{40. ..«• 'i-'^'M IN- vision of Taxation) t-.^j. .s. |>(l.onlCan.|,l„.l|\s A.t f. 0(>, H. / (Kxccution), 3;{'> ««• 72, 73, " .>(,(■) ««7,BH 10 n, (Writ ^."Xrn.,stl, .300 -^ Ii.i;"Hs^i'p.M!;;!-""•';*^'•*.''«ts,fte.), 303. „ o>m' ;• ' '-^ '<"i-"'ii;in.sL L'O ,M(;hts •"'•'' '"'""'''••"'''''"'■'■ ''^'^^^^^^^^^^^^^ jn. ^,^^^lj;«^a..l .suitable concurrently roco,ni.^^^ when motion for to ho made, .321 KULKSOFCOI 1;t, ,S2. L-ommeneement of, 4;>. eliout of non-ooniplianec witii, .?.-,') Iiow cited, ,3(;7 ' Il."^nT%' '' '''^"""^ '""^ annulled, 40 .-,0 include forms, 80 iiui}; modify Rules in existing statutes -,•' "MMiiial, how made, -,(» ^ """""tcs, .).. provide for what matters, 50 SALk" "'" ''' '"'"""^ '" ^^•'■•--•hthoy extend, 50. 52. o£t.fl J^^'^''^^^-'- trusts in will. &e.. 324. procedure on, 282-289 'SALE OF (JOOD.S, order for, where peri.sliable, &c 3"! •SATUP.DAY, .354. And .see Tmn '' ii.l.J y.H ONTARIO JUDICATURE ACT, 1881. SAVIN(;, ciiinin.ii practice ami procedure, 79, 364. Crown side of Queen's Bench or Common Pleas Division, 79, SM. tH]uital>le rules as to costs out of estate, 338. evidence in jiirj trials, 204. existing circuits, 76. procedure, where not expressly altered, 49. rights to enforce judgment, 299. extraordinary duties and powers of judges of old Courts, 6. interpleader practice, S3, order of issue of execution, 300. plea of not guilty l)y statute, 187. powers of single judge, 3.18. Kroceediugs other than actions, 92. evenue side of Queen's liench Divi>ion, 79, 364. S( AN DA Lous MATTER, striking out of pleadings, 173. 210. SI:;ALS, Deputy Clerks of Crown, of, 48. Deputy Registrars, of, 48. .Supreme Court of, 7. SKCURITY FOR COSTS, amount of, 342, 344. appeal. And me Appeal. liond, form of, .S43. by plaintifT, married woman suing alone, 147. temporarily resident within jurisdiction, 147. dcfemlant not required to give 147. foreign defendants raising counter claim, 343. for future costs when required, 343. order on pt\vcli)e when, 344. b^KQUKSTRATION, commissions of directed to Sheriff, 291. enforcing judgment by, 290, 292. payment into court enforceil by, 290. writ of, 290, 291, 292. .SKRVICE. And we Notice and Writ of Summons. address for, 100. aliidavit of, on default of appearance, 124. iDUuter-claim, on third person, 199, 200. garnishee order, .306. attachment for, 301. notice of motion. And nee that Title. before appearance, 326. with writ, 326. order. atlding or changing p.arties, 315. discovery or production, 243. n'm for new trial, 274. out of jurisdiction, 114-118. allowance of where made without previous order, 118. concurrent writ, 103, 104. existing jurisdiction as tOj not affected, 118. former practice, 114, 116. INDEX. b^:^ SKRVIOK— (CoH(inHfrf). out of jurisdiction — {Continued), Ijocal Master or County Court Judge cannot allow, 116. {>etition before api)earancc, 326. substituted, 107, 108. summons before appearanoe, ,326. time for etfeeting, ,'{04. undertaking to accept, 107. writ of summons, 107-114. And /)pe Writ of Summons. SKT-OFF, former practice, and that under Jud. Act, 173. 'arnishee, l>v. 309. .Statutes of, 'l73. vSK'n'INU DOWN, action for trial, 250. appeal for heaving, 462, 464, 466. s|H;eial case, 250. SHKKIFF, applications againct to return writs, 295. to pay money levied, '.V2'y. attachment against, 295, 301. SIGNINU JULXi.MKNT. SW Ji ikj.mext. SKJNATUHE (»F COUNSEL, to pleadings, 180, 181. to special case, 250. SlTTIN(iS OF COURTS, kv. Court of Appeal, 467, 468. High Court of .histice, 362 lengthening, 362. SLANDER AND LIBEL, defamatory words to be set out SOLICITORS, acting without authority, 104. address, 119. admitted by Divisionjil Courts, attorneys to be called, 71. default in entering appearance, 120. disclosure by, whether writ issued by him, 104. duty of, served with order for discovery, &c., 243. lien, effect of garnishee, order on, 308. marking j)leading with name and addivs.s of, 182. may practice in any branch of Supreme Court, 71. officers of Supreme Court, "2. privileges and obligations unchanged, 71. striking off roll, motion how made, 325. SPECIAL CASE. And sre Ca.se. agreement of parties as to, 248. argument of, 248. copies required for Judges, 250. divided into paragra])hs, 248. entry for argument, 250, 251. facts must be real, not hypothetical, 249. filing of, 249. form and contents, 248. in actions after issue of writ, may be stated, 248. S'^ Court of Appk.vl. And xte HiciU Court. 184. il. i;{6 ONTARIO JUDICATUUi: ACT, 1881. \M SI'K( 'I AL V\i^K—{Conliiine,l). iuforcMcfs of fact or law, '248. paitii'8 under disability, '249. ^M^wo^ of ( 'ourt on, to refer to documents and draw inferences, 248. preliminary (juestion of law raised by, '249. Higning of, 249. staying proceedings pending decision of preliminary (|ucstion on, '249. SPKCIAl.LV INDOllHET) WKIT. See Indoksemijlnt of VVkit and VVmr : Specially indorsed, signing judgment, llV2. SI'E(^IAL UEKEHEE. See IIefkukk.s : Special. SI'K( 'lER' I'EIIFUIIMANCE, form of indorsement, 380. STAMPS, cancellation of, (54. STATEM KNT OF CLAIM. See I'i.eadino. STATEMENT UK DEFENCE. See Pleadi.no. STATUTE OF FllAUDS, pleading, IHC). STATUTE OF LIMITATIONS, defence raised by demurrer, 189. effect of renewed writ, !()(>. express trusts not barred, 18. when to be pleaded, 189. STATUTKS. And *w Kf.vihku Statutes of Ontario. construction of previous, relating to .Judges, .54. existing rules in, as to practice and procedure, how modified, 52. inconsistent with Judicature Acts repealed, 80. set-otl", of, 17.S. B. N . A. Act, 8. 9«, 3. Con. St.at., c. lo, s. '2, 73. 32 Vic, c. '2-2, s. 1 (().), 7*2. 3'2-3 Vic, c. 12, s. 41 (D.), (service on corporations,) 113. 40 Vic, c 43, 8. ()l (D.), " " " 113. 41 Vic, c. 8, s. Cy (O. ), (distribution of business), 34. " s. 7, (evidence on appeal",) 3'28. STAY OF EXECUTION. See E.xecution, Appeal. STAY OF PIIOCEEDINOS. See Appeal. appeal not, 4,'')7. appeal to .fudge from Master, 338. application to Division in which action pending, .3*24. C(»urt may direct instead of restraining liy injunction, 15. new trial, pending, 275. cm p.ayment of ascertained money demand, 99. pending decision of preliminary question of law, 249. whore plaintiff's names not disclosed, 105. writ issued without authority, 104. STRIKING OUT, cause of complaint in part, '203. counter-claim iniproperly raised, 176, 200. defence, wholly or partially, '204. embarrassing pleadings, 180, '209, 210. matter tenueen'8 Bench, Common Flfa.s, and Court of appeal conaolidatefl, 2. divideil into Migli Court of Justice and Court of A])peal, 3. .fudges. .SVy' Jii)(!F,s. may alter, annul, and make new Rules of ('i.urt, ."»l. otticera. «SV*' that Title. seal of Court, 7. surr(m;at1": COURT of<'F1cki;s, not to draw or advise on certain documents, G4. foes of Judges, provisions, as to, 74. SURVEYOR, reference to, l>y Judge, 2(i.'>. TAXATION. See Costs : Taxation. TERMS, } abolished as to length of sittings, 30. exist as measures of time, 30. TESr ACTION, default by plaintiff at the trial, 204. THIRD PARTY. .SV* Partif..s Joinder ok Pakties. TIME, 3r)3-3r)6. And .x^r Time Talle, p. 474. abridgement of, 355. amendment, counter-claim, 21 1. pleadings — long vacation not counted, 354. statement of claim, 211. appeal, we Appeal. appearance, 3(59. writ serveM. motion for judgment. Set' that 'I'lri-K. nutico, motion, .'125. MiO. motion for judgment on iitfidavit evidence, -71. trial, 'Jo'J. And xcc NoTicK and Tkiai.. to oroa-sexamine on allidavits, '270. payment into ('ourt in Hatisfaetion, *2'2(>. acceptance l»y plaintiff, '227. ploadingH for, long vacation not counted, .S.')4. reply to counter-claim against thinl peiHon. '200. Saturday, service on, 'A'A. service of order uiii for new trial, 274. of procecding.s generally, Mi>4. sittings and vacations, M(5'2, 'M'.\. Sunday, time exj)iring on, M.'i.S. .Sunday, when counted, MoM. TITLE, counter-claim against plaintiff and a third person, 11)9. TRANSFKUS AM) CDxNSOMUATlON, 317-MI9. And «fe Tran.skkk. TRANSFER, actions, against estate after .administration ortlcr. Ml 7. apj)lication for. on notice, MI7. from Inferior ('ourt to High Court, 73. from one Division to .another, 34, .SI 7. by Court or Judge, ou motion, 317. by Presidents to eciualise business, 317. consent of Presidents necessary, 317- from one judge to .another, 34. general power, 34. hooks and doeuments to .Supreme Court, 7.'>. commissioners for oatiis to .Supreme (vourt, 71. existing stall' of ollicers, 65. pending business, 8. TRESl'AS.S, injunction against threatened, 21, 23. forms of pleadings in action for, 413. TRIAL, 4-2, '25l-'2(;3. Sre also New Trial. adjournment, '2()1. different questions, at different times .and places, '253, 255. entry for, 143. by either party, '250. by both parties, 25G. Chancery Divisitm, in. '25(5, '257- copies of pleadings for ji"'oC, &c., 256. in County Courts, 250. separate lists for defended and undefended issues, '2.58. time for, 257. withdrawal by ccnsent, '204. with what officers, 2.50. INDKX. n;;!* T\U\\. {('otifimi^d). evidence how tiikcn, 'J04. And ni'e VWiUKsrA. iMHues of fact. .Vrc.luuY, Issues of Fact, mid IIkkkukncik. gnrnmhee diHputiii^ li:il>ility, li\0. garnishee order, under, .'!l(>. on a])])lic:itj()n to enforce eonditional judgment, 21)'2, '293. JH«igu or judges, before, 45, 'JHu. with jury, before, '2^*^}. judgment. .SVr .Jiihimkn r. jury, new trial. And .•«■(' New 'ruiAi.. single judge sitH, 'Jo"), mode of, 4H. diii'erent, fur ditVerent (|ueHtions in same action, 251, '253, '255. uon-ap|iearance, application to set aside judgment on, '2(50. of defendant, L'5!). proving notice, '25!). of plaintiiV, '25<>. proving notice, '25'.). non-jury cases, sittings for trial of, 45. notice of, by either party, '252. time for, '25'2. dismissal for want of prosecution, on default of plaintiff's giving, '25*2. time for, "252. countermanding, '25(5. form of, '255. i;iven l)efore entry, '25(». length of full, '255. proving on non-appearance of oi)iM)site party, 259. short, '255. play Hinj^lo Judgo of (Jourt of Aiipeiil, 41. |ii(adin>;s, (Ulivi-ry of, in, 'A04. Kuli'N lixinK', liow nnidc, 'Al. sittings in, .SI. VACATION .lUlXJKS, iiuthority of, 'MV2. huHinrMM heard l»y, .S(W. Court of A|i|KMi, .Ind^'i-a not required to act as, 363. liiiw selected, .'{()'_', .'{(•.'{. iitlicr .Jiidm-N ni;v> Hit for, 303. sittings of, 3!, 363. VI'LV/)/ TIOM KXroXA S. writ of, Hivved, 'JUO, .300. VKNMjK, former pr.aetice, '2^)'2. local, ivliolJMhed, cxecpt in ejectment, 2.'')2. WAST I-:, i-i|uitalde, placed on .same footing us legal, IS. injunction .-igaiuHt, tlircatenod, 'J I. NVITNKSSKS, enforcing attendance, To. WITHDRAWAL OF IIHCOUIJ, 20.3. \V()l;l)S. S,( iNTKlU-liKrATIoS, SO, 367. wurr OK AiTA(;u.\ii:.\T, 2!»2. \VI!I r OF DKIdVKUV (CH A'lTKLS), 292. 312. liow and when ol)tained and enforced, 312. property other than land, 312. WKITOF HXKCIJTION. Sn- Execution. what it includes, 2i)2. \V I { I T O K I 'OSS KS.S 1 X , 3 12. atiidavit in support, 312. .■He.-t of, :i\2. form ..f, 312. \V |{ IT ( )K S l-AiV KSTl{ ATION. See Exkcution, Sequkstration. WRIT OK sr.M.MON.S, i»2, i)."). action coniiucuced by, !(2. administration actionn, in, 93. amendment, 94. on adding defendant, 1.17. necessary when, 9-1. concurrent, 103. former practice, 103. for service out of jurisdiction, 104. costs of proli.x, 93. date of issue to appear on, 94. divisions to be specilied in, 92. entry in process hook, 102. tiling copy, 102. form of, \}?„ .369. for service out of jurisdiction, 93. how issued, 101. I UKSTKATION. INDEX. WHIT OF .SlIMM()XS-(r'o«<,„„e,0. ccmcurrent— (r'o«^/««<-,/). liuw prf^iiirtd, |0v». . in force f..r twelvo iiuuitliH, 105 i"Uor8e,m,-..t U2, H .,,. Am.1 .. fs ..ouhrmf.nt .,f V, iuth HM.l Specially ln.l„r«o.i, Infra a«lrlivHHL'H on, 1(H). iuiiendiiuiit of, !»'). tliiiiii , <).-,^ |(j|_ coHtHof |inilix, !».S. clainu.!, U.S. rodeiiiptioii (■laiiii for, .'{.SO Hignuiy jiKlKiiiciit u licro niKoial. I.'?" j3,j;;;."«'''''-''--''^''f'-'ia...s,ii4!;. - '>y plaiiitid' from any o(Hue. 101 '•oiiciirrent, lo;{ may bu partly written, &c.. 1()'> " "" notice in lieu of, %\ ruieU!'"" '''•''""•'"•^" *" '^''' ^'"t^Te.! t<» I.e statcl, 102. applicatio.,, how and when made, IOj") for twelvo montJis, 105. now en'ected, K)'). leave necessary, \m. original writ lost, 100. 8ealing'!;fVT(?]."*''' "' ^""'*^*'"" ^""«»»g. ^^- service, 107-114. action to recover land, 1 13. colonial government, on, lis companies, 112. company, (m limited, 112. corj)orations, on, 112. foreign corjioration, on, 113 husband and wife, on, I0'> indorsement of date, ii4. infant defendant, J09, HO. limited companies, on, 112 lun.itic defendant, 1 10. married M-oman, lOi) mode of, 107. official guardian, 109. partnership (irm, on, 111. personal if possible, 107. public bodies, on, 112. railway companies, 112. 541 542 ONTARIO JUniCATURE ACT, 1881. mh WRIT OF SUMMONS-(Co»«nM«.i). service substituted, how effected, 108, 109. not allowed on colonial government, 108. when allowed, 107, 108. service out of jurisdiction, 93, 94, 114. acts afifectinp property within jurisdiction, 116. acts done within jurisdiction, 117. athdavit supporting application, 116. breach within jurisdiction of any contract, 116. contract made within jurisdiction, 116. County Judge cannot allow, 116. foreign corporation, on, 113. form of 93. leave not required, 1 16. Local Master cannot allow, 1 16. notice in lieu of, 93, 94, 118. form of, 370. notice only served on foreigner, 93, 94. old practice, 115, 116. order allowing, 1 16. property within jurisdiction, 116. snrvice of notice in lieu of, 118. setting aside, 1 16. time for appearance, 94. tort below low water mark, 117. when allowed, 116. signing of, 102. solicitor to declare whether he issued, 104. specially indorsed. And see Indorsement of Writ. account, order for immediate, 138. affidavit of defendant, 137. what sufficient, 137. affidavit of plaintiff, 132, 133. by whom to be made, 132. in reply, 137. ajjplicatiou to sign judgment, 132, 136. defence as to part, 137. defence by one of several defendants, 138. i'udgment against one defendant, 138. eave to defend generally, 135, 138. unconditional or upon terms, 138. showing cause against judgment, 137. statement of claim, delivery of, 206. teste of, 94. to bear date of issue, 94. 1 2 7522 4 COPP, CLARK * CO. QGNCRAL PRINTERS, OOLBORNE STREET, TORONTO. m m