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Tous les autres exemplaires originaux sont filmis en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboies suivants apparattra sur la derniftre image de chaque microfiche, selon le cas: le symboie — ► signifie "A SUIVRE ", le symbols V signifie "FIN ". Les cartes, planches, tableaux, etc., peuvent Atre filmAs d des taux de reduction diffArents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est fiimA d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 4 5 6 MANUAL OF PRACTICE OF THE HIGH COURT OF JUSTICE FOR ONTARIO, rNDER THE ONTARIO JJDICATCRE ACT. 1881, WITH THE ADDITIONAL RULES THE '"'UPREME COURT OF JUDICATURE FOR ONTARIO, Passed since the 2l8t Augmt, 1881, AND THE RULES OF THE HIGH COURT OF JUSTICE. BY GEORGE SMITH HOLMESTED, (Registrar of the Chancery Division.) TORONTO : ROWSELL & HUTCHISON. 1881. /-I 2ii^ Entered according to the Act of the Parliament of Canada, in the year of our Lord one thousand eight hundred and eiglity-one, by George Smith Holmesteu, in the Ottice of the Minister of Agriculture. rf KOWSELL AHD HUTCHISON, KINO STREKT, TOROMTO, PRINTERS AND B00KBINDER3, , in the r-one, by [lister of PREFACE On the 21st August last, a complete revolution was otfected in the procedure in civil proceedings in Ontario by the coming into force of the Ontario Judicature Act, 1881. Chano-es in procedure, however desirable on their merits, are at all times open to the objection, that they inevitably tend to create difficulties, and uncertainty, in the conduct of causes, and some time must necessarily elapse, before any new system can be thoroughly mastered by those who have to carrv it into operation. The attempt to mould the new syfjtem of procedure into a book of practice may appear to be premature, and it must be admitted that any such attempt must necessarily have, at present, in many respects, a tentative character. To those, however, who have neither the time, nor inclination, to make an analytical study of the Act and Rules, with a view to informing themselves of their precise bearing upon the different stages of an action, it is thought the following pages (in spite of whatever defects may be found therein), may be of some service, as the author has endeavoured to focus the several portions of the Act and Rules applicable to each particular step of the proceedings, and thereby save the practitioner the labour of an independent search, at each time he wishes to take a step in a cause. IV PREFACE. No attempt has been made to treat of proceedings in the Master's Office, for two reasons,— the first, being that no appreciable change has been made in the foniier practice in Chancery as to such proceedings ; and the second, that to have done so, would have materially increased the bulk, and thu cost, of the book, and besides have delayed its publication. In conclusion, the author desires to acknowledge the great assistance he has received in the preparation of this work, from the valuable annotations of Mr. Maclennan, Q.C., upon the JiuUcatare Act and Rules. OSGOODE Hall, 29th September, 1881. TABLE OF CONTENTS. PAOE Table op Cases Cited ^* JcDUATURE Act Cited ^^ Rii.Es OK Supkemk Couht Cited ^'^ Consolidated flESERAL Ordeks ot the Coitrt of Chanoery Cited xviii Addenda ^^^ CHAPTER I. The Court ^'' 1. The Supreme Court and its Divisions 1 2. Jurisdiction of the Court of Appeal * 3. Cases appealable to the Court of Appeal » 4. Jurisdietion of the High Court ° 5. Ju 4. How iasueil 44 5. Form of Writ 44 6. 'I'inie to 1>e liinited in thu writ, fur iippciiraucu thereto 44 7. Uate, and teste, of writ 45 8. Indursenient of writs of suniuious 45 9. Issue of the writ 48 10. Certifieate of Hs pendens 45) 1 1 . Concurrent writs 49 12. Duration, and renewal, of writs 5() 13. Amendment of writs 51 14. Setting aside writs 51 CHAl'TKR V. Service of Writ of Summons 52-57 1. Service on Solii-itor 52 2. Personal Service 53 3. Substituted Service 54 4. Service on I'articular I'efendants 54 Marrieil Women 64 Infants 54 Lunatics 55 Partners 55 Corporations Aggregate 5(5 5. Service out of the .lui-isdiction 5<> 6. Indorsement on writ of Date of Service 57 7. Affidavit of Service 57 CHAPTKR VI. Appkahance 5SG2 CHAPTER VII. Proceedings in Defavlt of Appearance G3-77 1. Appointment of Guardian ad Ufciii 63 2. Allowance of service of writ, when served out of jurisdiction. G5 3. Judgment in default of appearance 67 1. Actions formerly cognizable at law 68 {(i) Final judgment in default of appearance 69 (fi) Interlocutory Judgment in default of appearance. 72 II. Actions formerly within the exclusive jurisdiction of Chancery 73 {a) Actions for foreclosure, sale or redemption 73 (/*) Actions for administration or partition 75 (c) Actions foi an account 76 ^ ((/) Cases in which motion for judgment must 1)e made. 76 CHAPTER VIIL Proceedings afier Appearance 78-82 1. When writ speciallj' indorsed 78 2. In actions for an account 81 3. In actions for foreclosure, or aalo 81 4. Other actions 81 11 TABLE OF CONTEXTS. ▼ii PAGE 44 44 44 45 45 48 49 49 50 51 51 52-57 . 52 . 53 . 54 . 54 . 64 . 54 . 56 . 6ft . 56 . 56 . 57 . 57 5862 63-77 PAOK CHAPTER IX. Pleadings 83-111 1. Nature of Pleadings iti an Action 83 2. Rules of Pleading 84 {a) Rules applicable to all Pleadings 84 (ft) " •• Statement of Claim 87 (r) " " Statement of Defence, and Subse- quent Pleadings 88 3. Filing, and Service, of Pleadings 92 4. The Statement of Claim : 93 {(t) Form of Statement of Claim 94 5. Defence, how made 95 (a) Statement of Defence, and Couuter-Claim 96 (/>) Dispute Note lOO (c) Notice t( I Third Party, liable to defendant for contri- Ijution, &c 101 6. Proceedings after I)elivery of Statement of Defence 103 { in Cu\siur.K>^—( Confiiiin il J rA(!K ('/) Kvidence on Mf»tion8 203 (' ) Hearing of Motions '20<» (/) ^fotions in Particular CaHt-H 207 2. MotionH in Chainbera 209 (rr) Mattcrn excluded from the Jurisdiction of th« Mnster in Chambers 210 (/*) Motions in ('hainlterH, how made 215' (r) Applications in Chamhers, to ('ounty ' lart Judges, ami I/)cal Masters 213 ((/j Matters excluded from the jurisdiction of (' unty Court Tudj^es, an 1 Local Mastera 214 (e) Applications ni Chambers to County Court Judges and liocal Masters, how made 214 3. Motions in Ciiambers may be adjourned before a Judge 215 4. Actions for Administration, or Partition, which may be com- menced by Moti(m in Cliaml)er8 215 («) Administration 215 {!>) Partition, or Sale 217 6. Appeals from Chambers 218 6. Appeals from I»cal Masters 219 CHAPTKR XVIT. PROCEF.niNtJS TO OBTAIN DiSf LOSrRE OK KeSIUENCK, &C'., OF Pl.AIN- 7IFK— AND Names ok Paktneus 220-221 1. Proceedings to obtain Disclosure of residence, and occupation of iilaintiff 220 2. Proceedings to obtain Disclosure of names of Partners suing, or sued, in the name of a Firm 221 CHAPTEIl XVIII. Security for Costs 222-227 1. When Order for security may be obtained on Pr.ecipe 222 (rt) Order on Pnecipe, how ribtained 223 2. Special Application for security for Costs 223 3. Security, now given 226 CIIAPTFR XIX. Discovery. Examination of Parties— Pkodcction of Documents 228-246 1. Examination of Parties for Discovery 228 (a) In the Chancery Division. 229 {b) By Plaintiflf 230 (c) By Defendant 231 (>f) The Examination 232 2. Examination for Discovery, in the Queen's Bench, and Com- mon Pleas, Divisions 233 (f) When it may be had 234 {/ ) How obtained 234 3. Costs of Examination for Discovery 236 4. Examination may be used in Evidence 236 6. Production of Documents 236 B TABLE OF CONTENTS. PAGE Examination of Parties — Prodcction of Documents — (Continued. ) ((() Protluction untler Order, of course 237 (h) When Ortler o])tiiiniible 238 (c) Affidavit on Production 238 ((/) Documents to be produced 239 ('4 Documents which need not l)e produced 240 (/) Cn>ss-examination 242 (;/) Consecjuence of non-production 242 6. Production under Special Order 243 7. Production on Notice 244 CHAPTER XX. Amendment of Writs, Pleadings anu other Proceedinos . . 247 253 1. Amendment of Proceedings generally, under order 247 (a) Amendment of AVrit of Summons, and Indorsement . . 248 {b) Amendment of Pleadings under order. 248 (c) Adding, or striking out, I'arties 248 2. Amendment of Pleadings, by Consent 250 3. Amendment of Pleadings, without Leave 250 4. Amendments, how macie 251 5. Amendment of Judgments, and Orders 252 CHAPTER XXL Proc'Ekdinos consequent upon ^L\RRIAC{E, Death, or Transmis- sion OF Interest, of Parties to Actions 254-263 1. Proceedings necessary upon Marriage, Death, or transmission of Interest 254 («) Marriage of Female party 255 (h) Death of parties 256 (c) Bankruptcy of parties 257 (il) Assignment pendente lite 257 2. Who may obtain Order to continue Proceedings 259 (o; How Older obtained 2(J0 \h) Service of Order 261 3. Discharging Order 262 CHAPTER XXII. Payment of Money into, or out of. Court 264-205 CHAPTER XXIII. Transfer, and Consolidation, of Actions 260-267 CHAPTER XXIV. Miscellaneous 268-271 1. Computation of time 268 2. Pending Business 269 8. Procedure in County Courts ^ 271 Appendix 272 ti J yfT>:'^^-^'iZ''^:^;r?l'^:?&:'HiM\^f::'TJ l- ■'''-■■'■'^j- TABLE OF CASES CITED. A. PAGE Allan V. Aiulrcws KiS Amos V. Chadwick 2(J7 Anonymous, 1 1 Jur. 258 30 Apijleton V. Chapel Town Taper Co . 25 Arnott, He — Chattertoii v. Arnott 211, 217 Arthur v. Brown 224 Atkins V. Taylor 80, 81 Attorney-Cieneral v. Toronto Street Kaihvay Co 32 Attorney -General v. Niagara Falls International Bridge Co 33 B. Bacon, Re 185 Bagot V. Easton 38 Baird v. Story 154 Balsam v. Robinson 28 Baker v. Oates 174 Baker v. Trainor 3(5 Bank of Toronto v. Burton 157 Bank of Upper Canada v. Thomas. . 181 Barker v. Cox 38 Barnes v. Bromley 175 Bartholomew v. Freeman 208 Bell V. Lowe 7 Bescoby v. Hamilton Water Com- missioners 15G, 158 Blackburn v. Cameron 87 Bhickburn v. McKinlay 30 Blake v. Jarvis l.,o Bonter v. Pretty 174 Bootli V. Briscoe 38 Boswell V. Pomeroy 154 Boustead v. Whitmoro 21), 34 Bownican v. Bowman 158 Bowey v. Bell 173 Bower v. Hartley 102, 103 Boyd V. Haynes 157 Brigham v. Smith 181 B. PAGE Brown v. Blackwell 91 Brown v. Sewell 184 Brouse v. Cram 17G Burchell v. Pugin 158 Builder v. Kerr 155 Burridge v. Nicholetts 90 Bu; ion V. Roberts 156 185 O. C. &L., Re Cairns v. AN ater Commissioners of Ottawa 91 Cameron, Re 185 Cameron v. Campbell 181 Campbell v. Peden 157 Catholic Printing Co. v. VVywian . . 205 I Cattanach v. Uniuhart 61, 100 j Chamberlain v. McDonald 28 j Chard v. Meyers 7 ! Charlton v, Dickie 123 Chattteld v. Sedgwick 175 ' Chattertoii v. Watney 156 I Chichester v. Gordon 154 1 Ciiild V. Stenning 33, 37, 38 Clark V. Clark 160, 217 j Clarke v. Creighton 34 Clendinning v. Varcoe 205 (,'leveland v. McDonald 36 Cohen v. Hall 157 Cole V. Firth 175 Colhe, Ro 102 Collins V. Welsh 174, 176 Colver V. Swayze 31 Commercial Bank v. Jarvis .... 155, 157 Connnissioners of Sewers v. Gellatly . 32 Cooper V. Ewart 187 Cooper V. Brayne 158 Cotton V. Vansittart 158 Cowan, Re 166 Cox V. Barker 33 Creen v. Wright 128, 174 Crump V. Cavendish 79 Xll TABLE OF CASES CITED. It! D. PAGE i Dale V. Coon 90, 01 i Daniel v. McCarthy ... \n<'t Darling v. Darling 1(!7 ' Darling v. Wilson 17(i i Dauheny v. Shuttleworth 203 ; Davidson v. McKillop 131 Davies v. Felix 129 j Davis V. Jones 128 Day V. RaIuggon3 V. Tweed 98 E. Kadie v. McKvcn 143 Kastiuan v. F\astman 30 E Foster, Re 205 Fraserv. Piueni.x Mutual Life Ins. Co 25 Friendly v. ( 'arter 118 Fritz V. Hobson 143 Furncss v. Mitcliell 29 Q. Garnett v. Bradley 173 Gibson v. Toronto Roads Co 122 Ginty v. Rich 155 Glassop V. Heston Local Board .... 1(53 Grant v. McDonell 158 Griawold v. Buffalo, B. & G. R. W. Co 158 Gwynne v. Reea 157 J. Jackson v. >Lawby 150 .lames v. Crow 1 23 •lesse V. Bemiett 26 Jessup V. McLe.an 30 Johnson v. Diamond 1.57 Johnson v. Palmer 51 Jones, Re — Eyre v. Cox .50 •Jones v. .James 187 Jones V. Thompson 157 K. Keim v. Yeagley 182 King »•. Connor 176 Kirkpatrick v, Howell 74 Knatchlnill v. Fowler 163 Kra-mer v. filass 29 Lapp V. Lapp 143 I^arge v. Large 51 I.rfiwson V. Laidlaw 28, 34 Leathley v. McAndrew 31 Ledgerwood v. Ledgerwood 217 Txjmon v. Ticmou 154 Lewes, ?^arl of, v. Bamett 150 Light v. Light 31 Lockhart v, (iray 156 Lumsdeii v. Davis 118 TAIU.E OF CASES CITED. • •• Xlll M. PA(iE Macaiiley v. Huniball I'lS Macdoimld v. Cairiiigton 1)8 Mair v. Aiulcrson 1(55 Maj(»r V. McKenzio 174 Mallocli V. ilohnstoii 17-t Maiui V. I'orry 150, '-'OS Margate Pier Co. v. Perry 80, 81 Marsden v. Uiucashirc and Vorksliire R. W. C;<..... 175 Mason V. lirentini 175 Mason V. Jeffrey 2'J4 Mellish V. iJnftalo, B. & U. U. W. Co. 15«) Merchants' Hank v. (irant 143 Metroi»olitan Loan and Savings Co. V. Mara 154 Miller v. Mynn 15() Mitchell V. Leo 155 Mitcliell V. Weir 28 Moggridge v. Thomas 202 Moran v. Schernierhorn 5,S Mnirhead v. I»irect I'. S. Cable Co.. 79 Munay v. Siniiison 15() Murdock v. ( )'SiiIlivan 34 Murney v. Courtney 17<> M jers V. 1 >efries 174, 175 Mt. McAllister V. Hishop of Rochester.. 103 McArthnr v. Southwold 3 McConnell, Re 27 McConnell v. McConnell 203 McDonald v. McMillan 124 McDowell V. Hollister 157 McKarlane v. Murphy 34 McKay v. Mitcliell 150 McKee V. Irwine 174 McKenzie v. Yielding 17(> McLean v. Cross 170 McLennan v. Helps 1(54 McMillan, Re— Patteraon v.McMillan 217 McPherson v. McCabe 30 N. National Provincial Bank of England V, Harle 27 National Provincial Bank of England V. Thomas 34 Naylor v. Karrer 98 Neale v. Winter 175 New Westminster Brewery Co. v. Hannah Ifi2 Nicol V. Ewen 150 North Wheal Exniouth Mining Co. . 205 0. PACK Oastler v. Henderson ' _i» D'Donohue v. Maguire 91 Ortner v. Fitzgibljou 79 P. Padwick v. Scott 98 Patrio V. Sylvester 88 Pattisoii V. MacNab 124 Peacock v. Harper 1(53 Peterkin v. Mactarlane 51 Phillips V. Royal Niagara Hotel Co.. 87 Pickering v. Ilfracombe R. W. Co.. 158 Pilclier V. Hinds 40 Pike V. Fitzgibbon 34 I'hun V. Normantown Iron Co 87 Ponton V. BuUen 154 Powley V. Wliitehead 27 1 Price V. Bailey 1(55 Pringle v. (iloag 181 Q. Quantz v. Snieltzer 5.'t Quin V. Hession 98 R. Radclyffe, Re— Pearse v. Radclyffe.. 175 Rann v. Lawless 30 Ray V. Barker 80 Real and Personal Advance Co. v. McCartliy 100 Republic jf (Josta Rico v. Strouslierg 155 Roberts v. The City of Toronto.. 157, 158 Robertson v. McMaster 224 Robinson v. Rol)in8on 137 Roche V. Patrick 87 Rossier v. Westbrooke 53 Rotherham v. Priest 79 Royal Canadian Bank v. Mitcliell . . 28 Royal Canadian Bank v. Cunnner . . 1(55 Runnacles v. Mescjuita 80 Russell V. The tireat Western R. W. Co 105 S. Saner v. Bilton 175 Schneider v. Batt 103 Schneider v. Proctor 118 Schroeder v. C'leugli 147 Scoble V, Henson 7 Shelford v. Louth and E. C. R. W. Co 79 4 I r XIV TABLE OF CASES CITED. S, PAGE Suldons V. Lawrence 174 .Slater v. Slater 216 Slater v. The Canada Central R. W, Co 87 Sloman v. Governor of New Zealand 54 Solomon v. Donovan 156 Smart and Miller, Re 156, 158 Smith, Re 187 Sparrow v. Hill 175 Springer v. Clarke 176 Stewart v. Gladstone 165 .Street v. Grover 99 Summers v. Morphew 156 Swan V. Adams 224 Swansea Shipping Co. v. Duncan . . 102 Sykes v. BrockviUe and Ottawa R. W. Co 160 Tapp V. Jones 155, 159 Taylor v. I'ede 35 Thompson v. Callaghan 224 Thompson v. Dodd 143 Thurgood, Re 185 Tilbury v. Brown 160 Trail v. Porter 50 Treleaven v. Bray 98, 102 Trust and Loan Co. v. Osborne .... 40 Turner, Ex. p 156 Turner v. Heyland 175 Tyue Alkali Co. v. Lawson 174 U. PAGE U. E. & I. Ins. Co., In re— Ex. p. Hawkins 157 V. VanNatter v. The BuflFalo and Lake Huron R.W. Co 90 Vanwinkle v. Chaplin 30 Vars V. Gould 224 Vivian v. Westbrooke 26, 216 W. Warner v. Mosses 363 Warner v. Twining 98 Watkins v. Hawkins 87 Watson V. Cave 32 Webb V. McArthur 181 Wheeler v. LeMarchant 241 White V. White 49 ^^'ilson V. Church 32 Wilson V. Dundas 156, 158 Wilson V. Wilson 223 Wise V. Birkenshaw 158, 159 Wise V. Hewson 174 Wolverhampton and Staffordshire Banking Co. v. Bond 54 Wood V. Dunn 160 Wright V. Morgan 61, 100 Wye Valley R. W. Co. v. Hawesl02, 103 Y. Yorkshire Banking Co. v. Beatson . . 80 |l JUDICATURE ACT, AND RULES, CITED. XV JUDICATURE ACT CITED. PAGE. 3-2. 5—48. 8—48, 146. 9—5, 49. lO 92. 3* 12-5, 30, 35, 48, 72, 110, 111, 113, 115, 119, 148, 129, 206. s. 13—3. s. 14-3. s. 16-98, 231. B. 17-5, 207. 8. 25-127. PAOE. 8. 28-6, 122, 128. 8. 29—6. 8. 32-4. s. 33—4. 8. 34—4. 8. 35—4, 7. 8. 36 — 4, 7. 8. 37-3, 4, 126, 129. 8. 39-128. 8. 44-122. 8. 45-117, 121. s. 46-120. 8. 47—13. 8. 48-14, 136. PAGE. 8. 49—136. 8. 50-136. a. 51__49, 59, 73, 146. 8. 58-9, 13, 14. 8 62—11. s. 63-10, 12. 13, 15, s. 64-14, 16. 8. (56—12. 8. 68—13. 8. 73-1, 7, 2. 8. 74-9. 8. 76—15. 8. 83-120. 8. 91-222, 109. RULES OF SUPKEIIE COURT CITED. nVLE. PAQE. RII.E. PACiE. 1—32. 2—32. 3_32, 42, 76, 215, 216, 218, 239. 4-_32, 42. 5_32, 42, 45. 6-178. 8—56. 9_44, 45, 146. 10-51, 248. 11_46, 51, 248. 12-46. 13-31, 47. 14_46, 69. 15-47. 16—76. 17—45. 18—47. 19_47, 92, 97. 20—43. 21-4.3, 48, 146. 23—44. 24—146. 25-48. 26—22, 48. 27—50. 28—50. 29—220. 30—221, -50. -52. -53, 54. -54. -55. -55, 64. -55. -35, 55, 63. -55. -17, 56. -50. -56. -57, 66. Z45, 57, 62, 77, 96. —45, 54. ,—65, 70. 1-58, 73, 106, 138. [—59. >— .59. 5-59,92. 4__59, 92, 93. 5—58, 67. 6-59. 7—59. ,8—60. .9—60. Tn JUDICATURE RULES CITED. k Rtn.1. PAiiE. 89— 2r», 2G7. 90—249. 91—33. 92—33. 93—33. 94—25, 33. 95—25, 36. 90—27, 251. 97—27, 34. 98—31. 100—32, 35, 36, 221. 101—35. 102—25, 26. 103—24, 25, 248, 249. 104—248. 105—249. 106—249. 107—101, 102. 108—102, 230, 231. 109—101. 110—103. 111—102, 103. 112—102, 103. 115-37, 38. 116—39. 1 17—39. 118—38. 119—38, 40. 120-38. 121—38. 122-39. 123—39. 124—31. 126—81, 94. 127—58, 97, 98. 128-85, 94. 129—84. 130—84. 131—70, 77, 81, 92, 93, 94, 96, 108, 203. 132—84. 133—87, 89. 134—88, 89. 135—85. 136—85. 137—86. 138—86. 139—86. 140—86, 88. 141—86, 88. 142—89. 143—88, 89. 144—90. 145—90. 146—88. 147-85, 89. 148—88. 149—83, 106. 150—61, 62, 81, 02, 93, 90, 108. Rl'l.B. I'AUE . KILE. PAOE. 151—91. 209-113. 152—106, 250. 210—113. 153—91, 251. 211-115. 154—106. 212—115. 155—91, 107, 251. 1 213—116. 156—249. 214-116. 157—91, 105. 215-99, 264. 265. 158-56, 77, 8 [, 82, 83, 216 99. 93, 95, 179. 217—99, 265. 159-48, 94. 218-99. 160—77, 96. 219-2.32. 161—96. 220—179, 236, 246 162-80, 9*;. 221—243. 16.3—88, 116. 222—237, 238. 164—99. 223—231. 165—99, 231. 224—231. 166—99. 225—238. 167—99. 226—242. 168—98. 227-2.30, 231. 169—97. 229-244. 170-99, 100, 105, 120, 230—179, 246. 123, 124. 1 232—245. 171—124. 233-244, 245. 172—105. 2.34—245. 173—106. 235—245. 174—84, 108. 236—233, 242. 175—107. 237—238, 242. 176—87. 238—242. 177-86. 239—236. 178—248, 249. 240—88. 179—250, 251, 252. o4i_i(;9. 180—250, 251, 252. 243 -169. 181—252. 244—207. 182—251. 245—136, 137. 183-250, 251, 252. 246—137. 184—249. 247-135, 136, 137 185—249. 248—133, 134. 18(i— 252. 249—134. 187-252. 250—134, 135. 188—252. 251—134. 189—107. 252-134. 190—108. 253—1.34 191—108. 254—43, 87, 94. 192—107. 255—115, 118. 193—108. 256—117. 194—108. 259—118. 195—109, 110, HI. 260—119. 196—110, 250. 261—119. 197—109. 262—120. 198—109. 264—120. 199—110. 265—119. 200—110. 266—119. 201—110. 267—120. 202-108. 268—122. 203—82, 115. 269-123. 204—112. 270—12.3. 205—112. 271—122. 206—114. 272—124. 207—114. 273-122, 125. 208—112. 274—23, 124. I JUDK'ATUUK RULES ClTElX XVII Ull.l:. I'AliK. RII.K. I'AliK. RII.E. l'Ai;B. •J7."> 1-J4. 1 •_>.-). .338-143, '2">2. 399-20-2, -207, '208. •.>7(; i:t7. 1 3:i!» 148. 4(K)-'208. •J78 -1^7. 340—148. 401 '207. •i7{)-137. 341—148. 402-'209. '280—137. 342 149. 404-201, 21'2. •281-137. i 343 14!». 405— ^201, 21*2. •28^2 1 •20, 1 •21, 101, 102. 344-145, 147. 400-^201, 131. •283 -1 ((•2, 170, .'03, •204. 345—150. 407— 131, ^201, '202, 21*2, •284 170. ;i4(i— 151. '203. •285 l()-2, 1()8, 20."), '200. .347 48, 140, ir)0. 408-'200. •28(i—l «).'). ;U8— 140. 409 '207. •287 Kti"). 3411 140. 410 '202. '288 r2'2, f2(5. 350—147. 411 •201, •20^2. •28'J-1(>(). 351-147. 41-2 183, 21-2. '2!K) l(i7. .-152-145. 413-213. •2!»1 Km, !()(>. ;153-147, 148. 414 -218, •2i^2 ~ir)7. .-i-,r,_i4-,. 410 11, 1'20. 1.39. •2!»4 ~i«;(>. 350-145, 151, -254. 417 10, 17, 177. •21»r) - 108. 357- 15-2. 418 18, 75, 114. 2m l(i8. 3.58—145. 419-2-2, 141, 14-^20l. 450 184. 3^27 -14-2. 3110 -•20^2. 452-84. 3'28 - 73. .•{1)1 '20-2. 453—170, 32l> l-2.->, i 3112 •200. 1 454-50, 208. 330 1-24. ;VJ3 207. 455— '201, '203, 21-2, 208. .331-143, .•V.)4— 20(;. 450 -^208. 332 -138, 143 31)5— -207. 457-209. .333 143. 31K) -208. 458—^249, 2.-)0, 251, 252 .3:U 143. 397 --208. 459- 9^2. 330 138, 143 398— •208. 400—92, 249, 250, 252. win OONXOMDATEL) GENERAL OUDERS. RII.K. 4(il •_'.■) 1. A&2 KIM, 4(W KS(». 4«)4 170. 4«r)-^ 171. 4«i(J- -171. 4<>7- -171. 4«8- -171. ■>0'2, -JCS, •-»()!». KULK. rAUB. 4. CAdK. rll\. O. I'AUK. 10-13— 12»i, 13!>. 208—204. 23-30-11. 209—205. 3.-)-17. 270—130. 37-17. 1 288—150. 38—17, 18. 1 289-290— 14!>. 58-25. 2(). 1 310-313—18-'. <}3— 230. 330—253. (»4 -231. 337-351-254. 104-35. 418-503. 123-88. 427— 3(). 138—220, 230. 434—104, 114. I3J) -230. 438-37. 14r)-231. 439-440 30. 144-233, 441.4r,4_14.S. 240— 229. 450—75. 2«I 203, 204. 4(i7— 42, 75. 2«)2 201. 408 42, 210. 2()({- 205, 20(i. 409-473—42. 2(57-200. 471-210. CHV. (I. I'Al.i:. 472 2."), 2 Mi. 518 .34, 35. 520—05. 552-210. 500-211, 213. 593 -1.33, 13.-), 203. 594—18. 013 -.3.->. 025—13. 0.38—42, 2I(}. 039--42. 040-041-42, 70, 217. 042—218, 219. 040-74. 047-17. 048-17. »j.-,0— 18, 7.">. 051—18. N()TJ<:. In this work, Tin Oii/drlo Jintiniliin A. I'.vuK L>0. ( 'oliiiiiii 4, stiiUu out tl.f iijuiio (if \V. U. Fuller, who hiia died, iiiid iiisurt ill lii'ii tlioreof "Jolin Kniser." " •-'.".. -loth line, alter " llnlr S!»," ad.l " and see lliilr t»4." -i:{tli line, after " (AV/<; Dl)," add " see Ihde 94." -lUtii line, after " t.iiaiit " add " {lluir (L'.)" -Urd line, after •'defendant," add "or where the infant is resident out of Ontario, see dnti \i. 55." . — l.Stii line from ')ottoni, after "Ontario," add " Where a tort is eoinniitted witlioiit the jurisdietion, and dainaye results therefrom within, noaetionean be bnmyiit tiierefor against an absent defendant, (lirii' v. Murc.-^roii.r, 44 L. T. 044; aliiriiied in ajipeal, ///. Tfio. )" -14th line from Ijottom, after "eost:^," add " {linlf 7*2.)" •J4th line, after " Chamery," add "under Vluj. (J. 456." -tth line from bottom, for "/,'((/,• 2SS,"read "(/i'«/f 268.)" .— ITthline, for ".'^T L. J.," read "37 L. T." 75. 122. 120. 127. 148. I(i7. 170. 175 -24th line, for " /A «f/('/-.-.vj(j," read "//«'«' — 10th line at Ut '• reai il " II •aiiii'ii. it. I Miy, ISSI, 7," add "S. (!. 44 l>. T. !)15." 20tli line, after "May (ith, 1881, p. 0," add "S. C. 44 L. T. Hi;, 017." 211. -:5th line, after " Iff •■A/- v. LrM irchanl, huv Times, April, 1881, p. 425," add " S. C. 44 L. T. 032." 208 21st line, for "It. 8. O. e. 108," read " 1{. S. U. o. 1, ! \ \m A ii \ A MANUAL OF PKACTTCE OK THK HIGH COURT OF JUSTICE FOR ONTVRIO, I'KDER THE JUDICATURE ACT CHAPTER I. Thk Court. 1 The Supreme Court and its Dicmoris. ->" Jurisdktlon of the Court of Appeal. 3, Ca.^r. appealable to the Court of Appeal. J, Jurisdiction of the High Court, o Judicial business of the High Court. 6. Business to be transacted before Divis^onal Coverts. 1. Tub Supreme Court and its Divisions. Tinder The Ontario Judicature Act of 1881, the Su^rv o Courts of Law and Equity in Ontario formerly Wvn as the Court of Appeal, and the Courts ot Queen s Known as t chancery, are consohdated Bench, Common i e ^ ^^^.^^^ coURT of Judica- '^T:^t:^r This Court is divided into two ''^ n^t DivfXns styled respectively "'Thk Court rrZ\-T ONTARIO," and "THE High Court o. Justice for Ontario." 1 THE COrRT. Thk Court <>f Aitkai- for Ontark*. This Court is coiiiposuil uf the Cliicf Justice of Ontario, and thrt'f otlu-r Jud/^'rs callcfl Justices of Aiipeal. The Ju(l<'es of tlie Hiijh Court of Justice for Oiitaiio, are also <'./• ofjirin Judfjfos of the Court of Appeal for the j)urpose.s iiientionerl in H. S. O. c. 38, s. 10. Thi: Hi(iii Court of Justiuf for Ontario. Tliis Division of the Supreme Court is divided into three Divisions, viz. : — 1. Tl)e Queen's Bencli Division of the Higli Court of Justice for Ontario. 2. The Chancery Division of the Higli Co\]rt <»f Justice for Ontaiio. 3. Tlie Common Pleas Division of the High Court of Justice for Ontario. Each Divisi(m of this Court is presided over by a Chief Judge who, while retaining his former title, e.j.^ Chief Justice of the Queen's Bench, The Chancellor of Ontario, The Chief Justice of the Common Pleas, (J. A. s. 3, suli-s. 4), is also styled the President of the Division. The senior Judge of these three, for the time being, is also President of the High Court, and in his name all writs are to be tested. There are two other Judges in each Division who are called Justices of the High Court.* 2. Ji'RisuicTioN of thk Court of Appeal, The Court of Appeal is a Superior Court of Record, and continues! to have all the jurisdiction which the Court of Apj»eai had befoi'o the Act (see R. S. 0. c. 38), save as varied by or under the Act, and in civil cases it also has jurisdiction and power to hear and de+; rmine appeals I * The Puisne Judges of the Court of C!haiictiy were formerly called " Vice-Chancellors," but tliis title is now abolisheil. („'. A. s. 3, subs. 3.) : \ ■W it '■i* I JURISDICTION OF COCRT OF APPEAL. s from any Jnd^inont or order (with certain oxcoptioiis nion- tioiifd in tilt' Act) of the Hij,'li Court of Justiec, or of nnv Jnil^'OH, or .Tud^'r, thereof. (/. A. s. IS. See R. S. (>. V. 8.S.) Tlie Ct)urt of Appeal niny also exereise ail the ]i(nver, authority, anrl jurisdiction of tlie High Court for all the pm'poses of and incidental to the hearing,' and iletennination of any such appeal, and the an>end;nent, execution, and entorceiiient of any judi,Mnent oi' order made on such a])peal, and for th»i purpose of every other authority given t(j the ('ourt of Appeal by tlu- Act. (J.A.H.U) It would therefore seem that the orders and judgments of the Court of Appeal can now, when necessary, he enforced by process to be issued out of that Court, and that it is not necessary to remit an action t(» that Division uf the High Court, fn tin which th.e appeal shall have been brought, except where further proceedings in the action, other than execution, are necessary to be taken. Under the former practice it was held that the cei'tificate of the Court of Appeal might be acted on by the Court of first instance without making the certificate a rule of the latter Court. (Mc Arthur v. Suuthivuld, 8 Pr. R. 27.) 3, ApPKALS TO THK CoUHT OF Al'PEAL. The following rules regulating appeals to the Court of Appeal may be collected from the Judicature A<-f and Rules : — 1. Appeah vihlclc am he hrouf/ht without hare. — An appeal will lie to the Court of Appeal from any order or judgment of a Judge, {J. A. s. 37), or Divisional Court, not made or obtained by consent, or in Chambers, loithout leave in the following cases, viz. : — (a) Where the title to real estate or some interest therein is afl't eted. (b) Where the validity of a patent is afiected. 4 JURISDICTION OF COURT OF APPKAL. (c) Where the matter in controversy on the appeal exceeds $200, exchisive of costs, fud the Divisional Court appealed from was not unanimous. (d) Wliere the Divisional Court appealed from vxis unanhnoiiH, or where a Divisional Court on a motion to set aside or discharge a rule, oi'der, or decision of a Judge does not sul)stantially vary tho rule, order, or decision moveiAd»io»s,ftn4al96l;he^ike duties as are per- 12 OFFICKRS OF THK HIGH COURT, AT TORONTO. ii formed l»y the Registrars of the Queen's Bench, and Common Pleas, Divisi(»ns, so far as relates to the receiving, and filing papers, and issuing orders of course, but all judgments entered at Toronto in the Chancery Division will be entered in the office of the Registrar of the Division, Special Examiners. — These officers are appointed to take oral examinations of pai ties and witnesses in stiits, either for discovery, or to be used on motions before the Court, or in Chambers. Common Fleas Division. The Registrar of the Common Pleas Division. — The du- ties of this officer are similar to those formerly discharged by the Clerk of the Crown and Pleas of the Court of Connnon Pleas, and in addition thereto he is also the Inspector of the local offices of the High Court of Justice. Under J. A s. 63, this officer is an Official Referee. Clerk of the Process. — See ante. — Queen's Bench Division. 4. Officers of the High Court in Toronto whose Duties extend to Actions in all Divisions. The Official Guardian.— Th\H officer, besides acting as guardian ad litem of infants under rules of Court and other orders, is to perform such other duties as a Divisional Court, or Judge, may from time to time direct. (See J. A. s. 60.) Senior Judgment Clerk. — Junior Judgment Clerk. — The duties of these officers are described under the head of Registrar of the Chancery Division, and Assistant Registrar of the Chancery Division. fSee ante pp. 10-11.) The Clerk of Assize. — The duties of this officer are un- changed by the Judicature Act. (See R. S. 0. c. 41, s. 16 ; Ih. c. 50, s, 284.) ^^11 OFFICERS OF THE HIGH COITRT, AT TORONTO. 13 Ojjitial Jit'feret's. — Under the J uiU cat t we ^c7, section G3, the following officers are ex officio Official Referees in Toronto : — The Master in Ordinaiy of the Snprenie Comt. (a.) The Rej^istrar of tlie Queen's Bench Division. (It) The Registrar of the Common Pleas Division. (A) The Referee in Chambers, {c) The Accountant. ((/) The Inspector of Titles. The Referee of Titles. Subject to any Rules of Court, and to .such right as may exist to have particular cases submitted to the ver- dict of a jury, any question arising in any cause or matter (other than a criminal proceeding by the Crown) before the High Court of Justice, or the Court of Appeal, may be referred by the Court, or by any Divisional Court, or Judge before whom such matter is pending, to an Ofirial Referee for inquiry, and report (see ,/. A. s. 47), and in certain cases actions may also be referred for trial before (a) In the GSrd section of the Act this officer is described as the Master in Cliancery, his title now is Master in Ordinary of tlie Supreme Court. (See ,/. A. s. 58, sub-s. 2.) (/>) In tlie G3rd section ot the Act, tliese officers are described as C'lerka of the Crown and Pleas ; their title has since been changed by an order in Council. Whether the former Clerk of the Crown and Pleas of the Queen's Bench who is now Master in Chambers, is now an Official Referee, is doubtful. (e) This office is now vacant, the former Referee in Chaml)ers having been appointed Registrar of the Queen's Bench Division. (il) It is not clear what officer is here meant. See /. A. a. G8, which speaks of "Accountant of the High Court," while Huh 475 appoints an " Accountant of the Supreme Court. " At the time of the passing of the Act there was no Acer mtant of the Court of Chancery, the Referee in Chambers having, since 2Gth June, 187G. discharged the duties of that office. Chy. 0. «25. u LOCAL OFFKEns OF THE SUPREME COURT. t li 11 an Opcial Refcirf. (Sec J. A. sec. 48.) Under Bah 421, any O^irlal Ri'ft'vce, upon tlie i-equest of the Master in Cliam- bers, or of a Judge of the High Court, may sit with, or for, such blaster, and while sitting for liini is to have all the authority and power of such Master, hut is not entitled to any fees. 5. Local Officers of the Supreme Court. Local Master!^ The Masters in Chancery holding places, viz. : — Algoma. fJuelj.h. Barrie. Hamilton. Belleville. Kingston. Berlin. Lindsay. Brampton. T^ontlon. Brantfonl. L'Orign.il. Broekville. Milton. Cayuga. Napanee. Chatham. Ottawa.* Cobourg. Owen Sound. Cornwall. Picton. (Joderich. Pembroke. Perth. Peterborough. Sandwich. Sarnia. Simeoe. St. Catliarines. St. Thomas. Striitford. Walkerton. V.'oodstock. Whitby. are under the Judicatare Act, made Load Masters of the Supreme Court. {J. A. s. 58, sub-s. 2.) There being no Local Masters in Chancery at Welland and Orange ville at the time the Act came into operation, the Judges of the County Courts of Welland and DufFerin became Local il/a.sf^'/.s of the Supreme Court at these places. (/. A. s. 64, sub-s. 2.) G. Local Officers of the High Court. Local Judgec of the High Court. From and after the 1st January, 1882, the Judges of the County Courts (except the County Court of York) are * At Ottawa there are two Masters having concurrent jurisdiction, viz., W. M. Matheson, Esq., and Robert Cassels, jr., Esq. LOCAL OFFICERS OF THE HIGH COURT. Iff to have the .same jurisdiction in actions hrou^dit in their ies])ective counties as the Maxicr in Cliamhci'^*, except that their authority is not to extend to <,nanting leave for service out of Ontario nor to allowing service of a wi-it of summons or notice in lieu of writ out of Ontario; nor (except by consent) to any applications required to be made on notice, in actions where the solicitors for all parties do not reside or have offices in the county town where the action is brought, or where any party sueing or defending in person does not reside in or have a place of business in the county or union of counties where the action is brought; and actions in the Chancery Division are also excejited from their jurisdiction wherever there is a Loral Miimtci' who does not practise as a barrister or solicitor, and who has not taken out a certificate to practise, and in such actions the Local Mastrr is to have the jurisdiction of the Maf^tcr in Chamhcrs, subject to the same exceptions. (R^des 422-3.) All the County Court Judges (except those of York) ai'e, for the purpo.se of their juri.sdiction in actions in the High Court, "Local Judges of the High Court," (/. A. sec. 7G, Rules 421-3.) Official Referees out of Toronto. The County Court Judges in each county are, under J. A. s. 63, appointed Official Referees. For the duties of the Official Referees see ante page 13. Deputy Clerks of the Crown, Deputy Registrars, and Local Registrars. There are three classes of officers to perform the minis- terial duties in reference to suits instituted in the High Court out of Toronto, viz : Deputy Clerks of the Crown, Deputy Registrars, and L^ocal Registrars. Deputy Clerks of the Cruivn. — These are the Deputy Clerks of the Crown, at those places where there is also 10 LOCAL OFFICKHS OF THK HI<;H (OIIIT. a Deputy Registrar in ( ■hanceiy. Tlieir duties me con- tine- S l-B 00 ■ S .2 . o is .3 '3 -5 3 a* rt- _, Z ® a E, !>. s ^ " i -2 "Sal •^r'^ra o a>2 c.S =3 53 a ^'-',- in Sec . g : 'A • S •^H *v^ t.^ ^-i-* T §^ - -i >-^ >-^ a a) o^* « 2 '§? CO a a a> ^4 b fix a -•- = >> o "a ^ >S 3 d a >.^ ^ -5 '♦^ S -B ' ^S NAMES OF LOCAL OFFICERS. 21 .-J a> 8 a -♦F-* a o t m A o d" 'a' I c^r 1— I >H d- © o 1-5 c o 00 a o H S aj P ^ >!-i c5 .j; ci ^ t-; I-; o H 6 >-.2' a} o p4 ^ -S-'sS d Kb '-5.^ is r » 73 (^ 4^ ■ S u * . ^ * -= ^c; -5-c? us Pm-^Q O i-s y;. hs 1-5 h-- 5: " d >3 (« J I ^.2 -S3 a) _2 ?>i5-?'?il to '^ S^^ S a .3 '3 m o c o a O o >1 o © a to 1) s cc •-» eS O o JS ^ 3 03 t. (-1 o o CO <» ^ IS u u ^ -I is w C cS a hi « o s i, of cotirse, will hv grantt'd hy the Registrar of the Division in wliieh the action i.s pending. il. Lunatics, and permiiH of unwitnd tn'md. — An idiot or lunatic so found by in(iuisiti()n,.or hj' order of a Judge under A'. S. O. c. 40 s. 65, sues hy the committee of Ins estate.— (>S'7)(. Chy. Pr. 7th ed., ^U,Kule 124.) But a person of unsound mind, not so found by any judicial proceeding, may sue by his next friend. {lAght v. Litjlif, ?.■> Beav. 248, Rule, 124.) The rules applical)k' to the next friend of a married woman ap])ly to the next friend (A' a lunatic. See ante p. 30. 12. Numerous parties intereded. — Where there are numerous parties having the same interest in one action, one or more of such parties may sue on behalf, or for the benefit, of all parties so interested. (See Rale 08.) A plaintiff suing under this Rtde must indorse his writ with a statement that he so sues {Rule 13,) e. (/., " The 2)laintif'ti claim is on behalf of himself and. all other creditors of the defendoM A B." J A simple contract creditor suing to set aside an alleged fraudulent conveyance by his debtor, must .sue on behalf of himself and all the other creditors of the debtor. {Colver V. Swayze, 26 Chy. 395.) But an execution credi- tor may either sue for himself alone, or on behalf of him- self and other creditors. An ordinarj' creditor's suit for administration of the estate of a deceased debtor must be taken to be brought on behalf of the plaintiff' and all other creditors, whether so stated or not. (Colver v. Siuayze, supra.) A part owner of a ship may sue on behalf of himself and his co-owners for freight, (DeHart v, Stevenson, 1 Q. B. D. 313,) and one underwriter on behalf of all. (Leath- leyv. Mc Andrew, W. N. 1875, 259, 1 Charley's Ch. Ca. 58.) In such actions if the other members of the class on whose behalf the action is brought are fairly repre- PARTIES TO ACTIONS — Fi^AINTIFFS. hi I I; • I sen ted, they will be bound by the judgment (Commis- doners of Sewers v. Gelhdly, 3 Ch. D. 610 ; Leathley v. McAndreiv, W. N. 1870, 2 Char. Ch. Oa. 2*.) Where one of the class objects to the proceedings he may apply to be made a defendant, (Wilson v. Church, 9 Ch. D. 552,) he cannot otherwise appeal from any judgment obtained by the plaintiff. (Watson v. Ccur, 44 L. T. 40.) / t 13. Partners. — Any two or more persons claiming as^ / co-partners may sue in the name of their firm. (Rule 100.) This is a variation of the former practice, both at law and in equity. Formerly the names of all the persons composing a firm, suing, must have been set out in the writ of summons, or bill of complaint. Where a suit is brou^^ht in the name of the firm, any party to the action may apply in Chambers for an order to compel the ]>laintiff to deliver a statement of the names of the persons Avho are co-partners in such firm (Rule 100), which is to be delivered verified on oath or otherwise as the Judge may direct. (Ih.) The style of the cause, how- ever, is not to be changed. See post chapter xvii. 14. Attorney-General. — No express provision is made in the Judicature Act or rules in reference to the procedure V to be adopted in actions brought by the Attorney-General, except that it is provided that all suits hitherto commenced by bill, or information, in the Court of Chancery, shall now be instituted by writ of summons, (Rules 1-5.) The former practice in relation to the joinder of relators where necessary, must still be observed. It would also seem that the consent of the Attorney-General to the issue of a writ in his name is still necessary. As to the former practice on filing informations (see Attorney -General v. Toronto Street R. W. Co., 13 Ch. 441 • S. C. 2 Chy. Ch. R. 165 ; S. C. ib. 321.) The Provincial Attorney-General is the proper officer to bring an action for the violation of the rights of the PARTIES TO ACTIONS — DEFENDANTS. 3S public of Ontario. {Attorney-General v. Niagara Falls International Bridge Co., 20 Chy. 34), where the cause of action relates to matters affecting the Lominion, the Attorney-General of the Dominion is the proper officer to bring the action. (h) Defendants. Parties jointly, or severally, liable. — All persons may be joined as defendants, against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative, and without any amendment, judgment may be given against such one or more of the defendants, as may be found to be liable, accordin.-j to their respective liabilities. {Ride 91.) It is no ground of objection that Kny defendant is not interested, as to all the relief claimed by the plaintiff, or as to every cause of action in respect of which the action is brought, but the Court, or Judge, may make such order as may appear just, to prevent any defendant from being embarrassed, or put to any expense, by being required to attend any ])roceedings in which he may have no interest. {Rule 92, Cox v. Earlier, 3 Ch. D. So9.) It is immaterial that the alternative relief asked against one defendant, is inconsistent with that asked against a co-defendant {Honduras R. W. Co. v. Tucker, 2 Ex. D. 301 ; Child V. Stenning, 5 Ch. D. 695), where a plaintiff succeeds against one defendant, and fails against another, the costs of the successful defendant must be borne by the plaintiff and not by the unsuccessful defendant (Child v. Stenning, 7 Ch. D. 413, 11 Ch. D. 82.) The plaintiff may also, at his option, join as parties to the same action all or any of the parties severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, and [)romis- sory notes. {Rule 93.) Infants. — may be made defendants and may defend by their guardians appointed for that purpose see 2^ost p. 64. The plaintiff cannot proceed to judgment against an infant 5 34 PARTIES TO ACTIONS — DEFENDANTS. Ill until a guai'dian ad litem has been appointed. (See Rule 70, Chy. 0. 518). Married luomen, — may be made defendants without join- inij^ their husbands as plaintiffs, or defendants, in all cases relating to their separate estate or to their separate engage- inents, contracts, or torts. {Rule 97). As to what is the separate estate of a married woman within the meaning of this rule. (See ante pp. 27-9.) In all suits relating to the property of a married woman, except pioperty expressly settled to her separate use, or propert}^ to which she is en- titled under R. S. 0. c. 125, s. 7, it would seem advis- able to make her husband a co-defendant. Where the plaintiff sues to set aside a fraudulent conveyance made to a married woman after 1872, and no conveyajice is neces- sary, her husband is not a proper party. {McFarlane v. Marpky, 21 Chy. 80 ; Murdoch v. O'Sallimn, 25 Chy. 39. See also Boustead v. Whitmore, 22 Chy. 222, and observa- tions on that case ante p. 29.) With regard to a married woman's separate engagements, contracts, and torts, it does not appear that she can in any case be made personally liable. No judgment for the payment of money can be rendered against her in personam, but only one charging the sepa- rate property, if any, which she had y her defence so made as if she were B,feme sole, (fh.) Lunniies. — A lunatic or idiot, or person of unsound mind, so found by inquisiticm, or judicial declaration, may be named as a defendant, but the committee of his estate should be joined with him as a co-defendant. {Sm. City. Pr. 7th ed. 311, J. A. s. 12.) Where the lunatic is not so found by inquisition or judicial declaration, he xuFij be made a defendant, but the plaintiff cannot after service of the writ proceed further Avith the action, until either the defendant has procured a guardian ad litem, to be appointed for liim in the action, or the plaintiff has procured such appointment to be made. (See Rule 39. City. 0. 104 and 518.) But where a lunatic defendant is a mere formal party, under the English Act it is held unnecessary for the plaintiff to apply for the appointment of a guardian to him. (Taylor v. Pede, 44 L. T. 514.) Rule 39, however, appears to apply to all cases whether the lunatic has, or has not, a substantial interest in the subject of litigation. Partners, — may be sued in the name of their firm, [Rales 100, 101,) anc the plaintiff may afterwards make appli- cation in Chambers for an order requiring the defen- dants to furnish a statement of the names of the persons who are co-partners in any such firm, in such manner, and J 36 PARTIES TO ACTIONS — DEFENDANTS, 1 II verified on oath or otlierwise as may be directed. (Rule 100.) Formerl}^ both at law and in equity, it was neces- sary, when suing a firm, to set out the individual names of the partners in the style of cause. See j^ost p. 150. Trustees, Executors, and Administrators, — maybe sued as representing the property or estate of which they are trustees or representatives, without joining any of the parties beneficially interested in the trust or estate ; but the Court, or a Judge, may at any stage of the proceedings, order any of such parties to be made parties to the action, either in ad<.lition, or substitution, of the previously existing par- ties. {Rule 95.) Where the object of the suit, however, is to defeat or destioy the estate of the beneficiaries, it would still seem advisable to join one or more of the bene- ficiaries whose interest is attacked, as defendants, in the first instance. (See Chy. 0. 61, Baker v. Trainor, 15 Chy. 252 ; Cleveland v. McDonald, 1 Chy. 415.) Mortijatje Suits. — A surety for the payment of a mort- gage debt, may be joined as a defendant with the mortgagor, in any suit brought by the mortgagee for sale of the mortgaged property ; and an order for the payment of the deficiency, if any, niay be obtained against both. {Chy. 0. 427.) Where the plaintiff is a subsequent incumbrancer seeking relief against a prior mortgagee; such mortgagee must be made a party. {Chy. 0. 439.) But where the plaintiff sues for a sale, or foreclosure, subject to a ^nior mortgage, the prior mortgagee is not to be made a party except under special circumstances to be alleged. {Chy. 0. 440.) Where the parties interested in the equity of redemption are numerous, one or more of the parties interested, may be made defendant or defendants ; and on it appearing to the Court to be conducive to the ends of justice, by reason of the other parties interested in the equity of redemption CAUSES OF ACTION WHICH MAY BE JOINED. 37 be being numerous or otherwise, the Court may order such other parties so interested be made parties in the Master's office, upon such terms as the Court sees fit. (See (!hy. 0. 438.) Where the mortgagor is dead, his widow, if any, and real representatives are usually the proper [)arties to be joined a'' defendants in actions for foreclosure, or sale ; the per- sonal representative appears to be a necessary party only where relief is asked against the general estate of the deceased moi'tgagor, e. the leave of the Court, or a Judge, first obtained) — {Ride 116) — be joined with any other cause of action, except : — (1) Claims for mesne profits, or for aiTears of rent in respect of the same land, or any part thereof. (2) Claims for damages for breach of any contract under which such land, or any part thereof, is held. (3) And when the action is for the recovery of moi'tgaged land, there may also be joined, without leave, a claim for the foreclosure of the equity of redemption ; or for the sale of the land ; and a claim on the cove- nant, if any. {Ihile IIG.) (a) (6) Claims by an assignee in insolvency, may not be ; (j joined with any claim by him in any other capacity, i except by leave of the Court, or Judge, first obtained. {Rule 117.) (c) Claims by, or against, an executor, or administrator, i 6 cannot be joined with claims by, or against, such executor, (a) A mortgagee should specifically claim the relief he demands, and should not claim sale, or foreclosure in the alternative, otherwise in default, the judgment cannot be obtained on pnecipe. (Dretori/ v. O'Neil, 2 Chy. Ch. R. 204.) m CAUSES OF ACTION WHICH CANNOT BE JOINED. 'i J I or administrator, personally, unless the latter claims ai'ise in respect of the same estate, in respect of which he sues, or is sued, as executor, or administrator. {Rule 119.) Where it is necessary to obtain the leave of the Court, or Judge, to join in one action two or more causes of j*^ action which cannot otherwise be joined, the leave should be obtained on motion in Chambers, before the writ issues. (Pilchcr V. Hind,^, 11 Ch. D. 905, Trnst & Loan Co. v. Oshorve, before R. G. Dalton, Q. C, August 24, 1881.) In such a case the application should be made " In the matter of an intended action between A B, plaintiff, and C D, defendants." Actioni^ against Defendants resident out of Ontario. The causes of action, for which an action may be brought against a defendant resident out of Ontario, are enumerated post p. 06. THE WRIT OF SUMMONS. 41 CHAPTER IV. The Writ of Summons. 1. Adioiu to he commenced hy Wrli of Summons. 2. Plave of issue of Writ. 3. By rvhom to he issued. 4. Hoiv issued. ft. Form of Writ. (}. Time to he limited in the Writ, for Appearance thereto. 7. Date, and Teste, of Writ. 5. Indorsement of Writs of Summons. 9. Issue of the Writ. 10. Gertijicate of Lis Pendens. 11. Concurrent WritR. 12. Dundion, and reneival, of Writs. 13. Amendment of Writs. 14. Setting aside Writs. / Having considered the subject of the parties who may sue and be sued, and the causes of action which mav be joined together, we proceed to consider the mode in which the action is to be commenced and carried on, under the new system of practice laid down by the Judicature Act, and first we propose to treat of : — 1. Actions to be Commenced by Writ of Summons. All actions and suits which, prior to the passing of the Judicature Act, were commenced in the Courts of Com- mon Law by writ of summons, or in the Court of Chancery by bill, or information, are now to be instituted in that [ lil I 42 ACTIONS TO UK C(JMMENCKD BY WRIT OF SUMMONS. Division of the Supremo Court which is termed the " Higli Court of Justiee," by a proceedin<^ to be ealleil an action*, {Ruh' 1), -whicli is to be eonnuenced by the issue of a writ of suunnons. {Hole o.) The class of cnses which are to be commenced by the issue of a writ of summons, embraces most of the causes of suit which have heretofore been prosecuted in the Superior Courts of Law, or the Court of Chancery. There are some proceedings, however, which were not commenced by tlie issue of a writ of summons, or the filing of a bill, and these proceedings mnst still be commenced in the w^ay they have hitherto been prosecuted. {Rule 4) e. g. {(() Cases in which the plaintiff* desires to obtain a writ of capias ad respondendum against an absconding debtor. {R. S. 0. c. 68.) (b) Actions of replevin. (R. S. 0. c. 53.) (c) Applications by Sheriffs for interpleader ordei's. {d) Applications for writs of mandamus, prohi- bition, certiordvi, quo u'arvanto, or habeas corpus. [e) Applications for the administration of estates of deceased persons, in simple cases. (Chy. 0. 407-73, 638-9.)* (/) Applications for partition of real estate, by one tenant in common against his co-tenants, in simple cases. {Chy. 0. (iiO-1.)* {g) Applications for the sale of infants* estates, under R. S. 0. c. 40. {h) Applications under the Trustee Relief Acts. * In the class of cases coming under clauses e and /* the action may be commenced by writ of summons, or by notice of motion, or summons, in Chambers, but the extra expense (if any) of issuing a writ of summons will probably be cast upon the plaintiff. (See Bule 3. ) WRIT UF HUMMOiNS. 4$^ (/) Applications to oTjtain a declaration of lunacy. {II S. 0. c. 40, .s. 05.) (j) Applications concerning the custody or guar- dianship of infants. (k) All other applications formerly made in Chun- eery upon j)etition without a bill being tiled; or at Common Law without the issue of a writ of summons. The Judicature Act has however effected this change that, even in the excepted class of cases, the proce(.'ding» may now be prosecuted in any Division of the High Court the suitor may select. No Division of the High Court having any longer any exclusive jurisdiction in respect of any civil cause of action whatever. 2. Place of Issue of Writ. In any action whatever, the plaintiff, wherever resident^ may issue a writ of summons either at Toronto, or in any county. (Rule 20.) In actions for the recovery of land, however, although the writ may be issued in any county, the action must be tried in the county where the land lies. {Rule 254). 3. By Whom to be Issued. Where the writ is required to be issued from either the Queen's Bench, or Common Pleas, Division, the application for the issue of the writ must be made to the Clerk of the Process if the action is commenced in Toronto, or to the Deputy Clerk of the Grown, or Load Registrar, in any outer county: these officers are required to issue writs alternately in the Queen's Bench, and Common Pleas, Divi- sions. {Rule 21.) In actions to be commenced by writ of summons in the Chancery Division the application for the issue of the writ must be made to the Clerk of Records and Writs in '* I 44 WRIT OF SUMMOXS. Il'i Toronto, ov to &uy Di' /HI fy Jicgisffar, or Load liefjistrai', in any outer County. 4. How ISSUKI). The former practice at law relatiii/j; to the issue of writs of summons, has l)een somewhat chanj^reil. The writ is now to he prepared by the solicitor, an) Where the service is to be made within any part of the Dominion of Canada (other than Ontario, Manitoba, i w >ii cr INDORSEMENT OF WRITS. 45 Keewatin, or the North-Wost Tenitories, or British •Columbia), or witliin the Unite inaoraem&p^ thereon, it must be taken to the officer \J^(^imiiSrto issue the same, who will sign and seal (a) it, and •n it to the plaintiff or his solicitor, having first made the necessary entries in the Process Book, of the names of the plaintifi;s, and defendants, and the date of the writ and the number. {Ride 2 (J). A.ccording to the English prac- tice of the Chancery Division a in-iwApc is filed for the writ, but no form of pntcipe is given in the Ontario Rules except for the amendment or renewal of the writ of sum- mons, nor do the rules expressly require, a 'pni'vlpe to be filed on the issue. (In case of writs of execution, see Rule 347, which expressly requires a pirvcipe to be filed.) The former pracMc^.' of the Queen's Bench, however, Avas to file a vrtccipe, and it is possible this practice may be continued. (See J. A., s. 12.) (6) When the writ is to be issued from either the Queen's Bench, or Common PleaS; Divisions, the name of the Division should be left blank, to be filled in by the officer who issues the summons, as writs for these Divisions must be issued by him alternately, {Rule 21). _ On [)resenting any writ of sununons for sealing, a copy of the writ and the indorsements "may" be filed ; this copy, if filed, must be signed by the plaintiff's solicitor, or by the plaintitt' himself if he sue in person. {Rale 25.) The tiling of a copy of the writ at the time of issuing the original is optional. (See Ride 159.) (o) The seals to be used in the office at Osgootle Hall are the same as heretofore used by the officers mIio are to issue writs, until the I^ieutenant- Governor in Council shall prescribe another. (./. A ., s. 8. ) The seals to be used in the offices of tlie Deputy-Registrars, Deputy-Clerks of the Crown, and Local Registrars are such as the laeutenant-Goveriior in Council may prescribe. (J. A., sec. fl.) (b) The officers who issue writs in Toronto, rcciuire a prtccipp, or a copy of the writ, to be tiled. =.*^.- CERTIFICATE OF lU 'peildnns. '•''•!• . 4!^ 10. Cehtificate of lis 'pendens. , ' '. . Having issued the writ ; in cases affecting lands where- it is desired to register notice of the action in the Registry Office, a certificate of lis pendens must be obtained. ^ .' ■ In order to obtain the certificate it will be necessary that the writ shall be indorsed with a description of the lands sought to be affected. (See Form No. 9, note.) A short description sufficient to identify the property for the pur- pose of registiation will in general suffice, e. gy ^ip i* wt,w \ '^"i^-' «>■ ''.::fr ■f^^'^'A, ■ ALLOWANCE OF SKUVICE OF WRITS. 60 No order for the appointment of a guardian ad litem to a,n infant defendant, is any longer neeessary, except where the application is made on behalf of the defendant, or where the plaintiff desires that some other person than the Official Guardian may be appointed, e. g. where there are twa classes of infants having conflicting interests. Provision being made for serving the Official Gurdian with a copy of the writ at the time when the infant is served, (see a7ite p. 54), service of any further copy seems unnecessary. Whei'e the infant defendant is not required to be served personally with the writ, service of the writ of summons on the Official Guardian as mentioned, ante p. 54, constitutes the latter ex officio guardian ad litem of such infant, and no further apj)()intment is necessary. The application to appoint a guardian ad litem to a lunatic, or infant, defen- dant, when made by himself, is ex- parte, (see Chy. 0. 52G) ; when made by tlie plaintiff it must be on notice to the defendant, and the person under whose care he resides. Person to he api>ointed, Guardian. When the application is made for the appointment of a guardian ad litem to a lunatic, or an infant, defendant, the Offici<(l Guardian, or some other proper person, may be appointed. (Hale 00.) 2. Allowance of Service of Writ, when Served out OF the Jurisdiction. Wliere a writ has been served out of the jurisdiction,, and the defendant has not appeared ; before the plaintiff can take any further proceedings in the action, it is neces- sary for liim to apply in Chambers for an order allowing the service. [Rule 48.) Applications of this kind must be made at Toronto, and e-.uinot be made to any Local Maatef or County Court Judge. {Rule 422.) What neceswiry to be proved. On an a])j)lication for the allowance of service out of the jurisdiction, affidavits mus^ ' >dduced to prove : — i !,i G6 ALLOWANCE OF SERVICE OF WRIT. y I' 1. The clue service of the writ, or notice of the wn-it, on the defendant, andof tlie indorsement of the date of service hy the person effecting service, as required by Rule 44. It will probably be also necessary to state facts establishing the identity of the i)erson served with the defendant named in the writ. 2. And either : — (a) That the whole or some part of the subject matter of the action is land, stock, or other property situate within Ontaiio, or is some act, deed, will, or thing, fitiecting such land, stock, or property. {!)) Or, that the action is brought to enforce, res- cind, dissolve, annul, or othei'wise affect, or to recover damages, or other relief", for the breach of, a contract entered into Avithin Ontario. (c) Or, that the action is lironght in respect of a breach within Ontaiio, of a contract wher- ever made. ((]) Or ' it the action is brought to restrain, or remove, or recover damages in respect of, some act, or thing, Avhich was, or is to be, done, or is situate, within Ontario. (e) Or, that the defendant has assets in Ontario of the value of $200 at least, which may be rendered liable to the judgment in ease the plaintiff should recover judgment in the action. {Rule 4.)). If a defendant served out of the jurisdiction does not appear, the (Jcunt, or Juilge, is to give sucli direction as the Court, or Judge, from time to time sees fit, as to the maimer of proceeding in the action, and the conditions on which the same may be proceeded with: and the plaintvti' before obtaining judgnuMit must prove his claim, and the amount of debt, or damages, if any, to the satisfaction of the Court, JUDGMENT IN DEFAULT OF APPEARANCE. C7 or Judge, and in such modo as the Court, or Judge, having refej'ence to the nature of the case, may direct. {Rule 55 ('.) 8. Judgment in Default of Appearance. The scheme of procedure laid down b}' the English Rules was thus suMiniarised by Sir George Jessel, M. R.. iu Dijmund v. Crofi, 2 Ch. D. 412 : " The scheme of the Rides is this : in what may be called common law actions, suth as actions for debt, or recovery of land, if a defendant does not appear, the plaintiff is to have judgment just as he had before the Judicature Acts came into operaticm. But in cases assigned to the Chancerv Division, this cannot be done, because these cases rj'e of so complicated a nature that the intervention of the Couit is necessary in ordei" to determine what the proper order is. Therfore, instead of allowing the plaintiff to sign judgment, as in cases of debt, and ejectment, it is provided bj-- Order XIII., r. 9, that in actions assigned to the Chancery Division, and also in probate actions (for of course you could not allow a man to prove any will he might choose to set up) if the party served with the writ pear, the action may pro- ceed as if iie had appeared. Then, in order to avoid the necessity of oV)tainingan order foi- substituted service every time a step is taken in the cause, Order XIX , r. (>, provides that if no appearance is entered for any party, an}' pleading, or document, required to be delivered to him, shall be de- livered by being filed with the proper officer, so that if the party who docs not appear wishes to know what is bring done, he must go to th ^ office and find out. The object of that is not to put the plaintiff to trouble — fur in dealing with an absent defendant he ought not to be put to any unnecessary trouble — but in order to see that the proper order is made." These observations are in the main ap])licable to the procedure under the Ontario Act with the qualification rendered necessaiy by the fact that the Chancery Division !l m JUDGMENT IN DEFAULT OF APPEARANCE. ■i I V: in Ontario has no exclusive jurisdiction ; what is said Avith leference to cases within the exclusive jurisdiction of the English Chancery Division, must be understood here to apply geneially to cases, which were formerly within the exclusive jurisdiction of the Court of Chancery, and in respect of which no j)articular mode of procedure is laid down by the Hales. In considering the proceedings which may be taken in default of appearance, it will be convenient to discuss the subject, first as regards actions formerly cognizable at law, and second as regards actions formerly within the exclusive jurisdiction of the Court of Chancery. 1. AclionK formerly cognizable at law. In some actions of the class formerly cognizable at law, where no appearance is entered, the plaintift' may at once obtain final judgment against the defendant; in other cases he can, in the first instance, cnly obtain an interlocutory judgment, and in such cases he nuist proceed to get his damages assessed, or ascertained, before he can obtain final judgment. An interlocutory judgment merely establishes the right of the plaintiff to recover something, but leaves the amount he is entitled to recover, to be ascertained by a subsequent proceeding. Upon .a final judgment, execution may issue, but no execution can be issued >n an interlocu- tory judgment. JBefore proceeding, we may notice that formerly at Com- mon Law the only actions in which a final judgment could be obtained for default of appearance, were those where the writ had been specially indorsed, or actions of eject- ment where no appearance at all had been entered. The Judicature Act, allows final judgment to be obtained in both of these cases, and also in some others, e. tte of Court, or II y'l IMAGE EVALUATION TEST TARGET (MT-3) // /> r/. 1.0 ■u lU 12.2 S Hi ■" 2.0 I.I L25 lU lil.6 US. o> /] /: V y >!^ Photographic Sciences Corporation 33 WIST MAIN STRIET WUSTH.N.Y. MSM (716) •72-4503 aaSafeK^^' lifl^^tfe^^^i^ ( li^iaaBaa^^^' .^ 72 IXTKHLOCLTORY .H1)(;MKNT, IN DKKArLT, KTC. ,1; I: HI Jinlije's order, allowing the plaintiti' to sign judgment as well for costs its for recoveiy of possession of tlu' lnn be presumed that the same ])rocedure will continue. (See ./. A. s. 12). {I-} I iitf'rhtcutortj JiKhpncnt in iUfanli of ai>f)roiance. In all actions where the plaintiff's claim is for the detention of goods, or for pecuniary damages, or both. an«l the flaim is not a liipiidated demand for which a writ may be i*iM'r}a//>/ indorsed ; where no appearance is cnteretl, the plaintiff on filing the writ, with an atKdavit of tlue .s<'r- vice thereof, and of non-appearance, may enter inter- locutory judgment, and proceed to assess his damages ' as hitherto." No statement of claim in such cases appeal's to be necessary. The damages may be assessed now, either at the A.ssizes, or in the County Court of the County w^here the action is brought, if the solicitois for all the parties reside in that County; or the plaintiff n)ay apply in Chand>ers for an order that the damaijes mav be ascer- tained in any other way in which any <|uestion arising in an action ma}' be tried, {Rule 7o,) <•. //., by refcoencc to an Offichd Rfferee {J. A. s. 47) or to the Miinfer of the t^upveme Court, or one of the Local Maxf. s. No express provision appears to be made by the Jvdi- i'atine Act for cases where some defendants appear, and others do not, in actions of the class above enumerated, the same rule will therefoie pievail as formerly prevailed at law, and the plaintiff will be at liberty to enter inter- locutory judgment against the non-appearing defendants, and then proceed with his action in the ordinary way egainst the other defendants, and at the trial assess his damages against tho.se of the defendants, as to whom inter- locutoiy judgment has been signed. Where there aresevei'al defendants, if some let jtulgment go by default, and others plead to issue, the jury who try the issue shouhl, unless it be otherwise directed, assess the e entitle montlis, and the proper amounts i!i.serte«l in tlie Jndjj^ment. Care must l»e taken to see that the day namer(i'cii>e. Decrees for administration might in certain cases bo granted on a sunnnary apjdication in ChamVters, without a bill l)eing filed, by a Judge, the Referee in Chambers, (C'/t/y. O. 4()7, 560,) or a Local Master, {Chy. (). 038,) and decrees for («) See p. 74, note (a). 70 Di:i Al'LT OV APPKAnAXCK — MOTlnX FOR Jl.'DGMKNT. It ill i f 1 1 ' i H ^^i fft partition nii^lit, in like nmnnes not appear, the action may proceed as if he had appeared ; whicli, of course, imolies that a statement of claim nnist be (hilivered. This rule, however, does not appear to have been re-enacted in Ontario, it is presmned because there are in Ontario no particular actions assigned to the Chanceiy Division ; at the same time, the class of cases which was formerly within the exclusive jurisdiction of the Court of Chancery needs a special provision lor the reason pointed out in the remarks of Sir Geo. Jessel, already quoteil (see unfe p 07), ami the omission of some modification of the Enjilish order seems a defect in the RuteK. liuh- 315 provides, "Except where, by the Act, or by these rules, it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtaiu'^d by motion foi- judgment." But the preliminary steps to a motion for judgment in default of appearance, are not clearly laid down in the lialcK. It seems tolerably clear, however, that in order to enable the Court to j)ronounce judgment, it will be necessary in most cases to file a tatement of claim according to the English practice. In cases, therefore, where, in default of appearance, a motion for judgment will be necessary, it may often prove a saving of time, for the plaintiff to serve his statement of claim with the writ of sunnnons. [Rule 158 c.) Having served his statenjer.t of claim with the writ, if no defence be tiled before the lapse of eight days from the last day for appearance, where the defendant has been served within the jurisdiction {Rale 100;, or at the expiration of the time for appearance, where the defendant has been served out of the jurisdiction {Rule 40), — the j)linntiff will be in a position to move for judgment in default of defence. Where, however, the statement of claim has not been delivereil with the writ of sunnnons, it is to be filed in the proper office, and service of it on the defendant may be eHected in all cases where he has not appeared, by posting up a copy in the office. {Rule 131.) 78 PRCKKEDINGS AFTKR AIM'EARANCE. I. ! I't m CHAPTER VIII. PhoCKKDIXGS AFTKU Ari'KAHAN'CK. /. W lie II irrit MfM'rlallif indoi'fieil. ;?. In (u;f ions for an accoanf. J. In (ictions for foreclosure, or sale, where i lisp ate note tiled. Jf. Other actions. 1. Whkrk Writ Sphxiallv Indorsed. Notwithstamling an apjH'arancc has been entered, the |»laiiititt* may, where liis writ ha< been special/ y indorsed, move in (.'lianihers that the detenihint do sliew cause why tlie phiintiti' should not beat liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs. The application must be on notice to the defendant, returnable not less than two clear days after service, if made in Toronto, {Hide HI,) and if made to a Locol Mostvr, or County Court Judge, then on sununons. returnable in like manner (Ih. and Rule 425). The appli- cation must be su[>]K)rted by an affidavit made by the plaintiff, or M\y other person (who can. swear positively to the del>t or cause of action), verifying tlie cause of action and stating that in his lielief there is no defence to the action. (For form of affidavit see Maclennan,\^^, Chittijs Forms, 1 1th ed., 100.) A copy of tlie affidavit is to be served with the notice of motion, or summons. {Rule 80.) Unless the defendant can satisfy the Court, or Judge, by affidavit, oi- otherwise, tliat he has a good defence on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend the action, an order may be made empowering the plaintiff to sign judgment. (//>.) For form of judgment in such case, see Form, No. 153. :-<- PHOCEKDINOS AFTER APPEARANCE. 79 The defendant may sliew cause against such application, l»y sliewing he has a defence on the merits, and ott'ering to bring the sum indorsed on the writ into Court {Crump v. Carcndish, 5 Ex. D. 211), or by affidavit of merits alone. In such affidavit he nuist state wliether the defence li alleges, goes to the whole, or part only, and if to part, then to what part, of the plaintiff"s claim; and the Judge may, if he think tit, order the defendant to attend and be examined upon oath, or to i)roduee any books oi- docu- ments, "or coi>ies of or extracts thercfi'om." {Ride H2.) The affidavit must bt; made by the defendant, wheur the .) The affidavit must disclose the defence. The filing of affidavits in reply on .such an application is not a matt(?r of right, {Rotlmrmii v. Prk-Ht, 4J) L. J. C. P. 104, VV. N. 1879. 100,) Init may be allowed in the discretion of the Judge. Where a defendant was not personally liable for the debt, e. ij. where the debt sued for was one contracted by the defendant while a married woman, the order for judgment was refused. {Ortiirr V. Fif2(jihhon, 43 L. T. GO.) Defence to part of chiim. — Where the defence set up applies only to part of the plaintift"s claim, or any pait of the claim is admitted to be due, the plaintiff* is to have judgment forthwith as to such part which is admitted, or as to which no defence is made, subject to such terms as may be imposed as to suspending execution, or paying the amount levied, or any part thereof, into Court by the Sheriff', or as to the taxation of costs, or otherwise, as the Judge may think fit, and the defendant may be allowed to defend as to the residue of the claim. {Rule 83.) If it ajipears to the Judge that any defendant has a good defence to the action, or ought to be permitted to defend, and that any other defendant has not such defence, and ought not to bo permitted to defend, the former may be 80 I'HOCKEDINOS AFTKU APl'KAUAXCE, L'l m r |i ill peiinittecl to dofend, and the plaintiH' is to be entitled to enter final judgment against the latter, and issue execution thereon, without prejudice to his right to proceed with his action against the defendant who is allowed to defend, [liiilc 84.) Leave to defend may be given unconditionally, or subject to such terms as to giving security, or otherwise, as the Court, or Judge, may think fit. {litili-H').) The following have been held to be meritorious defences, viz ; the Statute of Limitations ; Usury; Infancy ; that the claim is not one that can be specially indorsed ; want of Jurisdiction. (Madennan, 12G.) Leave to sign final judgn»ent will n. 13.3.) If the order giving the defendant leave to defend does not name any other time, he must deliver his defence within eight days after the order, (Rule 10:2,) or judgment may be obtained by default even though no statement of claim is delivered, (Afkinx v. Toylor, W. N. 1870, 11 ; Maiyate P'lev Co. v. Fert'i/, ih. .52). Sed (juwre if this is so, where the defendant has not dispensed with the delivery of a statement of claim, (see Charleiji^ Jud. Act, 3rd ed. p. .523.) Leave will be given to defend uncon- ditionally where a good defence is shown. {Runnacks v. Menqulta 1 Q. B. D. 410). Leave to defend, on payment of claim into Court, will be granted where it is not clear that there is a defence, but the defendant shows such a state of facts, as leads to the inference that at the trial he may be able to establish a good defence. {Ray v. Barker, 4 Ex. D. 279.) A defendant who has paid money into Court, if success- ful in the action, is entitled to have it paid out to him, notwithstanding notice of appeal has been given. (York- shire Bankivy Co. v. Beatson, 4 C. P. D. 213). ' PROCKKDINOS AhTKH APPKAUAXCE. 81 2. Actions for ax Account. Wo have already seen that wliere the action is for an ordinary account, e. g., a partnership, executoiNhip, or trust account, and the writ has been indoi-sed under Rule 16,^ (see Foi'ia No. 9. a, b, c,) notwithstaudiu*^ an appearance has l)een entered, the plaintift'niay move, without delivering a statenient of claim, foi* an order directing the taking of tlie account. (See ante p. 7G.) 3. Actions fou FoRFt^LosruE, or Sale, whkkk dispute Note Filed. In actions of tliis class, wliere an apijcai-ance has Ijeen entered, and the defendant has merely filed a notice dis- puting the amount claimed to be due, (see Fona No. 15,) it will not be necessary for the plaintiff to deliver a state- ment of claim, but he may apply on i>ra'cii>e for judgment in accordance with the indorsement on the writ, as in case of non-appearance, Imt the defendant must receive four days' notice of the taking of the account, whether it be taken by the officer entering the judgment, or by a Master to whom the cause is referred. 4. Other Actions. In all other actions where the defendant has appeared, anplicable to all Pleadinifs. Mnu he printed, or turiften. — Every pleading may be printed, or written, or partly printed, and parti}' written. No more than four copies of any pleading or other docu- ment, exclusive of the draft, are to be allowed. {Rule 129.j If more than three copies, exclusive of the draft, are re({uired of any pleading, or other document, it may be printed, in which case 30 cts. per folio, and the cost of printing, will be allowed therefor. {Rule 130.) If printed, the i^leading or other document must be printed with pica type, leaded, and on good paper of foolscap size. {Rule 452.) To contain date, and style of caust, tft*. — Eveiy pleading- is to bear on its face the date of filing, and the name of the Division to which the cause is assigned, the title of the action, the description of the pleading, and the name and place of business of the solicitor, and agent, if any, of the party filing the same, or the name and address of the party filing the same if he does not act by a solicitor. {Rule 132.) . RULES APPLICABLE TO ALL PLEADINGS. 85 To contain Conri.se Statement of /\t«'/«, »fr. — Every pleading is to ccmtain as concisely as may l»e, a statement f>f the material facts on whicli the pleader relies, but not the evidence by which they are to be proved. Such statement is to be divided into paragraphs numbered consecutively, and each paragraj)h is to contain as nearly as may be a separate allegaticui : dates, sums, and numbers, are to be expressed in figures and not in words ; the signa- ture of counsel is unnecessary; similar forms to those in the appendix of Fornix to the Rvhs may be used. (Rale 12.S). The pleader must allege all facts, and grounds of claim, or defence, on which he intends to rely, unless they appear in some previous pleading. (Rule 147.) Facts pvei^umeiJ in favour of pleader, nv as to which onus is on opposite part)/. — The pleader neel not allege any matter of fact which the law presumes in his favour, nor as to which the burden of proof lies upon the other side, unless the same has fii-st been specifically denied, e. g. the considi ration for a bill of exchange, wheie the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim. (Rule 139.) Documents, contents of how to he stated. — When the con- tents of any document are material, it is sufticient in any pleading, to state the effect thereof as lirietty as possible, without setting out the whole or any part thereof, unless the precise words of the document, or an}"^ part thereof, are material, (Rule 13o,) i.e., to the question in contro- versy in the action. Allegations of Fraud, M«Y chapter xx. (6) Mules Applicable to Stutement of Cluirn. Place of r rial, — The plaintiff is, in hi.s statement of claim, to name the county town in which he proposes the action shall be tried, and the action is to be tried there unless otherwise ordered. {Rule 254.; In actions for the recovery of land, the place of trial must be in the county in which the land is situate ; in other actions the plaintiff may name any place he pleases. The place of trial, however, is in the discretion of the Court, or a Judge, but will not be changed from the place named by the plaintiff unless the defendant shew a preponderance of convenience in favour of some other place {Phnn v. ^oruianUnni lyon Co.. W, N. 1870, 105), or that a fair trial cannot be had at the place named by the plaintiff {Blurkhnrn v. Cameron, 5 Pr. R. 34; but see Roche v. P, it rich, 5 Pr. R. 210.) Relief to be stpecially claimed. — Every statement of claim is to state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general re'".ef If the plaintiff's claim be for discovery only, the statement of claim must shew if. {Rule 133.) No relief can be granted at all, unless it is either specifi- cally prayed for, or there is a piayer for general relief, under which it can be granted {HoUowayv. York, 25 W. R. 627.) Where general relief is prayed, a pleading will not be demurralile if the facts stated .shew the pleader entitled to any relief ( IHt/soJi v. HaivHns, 24 W. R. 884 ; Phillips v. Royal Niagara Hotel Co.j 25 Chy. 358). Under a prajer for general relief, the Court will grant the appropriate relief which the facts stated warrant, althongh unable ta grant the .si)ecific relief claimed. {Slater v. The Canada Central R. W. Co. 25 Chy. 303). Joinder of different causes of Action, — Where several distinct causes of action, founded upon separate and distinct 88 RULES APPLICABLE TO DEFENCE, ETC. facts, are joined in one action, the plaintiff is to state them as far as may be, separately and distinctly. {Rale 134.) Neu' ctssujuvient. — Facts which, under the former sj'stem of pleading at law, were alleged by way of new assign- ment, are now to be pleaded by amending the statement of claim. {Rule 143.) (c) Ridi'H ((pplicdhle to Statement of Defence, and siihseq uent FleddingH. Silence of Pleading, effect of. — Save as is otherwise pro- vided, /. e., by the Rides requiring the specific denial of the representative character in whicli any person claims {Ride 140), and the express allegation of illegality, or insufficiency in law, of any contract alleged {Rule 141); the silence of a pleading as to any allegation in a previous pleading, is no admission of iis truth ; and allegations introduced into a pleading for the purpose of preventing such admissions being implied, and not for the ])urpose of making intel- ligible the grounds of defence, .are impertinent. {Rule 148; e likely to take the opposite party by surprise, or would ifuso new issues of fact not aiising out of the pleadings, c. //.. fraud, the Statute of Lunitations, or a relea.se of the claim. (liiile 147.) F(ict>^ IncouKisfcnf vilth pn't'lonf^ pleading.— ^o new ground of claim, or allegation of fact, inconsisti'nt with the previous ])leading of tlie pleader, can he set up, except by way of amenchnent of his previous pleading. (Rttfe 149, and see Rule 143.) Relief churned, to he HpecificnUy ufated. — Wliere a defen- dant by his statement of defence, or counter claim, claims to be entitled to any relief, it nnist be specifically claimed, either simply, or in the alternative, and he may also add a prayei- I'oi- general relief in the .same nianner as in a state- ment of claim. {Rule 133,) see ante p. 87. D'lst'nicf [jroun h of defence. — Distinct grounds of defence, set-off", or counter claim, founded upon separate and distinct facts, are to be stated in the statement of defence, as far as may be, separately and distinctly. (Rule 134.) Pleas ill abatement. — No plea, or defence, can be pleaded in abatement. (Rule 142.) The effect of a i)lea of abate- ment under the old practice at law was to stay all proceed- ings in the action on the merits, until the (luestion raised by the plea in abatement, was disposed of. The defences raised by a plea in aViatement under the former ]>ractice may still be pleaded, but they cannot be pleaded alone as foi.nerly, but must h'\ pleaded along with any other defence the defendant may have to the action. Actions for recover ij of land. — A defendant who is in possession by himself or his tenant, need not plead hi.s title, but it is suflicient to state in his .statement of defence, that he is so in possession, and he may rely thereunder, upon any defence which lie can prove, except : — (a) Where the defence depends on an e(iuital»le estate, or right ; or : — 12 90 NOT (UILTY KV STATITE. ai: 11 (h) Where relief i.s claimed upon any equitable ground^ against any light or title asserted by the plaintiff. (Rule 144.) In either of those cases his defence niu.st be specially pleaded. Kot (fuUfji 1)11 Statute. — There are many Acts of Parlia- ment which give a defendant the right to plead " not guilt}'," simply, and prove under that plea an}' special matters of defence, without s])ecially pleading^ the jsarae^ In all such cases a defendant may still )lead " not guilty" by statute, and such defence is to have the .same ott'ect as l)ef<)re the Jml'icatare Act. But if a defendant so plead, he cannot plead any other defence without the leave of the Court. {Rule l+o.) Where the defence of "not guilty" by statutt; is pleaded, the defendant mu.st in.sert in the margin of his statement of defence, the words "by .statute," together with the year or years of the Reign, and the nunjbers of the chapteis, and .sections, of each of the Acts on which he relies, and mu.st specify whether such Acts arc public, or private ; otherwi.se the defence will not be taken to be by virtue of any Act of Parliament, and such, memorandum as to the Acts relied on is also t< be inserted in the margin of the nisi ^iritifi Rece:os Bench, and Common Pleas, Divisions, in Toronto. In these actions the writ issues from the office of the Clerk of the Process, but the subsequent proceedings up to final judgment, are to be carried on in the office of the Registrar of the Division to which the action is assigned, {a) (a) But see anUi p. 58, note («). I THE STATEMENT JF ' LAIM. 93 4. The Statement of Claim, W 7/671 to he del'ivereO. — The plaintiff may deliver his .statement of claim at tlio time the writ of summons is served, or at any time before appearance, or witliin three months after the defendant has appeared. It may be delivered, although the defendant may have dispensed with -its delivery. If not served before appearance, and if the defendant has not dispensed with its delivery, it must be filed and served {Rules 131, 150) within three months from the entry of appearance. (Rale 1.38.) After the expiration of the three months it cannot be delivered with- out leave. (Rule l5Sc.) If the ])laintiff is not, within that time, in a position to deliver the statement of claim, against all the defendants, by reason of the time for ajjpearance of some of them not having expired, he should apply to enlarge the time for delivering the statement of claim to the defendants who have appeared. To he filed and served. — The statement of claim is to be filed and served. (Rides 131, 150.) It must be filed in the ofiice from whence the writ of summons issued, except in actions commenced in the Queen's Bench, and Common Pleas, Divisions, in Toronto, in the latter cases the state- ment of claim, ami all subsequent pleadings, are to be filed in the ofiice of the Registrar of the Division, to which the cause is assigned, (a) Hoiv to he served. — If the statement of claim be served with the writ, it must be served in the same manner as the writ of summons. If served after the writ has been served, the service must be eft'ected on the solicitor of a defendant who has appeared by a solicitor, or personally on a defendant who has appeared in person, or it may be left at the defendant's address for service, if any, or if the address given in the api)earance be illu.sory or fictitious, then leave may be obtained in Chambers to serve the statement of claim by posting it up in the ofiice in M'hich the appearance is entered. (Rule 54.) Where it is desired (a) But see tnitc p. 58, note (a). \i 94 FOUM OF STATKMEXT OF CLAIM. 'm § f to serve a statement of claim on a «lefendant who has been served with the wiit, but wlio has not appeared within tlie time limited, the serviee may be effected by posting; nj) a cop}' in the oftice where the statement of claim is tiled. {Rale 131.) Conficquence of not Jillng. — See unte p. 82. (a) Form of statement of Cliim. Where ivrit special! i/ Indorse J. — Where the writ lias been .spcicially indorsed and the defendant has not dispensed with the delivery of a statement of claim, the i)laintiff may file a copy of the writ and indorsements, if not already tiled, and deliver as his statement of claim a notice stating that his claim appears by the indorsement of the writ. For form of this notice see Form No. IG. (Rule 159.) This form, however, omits to name the place of trial, as required by Rtile 254, A statement of claim in this form is sufficient, unless the Court, or a Judge, shall order the deliver}'- of a further statement. (Rule 159.) If a further statement be ordered it must be filed and served within the time named in the order, and if no time be named, then within three months from the entry of appearance. {Rule 159.) In other cases. — The statement of claim in other cases will in substance somewhat resemble a bill in Chancery under the foi'mer practice. It must set out, as briefly as possible, {Rale 12G) the material facts on which the plain- tiff's claim is based, and conclude with a statement of the specific relief claimed by him, and may also contain a prayer for general relief. The statement is to be divided into paragraphs, numbered consecutiv^ely, and each ])ara- graph is to contain, as nearly as may be, a separate allega- tion ; dates, sums, and numbers, are to be in figures. The signature of counsel is unnecessary. {Rule 128.) The place of trial must be named, {Rule 254,) in actions for the recovery of land it must be the county town of the r DEFKXCE, HOW MADE. 95 county wh^re the land lies; in other actions the plaintiff may nai!/e any place he pleases. See '(h, before, or within three months after, the entiy <»f appearance. {Rah 158.) He cannot, however, by serving the statement of claim before appeai-ance. accele- rate the time for the delivery of the statement of tlefence. There are various modes of defence open to a defendant : e.g.— I. He may put in a statement of defence, by which he i-aises such defences as he may have to the plaintiff's claim ; or he may put in, alone, or together w'th, such .statement of defence, a counter-claim, or set-off. This counter-claim, or set-off, may be : — (a) against the plaintiff alone : oi" — (b) against the plaintiff, and some third ]ierson. If against the plaintiff alone, it may relate to any claims whatever which would form the subject of an independent axjtion against the plaintiff; but if against the plaintiff and some third person, it must arise out of, or relate to, the original aulyect of the action. II. Where the action is to recover money, and the defen- <3art merely' desires to dispute the correctness of the amount claimed, he may file a notice disputing the amount claimed, but this notice must be filed with the appearance, or must be filed, and served, within four days after. {Rule G8.) 96 STATKMKNT OF DEFKNCK, AND COUNTKH-CLAIM. III. The rules, moreover, provide tlmt in cases wliore the defendant chums any relief over, in respect of the matters in question, against any third party, he may, in order to hind Huch third party, and prevent him afterwards calling in (juestion, the judgnient which shall he recovered in the action, serve him with a notice in the same manner as with a writ of summons ; and upon heiug served with this notice, the third purty may appear in the action ; and upon appli- cation to the Court, or a Judge, for that purpose, directions may be given, enal»ling such third |)arty to defend the action if so disposed. IV. Or if the statement of claim discloses no case foi" relief, upon the facts alleged therein, he may demur thereto. We will now proceed to consider more in detail the different modes of defence above indicated. (a) Stdfement of Defence, ami Count er-Cli rim. Within irhnt time to be delivered. — The statement of defence nnist be Q. B. D. 498.) Payment into Court. — In any action to recover a debt, or damages, any defendant may, after service of the writ, and before, or when, delivering his defence, or by leave of the Court, at any subsequent time, pay into Cou 't, a sum of money by way of satisfaction or amends. Such pay- ment is to be pleaded in the defence (Rule 215) (a), and the defendant is not precluded thereby from denying the plaintiff's cause of action as well, (Berdan v. Greenwood, 3 Ex.D. 251 ; Hawkesley v. Bradxhaw, o Q. B. D. 22, 303.) Money so paid in may, unless otherwise ordered, be paid out to the plaintiff, or his solicitor on his written authority. (Ride 217.) If the money be paid in before the delivery of the defence, the plaintiff may within four days after the receipt of notice of such payment, or if such payment is first stated in the statement of defence, then before reply, give notice (Form No. 22) that he accepts the same in satisfac- tion of the causes of action in respect of which it is paid in. If it is accepted in satisfaction of the entire cause of action, the plaintiff may tax his costs, and if not paid within forty-eight hours may sign judgment therefor. {Ride 218.) (rt) But see RhIp 216 which provides that if the payment in, be made before delivering defence, a notice ia to be served. Form No. 21. ■■i DISPUTE NOTE. Defence. — A defendant cannot withdraw y part thereof, without leave, but he may ers, and obtain leave to withdraw the whole, his alleged grounds of defence, or counter terms as to costs, and otherwise, as may seem 170c.) Where a defendant in an action of ejectment was allowed to withdraw his defence on the terms of paying the plaintiff's costs of the action so far as they were occasioned by the defendant's defence down to the date of the application to withdraw, he was held to be dis- charged from the general costs of the action, and only liable for the additional costs, over and above the general costs, occasioned by such defendant having defended the action, {R. & P. Advance Co. v. McCmihy^ 44 L. T. 515.) (h) Dispute Note. Where the defendant merely wishes to limit his defence to the question of the amount to which the plaintiff is entitled, he may do so by adding a statement to that effect to his appearance ; or may file and serve a notice to that effect (see Form No. 15) within four days after appearance. {Ride GS.) This mode of defence, however, only appears to be appropriate where something is admitted to be due, and not when for any reason the defendant claims that the plaintiff's claim is wholly barred. (See Gaitanach V. Urquhart, 6 Pr. R. 28; Wright v. Morgan, 1 App. R. 210.) The effect of the notice is the same as if the defen- dant had disputed the amount due in a statement of defence, and no further statement of defence is neces- sary. {Rule 68.) Where the notice is made part of the appearance, it does not appear to be requisite that a copy should be served on the plaintiff; but when it is filed after the appearance, a copy must be served on him. ! ,'^'" a I NOTICE TO THIRD PARTY, LIABLE TO DEFBH-DANT. JQl {c) Notice to Third Paiiy, liable to I)6fen(k(,n)r. fon^^ contribution, riu. i L i .r i'ir '' 102 EFFECT OF NOTICE TO THIRD PARTY. the defendant. [Treleaven v. Bray 45 L. J. Chy. 113 ; Sivansca Shijiplng Co. v. Duncan, lb. 640 ; Benecke v. Frost, 1 Q. B. D. 422 ; Re Collie, 2 Chy. D. 51). Third parties will not be allowed to be brought in, if the plaintiff will be prejudiced or delayed thereby. {Rule 112, Bower v. Hartley, 1 Q. B. D. G52 ; Wye Valley R. W. Co. v. Haives, 16 Chy. D. 489.) Except on such terms as may prevent the plaintiff being so prejudiced. (lb.). Where the defendant has no reason to contest the plain- tiff's claim he is not bound to put in a statement of defence, but may content himself with filing the notice, and serving it on the third party, against whom he claims relief over, leaving it to such third party to get leave to contest the plaintiff's claim if so disposed. (See Rale 111.) How Given. — Where the defendant desires to notify any third party, against whom he claims relief over, under the provisions of Rale 107, he must file a copy of the notice, (see Form No. 18,) and serve a copy of it, together with a copy of the plaintifi's statement of claim, or if there be none, then a copy of the writ of summons and indorsements, on such third i)arty. The service of the notice is to be effected according to the rules relating to the service of a wiit of summons. No provision is made for serving a copy of the notice on the plaintiff", but where no statement of defence is filed, it would seem necessary that it should be done. The notice is to state the nature and grounds of the defendant's claim, and unless otherwise ordered, is to be served within the time limited for filing his statement of defence. {Rale 108.) When the Coui-t directs the notice to be given, it will ordinarily be required to ba given by the plaintiff, and the form of notice {Form No. 18) will, in that case, require to be modified. Appearance by Third Party. — If the third party served with the notice, desires to dispute the plaintiff's claim ia the action as against the defendant, he must enter an appear- I if PROCEEDINGS AFTER DELIVERY OF DEFENCE. 10» s %. ance within eight Jays from the service of the notice, (see Form No. 80), or he is to be deemed to admit the validity of the judgment obtained against the defendant, whether by consent or otherwise. He may, however, apply for leave to appear after the time has elapsed. {Rale 110.) After appearance he ma}', if he think proper, move to set aside the notice served on him, on notice to the defendant serving it, and the plaintiff. {Boiver v. Hartley, 1 Q. B. D. G52 ;, Wye Valley R. IF. Co. v. Hawes, 16 Ch. D. 489 ; Horwell V. London General Omnibus Co., 2 Ex. D. 365.) After appearance, the third party may, by leave, actively assist ill resisting the action, and the plaintiff may obtain discovery from him, as from a defendant. (See McAllister v. Bishop of Rochester, 5 C. P. D. 194.) Special Directions as to Mode of Trial — Costs. — After appearance by the third party, the defendant giving the notice may apply in Chambers for directions, as to the mode of having the question in the action determined. The Court, or Judge, upon the hearing of the application, may allow the person served wdth the notice, to defend the action upon such terms as may seem just, and may direct the delivery or amendment of pleadings, and give any other directi(ms, as may seem proper, for having the question most conveniently determined, and with respect to the mode, and extent, in, or, to which the person so served, shall be bound or made liable, by the decision of the question^ and also as to the costs of the proceedings. {Ride 111, Schneider v. Batt, 44 L. T. 142.) Directions may also be given to prevent a plaintiff from being delayed in the recovery of his claim. (Rule 112.) G. Proceedings after Delivery of Statement of Defence. (a) Cases in which Judgment may he obtained. After a statement of defence, or counter-claim, has been delivered, it is for the plaintiff to consider what should be his next step in the action. After the delivery of a statement 104 PROCEEDINGS AFTER DELIVERY OF DEFENCE. of defence, or a notice disputing the plaintiff's claim, the plaintiff is, in some cases, in a position to obtain judgment on pnecipe, and in others he may move for judgment with- out filing any further pleading. Actions for Foreclosure, Sale, or Redemption. — If the action be for foreclosure, sale, or redemption of mortgaged property, and the statement of defence admits the execu- tion of the mortgage, and other facts entitling the plaintiff to judgment, if the defendants are adults, the judgment may be obtained as formerly, in Chancery, on a prcvcipe being filed therefor, in Toronto with the Registrar of the Division in which the action is pending, or in actions in the outer counties, with the officer from whose office the writ issued. No notice to the defendant is necessary, un- less by his statement of defence he disputes the amount claimed to be due by the plaintiff, and the account is to be taken by the officer entering the judgment. So also where the only defence put in by the defendant, is one limited to the question of the amount due, the plain- tiff may, in like manner, obtain judgment, in cases where the defendants are adults, upon pr(vcipe,h\\t a defendant in such a case, as well as where he files a statement of defence disputing the amount due, is entiled to four days' notice of the taking of the account, whether it be taken by the officer who enters the judgment, or by a Master to whom the action is referred. (Rale 78.) In actions of this character where the defendants are infants, and no defence is raised by the statement of defence, the judgment may be obtained by the plaintiff on motion in Chambers. The notice of the motion must be served on the guardian ad litem of the infant defendants and such of the adult defendants as have appeared, and must be sujjported by affidavits of the due execution of the mortgage and such other facts and circumstances as entitle the plaintiff to judgment. (See Ghy. 0. 434, and Rule 79.) DISCONTINUANX'E — REPLY. 105 (b) Motion for Judgment. In other actions where the statement of defence admits, or offers no defence to, the plaintiff's claim, and the plaintiff is prepared to admit the facts alleged in the statement of defence, it will be open to him to set the cause down to be heard on motion for judgment. See jyost p. 129. (c) Discontinuance. The plaintiff, at anytime before, or after, the receipt of the statement of the defence, may, if he please, file, and serve on the defendant, a notice wholly discontinuing the action, or withdrawing any part, or parts, of his alleged cause of complaint, and thereupon he is to pay the defen- dant's costs of the action, or if it be not wholly discon- tinued, the costs occasioned by the matter withdrawn, (Rule 170), and for which the defendant is entitled to enter judgment, (Rule 172.) Such discontinuance is not a defence to any subsequent action. {Rule 170). For form of notice of discontinuance, see Chitty's Forms, 11th ed. 194. For form of judgment for defendant's costs see Form No. 164. (d) Confession of Defence arising after Action brought The plaintiff may also deliver a confession of any defence set up, which has arisen after action brought, and is thereupon to be entitled to judgment for his costs up to the time of the pleading of such defence, unless the Court, or Judge, otherwise order. (Rule 157.) For form of con- fession of defence, see Form ?fo. 17, and for form of judgment for costs, see Form No. 165. (e) Reply. Gases in which a Reply necessary. — Where, however, the statement of defence sets up a substantial matter of defence, two modes of meeting it are open to the plaintiff. He may either amend his statement of claim, if by amend- ment he can avoid the defence set up ; or he may file a plead- ing called a reply, whereby he may take issue on the facts 14 •J .-f 106 REPLY BY THIRD PARTY. set up in the .statement of defence, or set up new matter as an answer tliereto. He cannot, however, by a reply plead any matter inconsistent with his statement of claim. (Rule l-id.) Tf he wish to do that, he must amend the statement of claim. A reply seems the appropriate mode of pleading only where the matter desired to be set up in answer to the defence, is consistent with the allegations contained in the plaintift"'s statement of claim ; or is some matter of defence to a counter-claim, or set-off, arising after its delivery. (See Rule 152.) Time for Delivering. — The reply must be filed and served within three weeks after the defence, or the last of all the defences, where more than one shall have been delivered, unless the time be extended. (Ride 178 ; Amhroise v. Evelyn, 11 Ch. D. 762.) Where filed. — It is to be filed in the oftice where the appearance is entered. {Rule 50.) Service. — Service is to be effected in the same manner as of a statement of defence. See ante p. 96. Ju/ry Notice. — Where the plaintiff desires the action to be tried, or the damages to be assessed, by a jury, he must with his last pleading serve the notice required by the former practice, see R. S. 0. c. 50, ss. 252-3. Matter of defence to Counter-claim, or Set-off, arising after its delivery. — Any matter of defence to a set-off, or counter-claim, arising after its delivery, may be pleaded in reply, or be introduced by amendment into the statement of claim, within three weeks after the defence or the last of the defences, when more than one, shall have been delivered, unless the time be extended {Rule 152); or if the matter of defence arises after the expiration of the above period of three weeks, it may be pleaded by the filing and serving of a further reply within eight days after it arises, or it may within that period be introduced by amendment into the statement of claim. (Rule 154.) The amendments may be made on proicipe, without order. DEMURRER. 107 on filing an affidavit that tho matter of the ainoiuhnent arose within eight days next before the day of making such amendment. (Rule 155.) Pleading subsequent to reply. — Cannot be delivered without leave. {Rule 174.) If allowed, it must be de- livered within four days after the delivery of the previous pleading, unless the time be extended. {Ride 175.) 7. Reply by Third Party. A. third party against whom a defendant files a counter- claim, as we have seen, is entitled within the time allowed for filing a statement of defence, to file a reply to such counter claim. He cannot, howevei-, set u]) a counter- claim against the defendant by whom he has been brought into the action, see ante, p. 90. 8. Demurrer. A demurrer is a pleading which admits the facts as st ited in the pleading, or ])ai't of the pleading demuiTed to, and refers the law arising thereon to the judgment of the Court. Any party may demur to any pleading, or any part of a pleading setting up a distinct cause of action, or ground of defence, set-off, or counter-claim, on the ground that the fiicts alleged do not constitL.e any ground of relief, or defence, as the case may be, as against the party demurring. {Rule 189.) Pleading to iKirt, and Demurring to part. — Any party may demur to part of a pleading, and put in a defence to any other part ; but the demurrer and defence are to be combined in the same pleading. {Rule 192.) Pleading and Demurring to same Pleading. — Any party- may, without leave, at the same time plead and demur to the same pleading, on annexing to, and filing with, the plea and demurrer, an affidavit of the party pleading, distinctly denying some one or more material statement, or statements, in such pleading; or stating that the several matters sought 108 DEMURRER. It: ^M t to be pleaded by way of confession and avoidance, are respectively true in substance, and in fnct, and that he is further advised and believes, that the objections raised by the demurrer, are good and valid objections in law. A copy of the affidavit is to be servo(^ with the plea and demurrer {Rale 193.) Leave may be given to plead and demur without filing such affidavit, on a special application for that purpose in Chambers, {Ride 194), but even in such case an affidavit, at least, of belief that there is good ground of traverse, ice, would seem necessary. It seems doubtful whether a defendant corporation aggregate, can plead and demur without leave, as such a defendant is unable to make the required affidavit. To he Filed and Served. — The demurrer must be filed, and served on the party whose pleading is demurred to. (See Rides 191, 150, 131.) Time for Filing. — The demurrer must be delivered within the same time as any other pleading in the action, {Rule 191), i. e., a demurrer to a statement of claim must be delivered wdthin the time allowed for delivering a state- ment of defence ; and a demurrer to a statement of defence, set-off, or counter claim, within the time allowed for filing a reply ; and a demurrer to a reply within such time, if any, as the Court, or a Judge, may allow for pleading thereto. {See Ride 17^.) Form of, — The demurrer must state specifically whether it is to the whole, or to a part, and if to part, to what part of the pleading, in respect of which it is filed ; and it must also state some ground of law for the demm-rer, but on the argument other grounds, besides those stated, may be taken. For form, see Form No. 74. Setting Aside. — If no ground, or only a frivolous ground of demurrer be stated, it may be set aside by the Court, or a Judge, with costs. {Rule 190.) So also, where a demurrer and a pleading to the same pleading are filed without the requisite affidavit, or without leave, where leave is necessary. DEMURRPJR. 109 Entry for Argument. — Eitlier party may enter the demurrer for argument immediately. For form of precipe to set the cause down for argument see Form No. 80. A p^'cecipe in this form is to be filed with the Registrar of the proper Division, at Toronto, when the cause is in either the Queen's Bench, or Common Pleas Divisions, and if in the Chancery Division, with the Clerk of Recortls and Writs. {Rules 195, 202; J. A., s. 91.) The demurrer must be entered, ,§ix_days before the day on which it is to ^3^^ be heard. In the Queen's Bench, and Common Pleas, ^tt^-c^/i-vyy Divisions, demurrers may be set dosvn for argument on any Tuesday or Friday, and in the Chancery Division, on any Wednesday, except during vacations. {Rules H. C. «/. II., III., IV., see App. C. Chy. 0. 593.) If the demurrer be not set down within ten days after its delivery, it will stand allowed without argument. {Rule 195fi, and see post p. 110.) Notice of Setting Down. — \ notice of the setting down (see Form No. 28) is to be served on the same day on the opposite party. {Rules 195, Ride H. C. J. V., see App. C.) The notice is to be served in the same manner as a pleading. (See ante p. 91.) Delivery of Demurrer Booh. — Two days before the day on which the demurrer is to be argued, a copy of the demurrer book, must be left with the Registrar of the Divi- sion, for the use of the Judge. {Rule H. C. J. VI., see App. C.) Argument. — Demurrers will be heard and disposed of in all the Divisions, by a single Judge, in accordance with the former practice in Chancery. The counsel for the party demiirring usually begins, and has the right to reply ; and where there are cross-demurrers, the counsel for the party first demurring begins. Costs, luhere Demurrer allowed. — Where the demuiTer is allowed upon argument, the party whose pleading is demurred to must pay the costs of the demurrer, unless the Court otherwise order, {Rule 197, Roclie v. Jordan, 20 Chy. 110 DEMUKllKU. I! I I 573,) niul wlion the dotnurrcr is to tlio av1i(»1o of the state- ment of ehiiiu, the plaintiff must also pay the defendant's coHts of the action, unless he <^vt leave to amend, and amend accoiilin^dy. (linh'. 108). Where fraud was ehai^ed, and leave to ameiul jjivon, the costs of a successful denuiiror were reserved. {Duckrft v, Gorev, (-hy. J). 82). Cosfs, (I'hi're Demurrer oren'n'cd. — Unless otherwise ordered, the party demurring must pay the costs of the opposite party occasioned by the demurrer. {Rula 200). Efed of success fill Dcui uvrer io part. — When a dem\irrev to a part of a pleading is allowed, that part is to be deemed to be struck out of the pleadings. {Rule IDO.) Ta'uvc to Plead. — Wheiv a demurrer is overruled the Court may allow the demurring party to raise by pleading any case he may be desirous to set up in opposition to the matter deniurred to. {Rtile 201). Amendment of Pleading. — After a demurrer has been filed to the whole cr any part of a pleading, the latter cannot be amended during the pendency of the demurrer, except under order, which can only be granted on pay- ment of the costs of demurrer. {Rule 196.) The applica- tion to amend, should be made ordinarily in Chambers, and the order obtained before the ten days have elapsed from the delivery of the demurrer, otherwise it will stand allowed. {Ride 195(^ and see infra.) Leave to amend may also be granted on the argument. Judgment. — Two different modes prevailed at law and in equity, as to the form of judgments on demurrer. At law a rule for judgment was granted, and a formal judg- ment was entered thereon. (See C kitty's Foviua, 11th ed., pp. 185-7.) In equity the practice was simply to draw up an order allowing, or disallowing, the demurrer. (See Seton, 4th ed., 1628-9.) It would seem that the former system will still prevail in the Queen's Bench, and Common Pleas, Divisions, and the latter system in the Chancery Division. (/. ^. s. 12.) rriMuiiHKH. Ill Demurrer alloireif without Ar(/ii,meiif. — If a (lonnirier bo not set down for arj^nniioiit, and notice- ^ivei), within ten (lays after delivery, or if the party whose pl^ad- ing is deirmrred to, does not within that timn obtain and serve an ordm- to amend, — tlu? deiiunrer, without arr^ii- ment, is to he held snlHcient, and with tin; Hnrne result as to costs, as if it had been arifued. (/{nle I'Jiia.) No proce(hjre is laid down by the Jinh-s for entering jud;^rnient in such a case, but it would seem that wherff the demurrer stands allowed without argument, the ]>.'irty deniiirring will bo (sntitled in the Qu«!en's Bench, and ('ommon Pleas, Divisions, to enter judgment on producing to the officer an affidavit that the demurrer has not been set down, and that no order to amend has Ijoon served. For form of judgment in such cfise see Chitty's Forms, 11th ed., p. 186. In England in the Chancery Division, instead of a judg- ment being entered, an order of course for payment of costs, is granted on petition. (See Da 1} iels' s Fm-ran, Srd ed., p. 286; Seton, 4th ed., 1620.) Pro})ably until fuither Rules aro made, judgment will be entered in such cases in the Queen's Bench, and Common Pleas, Divisions, and orders of course will be granted in the Chanceiy Divisiorj. (See J. A. 8. 12.) 112 PROCEEDINGS IN DEFAULT OF PLEADING. Rj CHAPTER X. Proceedings in Default of Pleading. 1. By Plaintiff. (a) Cases in ivhich final Judgment may be obtained, (b) Interlocutory Judgment. (c) Cases where motion for Judgment necessary. 2. By Defendants. 3. By, or against, Third Parties. 1. By Plaintiffs. (a) Cases in ivhich fimd Judgment may be obtained. Actions for Debt, or Liquidated Demand. — If the plain- tiff's claim be only for a debt, or liquidated demand, and the defendant does not, within the limited time allowed for the purpose, deliver a defence or demurrer, the plain- tiff, at the expiration of such time, may enter final judg- ment for the amount claimed, with costs. (Rule 204.) For form of judgment, see Form No. 148. If there are several defendants and only some of them make default, final judgment may be signed, and execution issued thereon, against those in default, without prejudice to the plaintiffs proceeding with the action, against any defendants who have put in a defence. {Rule 205.) If any claim for deten- tion of goods, or for pecuniary damages, be joined with a claim for debt, or liquidated demand, final judgment may, on default of defence, be signed for the debt, or liquidated demand, and interlocutory judgment entered as to the other causes of action, {Mule 208,) and the plaintiff may proceed to assess damages as to the latter. See ante p. 72. !l' JUDGMENT IN DEFAULT OF DEFENX'E. 113 Actions for recovery of Land. — In actions for the re- covery of land, in default of defence, final judgment for possession and costs, may be entered, (Rule 209,) (see Fo'rm No, 150, but to this form must be added a clause awarding costs) ; and where in an action for the recovery of land, a claim for mesne profits, an-ears of rent, or damages for breach of contract, is joined, and no defence is put in, final judgment may be entered for possession of the land, and interlocutory judgment as to the other causes of action ; and the damages may be assessed as to the latter, as has s hitherto been the practice at law (Rule 210). For form of judgment, see Form No. 151. Qucere, however, whether j udgment can be entered for any costs until the damages shall have been assessed. Where there are several defendants in an action for the recovery of land, and other claims are joined as before mentioned, and some only are in default,, judgment may be signed as to those in default, without prejudice to the plaintiff's proceeding against the others. ; and this would seem to be intended to be the practice, where the action is for the recovery of land alone, and some defendants defend, and othei-s do not, but the judg- ment in both these cases would seem to be merely inter- locutory, according to the former practice at law. (See J. A., s. 12.) I I Actions for Foreclosure, Sale, or Eeffemption. — In de- fault of defence where the action is for foreclosure, and none of the defendants are infants, the plaintiff in default of defence, is entitled to obtain judgment upon 'praecipe, (Rule 78.) In Toronto the judgment will be entered by the Registrar of the Division to which the cause is a.ssigned, and in the outer counties by the officer by whom the writ was issued. The account will be taken by the officer entering up the judgment, unless a reference as to incumbrances is required by the plaintifi", who must satisfy himself on this point by making the necessary searches in the Registrar's and Sheriff's offices. K any defendant has filed a notice disputing the amount due, he is entitled 15 lU INTERLfX UTORY .1 V\^0^\ ENT. to four (lays' notice of taking the account. For forma of jtidginont see ForniK Nos, KJS, IGO, 170. TIu\se forius are framed for default of appearance — they require modification when the judgment is granted in default of defence. It appears to be intended that judgment h drawn up in stich cases, in the o'.iter counties shall be entered in Tonmto. (See Ride 418.) Under the former practice in Chaiicery, if any of the defendants were infants, on default of defence, or where the answer lai.sed no question as to the ])laintirf"s riglit to a decree, a decree might have been obtained in suits for foreclosure, sale, or redenq)tion, on motion in Chand)ers, on notice to the guardian ad litem supported l»y affidavits of the due execution of the mortgage, and of such other facts, and circumstances, as entitled the plaintiff to judgment, and it would seem that judgment may still i;e obtained in such ca.ses in this manner. (See C/ii/. 4.*>4, Jlnle 7D). If there be any adult parties who have appeared, they should also be notified of the motion. Where, any special, relief is claimed which it is discre- tionary with the Court to grant or refuse, the cause must be set down to be heard on motion for judgment. (See ■post, chapter xi.) (t>) Interlocutory Judgment. Actions for Unliquidated Damages. — The ]ilaintiflr is entitled, on default of defence, in actions for unliipiidated damages, to enter interlocutory judgment, and proceed to assess his damages as hitherto. {Rule 206.) When there are some defendants who defend, and others who do not, the interlocutory judgment may be entered against the latter, and in that case the {issessment of damages is to take place at the trial of the action against the other defendants. {Rule 207.) Actions for Recovery of Land. — Where there are some defendants who defend, and others who do not, the plaintiff ■would seem entitled to enter interlocutory judgment against ^ T'nOCEEDTNOS IIY DBFENPANT, &C, 115 » thofio in Hofanlt, and procfful witli tho action ngftinsfc tlio otliors according to tlio former practice at law in hucIi cases, (See/, yl., s. 12.) (c) Ce heard against thos«! in default, or mav wait and set it down against them, at the time wlien the action is entered for trial, or set down on motion for judgment, against the other defendants. (Rule 212.) See further as to motions for judgment, jtosl chapter xi. 2. Bv Defendant. Where the plaintiff fails to deliver his statement of claim, where one is necessary, within the proper time, the defen- dant, at the expiration of the time, may move in (Chambers to dismiss the action with costs, for want of prosecution, wlujrcupon such order may be made £i8 shall seem just. {Ride 203.) If the plaintiff make default in the delivery of a reply, or other subsequent pleading, and fail to give notice (f trial within the proper time, (see />o«/, p. 118), the defendant may then move in Chambers to dismiss the action for want of prosecution, and on such application such order may be made as may seem just. (Rule 25.5.) 3. By, or against, Third Party. Where issues ari.se between other parties than the plain- tiff and defendant, e. g., the defendant and some third party. .-,J..^-.>.^V,^.,-^'...— IIG JUDGMENT BY DEFAULT MAY ME SET ASIDE. against whom a counter-claim is filed, if any party to any such issue, make default in delivering any pleading, the opposite party may apply " to the Court or a Judge" for such judgment, if any, as upon the pleadings he may appear entitled to, and the Court may order judgment to bo entered accordingly, or may make such other order as may be necessary to do complete justice between the parties. {Rule 213.) An application of this kind would seem proper to be made in Court, and not in Chambers : notwithstanding the Mule allows it to be made " to the Court, or a Judge," it only appears to authorize " the Court" to make the order. This, however, may be a mere slip. See Mule 163, where there is the same variation in the language of the Eule. Judgment obtained by Default may be net aside. — Any judgment by default, may be set aside on motion to the Court, or in Chambers. {Ride 214.) In ordinary cases the motion should be made in Chambers. I . ! PROCEEDINGS AFTER CLOSE OF PLEADINGS. 117 CHAPTER XI. Proceedings after the Closk of thk Pleadings, to oHTAiN Judgment. 1. Modes of Trial of AvtiovH. J. Trials before a Jwhje, 'willi, or wWiout, a Jury. 8. Motions for New Triai. (a) When action tried l}y a Jadye alone. (6) When, action tried by a Jury. (c) Motion to set asitle dadyrneid. 4, Motions for J LuUjKnent. • {a) Special Cast's. /). Trial before Referees, and Arbitrators. 1. Modes of Trial of Actions. Modes of Trial. — Subject to Rales of (Jourt, the iiio is purely documentary and is not disputed, or where the documents may be proved by affidavit, and no cross- examinatiori of the deponents is required ; or where all >arties agree that the evidence in the cause shall be given ;■. affidavit, and no cross-examination of any of the depo- nents is )e(|uired ; in any of such cases the action may be set down to be heard on motion for judgment ( . T -io'j before a Judge, with, or without, a Jury. Notice of Trial. — Where the cause is I'equired to be entered for trial, it is necessary that notice should be duly given. As soon as the pleadings are closed (see avte p 86), either party may give notice of trial for the next sitting of the Court, which sliall be holdeu at the place named for the trial, not less than ten days thereafter: and if the plaintiff does not give notice of trial, where the pleadings are closed six weeks before the commencement of such sit- tings, the defendant may move to dismiss the action for want of prosecution. {Ride 255), A plaintiff cannot, be- fore joinder of issue has been filed, or the time for amend- ment has elapsed, give notice of trial {ScJniieder v. Proctor, before Dalton, Q. C, 23rd September, 1881.) The notice of trial must be served ten days before the commencement of the sittings (a) unless the party to whom it is given, has consented to take short notice of trial, or is bound b}'^ order to accept less. Short notice of trial is a five days' notice. {Rule 259.) The notice of trial is to state whethei- it is for the trial of the action, or issues therein. For form of notice of trial see Form No. 27. It may be served in the same manner as a pleading. (See ante p. 82.) A notice of trial cannot be countermanded except by consent. {Friendly v. Carter, before Dalton, Q. C, 23rd September, 1881, affirmed on appeal, by Osier, J., 29th September, 1881.) Entry of Action for Trial, — The cause is not to be entered for trial, until after notice of trial has been given. {Rule (a) The former rule requiring an additional two days where service ia eflfected on a Toronto agent, is no longer in force. (Lumaden v. Davis, before Dalton, Q. C, 23rd September, 1881.) ENTRY OF A('TION FOR TRIAL. 119 200.) It may then be entered by eitlier party. If both parties enter it, the action is to be heard in the ordoiof the plaintifl''s entry. {Rule 201.) How to be Entered. — The action is to be entered for trial by delivering to the proper officer a prmcipe, see Form No. 89. If, at the place appointed for the trial, there is a Local J{egifitr :i I 120 ENTRY FOR TRIAI, — EVIDENCE AT TRIAL. M n I When to he entered — The action must be entered for trial, not later than the third day next before the first day of the assizes, or sittings, unless the Judge permit it to be entered at any subse iice. For forms of subpoena see Forms Nos. 99-102. A witness failing to attend, or remain in atcendance, is now liable to be detained in custody by order of the Judge at the trial. (See J. A., B. 83). For form of warrant for arrest of witness, see Form No. 184. I 1 PROCEEDINGS AT THE TRIAL. 121 The Court may order any particular facta to be proved by affidavit, or that any particular witness, whose attend- ance in Court for some sufficient cause ought to be dispensed with, be examined before an Examiner, except when it appears that the witness can bo produced, and his attend- ance is required in good faith by the otlier party for cross- examination. {Rule 282.) See further as to evidence posi chapter xiv. Proceedingfi at the Tr'ud. — The mode of proceeding at the trial is unchanged. (See J. A., s. 45). The plaintiffs counsel opens the case by stating the substance of the f[uestions put in issue by the pleadings, and where necessary the pleadings are then read, counsel for each party reading his client's pleadings, after which the counsel for the party entitled to begin states the facts of his case and the sub- stance of the evidence he intends to adduce, if he should think any such preliminary statement necessary ; he then calls his witnesses and adduces such other evidence, if any, as he may have. Counsel for the opposite party is then entitled to state the facts of his case, and the substance of his evidence, and then proceed to adduce his evidence ; the party beginning has then the right to give evidence in reply, after which no further evidence can be given except by leave of the Court. The party on whom the affirmative of the issue lies, is usually entitled to begin, except in actions for actual damages of an unascertained amount: as a general rule, except in actions of the latter class, the party entitled to begin, is he who would have a verdict against him, if no evidence were given on either side. {Arckcl. Pr. 13th ed., 354-5). At the close of the evidence the counsel for the party beginning usually addresses the Court, and is followed by counsel for the opposite party, and the counsel who begins has then a right to reply. (See, however, R. S. 0. c. 50, fi. 26). But if, at the close of the evidence in chief of the 16 I V if '' V is MS 122 PROOF OF FACTS AT SUBSEQUENT TIME. party who V)egins, the opposite party announces that he does not intend to adduce evidence, the counsel who begins addresses the Court and counsel for the opposite party has the riglit of reply. (Gibson v. Toronto Roads Co., 2 C. L. J. 11.) The Judge may, at, or after the tiial, direct that judgment be entered for any, or either partj^ or adjourn the case for further consideration (Rule 273); but he cannot reserve the case, or any point in it, for the opinion of a Divisional Court. (J. A^,s. 28). Facts omitted to he proved, may he proved (d some future time, hy leave. — Except in actions for libel, when- ever, through accident, or mistake, any party omits to prove some fact material to his case, the Judge may proc ^ed with the trial, subject to such fact being afterwards proved, at such time, and subject to such terms, and conditions, as to costs and otherwise, as the Judge shall direct ; and if the case is being tried by a jury, the Judge may direct the jury to find a verdict, as if such fact had been proved, and the verdict is to take effect on such fact being afterwards proved as directed ; and if not so proved judgment is to be entered for the opposite party, unless the Court, or a Judge, otherwise orders. {Rule 271.) But it seems open to doubt whether a jury sworn to give a verdict according to the evidence, could be compelled to give a conditional verdict, as here provided. The provision of Rule 271 will no doubt, in any case alone. be beneficial in cases tried before a Judge Amendments. — (See jr^os? chapter xx.) Non-appearance of Defendant. — If the defendant does appear, when an action is called on for trial, the plaintiff may prove his claim, so far as the burden of proof lies on him. {Rule 288, J. A., s. 44.) But the proof that his pleadings are true will not alone entitle him to judgment, unless the facts proved, are also sufficient in point of law to entitle him thereto. Heretofore in actions of ejectment f I i NON-APPEAHANCE OF PARTIES, AT TRIAL. 123 if the defendant did not appear, the plaintiff was entitled to a verdict without any proof (i?. S. 0. e. 51 s. 32) ; but now actions for recovery of land stand on the same foot- ing as other actions in this respect. The plaintiff is not bound at the trial, to prove service of the notice of trial. {Charlton v. Dickie, 13 Ch. D. IGO.) But if the notice of trial have not been duly served, the verdict or judgment may be set aside, and it would seem, on entering judgment an affidavit of service of the notice of trial is necessary when any of the defendants have not ai^peared. (See FoiTii No. 156.) Non-aijpearance of Flaintif. — If the defendant appears, and the plaintiff does not appear, the defendant is entitled to judgment dismissing the action, with costs, {Eldrldge V. Burr/ens, 7 Ch. D. 411,) but if he have a counter claim he may prove such counter claim so far as the burden of proof lies on him, {Rule 269,) and if the facts jirored are sufficient in point of law to entitle him to judgment (see J. A. s. 44), he may recover judgment therefor. The defendant need not prove ser\'ice of the notice of trial on him. {James v. Croiv, 7 Ch, D. 410.) Verdict, or Judgment, obtained hy defaidt may he set aside. — A verdict, or judgment, obtained where one party has not appeared, may be set aside by the Court, or a Judge, either on motion at the assizes, or sittings, at w^hich the trial takes place, or at Toronto. {Rule 270.) It would seem to be intended that the motion, if made at Toronto, should be made at the ordinary sittings of a Judge in Court for hearing motions, and should be made promptly, and on notice to the opposite party. Withdrawal of Record. — After the action is entered for trial " the Record " cannot be withdrawn by the plaintiff, nor can he then discontinue his action, wholly, or in part, except by leave of the Court, or a Judge ; but such leave may be granted before, at, or after, the trial, upon such terms as may seem fit. {Rule 170 6.) But the Record r--^ I i * i ; \ \ ■ . \ r .V » tt k 1 ( 124 NONSUIT — ADJOUllNMKNT — DUTY OF RK(ilHTRAU. may Le withdiawn by liither party on prodnciiio to tho officer a consent in writing signed l)y tlio partios {Rule 171) ; or, it is ])resumc(l, l»y tlieir .solicitor. The Court, or a Judge, may, on the ajiplioation of a defen- dant, in like manner allow liim to withdraw, or .strike out, the wh<>le, or any ]mrt, of hi.s defence, or counter claim. {RuJr 170 c.) . Nonmiit. — A plaintiff may be nonsuited, i' the same manner a,s under the former jiiactice at law. -merly a judgment of nonsuit was no estoppel to any ..^bsequent action for tho same cause, but now it is equivalent to a judgment for the defendant upon the merits, unle,s,s the Court, or Judge, otherwi.se directs. {Rtde 330.) Adjournment of Trial. — The Judge ha.s power to adjourn the trial as he may think proper. {Rule 272). Formerly the absence of a necessary and material witness, where the part}'^ had used due diligence to secure his attendance, was generally sufficient grovuid for obtaining a po.stpori<;ment, ai\d in .such cases the costs of the adjournment were, in equity, costs in the cause, (Pattison v. McNah, 12 Chy. 483), Ijut the motion had to be made promptly, cr the appli- cant might be ordered to pay the costs of the apj^lication and adjournment. {McDonald v. McMillan, 22 Chy. 362). In all the other cases of adjournment the costs were in the discretion of the Judge. Diify of Reyistrar at the Trial. — The Registrar, or other ofHcer present at the trial, is to enter in a book, and indorse on the copy of the pleadings delivered for the use of the Judge, all findings of facts as the Judge at the trial, may direct to be entered, the directions, if any, of the Judge as i. judgment, and all certificates, if any, granted by the Judge, {Rule 274), e. g„ for immediate execution, &:c., &c. The indorsement so made, or a certificate of the officer making them, or a certificate of the Judge is to be a suffi- cient authority to the proper officer for entering judgments, to enter judgment accordingly. {Rule 275.) rROCEKDINGS AFTKH VKUDIC'T. 125 Pradical JJirectiovfi. — Tlu) verdict of the jury having been rondorod, it ap[)earH to be necessary tliat tlu- direction of the Judge should be obtained either at the tiial, or at some future time, that the judgment should be entered, though the liuleft are not very explicit as to whether this is in all cas-'is necessary. (See Jiale 273.) Where the case is tried by a jury, a certificate for immediate execution is still neces- sary in ordei- to entitle the successful party to enter judgment befuM the time for moving for a new tiial has expired. (See J{. S. 0. c. .50, s. 29!)). In cases tried by a jury, the successful party will now, in all cases, be entitled to full costs, unless otherwdse expressly ordered by the Judge, (See Rule 42H.) The finding of the jury, if any, or of the Judge, ujjon the issues, is to l)e indorsed as we have seen by the oliicer attending the trial, on the copy of the pleadings which is delivered as a record. No i)rovi- sion is made for the delivery of this out to the party in whose favour the verdict, or judgment, is lendered ; but it may be presun»ed that this copy of the pleadings will gen- erally be dealt with as the record was formally, and its delivery will be governed by the same rules. (See li. S. (J. c, 50, sw. 279, 280.) . Formerly, however, a judgment could not be entered at law without the production of the record ; but now either the production of the copy of the pleadings, with the indorse- ments thereon above referred to, or a certificate of the officer present at the trial, or of the Judge who tries the action, of the findings, is to be sufftcicnt authority foi" the entry of judgment. (Rule 27 o, hut see Rule 329.) In actions for debts, or damages, or the recovery of land, or the detention of goods, &;c., the judgment will be entered very much according to the former practice at law, with this exception that the judgment may now be entered before the costs are taxed, and the amount of the costs may be subsequently inserted in the judgment. (Arch. Pr, 13th ed., 463.) In actions, how^ever, brought in respect of claims formerly within the exclusive jurisdiction of the 126 MOTIONS FOR NEW TRIALS, ^iil Court cf Chancer^', the terms of the judgment will, in some cases, be required to be settled by one of the Judgment Clerki^, in the same manner that decrees in Chancery were formeily settled, (see CA?/. 0. 10-13, and RvJe 416,) and the foi'm of judgment in the latter class of cases will be very similar to a decree, under the former Chancery practice. (See Form No. loG.) As to enti-y of judgment, see j)08t chapter xii. 3. Motions for new Trials. (a) Where Action tried hy a Judge (done. Where Action tried by a Judge alone. — Where the case is ti'ied by a Judge without a jury, the verdict, or judg- ment of the Judge can in certain cases be called in question by an appeal to the Court of Appeal, (/. A. s. 37, and see ante p. 3,) or by motion to a Divisional Court, to set aside the judgment and enter another. {Ride 317, see however Oastler v. Henderson, 2 Q. B. D. 575; 37 L. J. 22.) Even where the application is based upon extrinsic facts which do not controvert the correctness of the judgment rendered tipon the law, or evidence, e. g., surprise, or the discovery of fresh evidence by the party moving, the motion must in England be made to the Court of Appeal. {Oastler v. Hendersoa, supra.) (h) Where Action tried hy a Jury. Time for moving. — Where any party desires to move for a new trial in any action which has been tried by a jury, he must move wuthin the first four days of the sittings of the Divisional Court for the hearing of such applications, which may take place next after the trial {Rule 308) ;— Or if the decision of a question raised at the trial is reserved, and is not given until such next sittings of the Divisional Court, the motion must be made within ten days after the decision, if the Divisional Court's sittings continue so long, and if not, then within the first four days of the next sittings. {Rule 309) ; — MOTIONS FOR NEW TRIALS, 127 Or where the trial takes place, during the sittings of the Divisional Court to which the application for the new trial is to be n^d.de, then within six daj'^s after the verdict is rendered, if the sittings of the Divisional Court con- tinue so long, and if not, then within the first four days of the next sittings. (Rule 3096.) The sittings of the Divisional Coui'ts for the purpose of hearing applications for new trials in actions which have been tried by juries, take place at the times at which the sittings in term were formerly held, (Rule 480,) except in the Choncery Division, where such sittings are only to be held v hen the Judges of that Division find it necessary for the due despatch of business in that Division. Where motion to be made. — The motion is to be made to the Divisional Court of the Division of the High Court in which the action is pending. (J. A. s. 25.) A Divisional Court is constituted of two or more Judges, one or more of whom (when practicable) is to be a Judge of the particular Division to which the business brought before such Court is assigned, but any Judge of the High Court is empowered to sit in any Divisional Court. (J. A. ss. 29, 30.) The sittings of the Divisional Courts for all the Divisions are regulated by Rule 480. Hoiu to he made. — The party moving must apply for an order nisi calling upon the opposite pai-ty to shew cause at the expiration of eight days from the date of the order, or so soon thereafter as the case can be heard, why a new trial should not be granted. (Rule 308, and see Rule 310.) Service of order nisi. — A copy of the order nisi is to be served on the opposite party within four days after it is made, (Rule 310.) The order may be served in the same manner as a pleading. (See ante p. 92.) The order nisi is a stay of all proceedings in the action, unless the Court otherwise order, as to the whole, or any part of the action. (Rale 313.) IW 128 MOTIONS FOR NEW TRIALS. Setting doivn for argument. — It is probable that motions of this kind will have to be set clown for argument accord- ing to the former practice at law. Argument of application. — The counsel for the party obtaining the order nisi has the right to begin, and the right of reply. {Rule 314). Judgment on the application. — The Court may grant or refuse the application in its discretion ; but a new trial is not to be granted on the gi'ound of misdirection, or improper admission, or rejection, of evidence unless the Court is satisfied, that some substantial wrong, or miscarriage, has been thereby occasioned ; and if it apj^ear to the Court that such wa-ong, or miscarriage, if any, affects part only of the matter in controversy, the Court may direct a new trial as to that part, and give final judgment as to the other. (Rule 311.) A new trial may be directed, as to part of the matters in question in an action without interfering with the finanig or decision as to any other matter. (Rule 312.) Where the Court is of opinion that upon the findings of the jury the judgment entered or directed to be entered, is wrong, it may direct the proper judgment to be entered without ordering a new trial. (Rule 321 ; Hamilton v. Johnson, 5 Q. B. D. 2G3) : and where the application for a new trial is based on that ground, it may be made to the Court of Appeal [J. A. ss. 28, 37, Davis v. Jones, 36 L. T. Where any action, or issue, is tried by a jury, and a new trial is directed, and the party obtaining the new trial succeeds on the second trial, he is entitled to the costs of the first trial and of the motion for the new trial, unless upon application made at the trial, for good cause shewn, the Judge before whom the action or issue is tiied, or the Court, shall otherwise order. (Rule 428, and see Creen v. Wright, 2 C. P. D. 354, 36 L. T. 365, where the new trial was granted on the ground of misdirection.) MO'iiON TO SET ASIDE JUDGMENT. 129 (c) Motion to set aside Judgment. Motion to set aside Judgment ordered at the Trial^ and to enter another Judgment. — Instead of moving for a new trial, where any party is dissatisfied with the judg- ment directed to be entered at, or after, the trial of any action by a jury, on the ground "that the judgment directed to be entei'ed is wrong by reason of the Judge having caused the finding (a) to be wrongly entered with reference to the finding of the jury upon the question or questions submitted to them," {Rule 316); or where, for any reason (6), he is dissatisfied with the judgment ordered to be entered in any action tried before a Judge without i\ jury, {Rule 317), he may, without leave reserved, move to set. aside the judgment and enter any other judgment. {Rules 316-7). The words quoted from Rule 316 appear somewhat obscure, but their effect, as interpreted by judicial decisions, appears to be, that where any party to an action, which has been tried before a jury, does not dispute the correct- ness of the finding of the jury, but contends that the judg- ment ordered by the Judge to be entered thereon is wrong, he may apply to set aside the judgment, and to enter the judgment which he contends the finding of the jury war- rants. Applications of this kind being in effect appeals from the Judge, may be made to the Court ofAppeal. {J. A. s. 37, Davis v. Jones, 36 L. T. 415,) and also to a Divi- sional Court. {Ride 317.) Whenever the correctness of the jury's finding is called in question, a motion for a new trial should be made to a Divisional Court. {Davies v. Felix, 4 Ex. D. 32.) 4. Motions for Judgment. In what Cases Motion for Judgment may he made. — Where no other mode is provided by the Rules for obtain- (o) Probably the word "Judgment " is here intended. (b) Sed Qiuvre, Rule 317 seems only to apply to caaes where the cor- rectness of the Judge's finding on the facts is not disputed. The former right of appeal from a single Judge to the Full Court, however, does not appear to be expressly taken away. (/. A . a. 12. ) 17 'fs 130 MOTIONS FOR JUDGMENT. ing judgment, the judgment of the Court is to be obtained by motion for judgment. (Rule SI o.) There are, however, certain particular cases in -wliich the Bules expressly pro- vide that judgment may be obtained in this manner, viz. : 071 Admissions in pleadings, or in the examination of any party. — Any party to any action may, at any stage thereof, appl}"^ to the Court for such order as he may, on any admissions of fact in the pleadings, or in the examina- tion of any other party, (see post, chapter xix.,) be entitled to, without waiting for the determination of any other question between the parties. (Rule 322.) Where Evidence is only Documentary. — Any party to an action may in like manner apply, at the close of the plead- ings, where the only evidence to be adduced in the action consists of documents, and such affidavits as are necessary to prove their execution, and identity, ivithuut the necessity of any cross-examination. (lb., and see Chy. 0. 270.) Wliere all the evidence is to he given hy afUdavit. — So also the cause may be heard on motion for judgment, where all parties agree in writing, that all the evidence in the action may be given by affidavit, and neither party desires to cross-examine any of the deponents. (See Ride 30G.) Where Infants interested, and. ev' Jence is only necessary as against them. — Any party to an action may in like manner, move for judgment at the close of the pleadings, where infants are concerned, and evidence is necessary, so far only as they are concerned, for the purpose of proving facts which are not disputed. (Rule 322.) Where issues of fact in an action have been determined, — Where issues of fact have been determined in an action, and. no direction has been made by the Court, or a Judge, for the entry of judgment, the plaintiff may as soon as such issues have been determined, set down the action on motion for judgment, and give notice to the other parties within ten days after the issues have been determined, and if ho do not do so, then any defendant may do so. (Ride 318.) MOTIONS FOR JUDGMENT, 131 By leave of Court. — Where at any time after the writ of summons has been issued, it is made to appear to the Court, or a Judge, that it will he conducive to the ends of justice to permit a notice of motion for judgment to be served; the Court, or a Judge, may so direct, and where such per- mission i^granted, such directions are to be given as to the service of the notice of motion and filing of the affidavits as may be expedient. {Rule 324.) But such an ai)plica- tion will be granted only where some special ground is shown. {Davidson v. McKillop, 4 Chy. 14G.) Where some only of the issues have been tried or determined in an action, if any party considers that the result of such trial or deter- mination, renders it unnecessary to determine the other issues, or that the determination of the latter should be post- poned, he may apply for leave to set down the action on motion for judgment, without waiting for the detern)ination of such other issues; and the Court, or Judge, may grant such leave, upon, or without, terms. (Rule 319.) Any motion pending before the Court, or a Judge, may, by the direction of the Court, or a Judge, be turned into a motion for judgment, or a hearing of the cause or matter. And the Judge may make order as to the time and manner of giving evidence. And with respect to the further prose- cution of the acticn as the case may require. {Rule- 323.) Hoiu made. — The motion is to be made on notice to the opposite parties. {Rule 40G.) (d) The notice is to be served two clear days before the day named for hearing the motion, unless special leave be given by the Court, or a Judge, to give, (Ride 407), or the p.arties consent to take short iiotice. The motion must be made returnable on a day on which the Court sits for hearing motions of that kind. For form of notices of motion for judgment, see Davieh's Forms, 4th ed.. No. 821, Chittijs Forms, 11th ed., IP 'i '( 1 ^a) Under the former Chancery practice a cause might be heard pro . c. 50, s. 302), jukI the judginont was thereupon entercarty. Where the decree was of a simple char- acter the appointment to settle wjis dis]>ensed with. The draft having been settled was then engrossed and signed by the Registrar, or Assistant Registrar, of the Court, and was then entered verbatim in a book kept for the purpose, and after it had been carefully con-pared with the entiy so made, it was delivered out to the solicitor. No record of the decree, except that in the book, ])eing retained by the Court. The Mules provide tl.at every judgment, with- out distinction, is to be entered in a book. {Hide 318). And the form of the judgment is also changed, and is now confined to the adjudication of the Court on the matter in controversy, without setting forth the pleadings in the action, as was formerly required at law. (See Forins 147, 1G7). In these respects the practice which has hitherto prevailed in Chancery appears to be adopted. The cpies- tion remains, however, whether or not the judgrient when entered, is to be delivered back to the solicitor. This, as we liave seen, though accoi'ding to the former (Jhancery practice, would be contrary to that of the Courts of Law. The Judicature Act, s. 12, provides that where no special }>rovision is made, the jurisdiction of the High Con.rt shall be exercised, so far as I'egards procedure and practice, as nearly as may be, in the oame manner as the same might have been exercised by the respective existing Courts, as if the Act had not been passed. It can hardly have been intended, however, that in an action on a pi'omissory note, in the Chancery Division, the judgment is to be entered in one way, and in other Divisions of the High (Jourt, in ENTRY OF JUDGMENT. 141 another way ; nor yet that a judgment in an action for foreclosure, or .specific performance, is to be entered in one way, in the Chancery Division, and in another way, in the other Divi.sions, especially as in about one half of the loftd offices, the same officer 'm to act for all the JJivisions. Nor could it have been i. v., jnded, that judgments in the Chancery Division are to be ent«;red in one way at Toronto, and in another in the local offices of that Division ; but whether the RiUcs on this point are at present sufficient to a.ssimilate the practice in the different Divisions seems doubtful. The provisions of It. S. 0. c. 50, ss. 302, 303 are applied as nearly as may be to Depot j Rcgialrdr.-^ as well as Deputy C/crkH of the Crovjn,. (See Rv/e 419.; These sections provide for the entering of a minute of the judgment in a bof)k or docket, and also for the officer sending to the prin- cipal office of the Court at Toronto, all judgment rolls, and all papers belonging thereto, within three months of the entry of the judgment. These provisions though applied in terms to the local officers, would seem to furni.sh some sort of clue to the pro- cedure intended to be adopted in all offices. It .seems evident that in every case where a judgment is entered in a local office, the judgment from which he makes the entry in his book, nmst he retained by the local officer, for the purpose of Vjeing transmitted to the prin- cipal office in accordance with R. S. 0. c. 50, s. 303. What then is to be the practice where the solicitor also requires a copy of the judgment ? Perhaps a reference to the English practice in the Common Law Divisions, may be useful in a.ssisting us to arrive at a conclusion. In England, on entering judgment in the Common Law Divirii'»ns, two copies of the judgment are produced, one is retained, and entered by the officer, the other copy is authenticated by the officer, and returned to the solicitor. (^Arch Pr. 13th ed. 4G2-3.) Probably this procedure, or 142 CERTAIN DIRECTIONS TO BE IMPLIED IN JUDGMENTS. iJl ! some modification of it, "^vill prevail under our Rules. It is not necessary in every case that a copy of the judg- ment should be in the hands of the solicitor : it is only necessary, as a general rule, in that class of cases where some reference, or account, is directed, or further pro- ceedings have to be taken in the action, other than the issue of an execution. In all simple cases for the pay- ment of money, the recovery of land, fcc, the delivery of one copy of the judgment to the officer would seem all that is necessary, but in other cases where the judgment is in the nature of a decree under the former practice, the solicitor will generally require to have a copy of the judg- ment in his possession, for the pur]>ose of the future pro- ceedings in the action. Probably, therefore, wherever the solicitor desii'es to retain a copy of the judgment in his hands, it will be necessary for him, at the time of entering judgment, to produce two copies of the judgment, one of which can be authenticated by the signature, or initials, and seal of the officer entering the judgment, and returned to the solicitor, and the other will be retained by the officer. Date of Judgment. — Where the judgment is pronounced by the Court, the entry of judgment is to be dated as of the day on which such judgment is pronounced, and is to take effiict from that date. {Rule 32G.) In other cases the judgment is to be dated as of the day on which the requisite documents are left with the proper officer for the entry of judgment, and is to take effi3ct from that date. {Rule 327.) Certain directions to he imj^lied in Judgments though not specifically set forth therein. — Under judgments, or orders, directing all necessary enquiries to be made, accounts taken, costs taxed, and proceedings had for redemj)tion. (See Form No. 170.) The Master is to take the usual accounts, and appoint the usual time for redemption; and on payment, the defendant is to re-convey, and deliver up documents, AMEND>TENT OF JUDGMENTS. 143 and in default of payment, the defendant is to be entitled ex parte on application in Chambers, to a final order of fore- closure, or an order ^lismissing the bill with costs, and subsequent proceedings may be had in the same action, to foreclose any subsequent incumbrancers. (See Rules 332,- 336.) In actions ior foreclosure, or sale, the judgment is to be nearly in the same form as the former decree in Chancery in like cases, (see Forms Nos. 1G8, 1G9), and will have the like effect. (See Chy. 0. 441-454.) "Wherever by any judgment, a sale is directed, the Master may, without any special directions in that behalf, sell the wdiole or a competent part of the property, and may sell by auction, tender, or private contract, or part by one mode or part by another ; and may, at the time of settling the advertisement, if desired, fix a reserved bidding, which must be notified in the conditions of sale ; and the Master is to settle all necessary conveyances in case the parties differ, or in case there shall be any parties, interested in the sale, under any disability except coverture. (Rule 331.) Mistakes in, may he corrected ivithout Appeal. — Clerical errors, or errors from accidental slip, or omission, in any judgment, may be corrected on motion, without appeal, (Rule 338, and see post chap, xx.) An omission of counsel to ask for costs which had been reserved, may be supplied : [Fritz v. Hohson, 14 Ch, D. 542,) and mistakes in orders made by consent, may be rectified. (See Merchants Bank v. Grant, 3 Chy. Ch. R G4 ; and see Eadle v. McEiven, 14 Chy. 404 ; Thompson v. Bocld, 15 C. L. J. 129 ;) where anything but the judgment delivered by the Judge and the judgment drawn up arc necessary to be looked at, the the motion to amend should be made to the Court. {Lapp \. Lapp, ^Q\\y.C\\.'R.2M.) 144 EXECUTION. CHAPTER XIII. ' *' * ' ^ . **. ExECTTTioN — Examination of Judgment Debtor Attachment of Debt.s. 1. Execution. (a) When, and hovj, Issued. * (b) Indorsements on WHts. (c) Duration, and Renewal, of Writs. (d) Execution in 'particular cases. (e) When Leave to Issue Execution necessary. 2. Examination of Judgment Debtors. 3. A ttaehnunt of Debts. (a) Debts, Attachable. (b) Debts not Attachable. (c) Effect of Attaching Order. (d) A Implication to Pay Over. (e) Payment by Garnishee. It is expressly provided that nothing in the Rules 389, to 3G1, is to take away or curtail any right, heretofore exist- ing, to give effect to any judgment, or order, in any manner, or against any person, or property, whatsoever. (Rule 360). Nor do the Rules affect tlie order in which writs of exe- cution may be issued. (Rule 361). The effect of the Rules, therefore, seems to be to keep alive the right to issue any process of execution, which might have been issued before tlie passing of the Act, for the purpose of enforcing any judgment, or order, in the same maimer, and order, in which it might have been formerly issued. Every judgment, and every order. Rule 357), whether obtained by parties to the action, or by any person not a *U;,iij^ Tl EXECUTION — ^VHEX ISSUABLE. 145 party to any action, (Rule 358,) may therefore be enforced by execution as formerly. The forms of the writs have been somewhat changed, and the names by which the writs were foimerly called have not in all cases been retained. In some cases the remedy by execution has been enlarged, as for instance, the right to issue writs of seques- tration is now extended to all the Divisions, and the right is now given to issue execution against a partnership in the name of the firm, instead of against the individuals who composed the firm, as was formerly the practice. In some cases, before execution can be issued, the leave of the Court must be obtained, as will be presently seen. (a) When, and how, Issued. When Execution may Issue. — Generally speaking, as soon as final judgment is entered for the payment of any money, one, or more, writ, or writs, of fieri facias, may issue to enforce payment, unless the judgment postpones the payment to a period which has not elapsed ; in which case, the writs may issue on the expiration of such period. The Court, or Judge, when giving judgment, or at any time afterwards, may stay, or accelerate, the right to issue execution. {Rule 352.) Appropriate writs of execution to enforce other judg- ments, may be issued in like manner, on final judgment being entered, subject also to the power of the Court, or a Judge, in like manner, to stay, or accelerate, the issue thereof. {Rules 3526 344). When the judgment is entered, for default of appearance to a specially endorsed writ, execution cannot be issued, until the expiration of eight days, from the last day for appearance. (Rule 7 o.) The execution must be issued within six years from the date of the recovery of the judgment, otherwise leave must be obtained. {Rules 355-G). 19 I 146 INDORSEMENT OF WRITS OF EXECUTION. ! I Hoiv Issued. — The party requiring an execution is to file with the proper officer a pnecipe, (see Forms Nos. 93-98), to be signed by the solicitor, or party, suing it out. {Ride 347.) Where an order is necessary, the order therefor, must also be produced. The officer will ffil up, sign, and seal the writ and deliver it to the solicitor upon payment of the proper fees. F'l'ecutions may issue from the office wherein the judgment was entered, and after the trans- mission of the judgment and other papers to Toronto, may, at the option of the party, be also issued at the principal office of the Division. {R. S. 0. c. QQ\ s. 7; Rule 419.) Date, and Teste. — The execution is to be dated on the day of its issue {Rule 349), and must be tested in the name of the President of the High Court {Rule 9), and must be sealed with the seal of the Court, or of the officer issuing the same. {J. A. ss. 8 and 51) (a.) (h) Indorsement on Writs. Indorsements. — The name and address of the solicitor suing out the writ, is to to be indorsed, and if he be an agent, the name and addi-ess of his principal are also to be indorsed. If sued out by a suitor in person, it must be so stated in the indorsement, and the city, town, or other place, and also the name of the street and number of the house where he resides, must also be stated in the indorse- ment. {Rule 348.) For form of indorsements, see Form No. 17G. Direction to Levy. — There must also be indorsed, the usual direction heretofore required, directing the Sheriff to levy the money due, stating the amount, and interest (a) Although the signature of the Clerk of the Process is dispensed with to writs of summons, except those issued bj' himself, (see Rules2\, 24, ) there does not appear to be any express provision dispensing with his signing and sealing all writs of execution in actions in the Queen's Bench, and Common Pleas, Divisions, nor is there any express provision dispensing with the Clerk of Records and Writs sealing all executions issued in action* in the Chancery Division, according to the former practice. IHTIIATION AND UEMKVVAL OF WIUTS. 147 thoreon (if soiiglit to be recovered) at six per cent, per annum from the time judgment was entered up ; but if the ])arties have at^reed that a laigcr rate of interest shall be secured by the judgujent, the writ may be indorsed to levy the amount so agreed, {liule 3ol.) The interest on costs, how- ever, only runs fiom the date of the certificate of taxation. (See Form. No. 175, Srlirocder v. Clevgh, 40 L. J. C. P. 3(55.) Poundage and sheriff's feca and expenses may be levied as formerly. {Rnlf^ 350.) Return of Wi'lt. — For procedure to compel return of writ by the sheriff. (See R. S. 0. c. GO, ss, 57-71.) (c) Davation, and Rcnevud, of \Vritn. Duration of Writ. — All writs of execution {R'uk's 344, 353) if unexecuted, are to icmain in force one year only from their issue, unless ien(nved. Rrneinid of Writ. — .Any writ, or any renewed writ, may, before its ex})ii-ation, be renewed, by the party issuing it, for one year from its date, or from the date of the last renewal. Tliere ai'e two wviys now of reviewing a writ : — (a) The party may procure the officer who issued it, or his successor in office, to mark it in the mariiin with a memorandum of its renewal. This menforandum must be under the seal of any local (»lfi('er issuing the same. (/. ^., s. 51.) (/>) Or he ma}' tleliver to the sheiiff a notice in the Form No. 31, signed by the party, or his attorney, having the like memorandum of renewal in the mai'gin, signed by the officer entitled to renew the writ; and, in case the writ is renewed by a local officer, this memorandum must also f)e sealed with his seal of office. (Ra'e 353.) i! r" 14cS KXKCITION IN I'AUTrci'LAU CASKS. it t i iy\ '\ 1 i:i The piTMlnctioii of tho wi'it so marked, or of sncli iiotico is siitiicicnt, /n-iiiid fac'te cvidonee of the roncvval, (Ride ']')4f.) It would, in iLf(Mioral, soeiii !i(lvisal)li', in all cases where practicable, to have the writ itself marked, and not trust to a notice, wliich may l)e lost, or mislaid ; cases how- ever may occur Avheie a writ is in tlie slieriffs hands, and it is im])ossiI)le to got it from him, in time to get it marked, it is then that tl>e new method of renewal will \h) valnahle. No express provision is made foi- filling a /n'd'rlpr for iv- newal. This, liowever, was, un Tiai4 been adjudged to be a partner. 3. Against any person who lias been served Jts a. partner, with the writ of summons, arid failed to appear, — And by leave of the Court, or a Judge, execution may also issue against any other person, who is claimed to be a member of the firm. When a party applies to issue execution, against a person who he claims to be a member of a firm against whom he has recovered judgment, if the liability of such person be disputed, the question of liability may be ordered to be tried. {Rule 346.) {e) When leave to imiw Execution necesw.ry. After the lapse of six years. — Where six years have elapsed from the entry of the judgment, without execution having been issued, it cannot be issued without the leave of the Court, or a Judge. {Rule 850.) Where any of the parties have died. — Leave to issue execution is necessary where any change has taken place by death, or otherwise, in the parties entitled, or liable, to execution. {Ride 35G.) On application for leave to issue execution, trial of issue v. ay he directed. — On application for leave to issue execu- tion in any case in which leave is necessary, the Court, or Judge, may direct any issue or question necessary to deter- mine the rights of the parties, to be tried in any way in which any question in an action may be tried, and may impose any terms. {Rules 346, 356.) 2. Examination of Judgment Debtors. Examination of Debtor. — Under the former practice both at law and in equity, {R. S. 0. c. 50, s. 304 ; lb. c. 66, s. 72), '•S ^!r 111 152 KXAMINATION OF JUDOMKNT DKIJTOIIS. 1 1 ii . after a judgment, decree, or order, liad been recovered, or made, for tlie payment of any money, tlie debtt>r might in certain eases be examined, as to his property and means of paying the debt, and also as to the property and means he had when it was incurred, and the disposition he had made thereof. He might also be examined as to the debts owing to him, with a view to their being attached to answer the judgment. This examination, however, could only bo had by obtaining an order theiefor in Chambers, on notice to the debtor. The Males have made an important change in the practice in this respect, and wherever the judgment is for the recovery by, or payment to, any person, of money, the party entitled to enforce the judgment, may now, with- out an order, examine the judgment debtor upon oath, by simply obtaining an appointment from an officer entitled to take the examination, and serving it, together with a sah- poena i-equiring the debtor to attend at the time and place ap])ointed. (Rules 3GC, 368, 3G9) : and in case the debtor be a corporation aggregate, anj^ of its officers may in like manner be subptenaed, and examined touching the names and residences of the stockholders, the amount and par- ticulars of the stock held by each stockholder, and the amount paid thereon. And also as to the debts owing to the corporation, and as to the estate and effects of the cor- poration ; and as to the disposition made by the corporation of any property, since contracting the debt or liability, in respect of which the judgment is obtained. (Rule 367.) It seems doubtful, however, whether the examination of a debtor may be had in this summary way when the money is merely payable under an order. (See, however. Rule 357.) Nor does it seem clear that a party who is ordered by a judgment, to pay money into Court, can be so exam- ined. In any cases not within the Rules, the order for the examination must be obtained accoi'ding to the former practice. (See R. S. 0. c. 49, ss. 17, 20, and /&., c. 50, ss. 304,6.) EXAMINATION OF .lUDOMKNT DEHTORS. 153 Officers entitled to tuhe Krainlnathm. — The Master of the Supremo Court, the Local Masters, the Special Exam- iners, the Registrars of the Queen's Bench, anrl Common Pleas Divisions, tlie Deputy Clerks of the ( rown, niul the Judges of the County Court of the county where the debtor resides, and the Official Referees (see utite p. 13), are entitled to take these ex«,minations. {Rule 36G.) Where Examination to take '[tlace. — The debtor should be examined before some officer resident in the county where he resides. How Attendance enforced. — The debtor may be served with an a|)pointmcnt signed by the officer before whom the examination is to take place, such service is to be made at least forty-eight hoin-s before the time appointed for the examination, and the debtor is also to be paid the same fees as a witness. (Rale 369.) The service of this appointment, is to have the same effect, as the service of a rule, or order, for examination under the former practice. (See R. S. 0. c. 49, ss. 18, 19 ; lb. c. 50, s. 305 ; Rule 369.) The debtor may also be subpoenaed according to the former practice in Chancery for procuring the attend- ance of parties to be examined for the purposes of dis- covery, and may be required to produce books and papers, in the same way as a witness. {Ride 368.) The sirfer practice would seem to be to issue a sahpfena, and serve it, with a copy of the appointment, on the debtor, forty-eight hours before the timo appointed for the exami- nation, and pay him the same fees as would be payable to an ordinary witness. The words " two preceding rules," in Ride 369, seem intended to refer, not to the two rules immediately preceding, but to Rides 366, 367, but when the liberty of the subject is in question, effect might be given to the technical difficulty created by the wording of Ride 369, as it at present stands. It would also seem desirable, that either in the r^ppoint- ment or sahposna, the nature of the proposed examination should be briefly stated. 20 "^ i? ii ■ I; 3 h li I 154- COXSKQUKNCE OF NON-ATTKNDANX'E OF DKHTOK. ^1 i 1 1 ;:! .I*' . ,»> < ■nil ; •ta Conficqiicnn' of von-itttmdimcc, or inisdtisfactortj an- siro's, cic.—\i tlio delator do not attend, and Jms no sufficient excuse for not attemling; or refuses to disclose liis property or Ids transactions resiiecting the same, or does not nuike satisfactory answers respecting the same; or if it appears by Ids exannnation that he has concealed or made away with his j>roperty, in order to defeat, or defraud, his credi- tors or any of them, an application, on notice to the debtor, {Ponton V. Bollcii, 2 E. »S: A. 379,) may be made to com- mit him to gaol for any time not exceeding twelve months luider a writ of capias ad satisf B, cD Q. R. W. Co., 2 Pr. R. 171.) Debt of an unascei'tained amount. (Daniel v. McCarthy, 7 Ir. C. L. 11. 261.) DEBTS NOT ATTACHABLE. 157 Moneys in the liands of bankers. {In re IT. E. S I. Tvs. Co., ex p. Haivkhs, 5 L. R. Eq. 300 ; S. C. 3 L. R. ( 'liy. 787.) A debt which is attachable < ,,jI,S»ia«BBi^"- 162 EVIDENCE AT THE TRIAL, H or that the affidavit of any particular witness may be read at the hearing, or trial, on such conditions as the Court, or Judge, may think reasonable. Except where it appears to the Court, or Judge, that the other party, in good faith, desires the production, for cross-examination of a witness who can be produced, in which case no order is to be made authorizing the evidence of such witness to be given by affidavit. (Rale 282.) * 7 •m I* ■A tr ■ • (b.) Evidence of a part'undar witness may, by leare, be taken before an Exaininer. Any witness whose attendance ought to be dispensed with may, by order of the Court or a Judge, be examined before an examiner, (Rides 288, 285) and ihe Court, or Judge, may alloAV his deposition to be given in evidence at the hearing of the cause. . (Rule 285.) Cc.) Evidence by Ajffidavif, tuhere admissible, Vithout con- sent or leave, on motion for Judgment. On motion for judgment, where any of the parties are infants, and the facts are not disputed, the allegations in the statement of claim, and the documentary evidence required to be adduced to establish the plaintiff's case, may, Avithout leave or consent, be proved by affidavit, in accor- dance with the former practice in Chancery on motion for decree. So also in cases where the only evidence is docu- mentary, and such evidence as is necessary to prove the execution or identity of the documents, and no cross- examination of the deponents is I'equired, the evidence may be given by affidavit. (See R(de 322.) (d) Evidence may be given by A^davit at the Tri«d, or on Motion for Judgment, by consent. Consent to Affi^davit Evidence. — The parties to the cause may, by consent in writing (New Westminste r Brewery Co. V. Hdnnah, 1 Chy. D. 278,) agree that the evidence in the cause shall be given by affidavit. (Rule 301.) The guardian AFFIDAVITS AT TRIAL. 163 ad litem of an infant, may give such consent, (Knaich- bull V. Fowler, 1 Ch. D. 604.) But unless tlie consent specifics that the evidence is to be given hy affidavit only, a witness who has made an afH(hivit may also give evi- dence, viva voce, bX the trial. (Glassop v. He^lon Local Board, W. N. 1878, 72.) When any party who has agreed to the evidence in the case being taken by affidavit, aftoi'- wards finds he cannot procure his witnesses to make affi- davits, he may apply in Chambers to bo relieved from the undertaking. {Warner v. Mosses, 16 Ch. D. 100.) Whe)i Plaint! f 8 Affidavits to he filed. — The plaintiflf's affidavits are to be filed, and a list thereof delivered ^o the defendant within fourteen days from the giving of tao consent. (Rale 301.) When Defendant's Affidavits to he filed. — The defen- dant's affidavits are to be filed, and a list thereof delivered to the plaintiflf, within fourteen days after the delivery of the plaintiff's list. (Ru/e 302.) When Affidavits in reply to he filed. — The affidavits in reply must be filed, and a l\it thereof delivered to the plaintiff, within seven days after t!ie expiration of the time for filing affidavits in answer. Affidavits in reply are to be confined to mattei-s strictly in rcj)]y. (Hale S<^'^. See, however, Peacock v. Harper, 7 Ch. D. 648, where coix- firmatory affidavits were received in repl}'.) Time for Jil i nil Affidavits,nunj he extended. — The time for filing any affidavits in cliief, in answer, or in reply, may be extended by consent of |)arties, or by order of the Court, or a Judge, (Rules 301-303, 462.) Cross-examinoiion. — When the evidence is taken by affidavit, any party desiring to croes-examine a deponent who has made an affidavit fied by the opposite party, may give notice in writing within fourteen days after the time for filing affidavits in reply, requiring such deponent to be produced at the trial f r cross-examination, and ! 1()4 WITNESSES OUT OF JURISDICTION. unless the deponent is produced accordingly, his affirlavit cannot he used except by leave of the Court. The pirty requiring the witness to he produced is not in the tii'st instance bound to j>ay the expenses of his production; {Riilc 804) l)Ut the party filing the iiHidavit must Huhpmna the deponent as a witness in the ordinay way. (Rale 305.) T ft III of Act 10)1 in lu/iich Eridenrc In (jircn hy Aj[jidai'it. — Where all the evidence in an action is to be given by afiidavit, and no cross-examination of any deponent is required, it would seem that the cause need not be carried to trial in the ordinary w^ay, as in causes where rird voce evidence is to be given, but may be set down to be heard before the Court at Toronto, on motion for judgment. {Rule 30G.) The notice of motion for judgment is to be given at the close of the evidence, {Rule 300.) But where a cross-examination of deponents is required, it seems clear that the evidence cannot be con- sidered closed until the cross-examination has taken place. Notice of motion for judgment, therefore, cannot be given until the time for giving notice of cross-examination has expired, and only then where such notice has not been given. If notice of cross-examination be given, then it would seem necessary in the absence of any leave of the Court, or a Judge, to the contrary, that the action should be brought to trial in the ordinary way, where witnesses arc to be examined viva voce. W. i! (e) Evidence of ivitneases out of the Jurisdiction, hoiv obtained. Comniis.siovs. — Evidence of witnesses out of the juris- diction, may be taken under a commission. An order for the issue of a commission must be obtained on notice to the opposite party. Where evidence is required on a reference before a Master, a commission may he issued on the certificate of the Master. {City. 0. 221), this certifi- cate can only be granted ordinarily upon notice to the opposite party : [McLennan v. Helps, 3 Chy. Ch. R. 103.) EVIDENCE BY COMMISSION. 165 The RoJcH have made some slight ehaiigts in the former procedure, in reference to ol)taining commissions, and have been framed so as to avoid attendances to strike commis- sioners' names ; and have settled definitely liovv tlie evi- dence is to be taken, and tlie time for tiling interrogat!» / Photographic Sciences Corporation 23 WEST MA!N STREET WEBSTSH.N.Y. 14580 (71*.) •72-4503 '9) Vifc> J! rL.i 166 PROCEEDINGS UNDER COMMISSION. in !• t 1 1 ■ i is to be issued, — (b) whether the examination is to be taken upon oral questions, or written intenogatories, — (c) whether notice of the execution of the couuuission is to be given to the opposite party, and if so, — (d) the name and address of the person i >n Iiom such notice is to be S3rved. [Mule 288.) Mule 297 se^ms to contemplate that the order should also appoira a nay j> the return of the conunission, but the f^iiii of or.ier . r in the Mules is silent on this point. For form of order for commission see Form No. 129, and as to the effect of an order in that form see Mule 300. For form of commission see Funn No. 103. C\>m}nijslo)i, how far a Staij of Pruveedimfs. — When a comnjission is issued, the trial of the action is ijtt^o facto stayed until the return of the commission. [Rule 299.) Examination of Wltnei^fieH under a dmimlsHlon. — The examination of witnesses under a commission, is to be taken under oath, or affirmation, or otherwise, according to the witnesses' religion, (^w/^' 294,) and is to be upon writ- ten interrogatories unless otherwise agreed. Oral ques- tions upon the subject matter of, or arising out of answers to, the written interrogatories may be put, or the examina- tion may, by consent, be altogether on oral (questions, but all oral questions must be reduced to writing, and wi^n the answers thereto, returned with the commission. {Rule 289.) The examination may take place ex parte unless the opposite party, upon the application for the order, or Mas- ter's certificate requires notice, and gives the name and address of some person resident within two miles of the place where the commission is to be executed, on whom such notice may be served. (Rule 291.) If such address be illusory or tictitio is, the commission may also be exe- cuted ex parte. Interrogatories when to be delivered. — Interrogatories in chief are to be delivered at least eight days before the issue of the commission (unless otherwise ordered) and the PROCEEDINGS UNDER C03IMISSI0N. 1G7 en 31* 0. a cross-interrogatories (unless otherwise ordered) are to be delivered within four days after the receipt of the interro- gatories in chief, and in default the commission may be sent without the cross-interrogatories. ' The interrogatories and cross-interrogatories should be filed in the office from whence the {Darling v. DaAing, 8 Pr. R. 391.) commission issues. Notice (if exec lit io7i of Commission. — Where notice of execution of the commission is required, notice in writing stating the time and place of the intended examination is to be addressed to the person named in the order, or certificate, for the commission, and service thereof upon him or a grown up person at the address stated in the order, or certificate, is sufficient. If the party served with notice do not attend, or the address given be illusory or fictitious, the commission may V>e executed ex jxtrte. {Ride 292.) Proof of the facts entitling the party to proceed ex ptirte, by affidavit, or otherwise, should be returned with the commission, or there may be a difficulty about using the evidence. Where the opposite party has joined in the commission, or named a commissioner, if either of the commissioners named, refuse to act in the execution of the commission, on receiving forty-eight hours' notice ia writing from the other of them so to do, the commission may be executed by the commissioner giving the notice, alone. {Ride 298.) CoTtimiasioners to he svorn. — Before proceeding with the execution of the commission, the commissioners must be sworn. For form of oath, see Form No. 103. The form of commission contemplates there being at least two com- missioners named, each of whom is empowered to admin- ister the oath to the other of them. Where only one commisioner is named, it would seem necessary to alter the wording of the commission, and direct that the oath be taken before some one or other empowered to administer oaths by R. S. 0. c. 62, s. 38. ■ Mi 168 RETURN, — AND COSTS, OP COMMISSION. Depo»ltiimn /<> ht' Siijned. — The tleposiiioiis nre to be signed by the witness and tlio coininisHioner. {Ruh- 29(5.) Intcrjnrtcr and Clcrhn may he ctii ployed If receHxary. — Tlie conmiissionei's may nominate an interpreter, and clerks, when necessary, who are to be duly sworn. (Rale 295, and see Fonti No. 103.) ^' i ■', ;1 Return of Coiniiumi:m. — The interrogatories, and cross- interrogatories, and depositions, together with any docu- ments referied to therein, or certified copies thereof, are to be returned to the Judge, or officer, on or before the day which may be ordered, enclosed in a cover, under the seal or seals of the commissioners ; and office copies thereof may be given in evidence at the trial, saving all just exceptions, without any proof of the absence of the witness, or witnes.ses, except the affidavit of the .solicitor or agent of the party «.s to his belief of such absence {Rule 297.) GosU of Comiiily.-i'tun. — The costs of a commission have to be borne, in the first instance, by the party issuing the commission, as part of his costs in the cause, except costs occasioned by the opposite party joining in the conniiission, ■i.e., examining witnes.ses in his own behalf thereunder, or by his naming a commissioner, in which cases the opposite party mu.st bear the expense thus occasioned as part of his costs ii^ the cause, but without prejudice to the ques- tion by whon;. such costs are to be ultimately borne. {Rule 298.) ilk! Evidence of Witnesses out of Jurisdiction, iruiy olso he taken under Order. — The evidence of witnes.ses residing out of the jurisdiction may also be taken under a .simple order without any commission, and this will in practice be found convenient where the expense and delay occasioned by the delivery of interrogatories can be safely avoided. (See Rale 285.) •f/^Si ADMISSIONS— PRODUCTION OF DOCIUMENTS. 109 Lf'ffci'n Roifnfory. — Where any witness, iesi attend voluntarily for examination, resort may be bad to. Letters Rogatory, wliich are letters issued out of and under the seal of the Court, addressed to some Court of the foreign country where the witness resides, re(juest- ing such Court to procure the evidence to be taken. (See 31 Vit'. c. 76 D.) For form of notice of motion for Letters Rogatory, (see LeijijitH Forms, 2nd ed., No. 279,) and for form of Letters Rogatory, (see Ih. No. 287). i: I (f) Admlxsions. A^wisslons. — E'cher party may call upon the other party to ae given l»y jufiJavit. (Rale 283.) Croxx-ejciimlnafntii oil Aj^thnits. — Any person having made an affidavit to l>e used, or whicli shall be used, on any motion, petition, or other proceeding, is bound, on being served with a xahpanni ad test, to attend for cross- examination, but the Court may, nevertlieless, act upon the evidence before it at the time, and make such int' cini order, or otlierwise, as may appear necessary to mee,. ^he justice of the case. {Rule 283.) The right to cross-examine, under Rale 283, tjoes not appear to be intended to apply to affi- davits, filed by consent, as evidence at the hearing, or trial, of a cause. The cross-examination of the deponents making sucl; affidavits, is obtained by serving notice to produce them at the trial, as already pointed out, ante p. 1G3. (See Hale 304), and see further, as to evidence upon motions in Court, and in Chambers, jiost chapter xiv. III. Affidavits. Aj^davits, how to he framed. — Affidavits are to be con- fined to such facts as the witness is able, of his own knowledge, to prove, except on interlocutory motions, when statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of, or extracts from, documents, are to be paid by the party filing the same. {Rale 284.) Form of A^^davlts. — Every affidavit is to be drawn up in the first person, and divided into paragraphs, and every paragraph must be numbered consecutively, and, as nearly as may be, is to be confined to a distinct portion of the subject. No costs are to be allowed for any affidavit, or part of an affidavit, substantially departing from this rule. {Rule 464.) Every affidavit is to be written, or printed, {Jh.,) or partly written and partly printed. {Rule 453.) AFFIDAVITS. 171 DeHcnpt'um, and Signature, of Depiment vec^HHary. — Every affidavit is to state the description, and true place of abode, of the deponent, and is to be signed by him. {Rule 405.) AJfidarlfs made fnj fwit or more Depimentx. — In affidavits made by two or more deponents the names of the several pei"sons making the affidavit are to be inserted in the Jurat, except that if the affidavit of all tlie deponents is taken at one time, by the same officer, it shall be sufficient to state that it was sworn by both, or all, of the "above-named" deponents. {Rule 406.) Noiic" sfioii-hiff hyv'lnmi filed. — There is to be nppended to, or indorsed upon, every affidavit a note nhowing on whose belialf it is filed. {RtUe 467.) Imterlineationx, dec, to he authenticated. — Affidavits having, in the jurat, or bo«ly thereof, any interlineation, alteration, or erasure, cannot, without the leave of the Court, or a Judge, be read or made use of in any matter pending in Court, unless the interlineation, or alteration, other than by erasure, is authenticated by the initials of the officer taking the affidavit ; nor in the case of an erasure, unless tlie words, or figure.'^, appearing at the time of taking the affidavit to be writteu on the erasure are rewritten, and signed, or initialed, in the margin of the affidavit, by the officer tiiking it. {Rule 468.) AjfidavifH by Illiterate Fernons. — Where the deponent in an affidavit appears to the officer taking the affidavit to be illiterate, the officer is to certify in the jurat that the affi- davit was read, in his presence, to the deponent ; that the deponent seemed perfectly to understand it, and that the deponent made his, or her signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court, or a Judge, is otherwise satisfied that the affidavit was read over to, and apparently perfectly undeintood by, the deponent. {Rule 469.) I m i .1 11 r k k 172 AFFIDAVITS. ! ^^IJ ^' :- i 1 AfjUxloi'lfs to hfi Stain /K'd when umd. — In cases in which, by the pri'sent practice, an original affidavit is alluweil to V>e used, it shall, before it is used, be stamped with a proper filing stamp, and shall, at the time when it is used, be delivered to, and left with, the proper officer in Court, or in Chambei's. {Rale 470.) , O^fi Copies of A^ddvitM may he used. — An office copy of an affidavit may, in all cases, be used, the original affi- davit having been previously filed in the })roper office, and the copy duly authenticated with the seal of that office. (Ih.) Before whom A^darits to he Sworn. — Every person entitled to administer oaths in the former Courts of Queen's Bench, Common Pleas, and Chancery, is entitled to admin- ister oaths in actions and matters pending in the High Court of Justice. (J. A., a. 73.) COSTS. 173 CHAPTER XV. Costs. 1. Pvincijdes on ivhich C08t8 awarded. '3. Taxation of costs. o. Set -of of costs. 4. Revision, and reviev\ of taxation. (a) Revision of taxation. (h) Revievj of taxation. '». Taxation between solicitor and client. 0. Tarif of costs. (a) Disbursements. (b) Fees payable to solicitors. 1. Prinxiples on which costs awarded. An important change is made in the law of costs, hy the Rales. Formerly in actions at law, the costs of the litigation followed the event, except in certain cases where there was some statutory provision to the contrary. There were many statutes regulating the question of costs at law, in particular actions, but the effect of the Rides is to repeal them all. {Garnett v. Bradley, 3 App. Cas. 944 ; Bowey v. Bell, 3G L. T. 550). In suits in Chancery the costs were usually in the dis- cretion of the Court, but the rule usually followed was, in the absence of any special circumstances, to award the costs to the successful party in the suit ; mortg.agees, trustees, and others, standing in a fiduciary character, were usually awarded their costs in any event, and such costs were generally charged on the mortgaged estate, or trust fund in question in the suit. t 1^> T 174 PRINCIPLES ON WHICH COSTS AWARDED. y ( t I , tf^ 1 *t^^ t t' M *, ■H! r " ;i ; ■' I -: Under the Rules, the costs of, and incidental to, all proceedings in the High Court, are in the discretion of the Court. {Rale 428.) But this discretion over the costs does not extend to depriving a trustee, mortgagee, or other person, of any right to costs out of a particular estate, or fund, t») which he would be entitled, according to the rides liitherto acted upon in Courts of Etpiity. (//>.) Where a cause i- tried by a Jury, the costs of the action are, in all cases, to follow the event, unless upon application made at the trial, for good cause shewn, the Judge before wbo- the action is tried, or the Court, shall otherwise (»rder. (//>.) Thus, where a nonsuit, or a verdict for a defendant is set aside and a new trial ordered, which results in the plain- tifi's favour, the plaintiff is entitled to his costs, of both trials, unless otherwise ordered. {Creni v. WrUjlif, 2 C. P. ]). 3o4, 3G L. T. .'ioo; Fldd v. Qreaf Northern R W. Co., 3 Ex. D. 261.) The application to deprive a successful party of costs in an action tried b}' a Jury, must be made to the Judge at the trial, either before, or innnediatoly after, the rendering of the verdict. (See Collins v. Wf^/sh, ,5 C. P. 13. 33 ; Major v. MrKmzie, 23 U. C. C. P. 2(il ; Falls v. Lrwis, Dra. -)()(); MrK,'<> V. rrn'inc, 1 U. C. Q. B. KiO ; Handrock v.Bcf/ntne, 2 U. C. Q. B. 38G ; Malloch v. Johnston, 4 U. C. Q. B. 352; Hamiltim v. Clarke, 2 Pr. R. 189 ; Bonter v. Frettij, U. C. C. P. 273) ; but where the application is made at the trial, the Judge may take time to consider, and give his decision on the application at a subsequent time. {Wise v. Hcirson, 1 Pr. R. 232.) Where the application is not made to the Judge at the trial, he has no power afterwards to make an order, nor can a Judge in Chambers. {Baler v. Gates, 2 Q. B. D. 171 ; Tyne Alkali Co. v. Lavson, 36 L. T. 100.) But where no application has been made to the Judge at the trial, an application may be subsequently made to a Divisional Court to deprive a successful party of costs of an action tried by a jury, (Myers v. Defrles, and Slddons I l^i PRINCIPLES ON WHICH COSTS AWARDED. 175 V. Lawrence, 4> Ex. D. 176) ; Imt if the Judge at the tnal make an order, no appeal Hch to a Divisional Court from his decision. {Marnden v Lancashire aiul Y. li. W. Co., 44 L. T. 239.) The Judge may, at the trial, without any application, order that the costs shall not follow the event. (Turner v. HeyJamJ, 4 C. P. D. 432; Collma v. Wehh, o C. P. D. 27 ; Marnden v. Lancashire d- V. R. W. Co., 44 L. T. 239.) The discretion of the Court in awarding costs in parti- cular cases, will no douV)t he guided as far as possible by certain fixed principles. The cases which have thus far been decided in England, appear to establish, that where there are some issues in which the plaintiff succeeds, and others in which a defendant succeeds, each party is entitled to the costs of the issues in which he is successful, and the plaintiff, in that event, is entitled to the general costs of the cause. {Mijers v. Dcfrics, 4 Ex. D. 176; Barnes v. Bromley, L. T. 7th May, LS81, 7 ; Sparrow v. Hill, L. T. May Gth, LS81, p. G.) But where a plaintiff's claim is extinguished by a set-off, and counter-claim, and a balance is found in favour of the defendant, the latter is entitled to the costs of the action. {Chaifield v. Sedf/ujick, 4 C. P. D. 459 ; but see Cole v. Firth. 4 Ex. D. 301.) Where the plaintiff fails on his claim, and the defendant on his counter-claim, the defendant is entitled to the general costs of the action, and the plaintiff to the increased costs occasioned by the counter-claim. (Saner v. Bilton, 11 Ch. D. 410 ; Mason v. Brentini, 15 Ch. D. 287.) Where an administration suit was occasioned by the executons, they were ordered to pay the costs of it. [Re Radolyfe, Pearse v. Radclyffe, 44 L. T.' 90.) Under the former practice in Chancery the Court, in the exercise of its discretion, frequently refused costs to a successful litigant, e. y., w^hen a plaintiff made charges of fi'aud, or improper conduct, which were not sustained in I I 17G TAXATION OF COSTS. -r^; i'^'- t 1 ,;«!'■ .1 ' «» . 1 M; ■ n » •I F .'1 1 ■it' 1 r * )i ;;» » : .' ! ^ Hi evidence, he wus not only denied costs, but sonietiniu» ordered to pay the tlefendant's costs, {Keale v. Winter, 9 Chy, 2()1,) or the costs occasioned by the improper charges. {Htxhfivs v. McNeil, ik 305.) Where a succe.s.sful defendant, by his answer, had impro- perly impugned the motives of the plaintiff's solicitor, the costs of the answer were disallowed. {McKevzie v. YieUf- iiuj, 11 Chy. 406.) Where a defendant's answer was untruthful, although the bill was dismi«sed, the defendant was refused his costs. {Finliujnm v. Mallard, 10 Chy. 130.) And even in a mortgage suit, wliere the Court was of opinion that the bill had been unnecessarily and impro- perly filed, the plaintiff was refused his costs. {McLean V. Cims, 3 Chy. Ch. R. 432.) Where the bill was filed unnecessarily, co.sts were some- times refused, {Darling v. Wilnon, 10 Chy. 255), even though no objection was token by the parties, {Springer V. Clarke, 15 Chy. 6G4,) and when a party adopted a more expensive proceeding when his object might as well have been attained by a less expensive one, the extra costs were refused, thus, where a defendant answered when he might have properly demurred, although at the hearing the bill was dismissed, the defendant was only allowed costs, as if he had demurred. {Broune v. Cram, 14 Chy. 677.) So also where a party moved in Court, where he might have moved in Chambers, the costs of the motion though successful were either refused altogether, {Murney v. Courtney, 10 Chy. 52,) or allowed only as of a motion in Chambers. {King v. Connor, 10 Chy. 364.) 2. Taxation of Costs. By whom Costs to he Taxed. — In Toronto costs in all the Divisions of the High Court, and also in the Court of IIL, TAXATION OF COSTS. 177 Appeal, are to be Uixed by one or other of the Taxing Offuera of the Supremo Court. These officerH have each, for the purpose of any proceedings ]>efore them, power to administer oaths, examine witnesses, direct production of books, &c., make separate certificates, or alio aturs, requiro any party to be represented by a separate solicitor, and have generally all other powers exerci' 'm1 by any of the Taxinf' Otticers of any of the Courts Wuose jurisdi''Lion is vested in the High Court, or the Court of Ap, jal. {Hide 4;i8.) In actions in the outer counties, the costs will sometimes be taxable by the Local Master, and sometimes by the officer with whom judgment is entered. In actions referred to any Local Master he will have power to tax the costs according to the former practice in Chancery. But where there is no such reference, and judgment is to be entered in any action in an outer county, the Deputy Clerk of the Crotr >,, Deputy Regis- trar, or Local Registrar, in whose office the action is commenced, will tax the costs in the same manner as costs were formerly taxed in similar cases by the Deputy Clerks of the Crown. {Rules 439, 417.) Attendance on Taxation. — The party liable to pay costs is usually entitled to notice of, and to attend, the taxation of the costs, if he has appeared in the action. But when the costs are payable out of a fund, or an estate, the taxing officer has power to airange, and direct, what parties are to attend before him, on the taxation of costs to be borne by the fund, or estate, and to disallow the costs of any person whose attendance he may think unnecessary, in consequence of the interest of such party in such fund being small, or remote, or sufficiently protected by other parties interested. (RuleUO.) Appluation of former Rules, Orders, and Practice. — The niles, orders, and practice of any Court, whose jurisdiction is vested in the High Court of Justice, or Court of Appeal, 23 ! \ 178 COSTS OF UNNECESSARY PROCEEDINGS. I t I m : :_ relating to costs, and to the allowance of the feew of solicitors, and attorneys, and to the taxation of costs, existing prior to the cominencenient of the Act, are, in so far as they are not ineonsisient with the Act and Rales of Court in pui-suance thereof, to remain in force and be applicable to costs of the same or analagous proceedings, and to the allowance of the fees of solicitojs of the Supreme Court, and the taxation of costs in the High Court of Justice, and Court of Appeal. (Rale 445.) Costs of UniU'crssary Proeeedivnrty entitled to costs, refuses to bring in his bill. — Where any party entitled to costs, refuses or neglects to bring in his costs for taxation, or to procure the same to be ta>^ed, and thereby prejudices any other party the taxing officer may certify the costs of the other parties^ and certify the refusal or neglect ; or may allow the party refusing, or neglecting, a nominal, or other sum, for such coots, so as to prevent any other party being prejudiced by the refusal, or neglect. {Mule 441.) - 3. Set-off of Costs. Set-off of Costs. — In any case in which costs of unneces- sary proceedings are disallowed, and the costs occasioned i; REVISION OF TAXATION. 181 thereby are allowed to the opposite party, and in any other case where a party entitled to receive costs is liable vo pay costs to any other party, the taxing officer may tax the xjosts, such party is so liable to p«iy, and may adjust the same by way of deduction or set-otf ; or may, if he shall think fit, delay the allowance of the costs such party is entitled to receive, until he has paid, or tendered, the costs he is liable to pay ; or such officer may allow or certify the costs to be paid, and the same may be recovered by the party entitled thereto, in the same manner as costs ordered to be paid may be recovered. {Rule 43G, and see Bank of Upper Canada v. Thomas, 10 Chy. 35G,) Any costs ordered to be paid by any party, may also be set-ofF against any sum found due and payable in the action to such party, by the party entitled to receive such costs, and his solicitor's lien cannot prevent such right of set-ofF. {Prinyle v. Gloag, 10 Chy. D. 676 ; Cameron v. CamiMl, 12 U. C. Q. B. 159 ; Bri'(ttioii by 'Tuxing O^cer. — Upon stich application the taxing officer is to reconsider and review Jiis taxation upon such objections, and he may, if he thinL fit, receive further evidence in respect thereof, and, if so required by either party, he is to state either in his certifi- cate of taxation, or allocatur, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto. (Rule 448). Appeal to Judge, — Any part}' who may be dissatisfied with the certificate, or allocatur, of the taxing oflicer, as to any item which may have been objected to as above men- tioned, may appl}'^ to a Judge at Chambers, for an order to review the taxation as to the same item, or part of an item ; and the Judge may thereupon make such order as may seem just ; but the certificate, or allocatur, of the taxiu;; otficer is final and conclusive, as to all matters which iwe. not objected to in manner above mentioned. {Rule 449.) Evidence on AppeU'Hvcry of a hill may ho obtained ]>y the elient o!i prarlpv in the Cliancery Division, but in the other Divisions it ean only be obtained on motion in Chambers. By tvhom Onh'r an Pru'ciix' may he hfoird. — Whej the order is grantable on prd'ctpe, it may be issued by the lii'yidrar (n). Deputy lieyisfrar, Lacal lietjidrav, or Deputy Clerk of ilie Crouii. {Rule 444.) Foi'merly such orders Were only issued in Chancery by the Clerk of Reconls and Writs. Form of Order. — Where a .solicitor's bill, delivered to a client or other person, is referred for taxation, the solicitor is to give credit for all sums of money received from, or on account of, the client, and he is to refund what may, on such taxation, appear to have been overpaid. And the Master is to tax the costs of the reference and certify what shall be found due to, or from, either party, in respect of the bill and demand, and of the costs of the reference, to be paid according to the event of the taxation pursuant to the statute. ^ And the solicitor is not to commence, or prosecute, any action or suit touching the demand, pending the reference. And upon payment by the client, or other person, of what (if anything) may appear to be due to the solicitor, the .solicitor (if required) is to deliver to the client or other person, or as he may direct, all deeds, books, papers, and writings in the solicitor's possession, custody, or power, belonging to the client. (rt) The only Registrars at the time the Act and Riilen were passed, were the Regiatrara of the C'ourts, of Appeal, and Chancery : the Clerks of the Crown and Pleas, by a subsequent order in Council were designated Registrars of Queen's Bench, and Common Pleas, Divisions. Whether they are entitled to issue such orders, seems doubtful. TAlilFF OF COSTf 187 The order for taxation is to be ren«l as if it coutaineu the ahovc particulars, hut is not to set tliein forth, hut may contain any vaiiations therefrom, and any other directions which the (Jouit, or Judge, shall see fit to make. {Rule 443). For fonn of order, see Form No. 13G. •Similar diiections were contained in orders for taxation in Chancery under tlie former practice, but the direction to account, was held only to apply to moneys r(;ceived in respect of the business for which the bill was ren(h'red, and did not re([uire the solicitor to render a general account of all moneys received by him, unless by agreement between the solicitor and client, the moneys coming into tlie hands of tlie solicitor, were to be applicable to payment of the bill of costs. (Jones v. James, 1 Beav. 307; Re Smith, 4f Beav. 3(H), 9 Beav. 182; but see observations on these cases. Cooper v. Evart, 2 Ph. 3G2.) G. Tariff of Costs. ( > -' . \ t I ( 1 ■ - K I: . ■ 1 ; ■'' ! ■' t ■ i ■ i = I 8 i-.J .. As a now tariff' of y of n. lices required to be indorsed, each .*I 00 If over four folios, for every additional folio .... 010 14 Service of each copy of Writ, if not done by the Shei'ifl" or an Officer employed by him, wlien taxable to Solicitor on Sheriff's default 1 00 15 If served at a distance of over two niiles from the nearest jdace of business or ottice of the Solicitor serving same, for each mile beyond such two miles 13 16 (For Service of Writ out of Jurisdiction, such allowance to be made as the Taxing Officer shall think fit.) Instructions after Commencement of Action. 17 To Counsel in special matters 1 00 18 To Counsel in common matters 50 19 For special affidavits when allowed by the Taxing Officer 1 00 20 For Pleadings in action 1 50 21 For Counter-Claim, when such Claim coidd not here- tofore form the subject of a set-off 2 00 22 For Rei)ly to such Counter-Claims 2 00 23 To amend any pleading when the amendment is occasioned by a pleading other than a demurrer of the opposite party 2 00 24 For Confession of Defence under Rule 157 2 00 25 For Special Case in course of .action 2 00 2G For Special Case when no Writ issued, or Pleadings had, and no instructions to sue allowed 3 00 27 To add parties by order of Court, or Judge 2 00 28 For Brief 2 00 29 For every Suggestion 1 00 30 For adding Parties in consequence of marriage, death, assignment, etc 1 00 31 For Issue of Fact, by Consent, or Judge's Order. ... 2 00 32 To defend added Parties after suggestion of death of original })arty, or on revivor 2 00 33 For Confession of action in ejectment as to the wliole, or in part 1 00 34 To Strike or Reduce Special Jury 2 00 35 For such other important step or proceeding in the suit as the Taxing Officer is satisfied warrants such a charge 2 00 f 190 FKKS I'AYAIU-K TO SOLKiTORS. " : ? • • * a. 1 :(i IH Dkawinu Pleaiunoh, A:v. 30 Stiitemont of Claim .f 2 00 37 It' iil)ov(.! U'li t'ulioH, lor every folio iiltovo ten, in luMition 20 38 Statement of Defence, if live folicw or under 2 00 3U If above live; folios, for (ivery lolio in addition 20 40 Statement of Defmice and (!oiinter-( 'laim, n[> to fifteen folios 3 00 41 l''(»r ev«;ry folio over fifteen 20 42 Iteply and other I'leadin^^s for or on licdialf of Plaintiff or Defendant 2 00 43 II above ten folioH, for every folio in addition 20 44 Demurrer '. 2 00 45 Petition, per folio 20 40 Issue for Trial of Facts by Agrc(!Jnent or Order, for everv folio 20 47 S|)(*cial Case, per folio 20 4iS Drawing,' Interrogatories or Answers for any purpose retjuired by law, includin<^ engrossing, per folio 20 49 (The above charges include engrossing, but not copies to file or serve.) 50 Taking Cognovit and entering Judgment thoreoii when tlune has been no previous proceeding and the true debt does not exccied $200 8 00 51 For same services when the true dvht exceeds $200. . 12 00 52 Drawing and engrossing Cognovit and attending Exe- cution when there liave been previous proceedings 2 00 Copies. 53 Of Pleadings, Brief, and other Documents, when no other provision is made, and copies proi)erly allowable 10 54 Certified Co])y of Pleadings or issue, for use of Judge 1 50 55 For every folio above fifteen, per folio 10 50 Of Special and Connnon Orders of Court 75 57 Of Special Order of Court above three folios, j)er folio 20 58 Of Summons, or Order, of a Judge 50 Notices, including Copy. 59 Of Appearance, when duly entered and Notice given on the day of A ppearance, but not otherwise . . 50 GO To Sheriff, to discharge Pris-^iidr out of Custody. ... 50 61 Notice, in Action for Reco\ I "vy of Land, to Defend for part of Premises : no', to be allowed when Defence limited by Appearance 1 00 KKKS PAYAlll.K TO HOLICITOKS. 191 (>-2 G.'l 04 or. 06 07 «1H 0«J 70 71 74 75 70 77 78 79 80 81 82 83 84 85 86 87 88 89 90 lf'nl)ov(! tliico folioH, |M'r folio in it Admit and I'roduce, if not exceeding two folios and one copy For every additional copy, per folio For each neces.sary folio above two Notice of setting down on Motion for Judgment, or on furtlnsr direction and one copy For every additional copy, per folio Notice of Motion in Court or Chambers, engrossing and copy to serve, per folio For every additional copy, per folio Notice of Taxation or Ap[t(jintment to tax, and one copy For every additional copy, per folio For preparing and filling u|) for Service in any Cause or Matter, each Notice to Creditors to prove Claims, and each Notice that Cheques may be received, specifying the amounts to be received for principal and inteie.st, and costs, if any — including mailing Notice of filing Aflidavits, when required, and one copy (only one notice to be allowed for a set of affidavits filed, or which ought to Vje filed, together) For every additional copy, per folio Notice by Defendant to third party, under Rule 108 1 20 50 50 I'O 50 10 50 50 50 10 5U 10 50 50 50 50 10 20 50 10 20 10 50 10 25 50 10 00 I ''if f: t 192 FEES PAYABLE TO SOLICITORS. i t v^iij ] I I I ^1 > i:.!i Perusals. 91 Of Statement of Chim, or Statement of Defence, including Counter Claim, if any, if Statement or Defence special and raise difficult questions for consideration $1 00 92 Of Special Case by the Solicitor of any party, excejit the one by whom it is prepared, when Case is submitted in the Course of the Cause 2 00 93 Of Interrogatories, and Cross Interrogatories, on Commission 1 00 94 Of Affidavits and Exhibits of a party advei-se in interest, filed or produced on any apjdication, where they exceed twenty folios, so far as their perusal is necessary, per folio, over twenty folios 05 95 (Not in any case to exceed the sum of $5.) Attendances. 96 Necessary Attendances consequent on the Service of a Notice to Produce or Admit, including making admission, altogether 1 00 97 (To be increased by Taxing Officer in cases of a special, difficult, and important nature to $2.) 98 For Summons in Chambers, including drawing and obtaining same 1 00 99 Attending on Return of Summons, or Notice of Motion, in Chambers (to be inci'eased in the dis- cretion of the Presiding Officer to $2) 1 00 100 (Such increa.se to be marked at the time the order is made.) 101 On Consultation or Conference with Counsel in special, difficult and important mattters, in the discre- tion of the Taxing Officer in Toronto 2 00 102 (And to be increased in his discretion, as between Solicitor and Client, to such sum as he shall sec fit.) 103 Solicitor attending Coui'* on Trial of Cause when not himself Counsel, or partner of Counsel. ... 2 00 104 And in special, difficult, and important cases, each hour necessorily present at trial (in no case to exceed $10 per day) 2 00 (Provided the attendance of such Solicitor, and the length of time of such attendance, be duly entered at the time in the book of the Regis- trar, Deputy Registrar, Deputy Clerk of the Crown, Clerk of Assize, or other officer of the Court present at the time.) FEES PAYABLE TO SOLICITORS. 193 105 To heai" Judgment, when not given on close of Argument $2 00 106 To hear Judgment, when Cause on list for judgment but judgment not given 2 00 107 On Taxation of Costs, per hour 1 00 108 On Revision, per hour, when attendance requix-ed by Taxing Officer, or Revision had on notice, or order 1 00 109 To obtain or give undertaking to uppear, when ser- vice accepted by a Solicitor 1 00 110 Attendance to tile or serve 50 Hi Attendance on "Warrant or appointment of Master, Registrar, Special Examiner, or Referee, per hour 1 00' 112 To be increased, in the discretion of the Taxing Officer in Toronto, to not exceeding per hour . . 2 00 113 Attendance on Master, or Registrar, in special mattei ,, per hour 1 00 114 Every otlie^ necessary attendance 50^ 11 f> (PiOvided that on special and important points, and matters requiring the attendance of Counsel, before the Master, Examiner, or Referee, Judg- ment Clerk, or Inspector of Titles, the Taxing Officer in "^oronto may, in lieu of the fees for attendance, allow a Counsel fee when Counsel attend the; same, and such attendance is noted at the time.) Briefs. 116 For drawuig Brief, not exceeding five folios 2 00 117 For drawing IJrief, per folio, for original and neces- sary matter 20 118 Copy of Documents other than Pleadings, per folio. . 10 119 Copy of Brief for Second Counsel when fee taxed to him, per folio 10 Court Fees (Term Fees). 120 Fee after Statement, or, when Statement dispensed with, after filing Writ, on Defence, Joinder of Issue, Trial, on Argument before Courts, and on Judgments other than Pnecipe Judgments in Mortgage Cases. No two fees to be allowed either party when such proceedings are taken, or had, between the first day of any Sittings of the Courts fixed by Ride 480 and the first day of the following Sittings so fixed 1 00' 121 Fee on certified Copy of Pleadings for Judge 1 00- 25 194 FEES PAYABLE TO SOLICITORS. 1! I 9 122 On every Order, of Court and Judge's Order, or Order of Master in Chambers $1 00 123 Fee on Prtecipe Judgment in Moi'tgage Cases. ..... 4 00 Affidavits. 124 Drawing Affidavits, per folio 20 125 Engrossing same to have sworn, per folio 10 126 Copies of Affidavits, per folio, when necessary .... 010 127 Common Affidavits of Service, including service by post when necessary, or of ])aynient of mileage and of non-appearance, including copy, oath, and attending to swear 1 00 128 The Solicitor for prei)aring each exhibit in town or country 10 129 Commissioner for each oath 20 130 Commissioner for marking each exhibit 10 Defendants. 131 Appearance, including attending to enter 1 00 132 For limiting Defence in Action for Recovery of Land in Appearance, besides above allowance for Appeai'ance ; not to l)e allowed when notice of Limiting Defence served 1 00 Judgment, Rules, or Orders. 133 Drawing Special Minutes of Judgment or Order, per folio, when prepared by Solicitor, under direc- tions of Registrar, or Judgment Clerk 20 134 Judgment for Non-appearance on Specially Indorsed Writs, and in Action for Recovery of Land .... 1 00 135 Attending for appointment to settle or pass Judg- ment or Order of Court, copy and service .... 80 136 When served on more than one party, the extra copies and services are to be allowed. 137 For every hour's attendance before i)roper officer on Settling Minutes, or passing 1 00 1 38 (To be increa-sed in the discretion of the Officer in special and difficult cases, when the Solicitor attends personally, to a sum not exceeding altogether) 5 00 Letters. ' 139 Letter to each Defendant before suit, only one letter to be allowed to any defendants who are in partnership, and when subject of suit relates to the transactions of their partiiershij) 50 140 Common Letters, including necessary Agency letters 50 FEES PAYABLE TO SOLICITORS. 195 141 With power to the Taxing Officer as between Solicitor and Client to increase the fee for special and important letters to an amount not exceeding . . 2 142 Postages — the amount actually disbursed. 00 Sales, by Master or Auctioxeer. 143 Drawing advertisements for the sale of Real or Personal Estate, under the direction of the Court, including all copies, except for printing 2 00 144 And for each folio over five, ])er folio 20 (To be increased in the discretion of the Master to a sum not exceeding ten dollars, when sj>ecial , , information has been jjrocured feu* the pur- pose of sale.) 145 Copies for printing, per folio 10 146 Attending and making arrangements with auctioneer 1 00 147 Revising proof 1 00 148 Fee on conducting sale when held where Solicitor resides 5 00 149 If Solicitor is engaged more than three hours, for every liour beyond that time 1 00 150 Fee on conducting sale elsewhere, besides all necessary travelling and hotel expenses, when Solicitor attends with the approval of the blaster pi'e- viously given 10 00 151 If the sale occuj«ies more than one day, the Master may allow him, in addition to his travelling expenses, per diein, a sum not exceeding twenty dollars. 152 (The Master may also allow to one other party to the suit his fees and exftenses for attending sales, if, in his opinion, it Is necessary and proper that he should attend.) m n MiaCELLAXEOr.S. 153 Statement of issues in Master's Office when required by the Master 2 00 154 For each folio over ten 20 155 (When it has been satisfactorily proved that pro- ceedings have been taken by Solicitoi's out of Court to expedite proceedings, save costs, or compromise actions, an allowance is to be made therefor in the discretion of the Taxing Officers in Toronto.) 156 Drawing bill of Costs as between party and party for taxation, including engrossing and copy for Taxing Officer, per folio 20 157 Cojjy per folio to serve 10 196 FEES I'AYAJJLE TO SOLICITORS. ■ "Ufc! ! '1 i'3 1 M • N ' i : 3 ■ 1 ■>» ■.1 1 ■ J \ , » » ^ i; . 3 -1 i « • 1 % 1 ' Counsel Fees. 158 Fee on Motion of Course, or on Motion for Order JVisI, or on Motion to make Order absolute in matters not special $2 00 159 On S])ccial ^Motion for Order ^V?.s/, and on special application to the Court, only one Couns(d fee to be taxed 5 00 (To be increased to $10 in the discretion of the Taxing Officer in Toronto, who shall mark amount to be taxed on order of Court, if any, before taxation.) 160 Fee on Argument on supporting or opposing a])plica- tion to the Court, orders iVisi or Argument of Demurrer, Special Case, or Ajjpeal 10 00 IGl To be increased in the discretion of the Taxing Officer in Toronto. 162 Fee with Brief on Assessment 10 00 163 Fee, with Brief, at Trial 10 00 IG-t To be increased by Taxing Officer in his discretion to a sum not exceeding .*20 to Senior Counsel, and $10 to Junior Counsel, in actions of a special and important nature, provided that the Taxing Officer in Toronto shall have power to tax increased fees, but more than one Counsel fee shall not be allowed in any case not of a special and important nature, nor more than two in any case. 1G5 Fee to Counsel when Counsel attend on Argument or Examination in Chambers, where in the opniion of the Master, or Judge in Chambers, the attendance of Counsel is required 2 00 166 But may be increased in the discretion of the Master or Judge in Chambers to a sum not exceeding $10. 167 To attend reference to Master or Referee when Coiuisel necessary 5 00 168 To be increased in special and important matters recpiiring the attendance of Counsel in the discretion of the Taxing Officer in Toronto. 169 Fee on drawing and Settling Allegations in Prajcipe for Bevivor in Sjjecial Cases proper for opinion of Counsel 2 00 170 To be increased in discretion of Taxing Officer in Toronto to an amount not exceeding $5. 171 On settling Pleadings, Interrogatories, special cases, or Petitions, and advising on evidence in con- tested cases, in the discretion of the Taxing Officer in Toronto, not exceeding 5 GO ■|»<,,B«(»if«|K»»cjr:*WT*;-,s#^jjc?,jflf FEES PAYABLE TO SOLICITORS. 197 172 When any fee is subject to be increased, in the discretion of the Taxing Officer in Toronto, either party to the taxation may, din-ing its progress, require that such item shall be I'eferred by the Local Taxing Officer to the Taxing Officer in Toronto, whose decision shall be final as to that item, but this shall not prevent an appeal from or i-evision of such taxation. 173 The Taxing Officei-s in Toronto may apply to a Judge o'' *'ie Court on the taxation of nuy item which is in his discretion, or is referred to him. 174 No application shall be allowed by either Solicitor or Counsel to a Judge or the Court in reference to any item which is in the discretion of the Taxing Officers in Toronto, but this is not to prevent an a])plication for revision of taxation. Criek. 175 Calling every case, with or without a Jury GO 176 Swearing each witness or constable 15 Allowance to Witness. 177 To Witnesses residing within three miles of the Court House, •<>er diem 1 00 178 To Witnesses residing over thi'ee miles from the Court House 1 25 179 Barristers and Solicitors, Physicians and Surgeons, other than parties to the cause, when called upon to give evidence in conse(|uence of any professional service rendered by them, or to give professional opinions, per diem -i 00 180 Engineers, Surveyors, and Architects, other than parties to the cause, when called upon to give evidence of any ])rofessional service rendered by them, or to give evidence depending upon their skill or judgment, per diem 4 00 181 If the Witnesses attend in one cause only, they will be entitled to the full allowance. If they attend in more than one catise, they will be entitled to a pi'oportionate part in each cause only. 182 The Travelling Expenses of Witnesses, over three miles, shall be allowed, according to the suras reasonably and actually paid, but in no case snail exceed twenty cents per mile, one way. •■ » ': k 198 FEES PAYAHLE TO SOLICITORS, 183 Note. — In taxing Costs between Solicitor and Client, the Taxing Officer may allow for ser- vices rendered not provided for by tiiis Tariff, a reasonable compensation, as far as practicable analogous to its provisions. :Hi.. 1t^l^!T'M:i!i::'';iS'*'-%i frr-^'.'T*^;***^^ MOTIONS IN COURT. 199 ^ .-» CHAPTER XVI. Motions in Court, and in Chambers. 1. Motions to the Court. (a) Hmv made. (b) Leave to move. (c) Notice of Motion. (d) Evidence on Motions. (e) Hearing of Motions. (J) Motions in Particular Cases. 2. Motions in Chambers. - (a) Matters excluded from the Jurisdiction of the Master in Chambers. (b) Motions in Chambers, hoiu made. (c) AppUcaiions in Chambers, to County Court Judges, and Local Masters. (d) Matters excluded from the junsdiction of County Court Judges, and Local Masters. {e) Applications in Chambers to County Court Judges and Local Masters, hoiu made. 3. Motions in Chambers, may be Adjourned tefore a Judge. If.. Actions for Administration, oy Partition, ivhich may be commenced by Motion in Chambers. (a) Administration. (&) Partition, or Sale. 5. Appeals from Chambers. 6. Appeals from Local Masters. "'11 1 • 1 fs r H . > 1 > * 1 • , 1 « ; » Ir , ^ i; ) 1 « > ,il -J •i i t i ■ 1 1 i: I ^■Bi 1 ^HH ' I Htm motions in court. Motions to the Court. (a) Hoiv made. ytioiiyiojfe made. — Formerly the practice in the Courts ^ ^^^>y T and the Court of Chancery, differed in the way pposite party was brought before the Court, upon any motion to the (^ourt. At law, the applicant applied in fl'e first place to the Court, for a rule calling upon the party affected by the application, to show cause why the matter of the motion should not be granted by the Court, or Judge ; this rule was called a rule visi, and was served upon the party affected by the motion. On the application for a rule nisi the Court, or Judge, exercised a discretion- ary power in granting or refusing it, and where no prlina facie case appeared to be made out by the applicant, the rule in general was refused. In Chancery, no preliminary application to the Court was necessar}'^, but any party desiring to make any motion to the Court, in any suit, affecting any other party, usually gave a notice of the intended motion to the party affected thereby ; or in cases where a fuller statement of the case was required, or the proceedings were not of recent date, or the title of the applicant depended on any complicated circumstances, a petition was served on the opposite party, indorsed with a notice of the time and place when it would be presentelic Print huj Cn. v. W'l/nnio, II W. 11. ;$!)!>; /'V/; (Urui/invlnu v. I'roror ; 7 I'r. il, (jl.) ( 'roHs-exainiiifition was allowed on athdavits tiled in reply, in the saiin' niiinner as othei' attidavii.i. (He Fvshr, r> Vv. R. i):>.) The former praetictr in ( 'hancery will probably bt- ht-ld to be the rule in all the I^ivisions, and forty-ei^dit horns' notice of the examination will have' to l)(;;,dven to the party tiling, or intending' to use tlie atfidavit as uiuhn* tlie former pi'actiee in ( 'hancery, 1'lie witness is nrjt necessarily entitled to forty-eight hours' notice, but only to a reason- able notice, according to circumstances. (Jir Xorfh Wheal Exmuutii Mill I II (J do., ;U Beav. GiiS). Oral Kvhhnii'ii in support of Mutious. — Under tlie former practice in (.'hancery, witnesses might be subpo-naed and examined i-iva rure before a Special Examinei-, "witlutut any order for the ptir[)ose, in support of any motion intended to be niade to the < 'ourt, or a Judge, or in (Chambers, on the ])arty recjuiring the evidence, giving forty-eight hours' notice of such (.'xamination to the opposite party, (67///. 0. 200); but at law evidence of this kind could only be obtained under in order of the Court, or a a Judge. (See R. S. 0. c. 50, ss 174-180.) By Mule 285, it is provided that " the Court or a Judge may, in any cause, or matter, where it shall appear neces- sary for th'j purpose of justice, make any order for the examination upon oath befcn'e any otficer of the Court, or any other person, or persons, and at any place, of any witness, or person, and may order any depositions .so taken to be tiled in the (Jouit, and may empower any party to any such cause, or matter, to give such deposition in (rt) Tlie rule as to gi%'ing forty-eight hours' notice to the party, was not always strictly applied, when the examination took place abnjad Ijefuro a Special Examiner, (Deliritto v, Hilld, 15 L. R. Ei). 213.) i« !5v^ "isr 206 HEARING QY MOTIONS. 1 I < I ^ '! * ; .^' h! ^;: evidence therein, on such terms, if any, as the Court or Judge may direct." Messrs. Taylor and Ewart in their work on the Jml'uia- that this lliile is such lure lid, appear to be of opinion "express provision" (see ./". A. s. 12), concerning the mode of procuring evidence to be Uood oii motions, as to abro- gate tlie former practice in Chancery under Oty. 0. 2GG, 207. (Tayor Applications for Delivery up of Property, on vjhich Lien claimed. — When a plaintiff, or defendant, by a counter- claim, seeks to recover specific property, other than land, and the party from whom such recovery is sought, does not dispute the title of the person seeking to recover, but claims the right to retain the property by virtue of a lien thereon for the payment of money, the party seeking to recover the property, at any time after his right appears from the pleadings, or if there be no pleadings, then as soon as his right appears to the satisfaction of the Court, by affidavit, or otherwise, may apply for an order for leave to pay the amount of money in respect of which the lien is claimed, into Court, together with such further sum, if any, for interest and costs as the Court, or Judge, may direct, to abide the event of the action, and for the delivering up of the property upon such payment being made. (Rule 402.) 2. Motions in Chambers. Under the new system of procedure, two modes are laid down for making applications in Chambers. All applica- tions in Toronto to a Judge, or to the Muster in Chambers, or to any officer sitting for the Muster in Chambers, or before a Judge in Chambers elsewhere than in Toronto, are to be made, when not ex parte, on notice. On the other hand all Chamber applications to a Judge of a County Court, or to a Local Master, in actions pending in the High Court, are to be made by way of summons. It will thus be seen that the former practice in Chancery, as to motions, is adopted as regards applications in Toronto, or to a Judge, and that the former Common Law practice is adopted in regard to applications before the County Court Judges, and Local Masters. Motions in Chambers in Toronto, to ivhom to be imnle. — Applications in Chambers will, in ordinaiy cases, be pro- perly made to the Master in Chambers; certain applications are, ho\v over,exclnded from his jurisdiction, and in such cases the application must bo made to a Judge in Chambers. 27 210 JURISDICTION OF MASTER IN CHAMIJKRS. '» ; 9 1 1! ^ 1 . . > 1 1 1 1 i ■.. 1 ) .. n 4 ^, » t * i ;; ' k t',.% * 4 1 ' • " . ■ ( > I.' • « r* * ¥ ,4 J' ; .f' («) Matters crcludaf from the Jurisdiction of the Master in Chambers. The Master in Ch<(mhers exorcises, in all the Divisions of the High Court, the like jurisdiction which was formerly exercised by the Clerk of the Crown and Plens, of the Court of Queen's Bench, in Chambers, in actions in the Court of Queen's Bench and Common Pleas : and l)y the Referee in Chambers, of the Court of Chancery, in suits pending in the Court of Chancery, subject to the like limi- tations. The following matters were, by the rules of the Courts of Law and the General Orders of the Court of Chancery, excluded from the jurisdiction of the Clerk of the Crown and Pleas, and Referee in Chambers, I'espec- tively, and are, therefore, excluded from the jurisdiction of the Master in Chambers: 1. Matters relating to the liberty of the subject. 2. Matters relating to prohibitions, and injunctions. 3. All matter relating to criminal proceedings, except by consent. 4. The removal of causes from inferior courts, other than the removal of judgments for the purpose of having execu- tion, except by consent. 5. The referring of causes under the Common Law Pro- cediwe Act, except by consent. 6. Reviewing taxation of costs, except by consent. 7. Staying proceedings after verdict, except by consent. 8. Appeals in insolvency, except by consent. {K S. 0. c. 39, s. 29 ; Eide of Queen's Bench and Com- mon Pleas, Feb., 1870, 29 U. C..Q. B. G23.) 9. Granting writs of habeas cori^us, and adjudicating upon the return thereof. 10. Appeals and applications, in the nature of appeals. JURISDICTION OF MASTER IN CHAMBERS. 211 11. Procooflings as to lunatics, under R. S. ()., c, 40, ss. Gl-65, 73, 74 and 104, and R. S. O., c. 4:), s. 47. 12. Applications for writs of arrest. 13. Petitions for advice under R. S. 0., c. 107, s. 35, 14. Applications as to the custody of infants, under R. S. 0., c. 130, s. 1. 1 .5. Applications as to leases, and sales, of settled estates ; to enable minors, with the approbation of the Court, to make bindin^^ settlements of their real, and personal, estate, on marriaj^e ; and in regard to questions submitted for the opinion of tlie (.'ourt, in the form of special cases, on the part of such persons as may, l)y themselves, their com- mittees, or guardian.s, or otherwise, concur therein, under M. S. 0. c. 40, s. 85. 10. 0[)po.sed applications for administration orders. 17. Opposed applications respecting the guardianship of the person, and property, of infants. 18. Bx parte injunctions. 19. Proceedings as to partition, and sale, of real estate, under R. S. 0. c. 101. (a) 20. Applications for leave to appeal, or rehear, after the time limited for that purpose has elapsed. (Chjj. 0. 500.) 21. Applications for the Payment of Money out of Court. — The Rules have imposed a still further restric- tion on the jurisdiction of the Master in Chamhers, by directing that no money is to be distributed, or paieing opposed, e. g., applications for administration, or respecting the guardianship of infants, (Chy. 0. 5G0 ; Ruin 420a,) the notice of motion may be in the alternative form shown in Form No. 12. Service of. — See ante p. 203. Evldeiice. — What has already been said in the previous part of this chapter as to the evidence which may l)e used in support of, and in answer to, motions in Court, and as to the time of filing affidavits, and as to the examination of witnesses before Examiners, and cross-examining depo- nents who have made affidavits, applies equally to motions in Chambers, and it is not, therefore, necessary to recapitu- late what has been already said on these matters. Filing Affidavits. — Inactions in the Chancery Division, affidavits in support of a motion in Chambers, or in answer, or reply, have to be filed in the office of the Clerk of Records and Writs. In actions in the other Divisions, they are to be filed with the Clerk in Chambers. Orders to bear name of Judge, . (a) But see post p. 216, note (a). II MOTIONS IN CHAMBERS FOR ADMINISTUATION. 215 When tho application is rofiuired to ha marie upon sum- mons, tlie party moving must first prepare the necessary affidavits rerjuired in support of the application, and then apply ex parte to the County Judge, or Local Master, hav- ing jurisdiction, for a summons calling upon the opposite party to attend before such Judge or Mastei-, at a time and place named in the sunnnons, to show cause why the order asked by the applicant should not be granted. The sum- mons is to be prepared by the applicant or his solicitor, and is to be signed by the proper officer, and when so signed is to be deemed to be issued. The person obtaining a sum- mons is to leave a copy of the summons with the officer sign- ing the same. (Ride 425). For form of summons, see Form No. 108. A copy of the summons is required to be served upon the opposite party, and the subsequent proceedings on the motion, are similar to those on applications commenced by notice of motion. 3. Motions in Chambers, may be Adjourned before a Judge. Power of Master in Chambers and others, to refer matters to Jiuhje of the High Court. — The Master in Chambers, or any County Court Judge, or Local Master, may refer any matter to a Judge of the High Court, who may either dis- pose of it, or remit it to the officer by whom it was referred, with such directions as may seem proper. {Ride 4'26). 4. Actions for Administration, or Partition, which may be commenced by Motion in Chambers. Actions for the administration of the real, and personal, estate, of a deceased person ; and actions by tenants in common, for the partition, or sale, of the estate held in common, may be commenced, and prosecuted, in all the Divisions of the High Court, according to the former practice in the Court of Chancery. {Rules 3, 88.) 21(5 McrriONS IN CIIAMIJKIIS FOR AOMINMSTllATION. N •a II ((() Adminiftfvdfum. Apfilicoiion for A in ('liamltcrs at Toronto, {liiile S ; 67///. 0. 4(58, 5(50, s,s. S,) or it may bo male on behalf of any aiUilt perso!!, wlietber opposed or not. ti) the Local i]f(istcr in the county town of the eonnty («)ther than the (\mnty of York) where tlur deceased died. (Chy. 0. (5;;8, Rnl' 3.) liif icliom applicitfion inpl!co,fion for Partiiion, or Sole, to '>i;hf/m to he. mn/h. — Theapjilication for a jud<,'ment of partition, or sale, may be made ^o a Judge in Chambers, at Toronto, (Chy. 0. 040,) this beinfj a matter altofjether excluded from the iunsdiction of the MoMfir in Charabers, (Re Arnoff — C'hofferton v.Chat- teHon, 8 Pr. R. 39, 15 C. L. J. ISO,) or it may be made to the Local MoMer in any county, (other than the County of York,) wherein the land sought to be affected lies. (C'ky. 0. 040.) If the land to be partitioned, or sold, lies in more than one county, the application must be made to the pre- siding Judge in Chambers, at Toronto. (76., and s^-e Clark V. C'larl; 8 Pr. R. 15G.) By ivhorn Application may he ma/le. — The application can only be made by an adult person entitled to partition. When the party in possession claims to be entithjd abso- lutely, an action should be commenced by writ. {Re McMil- lan Patterson v. McMillan, 17 C. L. J. 86 ; Hopkiyis v. Hopkins, before Boyd, C, oth Sept., 1881.) Where more than one application has been made, the actions may be consolidated. {Chy. 0. 641.) Hoiv made. — The application is to be made upon notice of motion (a), returnable not less than fourteen days after {n) See, however, Bttle 425, ante, p. '214. This Rule does not hannonue with Hide 3, which provides that C/iij. 0. 640, is to be in force. 2& 21H Ari'KALS KHOM C'HAMHERS. ! . 1 < ■ - V service, (^*A//. O. (340,) and is to ho served upon oiu^ or more ot'^tlie ptirsons eiititl(Ml to ashiii'e of the estat(! of which partition is souglit, (H).,) niid nnist bo supported l»y alU- davits sliowin^' the applicant's titU\ and the estates, and interests, of all other persons interestm to a Divisional Court, (see ante p. 7,) and also by leave of tlio Judge to the Court of Appeal, (see (Oitc p. 4.) Every appeal to the Court from any decision at Cham- bers, is to be by motion, and to bo made within eight days after the decision ap])ealed against, or if no Court to which sucli appeal can l)e made shall sit within such eight days, then on the first day on which any such Court may be sitting aft(!r the expiration of such eight days. {Rale 414.) jlppcals from the Master in Chambers, Comity Court Judges, and Local Masters. — An appeal lies from any order, or decision, of the Master in Chambers, County Court Judge, or Local Master, to a Judge of the High Court. (Rule 427). Appeals of tliis kind have heretofore been made to a Judge in Chav bers, and it is probable that they will still be so heard. (See Ride 3, Chy. 0. G42.) The appeal is to be brought by notice of motion, to be given within four days after the decision complained of, or within such further time as may be allowed l)y a Judge of the High Court, or by the officer whose decision is com- plained of. {Rule 4127.) The motion must be made within eight days after the decision, or within such further time as may be allowed, as above mentioned. {lb.) T AI'I'KAI.S FIIOM LOCAL MASTKIIS. 219 A consent to tlic ( 'oiitity (,'ourt Jud^'o, or Lucal Ma'^fer, lu-arin^' an application, <1ooh not jncjudic*; tlic li^^iit to appeal IVoni his decision. (liiiJc i'27.) The a[)peal is no stay of pro(!(!edin^fs nnless so orditred hy a Jiid^^fo of tlie High (.'(Mirt, (jr the Judife or ofhcor, whose decision is conij>laincd of. lb. For the purpose of tlie appeal, the Deputy Re(j'isfrar, Dcputij Clerk of ihe Croiev, or Loral liecjhlrar, is, on 2>ra;cij)e, to transmit al' necessary dociitnents hy mail, pre- paid and registered, or by such other mode of transmission as all parti,i iitvi> r .A»«i, n;i fa g ii - .^>rtJt 220 niSCLOSUllE OF PLAINTIFFS RESIDENCE. *M y t if \ 'i i CHAPTER XVII. Proceedings to ohtain Disclosure of Residenci:, &c., OF Plaintiff, — and Names of Partners. 1, I'wcccdincjs to ohtoin Disclosure of Residence, and Ocrnpdtion, of Plaintiff. 2, Proceed imis to obtain Diselosiire of Names of Partners, suing, or sued, in the name of a Firm. 1. Proceedings to obtain Disclosure of Residence, AND Occupation, of Plaintifb\ After a defendant has been served with a writ, ho may, by himself, or his solicitor, and cither before, or after, he has entered an appearance, serve a demand in writing on the solicitor whose name is signed to, or indorsed on, the writ, I'equiring him to declare forthwith, whether such writ has been issued by him, or with his authority, or privity. If he answers in the affirmative, the defendant may make application to the Court, or a Judge, for an order requiring the plaintiff's solicitor to disclose, in writing, within a time to be limited bj'^ such Court, or Judge, the profession, or occupation, and place of abode of the plaintiff, on pain of being guilty of ji, contempt of the Court from which such writ appears to have issued. If, on the other hand, the solicitor shall declare the writ was not issued by him, or with his authority, or privity, the defendant may apply to the Court, or a Judge, to stay the proceedings. (Rule 29.) Where an action is commenced by a solicitor without authority, the plaintiff may, on notice to the defendant, and the solicitor by whom the writ is issued, move that the action be dismissed, and that the solicitor pay the plaintiff's costs as between solicitor and client, and the DISCLOSURE OF NAMES OF FfllM. 221 defendant's as between party and party. (Neivhi(j(jin-by~ thc-Sea Ga8 Co. v. A'rrafitr?«P" IL 222 SECURITY FOR COSTS. m ^ •. SI'S ■l "I'? ! 'il i • "•; CHAPTER XVIII. Security for Costs. 1. When Order for Security may be obtained on Prcecipe. (a) Order on Proicipe, hoiu obtained. 2. Special Application for Security for Costs. 3. Secvbrity, hoiu given. 1. When Order for Security may be obtained on Praecipe. Where it appears by the writ of summons, notice, or other proceeding by which an action is instituted, or by an indorsement thereon, that the plaintiff (see J. A. s. 91,) resides out of the jurisdiction ; the defendant, on application to the proper officer, may obtain on praecipe an order requiring the plaintiff to give security in 8400 for the defendant's costs of the action, staying all further proceed- ings in the meantime, and directing that in default of such security being given, the action be dismissed with costs against such defendant, unless the Court, or a Judge, upon special application for that purpose, shall otherwise order. (Rule 431.) Under the former practice in Chancery an order for security for costs did not stay all proceedings, but only suspended the time for answering, and the plaintiff might, notwithstanding the service of the order, proceed with a motion for an interim injunction; but under the new practice, all proceedings are to be stayed by the order, unless on special application the Court, or Judge, shall think fit to direct otherwise. When the plaintiff is stated to be resident in the juris- diction, l)ut temporarily residing out of the jurisdiction, the order ought not to bo taken on prwcipe, ( Wilson v. ! PRiECIPE ORDER FOR SECURITY FOR COSTS. 223 Wilson, 6 Pr. R. 152, and see A'ch. Pr. 13th ed.. 1140), neither can the order be made, if any one of several plaintiffs, be resident within the jurisdiction. {Arch. Pr. 13th ed., 1139.) A defendant in a suit for alimony, is not entitled to security for costs. {Bennett v. Bennett, 7 Pr. R. 54.) (a) Order on Projcii^e, hovj obtained. The application for the order must be made to the officer, with whom the appearance is to be filed, in the case of actions commenced by writ. Where the proceedinj:^ is commenced by the service of a petition, or notice cf motion, the application may be made to the officer in whose office, the affidavits in support of the petition, or motion, are filed. Practiced Directions. — Produce to the proper officer, the copy of the writ, notice, or other proceeding by which the action is instituted, showing the plaintiff's residence to be out of the jurisdiction, and file with him a iircecipe for the order. He will thereupon draw up and issue the order. Form of Order. — No form of order is given in the Rides, but the order should require the plaintiff within four weeks from the service of the order, to give security in §400 for the defendant's co.sts of the action, stay all further proceedings in the meantime, and direct that in default of the security being given, the action be dismissed against such defendant, with costs, to be paid by the plain- tiff forthwith after taxation, unless the Court, or Judge, upon special application for that purpose, shall otherwise order. {Rule 431.) i 2. Special Application for Security for Costs. Special application for security, ivhen necessary. — In all oMier cases where the defendant is entitled to security for costs, a special application in Chambers is necessary to compel the plaintiff to give security. t^tmmmimiMmm '» !;'' 1 1! ^ .. ^ ;; } • 1 « i '.. 1 1 ••1 1 •» , * 1 » » ii.« 1 » 1 ••\ 1 " 1 '1 :J'r 1' :: i h i ! ,, H ; ,* ., B 224 SPECIAL APPLICATION FOR SECURITY FOR COSTS. When Special Application may he made. — The appli- cation should be made immediately after appearance, (De la Preuve v. Due de Blron, 4 T. R. C97,) if the fact entitling the defendant to security for costs, is then known to him ; and if not, then as soon thereafter as it comes to his knowledge. If the defendant takes a step in the cause, other than the entry of his appearance, after he has knowledge of the facts entitling him to apply for security, he may be held to have waived his right thereto. (Arthur v. Bimun, 3 Chy. Ch. R. 39G ; Robertson v. Mc- J\laster,8 Pr. R, 14) ; but, see contra, Arch. Pr. 13th ed., 1143, where it is stated that the application may be made any time after appearance and before issue joined. But where a defendant had lost his right to security as against the original plaintiff, he was held entitled to security against another person resident out of the jurisdiction to whom the plaintiff assigned his intei'est, {Thompson v. Callaghan, 3Chy. Ch. R. 15). When the plaintiff is, in fact, resident out of the jurisdic- tion, but it does not so appear by the writ, summons, notice, or other proceeding by which the action is instituted, or any indorsement thereon, a special ayjplication is necessary. There are also other facts, besides the residence of the plaintiff out of the jurisdiction, which entitle a defendant to make a special application for security, e. g., — Where the plaintiff is insolvent, and the suit is brought, for the benefit of some other person. {Mason v. Jeffrey, 2 Chy. Ch. R. 15.) Where a plaintiff parts with his interest in the suit, pendente lite, further proceedings, may be stayed until security be given, or the suit revived in the name of the assignee. {Swan v. Adxims, 7 Pr. R. 147.) An official assignee in insolvency, however, cannot be compelled to give security. {Vars v. Goidd, 7 Pr. R. 31.) So also the pendency of another suit in respect of the same matter in Ontario, or in any other country ; or the fact that the costs f:;^ SECURITY FOR COSTS, SPECIAL APPPLICATION FOR. 225 of a former suit in respect of the same matter, ordered to be paid by the plaintiff, remain unpaid, entitle a defendant to apply for security for costs. {R. S. 0. c. 40, ss. 97, 98, lb. c. 50, ss. 70, 72.) But where the costs of the former suit were payable out of an estate, an application for security was refused. (Curtis v. McNahh, 7 Pr. R. 246.) A defend- ant is also entitled to security for costs where successive actions of ejectinent are brought. {R. S. 0. c. -51, s. 73.) So, also, in actions brought to recover penalties, the defendant, not being a corporation aggregate, (see Morton v. Consoli- dated Bank, 4.5 U. C. Q. B. 163,) may apply for security on filing an affidavit of merits, and showing that the plaintiff, or informer, is not posses,sed of property 'sufficient to answer the costs of the defendant. (R. S. 0. c. 50, s. 71.) A defendant who files a counter-claim unconnected with the plaintiff" 's cause of action, may be required to give security for costs, (T. L. J. Fisher, 2 P. D. 115) ; but not if the counter-claim is in respect of the same subject matter as the plaintiff's claim. {Mapleson v. Masini, 5 Q. B. D. 144.) A plaintiff within the jurisdiction, whose residence cannot be found, or who gives a fictitious address, will be ordered to give security, {Taylor's Chy. 0., 291) ; and where security had been ordered to be given by a plaintiff resident out of the jurisdiction, who had wilfully given a fictitious address in the bill, an application to discharge the order, on the plaintiff* coming to reside within the jurisdiction, was refused. (Widdron v. McWalter^ 6 Pr. R. 145.) Where security is ordered on a special application, it is to be for such amount, and given at such time, or times, and in such manner and form, as the Court, or Judge, directs. (Ride 429.) Where a bond is directed to be given, it must be given to the party, or person, requiring the security, and not an officer of the Court, unless the Court, or Judge,^ otherwise directs. (Ride 430.) It is doubtful whether, after a plaintiff has complied with an order for security, a subsequent application can be made, to compel him to give additional security. (See 29 ■■"! . 226 SECURITY FOR COSTS, HOW GIVEN. I ' '■•'■ '•'5a y '■ i 1 '1(9 •■ ^ :;) ' II '* ! '■ » 1 "J ( "') i ;:,• t a.* t 1 "i ■••■. 1 ,'. Simon v. La Banque Nationale, 7 Pr. R, 422; Arch. Pr. 13th ed., 1145.) Formerly, at law, unless the application were preceded by a deniand for security, the summons to show cause was no stay of proceedings. The time for giving the security may be limited by the order therefor, or any subsequent order, and if it be not given within the time limited, the action may be dismissed, with costs. (42 Vic. c. 15, s. 2.) When Order may he Refused, or Discharged. — A plain- tiff resident out of the jurisdiction, on shewing that he has sufficient property within the jurisdiction to answer costs, may be relieved from giving security, {Re Carroll, 2 Chy. Ch. R. 305 ; Ganson v. Fi^ich, 3 Chy. Ch. R. 296) and if the possession of the property by the plaintiff" be known to the solicitor when the order is taken out on prcecipe, the order may be discharged, with costs. (Ih.) But the acquisition of pi'operty subsequent to the making of the order is no ground for discharging it. (Reaume v. Leavitt, 6 Pr. R. 70.) As to the nature of the property which is considered sufil:.ient, (see Re Carroll, supra; Higgins v. Uiggins, 6 Pr. R. 147 ; McKenzie v. Sinton, 6 Pr. R. 282; Wilson v. Wilson, Ih. 152.) Where the plaintiff" has returned permanently, to reside within the jurisdiction, the order may be discharged. (Harvey v. Smith, 1 Chy. Ch. R. 392 ; but see Marsh v. Beard, 1 Chy. Ch. R. 390; Waldron v. McW alter, 6 Pr. R. 145.) 3. Security, how given. Where a bond is to be given as security for costs, it must, unless the Court, or a Judge, otherwise directs, be given to the party, or persons requiring the security, and not to an officer of the Court, {Rule 430), as was formerly the practice in Chancery, and it must be for the amount mentioned in the order. In orders issued on proicipe, the amount is fixed at ^400 : on special applications, the amount of the security to be given, is in the discretion of the Court, or Judge. Only one surety is necessary. {Beaton v. Boomer, 1 C. L. SECURITY FOR COSTS, HOW GIVEN. 227 J. N. S. 108, and see Ghitty's Forms, 11th ed., 220) ; unless the defendant, before the bond is prepared, gives notice that he requires two. (Donnelly v. Jonei^, 4 Chy. Ch. R. 48.) The plaintiff's solicitor cannot be his surety. {Panton v. Jjaber- touche, 1 Ph. 2G5; Beckett y. Wragge, 1 Chy. Ch. R. 5.) No affidavit of execution, or justification, need be filed in actions in the Chancery Division, unless the execution of the bond, or solvency of the surety, is biought in question by the defendant. {lb.) In actions in the Queen's Bench, and Common Pleas, Divisions, affidavits of execution, and of justification, by the surety must be filed with the bond. The bond must cover past, as well as future costs. For form of conditions of bond (see Leggos Forms, 2nd cd. Nos. 396,397; Chitty's Forma, 11th ed. 220; Beaton v. Boomer, supra.) The plaintiff", instead of giving a bond, maj' obtain an order giving him leave to pay S400 into Court, as security. (Ciiffe V. Wikinson, 4 Sim. 122 ; Ganson v. Finch, 3 Chy. Ch. R. 29G.) This order may be granted ex parte, but if so, all material facts must be disclosed on the application, or it may be set aside. (Re Hoiuland, 4 Chy. Ch. R. G). As to payment out of the money so paid in (see Luther v. Ward, 2 Chy. Ch. R. 75.) The bond being duly prepared and executed, must be filed in the office where the appearance is filed, and notice of the filing, served on the party obtaining the order. Where the bond is filed in an action in the Chancery Division, the opposite party is entitled, within two days after being served with the notice of filing, to give notice of motion in Chambers to disallow the bond ; otherwise the bond will stand allowed. {Taylors Chy. 0. p. 293.) In actions in the Queen's Be'hch, and Common Pleas, Divisions, an appointment must be obtained from the officer with whom the bond is filed, for the allowance thereof. A copy of this appointment must be served with the notice of filing : on the return of the appointment the officer will dispose of any questions raised as to the sufficiency of the bond, or the surety, and allow, or disallow, the bond. L. .»: . £ 228 DISCOVERY. CHAPTER XIX. . t-^-" Discovery. Examination of Parties — Production of Documents, 1. Uxami nation of Parties for Discovery. (a) In the Chancery Division. (6) By Plaintiff. (c) By Defendant. (d) The Examination. 2. Examination for Discovery, in the Queen^s Bench, and Common Pleas, Divisions. (e) When it may be had. (/) Hoiv obtained. 3. Costs of Examination for Discovery. 4- Examination may he used in Evidence. 5. Production of Documents. (a) Production under Order, of course. (b) Wlten Order obtai7iable. (c) Affidavit on Production. (d) Documents to be produced. (e) Documents luhich need not be jyroduced, (/) Cross- Examination. (g) Consequence of Non-production. 6. Production under Special Order. 7. Production on Notice. I. Examination of Parties for Discovery. One of the most important and beneficial procedings in Equity practice was that relating to discovery, by means of which the suitor was enabled to ascertain before the trial II EXAMINATION FOR DISCOVERY, — CHANCERY DIV. 229 what facts were within his adversary's knowledge, and what documents in his possession, (subject to certain excep- tions), which related to the matters in controversy. This procedure was recently introduced in a modified form into the practice at law. (See Ji. S. 0. c. 50, ss. 15G, 107, IGO.) Discovery was formerly obtained by the oral examination under oath of the party, (or in the case of a corporation, of its officers,) and by obtaining an order requiring the adverse party to produce under oath all documents in his possession; the deponent making the affidavit in obedience to the order, being in equity, though not at 'aw, lial>lo to be cross- examined thereon. (Camphell v. 3fcA rthur, 7 Pr. R. 46 ; Dohson V. Dohson, lb. 2oG.) The former practice regulating the examination of parties for the purpose of discovery, differed in Chancery and at Law, and this is one of those points in which the practice of the High Court will not be uniform. In actions in the Chancery Division, the former Chancery practice in refer- ence to the examination of parties, will govern ; and in the other Divisions the former practice in the Courts of Law will govern. The practice as to the production of docu- ments is, howevei', the same in all the Divisions. It will be convenient to consider separately the practice as to the examination of parties for discovery, and we will, in the first place, deal with it as far as the Chancery Division is concerned. (a) In the Chancery Division. Under the former practice in Chancery, the plaintiff as soon as the answer, if any, was filed, or as soon as the time for answering had expired, (Chy. 0. 240,) at any time before the hearing, was entitled, without any order, to obtain an appointment from a special examiner, and issue a suhpcena requiring the defendant to attend to be examined. (Chy. 0. 138.) The defendant, on being served therewith, was bound to attend and submit to examina- tion as to the matters in question in the suit, and by this examination the plaintiff often obtained material informa- f^^ 2a0 CllANCEUY DIV., — EXAMINATION BY I'LAINTIFF. tion, which enabled him to amend, or remodel, his bill, so- tvs to make it meet the det'ence sot up in the answer, if any, or so to mould the allegations in his bill, as the exa 'filiation might show to be necessary, in order to make them accord with the real facts of his case, which a plaintiff, until he had obtained discovery from the defen- dant, was often imperfectly informed of. I i l^ i ' ' il m (b) By Plaintiff. When examination can be had, by Phdntiff'. — Under tlie present practice, the plaintiff's right to examine the defen- dant, arises as soon as a statement of defence has been filed, or as soon as the time for filing it has expired. The plaiutifi* is also entitled to examine for discovery, any third party against whom the defendant claims contribu- tion, vfcc, and who, having been served with notice under jRwfc 108, has appeared, and obtained leave to defend the action, as though such third party had been originally made a defendant. {McAllister v. The Bishop of Rochester, 5 C. P. D. 194.) The plaintiff is also entitled to examine in the same way, any person for whose immediate benefit a suit is defended, {Rule 224 ; and see Chy. 0. 139,) and also the officer of any defendant corporation aggregate who might formerly have been made a party to a bill for discovery, (see Chy. 0. 63 ; Rule 227,) and persons who were, but have ceased to be officers of such corporation, may be so examined. {Rule 227.) As to the officers liable to be so examined (see McLean v. Oreat Western R. W. Co., 7 Pr. R. 358; Consolidated Bank v. Neelon, lb., 251.) In the latter case a special order was obtained, which does not seem to have been necessary, Chy. 0. 63 expressly pro- viding that such officers may be examined in the same way as a party, and Chy. 0. 138, providing that a party may be examined without any special order. f .:p i VJ= 11 DISCOVKRY, — IS CHANCERV DIVISION'. (c) Ijij Deft' nil ant. 231 When exa'f amotion may 6c hid, hy iJftfendant. — Under the former practice, the defendant's right to examine the plaintiff, arose as soon as lie had filed his aaswer, and at any time before the hearing. [Chy. 0. \M).) A defendant who had not answered, was not entitled to examine the {)laintiff. Under the present practice the defendant's right to examine the plaintiff in an action in the Chancery Divi- sion, will ari.se as soon as he has filed his statement of defence : where a defendant does not appear, or makes default in delivering a defence, he will not be entitled to examine the plaintiff. A defendant is also entitled to examine a third party, from whum he claims contribu- tion, k.c., who has been served with notice under Ride 108, and who has appeared. The examination may V^e had as soon as the third party has filed a reply, or as soon as the time for filing a reply has expired. {Rule 228, and see McAllister v. The Bishop of Rochester, 5 C. P. D. 194.) A third party who has been added by counter-claim under Rtde IGo, seems also liable to examination by the defen- dant who added him, although there appears to be no specific provision in the Rules to that effect ; but as under the former practice in Chancery in a cross suit, the defen- dant would be entitled to discovery, so it would .seem he is entitled to the like relief where the third party is brought before the Court by counter claim, (see ./. A. s. 16, as. 4, 8, and see McAllister v. Bishop of Rochester, 5 C. P. D. 194.) The defendant may also examine the officers of a plaintiff corporation aggregate {Chy. 0. 64, and Rule 227), or persons who were, but have ceased to be such officers. (lb.) The defendant may also examine any party for whose immediate benefit, an action is prosecuted {Rule 224), or a co-defen- dant whose interest is identical with that of the plaintiff. (Moai-e V. Boyd, 8 Pr R. 413.) n'l niMCOVKUY, IN ' IIANrMIIV IHVIHIoN. "If Mfl i i ! i; t ) i.i 1 ; f^; {if'^ The i\.vn}iihhtfii>ii. Whfvc Krinni)Uffii>)i (<> l>i' hrhi 'I'Im' cxiiniiiuilMtn iniiMt tisni\ll\ III- lii'lil ill llii< cMimlv wliiii- III!' I'liily In I'l' t'MunintMl irHiili'si, m s|H'('inl mkIci Im nrccHH'jni v, if IIm« pMinniiMHi'n I'nf nny rcnHnti is r('i|iiii<'l In In- Iwld cIhc- \\\w\i\i^{y,ill,i,lhry\ ^',f/)W))f'r, LM'liy.( 'li, II. IMO. MrHrnnhl, V. Mrlhvwhi. Ih. .M7l>, rnmpJ^elf v T,irh',;7 I'l ll IMM.) Whcip M (Icfcinlnnl rcsiilcil in Mic I'mviiHM' of <,)ii('Ii(t, a a^ihpnvii imdcv f'. .Sf. (' c. ?!♦ m. I, \v»is (ndcrcd In immiic Tn (hi> |>ni')»nst' of (•(unpclliiiL!; Iii ; (iHciKlMticf loi rviimiiin disdlu'vcd, M niotiin In take Hn' liill /un confcxsto no!\ins| him for snrli drlMiill was icFiihciI. (Ifulli-din V. Fosin; 7 Tr. H, MSM.) Jkfon' >r)ni)}i I\.riri)}) )iiifii)ii iohvlicJil. 'I'lic iiropcr olliccf to trtlvi' till' oxaniinnlion, is onr of llic Siwrlitl h'.vdniiners ; and it nuvy bo takon in Hliort hand. [Hiilr 2I!>.) Tiov (itfnhhxni'r i]f p^u-iy })yoi'vrod, — It is noooHaary ii. obtain an appointniont IVoin ilio h\)'iiviivc); and fo issno a suhponia. Tho ]iartv to l>o oxnniin(>d nnist '.:> « fluff* maVA no ^•xprf'ss pTOvinion, and it is th^r'-for*"- pr<''rxf\(-r pM^ti/0 I H- > frndfr thfr now prnrtic^;^ tho f-l^^fanltinsf party -rill, in tht ; anrl a plaintiff will, in a/klitjon, V)e ^nti- tlrrd t/) rnovf; to havft th^ '-k-fonnf', if any, of a '■Iffanltitic^ fl'-ffn^iant «?trnok out, an*^! to h*' plarod in thft ^amc position as if hf \\f\f] not, ckrf^nrl^;!-! : anfl a rlfff.nHant will h*' .entitled to movf;, whoro a plaintiff maki'-M d^fanlt, that, the a»*tion \}C dismi^s^d for want of p>ro«'^cntion 'SVf /?»///» 2^^., Rfi.jriihl'if; f>f f/ihcyio, V fff,mr''nl hnr>k f. R. Thy. •)*>!) ; /y///A'A V. McUor>,, P, ?r. R. lofi ; fifAr.i/o: v. FohUi\ 7 Pr. R. 388 ; Vn/rd/m v. Va/ffl/m, 1h 736.> f^fij'/yftft Er/rffi.vftfffyrm — A.s to th« C7rcnm«tan'!»»s MTidVyr whir-h a i''^-'-on''l ^'xarnination may y>fi harl. I'S'^e f>ohfnn v. Jjoh^m,, 7 Pr. R. 25^,., 2. ExAMr.vATT''»y of Parties for Dtscovfry ry tttk Quefn's Be.vch. an'd CoNnfoy Pt.ea^, Dtvi^io^^s Tho pra^'-tice in the=e Divisions will wntinne to he govf-rned V.y the ^. S'. 0. c. SO, ^s. 1 56. i?^ f'?'^.. ^av^ a.s varied hy the R>flfi-nt tlu> t'ouit, or Jndj^c, in adjusting the costs of" the action may, at the instance of cither party, direofc ontiniry to he made as to the propiicty nl" makinif such examination, or (he taxin<:^ olliecr may make the en({iiiry Avithont any direction, and if it appears to have heon iinreasonahlc, vexations, or at ininccessary hMijjjth, tho costs occasioned by the examination are to h<> home in whoU\ or in part, hy the party in fanlt. (/^((/fi 220, and eoe Wooihixin v. Jilair, S Vv. ]{. 17!).) Under tlie former practice at law, the costs were in the disiMotion of tlie Jndij(» wlio made the order, (R. S. 0. c. 1)0, s. 107), aiul hence the provisions of the Statnte enahlinj^^ an cxatnina- tion to ho taken without jmi order, (see II. H. O. c. 50, s. 15fl), became practically a dead letter. 4. Examination may rk usrd in Evidkngr. E.vserved, the practice, as far an regarfls this hrancl'i of the sabject, is the sarnc in ail the Divisions of the High Court. Pro<-lijetion and inspection of riocuments may now he obtained in an action in three wavs. J. fJy an order of course, 2. fiy special order, vhich rnay V^c made, for cause, at any stage of the proceedings, 3. By serving a notice to produce documents which are referred t*"* in the pleadings, or affidavits, of any party, which, if not complied with, may, in certain oases, be followed up by an application for a sp'icial order to prr>duce. We will consider these three methods of obtaining pro- duction in the order in which we have mentioned them. I {a) Product iori u/nxler ^J^rd^T of CfAirse. H(y*j) Frddjictic/a obtained. — Production of r some officer entitled to exercise the jurisdictitin of the Mastui' in Cham' bers, whereas the Rule says it may Vte obtained on pnvi.'ip^. Hitherto in Chancery, orders of this kind were issueii on a l^rifcipe theref jr V^eing dieti with the officer with whom the bill was tiled, and it wouM seem probable that this practice is intentled to be folLjwed. notwithstanding the form o( the order, and that therefore the order lUAy now be issued by .■i!ar" \4 !;5 ( 1 :;i 1 "1 I ') ' < t ■;» » •1 * 1 % 1 '' 1 •l ;I ( f !; 1 1 238 PRODUCTION UNDER ORDER OF COURSE. the officer with whom the pleadings are filed. The order should be issued in the form formerly used in Chanceiy in like eases. (See Leggos Forms, 2nd cd., No. 534.) (6) When Order obtainable. By J^laivfif. — The plaintiff' may obtain the order as soon as the time for defendant to put in his defence has expired. (Rule 222.) The order may be made against all defendants who, at the time of the application for the order, have delivered their defence, or who are in default, but it cannot be made as against others who have not put in a defence, and whose time for doing so, has not then expired. By Defendant. — The order may be obtained by the defen- dant as soon as the pleadings are closed. (Ride 222). But it does not seem probable that it was intended to extend the right to issue such an order to defendants who have put in no defence, except, perhaps, in cases where there are damages to be assessed, {Rape v. Lister, 5 L. R. Q. B. 642) ; though, certainly, the Rule seems wide enough to cover all cases, whether there be any defence, or not. Under an order obtained by one defendant, other defendants have no right to compel production, or inspec- tion. (Seymour v. Long worth, 3 Chy. Ch. R. 112). Service of Order. — The order may be served on the solicitor of the party required to produce, or on any party suing, or defending, in person, in the same way as a plead- ing. (Rule 237, and see ante p. 92.) A solicitor served with such an order, and neglecting, without reasonable excuse, to give notice thei'eof to his client, is liable to an attachment. (Rule 238.) "^ (c) Affidavit on Production. A^davit on Production. — The affidavit on production, in obedience to the order, must be made by the party required to produce, or in the case of a corporation aggregate, by some one of its officers, (Rule 225) ; or in the case of a WHAT DOCUMENTS TO BE PRODUCED, 239 ^ ss" \ i. foreign government, by one, or more, of the ministers, or officers, of the government. (Republic ofLiherin v. Imperial Bank, IG L. R, Eq. 179.) A next fricnrl cannot Ijg ordered to make the affidavit ; neither can tlie husband of a married woman. {Broivn v. Capron, 6 Pr. R. 203 ; Da.nl. Pr., 5th ed., 1G82.) But where the person under disability who is ordered to produce, is unable to make affidavit, the affidavit of the next friend may be accepted. (TrdviHs v. Bdl, 1 C. L. J., 3rd S., 270.) For form of affidavit, see Forras Nos. 34, 35. The affidavit must be made, although there are no docu- ments to be pi'oduced. The affidavit must not be sworn, before the date of the order to produce. (Kennedy v. Royal Las. Co., 3 Chy. Ch. R. 489 ; and sec Dunn v. McLean, G Pr. R. 15G ; Dohson v. Dobson, 7 Pr. R. 258.) The party making the affidavit must, if necessary, apply to his present, or former, agents, fur the necessary informa- tion to enable him to make it. (Earl of Olengall v. Fraser, 2 Hare, 99; Mcintosh v. Great Western R. W. Co., 4 DeG. & Sm. 544 ; Anderson v. Bank of British Columbia, 2 Ch. D. G44 ; 35 L. T. 7G.) (d) What Documents to be produced. Documents to be produced. — It will be seen, from the form of the affidavit, that the deponent is required to make a complete disclosure of all documents in his possession, or power, at the time of making his affidavit, and also of those which have been at any previous time in his possession, and, in case any have ceased to be in his possession, he is required to state, when they were last in his possession, and what has become of them. If he objects to produce any of the documents, he must state the facts on which the objection is founded. (Gardner v. Irvine, 4 Ex. D. 49, 40 L. T. 357 ; Webb v. East, 5 Ex. D. 23.) " Every material document must be produced, unless it is sho\TO to be privileged. Where privilege is claimed, it is sufficient to 240 WilAt DOUUMI-NTH I'lUVir-KOKI). d(>si'ril»(> the d in tlio allidavit ; tlius, when docmiK'nts were dcsciilx'd as "nnndnMcd IVoin 50 to 7(5 ifichiHivo, tiod up in a bundle marked witli the lottor A, and iintiahjd by n\e," the description was held sntlieient. {Taylor v. Ihiffen, 4 Q. n. 1). -Sf). IV,) I;. T. 4()S.) 'I'll,. doeninentH are to l«; dt>posit('d in th(> olliee nanie(| in the ordei', f /^•^' 222) ; hut the deposit of books in constant use; may be disp(!nsed with by the I'ourt. or a Judge, on an uiuU'rtaking to allow inspection. {Re Jioi^s, 5 App. II. 82.) • •• ((') Jhcununift^ v'liich iwcd not he 2>roducc'd. Documcnffi ])ririle;fci,fhn)fi,rk d/o/l VrnhxhnU Wa/^/r Co. v. Q'lif'k, 2 'i. H. \). 3lo, 38 L. T. 28 : MrCr^rquodoU v. /Ml, I (I. P. D. VJ\, Fn/'/o/l V. Lm>r//m, Chojkom, o/ul [jwer R. W. Co., 2 Kx. \) 437, 3^; L T. 720) But statements in writincr, made volnntarily, or at the party's request, for his own information, hy his unprofessional a^^ents, either before, or after, litigation, are not priviieged, 'PuiMros v. WhUe, I Q. B. \). 43, 34 L. T. 835; Ar^rUr^fyfl. v. Bank of BntU>, Cohrmf/la, 2 Ch. D. 644, 3o L T. 76., o. Documents having no V^earing on the issue, or relat- ing exclusively to the party's own title, or to the evidence by which his case i.s to V,*; established, (yfaclennan, 238.) 0. Mortgage deeds, until mortgage is paid, Jh., and see Bell V. Cho.rrJjftrldin, 3 Ch. R. 429, but see Bmm^ns v, .V/ />///;-? w/;.^^s, 8 Pr. R. 320.J 7. D(icnrnents, the pro^-luction of which would tend to involve the party in a criminal prosecution, or subject him to a penalty, or forfeiture. But the penalty and forfeiture clau.ses of 13 Eliz. c. 5, and 27 Eliz. c. 4. cannot be used to prevent production of deeds sought to be impeached under those statutes. (Maclennan, 239.) 8. Documents in the joint pos.sessir.n of the party required to pro<^luce, and some third party ni\ 7 L. R. Chy. 686 . uniesa the party required to proiuce sufficiently represents such third person, (see Frus'^i' v. ff'/rne Ins. Co.. 6 Pr. R. 45,) but in such a case the pai'ty required to produce, rau.st give all the infijrrnation in his power. a.s to the contents of the dtxiuments, though he mav be excused from actuallv producing them. {Clinch v. FliMH>citil CitrporjUityn, 2 L. R.Eo. 271.1 31 •Jff"' 24-2 CHOSS-K.XAMINATION ON AFFIDAVIT. n [). DocMinonl'^ which, thotij^'h rclaiin^ io the iimticr.s in qiU'Hiioti, arc not tnnli'iial totho (|ti('Hti<)H to he tri«vl ni tlio honviiif;-. {Mcn'hnvff^ 1Ui)}k v. Tisilalr, ('» I'r. II. 51 ; Hryce V. Mclnftfir, 7 I'r. U. \'M, hiii src Wrsfrni ('(inmhtOil Co. V. W,ss-(\r(ii))'niiifi<»i. Cros/t-cxamivation ())> Af)lil(ir}(. — ITnchn- tho former practice in C'lancory, in Ontario, the deponent was liahle to cross-oxainination on his aflidavit, (('(iniphrll v. McArllm v, 7 I'r. H. 4().) althontrh th(> contrary a])pcar.s to have Ix'on the rule in Enghmd. {Manh;/ v. Unvkke, 8 I), (i U.k (J. 470.) Rule 220 oxprossly ])rovide.s that an oHlcer of a corpo- ration making an aHiEK HPFJlAh ORDER. 243 docnrnonts a/lrnittoyl in bo in the po^sfission of the fleponent, but which are not proi-lueecl, are not snffieiently shown to be privile;/ed, or that he has other doenrnents whieh hf has not aeeountefl for, he shorilrl not move to eommit thft deponent, but should move to compel him to file a Vjetter affidavit, ^flo.^i v. RohcrUon, 2 ('My. Ch, R. CA.) On a motion to cornp)el the filing/ of a better affidavit, on the ground that other drx^uments than those mentioned in the affidavit are in the deponent's possession, it must appear either by the admission of the deponent, or his solicitor, that such other documents are in the deponent's possession, or that upon any admissions or allegations in tne pleadings this may reasonably be inferred to be so, such admis-sions rnay V>e proved V)y a^'lrnissions in the pleadings, or in any other affidavits made \>y the deponent making produc- tion, or by the production of his cross-examination on his affidavit on production, or by the affidavit of a third party, where the latter is not denied. ^Ca/inph^iU v. yf^Arfkrii', 7 Pr. R. ¥>.) When no affidavit at all is fih^d. a motion to commit the defaulting party ma}^ be made. The application must be ma^le on notice, and the notice oi motion, or summons must be served on the defaulting party personally. -See RnUn 304, 30.5, Pafer^xrn v. Bo'xe^, 4 Chy. Ch. R. 44. j 6. Production rrxDER Special Order, Prodaction under Special Oo'dei: — The Court, or a JuliiWll1iiiiiiiiiiiiiiiMi.i'«at It t; 24G COSTS OF ORDJ-^RS, AND NOTICES, TO PRODUCE. for taking such order, giving such notice, or making such inspection. {Hale 230.) Under the foiiner practice in Chancery, costs of procuring, and making, pi*oduction, under an order of cour.se, were, prima facte, costs in the cause, and it is to Le presumed that, although tliere is no express rule to that effect, as there is in the case of the costs of the examination of parties, (see Rule 220,) such costs will be costs in the cause in all the Divisions sulyect to the above-mentioned provision, as to their disallowance when unreasonably incurred. 1 t|< 1. ^ 1 ;ij \ ;!» « !:' • ! • , ' 1 "• 1 ''■; i' : vt hllir: s I M AMEN'UMLIXT OF I'ltOCEKDINOS. 247 CHAPTER XX. Amendment of Writs, Pleadings, and otheu Proceedings. J. Amendruf'nt of Pi-oceedhu/s fjenevally, under Order. (r the tiiiio for making an amendment under an 'uj>}^ss t)tlH'r\viso ortlercd. [Rule 4adiiii;'atany time without order, on tilini;' the written consent of the oppo.site j)!irty, or hi.s .solieitor. {Ixiilc 18.*}.) The consent, unh^ss in {^^eneral terms to amend as the party may i)k^ase, should distinctly specify the amendments to be made. The time allowed for amending on pntclpe may be extended by consent in writing. {Rule 458.) ■? 3. Amendment of Pleadings, without Leave. Statement ofCUilm. — AplaintitI'may amend his statement of claim without leave, before the expiration of tlie time for reply, and before replying; or, if no defence delivered, within four weeks from the appearace of the defendant who shall have kist api)eared. (Rule 17U) : except during the pendency of a demurrer ; [Ride I'JG,) and during the long vacation when no amendment can be made except by consent, or under order. {Rule 4G0.) Defences arising to any set-ofi', or counter-claim, after its delivery, may be in- troduced, by amendment, into the statement of claim, within three weeks after the defence, or last of the defences, shall have been delivered. (Rule 152.) The statement of claim may be amended without order at any time by a written consent. (Rule 1S*.J.) The time fm' making any amend- ment, may be enlarged by written consent. [Rule 458.) But no pleading in respect of which a demurrer has been filed, can be amended, pending the demurrer, without leave, (Rule 190,) except by consent. Set-off, i)v Counter-Claim. — A defendant who lias set up in his defence, any set-ofl", or counter-claim, may, without leave, amend such sct-ofF, or counter-claim, before the time allowed him for pleading to the rei»ly, and before pleadhig AMKNIjMKNT of I'l.KAIilXOS, H''% thereto, or in case there he no reply, within tw'enty-btained on application for that pur|x>8e. (Rule 350^ tee coi^e p. 151 ) PROCEEDINGS ON MARRIAGE OF PARTIES. 255 R )?• 5on ies, ing in, I in H. ito ion ion But in all other cases where, in the progress of an action, it is necessary, in consequence of the death, or marriage of, or assignment, or transfer by, any of the parties to an action, to bring any persons, not already parties, before the Court, it is to be accomplished in a way similar to the former practice in Chancery, Proceedings taken during the abatement of the suit were formerly void, but might, in certain cases, by consent of all parties, be adopted and confirmed by the order of the Court after the cause had been du.y revived. (Houston V. Briscoe, 7 W. R. 394 ; Smith v. Horsfall, 24 Beav. 331 ; Graham v. Davis, 2 Chy. Ch. R. 187.) Under the new procedure, the rules which formerly prevailed in Chancery will, no doubt, regulate the practice to be pursued in obtaining orders to continue proceedings, in the event of the marriage, death, bankruptcy, or trans- mission of interest, of any i)arty to an action, rendering it necessary that any person not already a party to the action, should be made a party thereto. Where the cause of action survives to persons already before the Court, {Eldrldge v. Burgess, 7 Chy. D. 411,) the action is not abated by reason of the marriage, death, or bankruptcy, of any of the parties, and is not defective by the assignment, creation, or devolution of any estate or title pendente lite. {Rule 3iS3.) And in case of an assign- ment, creation, or devolution of any estati', or title, pendente lite, the action may be continued by, or against, the person to, or upon, whom such estate or title has come or devolved. {Rale 384.) No change is made in the law as to the causes of action which do, and do not. survive. ((() Marriage of Female Paiiy. Marriage of Fe nude Party. — If the action is one which could, notwithstanding the marriage of the party marrying, be carried on by, or against, her without joining her hus- band as a defendant, and without naming a next friend, !:« i 25G PROCEEDINGS ON DEATH OF PLAINTIFF. "J no order is necessary. If, however, the cause of action is such that it is necessary that, if a plaintiff, she sliould sue by next friend, or if a defendant, that her husband should be joined, then an oi'der is necessary to be issued, — in the case of a phiintitf, enabling her to continue the action by her next friend against the original defendants and her husband as a defendant, — and in the case of a female defendant marrying, enabling the plaintiff to continue the action, aganist the original defendant and her husband as a co-defendant. Under the former practice in Chancery where a woman married without causing any abatement in the suit, it was sufficient for the parties to note the change of name in the style of the cause by adding after the name of the party so marrying, the words " now A. B.," giving the name ac(|uired by her marriage. This change was made in the style of the cause, without any order. (d) JJeatIt of Farties. Death of Plaint if . — The death of a sole plaintiff i-enders it necessary, where the cause of action survives, that an order should be obtained to continue the action, by the persons on whom the estate, or interest, of the deceased plaintiff, in the subject matter of the litigation, has devolved. On the death of one of several plaintiffs, if his interest passes to his co-plaintiffs, or to a defendant, no order is necessary, unless the interest of the deceased plaintiff becomes so vested in a surviving plaintiff, or defendant, in a different capacity to that in which the action was commenced by, or against, him. Neither is any order necessary, where the deceased plaintiff is one of several representing a class. {Hind v. Morton, 2 H. &; M. -368.) Under the former practice in Chancery, where one of several })laintitfs died ^leudente lite, without causing an abatement in the suit, it was customary to retain the name of the deceased plaintiff in the style of the cause, but to write after it, in all subsecj^uent proceedings, the words FROCEEDIN'OS ON DEATH OF DEFENDANT. 257 Oil Id id in on ler as "since deceased." This was done without order. This- will now probably be the practice in all the Divisions of the High Court. Death of Defendant. — The death of a sole defendant renders it necessary, wherever his liability in respect of the cause of action survives, or his interest in the subject matter of the litigation, passes to his real, or personal,, representatives, tliat the person liable to be charged, or in whom the estate, or interest, of the deceased defendant ban become vested, .should be added as a defendant. When one of several defendants dies, it is not necessary to issue any order if his interest passes to his surviving co-defendants, or any of them, unless the right becomes so vested in any such surviving defendant, in another right to that in which he is made defendant, e. g., if the right becomes vested in a defendant as executor of a deceased defendant, an order would be necessary to continue the suit against such surviving defendant in his capacity of executor, as well as in respect of his individual liability, or interest. Under the former practice in Chancery, whei'e a defendant died, without causing an abatement of the suit ; his name was retained in the style of the cause, but the words " since deceased," were added thereafter, in all su.bsequent proceed- ings. This Avas done without any order. This will pro- bably be nov7 the practice in all tlie Divisions of the Hififh Court. (c) Banhriiptcy of Parties. Bonl-ruptcy. — Owing to the repeal of the Canadian Insolvent Act, it is unnecessary to dwell at any length on the effect of bankruptcy on a pending action, which in general depends to some extent on the particular wording of the Act regulating proceedings in Insolvency. ((!.) Assignment pendente lite. Assignment of Interest. — Wherever the legal estate or interest in the subject matter of the litgation was trans- ieiTcd pendente lite by either plaintiff or defendant, it wa* 33 258 PROCEEDINGS ON ASSIGNMENT PENDENTE LITE. U g«tnerally necessary according to the former practice in Oliancery that the transferee should be added as a party. And wherever a plaintiff assigned his interest to any third person not a party to the suit, it was generally necessary that the assignee should be made a plaintiff, either alone, or jointly with the original plaintiff. Where however the title or interest transferred by a defendant 'pendente life, was merely an equitable estate, or interest ; it was generally unnecessary to bring the transferee before the Court, but he was bound by the proceedings as though he were a party thereto. In such a case, if the transferee desired to be made a party he himself must have applied on petition to be let in, and it is presumed that this will b(i now the rule in all the Divisions of the High Court. Thus where a biinvas filed by a first mortgagee for foreclosure, and before service of the bill the mortgagor made a second mortgage, and the second mortgagee was not made a party to the suit, it was held, nevertheless, that he was con- cluded by the foreclosure, and a subsecpient suit by him to redeem was dismissed. {Rohsoti v. Argue, 25 Chy. 407.) No order to .ontinue the pruceedings is necessary where the estate, or interest, or liability, of one party, is assigned to, devolves upon, or passes to, any other party to the action pendente lite in tlie same chai'acter in which he is ali'eady a party. (Rule 388.) But if the estate, or interest, is accjuired, or the liability devolves upon such other party in another capacity to that in which he sues, or is sued, e.g., if he sues., or is sued, in . his individual capacity, and the estate, or liability, devolves uyjon him as executor, admin- istrator, or trustee, an order to continue the proceedings against him both individually, and as executor, &c., would seem to a necessary. An order to continue the proceedings must be obtained wherever any additional parties are required to be added in consequence of any assignment pendente lite. (Matthews V. Meavs, 21 Chy. 99.) ORDER TO CONTINUE PROCEEDINGS. 2r>9 . 2. Who may ohtain Ordeu to continue PiiocEEniNGS. By luhoin Order may he ohta'nicd. — An ohUt (' .-^ ^ /^ <^ ^ '/ Photographic Sciences Corporation 33 WIST MAIN STRieT WnSTH.N.Y. 14SS0 (716) •72-4503 \ X K ^ 260 ORDER, HOW OBTAINED. >(fl When the abatement took place after a decree had been pronounced, but before it was drawn up, it was held, under the former practice in Chancery, that the decree must be drawn up before an application to revive could be made. {Beaminh v. Pomtroy, 1 Ohy. Ch. R. 32; followed by Blake^ V.C., Rellly v. lio8f<, 2nd March, 1880.) Formerly a suit could not be revived merely for the purpose of recovering costs ; now, however, an action may be revived for that purpose, as to all costs ordered to be paid by any order made subsequent to 2nd March, 1877^ (See R. S. ()., c. 40, s. 102.) It was also held that, an alimony, suit might be revived by the personal representatives of the deceased plaintiff, to recover arrears of alimony which had accrued due to the plaintiff in her lifetime ; at all events, to the extent of the debts remaining due by the deceased wife's estate, {Wilier v. M'tlli'v, before Blah', V.C., loth May, 1878.) I'i :!'i 1': II' (d) Order, how obtained. Order to continue Proceedings, how obtained. — Where by reason of marriage, death, or bankruptcy, or any other event, occurring after the commencement of an action, and causing a change, or transmission, of interest, or liability, or by reason of any person interested, coming into existence after the connnencement of the action, it becomes necessary or desirable, that any person, not already a party to the action, should be made a party thereto or that any person already a party thereto, should be made a party thereto, in another capacity, — an order, that the proceedings in the action, shall be carried on between the continuing parties- to the action, and such new party, may be obtained on ^yrctcijJCy upon an allegation of such change, or trans- mission, of interest, or liability, or of such person inter- ested having come into existence. {Rule 385.) The order is granted ex parte, the praecipe must be filed in the office where the pleadings are to be filed, and the SERVICE OF ORDER TO CONTINUE PROCEEDINGS. 2G1 -Officer with whom the prut the motion must also be made returnable within that time. (Harris V. Meyers, 16 Chy. 117; Jackson v. Gardiner, 2 C'\". Ch. R. 385 ; Mclroy v. Haivke, 3 Chy. Ch. R. 66.) The Court, or Judge, however, has time to ^xtend the time for moving. {Rule 462 ; and see Smith v. Gunn, 2 Chy. Ch. R. 230.) And when the motion cannot be made returnable within the twelve days, leave to move, should be obtained, before the notice of motion is served. In actions in the Chancery Division it is necessary that the motion should be set down to be hoard on a Wednesday. (Chy. 0. 418, 593.) In the other Divisions the motion may be set down to be heard on any Tuesday, or Friday, except during vacation. Two clear days' notice of the motion seems to be sutKcient. (Rule 407). 264 PAYMENT IN, AND OUT OF, COURT. CHAPTER XXII. Payment of Money into, or out of, Court. All money formerly pair' into the Courts of Chancery, Queen's Bench, and Comi n Pleas, and all securities vested in the officer acting as Accountant of the Court of Chancery, are now vested in the Accountant of the Supreme Court. (J. A. s. G8, Rule H. C. J. X., see App. C.) All moneys required to be paid into Court in any action in any of the Divisions of the Supreme Court, are to be paid in with the privity of the Accountant of the Supreme Court. Payment in, how nnule. — Money may be paid into Court by depositing the same in the Canadian Bank of Com- merce at Toronto, or at any of its branches or agencies in the Province of Ontario. A direction to receive the money must first be obtained from the Accountant. Where the money is to be paid in, elsewhere than in Toronto, the direc- tion will be forwarded by post on the application by letter of tlie party requii-ing the same, accompanied by a pneclpe therefor, and a law stamp for the fee payable on the direc- tion, and the postage for transmitting the same. The pnvxipe is to be in the form given in Schedule O. to the Oeneral Orders in Chancery, (any the Presidents of the Divisions, without any consent of, or notice to, the parties. Consolidation of Actions. — Actions in any Division, or Divisions, may be consolidated by order of the Court, or a Judge, in the manner actions were formerly consolidated in the Superior Courts of Law. {Rule 395.) Thus, if a plaintiff vexatiously bring two actions against the same defendant, for matters which might be included in one action, the actions may be consolidated, and the plaintiff may be ordered to pay the extra costs ; and where actions are brought by the same plaintiff against different defendants, but the question in dispute in all, is substantially the same, upon the defendant's application all the actions but one will be stayed, on the terms of all the defendants being bound by the result of the action which proceeds. But the judgment in the test action only binds when it is tried upon the merits. (Amos v. Chad- wick, 9 Ch. D. 459.) Where different plaintifis bring several actions against the same defendant, and the ques- tion in dispute is substantially the same in all the actions, they may be consolidated, and ordered to proceed as one action. (See Ride 89 ; see further, as to Consolidation of Actions, Maclennun, 318-9.) Wi 2G8 COMPUTATION OF TIME. I i^ ! r I I' . • 1 ' CHAPTER XXIV. Miscellaneous. J. Compntafion of Time. * J. Pending Business. fj. Procedure in County Coarts. 1. Computation of Time. • Months mean Calendar Months. — Where by the Rules, or by any judgment or order given or made after the coinmoncement of the Act, time for doing any act or taking any proceedings is limited by months, not expressed to be kmar months, such time is to be computed by calendar months. (Rule 454.) Period of less than six days. — Where any limited time, less than six days from, or after, any date or event is appointed, or allowed, for doing any act, or taking any pro- ceeding, holidays, as defined b}' the Interpretation Act, i. e., Sunday, New Year's Day, Good Friday, Easter Monday, Christmas Day, the day set apart for the celebration of the bii-thday of the Sovereign, and any day appointed by the Governor-General, or Lieutenant-Governor as a Public Holi- day, or Fast, or Thanksgiving Day. (R. 8. 0. c. 108, sub-s. 10), are not to be reckoned in the computation of such limited time. (Rule 455.) Days, how computed. — In all cases in which any particu- lar number of days not expressed to be clear days, is prescribed by the Act, or the Rules, or practice of the Court, the same is to be reckoned exclusively of the first day, and inclusively of the last day. {Rule 456.) Where last day is Sunday. — Where the time for doing any act or taking any proceeding expires on a Sunday, or PENDING HISINESS. 2G9 other clay on "'liich the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding is, so far as regards the time of doing, or taking, the same, to l)e held to be duly done, or taken, if done or taken on the day on which the offices shall next be open. (Hale 4.")7.) Service. — Service of pleadings, notices, summonses, orders, rules, and other proceedings is to be effected before the hour of Si^^«^ the afternoon, except on Saturdays, when it is to be effected before thtt hour of two in the afternoon. Service effected after Iswi/in the afternoon on any week day, except Saturday, is to be deemed to have been effected on the following day. Service effected after iaii^in the afternoon on Saturday, is to be deemed to have been effected on the following Monday. {Rule 4.>9.) Eidnnjement or Ahriderfected before tiie coninienccnient of the Act. (./. A. s. I'l.) And every judgment, decree, rule, or order of any Court whoso jiH'isdiction is vested in th(! Hijjh Court of Justice, which has been duly perfected at any time before the coinmencenient of the Act, niuv Ite exectited and enforced, and, if necessary, amended or discharged, by the Hi.) And the High Court has the same jurisdiction in relation to aP. such causes, matters, and proceedings, as if they had /cen conunenced in the High Court of Justice, and continued therein down to the time at which the Act went into ettect ; and, so far as relates to the form and manner of i>rocedure, such causes, matters, and proceedings, or any of them, are to be continued and concluded, in and before the High Court, as directed by the Rales or Ovdcra of Court. {Ih.) Actions in the Queen's Bench and Common Pleiis vommenced before 2\9t August 1881. Where no declaration has been filed the action is to be continued accoi'ding to the practice of the High Court of Justice ; and where under the former practice at law, a declaration was necessary, a statement of claim is to be filed, and all subsequent proceedings carried on under the Judladure Act. Whei'e a declaration has been filed, the action is to be continued to the close of the pleadings, according to the \ PUfKEDUUE IN COUNTY COURTS. 271 m former practice of the Coxirt in uluch the action was ]»roiii(ht, and thonceforwanl according to the practice of the Hi j,di Court, (/^//c 4!).S.) SaitH in Chtnicvry nmniencvd before 21,i/ AiujhhI, 18(S1. All causes in wiiich neither notice of motion for decree has heen ser^ i, nor repli( iion Hletl, are to he continued according to the f»i 'ler practice in Chancery up to the time when, ace rdinj^ to such piaitice, notice of motion for decree could he served, or replication filed, and from thenceforth accordin<^ to the practice of the Hi<^di Court. All other causes, matters and proceedings f ineludinj.,' all caiises which have been heard, or ir, which notice of motion for (U'cree has been served, or replication filed), are, so far as relates to the form and manner of procedure, to l)e continued and conchuled in the same manner they would have been in the Court of Chancery, (Rule 4'!J4.) 3. PUOCEDURK IN CoUNTY COURTS. Subject to the provisions of the Act, and to the Rides of Court, the pleadings, practice, and procedure for Mie time being, of the High Court of Justice, is to apply and extend to the County Courts, where the ]deadings, practice, and procedure of the (Jounty Courts, at the time of the passing of the Act, corresponded with those of the Superior Courts of Law. {Rale iOO, and see R. S. 0. c. 43, ss. 23, 29-31, 33.) Judges of the County Courts, and Division Courts, have now power to award costs in actions in which the plaintiff* fails to recover jndgment, owing to tlie Court not having jurisdiction. {Rule 489.) Formerly where the Court had no jurisdiction to enter- tain a suit, it could make no order as to costs. {Powleij v. Whitehead, IG U. C. Q. B. 589.) 272 / / 1? "I ^ •!• Mf X' -<« J APPENDIX. APPENDIX A. ORDER IN COUNCIL approved by His Honour the Lieutenant-Governor, the 30th day of June, A.D. 1881. Upon consideration of the report of the Honourable Oliver Movvat, Attorney- General, dated 2nd May, last the Committee of Council advise that the following appoint- ments and arrangements be made under the Judicature Act:— That Mr. Dalton shall be Master in Chambers, at a salary of $3,000, and Mr. W. B. Heward and Mr. Ariioldi Clerks in Chambers. That Mr. Stephens shall succeed Mr. Dalton, as Clerk of the Crown and Pleas of the Court of Queen's Bench, at a salary of $2,000 per annum, and shall be called " Registrar of the Queen's Bench Division ;" and it shall be part of his duty, from time to time, on the request of the Master in Chambers, or of a Judge of the High Court, to sit with, or for, such Master. That Mr. Jpckson retain his ofRce, as Clerk of the Crown and Pleas of the Court of Common Pleas, and that he be designated " Registrar of the Common Pleas Division." That Mr. George Holmested shall be Registrar of the Chancery Division, and Senior " Judgment Clerk of the High Court." That Mr. A. F. McLean be Assistant Registrar of the Chancery, Division and Junior Judgment Clerk of the High Court, at a salary of $1,400 per annum ; to be reckoned from 1st July, next. That Mr. Taylor be Master in Ordinary of the Supreme Court, at his present salary. APPENDIX. 27? That Mr. Thom and Mr. Clark be the Taxing Officers, and that they be each paid $1,600 per annum. That Mr. Lee retain his office of Clerk of Records and Writs, and that his salary be Si, 200 per annum ; the increase to be reckoned from the 1st January, last. That Mr. Alexander Macdonell, Clerk of the Queen's Bench, be paid $1,400 per annum. That Mr. Semple, Entering Clerk in Chancery, be paid $700 per annum. That Mr. Stewart be transfeiTed from the office of the Clerk of Process to the Accountant's office. That this Order shall take effect on and from the 22nd day of August, next, except the provisions thereof increasing salaries, which shall take effect from the times hereinbefore particularly stated. (Certified.) J. O. ScOTT, Clcrl', Executive CovauU, Ontario. 35 ii 274 ■■•m ' ^ M •> ^«i \ni r '*i Hil j !; t HI ''! P 1 ^' R 1 n' * '*■ ■; * 1 * > 1 1 1 '?!: 1 i: APPENDIX. APPENDIX B. Additional Rules of the Supreme Court of Judicature for Ontario. (Passed 25 fh August, 1881.) 495- These Rules may be cited as the Rules of the Supreme Court of Ontario, 1881 ; or each separate Rule may be cited as if it had been one of the Rules of the Supreme Court, and had been numbered by the number of the Rule mentioned in the margin. 496. In Rule 45, sub-section (d), the word "act" is hereby substituted for the word " action," in the first line thereof 497- In Rule 74, sub-section (a), the word " satisfied " is hereby substituted for the word " notified," in the third line thereof 498- In Rule 246, sub-section (d), the word " produce " is hereby substituted for the word " proves," in the third line thereof 499- In Rule 352, sub-section (h), the word " periods " is hereby substituted for the word "period," in the fourth line of the said sub-section. 600- In Rule 370, the word " proceeding " is substituted for the word " proceedings," in the fourth line thereof. 601- Rule 100 is hereby amended by inserting after the word " summons," in the fourth line thereof, the words " or on notice, as the case requires." 502- Rule 78 is amended by adding after the word "behalf," in the last line, the words "in which the reference, when required by the practice, shall be to the Master, or Local Master." (Passed 5th September, 1881. 503- Where a seal is, under the 51st section of the Judi- cature Act, " impressed on any document which, before the passing of the said Act, did not require to be sealed, the fee of fifty cents mentioned in the 53rd section of Tlie Superior Courts of Lavj Act, R. S. O., c. 39, shall not bo payable on such documents. APPENDIX. 275 or or app::ndix c. Rules of the High Court of Justice. (Passed 2,'Jnd Aayust, JS81.) I. — It is ordered by the Judges Df the High Court, that one of the Judges of the Queen's Bench Division, or of the Common Pleas Division, shall sit in open Court, in Osgoode Hall, every week, excepting during the long vacati<;n, and except during tlie period from the 24ih day of December to the 6th day of January, both days inclusive, for the purpose of disposing of all Court Vjusiness in the said Divisions which may be transacted by a single Judge. II. — Such sittings shall be held on Tuesday and Friday of each week, and on such other days as the Judge holding such sittings may direct. III. — One of the Judges of the Ch> :iery Division of the said High Court shall sit in open Court, in Osgoode Hall, every week, except during the long vacation, and except during the period from the 24th day of December to the 6th day of January, both inclusive, for the purpose of disposing of all business of the said Division which may be transacted by a single Judge. IV. — The business before the said Judge shall be taken, as nearly as may be provided, by the General Orders of the Court of Chance cy. V. — Demurrers and special cases shall be set down to be heard, and notice thereof given to the opposite party, six days before the day on which they are to be heard. VI. — A copy of the demurrer book, or of the special case, shall be left with the Registrar of the Division in which the action is pending, for the use of the Judge before whom such demurrer, or special case, is to be heard, two days before the day appointed for the hearing. VII. — All rules, or orders nisi, directed to be issued by the Judge shall be four-day rules, and shall be set down to be heard at the first sittings of the Judge in open Court, for ai'gument, after the same are returnable, unless other- wise ordered by the said Judge. VIII. — The proceedings befoi'e a Judge sitting a,s afore- said, shall show on their face, in any judgment, decree. 270 APPENDIX. » riile, or order, to be given, or made, that the business was carried on before a single Judge, as follows: — " In the High Court of Justice for Ontario. Before the Hon. Mr. Justice [naming the Judije.] " IX. — It is ordered that the Divisional Courts of the High Court do meet on Tuesday, the 23rd day of August, instant, at 11 o'clock, a.m. (Passed 2oth August, 1881.) X. — All mortgages, stocks, funds, annuities and securities, and all interest and estate therein, and ail moneys and effects standing in the name of the Accountant of the Court of Chancery, or the Referee in Chambers, or any other officer named by the Court of C.hancery, or in the name of the Clerk of the Crown and Pleas of tlie Court of Queen's Bench, or the Clerk of the Crown and Pleas of the Common Pleas, on the 21st day of August, A.D. 1881, be and the same are hereby transferred to and vested in the Accountant of the Supreme Court, as such Accountant ; subject to the same trusts as respectively attached thereto : and the same officers ar«! to execute all necessary cheques, or documents to effect a formal transfer thereof. 277 INDEX. ABATEMENT. See Change of Tnterest. , , , r f.^„^ none, where cause of action survives to parties already before Court 055 facts* formerly pleadable in, how to be set up, 89. pleas in, alwlished, 89. ABSENT DEFENDANT, , u i f «« action against, for what causes it may be bro^g't'^J- .. if a foreigner, to be served with notice in lieu of writ, ob. ACCOUNT, , t . • 1 -ft action for, judgment, how obtained in, /O. motion for, after appearance, 81. _ may be made at any stage, 20/. ACCOUNTANT OF SUPREME COURT, 9. payment into Court, 264. payment out of Court, 265. • ACTION, . , . , *• "K oft7 account, for, motion for judgment 11 , /6, 20/. causes of action which may be joined, AlVi. leave to join, when necessary, 38. how obtained, 40. , . . , on ^a causes of action which may not be joined, AMW. consolidation of, 267. . dismissal of, if writ issued without authority, 220._ for not filing statement of claim, 8A 110. , reply, US- . giving notice of trial, 118. security for costs, 226. foreclosure, for. See Mortgaoe Suits. land, for. See Action for Recovery of Land. motions in, transferred from one Division to another, 266. redemption, for. See Mortgage Suits. sale, for. ,Vee Mortgage Suits. staying, when commenced without authority, zm. test, ordering trial of 257. , . . , -x opt does not bind others, unless tried on merits, 267. transfer of, 266. trial of. See Trial. ACTION FOR RECOVERY OF LAND, apT^earance by landlord, in, 60. , , , ,. «, * person not named as defendant, bl. notice of, when necessary, 60, 62. notice limiting defence may be hied with, 60, bl. judgment for, default of, 71. causes of action which may be joined with, 39. default of appearance, judgment for, 71. 278 INDEX. u J-. il >W if ■■I ACTION FOH HKCOVKHY OF LAUD- (Continued), ilefault «if (lefoiicf, itrooovilings oil, 113. jiulginuiit on, 1 1.3. whuro othor clniiiis joinoil, 1 13. wliero soiiiu ilefuiul, and others do not, 113. tinal judgment, 113. interlocutory judgment, 113. defence, statement ()f, 89, defendant may rely on his poascssiim, 8!). equitable defence must be specially raised, 8{), iM). leave to join other causes of r^cticm with, when necessary, 39. non-appearance of defendant at trial, 123. place of trial, local, 87. service of writ where possession vacant, 5' * ADD RKSS VOR S K U V 1 C 1-:, plaintiff's to be indorsed on writ, when, 47. if omitted, where necessary, pnxieedings, how served, 47- defendant's to be stated in appearance, when, 59. if fictitious, appearance may be set aside, 59. ADMINISTRATION, judgment for, on pnvcipe, 75. uiution for, how made, 211, 2IC. by whom made, 21(!. parties to actions for, 26. ADMINISTRATOR, claims by, or against, not to be joined with other claims, 39-40. enquiry as to wilful neglect and default of, when made, 217. ADMISSION, allegation in pleadings to prevent implicatiou of, 88. in affidavits VMi. motion for judgn)ent on, 130. in pleadings to be made, 88. how made, 88. motion for judgment on, 130. in examination of party, 130. motion for judgment on, ISO. notice to make, 168. proof of, U)8. silence of pleading, none, 88. ADMIT, each party by lus pleiiding, to admit such facts as are true, 88. notice to, 168. AFFIDAVITS, costs of, improperly drawn, 170. commissioner to take, 172. description and signature of deponent, 171. form of, 170. illiterate deponent, certificate in case of, 171. not to be used if not certified, 171. interlineation in, 171. Jurat, 171. • landlord's to be filed with appearance, 60. notice, by whom filed, 171. office copies of may be used, 172. on motions in Court, 170, 203, 204, cross-examination on, 204, 205. ' . notice of, 170, ; in Chambers, 170, 213. filing, 213. ^ INDEX. •27& AFFI DA VITS— r Co„ti,>„>',l ), on motion for ju: Dlscoverv. ALIMONY, action for, next friend need not V/e named, .30. defendant in, not entitled to security for costs, 223. allowancf: of .sEiiVicp: of writ, when necessary, 6.'5, 66. evidence on application for, 66. * AMENDMENT, of proceedings, 247. may \>e. ordered by Court of Appeal, .3. writ and indorsements, 51, 248. PLE.VDI.SGS, C.NDER ORDER, 24S. • arlding or strikirig out parties, 248-9. substituting parties, 240. application for, where made, 249. . when to Vje ma« tiluil with, bo entered, 58. ilefanit of, pnweedings on, <)7-77. in actions formerly cognizable at law, (J8-73. excluaively cognizable in e(inity, 73-77. proceedings after, 78-82. where writ specially indorsed, 78. where partial defence pnt in, 79. in actions for account, 81. foreclosure, 81. sale, 81. redemption, 81. other actions, 81. ARBITRATORS, powers of, 137. trials before, 137. A3SI(JNEE IN INSOLVENCY, claims as, cannot be joined with others witlioiit leave, 39. ASSIGNMENT. See Changk of Intekest. pendente lite proceedings on, 257. ASSIZE, CLERK OF, 12, 19. ATTACHMENT, when it may issue to enforce judgment, 149. notice of motion for, to be i)er8onally served, 203. order for, necessary, 150. no detention for costs, after contempt purged, 150. ATTACHMENT OF DEBTS. 155-160, affidavit for, by whom made, 155. debts attjichable, 155157. not attachable, 157, 158. examination of debtor for, 152-154. officers of a company, 152. garnishee should not pay without order, 160. protected by order, 160. may pay money into Court, 160. effect of bankruptcy of debtor, 160. should set up assignment of debt, if he know of it, 160. issue as to liability of garnishee may be ordered, 159. order for, effect of, 158. payment by garnishee, 159, 160. ATTORNEY. .Sec Solicitoks. ATTORNEY-GENERAL, actions by, 32, 33. BANKRUPTCY, of parties, proceedings on, 257. See Change of Intekest. BOOKS TO BE KEPT BY OFFICERS, 22, 23. CASE. See Special Case. CAUSE OF ACTION, absent defendant, for what he may be sued, 65-66. joinder of, 37-.38. improperly joined, may be struck out, 38. remedy when several cannot be tried together, 38. INDEX, 281 CERTIFirAT?:()PMJS I'KNDKXS, iiidorHemont ttf writ for, 44, 49. hr)W oht'iineil, 4U. may Ikj vacated, 40. €HAMBKI{.S. .SV»> MasTEK IN <'HAMKKRS. Judge in, appeal from, to Court of Ajii»<;al, 4. Divisional Court, 7. motions in, how maefore the Court, 255. assignment /iemlente lite, 2()7. of erjui table estate, 258. bankruptcy, 2.57- death of sole plaintiff, 256. one of several plaintiffs, 256. sole ilefendant, 257. one of several defendants. 257. marriage of female party, proceedijigs on, 255-2.'><5. order to continue proceedings on, 259. by whom it may lie obtained, 259. before decree, 259. after decree, 259. how obtained, 260-261. . ser^•ice of, 261. discharging, 262. motion for, when to be made, 262-26.3. CHIEF JUSTICES OF QUEEN'S BENCH, AND COMMON PLEAS, retain their titles, 2. Presidents of Queen's Bench, and Common Pleas, Di\-i8ion8, 2. CHOSE IN ACTION, parties to action, by assignee of, 27. CLAIM. .Vfe Statement OF Ci-AiM. CLASS SUIT. plaintiffs in, 31. CLERK OF ASSIZE, 12, 19. CLERK OF THE PROCESS. 10, 19. CLERK OF RECORDS AND WRITS, 11. CLOSE OF PLEADINGS. when p.eadings closetl, 86 $7. COMMON LAW, when it conflicts with equity, the latter to prevail, 5. 36 282 INDEX. t- 1 j ^^^H ^^^H ^^^^H ^^^H ^^^B ^^^B rlR "I*" COMMON PLEAS DIVISION', '2. officers of, 10, 19. Prosidont of, 2. COMPANY. .SVf DiscuvEKV. examination of officer of, for attachment of ilubts, 152. of officer of, for dis-jovery, 2,30. service of writ on, 58. COMPUTATION OF TIME, days, how computed, 2^7. "mouth" means calendar month, 2(>8. periods of less than six days, holidays not to be k-eokoued in, 268,^ Sunday, 2(58. CONCURRENT WRITS OF SUMMONS, 42. CONFESSION OF DEFENCE, 105. when it may be delivered, 91. costs on, 105. CONSENT, amendment in pleadings, may be made by, 250. orders, and judgments, uot appealable without leave, 4. to Judge of C. C. or Local Master, entertaining application, does uot preclude appeal, 218. CONSOLIDATION OF ACTIONS, 267. CONTINUING PROCEEDINGS, order for, on change of interest, 259. • ,- by whom obtained, 259. '^ how obtained, 2G0-2G1. service of, 261. discharging, 262. motion for, when to be made, 262-263. CONTRIBUTION, third party liable to defendant for, notice to, 101. CORPORATIONS AGGREGATE, officers of, may be examined for discovery, 230. may be examined ps to debts owing to, &c., 152. service of writs ou, 56. COSTS. See Security for Costs — Taxation of Costs. appeal as to, leave required, 4. application to deprive successful party of, 174. application to extend time, 180. case tried by jury, to follow event, 174. copies of documents, 180. demurrer allowed without argument, 110- 1 II. allowed on argument, 109. overruled, 110. discretion of Court as to, 174-175. disbursements, 187. examination of judgment debtor, 156. fees of solicitors, 188. judgment for, where defence arises afteraction brought, 91. quaire, whethei^iti can be entered until damages assessed, 113. . on acceptaiice of money paid into Court, 99. nominal bill taxing, 180. order depriving successful party of, no appeal from, 175. principles on which awarded, 173-176. refusal to bring in bill of, 180. INDEX. 2SS / aot COSTS- /(.•o,>toit,.d) ^ revif.oii of taxation of, IHl-is.i. when compulsory, 181. when optional, 182. review of taxation, 18.3, 184. how ohtaineil, 183, 184. appeal to Judge on, 184. evidence on, 184. set-off, how allowed, 180-181. successful party, to, when rcfuseil, 1*0. tariff of, 188. taxation of, 176. , i. i-o tender of «5 to f■ ;rSS^.™o't'£liwe,l, .78.179. S.r"f"u:o;:-',Xt», „„,„.,c;,-, ^^ proceedbVgs hi to be governed by Judicature Act, and Bules, 2. 1. COURT, Appeal, of, 2. .SVe Court of Appeal. High, 2. Supreme, 1. officers of. 8-21. payment into, how made. ^b*. out of , how made, 26o. only upon order of a Judge, -11. COURT OF APPEAL, appeals to, 3. Court of Record, 2. Division of Supreme Court, 2. execution and enforcement of orders ot, 6. jurisdiction and lowers of, 3. matters appealable without leave, d. appealable with leave, 4. which are not appealable, 4. Registrar of, 10. 284 I i i •*5 INDKX. SS KXAMINATIUN, on nttiilnvitH to Ix; uhv<1 at trial, l(i3-1 TKSTE, of writ of HunnnonH, 45. execution, ]4<>. DATK OF SKHVICK <»F WRIT, to be indorBuil on writ within 3 days, 57. DATK, in \)lcncutory, 113, 114. judgment by, may be set aside on notice, 116. notice of trial, of, dismissal of action for, 1 15. DEFENCE. .SVf Counter Claim — Pleaui.nos — Statement of Defence. how made, 95. arising after action, or after delivery of defence, how pleaded, 91. leave to make, to specially indorsed writ, 79-80. limited, notice of, may be filed with appearance, (50-61. withdrawal of, 124. DEFENDANTS. .SW Parties to Actions. motion by, for receiver, injunction, &c. , 202. delivery up of property subject to lien, 209. non-appearance of, at trial, 122. DEFENDED ACTIONS, how to be tried, 120. separate list to be made, of, 120. ' DELIVERY, of pleadings, 92, 93, 96, 108. 8t»*>-uient of claim, 93. defence, 96. «eply, 106. demurrer, 108. demurrer book, 109. copy of pleadings for Judge at trial, 120. It INDKX. 285 EST aw, NCE. DK.Mi;i!HKU, alloweil without ar^ninont, when, 111. attiduvit to pluiMl aiitl , 1 14. whether "oniers" includes judgments, ijxii-f, 18. powers of, 17. to attend trial of actions in Chancery Division, 110. DISCLUSURE. of aildress of plaintiff, 220. of names of partners, 32, 221. DISCONTINUANXE. 105. costs payable on, 105. no defence to subsequent action, 105. none, after entry of action for trial, except by leave, 123. or by consent, 124. DISCOVERY, costs of examination for, 23G. examination of imi-ties/or, is Chaxcery Division, 229-233. by plaintiff, 230. by defendant, 231. where held, 2.32. attendance of party, 232. non-attendance of party, 232-233L second, when allowed, 233. otiicers of corporation, 230, i-.h 286 INDEX. miiCOYERY—( Continued J, examination of parties for, in Q. B. and C. P. Division, 233-236. when it may be had, 234. how obtained, 234. re - examination, when granted, 235. attendance of part3', how ob- tained, 235. consecjiience of non-attendaucee, 235. examination, how fiir evidence, 236. . jirodiicfion, ane Special Examiners. EXECUTION, against a tirm, 150-151. partners, 150-151. leave to issue, when necessary, 151. See Attachment — Sequestration — Writ of Possession. date and teste of, 146. duration of, 147. former rights to, preserved, 144. how issued, 146. immediate, certificate for, 125. land, to recover, 148, 149. indorsement of, 146. money, to recover, 148. leave to issue, 151. renewal of, 147. return of, 147. six years, must be issued within, 145. staying, 148. writs of Ji. fa. , 145. when it may issue, 145. where issued, 146. recover money, to, 148. land, 148-149. enforce mandatory judgment, to, 149, 150. conditional judgment, to enfonct, 150. EXECUTOR, claims by, or against, cannot be joined with others, 39-40. wilful neglect and default of, enquiry as to, when made, 217. FEES, disbursements, what payable, 187. solicitor's, tariff of, 188. Tf INDEX. 28» FIERI FACIAS, See P:xecution. FIGURES, . , ,. .,...„ dates, sums, and nunil^ers, in pleadings, to be in, 142. FILING, appearance, fS. copy of writ, on issuing original, 48. where no statement of claim required, 81. pleadings, 92. FIRM, action against, 35. by, 32. . » appearance by partners, 59. execution against, 150-151. names of members, disclosure of, 32, 221. ^^ • may sue in name of firm, 32. be sued in name of firm, 35. service of writ on, 55. FORECLOSURE. See. Mortgage Suits. account, how taken, 113. notice of when necessary, 113. default of appearance, judgment how obtained, 73. default of defence, judgment how obtained, 113. dispute note, 95, 113, 114. notice of taking account, 113, 114. , , , ... j»oa sale instead of, whether defendant can now get, by depositing 158U,. ijuicre, 75. FOREIGNER, . . ,. \ ■. \a resident abroad, to be served with notice, m lieu of wnt, 5b. FRAUD, how pleaded, 85. GARNISHEE. See ArrAtHMENT of Debts. ii\jkVimKi!i AD LITEM, to infants, appointment of, 55, 64, 65. to lunatics, appointment of, how made, 63. official. Sve Official Guardian. HABEAS CORPUS, application for, where to be heard by Divisional Court, 7. excluded from jurisdiction of Master in Chambers, 210. Local Masters, 214. County Court Judges, 214. HEARING. See Trial. HIGH COURT OF JUSTICE, cor stitution of, 2. Divisions of, 2. _ Judges of, 2. ( judicial business of, 6. officers of, 10-19, 20-21. President of, 2. Rules of, 275. HOLIDAYS, . , ^. ^^^ when excluded in computation of time, 268. HUSBAND, where necessary party to action by wife, 30. against wife, 34. 87 '< t 5 290 INDEX. HUSBAND AND WIFE. .S'f*? MARRiEn Woman. claims by, and against, them jointly, may be joined with separate claims, 38. INDORSEMENT OF WRIT OF SUMMONS, 45-47. address of solicitor or party suing out, 47. for service, when, 47. amendment of, 248. certificate lis pendens, to obtain, 46, 49. character in which plaintiflF sues, 47. defendant is sued, 47. class suit, in, 31. date of service of writ, 57. name of solicitor, or party, suing out, 47. mortgage suits, 45. special, 46. omitted, proceedings in default of appearance, 70. statement of claim, or relief, required, 45. special indorsement, 46. omitted, proceeding to be taken, in default of appearance, 70. INDORSEMENT OF WRIT OF EXECUTION, 146. INFANTS, actions by, 27. next friend of, need not be solvent, 27. actions against, 33. service of writ, when to he personal, 54. on official guardian only, 55. guardian ad litem of, how appointed, 55, 64, 65. who to be ai>pointed, 65. INFORMATION, commenced by writ, 32. INJUNCTION, interim, not obtainable against married woman to prevent alienation of separate estate. 34. motion for, 207, 210. by defendant before appearance, 202. writ of, abolished, 207. order for, to have eCFect of, 207. INQUIRIES AND ACCOUNTS, may be directed at any stage, 207. INSPECTION, of documents. See Discovery. of premises may be ordered, 207. INSPECTOR OF PRISONS AND PUBLIC CHARITIES, ex officio committee of certain lunatics, 65. INSPECTOR OF TITLES, 11. INTERLOCUTORY JUDGMENT, default of appearance, 72, entry of, 73. defence in action for unliquidated damages, 114. for, debt, or liquidated demand, 112. to recover land, 113. INTERLOCUTORY ORDER, when not appealable to Court of Appeal, 4. INTERLINEATIONS, in affidavits to be authenticated, 17 L INDEX. 291 itaie e, 70. !.; nation 12. may be directed when pleadings defective, 86. to be settled Ijy Judge, 8(5. JOINDER OF CAUSES OF ACTION, 37-40. Se, AiTiox. causes which may not be joined, 30-40. cause improperly joined, may be struck out, .iS. leave for, when necessary, 38. how obtained, 40. separate trials may be ordered, 38. JOINDER OF PARTIES. See Pakties to Actions— Change of Intek- EST. JOINT CLAIMS, ^ QQ may be joineil with separate, m same action, rf». by, or against, liusband and wife, 38. JOINT STOCK COMPANY, service of writ on, 55. „ t^ ^„,. examination of officers of, for discovevy. Scfi Disc o\ er\ . examination of officers of, as to debts, due to debtor company, kc. See ArrwuMENT of Debts. appeal from, to Court of Appeal, 34. Divisional Court, 7. not to reserve case for Divisional Court, 122. trial before, 118. JUDGE IN CHAMBERS, appeals from, 218. to, 218. motions to be made to, 212. , ,. i v„f„„„ ok? motions liefore Masters in Chambers, may be adjourned before, 215. JUDGE OF COUNTY COURT, administration, motion for, 216. appeals from, 218. jurisdiction of in Chambers, 214. matters excluded from jurisdiction of, 214. may adjourn motion before .fudge, 215. may take examination of judgment debtor, lo3. motions to, how made, 214. partition, motion for, 217. JUDGMENT. .SVe Motion FOR Judgment. • after trial, 138. amendment of, 143, 252, 253. certificate of Judge for entry of, 125. officer for entry of, 125. date of, 142. , ^n-, default of appearance, final, 69- < 3. . , , . . . may be entered for part of claim, or against some of defendants, 69-71. interlocutory, may be entered forepart ot claim, or against some of defendants, 72-73. -77. wben necessary, 7<). in default of defence, 115. motion to set aside, wlien obtained on tbe merits, 7, 129. jifocijie, in nuirtgage suits, liow obtained, 73-75. setting aside, motion for, 7, 129. terms of to be settled l)y Judgment Clerk, 120. unaninnms, wlicn appealable, 4. when it may be entered, 138. where it may be entered, 138-139. JUDGMENT CLEKK, senior, 10. jimior, 11. duties of, 10-11. to settle terms of judgment, 12(5. JUDCJMENT DEBTOR, attendance for examination, how enforced, 153. committal of, 154. concealment, or fraudulent disposition of assets bj', 154. costs of examination of, 155. examination of, how made, 152. married wom:in, liable to conmiittal, 154. non attendance for examination, 154. officers of debtor corporation, may be examined, 152. order to commit must be absolute, 154. unsatisfactory answers of, 154. JURISDICTION, actions against persons out of, G5-G(5. appearance time for, where writ served out of, 45. former procedure and practice in certain cases retained, 5. of Court of appeal, 2-4. High Court of Justice, 5. Master in Chambers, 210-211. County Court Judges, 214. Local Masters, 15, 214. service of writ out of, 5(5. allowance of, G5. JURY, actions tried by, motion for new trial in, 6. costs, where action tried by, 174. may be directed to give verdict subject to facts being proved, 122, notice for trial by, 97, 106. service of, 97, 106. LAND. See Action for recovehv of La.nd, LANDLORD, appearance by, 60. notice of, where necessary, 62. LEAVE TO APPEAL, to Court of Appeal when necessary, 4. INDEX. 293 78-80. I- I eil, 122, where writ especially in.lorse.l, when granted, /8-80. LKAVE TO JOIN DISTINCT CAUSES OF ACTION, when neccHsary, 39. jiow oVitsmeil, 40, LEAVE TO MOVE. when neccHsary, 210. unneceaHary, 202. how obtained, 201. LIMITING DEFENCE, in actions for recovery of money, W. lanil, 01. notice, may be filed with appearance, ()0-0I. effect of, 61. LOCAL MASTERS, 14. administration, motion for, J.lh. appeals from, 218-219. ,^ „,. jurisdiction of, in Chambers, 15, 214. matters excluiled from jurisdiction of, 214. may adjourn motions before .hulge, 21o may make examination of judgment debtor, loi. motions to, how made, 214. names of, 20-21. officers of Supreme Court, 14. partition, motion for, 217. , ,.0 powers of, under judgment directing a sale, 14.1 LOCAL OFFICERS, of High Court, 14, 18, 20, 21. of Supreme Court, 14. ' LOCAL REGISTRARS, 16. books to be kept by, 22, 23. cause list, how prepared, 120. duty of, at trial, 124. ,.,,,. entry of action for trial, with, 1 1\). names of, 20, 2L powers of, 16, 17. , LONG VACATION. . no amendment of pleading m, 252. not reckoned in time for amending, 2ol. LUNATIC, actions by, 31. actions against, 35. » , -- service of writ, on, how effected, r>5. euardiar rtfN(7fm to, how apix>mted. 63, W. who to be apixtmted bo. party to special case, 134. ^^ i-ii truth of facts stated in special case to be proved, 134. MALICE. how pleaded, 85. MANDAMUS. motion for, 207. MARRIAGE OF PARTIES, 255-6. proceedings on. See Change of Interest. I I' m I MARRIED WOMAN, action by, 27- staying, where no next friend named, 30. action against, 34. defence oy, 35. may sue alone respecting separate estate, &c., 27. next friend, when necessary, 27, 30. who may be, 30. se^mrate estate of, what is, 28, 29. service of writ on, 54. pauper, may sue without next friend by leave, 30. MASTER, See Local Master. MASTER IN ORDINARY OF SUPREME COURT, 8, may take the examination of judgment debtor, 153. an Official Referee, 13. powers of, under judgment directing a sale, 143. MASTER IN CHAMBERS, 8, 210, 211. jurisdiction of, 210,211. maters excluded froji, 210, 211. appeal from, 21S. Official Referee, may sit for, 8, 272. orders made by, to bear name of, 213. MISDIRECTION. no ground for new trial, when, 128. MISJOINDER OF PARTIES, not to defeat action, 24. MONTH, means calendar month, 268. MORTGAGE SUITS. default of appearance, judgment on, 73-75. dispute note tiled, judgment how obtained, 81. indorsement of writ, in, when account to be taken by Registrar, 45, judgment on pnecipe, after defence, when, 104. in, form of, 143. effect of, 143. MOTIONS. See Motion for Judgment,— Motion for New Trial. IX Court, how made, 200. accounts for, when, 207. affidavits on, 203-204. cross-examination on, 204, 205. delivery of property, for, 9.J9. detention of pioperLy, fur, 208. enquiries for, 207. evidence on, 203. ' affidavits in support, 203. in answer, or reply, 204. cross-examination on, 204-205. notice of, 205. oral, how obtained in Chancery Division, 205-206. Queen's Bench and Common Pleas Divisions, 207. hearing of, 206. injunction, for, 207. inspection of property, for, 208. mandamus, for, 207. non-appearance on, 207. '■ ' *' INDEX* 295 ,45, L. 5-206, ommoa UOTlOii>i—( Continued J, notice of, 200. •" leave to aerve, 201. when unnecessary, 202. for injunction, 202. ,, ,., when to be made returnable, 202. service of, 203. perishable goods, for sale of, 208. preservation of property, for, 208. receiver, for, 207. . . , ^\ orf transfer of, from one division to another, .:oo. IN Chambers, how made, 209, 212. to Judge, 212. to Master in Chamhcrx, 210-211. to be made on notice, 212. notice of, form of, 213. service of, 213. leave to serve, 212. evidence on, 21=^ affidavits, tiling, 213. to County Court Judge, 213. to Local Master, 213. , t at * i o,. oid. jurisdiction of C. C. Judge, and L. M., to hear, 214. to be made on summons, 214. adjournment of, before Judge, 215. administration for, to whom made, 210. by whom made, 21o. how made, 21(5. form of judgment, 216. partition, or sale, for, to whom made, 217. by whom made, 217. " how made, 217. MOTION FOR JUDGMENT, admissions in pleadings, &c., on, 11 J. ^ ^a an after appearance where wnt Lpecially indorsed, <8-80. after delivery of defence, 104, 105. after trial of issues of fact, 130. any motion may be turned into, 131 . ^ default of appearance, on, when necessary /0-7<. default of defence, on, 115. evidence, documentary, 129. byafhdavit, 129. . , , ,.,0 necessary only against infants, 12 J. hearing of. 132. how made, 131. judgment on motion, 132. leave of Court, by, 129. when (granted before defence, IJl. mortgage suits, 104. notice of, 132. redemption suits, 104. sitting of Court for hearing, of, 132. special cases, 132-135. when to be made, 129, 132. . . , ,q, where some questions have been tried, IJl. within a year, from right to move, 132. MOTION FOR NEW TRIAL, action tried by Judge, 126. by jury, 126-128 See New Trial. 296' INDEX. \m r ■ 'i If ^ >i ;--:A: ;i -' u r MOTION FOR NEW Till Ah-fConfuiued), urgument of motion, 128. jua^i^mont on motion, 128. setting down for argument, 128. NAMES OF MEMBERS OF FIRM, how obtained, 32, 221. NAMES OF OFFICERS, officers at Toronto, 18-19. I^cal Officers, 20-21. NEW ASSIGNMENT, abolished, 88 facts formerly raised by, to be raised by amendment, 88. NEW TRIAL, motion for, 6. when action tried by a Judge, 120. jury, 12G, 128. time for, 126-127. order nisi for, how obtained, 127. ' service of, 127. as to part of causes of action, 128. costs, 128. NEXT FRIEND, of infant, 27. need not be solvent, 27. of married woman, when ref^uisite, 30. must be solvent, 30. security for costs where not, 30. staying action, when none named, 30. changing, 30. NOTICE, of motion, 202. when to l)e made returnable, 202. service of, 203. of trial, 118. cannot be countermanded, 118. of writ of summons to be served on foreigner, 56. to admit, 168. to produce documents, 244. See. DiscovEBY. to third party liable to contribution, 96, 101. efifect of, 101. service of, 101-102. appearance on, 102. NOT GUILTY BY STATUTE, how pleaded, 90. what defences available under, 9C-91. NUMBERS, in pleadings, to be in figures, 85. OFFICERS OF THE COURT, 8-21. OFFICIAL GUARDIAN, 12, 19. service of writ on, 54, 55. OFFICIAL REFEREES, 13, 15, 20-21. duties of, 13. , trials before, 136-137. actions may be referred to, 135. questions in, may be referred to, 135. proceedmgs before, tie die in diem, 1.37. tribunal of, not a public Court, 137. cannot commit, 137. may take examination of judgment debtor. 153. INDEX. 297 Sit Chasok ok Istkkest— Amend- ORDER, not !ii»i)ealal)le. 4, 7. interlocutory, when no appeal from, 7. t ^„„*„ lo issuetl by local otlicerH reiiuinng entry, to he entered m loronto, IS. ORDER yiSf, for new trial, 127. service of. 127 ORDER IN COUNCIL, regulating offices, 272-3. PARTIES TO ACTIONS, 24, 40. MENT. adding, 248, 9. change of. See Change of Interest. misjoinder of, not to defeat action, 24. representative character of, to be indorsed on writ, 47. striking out, 248-9. rLAINTlFF.S, 25-33. administrators, 25. assignee of cIiokc in action, 27. attorney-general,^ 32, 33. cfMiii i/ui' iriiAt, 20. class suits, 31. executors, 25 . firm, may sue in firm name, 32. heir at Law, 2(!. husband of married woman, 30. in ants, 27. in actions for protection of property, 2b. jointly and severally entitled, 25. legatee, 26. lunatics, 31. married women, 27. when next friend necessary, 27, oO. numerous, one may sue for all, 31. partners, may sue in name of firm, 32. residuary legatee, 20. residuary devisee, 20, trustees, 25. DEFENDANTS, 33-37. administrators, 35. executors, 35. firm, 35. infants, 33. jointly and severally liable, 33. lunatics, 35. mortgage suits, in, 36, 37. partners; 35. trustees, 35. PARTITION OR SALE, . judgment for, on pnecipe, 75. ^ motion for, how made, 211, 217. by whom, 217. to whom, 211, 217. PARTNERS, execution against, 150-151. leave to issue, 151 . names, disclosure of, 32, 221. 38 i I I pi I I :tsS I ii^ ( 2!»H INIiKX. I'AlirNKlJS (Cmlhniol), Hi'ivici' (if writ, on, firt. Nltill^ ill IIIUIIC llf III III, .'I'J. hiiimI in iiiiini' nf llriii, M|i|Miiirniico liy, ri!l, I'AVMKN'I' IN'UM'OlMir, Imw iMiult', '..'tit. miller |il('M i>f imyiii'iit, W. |iliiinlill iiiiiv iin'i'|i|., . Illlll \liS ('(IHts, KJI. Iiy j^iuiiiHlicr, I 'ill. I'AVMKNI' (H'C (ir COI'IIT. Ii(i« t(i Im> iiiikIi', 'J(ir». nt'ilcr nf .IihIkc i'iM|iiiHiti<, 'Jl t. (')ii't|if wlicn- |iiiiil ill iiinl'T |il(ia of |iftym«iiit, 205. MiiHtiT ill ('Imiiilti'iH, t '. ('. .liidm'M, Illlll l,(i((il MiiMtom, oiiiiMdt onlor, 211. PATKNT, <|iU'Htiiiii iiH to viiliilily (ipiu'iiliililf witlioiit iciivc, .'». niNIMNO lU'SINKSS. ill ( 'Imiiccry HiviHion, '271. (^^iu'i'm'h (U'IU'Ii, mill ( 'oiiiiiioii rinin, Divisioim, '270. rKKISHAni.K I'lMtPKIITV. luotidii for Hiilo of, '208. PlOm'KtN, may In- tilcil wlicii iiwcHHiiry, '20'2, '2I'2. tiMiilor of $5 e ihIh, to furiiiiil roHpoiuleiit, 178. TLKAPIMiS. !nlmi«sioiis ill, how fo lio iiiiulc, HS. lUiu'iiiliiu'iit of, '248-'2r)'2. .SVc Amknkmknt. olosi> of S()-S7. i'oi>y to lio loft for .Imlgo iit trial, 120. counter cliiim. iSV* C"(trNTKuC'i,AiiM. ilate, of, 84. KX. 20(> nt;. mr,. it oril«r, riilwt of, applicftlik t/. all jdna/linifn, H4-^. rt«fenc«, an«l iinh(ier)nent plMrtintffi. W, ^1 Hftrvic! f»f, '»2. tim« for, {»2. Mit off. ,«^<» rv>r '.•■rKR-<':r„uw. «il*!nce of, no a*lmiiwrif>r, H8. exc«>ption» l/> rni«, W. utatftmfint, of oUim .>>/ STAXUvfus r ok f" r.4fW. fl«f«nr,«. A'" Statrmitnt o? finrByrB— rofMT«R-Cf.AO*» rrtyle of (;anHe, V). mims in, to l^»*- in tijifiiresi, >W. whfire 1/1 f>e filft'l, W. f'f.KAhfNO AN'- DK.VlCKRfVf;. .if'. VUAJ'II'K, . . , „ .. judgment in mortgage .wit«, on, how obtame/t, ,.!-,.>. Pf{K.Sff>K.N"rsOF DIVLSfONH. _2. transfer of a/itiona V>y, 'i'kV 28". motions V>y 286- 'i^T. PHf:.Slf>KXT OF HlOil COURT, who i.«), 2. ...» writ"< ^A< V*e tested in name or, 4*i, 14»>, , PKINTINO, ple{uling3 may Vje in, 84. PRIVILEGED IXXJUMENTS. .S^-r DiaCOTEBY. PKfKJEEFM.VOS, _ in default of appearance, r>3-... after apix=;aran<:e, 7*). in default of plearling, 112. to final judgment, t/-i be carrierl on m office whence imt amiert, r- PROCEDURE, , . ^ , former, in what cases t(> be retained, d. PRODUCTION OF D>* Di.-^:ovmy. by judcment debtor, 153. PROPERTY, delivery of, motion for, 208. detention of, " 208. inspection of, *' 208. perishable, may b« 3oW, 2«)d. preservation of, motion for, 206. PROTECTION OF PROPERTY. motion for, 207. QUEENS BENCH DIVISION, 2. President of, 2. officers of, 10 19. peuiling business in, 270. f'-T INDEX. ing to, appcalal)le, without leave, 3. copy of pleadings to bo delivered, as, 120. indorsciiKiit of findings on, 124r2.'>. deiivviry of to SHccessful party, 12.'>. ,vitlidrawal of, 12,S. KECOVKRY OF LAND. .''Vf EjKrTMENx— Aition for Ukcoverv of 1 AND. KEDEMl'TlUN, account, bow take.i, U.S. action for. Si't Moktgaok Siits. default of appearance, judgment, bow obtained, 73-75. defence, judgment, bow obtivined, 113. judgment for, impriH-ijx, bow obtained, 73-75, 113. notice of taking account, 113. HEFEREE. .SV^ Official Referee. REFEREE OF TITLES, 11. (I^cal), 20-21. REGISTRAR, duty of, at trial, 124. of Cbancery Division, 10. assistant "11. of C'omijion Picas Divisi(m, 12. may take examination of judgment debtor, 153. Ofttcial Referee, 13-19. of Queen's Beneb Division, 10. may take examination of judgment debtor, 153. Official Referee, 13, 19. to ait in Chambers, 272. RELIEF, to be specifically claimed in statement of claim, 87. of counter-claim, 89. general, may be claimed, 87-89. where prayed, claim not demurrable, if ground for any shown, 87. ~ RENEWAL OF WRITS, execution, 147. sunnnous, 50. ' REPLEVIN, action of, how commenced, 42. REPLY. .SVe Pleauino. amendment of, w(; Amendment. defence to counter claim arising after its -- Table ok Rcleh Cited, additional, 273. RULES OE H K i H IJOUKT (JF J USTICE, 274. SALE. .SVf MoKHJAUE Slith. auction, l>y, authorize*!, 143. judgment y. SECURITY FOR C(JSTS, bond for, to be made to party, 22.^. surety, 22(). _ solicitor ineligible as, 22/, attidavit of justilication, when required, 22/. execution, when reijuired, 227. form of, 227 ; objection to, Ih. dismissal of action for not giving, 226. how given, 22(). order for, on /trinipc, when, 222. how obtained, 223. form of, 223. discharge of, 22B. payment into Court, as, 227. special application for, when, 223-224. grounds for, 224-225. costs of former suit not paid, 225. where payable out of estate, 22o. ^ defendant filing counter-claim, 225._ t ejectment, successive actions of, 225. • % informer, action by, 225. C plaintiff's address fictitious, 225. refusal of, on w hat grounds, 220. / property within jurisdiction, 22(5. SEPARATE ESTATE, actions in respect of, 28, 29, .34, Jo. SEQUESTRATION, when it may be issued, 149. SERVICE, ., • , ^ Qfi of counter-clann an third party, 98. notices, 5>2, 209. notice of appearance, 62. motion, 203. for judgment, 131. to contributory, 101, 102. , onlera, 92, 269. 3()i ft 302 INDEX. i»f" SERVICE— C Continued J, of pleadings, 92. proceeduigs, 92, 269. summons, 92, 269. writ of summons, personal, .o3. > . on solicitor, 52. companies, 56. corporations, 56. firms, 55. infants, 54-55. joint stock companies, 55. luniitics. married women, 54. partners, 55. out of jurisdiction, 56. -^ allowance of, 65. .affidavit of, 57. date of, to be indorsed on writ, 57. SET-OFF. .S>e Cocnter-Claim. against whom it may be filed, 95. SOLICITOR, 9. swearing in, 19. service of writ on, i>2. undertaking to ajjpear, 52. how enforced, 53. plaintiffs', to pay costs of taxation, if ca, its claimed on writ reduced a sixth, 47. SOLICITOR AND CLIENT, delivery of bill, order for on ]»\edpe, 186. taxation of costs between 185, 187. order for, how obtained, 185, 186. form of, 186. effect of, 187. SPECIAL CASE, form of, 134. inferences may be drawn, 134. may be ordered by Court, 133. parties under disalnlity, sanction of Court to, necessary, 134. (questions of law may be tried by, 133. stated by consent, 13.3. agreement as to effect of decision on, 133. signature of, 134. settinjrdown, 134. leave for, when necessary, 135. affidavit to obtain, 135. notice of, 135. service of, 135. sitting of Court for hearing, 135. truth of facts alleged in, to be proved, when, 134. SPECIAL EXAMINERS, 12, 17, 19, 20, 21. may take examination of judgment debtor, 153. SPECIAL INDORSEMENT. leave to sign judgment, 78-80. omitted, subsequent proceedings in default of appearance, 70. reduced a 4. 70. INDEX. STATEMENT OF CLAIM. amendment of. See Amendment, causes of action which may be joined, 37-38. not be joined, 39-40. consequence of not filing, 82. costs of, when delivered unneoessanly, 179. defence arising after delivery of defence, 91. enlarging time for filing, 82, 269. filing, 92. form of, 94 general relief, claim for, eflfect of, 87. joinder of different causes of action, 87-88. non-delivery of, motion to dismiss action for, 115. place of trial, to be stated in, 87. relief to be specifically claimed, 87.^ general, claim for, effect of, 87. rules applicable to, 87. service of, 93. time for filing, 82. when it may be delivered, 82, 93. writ, copy of, to be filed where none delivered, 94. STATEMENT OF DEFENCE, abatement, plea in, abolished, 89. • action for recovery of land, in, 89. admissions in, how made, 88. amendment of. See Amendment. counter-claim, 87. what claims may be set up by, 97-98. relief claimed under, 98. striking out, 98. ^ disallowance of, 95. third party, affected by, 98. service of, 98. appearance by, 99. defence arising after action, 91. delivery of statement of defence, 91. distinct grounds of defence, to be stated separately, 89. dispute note, 100. defence provable under, 100. facts and grounds of defence, to be set up, 88. filing and service of, 92, 9(5, 97. form of, 97. jury notice, 97. not guilty by statute, how pleaded, 90. notice to third party Habile to contribution, 101. service on third party, 101-102, effect of, lb. Court may direct, 101-102.^ appearance by third party, 102. payment into Court, 99. plaintiff may accept, 99. tax costs, 99. proceedings after delivery of, 103-107. in mortgage suits, 104. motion tor judgment, 105, discontinuance, 105. confession of defence, 105i reply, 105. 8er\'ice of, 92, 96-97. by posting up, 97. set-off, 97 (see Counter-Claim). 303 h <: 304 INDEX. % si i f! STATEMENT OF DEFENCE-rCoH^iMMft^;, silence of, as to allegations in statement of claim, 88. time for delivery may be extended, 96, 269. when to be delivered, 9G. withdrawal of, 100. STAYING PROCEEDINGS, when writ issued without authority, 220. without next friend, 30. when next friend insolvent, 30. STRIKING OUT PARTIES. See Amendment. STYLE OF CAUSE, in pleadings, 85. writ of summons, 44. action against a firm, not changed after appearance by partners, 60, SUMMONS. Site Writ of Summons. applications in Chambers to County Court Judge to be on, 214. Local Masters to be on, 214. how issued, 215. service of, 92, 269. SUPREME COURT, Accountant of, 9. constitution of, 1 . local officers of, 14. Masters of, 8, 14. officers of, at Toronto, S-10. Rules of, cited, xv. additional, 274. Taxing Officers, 9. TARIFF. of solicitors' fees, 188. TAXATION. .S'ef Costs. attendance on, 177. by Local Master, 177. Deputy Registrar, 177. Deputy Clerk of Crown, 177. Local Registrar, 177. defendant paying costs pursuant to indorsement on writ, may have, 47. practice as to, 177-8. between, soiicitcrrtiid client, order for, 185-187. unnecessary proceedings, 178-179. review of, 183-184. how obtained, 183-184. appeal to Judge from, 184. evidence on, 184. revision of, 181-183. when compulsory, 481. optional, 182. TAXING OFFICERS, 9. Set Taxation. powers of, 177. to tax costs in Toronto for all Divisions, 177. to revise taxations by Local Officers, 177- THIRD PARTY, counter claim against, 95, 98. when it may be tiled, 95. service of, 98. appearance by, to, 89. reply by, to, 107. INDEX. 305< ers, 60r lave, 47. THIRD V ARTY— (Contimied), notice to, as contributory, &c., 96, 101. effect of, 101. Court may direct, 101, 102. appearance thereon, 102, defence by, 103. trial of action where given, 103. TIME. computation of, 268. enlarging and abridging, 269. for appearance, 44, 45. for statement of claim, 93. for defence, 96. for reply, 106. for demurrer, 108. ^ for amendment of pleadings, 250, 251. for moving for new trial, 126-127. TRANSFER. of actions, 266. of motions, from one Division to another, 266-7. TRANSMISSION OF INTEREST. See Change of Interest. TRIAL, actions to be tried, as formerly, 117. adjournment, terms of, 124. affidavits at, See Affidavit.s—Evide>xe. before Judge, with, or without a jury, 118. Referees, 135-137. arbitratoi-8, 137. cause list, how prepared, 120. costs, applications respecting, at, 174. entry for, 118-119. where to be made, 120. facts omitted at, may be subsequently proved, 122. modes of, 117-118. notice of, 118. when to be given, 118. service of, 118. • cannot be countermanded, 118. .. non-appearance of defendant at, 122. plaintiff, at, 123. nonsuit at, equivalent to judgment, 124. place of, may be chosen by plaintiff, 87. except in ejectment, ot. change of, 87. proceedings at, 121. right to begin, 121. oo ht separate, may be ordered of distmct causes of action, d», ii/. undefended actions, 120. when notice served on third party, 103. UNDEFENDED ACTION, how to be tried, 120. VACATION— LONG. amendment of pleadings not to be made in, 251. how si)ent by author, pan^im. not to be reckoned in time for making amendment, 251. 39 306 INDEX. VENUE, to be stated in statement of claim, 87. not local, except in actions of ejectment, 87. change of, 87. VENDITIONI EXPONAS. See Execution. VERDICT, obtained by default, may be set aside on motion, 123. VICE-CHANCELLORS, litle of, abolished, 2. WILFUL NEGLECT AND DEFAULT, enquiry as to, when made, 217. WITHDRAWAL, of claim, 123. defence, 100. record, 123. » "WITNESSES attendance of, ma}* be dispensed with, when, 131. may be supcenaed., 120. evidence of, for trial may, by leave, be taken before Examiner, 121. on motion, 205. fees of, 197. WRIT OF EXECUTION. See Execution. WRIT OF POSSESSION, 149. eflfect of, 149. WRIT OF SUMMONS, 41-57. actions to be commenced by, 41. allowance of service of, out of jurisdiction, 65. amendment of, 51. by whom issued, 43. concurrent, 49. • ' copy of, may be filed when writ issued 48. must be tiled, if statement of claim dispensed with, 81. consequence of not filing, 82. date, and teste, of, 45. duration of, 50. form of, 44. filing copy, 48. ' how issued, 44. - indorsement of , 46. special, 46. character in which plaintiff sues, 47. name of party issuing, 47. for Us pendens, 44, 49. issue of writ, 48. notice to be served in lieu of, 56. renewixl of, 50. service of, on solicitor, 52. defendant, 53. substituted, 54. ^ **. INDEX. 307 WRIT OF SUMMONS— ^Con