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pursuance or under the authority thereof ;

19. " Lunatic *' includes an idiot or ether person of un-
sound mind.

20. "Execution creditor" includes an assignee of the
execution creditor. N.W.T., c. 21, s. 2.



** Person."
" Clerk."

"Sheriflf."



' Pleading.'



"Judgment.'
"Order."

" Affidavit,"
"Oath."

"Rule of
court."



'Lunatic'



" Execution
creditor."



JUBISDICTION.



Jurisdiction.



Practice and
procedure.



Entry and
trial of suits,
in what
district.



8. The jurisdiction of the Territorial Court of the Yukon
Territory shall be exercised so far as regards procedure and
practice in the manner provided by this Ordinance and the
rules of Court, and where no special provision is contained
in this Ordinance or in the said rules it shall be exercised as
nearly as may be as in the Supreme Court of Judicature in
England as it existed on the first day of January, 1898. N.
W.T., c. 21, s. 3.

4. If there is a district of a deputy clerk established by
Ordinance, suits in which the cause of action arose or the
defendant resides in such deputy clerk's district shall be
entered in theofijce of the deputy clerk, and suits in which
the cause of action arose or the defendant resides in the



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1902 JUDiCATUBK Cap. lY 187

remaining portion of the Territory shall be entered in the
office of the clerk of the court, and if in any suit the cause
of action arose in the deputy clerk's district and the defend-
ant resides in the other portion of the Territory or vice versa,
the suit may be commenced in either the clerk's or deputy
clerk's office. N.W.T., c. 21, s. 4.



5. A jud^e sitting in chambers, if he announces that he Judge in
is sitting in Court, shall have, possess, exercise and enjoy all aiJS^^*^-
the powers and authorities, rights, privileges, immunities ment that
and incidents of the said Court, and any judgment given ^*J!Jf *°
or decision or determination, or rule, order or decree made

by him while sitting as aforesaid in respect of any matter
lawfully brought before him, shall be subject to the provi-
sions in this Ordinance relating to appeal to the Court en
banc. N.W.T., c. 21, s. 6,

6. In every case in which the Court has authority to Court majr
order the execution of a deed of conveyance, transfer or ^©re)^^''^*
assignment of any property, real or personal, the Court may

by order vest such real or personal property in such person
or persons and in such manner and for such estates as would
be done by any such deed, conveyance, assignment or trans-
fer if executed ; and thereupon the order shall have the
same effect as if the legal or other estate or interest in the
property had been actually conveyed by deed or otherwise
for the same estate or interest to the person in whom the
same is so ordered to be vested, or in the case of a chose in
action as if such chose in action had been actually assigned
to such last mentioned person. N.W.T, c. 21, s. 6.

T. The Territorial Court presided over by a single judge Sittings of
for the transaction of the business of the Court may sit and ^^^*
act at any such time and place in the Territory as the
Commissioner appoints. N.W.T., c, 21, s. 7.



RULES OF LAW.

S. In every civil cause or matter commenced in the Terri-
torial Court, law and equity shall be administered by such
Court according to the following rules :

1. If any plaintiff or petitioner claims to be entitled to Equiubie
any equitable estate or right, or to relief upon any equitable ^^eF^^'
ground against any deed, instrument or contract, or against claimed by
any right, title or claim whatsoever asserted by any defend- P^^intiCF.
ant or respondent in such cause or matter, or to any relief
founded upon a legal right, the Court shall give to such
plaintiff or petitioner such relief as would be given by the
High Court of Justice in England in a suit or proceeding
for the same or a like purpose ;



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188



Cap. l":



CONSOLIDATED OBDINANOES



CO.



Equitable
estate, right
or relief
claimed by
defendant.



Counterclaim
and third
parties.



Equitable
rights
appearing
incidentally.



Final

determination
of matters in
controversy. J



Multiplicity
of proceedings
to oe avoided.



2. If anjr defendant claims to be entitled to any equitable
estate or right, or to relief upon any equitable ground against
any deed, instrument or contract, or against any right, title
or claim asserted by any plaintiff or petitioner in such cause
or matter, the said Territorial Court and every judge thereof
shall give to every equitable estate, riffht or ground of
relief so claimed and to every equitable defence so alleged,
such and the same effect by way of defence against the
claim of such plaintifl[ or petitioner as the Hi^h Court of
Justice in England would give if the same or like matters
had been relied on by way of defence in any suit or pro-
ceeding instituted in that Court for the same or like pur-
pose :

8. The said Territorial Court and every judge thereof shall
also have power to grant to any defend ant, in respect to
any equitable estate or right or other matter of equity and
also in respect of any legal estate, right or title clainxed or
asserted by him, all such relief against any plaintiff or peti-
tioner as such defendant has properly claimed by his
pleading ; and also all such relief relating to or connected
with the original subject of the cause or matter, and in like
manner claimed against any other person, whether already a
party to the same cause or matter or not, who has
been duly served with notice in writing of such claim pur-
suant to this Ordinance, or any order of the C/Ourt as might
properly have been granted against such i>erson if he had
been made a defendant to a cause duly instituted by the
same defendant for the like purpose and every person
served with any such notice shall thenceforth be deemed a
party to such cause or matter with the same rights in res-
pect to his defence against such claim as if he had been
duly sued in the ordinary way by such defendant ;

4. The said Court and every judge thereof shall recognize
and take notice of all equitable estates, titles and rights and
all equitable duties and liabilities appearing incidentally in
the course of any cause or matter, in the same manner in
which the High Court of Justice in England would have
recognized and taken notice of the same in any suit or pro-
ceeding duly instituted therein.

5. The Territorial Court in the exercise of its jurisdiction
in every cause or matter pending before it shall have power
to grant, and shall grant either absolutely or on such rea-
sonable terms and conditions as to it shall seem just all
such remedies whatsoever as any of the parties thereto may
appear to be entitled to in respect of any and every legal or
equitable claim properly brought forward by them respec-
tively in such cause or matter ; so that as far as possible all
matters so in controversy between the said parties respecti-
vely may be completely and finally determined and all
multiplicity of legal proceedings concerning any such
matters avoided. N.W.T , c. 21, s. 8.



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1902 JUDICATUBE Cap. VI 189

©• In the case of lunatics and their property and estates, Lunatics,
the jurisdiction of the Court shall, subject to the rules of jurisdiction
Court, include that which in England is conferred upon ^^ ^^^•
the Lord High Chancellor by Commission from the Crown
under the Sign Manual. N.W.T., c. 21, s. 9.

lO. The law to be administered in the Territory as to the
matters next hereinafter mentioned shfJl be as follows :

1. No claim of a cestui que trust against his trustee for any Express trusts
property held on an express trust or in respect of any breach

of such trust shall be held to be barred by any Statute of
Limitations.

2. An estate for life without any impeachment of waste Equitable
shall not confer or be deemed to have conferred upon the ^***®*
tenant for life any legal right to commit waste of the des-
cription known as equitable waste unless an intention to
confer such right shall expressly appear by the instrument
creating such estate.

3. There shall not bo any merger by operation of law only Merger,
of any estate the beneficial interest in which would not be
deemed to be merged or extinguished in equity.

4. A mortgagor entitled for the time being to the posses- ^^'^'^fif*^",
sion or receipt of the rents and profits of any land as to of action"! ^
which no notice of his intention to take possession or to

enter into the receipt of the rents and profits thereof shall
have been given by the mortgagee may sue for such pos-
session, or sue or distrain for the recovery of such rents or
profits or to prevent or recover damages in respect of any
trespass or other wrong relative thereto in his own name
only unless the cause of action arises upon a lease or other
contract made by him jointly with any other person and in
that case he may sue or distrain jointly with such other
person.

5. In case of an assignment of a debt or other chose in Assignment
action, if the debtor, trustee or other person liable in res- ^^^^ ^
pect of such debt or chose in action has had notice that

such assignment is disputed by the assignor or any one ^1^^^*^'°^
claiming under him, or of any other opposing or conflicting *

claims to such debt or chose in action, he shall be entitled ^^^ ^^'
if he thinks fit to call upon the several persons making claim
thereto to interplead concerning the same.

6. Stipulations in contracts as to time or otherwise which stipulations
would not heretofore have been deemed to be or to have be- toSme'^ete.**
come of the essence of such contracts in a Court of Equity,

shall receive in the Territory the same construction and
effect as they would in equity.

7. Part performance of an obligation either before or after Part

a breach thereof when expressly accepted by the creditor in when'^"^*'^^
satisfaction or rendered in pursuance of an agreement for satisfaction.
that purpose though without any new consideration shall
be held to extinguish the obligation.

8. A mandamus or an injunction may be granted or a ^ndwrnu^*^
receiver appointed by an interlocutory order of the Court or



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140



Cap. i":



CONSOLIDATED ORDINANCES



CO.



Injunction.
Receiver.



Damages in
addition to
or instead of
injunction or
specific
performance.



Orders of
court as
against
purchasers.



Rules of
equity to
prevail.



Minors,



judge in all cases in which it appears to the Court or
judge to be just or convenient that such order should be
made and any such order may be made either uncondition-
ally or upon such terms and conditions as the Court or judge
thinks just ; and if an injunction is asked, either before
or at or after the hearing of any cause or matter, to prevent
any threatened or apprdiended waste or trespass such in-
juction may be granted, if the Court or judge thinks fit
whether the person against whom such injunction is sought
is or is not in possession under any claim of title or other-
wise or (if out of possession) does or does not claim a right
to do the act sought to be restrained under any colour of
title and whether the estates claimed by both or by either
of the parties are legal or equitable.

9. In all cases in which the Court has jurisdiction to en-
tertain an application for an injunction against a breach of
any convenant, contract or agreement or against the com-
mission or continuance of any wrongful act or for the spe-
cific performance of any covenant, contract or agreement,
the Court if it thinks fit may award damages to the partv
injured either in addition to or in substitution for such
injunction or specific performance and such damages may be
ascertained in such a manner as the Court directs, or
the Court may grant such other relief as it deems just.

10. An order of the Court under any statutory or other
jurisdiction shall not as against a purchaser whether with
or without notice be invalidated on the ground of want of
jurisdiction or of want of any concurrence, consent, notice
or service.

11. G-enerally in all matters in which there is any conflict
or variance between the rules of Equity and Common Law
with reference to the same matter the rules of Equity shall
prevail.

12. Subject to the provisions of any Act of the Parliament
of Canada and of any Ordinance the laws of evidence which
govern in the administration of civil justice in England
shall obtain in the Courts.

13. Minors may sue for wages in the same way as if of
full age. N.W.T., c. 21, s. 10.



clerk's duties.

Clerk's duties. 11. The duties of the clerk shall be :
Hours of 1. To attend at his office and keep the same open between

office. |. jj^ hours of ten in the forenoon and four in the afternoon on

all days except Sundays and holidays and except on Satur-
days and during vacation when the same shall be closed at
one o'clock in the afternoon.
Official dutiee. 2. On application of any person by himself or his agent,
(a) To receive all complaints ana other papers required
to be liled in Court ;



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1902 JUDICATURE Cap. VI 141

(b) To issue all writs of summons, warrants, precepts,
writs of execution and other documents rendered
necessary or requisite for the effectual disposition
of such matters ;

(c) Tax costs, enter judgments and record all judg-
ments and orders pronounced, given and made ;

8. To keep an account of all fines, fees and moneys Aooounts
payable or paid into Court, entering all such amounts in pro- ^^^ ^^^ookB.
per approved books in which shall be entered regularly
under separate headings all the proceedings taken in any
suit, all moneys received and paid out and the persons to
whom and by whom the same have been paid which books
shall be accessible at all times to suitors and the public ;

4. To attend all sittings of the judge in chambers unless Sitting in
his attendance is dispensed with by the judge ; and chambers.

5. To do and perform all such other acts and duties as Duties
are [necessary for the due administration of civil justice generaUy.
in the Territory. N.W.T., c, 21, s. 11.

IS. In the absence of the clerk the Court may appoint a Absence
suitable person to perform the duties prescribed in the pre- ^^ ^^®'"^
ceeding section. N.W.T., c. 21. s. 12.

IS. All books, papers, documents and moneys in the On vacancy,
possession of the clerk by virtue of ot appertaining to his Appointment
office *shall upon his resignation, removal or death imme- ^'^ ®"^'^^"*®'
diately become the property of such person as the court Disposition
appoints as clerk pending the appointment of a new d!)^rat8

clerk of the court. N.W.T., C. 21, S. 13. and moneys.

PRACTICE AND PROCEDURE

14. The practice and procedure in the Territorial Court Practice and
of the Territory shall be regulated by this Ordinance and the p«>c«d"re-
rules of Court ; but the judges of the Territorial Court or a
majority of them shall have power to frame and promulgate

such additional rules of Court not inconsistent with this
Ordinance as they from time to time deem necessary
or expedient. N.W.T., c. 21, s. 20.

15. Subject to the provisions of this Ordinance and the Rules of court.
rules of Court the practice and procedure existing in the
Supreme Court of Judicature in England on the first day
January, 1898, shall as nearly as possible be followed in all

causes, matters and proceedings. N.W.T., c. 21, s. 21.

16. The rules of Court already made and promulgated Existing rules
by the judges of the Territorial Court are hereby continued continued.
in force until repealed, altered or amended by them. N.

W.T., c. 21, s. 22.



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142



Cap. 17



CONSOLIDATED OBDINANCES



0.0



RULES OF COURT.



[TJie division of these rules into orders and headings is not to
affect the interpretation thereof.]



Part I.

General Practice and Procedure.



OEDER I.



Commence-
ment
of action.



Praecipe.



Statement
of claim.



FOBM AND COMMENCEMENT OF ACTION.

1. Every action except as otherwise provided shall be
commenced by writ of summons in form A in the schedule
hereto which writ shall be issued by the clerk upon re-
ceiving from the plaintiff or his BoMciior a prcecipe therefor
in which shall be set forth

(a.) The names of the parties to the action ; and

(6.) Their places of residence temporary or otherwise;

and
(c.) The residence of the plaintiff's solicitor if such writ

is issued by a solicitor. N W.T., c. 21, R. 1.

2. At the time of the issue of the writ the plaintiff or his
solicitor shall leave with the clerk two copies of the plain-
tiffs statement of claim and of the reliefer remedy to which
he claims to be entitled ; one of such copies shall be
attached to such writ by the clerk and the other shall be
filed by him in his office and a copy of such statement of
claim shall be attached to each copy of such writ required
for service. N W.T., c. 21, R. 2.



ORDEB II.

WBIT OP SUMMONa

I. — OeneraL

Write to bo 3. Every writ of summons and also (unless otherwise pro-
* vided) every other writ shall bear the date of the day on

which the same is issued.



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1902 JUDICATURE Cap. 1*7 148

(2) If the defendant resides within a distance of ten miles Time for
from the clerk's office whence the writ of summons issued, ^*^""^^^^^*-
the time stated in such writ for the appearance of the de-
fendant shall be eight days from ^the service of the writ

upon him.

(3) If the defendant resides at a distance of more than ten
miles from such office, the time stated in such writ for such
appearance shall be one additional day for every additional
ten miles from such office.

Provided that the judge may by order shorten the time May be
for the return of such writ. N.W\T., c. 21, R. 8. shortened.

II. — Concurrent Writ.

4. The plaintiflf in any action may at the time of or at any writ
time within twelve months after the issuing of the original ^f^^^^^ ^
writ of summons issue one or more concurrent writ or writs °"^*°**
each concurrent writ to show date of the original writ and

be marked with the word "concurrent" in the margin
and the date of issuing the concurrent writ :

Provided always that such concurrent writ or writs shall
only be in force for the period during which the original
writ in such action is in force.

(2.) When after writ is issued it is made to appear that Concurrent
the defendant or one of several defendants is without the ^nt for
Territory on application as is in these rules hereafter provi- jIhs.
ded for service out of the jurisdiction the judge may order
a concurrent writ to issue. N.W.T., c. 21, R. 5.

III. — Renewal

5. No original writ of summons shall be in force for more Duration
than twelve months from the date thereof including the ^^ ^^*^-
day of such date; but if any defendant therein named

has not been served therewith the plaintiff may before
the expiration of the twelve months apply to the judge Application
for leave to renew the writ and the judge if satisfied for renewal.
that reasonable efforts have been made to serve such defen-
dant or for other good reason may order that the original or
concurrent writ of summons (or both) be renewed for six
months from the date of such renewal inclusive and so from
time to time during the currency of the renewed writ ; and
the writ shall in such case be renewed by being marked with
the day, month and year of such renewal and shall be so
marked by the clerk upon the plaintiff or his solicitor filing
the judge's order and presenting to him the said writ ; and
a writ of summons so renewed shall remain in force and be
available to prevent the operation of any statute whereby the
time for the commencement of the action mav be limited
and for all other purposes from the date of the issuing
of the original writ of summons. [E. 45.] N.W.T. c. 21 R, 6.



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144 Cap. 17 CONSOLIDATED. ORDINANCES CO.

Evidence of 6. The production of a writ of summons purporting to

wmmence^** have been renewed in manner aforesaid shall be sufficient

ment of action evidence of the writ having been so renewed and of the

commencement of the action as of the first date of such

renewed writ for all purposes. [E. 46.] N.W.T. c. 21. B. 7.

lY.—Lo$t Writ.

Cony may be 7. Where a Writ of which the production is necessary

sealed. j^^ been lost the judce upon being satisfied of the loss and

of the correctness of a copy thereof may order that such

copy shall be sealed and used in lieu of the original writ.

[E. 47.] N.W.T. c. 22, R. 8.

V. — Indorsement by Solicitor.

Indorsement 8. The soUcitor of a plaiutifi* suing by a solicitor shall

on writ by indorse on the writ the address of the plaintiff and also his

so icitor. QYTn name or firm and place of business and also, if his place

of business is more than three miles from the clerk's

office whence the writ issues, another proper place within

such three miles to be called his " address for service,"

where statements of defence, notices, summonses, orders and

other documents, proceedings and written communications

in the suit may be left for him ; and when a plaintiff sues

Piaintiflf suing in pcrsou he shall indorse on the writ his occupation and

in person. place of residence and if his residence is more than three

miles from the clerk's office as aforesaid another proper

place within such three miles to be called his *' address for

service," where statements of defence, notices, summonses,

orders and other documents, proceedings and written com-

Address for muuicatious in the suit may be left K)r him. In case of

service. the omissiou to supply an address for service as aforesaid

all papers requiring service may be posted in the clerk's

Omission to officc and in such case be deemed good service. [E. ll» and

supply. 20. 1 N.W T. c. 21, R. 9.

Disclosure 9. Every solicitor whose name is signed to or indorsed on

w^o^^^'eis ^^y ^^'^ ^^ summons shall on demand in writing made by
indorsed. or ou behalf of any defendant who has been served there-
with or has appeard thereto declare forthwith whether such
writ has been issued by him or with his authority or privity
and on declaration by such solicitor that the writ was not
issued by him or with his authority or privity fdl proceed-
ings upon the same shall be stayed and no further proceed-
ings shall be taken thereupon without leave of the judge.
[E. 42.] N.W.T. c. 21, R. 10.

VI. — Change of Solicitor.

Notice of 10. A party suing or defending by a solicitor may change

^i^^r°^ his solicitor in any cause or matter without an order for

^ *^^ ^' that purpose upon notice of such change being filed in the

clerk'p office in which the cause or matter is proceeding ;



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1902 ' JUDICATURE Cap. 17 145

but until such notice is filed and a copy thereof served the
former solicitor shall be considered the solicitor of the
party until the final conclusion of the cause or matter.
[E. 44.] N.W.T. c. 21, R. 11.

11. "Where a party after having sued or appeared in per- Employment
son has given notice in writing to the opposite party or his ^tl^^'^^^*"
solicitor through a solicitor that such solicitor is author- proceeding
ized to act in the cause or matter on his behalf all writs, ^" p®"^"-
notices, pleadings, summonses, orders, warrants and other
documents, proceedings and written commuications which
ought to be delivered to or served upon the party on whose
behalf the notice is given shall thereafter be delivered to or
served upon such solicitor. N.VV.T. c. 21, R 12.



ORDER III.

SERVICE (»F WRIT OF SUMMONS,

I — General.

12. Service of a writ of sumpions may be made by the Service
sheriff, his deputy or bailiff or by any literate person other ^^ ^*^^-
than a plaintiff but except by order of a judge no fees for Fees,
service shall in such latter case be allowed. N.W.T.

c. 21, R. 13.

13. Service of writ of summons shall be effected by copy Manner of

as follows : service.

1. By personal service anywhere in the Territory ; Personal.

2. If the defendant is out of the Territory but has on

an agent, managing clerk or other representative resident representative
and carrying on his business within the same service of the defendant.
writ of summons may be made on such agent, managing
clerk or other representative ;

3. Every writ of summons issued ag .inst a corporation Corporation.



Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 19 of 77)