Yukon Territory.

The consolidated ordinances of the Yukon Territory, 1902,: being a ... online

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and all other proceedings in an action against a corporation

may be served on the president or other head oflBcer or on
the cashier, manager, treasurer, secretary, clerk, agent or
other representative, by whatsoever name or title he is
known, of such corporation or of any branch or agency
thereof in the Territory ; and every person who within the
said Territory transacts or carries on any business of or for
any corporation whose chief place of business is without
the said Territory shall for the purpose of being served with
a writ of summons or any other proceedings as aforesaid in
an action against or at the suit of such corporation be
deemed the agent thereof ;

4. Service of a writ of summons in an action to recover Recovery
possession of land may, in case of vacant possession, ^^ ^*"'^'
when it cannot be otherwise effected, by leave of the judge

10— Y. o.



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146 Cap. liT CONSOLIDATED ORDINANCES ' C O.

Vacant be made by posting a copy of the writ and statement of

iwssesBion. (jjaim upon the door of the dwelling house or other conspi-
cuous part of the premises ; [E. 56.j
Husband 5. When husband and wife are both defendants to the

and wife. actiou they shall both be served unless the judge otherwise

orders ;
Infant 6. When an infant is a defendant to the action service

defendant. ^^^ |^jg father or guardiau or if none then upon the person
with whom the infant resides or under whose care he is
and the public administrator shall unless the judge other-
wise orders be deemed good service on the infant :

I'rovided that the judge may order that service made or

to be made on the infant shall be deemed good service ;

Lunatic. iT. When a lunatic or person of unsound mind is a

defendant to the action service may be made on the public

administrator or as the judge orders. N.W.T., c. 21, R. 14.

II — Substitutional Service.

Substitutional 1 4. In any case if it be made to appear to a judge that
service. ^j^^ plaintiff is from any cause unable to effect prompt per-

sonal service the judge may make such order for substituted
or other service by advertisement or otherwise as is just.
N.W.T., c. 21, R. 16.
orif^inai writ 15. In auv casc if it be made to appear to a judge that
ofwpy-"^*^*^ the original writ has been served upon the defendant
instead cf a copy he may order that such service be good
service and may in such order dispense with the produc-
tion of such original. N.W.T.. c. 21, R. 16.

III. — Indorsement of Service Unnecessary.

indoreement 16. It shall uot be uecessary for the person serving a
un^^^^ry. '^^^^ ^^ summous to iudorse on the writ the day of the week
and month of such service but the writ and statement of
claim shall each be marked as an exhibit to the affidavit of
service by the person administering the oath. N.W.T., c. 21,
R. 17



ORDER IV.

SERVICE OUT OF THE JURIsDlCTI N.

Service out of 17. Servicc of a writ of summons on a defendant out of
whl^aiiowed. *^^ Territory may be allowed by a judge whenever —

1. The whole subject matter of the action is land situate
within the Territory (with or without rents or profits) ; or

2. Any act, deed, will, contract, obligation or liability
affecting land or herditaments situate within the Territory
is sought to be construed, rectified, set aside or enforced in
the acTion ; or



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1902 JUDICATUBE Cap. 17 147

3. Any relief is sought against any person domiciled or
ordinarily resident within the jurisdiction ; or

4. The action is for the administration of the estate of
any deceased person who at the time of his death was
domiciled within the Territory or for the execution (as to
property the whole or some part of which is within the
Territory) of the trusts of any written instrument of which
the* person to be served is a trustee which ought to be ex-
ecuted according to the laws of the Territory ; or

5. The action is for the recovery of any debt contracted
within the jurisdiction or is founded on any breach or
alleged breach wiihin the jurisdiction of any contract
wherever made which according to the terms thereof ought
to be performed within such jurisdiction or is founded on a
tort committed within the jurisdiction ; or

6. An injunction is sought as to anything to be done
within the jurisdiction or any nuisance within the jurisdic-
tion is sought to be prevented or removed whether dam-
ages are or are not also sought in respect thereof ; or

7. Any person out of the jurisdiction is a necessary or
proper party to an action properly brought against some
other person duly served within the jurisdiction ; or

8. The action is upon a foreign judgment and it is
proved to the satisfaction of a judge that the defendant has
assets within the Yukon Territory. N.W.T., c. 21, R. 18.

18. Every application for leave to serve such writ of Apoiication
summons on a defendant out of the jurisdiction shall '^'^^^^®-
be before writ issued except as hereinbefore provided

for and supported by affidavit stating that in the be-
lief of the deponent the plaintiff has a good cause
of action and showing in what place or country
the defendant is or probably may be found and the
grounds on which the application is made ; but no such-
leave shall be granted unless it shall be made sufficiently
to appear to the jjidge that the case is a proper one for
service out of the Territory aforesaid. N.W.T., c. 21, R. 19,

19. Any order giving leave to effect such service shall Time for
limit a time after such service within which such defendant appearance-
may enter an appearance, such time to depend on the place

or country where or within which the writ is to be served.
[E. 68.] N.W.T., c. 21, R. 20.

20. In any such case if it is made to appear to a judge Substitutional
that service as ordered out of the jurisdiction cannot be ^^^^•
made and that reasonable efforts (showing them) have been

made to effect such service the judge may make an order
for substitutional service by advertisement or otherwise as
seems proper. N.W.T., c. 21, R. 21.

21. In any case if it is made to appear to the jndge that Subetitutionai
the whereabouts of the defendant is unknown after all ^/fenla^tf "^

lOj — ^Y. o.

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148 Cap. 17 CONSOLIDATED ORDINANCES C. O.

whereabouts reasonable efforts have been exhausted to ascertain them
unknown. ^j^^ judge may in any action affecting land in the Ter-
ritory or in any other case in which he deems it proper
dispense with any order for service out of the jurisdiction
and make such order for service of the writ by advertise-
ment or otherwise as he deems proper subject to such
terms and conditions as may be necessary to protect the
defendant from injustice ; but judgment shall not be entered
Judgment by on default of appearance in any such case until the judge
default, jg satisfied by such proof as he requires of the justice

Proof of claim of the claim. N.W.T., o. 21, R. 22.



ORDER V.

SERVICE OF OTHER PROCEEDINGS.

Service of 22. "Where personal service of any notice, pleading, order,

pf^S^, etc. s^ninaons, warrant or other document, proceediug or writ-
ten communication is required the service shall be effected
as nearly as may be in the manner prescribed for the per-
sonal service of a writ of summons. N.W.T., c. 21, R. 28.

Substitutional 23. Where personal service of any notice, pleading, sum-
notice8,^etc. moDS, Order, warrant or other document, proceeding or
written communication is required and it is made to appear
to the court or a judge that prompt personal service cannot
be effected the court or the judge may make such order for
substituted or other service or for the substitution for
service of notice by letter, public advertisement or other-
wise a« is just. N.W.T., c. 21, R. 24.

Admissions 24. Admissious and acceptances of service of papers and
ouTO^iic^rs. documents purporting to be signed by or on behalf of a
solicitor need not be verified by affidavit but shall be
accepted as prima facie proof N.W.T., c. 21, R. 25.



ORDER VI.

PARTIES.

I. — General,

Plaintiffs 25. All persous in whom the right to any relief claimed

j^otntiy!^ is alleged to exist may be joined as plaintiffs whether
severally or in jointly. Severally or in the alternative ; and judgment may

thealt^^rnative. l-tl pxUi'T-xr

be given for such one or more of the plaintiffs as are
found to be entitled to relief for such relief as he or they
are entitled to without any amendment, but the defend-



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1902 JUDICATURE Cap. 11 149

ant though unsuccessful shall be entitled to his costs
occasioned by so joining any person who is not found
entitled to relief unless the judge in disposing of the costs
otherwise directs. (E. 123.] N.W.T , c. 21, R. 26.

26. Where an action has been commenced in the name Wroncr person
of the wrong person as plaintiff or where it is doubtful pfai^,^ff*
whether it has been commenced in the name of the right
plaintiff the judge may if satisfied that it has been so com-
menced through a bona fide mistake and that it is neces-
sary for the determination of the real matter in dispute so

to do order any other person to be substituted or added as
plaintiff upon such terms as are just. [E. 124.] N.W.T., c.
21, K. 27.

27. Where in any action any person has been improperly Misjomder of
or unnecessarily joined as a co-plaintiff and a defendant has ^ ^*"* '
set up a counter-claim or set off he may obtain the benefit counterclaim.
thereof by establishing his set off or counterclaim as against

the parties other than the co-plaintiff so joined notwith-
standing the misjoinder of such plaintiff or any proceeding
consequent thereon. [E. 125.] N.W.T , c. 21, R 28.

28. All persons may be joined as defendants against Joinder of
whom the right to any relief is alleged to exist whether ^^f^^^^'^^*-
jointly, severally or in the alternative ; and judgment may

be given against such one or more of the defendants as are
found to be liable according to their respective liabilities
without any amendment. [E. 126 ] N.W.T., c 21, R. 29.

29. It shall not be necessary for every defendant to be ^^"^"u_
interested as to all the relief prayed for or as to every cause Tnter^ted in
of action included in any proceedings against him ; but the ^}^-^^^^
judge may make such order as appears just to prevent *°^
any defendant from being embarrassed or put to expense by

being required to attend any proceedings in which he
has no interest. fE. 127.] N.W.T., c. 21, R. 30.

30. The plaintiff may at his option join as parties to the Joinder of
same action all or any of the persons severally or jointly i^^fiy
and severally liable on any one contract including parties to liable.
bills of exchange and promissory notes. [E. 128.] N.W.T.,

c. 21, R. 81.

31. Where the plaintiff is in doubt as to the person from Piaintiflf in
whom he is entitled to redress he may by leave of the judge ^J^onTiabie
on ex parte application join two or more defendants to the

intent that the question as to which if any of the defend-
ants is liable -and to what extent may be determined as
between all parties. [E. 129.] N.W.T., c. 21, R. 32.



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150



Cap. 17



CONSOLIDATED ORDINANCES



CO.



Tnistees, etc.
may sue and
be sued as
representa-
tives.



32. Trustees, executors and administrators may sue and
be sued on behalf of or as representing the property or
estate of which they are trustees or representatives without
joining any of the persons beneficially interested in the
trust or estate and shall be considered as representing such
persons ; but the judge may at any stage of the proceedings
order any such persons to be made parties either in addition
to or in lieu of the previously existing parties.

(2) If the plaintiff sues or the defendant is sued in a
representative capacity the statement of claim shall show
in what capacity the plaintiff or defendant sues or is sued
as the case may be. [E. 130.] N.W.T., c. 21, R. 88.



Suitordefence 33. Where there are numerous persons having the same

for c?^*^^" interest in one cause or matter one or more of such persons

may sue or be sued or may be authorised by the judge to

defend in such cause or matter on behalf or for the benefit of

all persons so interested. [E. 131.] N.W.T., c. 21, R. 34.



Misjoinder or
nonjoinder
not to defeat
cause.



Striking out
or adding
parties.



34. No cause or matter shall be defeated by reason of the
misjoinder or nonjoinder of parties and the judge may in
every cause or matter deal with the matter in controversy
so far as regards the rights and interests of the parties
actually before him. The judge may at any stage of the
proceedings either upon or without the application of
either party and on such terms as appear just order that
the names of any parties improperly joined whether as
plaintiffs or defendants be struck out and that the names of
any parties whether plaintiffs or defendants who ought to
have been joined or whose presence in the cause is
necessary in order to enable the judge to effectually and
completely adjudicate upon and settle all the questions
involved in the cause or matter be added. Every party
whose name is so added as a defendant shall be served
with a summons or notice in such manner as the judge
may order and the proceedings as against such party shall
be deemed to have begun only on the service of such sum-
mons or notice. [E. 133.] N.W.T., c. 21, E. 35.

Applications ^5. Any application to add or to strike out or substitute

an to parties, a plaintiff or defendant may be made to the judge at any

time before trial supported by affidavit or at the trial of the

action in a summary manner. [E. 134.] N.'W.T.,c. 21, R. 36.

II. — Partners.

86. Any two or more persons claiming or being liable as
co-partners and carrying on business within the jurisdiction
may sue or be sued in the name of the respective firms if
any of which such persons were co-partners, at the time of
the accruing of the cause of action ; and any party to an
action may in such case apply by summons to a judge for



Suits in
firm name.



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1902 JUDICATURE Cap. 1*7 161

a statement of the names and addresses of the persons who Disclosure
were at the time of the accruing of the canse of action ^1^?^ ^^
co-partners in any such firm to be furnished in such man-
ner and verified on oath or otherwise as the judge directs.
(2) Any person carrying on business in the name of a
firm apparently consisting of more than one person may be
sued in the name of such firm. [E. 187, 648a.l N.W.T.,
c. 21, K. 87.

87. When a writ is sued out by partners in the name of Plaintiff firm,
their firm the plainlifl's or their solicitors shall on demand t^^tt''
in writing by or on behalf of any defendant forthwith persons
declare in writing the names and places of residence of all ^"^p^'"^^-
the persons constituting the firm on whose behalf the
action is brought ; and if the plaintiffs or their solicitors Default in
fail to comply with such demand all proceedings in furnishing.
the action may upon an application for that purpose be
stayed upon such terms as the Court or a judge directs ;
and when the names of the partners are so declared the Effect when
action shall proceed in the same manner and the same con- furnished.
sequences in all respects shall follow as if they had been
named as the plaintiffs in the writ ; but all the proceedings
shall nevertheless continue in the name of thefirm. [E. 648fr.)
N.W.T., c. 21, E. 88.

38. Where persons are sued as partners in the name of Service on
their firm the writ shall be served either upon any one or p^^^^^^s*^!!*-
more of the partners or at the principal place within the
jurisdiction of the business of the partnership upon any
person having at the time of service the control or manage-
ment of the partnership business there ; and subject to these
rules such service shall be deemed good service upon the
firm so sued whether any of the members thereof are out
of the jurisdiction or not and no leave to issue a writ against
them shall be necessary.

Provided that in the case of a co-partnership which has Proviso when
been dissolved to the knowledge of the plaintiff" before the dissoi^c^d.
commencement of the action the writ of summons shall be
served upon every person within the jurisdiction sought to
be made liable. |E. 648c.l N.W.T., c. 21, R. 89.

89. When a writ is issued against a firm and is served as Notice of
directed every person upon whom it is served shall be ^^^^^^J^n
informed by notice in writing given at the time of such served,
service whether he is served as a partner or as a person
having control or management of the partnership business
or in both characters. In default of such notice the person
served shall be deemed to be served as a paitner. [E. MSd.]
N.W.T , c. 21, E 40.

40. Where persons are sued as partners in the name of Appearance
their firm they shall appear individually in their own ^y partners.



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162 Cap. 11 CONSOLIDATED ORDINANCES C. O.

names ; but all subsequent proceedings shall nevertheless
continue in the name of the firm. [E. 648e.] N.W.T.,
c. 21, E. 41.

Writ 41 Where a writ is served upon a person having the con-

repr^ntative trol or management of the partnership business no appear-
Appearance. auce by him shall be necessary unless he is a member of the
firm sued. [E. 648/.] N.W.T., c. 21, R. 42.

Appearance 42. Any persou served as a partner may enter an appear-
o"^J!^J^^* ance under protest denying that he is a partner; but such
served as appearance shall uot preclude the plaintiff from otherwise
partner. serving the firm and obtaining judgment against the firm

in default of appearance if no partner has entered an appear-
ance in the ordinary form. [E 648g-.] N.W.T., c. 21, R. 43.

III. — Administration and Execution of Trusts,

Determina- 43 In any case in which the right of an heir-at-law or
unascertained the uext of kin or a class depends upon the construction
heirs at law, which the Oourt or a judge puts upon an instrument and
orciMs. ^^ it shall not be known or shall be difficult to ascertain
^ ho' is or are such heir-at-law or next of kin or class and
the Court or judge considers that in order to save expense
or for some other reason it will be convenient to have the
questions of construction determined before such heir-at-
law, next of kin or class have been ascertained by means
of inquiry or otherwise the Court or judge shall appoint
the public administrator to represent such heir-at-law next
of kin or class and the judgment of the Court or judge in
the presence of the public administrator shall be binding
upon the heir-at-law, next of kin or class so represented.
fE. 154.1 N.W.T., c. 21, R. 44.

Adminis 44. Any rcsiduary legatee or next of kin entitled to a judg-

orr^'iduLifv^^^ ment or order for the administration of the personal estate
leffatee and of a deceased person may have the same without serving

the remaining residuary legatees or next of kin. [E. 165.]

N.W.T., c. 21, R. 45.



next of kin.



Pei-sons 45. Any legatee interested in a legacy charged upon land

JlJ^e^^^s*^ *" and any person interested in the proceeds of land directed
of land. to be sold and who is entitled to a judgment or order

for the administration of the estate of a deceased person
may have the same without serving any other legatee or
person interested in the proceeds of the estate. [E. 156.1
N.W.T., c. 21, R. 46.

Re^8Kiuary 46. Any residuary devisee or heir entitled to the like judg-

or heh?. mcut or Order may have the same without serving any co-
residuary devisee or co-heir. [E. 157.] N.W.T., c. 21, R. 47.



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1902 JUDICATURE Cap. lY 168

47. Any one of several cestuis qui trustent under any deed C'CiiuU qui
or instrument entitled to a judgment or order for the execu- ''^^^^•
tion of the trusts of the deed or instrument may have the

same without serving any other cestui qui trust. ]E. 168.]
N.W.T., c. 21, R. 48.

48. In all cases of actions for the prevention of waste or Protection of
otherwise - for the protection of property one person may Property.
sue on behalf of himself and all persons having the same
interest. [E. 169.] N.W.T., c. 21, R. 49.

49. Any executor, administrator or trustee entitled thereto Executor,
may have a judgment or order against any one legatee, next wimimstrator,
of kin or cestui qui trust for the administration of the estate '^

or the execution of the trusts. [E. 160.] N.W.T., c. 21, R. 60

60. The Court or a judge may require any person to be Conduct of
made a party to any action or proceeding and may give the proc«®d"ifi^-
conduct of the action or proceeding to such person as he
thinks fit and may make such order in any particular case

as he thinks just for placing the defendant on the record
on the same footing in regard to costs as other parties having Coets.
a common interest with him in the matters in question.
[E. 161.] N.W.T., c. 21, R. 51.

61. Wherever in any action for the administration of the Judgments
estate of a deceased person or the execution of the trusts of ^^ orders.
any deed or instrument or for the partition or sale of any
hereditaments a judgment or an order has been pronounced

or made affecting the rights or interests of persons not par-
ties to the action the Court or judge may direct that any Service on
persons interested in the estate or under the trusts or in p^Jti^g^but*
the lands shall be served with notice of the judgment or mtereated.
order ; and after such notice such persons shall be bound by
the proceedings in the same manner as if they had originally
been made parties and shall be at liberty to attend the
proceedings under the judgment or order. Any person so
served may within one month after such service apply to
the Court or judge to discharge, vary or add to the judg-
ment or order. [E. 162.] N.W.T., c. 21, R. 52.

62. It shall not be necessary for any person served with Appearance
notice of any judgment or order to obtain an order for liberty ^y-

to attend the proceedings under such judgment or order but
such person shall be at liberty to attend the proceedings
upon entering an appearance in the clerk's office in the
same manner and subject to the same provisions as a defen-
dant entering an appearance. [E. 163.] N.W.T., c. 21, R. 53.

63. A memorandum of the service upon any person of Entry to
notice of the judgment or order in any action under the next i>e made
bnt one preceding section shall be entered in the clerk's ^ ^^""^^



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164



Cap. 17



CONSOLIDATED ORDINANCES



O.O.



office upon due proof by affidavit of such service and notice
of a judgment or order served pursuant to such rule shall

indoisement be entitled in the action and there shall be indorsed thereon

on notice of g, memorandum in the following form :

judgrment. Take notice that from the time of the service of this

notice you (or as the case map be, the infant or person
of unsound mind) will be bound by the proceedings in
the above cause in the same manner as if you {or the
said infant or person of unsound mind) had been origin-
ally made a party and that you (or the said infant or
person of unsound mind) may on entering an appear-
ance at the clerk's office attend the proceedings
under the w^ithin mentioned judgment (or order) and
that you {or the said infant or person of unsound mind)
may within one month after the service of this notice
apply to the Court to discharge, vary or add to the
judgment (or order.) [E. 164 and 165.] N.W.T., c.
21, R. 54.

Service on 54. Notice of a judgment or order on an infant or person

Si^iiity.'^^^ of unsound mind not so found by inquisition shall be
served in the same manner as a writ of summons in an ac-
tion. [E. 166.] N.W.T., c. 21, R. 55.



Execution of
trusts or will.



Parties.



55. In any cause or matter to execute the trusts of a will
it shall not be necessary to make the heir-at-law a party but
the plaintiff shall be at liberty to make the heir-at-law a
party where he desires to have the will established against
him. [E. 167] N.W.T., c. 21, R. 56.



Where no 66. If iu any cause, matter or other proceeding it

representative fi^PP^^^s to the Court or a judgc that any deceased person who
Court may was interested in the matter in question has no legal per-
o^apiK^nT^^ sonal representativt* the Court or judge may proceed in the
ivpre-sentative abseuce of any person representing the estate of the de-



Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 20 of 77)