Yukon Territory.

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

. (page 23 of 77)
Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 23 of 77)
Font size
QR-code for this ebook


ment of defence and before the time limited for his doing
so has expired may be raised by the defendant in his state-
ment of defence either alone or together with other grounds
of defence ; and if after a statement of defence has been
delivered any ground of defence arises to any set-oflF or
counterclaim alleged therein by the defendant it may be
raised by the plaintiff in his reply either alone or together
with any other ground of reply. [E. 282] N.W.T., c. 21,
R. 146.



Ground of 146. Where any ground of defence arises after the defend-

repfy THsen ^^^ ^*® delivered his statement of defence or after the time
after jiieading. limited for his doiug so has expired the defendant may and
where any ground of defence to any set-off or counter-claim
arises after reply or after the time limited for delivering a
reply has expired the plaintiff may within eight days alter
such ground of defence has arisen or at any subsequent time
by leave of the Court or judge deliver a further defence or
further reply as the case may be setting forth the same.
[E. 283.J N.W.T., c. 21, R. 147.

Confession nf 147, Whcuever any defendant in his statement of defence

^ ^"^' or in any further statement of defence as mentioned in the

next preceding rule alleges any ground of defence which



Further
answer may
be Rerved.



Digitized by



Google



1902 JUDICATURK Cap. 17 IW

has arisen after the commencement of the action the plaintiflF
may delirer a confession of such defence and may thereupon
unless otherwise ordered by the judge have judgment for
his costs up to the time such defence was pleaded. [E.
284.] N.W.T., c. 21, E. 148.



ORDER XIV.

RAISING POINTS OF LAW, ETC.

148. Any party shall be entitled to raise by his pleading Points of law
any point of law and any point so raised shall be disposed ^^^^^
of by the judge who tries the cause at or after the trial pro

vided that by consent of the parties or by order of the judge Di8po«ai of.
on the application of either party the same may be set down
for hearing and disposed of at any time before the trial.
[E. 286.] N.W.T.,;c. 21, R. 148.

149. If in the opinion of the Court cr judge the decision Judgment
of such point of law substantially disposes of the whole ^i^^ddispoBos
action or of any distinct cause of action, ground of defence, ^jf action, etc.
set-oflF, counter-claim or reply therein the Court or judge

may thereupon dismiss the^ action or make such order
therein as is just. [E 287.] o N.W.T., c 21, R. 150.*

150. The Court or judge may order any pleading to be Frivoiouaor
struck out on the ground that it discloses no reasonable ^*^^^*^"^
cause of action or answer and in any such case or in case of

the action or defence being shown by tbe pleadings to be pleading
frivolous or vexatious the Court or judge may order t^® ^^*;^^ j"^ ^^^
action to be stayed or dismissed or judgment to be entered ^"^^^
accordingly as is just. [E. 288.] N.W.T., c. 21, R. 151.



or answer.



151. No action or proceeding shall be open toobjection on Declaratory
the ground that a merely declaratory judgment or order is J"<^?>^^n^-
sought thereby and the Court or judge may make binding
declarations of right whether any consequential relief is or
could be claimed or not. [E. 289.] iN.W.T., c. 21, R. 152.



ORDER XV.

REPLY OR CLOSE OF PLEADINGS.



152. A plaintiff shall delivei his reply if any within Time'.for
eight days after the defence or the last of the defences have ^P^y-
been delivered unless the time shall be extended by the
Court or judge. [E. 276.] N.W.T., c. 21, R. 153.



Digitized by



Google



il4



Cap. 1*7



CONSOLIDATED ORDINANCES



0. 0.



Pleading
subseauent
to reply.



Time for.



Default in
reply or
subsequent
pleading.

Eflfect of.



Close of
pleadings.



168. No pleading subsequent to reply other than a join-
der of issue shall be pleaded without leave of the Court or
a judge and then shall be pleaded only upon such terms as
the Court orjudge thinks fit. [K211.] N.W.T., c. 21, R. 154.

164/ Subject to the next preceding rule every pleading
subsequent to reply shall be delivered within eight days
after tne delivery of the previous pleading unless the time
is extended by the Court or judge. N.W.T., c, 21, R. 166.

166. If the plaintiflF does not deliver a reply or any party
does not deliver any subsequent pleading within the period
allowed for that puri>ose the pleadings shall be deemed to
be closed at the expiration of that period and all the material
statements of fact in the pleading last delivered shall be
deemed to have been denied and .put in issue. [E. 806.]
N.W.T., c. 21, R. 156-

166. As soon as any party has joined issue upon the pre-
ceding pleading of the opposite party simply without add-
ing any further or other pleading thereto or has made
default as mentioned in the next preceding rule the plead-
ings between such parties shall be deemed to be closed.
[E. 280.] N.W.T., c. 21, R. 167.



ORDER XVI.



DEFAULT OF PLEADING.



Claim for
debt.



Default of one
or more
defendants.



Claim,
detinue and
damages.



167. If the plaintiffs claim is only for a debt or liqui-
dated demand and the defendant does not within the time
allowed for that purpose deliver a defence the plaintiff
may at the expiration of such time enter final judgment
for the amount claimed with costs. [E. 296.] N.W.T., c.
21, R. 168.

168. "When in any such action as in the next preceding
rule mentioned there are several defendants if one of them
makes default as mentioned in the next preceding rule the
plaintiff may enter final judgment against the de^ndant so
making default and issue execution upon such judgment
without prejudice to his right to proceed with his action
against the other defendants. |E. 298.] N. W.T., R. 169.

169 If the plaintiffs claim be for detention of eoods and
pecuniary damages or either of them and the defendant or
all the defendants if more than one make default in deliver-
ing a defence within the time allowed for that purpose the
judge may on application of the plaintiff assess the value of



Digitized by



Google



1902 JUDICATURE Cap. VI 176

the goods and amount of the damages or either of them
as the case may be or order that they shall be ascertained
in any way he directs and judgment shall be entered
thereupon with costs of suit. [E. 297.] N.W.T., c. 21, E. 160.

160. When in any such action as in the next preceding rule Default of one
mentiened there are several defendants if one or Doiore of 2^^^^^®^^^^
them make default as in that rule defined the plaintiff may

enter an interlocutory judgment against the defendant or
defendants so making default and proceed with his action
against the others and in such case the value and amount
of damages against the defendant making default shall be
assessed at the same time with the trial of the action or
issues therein against the other defendants unless the Court
or a judge otherwise directs. [E. 298.] N.W.T., c. 21,E. 161.

161. If the plaintiffs claim is for a debt or liquidated j?^^^^^^
demand and also for detention of goods and pecuniary demand and
damages or pecuniary damages only and any defendant ^®^* *^
makes default in delivering his defence as aforesaid the *™**^^*
plaintiff may enter final judgment for the debt or liquidated
demand and also enter interlocutory judgment for the value

of the goods and the damages or the damages only as the
case may be and proceed as mentioned in the next two pre-
ceding rules. [E. 299.] N.W. T , c. 21, R. 162.

162. In an action for the recovery of land if the defendant Recovery
makes default in delivering a defence as aforesaid the plain- ^^ ^*"^-
tiff may enter a judgment that the person whose title is
asserted in the writ of summons shall recover possession of

the land with his costs. [E. 300.] N.W.T., c. 21, R. 163.

163. Where the plaintiffs claim is for mesne profits, Claim for
arrears of rent or double value in respect of the premises ^rreaw^o?^^'
claimed or any part of them or damages for breach of renter
contract or wrong or injury to the premises claimed in ^*'"^^*'*
an action for the recovery of land if the defendant makes
default in delivering a defence as aforesaid or if there is

more than one defendant some or one of the defendants
makes such default the plaintiff may enter judgment
against the defaulting defendant or defendants and proceed
as provided for in rules 159 and 160 hereof. [E. 301.]
N.W.T., c. 26, E. 164.

164. If the plaintiffs claim is for a debt or liquidated de- where a
mand, the detention of goods and pecuniary damages or for deifveTed*
any such matters or for the recovery of land and the defen- to part of
dant delivers a defence which purports to offer an °^**™ ^"^^*
answer to a part only of the plaintiffs alleged cause of ac-
tion the plaintiff may by leave of the Court or a judge en-
ter judgment final or interlocutory as the case may oe for

the part unanswered provided that the unanswered part



Digitized by



Google



176



Cap. 17



CONSOLIDATED ORDINANCES



c. o.



Other actions,
defendant
in default



Where more
than one
defendant.



consists of a separate cause of action or is severable from the
rest as in the case of part of a debt or liquidated demand ;
provided also that where there is a counterclaim execution
on any judgment as above mentioned in respect to the plain-
tiff's claim shall not be issued without leave of the Court or
a judge. [E. 302.] N.W.T., c. 21, R. 165.

166. In all other actions than those in the preceding rules
of this Order mentioned if the defendant makes default in
delivering a defence the opposite party may apply to the
Court or a judge for such judgment if any as upon the
pleadings he appears to be entitled to ; and the Court or
judge may order judgment to be entered accordingly or
make such other order as is necessary to do complete justice
between the parties. [E. 304.] N.W.T., c. 21, K. 166.

166. Where in any such action as mentioned in the next
preceding rule there are several defendants then if one of
such defendants makes such default as aforesaid the plain-
tiff may either (if the cause of action is severable) set down
the action at once on motion for judgment against the
defendant so making default or may set it down against him
at the time when it is entered for trial or set down on mo-
tion for judgment against the other defendants. [E. 306.]
N.W.T., c. 21, R. 16t



Detauit bv 16*7. In any case in which issues arise in an action other

^^* piSntiff *^^^ between plaintiff and defendant if any party to any
OP defendant, such issuc makes 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 appears to
be entitled to and the Court or judge may order judgment
to be entered accordingly or may make such other order as
is necessary to do complete justice between the parties.
fE. 307.] N.W.T., c. 21, R. 16*8.



ORDER XVII.



SETTING DOWN FOR TRIAL



Application
to set down.



168. After the close of the pleadings the plaintiff may at
any time on notice to the defendant apply to the judge for
and obtain an order setting down the cause for trial at
such time and place as the judge directs ; but if such
application is not made within three months after the close
of the pleadings the defendant on notice may apply for and
obtain an order to the like effect or that the plaintiff's
action be dismissed out of Court with costs to the defendant ;
but the judge may instead of dismissing the action at once



Digitized by



Google



1902 JUDICATURE Cap. 17 1*7*7

order such dismissal to take effect from a future date unless Dismiasai for
the plaintiff meanwhile proceeds with his action ; pj^TOution.

(2) If the plaintiff having obtained an order setting the Plaintiff
cause down for trial n'eglects to set the cause down and J^^down
proceed to trial in pursuance thereof the defendant may ap- after order
ply to the judge for an order dismissing the action and the °^®-
judge may thereupon make such order as he deems proper.
" .T., c21, R. 169.



&■



169. On the application to set a cause down for trial if the Jiuy in
action is for slander, libel, false imprisonment, malicious ^^^^^^ <^*^-
prosecution, seduction, breach of promise of marriage or if
the action arises out of a tort, wrong or grievance in which
the damages claimed exceed $500 or if the action is for debt
or founded on contract wherein the amount claimed or the
damages sought to be recovered exceed $1000 or if the action
is for recovery of real property and either signify his desire
to have the issues of fact therein tried by a judge with a
jury or the judge so directs the same shall be tried by a
jury. N.W.T., c. 21, R. 170.

lYO The order for setting down a cause for trial by jury Ord«r for trial
shall state by whom the necessary fees to be paid out. shfiJl ^ ^^^'
be furnished and the party so named shall deposit with the
clerk such sum as said clerk considers sufficient for the
payment of jury fees and the expenses of summoning a
sufficient number of persons to form the jury and the clerk oosts of jury.
shall after the trial pay the said jury and summoning fees
and if any balance of the money so deposited with him
remains unused after paying such fees return such balance
to the party who deposited the same. N.W.T., c. 21, R. 171.

171. The jury for the trial of issues of fact in civil causes J«ry.
shall consist ot six persons whose verdict shall be unani-
mous. N.W,T., c. 21, R. 172.

172. When a cause has been set down for trial such Notice of trial.
notice shall be given as the order setting down directs.
N.W.T., c. 21, R. 178.



ORDER XVIII.

DISCONTINUANCR.

173. The plaintif may at any time before receipt of the de- Diacontinu-
fendant's defence or after the receipt thereof before taking ^J^drawai of
any other proceeding in the action, (save any interlocutory part of claim
application) by notice in writing wholly discontinue his ^^ defence.
action against all or any of the defendants or withdraw any
part or parts of his alleged cause of complaint and there-
12— Y. o.



Digitized by



Google



178



Cap. IT



CONSOUDATED ORDINANCES



C. 0.



Costs.



Sabsequent
action.



Disoontinu-
ance at other
stages.



Withdrawal
of defence or
counterclaim.



nX>on he shall pay such defendant's costs of the action or if
the action is not wholly discontinued the costs occasioned
by the matter so withdrawn. Such costs shall be taxed and
such discontinuance or withdrawal as the case may be shall
not be a defence to any subsequent action. Save as herein
otherwise provided it shall not be competent for the plain-
tiff to withdraw the record or discontinue the action with-
out leave of the Court or judge but the Court or judge may
before or at or after the hearing or trial upon such terms as
to costs and as to any other action and otherwise as are
just order the action to be discontinued or any part of
the alleged cause or complaint to be struck out. The Court
or judge may in like manner and with the like discretion
as to terms upon the application of a defendant order the
whole or any part of his alleged grounds of defence or coun-
terclaim to be withdrawn or struck out but it shall not be
competent to a defendant to withdraw his defence or any
part thereof without such leave. [E. 29U.] N.W.T. c. 21,
E. 174.



Withdrawal 174, When a cause has been entered for trial it may be
forTr?^!*^ withdrawn by either plaintiff or defendant upon producing

to the clerk of the court a consent in writing signed by the

parties, [E. 291.] N.W.T., c. 21, R, 175.



Judgment
for costs.



176. Any defendant may have judgment for the costs of
the action if it is wholly discontinued against him or for the
costs occasioned by the matter withdrawn, if the action is
not wholly discontinued, in case such respective costs are
not paid within two days after taxation. [E. 292.] N.W.
T., c. 21, B. 176.

stay of 176. If any subsequent action is brought before pay-

rjtiw?p!^nding Dieut of the costs 01 a discontinued action for the same

payment or Substantially the same cause of action the Court or judge

may if they or he deems proper order a stay of such subse-

Suent action until such costs have been paid. [E. 298.]
r.W.T., c. 21, R. 177.



ORDER XIX.



Amendment
of pleadings.



AMENDMENT.

177. The Court or a judge may at any stage of the pro-
ceedings allow either party to alter or amend his statement
of claim or pleadings in such manner and upon such terms
as are just and all such amendments shall be made as
are necessary for the purpose of determining the real
questions in controversy between the parties. [E. 809.] N.
W.T, c. 21, R. 178.



Digitized by



Google



1902 JTTDIOATURE Cap. 11 1*79

178. The plaintiff may without any leaye amend his state- Amendment
ment of claim once at any time before the expiration of the ^tho^ieava
time limited for reply and before replying. [E. 810.] N.W.

T., c. 21, R. 179.

179. A defendant who has set up any connterclaim may Amendment
without any leave amend such counterclaim at any time ^unterciaim
before the expiration of the time allowed him for answering without leave.
the reply. [E. 811.] N.W.T., c. 21, R. 180.

180. Where any party has amended his pleading under DiaaUowanoe
either of the next two preceding rules the opposite party ^m^^^t
may within eight days after the delivery to him of the
amended pleading apply to the Court or a judge to dis-
allow the amendment or any part thereof and the Court or

judge may if satisfied that the justice of the case demands
it disallow the same or allow it subject to such terms as to
costs or otherwise as are just. [E. 812.] N-W-T., c. 21,
R,181.

181. Where a party has amended his pleadings (unless Pleading to
otherwise ordered) the opposite party shall plead to the a^^endmenta.
amended pleading or amend his pleading within the time

he then has to plead or within eieht days from the delivery
of the amendment whichever shall last expire ; and in case Default of.
the opposite party has pleaded before the delivery of the
amendment and does not plead again or amend within the
time above mentioned he shall be deemed to rely on his
original pleading in answer to such amendment. [E. 313.]
N.W.T., c. 21, R 182.

182. In all cases not provided for by the preceding rules Leave to
of this Order application for leave to amend may be made ^^?4tion.
by either party to the Court or a judge or to the judge at the

trial of the action and such amendment may be allowed
upon such terms as to costs or otherwise as are just. Terms.
[B. 814] N.W.T., c. 21, R. 183.

188. If a party who has obtained an order for leave to Failure to
amend does not amend accordingly within the time limited l^^f ^^^^
for that purpose by the order or if no time is thereby limited
then within fourteen days from the date of the order such
order to amend shall on the expiration of such limited time
as aforesaid or of such fourteen days as the case may be be-
come ipso facto void unless the time is*extended by the
Court or a judge. [E. 316.] N.W.T., c 21, R. 184.

184. Any statement or pleading may be amended by Manner of
written alterations in the copy which has been delivered *"*®^^"*fi^-
and by additions on paper to be interleaved therewith if
necessary unless the amendments require the insertion o^

12J— Y. o.

Digitized by VjOOQIC



180



Cap. VI



CONSOLIDATED ORDINANCES



0. 0.



Marking
amended
pleading.



Delivery of

amended

pleading.



Mistakes in
judgments or
orders.



to amen*



pov
id.



more than 144 words in any one place or are so numerous
or of such a nature that the making them in writing would
render the document difficult or inconvenient to read in
either of which cases the amendment shall be made by de-
livering a printed or written copy of the document as
amended. [E. 816.] N.W.T., c. 21, E. 185.

186 Whenever any statement or pleading is amended the
same when amended shall be marked with the date of the
order if any under which the same is so amended and of
the day on which such amendment is made in manner fol-
lowing, viz : " Amended day of
pursuant to order of , dated the day of
." [E. 317.] N.W.T., c. 21, B. 186.

186. Whenever any statement or pleading is amended
such amended document shall be delivered to the opi>osite

{>arty within the time allowed for amending the same.
E. 318.] N.W.T., c. 21, R. 187.

187. Clerical mistakes in judgments or orders or errors
arising therein from any accidental slip or oQiission may at
any time be corrected by the Court or judge on motion or
summons without an appeal. [E. 319.] N.W.T., c. 21, R. 188.

188. The Court or a judffe may at any time and on such
terms as to costs or otherwise as the Court or judge
thinks just amend any defect or error in anv proce^ings
and all necessary amendments shall be made K>r the purpose
of determining the real question or issue raised by or
depending on the proceedings. [E. 820.] N.W.T., c 21,
R. 189.



Oostsof
amendment.



189. The cost of and occasioned by any amendment shall
be borne by the party making the same unless the Court or
judge otherwise orders. [E. 821.] N.W.T., c. 21, R. 190.



ORDER XX.



Ex parte
order for
discovery.



Affidavit of
discovery.



DISCOVERY OF DOCUMENTS, ETC.

190. The plaintiff shall at the expiration of the time for
delivery of defence and the defendant shall after delivery
of defence be entitled on application to the judge ex parte
to an order directing anjr other party to any cause or matter
to make discovery by affidavit of the documents which are
or have been in his possession or power relating to any
matter in question therein. N.W.T., c. 21, R. 191.

191. The affidavit to be made by a party against whom
such order as is mentioned in the next preceding rule has



Digitized by



Google



1902 JUDICATUBE Cap. lY 181

been made shall specify which if any of the documents Objections to
therein mentioned he objects to produce. [E 855.] N-W.T., p^^*^^*^^'^-
0. 21, R. 192.

192. It shall be lawful for the Court or judge at any Production of
time during the pendency of any cause or matter to order documents.
the production by any party thereto upon oath of such of

the documents in his possession or power relating to any
matter in question in such cause or matter as the Court or
judge thinks right ; and the Court may deal with such
documents when produced in such manner as appears just.
[E- 356.1 N.W.T., c. 21, R. 198.

193. Every party to a cause or matter shall be entitled inspection of
at any time by notice in writing to give notice to any other ^^"^ in
party in whose pleadings or affidavits reference is made to pleadings or
any document to produce such document for the inspection *ffi<^*^*»-
of the party giving such notice or of his solicitor and to
permit him or them to take copies thereof ; and any party

not complying with such notice shall not afterwards be at
liberty to put any such document in evidence in his behalf
in such cause or matter unless he satisfies the Court or

{'udge that such document relates only to his own title he
>eing defendant to the cause or matter or that he had some
other cause or excuse which the Court or judge deems
sufficient for not complying with such notice ; in which
case the Co art or judge may allow the same to be put in
evidence on such terms as to costs and otherwise as the
Court orjudge thinks fit. [E. 357.] N.W.T., c. 21, R 194.

194. The party to whom such notice is given shall within. Notice of time
two days from the receipt of such notice if all the docu- i^at^Smi.^'
ments therein referred to have been set forth by him in

such affidavit as is mentioned in rule 191 hereof or if any

of the documents referred to in such notice have not been

set forth by him in any such a^davit then within four

days from the receipt of such notice deliver to the party

giving the same a notice stating a time within three days

from the delivery thereof at which the documents or such objections to

of them as he does not object to produce may be inspected production.

at the office of his solicitor or in case of banker's books

or other books of account or books in constant use for the

purpose of any trade or business at their usual place of

custody and stating which if any of the documents he

objects to produce and on what ground. [E. 859.] N.W.T.,

c. 21, R. 195.

195. If the party served with notice under the next pre- Order for



Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 23 of 77)