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ceding rule omits to give such notice of a time for inspec- inspection.
tion or objects to give inspection or offers inspection else-
where than at the office of his solicitor the judge may on



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182



Cap. 1*7



CONSOLIDATED 0RDINANCB8



a o.



application of the party desiring it make an order for ins-
pection at such place and in such manner as he thinks
fit ; and except in the case of documents referred to in the
pleadings or affidavits of the party against whom the appli-
cation is made or disclosed in his affidavits of documents,
such application shall be founded upon an affidavit showing
of what documents inspection is sought, that the party ap-
plying is entitled to inspect them and that they are in the
possession or power of the other party. [E. 3(50.] N.W.T.,
c. 21, E. 196.



Discovery or
inspection
maybe
reserved.



?96. If the party from whom discovery of any kind
or insp.ection is sought objects to the same or any
part thereof the judge may if satisfied that the right
to the discovery or inspection sought depends on the
determination of any issue or question in dispute in
the cause or matter or that for any other reason it
is desirable that any issue or question in dispute in
the cause or matter should be determined before decid-
ing upon the right to the discovery or inspection, order
that such issue or question be determined first and re-
serve the question as to the discovery or inspection. [E.
862.] N.W.T., c. 21, R. 197-



Noncompli-
ance with
order for
discovery
or inspection.

Penalty.



197. If any person fails to comply with any order for dis-
covery or inspection of documents he shall be liable to
attachment for contempt of court. He shall also if a plain-
tiflf be liable to have his action dismissed for want of prose-
cution and if a defendant to have his defence if any struck
out and to be placed in the same position as if he had not
defended and the party interrogating may apply to that
effect and an order may be made accordingly. [E. 863.]
N.W.T., c. 21, E. 198.



Service of
order.



198. Service of an ordei; for discovery or inspection made
against any party on his solicitor shall be sufficient service
to found an application for an attachment for disobedience
to the order; but the party against whom the applica-
tion for an attachment is made may show in answer to the
application that he has had no notice or knowledge of the
order. [E. 864 ] N.W.T., c.21, R. 199.



Solicitor
ncfflecting to
inform
client of order.



199. A solicitor upon whom an order against any party
for discovery or inspection is served under the next preced-
ing rule who neglects without reasonable excuse to give
notice thereof to nis client shall be liable to attachment.
[E. 365.] N.W.T., c. 21, R. 200.



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1902 JUDICATURE Cap. 17 188

OBDEE XXI.

EXAMINATION FOR DISCOVERY.

200. Any party to an action whether plaintiff* or defen- Examination
dant or in the case of a body corporate any one who is or biatrial.
has been one of the officers of such body corporate may
without any special order for the purpose be orally
examined before the trial touching the matters in question
in any action by any party adverse in point of interest and
may be compelled to attend and testify in the same manner
upon the same terms and subject to the same rules of
examination as any witness except as hereinafter provided.
N.W.T., c. 21, E. 201.



201. A person lor whose immediate benefit an action is Person
prosecuted or defended is to be regarded as a party for the benefid
purpose of examination. N.W T., c. 21, E. 202. '"^"^^



202. The examination on the part of a plaintiff* may take when
place at any time after the statement of defence of the party m^take^°"
to be examined has been delivered or after the time for deli- place.
vering the same has expired ; and the examination on the

part of a defendant may take place at any time after such
defendant has delivered his statement of defence, and the
• examination of a party to an issue at any time after the
issue has been filed. N.W.T., c. 21, E. 208.

203. Whenever a party is entitled to examine another Examining
party he may procure an appointment therefor from the ^*^^-
clerk for the examination as hereafter provided of such

party before such clerk, depu*. y clerk or process issuer at
whose office such examination is to be held ; and the party
to be examined (upon being served with a copy of the
appointment and a subpoena and upon payment of the piaceof
proper fees) shall attend thereon and submit to examination, ^amination.
(2.) Such examination shall be held at the office of the in^b^lSk.
clerk, nearest to the place where the party to be examined Conduct
resides. N.W.T., c. 21, E. 204. "'''"''^•

204. The party examining shall serve a copy of the Appointment
appointment upon the solicitor of the party to be examined ^^ii^[^^
if he has a solicitor in the cause at least forty-eight hours

before the examination. N.W.T., c. 21, E. 206.

206. Upon application to the Court or a judge an order Examination
may be made for the examination of any party liable to be ^^or© other
examined as aforesaid before any other person or in any wiSiour
other place whether within or without the jurisdiction of juriBdiction.
the Court than those before mentioned and upon service of
a copy of the appointment of a person before whom the



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184



Cap. 11



CONSOLIDATED ORDINANCES



CO



examination is to take place and a copy of the order upon
the party to be examined and upon payment of the proper
fees he shall attend and submit to examination. A copy of
the appointment shall be served upon the solicitor of the
party or his agent at least forty-eiffht hours belore the exam-
ination. N. W.T., c. 21, E. 206.



Notice to 206. The party.or person to be examined shall i f so required

Sd^pSpe^^ by notice produce on the examination all books, papers and
documents which he would be bound to produce at tho. trial
under a subpoena dvces tecum. N.W.T., c 21, R. 207.



Certified
copies of
documents.



207. In the event of any witness on his examination, cross-
examination or re-examination producing any book, docu-
ment, letter, paper or writing and refusing for good cause
to be stated in his deposition to part with the original
thereof then a copy thereof or extract therefiom certified
by the examiner to be a true and correct copy or extract
shall be attached to the depositions and form part thereof.
N.W.T., c. 21, R. 208.



Further 208. Any party or officer so examined may be further

onparty'sown examined on his own behalf or on behalf of the body cor-
behaif, etc porate of which he is or has been an officer in relation to
anjr matter respecting which he has been examined in
chief; and when one of several plaintiffs or defendants has
been examined any other plaintiff or defendant united in
interest may be examined on his own behalf or on behalf
of those united with him in interest to the same extent as
the party examined. N.W.T., c 21, R. 209.



Explanatory
examioation.



Tim© for.



209. Such explanatory examination shall be proceeded with
immediately after the examination in chief and not at any
future period except by leave of the Court or a judge and for
the purposes of this and the next preceding rule when the offi-
cer of a body corporate has been so examined as aforesaid on
behalf of the body corporate the body corporate shall be
deemed to be fully represented by such officer. N.W. P.,
c. 21, R. 210.



Conduct of

examination,

etc.



Production of
documents
for inspection
of examiner.



210. Any party or person examined orally under the pre-
ceding rules of this order shall be subject to cross-examina-
tion and re-examination ; and such examination, cross-ex-
amination and re-examination shall be conducted as nearly
as may be in the mode in use on a trial. N.W.T., c 21, R. 211.

211. A party to the action who admits upon his examina-
tion that he has in his custody or power any deed, paper,
writing or document relating to the matters in question in
the cause upon the order of the person before \n hom he is
examined shall produce the same for his inspection and for



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1902 JUDIOATUBE Cap. 17 186

that purpose a reasonable time shall be allowed ; but no
party shall be obliged to produce any deed, paper, writing
or document which is privileged or protected from produc-
tion. N.W.T., c. 21, E. 212.

212. Either party may appeal from the order of the Appeal from
examiner and thereupon the examiner shall certify under ®*^"^"^®^'^
his hand the question raised and the order made thereon.
N.W.T., c. 21, E. 218.

218. Any party or person refusing or neglecting to attend Refusal to
at the time and place appointed for his examination or aMwer^etc
refusing to be sworn or to answer any lawful question put
to him by the examiner or by any party entitled so to do or
his counsel, solicitor or agent shall be deemed guilty of a
contempt of court and proceedings may be forthwith had
by attachment. If a defendant he shall be liable to have
his defence if any struck out and be placed in the same Penalty.
I>osition as if he had not defended ; and the party examin-
ing may apply to the Court or a judge to that efiect and an
order may be made accordingly. N.W.T., c. 21, E. 214.

214. If the party or person under examination demurs or Objeotionaby
objects to any question or questions put to him the question ^*'*®^^-
or questions so put and the objection of the witness thereto
shall be taken down by the examiner and transmitted by
him to the office of the court where the pleadings are filed ^^jj^^^^.*®
to be there filed ; and the validity of such objection shall ^ ^ ^*
be decided by the Court or a judee ; and the costs of and
occasioned by such objection shall be in the discretion of
the Court or a judge. N.W.T., c. 21, E. 215.

216. Subject to rules 217, 218 and 219 hereof the deposi- Form and
tions taken upon any such oral examination as aforesaid de^ition" °
shall be taken down in writing by the examiner not ordin-
arily by question and answer but in the form of a narrative
expressed in the first person ; and when completed shall be
read over to the party examined and shall be signed by him
in the presence of the parties or of such of them as think
fit to attend. N.W.T., c. 21, E 216.

216. If the party or person examined refuses or is un- witness not
able to sign the depositions then the examiner shall sign d^SJsition.
the same ; and the examiner may upon every examination

state any special matter to the Court if he thinks fit. N.W. ^S*^ltter
T., c. 21, E. 217.

217. It shall be in the discretion of the examiner to put Question and
down any particular question or answer if there appears to obf^tions,
be any special reason for so doing and any question or etc.
questions objected to shall at the request of either party be
noticed or referred to by the examiner in or upon the deposi-



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186



Cap. 11



COITSOLTDATED OBDINANCES



C O.



Deposition
taken in
shorthand.



Recording in tions ; and he shall Btate his opinion thereon to the counsel,
eposi ion. solicitors, agents or parties and if requested by either party

he shall on the face of the depositions refer to such state-

ment. N.W.T., c. 21, R. 218.

218. In case of an examination before the trial or other-
wise than at the trial of an action if the examining party
desires to have such examination taken in shorthand he
shall be entitled to have it so taken at the place of examina-
tion except where the Court or a judge sees fit to order
otherwise. N.W.T., c. 21, R. 219.

219. Where an examination in a cause or proceeding is
taken by . the examiner or any other authorized person in
shorthand the examination may be taken down by question
and answer ; and in such cases it shall not be necessary for
the depositions to be read over to or be signed by the person
examined unless the judg^ so directs where the examination
is taken before a judge or in other cases unless any of the
parties so desires. N.W.T., c. 21, R. 220.

Certified copy 220. A copy of the deposition so taken certified by the
of depositions, person taking the same as correct shall for all purposes have

the same effect as the original depositions in ordinary cases.

N.W.T., c. 21, R. 221



Form and
completion of
shorthand
report.



Filing;
depositions.



Certified

copies

evidence.



221. Wherever anvsuch examination of any party or wit-
ness has been taken before a clerk of the Territorial Court
or before any officer or other person authorized or appointed
to take the same the depositions taken down by the ex-
aminer shall at the request of any party interested and on
payment of his fees be returned to and kept in the office of
the clerk of the court in which the proceedings are being
carried on ; and office copies of such depositions may be
given out and the examinations and depositions certified
under the hand of the examiner taking the same or a copy
thereof certified under the hand of the clerk of the court
shall without proof of the signature be received and read
in evidence saving all just exceptions. N.W.T. c. 21, R. 222.

222. Every person taking examinations may and if need
be shall make a special report to the Court in which such
proceedings are pending touching such examinations and
the conduct or absence of any witness or other person
thereon or relating thereto ; and the Court shall institute
such proceedings and make such order upon such report as
justice requires and as may be instituted and made in
any case of contempt of court. N.W.T. c. 21, R. 228.

Use of 223. Any party may at the trial of an action or issue or

at^ai *^°" upon any application or motion use in evidence any part of
the examination of the opposite parties :



Spec:
of ex



of examiner.



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1902 JUDIOATUHE Cap. lY 18*7

Provided always that in such case the judge may look at
the whole of the examination and if he is of opinion that
any other part is so connected with the part to be so used
that the last mentioned part ought not to be used without
such other part he mav direct such other part to be put in
evidence. N.W.T. c. 21, R. 224.

224. The cost of every examination of parties or of officers Cost of
of corporations before the trial or otherwise than at the trial e**™!'^^^^"^*
of an action shall be costs in the cause but the Court or
judge in adjusting the costs of the action shall at the ins-
tance of any party inquire or cause inquiry to be made into
the propriety of having made any such examination ; and if
it is the opinion of the Court or judge or the clerk as the
case may be that such examination has been had unreason-
ably, vexatiously or at unnecessary length the costs occa-
sioned by the examination shall be borne in whole or in
part by the party in default. The clerk may make such
inquiry without any direction. N.W.T, c. 21, R. 225.



ORDER XXII.

ADMISSIONS.

226. Any party to a cause or matter may give notice by Notice of
his pleading or otherwise in writing that he admits the admission
truth of the whole or any part of the case of any other party. ^ ^
[E. 371.] N.W.T. c. 21, R. 226.

226. Either party may call upon the other party to admit Notice to
any document saving all just exceptions ; and in case of ^^ments.
refusal or neglect to admit after such notice the costs of
proving any such document shall be paid by the party so CJoets:
neglecting or refusing whatever the result of the cause or refu^*^*^***
the matter may be unless at the trial or hearing the' judge (2) notice not
is satisfied that the refusal to admit was reasonable ; and ^^®°*

no costs of proving any document shall be allowed unless
such notice is given except where the omission to give the
notice is in the opinion of the judge a saving of expense.
JE. 872.] N.W.T. c. 21, R. 227.

227. Any party may by notice in writing at any time not Notice to
later than twelve days before the day fixed for trial call on »dm»t facts.
any other party to admit for the purposes of the cause,
matter or issue only any specific fact or facts mentioned in

such notice ; and in case of refusal or neglect to admit the Costs where
same within six days after service of such notice or within ^^^^^
such further time as may be allowed by a judge the cost of
proving such fact or facts shall be paid by the party so
neglecting or refusing whatever the result of the cause,



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188



Cap. IV



CONSOLIDATED ORDINANCES



CO.



Effect of
admission.



Admissions.
Amendment



matter or issue may be unless at the trial or hearing the
judge is satisfied that the refusal to admit was reasonable :

Provided that any admission made in pursuance of such
notice is to be deemed to be made only for the purposes of
the particular cause, matter or issue and not as an admis-
sion to be used against the par^y on any other occasion or
in favour of any person other than the party giving tbe
notice :

Provided also that the judge. may at any time allow any
party to amend or withdraw any admission so made on such



or withdrawal ^^y^jg ^ ^^^ j^g^ [^ 3^74] J^.^.T. C. 21, E. 228.



Jad^ent on
admissions.



.Evidence of
admissions.



228. Any party may at any stage of a cause or matter
where admissions of fact have been made either on the
pleadings or otherwise apply to a judge for such judgment
or order as upon such admissions he may be entitled to
without waiting for the determination of any other ques-
tion between the parties and the judge may 'upon such
application make such ordei; or give such judgment as the
judge thinks just. [E. 376.] N.W.T. c. 21, R. 229.

229. An affidavit of the solicitor or his clerk of the due
signature of any admissions made in pursuance of any notice
to admit documents or facts shall be sufficient evidence of
such admissions if evidence thereof is required. [E. 377.]
N.W.T. c. 21, R. 230.



Notice to
admit or
produce.

Costs.



280. If a notice to admit or produce comprises documents
which are not necessary the costs occasioned thereby shall
be borne by the party giving such notice. [E. 379.] N.W.
T. c. 21, R. 231.



ORDER XXIII.



ISSUES, INQUIRIES AND ACCOUNTS.



Issues of fact, 231. Where in any cause or matter it appears to the Court

Sat??^'^ *"^ ^^ j^dg© ^hat the issues of fact in dispute are not sufficient-

^ *"^ ly defined the parties may be directed to prepare issues and

such issues shall if the parties differ be settled by the Court

or judge [E 380.] N.W.T. c. 21, R. 232.



Inquiries and
acoounts,
when and
how taken.



232. The Cdurt or a judge may at any stage of the pro-
ceediugs in a cause or matter direct any necessary inquiries
or accounts to be made or taken and may direct the same to
be taken by the clerk or other competent person notwith-
standing that it appears that there is some special or
further relief sought for or some special issue to be tried as
to which it may be proper that the cause or matter should
proceed in the ordinary manner. [E. 381] N.W.T., c 21,
R. 233.



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1902 jaDiCATUBB Cap. 17 189



288. In cases where the statement of claim is for an Actions for
account or involves the taking of an account if the defen- **^^*-
dant either fails to appear or does not after appearance satisfy

the judge that there is some preliminary question to be tried
the plaintiff may obtain an order directing the taking of
proper accounts ; and in cases in which the plaintiff in the
first instauce desired to have an account taken the statement
of claim shall request the same* [E. 121.] N.W.T., c. 21,
R-234

284. The judge may either by the judgment or order Special
directing an account to be taken or by any subsequent order ^^^^f^
give special direction with regard to the mode in which the taking
account is to be taken or vouched and in particular may *«»""*^
direct that in taking the account the books of account in
which the accounts in question have been kept shall be
taken as prima facie evidence of the truth of the matters
therein contained with liberty to the parties interested to
take such objections thereto as they are advised. [E. 882.]
N.W.T., c. 21, R. ?86.

235. Where any account is directed to be taken the Account
accounting party unless the judge otherwise directs
shall make out his account and verify the same by affidavit.

The items on each side shall be numbered consecutively Verification,
and the account shall be referred to by the affidavit as an
exhibit and be filed in Court [E. 888.] N.W.T., c. 2I,IL
286.

236. Upon taking of any account the Court or judge may Production of
direct that the vouchers snail be produced at the office of vouchers.
the solicitor of the accounting party or at any other con- Contested
venient place and that only such items as may be contested ^*®™**

or surcharged shall be brought before the judge in cham-
bers. N.W.T., c. 21, R. 28'7.

237. Any party seeking to charge any accounting party surcharge.
beyond what he has by his account admitted to have
received shall give notice thereof to the accounting party
stating so far as he is able the amount sought to be cnarged

and the particulars thereof in a short and succinct manner.
[E. 884.] N.W.T., c. 21, E. 288

238. Every judgment or order for a general account of the inquiry as to
personal estate of a testator or intestate shall contain a ^tete^^*"^
direction for an inquiry as to whai parts if any of such per-
sonal estate are outstanding or undisposed of unless the

Court or judge otherwise directs. [E. 885.] N.W.T.,
c. 21, E. 289.

289. Where hj any judgment or order whether made in Numbering
Court or by the judge any accounts are directed to be taken ^^^^^"^ ^^



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190



Cap. 11



CONSOLIDATED 0BDINANCB8



CO.



account or
inquiry.



Just
allowances.



Expediting
proceedings
m case of
undue delay.



Ascertain-
ment of
damages.



Where
continuing
cause of
action.



or inquiries to be made each Buch direction shall be num-
bered so that as far as may be each distinct account and
inquiry may be designated by a number with such varia-
tions as the circumstances of the case requires. [E. 886.]
N.W.T., 8.21, E. 240.

240. In taking any account directed by any judgment or
order all just allowances shall be made without any direction
for that purpose. N.W.T., c. 21, E. 241.|

241. If it appears to the judge that there is any undue
delay in the prosecution of any accounts or inquiries or in
any other proceedings under any judgment or order the
judge may require the party having the conduct of the pro-
ceedings under any judgment or order or any other party to
explain the delay and may thereupon make such order with
regard to expediting the proceedings or the conduct thereof
or the stay thereof and as to the costs of the proceedings as
the circumstances of the case requires ; and for the
purposes aforesaid any party may be directed to summon
the persons whose attendance is required and to conduct
any proceedings and carry out any directions which may
be given ; and any costs of such party so directed shall be
paid bv such parties or out of such funds as the judge
directs.' [E. 888.] N.W.T., c. 21, E. 242.

Inquiry and Reference as to Damages,

242. In every action or proceeding in which it appears
to the Court or judge that the amount of damages sought to
be recovered is substantially a matter of calculation the
Court or judge may either fix the amount or direct that the
amount for which final judgment is to be entered shall be
ascertained by an officer of the Court or other person ; and
the attendance of witnesses and the production of documents
before such officer or other person may be compelled by
subpoena ; and such officer or other person may adjourn the
inquiry from time to time and shall indorse upon the order
for referring the amount of damages to him, the amount
found by him and shall deliver the order with such indor-
sement to the clerk of the court and such and the like pro-
ceedings may thereupon be had as to taxation of costs, enter-
ing judgment and otherwise as in ordinary cases. [E. 481.]
N.W.T., c. 21, E. 243. .

248. Where damages are to be assessed in respect of any
continuing cause of action they shall be assessed down to
the time of assessment. [E. 482.] N. W.T., c. 21, E. 244.



Originating
summons.



SUMMARY INQUIRIES INTO FRAUDULENT TRANSFERS.



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