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244. "Where a judgment creditor or a peison entitled to
money under a judgment or order alleges that the debtor
or person who is to pay has made a conveyance of his pro-

Digitized by


1902 JUDIOATUBB Cap. 1 Y 191

perty whether real or personal which is void as being made inquiry into
to delay, hinder or defraud creditors or a creditor an origin- fjJl^^ent
ating summons may be issued by the judgment creditor conveyances.
calling upon the judgment debtor or person who is to pay
or who has acquired any interest thereunder to show cause
why the property embraced in such conveyance or a com-
petent part thereof should not be sold to realise the amount
to be levied under the execution. [R.8.O., ISTiT, c. 49, s. 10.]
N.W.T., c. 21, R. 245.

245. Where any judgment creditor in an action or a per- Forec^mtebie
son entitled under a judgment or order as aforesaid alleges execution,
that the debtor or person who is to pay is entitled to or has

an interest in any property which under the former practice
could not be sold under legal process but could be rendered
available in an action for equitable execution by sale for
satisfaction of the debt, an originating summons may be
issued by the creditor calling upon the debtor or person
who is to pay and the trustee or other person having the
legal estate in the property or the interest therein of the
d.ebtor or the person who is to pay to show cause why the
property or a competent part of the said property should
not be sold to realise the amount to be levied under the
execution. [R.S.O., 1811, c. 49, s 11.] N.W.T., c. 21, E. 246.

246. Upon any application under either of the next two issue or
preceding rules such proceeding shall be had either in a ^'^^""^y-
summary way or by the trial of an issue or by inquiry before

an officer of the court or otherwise as the Court or judge
deems necessary or convenient for the purpose of ascer-
taining the tmth of the matters in question and whether
the property or the debtor's or other person's interest therein
is liable for the satisfaction of the execution. |R.S.O. 187 Y,
c. 49, 8. 12.] N.W.T., c. 21, R. 247.

247. Where in a summary way or upon the trial of an Order for sale.
issue or as the result of any inquiries under the next three
preceding rules any property or the interest of any debtor or

other person therein is found liable to be sold an order shall
be made by the Court or iudge declaring what property or
what interest therein is liable to be sold and directing the
sale thereof according to the usual practice. [R.S.O., 1877,
c 49, s. 14.1 N.W.T., c. 21, R. 248.

248. Pending any such issue or inquiry an interim in- interim
junction order may be issued or a receiver appointed to pre- OT^J^efver
vent the transfer or other disposition of the property.
N.W.T., c. 21, R. 249.

Digitized by






Special case
by consent.

Special case
or question of
law raised by
order before

Special case
where person
is party.'

for payment
of money
according to
result of
special case.

249. The parties to any cause or matter at any sta^e of
the cause or matter or without any previous proceedings
having been instituted may concur in stating the questions
of law arising therein in the form of a special case for the
opinion of the Court. Every such special case shall be
divided into paragraphs numbered consecutively and shall
concisely state such tacts and documents as may be neces-
sary to enable the Court to decide the questions raised
thereby. Upon the argument of such case the Court and
the parties shall be at Bberty to refer to the whole contents
of such documents and the Court shall be at liberty to draw
from the facts and documents stated in any special case
any inference whether of fact or law which might have
been drawn therefrom if proved at a trial. [E. 389.] N.W.T.,
c. 21, E 250.

250. If it appears to the Court or judge that there is in
any cause or matter a Question of law which it would be
convenient to have deciaed before any evidence is given or
any question or issue of fact is tried or before any reference
is made to a referee the Court or judge may make an order
accordingly and may direct such question of law to be raised
for the opinion of the Court either by special case or in any
such other manner as the Court or judge deems ex-
pedient and all such further proceedings as the decision of
such question of law may render unnecessary may there-
upon be stayed. [B. 890.] N.W.T., c. 21, E. 251.

251. No special case in any cause or matter to which a
married woman (not being a party thereto in respect of her
separate property or of any separate riffht of action by or
against her), infant or person of unsound mind not so found
by judicial decision is a partv shall be set down for argu-
ment without leave of the Court or judge, the application
for which must be supported by suflBcient evidence that the
statements contained in such special case so far as the same
affect the interest of such married woman, infant or person
of unsound mind are true. [B. 892.] N.W.T , c. 21, K. 262.

262. The parties to a special case may if they think fit
enter into an agreement in writing that on the jud^ent
of the Court being given in the affirmative or negative of
the questions of law raised by the special case a sum of
money fixed by the parties or to be ascertained by the Court
or in such manner as [the Court directs shall be paid by
one of the parties to the other of them either with or witlT-
out costs of the cause or matter ; and the judgment of the

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1902 JUDICATURE Cap. 11 193

Court may be entered for the sum so agreed or ascertained
with or without costs as the case may be and execution
may issue upon such judgment in the ordinary way unless
otherwise agreed or unless stayed on appeal. [E. 394.]
N.W.T., c. 21, E. 253.



253. If when a trial is called on the plaintiff appears and Defendantnot
the defendant does not appear the plaintiff may prove his appearing.
claim so far as the burden of proof lies upon him. [E. 465.]
N.W.T., c. 21, R. 254.

254. If when a trial is called on, the defendant appears piaintiflf not
and the plaintiff does not appear the defendant if he has no appearing.
counterclaim shall be entitled to judgment dismissing the

action but if he has a counterclaim then he may prove such
counterclaim so far as the burden of proof lies upon him.
[E. 456] N.W.T., c. 21, R. 255.

255. Any verdict or judgment obtained where one party Judgment by
does not appear at the trial may be set aside by the Court or <^®^auit.
judffe upon such terms as seem fit upon an application Setting aside.
within fifteen days after the trial. [E. 45*7.] N.W.T., c. 21,

R. 256.

256. The judge may if he thinks it expedient for the inter- Postponement
ests of justice postpone or adjourn a trial for such time and Adjournment
to such place and upon such terms if any as he thinks of triai.™^°
fit ; but no trial shall be postponed upon the ground of the
absence of a material witness unless the affidavit upon

which the application is made distinctly states that the
deponent believes and is advised that the party on whose
behalf the application is made has a just cause of action or
defence upon the merits and that the application is not
made solely for delay. [E. 458.] N.W.T., c. 21, R. 257.


267. Where through accident or mistake or other cause on^igsi ntai
any party omits or fails to prove some fact material to his provematenai
case the judge may proceed with the trial subject to such tact.
fact being afterwards proved at such time and subject to
such terms and conditions as to costs and otherwise as the
judge directs and if the case is being tried by a jury
the judge may direct the jury to find a verdict as if such
fact had been proved and the verdict shall take effect on
such fact being afterwards proved as directed ; and if not
so proved judgment shall be entered lor the opposite party

18— Y. o.

Digitized by



Cap. 1*7


C. O.

nnless the Court or judge otherwise directs. This rule shall
not apply to actions for libel or slander. N.W.T., c. 21, E.

Speeches to


Vexatious or



Delivery of

258. Upon a trial with a jury the addresses to the jury
shall be regulated as follows : the party who begins or his
counsel shall be allowed at the close of his case if his
opponent does not announce any intention to , adduce
evidence to address the jury a second time for the purpose
of summing up the evidence and the opposite party or his
counsel shall be allowed to open his case and also to sum
up the evidence if any and the right to reply shall be the
same as in England. [E. 460. | N.W.T , c. 21. R. 259.

259. The judge may in all cases disallow any questions
put in cross-examination of any party or other witness
which may appear to him to be vexatious and not relevant
to any matter proper to be inquired into in the cause or
matter. [E. 462.] N.W.T., c. 21, R. 260.

260. The judge shall at or after trial direct judgment
to be entered as he thinks right and no motion for
judgment shall be necessary in order to obtain such judg-
ment. [E. 468.] N.W.T., c. 21, R. 261.



I. — Evidence Generally,

Evidence may
be taken by

thereon or
new trial.

Witnesses to
l)e examined
?'i?'rt voce
agreed or

261. In any action the judge may direct the evidence
either wholly or in part to be taken by any clerk of the
court or by any other competent person ; which clerk or
other person shall be sworn to take the same truly and to
reduce it to writing and on the return of the evidence the
judge may ffive judgment upon the evidence taken by the
clerk or other person as aforesaid or mav order a new trial
as justice requires. N.W.T., c. 21, R. 262'.

262. In the absence of any agreement in writing between
the parties or their solicitors and subject to the provisions
of this Ordinance the witnesses at the trial of any action or
at any assessment of damages shall be examined viva voce
and in open court but the Court or judge may at any time
for sufficient reason order that any particular fact or facts
may be proved by affidavits or that the affidavit of any
witness may be read at the hearing or trial on such con-
ditions as the Court or judge think reasonable or that

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1902 JUDICATUKB Cap. 17 195

any witness whose attendance in court ought for some
sufficient cause to be dispensed with be examined by inter-
rogatories or otherwise before a commissioner or examiner :
rrovided that where it appears to the Court or judge that
the other party bona fids desires the production of a witness
for cross-examination and that such witness can be produced
an order shall not be made authorising the evidence of such
witness to be given by affidavit. [E. 483.] N.W.T., c, 21,
E. 263.

263. An order to read evidence taken in another cause or Reading
matter shall not be necessary but such evidence may saving ^^en*S*
all just exceptions be read by leave of the Court or judge, causes.
lE. 485.] N.W.T., c. 21, R. 264.

taken in other

264. Copies of all writs, records, pleadings and documents office copies
filed in court when certified by the clerk shall be admissible ^jj^^® ^"
in evidence in all causes and matters and between all ^^^ *"°^*
persons or parties to the same extent as the original would

be admissible. [E. 486.] N.W.T., c. 21, R. 265.

265. Impounded documents while in the custody of the impounded
court are not to be parted with ; and are not to be inspected ^^oc^^nents.
except on a written order signod by the judge on whose

order they were impounded; or in case of documents
impounded on the order of the Court en banc by an order of
that court such documents shall not be delivered out of the
custody of the court except on an order made on motion in
open court. N.W.T. c. 21, R. 266.

II. — Examination of Witnesses.

266. The Court or judge may in any cause or matter when Order for
it appears necessary for the purposes of justice make of ^tness?"
any order for the' examination upon oath viva voce or by
interrogatories in writing before the Court or judge or any

officer of the court or any other person and at any place of
any witness or person and may empower any party to any
such cause or matter to give such deposition in evidence
therein on such terms if any as the Court or judge
directs. [E. 48*7.] N.W.T. c. 21, R. 26*7.

267. The Court or judge may in any cause or matter at Order for
any stage of the proceedings order the attendance of any S^uments.
person for the purpose of producing any writings or other
documents named in the order the production of which

the Court or judge thinks requisite :

Provided that no person shall be compelled to produce
under any such order any writing or other document which
he could not be compelled to produce at the hearing or
trial. [E. 489.] N.W.T. c. 21, R. 268.
13J— y. o.

Digitized by



Cap. 17


C. 0.


Diaobedienoe 268. Any person wilfully disobeying any order requiring
to order- j^.^ attendance for the purpose of being examined or of pro-
ducing any document shall be deemed guilty of contempt
of court and may be dealt with accordingly. [E. 490.] N.
W.T. c. 21, R. 269.

269. Any person required to attend for the purpose of
being examined or of producing any document shall be
entitled to the like conduct money and payment for expen-
ses and loss of time as upon attendance at a trial in court.
[E. 491.] N.W.T. c. 21, E. 270.

Ck)py of 270. Where any witness or person is ordered to be exa-

K'jh^i^*^ mined before any officer of the Court or before any person
exAminer. appointed for the purpose the person taking the examina-
tion shall be furnished by the party on whose application
the order was made with a copy of the proceedings in the
cause or with a copy of the documents necessary to inform
the person taking the examination of the questions at issue
between the parties. [E. 492.] N.W.T. c. 21, R. 271.

Conduct of

mode of

Reading and

Questions and


271, The examination shall take place in the presence of
the parties, their counsel, solicitor or agent and the wit-
nesses shall be subject ta cross-examination and re-exami-
nation. [E. 493.] N.W.T. c. 21, R. 272.

272. The depositions taken before an officer of the Court
or before any other person appointed to take the examina-
tion shall be taken down in writing by or in the presence
of the examiner not ordinarily by question and answer but
so as to represent as nearly as may be the statement of the
witness and when completed shall be read over to the wit-
ness and signed by him in the presence of the i)arties or
such of them as think fit to attend. If the witness
refuses to sign the depositions the examiner shall sign
the same. The examiner may put down any particular

S[ue8tion or answer if there appears any special reason
or doing so and may put any question to the witness
as to the meaning of any answer or as to any matter arising
in the course of the examination. Any questions which
are objected to shall be taken down by the examiner in
the depositions and he shall state his opinion thereon to the
solicitors or parties and shall refer to such statement in the
depositions but he shall not have the power to decide upon
the materiality or relevancy of any question. [E. 494.] N.
W.T. c. 21, R. 273.

of witness.

273. If any person duly summoned by subpopna to attend
for examination refuses to attend or if having attended
he refuses to be sworn or to answer any lawful ques-
tion a certificate of such refusal signed by the examiner

Digitized by


1902 JUDICATURE Cap. 17 197

shall be filed in court and thereupon the party requiring
the attendance of the witness may apply to the Court or
judge ex parte or on notice for an order directing the witness
to attend or to be sworn or to answer any question as the
case may be. [E. 496.] N.W.T. c. 21, R. 274.

274. If any witness objects to any question put to him Objections by
before an examiner the question so put and the objection of ^*°^-
the witness thereto shall be taken down by the examiner and
transmitted by him to the court to be there filed and the
validity of the objection shall be decided by the court or

judge. [E. 496.] N.W.T. c. 21, R. 275.

275. If it is made to appear to the judge that a wit- Witness
ness has been duly served with a subpoena and his fees for g,lb^^°*^
travel and attendance paid or tendered to him and that such
witness refuses or neglects to attend to give evidence as
required by his subpcenrf and that his evidence is necessary

and material it shall be lawful for the judge in addition to
any powers which he possesses for the punishment of
such witness to issue a warrant under his hand and seal Warrant for
directed to the sheriflF or other officer or officers for the *'^^^-
immediate arrest of such witness to be brought before the
court or person authorized to hear the evidence for the
purpose of giving evidence in the cause. N.W.T. c. 21, R.

276. In any case under the next three preceding rules the Costs af?ainst
court or judge shall have power to order the witness to w^^.^®**^
pay any costs occasioned by his refusal or objection. [E.

497.] N.W.T. c. 21, R. 277.

277. When the examination of any witness before any Retum of
examiner has been concluded the original depositions depositions.
authenticated by the signature of the examiner shall be
returned by him to the clerk of the court to whom the

same is returnable and by him shall be filed. [E. 498.] N.
W.T. c. 21, R. 278

278. The person taking the examination of a witness under Special report
the provisions of this order may and if need be shall make ^^ examiner.
a special report to the court touching such examination and

the conduct or absence of any witness or other person thereon
and the court or judge may direct such proceedings and
make such order as upon the report they or he thinks
just. [E. 499.J N.W.T., c 21, R. 279.

279 Except where it is otherwise provided or is Depcwitions,
<lirected by the court or judge no deposition shall be given ^^dencS.
in evidence at the hearing or trial of the cause or matter
without the consent of the. party against whom thQ same

Digitized by



Cap. 11


c. o.

is offered unless the court or judge is satisfied that the
deponent is dead or beyond the jurisdiction of the court or
unable from sickness or other infirmity to attend the hearing
or trial in any of which cases the depositions certified under
the hand of the person taking the examination shall be ad-
missible in evidence saving all just exceptions without
proof of the signature to such certificate. [K 500.] N.W.
T., c. 21, R. 280.

Oaths. 280. Any officer of the court or other person directed to

take the examination of any witness or person may adminis-
ter oaths. [E. 501.J N.W.T , c. 21. R. 281.


for 086 111

in cause.


on affidavit.

281. Any party in any cause or matter may by subpoena
ad testificandum or duces tecum require the attendance of any
witness before an officer of the court or other person appoint-
ed to take the examination for the purpose of using his evi-
dence upon any proceeding in the cause or matter in the
like manner as such witness would be bound to attend and
be examined at the hearing br trial ; and any party or wit-
ness having made an affidavit to be used or which is
used on any proceeding in the cause or matter shall be
bound on being served with such subpoena to attend before
such officer or person for cross-examination. [E. 602.] N.
W.T., c. 21, R. 282.

taken after

Practice on



282. Evidence taken subsequently to the hearing or trial
of any cause or matter shall be taken as nearly as may be
in the same manner as evidence taken at or with a view to
a trial. [E. 508.] N.W.T., c. 21, R. 283.

283. The practice with reference to the examination cross-
examination and re-examination of witnesses at a trial shall
extend and be applicable to evidence taken in any cause or
matter at any stage. [E. 604.] N.W.T., c. 21, R. 284.

directions as
to taking

284. The practice of the court with respect to evidence
at a trial when applied to evidence to be taken before an
officer of the court or other person in any cause or matter
after the hearing or trial shall be subject to any special di-
rections which are given. [E. 606.] N.W.T., c. 21, R. 285.

Notice to use
affidavit or
depositions at

285. No affidavit or deposition filed or made before issue
joined in any cause or matter shall without special leave of
the court or judge be received at the hearing or trial there-
of unless within one month after the cause is at issue or
within such longer time as is allowed by special leave
of the court or a judge notice in writing has been
given by the party intending to use the same to the opposite
party of his intention in that behalf. fE. 506.J N.W.T.,
c. 21, R. 286.

Digitized by


1902 JUDICATURE Cap. 17 199

286. All evidence taken at the hearing or trial of any cause ^^if ®"^ *^
or matter may be used in any snbseqaent proceedings in subBequent
the cause or matter. [E. 507.] N.W.T., c. 21, E. 287. ^« <>f-

III. — SubpcBna.

287. When a subpcena is required for the attendance of a Subpoena fw
witness for the purpose of proceedings in chambers such ^iS^^
subpoena shall issue from the clerk's office upon a note from

the judge. [E. 610.] N.W.T., c 21, E. 288.

288. The service of a subpoena shall be effected by deli- Service of
vering a copy of the writ and of the indorsement thereon ""^p®*^
and at the same time producing the original writ. [E. 514.]
N.W.T., c. 21, E. 289.

IV. — Perpetuating Testimony.

289. Any person who, under the circumstances alleged Action to
by him to exist, becomes entitled upon the happening SSSmS^y?
of any future event to any offijce or to any estate or interest

in any property real or personal the right or claim to which
cannot by him be brought to trial before the happening of
such event may commence an action to perpetuate any tes-
timony which may be material for establishit^^ such right
or claim. [E. &17.1 N.W.T., c. 21, E. 290.

290. "Witnesses shall not be examined to perpetuate testi- Witnesses.
mony unless an action has been commenced lor the purpose.

[E. 619.] KW.T., c. 21, E. 291.

291. No action to perpetuate the testimony of witnesses Trial.
shall be set down for trial. [E. 520.] N.W.T., c. 21, E. 292.



292. Upon any motion, petition or summons evidence Evidence on
may bo given by affidavit ; but the Court or judge may on ^^^"^^^y etc-
the application of either party order the attendance for cross-
examination of the person making any such affidavit and
may make such interim order or otherwise as appears neces- cross
sary to meet the justice of the case. [E 512.} N.W.T., c. examination.
E 293.

298. Every affidavit shall be intituled in the cause or intituling
matter in which it is sworn ; but in every case in which affidavits.
there is more than one plaintiff or defendant it shall be

Digitized by



Cap. 11



sufficient to state the full name of the first plain tiflF or defen-
dant respectively and that there are other plaintiffs or defen-
dants as the case may be ; and the costs occasioned by any
unnecessary polixity in any such title shall be disallowed.
[B. 522.J N.W.T., c. 21, R. 294.

Affidavits 294 Affidavits shall be confined to such facts as the wit-

confined to j^^gg jg j^|j|q ^f j^jg ^^j^ knowledge to prove except on inter-
locutory motions on which statements as to his belief with
Statements of. the grouuds thereof may be admitted. The costs of every
^^^®'- affidavit which shall unnecessarily set forth matters of hear-

say or argumentative matter or copies of or extracts from

Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 25 of 77)