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

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objected to except so far as the judge appealed from or

the Court orders and no intermediate act or proceeding
shall be invalidated except so far as the Court directs. Security.
Such deposit or other security shall be made or given as
is directed by the Court or judge otherwise the motion
of appeal or for now trial shall not be heard but be dis-
missed. [E. 880.] N.W.T., c. 21, R. 513.

522. Where any application ought to be made to or any Applications
jurisdiction exercised or any act done by the judge by whom jSi^^ho ^^



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246



Cap. 11



CONSOLIDATED OBDINANCXS



C. O.



tried the
action cannot
hear them.



a cause or matter has been tried or heard if such judge dies
or ceases to be a judge of the court or if for any other reason
it is impossible or inconvenient that such judge should act
in the matter the presiding judge may either by a special
order in any cause or matter or by a general order applic-
able to any class of orders or matters nominate some other
judge to whom such applications may be made or by whom
sucn jurisdiction may be exercised. [E. 886.] ■ N.W.T., c.
21, B. 614.



AppeaiHtobe 528. A judgment, order, decision, rule or verdict appealed

motions made from or sought to be set aside shall stand as if no notice of

at first appeal or notice of motion to set the same aside had been

opportunity. ^^^^ ^^ given if the cause or matter in which the same

was made or given is not entered for argument on the first

entry day after such notice or if the motion of which such

notice has been given is not made when the cause or

matter is called unless such default in the moving party is

waived by the other parties interested or unless the Court

otherwise orders. N.W.T., c. 21, E. 516.



Single judge
may deliver
judgment of
court or of
other judge.



524. Any judge may deliver the judgment of the Court
when authorized to do so by the judges en banc who heard
the matter on which judgment is to be pronounced or may
deliver the judgment of any other judge when authorized
to do so by such other judge notwithstanding the absence
of the judge or judges aforesaid. N.W.T., c. 21, E. 616.



OEDEE XLIL



COSTS.



Costs

generally in
discretion
of court.



Proviso as to
trustees.



Costs where
cause tried
by jury.



I. — Oenerally.

526. Subject to the provisions of this Ordinance and the
rules of court the costs of and incident to all proceedings in
the Territorial Court including the administration of estates
and trusts and compensation or allowance to any executor,
administrator, guardian, committee, receiver or trustee shall
be in the discretion of the Court or judge :

Provided that nothing herein contained shall deprive an
executor, administrator, trustee or mortgagee who has not
unreasonably instituted or carried on or resisted any pro-
ceedings of any right to costs out of a particular estate or
fund to which he would otherwise be entitled.

Provided also that where any action, cause, matter or
issue is tried with a jury the costs shall follow the event
unless the judpre by wiom such action, cause, matter or
issue is tried or the court for good cause otherwise
orders. [E. 966.] N.W.T., c. 21, E. 517.



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1902 JUDICATURE Cap. 17 247

626. When issues in fact and law are raised upon a claim Coateof
or counterclaim the costs of the several issues respectively *"^^'
both in law and fact shall unless otherwise ordered follow
the event. N.W.T.. c. 21, E. 518.

527. Where the Court or judge appoints the Public CJoets of
Administrator or a solicitor to be guardian ad litem of an ^ardUn
infant or person of unsound mind the Court or judge may adutem.
direct that the costs to be incurred in the performance of

the duties of such office shall be borne and paid by the
parties or some one or more of the parties to the cause or
matter in which such appointment is made or out of any
fund in court in which such infant or person of unsound
mind is interested and may give directions for the repay-
ment or allowance of costs as the justice and circumstances
of the case requires. [E. 988.] N.WT., c. 21, R. 519.

XL — Security for Costs,

528. When the plaintiff in an action resides out of the Summons for
Territory and in any other case where by the practice and ^^^^ ^^^
procedure in England a defendant is entitled to security

for costs and the defendant by affidavit of himself or his
agent alleges that he has a good defence on the merits to
the action the defendant shall be entitled to a summons to
show cause why an order should not issue requiring the
plaintiff within three months (or such other or further time
as the Court or judge deems right) from the service of
the order to give security for the defendant's costs and
staying all further proceedings in the meantime and direct-
ing that in default of such security being given the action
be dismissed with costs unless the Court or judge on special
application for that purpose otherwise orders. N.W.T.,
c. 21, E. 520.

529. In any cause or matter in which security for costs Time and
is required the security shall be of such amount and be ^^^^ ^^
given at such times and in such manner and form as the security.
Court or judge directs, [E. 981.] N.W.T., c. 21, R. 521.

530. Where a bond is given as security for costs it shall ObiUfee where
unless the Court or judge otherwise directs be given ^" ^^^®°*
to the party or person requiring the securitv and not to an

officer of the court. [E. 982.] N.W.T., c. 21, R. 522.

III. — Taxation and Tariffs of Costs.

531. In all cases and proceedings as also upon interlocu- Taxation of
tory applications where a party becomes entitled to costs ^^ u^ess
from any other party the same shall be taxed by the clerk o^dlS^'"



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248



Cap. IT



CONSOLIDATED OBDINANOES



0.0.



Sheriff's and
clerks' fees.



Cases where
solicitor may
be deprived
of or ordered
to pay costs.



in accordance with the authorized tariffs unless the Court
or judge by order directs the payment of a sum in gross in
lieu of taxed costs and by and to whom such sum in gross
shall be paid. N.W.T., c. 21, E. 528.

582. There shall be paid to each sheriff and clerk the fees
prescribed by the judges of the Territorial court ; and for
any necessary services performed for which fees are not so
prescribed such fees as are authorized by the judge. N.W.T.,
c. 21, R. 624.

583. If in any case it appears to the court or a judge
ttat costs have been improperly or without any reasonable
cause incurred or that by reason of any undue delay in pro-
ceeding under any judgment or order or of any misconduct
or default of the solicitor any costs properly incurred have
nevertheless proved fruitless to the person incurring the
same the court or judge may call on the solicitor of the
person by whom such costs have been so incurred to
show cause why such costs should not be disallowed as
between the solictor and his client and also (if the cir-
cumstances of the case require) why the solicitor should
not pay to his client any costs which the client has
been ordered to pay to any other person and thereupon may
make such order as the justice of the case requires.
N.W.T., c. 21, R. 525.



Notice of
taxation.



Unnecessary
if defendant
not appeared.



Application
for review
of taxation.



584. One day's nptice of taxing costs together with a copy
of the bill of costs and affidavit of increase if any shall be
given by the solictor of the party whose costs are to be
taxed to the other party or his solicitor in all case where a
notice to tax is necessary. N.W.T., c. 21, R. 526.

585. Notice of taxing costs shall not be necessary in any
case where the defendant has not appeared in person or by
his solicitor or guardian. N.W.T., c. 21, R. 527.

586. Any party who is dissatisfied with the allow-
ance or disallowance by the clerk in any bill of costs taxed
by him of the whole or any part of the item or items may
on two days' notice to the opposite party specilying the
item or items objected to apply to a judge in chambers to
review the taxation. N.W.T., c. 21, R. 528.



Evidence on
review.



Tariffs to
be posted.



537. Such application shall be heard and determined by
the judffe upon the evidence which was brought in before
the clerk and no further evidence shall be received unless
the judge otherwise directs. N W.T., c. 21, R. 529.

588. A copy of the tariff of clerk's and sheriff's fees shall
be posted in some conspicuous place in the clerk's and
sheriff's offices respectively. N.W.T., c. 21, R. 630.



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1902 JUDICATURE Cap. 11 249

589. Witnesses, jurors and interpreters and parties shall witnesses*,
be entitled to the fees and remuneration named in the Tariff l^^^^^^y
ofwitnesses\ furors^ and interpreters^ fees appended to this fees.
Ordinance. N.W.T., c. 21, E. 581.

540. All fees and allowances respectively payable under Fees payable
the said tariffs whether under writs of execution or other- *" *<*^'*^<*-
wise shall be paid in advance by the parties at whose
instance the service is to be rendered but in cases where

the amounts are impossible of ascertainment for any reason Deposit where
then the amount approximated by the officer or fixed by the JJ^^^^^""
judge shall be deposited or paid to be accounted for when
the correct amount is ascertained. N.W.T., c. 21, E. 582.

541. In all causes and matters in which duly enrolled Solicitors fees,
solicitors holding certificates as such and resident in the
Territory are employed they shall be entitled to charge

and be allowed such fees as are from time to time pres-
cribed by the judges of the Territorial Court. N.W.T., c.
21, E. 5:i8.

542. The court en banc may by order regulate fees for ser- Fees in court
vices performed by the clerk and other officers of the ^ ^^'
court as also fees to counsel and solicitors practising there-
in. N.W.T., c. 21, E. 534.



OEDEE XLIIL

MISCELLANEOUS.

I. — Forms.

548. The forms contained in the schedule to this Ordin- Forms.
ance shall be used with such variations as circumstances
require ; and as to all other matters the forms used in the
administration of civil justice in England with such varia-
tions as will make them respectively applicable to proceed-
ings in the Territorial Court of the Territory whether en
banc or otherwise may be used. N.W.T., c. 21, E. 585.

IT. — Actions against Public Officers.

544. All actions and prosecutions to be commenced Venue.
against any person for anything purporting to be done in
pursuance of his duty as a public officer shall be com-
menced within six months after the act was committed and Limitation.
not otherwise and notice in writing of such action and of Notice of
the cause thereof must be given to the defendant one month *^*^°'*'
at least before the commencement of the action. N.W.T.,
c. 21, E. 686.



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250



Gap. 11



CONSOIJDATED ORDINANCES



C. 0.



III. — Ex parte Proceedings ; Noncompliance ; and Irregu-
larities.



Ex parte 545. In case of ex parte proceedings the judge may refuse

SSS^^be *^ proceed ex pane and may direct such notice to be given
required. by summous or Otherwise to such party or parties as he
deemslfit. N.W.T., c. 21, E. 537.



Non-
compliance,
effect of.



Wairer of
irregularity.



546. Non-compliance with any of the provisions of this
Ordinance shall not render any proceedings void unless
the Court or a judge directs but such proceedings may
be set aside either wholly or in part as irregular or amended
or otherwise dealt with in such manner and upon such
terms as the Court or judge thinks fit. [E. 1037.] N.
W.T., c. 21, E. 538.

54*7. No application to set aside any proceeding for irre-
gularity shall be allowed unless made within reasonable
time nor if the party applying has taken any fresh step
after knowledge of the irregularity. [E. 1038.] N.W.T.,
c. 21, E. 539.



Grounds of
irregfularitj
to be stated.



Costs of
summons.



648. When an application is made to set aside proceed-
ings for irregularity the several objections intended to be
insisted upon shall be stated in the summons or notice.
[E. 1089.] N.W.T., c. 21, E. 540.

549. When a summons is taken out or notice given to set
aside any process or proceedinff for irregularity with costs
and the summons or notice is dismissed generally without
any special direction as to costs it is to be understood as dis-
missed with costs. [E. 1040.] N.W.T., c. 21, E. 541.



Expiry of
process.
Alias or
pluries.



lY.— Alias Writs.

550. The expiry of any writs or process without service
or execution shall not abate the suit but the suit may be
continued by the issue of alias or pluries writs or process as
is necessary. N.W.T., c. 21, E. 642.



Hours for
service of
pleadings, etc.



V. — Time for Service.

551. Service of pleadings, notices, summonses, orders,
rules and other proceedings except writs of summons,
attachment and replevin shall be effected before six o'clock
in the afternoon ; service effected after six o'clock in the
afternoon shall for the purpose of computing any period of
time subsequent to such service be deemed to have been
effected on the following day and if effected on Saturday,
the following Monday. [E. 971.] N.W.T., c. 21, E. 544.



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1902 JODiCATUEE Cap. 17 261

652. In any case in which any number of days not Reckoning
expressed to be clear days is prescribed in this Ordinance d»^^^
the same shall be reckoned exclusively of the first and
inclusively of the last day. [E. 972.J N.W.T., c. 21, E. 545.

553. Where any limited time less than six days from or Where time
after any date or event is appointed or allowed for doing i^^days^'**^^'^
any act or taking any proceeding the days on which the holidays
offices are closed under the provisions of this Ordinance and **^^^"^®^-
the rules of court shall not be reckoned in the computation

of such limited time. [E. 962.] N.W.T., c. 21, R. 546.

554. Where the time for doing any act or taking any Time expiring
proceeding expires on a Sunday or other day on which the *^" ^^^^^^y-
offices are closed and by reason thereof such act or proceed-
ing cannot be done or taken on that day such act or pro-
ceeding shall so far as regards the time of doing or taking

the same be held to be duly done or taken if done or taken
on the day on which the offices are next open. [E. 963.]
N.W.T., c. 21, E. 647.

555. The Court or a judge shall have power to enlarge or EnUr^ement
abridge the time appointed by this Ordinance or the rules ment"! t?me.
of court or fixed by any order enlarging time for doing any

act or taking any proceedings upon such terms if any as the
justice of the case requires and any such enlargement
may be ordered although the application for the same is not
made until after the expiration of the time appointed or
allowed. N.W.T., c. 21, E. 548.

VI. — Sittings of the Court and Vacation.

656. Subject to the provisions of section 12 of the Yukon Jud^^es may
Territory A.ct and until the times and places of sittings are ^^^^^^ °^
appointed under that section, the Territorial Court, pre-
sided over by a single Judge for the transaction of the
business of tne Court, may sit and act at any time and
place in the Yukon Territory that the judges of the
Court appoint, or, in the absence of such appointment, that
the Judge who is to hold any sitting appoints therefor.

(2) Several sittings of the Court, each so presided over, Sittings may
may be held concurrently. ^ concurrent.

(3) Between the first and twenty-fifth days, inclusive, of Court to sit
every month, if there is any business to disp)ose of there ^Xifea^h
shall be at least one sitting of the Court at Dawson in said month.
Territory on every day of the month, except on holidays and
Saturdays.

(4) Every sitting of the Court shall commence at the sittings to
hour of 10 o'clock in the forenoon, unless otherwise ordered iS'^i!'*''^ **"
by the judge who is to hold the sitting, or by the judges.

(5) At the conclusion of the sitting of the Court on any At conclusion
day, unless the presiding judge otherwise orders, and, if



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252 Cap. 11 CONSOLIDATED ORDINANCES C. 0.

of rittinp or no judge attends at any time or place appointed for a
attends (Sirt sitting of the Court, then, at three of the clock in the after-
^mo™ noon of the day appointed, the Court shall be deemed to
next da^"** be adjourucd until the hour of ten of the clock in the fore-
noon of the next day fixed by this Ordinance or appointed
for a sitting of the court. No. 21 of 1901, s. 1.

Vacation. 557 There shall be a vacation to eltend from the first

day of December in every year to the first da^^ of February
in the year following, inclusive of both of said days.
biwi^^S^to^ (2) During vacation no contested business, except as in
transacted in this scctiou provided, shall be transacted, and no party to
vacation. 3, causc in which the defendant has appeared, shall be com-
pelled to deliver any pleading. If the time for delivering
any pleading in any such cause has not expired before the
first day of vacation, it shall, without any order to that
effect, stand extended until the expiration of five days after
the last day of vacation
What may be (3) Provided that during vacation :
v^tio^"^ (") Notice of motion to set a cause down, for trial may be
given and heard.

(6) Any process may be issued.

(c) Any ex parte business and any contested business, if
the parties to such contested business by their solicitors or
counsel consent, may be transacted.

(d) Judgment by default may be entered in any cause
in which no appearance has been entered.

(e) Costs may be taxed, and

(/) Any cause or matter may be heard and any proceed-
ings may be had or taken if the Court or a judge authorizes
such proceedings to be had or taken notwithstanding
vacation. No. 21 of 1901,.s. 1.
Sitting of 657. There shall be three sittings of the court en banc

court en batu:. during each year, in the months of April, June and Sep-
tember, and each sitting shall continue until appeals and
other matters pending in such court are disposed of:

Provided, however, that there shall be no sitting of such
court en banc between the 25th day of September in any
year and the 15th day of the next ensuing month of March.
No 22of 1901, s.1.



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1902 JUDICATURE Cap. 17 258

Part 11.

Lunatics, Infants and Probate.



OEDER XLIV.

LUNATICS.

669. Proceedings in lunacy shall be by petition to the Petition to
judge filed with the clerk of the court for that purpose veri- ^^cation.
fied on oath setting forth the ground on which the applica-
tion is made and the relations or connection of the petitioner
to or with the alleged lunatic and his property and estate
as also a description and value of the same separating real
and personal estate. N.W.T., c. 21, B. 661.

660. Upon presentation of such petition the judge shall Hearing of
appoint a time and place at which he will hear the same ; p®*^^*^®"^-
at which time and place (all necessary parties having been

duly notified) the judge shall inquire into the facts and
hear such evidence under oath as is adduced and there-
upon determine whether or not the person who is the
subject of the inquiry is at the time of such inquiry of
unsound mind, has property and is incapable of managing
such property. N.W.T., c. 21, R 662.

661. A copy of such petition and notice of the intended Service on
application shall be served on the alleged lunatic unless i"»»*^o-
such service is dispensed with by the judge. N.W.T , c. 21,

R. 663.

662. The judge may order the issue of a commission to CommiMionto
take evidence to be used on any such hearing as in any **^® evidence.
ordinary suit in court and all depositions taken thereunder

shall be received in evidence at the hearing saving all just
exceptions. N.W.T., c. 21, R. 664.

668. If the judge determines such person to be a lunatic Appointment
and that he has property the judge shall forthwith order the <>f e^^'^^i*"-
appointment under the seal of the court of one or more
persons as guardian or guardians to his estate. N.W T., c. 21,
R. 666.

664. On every such inquiry the alleged lunatic if he is Examination
within the jurisdiction of the court shall be produced and ofi"^*^^c.
examined by the judge unless such examination is dispensed
witM. N. W .T., c. 21, R. 656.



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254

Costs.



Cap, It



CONSOLIDATED OBDINANCBS



CO.



Security
by guaraian.



665, The judge may order the costs, charges and expenses
of and incidental to proceedings in matters of lunacy to be
paid either by the party presenting the petition or the party
opposing the same (if opposition is made) or out of the estate
or partly one way and partly the other. N.W.T., c. 21,
R. 55?.



666. In every case unless otherwise specially provided by
order of the judge the following provisions shall be complied
with:

(1.) The guardian of the estate shall before receiving his
appointment furnish his own bond together with those of
two or more persons approved of by the judge as sureties in
double the approximate value of the personal estate and of
the annual value of the real estate for duly accounting for
the same once in each year or oftener if required by the
judge or Court such bond to be (in form approved of by
the judge; to the clerk of the court and his successors in
office or legal assigns, which bond shall be filed in court ;

(2.) The guardian of the estate shall within six months
after appointment file in court a true inventory of the whole
real and personal property and estate of the lunatic stating
the income and profits thereof and setting forth the debts,
credits and effects of the lunatic so far as the same have
come to the knowledge of the guardian ;

(8.) If any property belonging to the estate is discovered
taiy'inventory g^^j, ^^q filing of tHe inventory the guardian shall file a
true account of the same from time to time as the same is
discovered ;

(4.) Every inventory shall be verified by the oath of the
guardian. N.W.T., c. 21, E. 568.



Inventory.



Supplemen-



Verification.



Where
personal
estate
insufficient
for debts.
Petition for
realisation
on realty.



Inquiry by



Inquir
judge.



Order for sale
or mortgage.



567. Whenever the personal estate of a lunatic is not suffi-
cient for the discharge of his debts, —

(1.) The guardian of his estate may apply by petition to
the judge for authority to mortgage or sell so much of the
real estate as is necessary for the payment of such debts ;

(2.) Such petition shall set forth the particulars and
amount of such estate (real and personal) of the lunatic, the
application made of any personal estate, and an account of
the debts and demands against the estate ;

(3.) The judge shall make or cause to be made inquiries
into the truth of the representations made in the petition
and hear all parties interested in the real estate ;

(4.) If the judge is satisfied as to the result of such
inquiries, that the personal estate is not sufficient for the
payment of the debts and that the same has been applied
to that purpose as far as the circumstances of the case
render proper the judffe may order the real estate or a suffi-
cient portion of it to be mortgaged or sold by the guardian
and the moneys thus raised shall be employed for the pay-



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1902 JUDICATURE Cap. 17 256

ment of the debts of the estate and if insufficient shall be
distributed in the same way as intestates' estates are distri-
buted by law the guardian having first provided a bond Bond by
with sureties similar in terms to that provided by clause ^ardian.
(1) of the next preceeding rule for duly accounting for the
proceeds so raised. N.W.T., c. 21, E. 659.

568. When the personal estate and the rents, profits and Sale or
income of the real estate of the lunatic are insufficient for J^i^^[^^ir
his maintenance or that of his family or for the proper maintenance
education of his children or when for any other cause it fa^T^^^^ ^"^
appears desirable so to do on application made by the
guardian or by any member of the family of the insane

person the judge may after inquiry as hereinbefore provided
in the case of debts order the mortgaging or sale of the
whole or part of the real estate of the lunatic by the guar-
dian the guardian having first provided a bond with sureties



Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 31 of 77)