10. The law to be administered in the Territories as to the matters next hereinafter mentioned shall be as follows: 1. No claim of a cestui que trust against his trustee for any Express trusts property held on an express trust or in respect of any breach of such trust shall be held to be barred by any Statute of Limitations. waste 2. An estate for life without any impeachment of waste Equitable shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste unless an intention to confer such right shall expressly appear by the instrument creating such estate. 3. There shall not be any merger by operation of law only Merger of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity. of land, 4. A mortgagor entitled for the time being to the possession Mortgagors or receipt of the rents and profits of any land as to which no rights of notice of his intention to take possession or to enter into the action of receipt of the rents and profits ther of shall have been given by the mortgagee may sue for such possession, or sue or distrain for the recovery of such rents or profits or to prevent or recover damages in respect of any trespass or other wrong relative thereto in his own name only unless the cause of action arises upon a lease or other contract made by him jointly with any other person and in that case he may sue or distrain jointly with such other person. of chose in Conflicting 5. In case of an assignment of a debt or other chose in Assignment action, if the debtor, trustee or other person liable in respect action of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming claims under him, or of any other opposing or conflicting claims to Interpleader such debt or chose in action, he shall be entitled if he think fit to call upon the several persons making claim thereto to interplead concerning the same. in contracts as 6. Stipulations in contracts as to time or otherwise which Stipulations would not heretofore have been deemed to be or to have be- to time, etc. come of the essence of such contracts in a Court of Equity, shall receive in the Territories the same construction and effect as they would in equity. performance 7. Part performance of an obligation either before or after Part a breach thereof when expressly accepted by the creditor in when satisfaction or rendered in pursuance of an agreement for that satisfaction purpose though without any new consideration shall be held to extinguish the obligation. mandamus 8. A mandamus or an injunction may be granted or a receiv- Interlocutory er appointed by an interlocutory order of the Court er judge in all cases in which it shall appear to the Court or judge to be Injunction just or convenient that such order should be made and any Receiver such order may be made either unconditionally or upon such terms and conditions as the Court or judge shall think just; and if an injunction is asked, either before or at or after the Damages in hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass such injunction may be granted, if the Court or judge shall think fit whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title and whether the estates claimed by both or by either of the parties are legal or equitable. 9. In all cases in which the Court has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract or agreement or against the commission or performance continuance of any wrongful act or for the specific performance of any covenant, contract or agreement, the Court if it thinks fit may award damages to the party injured either in addition to or in substitution for such injunction or specific performance and such damages may be ascertained in such a manner as the Court may direct, or the Court may grant such other relief as it may deem just. Orders of court as against purchasers Rules of equity to prevail Evidence Minors 10. An order of the Court under any statutory or other jurisdiction shall not as against a purchaser whether with or without notice be invalidated on the ground of want of jurisdiction or of want of any concurrence, consent, notice or service. 11. Generally in all matters in which there is any conflict or variance between the rules of Equity and Common Law with reference to the same matter the rules of Equity shall prevail. 12. Subject to the provisions of any Act of the Parliament of Canada and of any Ordinance the laws of evidence which govern in the administration of civil justice in England shall obtain in the Courts. 13. Minors may sue for wages in the same way as if of full age. No. 6 of 1893; ss. 10, 548, 549. CLERK'S DUTIES. lerk's duties Hours of office Official duties 11. The duties of the clerk shall be: 1. To attend at his office and keep the same open between the hours of ten in the forenoon and four in the afternoon on all days except Sundays and holidays and except on Saturdays and during vacation when the same shall be closed at one o'clock in the afternoon. 2. On application of any person by himself or his agent, (b) To issue all writs of summons, warrants, precepts, writs (c) Tax costs, enter judgments and record all judgments and orders pronounced, given and made; and books 3. To keep an account of all fines, fees and moneys payable Accounts or paid into Court entering all such amounts in proper approved books in which shall be entered regularly under separate headings all the proceedings taken in any suit, all moneys received and paid out and the persons to whom and by whom the same have been paid which books shall be accessible at all times to suitors and the public; 4. To attend all sittings of the judge in chambers unless his sitting in attendance is dispensed with by the judge; and chambers 5. To do and perform all such other acts and duties as inay Duties be necessary for the due administration of civil justice in the generally Territories. No. 6 of 1893, s. 17; No. 7 of 1895, s. 2; No. 6 of 1897, s. 1 (6). of clerk 12. In the absence of the clerk the judge may appoint Absence a suitable person to perform the duties prescribed in the preceding section. No. 6 of 1897, s. 1 (6). 13. All books, papers, documents and moneys in the posses- On vacancy sion of the clerk by virtue of or appertaining to his office shall Appointment upon his resignation, removal or death immediately become the of substitute property of such person as the judge usually exercising juris Disposition diction in the district shall appoint as clerk pending the documents appointment of a new clerk of the court. No. 6 of 1893, and moneys s. 17 (4). PUBLIC ADMINISTRATORS. of books, administrator 14. In each judicial district or for such other portion of the Public Territories as may be deemed desirable the Lieutenant Gover- and official nor may appoint a fit and proper person being an advocate of guardian not less than five years' standing to be a public administrator and official guardian under the name of public administrator. No. 6 of 1897, s. 20. neglected deceased 15. When any person dies whether testate or intestate and Duty as to his lands, personal estate and effects have not been taken property of possession of by his executors or next of kin the public' administrator in the judicial district where the property or any of the property is situated is hereby empowered and it shall be his duty when the facts are brought to his notice to forthwith take possession of the said lands, personal estate and effects and the same to safely keep, preserve and protect and pending the grant of probate to an executor or the issue of letters of administration as the case may be the public administrator shall have all the powers of an executor or administrator. No. 6 of 1897, s. 21. letters of to public 16. In the absence of any application for probate of a will Issue of or for letters of administration within one month after the administration decease of any person leaving property, letters of administra- administrator tion to the lands, personal estate and effects of the deceased may be granted to the public administrator: Provided nevertheless that such letters of administration Revocation of may at any time after the grant thereof be revoked in the Security by discretion of the judge upon the application of any executor applying for probate of will or next of kin of the deceased applying for letters of ac'm nistration. No. 6 of 1897, s. 23. 17. Each public administrator shall furnish security to the administrator Satisfaction of the Lieutenant Governor in Council in the penal sum of $2,000 conditioned for the due performance of his duties; but shall not otherwise be required to furnish security as administrator unless the judge specially so directs and such security may be furnished by bond or agreement of any guarantee company approved by the Lieutenant Governor in Council. No. 6 of 1897, s. 27. May be required to apply for letters of administration Yearly statement of emoluments Practice and procedure Rules of court Existing rules continued 18. After the expiry of one month from the death of any person leaving property any person interested in the estate. may by written notice require the public administrator (if he has not already done so) to apply for letters of administration and it shall then be the duty of the said public administrator to make such application provided the person making such requisition shall make such deposit with the public administrator as a judge may deem sufficient to cover his costs, charges and expenses if the public administrator so desire. No. 6 of 1897, s. 30. 19. During the month of January in each year the public. administrator shall furnish to the Lieutenant Governor in Council a statement in detail verified on oath of the emoluments of his office for the preceding year ending the 31st day of Decembr. No. 6 of 1897, s. 31. PRACTICE AND PROCEDURE. 20. The practice and procedure in the Supreme Court of the Territories shall be regulated by this Ordinance and the rules of Court; but the judges of the Supreme Court or a majority of them shall have power to frame and promulgate such additional rules of Court not inconsistent with this Ordinance as they may from time to time dem necessary or expedient. No. 6 of 1897, s. 1 (9). 21. Subject to the provisions of this Ordinance and the rules of Court the practice and procedure existing in the Supreme Court of Judicature in England on the first day of January, 1898, shall as nearly as possible be followed in all cau-es, matters and proceedings. No. 6 of 1897, s. 1 (9); No. 12 of 1898, s. 31. 22. The rules of Court already made and promulgated by the judges of the Supreme Court are hereby continued in force until repealed, altered or amended by them. No. 6 of 1897, s. 19. RULES OF COURT. [The division of these rules into orders and headings is not to affect the interpretation thereof.] Part I. General Practice and Procedure. ORDER I FORM AND COMMENCEMENT OF ACTION. ment 1. Every action except as otherwise provided shall be com- Commence. menced by writ of summons in form A in the schedule hereto of action which writ shall be issued by the clerk upon receiving from the plaintiff or his advocate a præcipe therefor in which shall Præcipe be set forth (a) The names of the parties to the action; and (b) Their places of residence temporary or otherwise; and of claim 2. At the time of the issue of the writ the plaintiff or his ad- Statement vocate shall leave with the clerk two copies of the plaintiff's statement of claim and of the relief or remedy to which he claims to be entitled; one of such copies shall be attached to such writ by the clerk and the other shall be filed by him in his office and a copy of such statement of claim shall be attached to each copy of such writ required for service. No. 6 of 1893, s. 20. ORDER II. WRIT OF SUMMONS. I.-Generally. dated 3. Every writ of summons and also (unless otherwise pro- Writs to be vided) every other writ shall bear the date of the day on which the same is issued. return of writ (2) When the defendant resides in the judicial district Time for whence the writ of summons issued the writ shall be returnable after the expiration of twenty days from the service upon the defendant. |