Appointment of assessors. Assessor duly summoned three clear days shall give his at tendance and assistance. Summons XXIX.-Assessors. Sec. 128. The judge or surrogate, on the application of any party, or without any such application, if he considers that the nature of the case requires it, may appoint one or more assessors to advise the court upon any matters requiring nautical or other professional knowledge. Sec. 129. Each assessor named in the list of assessors prepared under the Act on being duly summoned three clear days before the day on which his attendance is required, shall give his attendance and assistance accordingly; such summons shall be sent by the registrar or deputy registrar in a registered letter directed to the assessor at his address as specified in the list, or such other shall be sent address as shall on the application of the assessor be substituted in registered therefor in a copy of the list to be kept in the registrar's or deputy Assessor fail- registrar's office. If any assessor being duly summoned shall, ing to attend without reasonable excuse fail to attend or to give his assistance, the Minister of Justice, on the application of the judge, may remove his name from the list. The judge or surrogate shall have power, in case of the absence or illness of any assessor summoned, or for other cause which shall appear to him sufficient, to pass over such assessor and cause another to be summoned in his stead. letter. subject to removal. In case of absence or illness of assessor. Assessors to Sec. 130. Each assessor shall be paid in each case the sum be paid $6 per of six dollars for each day on which he shall attend in pursuance day, and the of any fees to be costs such summons for that purpose as aforesaid, and the fees of each assessor shall be costs in the cause; but shall in the first instance be paid by such of the parties to the action as the judge or surrogate may direct. in the cause. Assessors to be selected in rotation. Filing notice of trial. If there has been no appearance. In an action Sec. 131. The assessors shall be selected from such list in rotation unless the judge or surrogate for any special reason shall otherwise direct. XXX.-Setting down for Trial. Sec. 132. An action shall be set down for trial by filing a notice of trial. A form of notice of trial will be found in schedule A hereto, No. 29. Sec. 133. If there has not been any appearance, the plaintiff may set down the action for trial, on obtaining from the judge or surrogate leave to proceed ex parte ;— (a.) In an action in personam, or an action against proceeds in personam. in court, after the expiration of two weeks from the service of the writ of summons; In an action in rem. If an appear ance. (b.) In an action in rem (not being an action against proceeds in court), after the expiration of two weeks from the filing of the warrant. Sec. 134. If there has been appearance, either party may set down the action for trial;— (a.) After the expiration of one week from the entry of the After expiraappearance, unless an order has been made for pleadings, or an tion of one application for such an order is pending; week. (b.) If pleadings have been ordered, when the last pleading If pleadings has been filed, or when the time allowed to the adverse party for have been filing any pleading has expired without such pleading having been filed. ordered. In collision cases the preliminary acts may be opened as soon In collision as the action has been set down for trial. cases. to have ac Sec. 135. Where the writ of summons has been endorsed Where claim with a claim to have an account taken, or the liability has been count taken. admitted or determined, and the question is simply as to the amount due, the judge or surrogate may, on the application of When liabil either party, fix a time within which the accounts and vouchers, ity admitted, and the proofs in support thereof, shall be filed, and at the Fixing a time expiration of that time either party may have the matter sent for filing acdown for trial. &c. counts, &c. XXXI.-Trial. Sec. 136. After the action has been set down for trial, any Time and party may apply to the judge or surrogate, on notice to any other place of trial. party appearing, for an order fixing the time and place of trial. Sec. 137. The judge or surrogate may order such trial to Judge or surtake place before himself or before the judge or any surrogate. rogate may order. than that in Sec. 138. Where the trial is to be had in any town or place Where trial is other than that in which the pleadings are filed, it shall be the to be had in duty of the party who obtains the order fixing the place of trial place other to deliver to the registrar or deputy registrar with whom the which pleadpleadings are filed, a sufficient time before the day fixed for hear- ings are filed. ing, a præcipe requiring him to transmit to the registrar or deputy registrar nearest the place where the trial is to be had, the pleadings and such other papers as may be specified in the præcipe, and at the same time to deposit with him a sufficient sum to cover the expense of transmitting and retransmiting such pleadings and papers, and thereupon it shall be the duty of the registrar or deputy registrar forthwith to transmit the pleadings and such other papers as may be specified accordingly. Sec. 139. At the trial of a contested action the plaintiff shall Who shall in general begin; but if the burden of proof lies on the defend- begin. ant, the judge or surrogate may direct the defendant to begin. Sec. 140. If there are several plaintiffs or several defend- If several ants, the judge or surrogate may direct which plaintiff or which plaintiffs or defendant shall begin. defendants. action. Sec. 141. The party beginning shall first address the court, Order of proand then produce his witnesses, if any. The other party or par- ceeding in the ties shall then address the court, and produce their witnesses, if trial of an any, in such order as the judge or surrogate may direct, and shall have a right to sum up their evidence. In all cases the party beginning shall have the right to reply, but shall not produce further evidence, except by permission of the judge or surrogate. : Counsel Uncontested Assessment of when and to Rules of evi- Sec. 142. Only one counsel shall in general be heard on each side; but the judge or surrogate, if he considers that the nature of the case requires it, may allow two counsel to be heard on each side. Sec. 143. If the action is uncontested, the judge or surrogate may, if he thinks fit, give judgment on the evidence adduced by the plaintiff. XXXII.-References. Sec. 144. The judge or surrogate may, if he thinks fit, refer the assessment of damages and the taking of any account to the registrar or deputy registrar either alone, or assisted by one or more merchants as assessors. Sec. 145. The rules as to evidence, and as to the trial, shall of reference. apply, mutatis mutandis, to a reference to the registrar or deputy registrar, and the registrar or deputy registrar may adjourn the proceedings from time to time, and from place to place, if he shall think necessary. Rules of prac- of Ontario to Counsel fees Report in Where regis Sec. 146. The practice to be observed on references shall be the same as that prescribed by the rules of practice of the Supreme Court of Judicature for Ontario, for the regulation of references before the Master in Ordinary of the Supreme Court. Sec. 147. Counsel may attend the hearing of any reference, but the costs so incurred shall not be allowed on taxation unless the registrar or deputy registrar shall certify that the attendance of counsel was necessary. Sec. 148. When a reference has been heard, the registrar or deputy registrar shall draw up a report in writing of the result, showing the amount, if any, found due, and to whom, together with any further particulars that may be necessary. A form of the report will be found in schedule A hereto, No. 30. Sec. 149. Where the registrar or deputy registrar is directed trar or deputy to appoint money to be paid at some time and place, he is to registrar is directed to ap- appoint the same to be paid into some incorporated bank at its point money head office, or at some branch or agency office of such bank in to be paid. Where money bank in pur- Ontario to the joint credit of the party to whom the same is made payable, and of the registrar or deputy registrar of the court; the party to whom the same is made payable to name the bank into which he desires the same to be paid, and the registrar or deputy registrar to name the place for such payment. Sec. 150. Where money is paid into a bank in pursuance of such appointment the party paying may pay the same either to the credit of the party to whom the same is made payable, or to appointment. the joint credit of the party and the registrar or deputy registrar, and if the same be paid to the sole credit of the party, such party shall be entitled to receive the same without an order. Where de- Sec. 151. Where default is made in the payment of money appointed to be paid into a bank, the certificate of the cashier, manager or agent of the bank where the same is made payable, or of the like bank officer shall be sufficient evidence of default. Sec. 152. When the report is ready, notice shall be sent to Notice of rethe parties, and either party may thereupon take up and file the port being ready. report. Sec. 153. Within two weeks from the filing of the registrar's Notice of or deputy registrar's report; either party may file a notice of motion to motion to vary the report, specifying the items objected to. vary report. motion to Sec. 154. At the hearing of the motion the judge or surro- Hearing of gate may make such order thereon as to him shall seem fit, or may remit the matter to the registrar or deputy registrar for further inquiry or report. vary. Sec. 155. If no notice of motion to vary the report is filed When report within two weeks from filing the registrar's or deputy registrar's shall stand report, the report shall stand confirmed. confirmed. on reference Sec. 156. The registrar or deputy registrar is to enter in the Proceedings cause book from time to time the proceedings, taken before him, to be entered and the directions he gives in relation to the prosecution of the in cause book. reference or otherwise. XXXIII.-Costs. Sec. 157. In general costs shall abide the event; but the To abide the judge or surrogate may in any case make such order as to the event. costs as to him shall seem fit. Sec. 158. The judge or surrogate may direct payment of a Lump sum. lump sum in lieu of taxed costs. costs. Sec. 159. If any plaintiff (other than a seaman suing for his Security for wages or for the loss of his clothes and effects in a collision), or any defendant making a counterclaim is not resident in the Province of Ontario, the judge or surrogate may, on the application of the adverse party, order him to give bail for costs. Sec. 160. A party claiming an excessive amount, either by Party claimway of claim, or of set-off or counterclaim, may be condemned in ing an excesall costs and damages thereby occasioned. Isive amount. afterwards Sec. 161. If a tender is rejected, but is afterwards accepted, Tender reor is held by the judge or surrogate to be sufficient, the party jected but rejecting the tender shall, unless the judge or surrogate shall accepted. otherwise order, be condemned in the costs incurred after tender made. Sec. 162. A party, who has not admitted any fact which in Party not adthe opinion of the judge or surrogate he ought to have admitted, mitting fact. may be condemned in all costs occasioned by the non-admission. Sec. 163. Any party pleading at unnecessary length or taking Pleading at any unnecessary proceeding in an action may be condemned in all unnecessary length. costs thereby occasioned. Bill of costs must be filed appointment and notice. Practice in Fither party present. Review with XXXIV.-Taxation of Costs. Sec. 164. A party desiring to have a bill of costs taxed shall file the bill, and shall procure an appointment from the registrar or deputy registrar and shall serve the opposite party or parties with notice of the time at which the taxation will take place. Sec. 165. The practice upon the taxation of costs shall be regulated, subject to the provisions of these rules, by the rules and practice in force in the Supreme Court of Judicature for Ontario. Sec. 166. At the time appointed, if either party is present the taxation shall be proceeded with. Sec. 167. Within one week from the completion of the taxin one week. ation, application may be made to the judge or surrogate to Who may tax of taxation. review the taxation. Sec. 168. Costs may be taxed either by the judge, or a surcosts: review rogate or by the registrar or a deputy registrar, and as well between solicitor and client, as between party and party, and upon any applieation to a surrogate to review the taxation of a Appeal from deputy registrar, he may refer the matter to the registrar. Either party may appeal from the taxation of the registrar to the judge. taxation. Costs on reduction of bill. Certificate payment of Sec. 169. If in a taxation between solicitor and client more than one sixth of the bill is struck off, the solicitor shall pay all the costs attending the taxation. Sec. 170. When a bill of costs has been taxed by the regisand order for trar or deputy registrar he shall certify at the foot of the bill the amount at which he has taxed it, and the solicitor may then if necessary apply to the judge or surrogate for an order for the payment thereof. costs. Property un be ordered to be sold by XXXV.-Appraisement and Sale, &c. Sec. 171. The judge or surrogate may, either before or after der arrest may final judgment, order any property under the arrest of the court to be appraised, or to be sold with or without appraisement, and either by public auction or by private contract and may direct what notice or notices by advertisement or otherwise shall be given or may dispense with the same. auction or otherwise, notice to be given. Property deteriorating. Property of Sec. 172. If the property is deteriorating in value, the judge or surrogate may order it to be sold forthwith. Sec 173. If the property to be sold is of small value, the small value. judge or surrogate may, if he thinks fit, order it to be sold without a commission of sale being issued. Removal of Sec. 174. The judge or surrogate may, either before or after property un- final judgment order any property under arrest of the court to be removed, or any cargo under arrest on board ship to be discharged. der arrest. Appraisewent, sale Sec. 175. The appraisement, sale and removal of property, and the discharge of cargo, shall be effected under the authority |