of a commission addressed to the marshal or to a deputy marshal, and removal, Sec. 176. Every commission for the appraisement or sale of Commision, executed. to be filed Sec. 177. The commission shall, as soon as possible after its Commission execution, be filed by the marshal or deputy marshal with a with a return. return setting forth the manner in which it has been executed. cuted; pro Sec. 178. At the request of the purchaser the marshal or Bills of sale, deputy marshal shall execute a bill of sale of any ship sold by by whom exe. him; such bill of sale to be prepared at the cost of the purchaser visions reand tendered for execution to the marshal or deputy marshal; a specting the copy of the decree or order for sale, authenticated by the seal of same. the court shall be attached to such bill of sale. A form of bill of sale will be found in schedule A hereto, No. 36. court. Sec. 179. As soon as possible after the execution of a com- Payment of mission of sale, the marshal or deputy marshal shall pay into proceeds into court the gross proceeds of the sale, and shall with the commission file his accounts and vouchers in support thereof. shal's account Sec. 180. The registrar or deputy registrar shall tax the Marshal's or marshal's or deputy marshal's account, and shall report the deputy maramount at which he considers it should be allowed; and any to be taxed. party who is interested in the proceeds may be heard before the registrar or deputy registrar on the taxation. Sec. 181. Application may be made to the judge or surrogate Review of on motion to review the registrar's or deputy registrar's taxation such taxation. under the next preceding section. Sec. 182. The judge or surrogate may, if he thinks fit, order Inspection of any property under the arrest of the court to be inspected. A property unform of order for inspection will be found in schedule A hereto, No. 37. der arrest. notice, &c., Sec. 183. No order for advertising a notice of the action and Order for adintended sale in an action in rem, by default, shall be made vertising unless upon the application for such order it is made to appear to in an action the satisfaction of the judge for surrogate as the case may be ;- in rem, when (a) necessary. (a.) That no owner or mortgagee of the property proceeded Owner nonagainst resides in Canada; or— resident. of owner un- (b.) That the whereabouts of none of the owners or mortgagees Whereabouts in Canada can be ascertained after reasonable efforts in that behalf; or -or to the the institution of the action. (c.) That the institution of the action has come to the know- Knowledge of ledge of the owners or some of them, if in Canada,knowledge of the agent in Canada of the owners or some of Notice of-sale- practice williams Bruse $205. Rules 18.19.00 aduurally Eng, Coote page 126-191. High at Order for sale in an action in rem when made. Knowledge to them, and that the institution of the action has come to the knowledge of at least one of the mortgagees under each mortgage upon the property registered in Canada, or to the knowledge of his agent, if any, in Canada. Sec. 184. No order for the sale of the property proceeded against in an action in rem, whether by default or otherwise, shall be made, unless upon the application for such order it is made to appear to the satisfaction of the judge or surrogate as the case may be ;— (a.) That the institution of the action has come to the knowa mortgagee ledge of at least one of the mortgagees under each mortgage upon the property registered in Canada, or to the knowledge of his agent, if any, in Canada; or— Whereabouts (b.) That the whereabouts of none of the mortgagees in Canada of mortgagee can be ascertained after reasonable efforts in that behalf. unknown. Discontinu notice; costs in such case. XXXVI.-Discontinuance. Sec. 185. The plaintiff may, at any time, discontinue his ance by filing action by filing a notice to that effect, and the defendant shall thereupon be entitled to have judgment entered for his costs of action on filing a notice to enter the same. The discontinuance Notice to pre- of an action by the plaintiff shall not prejudice any action conjudice other parties. solidated therewith or any counter-claim previously set up by the defendant. Forms of notice of discontinuance and of notice to enter judgment for costs will be found in schedule A hereto, Nos. 38 and 39. Consent in writing an XXXVII.-Consent. Sec. 186. Any consent in writing signed by the parties may, by permission of the registrar, or deputy registrar, be filed, and order of court. shall thereupon become an order of court. Fifteen days notice of intention to appeal. XXXVIII.—Notice of Appeal. Sec. 187. A party intending to appeal from a decision of the court to the Supreme Court of Canada must give notice of his intention to appeal to the opposite party within fifteen days from the time of the pronouncing of the decision appealed from, Rules of Su- and otherwise the appeal shall be governed by the rules of the Supreme Court of Canada aforesaid. A form of notice of appeal will be found in schedule A hereto, No. 40. preme Court govern. Canadian Bank of Com merce. or agency XXXIX.—Payment of Money into and out of Court. Sec. 188. A person desiring to pay money into court shall pay the same into the Canadian. Bank of Commerce at Toronto or at some branch or agency thereof or as mentioned in the next following section, and in no other way. Branch banks Sec. 189. Money required to be paid into court in any of the following places (so long as the Canadian Bank of Commerce shall have no branch office thereat), shall be paid into the branch or offices, agency office of the bank set opposite the said places respectively: At Cornwall Owen Sound Picton Port Arthur Bank of Montreal. Sec. 190. The person paying money into court shall first Direction to obtain from the registrar or deputy registrar a direction to the the bank. bank to receive the money. direction is to Sec. 191. The person applying for the direction is to file a Person applypræcipe therefor and is to leave with the officer issuing the ing for the direction the judgment, order, writ or pleading, or copy thereof, file a praecipe under which the money is payable. And in case the direction is therefor. obtained elsewhere than in Toronto he shall also leave the necessary postage for the transmission of the document to the registrar and a further copy of the pleading for transmission. Sec. 192. When the direction is issued elsewhere than in Direction isToronto the officer issuing the same shall forthwith transmit to sued elsethe registrar by post the præcipe for such direction together Toronto. with the papers left on the application therefor. where than in terest shall Sec. 193. A person paying money into court elsewhere than When credit in Toronto shall be entitled to credit therefor as of the date on shall be given which the same was deposited in the bank, but the party entitled and when inthereto shall not be entitled to receive bank interest thereon commence. until the money shall have been received by the Canadian Bank of Commerce at Toronto. Sec. 194. The bank on receiving money to the credit of any Bank to give action or matter is to give a receipt therefor in duplicate, and one receipt in duplicate. copy shall be delivered to the party making the deposit, and the other shall be posted or delivered the same day to the registrar. Sec. 195. When a bank receipt for the amount shall be When payfiled, the payment into court shall be deemed to be complete. ment deemed complete. Sec. 196. Money shall be paid out of court upon the cheque Money how of the judge or surrogate, countersigned by the registrar and not paid out of otherwise. court. Sec. 197. The person entitled to the money shall produce Production of to and leave with the registrar the order and a copy thereof order and entitling such person to the money. copy. no caveat has Sec. 198. The registrar after satisfying himself that no caveat Registrar against the payment of the money has been entered, or if entered shall counter that it has been set aside or withdrawn, shall countersign the sign order if order thus-" No caveat entered against payment of this money been entered. -registrar," and shall re-deliver the order to the person entitled thereto after making the necessary entries in his books respecting the same. Sec. 199. Bail for latent demands shall not, unless the Bail for latent judge or surrogate shall otherwise order, be required on the demands. payment of money out of court. To prevent the arrest of property, notice may be filed and caveat entered. To prevent release of pro perty under arrest. To prevent payment of XL.-Account Books. Sec. 200. The registrar shall keep such books of account and otherwise relating to money in court or invested under the authority of the court as the judge may from time to time think necessary to ensure safety and accuracy and ready reference. Sec. 201. The books so kept shall be open to inspection, and the registrar shall give a certificate of the state of any account or an extract therefrom at the desire of any party interested or his solicitor. XLI.-Caveats. Sec. 202. Any person desiring to prevent the arrest of any property may file a notice, undertaking within three days after being required to do so, to give bail to any action or counterclaim that may have been, or may be, brought against the property, and thereupon the registrar or deputy registrar shall enter a caveat in the "caveat warrant book hereinafter mentioned. Forms of notice and of caveat warrant will be found in schedule A hereto, Nos. 41 and 42. Sec. 203. Any person desiring to prevent the release of any property under arrest, shall file a notice, and thereupon the registrar or deputy registrar shall enter a caveat in the "caveat release book" hereinafter mentioned. Forms of notice and of caveat release will be found in schedule A hereto, Nos. 43 and 44. Sec. 204. Any person desiring to prevent the payment of money out of money out of court shall file a notice, and thereupon the registrar shall enter a caveat in the "caveat payment book" hereinafter mentioned. Forms of notice and of caveat payment will be found in schedule A hereto, Nos. 45 and 46. court. If person entering caveat is not a party. Entry of caveat war rant shall not prevent issue of warrant. Liability of party entering caveat release or caveat payment. If caveat not entered in Sec. 205. If the person entering a caveat is not a party to the action, the notice shall state his name and address, and an address within three miles of the registry at which it shall be sufficient to leave all documents required to be served upon him. Sec. 206. The entry of a caveat warrant shall not prevent the issue of a warrant, but a party at whose instance a warrant shall be issued for the arrest of any property in respect of which there is a caveat warrant outstanding, shall be condemned in all costs and damages occasioned thereby, unless he shall show to the satisfaction of the judge or surrogate good and sufficient reason to the contrary. Sec. 207. The party at whose instance a caveat release or caveat payment is entered, shall be condemned in all costs and damages occasioned thereby, unless he shall show to the satisfaction of the judge or surrogate good and sufficient reason to the contrary. Sec. 208. If the caveat has not been entered in the office where the writ is issued, the registrar or any deputy registrar office where with whom a caveat has been entered, shall on the plaintiff's application transmit to the registrar or deputy registrar at whose writ issued. office the writ is issued, a certified copy of the undertaking upon which the caveat was entered. Sec. 209. A caveat shall not remain in force for more than Expiry of six months from the date of entering the same. caveat. Sec. 210. A caveat may at any time be withdrawn by the Withdrawal person at whose instance it has been entered, on his filing a notice of caveat. withdrawing it. A form of notice of withdrawal will be found in schedule A hereto, No. 47. Sec. 211. The judge or surrogate may overrule any caveat. Overruling caveat. Sec, 212. Application may be made in chambers to overrule Application any caveat. XLII.-Subpœnas. in chambers. Sec. 213. Any party desiring to compel the attendance of a Attendance witness shall serve him with a subpoena, which shall be prepared of witnesses. by the party and issued under the seal of the court. Forms of subpoenas will be found in schedule A hereto, Nos. 48 and 49. Sec. 214. A subpœna may contain the names of any number Any number of witnesses, or may be issued with the names of the witnesses in of witnesses blank. or in blank. Sec. 215. Service of the subpoena must be personal, and may Personal be made by the party or his agent, and shall be proved by affidavit. service. XLIII.--Orders for payment. Sec. 216. On application by a party to whom any sum has Payment out been found due, the judge or surrogate may order payment to be of money in made out of any money in court applicable for the purpose. court. money in If there is no such money in court, or if it is insufficient, the Payment judge or surrogate may order that the party liable shall pay the when no sum found due, or the balance thereof, as the case may be, within court or the such time as to the judge or surrogate shall seem fit. The party amount is to whom the sum is due may then obtain from the registry and serve upon the party liable an order for payment under seal of the court. A form of order for payment will be found in schedule A hereto, No. 50. XLIV.-Attachments. insufficient. Sec. 217. If any person disobeys an order of the court, or Contempt of commits a contempt of court, the judge or surrogate may order court. him to be attached. A form of such attachment will be found in schedule A hereto, No. 51. attached for Sec. 218. The person attached shall without delay be brought Proceedings before the judge or surrogate, and if he persists in his disobedience when person or contempt, the judge or surrogate may order him to be com- disobedience mitted. Forms of order for committal and of committal will be or contempt. found in schedule A hereto, Nos. 52 and 53. The order for committal shall be executed by the marshal or Order for deputy marshal. committal. |