3. A notice to admit documents shall be in the Form No. 11, in Appendix B., with such variations as circumstances may require. O. 32, r. 3, (E).

0. XXXII, rr. 3-7.

297 Form of notice to admit. [Cf. R. 527, (0)] 298

admit facts.

refusal or

admit.

4. Any party may, by notice in writing, at any time not Notice to later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice or within such further time as may be allowed by the Court or a Judge, the costs of Costs of proving such fact or facts shall be paid by the party so neglect to neglecting or refusing, whatever the result of the cause, mat- [Cf.R.1149,(O)]. ter, or issue may be, unless at the trial or hearing the Court or Judge certify that the refusal to admit was reasonable, or unless the Court or Judge shall at any time otherwise order or direct. Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favor of any person other than the party giving the notice; provided also, that the Court or a Judge may at any time allow any party to amend or withdraw any admission so made on such terms as may be just. O. 32, r. 4, (E); C. S. 1903, c. 112, s. 82.

299

of admissions.

5. A notice to admit facts shall be in the Form No. 12, in Form of notice Appendix B., and admissions of facts shall be in the Form No. 13, in Appendix B., with such variations as circumstances may require. O. 32, r. 5, (E).

300

order upon facts.

6. Any party may at any stage of a cause or matter, where Judgment or admissions of fact have been made, either on the pleadings, or admissions of otherwise, apply to the Court or a Judge for such judgment (Cf. R. 616,(0)]. or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court or a Judge may upon such application make such order, or give such judgment, as the Court or Judge may think just. O. 32, r. 6, (E).

301

if admissions

7. It shall be sufficient if admissions are signed by the Sufficient solicitor of the party by whom, or on whose behalf, they signed by purport to be made. R. 528, (O).

solicitor.
[Cf. O. 32. r. 7,
(E)].

0. XXXII,

rr. 8, 9,

302

Notice to produce documents.

[Cf. R. 469, (O)].

Evidence of
service of
notice to
produce.
(Cf. R. 487, (0)).

303 Costs of

notice where documents unnecessary.

O. XXXIII, rr. 1–3.

301

Settlement of
issues.
[R. 376, (0)].

305 Direction as to inquiries or [R. 646, (O)].

accounts.

306 Inquiries, etc., to be before official Referees.

Jurisdiction

of official Referees.

8. Notice to produce documents shall be in the Form No 14 in Appendix B., with such variations as circumstances may require. An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served. O. 32, r. 8, (E).

9. If a notice to admit or produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice. O. 32, r. 9, (E).

ORDER XXXIII.

ISSUES, ACCOUNTS AND REFERENCES.

1. Where in any cause or matter it appears to the Court or a Judge that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court or a Judge. O. 33, r. 1, (E).

2. The Court or a Judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manO. 33, r. 2, (E). See C. S. 1903, c. 112, s. 95.

ner.

3. (1) Subject to the provisions of the following subRules, all inquiries, accounts, sales, references and duties which have been heretofore or could be prosecuted, taken, made, carried out, or performed by or referred to a Referee in Equity or other person specially named or appointed by the Supreme Court in Equity or a Judge therein, shall be prosecuted, taken, made, carried out, or performed by or referred to one of the Referees named in the principal Act: the said Referees shall have respectively all and the like rights, privileges, jurisdiction and authority which were at the commencement of these Rules vested in said Referees in Equity and the course of practice and proceeding before such Referees shall, subject to said principal Act and these Rules, continue as heretofore; the duties of an examiner shall in all

rr. 4-6.

cases be performed by the said Referees respectively, who 0. XXXIII, shall have the same power, jurisdiction and authority in respect thereto as heretofore. C. S. 1903, c. 112, s. 168 (1), am.

(2) Nothing in the preceding sub-Rule or in Rule 7 shall Proviso. be deemed to override or affect the provisions of section 5 of Chapter 92 of the Consolidated Statutes, 1993.

(3) Nothing in this Rule contained shall prevent the Court Court may dispose of or a Judge from disposing of all matters without a reference. matters withand they or he may direct the proceedings to be taken in the [Cf. R. 656,(0)]. Court or in Chambers.

out reference.

307

application of

4. A reference may be made by the Court or a Judge on Reference on the application of either party to a Referee for any inquiry either party. or other purposes. C. S. 1903, c. 112, s. 167.

308

of business Referees.

5. All matters referred to the said Referees shall be Distribution distributed among them by the proper officer, who shall among official nominate and select them, having regard in such nomination (Cf. O. 36, r. 15, (E)]. and selection to the interest and convenience of the parties. and to the locality of any lands being the subject-matter of any reference, and, subject to the foregoing provisions, as near as may be, according to regular and just rotation. The said proper officer shall indorse upon every judgment or order and upon any order of reference made by the Court or a Judge upon production of the latter to him, the name of the Referee to perform the duties (if any) referred thereunder, and such indorsement shall have the same effect as if the name of such Referee had been inserted in such judgment or crder; prcvided that it shall be lawful for the Court or a Judge on the application on motion or petition of a party to any cause or matter, on good cause shown, to direct or transfer a reference to any one of the said Referees other than the one named by the said officer regard being also had in making such change, to the convenience of parties and locality of lands as above. C. S. 1903, c. 112, s. 169, am.

309

Referee in

than wherc

6. Where the interests and convenience of the parties or Selection of the locality of the lands, the subject-matter of the reference, county other render it desirable to do so, or where from the absence or in- land lies, etc. ability of the Referees appointed for the county from any cause to attend to any reference, or where no such Referees have been appointed for any county, or being appointed, have

0. XXXIII, rr. 7-10.

310

Receiver to be appointed

[See O. 47, post].

or either of them has omitted to give the security required by the principal Act, the proper officer, in distributing the references under these Rules, may select a Referee from some other county than that in which the land, the subject-matter of the reference, is situated, or in which the parties to such reference or their witnesses may reside; due regard being had in making such selection to the interest and convenience of the parties interested in any such reference, and to the saving of unnecessary expense. C.. S. 1903, c. 112, s. 170.

ช.

7. In any cause, matter or proceeding in which it is deemed from Referees. advisable to appoint a receiver, it shall be the duty of the Court or Judge to appoint, and such Court or Judge is hereby limited in such appointments to one of the said Referees. C. S. 1903, c. 112, s. 171.

311 Power to Court or

Referee to obtain assistance of experts.

(E)].

S. It shall be lawful for the Court or a Judge or any Referee, on the order of the said Court or Judge, to obtain the assistance of accountants, merchants, engineers, surveyors,

[Cf. O. 55, r. 19, actuaries, or other skilled persons, the better to enable such Court, Judge, or Referee to determine any matter in issue in any cause, proceeding or inquiry, whose remuneration shall not exceed the sum of five dollars for each day they are employed, in addition to their travelling expenses, to be paid on the order of the Court or Judge, and taxed as costs in the cause or proceeding. C. S. 1903, c. 112, s. 172.

312

Fees of
Referee.

313 Notice by Referee to

ested in reference.

10. The fees to be taken by a Referee shall in all cases be those provided by the table of fees appended to these Rules, and all such fees shall be subject to taxation by the proper officer, and his taxation shall be subject to review by the Court or a Judge. C. S. 1903, c. 112, s. 173, am.

10. Unless otherwise directed by the Court or a Judge, parties inter- notice shall be given by the Referee of the first proceeding before him on the reference to every party affected by or interested in the inquiry. No summons or warrant shall be Proceeding issued by any Referee on a reference other than to require the [Cf. R. 664,(0)]. parties to proceed, which they shall do forthwith, if required by the Referee, with power of adjournment, and, on omission to adjourn, with power to proceed on notifying the parties. C. S. 1903, c. 112, s. 174, am.

with reference

0.

rr.

314 Delay in pro

ceeding with
(C. R. 663, (O);

reference.

O. 33. r. 9, (E)].

11. If the party obtaining a judgment or order directing XXXIII, a reference, shall not within one month from the time of settling the same, proceed therewith before the Referee named therein, or if any unnecessary delay take place on any refer ence, either party, or the Referee, may be ordered by the Court or a Judge on good cause shown, peremptorily to proceed with the same, on such pain of dismissal of the cause, or excluding further proof, or payment of costs, or ordering the return of the Referee's proceedings and a new reference, as they or he may deem right. C. S. 1903, c. 112, s. 175.

12. No interrogatories shall be filed on a reference, or the like, but the examination shall always be viva voce by question and answer, unless directed by the Court or a Judge to be upon interrogatories. C. S. 1903, c. 112, s. 175, am. See O. 58, r. 32, post.

316

accounts by

party.

books or

13. Accounting parties shall in all cases, unless the Court Form of or a Judge shall otherwise direct, file with the Referee, at a accounting time to be named by him, a debtor and creditor account, verified by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by the affidavit as an exhibit, and shall not be annexed thereto. The plaintiff may supply by additional account and proof any omissions of the defendant. Any omissions may also be supplied by the defendant. Each party may be examined on oath for or against his own or the opposite party's account. The books or writings of either party, or of any Evidence by person or party represented by him, or under whom he claims, writings. may also be used in evidence for or against the party producing them, the Referee reporting as to the nature of the evidence, when objected to, and the credit due to it. Such books or writings, when so used in evidence, shall be evidence to be used before the Court or Judge, in the same manner as any other evidence taken in the same cause. The Court or Judge may direct that in taking accounts the books of account in which the accounts required to be taken have been kept shall be taken as prima facie evidence of the truth of the matters therein contained. C. S. 1903, c. 112, s. 177, am.; O. 33, rr. 3, 4., (E); RR. 673, 674, (O).

317 [Cf. C. S. 1903,

14. Any party seeking to charge any accounting party Surcharge. beyond what he has by his account admitted to have received e. 112, s. 178].