II. Notice and Entry of Trial. 0. XXXV. rr. 2-8. 343 2. Notice of trial may be given in any cause or matter by Notice of trial the plaintiff or other party in the position of plaintiff. Such (Cf. R. 530, (O)]. by plaintiff. notice may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial. O. 36, r. 11, (E), without amendment in R. S. C. July, 1903, r. 5. 344 by defendant. miss for want 3. If the plaintiff does not, within six weeks after the Notice of trial close of the pleadings, or within such extended time as the Motion to disCourt or a Judge may allow, give notice of trial, the defend- of prosecution. ant may, before notice of trial given by the plaintiff, give notice of trial, or may apply to the Court or Judge to dismiss the action for want of prosecution; and on the hearing of such application, the Court or a Judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court or Judge may seem just. O. 36, r. 12, (E), without amendment in R. S. C. July, 1903, r. 6. 345 of trial. 4. Notice of trial shall state whether it is for the trial of Form of notice the cause or matter, or of issues therein; and the place and [Cf. R. 538, (O)]. day for which it is to be entered for trial. It shall be in the Form No. 16, in Appendix B., Part II., with such variations as circumstances may require. O. 36, r. 13, (E). 346 [Cf. R. 538b., (0)]. 5. Ten days' notice of trial shall be given, unless the party Length of to whom it is given has consented, or is under terms, or has notice of trial. been ordered to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the Court or a Judge. Short notice of trial shall be five days' notice, unless otherwise ordered. O. 36, r. 14, (E), am. 347 6. Notice of trial shall be given before entering the trial; Entry of trial. and the trial may be entered notwithstanding that the pleadings are not closed, provided that notice of trial has been given. O. 36, r. 15, (E). 318 trial deemed 7. Notice of trial shall be deemed to be for the first day of Day notice of the then next sittings at the place for which notice of trial is for. given. O. 36, r. 18, (E), am. 349 of notice of 8. No notice of countermand of trial shall be deemed suffi- Countermand cient to save the costs for not proceeding to trial pursuant to trial. notice, unless it be given at least six days before the time of the intended trial. R. 2, S. C., H. T. 1828, am. See O. 36, r. 19. (E). 0. XXXV. rr. 9-15. 350 9. After notice of trial is given, either party may enter the action for trial. If both parties enter the action for trial Either party at the same sitting, it shall be tried in the order of the plain may enter action for trial. 351 When action tiff's entry. R. 538 c., (O). 10. Actions shall be entered for trial not later than six to be entered. days next before the first day of the sittings, but the trial Judge may permit any action to be entered after the time above limited. R. 538 d., (O). 352 Record. 353 Default of appearance by defendant at trial. [R. 545, (O)]. 354 Default of appearance by plaintiff. [R. 546, (O)]. 355 Setting aside judgment by default. [Cf. R. 778, (O)]. 356 Adjournment of trial. [Cf. RR. 553, 780, (01]. III.-Papers for Judge. 11. The party entering an action for trial shall, at the time of entry, deliver to the proper officer one copy of the whole of the pleadings in the action for the use of the Judge at the trial, and such copy shall be called the Record. R. 539, (0); O. 36, r. 30, (E), am. IV.-Proceedings at Trial. 12. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him. O. 36, r. 31, (E). 13. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but, if he has a counterclaim, then he may prove such counterclaim so far as the burden of proof lies upon him. O. 36, r. 32, (E). 14. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court of Appeal or by a Judge in Court, or by a Judge at the sittings, upon such terms as may seem fit, upon an application made within six days after the trial. O. 36, r. 33, am. 15. The Judge may postpone or adjourn a trial for such time, and to such place, and upon such terms, if any, as he shall think fit, and he may, at or after the trial, direct that judgment be entered, or may adjourn the case for further consideration. R, 554. (O.); O. 36, r. 34, am. 16. 0. XXXV, rr. 16-20. 357 Costs of corpus to Where a party is brought up to attend the trial or hearing of a cause or matter by virtue of any writ of habeas corpus duly issued, and by reason of the pressure of other habeas business, or from any other cause, the trial or hearing of the bring up party cause or matter in which such party is concerned is postponed where adto a future day, a new writ of habeas corpus may be issued for such future day, if the Court or a Judge shall so direct, without payment of any fee. O. 36, r. 35, (E). to attend trial, journment. 358 witnesses. 17. The Judge at the trial shall, at the request of either Exclusion of party, order a witness to be excluded from the Court until he is called to give evidence, and also, if the Judge deems it expedient, a party intending to give evidence; or he may require such party to be examined before the other witnesses on his behalf. Any such witness or party who does not conform to such order shall be liable to be punished as to the Judge may seem just, and the Judge may, in his discretion, exclude the testimony of any witness or party who does not conform to such order. R. 547, (O). jury. 359 18. Upon a trial with a jury, the addresses to the jury Addresses to shall be regulated as follows: the party who begins, or his (Cf. R. 548, (O)]. counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore. O. 36, r. 36, (E). 19. In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published or as to the character of the plaintiff, without the leave of the Judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. O. 36, r. 37, (E). 361 of vexatious 20. The Judge may in all cases disallow any questions Disallowance put in cross-examination of any party or other witness which questions in cross-examin ation. 0. XXXV, rr. 21-26. 362 Entry of judgment at or after trial. [R. 551, (O)]. 363 Clerk to note times of commencement and termination of trial. 364 Clerk to enter findings of fact, etc. [R. 558, (O)]. 365 Certificate fo entry of judgment. [R. 559, (0)]. Rules. 366 may appear to him to be vexatious, and not relevant to any matter proper to be inquired into in the cause or matter. O. 36, r. 38, (E). 21. The Judge shall, at or after the trial, direct judgment to be entered as he shall deem right, and no motion for judgment shall be necessary in order to obtain such judgment. O. 36, r. 39, (E). 22. The officer or clerk present at any hearing or trial shall make a note of the times at which such hearing or trial shall commence and terminate respectively, on each day on which the same shall take place. O. 36, r. 40, (E), um. 23. Upon every trial the officer or clerk attending the trial shall enter all such findings of fact as the Judge may direct to be entered, and the directions, if any, of the Judge as to judgment, in a book to be kept for the purpose. O. 36, r. 41, (E). 24. If the Judge shall direct that any judgment be entered for any party absolutely, the certificate of the said officer to that effect shall be a sufficient authority to the proper officer to enter judgment accordingly. The certificate shall be in the Form No. 17, in Appendix B., with such variations as circumstances may require. O. 36, r. 42, (E), am. V.-Writ of Inquiry and Reference as to Damages. Application of 25. The provisions of Rules 5, 6, 8, 15, 16, 18, 19 of this Order shall, with the necessary modifications, apply to an inquiry pursuant to a writ of inquiry. O. 36, r. 56, (E). 367 Ascertainment of damages where a matter of calculation. 26. In every action or proceeding in which it shall appear to the Court or a Judge that the amount of damages sought to be recovered is substantially a matter of calculation, it shall not be necessary to issue a writ of inquiry, but the Court or a Judge may ascertain or assess the same, or he may direct that the amount for which final judgment is to be entered shall be ascertained by an officer of the Court and the attendance of witnesses, and the production of documents before such officer may be compelled by subpoena, and such officer may adjourn the inquiry from time to time, and shall indorse upon the order for referring the amount of damages to him, the amount found by him, and shall deliver the order with such indorsement to the person entitled to the damages, and such and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury upon a writ of inquiry. O. 36, r. 57, (E), am. 0. XXXV, rr. 27-31. 368 ment of official Referee or sheriff. 27. The direction in Rule 26 mentioned may be made to any Ascertainone of the. Referees, in rotation, or to any one of the sheriffs; damages by and in such case the powers given by the said rule to the officer of the Court therein mentioned, shall be exercised by such Referee or sheriff; and the provisions of the Rules, as to the distribution of business among the Referees, shall apply to directions given under Rule 26. O. 36, r. 57a., (E), am. 369 on writ of out notice 28. Where no appearance has been entered for the Assessment defendant, and he has no known place of abode within the inquiry with Province, a writ of inquiry to assess damages may be exe- where no cuted without notice thereof to him. C. S. 1903, c. 111, s. 170, part. appearance. 370 respect of con 29. Damages in respect of any continuing cause of action Damages in shall be assessed down to the time of assessment. O. 36, tinuing cause r. 58, (E), am.; r. 552, (O). VI.-Referees. of action. 371 Referee. 30. In every cause or matter, except where under the Trial before principal Act a trial with a jury is required, or any of the [Cf. R. 649,(O)]. parties has served notices for a jury, under and in accordance with the provisions of section 29 of said Act, the Court or Judge may at any time order any cause, matter, or issue, to be tried by an official referee or special referee. Upon any cause or matter, or any question in any cause or matter, being referred to a referee, he may, subject to the order of the Court or a Judge, hold the trial at or adjourn it to any place which he may deem most convenient, and have any inspection or view which he may deem expedient for the better disposal of the controversy before him. He shall, unless otherwise directed by the Court or a Judge, proceed with the trial de die in diem, in a similar manner as in actions tried with a jury. O. 36, r. 48, (E), am. trial. (0)]. 372 31. Subject to any order to be made by the Court or Conduct of Judge ordering the same, evidence shall be taken at any trial (Cf. R.648 (1), before a referee, and the attendance of witnesses may be enforced by subpoena, and every such trial shall be conducted |