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O. XLVII, rr. 8-10.

519

Application under Rules 3, 4 or 7.

520

Time for

application

cases in which it shall appear to the Court to be just or convenient that such order should be made: and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court 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. J. A. 1873, s. 25 (8).

S. An application for an order under Rule 3, 4 or 7 of this Order, may be made to the Court or a Judge by any party. If the application be by the plaintiff for an order under Rule 7 it may be made either ex parte or with notice, and if for an order under Rule 3 or 4 of this Order it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it be by any other party, then on notice to the plaintiff and at any time after appearance by the party making the application. O. 50, r. 6, (E),

9. An application for an order under Rule 1 of this Order under Rule 1. may be made by the plaintiff at any time after his right thereto appears from the pleadings; or, if there be no pleadings, is made to appear by affidavit or otherwise to the satisfaction of the Court or a Judge. O. 50, r. 7, (E).

521

Order for recovery of

specific prop

erty, other

ject to lien, etc.

10. in his

sum of

Where an action is brought to recover, or a defendant defence seeks by way of counterclaim to recover

than land sub- specific property other than land, and the party from [Cf. R. 1099.(0)]. whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien or otherwise as security for any money, the Court or a Judge may, at any time after such last-mentioned claim appears from the pleadings, or, if there be no pleadings, by affidavit or otherwise, to the satisfaction of such Court or Judge, order that the party claiming to recover the property be at liberty to pay into court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum (if

any) for interest and costs as such Court or Judge may direct, and that, upon such payment into court being made, the property claimed be given up to the party claiming it. O. 50, r. 8, (E).

0. XLVII,

rr. 11-15.

522

income of

11. Where any real or personal estate forms the subject Allowance of of any proceedings, and the Court or a Judge is satisfied that property pendente lite. the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceedings, the Court or Judge may at any time after the commencement of the proceedings, allow to the parties interested therein, or any one or more of them, the whole or part of the annual income of the real estate or a part of the personal estate or the whole or a part of the income thereof, up to such time as the Court or Judge shall direct. O. 50, r. 9, (E).

523

sale of trust

estate.

[Cf. R. 717, (0)].

12. Whenever in an action for the administration of the Conduct of estate of a deceased person, or execution of the trusts of a written instrument, a sale is ordered of any property vested in any executor, administrator, or trustee, the conduct of such sale shall be given to such executor, administrator, or trustee, unless the Court or a Judge shall otherwise direct. O. 50, r. 10, (E).

524

to be by
order.

13. No writ of injunction shall be issued. An injunction Injunction shall be by a judgment or order, and any such judgment judgment or or order shall have the effect which a writ of injunction formerly had. O. 50, r. 11, (E); R. 1094, (O).

525

against repeti

ful act or

tract.

14. In any cause or matter in which an injunction has been Injunction or might have been claimed, the plaintiff may, before or after tion of wrongjudgment, apply for an injunction to restrain the defendant or breach of conrespondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract; and the Court or a Judge may grant the injunction, either upon or without terms, as may be just. O. 50, r. 12, (E).

526

lieu of or in

15. In all cases in which the Court has jurisdiction to Damages in entertain an application for an injunction against a breach of addition to any covenant, contract, or agreement, or against the commis- [R. S. O. 1897, sion or continuance of any wrongful act, or for the specific

injunction.

c. 51, s. 58 (10)].

0. XLVII,

Fr. 16-19. performance of any convenant, contract, or agreement, it shall be lawful for the Court or a Judge to 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 manner as the Court or Judge may direct, or the Court or Judge may grant such other relief as it or he may deem just. C. S. 1903, c. 112, s. 33, am. ; 21 & 22 V. c. 27, s. 2 (6), (Imp.).

527

Appointment of receiver by

able execu

tion.

II-RECEIVERS.

16. In every case in which an application is made for the way of equit appointment of a receiver by way of equitable execution, the Court or a Judge in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if it or he shall so think fit, direct any inquiries on these or other matters before making the appointment. O. 50, 1. 15a., (E).

528

Security by receiver.

529

Where receiver appointed in Court, adjournment into Chambers to give security.

530 Receiver's account.

17. Where an order is made directing a receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give security, to be allowed by the Court or a Judge, and taken before a person authorized to administer oaths, duly to account for what he shall receive as such receiver, and to pay the same as the Court or Judge shall direct; and the person so to be appointed shall, unless otherwise ordered, be allowed a proper commission or allowance. Such security shall be by recognizance in the Form No. 19 in Appendix L., unless the Court or a Judge shall otherwise order. O. 50, r. 16, (E). See O. 33, rr. 3, 7, ante, and s. 42 of Act.

18. Where any judgment or order is pronounced or made in Court appointing a person therein named to be receiver, the Court or a Judge may adjourn to Chambers the cause or matter then pending, in order that the person named as receiver may give security as in the last preceding rule mentioned, and may thereupon direct such judgment or order to be drawn up. O. 50, r. 17, (E).

19. When a receiver is appointed with a direction that he shall pass accounts, the Court or Judge shall fix the days upon which he shall (annually, or at longer or shorter periods) file

O. XLVII,

rr. 20-23.

and pass such acccunts, and also the days upon which he shall pay the balances appearing due on the accounts so filed or such part thereof as shall be certified as proper to be paid by him. And with respect to any such receiver as shall neglect to file and pass his accounts and pay the balances. thereof at the times so to be fixed for that purpose as aforesaid, the Judge before whom any such receiver is to account may, from time to time, when his subsequent accounts are produced to be examined and passed, disallow the commission [Cf. R. 766, (O)]. therein claimed by such receiver, and may also, if he shall think fit, charge him with interest at the rate of 5 per cent. per annum upon the balances so neglected to be paid by him during the time the same shall appear to have remained in the hands of any such receiver. O. 50, r. 18, (E), am.

531

20. Receivers' accounts shall be in the Form No. 13 in Form of Receiver's Appendix L., with such variations as circumstances may re- account. quire. O. 50, r. 19, (E).

532

pass accounts.

21. Every receiver shall file his account together with an Application to affidavit verifying the same in the Form No. 20 in Appendix L., with such variations as circumstances may require. An application shall thereupon be made to the Court or Judge by the plaintiff or person having the conduct of the cause to have such accounts passed. O. 50, r. 20, (E), am.

533

of default by

22. In case of any receiver failing to file any account or Consequences affidavit, or to pass such accounts, or to make any payment, Receiver. or otherwise, the receiver or the parties, or any of them, may be required to attend at Chambers to show cause why such account or affidavit has not been filed, or such account passed, or such payment made, or any other proper proceeding taken, and thereupon such directions as shall be proper may be given at Chambers or by adjournment into Court, including the discharge of any receiver and appointment of another, and payment of costs. O. 50, r. 21, (E).

III-LIQUIDATORS AND GUARDIANS.

534

liquidators

23. The accounts of liquidators and guardians shall be Accounts of passed and verified in the same manner as is by this Order and guardians. directed as to receivers' accounts. O. 50, rr. 23, 24, (E).

O. XLVIII, rr. 1--4.

535 Indorsement on writ of summons.

[Cf. R. 1081, (0)].

536

Form of

indorsement.

[Cf. R. 1082,

[ocr errors]

537

Order upon defendant to

[Cf. R. 1083,

(0)].

ORDER XLVIII.

ACTION OF MANDAMUS.

1. The plaintiff, in any action in which he shall claim a mandamus to command the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, shall indorse such claim upon the writ of summons. O. 53 r. 1, (E).

2. The indorsement shall be in the form given in Section IV. of Appendix A., Part III. O. 53, r. 2, (E).

3. If judgment be given for the plaintiff the Court or perform duty. Judge may by the judgment command the defendant either forthwith, or on the expiration of such time and upon such terms as may appear to the Court or a Judge to be just, to perform the duty in question. The Court or a Judge may also extend the time for the performance of the duty. O. 53, r. 3, (E).

538 Mandamus in action to be by

order.

4. No writ of mandamus shall hereafter be issued in an judgment or action, but a mandamus shall be by judgment or order, which shall have the same effect as a writ of mandamus formerly had. O. 53, r. 4, (E).

[Cf. R. 1080, (0)].

O. XLIX, rr. 1, 2.

ORDER XLIX.

539

Writ of replevin abolished.

540

Motion for order for replevin.

REPLEVIN.

1. No writ of replevin shall hereafter be issued, but where a person is entitled to replevy property unlawfully taken or detained he may obtain an order therefor in an action commenced by writ of summons.

2. An order of replevin may be obtained from the Court or a Judge or from the District Clerk of the Court for the county in which the property to be replevied is situate, on motion therefor on an affidavit by the person claiming the property, or by any other person, showing the facts of the wrongful taking or detention complained of, the value and description of the property, and that the person claiming it is the owner thereof, or is lawfully entitled to the possession thereof, as the case may be. R. 1068 (1), (O), am.

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