de 0. XLIX, rr. 3-6. 541 Application for order may be ex parte, and or may be directed to be the heard on 3.-(1) Where motion for an order is made, the Court or Judge or said Clerk may proceed on the ex parte application of the plaintiff, or may direct notice to be served on the fendant to show cause why the order should not issue; may, in either case, grant or refuse the order or direct Sheriff to take a bond in less or more than treble the value of the property, or may direct him, in addition to taking a bond pursuant to Rule 6, to take and detain the property until the further order of the Court, instead of at once replevying the same to the plaintiff; or may order that the plaintiff instead of giving a bond be at liberty to pay into Court to the credit of the action such sum as may be proper (to be named in the order) to stand as security to the defendant in the same inanner and to the same extent as any bond which the plaintiff would otherwise be required to give to the Sheriff; or may impose any terms or conditions in granting the order, or in refusing the same, on the return of a motion, as under the circumstances seems just. R. 1069 (1), (O), am. (2). Money paid into court shall remain in court as security aforesaid subject to order by the Court or a Judge. R 1069 (2), (O). 4. notice. 512 by defendant order. Where an order of replevin is issued, the defendant Application may at any time, or from time to time, on notice to the plain- to discharge tiff, apply to the Court or a Judge on affidavit or otherwise, to discharge, vary, or modify the order, or to stay proceedings thereunder, or for any other relief, with respect to the return, safety or sale of the property or any part thereof, or otherwise, and the Court or Judge may make such order thereon as may seem just. R. 1070, (O). 543 5. The order shall state the description and value of the Form of order. property, and may be according to Form No. 53 in Appendix K. R. 1071, (O). 544 to be taken by 6.(1) Subject to any other order under Rule 3 providing Replevin bond for the payment of money into court instead of the giving of the sheriff. a bond, before the Sheriff acts on the order he shall take a bond from the plaintiff with two sufficient sureties in such sum as may be prescribed by an order made under Rule 3, if such an order has been made, or if no such order has been made, then in treble the value of the property as stated in the order 0. XLIX, rr. 7-9. Certificate to sheriff of payment of money into Court. 515 Indemnity of defendant where property not taken tiff's possession. of replevin; the bond shall be assignable to the defendant; and the bond and assignment thereof may be according to Form No. 54 in Appendix K., the condition being varied to correspond with the order. R. 1072 (1), (O), (2) Where money is paid into court instead of a bond being given, the Sheriff may, subject to any provisions in the order, act on the order upon a certificate of the proper officer, being delivered to him that the money required to be paid into Court has been paid in pursuant to the order. R. 1072 (2), (0). ช. Where an order of replevin is issued for any property which had not been previously taken out of the plaintiff's out of plain possession, and for which the plaintiff might formerly have brought an action of trespass or trover, the defendant shall be entitled, if the plaintiff fails in the action to be fully indemnified against all damages sustained by the defendant, including any extra costs which he may incur in defending the action; and the bond to be taken by the Sheriff or bailiff shall be conditioned, not only as heretofore required but also to indemnify and save harmless the defendant from all loss and damage which he may sustain by reason of the seizure, and of any deterioration of the property in the meantime, in the event of its being returned, and all costs, charges, and expenses which the defendant may incur, including reasonable costs not taxable between party and party. This rule shall not apply to cases of distress for rent or damage feasant. R. 1074, (O). 546 Sheriff not to serve writ of summons until he has replevied property. 547 Return by sheriff. 8. The Sheriff shall not serve a copy of the writ of summons or the order until he has replevied the property, or some part thereof, if he cannot replevy the whole in consequence of the defendant having eloigned the same out of his county, or because the same is not in the possession of the defendant, or of any person for him. R. 1075, (O). 9. The Sheriff shall return the order on or before the tenth day after the service thereof, and shall transmit annexed thereto, (a) The names of the sureties in, and the date of the bond taken from the plaintiff, and the name or names of the witnesses thereto; (b) The place of residence and addition of the sureties; (c) The number, quantity and quality of the articles of property replevied; and in case he has replevied 1 0. XLIX, rr. 10-12. Power to dwelling, etc., by force. 10. Where the property to be replevied, or any part 548 thereof, is secured or concealed in any dwelling house or other sheriff to enter building or enclosure of the defendant, or of any other person holding the same for him, and the Sheriff publicly demands from the owner or occupant of such premises delivery of the property to be replevied, and the same is not delivered to him within twenty-four hours after such demand he shall, if necessary, break open such house, building or enclosure, for the purpose of replevying such property, or any part thereof, and shall replevy the same according to the order. R. S. O. 1897, c. 66, s. 4, um. 549 sheriff to 11. If the property to be replevied, or any part thereof, Power to is concealed either about the person or on the premises of the search person. defendant, or of any other person holding the same for him, and the Sheriff demands from the defendant or such other person delivery thereof, and delivery is neglected or refused, he shall, if necessary, search and examine the person and premises of the defendant, or of such other person, for the purpose of replevying such property, or any part thereof, and shall replevy the same according to the order. R. S. O. 1897, s. 66, s. 6, am. 550 sheriff inter sheriff of county to act. 12. If the Sheriff be a party, or in any way interested in Proviso where any action of replevin, or if there be a vacancy in the office, ested, etc., for the Sheriff of any adjoining county shall act under the order adjoining and he shall execute the same and do and perform every other duty and thing under said order in as full and ample a manner as the first-named Sheriff could had he not been a party or interested, or had the office not been vacant; and for this purpose the last-mentioned Sheriff shall have the same privi D. L, rr. 1-3. 551 How partners may sue or be sued. leges, be subject to the same liabilities and be entitled to the same fees as in the case of similar services performed within his own bailiwick. C. S. 1903, c. 111, s. 370, am. ORDER L. ACTIONS BY AND AGAINST FIRMS AND PERSONS CARRYING ON 1. Any two or more persons claiming or being liable as [R. 222, (O)]. co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action Disclosure of may in such case apply by summons to a Judge for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Judge may direct. O. 48a., r. 1, (E). names of partners. 552 Disclosure of partners' names. [R. 144, (O)]. 553 Service. [R. 223, (O)]. 2. When a writ is sued out by partners in the name of their firm, the plaintiffs or their solicitors shall. on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought. And if the plaintiff's or their solicitors shall fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Court or a Judge may direct. And when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as the plaintiffs in the writ. But all the proceedings shall, nevertheless, continue in the name of the firm. O. 48a., r. 2, (E). 3. Where persons are sued as partners in the name of their firm under Rule 1, the writ shall be served either upon any one or more of the partners or at the principal place, within the jurisdiction, of the business of the partnership upon any person having, at the time of service, the control or management of the partnership business there; and, subject to these rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a writ against them shall be necessary; provided that, in the case of a copartnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the writ of summons shall be served upon every person within the jurisdiction sought to be made liable. O. 48a., r. 3, (E). D. L, rr. 4-8. which person is served. (R. 224, (O)]. 551 Where a writ is issued against a firm, and is served as Notice of 4. directed by Rule 3, every person upon whom it is served shall capacity in be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner. O. 48a., r. 4. (E). 5. 555 Appearance by partners. Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, R. 225, (0)]. but all subsequent proceedings shall, nevertheless, continue in the name of the firm. O. 48a., r. 5, (E). 555 partners. 6. Where a writ is served under Rule 3, upon a person Noappearance having the control or management of the partnership business, except by no appearance by him shall be necessary unless he is a member of the firm sued. O. 48a., r. 6, (E). R. 226, (O)]. 557 of person served as 7. Any person served as a partner under Rule 3, may Appearance enter an appearance under protest, denying that he is a part- under protest ner, but such appearance shall not preclude the plaintiff from otherwise serving the firm and obtaining judgment against the firm in default of appearance if no partner has entered an appearance in the ordinary form. O. 48u., r. 7, (E). partner. 558 8. Where a judgment or order is against a firm, execution Execution of may issue: Against any property of the partnership within the (b) Against any person who has appeared in his own. (c) Against any person who has been individually served judgment against a firm. [R. 228, (O)]. |