D. L, rr. 9-11. 559 Attachment 560 Application of actions 561 Application of If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a Judge for leave so to do; and the Court or Judge may give such leave if the liability be not disputed, or if such liability be disputed may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. But except as against any property of the partnership, a judgment against a firm shall not render liable, release, or otherwise affect any member thereof who was out of the jurisdiction when the writ was issued, and who has not appeared to the writ unless he has been made a party to the action under Order XI., or has been served within the jurisdiction after the writ in the action was issued. O. 48 a., r. 8, (E). 9. Debts owing from a firm carrying on business within the jurisdiction may be attached under Chapter 134 of the Consolidated Statutes, 1903, although one or more members of such firm may be resident abroad: provided that any person having the control or management of the partnership business or any member of the firm within the jurisdiction is served with the attaching order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm. O. 48 a., r. 9, (E), um. 10. The above Rules shall apply to actions between a firın and one or more of its members, and to actions between firms having one or more members in common; provided such firm or firms carry on business within the jurisdiction; but no execution shall be issued in such actions without leave of the Court or a Judge, and on an application for leave to issue such execution all such accounts and inquiries may be directed to be taken and made, and directions given, as may be just. O. 48., r. 10, (E). 11. Any person carrying on business within the jurisdicson carrying tion in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far on business as a firm. [R. 231, (O)]. as the nature of the case will permit, all Rules relating to proceedings against firms shall apply. O. 48a., r. 11, (E). 1. ORDER LI. SALES BY THE COURT. I. Generally. O. LI. rr. 1–5. 562 Court to order estate. [Cf. C. S. 1903, c. 112, s. 149]. If in any cause or matter relating to any real estate, it Power of shall appear necessary or expedient that the real estate or any sale of real part thereof should be sold, the Court or a Judge may order the same to be sold, and any party bound by the order and in possession of the estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser, or such other person as may be thereby directed. O. 51, r. 1, (E). 563 order for sale in debenture holders' action at any time. 2. In debenture-holders' actions, where the debenture- Powerto make holders are entitled to a charge by virtue of the debentures, or of a trust deed, or otherwise, and the plaintiff is suing on behalf of himself and other debenture holders, and where the Judge in person is of opinion that there must eventually be a sale, he may in his discretion direct a sale before judgment, and also after judgment, before all the persons interested are ascertained, whether served or not. O. 51, r. lb., (E). 3. Where a sale is ordered, the Court or a Judge may cause the property or part thereof to be sold either by public auction, private contract, or tender, or part by one mode and part by another, as they or he may think best for the interest of all parties. R. 716, (O). 564 Modes of sale. 565 Referee. 4. All sales of real estate ordered by the Court or a Judge Sale to be by shall be conducted by a Referee. C. S. 1903, c. 112, s. 150. See O. 33, r. 3, ante. 566 ment of sale. 5. The Referee to whom such sale shall be referred, shall Advertiseadvertise the same at public auction in one or more of the public newspapers of the county where the premises are situate, or if no newspaper be published in such county, in the Royal Gazette, for not less than two months prior to the day of sale, and by printed handbills, one of which shall be posted up at the Court House, one at the Registry Office, and one in some public place in the city, town or parish where the lands are situate, specifying in such advertisement the time and some public place for the sale, and then and there may sell or cause O. LI, rr. 6-8. 567 Conveyance on sale. Effect of conveyance. 568 Report by Referee. 569 Sale or leasing of infant's interest in land. the same to be sold to the highest bidder. If the Referee shall find it necessary, for want of purchasers or other good cause, to postpone such sale, the postponement shall be at least for two weeks, and shall be noticed during that time at the foot of the former advertisement or otherwise as the said Referee may think proper, and so on in case of any subsequent postponement. C. S. 1903, c. 112, s. 200, part. 6. Immediately upon such sale the said Referee shall execute in his own name as such Referee and deliver to the purchaser a conveyance of the land so sold, which conveyance shall briefly refer to the judgment or order, the advertising and the sale, and then proceed to convey the same to the said purchaser. Every such conveyance duly acknowledged or proved and registered in the Registry Office of the county where the lands lie shall be evidence of the execution thereof, and that all the proceedings on which such conveyance was founded were rightly had. C. S. 1903, c. 112, s. 201, part. 7. A report of the sale shall be made by the Referee to the Court or a Judge and it shall be the duty of the party having the conduct of the sale to move for the confirmation of the report. II-Sules of Infants' Estates, Etc. 8. An infant seized of or entitled to an estate of freehold, or for a term of years or to any interest in any real estate, whether in possession or reversion, may by his next friend or guardian petition the Court or a Judge for an order to sell or dispose of the said property, which shall proceed in a summary way on affidavits to enquire into the merits of such application. If it appears that the disposal of such property or any part thereof is necessary for the support or education of such infant, or that the interests of the infant will be substantially promoted by such disposal, on account of any part of such property being exposed to waste or dilapidation, or being wholly unproductive, or that there is any other reasonable cause for such disposal, the Court or a Judge may, on the filing of a bond by such guardian or next friend, or other person approved by the Court or Judge, in case he be not already a lawfully appointed guardian, with such sureties and in such form as shall be directed, order the letting for a term of years, O. LI, dower inter the sale or other disposal of such real estate, or interest, by rr. 9, 10. such guardian or next friend, in such manner and with such restrictions as shall be deemed expedient, but not in any case contrary to any last will or conveyance by which such estate or term was devised or conveyed to such infant. If any real estate of an infant is subject to dower, and the person Release of entitled to dower consents in writing to accept in lieu of dower est. any gross sum which the Court or Judge thinks reasonable, or the permanent investment of a reasonable sum in such manner that the interest thereof be made payable to the person entitled to dower during her life, the Court or Judge may direct the payment of such sum in gross, out of the purchase money to the person entitled to dower, as may be deemed upon the principles applicable to life annuities a reasonable satisfaction for such estate; or may direct the payment to the person entitled to dower of an annual sum, or of the income or interest to be derived from the purchase money, or any part thereof, as may seem just, and for that purpose may make such order for the investment or other disposition of the purchase money, or any part thereof, as may be necessary. C. S. 1903, c. 112, s. 189, am.; R. S. O. 1897, c. 168, s. 9. 570 9. All sales, leases and conveyances made in good faith by Effect of sale any guardian or next friend in pursuance of such order, shall or lease. be as effectual as if made by such infant if of full age, and it shall not be necessary in the conveyance to recite any part of the proceedings required by this Order, but the same shall conveyance. briefly refer to the order and the sale, leasing or other disposal of such property. When the sale shall be made by or under Contents of the direction of an officer of the Court, such officer shall make Report of sale. and file a report thereof with the proper officer, which may on petition or motion be confirmed as in other like cases. C. S. 1903, c. 112, s. 190. 571 proceeds of 10. Upon any order for the sale of any property being Application of made as aforesaid, the infant to whom the same shall belong sale. shall be considered, so far as relates to such property, a ward of the Court, and the Court may make such order for the investment, disposal and application of the proceeds of such property, and of the increase and interest arising therefrom, as shall secure the same for the infant's benefit. C. S. 1903, c. 112, s. 191. O. LI. rr. 11-16. 572 11. No sale made as aforesaid shall give to such infant any other or greater interest or estate in the proceeds of such in proceeds of sale, than he had in the estate so sold. C. S. 1903, c. 112, s. Share of infant sale. 573 Effect of conveyance. 574 Recognizance by guardian. 575 Reference dispensed with where estate does not 192. 12. Every conveyance made under the above provisions duly acknowledged or proved and registered, shall be evidence that all the proceedings on which the same is founded were rightly had. C. S. 1903, c. 112, s. 193. 13. The recognizance to be taken on the appointment of any guardian shall be filed with the proper officer, and be subject to such orders touching the recovery of the amount or any part thereof, in case of any breach of the same, as the Court or a Judge shall think fit. C. S. 1903, c. 112, s. 194. 14. In cases where it is made to appear on affidavit that the whole property of an infant does not exceed four thousand exceed $4.000 dollars, and the nature, description and value of the property, real and personal, shall be specifically set forth in the petition, together with the names of the infant's relatives, a guardian may be appointed on the presentation of the petition with an affidavit of its truth, without reference, if the Court or Judge shall think fit so to do. C. S. 1903, c. 112, s. 195. 576 Sale or mortgage of lunatic's estate. 577 Lease of estate for life, etc., of lunatic. III. Sales of Lunatics' Estates, Etc. 15. Where any person by a commission in the nature of a writ de lunatico inquirendo, or by proceedings under Order LIV., is found lunatic or of unsound mind and incapable of managing his affairs, the Court or a Judge may on petition of the committee of the estate of such person or of any of his creditors, order and direct the freehold and leasehold estate of such person to be sold or incumbered by way of mortgage or otherwise as shall be deemed most expedient for raising money to pay debts or for performing the contracts of such person, with the costs and charges of the same, and of any sale, mortgage or incumbrance, and further direct such committee to execute in the name of such person conveyances of the said estate, and do whatever may be necessary to effect the same. C. S. 1903, c. 112, s. 231, am. 16. Where such person may be seized of freehold lands for his natural life or of some other estate, with power of leasing |