O. LIX, rr. 12-16.

742 Order for sale

of goods seized

in execution.

all persons claiming under them, unless by special leave of the Court or a Judge, as the case may be, or of the Court of Appeal. O. 57, r. 11, (E).

12.

When goods or chattels have been seized in execution IR. M. by a sheriff or other officer charged with the execution of process of the Court, and any claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court or a Judge may order a sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be just. O. 57, r. 12, (E).

743 Application of 00. 31, 35.

13. Orders XXXI. and XXXV. shall, with the necessary [R. 1114, ()). modifications, apply to an interpleader issue; and the Court or Judge who tries the issue may finally dispose of the whole matter of the interpleader proceedings, including all costs not otherwise provided for. O. 57, r. 13, (E).

741 Title of order. [R. 1117, (0)].

745 Costs, etc. [R. 1122, (O)].

746 Sheriff's costs. [R. 1115, (O)].

14. Where in any interpleader proceeding it is necessary or expedient to make one order in several causes or matters pending before different Judges, such order may be made by the Court or Judge before whom the interpleader proceeding may be taken, and shall be entitled in all such causes or matters; and any such order (subject to the right of appeal) shall be binding on the parties in all such causes or matters. O. 57, r. 14, (E), am.

15. The Court or a Judge may, in or for the purposes of any interpleader proceedings, make all such orders as to costs and all other matters as may be just and reasonable. O. 57, r. 15, (E).

16. Where a claim is made to or in respect of any goods or chattels taken in execution under the process of the Court it shall be in writing, and upon the receipt of the claim the sheriff or his officer shall forthwith give notice thereof to the execution creditor according to Form 25 in Appendix B., or to the like effect, and the execution creditor shall, within four days after receiving the notice, give notice to the sheriff or his officer that he admits or disputes the claim, according to Form 26 in Appendix B., or to the like effect. If the execution creditor admits the title of the claimant, and

gives notice as directed by this Rule, he shall only be liable to such sheriff or officer for any fees and expenses incurred prior to the receipt of the notice admitting the claim. O. 57, r. 16, (E).

O. LIX,

rr. 17, 18.

747

by Sheriff.

17. When the execution creditor has given notice to the withdrawal sheriff or his officer that he admits the claim of the claimant, the sheriff may thereupon withdraw from possession of the goods claimed, and may apply for an order protecting him from any action in respect of the said seizure and possession of the said goods, and the Judge may make any such order as may be just and reasonable in respect of the same, provided always, that the claimant shall receive notice of such intended application, and if he desires it may attend the hearing of the same, and if he attend the Judge may, in and for the purposes of such application, make all such orders as to costs as may be just and reasonable. O. 57, r. 16a., (E).

748

18. Where the execution creditor does not in due time, as Costs. [R. 1116, (O)]. directed by the last preceding Rule, admit or dispute the title of the claimant to the goods or chattels, and the claimant does not withdraw his claim thereto by notice in writing to the sheriff or his officer, the sheriff may apply for an interpleader summons to be issued, and should the claimant withdraw his claim by notice in writing to the sheriff or his officer, or the execution creditor in like manner serve an admission of the title of the claimant prior to the return day of such summons, and at the same time give notice of such admission to the claimant, the Judge may, in and for the purposes of the interpleader proceedings, make all such orders as to costs, fees, charges, and expenses, as may be just and reasonable. O. 57, r. 17, (E).

ORDER LX.

MOTIONS AND OTHER APPLICATIONS.

0. LX, rr. 1, 2.

749

Court or

Judge to be un- (R. 355, (O)).

by motion.

1. Where an application is authorized to be made to the Application to Court or a Judge, such application, if made to the Court of Appeal or to a Judge in Court, shall be made by motion less otherwise provided. O. 52. r. 1, (E), am.

750

2. No motion or application for a rule nisi or order to Restriction on show cause shall hereafter be made in any action, or (a) to orders to shew

rules nisi and

cause.

[Cf. R. 356, (O)]

O. LX, rr. 3-7.

751 When notice

of motion to be given. [RR. 356, 357, 358, (O)].

Ex parte application.

752 When grounds of notice of

stated.

[Cf. R. 363, (0)].

set aside, remit, or enforce an award, or (b) for attachment, or (c) to answer the matters in an affidavit, or (d) against a Sheriff to pay money levied under an execution. O. 52, r. 2, (E), am.

3. Except where according to the practice existing at the time of the passing of the principal Act any order or rule might be made absolute ex parte in the first instance, and except where notwithstanding Rule 2, a motion or application may be made for an order to show cause only, no motion shall be made without previous notice to the parties affected thereby. But the Court or a Judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court or Judge may think just; and any party affected by such order may move to set it aside. O. 52, r. 3, (E).

4. Every notice of motion to set aside, remit, or enforce an motion to be award, or for attachment, shall state in general terms the grounds of the application; and, where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. O. 52, r. 4, (E), am.

753 Length of notice of motion.

5. Unless the Court or a Judge give special leave to the contrary there must be at least six clear days between the [Cf. R. 848, (0)]. service of a notice of motion and the day named in the notice

754 Motion may be dismissed

where neceЄ8sary notice not given.

for hearing the motion; provided that in applications to answer the matters in an affidavit the notice of motion shall be served on the parties not less than ten clear days before the time fixed by the notice for making the motion. 0.52, r. 5, (E), am.

6. If on the hearing of a motion or other application the or adjourned Court or a Judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court or Judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court or Judge may think fit to impose. O. 52, r. 6, (E).

[R. 360, (O)].

755

Adjournment of hearing.

7. The hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court or Judge shall think fit. O. 52, r. 7, (E).

0. LX, rr. 8-13.

756 Service of

been notice on

8. The plaintiff shall, without any special leave, be at liberty to serve any notice of motion or other notice or any petition or summons upon any defendant who, having duly served with a writ of summons to appear, has appeared within the time limited for that purpose. O. r. 8, (E).

defendant

not served with

writ but not

52, appearing.

757

notice with

time for

9. The plaintiff may without leave serve a notice of motion Service of for an injunction, and may by leave of the Court or a Judge, writ or before to be obtained ex parte, serve any other notice of motion upon appearance. upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant. O. 52, r. 9, (E), um.; R. 361, (O).

758

Sheriff to

etc.

10. No order shall issue for the return of any writ or order Notice to for replevin, or to bring in the body of a person ordered to be return writ, attached, arrested or committed; but a notice from the person [Cf. R. 1045 (1), issuing the writ, or obtaining the order for replevin, attachment, arrest, or committal (if not represented by a solicitor, or by his solicitor, calling upon the sheriff to return such writ or order, or to bring in the body within a given time, if not complied with, shall entitle such person to apply for an order for the committal of such sheriff. O. 52, r. 11, (E), am.

759

Sheriff to

[Cf. R. 1045 (İ),

11. Where any sheriff, before going out of office, arrest Notice to exany defendant, and render return of cepi corpus, he may be bring in body. called upon by a notice, as provided by the next preceding (0. rule, to bring in the body within the time allowed by law, although he is out of office when such notice is given. O. 52, r. 12, (E); R. S. C. H. T. 1841.

760

when drawn

12. Every order, if and when drawn up, shall be dated the Date of order day of the week, month, and the year, on which the same was up. made, unless the Court or a Judge otherwise direct, and shall (o)j. take effect accordingly. O. 52, r. 13, (E).

[Cf. R. 629 (1),

761 need not be

13. Where an order has been made not embodying any Orders that special terms, nor including any special directions, but simply drawn up. enlarging time for taking any proceeding or doing any act or giving leave (a) for the issue of any writ other than a writ of attachment, (b) for the amendment of any writ or pleadings, (c) for the filing of any document, or (d) for any act to be done by any officer of the Court other than a solicitor, it shall

O. LX, rr. 14. 15.

762 Statement of persons to be served with petition.

763 Length of notice of petition.

[Cf. R. 348, (O)].

not be necessary to draw up such order unless the Court or a Judge shall otherwise direct; but the production of a note or memorandum of such order, signed by a Judge, shall be sufficient authority for such enlargement of time, issue, amendment, filing, or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed a special direction within the meaning of this rule. The solicitor of the person on whose application such order is made, shall forthwith deliver a copy of such note or memorandum to such person (if any) as would, if this rule had not been made, have been required to be served with such order. O. 52, r. 14, (E), am.

14. At the foot of every petition (not being a petition of course) presented to the Court or a Judge, and of every copy thereof, a statement shall be made of the persons, if any, intended to be served therewith, and if no person is intended to .be served, a statement to that effect shall be made at the foot of the petition and of every copy thereof. O. 52, r. 16, (E).

15. Unless the Court or a Judge gives leave to the contrary there must be at least six clear days between the service and the day appointed for hearing a petition. O. 52, r. 17, (E), am.

Ô. LÃI. rr. 1-3.

764

Applications

at Chambers

ORDER LXI.

APPLICATIONS AND PROCEEDINGS AT CHAMBERS.

1. Every application at Chambers not made ex parte shall by summons. be made by summons, unless otherwise provided. In this order, where originating summons is not referred to, the word "summons" shall mean a summons signed and granted by a Judge. O. 54, r. 1, (E), am.

765

Ex parte applications by Judge's

summons.

766 Form and issue of originating

summons.

2. Every application for payment or transfer out of court made ex parte, and every other application made ex parte in which the Judge or proper officer shall think fit so to require, shall be made by summons. O. 54, r. 2, (E).

3. An originating summons shall be in the Form No. 2 or 3, Appendix K., to these Rules, with such variations as circumstances may require. It shall be signed and sealed by the proper officer and shall be prepared and issued by the applicant or his solicitor. O. 54, r. 4b., (E), am.