(b) For regulating the pleadings, practice and procedure 6 Edw. VII., in the Court; (c) For regulating the means by which particular facts (e) Generally, for regulating any matters relating to the c. 37. of Court are to force. (3) All Rules of Court made in pursuance of the preceding When Rules sub-section shall come into force on the thirtieth day from and come into after the publication thereof in the Royal Gazette, and thereupon shall regulate all matters to which they extend until annulled or altered in pursuance of this Act, or by Act of the Legislature. Rules of Governor in (4) All Rules of Court made in pursuance of this section Rescission of shall be laid before the Legislative Assembly within twenty days after the same are made, if the Legislature is then sitting, Council. and if the Legislature is not then sitting, within twenty days after the meeting of the Legislature next after such Rules are made, and if an address praying that any such Rules may be cancelled is presented to the Lieutenant-Governor by the said Legislative Assembly, or within the twenty days in which the Legislature has been sitting next after such Rules are laid before it, the Governor in Council shall thereupon, by Order in Council, annul the same, and the Rules so annulled shall thenceforth become void and of no effect, but without prejudice to the validity of any proceedings which in the meantime have been taken under the same. Court in 60. The Rules of Court in the Schedule hereto shall form Rules of part of this Act and shall have the force and effect of a legis- Schedule. lative enactment. 6 Edw. VII., c. 37. Repeal. Printed Act and Rules, etc., in office of Provincial Secretary. 61. Any enactment inconsistent with this Act is hereby repealed. COMMENCEMENT OF ACT. 62. Any alterations and additions to this Act, and the to be deposited Rules herewith, and any Rules in substitution thereof, made by the Governor in Council pursuant to section 59 (1), shall form part of and be printed with this Act and Rules hereto, and a copy of the Act and Rules with all alterations and additions as aforesaid when printed, shall be attested by the signature of the Lieutenant-Governor and countersigned by the Provincial Secretary and shall be deposited in the office of the Provincial Secretary at Fredericton, and shall thereupon become and form part of the original Roll of the Acts of the Legislative Assembly of New Brunswick, 1906. The Proclamation Lieutenant-Governor in Council shall thereupon, by proclamaand Rules in tion published in the Royal Gazette, declare the day on, from and after which this Act and the Rules hereto, including any additions or alterations as aforesaid, shall become and be in force, and the said Act and said Rules shall, on and after such day so declared, become and be in force. declaring Act force. Act not to COUNTY COURTS. 63. Save as otherwise provided, either in express terms or by necessary implication, nothing in this Act or Rules of Court hereto shall be taken to apply to County Courts or the practice and proceedings therein, and the provisions of chapter 116, Consolidated Statutes, 1903, shall be read and construed as referring to the laws of this Province and to the practice and procedure in the Supreme Court in force and existing and applicable to County Courts before the commencement of this Act. SCHEDULE. RULES OF COURT, 1906. PRELIMINARY. 66 cited. to pending s. 22 of Act). 1. The following Orders and Rules may be cited as The Rules, how Rules of Court, 1906." They shall not apply to any proceedings taken on or after the day upon which they shall come Not to apply into force in any causes and matters then pending, but such business. (See proceedings, unless it is impracticable to carry on the same except under the provisions of the principal Act and these Rules, shall be taken in accordance with the law, practice, and rules of Court in force at the commencement of these Rules. All Rules of the Supreme Court inconsistent with these Former Rules Orders and Rules are, except for the purposes of this Rule and section 22 of the principal Act, rescinded. of Court. Interpretation 2. The provisions of The Interpretation Act, Chapter 1 Application of of the Consolidated Statutes, 1903, shall apply to these Rules Act. unless there is anything in the subject or context repugnant thereto. ORDER I. WRIT OF SUMMONS AND PROCEDURE, ETC. 0. I, rr. 1-2. 1 ment of action [Cf. R. 120, (O)]. 1. Every action, except in case where it is intended to hold Commencethe defendant to bail, shall be commenced by a writ of sum- by writ. mons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action. O. 2, r. 1, (E), am. 2 2. Any costs occasioned by the use of any forms of writs, Costs of prolix writs. and of indorsements thereon, other or more prolix than the Cf. R. 1154, (0)]. forms hereinafter prescribed, shall be borne by the party using the same, unless the Court or a Judge shall otherwise direct. O. 2, r. 2. (E). 37 0. I, rr. 3-6. 3 Form of writ. 3. The writ of summons for the commencement of an action shall, except in the cases in which any different form is [Cf. R. 127, (O)]. hereinafter provided, be in one of the Forms Nos. 1 and 2, in Appendix A., Part I., with such variations as circumstances may require. O. 2, r. 3, (E). 4 Leave to issue writ out of jurisdiction. 5 Form of writ for service out of jurisdiction. 4. No writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the Court or a Judge. O. 2, r. 4, (E). 5. A writ of summons to be served out of the jurisdiction, [Cf. R. 128, (0)], or of which notice is to be given out of the jurisdiction, shall be in one of the Forms Nos. 3 and 4, in Appendix A., Part I., with such variations as circumstances may require. Such notice shall be in the Form No. 5 in the same Part, with such variations as circumstances may require. O. 2, r. 5, (E). 6 Date and teste of writ. 6. Every writ of summons, and also (unless by any statute [Cf. R. 124,(0) or by these Rules it is otherwise provided) every other writ, shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Chief Justice. O. 2, r. 8, (E). 0. II, rr. 1-4. Indorsement of claim. ORDER II. INDORSEMENT OF CLAIM. 1. The indorsement of claim shall be made on every writ [Cf. R. 120, (O)]. of summons before it is issued. O. 3, r. 1, (E). 8 Indorsement under 0. 1. r. 1. 2. In the indorsement required by Order I., Rule I., it (Cf. R. 137, (O)]. shall not be essential to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled. O. 3, r. 2, (E). · 9 Form of indorsement. 3. The indorsement of claim shall be to the effect of such [Cf. R. 137, (0)). of the Forms in Appendix A., Part III., as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require. O. 3, r. 3, (E). 10 Indorsement of representa 4. If the plaintiff sues, or the defendant or any of the tive capacity, defendants is sued, in a representative capacity, the indorse[Cf. R. 120, (Ó)]. ment shall show, in manner appearing by such of the Forms in Appendix A., Part III., Section V., as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued. O. 3, r. 4, (E). 0. II, rr. 5-7. 11 indorsement. 5. In all actions where the plaintiff seeks only to recover Special a debt or liquidated demand in money payable by the defend- [Cf. R. 138, (O)). ant, with or without interest, arising (A.) upon a contract express or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt) (B.) on a bond or contract under seal for payment of a líquidated amount of money; or (C.) on a statute where the sum sought to be recovered is a fixed sum of money, or in the nature of a debt other than a penalty; or (D.) on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or (E.) on a trust; or (F.) in actions for the recovery of land, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired, or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant; the writ of summons may, at the option of the plaintiff, be specially indorsed with a statement of his claim, or of the remedy or relief to which he claims to be entitled. Such special indorsement shall be to the effect of such of the Forms in Appendix C., Section III., as shall be applicable to the case. O. 3, r. 6, (E). 12 where claim is [Cf. R. 139, (O)]. 6. Wherever the plaintiff's claim is for a debt or liquidated Indorsement demand only, the indorsement, besides stating the nature of liquidated. the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and shall further state, that upon payment thereof within six days after service, or in case of a writ not for service within the jurisdiction within the time allowed for appearance, further proceedings will be stayed. Such statement shall be in the Form in Appendix A., Part III., Section III. The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth shall be disallowed, the plaintiff's solicitor shall pay the costs of taxation. O. 3, r. 7, (E). 13 for account. 7. In all cases in which the plaintiff in the first instance Indorsement desires to have an account taken, the writ of summons shall (Cf. R. 140, (O)]. be indorsed with a claim that such account be taken. 0.3, r. 8, (E). |