0. XXII, rr. 12-14.

209 Money paid

in

to account person of un

of infant or

sound mind.

12. In any cause or matter in which a sum of money has been awarded to or recovered by an infant, or person of unsound mind not so found by inquisition, the Court or a Judge may, at or after the trial, order that the whole or any part of such sum shall be paid into court to the credit of an [Cf. R. 840, (O)]. account intituled in the cause or matter; and any sum so paid into court, and any dividends or interest thereon, shall be subject to such orders as may from time to time be made by the Court or a Judge concerning the same, and may either be retained in Court or be invested, or be paid out of Court, or transferred to such persons, to be held and applied upon and for such trusts and in such manner as the Court or Judge shall direct. O. 22, r. 15, (E), am.

13. Where any action is brought to recover a debt or damages any defendant may, before or at the time of delivering his defence, or at any later time by leave of the Court or a Judge, file in the office of the proper officer an offer and consent in writing, signed by the defendant or his solicitor, to suffer judgment by default in respect of the cause or a part of the cause of action, or one or more of the causes of action for which the plaintiff sues, being for the recovery of debt or damages, and that judgment shall be rendered against him as debt or damages for a sum by him specified in the said writing. The same shall be entered of record, together with the time when the same was filed, and the plaintiff or his solicitor may at any time within ten days after he has received notice of such offer and consent, file as aforesaid a memorandum in writing of his acceptance of judgment for the sum so offered as debt or damages, and judgment may be signed accordingly with costs; or, if after such notice the Court or a Judge shall for good cause grant the plaintiff a further time to elect, then the plaintiff may signify his acceptance as aforesaid at any time before the expiration of the time so allowed, and judgment may be rendered upon such acceptance as if the acceptance had been within ten days as aforesaid. See C. S. 1903, c. 111, s. 188, am.

210

offer and consent to suffer judgment by default.

211

Defendant's where

14. Whenever in the final disposition of any such action, such offer and consent shall have been made by the defendant, costs not and the plaintiff shall not recover a greater sum than the sum accepted. so offered, not including interest on the sum recovered in debt or damages from the date of such offer, the defendant shall

0. XXII, r. 15.

212

Payment in or offer not to be

ed to jury.

have judgment against the plaintiff for his costs by him incurred after the date of such offer, and execution shall issue therefor; and the plaintiff, if he shall recover any debt or damages, shall be allowed his costs only up to the date of such offer or consent. C. S. 1903, c. 111, s. 189.

15. Where a cause or matter is tried by a Judge with a communicat jury no communication to the jury shall be made during the trial, either of the fact that money has been paid into court, or of the amount paid in or that an offer to suffer judgment by default has been made, as the case may be. The jury shall be required to find the amount of the debt or damages, as the case may be, without reference to any payment into Court, or of any offer to suffer judgment by default. O. 22, r. 22, (E), um.; C. S. 1903, c. 111, s. 193, am.

O. XXIII, rr. 1. 2.

213

Delivery of reply. [R. 256, (0)].

214 Leave for subsequent pleadings. [Cf. R. 257, (O)].

0. XXIV, r. l.

215

Before

delivery of

defence.

ORDER XXIII.

REPLY AND SUBSEQUENT PLEADINGS.

1. A plaintiff shall deliver his reply, if any, within twentyone days after the defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court or a Judge. O. 23, r. 1, (E), as unamended by R. S. C., July, 1902, r. 7, (E).

2. No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a Judge, and then shall be pleaded only upon such terms as the Court or Judge shall think fit. Every pleading subsequent to reply shall be delivered within the time specified in the order giving leave to deliver the same or if no time be so specified, within four days after the delivery of the previous pleading, unless the time shall be extended by the Court or a Judge. O. 23, r. 3, (E), am.

ORDER XXIV.

MATTERS ARISING PENDING THE ACTION.

1. Any ground of defence which has arisen after action statement of brought, but before the defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may be raised by the defendant in his statement of defence, either alone or together with other grounds of defence.

(Cf. RR. 289, 290, (O)].

And if, after a statement of defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply. O. 24, r. 1, (E).

0, XXIV,

rr. 2, 3.

216

defence or

reply.
[Cf. RR. 291,

2. Where any ground of defence arises after the defendant Further has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may, and where 292, (0))any ground of defence to any set-off or counterclaim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, or at any subsequent time by leave of the Court or a Judge, deliver a further defence or further reply as the case may be, setting forth the same. 0. 24, r. 2, (E).

217

defence.

3. Whenever any defendant, in his statement of defence, Confession of or in any further statement of defence, as in the last rule (cf. R. 295, (O)]. mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence (which confession may be in the Form No. 5 in Appendix B., Part II., with such variations as circumstances may require), and may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Court or a Judge shall, either before or after the delivery of such confession, otherwise order. O. 24, r. 3, (E).

ORDER XXV.

PROCEEDINGS IN LIEU OF DEMURRER.

1. No demurrer shall be allowed. O. 25, r. 1, (E).

0. XXV, rr. 1-3.

218 Demurrer abolished.

[Cf. R. 259, (0)].

219

may be raised [R. 259, (O)].

2. Any party shall be entitled to raise by his pleading Points of law any point of law, and any point so raised shall be disposed of by pleadings. by the Judge who tries the cause at or after the trial, provided, that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing, and disposed of at any time before the trial. O. 25, r. 2, (E).

3. If, in the opinion of the Court or a Judge, the decision Dismissal of of such point of law substantially disposes of the whole action, [R. 260, (O) ]. or of any distinct cause of action, ground of defence, set-off,

220

action.

0. XXV,

rr. 4. 5.

221 Striking out pleading where no

counterclaim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just. O. 25, r. 3, (E).

4. The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause cause of action of action or answer, and in any such case, or in case of the

reasonable

disclosed.

[R. 261, (O)].

999

Declaratory

judgment.

c. 51, s. 57 (5)].

action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just. O. 25, r. 4, (E).

5. No action or proceeding shall be open to objection on R. S. O. 1897, the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not. O. 25, r. 5, (E); C. S. 1903, c. 112, s. 118.

ORDER XXVI.

DISCONTINUANCE.

1. The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof, before taking any other proceeding in the action (save any interlocutory application), by notice in writing filed and served, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a Judge, but the Court or a Judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court or a Judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not

be competent to a defendant to withdraw his defence, or any part thereof, without such leave. A plaintiff may discontinue as to one or more of several defendants. O. 26, r. 1, (E); R. 430 (1), (O).

0. XXVI, rr. 2-4.

224

by consent,

2. When a cause has been entered for trial, it may be withdrawal withdrawn by either plaintiff or defendant, upon producing [R. 543, (O)]. to the proper officer a consent in writing, signed by the parties. O. 26, r. 2, (E).

225

judgment

ance.

3. Any defendant may enter judgment for the costs of Entering the action if it is wholly discontinued against him, or for the on discontinucosts occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within four days after taxation. O. 26, r. 3, (E).

[Ct, R. 430 (1),

(0)1.

226

quent action

paid.

4. If any subsequent action shall be brought before pay- Staying subsement of the costs of a discontinued action, for the same, or until costs substantially the same, cause of action, the Court or a Judge (cr, R. 1198 (d), may, if they or he think fit, order a stay of such subsequent action, until such costs shall have been paid. O. 26, r. 4, (E).

ORDER XXVII.

DEFAULT OF PLEADING.

O. XXVII, rr. 1-3.

227

plaintiff to

deliver state

ment of claim.

(R. 432, (O)].

1. If the plaintiff, being bound to deliver a statement of Failure of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge to dismiss the action with costs, for want of prosecution; and on the hearing of such application the Court or Judge may, if no statement of claim shall have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the Court or Judge shall think just. O. 27, r. 1, (E).

228

Judgment on

defendant's

claim for debt.

2. If the plaintiff's claim be only for a debt or liquidated demand, and the defendant does not, within the time allowed default in for that purpose, deliver a defence, the plaintiff may, at the [Cf. R. 587, (O)]. expiration of such time, enter final judgment for the amount claimed; with costs. O. 27, r. 2, (E).

3. When in any such action, as in the last preceding rule mentioned, there are several defendants, if one of them make default, as mentioned in the last preceding rule, the plaintiff