GENERAL RULES AND ORDERS REGULATING THE PRACTICE AND PROCEDURE IN ADMIRALTY CASES IN THE EXCHEQUER COURT OF CANADA. In pursuance of the provisions of "The Colonial Courts of Admiralty Act, 1890” and of "The Admiralty Act, 1891," (Canada), it is ordered that the following rules of Court for regulating the practice and procedure (including fees and costs) of the Exchequer Court of Canada in the exercise of its jurisdiction, powers and authority as a Court of Admiralty shall be in force in the said Court. 1. In the construction of these rules, and of the forms and tables of fees annexed thereto, the following terms shall (if not inconsistent with the context or subject-matter) have the respective meanings hereinafter assigned to them; that is to say: (a) Words importing the singular number include the plural number, and words importing the plural number include the singular number; (b) Words importing the masculine gender include females; (c) "District" shall mean an Admiralty district constituted by or by virtue of "The Admiralty Act, 1891"; and in respect of proceedings in the registry of the Court at Ottawa shall include the whole of Canada; (d) "Court" or "Exchequer Court" shall mean the Exchequer Court of Canada; (e) "Registry" shall mean the registry of the Court, or any district registry thereof; (f) "Judge” shall mean the judge of the Court, or a local judge in admiralty of the Court, or any person lawfully authorized to act as judge thereof; (9) "Registrar" shall mean the registrar of the Court, or any deputy, assistant or district registrar thereof; (h) "Marshal" shall mean the marshal of the Court, or any deputy, assistant or district marshal thereof, or any sheriff or coroner authorized to perform the duties and functions of a sheriff in connection with the Court; () "Action" shall mean any action, cause, suit, or other proceeding instituted in the Court; () "Counsel" shall mean any advocate, barrister-at-law, or other person entitled to practise in the Court; (k) "Solicitor" shall mean any proctor, solicitor or attorney entitled to practise in the Court; (1) "Plaintiff" shall include the plaintiff's solicitor, if he sues by a solicitor; (m) "Defendant" shall include the defendant's solicitor, if he appears by a solicitor; (n) "Party" shall include the party's solicitor, if he sues or appears by a solicitor; (0) "Person" or "party" shall include a body corporate or politic; (p) "Ship" shall include every description of vessel used in navigation not propelled by oars only; (9) "Month" shall mean calendar month. ACTIONS. 2. Actions shall be of two kinds, actions in rem and actions. in personam (1). 3. Actions for condemnation of any ship, boat, cargo, proceeds, slaves, or effects, or for recovery of any pecuniary forfeiture or penalty, shall be instituted in the name of the Crown. (1) The Volant, 1 W. Rob. 387. The Hope, 1 W. Rob. 154. The Zephyr, 11 L. T. N. S. 351. 4. All actions shall be entitled in the Court, and shall be numbered in the order in which they are instituted, and the number given to any action shall be the distinguishing number of the action, and shall be written or printed on all documents in the action as part of the title thereof. Forms of the title of the Court and of the title of an action will be found in the Appendix hereto, Nos. 1, 2, 3 and 4. WRIT OF SUMMONS. 5. Every action shall be commenced by a writ of summons which, before being issued, shall be indorsed with a statement of the nature of the claim, and of the relief or remedy required, and of the amount claimed, if any. Forms of writ of summons and of the indorsements thereon will be found in the Appendix hereto, Nos. 5, 6, 7, 9 and 10 (1). 6. In an action for seaman's or master's wages, or for master's wages and disbursements, or for necessaries, or for bottomry, or in any mortgage action, or in any action in which the plaintiff desires an account, the indorsement on the writ of summons may include a claim to have an account taken. 7. The writ of summons shall be indorsed with the name and address of the plaintiff, and with an address to be called an address for service, not more than three miles from the registry, at which it shall be sufficient to leave all documents required to be served upon him. 8. The writ of summons shall be prepared and indorsed by the plaintiff, and shall be issued under the seal of the Court, and a copy of the writ and of all the indorsements thereon, signed by the plaintiff, shall be left in the registry at the time of sealing the writ. 9. The judge may allow the plaintiff to amend the writ of summons and the indorsements thereon in such manner and on such terms as to the judge shall seem fit (2). (1) The John Bellamy, L. R. 3 A. & E. 129. The Princess Royal, L. R. 3 A. & E. 27; The Vivar, 2 P. D. 29. The W. A. Sholten, 13 P. D. 8. (2) The Duke of Buccleuch (1892) P. 201. SERVICE OF WRIT OF SUMMONS. 10. In an action in rem, the writ of summons shall be served (a) Upon ship, or upon cargo, freight, or other property, if the cargo or other property is on board a ship, by attaching the writ for a short time to the main-mast or the single mast, or to some other conspicuous part of the ship, and by leaving a copy of the writ attached thereto; (b) Upon cargo, freight, or other property, if the cargo or other property is not on board a ship, by attaching the writ for a short time to such cargo or property, and by leaving a copy of the writ attached thereto; (c) Upon freight in the hands of any person, by showing the writ to him and by leaving with him a copy thereof; (d) Upon proceeds in Court, by showing the writ to the registrar and by leaving with him a copy thereof. 11. If access cannot be obtained to the property on which it is to be served, the writ may be served by showing it to any person appearing to be in charge of such property, and by leaving with him a copy of the writ. 12. In an action in personam, the writ of summons shall be served by showing it to the defendant, and by leaving with him a copy of the writ. 13. A writ of summons against a firm may be served upon any member of the firm, or upon any person appearing at the time of service to have the management of the business of the firm. 14. A writ of summons against a corporation may be served upon the mayor, or other head officer, or upon the town clerk, clerk, treasurer or secretary of the corporation and a writ of summons against a public company may be served upon the secretary of the company, or may be left at the office of the company. 15. A writ of summons against a corporation or a public company may be served in any other mode provided by law for service of any other writ or legal process upon such corporation or company. 16. If the person to be served is under disability, or if for any cause personal service cannot, or cannot promptly be effected, or if in any action, whether in rem or in personam, there is any doubt or difficulty as to the person to be served, or as to the mode of service, the judge may order upon whom, or in what manner service is to be made, or may order notice to be given in lieu of service. 17. The writ of summons, whether in rem or in personam, may be served by the plaintiff or his agent within twelve months from the date thereof, and shall, after service, be filed with an affidavit of such service (1). 18. The affidavit shall state the date and mode of service and shall be signed by the person who served the writ. A form of affidavit of service will be found in the Appendix hereto, No. 11. 19. No service of a writ or warrant shall be required when the defendant by his solicitor undertakes in writing to accept service thereof and enter an appearance thereto, or to put in bail, or to pay money into Court in lieu of bail; and any solicitor not entering an appearance or putting in bail or paying money into Court in lieu of bail in pursuance of his written undertaking so to do, shall be liable to attachment. SERVICE OUT OF JURISDICTION. 20. Service out of the jurisdiction of a writ of summons, or notice of a writ of summons, may be allowed by the judge whenever: (a) Any relief is sought against any person domiciled or ordinarily resident within the territorial jurisdiction of the Court; (b) The action is founded on any breach or alleged breach within the territorial jurisdiction of the Court of any contract wherever made, which according to the terms thereof ought to be performed within such jurisdiction; (1) The Solis, 10 P. D. 62. BB |