if no quorum.

507. If on any of the days appointed for the sittings of Adjournment the Court en banc or adjournments thereof a sufficient number of judges to constitute a quorum have not arrived the senior judge present shall make such adjournment as he thinks proper. N.W.T., c. 21, R. 499.

to costs, no

508. No judgment given or order made by the Court or a Judgment on judge by the consent of parties or as to costs only which by consent or as law are left to the discretion of the Court or judge shall be appeal subject to any appeal except by leave of the Court or judge without leave. giving the judgment or making the order. N.W.T., 21, R. 500.

509. No appeal shall lie from the judgment or order of Jurisdiction the court presided over by a single judge or a judge of the in appeal. court to the Court en banc without the special leave of the judge or court whose judgment or order is in question unless the title to real estate or some interest therein or the validity of a patent is affected or unless the matter in controversy on the appeal exceeds the sum of two hundred dollars exclusive of costs; or unless the matter in question relates to the taking of an annual or other rent, customary or other duty or fee or a like demand of a public nature or general nature affecting future rights. N.W.T., c. 21, R. 501.

510. No security for costs shall be required in applica- Security for tions for new trials or appeals or motions in the nature of costs. appeals unless by reason of special circumstances such security is ordered by a judge upon application to be made within fifteen days from the service of the notice of motion, application or appeal. N.W.T. c. 21, R. 502.

new trial.

511. Motions for new trials, appeals and motions in the Appeal or nature of appeals shall be brought by notice of appeal and motion for any party appealing may by the same notice appeal and in the alternative ask for a new trial. In motions for new trials, appeals or motions in the nature of appeals the appellant may, by the notice of appeal, appeal from the whole or any part of the verdict, judgment or order and the notice of appeal shall state whether the whole or part only of such verdict, judgment or order is complained of and in the lat- Contents o ter case shall specify such part; and such notice of appeal shall state the grounds on which such application is based. N.W.T. c. 21, R. 503.

notice.

notice.

512. The notice of appeal shall be served within 30 days Time for after the verdict where the application is for a new trial service of and within 30 days after judgment in other cases but the Court or judge may either before or after the expiration of such period enlarge the time for giving notice, provided that in appeals from interlocutory orders the notice of

16-Y. O.

Amendment of notice.

Service of notice of appeal.

Parties to appeal.

General

powers of court on

appeal.

New trial not

unless

substantial

wrong or miscarriage.

appeal shall be served within 15 days from the date of the order but the Court or judge may in like manner enlarge the time for giving such notice. N.W.T. c. 21, R. 504.

513. The notice may be amended at any time by leave of the Court or judge on such terms as the Court or judge thinks just. [E. 555.] N.W.T. c. 21, R. 505.

514. In appeals or motions in the nature of appeals the notice of appeal shall be served on all parties directly affected by the appeal and it shall not be necessary to serve parties not so affected; but the Court may direct notice of the appeal to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as are just and may give such judgment and make such order as might have been given or made if the persons served with such notice had been original parties. [E. 866.] N.W.T. c. 21, R. 506.

515. On appeal the Court shall have in addition to all the powers and duties as to amendment, full discretionary powers to receive further evidence on questions of fact as to matters which have occurred after the date of the decision from which the appeal is brought by affidavit or by deposition taken before an examiner or commissioner; such further evidence shall be admitted on special grounds only and with the special leave of the Court. The Court shall have power to draw inferences of fact and to give any judg ment and make any order which ought to have been made and to make such further or other order as the case requires. The powers aforesaid may be exercised by the Court notwithstanding that the notice of appeal is that part only of the deci sion be reversed or varied and such powers may also be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have appealed from or complained of the decision. The Court shall have power to make such order as to the whole or any part of the costs of the appeal as are just. [E. 868.] N.W.T., c. 21, R. 507.

516. A new trial shall not be granted on the ground of to be granted misdirection or of the improper admission or rejection of evidence or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appears to such court that such wrong or miscarriage affects part only of the matter in controversy or some or one only of the parties the Court may give final judgment as to part thereof or some or one only of the parties and direct a new

trial as to the other part only or as to the other party or parties. [E. 556.] N.W.T. c. 21, R. 508.

517. A new trial may be ordered on any question what- New trial on ever are the grounds for the new trial without interfering any one with the decision or finding upon any other question. [E. 557.] N.W.T. c. 21, R. 509.

question.

proceedings

518. When notice of motion for a new trial or notice of Application appeal has been served the further proceedings on the verto stay dict, finding, order or judgment may be stayed in whole or pending in part until the decision of such motion or appeal by the appeal. Court or by the judge who presided at the trial on such terms as the Court or judge thinks fit. The applicant however shall be entitled to an order so staying the proceedings on filing sufficient bail or security or making deposit of money to the approval of the Court or judge in such reasonable amount as the Court or judge directs to respond the judgment to be finally given in the cause or matter. An application to the judge for such stay of proceedings shall not prejudice the applicant's right to apply to the Court for such stay. N.W.T. c. 21, R. 510.

519. When any question of fact is involved in an appeal Evidence on or application for a new trial the evidence taken in the appeal as to question of court below or by the judge appealed from, bearing on such fact. question shall subject to any special order be brought before the court as follows:

1. As to any evidence taken by affidavit, by the production of copies of such affidavits;

2 As to any evidence given orally, by the production of copies of the judge's notes or of the evidence extended from the notes taken by the official stenographer or of such other material as the Court deems expedient. [E. 875.] N.W.T., c. 21, R. 511.

520. No interlocutory order or rule shall operate so as to Interlocutory bar or prejudice the Court from giving such decision on the order not to appeal as is just. [E. 878.] N.W.T., c. 21, R. 512.

prejudice appeal.

521. No notice of appeal shall operate as a stay of execu- Appeal not to be stay of tion or of proceedings under the decision appealed from or proceedings. objected to except so far as the judge appealed from or the Court orders and no intermediate act or proceeding shall be invalidated except so far as the Court directs. Security. Such deposit or other security shall be made or given as is directed by the Court or judge otherwise the motion of appeal or for new trial shall not be heard but be dismissed. [E. 880.] N.W.T., c. 21, R. 513.

522. Where any application ought to be made to or any Applications jurisdiction exercised or any act done by the judge by whom to judge where

judge who

tried the

action cannot hear them.

Appeals to be

entered and

at first opportunity.

a cause or matter has been tried or heard if such judge dies or ceases to be a judge of the court or if for any other reason it is impossible or inconvenient that such judge should act in the matter the presiding judge may either by a special order in any cause or matter or by a general order applicable to any class of orders or matters nominate some other judge to whom such applications may be made or by whom such jurisdiction may be exercised. [E. 885.] N.W.T., c. 21, R. 514.

523. A judgment, order, decision, rule or verdict appealed motions made from or sought to be set aside shall stand as if no notice of appeal or notice of motion to set the same aside had been made or given if the cause or matter in which the same was made or given is not entered for argument on the first entry day after such notice or if the motion of which such notice has been given is not made when the cause or matter is called unless such default in the moving party is waived by the other parties interested or unless the Court otherwise orders. N.W.T., c. 21, R. 515.

Single judge

may deliver

court or of other judge.

524. Any judge may deliver the judgment of the Court judgment of When authorized to do so by the judges en banc who heard the matter on which judgment is to be pronounced or may deliver the judgment of any other judge when authorized to do so by such other judge notwithstanding the absence of the judge or judges aforesaid. N.W.T., c. 21, R. 516.

Costs

discretion

of court.

ORDER XLII.

COSTS.

I.-Generally.

525. Subject to the provisions of this Ordinance and the generally in rules of court the costs of and incident to all proceedings in the Territorial Court including the administration of estates and trusts and compensation or allowance to any executor, administrator, guardian, committee, receiver or trustee shall be in the discretion of the Court or judge:

Proviso as to trustees.

Costs where cause tried by jury.

Provided that nothing herein contained shall deprive an executor, administrator, trustee or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings of any right to costs out of a particular estate or fund to which he would otherwise be entitled.

Provided also that where any action, cause, matter or issue is tried with a jury the costs shall follow the event unless the judge by whom such action, cause, matter or issue is tried or the court for good cause otherwise orders. [E. 966.] N,W.T., c. 21, R. 517.

issues.

526. When issues in fact and law are raised upon a claim Costs of or counterclaim the costs of the several issues respectively both in law and fact shall unless otherwise ordered follow the event. N.W.T., c. 21, R. 518.

solicitor

527. Where the Court or judge appoints the Public Costs of Administrator or a solicitor to be guardian ad litem of an guardian infant or person of unsound mind the Conrt or judge may ad litem. direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid by the parties or some one or more of the parties to the cause or matter in which such appointment is made or out of any fund in court in which such infant or person of unsound mind is interested and may give directions for the repayment or allowance of costs as the justice and circumstances of the case requires. [E. 988.] N.WT., c. 21, R. 519.

II.-Security for Costs.

costs.

528. When the plaintiff in an action resides out of the Summons for Territory and in any other case where by the practice and security for procedure in England a defendant is entitled to security for costs and the defendant by affidavit of himself or his agent alleges that he has a good defence on the merits to the action the defendant shall be entitled to a summons to show cause why an order should not issue requiring the plaintiff within three months (or such other or further time as the Court or judge deems right) from the service of the order to give security for the defendant's.costs and staying all further proceedings in the meantime and directing that in default of such security being given the action be dismissed with costs unless the Court or judge on special application for that purpose otherwise orders. N.W.T., c. 21, R. 520.

529. In any cause or matter in which security for costs Time and is required the security shall be of such amount and be manner of giving given at such times and in such manner and form as the security. Court or judge directs. [E. 981.] N.W.T., c. 21, R. 521.

bond given.

530. Where a bond is given as security for costs it shall Obligee where unless the Court or judge otherwise directs be given to the party or person requiring the security and not to an officer of the court. [E. 982] N.W.T., c. 21, R. 522.

III.—Taxation and Tariffs of Costs.

531. In all cases and proceedings as also upon interlocu- Taxation of tory applications where a party becomes entitled to costs costs unless from any other party the same shall be taxed by the clerk ordered.

lump sum