The motion was heard by ORDE, J., in the Weekly Court, London. A. G. Chisholm , for the defendant. A. R. Douglas , for the plaintiffs. And the plaintiffs claim a declaration that the location ticket of the defendant was obtained by him by fraud and misrepresentation, and such further and other relief as the Court may deem meet. The fact that this motion was set down by consent does not enlarge the power of the Court to deal with the point summarily.
Consent is merely an alternative for leave to set the motion down.
It was stated on the argument that the Superintendent-General had adjudicated under this section, and this was not denied by counsel for the plaintiffs. While there are cases in which, under the corresponding English Rule, the facts upon which the question of law raised by the pleadings is based, have been allowed to be proved by affidavit, the practice is not to be encouraged. If parties are agreed upon facts which are not set out in the pleadings they may state a case under Rule 126. It is true that, as the facts upon which the point of law is raised are set forth broadly in the statement of defence, the plaintiffs might seek to dispose summarily of the question of law so raised, because for the purpose of the motion they can admit the truth of the defendant's allegations of fact. And upon the same principle a defendant who raises a question of law upon the allegations of fact contained in the statement of claim may move, because for the purposes of his motion he admits the facts so alleged.