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SItontrral: PRINTED BY LOVELL & GIBSON, ST. NICHOLAS STREET. 1842. r I a tl niOVINCE OF CANADA, DISTRICT OF MONTREAL. Xn the OTouv t of Ittna^is Uetich. It is Ordered, That from henceiorth all previous Rules of Practice be rescinded, and that the following Rules and Orders of Practice shall be and the same are hereby established and declared to be the Rules and Orders of Practice of this Court. M v* ORDERS / / f K ' - .' ■(: - ^ y AND /J>- >- KULES OF PKACTlCl!: ^^- a. ,-f , / ■\/ ; / i-'A^ V It is Ordered, A SECTION I. 0/ Ihe Court, I. 'Cu / That, on the first day of each Superior Term, the Court be opened at the hour of Ten in the forenoon, and at the same hour of each and every Juridical day, excepting the last two Juridical days in each Term, on which the Court shall open at the hour of Two in the afternoon. II. That the several days hereinafter mentioned shall, in each Term respec- tively, be taken and held to be holydays, within the intent and meaning of the 3d Section of the Provincial Statute 35, Geo. III., chap. 1st, that is to say : — The Circumcision^ Epiphany ^ Annunciaticm, Ascension Good Friday, Her Majetty^s Birth Day, Pentecost, Corpus Christi, or Fete Dieu, St. Peter and St. Paul, Assumption, All Saints, Conception, and Christmas Pay j and that on these several holydays this Court shall not sit or be held, l^t that this Court shall sit and be held on every other day, (Sundays excelled,) in each Term respectively. " - / r- } r ' 6 \ OF THE COrKT. III. ' - kl Tii.'il, al llie o|ioiiiii(! ol the Court on eucli JuriiJicul iliry in Term, all Defendants who hy writ shall he legally sunuiioncil then and there to opiHjar in |)orst)n, or by Attorney, for whom no appearance shall have been entered; and all Defendants who by writ sliall be legally siununoncd then and there to appear in their own proper persons shall of course, without any motion for that purpose, be called, and that in like manner upon each Juridical day in Term, which with respect to any Defendants, shall under the 3d Section of the Provincial Statute 11, (Jeo. 111. chap. 7, be the Urtius dies post, such last mentioned Defendants and each of them, at the opening of the Court upon such day, shall of course, and without any motion for that purpose, be called. IV. ,^ '' That on each Juridical day of Term, when and so soon as the Defen- — ,^ I dants mentioned in the next preceding article shall have been called, the /^j / . Court shall proceed to hear all such motions as sliall be oflered by the /a/. [. ^t Queen's Counsel and Barristers,' who shall be present in Court, and ,-" /' • ''- habited as hereinafter is directed ; each making in succession, according '^..t*-c to his precedence and seniority at the Bar respectively, one motion, until the whole shall be heard, and in like manner hear all petitions which '-^'. "* ' shall be so offered. That the Court shall then proceed to the hearing / y * ^-^ qnd examination of all matters whatsoever especially appointed by any "^ liule or Order of the Court for the day, and thereafter to the hearing ^ y7 '/^^ ^11 issues in fact and in law, which shall be raised by the pleadings in ^,^. ^ --^ny cause. ■"■ ^^< , .. , .; .. vt'^.y V. V. That in each Superior Term there shall be two days set apart for the ^examination of witnesses, i n c a uw a w-ivhioh-tlite Plainlifl' shall proceed hy J«f«uU or CTprar/c ; which shall be the tenth and eleventh Juridical V ' / lays of each Term respectively ; and upon any such day no issue of fact or law, which shall be raised by the pleadings in any cause, shall l)e . // hoard ; ui^ss such i^uc shall by sdi^je Rule or Otijer of the Court, be appointed ospu^ially foi-^liearing upon sbcji day : and lill sucli issues ol ^ j'acl or law, as are Jjt^dmHdoiajjjfijUiuJUU^^ shaU be IjcIwJ.. Mpo'„L?ny /^'.'•V/-^ .<< y /./c^ <^^c CI ::ir^ I. .. ^.v' §11. OF THE OFFICEUS OF TflK COURT. Juridical da): in Term not set npnrt for tlio cxnminntlon of witncspcsi, rtnd upon any te appointed e8|)ecially for or continued lo such day ; and oil Enqu^lcs in contested Cau&es shall he had in vacation. .^ // Z^" /. / ^ (y / '' ' SECTION:!!.' / Of the Queen^i Ctninad, of Barristers^ of JIttornic.Sf und (f other Officcij of the Court. It is Ordered, I. rr That the Queen's Counsel, and all Barristers wholdo or shall jjiractisc in this Court, do appear, when in Court, hahiled in hiatk, and in euch Robes and Bands as are worn hy the Queen's Counsel and Barristers in Westminster Hall, as heretofore hath been used ; and that no such Counsel or Barrister be heard in any cause who is not so habited. II- That the Prothonotariesof this Court do appear, when in Court, habited in black, and in such robes and bands as are worn by the Prothonotaries in Westminster Hall, as heretofore hath been used; that the SheriiV also, when in Court, do appear liabited in black, with his robe, his wand of office and sword as heretofore hath been used ; and that the Crier, when in Court, do also ap[)ear habited in black and in such rolic, as is worn by that officer in Westminster Hall. \ III. That upon all judj^ments entered and recorded in this Court, during the present Term, or hereafter to be entered and recorded, the Prothonotary / / ^ /^ flS or Tiin OFFICERS of the rouRt//^^ § IT. / <5t>' vl Himll not 1)0 liolil 01 !.)'^Mn(l to cxpodito or «lclivor a|i^ ropy msiM^ki/i of t Ito J ftM i iiulgmcnt, or nny writ of exsciition tborcon, until the feca iluc to --, liiin in the aomiftrnnse^ oy the person ub^mmhul Jcmanding such copy ni nu^iipij uf tin jiiJgnicnt or Huch writ of execution, shall have been first paid. IV. '/ That the ofllces of the Prothonotartatf ■t tlio ShcrilT 'OfjiiO. District of Montreal, during , ond of t Term, be open from the hour of eight in the morning until the hour of hIx in the afternoon of every day, (Sun J ayoi nwrf the -holythnrs- enumePAte^'i in tUo ^Ci^rnid-^oriicle of lite first Section, excepted) and 'luring ownry w^^lwt>r|iin»i^. vacation, from the hour of nine in the morning un til the iiQiu: oi noew, and from the Ixour of two until the hour of four in the afternoon oLisadv- tl^, \ vvjuiAf dav. ^undays. a nd tlie holyd»y«, wrecpted. / / / V. That the Sheriff J>f t l ip W Hii tt tyf 'MwTtTCal, the Prothonotaryi, and ) Crier, do personally attend in-lkb Court, in their several and respective places, dt die in diem, during each Sti p iwc r Term, from the opening until the rising of the Court, and in like manner during all sittings of the Court held in vacation, iby appointment or appointments thereof, made i n any preceding Term . That the Rules VI. of Practice, W /^.l -^^ >r' t '/ in this ■• /A Court, and a\\ ^ecisioiiB of thift rniirt^ md ■ c to '-, dof the I tbo LUUit> oon, jadv- "' '■ \/ W-r'^^ I U' — — OJ* THE irPfCERS OF THE COURT. 9 § II* -»^ ^-•, /^ 7 ^ ^ / be fairly entered by the Prothonotaries in a Register to Ikj by them kept for that purpose, to which all PractislNi^in thi8 Court shall, at all times during oflice hour?, have free access, and be allowed to take extracts and copies 4'^rafi*. ^ jCJ/i^ //• '/ ^f ' ^-^/^^^ ■ Vlir. _ ;, ' ■■ *' That no change of Attornies, ,«tpot» tW e w f uHitat i n i i -of any party ^ p f tin<, fnr i n y nn iisii ii ln i l , shall ja my rtiiaybo allowed, without ^6>-C^c "l »-4ltile-of-thT?r<3oitrt permitting such change, and substituting some other -^Jt^-^ Altornej-j in the place and stead of tlia Attorney who by such change w hall hg p utj^j^'t.g(L*Jm-ft^i'"*j 4o-be- m« rev iou B notice to the adverse party o n y t iiie s, and to the Attorney ocJMlHHKr ttrwhem atiek motion shall refer. IX. That an Attorney, who shall appear xskWH^ -rt, for any '^-e pers«iiiMBK«4*v'o«ver, shall not ( e^tcopt f or lawful " ca Li!="3 ot si erson ^ sickness, '■ f-. necessary absence, or the like) be permitted to wiilidraw h iwee lf from ~«ny suit in which he shall so appear/ willHPQt tt 4ia«iit.wiMtev«fy<4»r-«i^y>^aufle wimlever, wittioiH a •^^^ BrfBLiitAlyCuu r t | » e ni i tttliTg^tm to wUTidraw from such suit, arrd sub- ^titnttng, with Ute-coMeniof the person or persons for whom he shall hf|V6' w Bppeaired, sdme other Attorney in his place upon motioir for that purpcee* witb..pi«viouft notice to^ the adverse party, ftnd to the peraook^jfitnocM^iiW'Jwhom ho shall so file an appearance, ^.^^v^ «* • That in every suit in which an Attorney who shall appear for any party shall h0 suspended or cease to practice or die, pending such suit, all pro* ceedings against the partj^ for whom such Attorney shall have appeared, shall be staid for and during one entire Term ; and if, at the expiration of such Term, such party shall not then have appointed, and caused to be | substituted by a Rule of this Court, another Attorney in the place of such / Attorney so ceasing to practice or dead, it shall be competent to all other parties to such suit thereafter to proceed therein, as if the party of such Attorney had never appeared ; it being nevertheless hereby provided '/' '•'■'.^■^ \ I ,^S ^ 7 B 10 OP THE OFFICERS OF THE COURT, §11. ^ that in every suit in which ft shall appear, by affidavit or affidavits, to the satisfaction of the Court, that notice of the retirement or supension from practice, or death of such Attorney, hath, by any of the parties to such suit, been duly served upon Lie party for whom such Attorney, so retir- ing or suspended from practice, or dead, hath appeared ; and in which also the party, of such Attorney, so retiring or supended from practice or dead, being served with such notice, shall not, within the space of the two Juridical days in Term next after the day on which such affidavit or affidavits as aforesaid, shall be filed, appoint and cause to be substituted, by a Rule of this Court, another Attorney in the place of such Attorney, retired or suspended from practice or dead, it shall be competent to all other parties io such suit, thereafter to proceed therein, as if the party of such Attorney, so retired or suspended from practice or dead, had never appeared. \ XI. J ' 1 , *y\ '1 / /' That every Attorney, who, in any suit, by any Rule of this Court, shall / y be substituted in the place of any other Attorney, shall forthwith file an />/' appearance for the party or parties, for whom such last mentioned f T'Ttr^ ^ Attorney shall have appeared, and shall not be permitted, in any manner, — .-——'to proceed in such suit, until such appearance shall be filed. \ XII. That every Attorney who shall be substituted, by a Rule of this Court, in the place of any other Attorney, shall, at his peril, take notice of all Rules to which such last mentioned Attorney was liable ; and every Attorney who shall appear for any person or persons in this Court, shall be held and taken to be the Attorney of such person or persons, until some other Attorney shall, in the manner hereinbefore directed, be sub- stituted, by a Rule of this Court, in l}is place ; and until some other Attorney shall be so substituted by a Rule of this Court, in the place of the Attorney, who shall so appear for any person or persons, all Rules, Notices, Pleadings and other proceedings, which shall be duly served upon such last mentioned Attorney, shall be held and taken to be well and sufficiently served upon the Attorney of such last mentioned person or persons, as the case may be. \ It u §m. OF ge^£;r.^l rules. u e well person XUI. Tliat an Attorney, who shall appear for any party or parties, in an-y suit, in this Court, shall be held and taken to be the Attorney of such party or parlies, in all matters and proceedings whatsoever, collaicral and incidental to such suit. , ' XIV. That no person, who shall have served his Clerkship in this District, and who shall be referred to the Justices of this Court, or to any of them, for examination, upon Petition to be admitted as a Barrister or Attorney, in Her Majesty's Courts of Law in this Province, or as a Notary, shall be examined^ until notice of the time and place of such examination, and of the name of the person to be examined, shall be aflixed, upon the out- side of the Court House of this District, in such place as public notice? are usually affixed, and shall there have remained, for and during the space of one week, ■\ XV. /. That no Barrister or Attorney, Prothonotary, Crier, Bailiff or SherifTq Officer, shall be Bail in any Action or Suit, depending in this Court. n hl4j(Ut£^ XVI. That no Barrister or Attorney, who shall be legally dismissed, or sus- try pended from Practice, in any other of Her Majesty's Courts of Lawj^^shall r be admitted to Practice in this Court, until such Barrister or Altbrney shall have been re-admitted to Practice in the Coujrt in which ho hatiit 80 been disffiis^Qd or suspencjei} frona Practice, -«• -^ .... y h.^ r -J V ' _.— i'!/^.^ C^*,^ •*, , / It is Ordered, — -i*- That every wilful ap Awi iitt wr ful ibreaca of an Order or hule of Practice of this Court, (for wiiich no fine or other specific punisfiment is provided / • ^ I II I I HJ .^W*TT— I " I "1 1 II I I HI I I I SECTION III. Of General Rides. <(\ -I y y a; »-0-i/. -„ f~— It i ••1' ' jit , t '» « '4 «J> i\ 12 OF GENERAL RULES. I, I / ^ §111. such Order or Rule) shall be tjjg"iijn><^onsidered ^Sgl a contempt of Courtri»-thc-pCTSOn(Jr persons guilty of such breach as aCoMMNd, and punished accordingly. i^ .. _- — / That a poiyit of 1?ractice, settled by a Judgment of this Court, and entered on the Prothonotary's Book of Rules, shall not be re-argu?d. ^ \] / y III. That any party to a suit, on motion and payment of costs, shall be permitted to repair any default, omission or neglect, of which he/she, p^ they may have b6en guilty, in contravention of any Order or Rule of Practice, until his, her, or their Opponent or Opponents, or some one or more of them shall have taken advantage of such default, omission or neglect, by moving or otherwise proceeding thereupon ; provided such party at the timo of making such motion to repair such default, omission or neglect, shall not be foreclosed from so doing, by any positive Law, or by any Order or Judgment of the Court, in such cause made, or by the express terms of the Order or Rule of Practice so contravened. IV. That when and so ol\en as the Opponent or Opponents of any party or parties to any suit hath or have tafcen advantage of any default, omission or neglect, of which any party or parties may have been guilty, in con- travention of any Order or Rule of Practice by moving or otherwise pro- ceeding thereupon ; and surh party or parties so guilty of such contraven- tion, shall apply to the Court for relief against the eflfects of such default, omission or neglect, by motion or application of any other description ; such motion or application shall not be received or filed, unless it be ac- companied by an affidavit of the special circumstances of fact, upon which such motion or application is founded, and by an affidavit or BailifTs Certificate of the due notice of such motion upon such Opponent or Oppo- nents, as the case may be. tM y- ■Vu u § ni. OF OENERAL RULES. 13 It is ordered, that all Rules to shew cause (Rules JVm, as they are called) shall be served on the opposite party, or his Attorney, unless such party, or his Attorney, shall dispense with the service thereof. \ VI. That in all causes in which the service of a Rule for Strment Deci- soirej or for Faits et Articles, shall be made ui thf f^itj nf Montr' jil, there shall be one intermediate day.JbiQjliveeJi the day of service and the day of return ; and when juU "^'^— '■—'^- ---'-' -'■' * one intermediate, day as above, and also one intermediate day for every five leagues of distance. •-^ y ■ / ..y / 1 ffr^tj^ t :■ (' ' ^^^ • " ■■-'■' /,•■'•' \ ■ ' <) That all Writs and Process whatsoever which shall fv^reafter be issued, shall be tested of IL day on which such Writ or Process shall issue. 'X" / VIII. That all Orders and Rules for the conduct and regulation of the Sheriff, in the execution of his duty,jj; nf mji ;imm ilmm wf, shall extend to the Coroner in all cases in which, fmnn ay^y ftli"" '"hatoriri, such duty..^ i, shall be executed by him. IX. /r^ That all Pleadings, Notices, Summonses by the Justices of this Court, Rules, Orders and Judgments, and all other matters an*' proceedings, of < which service is or shall be required upcjn any party to a suit depending in this Court, shall be served upon lie' Attorney stUiiem, who in this Court ' ^' '^ ^ shall have appeared for such party ; and in defaultW such appearance by ^ ^^ ' Attorney, at the elected domicile of such party, if iuch party shall have ^ ^ ^* appeared personally j those instances nevertheless ^excepted, in which ' ^ personal service upon such party is, by Law, by anV Rule or Order of Practice, or by some Special Rule or Order made in sVich suit, required or directed. v 14 OF OEj^fERAL RUt^ES. §w. "r \ X. Thai my Pleadiogy Notice, Summons, Rule^, Ordiev, Jutlgmentjor other matter or proceeding, of whieh service ifi' or sihall be req.iliredi wpon, any- party in any suit depending in this Court, which shall be served upon any grown person at the Office of the Attorney who shall have appeared for such party ; and in default of such appearance by Attorney, upon any grown peniion, at the elected domicile of such party, if such party shall have appeijiFed personally, shall be held and taken to be wejl and suffix ciently scr^d ; those instances excepted in wh>ich persona) sei;vice. upon, such party iv by Lavy,. by any Rule or Order of Practice, or by some Special Rule or Or<^.r made in such suit, required or directed. 1 • I' fc % \ *j I XI. That proof of service of Plieadings, and of Notices, by the affidavit of one disJAtelrested witness, duly swotu before one of the Justiees of thia Court, or before a Commissioner duly authorised to take and receive affi- davits to be read and used in this Court, or by the Certificate of any Bai- liff of this Court, shall be deemed and taken to be good and sufficient, and that proof of the service of any Summons, issued by one or more of the Justices of this Court, of any Writ of Subpoena, or of any Rule, Order or Judgment of thii Court, by like Certificate, shall be deemed and taken to be good and sufficient. y % ^to That every affidavit or BiMPs Certificate of fie servica-oLiD];: Plead- -40g, Notice^ Rule, Order, Interlocutory Judgment^ Subpoena, or othev matter, shall particularly describe the manner, place, and hour of such; Rftrvir.ft^and qbqll "»t ptltt^rwisfl be.jQfl«4ved or filed j ai/d if from 8U,ch I affidavit, or certificate, it shajl appear that such service was made upoa a ^J Sunday or holiday, or upon any other day before the boqr of six in the. morning, or after the hour of eight in the evening, such service slial) be, held and taken to be wholly ineffectual and void to all iotentsand purposes, ;> .X <' whatsoever. / t r' I L . X. n r !< ■■ §ni. OF GENERAL RULES. 15 XIII. That in all computations of time, o^dakyft^ipon af)d4ft«ll proceedings nrhitentYtr, ^ gtj piher v yj a" p a rtifiMl a rly prt^tiiAAA Sar'^j tha Jay on which any . tba fiUwg w iiprvi)6fi.vaf^fiy-^uclt.!W'nt»-^uIe,.QrJer.or j4iJgment»or of aay^jattlxfiJJBi oi QDa»JElcadu>g^J^Uce, shall be bad,or upon which such ...othM^firoeeeding as aforesaid eh^l, in like manner bd had, shall not be reckoned or countedto be one, birc^very other day to which such com- {UUatioa^liioie-iihaU ittfeiy (Sundeys \in] holidays not e^^^epted) shall be reckoned and counted to be one, and no fractions ofJioi* 8rmll,4A.aajL_ Sllfih rii^"ipHtatii»nitn hr mnde^r allowed: it being iiBVBfl1H!n6s¥ provided " thaJi^ii i - all ^^ b c b , in whlch 'S nT y "peil6JlLTT(med'B5rany''Writ, Summons, Rule, Order, Rule of Practice, or Judgment of this Court, ehall expire y upon a Sunday or holiday, such period shall, ipso facto, stand enlarged /^ until the then next Juridical day. \y /y ) xiv] That no paper of any description ^ ^(ooove r shall be received, ^gpT « ^ ^ in any cause jKhatO¥er by the Prothonotary - of - thi B -Cftu ft, unless the same be regularly docketed, with the title and number of the cause, ]^ the general description of such paper. '^ J I XV. \ \ That ^iMtlhraits which shtttt hpreafter be heard In tj\is Court, hgn i e ro them two Counsel shall be heara m qrening, or manswer, and one only , / A m reply. \ XVI. That all Hules, and Order^, for the conduct and regulation of any Attorney or Counsel in this Co^, in any cause therein depending, shall extend to the party and parties iii such cause, where no appearance by - Attorney shall have been entered for or on the behalf of such party or parties, and be Rules and Orders, for the conduct and regulation of such /party or parties, in such case, f e i whuui i Ttr appeai muw4» y'' Atloriiey s fia 1t ' "' /Jj^f frSfin fintowdj in ftlltfhtncTi > -\ J [\ ■» I lI /- •^' /V' I /'. 16 OF PROCESS AD RESPONDENDUM. §iv. I :/ '^.< |, f •i 1 r \ XVII. That every order of any Justice of this Court, which shall be obtained upon Summons in vacation, shall be subject to an appeal to this Court, and the validity thereof impeached, by moving the Court to set such order aside, or to set aside the proceedings, wliich have been had under it : it being nevertheless provided, that any such order which shall be made by consent or be otherwise acquiesced in, shall be as valid as any act of the Court. , XVIII. That all proceedings upon Writs of certiorari proMbition^ mandamus^ quo warranto, and habeas corpus, and upon each of them respectively, be in all things similar to the proceedings upon such Writs in Her Majesty^s Court of King^s Bench in Westminster Hall. 1 ^ XIX That every Suit or Action in which there shall have been no proceed- ings for and during two entire Terms of this Court, shall be remover* to jthe Archives, and the Prothonotary shall be entitled to his costs in luch suit or action as if the same was withdrawn by permission of the Court, but every such suit or action shall continue pending subject to peremp-^ Hon d'insiance, . ' ; /• < \. . w , , r (Ht'L— 1^ ' It is ordered that henceforth no contested cause be heard oa:the two last days of the Term. , , . ^X tf ♦'-'-./ h r.i'\ '"■•^ . {■ M..\.. .(.-» ^r At SECTION IV. ^■J. '1 ■i •i Of Process ad Respondendum, It is Ordered, I. That no Vrocess ad Respondendum, of any description, sueiLoutJ^Mhe mmistp y o f an Attorn o y .ofiirfew, shall issue, until an appearance, for i^/ tc'jtt/^ th s para o n op pe r oon s requiring such Process, "and a Precipe for the same, jmdt^j^iShM&Uitusof such AUom«y, shall be filed, in the Office of th<< \h. / ^■,2^ A ^ .. /> »!^>*jt j^^-: ijHwVvJt*' #rr^ 6t*jf-t^^ft'' §IV. §IV. OF PROCESS AD RESPONDENDUM. 17 tained Court, I order ' it : it ide by of the amuSf sly, be iesty*8 Kjeed- ve(* to t Ldch Dourt, i two ,' / ^^ / Prothonotary ; anU no other appearance shall be required or received for such pertion or persons, except in the case of change of Attornies, as herein before diipcted. ! / ''-^^ I That no Process ad Respondendum^ of any description, by any person or persons who by Law are entitled to sue out such Process, without the ministry of an Attorney, shall issue, until the appearance of such person or persons, with the election of a domicile, at some house, within the limits of the City of Montreal, and a Priscipe, for such Process made under the sig- nature or signatures of such person or persons, in the presence of two Notaries, or of a Notary and two Witnesses, shall be filed in the Office of the Prothonotary ; and all Pleadings, Notices, Rules, Judgments and other proceedings, which in any action so instituted, shall be served, at the domicile so elected, shall be held, and taken to be well and sufficiently served upon the person or persons by whom such domicile shall be so elected. ; t f III. That every action, which shall be commenced by any Process ad Respondendum, of any description, which shall not be served, or be im- perfectly served, may be continued by an Alias and Pluries Pro- cess, of the srnie description ; and that such Alias and Pluries Pro- cess, as the case may be, shall be issued (without motion or application to the Court of any description) from the Office of the Prothonotary, upon a Prcecipe for such Alias, or Pluries Process, under the signature of the Attorney ad litem, or of the person or persons, by whom such Alias or Pluries Process, shall be so sued out. ^Mhe e, for f'^.i same, of th*' IV. That all returns, upon any Process ad Respondendum, shall be made and signed by the Sheriff or Coroner to whom such Process shall be ad- dressed. I V. Ti|at every return, updn any Process «(/ Respondendum, of any de- scriptipn, shall s^vscify the manner, time, (hour of service to be expressed k V" ^K n it M I, ,^V OF PROCESS AD RESPONDENDUM. § IV, ^. on pain of nullity,) and place of such service ; «mi / M OF DEFAULTS, APPEARANCE AND BAIL. §v. if. SECTION V. 0/deJaultSy of appearance by Defendants, and of Bail, It is Ordered, \ I I. That the default of every Defendant, who shall be called under the third article of the 1st Section, and shall not appear, shall be recorded of course, and without any motion for that purpose. 1 II. That such default once recorded, shall not be taken off without pay- ment of ten shillings costs to the Plaintiff, or his Attorney ; the case excepted in which the Plaintiff sues informdpauperiSf'm which no costs shall be paid. ' III. That no Defendant shall be heard until he has appeared in the man- ner hereinafter directed. IV. That every appearance in any suit whatever, by any Attorney of this Court for any Defendant or Defendants, who legally may appear by At- torney upon Process ad Respondendum, or any other Process, shall be filed in the Office of the Prothonotary, at any time before the hour at which such Defendant or Defendants by such Process, is or are com- manded to appear, or thereafter at- any time before the hour of ten in the morning of the tertius dies post, with a deposit of the sum of ten shillings for the first default, as heretofore hath been used ; and no other appearance in such suit shall thereafter be received, for any such Defen- dant or Defendants, except in the case of change of Attornies, as herein- before directed. §v. or DEFAULTS, APPEARANCE AND BAIL. 21 1 1' That of every appeornnce which in any suit shall be filed for any De- ♦ '«" iendant ^ Qefe flt l u n ^ ffl l tV Q'T'i*^*' , nr.La . npnn Pniirt ^ a Duplicate shall ba served upon the Attorney who shall have appeared for the PiaintifrtiflNi> %ntiBjnMie, ' i sfaiiyiMHlAN^ shall not have apiieaj^fd by Attorney^ w ..< >v«» J'.^" *^^ ^ /^ That every defendant, who, in obediei.re to any Process ad Respon- dendum, shall, in any suit appear in persor'j, shall be held and bound to appear in open Uqurt ; and at thp liaic of his or her appearance, shall file an appearbqce in writing, with an election of domicile nt some house within '^he limits of the Town of Montreal, under his or her signature ; unless the Court shall see fit to direct such appearance and election of domicile to be entered of record, and grant act thereof, in which case such writing under the hand of such Defendant shall not be required ; and in default of the filing and of the entry of such appearance and election of domicile, the Plaintiff or Plaintiffs in such suit, may pro- ceed thereon, as if such Defendant had not appeared. "i ^ VII. That no plea to the Jurisdiction (exception diclinaioire') shall be filed by »ny Defendant, until an appearance shall be entered by or for such Defendant in manner hereinbefore directed. /» _,. VIII. That every Defendant who s hall (In_any suit) be arrested upon any Process ad Respondendum, shall iJJMI iiiiiy) at the return day of such Process, or on ' Qf ,t^re |Uift ^ 4(ig iMi^^ a nnea r in person or by Attorney, in luanner^hwreinbuluit! (llfficied ; and in default thereof, the Plaintiff or Plaintiffs in such suit shall and may proceed therein against such Defendant by default ex parte, in like manne1v^i_alUhiogay.as.«u«k. Pluiuliff tfp Plftlfttifls wbiflcl have pToQggilkd if such suit had been instituted by the ordinary Process ad Respondendum, and such Defendant had not D "^i'C- ^^.A A^^-.i-y^ C'^-'C-.^ \ J/ V \' 22 \ OF DEFAULTS, APPEARANCE AND BAIL. § V. appeared: t t>cing provided that no such proceeding, by default «x/>ar<«, shall afiect in any manner or way whatever the right of such Plaintiflf or PlaintiflTi} to an assignment of the Bail Bond taken by the SherifT in auch suit ; or his, her, or their right to compel the entry of special Bail, or to compel the SheriflTto bring in the body ; or any right of action upon the Bail Bond or otherwise against the Bail taken by the Sherifl*, or against any special Bail in such suit ; or any measures, steps, means, or proceedings which such Plaintiff or Plaintiflfd legally may have or pursue for any or either of the said purposes in any or either of the cases aforc- IX. That in every suit in which Special Bail is required, the same shall be put in in open Court on or before the ieriim dies posty after previous notice of one day at least to the Plaintiff; and such Bail, upon motion on the part of any Plaintiff to that effect, shall justify, or refusing to justify shall not be received as Bail. '. 'I X. That in all suitei, in which bail to the Sheriff shall be taken, the Sheriff* upon the first Juridical day in Term, next after the leriius dies post^ shall bring into Court the Bail Bond by him taken^ and in open Court shall assign the same to the Plaintiff*, if he shall be satisfied with the Bail so taken , and thereupon, being willing to accept of such assignment ^ shall move therefor; and if such Plaintiff, in such suit, shall not be satisfied with the Bail so taken by the Sheriff*, and shall therefore be unwilling to accept an assignment of the Bail Bond so taken, such Plaintiff from and after the tertius dies post, shall and may proceed against the Sheriff*, upon his return of cepi corpus, to compel him to bring in the body, by attach- ment, or by amerciaments for contempt, in case of disobedience. t \ XI. That m all suits, in which the Plaintiff*, or Plaintiffs, to compel the Sheriff to bring in the body, shall see fit to proceed by attachment, and legally may, he, she or they shall make and file a motion to that effect, in open Court ; and if such motion shall be granted, and after service of an §v. or DEFAULTS, APPEARANCE AND BAIL. 23 Office Copy of the Rule which shall be made thereon, upon the SherifT personally, at any time before the hour of eight in the evening of the day of the date of such Rule, the Sheriff shall not within three days bring in the body, and shall not show good cause to the contrary, according to the exigency of such Rule, and Special Bail shall not then be put in, an attachm'^nt shall idsue againut hi(n. That no reaiiir of any Defendant arrested, upon any Writ of Capias V ad Respondendwiif by himself, or by his bail, in discharge of bail to the SheriH/shail be valid or eSectual, or allowed as such, unless such render shall be made, in open Court, during Term, or to the Sheriff, before some one of the Justices of this Court, at Chambers, in vacation, nor unless the Court, or such Justice, before whom such render shall be made, shall have made an entry or minute of such render, and shall have committed such Defendant thereupon to the custody of the said Sheriff of the District ^ of Montreal, in discharge of such bail ; and in every case of render in ^ discharge of bail to the Sheriff, made before any Justice of this Court, the "^ ^ minute of such render shall forthwith, by such Justice, be returned into the Office of the Prothonotary, and be there filed of record in the suit to which such minute shall relate, and a duplicate thereof in all things shall, by such Justice, b3 delivered with such Defendant to the said Sheriff. ^ XIII. That until the ex{)iration of fifteen days from the day on which final Judgment shall be obtained in any suit, the assignment of the Bail Bond, upon motion for that purpose made, as hereinbefore directed, the bring- ing in of the body upon the original, or any subsequent motion for that purpose, according to the exigency of the Rule thereon, the render in dis- charge of Bail to the Sheriff, in the manner hereinbefore directed, the putting in of SpecialBail upon or before the iertius dies post, in the man- ner hereinbefore directed, or by leave of the Court, at any other time whatever, before final Judgment (such leave being granted upon motion for that purpose by consent or otherwise) the payment of the real debt and costs by the Sheriff, by the £^efendant, or by any other person, and any and either of the same s|)i(ll stay all further proceedings whatsoever ^z / /•' V V'C L,a U[ /7 A /'' i'- ' ^ t- 24 OF DEFAftJLTS, APPEARANCE AND BAIL. § V. In tiuch suit against the Sheriff to compel him to bring in the body, afld shall supersede the att^chm^nt, if any attachment shall have issued. " , . XIV. *^- That no Notice "under the signature of the Prolhonotary " of this Court, (under the provisions of the Provincial Statute 9, Geo. IV. chap. 20), sued out by the ministry of an Attorney ad litemy shall issue until an appearance for the person or persons requiring such Notice and Pracipe for the same, under the signature of such Attorney, shall be filed in the Office of the Prothonotary ; and no other appearance shall be required or received for such person or persons, except in case of change of Altornies as in and by the Rules of Practice of this Court is directed. /" / A,i^w4-2..^i4r;*- ■'■/li'' -W- '■.f«s»'W XV. That no Notice " under the signature of the Prothonotary " of this Court, (under the provisions of the Prov. Stat. 9, Geo. IV. chap. SO), sued out without the ministry of an Attorney ad litem, by any purchaser or proprietor j wha - by htiv r-^^xt^^xQ. eiUUled .and shall seefiirtosue out suskj^otice without the ministry of an Attorney, shall issue until the appearance of such purchaser or proprietor, with the election of a domi- cile at some house within the limits of the City of Montreal ; and a PrcEcipe for such Notice made under the signature of such purchaser or proprietor in the presence of two Notaries, or of a Notary and two Witnesses, shall be filed in the Office of the Prothonotary. And all Fieauings, Notices, Rule?,' Judgments a^nd other proceedings jamino- out of or incident to the said notice which shall be served at the domicile so elected, shall be held and taken to bo wetland sufficiently served upon the purchaser or proprietor by whom such domicile shall have been so elected. ^ ^ A / ') 'J n / r'y^ 1^ \i ■. 1- §v. §VI. QF EXHIBITS A^D QF COMMUNICATION. 25 ...A '• ?.' . (■ jO.:.4 ''■■c.'r/ 0/771 ' ./^y -'i— — -r , . , >' . ■. 'tr // ^^:-2:7::r;.<; <:^^.^-^ ^/Vc>.-r''V* yi^'^^J^^ ■^'-;> '^'^ ''^-' 2*^'' Of Exhibits and of Communication. ' % It is Ordered', ./ i I ^That of eanii and eveiy-yapei^-WJfUlngy other than, piiyic actB, parti- J&uill^rl^LuieatiDaed anld set forth in the dedaration, or in any subsequent ■Jjggili^igT '" ""y r.a^aPi A\ad JUL tbi0^6r«ttli«/tY/^a/*1«4iatfloei^eii^ which the party oTd na rt i< B O tQ: aW-#lJH n>g^<>WBHWWWWMP!^^ shall see fit to produce in evidence,' togeflier vvith*the ot*iginals of all dcies soui seing prive, which y;^^^.^ «haU be exhibited and filed, as hereinbefore directed, shall be exhibited and filed, with lists or inventories thereof, at the opening of the Enquete ha^pon'tlu issbe raise^d in '9uc^..suitVif ai^ thelire b^ to ] entrojUed pa^r v^ntingig, or preut0 /i7^Va/^^hall,relate» J •! .*«, ^i <. ._> ..'.■ K '> .■ y . tt. That every li8t,(gr ^inventory )of exhibits, shall be an index to al^^n^ ^ the exhibits therewith filed, by number, title, date and descrip- tion, under the signature of the Attorney duUifcm or party filing such exhi- bits ; and each and 6v«^ exhibit w4iiLli,(t jryiy caseVftrftl not teineeciedr «iit mentionedJ(as hergjjjjdirected, in the list '^r'^rn^niy jfPglh**?'^*'' 'Hi'^foTnj fited^) shall not be received «v filed, pr be d e ^med» 6Jr t«i©A4©- be fifed j^JT* b»hekl or tdcea tabe part of the record in sticb east. - if i j ii i i.. \ (T .-.-,* / «?t r'-f ■^^ t \< ^j ^ ■^ hi-L ix/— 7)" V. \ /. f* > / 26 Oy EXHIBITS AND OP COMMUNICATION". § VI. \ III. That each and every party to a suit, filing a copy of any acU sous seing privif especially alledged in his declaration, exception or other pleading, shall be bound thereby, and shall not, at the EnquSte, upon the issue, raised in such case, to which SMch ade sous seing privi shall relate, (if any there be), nor at the hearing of such issue, be permitted to produce in evidence, or to file any original paper writing whatsoever, especially alledged as aforsaid, which does not in all things correspond with such copy. ] y>'' IV. That in each and every case in which a copy of any paper writing particularly mentioned and set forth in the declaration, demande in chief or incidental or cross demande, or in any demande in intervention, as the act, instrument, deed or writing upon which such demandes respec- tively shall be founded shall not be filed, as hereinbefore directed, the party or parties in such case, who would otherwise be bound to plead to such declaration ox demande in chief, incidental cross demande, or demande in intervention, as the case may be, shall not be compelled to plead thereto, until such copy of such paper writing shall be filed ; and the rules to plead, in such case, shall commence and be reckoned from the day on which such copy of such paper writing shall be filed, and notice given thereof. 7- >• V. ^- a That in each and every case in which a copy of any paper writing particularly mentioned and set forth in any plea of exception declinatoire, peremptoire d ia forme, dilaioire, or peremptoire en droit, temporary or perpetual, as the act, instrument, deed, or writing, upon which such ex- ceptions, respectively, shall be founded, shall not be filed, as hereinbefore directed, such plea of exception, upon motion of the party or parties, who would otherwise be bound to answer to such nlea of exception, shall be overruled and dismissed with costs. VI. That in each and every case in which a copy of any paper writing particularly mentioned and set forth in any answer to any plea of excep- / . . ^'.. / ". <- _ i < t (V V §VI. §VI. or ^XHIBIT9 AND OP COMMUNICATION. 27 tion declinatoire^ peremptoire d la forme, dilatoire, or peremptoire en droit, temporary or perpetual, as the act, instrument, deed, or writing upon which such answer shall be founded, shall not be filed as herein before directed, the party or parties in such case, who would otherwise be bound to reply to such answer, shall not be compelled to reply thereto, until such copy of such paper writing shall be filed j and the rule to rep'y in such case, shall connmence and be reckoned from the day on which such copy of such paper writing shall be filed and notice given thereof. ■ ■ '-•'• ; 1 ■ ' "!»/ ' •>; .,J«. -' - ■ -■■■ -■ /* ■-* vn. rM- ■- o i \ That in every case in which the declaration or demande of any Flain- tifTin chief, or of any incidental Plaintiff, or PlalntifTin intervention, shall not disclose the particulars of such demande, the Defendant shall be en- titled by motion in Term, and by Summons before one of the Justices of this Court in vacation, to require and to obtain of thePlaintiO* in writing, the particulars of the demande for which his action, cross action, or ac- tion in intervention, as the case may be, shall be brought; unless good cause be shown to the contrary ; and every order to furnish the particu- lars of any such demande which shall be made in Term, or in vacation, shall operate as a stay of all proceedings upon such demande, until such particulars shall be furnished in writing ; it being hereby provided that no such motion or Summons shall be allowed after the expiration of the first Juridical day next after the day upon which such Defendant in any ac- tion in chief shall have appeared, nor after the expiration of the first Juridical day next after the day upon which such incidental cross demande or demande in intervention, respectively, shall be filed ; and further that no exception declinatoire, peremptoire d la forme or dilatoire, on the part of the party or parties making such motion, or requiring such Sum- mons, shall be received or filed. <: VIII. That all parties to a suitJpending in this Courty shall of--«iJifn!ioS figlSti and without .any motion^ or other application' to the Gourtlbr that pur- poie, be entitled to communication of all exhibits and other paper writings filed iajuch suit, i» the manner hereinafler directMi.>«.^..^> iX-'"- < ' y ,/ /' /.. ^/Tir /■^ (■' '•'* .€r' .A / 28 or EXHIBITS AND OF COMMUNICATION. §VI. jH n^^A IX. . That of all exhibits, or other paper writings filed in any cause, being copies tmmfgiiillmf& oCa^tes ^utheniigj^s, or Cfflif of actes sous seing prive, communication shall be ^iven, upon the receipt pf the Attorn&yi^} [■^ yBity 6r p^jitiea-iit auak^wuse, jijidorsed ypon the list ojesiwwirtory of mnk exhibits ; and such 'Attorney shall be entitled to bawanTiind retain such copies in communication, ^^Mwwarfweyjfor itial a>i rfnji t 4te;-g i >ftWti^ forty-eight hours. \ X. V V / Thatx^f all exhibits, .or other paper writings, filed in an^^^use, being ndes sous S^ng priviy 0r dri^inal paper writings of any description what- soever, communicatiod shall lE>e given to the Attorney of the party or parties demanding ar^ entitled to communication in such case, at the ^ Q0ice of the Protmwaptary of this Cotirt, and not elsewhere; it being exr pressiy provided that no exhibits or other paper writings being actes sous seing prive, or original paper writings of any description whatsoever, shall be removed, or taken in communication, from the Office of the Prp- thonotary, for any cause or on any pretence whatsoever. . XT. That after the expiration of a year and a day, fromUlieJay of the date/ v^ ojl/the final judgment, in any cause, in which no appeal shall havebeen,^ , may be instituted, all exhibits therein filed, shall and may be withdrawn by the party or parties, by whom the same have been filed, such party or parties endorsing therefor a receipt to the Prothonotary of this Court, upon the list or inventory of exhibits in such cause filed, in which the exhibits so withdrawn shall be enumerated and described. XII. That no exhibit Whieh novv 48, op-hereailerBh'atHw'filedfin any cause, shall -mjEcmi be withdrawn, pending such cause or vvitiiin a year and a day from J^e.day of t5e date ojPthe final judgment in such cause, (£ttaL.thO' -reiMuaJLof ^«tdrttitl8e, without the^order of this Coort(upon motion^wifTi 'previous notice of such motion, by the space of two days, to the adveree •/■< ,y . JQ^k .^4. a. tv '^ ^^\MX-,J4 lV.9tU0C t'. W|»«Sk.^ •C <"uy-:'-"* '• 'O v^. ^f §VI. §VI. OF EXHIBITS AND OP COMMUNICATION. 29 ;, being s seing rtory of I retain ?, being 1 what- )arty or I at the i ling exr 'es sous isoever, he Prp- h^e date/ been,^ hdrawn party or rt, upon exhibits r cause, r and a iuuiL.tiie mj^Mwiflt adverse i' party or parties therein interested, duly served; and in all cases, io.. which such jppIicatlQa shall be granted^ such exhibiifl or other paper writing shall not be witbdrawn, until a true copy thereof, duly authen- ticated by the Prothonotary of this Court, shall have been roade and filed of record, in such cause^ la Kgu.nf «^jp,h pvhihit^ or Other. .pflpanyjilJliie. by the Court allowed to be withthawiar^ XIII. > That no exhibit, or other paper writing, which now is, or hereafter shall be filed, shatl in vacation in any cause, within a year and a day from the day of ihe date of the finiil judgment in such cause, be withdrawn from the record of such cause, without the order of one of the Justices of this Court, upon written application for that purpose, with previous notice of such application, by the spacfe of two days, to the ailverse party or parties therein interested, duly served 5 and in all cases, in which, such appli- cation shall be granted, suchiexh'bit or other paper writing shall not be withdrawn, until a true copy thereof, duly authenticated by the Protho- notary of this Court, shall have, been made and filed of record, in such cause, in lieu and stead of such exhibit or other paper writing by such Justice aHowed to be withdrawn! * XIV. That in future no judgment shall be entered upon a confession in any cause until the bill of particulars, or other documents upon which the action is founded, shall have been filed. \m.^ .*y/ ^J <\ /^- 1 M. XV. 1^ That no papers of any description whatsoever shall be received or filed in any cause or proceeding whatever, arising out of the Provincial Statute 9, Geo. IV, chap. 20, by the Prothonotary of this Court, unless the same be regularly docketed ivith the title and number o(i\\e cause or pro- needing, and the general deseription of such paper. 1 J / // / :' f* / /( C ^. .'! t -. , S/l 5 * J/ c- rL 30 OF PLEADING. 1, / N. / ../ //. ' V > e-' \ It is Ordered, SECTION VII, Of Pleading, I. That, in every case, all Pleadings, subsequent to the declaration in chief, be filed in the Oflice of the Prothonotary, by the party or par- ties Pleading the same respectively. , \ II. That «6ffgsrof every Pleadingi^iibioli^^ ehaU 4)6 filed, in the Office of the Prothonot9 ry>jP atiy..fl»Maa, by^^tty-yarly) >Plaitt^.-- .-/.■ y / v 4^ d shall aAervvarda be received or filed, and that the period allowed o' by these Rules and Orders for filiiig/ such exceptions, shall not, in any case, be^n^arged. .J -—■ — C/ That all exceptions i>«}'e7n/7fotVe5 6p. droit awA aW defenses au fonds to be pleaded, in each case, respectivel}^^ be pleaded conjointly and be filed .r ' \ -/"ffOK ,-■. ''■ '. y cy ^ V i'' ■ - .o > , r 'i/'< . L '■ .-. / V * '■' ^ : i i ,,< ti.'Y k y y \ 82 C7^ FLEADINa § TH* at one nnd the same time, on the sixth day next aftei* liie retu rn day of the Process ad Respondendum, i n every suit in which the Process ad Respon- dendufn shall be returnable on the first day in Term* and oh the twentieth day from sudx rettirn day, in' every suit in which the Process ad ReapoU'* dendum shall be returnable upoi^ the second day m Term/ or upon any day, in Term, thereafter ; and that ^he Rule hereby prescribed shall be the co!iimon Rule to plead to the actios, in ea-ch case respectively. viir. » c X That in n:ll cases in which any exceptions declinaioires, dilatoires, or perempioires d la forme shall be filed bqd shall not be heard and deter- ^ t ^*V i™'"6d,or otherwise disposed of, before tlieoay on which the common Rule ^' ^ '^ to plead. In such case to action, shaU expire, such common Rule to plead to the action, flhall, 7/>5o ybc/o, stand enlarged until the first day next after the day on which such exceptions decltnaloireSjdihioireSf or peremp- ioires d la forme shall have been so heard- and determined, or otherwise disposed of* / s- r-. / ix; That no pltjjpif exception decHnatoire,perempioire d la forme, or dila- \toire be received (A^Sed, unless the party ofTering such plea shall there- tvilh deposit, in the hands of the Frothonotary, the sum of two pounds six ^hilling» and eight pence,^ for each and every such plea, to answer the costs of the P^°p~"^^* ^-^»-«q<^T * — " mw i hiM i h p li i, if the same shall /be dismissed by the Court, or withdrawn by such party,- in the proportion .' of eleven shillings and eight pence to. the Frothonotary ,^and one pound fif- teen shilling to such RespoBdent ol^tgipiWtdeRta.- y .( ' .. "1 \ \ That aWpreuve liiUrale, of whatever description to be adduced, in sup- port of any exception declinatoire,- dilatoire, or peremptoire d la forme, be filed together with such exception ; and that nopreuve littiraie, in sup- port of such exceptions, be aiterwardsjatany time, received or filed •• :"] V ^ ,.y_ ., ^ y. .-, -* • y lt<. •>. ^ / y^ < t t « » » §VII. OF PLEADING. 33 XI. Th&i a\\ excepiiona declinatoireSf peremj)loires d la forme and dila- taireSf be set forth in Pleading distinctly and consecutively, in the follow- ing order, that is to say : 1st. — Exceptions Declinaloires. (1.) For cause oCincompetence in the Court. (2.) By reason oiprivilege in the Defendant. •y i. ..i U 2d»^Exceptions Peremptoires d la forme, (1.) For cause of nuiiiiy iu the declaration. (2.) For cause of nullity in the process ad respondendum, (3.) For cause of nullity in the service of the declaration, and process ad respondendum^ or either of them. 3c?. — Exceptions Dilatoires, (1.) For cause proceeding from the Plaintiff. (2.) For cause proceeding from the Defendant. (3.) For cause proceeding from the action. XII. .^" / That all answers to exceptions declinaloires, peremptoires d la forme /f 4 orre move for hearing there- A on, without an answer; it being hereby provided that ever/ Plaintiff, who shall so move for hearing, without answer upoa^ wy -JMca'^^wecepttOh ilu J iuii U \ ii»ipfrv mj}U} f i f''t\'ti}J]u mtj nr (Hhhiifi shall be held and taken thereby to confess ^^^Mhuit the allegations of fact set forth andtjontatned in siich'^neat>f exception dUhiuHvtns^i tmpirriredrttrformej or dilatoire, a ntl ^ach . an d » vwj r:cf t ji gm ^ be- true. - XV. J rye / '» . That H?vfry r"*";'"''"'''-^ the Plaintiff mYMM4A shall not see fit to /r ^, , V ii move for hearing, with ewl w ia tm upon any^CB^joDexception declirut- toirey peremptoire d la forme, or dilatoireixm^ anowc r o fTTOlin ftginttff^or Plaintiffs to m^JSxswiuMd idi naii nr e^ p e r^ m fd oire^Ll^ or dila- toir&fal^ be^edf as becein before is diieoted ; andifaiicfa' PMkiliff'W Plaifltiffii shall not see fit to file any special answer to such exception declinaf aire f peremptoire a la forme, or dilatoire, the answer of such Plain- tiff or Plaintiffs thereto shall be general, by which general answer the issue \ upon such exception declinatoire, peremptoire d la forme, or dilatoire ^ shall heicgjmpjeted and ^perfected />"' ^^ I .'- ^ r XVI. > t'- J That a replication to the general answer to any Plea of exception ' declinatoire, peremptoire d laforme, or dilatoire, stiiil not be received V or filed. XVII. That in every case, in which a sitecial answer to any Plea of exception declinatoire, peremptoire d la forme, or dilatoire shall bo filed, a replica- i tion to such special answer shall and may l)e received and filed. .^•' Ir- ^'' §VII. §VII. OF PLEADING. 95 wr-totiw arlty,and ' case, In g of such log there- ntiff, who txcepttOh ind taken jontained dtlatoirCi see fit to declina' msttttm or dtla- xceptioii [;h Plain- the issue dilatoire xception received cception replica- XVIII. That all ex^ce^Wom peremptoires en droit, and all defenses aufonds, he deemedVnd iokeh to be Pleas to the action, and be set fortli in Pleading distinctly and consecutively, in the following order, that is to say :^ Ut. — Exceptions peremptoires en droit, which are temporary. I 2d. — Exceptions peremptoires en droit, which are perpetual. >? . 3(/. — Defenses au fonds, ^__ (1.) En droit. (2.) En fait. " XIX. That all answers to exceptions peremptoires en droit, temporary or per- petual, to be pleaded, in each case respectively, be pleaded conjointly, and be filed at one and the same time, on the second day next after the day on which such exceptions /w;rgOTp^o»r«a en droits temporary or perpe- tual, shall respectively be filed. \ XX. '^'m That in every case, in which the Plaintiff or Plaintiffs shall not see fit to file a special answer to any exceptions peremptoiies en droit, temporary or perpetual, the answer of such Plaintiff or Plaintiffs thereto shall and may be general j and by such general answer, the issue upon such excep- tions peremptoires en droit, teniporary or perpetual, shall respectively be completed and perfected. \ That^-rephcation to the goiMcal answer to any exception peremptaire en droit, temporary or perpetual, to be pleaded, in each case respectively, be pleaded conjointly, and be filed, at one and the same time, on the second day next after the day on which such answers to exceptions peremptoires en droit, temporary or perpetual, shall be respectively filed. XXII. Tliat all replications to defenses au fonds to be pleaded, in each case respectively, be pleaded conjointly, and be filed, at one and the same time. '^'"/ 36 OF PLEADING. §VII. on or before the second day next aAer the day upon which such difenses aufonds shall respectively be filed. XXIII. Su i \./- 1 ' \ That no exception dedinatoirey peremptoire d la farme^ dilatoire, or f-*^ d g6 temporary ^jf^Tfrnp/otVc en droit shall be amended; nor shall any motion for any such purpose be received or filed. V^ ' ' . •'• "^ i'X.<- - / "i ^ / XXIV. /C \ ^J- .Ik'- S ^^ ThalJU) ^claration^ perpetual exception en droits difensej answer, ..jreplteation, o^ plead! ng,(of whatsoever description, ehall be amended, with- out leave of 4he Court tind payment of costs ]^' and, in all cases, in which any declaration, perpetual exception en droit, defense, answer or Pleading shall be4M);amended^ the party boundttrplMid, to answer, or to mply thereto, shall have the like time ibo to |>iead, to answer, or reply to sueh declaration, j)erpetual exception en droit, defense, answer, or other Plead- ing so amended, as therefore was originally allowed 'by-these Rules and OrdanH -Afldfluch time shall be computed from the day on which such ff.'^ 4eiJar^tiQn,^rpetij|aj gjccpfton en droit, defense, answer, o'r other Plead- ing jball be so amended, and service made on the adverse party^ That in every case in which the common or enlarged Rule to plead to the action shall expire, in Term, and the Defendant or Defendants, in such case, shall not file, in the Office of the Prothonctary, a Plea to the action, on or before the hour of six in the evening of tlie day on which such com- mon or enlarged Rule to plead shall expire, ihj PlahitifT or Plaintiffs, upon filing a certificate of the Prothonotary, that no Plea hath been filed, and upon motion thereupon made in open Court, shall have leave to proceed, and shall and may |)roceed against such Defendant or Defendants ex parte, for want of a Plea, in like manner, in every respect, as if such Defendant or Defendants had never appeared : those cases excepted, in which, at the time of making such motion, sufficient cause against the granting thereof shall be shown. ■'i < 1 XS' §VII. OF PLEADING. 87 \ \ XXVI. That in every cose in which the common or enlarged Rule to plead to the action shall expire in vacation, and the Defendant or Defendants in such case, shall not file, in the OlFice of the Prothonotary, a Plea to the action,at or before the hour of four in t' e evening of the day on which such common or enlarged Rule to plead shall expire, in which also the Plain- tiff or Plaintifls, after the cxpiiation of such common or enlarged Rule to plead shall have demanded, in writing, of such Defendant or Defendants, a Plea to the action, and a Plea or Pleas to the action, shall not be filed, in the Office of the Prothonotary, at or before the hour of four in ^ \ XXVIII. / That every Defendant, who, in any action, shall be arrested upon a capias ad respondendum, shall plead and reply, within the periods, and in the manner bsfe i ti befor e respecJiv.sly:~4iinU«d and directed/ for the filing and service of pleadings subsequent to the declaration, &^d in default < ,; Jc-'l' thereof, the PlalnlifT or Plaintiffs, in such action, shall be entitled, ^luLaL ' .*Cs J lihnrtjF to proceed, in all things, against such Defendant, as if such action [^ ,x' ' had been instituted by writ of summons. i - / ^ '« y y y y XXIX. V .*? (■■■ I < That all incidental cross demandtSy mad e on th e part ' uf t fayiPefew Iani tST Defendants, in any case, be conjointly i^jHuieT^iMKl be filed, at one-«nd the same time with the |*lea OF^JEBas of awah -Defendant or Befendantfto the action ; and that no incidental cross demande of -sfiifiBttl^ Defendant QX Dflfetrdants, in sudinnse be afterwards received ofdl^ed. XXX. That every incidental cross demande shall be deemed MiOslaken to be a distinct action, and shall not JMR^pMinitted, iaaiv^ fespect, (jb delay the proceedings of the Plaintiff/BciJBbiiilifis, tn anf 4)m% in w)ticli>any «uch incidentai cross d^^mmtk ehtXl^ iaslknisd ; it^ing nevertheless hereby provided, that nothmg in this Hale shall extend, or be construed to extend to any matter of reconwniion or compensation which slialt anAount to and be pleaded aa a defense to the demande in chief. \ \ \ \ \ I. 'r \ \ i \ OP PLEADING. .^^\. / ^ , 39 \XXXI. ^.X/x.a^ ^A. c^.c '^-j / ,./^..;:.',/^r"w^ '■" ■ / That when the Rule to plead^ to the demande in chief shall be a six day Rule, the same shall be the Rule to plead to the incidental demande j and so when the Rule to plead :^o the demande j^nncipale shall be a twenty day Rule, the same shall be the Rule to plead to the incidental demande. ^y ? /•/X . \ xxxii. \ That no demande in intervention shall in any cause be received, with- out a motion for leave to file the same, or be filed without the order of the Court for that purpose, and that no such motion shall be received or filed, unless the same be i^ccompanied with an affidavit or certificate of previous service of a copj^ of such demande upon the several parties in such cause, who shall have^ appeared. / \ >^ XXXIII. That in every case^ in which any demande in intervention shall not be filed by consent, upon the motion for leave to file the same, the Rule upon such motion shall be a Rule nisi of one day, and shall be served on all the parties in such cause who shall have appeared. •j[^U^>^. L .-> XXXIV. ,. / . ^-^ ^ That the Rules and Orders Iwp^^ prescribed, with respect to Plead- ings upon demandes in chief '•• ^ ^-^'^ . ■■ '- -~ ■' Ui >■■ t-^ I • ;» , , •• ; < IX. l/L- tU ^ ^ t('.A^r .'t d ij I 40 OF ISSUES, ENQUETES AND HEARING. § VIII. \ -' cvocatiQii» Jn .9)].Q}l.^pasc, shall be albwed, atxall file* in the Office of the Prothonotary, his declaration in au e h cas e ; aild that the Rules and Orders of this Court, with respect to Pleadings w^ondemandes in chief, in actions instituted by Process afl? Respondendum, returnable in the Supe- rior Term oCthis Court, aiKl each and every of them, shall, in all thingSj r apply to and be the Rules and Orders of this Court, with respect to all subsequent Pleadings in such case. / ^ XXXVII. That with every defense au jonds en droits shall be filed a notice containing minutely, and in detail, all the grounds of such defense aufonds en droit, it being hereby expressly ordered that no party shall be permitted to urge any ground in support of a defense aufonds en droit, which shall not be so set forth and particularised in such notice. '3 •A •'/ • ii \ o . ./ — /7 /■ J '''i. /,-'■ SECTION VIII. Of Issues, of EnquHes, and of Hearing. It is Ordered, I. That the issue upon a demande in chief, upon an incidental cross demande, and upon a demande in intervention respectively, shall be per- fected by the declaration and defense au fonds, to which the Plaintiff may reply if he see fit, without retarding the cause. II. That the issue upon an exception declinatoire, perempioire d la former and dilatoire respectively, in every case, in which a motion for hearing, without answer, shall not be made, shall be perfected by the exception and answer, to which, however, the excipient may reply if he see fit, but without retarding the cause. ... ..v,,^ - \ § VIII. OF ISSUES, ENQUETES AND HEARING. 41 \ lii. That the issue Upon an exception perempiaire en droit, temporary or perpetual, shall, in every case, be perfected by the exception and answer, to which the excepi^nt may reply if he see fit, without delaying the cause*. \ That there be kept in the Office of the Prothonutary two Rolls, to be called respectively the Roll de Droits and the Roll d'^EnquHea : that upon the Roll de Droit shall be inscribed jgiH' causes .rfflurti '■^•'" ninnd for hearing ettaiH^ upoil I. upon the merits ;-^l^ That all causes which shall be regulariy inscribed upon the Roll dts EnqiiStes, and each of th^mj shall, from thenceforth, be and remain set down for the Eriquite to which the inscription of such cause upon suck Roll shall relate, until such EnquSti shall be hfld, or such cause, in this respebt, shall otherwise be disposed of by order of the Court: VII. That all causes which shall be regularly inscribed upon the Roll de Droit, 6i (j |gW in^o^' d r' 6 ?f wi4he-]>te«(ftIigy, o h the w i s w t o, ^^th»rin«ttBr» (iip«m,«Qy: (tailUmlar -day, shall be first called ^n, and hf nrd iipnn rtlir.h dfyi ^'•"'•flnpfi* ^i^^'-^'ft^ i^^»^"»*i«>- e an h e h e ar d t in the order and suc- •c\. '^■ 'M/ o A -:"9 cJ^tTM. «?/^' *>i^' dcX^^C (^>"^ Ac -Kl_/5^ t^J _ yV. , ^ J ^2 OP ISSUES, ENQUETES AND HEARING. § VIII. /J "6^ ltd cession in which such causes shall stand inscribed uponjwcii -ggtt-; and Buch cJtwses so fct down for hearing being first heard, the causes inscrnjed for hearing generally en droit on the pleadings, on the merits, or other matter upon such Roll, shall upon such day, or as soon as cour)Ml can be '7u«c . j until the first day next after the day of such continuance, upon which, by t^ ^ . q, the course of the Court, such cause can be heard en droit upon the matter to which the inscription of such cause upon the Roll de Droit shall relate. /" \ XIV. That when and so soon as the issue or issues shall, in any cause, be perfected upon one or more exceptions declinaioires, pcremptoires a la Jorme, or dilafoires, the parlies to such issue or issuer, or either of them, shall be at liberty and entitled to set down such cause for hearing en droit upon the pleadings, by which such issue or issues shall have been raised and perfected, by inscribing such cause upon the Roll de Droit, in term or in vacation, and giving notice thereof to the adverse party or parties in such cause I and such cause shall be so Jieard upon such issue or issues, as soon thereafter as counsel, by the course of the Court, can be heard; it being hereby provided that no such cause shall be so heard upon such issue or issues, upon the day of the service of the notice hereby required? nor any cause which by order of the Court, upon motion, or otherwise) shall be struck from the Roll de Droit without hearing, or be continued . i 44 or ISSUES, £Nr issues, without a hearing en droit upon the pleadings in such caujb uied, the Plaintiff or Plaintiffs in such cause shall be at liberty and entith ' ^o to do , by inscribing such cause on the Boll des, EnqiUteSj and giving notitx; thereof, m term or in vacation, to the adverse party or parties in such cause, and upon proof of the service of such uotice, by affidavit or certificate, as well the party and parties giving such notice as the party and parties upon whom such notice shall be served, shall be held and bound to adduce and to file all such evidence, proof and testimony written and unwritten, as they, or either of them, may have, and by law may he permitted to adduce or file upon such issue or issues, upon the first EnqvMe day in term or vacation, next after the day upon which such notice shall be served ; and shall not thereafler be perihitted to adduce or to file any evidence, proof or testimony whatsoever, written or unwritten, upon such issue or issues, without the leave or order of the Court for that purpose j it being hereby provided that such adverse party or parties shall not be hereby held or bound to adduce or file on such Enqv^te day as aforesaid, any evidence, proof or testimony whatever, written, or unwritten, in any case in which there shall not be one Juridical day in Term, or fourteen days in vacation, between the day of the service of the notice hereby required and such Enguete day as aforesaid, nor in any case in which such cause, by order of the Court, upon motion or other- wise, shall be struck from the Roll des Enguites, or be continued thereon to §VIII. OF ISSUES, ENQUETES AND HEARING. 45 any subsequent day, or generally without day, or in which any order, in term or vacation^ shall be made to stay proceedings. XVI. That every cause in which a defense en droit tihall be filed and issue thereon shall be raised and perfected, shall be heard en droit, as well upon the pleadings in such cause filed, by which such issue shall have been nised and perfected, as upon the pleadings in such cause filed, by which qny issue or issues shall have been raised and perfected upon an exception peremptoire en droit, temporary or perpetual, and defense en fait (if such there be;) it being hereby provided that such cause shall be heard en droit, at one and the same time, upon all such pleadings in such cause filed, and that, at such time, the hearing on such defense en droit and the pleadings thereon shall precede the hearing en droit upon such exception and defense en fait, and the pleadings thereon. xvir. That when and so soon as the issue or issues shall, in any cause be perfected as well upon one or more exceptions peremptoires en droit, temporary or perpetual, (as the case may be), as upon the defenses au fonds, en droit and en fait, (if such there be,) the parties to such issue or issues, or either of them, shall be at liberty and entitled to set down such cause for hearing en droit upon the pleadings, by which such issue or issues shall have been raised and perfected, by inscribing such cause upon the Roll de droit, in term or in vacation, and giving notice thereof to the adverse party or parties in such cause, and such cause shall be so heard, upon such issue and issues, as soon thereafter as counsel by the course of the Court can be heard ; it being hereby provided that no cause shall be so heard uyon such issue or issues upon the day of the service of the notice hereby required, nor any cause which by order of the Court upon motion or otherwise shall be struck from the Roll de droit without hear- ing, or be continued thereon for hearing to any subsequent day, or gene- rally without day, nor any cause in which any order in term or vacation shall be made to stay proceedings, or in which no defense en droit being filed, the party or parties being Plaintiff or Plaintiffs in such cause shall, in the manner hereinafter provided, set down such cause for the adduc- 46 OF ISSU£S, £NQUET£S AND HEARING. § VIII. lion of proof generally upon such issue or issues, without a hearing en droit upon the pleadings, by vvhioh such isaue or issues shall have been so raised and perfected. XVIII. That in future in every cause in which the Defendant is in custody of the Sheriff, upon Process ad Respondendum^ and issue has been joined, it shall be lawful for such Def'^ndant, by motion, to apply to the Court for leave to inscribe such cause on the Roll de droit for hearing, or on the Roll d^Enguete for proof, as the cause may require, and if good cause to the contrary shall not be sh ewn by the PlaintiiT, such motion so made shall be made absolute. ■ 't I i « > XIX. That when and as soon as the issue or issues shall, in any cause, be perfected, as well upon one or more exceptions peremptoires en droit, temporary or perpetual (as the case may be) as upon the defense au fonds en fait (if such there be) and the Plaintiff or Plaintiffs, in such case, shall see fit to set down such cause for the adduction of proof generally, upon such issue or issues, without a hearing e7i droit upon the pleadings in such cause filed, the Plaintiff or Plaintiffs in such cause, shall be at liberty and entitled to do so by inscribing such cause on the Roll des Enquetes, and giving notice thereof, in term or in vacation, to the adverse party or parties in such cause, and upon proof of the service of such notice, by affidavit or certificate, as well the party and parties giving such notice as the party and parties upon whom such notice shall be served, shall be held and bound to adduce and to file all such evidence, proof and testimony, written and unwritten, as they, or either of them, may have (and by law may be permitted to adduce or file) upon such issue or issues, upon the first EnquHe day, in vacation, next after the day upon which such notice shall be served ; and shall not thereafter be permitted to adduce or to file any evidence, proof or testimony whatsoever, written or unwritten, upon such issue or issues, without the leave and order of the Court for that purpose ; it being hereby provided that such adverse party or parties shall not be hereby held or bound to adduce or file, on such Enquete day as afore- §VIII. OF ISSUES, ENQUETES AND HEARING. 47 on said, any evidence, proof or testimony whatever, written or unwritten, in any case, in which there shall not be fourteen Jaya in vacation, between the day of the service or the notice hereby required and such Engueie day as aforesaid, nor in any case in which such cause by order of the Court, upon motion or otherwise shall be struck from the Roll cles En- queteSf or be continued thereon to some subsequent day, or generally without day, or in which any order, in term or vacation, shall be made to stay proceedings, or in which a dejense en droit shall have been fded. XX. That when any cause shall have been heard en droit upon any excep- tions declinaf aires, peremptoires d la forme, or dilatoires, or upon any exceptions peremptoires en droit, temporary or perpetual, or defense en droit, or en fait and the adduction of proof shall be ordered by the Court upon any issue or issues, the Plaintiff or Plaintiffs in such cause, shall be at liberty and entitled to set down such cause for the adduction of proof generally upon the issue or issues, upon which the adduction of proof shall be so ordered, by inscribing such cause on the Roll des Enquetes, and giving notice thereof, in term or in vacation, to the adverse party or parties, and upon proof of the service of such notice, by affidavit or certificate, as well the party and parties giving such notice as the party and parties upon whom such notice shall be served, shall be held and bound to adduce and to file all such evidence, proof and testi- mony, writen and unwritten, as they or either of them may have, and by law may be permitted to adduce or file upon such issue or issues, upon the first Enquite ddy, in vacation, next after the day upon which such notice shall be served ; and shall not thereafter be permitted to ad- duce or file any evidence, proof or testimony whatever written, or unwrit- ten, upon such issue or issues ; it being hereby provided that such adverse party or parties shall not be hereby held or bound to adduce or file any evidence, proof or testimony, written or unwritten, in any case in which there shall not be fourteen days in vacation, between the day of the service of the notice hereby required, and such Enquite day as afore- said, nor in any cause, in which such cause, by order of the Court, upon motion or otherwise, shall be struck from the Roll des Enquetes, or be 48 OF ISSUES, ilNQUETES AND HEARING. § Vllt. I i » ^ continued theraon to any subsequent day, or generally without duy, or in which any order in term or vacation, shall be made to stay proceedings. XXI. That when and so soon as the ^Inquite, upon any issue or issues joined upon any exceptions c?ec/mari]gi-j3JL-that~-'hon«gfurth 1 ha...a5^Beanay be ^lade and filec) at the Oniicc of the Prolhonotary ind. ha by A>nii4ieflflly43d, and Rules entered thereon, in the,jnanner as if tU«A«ame, ajftiLevary-^ihtin, had been made and IHeil in ^(a^oppn Court, fln^4C£led in vacation to be auied, iHled and entered»Ji9i)f the last day of the last preceding Term. f^P 1. For particulars nisi' ^.i.i/pi(^ "^' For faits et articles' \>t//j » ^'ForiUetrm6td4ecisoirC' §IX. !eeiHe4- ^■.;j4*-~«*- >'-■■, out the i-K J I lat pur- fi is not guetes, ^^ t, shall at the ;ntered ) made ed and §JX. OF MOTIONS. 5d 4. For benefit of default on certificate, and leave to proceed ex parte, 5. "Eigftl iti i ft te it ea^oBfessioftof J y/. C.JEflf JwlgnneiitparBaanrttrsiyeireonfeaflien. /f 7. To dismiss for want of proceedings, nisi. /^ 8. To pay money into Court, nisi, ^ 9, For a Jury Trial, nisi,v 10. To give security for costs, nisi, • 11. For the Sheriff to bring in the body. W^ 12. For a reference il^ilkitators or Experts, nisi, L laStfa AM" i » >tiw M i by o eny nt. 14<. To set aside or confirm a report.!/ i ; \. 15. Homologate report of distribution, y^ ,^v <:'>^-bjf-> {QAlion in Term flr by P«^****^ in vacation,jsrUtua ibuc-^ftys after the appearance of the party orparfiP'iilmiiWng sucymotion opPetitilNi, and not afterwards. '' : X. XII. That a motion for Judgment upon a verdict shall not be made, received or filed, until after the expiration of four days, in Term, from the day on which such verdict shall be recorded. % f r I ;3 /^ XIII. That every motion fora new trial after verdict, be made on or before the expiration of the i««rrth day, -m~ TtMMft, next after the day on which such verdict shall be recorded ; that no such motion be afterwards received or filed ; and that no motion for a new trial be received or filed, after a motion in arrest of judgment shall have been made. •> A / 1,\ '- XIV. ^ <'^^ That every motion, in arrest of judgment after verdict, be made on or before the expiration of theJbucth day, in.JIfiLaQLJli£uSl. after the day on which such verdict shall be recorded ; and that no ;£uch motion be after- wards received or filed. L'l U. • t. *-x J V ^ •^'""^•! 58 OF FAITS ET ART. AND COM* ROGATOIRES. § X. '^./ 1 / 1 ^■i •• ♦ (• I i ■ ; • i \ XV. ^>^ That in every case in which a matter shall come on before the Court upon a Rule to shew cause, such Rule and the affidavits, or other proof on which the same is grounded, shall be first read by the Prothonotary, the Counsel who shew cause shall then be heard, and lastly the Counsel of the party or parties, by whom the Rule shall have been obtained, shall also be heard. XVI. That all costs to which in any case, any party is entitled, upon a / motion in any way be asked for at the time, at which such motion ia; made and heard, and shall not be the object of any future motion. e^ ^- lib: . .. J',, (Is ■i" N H.. SECTION X. Of Fails et ArtichSi and of Commission Rogatoires, It is Ordered, \ 1. That the interrogatories to be put to the interrogate, upon an examina- tion on Faits et Articles, shall be exhibited and filed, with the certificate ofthe service ofthe Rule or Order of the Court for the appearance of such interrogate for sush examination as aforesaid, and not before j that a copy of such interrogatories shall be served, with such Rula or Order, upon the interrogate j and that service of such Rule or Order, and of such copy of such intefrtigatories, at any time before the hour of six in the afternoon of the Juridical day next preccdift,:; the day by such Rule or Order appointed for the appearance of such intcivogate for such examina- § X. OF PAITS ET ARt. AND COM. ROOATOIRES. 69 tion as aforesaid, shall be deemed and taken to be good and suffioient service of such Rule and Order, and of such interrogatories respectively. i I ir. That the default of every interrogate, who, in any cause being duly served vrith the Rule or Order to appear for examination, upon Fails etJlrticles^ and with a copy of the interrogatories to be exhibited and filed, shall not appear at the time and place appointed by such Rule or Order for his appearance shall be recorded, and if a legal excuse shall not then be offered for the absence of such interrogate, and the Rule or Order to appear as aforesaid shall not be enlarged, the interrogatories, in such cause, exhi- bited and filed, and the several matters and things therein contained, at the hearing of such cause, shall be taken ^ro con/esso, it being hereby pro- vided that this Rule shall not extend to any case, in which the interrogate after such default, without legal excuse as aforesaid, shall appear and answer to such interrogatories, at his own proper costs, as by law is per- mitted. C' III. That in every case in which a Commission Rogatoire, for the examina- tion of any party or parties in any cause, upon Faits et Articles^ or upon the Serment Decisoire, shall not be returned on or before the day thereby appointed and limited for the return thereof, (if such there be,) or within a reasonable time after the issuing thereof (if such Commission be returna- ble without delay,) it shall be competent to the parties, in such cause, and to each of them, to proceed therein, as if no such CommmzoTihad issued, unless good cause to the contrary be shown^ upon motion for that pur- pose. \ \ IV. That no Commission Re ^oir e^ for the examination of witnesses, or (_ Commission in the natureof a Commission Rogatoire^ for the examinatiort^ of witnessed shall issue, before issue perfected ; and every such Commis- sion applied for ilCSerm, shall be applied for.by motion^ within four days after issue joined j anditapplted for in^Tacation, every ^ucjh Cammssion t«nTO ries shaH'be settled by consent f) and «ny interw^atories or cirtJSS IflteiTO*' .: gakuksuiKhich shall be allowed and nr dn rn d t^ b o a nn saced to any such C^amission ^y , th a C o urt m T e r m ^ o i^ by a ny o n e Juwi ee-ef this Couit va e ati e ny oholl not Qftcrwo f da bo liable tfy o bjec t i o n tn'airpsfaapet"- ^^>-i,s^4-7«S^-?^-^rrdk^^ /.I" '' '■ i^ tl :£...■ ^.jf- * ±i That in every case id which the interrogatories or cross interrogatories to be annexed to a.Commifision Rogatoire for the examination of witnesses, or to any Commission in the nature of a Commission Rogatoire for the examination of witnesses, shall be settled by consent, the same shall be mutually signed by the Counsel of both parties ; and any interrogatories or cross interrogatories which\shall be signed by the Counsel of both par- ties, shall be deemed and take\i to be settled by consent, and shall be annexed to such Commission vidthout the order of the Court, or of any of the Justices of this Court for thi^t purpose ; and such interrogatories and cross interrogatories, so settled b^^. consent, shall not afterwards be liable to objection in any shape. VII. That in every case in which a Rule nisi shall be made, on motion in Term, or a summons to shew cause shall be sued out in vacation, for the purpose of obtaining of the Court, or of two of the Justices thereof, the allowance of any interrogatories or cross interrogatories io be annexed to any Commission Rogatoire for the examination of witnesses, or to any Commission in the nature of a Commission Rogatoire for the examination of witnesses, and the party or parties, recfuired by such Rule or Summons ■J §X. OF TAITS ET ART. AND COM. ROOATOIRES. 61 to shew caus^ Bliall not attend at the time and place by such Rule or Summons appointed for that purpose, an order u,)on due proof of service of a copy thereof, and of the Rule nm, upon such party or parties so required to she\^ cause, or of the Summons in such case issued, shall be made for annexing to such Commission such interrogatories and cross interrogatories, as upon examination shall be allowed. VIII. That in every cause, in which a Commission Rogaioire fw Uio oxa mf— 4»atiQn of w44«eftieg, or Commission in the nature of a Commission Roga- toire tot the es^^^iuinsUiQA of .jty]|nefl8es, shall not be returned on o«MbcQ "the day thereby appointed iiulViwHiiil fn the return thereof (if iiiiMt Ihtrir .J)tt^ or within a reasonable time after the issuing thereof (if such Commis- sion be returnable without delay,) it shall be competent to the parties, in such cause, and to each of them, to proceed therein, as if no such Commis- sion had issued, unless good cause to the contrary be shown, "p^n IX. That each and every Commission Rogatoire issued in any cause, and the return thereto be opened at the commencement of the Enguete, which shall be had in such cause, whether a motion for that purpose shall or shall not have been made, and if no Enguete shall be had then at the hearing of such cause to which such Commission shall relate, whether a motion for that purpose shall or shall not have been made. ^J ,^ ^V. /<' V . ^0 ,-i^ -t-' ^?^ V' "A *( V >-K Y ♦i A 'H. ' H. ■<^ **•' a ''"••■, i "V* ■•w S-, M.'-. « 'V. i - \-> "N *■>':■ \ i; 'C, f*^ _, '•V/ V 1 V < t- s • N r' i»-» 1 ; -> 1 *■ 62 OF REFERENCES TO JURIES, ARBITRES, ETC. § XI. • » / '• ■/ ^ SECTION XI. 0/" References to Juries^ iryi/MntfSS^'io Experts, and others. / It is Ordered, I. That the option and choice of any party or parties to have and obtain the trial and verdict of a Jury, in any cause in which the same by law may be had, shall be made and declared by mption for a Jury and writ of Venire Facias* V II. I.. I That a motion for a Jury and Venire Facias be made, within two days in Term, after issue perfected, whether such issue be perfected in Term, or in vacation ; and no such motion, in any cause, shall be received or filed thereafter, or at any time after the inscription in vacation, of such cause upon the Roll des Enquetes upon' such issue, unless proceedings in such cause shall be staid, as hereinafter is directed. III. e J That when, and so often as any issue shall in any cause be perfected in vacation, upon which the tri?' and verdict of a Jury by law may appa- rently be had, a notice of motion for a Jury and Venire Facias, upon the first day of the then next ensuing Term, by any party or parties, in such cause to their Opponent or Opponents, made and served at any time before such issue shall be inscribed on the Roll des BnquHes, and at any time within two days thereafter, with the order of any one or more of the Jus- tices of this Court to such effect upon Summons for that purpose, shall Btay all proceedings until the first day of the then next ensuing Term. ,■ TV, 't >•; ' ^ c ^K. 'Li-f /4>^/ ■/ r^A /}c>n <" /f.t'u. c/ ' ^._v vgiiyi.ahiliiii^3. And to the Sheriff for summoning the Jury and returning the Venire Till hi , wtij nil I li > y -t ,^^' \And that without sudh deposit, a motion fot^a Jury atul Venire FaciaSy or for eithery shall not in\(iy case be 'teceived\)r filed jXit being hereby provided that every such pwty who sha]\have an^ obtain aWerdict in his favor, ismd be ei^itled to costs thereon, shall be allowed the same upon thd taxation^of such posts. .."^ '. •■ ^ That each Jury shall be struck before the Prothonotary, .upon a refer" ence for that purpose by the Court j and that upon such reference in any cause, the Prothonotary, in the presence of the Altornies of the parties in such cause, shall, at a time to be appointed by the Court, take from the ^ iirst xuLSdeond list, otbodc of^rors"Df lfScdrdTn~Tl1ii3*"CoTOt;^^w-i^all he iMfderqd, the names of forty-eight Jurors, commencing at that part of such list, or book of Jurors, from whence the then last preceding Jury shall have been struck or taken ; that of the names of such forty-eight Jurors, twelve, on each side, shall then and there be alternately struck out by the Attornies of the parties, in such cause, then and there present, the Attorney for the Plaintiff beginning ; and that the list of the remaining twenty-four Jurors shall be the pannel of Jurors, to be summoned in such cause, and ^ i-.-i> , J ,.- r? ,> ' <■< ' ' t ' t t i /■ vX-- '..'•'-■' ''' ■^ .J:^. r" ( f ' ( 1 1 I 64 OP REFERENCES TO JURIES, ARBITRES, ETC. § XI. as such be annexed to the Venire Fncias^ which in such cause siiall be issued. VI. \/ That upon any reference by the Court made to the Prothonotary, in any cause, for striking a Jury, if the Attorney of one side shall make default to appear before the said Prothonotary, at the lime appointed, or appear- ing shall refuse to strike out from the list of f o rty >ieight Jurors, in such p.niiaPij.tn^gp fr^ym thft Hat, nr hnnk nf Jiirorfly the names of tVVelvC, Or of any lesser number of such Jurors, the Prothonotary in the absence of such Attorney, who shall so make default, or refuse to strike out such names as aforesaid, shall strike out of the said list of forty-eight Jurors twelve, on the behalf of the party of such Attorney, in the manner directed /.y 7,^ \n the last prec edijigJLule, or such lesser number as such Attorney appaair Jm% shall refuse to s'trike out ;9ahd tv^elve shall in like manner, be struck out from the said list by the Attorney of the other party ; and the list of the remaining twenty-four Jurors shall be the pannel of Jurors to be sum- moned in such cause, and as such be ^nnexed to the Venire Facias which in such cause shall be issued. \ \ VII. That in every cause, so soon as the Jury shall be sworn, the parties in such cause shall be sojtfunily called, and if neither party shall appear, such Jury shall forthwith be discharged, but if the Plaintiflf shall appear and the Defendant, being so called shall not appear, the default of such Defendant shall be recorded, and thereupon the evidence cf the Plaintiff shall be heard ex parte, the verdict of the Jury taken thereon, and judg- ment entered, as to law and justice shall appertain ; and if the Defendant being so called shall appear and the Plaintiff, being so called, shall no appear, the default of such Plaintiff shall be recorded, and jud jf Non Suit thereupon entered instanter, dismissing such Plaintiff, / d se pourvotr, with costs to the Defendant. VIII. That in every cause in which a Jury shall be sworn, and the Plaintiff in such cause shall choose, at any time before the verdict of such Jury shall §XI. tall be §XII. OP JUDGMENT AND EXECUTION. 65 ry, in ilefault ppear- 1 such , or of ice of t such Jurors irected /y /,, p pa at r struck list of } sum- which be given, to become Non Suit, and for tliat purpose shall withdraw from the Court, such Plaintiff shall be tiotamwty called, and not appearing, the default of such Plaintiflf shall bo recorded, and Judgment of Non Suit thereupon entered instanter^ dismissing such Plaintiflf, saufd sepourvoir, with costs to the Defendant. IX. That no conclusions in writing upon any report oCarbitres, experts, or other referees, shall be received or filed, nor shall any issue in writing be raised thereon, and the validity of every such report shall be decided upon a motion nisi to confirm and homologate the report, or to set aside the report as the case may be. That a set aside a rep the report to whicli ^rm and homoIogMQ^ or to the day upon which ties in ppear, appear •f such laintifT I judg- 3ndant II no of fdse itiff in y shall It is Ordered, SECTION XII. Of Judgment and Execution. I. That no Writ of Execution of any description shall issue until a Prcecipe for such writ be filed in the Office of the Prothonotary, under the signature of the Attorney ad litems by whom such writ shall be sued out ; and that ever\ such writ be indorsed or signed by the Attorney by whom such writ shall be so sued out. OP JUDGMENT AND EXECUTION. ^XII. !■■!' m II. That a register of all Writs of Execution issued from this Court specifi- ing the description of each writ, the parlies to the cause in which it issues, the number of such cause, the name of the Attorney or person by whom such writ shall be sued out, the amount to be ievied by virtue thereof, the cause of action, the date of the judgment on which such writ shall be founded, the day on which such writ shall issue, and the return day thereof, be made and kept by the Prothonotary in his Office, to which all jHjrsons shall, at all times, during office hours, have free access gratis, in. That in fl!^.••e to all oppositions dfin (PannulleTf dfin de charge, or dfn distraire, there shall be annexed an affidavit, sworn before one of the Judges of this Cuurt, or before a Commissioner duly authorised to take and receive affidavits, to be read and used in this Court, which affidavit shall be in the form following, viz . Province of Canada, District of Montreal :i In the King's Bench. William Wilson, John Thomas, Plaintiff, Defendant. h) ( A. B^j of being duly sworn, doth depose and say, that the facts articulated an.l set forth in the annexed ouposition dfin d and each and every of them, is and are true, and that the said opposition is not mai^e with any intent unjustly to retard or delay the sale of the whole or any part of the moveable or immoveable property, seized by virtue of the Writ or Writs of Execution in this cause issued. §XII. OP JUDGMENT AND EXECUTION. 67 but that the same is made in good faith, for the sole purpose of obtaining justice. Sworn before me at this day of 184 I And every opposition as aforesaid, to which an affidavit in form afore- said shall not be annexed, shall not impede or delay the due execution ofanv Writ o( Fieri Facias or Venditioni Exponas issued in any cause, and notwithstanding the service or filing of any such opposition without such affidavit as aforesaid in any cause, the Sheriff to whom any Writ of Fieri Facias or Venditioni Exponas shall in such cause be addressed, shall proceed to the due execution of such Writ of Fieri Facias^ or Ven- ditioni Exponas, in like manner as if no opposition had been served or filed. It being nevertheless provided that all such oppositions which shall be so served or filed without such affidavit as aforesaid, shall be returned into this Court with such Writ of Fieri Facias, or Writ of Venditioni Exponas, as the case may be, on the return day thereof. IV. That in all cases of opposition d Jin de distraire, and d Jin de charge, as well as of opposition d Jin de conserver founded upon Title, it shall not hereafter be necessary to annex to such oppositions any affidavit in support of the same. V. That every opposition d Jin de conserver upon the proceeds of any moveable or immoveable property, shall in future be served or filed, before or within forty-eight hours next, after the return day of the Writ of Execution, under and by virtue of which such property, moveable or immoveable, shall be sold, and that no opposition after the expiration of forty-eight hourp next, after such return day, shall be received or filed, unless upon sufficient cause shewn, and upon such terms as the Court shall adjudge. /7^ V' ^ / / -t< ^ ^ f .J / ^ O f_ . - / <* f <• ;v .. r 68 OF JUDGMENT AND EXECUTION. § XII. VI. That from henceforth, in every cause wherein an opposition has been filed, and the Fiaintiflf shall declare that he does not intend to contest the irame, the opposant shall be entitled to Judgment of main levee without proof, provided that the Defendant, upon the Service of a Rule nisi to that eflect, shall not shew cause to the contrary or declare that he intends to contest such opposition. VIL That the Rules and Orders prescribed by this Court with respect to pleadings, enquetes and bearings upon demands in chief, and each and every of them shall in all things apply to, and be the Rules and Orders of this Court, with respect to all pleadings, enquHes and bearings upon oppositions of every description. I ' ' ( VIII. That a register of all Writs of Execution, and of all Oppositions filed in the Office of the Sheriff of the District of Montreal, be made and kept by the said Sheriff in his Office, to which all persons shall, at all times, during office hours have free access gratis; that such register shall specify the description of each Writ of Execution which shall hereafler be issued and come to his hands, the parties to the cause, in which such writ shall issue, the number of such cause, the name of the Attorney or person by whom such writ shall be sued out, the amount to be levied, under and by virtue thereof, the cause of action, the date of the judgment on which such Writ shall be founded, the day on which such writ shall have issued, the return day thereof, the day on which such writ shall be returned into ihe Office of the Prothonotary, the amount levied under and by virtue of such writ, the means by which such amount shall be levied, the day and days of sale, the names of the purchasers in sale of immove- able property, the expence of levying such amount, the disbursements paid thereon, and the poundage which shall be retained by the Sheriff upon such writ, the description and date of each opposition which shall be §XII. OP JUDGMENT AND EXECUTION. 69 filed in consequence of such Writ of Execution, the name of the Attorney or person by whom such opposition shall be made, the day on which such opposition shall be filed, the amount thereby demanded, the cause and ground of such demand, the number of such opposition according to the time and order in which the same shall be filed, with respoct to others, and whether such opposition hath or hath not been withdrawn j and further that upon the return of every Writ of Execution, an extract from such register of every entry therein made, in obedience to this Rule and Order, respecting such Writ of Execution, and respecting any and each, and every opposition, which shall be filed in consequence of such Writ of Execution, be made by the said Sheriff, certified under hia signature, and filed with such Writ of Execution. IX. That any opposition made without the ministry of an Attorney of this Court, which shall not contain an election of a domicile, on the part of the opposant, at some house within the limits of the City of Mon- treal, under the signature or signatures of the person or persons by whom such opposition shall be made, shall not be reseived or filed and all Pleadings, Notices, Rules, Judgments and other proceedings, which pending such opposition shall thereto relate, and be served at the domicile thereby elected, shall be held and taken to be well and sufficiently served upon the person or persons by whom such domicile shall be so elected. X. That in every opposition shall he set ^orlh, and detailed the cause and causes of such opposition as to person, time, place and circumstance, in as full and ample a manner as the cause or causes of action, with respect to person, tiu^e, place and circumstance respectively, are by law required to be set foiib ..nd detailed in the declaration ; and that no other moyens iVopposition shalli in any case, be received or filed. XI. That with every opposition Ajin de Conserver, shall be filed all preuves litUrales to be adduced in support thereof, and that to every opposition 70 or JUDGMENT AND EXECUTION. §XII. I ( shall be annexed a list of ail the Exhibits hereby required and therewith filed, under the signature of the Attorney ad litem, or other person or persons by whom such opposition shall be made. XII. That each and every Writ of Fieri Facias, and each and every Writ of Venditioni Exponas, under and by virtue of which any sale or sales of any goods, chatties, or estate, moveable or immoveable, shall be made, shall be filed by the Sheriff, to whom such Writ of Fieri Farias, or Writ of Veit- ditioni Exponas shall be addressed in the Office of the Prothonotary upon the sixth day next before the return day of such Writ of Fieri Facias, or Writ of Venditioni Exponas respectively, with all such oppo- sitions as shall relate thereto, and such return thereon indorsed, as circum- stances may require. XIII. That it shall be the duty of the Prothonotary in every case, to prepare and file upon the return day of every Writ of Fieri Facias or Venditioni Exponas, under which any sale or sales of any goods, chatties or estate, moveable or immoveble shall be made, and with which any opposition d conserver shall be filed, as hereinbefore is directed, a report of the order of distribution and collocation, or order of collocation or order of distribu- tion (as the cause may require) of the proceeds of such sale or sales to and among the Plaintiff or Plaintiffs, Opposant and Opposants, Defendant and Defendants in such cause, according to the several and respective rights apparent of such Plaintiff or Plaintiffs, Opposant or Opposants, Defendant or Defendants, and of all others interested in such order of dis- tribution and collocation, or order of collocation, or order of distribution j it being hereby provided, that nothing in this Rule contained shall extend to any Writ of Fieri Facias or Venditioni Exponas which shall be returnable upon or after the second day of Term, and that in every such cause the report of the order of distribution and collocation, or order of collocation, or order of distribution (as the cause may require,) hereby directed shall de filed on the tenth day of the vacation next, ensuing the Term in which such writ shall be returnable. §XII. OF JUDGMENT AND EXECUTION. 71 XIV. That communication of every report of distribution arid collocation, report of collocation, or report of distribution, which shall be made by the Prothonotary and filed, in any cause, shall be had of course and taken by all parties interested therein, without motion or other application to the Court for that purpose, and each and every party in such cause, who shall see fit to contest the order of distribution and collocation, order of collo- catior., or order of distribution, therein set forth and reported, shall make his contestation thereof in writing,and shall file tbe same in the Office of the Prothonotary, at or before the hour of six in the evening of the fourth day in Term or fourth day in vacation next, after the day on which such report of distribution and collocation, report of collocation, or report of distribu- tion shall be filed ; it being hereby expressly provided that no such contes- tation shall afterwards be received or filed. XV. That in every case in which a report of distribution and collocation, report of distribution, or report of collocation shall be made and filed by the Prothonotary, and no contestation of such report or of the order of distribution and collocation, or order of distribution, or order of collocation, as the case may be, therein set forth and reported, shall be made and filed at the time and in the manner hereinbefore directed, such report and order of distribution and collocation, or order of distribution, or order of colloca- tion, as the case may be, upon motion of the PlaintiflTor Plaintiffs in such cause, or other competent party shall be confirmed and homologated, and judgment according to such report and to the order of distribution and collo- cation, or order of distribution, or order of collocation therein set forth and reported, shall be entered up and recorded ; unless good and sufficient cause to the contrary shall be shown upon the second Juridical day in Term next, after the day on which such motion shall be made and filed ; it being hereby provided that service of the Rule nm, which shall be made on such motion shall not be required to be made upon the parties in such cause, or any, or either of them, but that at the diligence of the party obtaining such Rule nisi, a copy thereof shall, on the day on which such 72 OF JUDGMENT AND SXECUTION. §XII. ' I Rule shall be obtained, be publicly affixed in some conspicuous place in the Office of the Prothonotary of this Court, and that all parties whom it shall in any wise concern shall be held and bound to take notice thereof at their peril » XVI. That when and so soon as any contestation of any report of distribution and collocation, or report of distribution, or report of collocation, shall in any case be filed, the parties in s;ich cause, and each and every of them, shall be at liberty and entitled to set down such contestation, and the mat- ter thereby contested, for final hearing, by inscribing such contestation upon the Roll for final liearing in Term, or in vacation, and giving notice thereof in Term, or in vacation, to the party or parties whose right of collocation, or distribution according to such report shall thereby be con- tested, to the Plaintiff or Plaintiffs, or other party or parties (if such there be) prosecuting such report to judgment, and to the Defendant or Defen- dants in such cause, (causes of default excepted) and upon proof of the ser- vice of such notice, by affidavit or certificate, such contestation and the matter thereby contested, shall be finally he^Ard, as soon thereafter as counsel can be heard ; it being hereby provided that no such contestation or matter thereby contested shall be so heard upon the day of the service of the notice hereby required. XVII. That when, and so soon as a contestation of any claim or opposition shall in any cause be filed, the Rules and Orders hereby prescribed, with respect to pleadings upon demandes in chief, and each and every of them shall in all things, apply to and be the Rules and Orders of this Court, with respect to all pleadings upon the claim or opposition to which such con- testation shall relate ; and the parties in such cause shall in all other things proceed in the manner and form hereby prescribed for proceedings upon demandes in chief, it being hereby provided that the Rules to plead in every such case, shall respectively be reckoned from the day on which the report of distribution and collocation, report of distribution, or report of collocation shall be filed. §XII. OP JUDGMENT AND EXECUTION. 73 XVIII. That in every case, in which a report of distribution and collocation, or ref>^rt of distribution, Ci report of collocation, shall be made and filed by the Prothonotary and a contestation of such report, or of any claim or opposition, on which surh report shall be founded, shall be made and filed, such report of distribution and collocation, or report of distribution, or report of collocation as the case may be, upon motion of the Plaintiff or Plaintiffs, in such cause, or of any party or parties in such cause shall be confirmed and homologated, as to all uncontested claims and oppositions which shall precede in rank the claim or opposition which by such con- testation shall be contested, and as to all other uncontested claims or oppositions (if any there shall be) which cannot be affected by such con- testation, or by the issue raised in consequence thereof, and judgment according to such report and to the order of distribution and collocation, or order of distribution, or order of collocation therein set forth and reported in so far as the same shall be so confirmed and homologated, shall be entered up and recorded, unless good and sufficient cause to the contrary shall be shown, upon the second Juridical day in Term next after the day on which such motion shall be made and filed : it being hereby provided that service of the Rule nisi, which shall be made on such motion, shall not be required to be made upon the parties, in such cause, or any or either of them, but that at the diligence of the party obtrining such Rule nisi a copy thereof shall, on the day on which such Rule shall be obtained, be publicly affixed in some conspicuous place in the Office of the Prothono- tary of this Court, and that all parties, whom it shall in any wise concern, shall be held and bound to take notice thereof at their peril. >rA,/<^,/ jt^^.-.>, 74 I: . il hi < 11 It is OftDBRSDi ADDITIONAL RULES. I. That the Prothonotary of this Court do, on or before the first day of Feb- ruary next, produce and exhibit to the Justices of this Court for their per- usal and' inspectibn, the register of all the Rules, Orders, Judgments and* proceedings had, rendered and made in this Court in and during the now last preceding four Terms of this Court, and in and during the intermediate vacations including the last» and his Certificate written immediately afiev the last entry in the now last vac^tion^ that the said register contains all and singular the Rules, Orders, Judgments and proceedings had, rendered and made in this Court in and during the said four Terms and during the intermediate vacations including the last. n. That on the first Juridical day of each and every Term of this Courts the. Prothonotary do produce and exhibit to the Justices of this Court for (heir perusal and 'inspection, the register of all the Rules, Orders, Judgments and proceedings had, rendiered and made in the said Courtj during the last preceding Term and last preceding vacation, and his C/ertifijBote written' immedlatelyaftOTthe last entiy,0D the said re^ster, thai the same contains all and siogulas the: Rules» Ofidera^ Judgments and, proceedings had, neodeced apd made m this Caurt,r in and during aMchlaAt, Term and vacation. It is Orders also* That all Rules and Orders of Practice heretofore made and adopted by this Court, be and the same and each of them, are hereby rescinded and annulled. ofFeb- eir per- nts and* he noiV' mediate ly afieo ains all endered ring the Courifc >r this Rules, le said" m, and' agister, itsand^ >ch,Ia)it. ted by d and 'ir«\