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Les diagramnies suivants lllustrent le mAthode. 1 2 3 1 2 3 1 4 5 6 / / ^6^ THE ^mnCi ■«M THE NEW RULES OF PRACTICE, AND THE PROPOSED NEW RULES OF PLEADING, or THi %mti$ ftvtl sn^i ^tmm fto, UPPER CANADA, WITH 0ch(lrtile of ibrma anb (iTable of ((Eodt0; JOMMON LAW PROCEDURE ACT, 1856. a WITH NOTES. KDITED T5V W. G. DRAPER, M. A., UARHISTEn AT LAW. TORONTO: MACLEAR & CO., KING STREET EAST. 1856. /^ / 1 OURl 1. (a)It admitted a leave or cai and Pleas, to snoh Goi And also an thereof, to^ tions hereu also by the have servet tUESTIOiq Whal ur artioli 2, Have the offi< (a) Ap«r !;Oiirtof Chfl senadmitti itted an a1 leap. 7ft— no Ire Luoa«, 2 o \, RULES or TUi OURTS OF aUEEN'S BENCH AXD COMMON PLEAS. ATTORNEY. 1. (a) It 18 ordered that every person applying to be ladmitted a member of either of the said Courts, shall leave or cause to be left with the Clerk of the Crown and Pleas, at least seven days before he shall ap^ly I to such Court for admission, his articles of derksnip, land also any assignment that may have been maae [thereof, together with answers to the several ques- jtions hereunto annexed, signed by the applicant, and {also by the attorney or attorneys with wnom he shall I have served his clerkship. QUESTIONS TO BE ANSWERED BY THE OLERK. \m X. What was your age on the day of the date of four articles ? 2, Have you served the whole term of your ar doles the office where the attorney or attorneys, to (a) A jMrson who has been admitted a solioitor of the Zovxi of Chuioery upon servioe with a solicitor (who had not Ben admitted an attorney of a Court of law), may be ad> -^tted an attorney in England nnder leo. 16 of 6 & 7 Vio. leap. 78— notwithstanding Beg. Gen. Hil. 1868, No. 6.— In Ire LuoM, 2 Jvr. N. B. 66. \. BULE8. ^ whom you were articled or aBsigned, carried on liiB ur their buainess ? If not, state the roaaon. 8. Have you at any time, during the tenn of your articles, been absent, without the permission of the attorney or attorneys to whom you were articled or assigned ? and if so, state the length and occasions of such absence. 4. Have you, during the period of ^our articles, been engaged or concerned in any profession, business, or employment, other than your professional employ- ment as olerk to the attorney or attorneys to whom you were articled or assigned ? 6. Have you, since the expiration of your articles, been engaged or concerned, and for how long time, in any and what profession, trade, business, or em* ployment other than the profession of an attorney or solicitor ? QUESTIONS TO BE ANSWERED BY THE ATTORNEY. 1. Has A. B.^ served the whole time of his articles at the office where you carry on your business? and if not, state the reason. 2. Has the said A. B. at anv time daring the ttirm of his articles, been absent without your permission ? and if so, state the length and various occasions of such absence. 8. Has the said A. B., daring the period of his articles, been engaged or concerned in any profession, business, or employment, other than his professional employment as your articled clerk? 4. Has the said A. B., durine the whole time of his clerkship, with the exceptions above mentioned, been faithfully and diligently employed in voor pro&ssional busiiiesi of an attorney ana solioitorf 6. Has the said A. ^., since the expiration of his articles, been engaged or concerned, and for how ^y "S HUL18. -< long time, in any and what profeiaion, buiinesa or em- ploTment, other than the profoMion of an attorney or solicitor ? And I do hereby certify that the laid A. B. hath duly and faithfully lerved under bis articlofl of clerk- ship (or assignment, as the casa may bo), bearing dato, S.O., for the term therein expressed^ and that an admitted he is a fit and proper person to~ be attorney. Rule ol, H. T., 18 Vic. 2. It is ordered, that whenever hereafter any attorney of this Court shall be struck off the roll of attorneys, or be prohibited from practising as an at- torney therein, by order of this Court, for malpractice or misconduct as an attorney, or other sufficient cause, the clerk of this Court shall forthwith certify such dismissal or prohibition, and the grounds thereof, ^%—i^. expressed in general terms, under ih') seal of this Court, and shall transmit such ourtifioate to each of the other Superior Courts of Upjper Canada : and that this Court, on receipt of any simihur certificate from the Court of Chancery or the Court of Common Pleas, of any attorney or solicitor of either of the said Courts respectively, having been struck off the roll of such Court, or prohibited from practising therein, shall thereupon take proceedings n>r striking such person, being an attorney of this Court, from the roll of at- torneys, or for prohibiting his practising therein, ac- cording to the course and praotioe ^and in like manner I and under like circumstances) onwrved in similar j ^ cases in the superior courts in England — T. T. 16 Vic. 9* Mem. A similar rule exists in the Common Pleas. TRINITY TERM, 20th VIO. Wbeeeas the practice of the Courts of Queen's Bench and Common Pleas in and for Upper Canada has been, to a great extent, supersedeaor altered by the Common Law Procedure Act, 1856, and it is expedient that the written rules 4 KULE8. of practice of the said Courts should be consoli- dated : It is therefore ordered that all existing rules of practice in either of the said Courts in regard to civil actions — save and except as regards any step or proceeding; taken before these rules come into force — shall be, from and after the first day of Trinity term, 1856, annulled, and that the practice, to be thenceforth observed in the said courts with respect to the matters here- aHer mentioned, shall be as follows, that is to say : — APPEARANCE. 1. The clerks and deputy-clerks of the Crown shall enter, in books to be kept by them for that purpose, every appearance of which a memorandum according to the statute shall be delivered to them respectively, and shall file such memorandum on the day they re- ceive the same, (a) 2. If two or more defendants in the same action Fkl!'i.. * r: -v^-* ^'"^ h «i,: -U'-* RULKS. pursuance of his undertaking; shall be liable to an attachment. 4. (c) No attorney shall be changed without the fiiJsab. order of a judge. "^h. A special admission of prochein amy or guardian f 1,^620. to prosecute or defend for an Infant shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified. JOINDER OF PARTIES. 6. Whenever a plaintiff shall amend the writ after fj^j^^ notice by the defendant, or a plea in abatement of a non-joinder by virtue of the Common Law Procedure Act, 1856, section 69, he shall file a consent in writ- ing of the party or parties whose name or names are to be added, together with an affidavit of the handwriting, and give notice thereof to the defend- ant, unless the filing of such consent be dispensed with by order of the court or of a judge. PLEADINGS. 7. No side bar rule for time to declare shall be ^i^ 52b. granted. V '11 Q 8. (a^ The defendant shall not be at liberty to rin. 520. waive nis plea, or enter a relictd verificatione after a (c) No order is necessary when an attorney dies, but no- tice should be giten to the opposite party of the appoint- ment of a new attorney. — Ryland v. Noakes, 1 Taunt. 842. (a) If the defendant waive his plea without leave, the plaintiff may sign judgment. — Palmer v. Dixon, 5 D & Ry. 623. The court or a judge will generally give leave to do so, on defendant's agreeing to take short notice of trial. — Taylor v. Joddrel, 1 Wils. 265 ; Wilkes v. Wood, 2 Wils. 204. If the defendant be allowed to withdraw his plea, and be ordered to plead forthwith, he must plead within twenty- £)ur hours ; when ordx^red to plead inttanter, he must plead qn the same day, or the plaintiff may sign judgment — Chit. Arch. Pr. 7th Ed. 181. As to present practice see 9th Ed. 267. \, \ 6 RULES. Fin. 620. E.R.10 Viii.021. E. B. 11. nii.621. B.B.12. nn. 621. demurrer without leave of the court or of a judge, unless by consent of the plaintiff or his attorney. 9. In case the time for pleading to any declaration or for answering any pleading, shall not have expired before the first day of July in any year, the party called upon to plead, reply, &c., shall have the same number of days for that purpose after the twenty-first day of August, as if the declaration or preceding pleading had been delivered or filed on the twenty- first day of August. 10. When a defendant shall plead a plea of judgment recovered, he phall in the margin of such plea state the date of such judgment, and if such judgment shall be in a court of record, the number of uie roll (if any) on which such proceedings are entered, and in default of his so doing, the plaintiff shall be at liberty to sign judgment as foi want of a plea, and in case the same be falsely stated by the defendant, the plaintiff, on producing a certificate j&om the proper officer or person having the cttstody of the records or proceedings of the court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a pka. PAYMENT OF MONEY INTO COURT. 11. No a^davit shall be necessary to verify the plaintiff's signature to the written authority to his attorney to take money out of court, unless specially required by the master. 12. (x) "When money is paid into court in respect of any particular sum or cause of action in the de- (z) yid« Act 1866, sec. 120, for form of plea of payment into court. An action was brought in the superior court for a sum exceeding £20, and defendant paid £7 16s. into court, which the plaintiff took in full satisfaction of his eltAm — Held that plaintiff was entitled to costs of the ac- tion: Chambers v. Wiles, 1 Jur. N. S. 476. RULES. 7 claration, and the plaintiff accepts the same in satis- faction, the plaintiff, when the costs of the cause aie taxed, shall oe entitled to the costs of the cause, in respect of that part of his claim so satisfied, up to the time the money is so ^ xid in and taken out, whatever may be the result of any issue or issues, in respect of other causes of action ; and if the defen- dant succeeds in defeating the residue of the claim, he will be entitled to the costs of the cause in respect of such defence commencing at << Instructions for plea," but not before. 13. (y) Where money is paid into court in several ^ »• w. actions which are consolidated, and the plaintiff, 27 e.t. 6 Tie. without taxing costs, proceeds to trial on one, and fails, he shall be entitled to costs on the others, up to the time of paying money into court. DEMURRER. 14. The paity demurring may give a notice to the ^'^'^' opposite party to join in demurrer in four days, which « notice may be delivered separately, or endorsed on the demurrer, otherwise judgment. 15. No motion or rule for a concilium shall be ^^'sm! required, but demurrers as well a& all special cases, special verdicts and appeals from county courts shall be set down for argument at the request of either party with the proper officer, four days before the day on which the same are to be argued, and notice thereof shall be given forthwith by the party setting the same down to the opposite party. 16. (e) The party whose pleading has been de- (jf) When a plaintiff refttaes a Bum of money tendered through the medium of a judge's summons, in satisfaction of his claim, and afterwards takes out of court a sum slightly exoeedinr that reft^sed — Held, he is entitled to his costs.— Shaw y. Hughes, 16 Q. B. 660. (e) A demurrer commencing, " and the defendant says that the said declaration is not sufficient in law," and then 8 RULES. Vic, 27 H.T. 13 murred to, shall, with his joiuder in demurrer, or at any time within the time allowed for joining in de- murrer, or within such further time as a judge on application may allow, deliver to such opposite party a notice in writing, of all exceptions, intended to be taken on the argument to any preceding pleading of the party demurring, and in default of such notice, shall be precluded from arguing any such exception, and all exceptions whereof notice has been so given, shall be entered on the demurrer books, to be delivered to the judges, and if the party setting down the case for argument shall omit to enter on the demurrer book any exception made by the opposite party, of which he has had due notice, the court may, in its discretion, either give judgment in favor of such opposite part^, or may strike the case out of the paper, and allow the opposite party reasonable costs for attending to argue the demurrer. 17. Four days before the day appointed for argu- ment, the party setting down the case for argument, shall deliver a copy of the demurrer book, special case or special verdict to each of the judges, otherwise the case shall not be heard. 18. When there shall be a demurrer to part only of the declaraiion, or other subsequent pleadings, those parts only of the declaration and pleadings to which such demurrer relates, shall be copied into the demurrer books, and if any other parts shall be co- pied, the master shall not allow the costs thereof on 28H.T.13 vie. E.R.17. Fin. 622. proceeding to assign separate oaases to each count, is in form a demurrer to the whole declaration ; and if any count be good, the plaintiff is entitled to Judgment, the demurrer being too large. — Parrett Navig. Co. t. Stower, 9 M. & W. 664. A special demurrer for duplicity must pcrfnt out ex- pressly, and not 1^ way of description, in what the du- plicity consists.— Smith v. Clench, 2 Gal. & D. 225 ; Small T. Beasley, 8 U. C. R. 40. UULE8. taxation, either as between party and party, or as between attorney and client. (/) CHANGE OP VENUE. 19. (d) No venue shall, unless upon consent of parties, be changed, without an order of the court or of a judge, made after a rule to show cause or a judge's summons J but such order may neverthe- less be made before issue Joined in those cases in which it could have been so made before this rule ; and in all cases the venue may or may not be changed, according as it shall appear to the court or ? (/) Either party may set down a demurrer for argument, and causes of general demurrer should be delivered to the judges in the form of notes, by the opposite party to the one setting down the demurrer for argument — Jones t. Dunn, 1 U. C. C. P. R. 204. Although a plea in abate- ment need not be demurred to specially, yet all objections intended to be urged, must be noted in the demurrer books according to this rule. — March y. Bums, 1 U. C. C. P. B. 844, per Macaulay, C. J. (d) The application to change the venue must be made on the common affidavit before plea pleaded. — Begg v. Forbes, 18 G. B. 614 ; 28 L. J. (G. P.) 222. On special grounds it should not be made until after issue joined. — €otterill v. Dixon, 1 G. & M. 661 ; Hodge v. Ghurchward, 6 G. B. 496 ; DeRothschild ▼. Shilston, 22 L. J. Exch. 279. This rule varies ^firom Hm English one, as given in Ghit. Arch. Pr. 9th Ed. 1267. The chief object appears to be to prevent parties firom changing the venue as a matter of course, and to afford the plaintiff an opportunity of resist- ing the application when fint made, instead of bringing it back after it has been changed. The venue will be changed where justice and convenience manifestiy require it, and the plaintiff being an attorney will not prevent. — Robertson V. Hayne, 16 G. B. 660. When the plaintiff is entitied to change the venue as a matter of right, the court will not impose terms at the instance of defendant. — Turnley v. London and North Western Railway Go., 16 C. B. 576. Venue may be changed before issue, but the order must be on special appUeation, although it need not necessarily be on special groundt. — Finlason, 622. 9 10 IIULEB. E. R. 19. Fin. 622. E. R. 20. Fin. 523. judge, that the cause may be more conveniently and fitly tried in the county in which the cause of action arose, or in that in which the venue has been laid. PARTICULARS OF DEMAND OR OP SET-OFF. 20. With every declaration (unless the writ has been specially endorsed under the provisions con- tained in the 41st section of the Common Law Procedure Act, 1856,) delivered, containing causes of action, such as those set forth in Schedule B of that act, numbered from one to eleven inclusive, or of a like nature, the plaintiff shall deliver full parti- culars of his demand under such claim, where such particulars can be comprised within three folios, and \ where the same cannot be comprised within three | folios, he shall deliver such a statement of the nature '^ of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios j and with every plea of set off containing claims of a similar nature as those in respect of which a plaintiff is required to deliver particulars, the defendant shall, in like manner, de- liver particulars of his set off; and to secure the de- livery of particulars in all such cases, it is ordered that, if any such declaration shall be delivered, or if any plea of set off shall be delivered without such particulars or such statement as aforesaid, and a judge shall afterwards order a delivery of particu- lars, the plaintiff or defendant, as the case may be, shall not be allowed any costs in respect of any summons, for the purpose of obtaining such order, or of the particulars he may afterwards deliver, and a copy of the particulars of the demand and set off shall be annexed by the plaintiff's attorney to every record at the time it is entered for trial with the proper officer. 21. A summons for particulars and order thereon, may be obtained by a defendant before appearance, RULES. 11 ) has aDd may be made, if the judge think fit, without the production of any affidavit. 22. A defendant shall be allowed the same time for pleading, after the delivery of particulars, under a judge's order, which he had at the return of the summons, unless otherwise provided for in such order. / SECURITY FOR COSTS. 23. (k) An application to compel the plaintiff to give security for costs, must, in ordinary oases, be made before issue joined. B. B. Sil. 1111.638. B. R.2a. DISCONTINUANCE. i . 24. (I) To entitle a plaintiff to discontinue after plea pleaded, it shall not be necessarv to obtain the k. r. 28. defendant's consent, but the rule shall contain aa^*^^^- undertaking on the part of the plaintiff to pay the ^^— » costs, and a consent, that if they are not paid within four days after taxation, the defendant shall be at liberty to sign judgment of non Pros. STAYING PROCEEDINGS. 25. (m) In any action against an acceptor of ax.R.a4. Bill of Eizchange, or the maker of a promissory ''^^^ '■ W "»II H ■■■■■IM ■■■■ « I ■MW W ■■ n il III ■■ li I ■■■I——— I— IIIMII«|» (k) Ifhnt a plaintiff is insolvent, aii4 has awignsd the debt for which Uie aotion is brought, and is suing for the ^ benefit of the assignee, the conrt will compel him to g^ve security for costs. — Goatley v. Emmott, 16 0. B. 291. g) If an administratrix has been made defendant in an on commenced against the intestate by a soggeation, (sec. 211 C. L. P. act, 1866,) and has pleaded to the sug- gestion, the court will not allow the plaintiff to discontinue without payment of all the costs in the cause. — ^Benge v. Swaine, 16 G. B. 784. A plaintiff ha^g obtained a judge's order to discontinue on payment of costs, and having acted upon the order by attending the taxation under it, the court refused to allow him afterwards to abandon it.*— lb. . (m) The holder of a dishonoured Bill of Exchange brought an action against the acceptor, and simultaneously wiUi it instituted proceedings against him in baaknqttcy. 12 RULES. I 4 '*^ ^< Iiiii.ft23. a.B.ar. lbiA28. note, the defendant shall be at liberty to staj tiro- oeedings on payment of the debt and costs in tnat action only. COGNOVIT.— WARRANT OP ATTORNEY. JUDGE'S ORDER FOR JUDGMENT. 26. No warrant of attorney to confess judgment in any action or cognovit actionem, given by any person, after the first day of next Michaelmas term, shall be of any force, unless there shall be present some attorney on behalf of such person expressly named by him, and attending at his request, to in- form him of the nature and effect of such warrant or cognovit, before the same is executed, which attor- ney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney, and in the affidavit of execution, the attendance of such attor- ney, and the fact of his bfiing a subscribing witness, shall be plainly stated, which affidavit and the war- rant of attomev or cognovit, shall be filed at the time of entering judgment thereon. 27. (n) Leave to enter up judgment upon any cognovit or warrant of attorney above one and under ten yeahs old, is to be obtained by order of a judge made eapartCf and if ten years old or more upon a summons, to shew cause. 28. Every person who shall prepare any cognovit or warrant of attorney to confess judgment, which is The action having been stayed on payment of the debt and costs, the plairitm oldmed to hold the bill until he should have obtaint)d. theamoont of hiscostsinbankraptcy, Held, that he was rot so entitled, and that the bill should be deli- vered up to the defendant — Cows v. Taylor, 18 Jtir. 968 Ezoh. (n) Filling in the date of a warrant of attorney, when it is left in bUmk after execution, is not such an alteration as will avoid the instrument. — Keene ▼. Smallbone, 17 C. B. 179. . \ RULICl!}. tu be subject to any defeasance, shall cause such de- feasance to be .written on the same paper or parch- ment on which the cognovit or warrant is written, or cause a memorandum m writing to be made on such cognovit or warrant containing the substance or effect of such defeasance. EVIDENCE. ADMISSION AND INSPECTION OF DOCUMENTS. SUBP(ENA TO PRODUCE RECORDS. DEPOSITIONS ON INTERROGATORIES. 29. The form of notice to admit documents re- Xi. R. 20. ferred to in the Common Law Procedure Act, 1856, iin. 624. section 165, may be as follows : — fA. B., Plaintiff, V. C. D., Defendant. Take notice that the plaintiff ^or defendant) in this cause proposes to adduce in evidence the several documents nereunder specified, and that the same may be inspected by the plaintiff (or defendant), his attorney or asent, at , on , between the hours of . And the defendant (or plaintiff) is hereby required, within forty-eieht hours from the last mentioned hour, to admit mat such of the documents as are spe- cified to be originals were respectively written, signed, or executed, as they purport respectively to have been, that such as are specified as copies are true copies, and such copies as are stated to have been served, sent, or delivered, were so sent, served, or de- livered respectively, saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c. G.H., Attorn^ or agent for (^plaintiff or defendant.") 14 s.B.ao. lin. 626. RULE8. Here describe the documenUy the manner of doing which may he a$/ollov}» : — ORIGINALS. DISOBIPnoif OP DOOCMINTB. Deed of OoTenant betwomi A. B. ft 0. D. of the flrat part, and B. P. of the Mcond part Indenture of Lease firom A. B. to 0. D Indenture of Release between A. B., ke^ of the first part, 0. D., Ae., of the second part, Ae , Letter, defendant to plaintiff. Policy of Insnraneeon —— Memorandum of Agreement between 0. D. A E. F. BUI of Bxohange Ibr £100, at three months, drawn br A. B., on and accepted by 0. D., endorsed by B. V. andO. H DATS. 1st .Tanuary, 1859. 1st February, 1866. ad February, 186A. Sd February, 1866. 1st January, 1860. 2d January, 1866. 3d January, 1866. COPIES. DtterifUon of DcewmmU. Register of Baptism of A. B., In tlMFaiiahof "««ee««e(eee*eee< Latter, plaintiff to debndMit . Dai*. Notlee to produce papen.c Record of Judgment of the Court of Queen's Bench, in an action J. 8. «. J. N. Letters Patent of King Qeoige the Tliird..^....... , 1st Jwiuary, 1808. 1st February, 1838. lstlhNb,18M. Origbnal ordupK- cate terved, lent, or delivered, when, how, and by whom} |l5 IVInlty Verm, " Victoria. let January, 1800. /Sent by post, 2d ( February, 1838. Berred 2d March, 1866, on deind' act's attorney, bjr B. F. of ^ 80. In all oases of trials, assessments or inquisi- tions of any kind, cither party may call upon tbe other party by notice, to admit documents in the manner provided by and subject to the provisions of the ^Common Law Procedure Act, 1856, and, in case of the refusal or neglect to admit after such no- tice given, the costs of proving the documents shall be paid by the party so neglecting or refusing, what- ever the result of the trial may be, unless, at the trial • i: I ,. > i nng m. 66. 66. 66. W. luplir it, or how, I, 2d 18. •reh, imd- I IISI- the the J of in no- hall lat- irial A RULES. 16 assessmeDt or inquisition, the judge or presiding officer shall certify that the refusal to admit was rea- sonable, and no costs of proving any document shall be allowed, unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense. 31. No subpoena for the production of an original b. r. 32. record, or of an original memorial from any registry '*°- '^26. office shall be issued, unless a rule of Court, or the order of a judge shall be produced to the officer issuing the same, and filed with him, and unless the writ shall be made conformable to the description of the document mentioned in such rule or order. 82. All depositions of witnesses taken under the g. r. a^ order of a judge, rule of Court, or commision, shall ^Ib- ^^^ be returned to, and filed in the office of the Clerk of the Crown and Pleas of the Court in which the action or proceeding is pending. ISSUE BOOKS. S3, (o) The Common Law Procedure Act, 1856, having dispensed with the sealing and passing of the Nisi Prius Becord, the practice in England as to (0) For the English Praotioe see Chit. Aroh. Pr. 0th Ed p. 276 et seq. The iaiae contains an ontry of all th« plead- ings iu the order in which they are pleaded, with their dates, and concludes with an award for a Jury to come and try the matters in issue ; see forms, No. I., &o. It must be delivered before or at the time of giving the notice of trial, and at least such number of days previous to the assises at which it is intended to try the cause, as it is ne- cessary to give as notice of trial. — See post rule 86. It is irregular if it does not recite the writ of summons. — Emery V. Howard, 9 M. & W. 108 ; Cooze v. Neumegen, 9 M. s W. 290, or its date ; Lycett v. Tenant, 4 Bing. N. C. 168. But this irregularity will be waived by defendant appearing at trial without objecting. — ^Emery v. Howard, supra. The proper course appears to be on discovering the error, either to return the issue within four days or else apply to set it aside. — Cooze v. Neumegen, supra. m 10 E. R. 8«. FlB. 626. B.B.38. Fin. 620. R. R. 40. VIn. 627, E. R. il. Fin. 627. UULK8. making up and dolivering paper bookii nriU TsRue Books is to be followed in f\iture. TRIAL.--TRIAL BY PROVISO.— ASSESSMENT.- NOTIOE OF TRIAL ; &c. 84. The expression <' Short notice of trial/' or " Short notice of assessment," shall in all cases bo taken to mean four days' notice. 85. On a replication or other pleading denying the existence of a record pleaded by the defendant, a rule for the defendant to produce the record shall not be neoesMuy or used, and instead thereof a four days' notice shall be substituted, requiring the de- fendant to produce the record ; otherwise judgment. 86. In all cases where the plaintiff's pleading is in denial of the pleading of the defendant, without join- ing issue, the plaintiff's attorney mav give notice of trial at the time of delivering his replication or other subsequent pleading, and in case issue shall afterwards be joined, such notice shall be available, but if issue be not joined on such re>>licationorother subsequent pleading, and the p)ai utiff shall sign judgment for want thereof, and forthwith give notice of assessment of damages, such notice shall operate from the time that notice of trial was given as aforesaid, and in all cases where the defendant demurs to the plaintiff's declaration, replication, or other subsequent pleading, the defendant's attorney, or the defendant, if he plead in person, shall be obliged to accept notice of assess* ment on the back of the joinder in demurrer ; and in case the defendant pleads a plea in bar or rejoinder, &c., to which the plaintiff demurs, the I.'cu Itn's attorney, or the defendant, if he plead in w '^c. • -^ > ^,1 be obliged to accept notice of assessmen. ov iuo l^^jk of such demurrer. 37. Notice of a trial at bar shall be given to the Clerk of the Grown and Fleas of the Court before ^f.7ing notice of trial to the party. I' • I ¥* I' in M# 17 J]8, iVo rule for u trial by provi*» sfmll ))e lu ef- 8ary. VIEW. 89. (p) Upon any application for u vi«w, thoro shall bo an affidavit stating the plaoo at which the v^.r^taio. view is to bo mado, and the distance thereof i. < u f <^'i tl.M Sh< riff 'b office ; and the party obtaining the or< :''r tin. i>2i..' 1 } fe ''<^w, shall deposit with the Sheriff the sur of six. |; mnds and five shillings in case of a oommon jury, and eight pounds and ten shillings in case of a S( ecial jury, if such distance do not exceed five miles ; ^nd seven pounds and fifteen shillings in cose of a common jury, and ten pounds fifteen shillings in ease of a special jury, if the distance be above five miles ; tind if such sum shall be more than sufficient to pay the expenses of the view, the surplus shall forthwith be returned to the party who obtained the view, or his attorney and if such sum shall not bo sufficient to pay such expenses, the deficiency shall forthwith be paid by such party or his attorney to the Sheriff; and the Sheriff shall pay and account for the money so depo- sited according to the scale following, that is to say : Ibr travelling expenses to the Sheriff', Shewers, and Jury- men— -expenses actually paid, if reasonable. Fee to the Sheriff, when the distance does not £ s. d. exceed five miles from his office 10 Where such distance exceeds five miles 16 In case he shall be necessarily absent more than one day — then for each day after the first, a further fee of 16 Fee to each of tb« Shewers — the same as to the Sheriff, calculating &c. Fee to each common juryman, per diem 6 ' • (p) An action for work and labour is not a case in which a side bar rule for a view ought to be granted. — Semble That such a rule, omitting the names of the shewers, and the time and pl^oe of meeting is inegular. " The necessity of a view a«.sma to me to apply chiefly to actions of a local nature, sudi as Trespass q. c. f., nuisance, and the like." — Per Parke. D., Stones t. Menhem, 2 Exch. 882. '/li u f I E. R. 60. Fin. 529. E. R. 51. Fin. 520. E. R. 62. Fin. 529. E. R. 53. Fin. 529. KULKS. Fee to each special juryman, per diem 10 U Allowance for refreshment to the Sheriff, show- ers, and jurymen, common or special, each, perdiem 6 To the Sheriff for summoning each juryman, whose residence is not more than five miles t stant from the Sheriff's office 2 An„. for each whose residence exceeds five miles from Sheriff's office 3 NEW TRIALS.— MOTIONS IN ARREST OF JUDGMENT.— JUDGMENT NON OBST. VER". 40. (q) No motion for a new trial or to enter verdict or non-suit — motion in arrest of judgment, or for judgment non obstante veredicto, shall be al- lowed, after the expiration of four days from the day of trial, nor in any case after the expiration of the term, if the cause be tried in term ; or when the cause is tried out of term after the expiration of the first four days of the ensuing term, unless in either case, entered in a list of postponed motions, by leave of the Court. 41. No suitor who appears in person, shall be at liberty to set down any motion in such list of post- poned motions, without the express leave of the court. 42. No affidavit shall be used in support of a motion for a new trial in any case, unless such affi- davit shall have been made within the time limited for the making of such motion, without the special permission of the court for that purpose. 43. If such motion as above mentioned, be en- tered in such list of postponed motions, the attorney, who has instructed counsel to make the motion, shall give notice of it to the attorney of the opposite party, otherwise, judgment signed on behalf of the opposite party shall be deemed regular, and every suitor who appears in person, shall give a similar notice. (q) The rule niai may be amended when cause is shewn : See Drayson v. Andrews, 10 Excfa. 472. i . •.•^■'■^ ii^$ RULES. 19 44. If a new trial be granted ■without any mention "• R. w. of costs in the rule, the costs of the first trial shall not be allowed to the successful party, though he succeed in the second. 45. No rule granting a new trial to a party, on condition of payment of costs, or other condition, shall be discharged, on account of default in per-^.^-^-'* forming such condition by a rule absolute in the first instance ; but a rule for such discharge shall issue, which shall make itself absolute, unless cause be shewn on or before the day mentioned for that pur- pose in the rule, and which shall in no case be ear- lier than the fourth day inclusive, after service thereof. JUDGMENT. 46. No rule for judgment shall be necessary. 47. All judgments, whether interlocutory or final, shall be entered of record of the day of the month f jj^gga' and year, whether in term or vacation, when signed, and shall not have relation to any other day ; but it shall be competent for the court or a Judge to order a judgment to be entered nunc pro tunc, (r) COSTS: SETTING OFF DAMAGES OR €OSTS. 48. One day^s notice of taxing costs, together e. r. so. with a copy of the bill of costs and affidavit of in-^*"-®*^- crease, if any, shall be given by the attorney of the party, whose costs are to be taxed to the other party or his attorney in all cases where a notice to tax is necessary. 49. One appointment only shall be deemed neces- j. ^ ^o. sary for proceeding in the taxation of costs or of an Fin. '530. attorney's bill. 50. Notice of taxing costs shall not be necessary y,\f 5^; (r) It is only where delay in signing judgment has arisen from the act of the ooort, that judgment can be entered nunc pro tune, two terms having elapsed since the verdict. -Freeman v. Tranah, 12 C. B. 406. ■' 7 E. R. (^2. Fin. 530. {■■■ E. R. 63. FiB.fiSO. I ■ • *. c 1: i 43H.T, Via \ RULES. in any case where the defendant has not appeared in person, or by his attorney or guardian. 51. (s) When issues in law or fact are raised, the costs of the several issues both in law and fact will follow the finding or judgment, and if the party en- titled to the general costs of the cause obtain a ver- dict on any material issue, he will also be entitled to the general costs of the trial ; but if no material issue in fact be found for the party otherwise entitled to the general costs of the cause, the costs of the trial shall be allowed to the opposite party. 52. No set oflF of damages or costs between parties shall be allowed to the prejudice of the attorney's lien for costs in the particular suit against which the set-oflF is sought ; provided, nevertheless, that interlo- cutory costs in the same suit awarded to the adverse party may be deducted. 53. No privilege shall hereafter be allowed to any person to exempt him as plaintiff from the operation of any statute or rule of court which restrains costs on any causes of action of the proper competence of the county court. EXECUTION. 54. No writ of execution shall issue until the pro- ceedings to the end of the judgment are duly en- («) The plaintiffs brought an action against M. alone, to recover a sum exceeding £600. M. pleaded in abatement the non-joinder of B. and Q., and the plaintiffs amended by adding the names of B. and G. The three defendants pleaded separately. M. as to £250 parcel, &c., payment into court, and as to the residue never indebted. B. and G. respectively to the whole demand, never indebted. The verdict was found for M. on his plea that no more than £230 was due, and against the other defendants that they were jointly liable with M. to the amount of £212. 7s. 9d. Held that M. was entitled to the costs of his plea in abate- ment, and of the amendment, and also to the general costs of the cause. Held also that the plaintiffs were entitled to no costs as against B. and G. — Gazneau v. Morrice, 2 Jor. N. S. 139. ) ■4 ^ 1 RULES. 21 in to isue to rial < A It I tored ou the roll ; nor shall any writ against lands issue until the judgment has been duly minuted and docketed. 55. A praecipe for every writ of execution shall be filed with the proper officer, and the endorsement upon every such writ, for debt or damages, shall be to the effect, and as nearly as the circumstances will allow in the form following : — "Levy (or take) the " sum of £ being the debt, (or damages) and " the sum of £ being the costs taxed in this " cause, with interest, (according to the circum- ^ "stances); also the sum of £ for this writ, " (and lormer writs, if any, and Sheriff's fees " thereon,) together with your own fees, poundage, " and incidental expenses ;" and shall also be en- dorsed with the name and place of abode, or office of business of the attorney actually suing out the same ; and when the attorney actually suing out the writ, shall sue out the same, as agent for any attorney in the country, the name and place -of abode of such attorney in the country, shall also be endorsed upon the said writ, and in case no attorney shall be em- ployed to issue the writ, then it shall be endorsed with a memorandum, expressing that the same has been sued out by the plaintiff or defendant in per- son, as the case may be, mentioning the city, town, incorporated or other village, or township, within which such plaintiff or defendant resides. 56. Every writ of execution shall be tested in the vide c. l. p name of the Chief Justice of the Court from which ^*;*' ^^*'" the same shall issue, or in case of a vacancy of such office, then in the name of the senior puisne judge of the said court. PROCEEDINGS AGAINST GARNISHEE. 57. All writs, rules, orders, or other proceedings against a Garnishee, shall be issued, taken, and had in the Court in which the judgment was rendered / j! r B. R. 78. Fin. 532. 6 II. T. 10 Vio. 6 H. T. 10 Tic 4 RULES. in favor of the party applying to attach the debt due to his judgment debtor. 58. The entries of the proceedings against '. 'Gar- nishee, in the debt attachment book, shall b made according to the form hereafter given. REVIVOR AND SCIRE FACIAS. 59. A plaintiff shall not be allowed a rule to quash his own writ of ^cire facias or revivor, after a defendant has appeared, except on payment of costs. 60. A scire facias upon a recognizance taken be- fore a judge or a commissioner in the country, and recorded at Toronto, shall be brought in the County of York only, and the form of the recognizance shall not express where it was taken. 61. (t) No judgment shall be signed for non- appearance to a scire facias, without leave of the court or a judge, unless defendant has been sum- (t) An affidavit in support of a rule absolute for judg- ment on a tcire/aeiat, at the suit of executors, must show that probate has been granted to them. — ^Vogel et al Ezra. V. Thompson, 1 Exoh. 60. Where a defendant resided abroad at Boulogne, the court granted leave to sign judg- ment against him on act fa, on an affidavit of service of notice of the writ upon him in that place. — Stockport v. Hawkins, 1 D. & L. 204. Where a notice of »ci fa was left with a person who represented henelf to be defendant's housekeeper, and who stated the defendant was somewhere in London, and that she could not account for his absence, except that he was avoiding legal process, the court granted a rule to rign judgment for non-appearance. — ixon V. Thorold, 8 M. & W. 297. The affidavit of the existence of the debt, on which to ground a r\otion for a aei fa to revive a judgment, ought either to be made by the plaintiff himself, or by the person who was his attor- ney at the time of the judgment — Duke of Norfolk v. Lei- cester, 1 M. & W. 204. Where a defendant has been ab- sent from the country for years, the proper course is to take out a rule to shew cause ; notice of the rule to be stuck up in the office (Grown office), and to be served on defendant's tenants. — Macdonald v. McLaren, 11 M. & W. 466. ' Ir i RULES. 28 due < m T\ inoned, but such judgment may be signed by leave after eight days from the return of one scire facias. 62. A notice in writing to the plaintiff, hi8flH.T.io attorney ur agent, shall be sufficient appearance by '^^' the bail or defendant on a scire facias. 63. In all suits, actions, or proceedings, by scire facias, information or otherwise, by or at the suit of, vio. ' ^'^^ or in the name of the Queen, or of the Attorney or Solicitor General for the time being, commenced or taken to enforce, or protect any of the civil rights of the Crown, or concerning any matter or thing affect- ing such rights, or for any penalties or forfeitures under any Custom's Act, or other act of Parliament in force in this Province — rules to appear, plead, rejoin, join in demurrer, &o., may be had and issued on filing a prcecipe either in term or vacation, and ' such rules, excepting rules to appear, shall be eight day rules, and the party or parties named in any such rules shall be bound to appenr, pler^d, rejoin, join in demurrer, &c., within the time mentioned in such rules respectively, but the Court or a Jud^e may extend the time mentioned in any such rules in their or his discretion ; Provided that nothing in this rule shall affect or restrict any right, privilege, or prero- gative now enjoyed or possessed by the Crown. ENTRY OP SATISFACTION ON ROLL. 64. In order to acknowledge satisfaction of a judg- x, r. 8o< ment, it shall be requisite only to produce a satisfac-n'n.es." tion piece in form as hereinafter mentioned, and such satisfaction piece shall be signed by the party or par- ties acknowledging the same or their personal repre- sentatives, and their signatures shall be witnessed by some practising attomly, expressly named by him or them, and attending at his or their request to inform him or them of the nature and effect of such satisfac- tion piece before the same is signed; which attorney shall declare himself in the attestation thereto to be ti-J ^ / n Iw 24 RULES. the attorney for the person or persons so signing the same, and state he is witness as such attorney (pro- vided that a Judge at chambers may make an order dispensing with such signature under special circum- stances, if he think fit) ; and in cases where the satisfaction piece is signed by the personal represen- tative of a party deceased, his representative character shall be proved by the production of the probate of the will, or of the letters of administration, to the officer in custody of the judgment roll. Form of Satis/action Piece. In i'iffj day the day of A.D. 185 to wit. Satisfaction is acknowledged between plaintiff and defend- ant, in an action for £ and costs. And do hereby expressly nominate and appoint ' attorney at law to witness and attest execution of this acknowledgment of satisfaction. Judgment entered on the day of in the year of our Lord 185 . Roll No. Signed by the said in the ^ presence of me of one of the attorneys of the Court of . And I hereby declare (Signature) myself to be attorney for and on be- the above half of the said named expressly named by and attendbg y plaintiff, at request to inform of the nature and effect of this acknowledg- ment of satisfaction (which I accord- Date, ingly did before the same was signed by ). And I also declare that I sub- scribe my name hereto as such attorney. 65. Evenr satisfaction must be entered in the principal office of the proper court at Toronto, and every judgni purpol to hi^ tranar Procc GO of c( orbj defei ofO be c app< to 0' byt dirt atV ( on rea aci ba l3< a i \ 1 I J nULE8. 80 |gaiog the rney (pro- an order »I circum- ^here the I represen- I character )robate of [»; to the 185 )wledged tlefend- ls. And appoint > witneiis gmentof la(ure) above tned itiff. / "^ I the , and every deputy clerk of the Crown shall transmit the judgment roll and papers belon}i;ing thereto for that purpose, upon the satisfaction piece being exhibited to him, unless such roll shall have been previously transmitted under the direction of the Common Law Procedure Act, 1850, section fifteen. BAILABLE PRi^CEEDINGS AND BAIL. CO. Where the defendant is described id the writ of capias or affidavit to hold to bail (a) by initials, or by wrong name, or without a Christian name, the defendant shall not for that cause be discharged out of Custody, or the bail bond be delivered up to be cancelled on motion for that purpose, if it shall appear to the Court that due diligence has been used to obtain knowledge of the proper name. 67. An action may be brought upon a bail bond by the Sheriff himself in either court. 68. In all cases where the bail bond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it. 69. Proceedings on the bail bond may be stayed on payment of costs in one action, unless Gufficient reason be shewn for proceeding in more. 70 . When bail to the sheriff becomes bail to the action, the plaintiff may except *o them though he has taken an assignment of the bail bond. 71. A plaintiff shall not be at liberty to proceed (a) Where an aflBdavit of debt was sworn in Ireland, before a Commissioner of Common Pleas and Exchequer — Held that the title of the Court need not be prefixed to the affidavit when sworn, but that the affidavit might be taken before such commissioner, to be afterwards entitled and used in either court. Perse vs. Browning, 1 M. & W. 862. vide HoUis vs. Brandon, IB. & P. 36. If affidavit is sworn after the issuing of the writ, it must be entitled in the cause otherwise it is irregular. — Schletter vs. Cohen, 7 M. & W. 389. B E. R. 82. E. n. 83. Fia. 534. R. R. 84. Fin.&a4. B. R. 85. Fin. 634. E. R. 86. Fia. 634. 26 HULKS. E. R. R7. VlQ. 634. E. R. 8S. flu. 534. E. R. 89. Fin.6aL on the bail bond ponding a rulo to bring in the body of the defendant. 72. No rule shall be drawn up for setting aside an attachment regularly obtained against a sheriff for not bringing in the body, or for staying proceed- ings regularly commenced on the assignment of any bail bond, unless the application for such rule shall, if made on the part of the original defendant, be grounded on an affidavit of merits, or if made on the part of the sheriff, bail, or any officer of the sheriff, be grounded on an affidavit shewing that such appli- cation is really and traly made on th-^ part of the sheriff, or bail, or officer of the sheriff, as the case may be, at his or their own expense, and for his or their indemnity only, and without collusion with the original defendant. 73. Whenever a plaintiff shall rule, (h) the sheriff on a return of cepi corpus to bring in the body, the defendant shall be at liberty to put in and perfect special bail at any time before the expiration of such rule. 74. (c) In case a rule for returning a writ of ca- pias, shall expire in vacation, and the Sheriff or other (b) The Sheriff may be ruled immediately after the ex- ecution of the writ. — Hodgson t. Mee, 6 N. & M. 802 ; but not where the plaintiff has taken an assignment of the bail bond. — 2 Saund. 60 b., provided it be a valid one, or where he accepts a cognovit or other security Arom the defendant, without the privity of the Sheriff. — B. v. Sheriff of Surrey in Brewer v. Clarke, 1 Taunt 159, Chit. Arch. Pr. 9th Ed., 760. (c) Care should be taken that there be no unnecessary delay in obtaining this rule. Where a writ of latitat was returned in Hilary Term, and the rule to bring in the body not taken out until Michaelmas following, the Court set aside an attachment for not obeying it. — Ilex. v. Sheriff of Surrey, 7 T. R. 452 ; Peacock v. Leigh, 1 Taunt, iii. ; R. V. Sheriff of Middlesex, 1 Dowl. 53. It may be obtained even on the day the Sheriff returns the writ, provided the time for putting in bail has then expired. — R v. Sheriff of 1^' lUir.Ks. 27 oftic(;r having tlio return of such writ, shall return k. r. oo. cppi corpus theroon, a rule may thereupon issue re- *^*°" ^"^* quiring the Sheriff" r other officer within the like number of days after the service of such rule, as by the practice of the court, is prescribed with respect to rules to bring in the body, issued in term, to bring the defendant into court, by forthwith putting in and perfecting bail above to the action, and if the Sheriff" or other officer shall not duly obey such rule, an attachment shall issue in the following term, for . disobedience of such rule, whether bail shall or shall not have been put in and perfected in the meantime. 75. Notice of more bail than two shall be deemed b. r. oi. irregular, unless by order of the Court or of a judge. ^*°* ^'^\ 76. The bail of wliom notice shall be given, shall e. n. 02. not bo changed without leave of the court or a judge. *"'»-535. 77. No person or persons shall be permitted to jUs- e. h. 03, tify himself or themselves as good and sufficient bail *"'«»• ^35. for any defendant or defendants, if such person or persons shall have been indemnified for so doing by the attorney or attorneys concerned for any such de- fendant or defendants. 78. No attorney shall take any recognizance of bail t.t.i * 2 iii a case in which he is employed as attorney or agent ^- ^^• for either party. 79. If any person put in as bail to the action, ex- cept for the purpose of rendering only, be a practis- fj^'g^; ing at*;orney, or clerk to a practising attorney or sheriff"'8 officer, bailiff, or person concerned in the execution of process, the plaintiff may treat the bail as a nullity, and sue upon the bail bond as soon as the time for putting in bail has expired, unless good bail be duly put in, in the meantime. i I'l '^y Middlesex, in Pouchee v. Lieven, 4 M. & Sel. 427. See Ilatchins v. Hird, 6 T. R. 479. But it seeraa not before that time. — Potter v. Marsden, 8 East. 525. Vide also Chitty's Arch. Pr. 9th Ed., 761. 28 UUl.KH. T. T. 3 & 4 W. IV. E. R. 98. Vln. 636. 80, When bail which has been put m, in tho country, is to be justified in court, the bail piece, with the aihdavit of the due taking thereof, and the affida- vit of justification, shall be transmitted bjtho deputy clerk of the Crown for the county in which they have been filed to the principal office in Toronto, to be filed and produced in court, upon the motion for al- lowance, on proper notice being given to such deputy clerk to transmit the same. 81. If the notice of bail shall be accompanied by an aflfidavit of each of the bail, (d) according to tho following form, and if the plaintiff afterwards except to such bail, he shall, if such bail are allowed, pay the costs of justification, and if such bail are rejected, the defendant shall pay the costs of opposition, unless the court or a judge thereof shall otherwise order. FORM OF AFFIDAVIT OF JUSTIFICATION OF BAIL. Ill the Between A. B., Plaintiff, ] and C. D., defendant. j B. B., one of the bail for the above named defen- dant, maketh oath and saith, that he is a house- (d) The affidavit of justification cannot be sworn bo- fore the defendant's attorney. — Koyle v. Wilcox, 2 0. S. 118. Bail will be allowed to justify by the affidavit mado at tho time of the acknowledgment, though an exception to them be entered, when nothing is shown to repel such affi- davit.— Duggan V. Derrick, H. T. 6 W. IV. The court will not grant leave to enter an exoneretur when bail have sur- rendered their principal, without a certificate from the She- riflF to whom he was rendered. — Linley v. Cheeseman, Dra. Rep. 55 ; Semble, That bail are not bound by what the at- torney for their principal may choose to do as the attorney for the principal. — Mitchell v. Noble, 1 U. C. Cham. Rep. 284. On on application to set aside a ca. sa. in the original action or proceedings against bail, the affidavits are rightly entitled in the action against the bail. — Beattie v. Mackay, et al, 2 U. C. Cham. Rep. 66. See also Rule 84, as to what amount must be sworn to. Ill tho with lafflda- leputy have to be for ■!- |deputy icd by to tho except ed, pa- ejected, , unless )rder. ON OF id defen- a house- Bworn be- [, 2 0. S. lavit inado :ception to I such affi- I court will I have 8ur- n the She- iman, Dra. hat the at- le attorney ham. Bep. he original are rightly r. Mackay, , as to what HULKS. keeper, (or fVecholdcr, a» the case mnjj he,) residing at {ff let, particular (hnvription of thr phuv. of r<>ii- (hncr,) that ho is worth property to tho uimmnt of £ (jhmble the amount sworn to) over and above what will pay all his just debts, {if hail in o7\>/ other action addy and every other sum for which he la now bail,) that he is not bail for any defendant, ex- ,y cept in this action, (or if bail in any other artion or actions, add, except for C. 1)., at tho suit of E. V., in tho Court of in the sum of £ , fur Cr. IT., at the suit of J. K., in the Court of in tho sum of £ , sjncift/inf/ the several actions with the Courts in which they are brought, and the sums in which the deponent is bail.) Sworn, (&c., as usual.) 82. If tho plaintiff shall not give one day's notice of exception to the bail by whom such affidavit shall k- h- o9. have been made, the recognizance of such bail may "' ' ♦ bo taken out of Court without other justification than such affidavit. 83. Where notice of bail shall not be accompanied by such affidavit, the plaintiff may except thereto within twenty days next after the putting in of such B. ^•^^' bail, and notice thereof given in writing to the plain- tiff or his attorney, or where special bail is put in before any commissioner, the plaintiff may except thereto within twenty days next after tho bail piece is filed in the proper office, and notice thereof given as aforesaid, and no exception to bail shall be ad- mitted after the time hereinbefore limited. 84. Affidavits of justification shall be deemed in- sufficient, unless they state that each person justify- ing is worth double tho amount sworn to over and above what will pay his just debts, and over and f. r. loi. above every other sum for which he is then bail, °" ' except when the sum sworn to exceeds one thousand pounds, when it shall be sufficient for the bail to justify in £1000 beyond the sum sworn to. 85. It shall be sufficient in all cases if notice of 29 ^v n 80 RUIiKS. K. R. 102. Fin. r>:w. K. 11. 10.x Flu 01)0. R. K. 101. Flu. i)U7. K.n. 108. Fin. OUT. E. H. 100. Fin. b'Sl. E. R. 110. Fin. 537. K. R. 111. Fin. 537. jnstificntion of bail bu given two dnys bolbro the tiuio orju.stiticntiun. 80. In nil cuBcs, bail to tho action nliall bo justi- fied, when required within four dajs after excep- tion, before u judge at chauibcr.s, both in term bnd vacation. 87. Bail, though rejected, shall bo allowed to render tho principal without entering into u fresh recognizance. 88. TVhon the pluintiff proceeds by action on tho rocognizancc of bail, tho bail shall bo at liberty to render their principal at any tlnio within the space of eight days next after the service of the process upon them, but not at any later period, and upon notice thereof given, the proceedings shall be stayed upon payment of tho costs of tho writ and service thereof only. 89. Bail shall only be liable to tho sum sworn to by the affidavit of debt and the costs of suit, not ex- ceeding in the whole, the amount of their recogni- zance. 90. To entire bail to a stay of proceedings, pend- ing a writ of error or appoal, the application must bo made before the time to surrender is out. 91. Whenever two or more notices of justification of bail shall have been given before the notice on which bail shall appear to justify, no bail shall bo permitted to justify without first pnying ('or securing to the satisfaction of the plaintifl^, his attorney, or agent) the reasonable costs incurred by such prior notices, although the names of the parties intended to justify, or some of them, may not' have been changed, and whether the bail mentioned in any such prior notice shall not have appeared, or shall have been rejected. ,& ■ n Mt EJECTMENT. 02. (f) No jiulginont in ejectment for wunt of unpearaiifc or dctctnc, whether limited or otherwise, ^{"jjl^ Bliall be si[^nc(l with(jut first tiling an aflidavit of tho Hervico of tho writ, according to tho (lonimon Law I'rocoduro Act 18r)fl, together with the writ or a eopy thereof, where there m a limited defence, or where personal service huH not leon cft'ectod, without tirst obtaining a Judge's order, or a rule of court authorizing tho signing such judgment, which said rule or order, or a duplicate thereof, shall bo filed together with the writ. 93. (/) Whero a person not named in the writ in {<■) Quwre whether tho affidavit required by rule 88 of Borvico of writ of ejectment under tho 170th bcc. of 15 & 16 Vic. c. 7<5, Imp. Act (C. L. P. Act, 1850, sec. 228 et seq.) should flhow, aa under tho old prnctico, that tho nature and object of tho service were explained to the party served. At all events, an irregularity in that respect is waived by eub- Bcquent attornment. — Edwarda v. Griffith, 16 C. D. 897. As to service of papers where premises ore abandoned, see Doe d. Laundy v. Roe, 12 C. B. 451. (/) In ejectment under Imp. Act, 16 & 16 Vic. c. 76, a landlord on complying with the requisites of 172d sec. (C. L.I'.Act, 1866,8. 225)isentitled, as a matter of right, to be let in to defend, and the court or a Judge has no power iu the case of a landlord residing out of the jurisdiction, to impose upon him the condition of finding security for costs. — Butler V. Meredith, 11 Exch. 85. In ejectment, on an application to bo allowed to appear and defend, it is enough if the affi- davit shows a prima facie case of possession by the applicant or liis tenant.— Croft v. Lumley, 4 El. & Bl. 008. There- fore tho owner of a box in an opera house, which had been doiuisod by deed to defendant for a term of years, with free ingress, &o., during performance, was admitted to defend. — ib. But when the applicant was a tenant by eUffit who bad recovered the premises in ejectment against the de- fendant, but had not been put into actual possession, the court refused to allow him to appear and defend. — Ib. IMaintifi' and defendant in ejectment are placed in the same position as parties to otlicr suits are, and therefore a judg- ment by default may be pleaded as an estoppel. — Wilkin- Bon v. Kirby, 1 Jur. N. S. 100, per Crowdor J. !*■ a2 RULES. E.B.I13 rin.S38. E. R. 114 fiu.538. E. R. 118. Fin. 538. E. R. 119. Fin. 539 F.ll. 120 Fin. 538. ejectment has obtained leave of the court or a Judge to appear and defend, he shall enter an appearance according to the Common Law Procedure Act, 1856, entitled in the action against the party or parties nam 3d in the writ as defendant or defendants, and shall forthwith give notice of suck appearance to the plaintiff's attorney, or to the plaintiff, if he sues in person. 94* If the plaintiff in ejectment appears at the trial, and the defendant does not appear, the defend- ant shall be taken to have admitted the plaintiff's title, and the verdict shall be entered for the plaintiff without producing any evidence, and the plaintiff shall have judgment for his costs of suit as in other cases. PENAL ACTIONS, COMPOUNDING OF. 95. Leave to compound a penal action shall not be given in cases where part of the penalty goes to the Crown, unless notice shall have been given to the proper officer, (^) but in other cases it may. 96. The rule for compounding any qui tarn ac- tion shall express therein that the defendant thereby undertakes to pay the sum for which the court has given him leave to compound such action. (A) 97. When leave is given to compound a penal action, the Queen's proportion of the composition shall be paid into the hands of the Clerk of the Crown of the Court granting such leave, for the use of Her Majesty, (i) {g) Where the Crown ia concerned, the consent of the Attorney General must be procured. — Howard v. Sowerby, 1 Taunt. 101. Leave is not necessary in actions by the party grieved. — Kirkham v. Wheelcy, 1 Salk 30. It is entirely in the discretion of the Court to grant it or not. — Maughan v. Walker, 5 T. R. 98 ; Sheldon v. Mumford, 5 Taunt. 268. (h) '"'le payment of such sum may be enforced by at- tachn > ■;.— R. v. Clifton, 5 T. R. 257. (j) lirown v. Bailey, 4 Burr. 1929. > *»-*t-> ^ ^^\ RULES. S$ PRISONERS AND PROCEEDINGS AGAINST THEM. 98. Every rule or order of a Judge directing theB.R.123. discharge of a defendant out of custody, upon special *^*° ^^®* bail being put in and perfected, shall also direct a supersedeas to issue forthwith. 99. The plaintiflF ^hall proceed to trial or final ^R. 124. judgment against a prisoner iu the term next after issue is joined, or at the sittings or assizes next after such term, unless the court or a Judge shall otherwise order, and shall cause the defendant to be charged in execution within the term next after such trial or judgment. 100. In all cases in which a defendant shall have been or shall be detained in prison on any writ of capias, or beiqg arrested thereon, shall go to prison for want of bail, and in all cases in which he shall have been or shall be rendered to prison before decla- ration on any such process, the plaintiff in such pro- cess shall declare against such defendant before the end of the next term after such arrest or detainer, or render and notice thereof, otherwise such defend- ant shall be entitled to be discharged from such arrest or detainer, upon entering a common appearance, unless further time to declare shall have been given to such plaiatiff by rule of court or order of a Judge. Q' ) SHERIFFS, RULES TO RETURN WRITS, &c. 101. All rules upon sheriffs to return writs, or to bring in the bodies of defendants, shall be six doy rules, and shall be issued from the same office whence the writ was sued out. 102. No Judge's order shall issue for the return of j, j^ j^^ any writ or to bring in the body of the defendant, Fin.'640.'" but a side bar rule shall issue for that purpose in va- (/) This ia rule number 3 Easter Term 3 & 4 Vic, re- ferred to in the C. L. P. Act, 1850, section 22. B* ) 84 ll I i^ ' ^' 5' E. R;135. Fin. 641. E. R, 136. Fin. 541. E. R. 137. Fin. 541. RULES. cation as in term, which shall ho of the same force and effect as side bar rules made for that purpose iu term. 103. The sheriff shall file the writ in the office from which the rule to return the same was issued, at the expiration of the rule, or as soon after as the office shall be open, and the officer with whom it is filed shall endorse the day and hour when it was filed. 104. In case a rule to bring in the body of a de- fendant shall expire in vacation, having been duly served, but not having been obeyed, an attachment shall issue for disobedience of such rule, whether the rule shall or shall not have been obeyed in the mean time. 105. Where any sheriff, before his going out of office, shall arrest any defendant and take a bail bond and make return of cepi corpus, he shall and may, within the time allowed by law, be called upon to bring in the body by a rule for that purpose, notwith- standing he may be out of office before such rule shall be granted. IRREGULARITY. 106. No application to set aside process or proceed- ings for irregularity shall be allowed, unless made within a reasonable time, nor if the party applying has taken a fresh step after knowledge of the irregu- larity. (Jc) 107. Where a summons is obtained to set aside proceedings for irregularity, the several objections intended to be insisted on shall be stated therein. 108. In all cases where a rule is obtained to show cause why proceedings should not be set aside for irregularity with costs, and such rule is afterwards {k) Vide Edwards v. Griffiths, 3 C. L. Rep. 1. Hutton V. Whitehouse, 2 Jur. N.S. 379, as to setting aside a Judge's order for leave to a plaintiff to proceed in an action against a British subject resident abroad, under sec. 35 of C. L. P. Act, 1866. m ■■.'■»^'t-. *■ --"^'911 pjri ^.4i tmmm ■ it - t.. ' force 3se iu ofl&ce led, at office filed ;d. a de- duly (hmcnt ler the t i« ttULES. 35 it^ E. K. 138. Fin. 541. E. R. 139. Fin. 641. E. R. 140. Fin. 641, E.R.I. Fin. 564. discharged generally without any special directions discharged matter of costs, it is to be understood as upon the with costs. AFFIDAVITS. 109. The addition and true place of abode of every person making an affidavit shall be inserted therein. 110. In every affidavit made by two or more de- ponents, the names of the several persons making such affidavit shall be written in the jurat. 111. No affidavit shall be read or made use of in any matter depending in court, in the jurat of which there shall be any interlineation or erasure. 112. Every affidavit, sworn within this Province, to be hereafter used in any cause or civil proceeding, shall be written in a plain legible hand, and shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be num- bered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. No costs shall be allowed for any affidavit or part of an affidavit substantially violating this rule ; nor shall any affidavit violating this rule be used on any motion to obtain or to show cause against a rule nisi, without the express permission of the Court. This rule is not to be in force till Michaelmas Term next. 113. "When any affidavit is sworn before any Judge or any commissioner by a person who from his or her ^- ^- i^^- signature appears to be illiterate, it shall be certified in the jurat that the affidavit was read in the presence of the party administering the same tp the party mak- ing the same, and that such last mentioned party seemed perfectly to understand the same, and also wrote or made his or her signature or mask in the presence of the party administering the oath. 114. No affidavit shall bo read or made use of for any purpose, if sworn before the attorney ot the party in the cause on whose behalf such affidavit is made, 36 RULES. R. R. 14-t. Fin. 6n. E. E. 145. Fin. 611. E. B. 146, Fin. 642. E.R.149. Fin. 542. or before the clerk or partner of such attorney ; but this rule shall not extend to affidavits to hold to bail. 115. An affidavit sworn before a Judge of either of the courts shall be received in the court to which such Judge belongs, though not entitled of that court, but not in any other court, unless entitled of the court in which it is to be used. 116. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be made use of in court or before the Master, unless by leave of the court or a Judge. 117. No rule, which the court has granted upon ' the foundation of any affidavit, shall be of any force unless such affidavit shall have been actually made before such rule was moved for and produced in court at the time of making the motion. 118. In all cases in which a defendant appears in person, and an application is made to the Judge of the proper county court for any summons under the authority of the Common Law Procedure Act, 1856, which ought to be served on the defendant, the affi- davit on which the plaintiff grounds his application shall, amoEg other things, state that the defendant resides at some place within the jurisdiction of such county court. RULES, SUMMONSES AND ORDERS. 119. Every rule of Court shall be dated the day of the month and year on which the same is drawn up, and need not specify any other time or date. 120. All rules which by the English practice may be had as a matter of course upon signature of coun- sel at side bar, or are given by the Master, Clerk of the Papers or Clerk of the Rules in England, are to be given by the Clerks of the Crown and Pleas, or their deputies, in the same manner, and the same may issue on any day in term or in vacation. I"ey ; but Id to bail. I of either to which Id of that 3ntitled of for filing shall be unless by nted upon any force lally made ed in court appears m e Judge of I under the Act, 1856, nt, the affi- application e defendant ion of such ERS. ed the day ae is drawn or date. Tactice may ire of ooun- er, Clerk of land, are to J Pleas, or i the same ion. X ^ \ , t K. R. 131. Flo. 642. E. R. 152. Fin. 642. R. R. 153. Fin. 542. E.R.154. Fin. 642. 11ULE8. 87 121. A rule may be enlarged if the Court think fit, without notice. 122. All enlarged rules shall be drawn up for the first day in the ensuing terra, unless otherwise or- dered by the court. (I) 123. It shall not be necessary to issue more than one summons for attendance before a judge upon the same matter, and the party taking out such summons shall be entitled to an order on the return thereof, unless cause is shewn to the contrary. 124. An attendance on a summons or on an ap- pointment before a master for half an hour next im- mediately following the return thereof, shall be deemed a sufficient attendance. 125. All written consents upon which orders for signing judgments are obtained shall be filed and ri'n^'642. " preserved by the clerk of the judge's chambers (m) 126. In actions in which the defendant has ap- {)eared by attorney, no such order shall be made un- fin^'g^f" ess the consent of defendant be given by his attorney or agent. 127. Where the defendant has not appeared, or has appeared in person, no such order shall be made. Fin. 542. ' unless the defendant attends the judge and gives his consent in person, or unless his written consent be (l\ It is not the practice oi the Queen's Bench in Eng- lana to seire an enlarged rule. — Anon. 1 Smith, 199. (m) One partner has no implied authority to consent to an order for judgment in an action against himself and his co-partner. — Hambridgc v. De la Grouse, 3 C. B. 742. The order does not operate as a stay of proceedings during the time given by it for the payment of debt and costs, un- less so expressly stated. Michael v. Myers, 6 M. & Gr. 702. If any fraud be practised on defendant in obtaining the or- der, it may be set aside with any proC'Cedings had under it. Thorne v. Neale, 2 Q. B. 726. And under very special circumstances even without fraud. Wade v. Simeon, 13 M. & W. 647. « ! ( i. i m 88 E. 11. 158. Viu. 642. E. R. 159. Fin. 543. K. R. 160. fin. 643. E. R. 161. fin. 642. KULES. attested by an attorney acting on his belulf, unless the defendant is a barrister or attorney. 128. Where a judge's order is made during vaca- tion it shall not be made a rule of court before the next term, unless in any case otherwise provided for by statute. 129. When a judge's order, or order of nisi prius is made a rule of court, it shall be a part of the rule that the costs of making the order a rule of court shall be paid by the party against whom the order is made, provided an affidavit be made and filed that the order has been served on the party, his attorney, or agent, and disobeyed. 130. Rules to shew cause shall be no stay of pro- ceedings unless two days' notice of the motion shall have been served on the opposite party, except in the cases of rules for new trials, or to enter verdict or non-suit, motion in arrestofjudgmentor for judgment non obstante veredicto, or to set aside an award, or to enter a suggestion, or by the special direction of the court. NOTICES— SERVICE OF, AND OF RULES, PLEADINGS, &c. 131. All notices required by these rules or by the practice of the court shall be in writing. 182. (w) A copy of every declaration and subse- quent pleading shall be served upon the opposite party, whether the case be bailable or not bailable, and whether the action be against any person having privilege or otherwise, and as well where the plaintiff has entered an appearance (o) for the defendant, as where the defendant has appeared in person or by at- torney. (n) This is rule No, 4 of Easter term, 5th Vic, referred to in C. L. P. Act, 1856, section 22, (o) Under the C. L. P. Act this cannot be the case, though this is the language of the original rule. '^ ,'V i .4 -. KULEa. 39 ilcss raca- tho for 133. Where the residence of a defendant is un- JjJ^gJJ^. known, pleadings, rules, notices, and other proceed- ings may be stuck up in the proper office, but not without previous leave of the court or of a Judge. 134. It shall not be necessary to the regular service «. r. 103, of a rule or order that the original rule or order shall *''°' ^■^• be shown, unless sight thereof be demanded, except in cases of attachment 135. Service of pleadings, notices, s immonses, e. r. i64. orders, rules, and other proceedings shall, after the *^*°" ^'*^' first day of Michaelmas term next, be made before seven o'clock p.m., except on Saturdays, when it shall be made before three o'clock p.m. If made after seven o'clock p.m. on any day except Saturdays, the service shall be deemed as made on the following day ; and if made after three o'clock ]).m. on Satur- day, the service shall be deemed as made on the fol- lowing Monday. 13G. A book shall be kcp by the clerk of the Crown of each of the courts in Toronto, at his office, to be there inspected by any attorney or hxj, clerk without fee or reward; and every attorney practis- ing in the said courts and residing within the city of Toronto or the liberties thereof, or having an office and carrying on his business within the said city, shall enter in such book (_in alphabetical order) his uame and place of business or soma other proper place within the city where he may be served with pleadings, notices, summonses, orders, rules, and other proceed- ings ; and as often as any such attorney shall change his place of business or the place where he may be so served as aforesaid, he shall make the like entry thereof in the said book ; and all pleadings, notices, summonses, orders, rules, and other proceedings which do not require a personal service shall be deemed sufficiently served on such attorney, if a copy thereof shall be left at the place lastly entered in such book with any person resident at or belonging 40 RULl'.S. .>/ to such placo ; and if any euch attornc} HhuU neglect to make such entry, the fixing up of any notice or of the copy of any pleadings, notice, summons, order, rule, or other proceedings for such attorney in the office aforesaid shall be deemed a sufficient service. 137. (p) Every other attorney practising in the said courts shall enter in the said book (in like alpha* betical order) his name and place of business, and also in an opposite column the name of some attorney having an office and carrying on business in the city of Toronto as his agent; and all pleadings, notices, summonses, orders, rules and other proceedings which do not require a personal service, shall be deemed sufficiently served on such first mentiohed attorney, if a copy thereof shall be served on his booked agent in manner mentioned in the next preceding rule. And if any such attorney shall neglect to make the entry in this rule mentioned, the fixing up of any notice or of the copy of any pleading, notice, sum- mons, order, rule, or other proceeding for such at- torney in the Crown office at Toronto, shall be deemed a sufficient service. And as often as any such at- torney shall change his place of business or his agent, he shall make an entry in the said books of such change, which last entry shall supersede all former ones. Provided always that in all cases service on (p) See Com. Law Procedure Act, s. 9, which enacts that service of all papers and proceedings subsequent to the writ shall be made on the defendant or his attorney ac- cording to the existing practice in the absence of special provision in that Act, and that if the attorney of eithex* party do not reside or have not a duly-autltorised agent re- siding in the county wherein such action was commenced, service may be made on the attorney, or on his duly- autho- rized agent in Toronto ; or if he have no such agent, by leaving a copy of the paper ibr him in the office where the action was commenced, murked on the outside as copies left for such attorney. See also Parke v. Anderson, 6 U,C. rep. Q, B. 2. Houghton v. May, 1 Prac, rep. U. C. 160. Tay- lor V. Carver, C. P. U. C, Easter term last. Jneglcct Ico or of I, order, in tho Irvice. in tho le alpha- D88, and ittorney tho city notices, ■8 which deemed ittorney, cd agent ng rule, nake the ) of any cc, sum- such at- e deemed such at- lis agent, I of such II former ervice on ich enacts sequent to torney oc- of special of eithex* [ agent re- mmenced, ily-autho- agent, by wrhere the copies left U.C. rep. EiO. Tay- IlUfiKS. 41 tho attorney at his office or usual vluco of business in tlio umnncr mentioned in tho .^t preceding rule, instead of on the booked agent, shall bo deemed good iicrvico. 188. In all cases where a party sues or dofendso. l. p. Act, in person, he shall upon issuing any writ of summons ^*^'^"' '■ ^' or other proceeding, or entering an appearance, leave a memorandum with tho clerk or deputy clerk of the Crown, who shall file tho same as a paper in the cause, stating an address or place in tho county, within which the first process in the cause shall have been or shall be sued out, at which all pleadings, notices, summon- ses, orders, rules, or other proceedings not requiring personal service may be left : such address or place to be not more than two miles from such office ; and if such memorandum shall not be loft, or if such ad- dress or place be more than two miles from tho office aforesaid, then the opposite party shall be at liberty to proceed by sticking up all pleadings, notices, sum- monses, orders, rules and other proceedings in such office. 139. In all cases where a plaintiff shall have sued e. r. 107. out a writ in person or a defendant shall have appear- *'*"• ^**- ed in person and either party shall by an attorney of tho court have given notice in writing to tho opposite party, or tho attorney or agent of such party, of such attorney being authorized to act as attorney for the party on whose behalf such notice is given, all plead- ingS, notices, summonses, orders, rules and other proceedings, which according to the practice of the courts are to bo delivered to or served upon tho party on whose behalf such notice is given, shall thereafter be delivered to or served upon such attorney. ATTACHMENT. 140. Bulcs for attachment shall be absolute in the e. r. les. first instance in the two following cases only: Ist, ^'''•^**' for non-payment of costs on a master's allocatur; !•. t E. B. 1C9. 9 E. R. 170. l!'iii.644. E. R. 172. Fin. 544. nULEH. and 2ntl, against a sheriff for not obeying a rule to re- turn a writ or bring in the body- AWARDS. 141. AVhero a rule to shew cause is obtained to sot aside an award, the several objections thereto in- tended to be insisted upon at the time of moving to make such rule absolute shall be stated in the rule to shew cause. 142. Costs may bo taxed on an award although the time for moving to set aside the award has not elapsed. INSOLVENT DEBTORS. 143. The affidavit on which a debtor in close cus- tody in execution shall apply under the Common Law Procedure Act, 185G, section 300, for his dis- charge from custody, shall not be sworn sooner than the day after that on which the notice of application shall expire, and shall in all cases state whether any interrogatories were served before the expiration of the ifteen days' notice, and if so, whether answers there- to upon oath have been duly made and filed, and when notice thereof was given. CLERKS AND DEPUTY-CLERKS OF THE CROWN. 144. On every appointment made by the clerks or deputy clerks of the Crown, the party on whom the same shall be served shall attend such appoint- ment without waiting for a second, or in default there- of such clerk or deputy may proceed ex parte on the first appointment. 145. No business shall be transacted in any of the offices of the courts, either in procuring or suing out process, or in re-entering judgments or taking any proceeding whatever in a cause, unless upon the per- sonal attendance of the party on whose behalf such business is required to be transacted, or of the coun- sel or attorney of such party, or the clerk or agent of the attorney, or the clerk of the agent. Ic to rc- lincd to rcto in- ang to rule to llUfiKS. 140. Tho offices of tho clci-ks of tho Crown and IMoas shiill bo kept open as follows, tlmt is to nny : — during tt-rni from ten in the morning until four in the afternoon, and (except between the first day of July and tho twcnty-tirst day of August) at other times from ten in the morning until three in the af- ternoon — Sundays, Christmas-day, Good Friday, Easter Monday, New Year's-day and tho birth-day of tho Sovereign, and any day appointed by general proclamation for a general fast or thanksgiving, ex- cepted; and between the first day of July and tho twenty-first day of August, tho said offices shall bo open from eleven in tho forenoon until two in tho afternoon. 147. All rolls and records shall be upon parchment or paper of such width and length as the clerks of tho Crown shall prescribe by written notice, to be put up in some conspicuous place in their respective offi- ces and in (he offices of the several deputy clerks of tho Crown, and none of these officers shall be bound to receive any roll or record not made up in confor- mity to such notice, and such rolls and records shall not exceed, when folded, fourteen inches in length and four in breadth, written upon at least a sheet of paper, and folded accordingly. 148. Whenever a deputy clerk of the Crown is required to transmit any roll, record or paper in any cause to the principal office in Toronto, he shall en- close and seal up the same in an envelope and shall address such envelope to the clerk of the Crown in the proper office, and he may thereupon deliver such sealed envelope to the attorney who has required the transmission thereof, (taking a receipt from him), or may send the same by post, and in no case shall any original papers be delivered out of the custody of tho deputy clerk of the Crown, except for the purpose of being transmitted to Toronto, unless by order of the court or a judge. / ■•MM* / /' '/ ' 44 lUJLKU. 140. In counties where the petit jurors nre paid bv the county or tinitod counties, the uinihhiil or clerk of us.size, or person dischurfijin}; his duties, hliall previous to the entry of each record be entitled to demand and receive from the party enterinj^ the same the sum of seven 8l)illing8 and six pence ibr each record marked " inferior jurisdiction," and the sum of fifteen shillin}»s for every other record. CLERK OF THE PROCESS. 150. The clerk of the process shall, on receiving a prircipf to bo tiled by him, issue any writ of sum- mons recjuired for the commencement of an action ; and on receiving iijirwcijic with the atHdavit of debt required by law, or a ^trsecipe and uffidavit with a Judge's order for the arrest of a party, to bo also filed by him, shall issue any writ of capias for the com- menccraeut of an action ; and on receiving a precipe, aflUdavit and a Judge's order, to be also filed by him, shall issue any writ of attachment against an abscon- ding debtor. 151. After issuing cither of such writs for the com- mencement of an action in one of the superior courts, he shall issue the next writ, whatever it may be, for the commencement of an action in the other of such courts. 152. All other writ.^ required by the Common Law Procedure Act, 1850, to be issued by the clerk of the process to the parties or their attoracys, shall be issued according to the cHtabli^hed praolftee. 153. The cierk of the process shall attend in his office at all tiittt*»8, when the clerks of the Crown and Pleas arc retjuired to attend in their respective offices, and shall permit all necessary searches respecting writs SK) issued by him, and the affidavits and papers whereon such writs are c^ounded, and shall grant office copies of all such affidavits and papers on pay- ment of the usual fees. ( I / TAXATION OF COSTS AND DIIIKOTIONS TO TAXINll OFFICKHS. If) [, Tho practlco of the courtH ns to costfl iind the HcrviccB to bu ullowoil fur in oil proceedings in tho taxation of coats, nhull be governed, in nil cases not otherwise provided for, by tho established practice of tho Court of Queen's Bench in England. 155. In any action of tho proper competence of H.'tfi:iAii tho county court in which final judgment shall be obtained without a trial, and in which tho pape- s shall not bo marked " inferior jurisdiction," no more than county court costs shall be taiiod, witliout tho special order of the court or a judge. 156. In any action of tho proper competence of the county court, in which tho venue could not, ac- cording to the law and practice of the superior courts, be changed upon tho usual affidavit only, it shall not be a sufficient ground to certify ut the trial thereof thai it is a fit causo to have been withdrawn from the county court, and commenced in cither of the superior courts, or for either of those courts or for a judge in chambers to order tho allowance of any other than county court vmin, that tho defendant or defeudants, or any ot them, had removed from tho county in which f he debt was contracted, or the causo of such suit or acuroo accrued, into any other connty or elsewhere oui of such county, or that he or they resided or w*?iv served with process in any other place than within such county. 157. Fca shall in no caso be taxed as between party and party to more than two counsel upon any trial or argument. 158. No counsel fee shall be taxed on ai , rulo which may be obtained without filing a motion paper in court in term. 159. At the foot of, or accompanying every bill of costs, when tho action ia special and the disburse- 15 I I 1*1 4(> * RULES. ments are large, and the fees paid to counsel exceed those which the taxing ofl&cer is permitted to tax, there shall be an affidavit of the attorney in the cause or the agent or clerk having had the management thereof, that the disbursements charged in such bill are correct and were actually paid, and that the several Bums charged for mileage were actually paid (naming , . , the party to whom payment was made), that the sum ' i- .A.uf* of £ with brief at trial or argument, or as the case may have been, was paid to Mr. , and that the c. L. p. Act, 1860,8.311. \' ] pleadings are special and were revised by Mr. . 160. In all cases an affidavit of payment of mile- age, and to whom paid, is required. 161. When judgment is signed on a cognovit, or on a judge's order authorising the plaintiff to sign judgment, no declaration to ground judgment shall be necessary or allowed on the taxation of costs. 162. The costs of attendance by counsel before a judge in chambers shall in no case be allowed as be- tween party and party, unless the judge shall certify for such allowance. 163. Any number of names may be included in one Suhpcena, and no more than one shall be allowed on taxation of costs, unless a sufficient reason be es- tablished to the satisfaction of the taxing officer for the issuing more than one. 164. The same fees shall be taxed and allowed to coroner for services rendered by them in the execu- tion and return in process in civil suits as would be allowed to a sheriff for the same services, and when, according to the nature of the process and the service rendered thereon, the sheriff, if he liad discharged the same duty, would have been entitled to pound- age, the same poundage shall be allowed to coroners, and each coroner shall be allowed one shilling for every juror necessarily summoned, and whose name is returned to the clerk of assize, in lieu of any other fee for summoning jurors. UL'LES. 47 lexceed to tax J •■ cause foment bh bill [several laming le sum fihe case lat the 1G5. All affidavits of iucreaso must Le made by the attorney in the cause or some clerk having the man- agement thereof, or by the client. They must set forth the sums paid to counsel, naming them, and for what service, the names of witnesses, their places of abode, the places at which they were subpoenaed, and the distance which each such witness was necessarily obliged to travel, in order to attend the trial, that every such witness {q) was necessary and material for the client in the cause, that they did attend, and that they did not attend as witnesses in any other cause. (or otherioise, as the case may he.') The number of aays which each witness was necessarily absent from home in order to attend such trial must also be accu- rately stated. If an attorney attends as a witness, it nmst be stated whether or not he attended at the place of trial as attorney or witness in any other cause, and whether or not he had any other business there. The day on which the trial occurred should be stated. If maps or plans were used at the trial, the necessity for them must be shewn in the affidavit, or no allow- ance will be made for them ; the sum paid for them must also be set forth, and that thev were prepared or procured with a view to the trial of the cause. The taxing officer is authorised in such case to make a reasonable allowance for maps and plans. {q) Where a witness is rejected at nisi prius, and the ruling of the Jadge is acquiesced in by the parties, and up- held by the court, the expenses of his attendance is not allowed on taxation as between party and party. — Qalloway V. Keyworth, 15 C. B. 228. So, where a witness is rejected by an arbitrator, whether upon a sufficient or an insufficient ground. — lb. When a cause at the assizes is over at three o'clock in the afternoon, witnesses may reasonably be al- lowed the following day for their return home, though their place of residence be distant only about fifty miles, and ac- cessible by trains on the same evening. — Fryer v. Sturt, 16 C. B. 218. It is not a general rule that parties, if wit- nesses, are to have an allowance for their attendance. — Dowdell V. Australian Royal Mail Steam Navigation Co., 3 El. & Bl. 902. s^ J RULES. E. R. 174. Fin. 545. MISCELLANEOUS. 166. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules of practice of the courts, the same shall be reckoned inclusively of the first and last day, unless the last day shall happen to fall on any day on which the Crown offices arc not required to be open, in which case the time shall be reckoned exclusively of the last day. (r) 167. Wherever the word folio is used in any rulo or order, it shall be deemed to mean one hundred words. 168. In all cases unprovided for by statute or rule of court, the practice as it existed in these courts before the passing of the Common Law Procedure Act, 1856, shall be followed. FORMS OF PROCEEDINGS. 169. The forms of proceedings contained in the schedule annexed, marked A, may be used in the cases to which they are applicable, with such altera- tions as the nature of the action, the description of the court, the character of the parties, or the circum- stances of the case may render necessary ; but any variance therefrom, not being in matter of substance, shall not affect their regularity. 170. From and after the last day of this term, the tables of costs in civil actions in the courts of Queen's Bench and Common Pleas shall be rescinded, and the co^ts set down in the schedule annexed, marked B, shall be those allowed in taxation. (r) This rule does not apply to the computation of days, under the Common Law Procedure Act, 1856, for signing judgment for non-appearance to writs specially endorsed. — Rowberry v. Morgan, 18 Jur. 452. B ^Iv RULES ORDERS AND REGULATIONS AS TO PLEADING AND PRACTICE, MADE BY THE JUDGES, IN PDR8UA»CB OF TBK COMMON LAW PROCEDURE ACT, 1856. TRT RULES OF PLEADING. : r TERM, 26 VICTORIA. Where.\&< ^ dtir the aathority of the Statute of Upper Canada, 7 William 4th, chapter 3, the Judges of the Court of Queen's Bench in Upper Ca- nada made certain rules, orders, and regulations as to the mode of pleading and other matters, which, by a statute passed in the sixth year of her Majesty's rei<;n, chaptered 19, were confirmed. And whebeas it is provided by the Common Law Procedure Act, 1856, among other things, that it shall be lawful for the Judges of the Superior Courts of Common Law in Upper Canada, or any four or more of them, of whom the Chief Justiceu shall be two, by any rule or order to be firom time to time by them made in term or vacation, at any time within five years after the Common Law Procedure Act, 1856, shall come into force, to make such Airther alterations in the time and mode of pleading, and of entering and transcribing pleadings, judgments, and other proceedings in actions at law, and in the time a^d manner of objecting to errora m pleadings and c ^ ,r' i IJ ■ -' 50 RULE8. other proceedings in actions at law, and in the time and manner of objecting to errors in pleadings and ot^ ;r proceedings } and in the mode of venfying P' vaS and obtaining final judgment without trial in certain cases, as to them may seem expedient, any* thing in the said Act to the contrary notwithstand- ing ; and that all such rules, orders, or regulations shall be laid before both Houses of the Parliament of this Province, if Parliament be then sitting, immedi- ately upon making the same ; or if Parliament be not sitting, then wiUun twenty days after the next meet- ing thereof; and that no such rule, order, or regula- tion shall have effect until three months after the same shall have been so laid before both Houses of Parliament; and any rule, ord^r, or regulation so made shall, ftom and after suoh time u aforesaid, be binding and obligatory on the said courts and on all courts of error and appeal in this Province into which the jnd^ent of the said court, or either of them, shall be removed, and be of like force and effect as if the provision contained therein had been expressly enacted by the Parliament of this Province : Provided that tka Governor of this Province by proclamation, or eithw House of Parliament by nny resolution at any time, within three months next aner such rules, orders, or regulations shall have been laid before Par- liament, may suspend the whole or any part of such rules, orders, or regnlationb. Amp whebxas it is expedient, for the effectual exeeution of th<^ said O(»nmon Iaw Procedure Act, 1856, thi^ the said rules, orders, and regulations re- spectively made in pursuance of the said Act of the Parliament of Upper Canada should be repealed, and that other rules, orders, aud regulatioqp should be framed in lieu thereof. It is therefore Ordered, that from and aftw the first day of Easf.er term next inclusive, unless .Parliament shall in tide meantime otherwise enact, the RULES. said rules, orders, and regulations, made in pursuance of the said Act of Upper Canada, shall be and the the same are hereby repealed ; excepting so far as the same or any of them are necessary or applicable to any pleadings, proceedings, or otner matters to which they relate, nad or taken preyious to the said first day of Easter term next, and the following roles, orders, and regulations shall be in force, that is to say : — 1. (a) Ezeepias hereinafter provided,8everal counts on the same cause of action shall not be allowed, and any count or counts used in violation of this rule, may, on the application of the party objecting within a reasonable time, or before an order made for time to plead, be struck out or amended by the court or a Judge, on such terms as to costs or otherwise as such court or Judge may think fit. 2. (h) Several pleas, replications, or subsequent (a) nw several indebitatus oonnts eiven in the schedule to the C. L. P. Act, 1866, when statodnnder one allegation of the plaintiff's stdng ** for money payable by the defend- ant to the plaintiff," eonstltute only one count. — MeOre^or T. Grayes, 8 Exoh. 84 ; Morse v. Jamefl, 8 Dowl. & L. 240 ; et Tide Sp>« y. Thelwell, 4 Dowl. 512. The plaintiff may recoyer the whole of his cHihn, on any of the oonsidera- tions thus stated.— Dawson y. Collis, 10 C. B 626. Two counts upon the same agreement introduoed into the declara- tion, for the evident purpose of removing a difficulty as to its legal effect, will not be allowed. — Smith y. Thompson, 6 C. B. 486. It does not appear to be a C'-'eet test to ascertain tisat nothing can be recovered under one set of counts, wiif<3h eannot be recovered under another. — Qilbert V. Hales, 2 D. & L. 227 ; Bulmer v. Bonsfield, 9 Q. B. 986, Lu^'s Prac. 866. The question is, « Are the counts dif- ferent on the face of them ? Can it be said, by looking at them, that the same evidence will applj to either count T" — Gilbert v. Hales, supra ; Gaboon v. Burford, 18 M. & W., 186 ; Ramsdenv. Gray, 7 C. B. 061. (A) On an application to rescind the order of a Judge al- lowing several pleas, the plaintiff is not confined to the 6b- 51 i ♦■ 52 RULEI$. pleadings, or several avowries, or cognizances founded on the same ground of answer or defence, shall not bo allowed, provided that on application to the court or a ju** ; to strike out any count, or on an objection take .efore the Judge on a summons to plead several raiNttns against agents for not accounting, such pleas will operate as a denial of any express or implied contract to the efieot alleged in the declaration, but not of the breach. To causes of action to which the plea of ** never was indebted" is applicable, as provided in Schednle B. (32) of the Common Law Procedure Act, 186tf, and to those of a like nature, the plea of non auump- »tt shall be inadmissible ; and the plea of " never was indebted" will operate as a denial of those matters of fact from which the liability of the defendant arises, exempli gratidy in actions for goods bargained and sold, or sold and delivered, the plea will operate as a denial of the bargain and sale, or sale and delivery, in point of fact; in the like action for monev had and received, it will operate as a denial both of the receipt of money and tie existence of those facts, which make such receipt by the defendant a receipt to the use of the plaintiff. 7. In all actions upon bills of exchange and promis- sory notes, the pleas of " non a9»umpsit" and " never indebted" shall be inadmissible. In such actions therefore, a plea in denial must traverse some matter of fact, exempli gratid, the drawing, or making, or endorsing, or accepting, or presenting, or notice of dis- honour of the bill or note. 8. In every species of actions on contract, all mat- ters in confession and avoidance, including not only aULS3. those by way of diaoharge, but ^hose which shew the transaction to be either void or voidable in point of law, on the ground of fVaud or otherwise, shall be specially pleaded, exempli grattd, infancy, coverture, release, payment, performance, illegality of consider- ation either by statute or common law, drawing, en- dorsing, accepting bills, &c., ornotcsby way of accom- modation, set off, mutual credit, unseaworthiness, mis- representation, concealment, deviation, and various other defences, must be pleaded. 9. In actions on policies of insurance, the interest of the assured may be averred, thus, " that A, B, C, and D (or some or one of them), were or was inter- ested,'' ka. And it may also be averred '' that the insurance was made for the use and benefit, and on the account of the persons so interested." 10. In aetions on speoialties and ooyenanta, the plea of non «c//ac»^r*-'»"«-' r the opinion of the S {date of Jssue BULKS. „( the Trial- ^j A. D., Afterwards on tte J^^^^y (^„ TJmUd at "*« one ot tne Counties) of *<*"*,„ .^signed to t^e tte jnstioeB of our I«dy the ^ ^ <• xj„t«d XoAua in «nd for tne wu" „:.i,:n mentioned W C^nties) eome the P^^'^JJ^^^entioned .nd tS tes^eetive f ^""^Sy^* Onited Counties) T«Tv of the said i^oumy v. . g^orn to ^efn^summoned ^^^^^lUwe^i S^e 'aid patties, tStl^e matters in question b^^^^^^^ ^^^,.,e or Son their oaths say, ^^fy%ndfor the plain- Tffand in the terms (^^fjH tried then tay) as ^ trX several I-^^f':'jtiSo.^^ jay that^ Z the first Issue jowed, ^l?°;„^^eo/«/ie I»8M« «»*« 01 \ Arbitrator under J I. r / I * >. .mil If -r"" -— 'J« ; 62 If 1 ij KULES. 7. Postea on the Issue numbered 3, ante. ( jTAe same as in ordinary cases except that there u no assessment of damages.) 8. Postea where a Judge, upon a Trial be/ore fttm, directs a reference on some of the Issues and of the Accounts involved therein, and takes a Verdict on others of the Issues, referring the amount of damages under sec. 156. 18 , (the ia the at the Afterwards on the day of Commission day of the Assizes) at County (or United Counties) of Assizes tnere holden before the Honorable one of Her Majesty's Justices of the Court of for Upper Canada come the parties within mentioned by their Attorneys within mentioned, and a Jury of the said County (or United Counties) being summoned, also come and are sworn to try the matters in question between the said parties^ and as to the Plaintiffs claim in the Count of the Declaration within mentioned, it appears to the said Judge that the questions arising thereon involve tfie investigation of long Accounts on the Plaintiff's side, and that the questions arising on the Defend- ant's plea that the Plaintiff at the commencement of this Suit was and still is indebted to the defendant in an amount ec^ual to (or greater than as the ca$e may be) the Plaintiff's claim, within mentioned, in- volve the investi^tion of long accounts on the defendant' 9 side which cannot m conveniently tried before him. And hereupon the said Judge orders and directs that a verdict be entered on each of the Issues oil the said Count.of the declaration in favor of the Plaintiff, ezag^t*l|ipithe Issue on the f^ Count , that the alleged 6t accrue within six years that such verdict shall be he matters in difference between plea to the said cause of Action before this suii subject to and thai the said parties on the said Count except as to Z' itf^ » -^..«? IhMUlWWT- T RULES. the said last mentioned plea be referred to the award of upon the terms that {set forth the terms of the order) and as to the said plea so excepted, the Jurors aforesaid upon their oath say, that the alleged cause of Action in the said Count did accrue within six years next before this suit. And as to the Plaintiff's claim in the Count {or Counts^ within mentioned, the Jurors aforesaici upon their oath say that the defendant did not promise as alleged. Therefore, &c. {Thi» is ovly given as a general guide and must be varied accord- ing to the Pleadings, terms of reference, and circumstances of each case.) 9. Farm of Judgment for Plaintiff on a Verdict. {Copy the NUi Prius Record^ and ihen^moceed thus) : Afterwards, on the ,/?4i/day of ^^ > in the year of our Lord y (dm/ of signing fingl Judgment) come the parties-aforesaid by their respect- ive attorneys aforesaid (pr a« the case- may be), and The Hon. Mr. Justice J' ^ , , assigned to take the . Assizes in and for the sai^. county, ^or united coun::. ties) before whom the said' Issue was (or 'Issues were ') tried, hath sent hither his Record had before «/ him, in these words,^'(&c., copi/ thepostea). TL^re- v fore it is considered, that the plaintiff do recover against the defendant the said moneys, by the Jurors > aforesaid, in form aforesaid, assessed.' (or if the action he in debt, and the Jury do nof assess the debt, but only the davtiages, then say do recover againsit the defendant the said debt of £ , and the moneys by the Jurors afores^d, in form aforesaid assessecf,) V and also £ ^ , for his costs of suit, by the Court ^ here, adjudged Off increase to the plaintiff, which said moneyB and costs, (or debt, damages and costs) in the whole, amount to £ ^^. (In the margin of the Roll, opposite the words ** Therefore it is consid- . ered," ivrite << Judgment signed the day of A. D., stating the day of signing the Judg- ment). P / r^-^ 61 RULEfl. 10. Form of Foitea, on a verdict finding a balance in favor of a defendant, on a plea of set-off , and on other phas. Afterwards, on the day of , A. D., (fhe commiash n o'ay of the Assizes,") before the Hono:iable , one of the Justices assigned to take the assizes in and for the within county, {or united counties) come the parties within mentioned by their respective attorneys within mentioned, and a jury of the said county (or ' united counties ') being summoned, also come, who being sworn to try the mattei-s in question between the said parties, upon their oath say, (if non assumpsit was the first pled) as to tLe first issue within joined, that the defendant did not promise as within alleged (or if the first plea was, that he never wa^s indebted say " that the defen- dant never was indebted as within alleged/') And as to the second issue within joined, the Jurors afore- said, upon their oath aforesaid, say that the plaintiff was, and is indebted to the defendant as within alleged, in an amount greater than the plai£jti£b claim in the declaration within alleged; and they further say, that the balance due from the plaintiffs to the defendants, upon the matters contained in the said declaration, and the said second plea, amounts to £, . Therefore, &c. 11. Form of Judgment for Defendant thereon. {Proceed in the usual form to the end of the Postea, and then thus) : Therefore, it is considered that the plaintiff do take nothing by his said writ, but that the defendant do recover against the plaintiff the sum of £ , in form aforesaid, found to be due from the plaintiff to the defendant, together with £ , for hb costs of defence — amountmg in the whole to £ . {In the margin of the roll opposite the words "Therefore it fc considered" write "Judgment signed the day of , A D. 7\ RULES. 12. Form of Judgment on a Special Case staled hy an Arbitrator (vide ante No. 4.) (Copy the Special Case, and then proceed thus) Afterwards on the day of 18 , come here the parties aforesaid and the Court is of opinion that (state the opinion of the Court on the question or questions stated in the Case, in the affir- mative or negative as the casr^ may he) Therefore it is considered that the Plain tif io recover against the defendant the said £. , and £ , for his costs of suit. (In the margin opposite the words " Therefore it is considered &c., write Judgment signed the day of 18 " inserting the day of signing final Judgment.) 13. Form of an Isvue when it is directed to he tried hy t!ie Judge of the County Court. (Commmce the Issue as in Form, No. 1 above prescribed, then copy all the pleadings, and after the joinder of Issue proceed as follows) And forasmuch as the sum sought to be recovered and endorsed on the copy of the original process served, does not exceed X , (or and ionusmuch as the debt or demand sought io be recovered is alleged to be ascertained by the signature of the defendant) here- upon on the ■ day of in the year 18 , (date of the Writ of Trial) pursuant to the Statute, the Judge of the County Court for the County (or United Counties) of is commanded that he proceed to try such Issue (or Issues) at the first (or second.) Sittings to be next hereafter holden of the said County Court by a Jury returned for the trial of Issues joined in the said Court — And when the same shall have been tried that he make known to the Court here what shall have been done by virtue of the Writ of our Lady the Queen to him in that behalf directed, with the finding of the Jury 65 KWitm.!, h / RULES. thereon endorsed, within ten days afler the execution thereof. 14. Form of the Writ of Trial Victoria, by the Grace of God of the United KJogd^LVv of Great Britain and Ireland, Qucon, deferuler of the Faith. To the Judge of the County ( 'ourt of Whoreaa A. B. pkiatiff in omk Court of Queeos Bench (or Common Pluas) in and for Upper Canada at Toronto on the aay of 18 , (th« date of the summons or oJterfrgt Process) iuiplsaded C. D. in an action for, Ac, (here recite, the Dedara- tion in the past tense.) And whereas the detbndint on nliij day of last (date of the }>led)y by hx'i attorney (or as the case may 6c), oame into oiii h<'\\ covitt and said (Jiere recite the pleas and pleadii ys to the joinder of issfue.) And whereas the Bum sought to be recovered in the said action and endorsed on the Writ of Summons (or as the case may he) thereon, does not exceed £, (o*/ ). And whereas the debt or demand sought to be recovered in this action is alleged to be ascertained by the sig- nature of the defendant, and it is fitting that the issue (or issues) should be tried before you the said judge, We therefore pursuant to the Statute la such case nude and provided, command you that you do proceed to try the said issue {or issues) at the first (or second) sittings of the saia CounW^Court, to be holden next after the date of this our Writ by a jury, returned for the trial at the said sittings, of Issues joined in the said County Court, and wnen the same shall have been tried in manner aforesaid, We com- mand you that you make known to our Justices of of our said Court of Queen's Bench (or Common Pleas) at Toronto what shall have been done by vir- tue 01 Uiis writ with the finding of the jury, hereon endorsed, within ten days after the execution hereof. Witness, &c. \ RULES. 15. Form of endoncment of the Verdict on the Writ of Trial. Afterwards on the day of 18 , (Jthe day of trial) before me , Esquire, Judge of the Oountj Court within mentioned, came as well the within named Plaintiff as the within named De- fundant by their respective Attorne^j within named, (or a» the case may be) and the Jurors of the Jury whereof mention is within made being summoned also came, and being duly k.Tom to try the Issue (or Issues) on their oath said that, &o. (state the finding of the Jury as on apostea on a trial at Nisi Pruts.) 16. The like in case a Nonsuit takes place. (Proceed as in the above form but after the words " duly sworn to try the Issue within mentioned" proceed as follows) — and were ready to give their verdict in that behalf, but the plaintiff being solemn- ly called came not nor did he further prosecute his suit against the defendant. 17. Form of Judgment for Plaintiff after Ver- dict on Writ of Trial. (Copy the Issue and then proceed as folloios) — Afterwards on the day of 18 , (day of signing final Judgment) come the parties aforesaid by Iheir respective Attorneys aforesaid (or as the case may be) and the said Judge before wnom the said Issue {or Issues) came on to be tried hath sent hither the said last mentioned Writ with an endorse- ment thereon, which said endorsement is in these words to wit (copy tfie endorsement). Therefore it is considered, &c. (conclude as in otiier cases. See the form Supra No. 9. 18. Form of Entry after Judgment by default or on Demurrer, where the damages are to be assessed before a Judge of a County Court. (Copy the pleadings commencing the Issue as in 67 68 RULES. form No. 1 and proceed) nod the Defendant in his proper person {or by his Attorney) says nothing in bar or precluision of the said Action of the Plaintiff, whereby the Plaintiff remains therein undefended against the Defendant {or copy to the end of the Demurrer book and then proceed) and hereupon on the day of 18 {the day of giving Judgment on the Demurrer) oanie here as well the Plaintiff as the Defendant by their respective Attorneys aforesaid, and it appears to the Court here that the Declaration {or Replication) is good in sub- stance (or that the plea aforesaid is bad in substance.) Wherefore the Plaintiff ought to recover against the Defendant his damages on occasion of the premises above complained of by him. But because it is un- known to the Court here what damages the Plaintiff hath sustained on occasion of the premises, hereupon on the day of 18 {date of Writ of inquiry) the Judge of the County Court of the (jounty {or United Counties) of is com- manded that he diligently enquire what damages the Plaintiff hath sustained by reason of the premises at the first {or second) sittings to be next hereafter holden of the said County Court by a Jury returned at such sittings, and that he make known to the Court here what shall have been done by virtue of the Writ of our Lady the Queen to him in that behalf directed, within ten days after the execution thereof. 19. Form of Writ of Inquiry. Victoria &c. (a« in /orm iVo. 12.) To the Judge &o. (as before.) Whereas, &c. {as in form No. i2 setting out to the end of the Declaration, and proceeding as inform No. 16, according as it is on judgment by default or judg- ment on demurrer, and proceed) but because it is un- known to the said Court he^e what damages the Plaintiff hath sustained by reason thereof, and it is \1 AULE8. fitting tho tuimo sbould bo enquired of by yuu the said Judge, We therefore pursuant to the statute in such case made and provided, command you that you do diligently enquire what damages the said Plaintiff hath sustained by reason of the premises .it the first (or second) sittings to be next hereafter holden of the said County Court, by ajury returned at such sittings for the trial of Issues joined in such Court. And we further commani you that you make known to our Justices of our saiu Court of Queen's Bench {or Common Pleas) at Toronto, what shall have been done by virtue of this Writ with the finding of the Jury hereon endorsed, within ten days next after the execution hereof. Witness, &c. 20. Form of Return to he endorsed. Afterwards on the day cf 18 {day of Atsetsment) before me , Esqnire, Judge of the County Court within mentioned, came the within named Plaintiff by his Attorney within named, and the Jurors of the Juir whereof mention is with- in made, being summoned, also came and being duly sworn to assess the damages sustained by the Plain- tiff by reason of the premises within mentioned, say on their oath, that the Plaintiff hath, sustained damages on occasion thereof over end above his costs and charges by him about his suit in that behalf ex- pended to £ 21. Form of Judgment thereon. Afterwards, &o. (a» in form No. 15) came the plaintiff by his attorney aforesaid, and the said Judge before whom the said damages were assessed, hath sent hither the said last-mentioned Writ, with an Endorsement thereon, in these words, to wit (copy the Endorsement). Therefore it is considered, &c., (conclude as in other ccLses). 69 r: to RULES. ! / 22. Form of Issue f where there are Jatueit in /act to be tried, as well as damar/es to be aHHcated on de- fault, or on issues in law before the dountj/ Court. ((hmmenct as in No. 1, 002^1/ ittff the pleadings, the Joinder of Issue, adding the similiter, and inserting the Joinder of Issue to be tried by the record or the judgment by default as to part of the pleadings , or the judgment by the plaintiff on demurrer, as the rase may be, and if there be judgment by default, or judgment for plaintiff on a trial by the record or upon demurrer, proceed thus.) Wherefore the Plaintiff onght to recover against the Defendant hie damages on occasion of the premises &o. And because it is at present unknown to the Court here whether the Defendant will be convicted of the premises upon which issue is above joined between the parties or not, and because it is also unknown to the Court here what damages the plaintiff hath sus- tained on occasion of the premises, whereof it is considered that the plaintiff ought to recover his damages as aforesaid, and it is convenient and neces- saA*y that thsre be but one taxation of damages in thifi suAt, therefore let the giving of judgment in this behalf against the said defendant be stayed until the trial of the said Issue (or Issues) above joined between the said parties be tried by the Country (or if judgment on demurrer, or on the trial by the record luu not been given — tlien after the entry (^ the joinder 0/ issue in fact and the demurrer or on the trial by the record— proceed.) And because the Court here are not yet advised what judgment to give upon the premises whereof the parties have put themselves upon the Judgment of the Court (or as the case may be.") And because the Court here are not advised what judgment to give upon the pre- mises whereon issue is joined between the said parties to be tried by the record. And because it is convenient and necessaiy that there be but one taxation of damages in wis suit, and forasmuch as / ■& llULEfi. the sum sought to be recovered and endorsed on the copy of the original process served, does not exceed £ , {or forasinnch aa the debt or demand sought to be recovered is alleged to be ascertained by the signature of the defendant,) hereupon on the day of IR , {date of the Writ of Trial and enquiry) the Judge of the County Court of the County {or United Counties'; of ig commanded that he proceed, as well to try the issue (or issues) joined between the parties to be tried by the Country, as also, diligently to enquire what damages the said plaintiff bath sustained on occasion of the premises, whereof it is considered that the plaintiff ought to recover against the defendant on occasion thereof as aforesaid, (or according to th$ facts the premises whereof tne parties have put themselves upon the judgment of the Court as aforesaid, or the premises wherein issue is joined between the parties to bo tried by the Record, if Judgment shall happen to be thereupon given for the plaintiff) at the first (or second sittings) to be next hereafler bolden of the said County Court, by a Jury returned at such sittings for the trial of issues joined in the said Court, and that he make known to the Court here what shall have been done by virtue of the Writ of our Lady the Queen to him in that behalf directed, with the finding of the Jury thereon endorsed, within ten days next after the execution thereof. 23. Form of Writ of Enquiry to try the tBtuet and assess damages contingently on. dermirrer or issue by the record or where there ia judgment by default or on demurrer us to part, (^Commence the Writ as in number 17, setting out the pleadingly joinder in i%sue^ dtc. cfcc, as the case may be, and according to the suitable form given in No. 20, and then proceed.) We therefore pursuant to the statute in such case made and provided com- 71 ^ i f f, W: I* I \ 11 nULEH. luand you that you do prucoed to try tho issue {of issues) joined between tho parties, to be tried by the Country, and also diligcntlv enquire what dama- ges the plaintiff hath sustained by oocosion of the premises, whereof it is considered that tho Plaintiff ought to recover against tho Defendant his damages on occasion thereof as aforesaid {of the premises whereof the parties have put themselves upon the judgment of the Court as aforesaid or the premises whereon issue is joined between the parties to be tried by the record as aforesaid a« th9 cate may be,) if judgment shall happen to be thereupon given for the plaintiff, at the first (or second) sittings to be next hereafter holden of the said County Court by a jury returned at such sittings for the trial of issues i'oined in the said County Court — and that you make :nown to us in our said Court of Queen's iienoh (or Common Fleas) at Toronto, what shall have been done by virtue of this Writ with the finding of the jury hereupon endorsed, within ten days after the execu- tion hereof. Witness, &o. 24. Form of endorsement of Verdict thereon. Afterwards on the day of 1^ > (day of the Trial, ttc.) before me Esquire Judge of the County Court of the County (or United Counties) within mentioned, came as well the within named parties by their respective Attorneys within named (or otherwise as the case may be) and the jurors of tne Jury, whereof mention is within made, being summoned also come and being duly sworn to try the issue (or issues) and also to assess the damages sustained by the plaintiff on occasion of the premises within mentioned, on their oath, said (&c. according to the finding of the Jury on the issues, and if for the Plaintiff proceed) and the said jurors upon their oath aforesaid said that the plaintiff hath sustained damages on occasion thereof and on occasion of the other premises within mentioned, oyer and \ 7 IIULKH. 78 Verdict thereon. above his costs and charges by him about his suit iu this behalf expended, to £ 25. Form of Nonmil thereon. (Proceed as inform No. 24, to the statement that the Jury were sworn (dc — after the end of which statement, proceed as follows) were ready to give their Verdict in that behalf, but the plaintiff, being solemnly called, came not, nor did he further proBe< cute his said suit against the defendant. 26. Form of Judgment thereon. (This will be mutatis mutandis, according to th§ directions given in No. 21.) 27. Form of Entry of Judgment y where the Court or a Judge decides in a summary/ manner under section 84, before declaration. In the Queen's Bench (or Common Pleas) Upper Oanada ) The day of ^^ j ('^* to wit I day on which Judgment is signed) A. B. in his own person (or by his Attorney) on the day of 18 , sued out a Writ of Summons against CD., and the said ("!. D., on the day of 18 by his Attorney (or in person) caused an appearance to be entered tor him to the said writ (or and the said C. D., did not cause an appearance to d? entered for him pursuant to the exigency of the said Writ) and afterwards by a rule of the said Court of Q, B., (or C. P.) (or by an order of the Honorable one of tne Justices of the Court of ) dated the day of 18 , made in pursuance of the eighty-fourth section of the Common Law Procedure Act, 1856. It was ordered that the said C. D., should pay to the said A. B., the sum of £ (setting out the terms or substance of the rule or order and if costs were ordeted proceeding thus) together with the costs of the said A. B., by ♦ <. H pw fci, r . i w t' 74 ftULES. •»t ■f. ^.t ium expended in and about the said wiii'^ipfi the proceedings thereupon. And now on the ' .,■> ..<^ day of 18 , (the day of signing JuSgmeni). it IS manifestly shown that the inaid C. D., hi|b. nd| paid the said sum of £ , and the said eoett^' ^j. therefore it is considered that the said A. Bt, d^ ^^ "^ recover against the said G. B., the said sum of £ .i^^'V I f \ i 60 ordered to be paid as aforesaid and dkMl' i| for his costs of suit by the Court here adjtidj^ ^ to the said A. B., which said monies and oo^ itb whole amount to £ margin of the rule opposite the words Hher«f is considered" write "judgment signed ihif day of A. D. '' BtaUngthedif ing judgment') The like where the Ca,»e is r^erredtQ an Arbitrator, \Proc^ as in foregoing Form iVb. 27, down to the words "It was ordered/' and thenpraaeed as follows — ^It was oi-do^ed that the claim of the Plaintiff be referred to {stating the name of the referee and (he substance of the rule or order of r^erenee)-*^ And afterwards the said (referee) by his Award (or iperti- ficate) did award (or certify) uiat there was due amd payable from the si^ C. D., to the said A. jpi v^ ^ yifiimmofX i«^ now on this 4|i|yof Itl "r (the day of signimn'udjgment) It js tfo^ifiaii^ ih«wn that the saicL^^JK , i|at)i pptj^vl^' of£ ^^jl i^ T herefpre it is consider^ i|a|t ,SB|j||^^ against the said G.% , I (ihe amount awanfipdor were given by the rule oro^^er to abide the event of the reftfftlfef , for his costs. Cgnclu4§>si0i0ie ^. JVb.27.) ;:n .M , T^ two Forms Kos. 21 audZ^fnt^ h:W aUsiHd and modeled as to shit, ^sfhfii'S4if¥ afisinlg undeir section 94. . k^ r "X. ..Aftwi^ftim:^.,