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Laa diagrammes suivants illustrant la mAthoda. ire. ] i 2 3 1 2 3 4 5 6 v\ QH COl CR] X KULES OF THE COURTS 1^4 QUEEN'S BENdH AND COMMON PLEAS, MUNICIPAL COUNCIL RULES, COUNTY COURTS' EQUITY EXTENSION AND TH> f NEW DIVISION COURT RULES; T0OKTHF.W WITH A COMPLETE COMPILATION or Tax CRIMINAL LAW OF THIS PROVINCE. BY W. a. DRAPER, M. A., BARRISTER-ATLAW. TORONTO: MACLEAR & COMPANY. MDCCCLV. \\ V V ^ei\iRo ^'si% Entered according to the Act of the Provincial Legislature, in the year of Our Lord One Thousand Eight Hundred and Fifty Four, by Wihiam George Draper, in the Office of the Registrar of the Province of Canada. ^ I- \ TO «l THE HONOURABLE WILLIAM HENRY DRAPER, C. B., THIS WORK 18 AFFECTIONATELY INSCRIBET), BY THE COKPILEB, W. GEO. DRAPER. 5659 *v- '^W'»W^' " i Mi iW H |i« } El PREFACE. Nearly twelve years have now elapsed since the publica- tion, by the Hon. J. Hillyard Cameron, of a Compilation of the Kules of Court with numerous Statutes", a work of unquestioned usefulness and ability. Great alterations have, in the interim, been made l»y the Legislature in the practice of the law, l)y adding a Superior Court of co-oi;di- nate jurisdiction with the Court of Queen's Bench ; by altering materially the practice in regard to Dower, Eject- ment and Replevin; by extending the jurisdiction of the County and Division Courts, by conferring an Equity jurisdiction on the former, and by the Municipal Laws. These alterations have compelled the Courts, in order to meet the requirements of the various enactments, both to abrogate old and to frame new Rules, which are not always of easy access to the profession. A work resembling Mr. Cameron's, and comprising the Rules of both Superior and Inferior Courts, appeared to the Subscriber to be greatly wanted, and, while conscious of his inability to do entire justice to the subject, he ventures to present this volume to the profession, trusting that its usefulness may be found sufficient to excuse its many defects. The alphabetical arrangement of the whole of the Rules of the Courts of Queen's Bench and Common Pleas, instead of the division adopted by Mr. Cameron, will, he trusts. • •• VIU PREPACK. admit of a readier and easier reference ; and the insertion of the Municipal Rules, tho County Courts' Equity Exten- sion Act Rules, and tho new Division Court Rules, Avill, it is hoped, prove acceptable to the profession generally, and more particularly to country practitioners. Tlie Compiler had originally intended to have inserted many Statutes relating to such subjects as "Evidence," "Sheriff," "Insolvent Debtors," &c., but the space occu- pied by the "Criminal Law" has rendered that impossible. He trusts, however, that the compilation of the Criminal Law alone will recommend the work to the bar, though ho much regrets his inability to make it complete, by the in- sertion of tho new "Act introduced this session by Mr. Cameron. W. GEO. DRAPER. Kingston, January 1st, 1855. RULES OF GOUllTS OF aUEEFS BENCH 1 AND COMMON PLEAS OF UPPER CANADA. ACTION. (a) In every case the suing out of process shall be regarded for all purposes as the commencement of the action.— 2 E. T. 5 Vic. AFFIDAVIT. 1. (b) It is ordered, that the Deputy Clerk of the (a) It was held formerly that the declaration was the commencement of the action. — Cameron v. Ferguson, H. T. 4 Will. IV. The commencement of an action may be proved by the production of the wi'it of ca. re. The minutes of the Clerk of the Crown or his deputy on the writ, marking the time of issuing, is prima facie proof of the fact. — Upper v. McFarland et al., 6 U. C. R. lOO. (i) Where an affidavit of debt was sworn in Ireland, before a commissioner of Common Pleas ntsd 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 v. Browning, 1 M. & W. 361. B t RULES. f Orown in outer districts do not take imy aflidavits in any cause after final judgment, except ailidavits lor ca. ««.'«, nor in any matter in which there is no cause pending. — E. T. 1) Geo. IV. 2. It is ordered, that every affidavit shall contain the christian name or names and sirname of the defendant written at length, with his place of abode and addition.— T. T. 3 & 4 Will. IV. 3. It is ordered, that the rule of this court of T. T. 3 & 4 Will. IV., which leciuires that every affida- vit shall contain the christian name or names and sirname of the defendant written at length, with his place of abode and addition, be rescinded, so far as respects the place of abode and addition of the defen- dant.— E. T. 4 Will. IV. 4. It is ordered, that in all cases where a defen- dant appears in person, or the plaintiff enurs an appearance for him, and an application is made after appearance to the Judge of the proper County Court for any summons according to the said act (12 Vic. eh. 63) which ought to be served upon the defen- dant, the affidavit on which the plaintiff grounds his application shall, among other things, state that the defendant resides at some place within the jurisdic- tion of the said County Court.— 17 H. T. 13 Vic. 5. It is ordered, that the affidavit on which a person in execution for debt shall apply to be altogether discharged 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 have been served before the expiration of such notice, and if so, whether answers thereto upon oath have been duly made and filed, and notice thereof given. — 49 H. T. 13 Vic. AGENCY. 1. When the attorney in any cause depending on IIULEU. tluH court, roaiJo.s without tlio district where the action is broup;ht, all notices and doinunds, and other papers or pleadin}j;s to bo served on such attorney, shall be deemed rejj;ular by beinp; put up in the Crown OIHce in the district wherein such action i.s bronj^ht, unless such attorno}' have a known agent in the same district, in which cnse service on the agent shall be required. — M. T. 4 Geo. IV. 2. Every attorney not resident in the Homo District, shall enter in alphabetical order in a book, to bo kept for that purpose by the Clerk of the Crown, his name and place of abode, and also, in an opposite column, the name of some practising attor- ney in the City of Toronto as his agent, who may bo served with notices, summon3es, and all other papers (not required to be personal) ; and if any attorney shall neglect so to enter his name, with that of his agent as before mentioned, fixing up the notice, summons, or other paper in the Crown Office shall bo deemed good service. — M. T. 4 Geo. IV. 3. It is ordered, that every attorney residing in the Home District, and not having an office in the City of Toronto, or the liberties thereof, shall have a booked agent in said city, conformably to the rule of this court of M. T. 4 Geo. lY., upon whom papers may be served, as is provided in that rule with respect to attornies not resident in the Home District, and subject to the same consequences, in case of the neglecting to enter the name of himself and his agent in the Crown Office, as directed by the said rule.— H. T. 10 Vic. 4. It is ordered that when the attorney actually suing out any Writ, shall sue out the same for any other attorney, the name and place of abode of such other attorney shall also be indorsed upon the said writ.— 9 H. T. 13 Vic. 5. It is ordered, that in inture no business shall be transacted in the Crown Office, either in procuring • \ 4 KULES. \\ # or suing out process, or in entering judgments, or by nny proceeding whatever in a cause, unless upon the personal attendance of the party on whose behalf such business is dasired to be transacted, or of the counsel or attorney of the party, or the clerk or agent of the attorney, or the clerk of such agent — H. T. 8 Vic. ALIEN, ' As soon as may be after filing any inquisition under the authority of the statute passed in the 54th Geo. III., the Clerk of the Crown shall cause an extract therefrom, containing the name of the person found to be an alien, and describing the land found to be in his possession, or to which he had a title, subject to forfeiture, in order that any person having claim may traverse the said inquisition ; and he shall exp >3e such extract in his office from the date thereof to tlie end of the year from the date of the inquisi- tion.— M. T. 4 Geo. IV. AMENDMENT. It is ordered, that when an amendment of the declaration is allowed, no new demand of plea shall be deemed necessary, whether such amendment be made of the same term, or a diflFerent term ; and the defendant, if he has already pleaded, shall be at liberty, within two days, exclusive of the day on which the amendment shall be actually made, to alter his plea, or plead de novo, unless otherwise ordered by the court, or the judge granting leave for the amendment.— 21 H. T. 13 Vic. APPEARANCE. It is ordered, that the memorandum in writing by or for a defendant, shall be entitled in the proper court, and shall in the County cf York be delivered at the office of the Clerk of the Crown and Pleas for the Court of Queen s Bench, or of Common Pleas, RULES. 5 the shall nt be the I at ly on alter dered the to the clerk having charge of the appearance book, and in other counties to the Deputy Clerk of the Crown at his office; and that such memorandum shall in all cases be delivered at the office from which the original process was issued; and that the said clerks respectively shall enter the same in books to be kept by them for that purpose, and shall mark on every such memorandum the date of its delivery to them, and shall file the same accordingly. — 13 H. T. 13 Vic. ARREST. (c) Where the defendant is described in the process or affidavit to hold to bail, by initials, or by wrong name, or without a chribtian name, the defendant shall not be discharged out of custody, or the bailbond delivered up to be cancelled on motion for that purpose, if it shall appear to the court that due diligence have been used to obtain knowledge of the proper name. — T. T. 3 & 4 W. IV. ASSIZES. To meet the provisions of the statute passed in the last session of the Parliament of this Province, enti- tled, "An Act to provide for the payment of petit jurors in Upper Canada," — 14 & 15 Vic. c. 14 : 1. It is ordered, that the rules made in Hilaiy Term, 13 Vic, and severally numbered 33, 34, 35, 30 and 37, be, and the same are hereby rescinded. — 1 M. T. 15 Vic. 2. It is ordered, that hereafter no cause shall be tried at the assizes for any county or union of coun- ties, except the County of York, unless the record of nisi prius be delivered to the Deputy Clerk of the (c) An arrest was set aside, where defendant, whose name was Patrick, was called Peter in the affidavit and writ.— IJotsford v. Stewart, E. T. 11 G. IV. All the christian names must be inserted. — Westover v. Burnham, T. T. a & 4 Vic. ",r^ U " 6 RULES. Crown for such county or union of counties (who shall attend at his office for the purpose of receiving the same) between the hours of nine in the forenoon and twelve o'clock noon, of the day appointed for the opening such assizes. — 2 M. T. 15 Vic. 3. It is ordered, that hereafter no cause shall be tried at the assizes for the County of York, unless the record of nisi prius be delivered to the Marshal and Clerk of Assize for the said county, (who shall attend at the Court House in the City of Toronto for the purpose of receiving the same) between the hours of nine in the forenoon and twelve o'clock noon of the day appointed for the opening such assizes.— 8 M. T. 15 Vic. 4. It is ordered, that every record of nisi prius shall be entered and numbered by the officer receiving the same, in the order in which he shall receive it ; and that he shall not receive or enter any record except within the hours and at the place respectively set forth in the foregoing rules. — 4 M. T. 15 Vic. 5. It is ordered, that the foregoing rules shall not preclude the judge, holding any assize, from per- mitting the record of nisi prius in any suit to be entered after the time limited by the said rules, if, upon facts disclosed by affidavit, or on the consent of both parties he shall consent to do so. — 5 M. T. 15 Vic. ATTORNEY. 1. It is ordered, that every person applying to be admitted an attorney 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 the day on which he shall apply to such court for admission, his articles of clerkship, and a^-o any assignment that may have been made therec , together with answers to the several questions heuunto annexed, signed by RULES. the applicant, and also by the attorney or attorneys with whom he shall have served his clerkship. Questions to be answered by the Clerk. 1. What was your age on the day of the date of your articles ? 2. Have you seiTed the whole term of your articles at the office where the attorney or attorneys, to whom you were articled or assigned, carried on his or their business ? If not, state the reason. 3. Have you at any time during the term 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 your articles, been engaged or concerned in any profession, busi- ness or employment, other than your professional employment as clerk to the attorney or attorneys to whom you were articled or assigned? 5. 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 any time during the term of his articles, been absent without your per- mission? and if so, state the length and various occasions of such absence. 3. Has the said A. B., during the period of his articles, been engaged or concerned in any profession, business or employment, other than his professional employment as your articled clerk ? li i! 8 RULES. 4. Has the said A. B., during the whole time of his clerkship, with the exceptions above mentioned, been faithfully and diligently employed in your pro- fessional business of an attorney and solicitor? 5. Has the said A. B., since the expiration of his articles, been engaged or concerned, and for how long time, in any and what profession, business or employ- ment, other than the profession of an attorney or solicitor? And I do hereby certify, that the said A. B. hath duly and faithfully served under his articles of clerk- ship (or assignment, as the case may be), bearing date, &c., for the term, therein expressed; and that he is a fit and proper person to be admitted an attor- ney.— Rule 51, H. T. 13 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 attorney therein, by order of this court, for mal- practice or misconduct as an attorney, or other suffi- cient cause, the clerk of this court shall forthwith certify such dismissal or prohibition, and the grounds thereof expressed in general terms under the seal of this court, and shall transmit such certificate to each of the other superior courts of Upper Canada ; and that tliis court, on receipt of any similar 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 for striking such person, being an attorney of this court, from the roll of attorneys, or for prohibiting his practising therein, according to the course and practice (and in like manner, and under like circumstances) observed in similar cases in the superior courts in England. — T. T. 15 Vic. Mem. — A similar rule exists in (/ommon Pleas. ....b-.^-.,. RULES. 9 AWARD. 1. ((f) It is ordered, that in future, where a rule to shew cause is obtained in this court to set aside an award, the several objections thereto, intended to be insisted upon at the time of making such rule absolute, shall be stated in the rule to shew cause. BAIL, 1. (e) It is ordered in future, that when bail, which has been put in in the country, is to be justified in court, the bailpiece with the aflfidavit of the due taking thereof, and the aflfidavit of justification, shall be taken from the Deputy Clerk of the Crown of the district in which they have been filed, and shall be produced in court upon the motion for allowance, and afterwards filed in the office of the Clerk of the Crown and Pleas in Toronto; and that the Deputy Clerk of the Crown shall, on notice given to him for that purpose on behalf of the party moving for allowance, transmit the same to the principal officer, in order that this rule may be complied with. — T. T. 3 & 4 Will. IV. (rf) A rule nisi to set aside an award was discharged with costs, because it was not drawn up on reading the award or copy, nor the submission, nor the rule making the submission a rule of court. — Jacobs v. Ruttan, 2 U. C. Chamber Reports, 138. Whenever a certain fact is relied on to set aside an award, that fact mustbc distinctly sworn to, and if denied the denial is conclusive. — Slack v. Mc- Eathron, 3 U. C. R. 184. In the rule nisi for setting aside an award, it must be stated that the rule is drawn up "on reading the award or copy of it." The omission of these words is fatal.— Wilkins v. Peck, 4 U. C. R. 263. The ob- jection to the rule nisi for setting aside the award, that it is not drawn up " on reading the award " is well answered by shewing, that among "the affidavits and papers filed," ou reading which the rule was drawn up, there was a copy of the award verified by affidavit. — Tracy v. Hodgest, 7 U. C. R. 6. (e) The plaintiff declares in debt on a recognizance of bail, and seta out in his declaration that the bail came before a b2 10 nULES. ■< • 2. (/) It is ordered, tliat licrenfter no ccrtificato shall bo {granted by any of the CJlorks of the Orown cotnmiHsiunor of tho NowciiHtlo District, duly appointed ac- cording to tlio form of tiio Htatnto, in Huch case made and provided (2 Geo. IV. cii. 1, sec. 40), and tlicn, after stating tho condition of tho recoj!;nizanco, made this averment, •'us by tiio record of the said recognizance, still remaining in tho court, more l^illy appears." J/eld, per Cur., rMACAiii.AY, J., (imentiente) declaration bad on special ilemurrer, in not averring that the recognizance icas Jiledin the office of the Deputif Clfrk of the Crown in the district in v'hirJi it nuts taken, as directed by the 40th section of tho act (2 Geo. IV., ch. 1).— Gillespie et al. v. Grant, 3 U. C. 11., 400. (/) Tho affidavit of justification cannot bo sworn before the defendant's attorney. — Koylo v. Wilcox, 2 O. S. 118. Hail will be allowed to justify by tho affidavit made at tho time of the acknowledgment, though an exception to them be entered, when nothing is fbewn to repel such affidavit. — Duggan v. l)orrick, H. T. G Will. TV. Tho court will not grant leave to enter an exoneretur whore bail have sur- rendered their principal, without a certificate from tho sheriflF to whom lie was rendered. — Linley v. Cheeseman, Dra. Hep. 55. Semble, that the plaintifl', though the defen- dant will not put in bail, may go on with his action against him, and against tho sheriff at tho same time. — Reg. v. Sheriff of County of Hastings, 1 U. C. Cham. Rep. 230. Semble, that bail are not bound by what tho attorney for their principtU may choose to do, as tho attorney for the principal — Mitchell v. Noblo and Hunter, 1 U. C. Cham. Rep. 284. On an application to set aside a ca. sa. in tho original action, or proceedings against bail, the affi- davits aro rightly entitled in the action against tho bail. — Beattie v. McKay, et al., 2 U. C. Cham. Rep. 56. Where nn action was brought on u recognizance of bail against one of tho bail alone, and it appeared by the declaration that others Avere jointly bound, it was held that the objection was fatal, and might be taken advantage of without a plea in abatement. The plea in this* case was clearly bad. — Mills V. McBride, 10 U. C. R. 145. Where a defendant on bail to the limits has broken his recognizance, it is no defence that he was informed and believed that tho place he went to was within his limits, unless it can be shewn that such was the general impression, or that the boundary >Ya8 disputed. — Hedden v. Gregory et al. 10 U. C. R. 334. s RULES. 11 or their deputies respectively, that a recojiijnizance of bail and affidavit of justification havo been filed in his oHice by any person desirous of obtaining the benefit of the jail limits in pursuance of the provi- sions of the fifth section of 10 <& 11 Vic. ch. 15, until a rule or order for the allowance of such bail shall have been first nuide, and that such bail-piece shall be in the following form : — IN THE QUEEN'S BENCH Oil COMMON PLEAS. (County named in writ,) ) j On the day of TO WIT ; A.l)., 18- having been to E. ¥. arrested on a of and G . C. i) delivered the suit of A. li. K. 11., attorney for the defendant writ of II., of- is at Writ endorsed for £ be). Taken and acknowledged at of. this day of • , and (as the case nmy , in the County A.D.. 185—, before nie. You (addressing the bail by name) do jointly and severally undertake that C. D. shall remain and abide at the suit of A. 13. within the limits of the jail for the County of , and not depart there- from, unless released therefrom by due course of law; and that the said C. D. shall and will well and truly obey all notices, orders and rules of court touching or concerning him, the said C. J)., remaining or con- tinuing upon the said limits, or being remanded or ordered to close custody therefrom j and, in the event of his failing in any particular, that you will pay such sum of monc}i^lierifi''s foes and poundage, as the said C. 1). is liable to pay upon or by virtue of the writ on which he has been so arrested. — llule 50, II. T. 13 Vic. CLERK OF ASSIZE, llule of E. T. 11 Geo. IV. is virtually superseded /"^ f 12 nULES. II: ^k- by Rule of II. T. 5 Vic, and that again is re- scinded by Rule 36 H. T. 13 Vic, which is rescinded by Rule 1 M. T. 15 Vic. — quod vide supra tit. "Assizes." See also stat. 14 & 15 Vic ch. 118. COGNOVIT. 1. (g) It is ordered, that the 7th Rule of M. T. 4 Geo. IV. be rescinded, and that in future no judg- ment be entered on any warrant of attorney to con- fess judgment, or upon any cognovit actionem, that shall not have been obtained through the intervention of some practising attorney of this court, whose name shall be endorsed on the warrant or cognovit; and unless the affidavit of execution shall state the same to have been obtained through tbe intervention of some practising attorney whose name is thereon indorsed.— E. T. 9 Geo. IV. 2. After the first day of next term judgment shall not be entered up on any cognovit given in a case in which no process shall have been served, without the order of a court or fiat of a judge, in cases where, from lapse of time, an order or fiat would be required, in order to enter up judgment on a wan*ant of attor- ney, and the practice as to the obtaining such order or fiat shall be the same as upon warrants of attorney. — H. T. 11 Vic (g) The rule requiring the name of the attorney to be indorsed upon the cognovit, does not apply when an attor- ney is plaintiff. — McLean v. Gumming, Tay. U. C. R., 240. Where^ after action brought, a confession was prepared by the plaintiff's attorney, and sent to the plaintiff at his request, ■with a blank for the sum for which the confession was to be given, and the sum w^ filled in by the plaintiff, and the confession executed by me defendant, without the attorney or any of his clerks being present, tlie above rule was held to have been sufficiently complied with. — Thomp- son V. Zwick, 1 U. C. 11. 338. If a cognovit be prepared by an attorney, and his name be endorsed on it at the time of execution, it is a sufficient compliance with this rule, although the cognovit be afterwards executed in the plain- RULES. 18 COMMISSIONER. 1. No attorney of this court shall take any recog- nizance of bail as a commissioner, in any case in which he shall bo employed as attorney or agent for either party.— T. T. 1 & 2 W. IV. 2. (A) After the first day of Hilary Term next, no attorney of this court shall issue a writ of capias, as a commissioner, in any case in which he shall be concerned as attorney for the plaintiflF. — M. T. 4 W. IV. COMPUTATION. (i) It is ordered, that in future rules nisi for refer- tiff 'a counting-house whou the attorney is not present. — Clarkson v. Miller, 2 U. C. R. 96. In deference to the above cases, Mr. Justice Sullivan came to the same decision in Paterson v. Squires, 1 U. C. Cham. Rep. 234. Though the learned judge is reported to have remarked, "that if he had to decide the point in the first instance, he should have hesitated in coming to the same conclusion" as in those cases. In an action of ejectment plaintiffs were non- suited for not confessing lease, entry and ouster : subse- quently to the trial the defendant executed a cognovit; Held, per Cur., on motion for a new trial, that defendant's having confessed judgment was a waiver of any formal exception he might have. — Doe Kerr v. Shoflf, 9 U. C. R. 180. (h) The commissioner's authority to issue writs was given by 2 G. IV. c. 1, sec. 9. The only enactment limit- ing this authority is 4 W. IV. c. 6. sec. 4, until 12 Vic. oh. 63, since the passing of which statute the court have decided that commissioners have no power to issue bailable writs under 2 G. IV. c. 1, sec. 9, which is thereby virtually repealed. Per Cur. Mclntyre v. Hutton, 8 U. C. R. 660. (i) By 13 & 14 Vic c. 62, s. 5, the judges of county courts, in all suits in which the venue is laid in their county, may grant summonses and make orders to com- pute, in siits depending in superior courts, in the .same manner as a judge in chambers may do, whether defen- dants in such suit reside in their counties or not. The proper method of computing principal and interest is to calculate the interest on the priccipal sum up to the time 14 RULES. 1,1 # ring to the master to compute principal and interest, and to pay the coats after judgment by default, in actions upon promissory notes, or in other actions in which a reference may be made to the master for the same purposes, may, if the plaintiff shall desire it, bo made returnable at the expiration of such num- ber of days after the day of service, as shall bo expressed in such rule; an*d that the practice be the same in this respect upon judges* summonses for the same purpose. And it is further ordered, that upon the rule being made absolute, or upon the granting of ft judge's order in any such case, the plaintiff may proceed to tax his costs, and enter up his judgment without service of such nile or order, or of any notice; and that the rule nisi or judge's summons, shall bo so drawn as to apprize the defendant that judgment will be entered without further notice, unless cause be shewn to the contrary. — T. T. 5 AV. CORPORATION. The rule of T. T. 11 Geo. IV. proscribing form of process for summoning corporations is virtually re- scinded by 12 Vic. ch. G3, sees. 22 and 28. of the first payment ; then to apply the payment firs*' to the discharge of the interest, and then the balance, if any, may be deducted from the principal, and so on till the debt be discharged. — McGregor et al, v. Gaulin et al, 4 U. C. R. 378. Formerly intcresu was computed only to the com- mencement of the suit, but is now carried down to final judgment. — llobiuson v. liland, 2 Eur. 1077 ; Byles on Bills, 228. The service of a summons to compute, on the agent of the defendant, an attorney, is sufficient. — Spragge v. McMartin, T. T. 1 & 2 Vic. A foreign billuiny be referred to the master for computation of the jriiicipal and interest, and ten per cent, damages under the Provincial statute.— Com. Bank v. Allen et al., T. T. 1 & 2 Vic. Tlie court refused a rule to compute interest on a judgment before the master, where it appeared there might be ground for doubt as to the plaintiff's right to recover such intercbt, and the defendant resisted the applicaf.on. — Eberts v. Traveller, 9 U. C. R. 355. i RULES. 15 COSTS. 1. In future the pviictice of this court, as well as the quantum of costs to be allowed in all prociiodings, is to be governed (wIkmi not otherwise provided for) by the established practice of the Court of King's ]3ench in England.— 1 M. T. 4 Geo. IV. 2. (,;') It is ordered by the court, that in any action of the proper competence of the District Court, in which final judgment shall be obtained without a trial, the master shall tax no more than District Court costs, unless specially authorised by order of the court or of a judge in vacation. — 9 E. T. 11 Geo. IV. 3. It is ordered by the court, that fees shall not in any case be taxed to more than two counsel, upon any trial or argument to be had hereafter. — 10 E. T. 11 Geo. IV. 4. It is ordered by the court, that no counsel's fee on motion shall be taxed in respect of any rule which may be obtained without filing a motion paper in court or in term time. — 11 E. T. 11 Geo. IV. 5. It is ordered by the court, that no fee or other charge shall be charged for any writ to warrant a (j) Such an order must be obtained after an assessment of damages on a judgment by default, where the amount assessed is apparently within the jurisdiction of the County Court.— Ferrio et al. v. Young, E. T. 3 Will. IV. Where a verdict is taken subject to a reference to arbitration, and the arbitrators award to the }. laintifF an amount apparently within the jurisdiction of the County Court, full costs may be obtained by rule of court, or order of a judge under this rule.— Elmore v. Colman, M. T. 6 Will. IV. The plaintiff is not entitled to full costs as a matter of right, where he recovers after judgment by default, an amount apparently within the jurisdiction of a district court, as the 9th rule of E. T. 11 Geo. IV. in such case requires the or.cr of the court or of a judge for such taxation McGill v. StuU, 3 O. S. 140. IG RULES. Hi'' 11^ testatum, unless such writ shall bo actually sued out by the party.— 12 E. T. 11 (jeo. IV. 6. It is ordered by the court, that at the foot ot every bill to bo horeufter taxed, the attorney shall certify under his hand, that every service or disburse- ment charp^ed has been actually and necessarily made, which certiScate shall nevertheless in no case be taken to dispense with the rcfjuisite affidavit of disburse- ments, or to warrant any charge not othei^wise taxa- ble.— 13 E. T. 11 Geo. IV. 7. It is ordered, that from and after this present term of Easter, the rule of court of E. T. 2 Geo. IV., as revised and altered in T. T. 6 Geo. IV. regulating costs in civil and criminal cases, be rescinded, and that from henceforth the fees hereinafter expressed shall and may be taken, and be allowed to be taken, by any couiieel, attorney, clerk of the crown, sheriff, clerk of assize, and marshall, constable, crier and jurors, for the servicesrespectively rendered by them. N.B. — This rule was rescinded, as far as regards fees to be taken by sheriff, by l^ule 2 H. T. 10 Vic, gu. vi. infra. 16, 11 Geo. IV. E. T. ; and as regards clerks of assize by 13 & 14 Vic. ch. 118, and as to jurors by 14 & 15 Vic. ch. 14. 8. It is ordered, that the Rule of E. T. 11 Geo. IV. regulating the amount of costs to be taxed in civil and criminal cases be amended, in that part of it which relates to the counsel's fee with brief at trial or assessment, by adding at the end of that item, the words "or by order of a judge," to such sum as shall appear proper under the circumstances of the case.— 2 E. T. 4 Will. IV. 9. It is ordered, that the following fees be allowed to coroners for services hereinafter named : For summoning jury and making return to clerk of assize, for each juror actually and necessarily summoned, Is. I.lil.j HUI.F.S. IT [ii other respects same fees as to skeriifs for siiui- lar services. 10. It is ordered, that in future the same fees bo allowed to coroners for services rendered by them in the execution and return of process in civil suits, as would be allowed to a sheriff for the same services j and that when, according to the nature of the pro- cess and the service rendered thereon, the sheriff, if he had discharged the same duty, would have been allowed poundage, the same poundage shall be allow- ed to coroners. — H. T. 12 Vic. 11. (k) No costs shall be allowed on taxation to a (k) Tliis rule makes the practice towards defendants more just than it was formerly, and it is intended for their benefit in cases where they snccerd on any issues raised by their pleadings, or the plaintiff fails on any of his counts ; and wliere the general issue was pleaded to a declaration containing several counts, and the defendant succeeded under it as to some of those counts, he was held entitled to the coats occuKioncd by them. —Cox v. Thompson, 1 Dowl. 626; Ward v. Pel!; 2 Dowl. 7G; Knight v. Brown, 9 Bing. C48 ; Newton v. Harland, 6 Dowl. G44. 'Where in case for a libel, on the general issue, the jury found for the plaintiff, and also found as a fact that a great part of the declaration did not apply specifically to the plaintiff, though there were inuendoes by which it was endeavoured to cor-Tirot him with the matters complained of; it was held, that the defendant was entitled to the costs of that port. — Prud- hommo v. Fraser, 2 A. & £. 046. So in ejectment, where there was but one coiuit, and the lessor of the plaintiif recovered judgment for part only of the lands claimed, the court held that the defendant was entitled to have his costs, as to the part found for him, set off against the costs of the lessor of the plaintiff. — Doe v. Errington, 4 Dowl. G02. And the same where thci'c were several demises, and the jury found for the plaintiff on some, and for the defendant on others. — Doe v. Webber, 4 N. & M. 881. And also in trespass, for entering the plaintiff's house, and taking his goods, where the plaintiff recovered for the entry and part of the goods, and the defendant for the other part. — Rout- ledge V. Abbott, 8 A. & E. 55)2 — whore see form of postea in such case. So in covenant, with several breaches ill "' 18 RULES. t ( '! It; plaintiff upon any counts or issues upon M'hich, lie has assigned, where the defendant succeeds on some of the issues. — Daubuz v. Hickman, 4 Dowl. 129. But where in an action for negligently stowing, &c., certain casks, the defendant traver'-ed the breach of contract, and the plain- tiff recovered for one cask only, it was held that the issue was not divisible, so as to entitle the defendant to the costs of the portion found for him. — Anderson v. Chapman, 3 Jur.' 1154. Where in trespass for seizing goods, the defendants pleaded two pleas, one justifying under a dis- tress for rent under a demise at £5 a year, and another for £2 10s., and both issues were found for him, the court held that +hey were not inconsistent ; and the judge having certified at the trial to deprive the plaintiff of costs, the rule for taxing to the defendants the costs of the two issues found for theni, was drawn up with this additional clause, " and that the costs when so taxed be paid by the said plain- tiff to the said defendants " ; but the court held that they had no power to make such an order, and they directed the record to be amended by an entry of a judgment for these costs, upon 'vhich the defendants might proceed to obtain them, if they thought proper. — Twigg v. Potts, 4 Dowl. 266. On a reference to arbitration before issue joined, the above rule must be ooscrved on the taxation of costs. — Daubuz v. Rickman, 4 Dowl. 129. Neither party will be entitled to the costs of issues, from the trial of which the jury have been disch.arged. — Valance v. Adams, 2 Dowl. 118. Nor where judgment is given /tow obstante veredicto, aa to the costs of the immaterial issue. — Goodburn v. Bowman, Bing. 667. If the defendant seek to deprive the plaintiff of costs, on the ground that his action should have been brought in a Court of Requests, he cannot, at the same time, have the costs of issues, which have been found for him, taxed in a superior court. — Jenks v. Taylor, 1 M. & W. 678. Where the plaintiff obtained judgment on demur- rer to one plea, and the cause was taken down to trial on another, and a juror was then withdrawn by consent, J/dd, that the plaintiff could not obtain tlie costs of the demurrer. — Burdon v. Elower, 7 Dowl. 706, This rule does not apply to paupers. -Gongenheim v. Lane, 4 Dowl. 482. As to amount and mode of taxation in such cases, if there be two issues, one found for the plaintiff, and one for the defendant, if that found for plaintiff be the substantial issue, he shall have the postea and general costs of the cause, with the exception of such parts of the pleadings, i I'- RULES. 19 not succeeded ; and the costs of all issues found for briefs, counsel fees, and of such of the witnesses as are applicable only to the issue for defendant, which costs tlie defendant will be entitled to have deducted from the plain- tiflf' s Costs. — Hart v, Cutbush, 2 Dowl. 466; Eacles t. Everett, 3 Dowl. 687 ; Knight v. Woor<^, 3 Bing. N. C. 534. But the defendant is not entitled to thvith, and for pre- cept 13 Attending sheriflf with precept 18 Notice of inquisition to tenant, with copy and service 3 6 Copies of papers required to be annexed thereto per folio of 100 words 6 Fee to counsel attending inquisition 1 5 Attending for subpoena, when required..... 13 Ticket and service 2 Drawing affidavit of disbursements, and attend- ing to swear 2 6 Attending court or judge with inquisition, &c., for order for writ of possession 2 6 Drawing bill of costs, and attending taxation ... 2 6 Fee on writ ox possession, including attendance 5 Attending to deliver writ to sheriff 13 Postages, not exceeding 6 Allowance of costs for proceedings in term the same as in ordinary cases on motions of course COSTS OF DEFENCE, Instructions to defend 5 Attending for subpoena 13 Ticket and service 2 RULES. £ 0. d Fee to counsel attending inqnest 15 Drawing affidavit of disburaements, and attend- ing to swear , 2 6 Attending judge or court with inquisition on ap- plication for costs 2 6 Allowance of costs for proceedings in term, the same as in ordinary cases on motions of oouse. OLBBK or THB CROWN AND FLBAS. ^ Writ to commissioner, including filing judge's order, with the necessary blanks for the com- missioner, &c 6 Taxing costs 2 6 Writ of possession 6 Swearing affidavits, and filing papers, the same as in ordinary cases. COMMISSIONER. Precept 3 Subpoena for witness (one only to issue on either side) 2 6 Taking inquisition, minuting evidence, and re- turning writ 16 SHERIFF. Summoning jury, including mileage and return ofprecept 10 Execution of writ of possession, exclusive of mile- age 10 Mileage in services necessarily and actually ren- dered as to A^ritnesses, and executing writ of possession, &c., the number of miles necessa- rily and actually travelled in going to perform such service, each 6 JURY. For verdict 1 10 WITNESSES. Same as in Court of King's Bench. judge's clerk. Same as in ordinary cases. Signed by the Judges, 14th January, 1839. 27 I i "m I 1' I i ; 28 RULES. See Rule K. 2 Geo. IV. Tariff of costs and fees in civil cases. ATTOENEY AND COUNSEL. £ B. d. Taking instructions with vrarrant to prosecute and defend 7 Letter of notice before suing out process 2 Entering common appearance and attendance ... 2 ■ Drawing bail piece, and attending when bail taken 6 Drawing declarations, and all other pleadings, per folio of 100 words 10 Copies thereof, per folio of 100 words 6 Declaration or other pleading, not exceeding five folios in length 5 Copy thereof 2 6 Fee to counsel to revise declaration or other pleading, if special 10 Affidavits to hold to bail, including copy and at- tendances 6 Drawing affidavits under three folios of 100 words 2 6 Above three folios Is. per folio, including in all cases attending to swear or to get same sworn. Copy of special affidavit, when required to be delivered, per folio of 100 words 6 Paper and deijiurrer books, and other such pro- ceedings, not otherwise charged, per folio of 100 words 6 Entries on the roll, and engrossing record, per folio of 100 words 6 Notice of trial and assessment, including copy and service, except mileage 8 6 Other notices, including copy and service, ex- cept mileage 2 6 Drawing judge's summons and ' order thereon, with copy and service, except mileage for each Attendance at judge's chambers J Attendance at the Crown Office, and other com- mon attendances in the course of a cause Attending to search for appearance, or other ne- cessary searches Signing interlocutory judgment Fee on examining and passing records or paper books, including attendance SoonuioT.T.Instruotions to or brief for counsel, not being attorney in the suit, in ordinary cases O •a a s (a pM ej •a i* .5, Xi 7 Wm. IV. 2 6 2 6 13 13 2 6 5 6 RULES. 29 When special brief necessary Attending Court on the day of trial, or assess- ment, wliere no fee is cliarged by the attorney as counsel Subpoena ticket and service, exclusive of mile- age Taking cognovit and entering judgment thereon, where there has been no previous proceeding, and the true debt does not exceed £50 For the same services, where the true debt ex- ceeds £bO Taking cognovit, and attending execution, where there have been previous proceedings All other proceedings in such causes, us in other cases Bond and warrant of attorney Fee on all writs, orders, or ru.es of court to the attorney obtaining the same Term fee when proceedings have been had with- in the term Receiving instructions for motions of course... Receiving instructions for special motions Fee on motion of course, or on motion for a rule nisi, or on motion to make rule abso- lute in matters not special On special motion for a rule nisi, (only one counsel fee to be taxed) For opposing or supporting a rule nisi on argument On arguing demurrer or other special argu- ment (To be increased in the discretion of the master, subject to appeal to the court or a judge.) Counsel's Fee with brief at trial or assessment in cases of tort, or in ejectments, or in mat- ters of contract, where the sum to be recov- ered exceeds JEIOO, (to be increased by the master, in his discretion, to a sum not ex- ceeding £5, in actions of a special and im- tportant nature) or by order jof a judge, to sucli sura as shall appear proper under the circumstances of the case. In other cases Drawing bill of costs, and attending taxation after verdict or assessment £ R. d. 10 5 2 2 3 6 7 6 6 6 2 6 SoeHuleT.T. 6 10 16 15 2 10 7 Wm. IV. See Rule E.T. 2 Geo. IV. 2 10 See Rule K.T. 4 AVm. IV. 16 „ - _ See Rule E.T. O 2 Geo. IV. Ill \\< I 30 RULES. £ 1. d. 7 Wni^'iv '^^^ """° boforo verdict or asBossment, or upon application in term, or on collateral or inter- locutory proceedings, including attendance for allocatur 3 Mileage out of town, per mile in the service of notices, or other papers served by the attorney 6 COSTS IN CHAMBERS. Counsel. See Rule T.T. Argument by counsel on return of summons (when 7 Wm. IV. counsel attend), to be increased in the discre- tion of the judge 10 Atlorne}/. Affidavits same as in terra. Attending for summons 18 Copy of summono 10 Attending to serve 18 Attending for order 2 6 Copy of order 10 Fee on order 5 FOR TIIH CLERK OF THE CROWN AND PLEAS. Fee on all writs not special, including filing pree- Se^nuleM.T. cipe and memorandum of warrant 2 6 "■ Signing, sealing and filing praecipe for special writ, when prepared by the attorney 18 Special writ when prepared by the mastex', the same charges as to the attorney. Drawing and signing all rules 13 Filing each pleading or paper 4 Swearing affidavits 10 Every certificate under the seal of the court 2 6 Passing record 5 Taxing costs and giving allocatur, exo'ipt on jog- novits or warrants of attorney, where there have been no previous proceedings 3 4 Ditto on confessions, where no previous pro- ceedings 10 Entering and docketing judgment 2 6 Searching judgment, including examination of roll when required, and other searches 10 Entering satisfaction on record, and filing satis- faction piece, including any necessary search 2 6 All exemplifications of records or extracts there- from, or copies of papers, per folio of 100 words 6 RULES. 81 1 3 1 1 8 2 6 1 3 4 6 3 4 £ t. d On the admission of attornics 10 On comnussious for the o::aminution of witncs- Bca upon parchment 6 On commisaiona for taking bail and affidavits ... 2 6 Reference to the master to compute U 1 Filing and entering motion niai in ejectment, examining affidavit, entering the same with the description of the premises in ejectment boolc kept for the purpose, and issuing rule thereon 8 Entering oxonerotur on bail piece 18 Making up records of conviction or acquittal per folio 6 Entering appearance and picas in a book kept for the purpose 6 FOR THE OLEBK OF ASSIZB AND MARSHALL. For each day's attendance at court 1 Ocii. 118. rOR THE CLERK IN CHAMBERS. Judge's clerk on summons 18 On each order of a judge 2 6 Filing affidavits, each 4St;eT.T.7 For receiving and taking char»;e of nisi prius aVltuie il*^ records and exhibits, and delivering out the 13 vic. same when required, in each cause 2 FOR TUB SHERIFF. For every warrant to arrest under any process, or to levy or attach, or to execute any final SfwRuloH.T. process, when given to a bailiff, not being 10 Vic. deputy sheriff 2 Arrest where amount endorsed shall not exceed £60 6 Arrest where the amount shall be over £50, and under £100 10 Arrest where the amount sliall be £100 and over 10 Mileage when going to arrest, when arrest made, per mile 6 Mileage on conveying defendant to gaol from place of arrest, per mile 6 Bail bond, or bond for the limits 6 Assignment of the same 6 Service of process not bailable (including affida- vit of service) for each defendant 5 N,r S2 RULES. I, h t Vi £ B. d. Service of scire facias for eacL party served 5 For each summoner, to be paid to him by the sheriff , 2 6 Serving subptjenas, declarations, notices or other papers, besides mileage on each party or wit- ness , 2 6 Receiving, filing and entering all writs, declara- tions, rules, notices or other papers to be served, each 13 Return of all bailable writs, writs of execution or attachments 2 6 Every search, not being by a party in the cause, or liis attorney 10 Certificate of result of search, when required for any purpose 2 6 Fee on striking special jury 10 Serving each special juror 13 Summoning special jury, travelling per mile from court house „ 6 Returning panol of special jurors 5 Fivery jury sworn ; 6 Attending view per diem , 10 Poundage on executions, and on attachments in tlie nature of executions, where the sum levied and made shall not exceed £100 5 percent. Where it shall exceed £100, and be less than £1U00, £o per cent, for first £100, and 2} per cent, for residue. Over £1000, ]} percent, on whatever exceeds £1000, in addition to the poundage hereby allowed up to £1000, in lieu of all fees and charges for services and disbursements, except mileage in going to seize, and disbursements for advertisements, and except disbursements necessarily incurred in the cause, and removal of proi^erty in cases not exceeding £100, to be allowed 1 y the master in his discretion. For scliedule of goods taken in execution, in- cluding copy to defendant, if not exceeding five folios of 100 words 5 For each folio above five folios Advertisements of lands in the Gazette, the sum actually disbursed. Drawing up advertisements, when required by law to be published in a newspaper, and trans- mitting same, in each suit 5 RULES. 33 8. 2 1 6 6 6 £ Notice of sale of goods in each suit Notice of postponement of sale, in each suit Service of writ of possession, or restitution, be- sides travel 1 Bringing up prisoner on attachment or habeas corpus, besides travel at Is. per mile For travel from court house to place of service of process, and in all cases for actual mileage when service is performed For ineflFectAial attempt to make personal service when neco«s»ry, or arrest, per mile f* (Not having served any other process on the same occasion, upon taking the subjoined affidavit). Seizure of estate and effects on attachment, un- der Absconding Debtor's Act 10 Taking inventory, same as on executions. Removing or retaining property, such disburse- ments as shall be ordered by the master, or the court, or a judge thereof. FOK THE CORONER. For summoning jury, and mak* g return to clerk of assize — for each juror actually and neces- sarily summoned, Is. ; in other respects, same fees as to sheriff for similar services. It is ordered, that in future the same fees be allowed to coroners for services rendered by them in the execution and return of process in civil suits, as would be allowed to a sheriff for the same services ; and that when, according to the nature of the process, and the service rendered thereon, the sheriff, if ha had dis- charged the same duty, would have been allowed poundage, the same poundage shall bo allowed to the coroner. d. 6 8 See Rule T.T. 5 Will. IV. n. T. 12 Vic. Affidavit to he made in order to entitle the officer to mileage, upon an ineffectual attempt to serve pro- cess or to make arrest. ^^^^^ } C.D.Y.E.F. I, A. B., of , bailiff of the sheriff of , make oath and say, that on the day of , 18 — , I endeavoured to serve the above named c2 with a copy of • or to arrest V it I 84 RULES. £, 8. d. the above named (as the case may be), and that for that purpose, I went to the place of residence of the said , in the township of (as the case may be), and made due enquiries concerning him at his residence (or as the case may be), and in the neighbourhood thereof ; and that after using due diligence, I could not succeed in making such service (or arrest) in consequence of (here state the reason) ; and I further swear, that I necessa- rily travelled, in attempting to make such ser- vice, miles, exclusive of any mileage ' travelled upon the same occasion, for which I am entitled to be remunerated in any other case. BuleF.T, 2 Calling and swearing jury Geo. IV. Calling plaintiff on nonsuit Proclamation and calling parties on recognizance for each person Swearing witnesses or constable JURORS IN CIVIL CASES. Common jurors, each day's attendance 1^*2* ^Jc. Common jurors, for every mile travelled •**■"• Special jurors , FEES TO WITNESSES. SeeRuleT.T.To witnesses residing within three miles of the 6Wm. IV. court house, per diem 2 6 To witnesses residing over three miles from court house, per diem 5 And for every twenty miles travel 6 TO PROFESSIONAL MEN. Attorneys, barristers, physicians and surgeons, 20s. per day, when called upon to give evi- dence in consequence of any professional ser- vice rendered by them, or to give professional opinions. SURVEYORS. When called upon to give evidence of any pro- fessional service rendered by them, or to give evidence depending upon their skill or judg- ment, 10s. per diem. 2 1 1 5 6 6 6 6 RULES. 35 £ 8. d. COSTS ON WRITS OP TRIAL The usual costs in like cases to issue joined. Drawing affidavit of proceedings and paid 3 6 Attending chambers for summons, Is. 3d., fee thereon, Is. 3d 2 6 Paid Is. 7d. ; attending to serve Is. 3d. ; affida- vit and paid 3s. 6d 6 4 Attending chambers for order Is. 3d., fee thereon 5s 6 3 Attending to serve Is. 3d., copy Is 2 3 Drawing writ same as nisi prius record. Attending office to get examined and sealed, do. SeeRuleH.T. Paid to get e'-amir: • d and sealed, do. ^^ ^'<'- C Notice of tral ss ■ s in other cases "iSameasin J Attending to enter with county clerk V^^M^Bch?^ 1 Attending court | dufe^SVicr Thestatuteia [Brief and fee J ch.l3. restrictive. Attending judge of County Court for return 13 Attending to file 13 DISBURSEMENTS. County judge, 53. or 10s., as the case may be"] Clerk County Court, 2s. 6d Sn^coCrt ShenflF, 4s j-aapersche- Jury, 7s. 6d dule,8Vic. Crier, 6d., Is. 3d., (as the case may be) J *''*• ^'^• COSTS ON WRITS OF 7SNQUIRY. Drawing writ same as nisi prius record. Attending to examine and ;? ■ :^i';)ied, ditto. Attending to enter with cous' v .i':;."k, same as in County Court. Notice of assessment, same as in ■>< ler like cases. BStffr}^'—- Count, Court. Attending judge for return 13 Attending to tile 13 DISBURSED. On same scale as above. CHAS. C. SMALL, Clerk Croicn and Pleas. il'' ' I \ !( '4 ^ ■ i J wiiF^'*^^"V!Mii|V W" ii m I 36 RULES. Tariff of Fees. CouET OF Queen's Bench, "| Michaelmas Term, 9th Vic, OF UrPEE Canada. J Saturday, Nov. 16, 1845. It is ordered, under the authority of the statute passed in the eighth year of her present Majesty's reign, intituled, "An Act to regulate the Fees of certain District Ofl&cers, in that part of this Province called Upper Canada," that the fees in the table annexed to this rule shall be taken and received by sheriflfs, coroners, clerks of the peace, constables and criers respectively, in the several districts of this Province, for services rendered by them respectively, in the administration of justice, and for other district purposes, where such services were not remunerated by any law in force at the time of passing the said act. But it is to be understood, — ' 1st. That besides the fees set down in this table, the several officers will be entitled, as heretofore, to receive fees for other services rendered by them respectively, which are not mentioned in this table, wherever specific fees for such services arc fixed by any statute, the judges having no authority, under the act referred to in this rule, to make any regula- tion in such cases. 2ndly. That if it shall be found ihat a fee is spe- cifically assigned, under any statute, for a service for which a fee has also been inadvertently fixed in this table, then, in every such case, it will be the fee mentioned in the statute which is to be charged for the service, whether it be greater or less than that set down in the table ; and this rule, as to the charge for such service, will have no effect. Srdly. That the assigning a fee, in this table, for any service rendered, cannot have the efi*ect of en- titling the officer to that or any other remuneration for such service, where there is either no necessity m RULES. 37 for the service being rendered, or whore the right or duty to render it has been legally transferred to some other officer. 4thly. That in regard to public allowances which may have been heretofore paid out of the district funds to any of the officers affected by this table, and which are not in the nature of a fee, such as allowances for office rent, fiiel, stationery, &c., it is not to be inferred from their not being provided for in this table, that the claim to any such allowance is denied by the judges. In that respect the several officers will stand on the same footing as before, and the controul of the justices and of the district coun- cil, in regard to such allowances, will continue as before : the judges having ro authority ui'der the act either to grant, or reject, or to regulate such allow- ances. It has been observed by the judges, that in some districts the Clerk of the Peace has been allowed a certain fixed salary in lieu of fees. If such an arrangement could have been legally made before the recent statute, under which this table is framed, it could not now be adopted without some alteration by the legislature of the provisions of the statute. In considering the probable advantages and disadvant- ages of such a mode of remuneration, it seems to the judges, on the one hand, that it would save the jus- tices and the district council much trouble, as well as the officer himself, and it would relieve the latter from the imputation of multiplying services unneces- sarily, in order to accumulate fees; but, on the other hand, it is to be considered, that where the business of a public office consists of a multitude of small duties, some of them very troublesome in their nature, the best security for their being duly performed is to give the inducement of a distinct remuneration for every distinct act of service; and as it seems that, under the present system, some difficulty has arisen # c 88 RULES. li yv in consequence of the clerks of the peace claiming the right to perforai certain services which it is con- cluded rest now with the clerk of the district council, the judges apprehend that if a fixed salary were to be substituted for all fees, there might then be a strug- gle in the opposite direction, and there might possibly be found a disposition in some of the clerks of the peace to leave to the clerks of the district councils the performance of some duties which are not clearly within their province. J, B. Robinson, C. J. J. B. Macaulay, J. J. Jones, J. A. McLean, J. C. A. Hagerman, J. (Certified), C. C. SMALL, Clerk of the Crown and Fleas. SHERIFF. Notice of appointment to the associate justices of oyer and terminer, each Attending the assizes, per diem Attending thj quarter sessions, do. .. Summoning each grand jury for the assizes or quarter sessions Summoning each petit jury for do. do. For every prisoner discharged from gaol, having been committed by war- rant for trial at the assizes, or quar ter sessions or mayor's court , Bringing up each prisoner for arraign- ment, trial and sentence, — in all for each prisoner, whether convicted or acquitted Drawing calendar of prisoners for trial at the assizes, including copies Drawing calendar of prisoners for trial at the quarter sessions, including copies To b« paid outofthedis trict fuuds. 2 6 1 12 6 3 6 5 5 10 5 To be jmid by tho party. RULES. 89 SHERIFF — continued. Advertising the holding the assizes or quarter sessions each court Every annual or general return, re- quired by law or by the government, respecting the gaol or the prisoners therein Every other return made to the govern ment or to tbe sessions, required by statute, or by order of the court . Beturning precept to the assizes or sessions Conveying prisoners to the peniten tiary or to another district (exclusive of disbursements), for each day ne^ cessarily employed , Arrest of each individual upon a war rant. (To be paid out of the district funds, or by the party, as the case may be) Serving subpoena upon each person (To be paid out of the district funds or by the party, as the case may be.) Travelling in going to execute warrant or serve subpoena, Od. per mile ; and the same charge per mile, actually travelled, in returning with a pri- soner. Where the service has not been effected, the justices in sessions to be satisfied that due diligence has been used. (To be paid out of the district funds, or by the party, as the case may be.) Conveying prisoners on attachment or habeas corpus to another diatrict, exclusive of disbursements, where no charge allowed by law, for each day necessarily employed. (To be paid out of the district funds, or by the party, as the case may be) Making return upon attachment or writ of habeas corpus. (To bo paid out of the district funds, or by the party, as the case may be) Levying fines or issues on recogni- To Ik) paid out of tbo dis- trict fundR. £ 8. d. 10 1 6 10 15 5 13 1 5 5 To be paid by Iho party. £ R. d 5 13 1 5 5 •/ \ r 3M- 40 RULES. ■I yi 1 SHERIFF — continued. Bances estreated, £5 per £100 on the sum levied, exclusive of mileage at 6d. per mile. (To be levied ac cording to 8 Vic. chap. 38, section 2-) Carrying into execution the sentence of the court in capital eases. All such sums as shall be unavoidably disbursed, to be taxed by the court or judge who passed the sentence. Attending and superintending the exe cution in such cases Summoning each constable to attend the assizes or sessions Every notice to a magistrate, under statute 8 Vic. ch. 14, sec. 6, exclu- sive of mileage at 6d. per mile .. Keeping a record of jurors who have served each court , All disbursements actually and neces- sarily made in guarding prisoners, or in their conveyance to the peni- tentiary, to any other district, or elsewhere, or for other purposes in the discharge of the duties of the oflBce (when not provided for by law, nor hereinbefore specifically), to be rendered in account in detail, with proper vouchers, to the satisfaction of the justices in sessions, and to be by them allowed. I To be paid oiit of the dis- trict funds, CORONER. Precept to summon jury Impanelling a jury Summons for witnesses, each Information or examination of each witness Taking every recognizance Necessary travel to take an inquest, per mile Taking inquisition and making return Every warrant 8 2 6 2 6 6 1 2 6 1 1 2 1 5 6 8 8 6 To be paid by the party. RrLES. 41 CONSTABLE. Arrest of each individual upon a warrant (To be paid out of the district funds, or by tlic party, aa tlie v^uso may be) Serving summons or subpoena Mileage, 6d. per mile. (To bo paid out of the district funds, or by the party, as the case may be). Attending assizes or sessions per day Attending any justice on trials, under the Summary Punishment Acts, or on the examination of prisoners charged with any crime, for eacli day necessarily employed Mileage in going to serve summons or warrant, when the service has not been effected; the justices in ses- sions to be satisfied that due dili- gence has been used. (To be paid out of the district funds, or by the party, as the case may be) Taliing prisoners to gaol, 4d. per mile, exclusive of disbursements necessa- rily expended in their conveyance. (To be paid out of the district funds, or by the party, as the case may be.) Summoning jury for inquest Attending inquest, for each day other tlian the first Serving notice of appointment of con ■8taJ)les, when personally served ... Levying upon distress warrant, and retui'ning the same, where cliarge not provided by law ,. Advertising and selling under distress warrant, where a charge not provid- ed by law Travelling to make distress, or to search for goods to make distress, where no goods are found, 4d. pev mile, when charge not otherwise provided by law. Appraisement, 'whether by one ap- praiser or more, 4d. in the pound on the value of the goods. To 1x3 paid outofthcdif!- trict fundri. 5 1 5 5 6 10 5 2 6 5 5 To be paid by the party. 8. 5 1 3 6 li ^r , (.■ 42 RULES. OLEHK OF TIIK PEACK. Caiisinp notice to bo published of any Hpccial or adjoiirnod Bcssion, when directed to be done Sending notice of iiny such session to the justices individually, where it may bo retiuisite, for each notice ... Attending each adjoui-ned or special sessions, and making up record thereof Furnishing annually Hats of constables to the shcritf and coroner; for each annual list, to each officer Making up lists, pursuant to the stat- ute 4 & 6 Vic. ch. 3, sec. 32, of persons qualified by law to serve as jurors, resitling within the limits of each Division Court, specifying the place of residence and addition of each person, including the certificate and the transmission of the list to the Clerk of each Division Court; for every 100 names Making out and delivering to the she- riff, annually, a list of all certificat- ed firemen ; for each list of not more than 100 names. (7 Geo. IV, ch. 8, sec. 1) For every additional 100, at the rate of 2s. Od. per 100 names. (4 & 6 Vic. ch. 43) Reading any statute in open court, when required to be done by law ... Copies of depositions or examinations furnished to prisoners or defenda ;ts or their counsel, when proper to bo furnished, and required by the par- ty or his counsel, for each folio of 100 words. 4 & 5 Vic. ch. 24, s. 12 & s. 23. (To bo paid out of the dis- trict funds, or by the party applying, according to the nature of tlie case) Receiving and filing each presentment of the grand jury Arraigning each prisoner or defendant T(i Ihi piiiil lutiit'thcilis- ti'ii-t t'unttH. T.) 1 I" 10 piiid fbo irty. C 8. d. JC 8. il. 2 G 7 6 2 6 2 6 2 G 10 3 1 3 RULES. 43 CLERK or THE PKACK — Continued. indicted, and recording pica. (To be paid out of the district funds, or by tlio party indicted, as the case may bo) Every subpucua ticket, or copy of sub- pcona, when necessary. (To be paid out of tlio district funds, or by the party applying, as the case may be) Empannelling and swearing the jury in every case, whether criminal or otherwise, where by law a trial by jury is to be had at the quarter ses- sions, and where no fee is fixed by statute. (To be paid either out of the district funds, or by the party, as the cM.se may be) Swearing each witness for the prosecu- tion, or for the claimant, appellant, or defendant, upon any trial by a jury, or to go before the grand jury. (To be paid out of the district funds, or by the party, as the case may be. ) Filing each exhibit upon a trial. (To be paid out of the district funds, or by the party, as the case may be)... Charging the jury, with the prisoner, or defendant, upon each indictment. (To be paid out of the district funds, or by the party, as the case may be Receiving and recording each verdict of a jury, in any case of trial by jury. (To be paid out of the district funds, or by the party, as the case may be) Recording each judgment or sentence of the court, upon verdict or confes sion. (To be paid out of the dis trict funds, or by the party, as the case may be) Making out and delivering to the sheriff a calendar of the sentences at each court Certified copy of sentences sent with To bu piiid nutdftho Jin- trict fuiidH. H. 2 G 10 2 6 4 2 2 6 2 6 2 6 To bu luild by the liaity. £ 8. d. 2 6 10 2 6 6 4 2 6 2 6 2 6 I 44 RULES. CLERK OF THE PEACE — continued. the prisoner to the penitentiary after eiicli session Malcing up record of conviction or ac- quittal, in any case wliero it may be necessary, per folio of 100 woi'ds. (To be paid out of the district funds, or by tlio party, as tlio case may be) Discharging any prisoner by procla- mation Drawing bill of costs to be paid by the party, and filing the same where ne- cessary to be made out and filed; as in cases of assault, nuisances, or the like, and in appeals Receiving and filing notice of appeal, and the appeal from any judgment or conviction by one or more jus- tices, where an appeal to the quar- ter sessions is given by law. (To be paid out of the district funds, or by the party appealing, as the case may be) For all services upon the trial of such appeal case, including the receiving and recording the verdict, the same charges as on ordinary criminal trials. (To be paid out of the dis- trict funds, or by the party, as the case may be.) Issuing process to enforce the order of the court in any appeal case. (To be paid out of the district funds, or by the party, as the case may be), Making out warrant of distress or commitment, in any case where no fee is specially assigned therefor in any statute, or in this table Drawing out and taking each recogni- zance to appear, cither of prosecutor, defendant or witness Calling parties on their recognizance, and recording their non-appearance, for each person called Making out lists of forfeited recogni- To bo paid uutufthuiliH- trlct t'uiuU. H. 2 6 1 8 1 3 13 2 G 2 G 2 G 13 To ho puld by tho party. £ 8. d. 6 13 13 2 6 RULES. 45 in each session, making le same, and transmitting OLBBK or TUK PEACE — Continued. Kancea and flncs to submit to the justices after each quarter sessions, in order to their being estreated ... Entering any order of sessions to remit an estreat, and recording an entry of the same. (To be paid out of the district funds, or by the party re lievcd, as the justices may order).. Drawing order of the justices to estreat and put in process (on the whole list) Entering and extracting upon a roll, in duplicate, the fines, issues, ame > ciaments and forfeited recognizances recor ^ oaU itt( herifF Making out and delivering to the she riff the writ of fieri facias and capias thereon Making out and certifying copy of roll and return of the sheriff, and trans- mitting it to the Receiver-7 Geo m. ch. 10) To be paid out of the dis- trict fundH. £. 8. 10 7 6 18 2 6 6 2 5 5 5 To be paid by the party. £. 8. d. RULES. 47 <.LSRK OF THB PEACE — continued. Each copy thereof delivered to a ferry man. (To bo paid for by liim) For certificate of proof of any deed or instrument, where the witnesses are dead ; given under statute 68 Geo. III. ch. 8. (To be paid for by the party obtaining it) Tailing affidavit and granting certifi cato on each U. E. Loyalist's peti ti a, when required to be done (To bo paid for by the partjf obtain' ing it) Receiving and filing each list of mem- bers of fire company For each certificate given to a member of a tire company. (To be paid for by him) Drawing certificate of approval by the justioes in sessions, of sureties ten dered by the sheriflF. (To be paid by sheriff) For every certificate that a township clerk has lodged la Ihc clerk of the peace's oflSce. (The papers required to be furnished by him) For certificate approving of security to be given by any inspector offish (To be paid by the inspector) Administering oaths to any public officer, when authorised to do so (To be paid by the officer) Receiving and filing each oath of qua- lification of a justice of the peace Administering oath of allegiance and giving certificate, where a charge is not assigned for the service. (To be paid by the party sworn) Administering oath to each witness in support of an application for autho' rity to a minister to solemnize mar^ riage. (To bo paid by the minister applying) Administcnng oath of allegiance to each minister. (To be paid by him.) To be paid outofthediH- trict funds. £ 8. d. 10 1 To be paid by the party. £ 8. d< 2 6 2 6 2 6 13 2 6 18 2 6 10 13 1 1 f w I n : :, iii i': m It 48 RULES. CLBRK OF THK PKACE — Continued. For recording recognizance entered into by any register of a county. (To be paid by tlie register) Receiving and filing affidavit of bas- tardy, under 7 Wni. IV. ch. 8. (To bo paid by the party producing it) Drawing and recording appointment of inspector of weights and measures. Drawing, taking, and recording the oath of inspector of weights and measures. (To be paid by the party) lleceiving ana filing accounts and de mands at the general quarter ses- sions preferred against the district, in each session, numbering them, and submitting tliem for audit, and making out the cheques Every copy of entry of verdict, in n case of altering or laying out a road, and every copy or extract of a record or paper of any kind, required to be made by law, or by order of the jus tices, where no charge is allowed therefor, including certificate to au- thenticate the same, where no charge is fixed by law, for every folio of 100 words The same charge for the same service, when rendered at the request of any individual. (To bo paid by him, where no charge is fixed by law) ... For filing each list, return, or other paper, where no charge is specially provided, except accounts and claims ngainst the district, and papers re- lating to licenses or inspectors' ac- counts, and papers connected with matters to bo charged against private individuals, and excepting also any papers filed connected with saving banks, ^to be paid out of the dis- trict funds, or by the party for whom the service is rendered, according to the nature of the case) To be paid )iit(>niiudiN- trict fundSc £ B. d. 5 10 4 4 4 To be paid liy the iwrty. £ B. d. 2 6 10 2 6 4 4 4 RULES. 49 CLEKK OF TUE I'KACE — continued. All It tters to ofliccrH of governmoiit oi otiKM's upon special ))UsiiieHS con- uoctod with the adiniiiiatration oi Justice, or other tlistrict ])urposes, when Avritton by order of the jus- tices, including ii copy for the oilier CltlEK, ]\[iiliing proclainatioji for opening or iKijomiiing the court of Assize and Nisi J'rius, Oyer and Toriuinor smu (ionoriil Gaol Dolivei'y and Quiirtcv Sessions iSlaking every other proclaniatiou Cailinf; and swearing grand jury Callin}:; and swoaring evei'y pilit jury Calling and swearing every witness or constalile Attending a>^sizcs and Quarter Ses- sions, per diem 'I'o 1ki iKiid )ut (il'thi! dis- trict fuiiils. 1 3 10 1 li (5 2 G 5 To Im( paid by tlio 1)11 1'ty. d. Tun if of Fees to be taken under 8 Vic. c7i. 13. I'KE FUND. I'vory writ of en. re lively verdict Kxccnting each writ of trial or eniiuiry, and iinikiiig return thereto Every report jund'.i by the jn(!ge of (ho p'.'cceed- iiiiis on executing a writ of trial or encjuiry ... Kvery certificate of proceedings nnulo by the judg.\ to be transmitted to the Court of Queen's Bench irvery rule reipiiringa. m.-tion in open court 1 Kvcry rule or order of reference Kwry other rule or jmlge's order Kvery recognizance of bail taken by judge I lively allilavit administereil by judge JKvery coniputiitioii>f(i 1 '-i Kvi'rv rolurii of cxoi'iidon, nuiuoy iiiiulo, or |mrty iirrosfo.I 2 (\ Kvory otIuM' rotiini of oxcf.iUioii I «{ J\liIo»»jj;o oil fill writH I'xoiuUul, por mile 4 Kvcry bail lioiitl tiikcii 1! ('» I'iVOi-y iiMsignnioiit of bail bond 1 l'(iuii(la}i;o on all iiioiiiw actiiaily ma or (lolViul 5 Copy of i-a. ro 1 l'\'i' on ovory writ of capisiM 2 (> Ih'awiii^' (loclnratiou oiu'onmiou counts 5 Copy of I'vory papor, linlf tlio anumiit .iP.ovvod for ori!.';inaI. (loiu'i-al i^suc, appoariin '0, intorlocutory juilp;- ini'iit, iiutii'O ol' M't-oif, i'o;2iio\it. or onlrrinji; tinal jinlirnuMit, (MU'li 2 (5 S|K'rial pl(>iuliiii>;s iil'irr (li chir.itioii, (MK'li Ct KvtMy notii'(>, inchnliii^!; coity ami sorvico li (> l>ra\viii|; bill of oosits aflor vonlict 'J (> l^rtiwluj.'; bill of I'usls wluMi no vofil'u't 10 r\«\H'^sa\ y oiitiio.' of pi'ocoivliiiiis on tlio ju(l^ni(>nt. roil, nu'onl for trial, (Unnn^r^^r Ixtok, anil otluT noi*o.s>'aiy iMitrio.'^, {K>r folio of 1U(> words (1 For ovi ry lUH'o.-savy altondam-o I Ib-iof and lo.> on asM'ssuiont (ir wrifof tMiipiiry... 10 liriof and 101' oil a trial 1 10 Koo on ;'.r}:umoni for now (rial, or on doiiiurror... 1 Kvory ^pov'ial nnr.ion in term tlnu' 5 llvt'iy iMnuuoii inoticn iu (oriii, or motion boforo jiidL';i' in '.liainbiM's 2 (> l)rawin_!j; baiipitH'O 4 Diawin;; n\Mij;;ni/ani'o of bail U i)rawiii{i; uiUdavits, inohuliiig ntU'iuIauco, each... li (i ttULEH. 51 R. .1. ) 4 ) Ci ) I !{ ) 1 ;i • > (I I JJ 4 {) >> mi ('» I £ 8. tl. Poo on cvory oxocntion 2 H|»0(Mi>l (lofliiriitiitii 10 Drawing buiul on iippoal lU FKKS TO TIIK ClllKll. Swoiirin;» tlio jury 10 (liilliiin ciiuso Mac'li witnuHS Hworii 8 FKKH TO TIIK CI-I'.KK. Kvcrv writ of oa. ro., ami filing pnuclpe I''iliiig i'vwy Hi>[iiiratc juipor TiiUinjj; vonlift T:ikiii}!; any afVidavit Tiikiii};' liny rooopiizanco of bail livery rnio draAvn up and signed by tho clurk ... livory niio of ri'lVrtincc Mvory Hubpna Kvoiy .search I'luti'ring ovory judijinieiit Kverv writ of oxcenlioii, incluilinjf fiiinj; jtr(i'tMj)o For caeli qnarlcrly account, rondcrod by him to tlio treasurer, to bo paiil by tho treasurer out dl' (lie foe fuiul For every otiier account of IVes received, made and rendered, on a Ie<;al requisition, to be also ])aid out of the fee fund I')xantinin;j; and tiling record Additional I'W« undo' 9 Vic. ch. 7. ir,K I' I'M). F.very wilt of subpaMia y ^ 1 a 4 2 (I 1 1 (i 1 (i >> () 1 ;{ r> 1 <> o 10 10 {) 2 (J Every oath ad)i\inistcred in open court 10 TO TIIK cm;ijic. Kvei-yjudii'ment entered 2 Taxiujj; co:>ts when no judgnu'Ut entered 10 It U onlorcd, llint from jiiul al'tov llio first (lav of Hilary 'form next, bills uf oosts prosoiitod to tho Miislor (i\m\ the several l)e])Uly Clerks of the Crown llmnijihoiit the ]n'ov'.nee ) ibr taxation, must ho 52 RULES. 1 •/ written in a plain loji'iblo hand, or printed, and not contain more than one item in aline ; also de.sifj^natinjj; the term in which the business was done, which may be in the lullowing form : — Michaelmas Term, \Ath Victoria, TAXi:n MF. Cl'STS 0.\ AN ASSKSS^'KNT. InstniL'tions to sue or defoiul fiC'tter of iiotioc AttciKliiijf for v.rit, and paii •'"I'y l'\-o ALtfiiiliiip; HluM-ilf witli niidfoi i*!ii(l sheriiF service iiiul tilinji MiU';i_<;'e (18 miles) KiiteriDgcoimiioii liiiil or a]> ]ioiu';itice Paid for do. writ and tiilidavit iniartf Term. Declaration ( "opie.'* Demand of plea, cn])y, &c.... Attending; sherifl' with and foi I'aiil slierilf service auillilin'; ATTUK.NEY. e 7. 7\. 7 (1 li (i 1 ;{ 1 (» r» 2 () 2 C. .Mileaji'o (18 riiles) Atteuiling; to fdc declaration, and paid reriii fee Vl lending to search for pie and 1 pjiid plea Interlocutor}' jndLnnent, aiK attendiii;!" to si'^n. i'aid I'aiil filina; demand of plea and affidavit of service ... Notice of asses;^ment, copy ami service Attending shci-ilfwith andfoi I'aid sheriff for service and filii Mileaire (18 miles) Drawing record .. 2 2 1 1 3 a a 2 iiisiiur.si:d. C s. d. 3 9 0. 7 a (► U 1 G a y 4 1 2 10 8 a RULES. 53 s. d. 3 t) 7 n •J 1 G 3 9 'J 4 ^AXEI) OFF 2 10 COSTa ON AN ASSKSSMKNT. Attondiiig topass, ami fco I'aid I'articulfirs attacliod (not to exceed tlivco lulios Inn. for brief Ihief Fee Do. to counsel Vttendiiig for subpoena, and paid Six tickets I'aid sheriif for service Mileage AttcndinjT to enter record .. Paid clerk for fee fund Do. for jury Paid crier Paid sheriff ATTOUNUY. Easter Term. \ttending for record, and paid Uravvinp; postea DraAvina; roll Unteriiif!; judgment and at tendance Aflidavlt of dit'bursenienti ant 1 paid Notice of taxation Bill Term fee Lcs Disbursed Postages Foe fund and master PaldAvitnessesasperallidavlt Vmount of disbursements Costs taxed at .C H. d. 6 1 G 5 10 1 6 1 3 12 1 1 5 o 5 3 9 2 2 6 5 7 10 6 7 10 5 2 9 WbUURSED. G 3 12 13 3 2 10 2 G 6 16 3 2 G 10 7 2 1 2 10 4 12 1 10 8 5 2 9 54 RULES. TAXED OFF. I a ll H i'i ON AN ISSUE. The same ns on assessment, denmntl of plea and copy inclusive, then proceed. (Utendiiig to serve Attending to file and paid ... Demand of plea, copy and service Term fee rVttending to search for plea and paid Replication and copies Attending to file and paid ... Attending to serve Drawing record 6d. per folio Attending to pass and fee ... Paid (Proceed as before.) Disbursements as the case may be. Fee with brief at trial or as- sessment, in cases of tort, or in ejectments, or in mat- ters of contract, where the sum to bo recovered ex- ceeds £100, (tobeincreas ed by the Master in his discretion to a sum not ex ceeding £5, in actions of a special and important na- ture) In other cases ATTORNEY. £ s. 13 1 8 2 fi 5 13 10 13 13 5 2 10 1 5 DISBURBES. £ 8. d. 4 10 10 G 3 The bills for pltiintifF and defendant in ejectment have been omitted, the practice, and consequently the costs, being materially altered by 14 & 15 Vic. ch. 114. At the foot of or to accompany each bill of costs, when the action is special and disbiirsements heavy, the following affidavit will be required : — u ».■ HULKS. 55 4 1 10 G 3 I, A. 13., the attorney in this cause (clerk or agent hiiving the management or conduct of the cause) do swear that the disbursements charged in the above bill, are, in every respect, correct and true ; that the pleadings are special, and Mr. was employed as counsel to revise the same, and that the declara- tion, replication (or, as the case may be) contain — folios. A. B., Attorney for plaintiff or defendant, (As the case may be). Sworn before the taxing officer, or commissioner of the court. } GENERAL DIRECTIONS. In making affidavits of increase, there are several facts that are required to be clearly, distinctly and positively sworn to, without which the master cannot satisfactorily tax the costs, nor will he allow the charges made. The affidavits must be made by the attorney, or some clerk having the management or conduct of the cause, or by the client, for any pay- ments that may have been made by him to counsel, or to witnesses, or otherwise, during the progress of the action. The place of abode of the witnesses, the places and distances at which they are subpoenaed, and the distances they have to travel for the purpose of attending the trial, must be distinctly stated, and also that they are material and necessary witnesses for the party on the trial of the cause; and it must be stated positively that they did attend at the trial, and also that they attended as witnesses in no other cause (or otherwise, as the case maybe). The num- ber of days they are necessarily absent from homo on the trial must also be accurately sworn to. If an attorney should attend as a witness, it must be stated whether or not he attended at the place of trial as attorney or witness in any other cause, or whether ho M 'i!' )i f)(; 111 fiFS. had or liiifl not any other 'nisiness Ihorc. It is also I»roi)er to .stato on what day tho cau.sc was tried. A reasonable allowanec is made for niajjS or jtlans, where the same ajipear, IVom the nalnre or cinuni- Ktanees oftlie east>, to he neeessary and ]>ro])er. The necessity thereof shouhl also appear in the allidavit. nrARLKS 0. S.MALL, Chrk of thi Ci'dini (did Pleas. CROWN OKFICi']. 1. (ji) It is ordered, that the oilices of the derks of the (Jrown and JMeas be kept (»penas lollows, that is to say, — diirinu' term, and one Avcek after every term, from ten o'elock in the mornintr luitil three o'clock in the afternoon, and from six o'clock until oi^ht o'clock in the evenin<;-; aiul except between the first day of July and tlu; 21st day of Anf:;ust, at other times from ten o'clock in the niorninjj: until fimr o'clock in the afternoon, Sundays, Christmas j)ay, CJood I^'riday, Easter IMonday, the birth-day of the kSovereiji'ii, and any day appointed by pcnoral proclamation, for a general last or thanksgiving, excepted; and that })etween the first day of July and the twenty-first day of August, the said ofhciss shall be open from eleven o'clock in the forenoon until two o'elock in the afternoon.— 18 H. T. l.'{ Vie. 2. All writs of sunnnon.s and cipias, and all otlier ■writs, issued out of the Courts of Queen's IJench and Common ]Meas shall be ,ngncd and sealed by tho Clerks of the Crown and I'leas in tlie said courts respectively, who shall, from time to time, supply their deputies in each and every county with blank writs, so signed and sealed, to be filled up and issued by sucli deputies as occasion shall re(][uire. — 11 II. T. IJJ Vic. (o) The court refused a rule to set aside a li. f'ti., bocauso issued by the otticer at his own house, before office hours, llglkcr et al. v. Fuller, 10 U. C. K. 477. tlK UIJLES. hi DECLARATION. ( /») It iH further ordcrod, that the twcnty-nltith rule of Kaster Term, IHI'J, be rescinded, and that every declaration shall in future bo entithHl in the ])n>i)er court, and of the > dtinand only when his declaration contains comit-i in indebitatus assumpsit, or iu debt on simple contract, and even then the only penalty for not delivering tlicm is, that he Avill not bo allowed for them in costs, if afterwards compelled to delivur them by judge's order. In other cases the former practice still continues, and if particulars are rofjuired, the defen- dniit must proceed by sunnnons and order in chivmbors, or by rule in thoPraotico Court to obtain tliem; and his .'ippli- cation may be made before a;>poarnnce, and granted witluiut any aRiduvit, if the judge think lit, by rule T. T. 3 & 4 Wm. IV. If tlie particulars delivered are not sufficiently explicit, «n oi'der may be obtained in the same manner as the fir^t order, for better jiarticulars, and if the jilaintfif does not comply with the order for the delivery of particulars at nil, IMr. Cliitty says in his Arch. I'r. Tth ed. \W>:\, that the del'cndant's course is to obtain a further ovdir, coiapellii);; the plaintiff to deliver tlicm in a spe-.-Hied time, and expressly rcrscrving to the defendar.t the liberty of signing judgment of non lU'O'j., if not delivered within it. — (Sec Shaver v. Corrcy, 11. T. 3 Vic.) .Such an urder hiis, hr/Avevei", been refused. — Kirby v. Snov.'doTi. 4 Dowl. 191. Annexing the particulars to the re'.;ird di^ipenses with the necesr-ity of I ]U'()of of their delivery. — Macartliy v. iSniitii, 8 J>ing. 140. If the plaintiff anncK to the record part:cul;ivs viirying from those delivered to the defendan', and the defeialaiit is pre- pared at the trial to prove delivery of the particulars to RULES. 71 oil .'■inipl'' contract, the pluintiff sh;ill deliver full par- ticulars of lii.s cleiuuiid under those counts, where such parti culu's canberonipiiscd within three folios; and whore the Hanio cannot be coiiiprisod within three liilins, ho 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 ; and to secure the delivery of particulars in all such cases, it is further ordered, that if any declaration shall be delivered without such particulars, or such statement as afore- said, and a judge shall afterwards order a delivery of partieidars, the plaintiff shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the particulars lie may afterwards deliver ; and that a copy of the par- ticulars of the deii'und, and also of the particulars (if any) of the defendant's set oil", shall be annexed by the plaintiff's attc)rney to every record at the time it is entered with the judjzo's maishal. — 7 E. T. 5 Vic. liim, the tlel'ojulant nitiy nonsuit the phiintitt", if ho is imiiblo to give ill ovivloncc any cause of notion included in the jinr- ticular.s delivevod; or if not lu'cjiaied with pi'oof of the delivery of the pavtiouhivs, the defendiint 'will bo entitled to :i new trial, iindtho i)laintifr's ntiorncy might bo made to |:!V the costs of the forniei' triiil. — Morgan v. Hiirris, 1 Dowl. 570; ii C. & J. 461, S. C. In actions of tort, par- ticuhu's will somotinics be grjinted, ixs in nction for nn (v-'CJipe, — por Abbott, C. J., "tlic iirs^t principle of justice is that defendant should bo inforni'-d what ho is cliarpMl with." — Web.-^lor V. Jones, 7 D. & liy. 774. Particulars wcro oi'dcred in nn action dO the case for disturbing ;i ferry, as to tlie numbrr of pnsscngt'rs, goods, &c., convoyed. — Ives V. Calvin, 1 U. (". (^"h.-'in. Hop. H; where see the following cases cited bv Macaulav, C. J. — !>oe I^irch v. riiillips, G T. R. 597, also "" T. R. 3;5:! ; CoHctt v. ThoMippon, 3 B. & P. liK); Uol)ertrfv. Rowliiiids '■■' -M- 'c AV. 543; II. v. Flower, 7 Duwl. P. C. i'M ; K. V Cm-wood, 3 A. & E. 816; Snoltir.g V. (Miennoll, 5 If >wl 80; 8')wtorv. Hitchcock, oDowl. ""i-l 1 Ciilltv Ren. O'.iM ; II. v. Hodgson, 3 C. V. 422; D; IV ; 3 V. Chapman, G A. & E. 707; ilislcck v. DeJiiiid, 2 Dowl. N. «. 277. i 72 RULES. 'J. (/>) Ta nil cnsos when a doclaration nliall Iks (IcOivonHJ not jic(t()nipani(Hl by particMilars of tlu; plain- tiff's demand, the defendant may survo the plaintilF, Ijis attorney or a|;ent, as the case may he;, with a d(Mnand of particulars, and no order of the court or a jud«;e for the diilivery of particulars shall in any ease be refjuircd, and the service of such demand shall ftperate as a stay of proceedings, until particvdarsslnill bo delivered, after the delivery of which the defen- dant shall have the sanu! time to plead as he had nt the timo of the demand beiu'r served. — I*]. T. f) Vie. ' ' ii. ■• !'i {//) Tlioro fUKMiis to be nil iiiconsistoiicy between tliiH I'ulo iiiid \(). 7 1']. T. "» Vic. Ill tlie bitter it is proviilcil, tiiiit ii> actions of indchluttus a^.vtmpni/, or in debt on simple ooii- triict, unless tb" y^bilntiff sball deliver piirticnbirs witli his (letliirntioii. Hi.-it lie sluill not bo nllov/cd nr.y co-ti on their delivery iit'terwiirds, under summons imliuntilf to apply to the court or a judge to jn-oceed Avitbout fiirnisbiiij!; particulars, where they liavo becTi demanded, if the action bo of such a nature that an order for particubu's would not have heretofore been gvaiit- cd. It would seem then, by the operation of this ride, that u summons and order for particulars will not in any case bo necesyary after service of declaration, and will require only to be taken out in cases vhcrc the defendant desires to ob- t.iin particulars before declaration. K. 7 T. T. ■) &, i Wm. IV. having ordered that a summons for particulars, and order theieupon, may be olitaiiied by a defendant before appearance, and nitiy lie made, if the judge thinks iit, with- out the production of any aflidavit, and the new rules applying only to a tlemand of particulars after declaration. After a demand made and ,';worn to, the court made a rulo for particulars of demand to be delivered, and to stay pro- ceedings in the meantime, absolute in the first instance, — Jbitlei' V. Kicliardsoii, i} (). S. (H)5. But a jmlge's order for the delis'cry of particulars, with a stay of proceedings, after service of non-bailable nroccss, does not urcvent vilaintiff 1> IJ fnun ari'esting the defendant ou uu alias writ. — Wilson v. Wilson, (.). s. '2r, RULES. 73 Provided always, that tho plaintiff shall in no cnso be entitled to si<;n judgment urior delivcrinji; particu- lars upon demand, until atlernoon of the day following that on which they were delivered. — U K. T. 5 Vic. And provided also, that in case the defendant shall demand particulars in any ease when, by reason of tho nature of the declaration, an order for particulars would not heretofore have been made by a judge, the plaintiff may apply to the court or a judge to bo allowed to proceed without furnishing particulars, notwithstand- ing such demand; and if any order to that effect shall be granted, it shall be at tho cost of the defendant, unless the court or judge shall otherwise order. — 9 E. T. 5 Vic. PRACTICE. 1. In future the practice of this court, as well as the ([uantuni of costs to be allowed in all proceedings, is to be governed (when not otherwise provided for) by the established practice of the Court of King's Bench in England.— 1 U. T. 4 Geo. IV. Practice in issuing xcrits. 2. Every writ of summons, or capias, shall contain the names of all the defendants (if more than one) in the action ; and shall not contain the name or names of any defendant or defendants in more actions than one; and shall state in the margin the city, town or place at which the same was issued — as Toronto, Kingston, &e.— 1 II. T. 13 Vic. n. That the rule of T. T. 3 (fe 4 Wm. IV, No. 3, relative to the indorsing a statement of the amount of debt and costs on any bailable writ, and warrant and process be rescinded. — 4 H. T. 13 Vie. 4. That any alias or pluries writ of summons may, if the plaintiti" shall think it desirable, be issued into another county; and any alias or pluries writ of capias may be directed, to the sheriff of any other county, : 74 RULES, Mi ]] ,f I f the pliiintiff in such case, upon the alias or pluricH writ of suinrnons, desciibinp," the defendant as late of the place of which he W);S described in the first writ of summons, and upon the alias or p-lurics writ of capias referring to the preceding; wi'it or writs, as directed to the sherHl' to whom they were in fact directed.— 5 H. T. 18 Vic. 5. That the alias or pluries writ of summons into another county, shall be in tlie following i'orni : Victoria, hi/ the grace of Goil, tCv. To C. 1). of , in the county of , laic of , in the county of (original county). We command you as before (or often) we hav; commanded you, A:c. (as iu the writ of summons No. 1 in the schedule of the said act.) And that the alias and pluries writ of capias shall be in tlui following form : Victoria, &c. To the ^herilFof We command j'ou, as hovotofurc we have commanded the sheriff of , tluit you take C. D. (as in the writ of capias No. o in the schedule of t!ie said act.) ■—0 n. T. 18 Vic. G. Tint any deputy cleik of the crown and pleas who shall issue any iillas or })luries Avrit of summons into another cimnty from (hat into which the original was issued, or any alias or pluries writ of capias directed ti> the sh(;ii(Tof any other county than that to the sheriff of which the ori<>imil wiis directed- shall mark ii' the margin of every such alias or pluiies writ, a memorandum stating froiii what office the original v.rit was is.suod. Ex. (Jr. Original issued at (Toronto, ITamilton, I'cc. as the case may be) by (officer's name.) — V II. T. la Vic. 7. No alias or pluries writ of summons or of capias, distric bo (lee HULKS. h1i;i11 bo issued IVoiu any other office (h;in tlmt iVom ■\vhicli the original ■writ of suuiiuuus or capias Avas iysuod.— 8 11/ T. l:J Vic. PracUcc in diylariug, 1. In i'.ll ca«cs ill whith a doreiidaiit phall have been or sliall be dtitained in ])ris()!i on any writ of ('i!i)ia.s, or bciiii;' arretted thereon shall v.o to prison Kir ■want of bail; and in all cases in ■which he shall liave 1/een or shall be rendered to prison befonMlcclaratinn, on a!iy such process, the jtlaintiff in such jtrocess shall declare apiinst such defendant bel'ore the end of the next term after such arrest or detainer, or ren- der and notice thereof; otherwise such defendant shall be entitled to lie discluu'g'ed fronj such ari'est or detainer, upon enterina' a contnion ap]iearaiice, unless further time to dcclai'e shall liave been uivtm to such jl.iiiuiif by rule of court or order of a judpe. — •{ iO. T. ;> \ le. 2. A declaration la.yinji; the venue in a dilfercnt district from tlia.t mentioned in the ])roces^, shall not be deemed a waiver dl' the bail. — G \\. T. 5 Me. ;5. When the plaiiitift' declares apiinst a prisoner, it sliall not be necessary to make more than two co])ies of tlu! declaratiun, of which one shall bo served, and Miother liled with an atiidavit of service, as in non- bailable cases.— S Vl T. ^ Vic. 4. \ plai)itifV .shall l)c deemed out of c:)urt, \ude.'-s he ileclare withiii oiie veur after the process is reiiirna- bl.'.— lU il. T. J;i Vie. ;"). ITpon all -wills of ciipias, when the de.'emhiiit shall not ]){i ill actmd custody, tlio pl.-iiiliff, at llie expiration of e;,L:ht days after the execution ol' tiie writ, inclusive of the day of such execiuion, .shall Ix' it liberty to declare tiee to jilead, rei>ly, rejoin, kv. be necessary in any ease, wlieiher baiiabl(> or non bailable, and Avhetlier pri- viiem'd or otherwise, l)ut a demand ^llall be sntlieient, and the i)arties respectively shall bt' bonnd U) plead, reply, rejoin, kc. in ei<;ht days wWov the serviei; oC niidi (lenian( b \u\\ es,< othei »vise ordered h V tl le eonrt or jndge.— 10 K. T. 5 \ie. 'l. ( K. T. 11 fJt'o. I\'.. iiU'l i-ulcs to plcaii, i*i;c. vvcio done ; u;iy with inid 11 ilcnijiiui Mibstitutod under tli« j;;niu' rule mid iJ. -1 H. T. 11 lii'u. IV., iiiul it w.'is licld lcail ^ivoa ia vacatiuu. in prdccod- iuj;'s ou an ox (iHi'.-in iutunualiiai, iit tlic suit citlior of the (JiuH'u or the Attorney Oeueral, l)ut is eutithvl to a rep;ulnr rule to jilend imd an ii;iparl(niri\ tlie rules .•il)o!ishi!ij!; inipar- lii: ice not extendiufi; to e ises ( )1' tills kind. — Uevfuia v. Punn- liaiii, T. T. 7 Vic. P. ('., .Mccnulav, hut -co rul i). T. 1 ;; V titli ire la fi;is, wmcn aoo lislic- It. inilKllMMMCO fn all suit", actiiuis ur proceedings by scire fa-'ias, iai'ornia- tioii, or vithcrwise. ('/) U' the dcrenil;uit waive Ills plea wltlinnt leave of liio court or a .inti!_n', the jilainlilf nriy sijiu jniiinu-nt. — Palmer 1/: xon, .") I). .^. Uv. (■). rally ivive leave to d 'I'iie court or n jud;j;e will ji;cn o so, on the i Icfom ant .s ajireenif!; to take short notice of trial. — Tiivlor v. JoddreU, 1 Wils. l^ot; Wilkes V. Wed, 12 Wils. 201. " If the defendant be allowed to withdraw his plea, and bo ordered to plead forthwith, ho EULES. i i except l)y c()iis(!iit ol' the ji'.iiiiliit", or i'or tlio purpose t)i' cdiites.siiii:,' the Jictioii. — II I']. T. 5 \\v. 'I. ]{' :i (h'feiuhiiit, jil'tcr ei'iiviiiji' oyer of a deed, (Unit ti) insert it ;it lh(! heiid (•!' Iiis pU':i, tlie idaintiff, on UKikinix up I lie (leniurrer book, or in any entry of tlie proceedinus on rocui'd, may, if lu; think (it, insert it for him, but the costs of siu.-h insertion shall be in tlu} (lisention of the laxin<>' ollieer. — 12 \<]. T. >) Vie. 4. (<■) It shall not ])e necessary that any pleading be siuiied by counsel. — lo K. T. f) Yic. '). ( /') In any case in which the jjlaintilf (in order to avoid tlu; expense of a ])lea of payment) shall have must i)loii(l Avith'm twoiity-f'our liours ; Avlion ordered to ^ plead iiistaiitev, lie nmst plead on tlio siuiie day, or the I ItlaiiititriiiMy si^ii jndi!;iiieiit. — Cliit. And). I'r. 7 *it\. 181. If the del'eiiilaut do not rejoin, rehut, iSie. il is deemed sin iibandonnuMit of the plea in rej-peet of whieh he oii;;lit to have i'e)(jined, ^'e., and if tliei'e he no other jilea to the same i)art of the eanse of notion, the plaintiff may ! T. II. ]ry2. 15ut the plain- tiff may si};,ti judi.':ment for -want of a rejoinder. — Ibid. {,■) Wy W. 8 T. T. ;; & 4 Wni. IV. it was ordered, that it shoidd not lie necessary that any jiieadings Avhicli coiieludcd lu the eountry, .should bo signed by counsel. (/') In assumpsit forAvork, kc. the particidars of denuind pontuined items anuiuntin;;- to Jlllij 7s. (Id., and stated that the action was brought to recover ,£27 18s. Od. the balance due from defendant to plaintiff' on the subjoined aceount, (tflir ijirin;! rr( ol" tlio .«ot oH*. — Uuw- laivl V. I'.l.ikslcY ot !.i. I (l I). I(»;!. Dfht lor .icoods sold iind delivered : tiic paiiicnliifs claliiu'd ti liahiuce ol" ,tl!'.) for goods soM aiid delivcri'l. aftir iil'.owiii;.'; credit for £\)20 " paid at various times." At tiie trial liie plaiiitilf proved a -elaiiii for C'.U'K and adinitled that part of this was for XSl, tho price of a tea urn, -wliicii tlie didViidant had le- tnrned. and plaiiitiiriiad taken back; Held, tiiat the plain- t;il' niiiilit shew tliat the CS-! waii also a part of the ,t'.>20 allowed as money i)aid, ai\d niiiilit, therefore, I'ecover the balance between'^'.* lil and i;'.l:iU. — l.aii.l) et al. v. Miekle- tlnvaite. 1 Q. I?. 4l)t). Where a plaintilV in his particuhiv.s of demand aibuits a payment jienerally thus, *'('r. by bills ,Cl-'>00."" thi< is to be taken as a payment admitted to have Iteen made to plaiutiirby defendant. — Smelliurst v. Taylor, 12 M. vt \\\ ol"). Ill an ai!tiou for use and occupation to recover ,Ctl2 8s. lOd. liahmce of an account of ,£(J4 Os. ll)d. the piaintitV admittetl X-1 12s. Od. re-vived in the bill of ]iart;eu!ars. It api)eared defendant had taken the premises from the husband of plaintiti", .aud continued in posMessiou t^onutimc jifter his death ; Held, that ])laintilf was not con- cluded from shewinij; that part of the Mini of £~l 123. Od. was paid to her husband in his lifetime, and jinothcr pait was ]>aid so recently after his deatli that it could not pos- sibly havj been in resi)eet of a debt due to lierself. — Mercy (lah.t. i:> .(uri:-t, 412 Kxcli. S.-)1, I'artieulai's of demaiul served l)y the plaintiif on the defendant, contaiiiiu}!; an admission of payment on noeount, and shewin.o; a balance in favour of the ]dainti(f, are put in at the trial liy tho ili'fendant to prive the iiayment. The jilainlitl'tiien relies on the ])artieulars so put m hy the defeiulant, as a link in tho chain of evidence, to iluMi' that he was entitled to a verdict for the balance therein mentioned; Held. f':.'t thou/ih the ])arti('ulars rendert^l by ih.e plaintiif. and made use of by t!u> defendant, were not evidence ]ier se of the balance tlua'ein stated, .-till tha,; the wi'.ole of the |>;irticul,ars ou;;ht to ji'o to tliejnr\ as a faci, in connection M'.th other facts in th a:-e. to »> M>t them in forriiiii'.!; their verdict. — Ivc esar V. Ihupey, 4 U. ('. It Vide al.-o on this point 12 Law Jour. N. ,S. :J2; Eastwiek v. Jfarmaii, (i .M. & W. 1' RL'LIOS. y):)itl to llio ])l:iintifF, it sliiiU not ho nocossavy iov jtlio (It'teiulaiit ti) plead tlu; paynu'iit of such sum or sUius of nioiusy; but tliis rule is not to apiily to oases wluH'o \]\o plaiutiH'. after statiiijj,' the amount of his (leiuand, states tliat lie seeks to recover a certain balance, without liiviiiL': credit for any particular sum or sums. I'ayment shall not in any case be tdlowed to be iiivon in evidence in reduction of dtini:i<.''es or debt, but shall be pleaded in bar. — 15 E. T. 5 Vie. (i. if/) In every case in uhicli a defend.int sludl plead the ueneral issue, intendinu' to u'ive the special Townson v. .Tiickson, l;J M. & ^\' . o71. A ])l!iiiilitt' is not liouml to ^ivc ik'!'ciiil;uit a [-tiilciiiciit of the itoms of l!io ;-uiiis for which he luis givon tlio lU'tVndiiut croi;it in liis ptivticulars of douiand, — Myatt v. Gi-ecn, Vi M. & VV. o77. (//) Tl\o comitrehonsivonoss of the jrvoncral is.'-Mic by st;itate is not !\itect(.';l \>y tlio now rnhss. — I\o,, \nidev which the now rales were ordered, is similar,) that no rulo or order, made liy virtue of its enact;nents, shall have the effect of depriving; any perscai of the power of pleading the general issue, and giving the special matter in evidence, in any case where he may bo ei\title;l to do so under any act of parlia- ment now or hereafter to be in force. — Bartholomew v. Ca' ter, '.> Dowl. HOCi. Where in an action for trespass for hunting over the plairditt's land, the defendant pleaded not guilty " by statute," the court, on an alfidavit of the plain- titf'stliat he could not discovev tlio statute, under which the del'endMut meant to justify, made absolute a rule upon the defendant, to point out within three days, the statuto inider which the plea was ]ileaded, or else tiiat the words ov v. 10 •bv statute" should be struck out of the margin. — ( Forrester, 8 M. & \\. ;;12. If a (k'feudant does not add t words "by statute"' on the margin of liis plea of "not goilry." he cannot give special matter in cvidiuice, to bring hinisc!!' vrTi'i'o i;n act of parraiueiit, which .'dlows a iilei ondenlly of tlie Minis credited in tlie particu- lars, he is entitled to a verdict. — Eastwick v. JIarnian, G M. & W. 13. The court refused to compel a defendant to deliver particulars of a plea of payment. — Phipps v. Lothian, 8 Dowl. P. C. 208. The form of plea given above for pay- ment of money into court in actions of debt, .seems imper- IIULE.S. 81 A. B. plaintlfT, and C. I), defendant. The defendant, by The day of , his attorney (or in ])erson) says (or in case it bo pleaded as to part only, add, as to £ , being part of the sum in the declaration or count mentioned, or as to the residue fret, as not making any mention of the damages accruing for noTi-jiaynierit of tlie debt. — Henry v. Earl, 8 M. & \V, '_*:J8. If tlie defendant omit tn plead this plea, lie can, it f-eems, derive no benefit as to costs from the payment into court. — Aillard v. Uooth, 1 Bing. N. C. C9o — an'l such pay- inrnt into court must now in all cases be specially pleailed, \i Uie plea begins "as to so mucli parcel," &c. and concludes with any prayer of judgment, it is bad on special demurrer ; also, if the defendant intends to pay money into court on one part of the action, and to defend tlie other, the pleas in l);ir should be pleadt-»l first, and the payment into court bo ]iieai!ed as to the residue. — tiliarman v. Stevenson, 3 Dowl. TOO: Porter v. Izat, 1 Tyr. iS; G. 0^9. It is no ground for jnd;i.iiicnt non obstante veredicto ; and scnible, not even of deiiiuner, that tin' iilea alleges tlie money t> liave lieen ■jiaid into coiii't by leave of a judge before tleclaration. — IMwards v. Trice, (5 Dowl. I'. 0. 487. According to tho )ir;!ctico of this rcmrt, it is not necessary, wlien a defcudaut ]i]ead'- p 'vment of money into court, to obtain t',e master's receipt for the money in tlic margin of tlie plea. — Miles v. llnrwood, 1 V. C. 11. 515. A suinmons may be taken out til pay money into court before declaratiou, but it must be .'d'tyrwards pleaded. — Molson v. Miuiro, 1 U. C. Cham. Rep, '.•7. To an action of indebitatus assumpsit, defendant pleaded, 1st. As to all but £100 Is. lid., non-assumpsit; lliid. As to £28 12s. Cd. parcel, &c. payment ; as to ,£77 Os. M. residue, (Sec. payment into court. PlaintitF took issue on the first plea, traversed the second, and as to the third took out the money paid into court ; Held, that it was open to -the ])laintitt' on tlie general issue to prove a charge not coveied by the otlier pleas; and that the defen- d:iiit liaving sworn that li;« paid in nothing on account of lliat cliarge, was precluded from shewing that the other items, which the plaintiff was entitled to, would not cover the money paid into court. — Taylor v. Flood, 10 U. C. R. 458. e2 '■, 83 RULES. of tliG sum of c£ ), that the plaintiff ought not further to maintain his action, because the del'ondant now brings into court the sum of £ , ready to be paid to the plaintiff; and the defendant further says, that the plaintiff has not sustained damages (or in actions of debt, that he was never indebted to the plaintiff) to a greater amount than the said sum, &c. in respect of the cause of action in the declaration mentioned (or in the introductory part of this plea mentioned), and this he is ready to verify; where- upon he prays judgment, if the plaintiff ought further to maintain his action thereof. — 17 E. T. 5 Vic. 8. (/) The plaintiflF, after delivery of a plea of pay- ment of money into court, shall be at liberty to reply to the same by accepting the sum so paid into court, in full satisfaction and discharge of the cause of action, in respect of which it has been paid in; and he shall be at liberty, in that ease, to tax his costs of .suit, and in case of non-payment thereof within forty- eight hours to sign judgnKsnt for his costs of suit so (?) The plaintiff may at onco, without prejudice, take the money out of court. If the plea of payment into court be to the whole declaration, and the plaintiff does not accept it in satisfaction, he should reply according; to the rule, and pro- ceed to trial as in ordinary cases. If the plea be oidy to part, and there be another plea to the rest, and the plain- tiff accepts the money paid in, in satisfaction of part, but desires to proceed as to the residue, he shall reply as to the payment that he accepts it, and reply to the other plcji, and proceed to trial. If the plea be to the whole, and the money be accepted, he may tax his costs, and if they be not paid in forty-eight hours, may sign final judgment. There is no necessity for the defendant to produce at tlio trial, the rule for the payment of the money into court. Where to a common count in debt, the dcfendajit pleaded payment into court, and tliat he never was indebted to a greater amount, and the plaintiff replied that he was indebt- ed to a greater amount, the replication was held bad on demurrer, for not stating that the defendant was and is indebted, accordipg to the form in the rule. — Faithful v. Achly, 9 Dowl. P. C. 665. taxed, dauingx to him, the sai( bc'ug be enti so RULES. taxed, or tlio pliiintiff may reply " that ho sustained daiiinjios, or (that the defendant was and is indebted to him, as tlie ease may be,) to a greater amount tlian the yaid sum" ; and in the event of an issue thereon bcMig found for the defendant, the defendant shall be entitled to judjiment and costs of suit. — 18 E. T. 5 Vic. 9. (j) Every pleading, as well as the declaration, shall be entitled of the day of the month and year when the same is filed, and shall bear no other time or date ; and every declaration and other pleading shall also be entered on the record made up for trial, and on the judgment roll, under dat»; of the day of the jnonth and year when the same i.^spectively took place, and Avitlumt reference to any other time or date, unless otherwise specially ordered by the court or a judge.— 30 E. T. 5 Vic. 10. (7i-) The name of a district shall in all cases be stated in the margin of a declaration, and shall be ij) See note to rule 16 II. T. 13 Vic. title " Declaration." (k) If, notwithstanding this rule, the venue should be stated, the ojiposite parly can only move to strike it out, and caunot deuiuv. — Farmer v. Clianipneys, 1 C. ]M. & R. ;iG9 ; Fislier v. Snow, 3 Dowl. 27 ; Townsond v. Gurney, 3 Dowl. i68. But if tliere be no venue, cither in the body of the declaration or the margin, the jiropcr course seems to be to demur. Jleniington v. Taylor, 1 liiitw. 230. In local actions, Jayiiig the venue in the wrong county, is a ground for uorisnir, or if the error appear on the face of the record, of dcmui-rer ; but after verdict or judgment by default, the error will be cured by the statute of jeofail. — Thursby v. IMant, 1 Saund. 241 n. The locality not appearing on the declaration, in covenant by assignee of lessee against lessor, and no issue being rsiised on it; Held, that defendnnt was not entitled to a nonsuit. — Boyes v. llewetson, 2 Bing. N. C. 575. Vide also the bailiffs of Lichfield v. Slater, Vvilles, 431 ; Warren v. Webb, 1 Taunt. 37".l. The plaintiff com- mencing a local action in .a wrong district, that is, neither in the district in which the cause of action arose, nor iu the Home District, cannot afterwards, under 8 Vic. ch. 36, be allowed to amend his declaration by changing the renuo to CO 84 RU1,E8. : f I : I taken to bo tlio vonuo iiitondcd hy tlin ]il;iintift"; and no vciiiu! lU'cd )»o st;iti)d in \hv body of the dcrl.u'a- tion, or ill ;iny nubso((iicnt pleiidinjj: ; Provided tint in ca>i;s where loea! desc-riptioii is now i'e(jiiiied, sueh local description sliall be uiven. — Jil J'L T. ;") Vic. 11. (/) And wlnn-eas, by the mode of pleading hereinal'ter pivscribed, the several disputed facts the proper districl. Tlio iriTjj;uliirity is in the issuo of the ori;;-;iiai )irocc.-^s, iiiul inciu'i'blc.--— Vuugimu v. Hiibbs et ah, 1 U. ('. CiiJim. 11l'i» 7('.. (/) Two t'ouiUs (loscril)in,a; the siunc contract, ciuiuot l>t) iillowoil, tliou};'li the ilef'(;ii!liUit be doucribcil in one of them as jointly resiM»iisi))l('. in the other ;is sevenilly so. — C'hol- nn)n(le!ey v. I'jiyne, -l Uinp;, \. (J. 7t)8. So wliero a deehi- vat'.on contained one count, claiminji a lee or reward in tho iKUiie of niet.iji'c on coals imported into the port of Truro, alleji-ed to be due to the piniutitV, as h-^-^ee under the Corpo- ration of Truro, of an ancient (illice ol' meter, to whic'i the I'eo was statetl to be incident, and ar.other count claimin;^ the same as a port duty; the' court iutld that these counts Avere oidy ditlVrent stater.ients of tlu' same subject m-itterof complaint, within tlie nieanin;); of tlie above rule, and Hint one of them must bo struck out. — .lenkins v. Trelonr, 1 M. & W. IG. And -where a declaration in ejectnumt oa tho demise of the churehw rdcns and overseers of n parish to recover i)arisli projierty, coiitnined two ^-ets of connts, one spccifyiu}? the nanu>s of the individuals, and tlie other not, the court ordered one of them to be struck out. — Doc Landeselio v. Roe, 4 Dowl. 222. ])Ut where the first count Avas to recover double rent on tho statute 11 (Jeo. II. chap. 19, sec. 18, and tlie second An- use and occupation, both counts were allowed to be retained. — Thoroton v. White- liead, 1 M. &. W. l-I. And in an action on tho case against a slu'ritf, one count ha-- been allowed for not arresting;, and another for an escape. — (Juest v. Everett, 9 liOj^al Observer, 75. And also against a carrier, one count for not can-yiiif; safely to a port, another for not conveying from the wharf where the goods were landed to tho plaintiff's warehouse. — .lames v. Ijourne, (! Dowl. (JOo. In an action on a policy of insurance, two counts were not allowed, one allej:;ing tho lor.s to have been occnsioned by the perils of the seas, and the otiier by the barratry of the master. — Blyth v. Shop- pard, 1 Dowl. N. S. 180. AVhcrc the defendant took pre- mises under a demise for three years from Chris'tmas, 1839, I "■ L i RULES. 85 ]nat(!ri:il to the merits of tho caf^o, will, bof v the triiil, bo bninjibt to tlio iioti(,-o of th(> ri>s]H'cti\( psir- tios more distinctly thun licrctoHiro, iitnl by th(>;u-t 7 Win. IV. ch. B, sec. lo, tho powers of anieiiutly Mccrucl duo, tJKit tho phiiiititl' was not entitled to li.ive a count on tlio (iciniso, mikI al-o a count for use and occupation, but that ho must nuiko his election. — Ardeu v, rullen, \) .\f. & W. 4;jU. A count in case for emplojing a Yc^-c' let to liire to the defenilant in an illc; ,il manner, Avhereby tlio vessel was rendered liable to t'oi-reiture. may be joined with a count charjiinj!; a breach of nn express contract in detai!iinv Sciences Corporation 23 WEST MAIN STRKET WIBSTER.N.Y. MS80 (716) •73-4503 4* 1 '^■t-VH I I'V " 1. RULES. description or circumstances only, are not to be allowed. Ex. gr. Counts founded upon tho same contract, described in one as a contract without a condition, and in another as a contract with a condition, are not to be allowed, for they are founded in the same sub- ject matter of complaint, and are only variations in the statement of one and the same contract. So counts for not giving, or delivering, or accept- ing a bill of exchange, in payment, according to the contract of sale, for goods sold and delivered, and for the price of the same goods, to be paid in money, are not to be allowed. So counts for not accepting and paying for goods sold, and for the price of the same goods oa goods bargained and sold, are not to be allowed. But counts upon a bill of exchange or promissory note, and for the consideration of the bill or note, in goods, money, or otherwise, are to be considered as founded on distinct subject matters of complaint; for the debt and security are different contracts, and such counts are to be allowed. Two counts upon the same policy of insurance are not to be allowed. But a count upon a policy of insurance, and a count for money had and received, to recover back the premium upon a contract implied by law, are to be allowed. Two counts upon the same charter-party are not to be allo\^ed. But a count for freight upon a charter- party, and for freight pro rata itineris upon a contract implied by law, are to be allowed. Counts upon a demise and for use and occupation of the same land for the same time, are not to be allowect. In actions of tort for misfeasance, several counts for the same injury, vaiying the description of it, are not to be allowed. In the like actions for nonfeassnce, several counts founded on various statements of the same duty, are not to be allowed. \- ■■ tlULES. Several counts in trespass, for acts committed at the same time and plaje, are not to be allowed. Where several debts are alleged in indebitatus assumpsit to be due in respect of several matters ; ex. gr. for wages, work and labour, as a hired servant, work and labour generally, goods sold and delivered, goods bargained and sold, money lent, money paid, money had and received, and the like, the statement of each debt is to be considered as amounting to a several count, within the meaning of the rule which forbids the use of several counts, though one promise to pay only is alleged in consideration of all the debts. Provided that a count for money due on an account stated, may be joined with any other count for a money demand, though it may not be intended to establish a distinct subject matter of complaint in respect of each of such counts. The rule which forbids the use of several counts is not to be considered as precluding the plaintiff from alleging more breaches than one of the same contract in the same count. — 32 E. T. 5 Vic 12. (m) Pleas, avowries and cognizances founded on one and the same principal matter, but varied in (m) By Provincial Statute, 2 Geo. IV. ch. 1, s. 7, commonly called the King's Eonch Act, " any defendant or defen- dants in any action or suit in the said court, may plead as many several matters thereto as he shall think necessary, without leave of the said court, where he would be entitled to do so by obtaining such leave, under the same regulations and restrictions as are declared by the British Statute passed in the fourth year of the reign of Queen Anne, chap. 16, sec. 4, anything in the said clause to the contrary not- withstanding ; " and by the recited statute of Anne, it was provided, '♦ that the defendant or tenant in any action or suit, or any plaintiff in replevin in any court of record, may, with the leave of the same, plead as many several matters thereto as he shall think necessary for his defence. Provided, nevertheless, that if any such matter shall, upon a demurrer joined, be judged insufficient, cost^ shall be 88 JftULKS. stntcnicnt, dofcription or circumstances only, (and pleas in bar in replevin are within the rule) are not to be allowed. pivcn at the discretion of the court, or if ii verdict shall bo tbunil upon any issue in the said cause for tlie plaintiff or demandant, costs shall be also given in like manner, unless the judge who tried the said issue shall certify that the said defendant or tenant, or plaintiff in replevin, had a probable cause to plead such matter, which, upoi the said issue, shall bo found against him. Provided also, that nothing in thin act shall extend to any writ, declaration, or suit of appeal of felony, &c., or to any writ, bill, action or infor- mation upon any penal statute." In addition to this and the preceding rule, there are in England rules six and seven of all the courts of H. T. 4 Wm. TV., by the former of which provision is made for striking out with costs counts or pleas, &c. pleaded in violation of the above rules, and by the latter, the party pleading more than one count or plea, &c., and failing to establish a distinct subject matter of complaint in respect of each count, or distinct ground of defence in respect of each plea, &c., is rendered liable for all the co.sts occasioned by such couiit or plea, &c. It is conceived that, although there is no provision in any of the above rules of the Court of Queen's Bench for striking out counts or pleas, &c. similar to the rule adopted in England, yet that the same practice Avould be observed in the court here, as if such a rule did exist, as all these rules have the force of statutory enactments ; and the express directions in rules 82 and 3o, that not more than one count or plea, &c. shall be allowed in the cases pointed out, would seem to make the application to the court or a judge at chambers to strike out such additional count or plea, &c., the proper course of pi-ocedure, although it may perhaps bo deemed that the payment of the costs of the pleadings, &o. by the party failing to substantiate a distinct cause of action or defence on each issue, under rule 37, would bo a sufficient disallowance of the additional count or plea. The statute 4 & 5 Anne, and the Queen's Beach Act, do not bind the Queen. — Attorney-General v. Algood, Parker, 1-10. Nor do the above rules, and at her suit the defendant can- not plead several pleas Avithout leave of the Attorney-Gene- ral.— llcg. V. Bewdloy, 1 P. AVms. 220 ; R. v. Archbishop of York, Willcs, o33. The object of these rules seems to be to prevent the same defence being pleaded in different form?, and not to bring into question the inconsistency of are the Unci late pleas allo\ this RULES, 89 Pleas of solvit ad diem, and of solvit post diem, are of time only, and are not to be allowed. the pleas, unless it be grossly manifest; and in Triebnerr t. BueiT, 1 Bing. N. C. 26C, Tindal, C. J., observed tliat "tlie late rules for the regulation of pleading nowhere state that pleas that are inconsistent with each other shall not bo allowed; on the contrary, among the examples of pleas that may bo pleaded together, we find that pleas of payment, and of accord and satisfaction, or of release, are distinct, and are to be allowed ; these and many others that might be referred to, are instances of pleas that cannot all be true, and in that sense are inconsistent. It was not intended that the defendant should be shut out from any bona fide ground of defence, though where pleas that are manifestly inconsis- tent with each other appear to be vexatiously pleaded, and for the purpose of occasioning inconvenience and expense to the plaintiff, the court will not alloAV them." Under the statute of Anne, several pleas could not be pleaded without leave of the court, but now in all the courts in England such leave can be obtained by rule drawn up on judge's hummons and order, tinder rule 13 T. T. 1 Wm. IV. In this country the King's Bench Act dispensed with the necessity of obtaining leave of the court to plead several matters, and under these rules several matters may still be pleaded without leave of the court, subject of course to ob- jections as to their allowance, and to the payment of the costs of issues raised on them, if the defences should fail to be proved separately and distinctly. In trespass for false imprisonment on a charge of felony, the court allowed the defendant to withdraw a former plea, and plead several pleas, Tindal, C. J., observing that " where the same facts and circumstances are differently stated in different pleas, the rule applies ; but where the same facts lead to different conclusions in law, it is material to the defendant, and of advantage to the plaintiff, that the different views of the facts which are relied on sliould be put on the record." — 7 Dowl. 251. In trover the defendant has been allowed to plead a right of lien by agreement, a right of lien by usage, and the same usage in two other pleas, but with reference to a delivery of goods by two different parties. — Lcuckhart V. Cooper, 3 Dowl. 415. In replevin, an avowry justifying the taking of cattle damage feasant, in the locus in quo as the soil of A., and the like avowry as the soil of B., have been allowed. — Evans v. Davies, 2 N. & P. 464. In case for the obstruction of a right of way, the defendant 90 IIULES. ! i ' But pleas of pnymont iiiid of ticcord and satisfac- tion, or of release, are distinct, and are to be allowed.' Avas iillowcd to plcail not f;uilty, kvivo and license, a denial ol' tlie plaintiff's possession of the loons in qno, and a denial of the plaintitt"'H ^•ij;lit of Avny. — Forrest v. Hall, '1 Jurist, 1502. Ill assumpsit an-ainst an attorney for ner money, ii board, with intent that it might appear to constiUito a valuable cargo, and with the intent that it should be lost by fraud. — Reid v. Rcw, Jurist, W\K 91 ' I 92 RULES. arc given as some instances only of the application of the rules to which they relate ; but the principles contained in the rules are not to be considered as restricted by the examples specified. PLEADINGS. 13. (ii) Whereas declarations in actions upon bills of exchange, promissory notes, and the counts usually called the common counts, occasion unnecessary ex- pense to parties, by reason of their length, and the same may be drawn in a more concise form ; now, for the prevention of such expense, it is ordered, that if any declaration in assumpsit, tiled or delivered after these rules shall come into force, (being for any of the demands mentioned in the schedule of forms and directions annexed to this order, or demands of a like nature,) shall exceed in length such of the said forms set forth or directed in the schedule, as may be appli- cable to the case, or if any declaration in debt to be so filed or delivered for similar causes of action, and for which the action of assumpsit would lie, shall exceed such length, no costs of the excess shall be allowed to the plaintiff, if he succeeds in the cause ; and such costs of the excess as have been incurred (n) The words in this rule "or demands of a like nature," and the direction as to drawing foreign bills at the end of these forms, seem to establish that these particular forms are merely given as a few instances; and that in all other cases, at least of common debts, it is intended that the pleadings may and ought to be fi'amed in the like concise manner. Tlie forms of declarations on bills and notes given in the schedule above, are much more concise than those which were adopted by the courts in England, as the unne- cessary statements of the delivery of the note or bill to the plaintiff or indorsee, and of notice to the defendants of the indorsements, and the direction of the bill to the drawer, which arc to be found in the English forms, are all omitted here; and in the forms of the common counts •' price and value," and " then and there " unnecessarily inserted in the English forms, are also omitted. RULES. 93 by the defendant, shall bo taxed and allowed to the defendant, and be deducted from the costs allowed to the plaintiff. And it is further ordered, that in the taxation of costs as between attorney and client, no costs shall be allowed to the attorney in respect of any such ex- cess of lenpith; and in case any costs shall be payable by the plaintiff to the defendant, on account of such excess, the amount thereof shall be deducted from the attorney's bill.— 34 E. T. 5 Vic. SCHEDULE OF FORMS AND DIRECTIONS. Count on a Promissory Note ayainst the Maker hy Payee or indorsee, as the case may he. District ) For that whereas the defendant on TO WIT : J the day of in the year of our Lord , made his promissory note in writinji;, and thereby promised to pay to the plaintiff £ , days (weeks or months) after the diite thereof (or as the fact may be) which period had elapsed before the commencement of this suit, [or if the note be payable to A. B.] and thereby pro- mised to pay to A. B. or order £ , days [weeks or months] after the date thereof, [or as the fact may be], which period had elapsed before the commencement of this suit; [and the said A. B. then endorsed the same to the plaintiff,] and the said defendant thereupon became liable to pay the amount of the said note to the plaintiff", according to the tenor and effect thereof Count on a Promissory Note ar/ainst Payee hy Indorsee. District ) For that whereas one CD. on the TO WIT : j day of in the year of our Lord , made his promissory note in writing, and thereby promised to pay the defendant or order, £■ , days [weeks or months] after the date thereof [as the fact may be], which period had 04 IIULES. m'l elapsed before the coimuonccaient of this suit; nnd the tlet'eii(l;mt then eiulorsed the same to tiie phuiitilF: [or Mild the deleiidaiit then indori-cd the sanui to one X. Y. and the said X. Y. tlien indorsed the same to the plaintilV,] and the said 0. i). did not pay the amount thereof, ahhou , days nULEB. 97 t the Dtatoer [weeks or months] afler sight [or date] thereof, and the said defendant then indorsed the same to the plaintiff [or, and the defendant then indorsed the same to one L. M., and the said L. M. then indorsed the same to the plaintiff], and the same was then presented to the said J. K. for acceptance, and the said J. K. then refused to accept the same, of all which the defendant had due notice, whereby he bo- came liable to pay to the plaintiff the amount of the said bill. Count on an Inland Bill of Exchange againatlndorserby Indorsee on non-acceptance. District, ) For that whereas one N. 0. on the TO WIT : j day of in the year of our Lord made his bill of exchange in writing, and thereby required one P. Q. to pay to the order of him, the said N. 0. [or of one X. Y.] £. , days [weeks or months] after the sight [or date] thereof, and the said N. 0. for the said X. Y .] then indorsed the said bill to the defendant [or to B. S., and the said E. S. then indorsed the same to the defendant], and the said defendant then indorsed the same to the plaintiff, and the same was then presented to the said P. Q. for acceptance, and the said P. Q. then refused to accept the same, of all which the de- fendant had due notice ; whereby he became liable to pay the amount of the said bill to the said plaintiff. Count on an Inland BUI of Exchange against Payee by Indorsee on non-acceptance. DiSTEiCT, ) For that whereas one N. 0., on TO Wit : ) the day of in the year of our Lord , made his bill of exchange in writing, and thereby required one P. Q. to pay the defendant or order, £> , days [weeks or months] after the sight [or date] tiiereoi, and the defendant then indorsed the eaid bijl to the said pkiptiff [tMT to one fi. S.> Mid tbe said |l. JS. ibsu in- I- ds RULfiS. M^ll ' ■ ric f ) dorsed the same to the plaintiff,] and the same was then presented to the said P. Q. for acceptance ; and the said P Q. then refused to accept the same ; of nil which the defendant then had due notice : where- by he became liable to pay to the plaintiff the amount of the said bill. Count on a Promissory Note according to the form in the stat. ofS Vic. ch. 8. District, ") For that whereas the said TO WIT ; ) [the maker of the note] on the day of at , rflade his promissory note in writing, and thereby promised [setting forth the note in the usual manner], and the said [the first, second, or other indorsees] afterwards duly indorsed the same, and the said [the last in- dorsee] delivered the said note so indorsed to the said plaintiff [aver presentment, notice, &c. when by law necessary in the particular case] by reason where- of the said [all the defendants] became jointly and severally liable to pay to the said plaintiff the said sum of money in the said note specified, and being so liable, afterwards jointly and severally promised the said plaintiff to pay him the same. [Add the usual breach.] Count on a Bill of Exchange, according to the form in the stat. ofZ Vic. ch. 8. District, ") For that whereas the said TO wit : I [the drawer] on the day of at drew his certain bill of exchange directed to [setting forth the bill according to its tenor and effect], and the said [the drawer] afterwards duly accepted the same; and ihQ said [the first and other indorsers] afterwards duly indorsed the said bill of exchange ; and the said [the last indorser] delivered the said bill so indorsed to the said plaintiff [aver presentment, protest, notice, &c. yAuas^ by law neoesaary in the particular oase] by RtLES. 09 ) same was )tance ; and e same ; of ce : where- the amount form, in the aid te] on the promissory etting forth lid rwards duly the last in- rsed to the e. when by json where- jointly and iff the said and being promised [Add the Tie form in id day of exchange cording to le drawer] the said v^ards duly 3 said indorsed )Bt, notice, IT case] by reason whereof the said [all tho defendants] became jointly and severally liable to pay to the said plaintiff the said sum of money in the said bill spe- cified, and being so liable afterwards jointly and severally promised the said plaintiff to pay him the same. [Add the usual breach.] Directions for Declarations on Bills, when the Action is brought for non-payment. First. — On Bills payable after date. If the declaration be against any party to the bill except the drawer or acceptor, and the bill be payable at any time after date, and the action be brought for non-payment, it will be necessary to insert as in declarations on promissory notes, immediately after the words denoting the time appointed for payment, the following words, viz.: — "which period had elapsed before the commencement of this suit ; " and instead of averring that the bill was presented to the drawee for acceptance, and that he refused to accept the same, to allege that the drawee [naming him] " did not pay the said bill, although the same was duly presented on the day when it became due.'' Second, — On Bills payable after sight. And if the declaration be against any party except the drawee or acceptor, and the bill be payable at any time after sight, it will be necessary to insert after the words denoting the time appointed for pay- ment, the following words, tc wit : — " and the said drawee [naming him] then saw and accepted the same, and the said period had elapsed before the commencement of this suit ; " and instead of alleging that the bill was presented for acceptance and refused, to allege that the drawee [naming him] did not pay the said bill, although the same was duly presented when it beoame due. % ^•.. X ^w iiM . I 4i >l .i't 'ifS LK' Goods. 100 RULES; Directions for Declarations on Bills or Notes payable at sight. If a note or bill be payable at sight, the form of the declaration must be varied so as to suit the case, which may be easily done. On Foreign Bills. Declarations on foreign bills may be drawn accord- ing to the principle of these forms, with the necessaiy variations. Common Counts. District, \ For that whereas the defendant on TO WIT : ) the day of in the year of our Lord was indebted to the plaintiff in £, for goods bargained and sold [or sold and delivered] by the plaintiff to the defendant at hia request. And in £ for work done and materials for the same provided by the plaintiff for the defendant, at his request. And in £ for money lent by the plaintiff to the defendant, at his request. And in £ for money paid by the plaintiff for X oney pa d. ^^ ^^^ ^^ ^j^^ defendant, at his request. And in £ for money received by the defen- dant for the use of the plaintiff. And in £ for money found to be due from the defendant to the plaintiff, on an account stated between them. General Conclusion. And thereupon the defendant, in consideration of the premises respectively, proi ised to pay the said several sums of money respect \ ely to the plaintiff : yet he hath not paid any of tLo said monies or any part thereof; to the plaintiff 's damage of £ ; and therefore ho brings suit, &c. Work. Money lent. Money re- ceiyed. Account elated. ys!^ ^* /J'JS RULES. 101 If the declaration contains only one count on a bill of exchange, promissory note, or for money, the con- clusion and breach must be framed to suit the case. PLEADINGS IN PARTICULAR ACTIONS. 1. Assumpsit. 14. (o) Firstly. In all actions of assumpsit, except on bills of exchange, and promissory notes, the plea (o) By the terms of the above rule the plea of non- assumpsit is to operate only in denial of the express con- tract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law, and as the promise alleged in an indebitatus count is only implied from the plaintiff's proof that the alleged debt had been contracted, and was completely due and actually payable before the action was commenced, the plea of non-assunip'?it to an indebitatus count denies that the alleged debt was due, and also denies that the implied promise to pay on request had been made ; where, therefore, no debt has been com- pletely due, no special plea is necessary, as where the credit for goods sold and delivered has not expired. — Cousens v. Paddon, 4 Dowl. 492: Gregory v. HartnoU, lb. 699. And where the requisites of the Statute of Frauds have not been complied with, the general issue is sufficient to let the defen- dant into t'lis defence. — Leaf v. Tuton, 10 M. & W. 398 : although it had been previously decided that such defence should be specially pleaded. — Maggs v. Ames, 4 Bing. 470. So in assumpsit for use and occupation, a defence that the premises were held under a demise from the plaintiff for rent payable quarterly, and that before the rent became due, the plaintiff evicted the defendant, could be made under the general issue. — Prentice v. Elliott, 6 M. & W. 60(). So also the partnership of the plaintiff and defendant. — Payne v. Hales, 5 M. & W. 598. And in action for wages under this plea, the defendant may shew what the services were worth, and the jury may give damages accordingly. — Baillie v. Kell, 4 Bing. N. C. 088. And in assumpsit on a gu.irantec, under the general issue, the defendant may shew tliat the consideration alleged in the declaration is not the real consideration to be inferred from the instru- ment.— llaikes V. Todd, 1 P. & D. 188. So that the goods, &c. were not according to contract, and were not accepted, or were returned. — Flight v. Booth, 1 Bing. N. C. 370. And that part of contract not performed by plaintiff, and no >i': If! i \n\ 102 . RULES. of non-assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law. Ex. gr. — In an action on a warranty the plea will operate as a denial of the fact of the warranty having been given, upon the alleged consideration, but not of the breach; and in an action on a policy of in- surance, of the subscription to the alleged policy by the defendant, but not of the interest, of the com- mencement of the risk, of the loss, or of the alleged compliance with warranties. In actions against carriers and other bailees, for not delivering or not keeping goods safe, or not returning them on request, and in actions against agents, for not accounting, the plea will operate as a denial of any express contract to the effect alleged in the declaration, and of such bailment or employment as would raise a promise in law to the effect alleged, but not of the breach. benefit to defendant. — Oxendale v. Wetherall, 9 B. & C. 38G ; Gardner V. Alc:candei% 3 Dowl. 146. But an altera- tion in the contract after execution must be pleaded specially. — Hemming v. Trenery, 8 A. & E. 92G. And where the plaintiff declared specially, that in consideration that he had sold and delivered twenty tons of best Dutch lead to the defendant, the defendant promised to deliver him prussiate of potash to the same amount, and the plaintiff avei'red the delivery of the lead, but alleged as a breach that the defen- dant would not deliver the full quantity of potash : Held, that under non-assumpsit, the defendant could not give in evidence that the lead was of inferior qnality, but should liave specially pleaded it. — Pcgg v. Stead, 9 C. & P. 636. So illegality of sale or contract must in all cases be specially pleaded. — Fenwick v. Laycock, 1 Q. B. 414; Clutterbuck v. Coffin, 1 Dowl. N. S. 470, even though such illega- lity appears on the plaintiff's pleadings, or by his own evidence. — Daintree v. Hutchinson, 10 M. & W. 85. In assumpsit on an attorney's bill, the defendant may prove under the general issue, tliat the work became ultimately useless, through the plaintiff 's negligence. — Bracey v. Carter, 12 A. &E. 373. sole sue the RULES. In an action of indebitatus assumpsit for goods sold and delivered, the plea of non-assumpsit will operate as a denial of the sale and delivery in point of fact ; in the like action for money had and received it will operate as a denial both of the receipt of the money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. Secondly. (^) In all actions upon bills of exchange and promissory notes, the plea of non-assumpsit shall be inadmissible j in such actions, therefore, a plea in denial must traverse some matter of fact. Ex. gr. — The drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour of the bill or note. Thirdly. In every species of assumpsit, all matters in confession and avoidance, including not only those by way of discharge, but those which show the trans- actions to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded. (p) If non-assumpsit is pleaded in an action on a bill of exchange or promissory note, the plaintiff may sign judg- ment. — Kelly V. Villebois, 3 Jurist, 1172. Where to au action on a bill of exchange, together with the money counts, the defendant pleads non-assumpsit to the whole declara- tion, the plaintiff should sign judgment as to tlie count on the bill, and enter a nolle prosequi as to the other counts. — Fraser v. Newton, 3 Dowl, 773. Where the first count of a declaration was on a bill of exchange, and the second on an account stated, and two pleas were pleaded, and there had been judgment on demurrer for the plaintiff on the plea to the count on the bill, and issue joined on the other, whicli was not a plea of payment ; Held, that upon a venire ad triaudura et inquirendum, it was not necessary to pro- duce the bill. — Lane v. Mullins, 1 Dowl. N. S, 562. A plea denying the indorsement of a bill of exchange puts in issue not only the fact of the signature, but also a delivery with intent to transfer the bill. — Marston v. Allen, 1 Dowl. N, S. 442. 108 104 RULES. V ^ 1 1 ' Ex. gr. — Infancy, coverture, release, payment, performance, illegality of consideration, (either by statute or common law) drawing, indorsing accepting, &c. bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and various other defences, must be pleaded. Fourthly. In actions on policies of insurance, the interest of the assured may be averred thus; "that A. B. C. and D., or some one of them, were or was interested, &c.," and it may also be averred, that the insurance was made for the use and benefit, and oa the account of the person or persons so interested. II. In Covenant and Debt. Firstly. In debt on specialty, or covenant, the plea of nou est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. Secondly, (q) The plea of nil debet shall not be allowed in any action, except in debt on penal istatutcs. Thirdly, (r) In actions of debt on simple contract. (q) The 4th section of the statute 21 Jac. I, ch. 4, allow- ing the special matter to be given in evidence under the general issue, applies to penal actions given by subsequent statutes, and therefore nil debet is a good plea in an action for the penalty on 11 Geo. II. ch, ID, sec. 4, for fraudu- lently removing goods from the premises of a tenant. — Jones v. "Williams, 7 DoAvl. 200 ; Faulkn:i, .> RULES. 107 of duty, or wrongful act alleged to have been com- mitted by the defendant, and not of the facts stated in the inducement ; and no other defence than such denial shall be admissible under that plea ; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. of the cess pool, and that the •water was thereby contami- nated.— Norton V. Scholfield, 9 M. & W. 065. The decla- ration alleging that the defendant was possessed of a waggon and horses, which were under the care of his servant, and the servant was driving theni, and that the defendant, by his said servant, so carelessly drove the same, that the plaintiff's carriage was injured; on a plea of not guilty, the defendant cannot prove that the servant and horses were not his. —Hart v. Crowley, 12 A. & E. 378. Where not guilty is pleaded, if a conversion in fact be proved, the plaintiff is entitled to a verdict, although it appears from the evidence that, at the time of such conver- sion, the plainiiffhad parted with his property in the goods. - -Vernon v. Shipton, 2 M. & W. 0, In trover it appeared that the plaintiff being the legal owner of the goods in question, they were seized while in the actual possession of a third party, under an execution against such third party and sold to the defendant; Held, that under a plea denying the plaintiff's possession, the defendant might show the plaintiff authorised the sale, and that a jury might infer such authority from the plaintiff consulting Avith the exe- cution creditor as to the disposal of the property, Avithoiit mentioning his own claim, after he knew of the seizure and intention to sell. — Pickard v. Sears, Ad. & E. 409. L'nder not guilty, the defendant cannot set up an absolute pro- perty in liimself by stile from the plaintiff. — Barton v. Brown, 6 ^I. & W. 298. The plea that tie plaintiff was not possessed puts in issue the right of the plaintiff' to the possession of the goods at the time of the conversion. — Isaac v. Belcher, 7 Bowl. r)16. Under not guilty the defendant cannot show a right to detain the goods on » delivery of them to him by the plaintiff, as a security for rent.— White v. Teal, 4 Jurist, 890; 12 A. & E. 100. A lien may be given in evidence, uuder the plea "that the plaintiff was not lawfully possessed." — Brandao v. Barnett, 1 Man. & G. 908 In trover tVr goods seized under a claim of toll, alleged to be due for lauding them at a particular wharf, the defendant can set up his claim to the toll under the plea of not possessed.— Webb v. Tripp, 1 Bowl. N. S. 589. :^J| 108 RULES. Ex. gr. — Tn an action on the case for a nuisance to the occupation of a house, by carrying on an offen- sive trade, the plea of " not guilty " will operate as a denial only that the defendant curried on the alleged trade in such a way as to be a nuisance to the occu- pation of the house, and will not operate as a denial of the plaintiff's occupation of the house. In an action on the case for ob^tmcting a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way; and in an action for converting the plaintiff's goods, the conversion only, and not the plaintiff's title to the goods. In an action of slander of the plaintiff in his office, profession or trade, the plea of " not guilty " will operate to the same extent precisely as at present, in denial of speaking the words, of speaking them maliciously, and in the sense imputed, and with reference to the plaintiff's office, profession or trade; but will not operate as a denial of the fact of the plaintiff's holding the office, or being of the profes- sion or trade alleged. In actions for an escape it will operate as a denial of the neglect or default of the sheriff' or his officers, but not of the debt, judgment, or preliminary pro ceedings. In this form of action, against a carrier, a plea of "not guilty " will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as carrier for hire, or of the purpose for which they were received. Secondly. All matters in confession and avoidance shall be pleaded specially as in actions of assumpsit. V. Ix Trespass. Firstly, (a) In actions of trespass quare clausum (m) In trespass quare clausum fregit, the declaration described the locus in quo as part of the sea beach; and lying between high water mark and low water mark, and 1 ^' ft « ■■•y^- - -. ••9Ai«{.»^ RULES. 109 nuisance an offen- perate as le alleged the occu- 3 a denial . In an b of way, )struction ; and in oods, the le to the Ills office, Ity" will resent, in ng them md with or trade ; :t of the le profes- a denial officers, ary pro carrier, al of the le goods purpose ;^oidance luipsit. clausum jlaration icli; and rk, and fregit, the close or place in which, &c. must be designated in the declaration by name or abuttals, or other description, in failure whereof the defendant may demur specially. Secondly, (v) In actions of trespass quarc clausum fregit, the plea of ** not guilty" shall operate as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be tra- versed specially. Thirdly. In actions of trespass de bonis asportatis, the plea of " not guilty " shall operate as a denial of the defendant having committed the trespass alleged, by taking or damaging the goods mentioned ; but not of the plaintiff's property therein. abutting landwards towards the north on five closes, par- ticulai'ly described. Upon the trial, it appeared that these abuttals were not immediately contiguous to the locus in quo but that there intervened a waste strip of shingle, which was no part of the sea beach ; Held, that the abuttals were not proved. — Webbers v. Richards, 1 Q. B. 439. A des- cription of a close by two abuttals only is a sufficient compliance with this rule. — North v. Ingamells, 9 M. & W. 249. (v) The plea of llberum tcnementum admits the plaintiff's possession, and renders it incumbent on the defendant to prove title, either by deed, or by shewing twenty years' actual possession. — Brest v. Lever, 7 M. & W. 593. On a pica of liberum tenementum to a close named in the decla- ration, the defendant is entitled to a verdict, if he establish a title to that part of the close on which the trespass was committed, and is not bound to prove a title to tue whole close.— Smfth v. Royston, 8 M. & W. 381. It was intended by the Court of Queen's Bench that these rules should have been in force after Hil. Term G Vic, but the time of their coming into operation was altered by the legislature to the last day of Trin. Terra, 6 & 7 Vic, since which day they have been in operation as to all pleas, &c., pleaded after Trin. Term, although pleaded to declarations filed ia or before that term. — M. T. 7 Vic. P. C Jones, J. "■».*•» ifl. 110 RULES. Fourthly. Whore in an action of trespass quaro clauRuni tVegit, tho defendant pleads a right of way, with carriages atid cuttle, and on foot, in the sanio plea, and issue is taken thereon, tho plea shall bo taken distributively, and if a right of way with cattle or on foot only, shall be found by the jury, a verdict shall pass for the defendant in respect of such of tho trespasses proved as shall be justified by the right of way so found, and for the plaintiff in respect of such of the trespasses as shall not be so justified. Fifthly. And in all actions in which such right of way as aforesaid, or other similar right, is so pleaded that the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively. Provided, nevertheless, that nothing contained in any of the above rules or regulations, relating to pleading in particular actions, shall apply to any case in which the declaration shall bear date before the last day of Hilary Term next.— 85 E. T. 5 Vic. 15. All special traverses or traverses with an inducement of affirmative matter, shall conclude to the country : Provided that this regulation shall not preclude the opposite party from pleading over to the inducement when the traverse is immaterial. — 86 E. T. 5 Vic. 16. In all cases under the statute 7 "VVra. IV. ch. 3, in which after a plea in abatement of the non- i . 11., &o." The same form to bo used nmtatis mutandis in cases of arrest or detainer. — 38 E. T. 5 Vic. 17. («') In a plea or subsequent pleading intended to be pleaded in bar of the whole action generally, it shall not bo necessary to use any allegation of action- em non, or to the like effect or any prayer of judgment, nor shall it be necessary in any replication or subse- quent pleading intended to be pleaded in maintenance of the whole action, to use any allegation of precludi non, or to the like effect, or any prayer of judgment; and ^\\ pleas, replications and subsequent pleadings, pleaded without such formal parts as aforesaid, shall be taken, unless otherwise expressed, as pleaded res- pectively in bar of the whole action, or in maintenance of the whole action : Provided that nothing herein contained shall extend to cases where an estoppel is pleaded.— 41 E. T. 5 Vic. Ill (w) This rule applies to a r>lc.a answering the whole of the count to which it is pleaded, though there are other counts which it does not answer. — Bird v. Higginson, A. & E. 824. So if a plea be pleaded in total bar of a particu- lar part of a count, it is not requisite in a replication replying specially to it, to commence with the formula of precludi non, or conclude with a prayer of judgment. — Phillips v. Roderick, 2 Jur. 410. The formal commencement actionem non is necessary in a plea to part of the cause of action, whether ploaded in bar or only to the further maintenance of the particular part to which it is pleaded. — Upward v. Knight, 6 Bing. N, C, 338. Pleas need not conclu e with a verification, unless they contain affirmative matter ; therefore a plea of the Statute of Limitations, without a verification is good, on special demurrer. — Bodenhara v. Hill, 7 M & W. 274. In debt for £200 for work and labour, money paid, and on an account stated, the defendant pleaded first, never indebted; secondly, as to parcel, &c., a set-oflf; and, thirdly, as to otlier parcel, &c., payment: Held, on special demurrer, that the second and third pleas were good, without the allegation of actionem non, or prayer of judgment.— Ration v. Davis, 1 Gale & D. 21. 1 Q. B. 496. i v9sr' I a. -'■:; ii 112 RULES. 18. No formal defence shall be required in a plea, and it shall commenc e as follows : (( The said defendant by his attorney [or in person, &c.] says that, &c." — 42 E. T. 5 Vic. 19. It shall not be necessai-y to state in a second or other plea or avowry, UM it is pleaded by virtue of the statute, or to that effect. — 43 E. T. 5 Vic. 20. It is further ordered, that in case tlie time for pleading to any declaration, or for answering any pleading, shall not have expired before the first day of July in any j^ear, the party called upon to plead, reply, &c., sl»all 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 ; but in such cases no second demand of plea, replica- tion or subsequent pleading shall bo necessary, — 15 H. T. 13 Vic. 21. It is ordered, that in all cases where the plain- tiffin pleading concludes to the country, the plaintiff's attorney may give notice of trial at the time of deliver- ing his pleading so concluding ; and in case issue shall be afterwards joined, such notice shall be available; and in all cases where the defendant shall demur to the plaintiff's declaration, replication, or other subsequent pleading, the defendant, if he plead in person, or the defendant's attorney, shall be obliged to accept notice of assessment of damages, or of executing a writ of enquiry on the back of the joinder in demurrer; and in case the defendant pleads a plea in bar, or rejoinder, &g., to which the plaintiff demurs, the defendant, if he plead in person, or the defendant's attorney, slifill be obliged to accept notice of executing a writ of enquiry on the back of such demurrer; and in case the del'endant, if he plead in person, or the defendant's attorney, shall demur to any pleading of the plaintiff concluding to the coun- try, when there is an issue in fact on the record to be «» V'*^'-*- • »«.,. » i H f^i'^n a r u KC-^fcl in a plea, torney [or ) Vic. I a second by virtue 5 Vic. e time for 3 ring any ! first day to plead, :' days for LUgust, as had been ' August ; a, replica- sary. — 15 the plain- plaintiff's »f delivei'- ase issue shall be lant shall ation, or ' he plead »e obliged 3s, or of : of the efondant lich the II person, to accept back of le plead omur to le coun- )rd to be RULES. tried by the country, and the plaintiff, before such demurrer, shall have given notice of trial, if the plaintiff shall immediately on receipt of such demur- rer give notice of assessment of damages, such notice sliall operate from the time that notice of trial was given as aforesaid.— 23 H. T. 13 Vic. 22. It is ordered, that when a defendant shall plead a plea of judgment recovered in another court, he shall, 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 the roll on which such proceedings are entered, if any; and in default of his doing so, the plaintiff shall be at liberty to sign judg- ment, as for want of a plea : and in case the same be falsely stated by the defendant, the plaintiff, on pro- ducing a certificate from the proper ofiicer, ( r person having the custody of the records or proceedings of the court where sxich 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 plea, by leave of the court or a judge.— 24 H. T. 13 Vic. PRISONER. It is ordered, that the plaintiff shall proceed to trial or final judgment against a prisoner withm three terms inclusive after declaration, and shall cause the defen- dant to be charged in execution within two terms in- clusive after such trial or judgment, of which the term in or after which the trial was had shall be rcckored one ; and when judgment shall be entered up in vacation, then the plaintiff" shall cause the defendant to be charged in execution before the end of the succeeding term. — 31 II. T. 13 Vic. rROCES.^ 1. No less than eight days, inclusive, shall inter- vene between the teste and return of all mesne process hereafter to be sued out in p.iy personal action, to be 113 114 RULES. .' ,m M III; i; i henceforth instituted in this court. — 8 M. T. 4 Geo. IV. PROTESTATION. No protestation shall hereafter be made in any pleading; but either party shall be entitled to the same advantage, in that or other actions, as if a pro- testation had been made. — 44 E. T. 5 Vic. KEAL ACTIONS. It is ordered, that in real actions generally a writ of summons may issue from this court corresponding with the form used in England, and tested in the like manner as writs of capias ad respondendum issued from this court. The time of return to be conforma- ble to the English practice in such cases. — 1 H. T. 1 Wm. IV. , RECORDS. 1. It is ordered, for the more convenient and safe keeping of the records of this court, that all rolls and records to be filed with the Clerk of the Crown shall be upon parchment or paper of such width and length as he shall prescribe by a written notice, to be affixed to some conspicuous place in his office, and in the office of each of his deputies; and that the officer shall not be bound to receive any roll or record not made up in conformity to such notice. N.B. — Not to exceed when folded fourteen inches in length, and four in breadth, written upon at least a sheet of paper, and folded accordingly, — H. T. I Wm. IV. 2. It is ordered, that it shall not be necessary to repass any nisi prius record, which shall have been once passed, and upon which the fees of passing shall have been paid, where no amendment of any pleading in the suit shall have been made after passing the same; and that whenever it is necessary to am and the clause of nisi prius therein, the same may be done by the order of the judge before whom the cause is entered for trial, or of any other judge of either of the of a RULES. 116 ^. 4 Geo. e m any id to the 1 if a pro- lly a writ 3sponding in the like im issued conforraa- 1 H. T. 1 it and safe 11 rolls and rown shall md length be affixed ind in the the officer Record not .B.— Not ingth, and It of paper, 3essary to lave been fcsing shall pleading issing the to am and ly be done cause is ler of the said courts presiding in chambers, or on application ex parte.— 41 H. T. 13 Vic. REPLEVIN. 1. It is ordered, that the process and proceedings in actions of ejectment, dower and replevin shall be and continue as heretofore. — 45 H. T. 13 Vic. Vide statutes 14 & 15 Vic. ch. 64, as to actions of replevin; 14 & 15 Vic. ch. 114, as to ejectment; and 13 & 14 Vic. ch. 58, as to dower. RULES. 1. All rules which by the English practice may be had as a matter of course, upon signature of counsel 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 Clerk of the Crown and Pleas, or his deputies, in this province, in the same manner, and the same may issue either in term or vacation. — 6 M. T. 4 Geo. IV. 2. It shall not be necessary to the regular service of a rule that the original should be shown, unless sight thereof be demanded, except in cases of attach- ment.— 9 T. T. 3 & 4 Wm. IV. 3. It is ordered, that a rule to declare peremptorily may be absolute in the first instance : provided always that judgment of non pros may be signed, unless the plaintiff shall declare before the end of the term next after the service of process, a declaration having been previously demanded pursuant to rule 5 E. T. 5 Vic, unless the plaintiflF shall have obtained the usual rule for time to declare.— 20 II. T. 13 Vic. 4. It is ordered, that to entitle a plaintiff to discon- tinue after a plea pleaded, it shall not be necessary to obtain the defendant's consent; but the rule to dis- continue shall contain an 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, I \ J 116 RULES. K'JI 14 defendant shall be at liberty to sign non pros. — 32 H. T. 13 Vic. , SCIRE FACIAS. 1. (?c) Ordered, that a scire facias to revive a judgment more than ton years old, shall not be allow- ed, without a motion for that purpose in term, or a judge's order in vacation, nor, if more than fifteen years, without a rule to shew cause. 2. A scire facias upon a recognizance taken before a judge or a coiumissioner in the county, and recorded at Toronto, shall be brought in the Homo District only, and the form of the recognizance shall not ex- press whei'e it was taken. 8. No judgment shall be signed for non-appearance to a scire facias without leave of the court or a judge, unless defendant has been summoned ; but such judg- ment may be signed by leave after eight days from the return of one scire facias. 4. A notice in writing to the plaintiff, his attorney or agent, shall be sufficient appearance by the bail or defendant, on a scire facias. — 6 II. T. 10 Vic. 5. It is ordered, that in all suits, actions or pro- ceedings by scire facias, information, or otherwise, by or at the suit of or in the name of the Queon, 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 » II I (w) The court refused to set aside upon motion a ca. sa, which had heeu issued upon a judgment more than a year okl, no sci. fa. having issued to revive it, although it was heUl that the ca. sa. -was clearly irregular, yet not void, but voidable, and that the proper remedy would seem to be a writ of error. — McNaliy v. yteveus, Tay. U. C. K. 855. It is irregular to issue execution on a judgment more than a year old, Avithout a scire facias, even though a writ of fi. fa, has been issued, but not returned, and filed within the year, — Sewell V. Thompson, E. T. 2 Vic, and Wilson v. Jamieson, E. T. 7 Vic. 2. )ros.— 32 H. to revive a not be allow- n term, or a than fifteen taken before and recorded omc District shall not ex- n-appearance rt or a judge, ut such judg- lit days from , his attorney )y the bail or Vic. tions or pro- otherwise, by Queen, or of e time being, ct any of the 5 any matter otion a ca, sa. e tban a year though it was it not void, but seem to be ii C. R. 355. It more than a a writ of fi. fa. ithin the year. ill V. Jamieson, RiJLfiS. or thing affecting such rights, or for any penalties or forfeitures under the Customs Act, or any other act of parliament in force in this province, rules to appear, plead, rejoin, join in demurrer, &c., may, after this present term of Hilary, be had and issued at side bar either in term or vacation; and all such niles, ex- cepting rules to appear, shall be eight day rules ; and that no imparlance shall be allowed in any such action or proceeding ; and that the party or parties named in any such rule shall be bound to appear, plead, rejoin, join in demurrer, &c., as the case may be, within the time mentioned in such rules respec- tively, or in default thereof judgment may be entered against such party or parties respectively : Provided, that the court or a judge thereof may grant further time to plead, rejoin, join in demurrer, &c., as the case may be, on sufficient cause therefor being shewn to the satisfaction of such court or judge. And also that nothing herein contained shall in anywise affect or restrict any right, privilege or prerogative now enjoyed or possessed by the Crown. — 53 H. T. 13 Vic. SERVICE. 1. (x) A copy of every declaration and subsequent pleading shall be served on 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 appear- ed for the defendant under the statute, as where the defendant has appeared in person or by attorney. — 4 E. T. 5 Vic. 2. That the person serving a writ of summons (x) It had been previously held that it was not neces- sary, under the King's Bench Act, to serve any plea. — McKinnon v. Johnston, M. T. 4 Wm. IV. If a pica is filed but not served, the plaintiff cannot sign interlocutory judg- ment as for want of a plea.-— iLnon., per Draper, J., 2lst of March, 1851. .. r t lit ^mmnwwm' lis ftULES. shall, within three days after such service, indorse on such writ the day of the month and of the week of such service; otherwise the plaintiflF shall not be at liberty to enter an appearance for the defendant, according to the statute; and every affidavit, upon which such an appearance shall be entered, shall mention the day on which such indorsement was made.— 2 H. T. 13 Vic. 3. Service of all rules, orders and notices, if made before nine o'clock at night, shall be deemed good, but not if made after that hour. — 47 H. T. 13 Vic. SHERIFF. 1. The sheriflF, to whom any execution or process in the nature of an execution, shall be directed, shall include, in the return of such execution or process, the amount of his fees levied by virtue thereof, and shall specify in the margin the particular items of the same. — 9 M. T. 4 Geo. IV. Vide supra, title Fi. Fa. 2. The sheriff or other officer to whom any writ of capias shall be directed, or who shall have the execu- tion and return thereof, shall, within three days after the execution thereof, whether by sei-vice or arrest, indorse on such writ the true day of the execution thereof, and in default thereof shall be liable in a summary way to make such compensation for any damage which may result from his neglect, as the court or a judge shall direct. — 3 H. T. 13 Vic. STAY OF PROCEEDINGS. 1. (i/) If any attorney shall, as required by the said act (12 Vic, ch. 63, sec. 31,) declare that any writ of summons or writ of capias, upon which his name is indorsed, was not issued by him, or with his (y) Upon the application of the defendant in the suit, .• proceedings will be stayed till the plaintiff's attorney files his warrant to proseoute-^^Bobe v. Beid, 1 Oham. Bep< 98. RtTLES. 119 ce, indorse on E" the week of all not be at le defendant, iffidavit, upon jntered, shall orsement was ttices, if made deemed good, [. T. 13 Vic. ion or process directed, shall )n or process, 3 thereof, and 3ular items of le supra, title »m any writ of ive the execu- iree days after ^ice or arrest, the execution )e liable in a ation for any jglect, as the 13 Vic. |uired by the jare that any )n which his or with his it in the suit, attorney files bham. Eep< 98. authority or privity, all proceedings upon the same shall be stayed until further order.— 12 H. T. 13 Vic. SUBPCENA. That hereafter any number of names may be in- cluded in one writ of subpoena. — 8 E. T. 11 Geo. IV. SUMMONS. (z) That from and after this term of Easter, on every judge's summons or appointment to be made by the master (having been served on the day pre- vious to that on which the attendance shall be required), the person on whom the same shall be served shall attend such summons or appointment without a second, or in default thereof the judge or master may proceed ex parte on the first. — 2 E. T. 11 Geo. IV. WARRANTS. UPPER CANADA. 1. It is ordered, that the following forms of war- rants or writs, framed by the said courts, pursuant to the statute 10 & 11 Vic. ch. 15, sec. 6, be used from and after the last day of this term, with such alterations as the nature of the claim for costs, or on the award or other demand, the description of the court in which the same is depending, the character of the parties, or the circumstances of the case may render necessary ; but that any variance not being in matter of substance shall not affect the validity of the warrants or writs sued out : — (z) A summons is no stay of proceedings (unless so ex- pressed) until returnable. — Sovreen v. Rapelje, 1 U. C. Cham. Rep. 11. A summons to set aside the copy of amended pleas and the service thereof held good. —Edmund- son V. Scott, 1 U. C. Oham. Kep. 88. \ 1^0 RULES. )'l !iEJM Mi m i\ -P3 UPPER CANADA, ) Victorfa, by the Grace of [• God, of the United Kingdom TO WIT : 3 of Great Britain and Ireland, Queen, Defender of the Faith. To the sheriff of the greeting : Whereas, lately, in our Court of Queen's Bench [or Common Pleas] for Upper Canada, before us at Toronto, [as the case may be] by a rule of our said court, entituled, &c., [as the case may be] the sum of £ was by our said court ordered to be paid by the said C. D. to A. B. [or whereas lately in our Court of Queen's Bench or Common Pleas, &c.,] by a rule of our said court, a certain submission of C. D. by bond or rule of Nisi Prius whereby all matters in difference, &c., [as the case may be] between the said C. D. and A- B. [as the case may be] so as, &c., [as the case may be] was made a rule of our said court. And whereas, afterwards, that is to say, on the day of the said E. F. and G. H. [or um- pire, as the case may be] duly made their award in writing [or his award of umpirage in writing] in the premises, and thereby ordered and directed, &c., that the said C. D. should, on or before, &c., pay to the said A. B. the sum of £ [recite the substance of the award] or whereas, &c., [recite the nature of the debt or demand, as the case may be], and whereas, for non payment of the said costs or the sum [or sums] so aAvarded to be paid, as aforesaid, [or other demand] though duly demanded, a certain writ of attachment was, on the day of 185 , issued out of our said court against the said CD., directed to the sheriff of under which attachment the said C. D. was afterwards attached by the said sheriff, and was detained in his custody until afterwards the said C. D., on the day of was, by order of Mr. Justice in chambers, [or by order of the said court, ordered to be discharged from such cus- tody, under such attachment, as bein^ an insolvent debtor in execution for debt, witibia the irue int^t RULES. 121 Grace of Kingdom i Ireland, I's Bench fore us at ' our said ] the sum to be paid ely in our 1, &c.,] by n of C.I). matters in m the said 8, &c., [as said court. I the um- c award in kg] in the ., &c., that )ay to the substance nature of i whereas, [or sums] r demand] ttachment aed out of ted to the he said C. heriflF, and Is the said ►y order of 'der of the such cus- insolvent roe intent and meaning of the statute passed in the eleventh year of our reign, intituled, " An Act to amend the Law of Imprisonment for Debt in Upper Canada." We, therefore, pursuant to the provisions contained in the 6th section of the said act, command you, that of the goods and chattels [or lands and tenements, as the case may be] of the said C. D. in your county [or united counties], you cause to be made the said sum of £ so by our said court ordered to be paid by liim to the said A. B. [or so awarded to be paid by the said C. D, to the said A. B.] as aforesaid, together with costs of said rule or order [or reference] which said costs were, on the day of in the year of our Lord 185 , taxed and allowed by our said court at the sum of £ , and also the costs of the said attachment, and the proceedings there- upon, amounting to £ , and that of the said goods and chattels [or lands and tenements, as the case may be] of the said CD. in your county [or united counties] you further cause to be made lawful interest upon the said sum of £ from the said day of in the year of our Lord, [the day on which the costs of the rule were taxed, or the sum awarded to be paid, &c.,] on which day the said costs were taxed [or the sum awarded to be paid, &c.,] and have that money, together with such costs and interest as aforesaid, before us at Toronto, on the day of Term to be rendered to the said A. B. for the said sum of money so ordered [or awarded] to be paid by the said C. D. to the saia A. B., and for costs and interest as aforesaid; and that you do all such things as by the said statute you are autho- rised and required to do in this behalf; and in what manner you shall have executed this our writ make appear to us in our said court at Toronto, on the day of Term, aforesaid, and have then there this writ. Witness the Honourable Chief Justice at Toronto, the day of in the year (four reign. r 122 IIULES. I'll 'i ;-n I < (' ri 2. It is ordered, Ihat the fees to be allowed to the attorney, sheriflF, and other officers of the court upon such warrant or writ, and the proceedings thereupon, shall be the same as allowed on other writs ol' execu- tion against goods or lands respectively. » WRITS OF TKIAL. (a) It is ordered, tliat writs of trial and other pro- ceedings under statute 8 Vic. ch. 13, sections 51 and 54, shall be in the several forms in the schedule hereunto annexed, or to the like effect, mutatis mu- tandis, provided that in cases of non-compliance, the court or a judge may give leave to amend. — H. T. 10 Vic. Form of Issue when the cause is to be tried by the Judge of the District Court. [After the joinder of Issue proceed as follows :] And forasmuch as the sum 'sought to be recovered in thi.'? suit, and indorsed on the copy of the original process served in this action, does not exceed £26. [Or.] And forasmuch as the debt or demand sought to be recovered in this action, is alleged to be ascer- tained by the signature of the defendant, hereupon on [date of the writ of trial] day of in the year pursuant to the statute in that case made and provided, the judge of the District Court is commanded that he proceed to try the issue [or issues] joined between the parties at the first [or («) Under 8 Vic. ch. 13, a wi'it of enquiry may issue from the Queen's Bench to the District Court, not only to try the issues of the country, but also to assess contingent damages upon demurrer. — King's College \. Gamble and Boulton, Executors of D'Arcy Bonlton, 1 Cham. llep. 54. The summons for the issue o*" ino mAI of enquiry need not be entitled ''plaintiff" and ''defendant." — lb. The summons must show the venue, also the amount en- dorsed on the original process, and the nature of the action, —lb. > (1 to the irt upon ?reupon, r cxecu- :hcr pro- s 51 and schedule ;atis niu- luce, the -H. T. 'Ae Judge >ws :] ecovered original I £25. 1 sought 3e ascer- upon on the year ade and .!ourt is sue [or rst [or [ay issue only to kntingent lible and jep. 54. |ry need 3unt on- le action. RULES. second] sittings to be next hereafter holden of the said District 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 thereon indorsed, within ten days after the execution thereof. — (8 Vic. ch. 13, sec. 54.) 128 Form of the Writ of Trial. Canada, — district. ) Victoria, by the Grace of God, ) of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Judge of the District Court in and for the District. Whereas A. B., plaintiflf in our Court of Queen's Bench in and for the Province of Upper Canada, at Toronto, on the day of [date of the first writ of capias ad respondendum, or process, or of filing the bill, &c.,] impleaded C. D., defendant, in an action on promises [or as the case may be] as follows : [here copy the declaration.] And whereas the said defen- dant, on the day of last, by his attorney [or in person, as the case may be], came into our said Court of Queen's Bench, and said [here re- cite the pleas and pleadings to the joinder of issue.] and the plaintiff did the like [or as the case may be] ; and whereas tlie sum sought to be recovered in the said action, and indorsed on the copy of the original process served therein, docs not exceed £25. [Or.] And whereas the debt or demand sought to be recovered in this action, is alleged to be ascer- tained by the signature of the dcfcmlant [or defen- dants], and it is fitting that the issue [or issues] above joined should be tried by you, the said judge. We, therefore, pursuant to the statute in such case made and provided, command you that you do pro- ^%^.^ I! if d> ■'■ n 1.* Ct It ■:^:!i.> , i" H.'l \i[ ■■; 124 RULES. ceod to try the said issue [or issues] at the first [or [or DO iCconJ] sittings of the said District Court, to holdcu 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 District Court. And when the Banie shall have been tried, in manner aforesaid, we command you that you make k'lown to us, in our said Court of Queen's Bench, at Toronto, what shall have been done by virtue of this writ, with the finding of the jury hereon endorsed, within ten days after the execution hereof. Chief Justice, at in the year Witness the Honourable Toronto, the day of of our reign. Fn of the said District Court, by a jury returned RULES. 127 of God, of Great I Faith. I for the Queen's itiada, at st writ of 3d C. D., the case day m [or as Queen's usion of the said id defen- m "and )sequent idgment rt, then against of the id court istained same ; we, ie made proceed plaintiff !said, at ereafter Qturned le at such sittings (sec. 40) for the trial of issues joined, and for the assessment of damages upon judgments obtained by default or upon demurrer, in the said District Court, and when the same shall have hecn assessed in manner aforesaid, we command you that you make known to our justices of our said Court of Queen's Bench, at Toronto, what shall have been done by virtue of this writ, with the finding of the jury hereon ii.dnrsed, within ten days next after the execution thereof. Witness the Honourable Chief Justice, at Toronto, the day of in the year of our reign. Fa)'7n of Return to he Indorsed. Afterv/ards, on the day of in the year [day of assessment], before me Esquire, Judgo of the County Court in and for the County of within mentioned, came the •'^Ithin named plaintiff, by his attorney within named, and the jurors of the jury whereof mention is within made, being sum- moned, also came, and being duly sworn to inquire of and assess the damages sustained by the cfaid plaintiff by reason of the premises within mentioned, on their oath said that the said plaintiff hath sus- tained damages on occasion thereof, over and above his costs and charges by him about his suit in that behalf expended, to £ Form of Judgment, Afterwards, on the day of in the year came the said plaintiff, by his [or their] attor- ney aforesaid, and the said judge, before whom the said damages were inquired of and assessed, hath sent hither the said last mentioned writ with an indorse- ment thereon, which said indorsement is in these words, to wit : [Copy the indoracment.] Therefore it is considered, &c. 12S RULES. '» , I f il l:-\'M Wr Form of Issue, (Sac., wTiere Issues are to he tried and damages assessed before the District Court. [To the joinder of issue, adding the similiter, and to the joinder in demurrer, or to the joinder of the issue to be tried by the record, or to the interlocutory judgment by default, or to the judgment for the plaintiff on demurrer, or to judgment upon the issue to be tried by the record (as the case may be), and where there is an interlocutory judgment, or a judg- ment by default, or judgment upon demurrer, or upon issue to be tried by the record, proceed to the entry.] Wherefore the said plaintiff ought to recover against the said defendant, his damages on occasion of the premises, &c. [If there be interlocutory judgment, or judgment on demurrer, or in the trial by the record :] And because it is at present unknown to the court here, whether the said defendant will be convicted of the premises upon which the said issue [or issues] is [or are] above joined between the parties or not; and because it is also unknown to the court here what damages the said plaintiff hath sustained on occasion of the premises whereof it is considered that the said plaintiff ought to recover his damages, as aforesaid, and it is convenient and necessary that there be but one taxation of damages in this suit, 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 to be tried by the country. [If before judgment on demurrer, or upon the issue to the record.] [Or.] And because the court hero are not yet ad- vised what judgment to give upon the premises, whereof the parties have put themselves upon the judgment of the court. [Or.] Upon the premises whereon issue is joined KDLEB. 121) between the said parties, to be tried by the record, [as the case may be]. And because it is convenient and necessary that\ there be but one taxation of damages in this suit, and forasmuch as the sum sought to be recovered in this suit, and indorsed on the copy of the original process served in this action, does not exceed £25. [Or.] And forasmuch as the debt or demand sought to he recovered in this action, is alleged to be ascer- tained by the signature of the defendant hereupon, on the day of in the year [date of the writ of trial, p'iirsuii .>t o the statute in that case made and provided, tbo juage of the District Court is commanded that he proceed, as well to try the said issue [or issues] joined between the parties to be tried by the country, as also diligently to inquire what damages the said plaintiff hath sustained on occasion of the premises, whereof it is considered that the said plaintiff ought to recover against ^the said defendant his damages on occasion thereof, as aforesaid. [Or.] Whereof the parties have put themselves upon the judgment of the court, as aforesaid. [Or.] Wherein issue is joined between the parties to be tried by the record, as aforesaid, [as the case may be] if judgment shall 'viopcn to be thereupon given for the said plaintiii i .ae first [or second] sittings to be next herealicr uuicj .< of the said Dis- trict Court, by a jury returned a< .■ j,oh sittings for the trial of issues joined, and for the assessment of damages upon judgments obtained by default or upon demurrer in the said District Court, and when the same shall have been tried and assessed, 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 thereupon indorsed, within ten days next after execution thereof. o2 130 RULES. :;:^i "'. !« W ■■ 'n Form of Wrii to try issues and to assess damages con^ tingently upon demurrer, or issue to the record, or where there is interlocutory judgment on demwrer as to part. Canada, ) Victoria, by the Grace of God, DISTRICT. J of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Judge of the District Court in and for the District. Whereas A. B., plaintiff, in our Court of Queen's Bench in and for the Province of Upper Canada, at Toronto, on the [day of the first writ of capias ad respondendum or process], day of in the year impleaded C. D., defendant, in an action on promises [or as the case may be] as follows : [Copy the declaration.] And whereas the said defendant, on the day of , by his attorney [or in person], came into our said Court of Queen's Bench, and said [recite the pleas and pleadings to the joinder of issue, adding the similiter, and to the joinder in demurrer, or to the joinder of the issue to be tried by the record, or to the interlocutory judgment, or judgment by default, or to the judgment for plaintiff on demurrer, or upon the issue to be tried by the record, as the case may be, and where there is interlocutory judgment by default, or judgment upon demurrer, or upon the issue to the record, proceed to the entry.] Wherefore it was considered that the said plaintiff ought to recover against the said defendant his dam- ages on occasion of the premises. [Then.] And whereas it is at present unknown to the said court hera, whether the said defendant will be convicted of the premises upon which the said issue [or issues] is [or are] joined between the parties or not; and whereas it is also unknown to the said court here what damages the said plaintiff hath sustained on occasion of the piiemi^es, whereof it is coasidered RULES. 131 lages con* i, or where as to part. 3 of God, of Great le Faith. art in and f Queen's ])anada, at capias ad n the year action on day came into aid [recite ue, adding rrer, or to record, or by default, er, or upon case may gment by upon the id plaintiff his dam- len.] And said court convicted or issues] not; and 30urt here itained on soasideied that the said plaintiff ought to recover his damages, as aforesaid, and it is convenient and necessary that there be but one taxation of damages in this suit, the giving of judgment against the said defendant in this behalf is stayed until the trial of the said issue [or issues] so joined between the said parties, to be tried by the country, as aforesaid. [Or.] And wlereas 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.] Upon the premises whereon issue is joined between the said parties, to be tried by the record [as the case may be] ; and whereas it is conveuisnt and necessary that there be but one taxatiou of damages in this suit ; and whereas the sum sought to be recovered in this suit, and indorsed on the copy of the original process served in this action, does not exceed £25. [Or.] And forasmuch a^ the debt or demand sought to be recovered in this action, is alleged to be ascer- tained by the signature of the defendant; and whereas it is fitting that the said issue [or issues] joined be- tween the parties to be tried by the country, should be tried by you, the said judge, and that the damages of the said plaintiff on occasion of the premises, whereof it is considered that the said plaintiff ought to recover his damages as aforesaid. [Or.] On occasion of the premises, whereof the parties have put themselves upon the judgment of the court as aforesaid. [Or.] Wherein issue is joined between the said parties to be tried by the record as aforesaid [as the case may be] should, at the same time be inquired of by you, the said judge : We therefore, pursuant to the statute in such case made and provided, com- mand you that you do proceed to try the said issue [or issues] joined between the parties, to be tried by I I .«■■* I '\i. ■ ' n m 132 RULES. the country; and also, at the same time, diligently inquire what damages the said plaintiff hath sustained by occasion of the premises, whereof it is considered that the said plaintiiF ought to recover against the said defendant his damages on occasion thereof, as aforesaid. [Or.] The premises whereof, the parties have put themselves upon the judgment of the court as afore- said. [Or.] Whereon ii;oue is joined between the parties, to be tried by the record, as aforesaid [as the case may be], if judgment shall happen to be thereupon given for the said plaintiff at the first [or second] sittings to be next hereafter holden of the said District Court, by a jury returned at such sittings for the trial ©f issues joined, and for the assessment of damages upon judgments obtained by default or upon demurrer in the said District Court, and where the same shall have been tried and assessed, as afore- said, that you make known to us, in our said Court of Queen's Bench, at Toronto, what shall have been done by virtue of this writ, with the finding of the jury hereupon indorsed, within ten days after the execution hereof. Witness the Honourable Toronto, the day of of our reign. Chief Justice, at in the year Fvrm of Indorsement of Verdict thereon. Afterwards, on the [day of trial and assessment] day of in the year , before me, , Esquire, Judge of the District Court in and for the District within mentioned, came as well the within named plaintiff as the within named defen- dant, by their respective attorneys within named [as the case may be], and the jurors of the jury whereof mention is within made, being summoned, also came, and being duly sworn to try the itisue [or issues], and -m 11UL£S. 133 [iligently sustained nsidered ' linst the ereof, as liave put as afore- 3 parties, the case lereupon second] the said I sittings sessment efault or id where as afore- id Court ave been of the tier the istice, at year jssment] for the well the defen- med [as whereof 10 came, es],atid also to inquire of and assess the damages sustained by the said plaintiflF on occasion of the premises within mentioned, on their oath, said, &c., [accord- ing to the finding of the jury on the issues, and if for the plaintiff', then] and the jurors aforesaid, upon their oath aforesaid, said that the said plaintiff hath sustained damages on occasion thereof, and on occa- sion of the premises within mentioned, over and above his costs and charges by him about his suit in that behalf expended, to £ If Nonsuit Afterwards, on the [day of trial and assessment] day of in the year of before me , Esquire, Judge of the District Court in and for the District within mentioned, came as well the within named plaintiff as the within named defen- dant, by their respective attorneys within named [as the case may be], and the jurors of the jury whereof mention is within made, being summoned, also came, and being duly sworn to try the issue [or issues], and also to inquire of and assess the damages sustained by the said plaintiff on o casion of the premises with- in mentioned, were ready to give their verdict in that behalf, but the said plaintiff, being solemnly called, came not, nor did he further prosecute his said suit against the said defendant. ^ Form of Entry after the Return of the Writ. Afterwards, on the day of in the year came the parties aforesaid, by their attorneys aforesaid [or as the case may be], and the said judge, before whom the said issue [or issues] was [or were] tried, and the said damages were inquired of and assessed, hath sent hither the said last mentioned writ, with his indorsement thereon, which said in- dorsement is in these words, to wit : [Copy indorsement; and then, if there be already interlocutory judgment; or judgment on the demurrer, I / ' 184 RULES. or upon the issue to the record, proceed at once to final judgment.] Therefore, &c. [Or, if the issue on demurrer, or to be tried by the record, be still undecided, then proceed in the usual form with the entries to judgment on the demurrer, or upon the issue to the record, and to final judg- ment.] V i' I i!" i : MUNICIPAL RULES. It is ordered, that the following Eules be substi- tuted for the Rules made in Hilary Term last by the Judges of the said Court of Queen's Bench for the trial of such elections; and that the forms of such writs, and the practice to be observed with respect to the matters aforesaid, shall be as follows, that is to say: — 1. (a) The relator entitled to complain of any elec- tion shall in person or by attorney, by written motion, apply to one of the said Courts of Queen's Bench or Common Pleas in term time, or to the Judge pre- siding in Chambers in vacation, for a writ of sum- mons in the nature of a quo warranto, which motion must, according to the statute, be made within six weeks after the election complained against, or within one month after the person whose election is ques- tioned shall have accepted the office, and not after- wards. 2. (6) Such motion shall be founded — 1st. On a (a) The court will not set aside an election on the rela- tion of a party who concurred in the election, and voted for the person whose election he afterwards attempts to set aside. — Beg. ex. rel. Bosebank v. Parker, 2 U. C. C. P. B. 16. (b) Where a relator declares that he has an interest in the deetton aa a voter for said ward, this, coupled with a previous complaint that defendant was unduly elected alderman, &c., sufficiently identifies him as declaring him- self to be a municipal voter, though he does not use th<3 precis term mmieijxa voteri required by 12 Vio. cb. 81, ;;' t 136 MUiVICll'AL IIULES. I ! m WW written statement, which shall be annexed to the motion-paper, settinpj f(jrth the interest which the relator has in the election, as candidate or voter, and setting forth also specifically, under distinct heads, separately numbered, (if there bo more than one) all such grounds of objection as he intends to urge against the validity of the election complained against and in favour of the validity of the relator or another, or other person or persons, when he shall claim that he or they, or any of them, have been duly elected ; and at the foot of such statement there shall be an affidavit made and signed by the relator, that he believes such grounds to be well founded: And, 2ndly. On an affidavit (c) or affidavits of the relator, sec. 14G. An objection, that though the relator's interest is sufficiently alleged, there is no sufficient proof of it to enable the court or judge to order the issue of the writ, cannot be urged on the return of the writ, where such alle- gation is not denied, and no proof offered to shew that relator had not the interest claimed. The interest of the relator is not established by the ordering of the writ. — Reg. ex. rel. Shaw v. Mackenzie, 2 Cham. Rep. 36. A relator's statement supported by his affidavit, is looked upon as a material traversable allegation in a declaration ; and if defendant omit to answer, he must be taken to admit it. — Reg. ex. rel. Hervey v. Scott, 2 Cham. Rep. 88. It is not necessary that the relator's statement should contain all the grounds on which the relator relies to entitle him to the seat, if the election should be set aside. — Reg. ex. rel. Clark v. McMullen, 9 U. C. R. 467. Nor is it necessary to state in the affidavits sustaining the relator's case, that the defendant has either accepted or acted in the office it is alleged he has usurped. — Reg. ex. rel. Helliwell v. Stephen- son, 1 Cham. Rep. 270. Nor thaL a relator, who is a can- didate, should shew in his qualification to oust the defen- dant, that he himself is qualified for the office. — Reg. ex. rel. Mitchell v. Adams, 1 Cham. Rep. 208. (c) An affidavit in support of an application to quash a by-law was not entitled in any court, nor was there any- thing to shew that it was sworn before an officer of any court, the commissioner styling himself merely " a com- missioner, ^'c," Held insufficient. — In re Hirons et al. and the Mun. Comicil of Amherstburgh, 11 U. C. R. 458. ed to the which the voter, and ict heads, m one) all 3 to urge led against 3r another, claim that ly elected ; hall be an r, that he ied : And, ;he relator, or's interest •oof of it to of the writ, -e such alle- 3 show that Brest of the the writ. — lep. 36. A looked upon tion; audif admit it. — 5. It is not contain all I him to tho g. ex. rel. lecessary to ,se, that the ofl&ce it is V. Stephen- 10 is a can- the defen- — Reg. ex. to quash a there any- icer of any ly "fl com- et al. and 458, xMUNIOIPAL RULES. or other person or persons, setting forth fully and in detail the facts and circumstances which shall support the application. The statement of the relator may be after the fol- lowing form mutatis mutandis : — STATEMENT OF THE RELATOR. In the Queen's Bench (or Common Pleas.) The statement and relation of , of , who complaining that , of , (here insert- ing the names and additions of all, if more than one person,) hath (or have) not been duly elected, and hath (or have) unjustly usurped, and still doth (or do) usurp the office of in the town of (or town- ship of , (as the case may be), in the County (or United Counties) of , under pretence of an election held on , at , in the said County (or United Counties). [And (when it is claimed that the relator, or the relator and another, or others, ought to have been returned), that (here name the party or parties so entitled) was (or were) duly elect- ed thereto, and ought to have been returned at such election], and declaring that he, the said relator, hath an interest in the said election as a , states and shews the following causes why the election of the said , to the said office should bo declared in- valid and void. [And (when so claimed) the said (naming the party or parties) be duly elected thereto]. First. — That (for example) the said election was not conducted according to law, in this, that, &e. Second. — That the said was not duly or legally elected or returned, in this, that, &c. Third.— That, &c. Signed by the relator in person, or by C. D., his attorney. Note. — Where the intention of the relator is to 137 I ) 138 ■MUMCU'AL IIULES. '<,'' ^ i^'U impeach the election an altogether void, in tchich event, as the office cannot be claimed /or an// other or others, the portion of the ahove and succeediny forms relatiui/ thereto shonld he omitted. a. ( ''I 140 MUNICIPAL UULES. \ FORM OP A JUDGE S FIAT ORDERING A WRIT TO ISSUE IN VACATION IN THE QUEEN'S BENCH (OR COMMON PLEAS.) Upon reading the statement of , of , in the County of , complaining of the undue election and usurpation of the ofl&ce of , by , [and (if so stating) that the said (relator or other person named) was (or were) duly elected, and ought to have been returned to the said oiSce,] and, upon reading the afl&davits filed in support of the said statement; and also upon reading the recognizance of the said , and sureties therein named, and the same being allowed as sufficient j I do order that a writ of summons do issue, calling upon the said , (the party whose election is complained of) to shew by what authority he (or they) the said , (the party whose election is complained of) now exercises or enjoys (or exercise and enjoy) the said office, [and why (if so claimed) he (or they) the said , should not be removed therefrom, and the said , (relator or other person or persons named) should not be declared duly elected, and be admitted thereto]. Dated this day of 18 Note. — If hi/ rule of court, the above form shovM he modified accordingly/. FORM OF WRIT OP SUMMONS. UPPEE CANADA. Victoria, by the Grace of God, &c. To , of , &c., in the County (or United Counties) of We command you (and each of you) that you (and each of you) be and appear before the Chief Justice, or other Justice of our Court of Queen's Bench or Common Fleas for Upper Canada, presiding in Cham- I WRIT TO BENCH (OR , of , f the undue (relator or elected, and ofSce,] and, t of the said ecognizance named, and order that )on the said plained of) y) the said aplained of) enjoy) the or they) the refrom, and 1 or persons ted, and be ^orm should (or United lat you (and ief Justice, Bench or g in Cham- MUNICIPAL RULES. bers, at the Judges' Chambers in our City of Toronto, on the eighth day after the day on which you shall be served with this writ, then and there to answer and shew to such Chief Justice or Justice by what authority you claim to use, exercise or enjoy the ofl&co of , which oflS,ce, upon the relation of having, as he says, an interest in the election 141 to the said office as a we are informed that you have usurped and do still usurp [and that (if so claimed) the said (relator or party or parties mentioned) was (or were) and should have been de- clared duly elected and admitted thereto], and further to do and receive all those things which our said Chief Justice or Justice shall thereupon order con- cerning the premises. Witness, the Honourable , Chief Justice of our said Court of , (or other Justice in whose name the writ ^s tested), at Toronto, this day year of our reign. of 18 , and in the FORM or NOTICE TO BE INDORSED ON OR ANNEXED TO THE WRIT OP SUMMONS. In the Queen's Bench {or Common Pleas.) The Queen, upon the relation of , against To , and , named in the within (or annexed) writ of summons. The within (or annexed) writ of summons has been issued at my instance and relation; and a statement concerning the premises, whereof a copy is hereunto annexed, is filed in the office of the Clerk of the Crown in this court (or with the Clerk in Chambers, at the City of Toronto), together with affidavits sup- porting the same; and the names and additions of the deponents to the said affidavits are hereunder written. And you are served with the said writ of summons to the intent that you do appear and answer, ' : !l i l|i 142 ' MUNICIPAL RULES. as therein commanded, or otherwise judgment will be given against you by your default, and- your election to the therein mentioned office will be declared invalid, and you will be removed therefrom [and the said , (the reUvtor, or , the party or parties, if any, alleged to be entitled (therein named, be declared duly elected, and will be admitted thereto in your place]. A. B. in person, or by C. D. his attorney. The above mentioned deponents are : — , of . , of . fuil i^ MINUTE OF THE DAY OF SERVICE TO BE WRITTEN ON THE SUMMONS. Served this day of 185 . 4. (e) A copy of such summons, and of the paper attached thereto, with a notice on the back of the copy of summons, aicording to the foregoing form, may be served by any literate person, who shall, with- in twenty-four hours after such service, make a minute on the writ of the time of serving the same; and upon the return of the writ, the party or parties summoned may appear either in person or by attorney ; and the manner of appearance shall be by indorsing on the back of the relator's statement attached to the motion paper: — "the within named C. D., &c., appears in person (or by attorney, as the case may be) to answer the grounds of objection to his election, which are stated within." 5. If upon the return day of the summons the (c) Personal sei'vice ol' a writ of summons in the nature of a quo warranlo, cannot be dispensed with, except in tho case provided for by 12 Vic. ch. 81, sec. 148. — Reg. ex. rel. Arnott V. Marchant et al. 2 Cham. Rep. 167. ed; iiH m iV MUNICIPAL RULES. 143 3nt will be ir election id invalid, said , 3S, if any, 3 declared ;o in youi- srson, ttorney. party or parties, having been duly served, shall not appear, then, on proof of such service by affidavit, according to the form subjoined, the Judge sitting in Chambers may, before rising on that day, direct an entry to be made as to such party or parties as make default, on the back of the relator's statement, thua : " The within named C. D. (and E. F.), being duly summoned, hath (or have) not appeared to answer to the matters within objected." Which entry shall be dated on the day of the return, and may be made on any subsequent day, if omitted to be made on that day, E WRITTEN 185 . f the paper ack of the _oing form, jshall, with- ke a minute ; and upon summoned ly ; and the ing on the the motion appears in i) to answer Avhich are nmons the the nature |xccpt in tho leg. ex. rel. tion of against FORM OP AFFIDAVIT OF SERVICE. When made personally, if service special under the 148 any party may 11 146 MUNICIPAL RULES. ■ I "^li'i'i'ti * ■J:'i^ have copies of the affidavits filed, on paying for the same. 9. At the hearing the relator shall not be allowed to object to the election of the party or parties com- plained against, or to support the election or elections of the person or persons alleged to have been duly elected, on any ground not specified in the statement on which the summons was moved; but it shall, nevertheless, be in the discretion of the judge, if ho shall think fit, to entertain upon his own view of the case any substantial ground of objection, to or in support of the validity of the election of either or any of the parties which may appear in the evidence be- fore him. 10. "When the party or parties summoned has or have appeared, no more formal answer need be made by him or them to the relator's case, than by aflida- vits filed in answer; but the judge before whom the case shall be pending may, in his discretion require from either or any party further affidavits, or the production of any such evidence as the law allows. 11. {(j) In case of disclaimer under the statute 13 & 14 Vic. eh. 64, schedule A. No. 23, the provisions therein contained, and in sub-provirfo No. (5 are to be observed. 12.- Incase a necessity shall appear for sending an issue to T)e tried by a jury, the writ for that pur- pose may be in the following form, and shall issue on the fiat of the judge directing the same, and beav date on the day oF its i^^!«ui no- ((/) AVhcre defendant personally contcndcl the election, but on its beinjj; moved jigainst, (-cut in ft disiclninior, pviiy- ing to be relieved from co.ts, beoitiso, being didj' elected, he was obliged to accept the office nnder a penalty : Held, it was no gvonnd for rolicf. — llog. ex. rel. Foatlierstone v. McMoniop, 2^Chain. B'p. 137. Defendant filed a disclaim- er a day too late, Held, he must pay costs. — lleg. ex. rel. Hawkj'v. Hall, 2 Chtan. Rep. 182. MUNICIPAL RULES. 147 ; for the e allowed ties corn- elections leen duly statement it shall, Ige, if he ew of the to or in tier or any dence be- 2d has or 1 be made by aflida- whoni the )n ref^uire ts, or the allows. statute 13 provisions are to be sending an hat pur- 1 issue on beav date lie election, nior, pvay- ly elected, Uy: lIcW, levstone v. a (lif^claim- eg. ex. rel. WRIT OF TRIAL. [£. 0.] Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Judge of the County Court of the County of Greeting : Whereas, upon the trial of the validity of an elec- tion of , chosen upon the day of , to be for the township of , (or as the case may be), in the county of , and which election hath been complained of by E. F., as the relator, alleging (as the case may be) that he himself, or that he and C. D., &c., or that C. ])., (fcc, was or were duly elected, and ought to have been returned, it hath become material to ascertain whether (here state concisely the issues to be tried); and whereas it is de- sired by , our Chief Justice (or Justice) of our Court of Queen's Bench (or (\»mmon Pleas), before whom thfc same is pending, that the truth of such mat- ters as aforesaid may be found by a jury : Wc do there- fore, pursuant to the statute in such case made and provided, command you, that by twelve good and lawful men of the county of , who are in no- wise akin to the said E. F., the relator in the said case, or to the said (the other party or parties, nanung him or them), and who ^^hall be sAVorn truly to try the truth of the said matters, you d(j proceed to try the same accordingly; and v.'hen the jury shall have given their verdict on the matters af(trcsaid, we com- mand yi»u that y(m do forthwith make knciwn to our Said (^hief Justice (or Justice) M"hat shall have been done by virtue of this writ, Avith the linding of the jury hereon indorsed. "Witness, the Ilonounible Justice) of our said Court, at Toronto, this Chief Justice (or of in the year of our rcign. 148 MUNICIPAL RULES. m ! JS •1 ; .ii ' p'n^fj''!f i^iS;; FORM OF INDORSEMENT OF VERDICT TIIEllEON. I hereby certify that on the (hty of , before me, L. jM., Judge of the County Court of the County (or United Counties) of came, a.s well the within named relator, as the witliin named (the other party or parties), by their attorueys, (or as the case juay be), and the jurors of the jury, by me duly Huininoned us within commanded, also came, and being sworn to try the matters within mentioned on their oath, said that, &c. 18. When the judge before whom any such case shall bo pending, shall have determined the same, eitlicr ex parte in case of default, or on hearing the parties, or partly ex parte and partly on hearing the parties, he shall nuike up and annex to the statement of the relator, and to the alhdavits and other ])apers filed in the case, a written judgment, attested by his signature, and dated on the day of the same being signed, in which it shall be sutlit-ient to state coji- cisely the ground and etfeet of the judgment, which iudixmcnt may be at any time amended bv the same judge, in regard to any matter ol' form. And the ffdlowing may be the form of judgment when in favour of the relator : IN TiTE queen's I5ENCH (oU CO^HION TLEAS.) The Queen, on the rcla-") 13e it rciuembered, that tion of , ^ on the day of , against . j in the year of our Jiord one thousand eight hundred and , at the Judges' Chambers in the City of Toronto, before me , Chief Justice (or Justice) of her Majesty's Court of Queen's Bench (or Common I'leas), came, as well the above named relator, by hi.^ attorney, as the above named , by his (or their) attorney, and service of the writ of summons ho" eunto annexed having been duly proved upon aiiidavlt, and upon the said day and upon other days thereafter, at his cham- ■*^<-> MUNICIPAL RULES. 149 und cli case } saino, ng the ■inir the oiut of t,s well ti.s tlio y, and luexod loM the ■luuii- bers aforesaid, havinj; heard and read the statement and ])roofs of the said relator, touching and concern- ing the usurpation by him alleged against the said , of the olfice of , in the said writ of sum- mons mentioned [and (if so) the election of (the party or parties named) thereto], and the answers and proofs of the said , and having heard the said parties by their counsel (or as the case may be), and upon due consideration of all and singular the premises now, that is to say, this day of , in the year aforesaid, I do adjudge and determine : First. — That the said relator had, at the time of his making his aforesaid complaint, an interest in the election to the said office of as a Second. — That, &c. Third.— That, &c. Fourth. — That the said hath (or have) usurped, and doth (or do) still usurp the said office, and that he (or they) be removed therefrom [or that the election of to the said otHcc was void, and that he (or they) be removed therefrom (as the judg- ment may be)]. And that the said relator (or the said [naming the party or parties whose election is alMrmed, when he or they are adjudged to be entitled to the said office]) was (or were) duly elected thereto, and ought to have been returned, and is (or are) en- titled in law to be received into, and to use, exercise and enjoy the said office. And I do adjudge and determine that the said do not in any manner concern himself (or themselves) in or about the said office, but that he (or they) be absolutely forejudged and excluded from further using or exercising the same, under pretence of the said election [and fur- ther that the said (naming the relator or parties whose election is affirmed) be (or be respectively) admitted to the said office in his (or their) place or places] ; And I do further order, adjudge and deter- mine, that the said relator do recover against the said , his costs and charges by him in and about the 150 MUNICIPAL RULES. i '{,?:;? W:,' said relation aiid the prosecution thereof expended, to be taxed in the said court. All which the said writ of summons, and the said judgment, and the statements, answers and proof's of the said relator, and of the said , and all other things had before me, touching the same, I do here- by certify and deliver into the said court, according to the form of the statute in such case made and provided. E. F., J. And the following may be the conclusion of a judgment for the defendant, to follow the word ajji- davit, in the foregoing form : Thereupon now at this day, that is to say, on the day of aforesaid, at the Judges' Cham- bers, at Toronto aforesaid, all and singular the relation and proofs of the said relator, and the answers and proofs of the said being seen and fully under- stood, I do consider and adjudge that the said oilico of so claimed by him (or them) the said , be allowed and adjudged to him (or them), that the said be dismissed and discharged of and from the premises above charged upon him (or them) and also that he (or they) the said do recover against the said relator his (or their) costs by him (or them respectively) laid out and expended in defending himself (or themselves) in this behalf. All which, &c. (as in the judgment for the relator). When the returning officer is made a party, the judgment to be modified accordingly. When the iudgraentof the (70 *&^ (/() No new evidence will be i-cceived by the com-t on the examination of the decision of a judge in Chambers as to a contested election : Semble, tliat Avlicther the court or a judge, before whom a relntor brings his case, will go fur- ther than declare the election of tlie defendant void, or will proceed aa well to seat the relator, is a matter of discretion MUNICIPAL RULE8. 151 bors shall have been returned into court, according to the statutes, and after the end of four days after such return, and if no rule shall have been granted to set aside or amend the judgment, the relator or person (or persons) in whose favour the judgment shall have been given, shidl bo at liberty to tax bin or their costs, and the following entry shall be made under or upon the record of the judgment, after which execution may issue : — " Afterwards, that is to say, on the day of , in the year of the reign of our lady the Queen, couicth the said , and prayeth that his (or their) said costs, s^ ) as aforesaid adjudged to him (or them) be taxed and assessed according to the form of the statute in such case made and provided, and the said costs of the said , in and about his (or their) prosecution (or defence) aforesaid [and (when the returning officer is a party) of the said in and about his defence aforesaid], so as afore- said adjudged to him (or them), arc now here accord- ingly taxed and assessed as follows, that is to say, the costs of the said at the sum of [and the costs of the said (when returning officer en- titled thereto), at the sum of ], and the said , in mercy, &c." 15. (?) The writs of certiorari and mandamus which it may become necessary to issue in any such case, will be in the common form of such writs, the command therein contained being suited to the cir- cumstances of each case, and, when applicable, the following form may be used : that cannot be interfered with on appeal, — Reg. ex. rel. Clark V. McMullan, 9 U. C. R. 407. (j) Semble, that as soon ns judgment ousting defendant has become final, the relator's course ■will be to apply to the IMunicipul Corporation to admit him, ami, if they refuse, then to apply to the court. — Reg. ex. rel. Gibbons v. Mc- Lellan, 1 Cham. Rep. 125. a^^su^'^'U&i^. 162 MUNICIPAL RUTJ:S. I n (the town, , in the year m FORM OF A WHIT OP MANDAMUS, To rrmncc fin; jirrsnii {nr prrsoinf, IxIikj irxs than the tchole ininibcr of mcmlicru of aui/ Jlinn'njtal Cor- jioratiou) who»e election is (ii/Jiit'fsou or persons lav f nil 1/ elected. Victoria, &n. To the Municipiil Coriwration of township or city of.) Whereas, on the day of of our Lord one thousand eight hundred and , at the Judges' Chambers, in the City of Toronto, be- fore Chief Justice (or one of the Justices) of our Court of Queen's ]Jcnch (or Connnon Pleas) for Upper Canada, it was by the said Chief Justice (or Justice) adjudged and determined that , of , had usurped, and did then usurp, the office of [and that was (or were) duly elected thereto, and ought to have been returned, and was (or were) entitled in law to be received into, and to use, exercise and enjoy the said office], all which lias, by the said Chief Justice (or Justice), been duly < )r- tified into our Court of Queen's Bench (or Common Pleas), pursuant to the statute in that behalf. Now, we being willing that speedy justice be done in this behalf, as it is reasonable, command that the said (the person or persons naming him or them, whose elec- tion has been declared invalid) do not in any manner concern himself (or themselves) in or about the said office, but that he (or they) be absolutely forejudged, removed and excluded from further using or exer- cising the same, under pretence of his (or their) elec- tion thereto.* [And we do further command that the said (the person or persons, naming him or them, who has or have been adjudged lawfully elected) be forthwith admitted, received and sworn into the said office, to use, exercise and enjoy the same.] And we do hereby command you and every of you to i;^;l5 MUNICIPAL RULES. oboy, observe, and do nil and every act, matter and thing that may bo necessary, on the part of you or any of you in the premises, according to the purport, true intent and meaning of these presents, and of the statutes in that behalf, and that you make known to our Court of Queen's Bench (or Common Pleas) at Toronto, on the day of shall have been executed. Witness, &c. 153 how this writ FORM OP A WRIT OP MANDAMUS. "[Ihcn neither the election of the person or persons [less than the whole number of members of the Munici- pal Corporation) who has {or have) been returned, nor thcjicrson or persons claiming to he returned is {or are) held valid, and for a new election. Victoria, &c. To the Municipal Corporation of , and to any returning officer or other person or persons to whom it shall of right belong to do any act necessary to be done, touching the election hereinafter com- manded to be held : Whereas (as in the last precedent to the asterisk, omitting the part between brackets, and then proceed as follows :) and we do further command that you, the said Municipal Corporation, and any returning officer or other person or persons, or such of you to whom the same shall of right belong, that you do, pursuant to and according to the statute in that be- half, cause an election to be as speedily held as shall be lawful, for the election of a person (or persons) in the place or stead of the said , who has (or have) been removed as aforesaid; and that you, or such of you to whom the same doth of right belong, do administer to the person (or persons) who shall bo so elected, the oath (or oaths) if any, in that behalf by law directed ; and that you admit, or cause to be h2 154 ' MUNICIPAL RULES, admitted, sucli person (or persons) so elected into the said office, and that you, the said Municipal Corpora- tion, do shew how this writ shall have been executed to our Court of Queen's Bench (or Common Pleas), at Toronto, on the day of Witness, &c. t^i^H tf: FORM OF A WRIT OF MANDAMUS, Directed to the Sheriff, where the elections of all the members of any Municipal Corporation have been adjudged in valid, and for the admission of those adjudged to have been legally/ elected. Victoria, &c. To the Sheriff of i'le County (or United Counties) of , Greeting: Whereas (the same as in the first precedent of a mandamus, to the end of the words " adjudged and determined,'' then say) that the election (or elections) of all the membeiB of the Municipal Corporation of , returned as elected at the election (or elec- tions) of members of the said corporation held (des- cribing the time or times and place or places of such election [or elections]) was (or were) invalid or void in law, and that (naming them all) had usurped (proceeding as in the first precedent, adopting the plural form, to the asterisk, and then as follows) : and we do hereby further command you, the said sheriff, that you do, pursuant to the statute in that behalf, admit or return and swear into, or cause the said (naming the persons adjudged to have been duly elected) to be forthwith admitted or returned, and sworn into the said office, to use, exercise and enjoy the same, and that you do and perform, or cause to be done and performed, all and every act or acts, thing or things necessary to be done and performed iu the premises; and we hereby command and strictly enjoin all and every person or persons to whom tLe 1 r* — >r- ;ed into the al Corpora- n executed ion Pleas), 5 of all the I have been m of those I Counties) edent of a adged and I" elections) )oration of m (or elec- held (des- es of such id or void i usurped )pting the follows) : , the said in that cause the been duly rned, and and enjoy cause to or acts, jerformed id strictly vhom tlie MUNICIPAL RULES. same shall lawfully belong, to be aiding and assisting you, and to do all and every lawful and necessary act to be done by him or them in the premises, according to the purport, true intent and meaning of these presents, and of the statutes in that behalf; and how you shall have executed this writ make known to our Court of Queen's Bench (or Common Pleas), at Toronto, on the day of next, and have then there tliis \^rit. Witness, &c. 165 FORM OF A MANDAMUS, To the Sheriff, when the elections of all the members of any Municipal Corporation have been adjudged invalid, and requiring others to be elected. Victoria, &c. To the sheriff, &c. (as in the last precedent to the asterisk, omitting the part between the brackets, and adopting the plural form, then concluding as follows) : and that you do every act necessary to be done by you in order to the due election and adrulssion of members of the said corporation, in the place and stead of the persons whose elections have been so declared invalid; and we hereby command, and strictly enjoin all and every person and persons, (continuing as in the last precedent to the end), Witness, &c. The form of writs of execution for costs in any such case may be as follows : — FI. FA. AGAINST THE DEFENDANT FOR RELATOR'S COSTS. TJPPEE CANADA. Victoria, &c. To the Sheriff of the County of , Greeting : We command you, that you levy, or cause to be levied, of the goods and chattels of C. D.^ late of , S^BET 156 MUNICIPAL RULES. H.' [add the description of the returning officer, where the execution is against him], the sum of , which hath been lately adjudged to A. 13. of , in our Court of Queen's Bench (or Common Pleas), at Toronto, according to the form of the statute in such case made and provided, for his costs by him laid out and expended in the prosecuting of a certain writ of summons in the nature of a quo warranto, issued out of our said court against , at the relation of the said A. 13., for usurping the office of , in our , of , in your county, [add, when the returning officer is a party, "to which proceeding the said was made a party,"] and whereof the said C. D (&c.) is (or are) convicted, as in our said court appears of record, and that you have that money before our Court of Queen's Bench (or Common Pleas), at Toronto, on the day of Term, to satisfy the said A. B. for his costs aforesaid, and have you then there this writ. Witness, &c. ri. FA. AGAINST THE RELATOR FOR THE DEFEN- DANT'S COSTS. Victoria, &c. UPPER CANADA. To the SheriflF of the County (or United Counties) of , Greeting : We command you, that you levy, or cause to be levied, of the goods and chattels of A. B., late of , the sum of , which hath lately been adjudged to C. D. of in our Court of Queen's Bench (or Common Pleas) at Toronto, according to the form of the statute in such case made and pro- vided, for his costs by him laid out and expended in his defence upon a cprtahi writ of summons in the nature of a quo warranto, issued out of our said court against the said CD., upon the relation of the said A. B., for usurping the office of , in our ! 1' 3r, where f f •n Pleas), itatute in s by him a certain (warranto, , at the office of r county, to which ty/'] and i^icted, as you have ench (or day of his costs DEFEN- lounties) se to be , late of ely been Queen's 'ding to ind pro- nded in s in the id court the said ir MUNICIPAL RULES. 167 of in your County (or Counties). [If the re- turninp: officer has been inadp a. j>»rty, add here, " to which proceeding E. F., the returning officer, at the election of the said C. D. to the said office, was made a party,"] whereof the said A. B. is convicted as in our said court appears of record; and that you have that money before our said court, at Toronto, on the day of Terra, to satisfy the said C. I). ♦ for Ills costs aforesaid, and have you then there this writ. Witness, &c. J^.B. — When the returning officer has been made a imrtij, and is entitled to costs, the fieri facias must he framed accordingly. 10. Contempts in disobeying writs of summons, certiorari, mandamus, or other process, rule or order of either court, or of any judge thereof acting in the execution of the powers conferred by the statutes 12 Vic. ch. 81, and 13 & 14 Vic. ch. 64, are to be cer- tified into the court from which the writ of summons issued, to be dealt with like other contempts of such court in other cases. 17. If any of the forms given in the foreuoing rules shall not be found adapted to a case which may arise in reference to proceedings connected with or resulting from the trial of the validity of municipal elections, changes are to be made therein when oces- sary, at the discretion of the judge who shall t ; or determine the case, to adapt the same to such ar- ticular case. 18. None of the proceedings which shall be had in any case for trying the validity of any election, or which shall follow the determination thereof, shall be set aside or held void on account of any irregularity or defect, which shall not, in the opinion of the court or judge before whom the objection is made, be deem- ed such as to interfere with the just trial and adju- dication of the case upon the merits. mi i^l w. m !'■ h i?l 168 MUNICIPAL RULES. 19. Coats. — The same ttible as authorised by the fifteenth iulu of liiluiy Term last, and any disburse- ments necessarily made, and not allowed for in the said table, may be taxed according to the table of fees generally established in the court in which the pro- ceedings shall be conducted. The costs taxable under the foregoing orders may be stated as follows : — ATTORNEY. £ 8. d. Instructions — To apply for a writ of summons or defend against 5 Statement — Of tlie grounds of complaint, includ- ing fair copy 6 Affidavits — Whether special or common, per folio of 100 words, and copies thereof when neces- sary 6 Recognizance — Drawing 2 6 Attendances, Special — at Chambers, for writ of summons, to serve writ, upon the argument, or to hear judgment 2 6 Attendances, Common — all other attendances not mentioned as special, each 13 Writs — Preparing writ of summons, writ of cer- tiorari, mandamus, trial or writ of execution each 2 6 Foe on each writ 5 Notices — Indorsement on writ of summons, every other indorsement upon writ, when required to be made, and all common notices, each... 13 Copies — Of statement or other papers and docu- ments, when required to be made or served, half the amount allowed for the original, and when no specific sum is allowed, then copies of papers required, or which may be direct- ed to be made, furnished or served, to bo allowed per folio of 100 woi'ds 6 Issues — When directed to be tried, preparing same 5 Disbursements — Postages actually paid, mileage where it is necessary to employ parties to serve writs, papers, &c., the actual number of miles travelled to perform the service, per mile 6 : '■{ AlUNICIPAL RULES. 169 £ 8. d. 5 6 ) 6 2 6 f } 2 6 i 1 3 a o 6 6 £ B, d. The aflRdavit must state the number of miles actually travelled, and also that the charge has been paid. N.B. — No instructions to bo allowed nor atten- dances to swear affidavits. No instructions to be allowed for briefs or charge for briefs. COUNSEL. Fee — For argument upon the return of the writ of summons, if argued by counsel 1 6 To be increased at the discretion of the judge, according to the importance of the case. Fee — Upon the trial of issues upon writ of trial at the County Court 1 10 CLEEKS OF THE OHOWN AND PLEAS AND THEIE DEPUTIES. For taking recognizance 2 6 For signing and sealing each writ 13 For each order or rule of court 2 6 For filing each paper 4 Copies of papers, per folio of 100 words 6 COMMISSIONER. For taking recognizance 2 6 Swearing each affidavit 10 CLERK IN CHAMBERS. For each fiat granted by a judge for a writ' 1 3 For filing each paper 4 For making up each final judgment of the judge and returning the same into court 5 Copies of papers, per folio of 100 words 6 Witnesses, jurors, sheriff and other officers, the same fees and allowances as for similar ser- vices at Nisi Prius, and in the Courts of Queen's Bench and Common Pleas. fii:lii ORDERS OF THE COURT OF CHANCERY fOR DEFFNINO AND REGULATINO THE PKAOTICE AND PRO- CSEDINGS OP THE COUNTY COURTS OF UPPER CANADA, UNDER "THE COUNTY COURTS EQUITY EXTENSION ACT." The Judges of the Court of Chancery do hereby, in pursuance of the authority and power conferred by an Act of the Legislature of this Province, passed in the sixteenth year of the reign of her present Majesty, intituled "An Act to confer Equity Juris- diction upon the several County Courts in Upper Canada, and for other purposes therein mentioned," order and direct, that all and every the rules, orders and directions hereinafter set forth, shall henceforth be, and for all purposes be deemed and taken to be, general orders and rules for defining and regulating the practice and proceedings of the several County Courts in Upper Canada, under the jurisdiction con- ferred upon them by the said act : — Intituling 1. All pleadings and affidavits filed in the County proceedings. (iQ^j.|;g under the provisions of the said act, are to be intituled as follows : — " In the County Court of the County of ^ Equity Side." not 8ign°^^ Sec. 2. — No pleadings shall require the signature pleadings, of COUnsel. Snto ^°' Sec. 3.— The claim is to contain : CERY AND PRO- ANADA, ACT >> ( hereby, jonferred e, passed r present ity Juris- n Upper itioned," ^s, orders ncefortli n to be, jgulating I County don con- 3 County are to be signature COUNTY COURTS EQUITY EXTENSION RULES. 161 (1.) The name and description of each party plaintiff. (2.) The name of each party defendant. (3.) A statement of the plaintiff's case in clear and concise language. (4.) A prayer for the specific relief to which the plaintiff supposes himself entitled; but the prayer for general relief may be added. Sec. 4. — In the several cases enumerated in sche- dule A, the claim may be in the form, or to the effect ^'^^^ of- set forth in that schedule, as applicable to the par- ticular case; and in cases not enumerated in that schedule, forms similar in principle may be adopted, wherever a more detailed statement is not necessary for the clear and intelligible statement of the case. Sec. 5. — It must appear upon the face of the claim that the subject matter thereof is within the jurisdic- tion of the County Court. Sec. 6. — Upon the claim being brought to the clerk's office to be filed, it shall be his duty to file JJJ^^«t^^«J^ the same of the day on which it may be so brought by cioik. in, and to enter the same in a book to be by him kept for that purpose; such entry to contain the names of parties plaintiffs and defendants, and the date of the filing of such claim. Sec. 7. — It shall not be necessary to serve the defendant with a summons or other process to notify him to answer the claim ; but, in lieu thereof, a copy of the claim is to be personally served upon himj^l^^^j."^^®"^ with an indorsement thereon in the form, or to the effect set forth in schedule B. In making such ser- vice it shall not be necessary to produce the original claim. PARTIES TO SUITS. Partio.o — no 1. It shall not be competent to any defendant in "''jt't^tion for any suit to take any objection for want of parties to certain caeeg. / ■ I' ( I ■!!■ I) ' ■! f , 1G2 COUNTY rolJllTS EQUITY EXTENSION llULES. nny suit in tlio (!ounui'th(ls«' beneficially interested under the trust in the same VionoflciaUy manner, ami to the same extent, as tlie executors or who 1100(1 not administrators m suits concerning personal estate bopiirUos. represent the persons beneficially interested in such personal estate; and in such case it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit ; but, on the hearing, the judge, if he shall think fit, may order such person or persons, or any of them, to be made parties. 13 RULES. ( in which Court of instituted •C(|uivo any i Huit; iind of the suit ; and may as ho may cord on the Jier i)!Uties matter in iling to the ious to the isary parties copy of tho dl bo bound s if thoy had ,j and upon may attend ny party so r add to the ate of such sonal estate settlement, the persons in the same xecutors or sonal estate stcd in such hall not be y interested but, on the may order to be made COUNTY COURTS EQUITY EXTENSION RULES. 1G3 Tn all cases m which the plaintift has a loint and^^'"''*^''.": . , , . . , ^, .,, •' . iimiid is joint several (lemand a_u;ainst several ix'rsons, either as prin-mid ■ ^v.mhI; cipals or sureties, it shall not hv. necessary to brintr JJi|j[]„"j"j!.a? Ix'fore the court, as pMi'ti<'H to a suit concerninp; suehtJatiu. demand, all the persons lia])le thereto; buttheplain- till may proccied against one or more of the persons severally liable. AMENDMENT. 1, Orders of course to amend a claim may be ob- Ainomiinent . , , V iirdored on tamed at any time beiorc answer, upon prceeipo. pniciito be- fur auswen See. 2. — Service upon any defendant of an order of course to amend ^>eforo answer may be dispensed Sorrioe of or- with, upon an application ex parte, where the judge IJIT, "n"r.i^ is satisfied that such an order may be made without with in ccr- pvejudiee to tho defendant's rights; and where Her- *""" '^''^"''*' vice u]H»u any del'endant of an order to amend has been disjiensed with, the course as to such defendant is to proceed as if the claim had been originally filed in the amended form. Sec. 3. — An order to amend the claim only for To correct or- ,1 n .•£• • 1 • 1 • ror in nmnp, the purpose ot rectiiymg a clerical error in names, ac, at auy dates or sums, uuiy be obtained at any time upon^^'™"- prcecipe. Sec. 4. — The judge may, at any time, in further- ance of justice, and on such terms as he may think ^o*^ma(k*by proper, permit an amendment of the claim and of jiidne nt any every proceeding relating thereto, by adding or strik- t|"eroueo"o^ ing out the name of any party, by correcting errors, J"8'i«=«- by inserting allegations material to the case, or by conforming such claim or proceeding to the facts proved, when the amendments shall not substantially change the nature or form of the suit; and such ainendnuMits may be in respect of any matter arising or occiu-ring after, as well as before, the institution of the suit, and before linal decree, and as well where- by the occurrin2; of such matter the suit abates or b ecoiues defective as otherwise. (■• 16i COUNTY COURTS EQUITY EXTENSION RULES. |V Directions to be (jiven by judge in Buch cases. Amendment must bo made within two days. 'a now obtain- Such order is to be npplicd for by motion to the jud<2;c ; and notie-e thereof, stating the proposed amendment, is to be served upon the defendant, or liis attorney, unless dispensed with by the judge. Upon the motion the judge must be satisfied, by affidavit or otherwise, of the trutli of the proposed amendment, and of the propriety of permitting it to bo made at the particular stage of the cause under all the circumstances. TJpon pronouncing such order for amendment, the judge is to give such direction, as to the future con- duct of the suit, in relation to service upon new parties defendnnts, in relation to answerinr' such amendments, as also in regard to the evideni taken or to be taken, and in all other respects, as the cir- cumstances of the case may require. Sec. 5. — A plaintiff" having obtained an order to amend his claim, is to amend the same within two days from the date of such order, otherAvise the order to amend becomes void, and the case, as to dismissal, stands in the same situation as if such order had not been made. Sec. 6. — When a suit becomes defective or abates, Abatement- ^y ^"^ event Occurring after final decree or order, in case of; any party entitled to revive the same, may do so by Tiv^d!"** ^^ ^ petition in the cause, which is to state the petition- er's title to the relief sought. The petition must be verified by affidavit; it is to be served upon the attorneys for all parties, or in case any party has no attorney, then upon such party. GUARDIAN AD LITEM. 1. In case it shall appear to the judge that any defendant upon whom a copy of a claim has been duly served is an infant, or a person of weak or unsound mind, not so f(mnd by inquisition, unable of himself to defend the suit, the judge, upon the application of the plaintiff, at any time after claim filed, may order Guardian ad Htem. !-Vil' RULES. idtion to the le proposed lofendant, or le judge, satisfied, by lie proposed iiitting it to cause under endment, tlie 3 iuture con- ic upon new ;werin'* such ideii> taken ts, as the cir- d an order to e within two wise the order 5 to dismissal, jrder had not tive or abates, 3rce ov order, may do so by 3 the petition- tion must be jd upon the [party has no idgc that any |hus been duly or unsound lie of himself ipplication of Id, may order COUNTY COURTS >"'^UITY EXTENSION RULES. 165 that one of the attorneys of the court be assigned guardian of sucli del'endunt, by whuiu he may unsw er the bill and defend* the suit. Notice of the application must be served upon, or k'ft at the dwelling house of, the person with whom Jo- °'''^'"'" or under whose care such defendant may be residing !;t the time of the motion, at least live days before at insfnnre Iho hearing of the applic.ition ; and where such de-"^'^''*'"*'''^" fondant is an infant, not residing with or under the care of his father or gxiardian, in that case notice of the application must also be served upon or left at the dw(illing house of the ftther or guardian, unless the judge, at the time of hearing such application, think lit to dispense with such service. Sec. 2. — A party desirousof appointing a guardian for himself to deft, id a suit, may go before the judge stmico of.in- with the proposed guardian, and the judge may appoint**"^' **^- such guardian, if he shall think fit so to do. lint he must bo satisfied by affiilavit that such proposed guar- dinn is a fit person, and has no interest adverse to that of the person of whom he is to be the guardian in the matter in question; and if the affidavit is not •iiilicient for this purpose, he may examine the pro- ji'ised guardian, or the p'nsou making the affidavit, viva voce, or rerpiire further evidence to be adduced until he is satisfied of the propriety of the appoint- ment. appp:araxce. Xo appearance, i< to bo entered in any suit, fi,°pe'\^^')^ either by the defendant, or by the plaintifi" on his ("''^ered. bduilf ANSWER AND DKMURKER. All defences to the plaintiff's claim are to beJ^J"^"^'" Imade by answc;' or demurrer, or by both, according I to circumstances. DEMURRER. . Defendant A defendant may demur to a claim at any time must uomur 166 COUNTY COUETS EQUITY EXTFNSION RULES, UnlU: Hi AUSWPM — firm of. >Iust bo within ton within ten (lays after service upon lain of a copy Furvici) of thercot. I pou tlie nliiij;' or a ueinurrer l»y a tleloii- duim. (Juiit, either party is at liberty to set clown the same for argiuneiit inmiediately, to be lieard in the fulluw- wiiondo- ijiff term, or at such other time as the nuh'o shall iniirrcr to be ~ . ' j n argui'd. npjiomt. ANSWER. 1. Answers may he in a form similar to the form set out in schedule C. The answer is to be in the iirst p(!i'son, and is to consist of a clear and concise statement of such defence or defences as the del'oii- dant may desire to make. The silence of the answer as to any stntement contained in the claim is not to be construed into an implied admission of its truth; and any allegation introduced into an answer for the purpose of preventint:; such implied admission is to be considered impertinent. Sec. 2. — A defendant served with a copy of a madi' within claim is to aiiswcr or demur to any original claim, or i^>»- claim amended before answer, within ten days after service of such claim, or of notice of the amendment thereof, tis the case may be. Sec. o. — The answer is to be signed by the defen- dant, and is to be verified by his oath; andthejunit is to be in the form set ftn-th in schedule C See. 4. — An answer may be filed without oath or signature, by written consent without order. JUDGE MAY GIVE RELIEF TO DEFENDANT UPON ANSWER PROPERLY FRAMED. 1. When, in order to do complete justice, rclii'f ou}j,ht to be given to the defendant as well as to the lie 'Svt"rt^) plaintiff, or to the defL'iidant alone, or to one of cicf.'iKiiinton several del'endants, the judge, if he see fit, may frame ausw"?"^'^ l^i*^ decree so as to altaiu tliat object, Avhcn tlie riglit of the defendant to relief grows out of the same trans- actions vv'hich form the subjof.t matter of the claim. The facts necessary to make out the defendant's Must bo Hi,2rneU and 8woru. Unless ujion writtcu cou- Beat. I* RULES. COUNTY COURTS EQUITY EXTENSION RULES. 167 of a copy by a ileion- vii thu siime 1 tlu! follow- jiul|^c Khali ■ to the form to be in tho r ami concise as the det'on- i>f the answer aim is not to of its tiaith ; iiswcr for tho lission is to be a copy of ''' .inal eUiini, or en days after c aniendnicut by the defen- and the jurat lie 0. Lh(jut oath or iivdov. |)KFKXDANT 'lAMED. justice, velii'f Iwcll as to the or to one uf fit, nmy fnuiio dicn the I'igl't [he sametraus- i)f the claim. ic defendant's rin;ht to relief nro to bo stated in tho answer ns part of the defendant's case ; and ho i.s to pray such relief a.s lio nuiy think himself entitlod to. This ordrr is not to be considered as anthori.sin«"der receiv against whom the claim has been taken as confessed trationT*"^"' to bo appointed with the usual directions; or direct a sequestration of such real and personal estate to be issued; and may, if it appear to be just, direct pay- ment to be made out of such real and personal estate of such sum or sums of money, as at the hearing or any subsequent step in the cause the plaintiff may seem to be entitled to. Sec. 6. — The rights and liabilities of any plaintiff or defendant under a decree made upon a claim taken as confessed, extend to the representatives of any . . . deceased plaintiff or defendant, at the time when the ties ext«nd decree was pronounced ; and with reference to the t^tfres?^"' altered state of parties, and any new interests acquired, the judge may, upon motion, supported by such evi- dence, as under the circumstances of the case the judge deems sufficient, permit any party, or the representative of any party, to adopt Such proceed- ings as the nature and circumstances of the case may require, for the purpose of having the decree duly executed, or for the purpose of having the matter of the decree and the rights of the parties duly ascer- tained and determined ; notice of such motion to be served in such manner as the judge may direct. I , a in j i j I i m i i i «f«ia«i r,/ii- I; ■f.' [■^3 ' f '1^ i ■ fi • ^' '/^ 1 .;; ■■■ • 170 COUNTY COURTS EQUITY EXTENSION RULES. 12. PRODUCTION OF BOOKS AND PAPERS. 1. Either plaintiff or tlefoiidaiit may, at fny time, nlltor answer, or when tlie apjilication is (ui behalf of the plaintiff, after the time for answering lias expired, p obtain an order of eoiirse upon prujeipe, recpiiriiif^- the of pap..rs-or- adverse party to produee, withm a tiniL- to bo Inintcd tafnod'^'m^ by the order, all deeds, papers, writinjrs and docu- prflecipo. lutjtits in hi,s eustody or power relatini^ to the matters in (piestion in tiie cause under ntith, and to dejxislt the same with the clerk for the usual purposes. Hut neither plaintiff nor defei daiit is to be held bound to produce, in pursuance of such oinier, any deeds, papers writiujiis or docuuieiits, wliieh a defendant, admitting the same by his answer to be in his custody or power. would not b«} bound to produce according to tbe prac- tice of the Court of Chancery Affldavit, of Sec. 2 — Tlie affidavit to be made by a party who party served. b;^.s been Hcrved witli an order for the production of documents under the pre(teding section, may })e in the forui or to the effect set forth in schedule I). Sec. 8 — Such order shall not recjuire personal ser- Order for pro. vice. If the party required to obey the same shall not iH^per- ^ave an attorney, it shall be sufficient to seiTe the Bonaiiy serv- game upon suoh attorney ; but any writ or writs of attachment to be issued for disobedience to ^^uch order, must be obtained by orders nisi and absolute, and the order nisi must be personally served. Sec. 4. — l^pon any trial before a jury, the jndce shall have the like powers, in respect of the produc- dn^tioii at tloD of dccds, papcrs, writings or documents, as is possessed by judges of county courts in Upper Canada upon the trial of issues in can.ses on the common law side of such courts. 13. MOTION FOR DECREE OR DECRETAL ORDER AFTER TIAIE FOR ANSWERING UAS EXPIRED. 1 Tbe plaiatiff in any suit, at aiiy time after the Jndjje may ordur p,-()- COUNTY COURTS EQUITY TXTENSION RULES. 171 shall ! the its of •^uch 5olute, period jtllowcd to tho defcndsint for ariKwerinu' has ^''*'' " *"','■ expired, may move the t(»uit tor !?u( h deciee or de-aud hiw u. cretal order as he may think himself oiitilled to; and ];y "'";,'',';"'^ the plaintilf and dclbndaiit resjieotively niay fie iitti-P'S'^d. davits in support of, and in opposition to such motion, and may use tho sanie at the hcarinp' thereoi'; and when such motion is made after an answer filed in the cause, the answer, tor the purp(jscs of the motion, is to be treated as an affidavit. Sec. 2. — Notice of the motion is to be served upon the defendant or defendants at least ten days before the day to be named in such notice for the makin" of the aj plication. Pee. 8 — Within five days from tho service of the notice, the defendant must tile his ai^idavits in answer. Sec. 4. — Within three days after the expiration of such five days, the plaintiff' is to file his affidavits in reply; and, except so far as such last mentioned affi- davits are in reply, they aie not to be rcpirded by the judo-e, unless upon the hearing of the motion the jiub^e shall "ive the defendant leave to answer them; and in that case, the costs of puch affidavits, and of the further affidavits consequent \ipon them, arc to be paid by the plaintiff, unless the judp;e order other- wise. Xo further evidence, on either side, is to be used upon the hearing- of such motitni, without the leave of the j ud^e. Sec. 5. — ITpon hearinir the application, the judge in his discretion may either grant or refuse the mo- tion, or may aiye siuh directions for the examination of cither parties or witnesscvS, or for ihe making of further enquiries, as the circumstance.' may require, and upon such terms, as otherwise, as he may tliiidc rirht. le case of tl to costs and erthd Such motion is to be heard in the following term, or at such utU'.r time as the judy^e may appoint. I' ■ ^ ' : ■.! f S Hi h!: -■If ' 172 COUNTY COUUfS EQUITY EXTENSION RULES. 14. MOTION FOR DECREE OR DECRETAL ORDER BEFORE TIME FOR ANSWERING HAS EXPIRED. 1. When it can I e niiule to appear to the judge JiKiTC mav tlint it will be conducive to the ends of justice to pcr- oniiotioiffor "^^^ ™^'^ notice of motion to be served before the d.vroet.) 1),' time for answerinc: the claim has expired, the plain- ti^mTfo'i^Htis- tiff may apply to the judp;c ex parte for that purpose, wtTini has gt. any time after the claim has been filed, and the judjre, if he thinks fit, may order the same accord- ingly ; and when such permission is granted, the judge is to give such directions, as to the service of the notice of motion, and the tiling of the affidavits, as he may deem expedient. Upon hear- 8ee. 2. — I'pou the hearing of the motion for a tion.'|ud"e"" decrco or decretal order, the judge, in his discretion, nwy give per- uiay either re the judge, in the same manner as if the evidence given by him in his affidavit had been given by him orally; and such witness is to attend befure the judge upon being served with a writ of suhjiaim u f dares t«fQ ef»sts are to be allowed in respect of any aflida- vit. not diMwn in conformity with this order. Every affidavit in support of, or in opposition to any application other than an affidavit of service, is to be read over to the deponent by the officer who is required to administer tiie oath; and the officer is to inform such witness that he is liable to be cross-ex- amined touchin*;- the matter of such affidavit; and when the witness desires to qualify or add to his deposition, the officer is to vary the same accordingly, and the jurat is to be in the form or to the effect set forth in schedule E. 20. COMPELLIXG ATTENDANCE OF WITNESSES FOR PURPOSES OP MOTIONS, &c. ■^ 1. Any party in any cause depending, may, by a ■Witnpssea Writ of SilfijxriKi (((1 trat'jiraiKhnn or Huhjnt )7a ad tesfi- pMiiilo^Ht-'J^^f'^"^^""' ''^ (luces tccitni, require the attendance of tend U'forM anv witucss bofore the iudae, or before a deputy judge, &c. fi.r -^ . , ,. •> .■ ' , . 1 •' purposes ot a master, or beiore an exanuner, and exannno such motion, &c. -^rj^ness Orally, ibr the purpose of using his evidence upon any motion, petition, or other proceeding before rosls to i.o allowed. Officer to read over afiidaTit. li COUNTY COUllTS EQUITY EXTENSION UULES. 1T7 jy a iesti- |e of >uty ■iuch jnce Ijfore '.he court; and such witness .shall be bound to attend for the purpose of beinjr; eniss-exiiniined on being .•^erved with such writ; but the judge, ucverthelesa, in his discretion, may act upon the evidence befovo the court ut the time, and may make such inlnrim order, or otherwise, as niay appear nocensnry to meet the justice of the case. Sec. 2.- — Any party in any cau?\! or matt^i* who requires the attendance of any witness, whether a party to tho r^au.-Je or not, for the purpose of his beinj.' examined with a view to his evidence upon any motion, petition, or o|her proceeding before the court, is to pcive to the opT)Osite ]>iirty or parties forty-eight hours' notice at least, of his intention to examine such witness, and of the ciuie and place of such ex- amination, unices the court think lit in any case to diopjuso with such noilec. Sec. )i. — The cross-examination in such case is to follo\v iuiiuediiitely upon tht examination, and is not to be deferred to any future time. 21. EX.IMIXATIOX OF P ARTIE S. 1. Any ]iarty to a f-uit may be examined as a witness by the party adverse in point of int(;rest, wirlioUt (iny special order for that purpose; am, may be (■:>n)f>eiled to attend and testily in the same iium- ncr, upon tiic sume terms, and subject to the ^ame rules of examination, as any other witness, except as hereinafter mentitned : and any person for v,-1u)se immediate benelit a suit is piosecuted, or defended, is ttt bo regarded as a party for the purpose of this order. I'rovided always, tlvit when it appears that any party examined under this order is united in intcre>t Avlth the exanuning party, the evidence so used is not to be used on behalf of either the ex- amining party or examiuant, but may be struck out at the hearing of tho motion at the instance of any party affected thereby. I 2 Forty.«lght hours' notice tht'ieof to be i!ervi>d oti op. jioslte party. Parfiostoth '■atisa may 111' examined lis vitm'ssos liy party ad- vi^THi* in piiiiiT of in- terest. .,!' i 178 COUNTY COURTS EQUITY EXTENSION KUtES. i vi I !J !i i I h '^■- i: O'^pon «ny Sec. 2. — Any party tlefondtint may be examined which party as a V itness on behuli' either of the phiintiff or of a BotTnterest co-tleil-ndant upon tiny points as to which tiic party ed. to be examined is not interest(;d; and any party plaintiff may be exinninod under fiiniilar circum- (stances by n eo-plaintiff or by a defendant. Provided that where any party having an interest has ))een ex- amined under this order, such evidence is not to be used on behalf either of the examining party or of the examinant, but may be struck out at the hearing of the motion at the instance of any party aflected thereby j but such examination is not to preclude the judge i'rom making a decree either for or against the party examined. •Whore party ^*^c. 3. — Evidence taken under the first section of Interested U: this order may be rebutted by adverse testimony ; and may be fur- any party examined as therein provided may be fur- ed'on* thdr°' ^^^^ examined on his own behalf in relation to any own behalf, raatter respecting which he has boon examined in chief. And where one of several plaintiffs or defen- dants, who are joint contractors, or are united in interest, have been -o examined, any other plaintiflF j^intiy"ntc^ or defendant so united in interest may also be ex- rested may be amined on his own behalf, or on behalf of those their own ^- United with him in interest, to the same extent as *»*"^ the party actually examined. Provided, nevertheless, that such explanatory examination must be proceeded with immediately after the examination in chief, and riot at any future period, except by leave of the judge. Sec. 4. — Any party to the record who admits upon Party admits ^^^ examination that he has in his custody or power tin; deeds, any deeds, papers, writings or documents relating to hi's'iwssos- °tibe matters in question in the cause, is to produce "^ d* Tto** *^® same for the inspection of the party examining produce him upon the order of the judge, and for that purpose a reasonable time is to be allowed. But no party shall be obliged to produce any deed, paper, writing or document which Would be protcx)ted under Uie pwctice of tho Court of Chanctty* .1 h l\i COUNTY COURTS EQUITY EXTEN.^ION RULES, 179 Sec. 5. — Any person rcfiisintr or nculcctinp to rnrty ri^fiis- ini: t< Mill I d flttoiul at the tiiiio and pliice appointed I'nr his cx-tr.n w ] ai (T uination, under .he first section of this ordor, H'iiy !oiihu"pt be punished as for a contempt ; and the party who •'»'«" ""J^w desires the examination, in addition to any other u.^rcJ. ^ remedy to which he may be entitled, may apply to the judge upon motion either to have the claim taken as conlesscd, or to have it dismissed, according to circumstances; and the judge niay, upon suih appli- cation, if he think fit, order, either that the dnini be taken as confessed, or that it hv dismissed, as the case maybe; and where, from the circumstances of tlic case, such order cannot be made consistently with the rights of other parties to the suit, then the judge may make such order as to the taking of evidence, or otherwise, as may seem just. Sec. 6. — When the examining paity uses any por- ^vhrn r«rt of tion of the evidence taken under the first section of V'""^'"''"' ° this order, (but not otherwise) then it shall be com- tiru evidcnre petent for those against whom it is used to put in the in"by^'oth"r entire evidence so taken, as well that given in chief, side, as that in explanation. Sec. 7. — Any party plaintiff examined under the ^vhen wirty first section of this order may be so examined at any may '« '"''• time after answer, and any party defendant may be examined at any time after answer, or after the time for answering has expired, as the case may be, 22. JURY TRIAL. It shall be competent to the plaintiff, instead p„f^^^^ ^^y of giving notice of motion for a decree in mannerapiiv f r hereinbefore provided, to apply to the judge upon toiMriedby notice, for an order that the facts in issue in the^J^'y- cause, or that certain of such f.^'ts, be tried by a jury, and it shall in like manner be coinpetent to the defen- dant, at any time within five days after tiling his answer, to make the like application ; and upon the bearing cf such application, the judge, if he thinks iit to grmit the same, is to setde, as uearlj us coa- iMAGE EVALUATION TEST TARGET (MT-3) // ^ .<.^ ^ % II £ 1^ 120 I lyi IIIM BJ4 ij o 7 Hiotographic Sciences Corporation 33 WIST MAIN STREET WEBSTER, N.Y. MStO (716)l72-4»03 m iV k v <\ i\ ■J! 180 COUNTY COURTS EQUITY EXTENSION RULES. veniently may be, what facts are to be tried by a jury, and whether any, and if any, what affidavit evideice may be asel upon ,suth trial; and in the evei.t of such application being granted, such jury trial is to be had, and a decree may thereupou be made in juanner directed by the said actj and- such applicjitiou may he granted upon such terms as the judge luay deem just, and he is to be at liberty to make such iaterljcutory order, upon such applicaf tion or otherwise, as he may think fit, upon aitidavits or other evidence. 23. FOREIGN COMMISSIONS. Forei.'ncom- ^ Commission may be obtained for the ex- missimsmayamiiiation of witnesses not residing withm Upper Canada, upon; affidavit by the party applying that certain witnesises (^Mauiing them ) rc>*ide at or Jibout a place to be specihed in such aflidavit, and that the evidence of such witnesses is, as he believes, material and necessary to his case. 24. MISJOINDER OF PLAINTIFFS. No suit is to be dismissed by reason only of Suits not to *^^ misjoinder of persons as plaintiffs tlierein, but be dismissLd whenever it appears to the judge that nutwithstand- dw of pirtTii- iiig the conflict of interest in the co-plaintiffs, or the ^ud'4'ma want of interest in some of the plaintiffs, or theexist- order neces- cuce of souic grouud of defence affbcting some or one mentaTw-^^' ^be plaintiffs, the plaintiffs, or some or one of !»«• them, are or is entitled to relief, the judge may grant such relief, and may modify his decree according to the special circumstances of the case : and for that purpose he is to direct such amendments, if any, as may be necessary; and at the hearing, before such amendments are made, may treat any one or more of the plaintiff's as if he or they were defendant or defen- dants iu the suit, aud the remaining or other plaintiff's was or were the only plaintiff" or plaintiffs on the re^iord; and whei'e there is u misjoinder of plaintiffs, \ • .fF 4^JOfgE3ir",^^jiJ^^^;?T-^^M^*^^ COUNTY COURTS EQUITY EXTENSION RULES. 181 nnd tbo plaintiff who has un interest has died, lenving a plaintiff on the record without any interest, the judge may, nt the hearing of the cause, order such an aincndiueiit if the record as may ajjpear just, and • proceed to a decision of the cause, if he shall see lit, and give such directions, as to costs or otherwise, as may appear just and expedient. 25. CONDITIONAL ORDER. In all cases where a person or party obtains an order from the judge upon condition, and fails to J^"*^ ^"'*'8 perform or comply with such condition, he is to be condition on considered to have waived or abandoned such orde\\J^l^^^^^^^ as far as the same is beneficial to himself, and any may v* treat- other party or person interested in the matter, on the halved itV* breach or non-perfoi'uiance of the condition, may either take such proceedings as the order in such case may warrant, or such proceedings as might have been taken if no such order had been made. 26. PAYMENT OF MONtY INTO COURT. Money ordered to be paid into court is to be paid with the privity of the clerk into such bank or bank agency in the county tt)wn as the judge may appoint, and if there be no bank or bank agency therein, then into such bank or bank agency in Soiwy'in*'^ Toronto as the judge may appoint ; the attorney or party paying in the sanje is to furnish the bank with a correct copy of so much of the order directing such payment as relates thereto, with the names of the parties to ^he suit and the date of the order. Sec. 2. — All sums of money to be paid out of court j^^^ out of are to be so paid upon the cheque of the clerk, coun- court, tersigned by the judge, and not otherv/ise. 27. SUITS FOR FORECLOSURE and REDEMPTION. 1. In any suit for the foreclosure of the equity of?" ?"■? "'^ J ^. *'. , ^f, '' dor in tore- redemption in any mortgaged property, or tor re- closure or re- demption, the mortgagor may be ordered to deliver J^jJ^^^^ge^ 182 nion may bo ordered to be delivered. Sale instead of foreclosure may be directed. And any ba- lance ordered to be paid. Surety for mortgage debt may be made party and ordered to pay. COtJNTY COtllTS EQUITY EXTENSION RtJLES- up possession of the mortgaged premi.scs upon the final order for Ibreelosure or for dismissal of the claim as the case may be. Sec. 2. — In any suit for the foreclosure of the equity of redemption in any mortgaged property, the judge, upon the request of the mortgagee, or of any sub.sequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, may direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the judge may think fit to direct, and, if the judge think fit, without previously determining the priority of incum- brancers, or giving the usual or any time to redeem; but if such request be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the judge is not to direct any such sale without the consent of the mort- gagee or the person claiming under him, unless the party making such request deposit in court a reason- able sum of money, to be fixed by the judge, for the purpose of securing the performance of such terms as the judge may think fit to impose. Sec. 3. — Instead of foreclosure, the claim in any such suit may pray a sale of the mortgaged premises, and that any balance of the mortgage debt which may remain due after such sale may be paid by the mort- gagor, and the same may be decreed accordingly. Sec. 4. — When any person is surety for the pay- ment of any mortgage d. bt, such person may be made a party to any suit for the foreclosure of the equity of redemption of the morigaged property, and the relief specified in the last section may be prayed against both the mortgagor and his surety, and the same may be decreed accordingly. Sec. 6. — When a suit has been instituted for the foreclosure of the equity of redemption in any mort- gaged pro{>erty for default in the payment of interest, or bf oa iostelme&t of the priudjpal^ aD;)r defendaut COVNTY COURTS EQUIfY EXTENSION RULES. 183 le same may may move to dismiss such claim upon paying into court the amount then due for principal and interest, with costs. Sec. 6. — When a suit has been instituted for the purpose and under the circumstances specified in the last section, any defendant may move to stay the proceedings in the suit, uftcr decree, but before sale or final foreclosure^ upon paying into court the amount then due for principal and interest with costs. When an application is made to stay the proceed- ings under this section, the decree may afterwards be enforced, by order of the judge, upon any subse- quent default in the payment of any further instal- ment of the principal or of interest. « Sec. 7. — When a motion is made for a decree after entry made to take the claim as confessed, in a suit for the foreclosure of tho equity of redemption in any mortgage property, the plaintiflF is to produce at the hearing : (1.) The mortgage deeds and the assignments thereof, if any. (2.) An affidavit, which is to state the amount advanced upon the security ; the amount paid — whether by receipt of rents or othei-wise; and the amount remaining due for principal and in- terest, distinguishing how much for principal and how much for interest : the affidavit is to state whether the mortgaged premises or any part of them have been in the occupation of the mort- gagee, or of any one under whom he claims; and when there has been any such occupation, the affidavit is to state its nature, the time it continued, and the &ir rentable value of the property. Upon production of sucli proofs and documents, the judge jsinj at onco deternunfi tbo olmt/aDt du)»| In foreclo sure suits on default of payment of instalment or interest, defendant may move to stay proceed- ings on pay- ment into court of sum due and costs Decree may 1)6 enforced on subse- quent de- iault. Proceedings on motion for decree after entry pro COa£B860. id4 COUNTY COURTS EQUITY EXTENSION RULES. li Nanto of at' torney or party to be endorsed on plitadlDgs io. and when a foreclosure is ordered, the tinio and place for the payment of the luortjiaue money may be lixed by the decree, without a reference or any further en- quiry. 28. INDORSEMENT OF NAMES OF ATTORN liTS OR PARTIES. 1. Upon every writ sued out, and upon every claim, demurrer, and answer, or other proceeding, there shall be endorsed the name, or firm and place of business of the attorney or attorneys by whom fiuch writ has been sued out, or such pleading or other proceeding has been filed; and when such attorneys are agents only, then there shall be I'urther endoised thereon the yanie, or firm and place of business of the principal attorney or attorneys. Fee. 2. — Every party suing or defending in person is to cjiuse to be endorsed or wvitten upon every writ; which he sues out, and every claim, demurrer, answer, or other proceeding, his name and place of residejice, and also, (when his place of residence is more than three miles from the office where such pleading or other proceeding is filed) another proper place, to be called his address for service, not more than three miles from the said office, where writs, notices, orders, appointments and other documents, proceed- ings and communications mav be left for him. 29. CJPIES OF PLEADINGS, &c. Copies of 1- 4".y P^^'^y requiring a copy of any pleading or pioadintrs &c. affidavit is to m;\ke a written application for the same ded in v/rlt-' to the attorney of the party by whom it has been '•'S- filed, or on whose behalf it is to be used ; and when such party has no attorney, then to the party himself. Sec. 2. — When an application is made for a copy livered with- of any pleading or affidavit, it is to be delivered with- in 18 hours, jjj forty-eight hours from the time of such demand ; and any further time which may elapse before the When party S'itii in per- son, and re- sides more than three niil^s dis- tant, ad- dress fur stT- viee to bo given. RULES. COtTNTY COtRTS EQUITY EXTENSION RULES. 186 and place uvy be fixed furtlicr en- 'TORNl!:i'S apon every proceeding, n and place ■whom fiuch ig or other h attorneys ♦u" endors«,'d 5incss of the ■jg in person n every writ irer, answer, pf residejice, more than pleadin;:^ or ace, to be than three notices, s, procecd- lim. Its k'O. ^leading or )r the .same it has been and when i-ty himself. for a copy ivered with- h demand ; before the delivery thereof is not to be computed against th« paity demanding the same. Sec. 3. — Copies of pleadings and affidavits are to No costs al- be written on paper of convenient size, in a legible iew^?eKibiy°* manner, and unless so written, the attorneys furnish- written, ing them are not to be paid for the same. 30. TR.ANSMISSION OF PAPERS BY MAIL. Alt documents, of whatever nature, required to be transmitted to the clerk of the court, or the deputy master may be so transmitted through the tJ^pu^ftting post office, under cover, addressed to the clerk, or^P?" to deputy master, as the case may be, sealed with the ' seal of the party required to transmit the same; or they may be forwarded by a special messenger : in that event the messenger is to make oath, before the clerk or deputy master, that he received the document from the hands of the party required to transmit the same, that it has not been out of his possession since he so received it, and that it is in the same state and condition as when it was placed in his hands for transmission : and the name, style end place of re- sidence of such. messenger, are forthwith to be en- dorsed upon the document so transmitted, by the clerk or deputy master, as the case may be. 31. ORDERS OF COURSE. ^^^^ ^, All orders of course ax-e to be drawn up by the ^^f^^l "^ •lerk upon proecipe. proecipe. 32. APPOINTMENT OF RECEIVERS. Receivers are to be appointed in the following manner : — The pai-ty prosecuting the order for a re- ceiver is to obtain an appointment from the judge. Mode of ap- and to serve the same on all necessary parties, naming, teivJrs!^ ^^ in the copy thereof served, the proposed receiver and his sureties. At the time appointed, the party pro- secuting the order is to bring into the judge's cham- bers the recognizance or bond proposed as security. *t \ > \, i^ 186 COUNTY COUftXa EyUlTY EX'i'iNSION RLLK8. B I The bond or rooo^ni/.aticit' is to be to tho jtulgo. Any (Uhi»r party dosirous ol' |iro|K>siiii;' aiiotlior jiorsou us roivivcr, is to sorvi; uotii-t^ df his inti'iition so to do upon tho (itlicr parties, naiuinn' in such notice the ])orson propt)sc'd by liini as rt'vi'iver, and his snrotios: and is th(>n in likt> manner to brini;' into the judiro's ehand'ers the reeonnizanee or l»ond proposed by him as Seeurit). At the time named in th(^ appointment, the jnd;;v is, in the jn-esenee oi' the parties, or of those who attend, to eonsider ol' the appointment of the reeeiver, and to deterniine respecting the same, and to settle and approve the proposed seeurity; and the jndm« is to appoint sueh reeeiver by signing a written appointment to the following eil'ect : — " In the County (\»urt of the C^ounty of , E(|uity Side. <^StVle of eaiise.) 1 hereby appoint (reeciver's name), receiver in this cause." (Signature of judge). AVhioh appointment is to be signed withimt any ap- pointment or attendance for that purpose; whi'n signeil it is to be tiled by the party who has procured the person named by him as reeei;er to be appointed, but the same is not to be filed until after the execu- tion and tiling of the securities settled and approved by tlie judge. aa. NOTIOKS OF Mouoy. Ri>rvioooftuv \ .V notice of motion, by anv party to the suit, aftor claim uiay be served at any time alter claim tiled, without the leave of the judge. See. '1. — There must be at K\ast two clear days between the service oi' a notice of motion and the day named in the notice for hearing the motion, unless the judge give speci::! leave to tlie contrary ; and in the computation oY such two clear days, Sundays, ov days on which the otfioes are closed, are not to be reekom\l. filtHl Iv'Svii'ir 34. EVIDEXOE IPOX MOTIOXS AND IXTERLO- inir*, MH u- CUTOKY PROCEKDINGS. Tits and mcKld of oin> cMding. 1. Admissious of the service of a notice of motion If COUNTY COURTS EQUITY EXTENSION RULES. 187 or other papor, upon the opposite attorney, need nut be vcril eil by ulHihnit. Sot'. 2. — All the artitlavits upon which any notice of niotion is founded must be tiled at the time of the service of >>uch notice of motion ; and the affidavits, either in support of. or in opposition to, any special motion, are to be tiled with the cKmIc. Sec. o. — Any }>»rty who requires a copy of an affi- davit to be used upon any applicaition is to demand the same tVoiu the attorney of tlie party by whom such affidavit has been tiled, or on whose behalf it in to be used, and such copy is to be ready for delivery withiji forty-eight hours from the time of such de- nnind, or within such other time as the judge may iu any caae direct. 35. TAKING ACCOUNTS AND MAKING INQUIUIES. 1. When it shall, in the opinion of the judge, Sfr"(!f- be necessary or proper that accounts bo taken, or*y ♦" >»«»• inquiries made, and whon the judge shall not think County tit that the same be Uiken before himself, they may '^""'■** bo referred to the master or to a deputy master of the Court of Chancery, or to the clerk of the county court, ' in the discretion of the judge ; and in case of such reference being ordered, the decree or order referring the same shall be carried into the office of the master, deputy master or clerk, as the case may be, withio ton ilays after the decree or order shall have been pronounced, by the party having the carriage of the sane ; otherwise any other party to the cause, or any pjuty having an interest in the reference, nuiy apply to the judge as he shall bo advised, that the prosecu- tion of su^h decree or order may be committed to hiai, or otherwise, for the purpose of expediting the ■ pr >secution thereof. r^eo. 2. — Tp >n the bringing in of every decree or jrod.- of pro ot'lev, the attorney bringing iu the same is to tali)n the briiiginij; in of any decree or order of rel'er- en uUx)k inoin^.g^ is to bc entered, the style of the canse, the name of the attorney prosccutin postpoiio tliL' lienrim^ oi' such ret'crencru, he may luaki' sucli order :ih t j the costs conseiiuent upon such postponement, as he laay think just. And so soon as lie shall hav(^ entered upfwi the hearing of such rot'erence, ho is to proceed therewith t(» the conclu- si(»n without intenniption, where that is practicable; and when any ret'erenee cannot be finished in a single iluy, ho is to proceed do die in diem without any fresh appi/intment, unless he shall be of opinion that an adjournment other than de die in diem would be proper, and conducive to the ends of justice : and when any such adjournment shall be ordered, he is to note in his book the time and reason ihereof ; ard in no case is any matter to be discontinued or .'.'• journed for the mere purpose of proceeding with any other matter, unless such course shall have becomo necessary. Sec. 9. — Upon any application made by any person to the judge, the officer is, at the instance of the per- son making the application, to certify to the judge, as shortly as he conven:3ntly can, the several pro- ceedings had in his office in the same cause or mat- ter, and the dates thereof. Sec. 10. — Where a party actually prosecuting a decree or order, does not proceed before the officer with due diligence, the officer is at liberty, upon the application of any other party interested, either as a party to the suit, or as one who has come in and established his claim before him under the decree or order, to commit to him the prosecution of such decree or order, and from thenceforth neither the party making default, nor his attorney, is to be at liberty to attend him as the prosecutor of such decree or order. S«o. Xl. — AdTertisemeata for creditorg are to iip- Peferonceii to lie prorwded \\ltLUedluin dluu.. Officer to cer tify «t«te of pre uedings. Ineamofnif reamiiab)* delay, car- rlapre of de- ci'ee may be committed to other person iuterested. 192 COUNTY COURTS EQUITY EXTENSION RULES. Advertise-^ ^ point a day and hour at which creditors are to como ditors. whtjse in and present and prove their claims ; for this pur- piowdby*^ pose no state of facts shall be necessary, but the affldttTit claims arc to be duly verified by afiida.it. At the time and place named in such advertisement, the Prooeedings officer is to proceed on the claims brought in before him without further notice, and may examine any Cost of, may P^^ies as witnesses in relation thereto at such time or may not or thereafter, as he may see fit; and he is to allow or creditoire. ^ disallow or adjourn the same, as to him may seem just. The costs of proving such claims are, in the discretion of the officer, to be allowed to the creditors proving the same, and added to their >bts respec- tively, or to be disallowed. And in se of their being allowed, they may be allowed in gross, in place of taxed costs. Sec. 12. — In reports, no part of any account, charge, affidavit, deposition, examination or answer, , brought in or used in the officer's office, is to be ports, how to stated or recited ; but instead thereof the same may be made. ^q referred to by date or otherwise, so as to inform the judge as to the paper or document so brought in or used. Sec. 13. — In taking of accounts in the officer's office, it shall be within his cognizance to take the j^t^y^ same with rests or otherwise; to take accounts of couats in offl- rents and profits received, or wh'ch, but for wilful what course ncglect or default might have been received; to set he may pur- occupation rent ; to take into account necessary re- pairs and lasting improvements, and costs and other expenses properly incurred otherwise, or claimed so to be; and generally, in the taking of accounts, to inquire and adjudge as to all matters relating thereto, as fully as if the same had been specifically referred ; Where not' subject, ne\ ertheless, to the revision of the jud^ pi^dlugs.*^' upon appeal from the report. And it shall not be necessary to the taking of such acpounts, that any of the matters aforesaid should have been stated in the pleadirgs, or that evidence thereof should have been n ', RTJLES. ire to come ,r this pur- ry, but the it. At the cement, the ;ht iw before jxamine any at such time is to allow or n may seem s are, in the the creditors ^bts respec- se of their rross, in place any account, ion or answer, ,ftice, is to be ■the same may as to inform so brought in n the officer's ;e to take the ce accounts of but for wilful ceived; to set t necessary re- osts and other or claimed so jf accounts, to elating thereto, ically referred; I of the judp it shall not be Qts, that any ot jn stated in the ,ould have been COUNTY COURTS EQUITY EXTENSION RULES. 1.93 given before the decree or order of reference, or that such decree or order should contain any specific direo- tion in respect thereof. Sec. 14. — Under any order of reference witnesses may be examined before any examiner of the Court of Chancery; and upon the certificate of the officer J^^'^^^T^^^f' to whom the reference is made foreign commissions foreign com- may issue for the examination of witnesses without ^^^"^ ™*^ the jurisdiction of the court, the officer is to be at liberty to cause parties to be examined, and to pro- duce books, papers and writings as he shall think fit, and to determine what books, papers and writings are to be produced, and when and how long they are to be left in his office; or, in case he shall not deem it necessary that such books, papers or writings should be left or deposited in his office, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient. He is also to Creditors ad be at liberty to cause advertisements for creditors, ^®''*^***^ ^°'- and, if he shall think it necessary, but not otherwise, for heirs or next of kin, or other unascertained per- sons, and the representatives of suoh as may be dead, to be published, as the circumstances of the case may require; and in such advertisements to appoint a time within which such persons are to come iu ^nd prove their claims, and within which time, unless they so come in, they are to be excluded from the benefit of the decree. And in taking any account of in taWng ao a deceased's personal estate, under any order of refer- ^"afe'iftate'^ ence, he is to enquire and state to the judge, what, if of * deceased any, of the deceased's personal estate is outstanding ISquWos oft- or undisposed of; and is also to compute interest on^^^™*^' the deceased's debts from the date of the decree, and on legacies from the end of one year after the de- ceased's death, unless any other time of payment is directed by the will ; and under any order whereby any property is ordered to be sold, the same is to be sold to the best purchaser that can be got for the 194 COUNTY COUETS EQUITY EXTENSION RULES. "Without spe- cial direo- tiona. May direct copy of de- cree to bo served onper- sons interest- ed, not par- ties— «lfect of sanie, and either in one lot or in parcels, as the oflScer shall direct; and all proper parties are to join therein as the ofl&ccr shall direct. And under every order whereby the delivery of deeds is ordered, or the execution of conveyances is directed, the officer is to give directions as to the delivery of such deeds, and to settle conveyances where the parties differ, and to give directions as to the parties thereto, and the execution thereof; and for the special purposes here- in enuiuerated no special ordei" shall be necessary. Sec. 15. — Where in proceedings before the officer to whom any reference is made, it appears to him that .some persons not already parties ought *to be made parties, and ought to attend or be enabled to attend the proceedings before him, he may direct a copy 6f the decree to be served upon such parties ; and upon due service thereof, such parties are to be treated and named as parties to the suit, and to be bound by the decree, in the same manner as if they had been originally made parties to the suit. Every copy of a decree directed to be served under this section is to be endorsed with a notice to the effect set forth in schedule F. to these orders, with Buch variations as circumstances may require. When hear-' See. 16. — So soon as the hearing of any matter o"fflcer^com. pending before the officer shall have been completed, Dieted, how he shall so inform the parties to the reference then in cTOd. ^'^ attendance, and shall make a note to that effect in his book, and after such entry no further evidence shall be received or proceedings had, without his special permission ; but he shall proceed to prepare his report or certificate without further appointment, unless he shall sec fit to make an appointment to settle the =;ame, which shall in such case be served on the parti(- as he shall direct. So soon as the report or certif ate shall have been piepared, it shall be delivered out to the party prosecuting the reference, or in case he shall decline to take the same, then, in ON RULES. COUNTY COURTS EQUITY EXTENSION RULES. 195 the discretion of the officer, to any other party apply- ing therefor, and a common attendance shall be allowed to the party taking the same. Sec. 17. — Reports become absolute, without order j^gp^^^g ^ confirming the same, in ten days after the signing come abso- thereof, unless previously appealed from. An appeal days, with- shall lie to the judge upon motion within ten days °"* ^'*i«'^- from the signing of the report, in respect of the find- ing of the officer upon any matter presented in his office for his decision, without objections or excep- tions being previously taken. The appeal motion may be made by any party affected by the report ; Appeal may and upon notice thereof being served, all the proceed- be made ings before the officer, and all papers and evidence daysl*^ ^^ relating thereto, are, at the instance of any party interested therein, to be transmitted, in order to the same being produced in court, upon the hearing of such motion. Sec. 18. — Where accounts are directed to be taken, or inquiries to be made, by any decree or order, each decree to^b" direction is to be numbered, so that, as far as may numbered, be, each distinct account and inquiry may be desig- nated by a number ; and such order may be in the form set forth in schedule G., with such variation as the circumstances of the case may require. Sec. 19. — When the judge shall in his discretion inquiries think fit that such inquiries be made or accounts"""^'!' "7?'^ i 1 1 £• 1 • !£• 1 • 1 • 1 J- counts taken taken betore himselr, he may give such special dircc- before judge, tions, if any, as he may think fit, as to the mode in j Wiiich the account is to bo taken or vouched ; and in i cases where he shall think fit so to do, he may direct that in taking the accounts, the books of account, in which the accounts required to be taken have been kept or any of them, shall be taken as primtt facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. Sec. 20. — An accounting party is to bring in his ! I Si li I m t 196 COUNTY COURTS EQUITY EXTENSION RULES. Accounts to^ account in the form of debtor and creditor, and verify in form''of the Same by affidavit, unless the judge shall other- Dr.andCr. ^j^g ,jirect. The items on each side of the account are to be numbered consecutively, and the account is to be referred to by the affidavit as an exhibit, and not to be annexed thereto, and is to be left at the judge's chambers. And mode of proceeding tliereou. Sec. 21. — Any party seeking to charge any account- ing party beyond what he has by his account admitted to have received is to give notice thereof to the accounting party, stating, as far as he is able, the amount sought to be charged, and the particulars thereof, in a short and succinct manner. Se(|. 22. — In the taking of accounts before the judge, he is to be at liberty to give such direction, as to the mode of proceeding, as to parties, as to costs and otherwise, as he may see fit, and as to him may appear to be justj and in points as to which he may give no direction, the mode of proceeding is to be the same, mutatis mutandis, as upon a reference. 36. SALES OF PROPERTY UNDER THE DIREC- TION OF THE JUDGE. decroeor**!)" Sulcs under any decree or order are to be con- ducted in the following manner : — (1.) No copy of the decree or order, or any part thereof, is to be brought before the judge, or into the master's, deputy-master's, or clerk's office, but the original decree or order is to be used, unless the judge or officer require such copy. (2.) An appointment is to be obtained from the judge or officer, and served upon all necessary parties. (3.) At the time appointed thereby, the party having the conduct of tlie sale is to bring before the judge or officer a draft advertisement, but dor, ON RULES. COUNTY COURTS EQUITY EXTENSION RULES. 197 R THE DIREC- arc to be con- no particulars or conditions of sale, or any draft or copy thereof. (4.) Such draft advertisement is to contain the following particulars, viz. : — 1st. The style of the cause : 2nd. That the sale is in pursuance of the order or decree of the judge : 3rd. The mentsof^ie. time and place of sale ; 4th. A short and true description of the property to be sold : 5th, The manner in which the property is to bo sold, whether in one lot or several, and, if in several, in how many, and what lots: 6th. What pro- portion of the purchase money is to be paid down by way of deposit, and at what time or times, and whether with or without interest, the residue of such purchase money is to be paid : 7th. Any particular or particulars in which the proposed conditions of sale differ from the standing con- ditions. (5.) At the time named in such appointment, the judge or officer is, in the presence of all parties served, or of such of them as attend to settle such advertisement, to fix the time and place of sale, to name an auctioneer, where one is to be employed, and to make every other necessary arrangement preparatory to the sale, so that nothing may remain to be done but to insert the advertisement; and all the before-mentioned matters must be done at one meeting — namely, upon the return of the appointment, where it is practicable; and no adjournment of such meet- ing is to take place, and no new meeting is to be appointed for the aforesaid purposes, unless it is unavoidable. (6.) The advertisement is to be inserted by the party conducting the sale, at such times, and in such manner, as the judge or officer shall have appointed at the meeting before mentioned. (7.) The judge or officer may fix an upset price or 198 Upset prii-e may be fixed. 'M' Contract to be signed by purchaser. After 10 days, sale coiifirm- ed. COUNTY COURTS EQUITY EXTENSION RULES. reserved bidding, where it is thought expedient, without further order; but this must bo done at the meeting before mentioned, and it must be notified in the conditions of sale ; the officer ia to conduct the sale, where no auctioneer is em- ployed; the deposit is to be paid to the vendor, if present, or if not, to his solicitor, at the time of sale, and is to be forthwith paid by him into court; biddings need not be in writing, and all parties, except the one having the conduct of the sale, may bid thereat, provided it be notified in the conditions of sale; a written agreement is to be signed by the purchaser at the time of sale; after the sale is concluded, the auctioneer, where one is employed, is to make the usual affidavit according to the practice of the Court of Chan- cery; and where no auctioneer is employed, the officer is to certify to the judge to the same effect, but is to make no report allowing the purchaser in any case. (8.) Under the printed conditions of sale is to be printed a blank form of contract in these words, or to this effect: " I agree to purchase the pro- perty (or lot No. ) mentioned in the an- nexed particulars, for the sum of £ , and upon the terms mentioned in the above con- ditions of sale. " Witness, (Purchaser's Signature.) }} the purchaser is to sign one of these contracts; and the affidavit of the auctioneer, or the cer- tificate of the deputy-master or clerk, and a printed copy of the particulars of sale, are to be annexed to the contract so signed. (9.) The signed contract, with the printed copy of particulars, and affidavit or certificate annexed as aforesaid, is to be filed by the vendor's attor- [ON RULES. COUNTY COURTS EQUITY EXTENSION RULES. 199 ncy; and if such sale is not objected to within ten days from the time of such filing, it is thence- forth to stand absolutely confirmed. (10.) Such sale must be objected to by motion to the judge to set aside the samej and notice of such motion must be served upon the purchaser and the other parties to the cause. Cll.) At any time after the confirmation of the i^"'5?*e' ^ 1 ii_ 1 ■«_ • -I may then sale, the purchaser may pay his purchase money pay money and interest, or the balance thereof into court, '•**** *^"'*- without further order, but with the privity of the clerk, and upon notice to the party having the conduct of the sale; and shall thereupon be en- titled to be let into possession of the estate, and may then proceed, in the usual way, to obtain possession thereof; or, if such possession be wrongfully withheld from him, may, at his own expense, obtain an order against the party in possession for the delivery thereof to him. (12.) When an inquiry into title has been directed jj^^g ^f^^^ by the judge, the vendor is to deliver an abstract eeedingwhen of the title to the purchaser; and if the pur- litlo^rected! chaser does not object to the title, and obtain and serve an appointment to consider the same, within ten days after the delivery of such abstract he is to be deemed to have accepted such title. At the time of serving the appointment, the purchaser must deliver to the vendor a written notice of the objections to the title ; at the time appointed a duplicate of such notice is to be brought into the judge's chambers by the ob- jecting party, and such objections are to be argued before the judge, who is to allow or dis- allow such objections. (13.) The standing conditions of sale are to be those set forth in schedule H. attached to these orders. 37. The judge, in any stage of the cause, and the I .: i ' m COUNTY COURTS EQUITY EXTENSION RUtES. fjj,***^' p,^il|j^ master, deputy-master or clerk, upon any inquiry or may obtain ' taking of ftccount before him, may obtain the assist- accouutauts^ ^'"ce of accountants, merchants, engineers, actuaries, *<>• or other scientific persons, in such way as he may think fit, the better to enable him to determine any matter in issue in any cause or proceeding, and may act on the certificate of such persons. Pro interesse BUO. How pro- 38. EVIDENCE ON CLAIM PRO INTERESSE SUO. Any person who, according to the practice of the Court of Chancery previous to the 6th day of June, 1853, might have moved to be examined pro interesse suo, may apply to the judge, upon motion, for such relief as he may think himself entitled to. Sec. 2. — ^lotions under this order are to be gov- erned by the pi'actice prescribed by the 13th order, in relation to motions for a decree. Sec. 3. — On hearing the motion, the judge, in his 6ecdfedwith. discretion, may either grant or refuse the motion, or may give such directions for the examination of par- ties or witnesses, or for the making further inquiries, or for the institution of any suit or action, as the cir- cumstances of the case may require. Sec. 4. — When it can be made to appear to the judge that it would be conducive to the ends of jus- tice to permit a notice for such purpose to be served for some day earlier than that prescribed by the 18th order, leave may be obtained for that purpose, upon an ex parte application to the judge in the manner prescribed by the 14th order. 39. MOTION FOR A DECREE TO ADMINISTER THE ESTATE OF A DECEASED PERSON, WITHOUT CLAIM FILED. Decree to sd- ininister es- made with- pecuniary, or residuary legatee, or the next of kin, or ouuiaim ^jjQ jjgjj,^ Qj. j^ devisee, interested under the will of any , Any person claiming to be a creditor, or a specific, COUNTY COURTS EQUITY EXTENSION RULES. 201 link himself deceased person, may apply to the judge upon motion, without claim filed, or any other preliminary proceed- ing, for an order for the administration of the estate, real and personal, of such deceased person. The notice of motion in such case is to be in the form or to the effect set forth in schedule I., and must be served upon the executor or administrator, as the case may be, at least ten days before the day fixed for hearing the application. Upon proof by affidavit of the duo service of such notice of motion, or on the appearance in person, or by his attorney or counsel, of such executor oret^^cTpi^ administrator, and upon proof by affidavit of such ^nd that, if the decree or order be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery 207 ^08 County courts equity extension rules. of possession thereof, the amount of which said security shall be fixed by the said judge. (5.) When the decree or order is for the sale of property, and the payment of any deficiency arising upon the sale, the security _ shall also provide tor the payment of such deficiency. In the cases above provided for, proceedings in the County Court shall not be stayed except upon the order of the judge, which he may grant ex parte or upon notice, as he may see fit. In other cases proceedings are not to be stayed except by order of the Court of Chancery or a judge thereof, to be applied for by motion, and to bo grantedjby such court or judge ex parte or upon notice, and upon such terms as such court or judge may think proper. Sec. 6. — Upon the perfecting of the security for the appeal, it shall be the duty of the County Court judge, at the instance and at the expense of the appellant, to cause the pleadings, evidence and documents filed or deposited in his court, to be transmitted to the registrar of the Court of Chancery by mail or otherwise, as he may think expedient; provided that if the parties consent that any docu- ments be not sent to the Court of Chancery as being not material to the matter appealed, it shall not be his duty to transmit the samej and in case he shall be clearly of opinion that certain documents are not material to the matter appealed, and that for any reason it is inexpedient to transmit the same, he may, instead thereof, certify his reasons for not transmit- ting the same • unless documents are retained for either of the reasons above set forth, the judge is to certify lo his sending all the pleadings, papers, evidence and documents filed and deposited in his court. 45. The foregoing orders are not to afiect the course of proceeding pointed out in the County iW ; [t^^ COUNTY COURTS EQUITY EXTENSION RULES. 209 Oourt Equity Extension Act for the conduct of suits ^®^«^^er8 in County Courts, or in relation to the removal of the course of causes therefrom to the Court of Chancery, or in ^Xd'out * relation to the appeals from such County Courts or by statute, ,1 • . • o ■ ri • • r> .T. unless incon- otherwise, except in so lar as the provisions oi the sistent. said act may be inconsistent with the said orders. Sec. 2. — In any matters not provided for by the JrfctTce*^? *** said act or the foregoing orders the course of pro- ^"»»'t "f ceeding shall be the same as in the Court of Chancery whirmrt for Upper Canada. p'"^'<*««^ *''^- 4G. — It shall be competent to the judge in any judge may case in which he shall deem it right so to do, to*|^*®"^^'™® extend the time by these orders limited for the orders for doing of any act or taking any proceeding in any^^^"'^"'^ suit in the said court, and also, upon a proper case made, to allow^any act to be done or any proceeding to be taken, notwithstanding the lapse of the time by these orders limited in respect thereof, upon such terms as he may deem just. 47. The clerk shall keep, in his office, a book to Order look be called, "The Order Book,"— in which shall bet^y^J^f entered at length all orders, decrees, or decretal orders, made in the progress of any cause or matter pending in' such court, on the equity side thereof. 48. INTERPRETATION. In the foregoing orders the following words have the several meanings hereby assigned to them, over tion.'^'* and above their several ordinary meanings, unless there is something in the subject or context repug- nant to such construction, viz : (1.) Words importing the singular number include the plural number, and words importing the plural number include the singular. (2.) Words importing the masculine gender include females. 1 11^1.^1)4)1111 JH W 1 210 COUNTY COURTS EQUITY EXTENSION RULES. (3.) The words " person" or " party" include a body politic or corporate. (4.) The word " affidavit" includes affirmation. (5.) The word " legacy" includes an annuity, and a specific as well as a pecuniary legacy. (6.) The word " legatee" includes a person inter- ested in a legacy. (7.) The expression " residuary legatee" includes a person interested in the residue. (8.) The word " order" includes decree and decre- tal order. (9.) The word " county" imports the county or united counties in the County Court of which the cause may be pending. (10.) The words "County Court" import the County Court of the county or united counties in which the cause may be pending. (11.) The word "judge" imports the judge of such County Court. (12.) The word " clerk" imports the clerk of such County Court. (13.) The word " schedule," with a letter follow- ing such word, refers to the schedule desig- nated by pnch letter following these orders. 49. WHEN THESE ORDERS TO COME INTO When these OPERATION. orders como into operar Thcsc ordcrs are to come into operation and take eflfect on the first day of February 1854. COUNTY COURTS EQUITY EXTENSION RULES. 211 letter follow- ion and take SCHEDULE A. FORM OF CLAIMS. 1. By a le^al or equitable mortgagee, or person en- titled to a lien as a security for a debt, seeking foreclosure or sale, or otherwise to enforce his security. In the County Court of the County of Equity side. A. B. ") (enumerate all the parties and V plaintiffs) Plaintiffs. C. D. ) and E. F. ") {all parties defendants') and Y Defendants. G.H. ) A. B., of the township of in the said county, states that under and by virtue of an indenture (or other document) dated, &c., and made, &c., (and a transfer thereof, made by indenture, dated, &c., and made, &c.,) the said A. B. is a mortgagee (or an equitable mortgagee) of (or is entitled to a lien upon) certain freehold property (or leasehold or other pro- perty) therein comprised, being (insert a general description of the property), for securing the sum of £ and interest; that the time for payment thereof has elapsed ; that £ has been paid on account of principal, and £ on account of in- terest (or that no sum has been paid on account of either principal or interest, or otherwise, as the case may bo) ; that the said A. B. has not been in tho occupation of the premises, or any part thereof, (or that the said A. B. has been in the occupation of the premises, or some part thereof, from the day of , in the year , to the day of in the year ) ; that there is now justly 212 COUNTY COURTS EQUITY EXTENSION RULES. due upon the said security for principal £ and for interest £ . That E. F. and G. H., the defendants hereto, are entitled to the equity of re- demption of the said mortgaged premises (or the premises subject to such lien). The said A. B. therefore claims to be paid the said sum of £ and interest, and the costs of this suit; and in default thereof that the equity of redemption of the said mortgaged premises may be foreclosed, (or that the said mortgaged premises may be sold, or that the premises subject to such lien may be sold, as the case may be, and the produce thereof applied in or to- wards the payment of the said debt and costs ; and that the said E. F. and G. H. may be ordered to pay the balance of the said mortgaged debt and costs, after deducting the amount realized by such sale), and for that purpose that all proper d.rections may be given and accounts taken, (and for further relief,) and the said A. B. avers that the said defendants reside in the said county of 2. By a judgment creditor, who has registered his judgment, seeking a sale or otherwise to enforce his charge or lien. In the County Conrt of the Connty of- Equity side. A. B Plaintiff. and C. D Defendant. A. B., of the township of in the said county, states that in term, in the year , the said A. B. (or G. H., late of deceased, of whom the said A. B. is the executor, or administrator or assignee, under an assignment, dated, &c., and made, &c., or of whose executor or administrator, or admin- istrator de bonis non, the said A. B. is the assignee it,': N RULES. COUNTY COURTS EQUITY EXTENSION RULES. 213 •egistcred his ise to enforce under, &c.,*) recovered a judgment in the court of against C. D., the defendant herein named, for the sum of in an action heretofore brought against the said C. D., which judgment was duly registered in the registry office of the county of , on the day of , at which time the said C. D. had divers lands, tenements and hereditaments in the said county; and that the said C. D. is now the owner of the same lands, tenements and heredita- ments, subject to the said judgment. The said A. B., therefore, claims to be paid the amount of the said judgment, together with interest thereon, and his costs of this suit ; or in default thereof, that the said lands, tenements and hereditaments, or a competent part thereof, may be sold for the satisfac- tion thereof, and the proceeds of such sale applied accor^ngly; and for that purpose that all proper directions be given, and accounts taken. And the said A. 13. avers that the said defendant resides in the county of 3. By a person entitled to redeem any property sub- ject to any legal or equitable mortgage, or any lien, seeking to redeem the same. In the County Court of the County of Equity side- Between A. B PlaintiflF. and C. D Defendant. A. B., of the township of in the said county, states that under and by virtue of an indenture (or * The character of the plaintiff must be described, with- out detailing the transactions whereby he acquired such character. ISIII ItHl il I '' M' i-i I! "1 ' Mi tKfl ■ mi •MM i \IM t<''B iHri Iw^va i!.; lil-i 1 ( 214 COUNTY COURTS EQUITY EXTENSION RULES. Other document), dated the day of , and made between (parties^, (and the assurance heroin- after mentioned, that is to say, an indenture dated the day of , the will of dated the day uf ,) the said A. B. is entitled to the equity of redemption of certain property therein comprised, bein<:f (here describe the property shortly) which was originally mortgaged (or pledged) for securing the sum of £ and interest, and that C. 1)., the defendant hereto, is now, by virtue of the said indenture, dated the day of (and of subsequent assurances), the mortgagee of the said property (or holder of the said lien), and entitlefl to the principal money and interest remaining due upon the mortgage (or lien) ; and the said A. 13. believes that the amount of the principal money and interest now due upon the said mortgage (or lien) is the sum of £ or thereabouts; and he has made an application to the said C. D. to receive the said sum of £ and any costs justly payable to him, and to reconvey to the said A. B. the mortgaged property (or property subject to the said lien) upon payment thereof, and of any costs due to him in respect of this security; but that the said C. D. has not so done. The said A. B. therefore prays that ho may be let in to redeem the said mortgaged property (or property subject to the said lien), and that the same may be reconveycd (or delivered up) to him upon payment of the principal money and interest, and costs due and owing upon the said mortgage (or lien), and f jr that purpose that all proper directions may be given and accounts taken; and the said A. B. avers that the said defendant resides in the county of A. By a person entitled to an account of the dealings and transactions of a partnership dissolved or expired, seeking such account. COUNTY COURTS EQUITY EXTENSION RULES. 215 In the County Conit of the Connty of Equity side. Between A. 13 PlaintiflF. and C. D Defendant. A. 13., of the township of in the said county, states that from the day of down to the day of he and CD., the defendant hereinafter named, carried on the business of in co-partnership, under certain articles of co-partner- ship, dated the day of , and made be- tween (parties), or under a verbal agreement, made between the said A. B. and the said C. D., or through their respective agents (E. F. and G. H.) on the day of , and he says that the said co- partnership was dissolved (or expired, as the case may be,) on the day of . The said A. 13. therefore prays that an account of the partnership dealings and transactions between the said A. 13. and the said C. D. may be taken, and the affairs and business of the said partnership wound up and settled under the direction of this court, and for that pur- pose that all proper directions may be given and accounts taken. And the said A. B. avers that the joint stock or capital of the said co-partnership hath not at any time exceeded the sum of £200. And the said A. B. avers that the said defendant resides in the said county of A. 5. By a person entitled to the specific performance of an agreement, for the sale or purchase of any property, seeking such specific performance. In the County Court of the County of Equity side. Between A. B. Plaintiff. and C. D Defendant. ■»"■ t I « 'll 'in t 1 " ■I i 216 COUNTY COURTS EQUITY EXTENSION RULES. A. B., of the township of in tho said county, states that by agreement dated the day of , and signed by C. D., the defendant hereinafter named, the said C. J), contracted to buy of the said A. 13. (or to sell to him) certain freehold property (or leasehold or other property, as the case may be,) therein described or referred to, for the sum of £ ; and that he has made or caused to be made to the said C. D. an application specifically to perform the said agreement on his part, but that he has not done so; the said A. B. therefore prays that the said agreement may be specifically performed, and for that purpose that all proper directions may be given; he, the said A. B., hereby offering to perform the said agreement specifically on his part. And the said A. B. avers that the present value of the said property does not, in his judgment and belief, exceed the sum of £50 ; and further, that the said defendant resides in the said county of A. 6. Claim for the specific performance of a parol agreement partly performed. In the County Court of the County of Equity side. A. B Plaintiff. and C. J) Defendant. A. B., of the township of in the said county of states that, on the day of , he the said A. B. being seised in fee simple in posses sion (or otherwise, as the case may be ; or CD. the defendant hereinafter mentioned, being or pre tending to Le seised in fee simple in possession, &c. as the case may be,) * of lot number the said * If either party fills a representative character, eay that the said died on the day of , and the eaid is his executor, or administrator or heir-at-law. i^l RULES. COUiNTY COURTS EQUITY EXTENSION RULES. 217 said county, Jay of , hereinafter of the said old property USD may be,) mof £ ; made to the perform the has not done hat the said , and for that )e given j he, Drm the said i the said A. said property :ceed the sum ndant resides e of a parol of uity side. .Plaintiff. Defendant. le said county )f , he e in posses or CD. jeing or pre )Ssession, &c. the said character, pay , and the Br heir-at-la^. A. B. and C. D. entered into a verbal agreement for the sale and purchase of the said premises, at or for the price or sura of £ payable by equal annual instalments, with interest, upon the payment whereof a proper conveyance was to be executed of the said premises, free from incumbrances (here state acts of part performance, as) that the said A. B. or the said C. D. was accordingly admitted, and entered into possession of the said lot, and has continued in possession thereof ever since, and is still in posses- sion thereof, and has made divers and considerable improvements thereon, and has paid the sum of £ part of the said purchase money : and the said A. B. submits that, under the circumstances aforesaid, the said agreement has been partly per- formed, so as to entitle him to a specific execution thereof, for which purpose he has made frequent applications to the said C« D., but without effect. The said A. B. therefore claims that the said contract may be specifically performed by the said G. I)., the said A. B. being willing and hereby offering to perform the same in all respects on his part, and that he may have such further and other relief, &c. And the said A. B. avers that the present value of the said property does not, in his judgment ar^d belief, exceed the sum of £50 ; and further, that the said defendant resides in the said county of A. 7. Claim by a person entitled to an equitable estate or interest, and claiming to use the name of his trustee in prosecuting an action for his sole benefit. In the County Court of the County of- Equity side. A. B., of the township of in the said county states that under an indenture dated the iii: 218 COUNTY cor UTS KQUITY KXTENSrON" RULES. day of , and made between (parties), ho is cntitlod to an equitable estate or interest in certain property therein de.scrib(!d or referred to ; and that C. 1)., the defendant liereinaftcr named, h a trustee for him of such property ; and that being desirous to prosecute an action at law against in respect of such property, he has made or caused to be made an appHcation to tVie said defendant to allow him to bring such action in liis name, and has offered to indemnify him against the costs of such action, but that the said defendant has refused or neglected to allow his name to be used for that purpose. The said A. B. therefore claims that he may bo allowed to prosecute the said action in the name of the said defenda(nt, he hereby offering to indemnify him against the costs of such action. And the said A. B. avers that the subject matter of the said artion does not exceed in value the sum of £50 ; and further, that the said defendant resides in the said county of SCHEDULE B. FORM OF ENDORSEMENT ON CLAIM. Your answer is to be filed at the office of the clerk of the County Court of the county of , at the city (or town) of , in the said county You are to answer v/llliin ten days from the sen'ice hereof If yoii fail to answer within tho time above limited, you are subject to have such decree or order made against you as the court rnay think just, upon the plaintiff^'s own shewing, and you will not be entitled to any further notice of the future proceedings in the cause. Note. — This claim is filed by Messrs. A. B. and C D. of the city (or town) of , (and where the party wlio filed the claim is agent, add, agents of Messrs. E. F. and Or. H., of .) I ;i I ^1 .. . .X • COUNTY COUUTS EQUITY EXTENSION IIULES. Where the plaintiff sues in person, hl.s place of rosidonce is to be stated; and where that is more than three miles froni the oflicc where the claim is filed, an address for service must be desionnted in accordance with the provisions of section 2, order 28. SCHEDULE C. FORM OF ANSWER. 219 In the County Court of the County of- Equity side. A. B • Plaintiff. and C. 1). and E. F Defendants. The answer of C. D., one of the above named defendants, to the claim of A. B., the above named plaintifl". In answer to the said claim, I, C. D., say as follows : — I believe thit the defendant E. F. does claim to have a charge upon the farm and premises com- prised in the indenture of mortgage of the day of , in the plaintiff's claim mentioned. Such charge was cioated by an indenture, dated, &c., made between myself of the one part, &c. To the best of my knowledge, remembrance and belief, there is not any other mortgage, charge or incumbrance affecting the aforesaid premises. Such statements as .ive consideroJ necessary or materia], are to be introduced with as much brevity as may consist witli clearness ; and where a defendant seeks relief under oivier 0, the answer is to ask the special leliof to which lio thinks himself entitled. ENDORSEMENT. This answer is filed by Messrs. A. B. and C. D., of the city (or town) of , (and where the party iwr ■( 220 COUNTY COURTS EQUITY EXTENSION RULES. , '\ who filed the answer is accent, add, agents of Messrs. E. F. and G. II. of ^ .) Where the party defends in person, the answer must be endorsed in conformity with section 2, order 28. nt FORM OF JURAT TO ANSWER. The defendant, C. D., on the day of , appeared before me, at my chambers in , and signed the foregoing answc in my presence, and thereupon was sworn before me that he had read the said answer and knew the contents thereof, and that the same was true of his own knowledge, except as to matter's which are therein stated to be on his in- formation and belief, and as to those matters he believed it to be true. IN THE CASE OF ILLITFRATE PERSONS. The defendant C. D., not being able to read or write, E. F., attorney (or clerk to the attorney) was sworn before me at my chambers in , on the day of , that he had truly and faith- fully read the contents of this answer to the said C. D., and that he appeared perfectly to understand the same; and the said C. 1). was thereupon sworn that he had heard the said answer subscribed by him with his mark read over to him by the said E. F., and that he knew the contents thereof, and that the same was true of his own knowledge, except as to matters which are therein stated ^o be on his information and belief, and as to those matters that he believed it to be true. )N RULES. « snts of Messrs. n, the answer Lth section 2, day of , n , and presence, and le had read the ereof, and that dge, except as ;o be on his in- ise matters he PERSONS. ble to read or attorney) was , on the iruly and faith- to the said C. understand the Don sworn that ed by him with lid E. ¥., and that the same t as to matters formation and believed it to COUNTY COURTS EQUITY EXTENSION RULES. SCHEDULE D. FORM OF AFFIDAVIT AS TO PRODUCTION OF DOCU- MENTS UNDER ORDER 12. 221 In the County Court of the County of- Equity side. A. B Plaintiff. and C. D Defendant. I, of follows : — , make oath and say as (1.) I say I have in my possession or power the documents relating to the matters in question in this suit, set forth in the first and second parts of the first schedule hereto annexed. (2.) I obj ct to produce the documents set forth in the second part of the said first schedule hereto. (3.) State upon what ground the objection is made, and verify the facts as far as may be. (4.) I have had, but have not now, in my pos- session or power the documents relating to the matters in question in this suit, set forth in the second schedule hereto annexed. (5.) The last mentioned documents were last in my possession or power, (state when). (G.) (^State lohat has become of the last mentioned documents, and in whose ^possession they now are). (7.) According to the best of my knowledge, re- membrance, information and belief, I have not now, and never have had in my own possession, custody or power, or in the possession, custody or power of my attorneys or agents, or in the possession, custody or power of any other person h m\ 222 COUNTY COURTS EQUITY EXTENSION RULES. on my behalf, any deed, account, book of account, voucher, receipt, letter, nieuiorandum, paper or "writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the first and second schedules hereto. Note 1. (If the party denies having any, he is to make an affidavit in form of the seventh paragraph, omitting the exception). Note 2, (This form of affidavit, though not obli- gatory, will he satisfactory). * SCHEDULE E. JURAT OF AFFIDAVIT. Sworn before me at , on the having been first read over to the deponent C. D., whom I informed that he was liable to cross-examination as to its contents, and that he was at liberty to add to or vary the same. SCHEDULE F. NOTICE TO BE ENDORSED ON AN OFFICE COPY OF A DECREE UNDER SEC. 15, ORDER 35. To Mr. , (the person upon whom service has been directed). (Set out the order.) If you wish to apply to discharge the foregoing order, or to add to or vary the decree, you must do so within fourteen days from the service hereof. (When the order fixes a time for the further pro- ceedings, add) and if you fail to attend at the time and place appointed, either in person or by your solicitor, such order will be made and proceedings taken in your absence as the judge may think just \. COUNTY COURTS EQUITY EXTENSION RULES* and expedient ; and you will be bound by the same, and the further proceedings in the cause in the fesauie manner, as if you had been originally made a party to the suit, without any further ordei'. SCHEDULE G. The court doth order that the following accounts and enquiries be taken and made, that is to say : 1st. An account of the personal estate not specifi- ''ally bequeathed of A. B., deceased, the testator in i. J pleadings mentioned, come to the hands of, &c. 2nd. An account of the said testator's debts. 3rd. An account of the said testator's funeral expenses. 4th. An account of the said testator's legacies. 5th. An enquiry, what parts, if any, of the said testator's personal estate are outstanding or undis- posed of. And it is ordered, that the said testator's personal estate, not specifically bequeathed, be applied in payment of his debts and funeral expenses, in a due course of administration, and then in payment of his legacie; . An ' "/ 's ordered, that the following further accounts ; d nquiries be taken and made, that is to say:— 6th. An enquiry what real estate the said testator was seised of or entitled to at the time of his death. 7th. An enquiry what incumbrances affect the said testator's real estate. 8th. An account of the rents and profits of the said testator's real estate received by, &,c. And it is ordered, that the said testator's real estate be sold. And it is ordered, that the further consideration of this case be adjourned, and any of the parties are to be at liberty to apply. 223 224 COUNTY COURTS EQUITY EXTENSION RULES. ■m SCHEDULE H. CONDITIONS OF SALE. 1st. No person shall advance less than £2 at any bidding under £100, nor less than £5 at any bidding over £100; and no person shall retract his bidding. 2nd. The highest bidder shall be the purchaser; and if any dispute arise as to the last or highest bid- der, the property shall be put up at a former bidding. 3rd. The parties to the suit, with the exception of the vendor, are to be at liberty to bid. 4th. The purchaser shall, at the time of sale, pay dovn a deposit in the proportion of £10 for every £100 of his purchase money to the vendor or his attorneys, and shall pay the remainder of his purchase money 6n the day of next ; and upon such payment, the purchaser shall be entitled to the conveyance, and to be let into possession : the purchaser, at the time of such sale, to sign an agreement for the completion of the purchase. 5th. The purchaser shall have the said conveyance prepared at his own expense, and tender the same for execution. 6th. If the purchaser shall fail to comply with the conditions aforesaid, or any of them, the deposit, and all other payments made thereon, shall be forfeited, and the premises may be resold, and the deficiency, if any, by such resale, together with all charges attending the same, or occasioned by the defaulter, shall be made good by the defaulter. SCHEDULE I. NOTICE OF MOTION FOR THE ADMINISTRATION OF THE ESTATE OF A DECEASED PERSON. In the County Court of the County of Equity side- In the matter of John Thomas, late of the township of , in the said county, deceased. ON RtLES. COUNTY COURTS KQUITY EXTENSION RULES. 225 Joseph Wilson against Thomas Cochrane. To Thomas Cochrane, executor of John Thomas, deceased. Take notice, that Joseph Wilson, of the township of , in the said county, merchant (or other proper description of the party), who claims to be a creditor upon the estate of the above named John Thomas will apply to the judge of the County Court of the County of ^in the city (or town) of , on the day of at the hour of for an order for the administration of the estate, real and personal, of the said John Thomas by the said court. Note. — 'If you, the above named Thomas Coch- rane, do not attend, either in person or by your attorney, nt the time and place above mentioned, such order will be made in your absence as the judge may think just and expedient. SCHEDULE K. UPPER CANADA. In the County Court of the County of Equity side. Victoria, hy the Grace of God, of the United King- dom of Great Britain and Ireland, Queen,' Defen- der of the Faith. To C. D., of the township of , his servants, workmen and agents, greeting : Whereas it has been represented to our judge of our County Court of the County of , on the part of A. B., of the township of , in the said county, that you are committing waste (or trespass, as the case may be,) in and upon certain property wherein the said A. B. is interested, as set forth in l2 n ! ii'li m \\4 226 COUNTY COURTS EQUITY EXTENSION RULES. his certain claim and affidavit filed in our said County Court on behalf of the said A. B. We, therefore, in consideration thereof, do strictly command you, the said C. D., and the persons before mentioned, and each and every of you, under the penalty of five thousand pounds, to be levied upon your lands, goods and chattels, to our use, that you do absolutely desist and refrain from cutting down, removing or destroy- ing any timber or other trees, growing or being upon lot No. , in the concession of the town- ship of , in the said county Witness, E. F., Esquire, judge of our said County Court, this day of 185 , and in the year of our reign. PlaihtiiF's attorney. This injunction will remain in force for one month from the date hereof, unless sooner dissolved on an application to the Court of Chancery at Toronto, but the injunction may be extended, and the suit further prosecuted to judgment or otherwise in the said Court of Chancery. SCHEDULE L. In Chancery. In the matter of the suit of A. B. V. CD. in the County Court of the County of A. I., A. B., of , the above named defendant, (or attorney or agent of the above named defendant) make oath and say, that (state shortly the grounds upon which the removal of the cause is sought), and farther, that the removal of the said cause is not sought for the purpose of delay, or of increasing the expense of prosecuting the said Suit, or &r any vesa* tlous or improper purpose "whatever; but hi^cftUM ia [ON RULES. COUNTY COURTS EQUITY EXTENSION RULES. my judgment and belief, such removal would be con- ducive to the ends of justice. Sworn, &c. SCHEDULE M. BOND TO BE GIVEN BY APPELLANT. Know all men by these presents, that we, A. B., of &c., C. D., of &c., and E. F., of &c., are jointly and severally held and firmly bound unto G. H., of &c., in the penal sum of £ of lawful money of Canada, for which payment to be well and truly made, we bind ourselves, and each of us by himself, our and each of our heirs, executors and administra- tors firmly, by these presents, sealed with our seals, this day of Whereas (the appellant) alleges and complains that he is aggrieved by a certain decree (or order) pro- nounced by the judge of the County Court of the County of , made on or about the day of last ; wherefore he desires to appeal there- from to the Court of Chancery. Now the condition of this obligation is such, that if the said (the appellant) shall efi'ectually prosecute his appeal, and pay such costs and damages as shall be awarded, in case the said decree (or order) shall be affirmed, then this obligation to be void, otherwise to remain in full force. 227 SCHEDULE N. FORM OF PETITION OF APPEAL. In Chancery- In the matter of the suit of A. B. V. CD. in the County Court of the County of 228 COUNTY COURTS EQUITY EXTENSION RULES. 11 To THE Honourable the Judges of the Court op Chancery. The humble petition of the above named (appel- lant), sheweth: That a decree (or order) was lately, and on o. about the day of last, pronounced by the judge of the County Court aforesaid in the above named cause, whereby he feels agurieved ; and he hereby appeals therefrom, and humbly prays that the same may be reversed or varied, or that such other order or decree may be made in the premises as may be just. And your petitioner will ever pray, &c. S OF THE 16 VICTORIA, CHAP. CXIX, THE COUNTY COURTS EQUITY KXTKNSION ACT. [Assented to 2f^rd May, 1853.] Whereas it is expedient to extend the jurisdiction uf the several County Courts in Upper Canada to certain matters cognizable in the Court of Chancery of Upper Canada : Be it therefore enacted, That the jurisdiction of the said County Courts respectively ^''■•*™''Je* shall extend to the several matters hereinafter enu- merated, and that the said County Courts respec- co^^^y tively shall possess the like power and authority in Courts to respect of the matters hereinafter enumerated as by .Turfsdktio/ law is now possessed by the Court of Chancery of 1^^^^^*° Upper Canada. II. It shall be lawful to and for any person seek- ing equitable relief, to enter (personally or by attor- J^^^'^^^^g ney) a claim against any person from whom such Kqw'ty Jur- relief is sought, with the clerk of the County Court oounty* ° of the county within which such last mentioned per-^"^'^^^^^' son resides, in any of the following cases, that is to say:— 1. A person entitled to an account of the dealings partnership and transactions of a partnership (the joint stock or accounts, capital not having been over two hundred pounds,) dissolved or expired, seeking such account. 2. A creditor upon the estate of any deceased per- ^^^^^^ ^^ ^^ son, such creditor seeking payment of his debt (not ceased per- exceeding fifty pounds) out of the deceased's assets, ^^^' (not exceeding two hundred pounds.) 3. A legatee under the will of any deceased per- son, such legatee seeking payment or delivery of his legacy (not exceeding fifty pounds in amount or ^" **'^* value) out of such deceased person's personal assets, (not exceeding two hundred pounds.) 4. A residuary legatee, or one of the residuary li 230 EQUITY EXTENSION ACT. Foroclosuro of mortgai; is. Rosidunry legatees of any such deceased person seeking an ***' account of the residue and payment or appropriation ot his share therein (the estate not exceeding two hundred pounds.) 5. An executor or administrator of any such de- ceased person seeking to have the personal estate Administra- /-jjot exceeding two hundred pounds) of such deceased tion of per- ^ ,.. , , \ ^^ > n ,^ • ^ Bonais. person, administered under the direction ot the judge of the County Court for the county within which such executor or administrator resides. 6. A legal or equitable mortgagee whose mortgage is created by some instrument in writing, or judg- ment creditor having duly registered his judgment, or perspn entitled to a lien for security for a debt, seekingToreclosure or sale or otherwise to enforce his security, where the sum claimed as due does not ex- ceed fifty pounds. 7. A person entitled to redeem any legal or equit- able mortgage or any charge or lien, seeking to redeem the same, where the sum actually remaining due does not exceed fifty pounds. 8. Any person seeking equitable relief for, upon or by reason of any act, matter or thing whatsoever, where the subject matter involved does not exceed the sum of fifty pounds. 9. Injunctions to restrain the committing of waste or trespass to property by unlawfully cutting, des- troying or removing trees or timber, may be granted by the judge of any County Court, which injunction shall only remain in force for a period of one month, unless sooner dissolved on an application to the Court of Chancery ; Provided always, that the power to grant such injunction shall not authorize the pro- Proviso, secuting of the suit in the County Court, but the injunction may be extended, and the suit further prosecuted to judgment or otherwise in the superior court, in the like manner as if the same had oiigi* uaied in that court. Bedemptlon of mortgages. Equitable r> lief generally Injunctions to restrain commission of waste. EQUITY EXTENSION ACT. 281 III. Such claim in the several cases enumerated Jj°™ °' above, may be similar in principle to the form set forth in Schedule A* to this net. IV. Upon entering such claim with the clerk of a County Court, the same shall be numbered and filed by such clerk according to the order in which it shall be entered, and thereupon a summons, briefly stating J'™,'',^g*fli'j^' the nature of the claim, and bearing the number of of claim, the claim on the margin thereof, shall be issued un- der the seal of the court, requiring the person against whom such claim is made, on some day in the next ensuing term of such County Court, or (upon special order of the judge of the County Court) on a day to bo therein named, to appear before the judge of the said court, to shew cause, if he can, why such relief as is claimed by the plaintiff should not be had, or why such order as shall be just with reference to the claim shall not be made. V. Such writ of summons may be in the form or to the effect in that behalf set forth in Schedule B*l^'^^^\ to this act, with such variations as circumstances may require, and shall be sealed with the seal of the court from which it issues, and that, when necessary, alias and pluries writs may be issued. VI. A copy of the said writ of summons, to which ^ ^^ ^^^^ shall be attached a certified copy of the plaintiff's and claim to claim so entered as aforesaid, shall be served on the ^ ^'^^®<*' defendant ten days at least before the day appointed in the said writ of summons for shewing cause. VII. At the time appointed for showing cause as „ . aforesaid, the defendant shall appear personally or by cia?m° ot°° attorney, and show cause, if he can, (and if necessary {Jf^tion^of™' by affidavit) why such relief as is claimed by the parties, &c. plaintiff should not be had against him; and each party may, on giving five clear days* notice in writing * Schedules A. & B. are omitted, in consequence of tii» provialoas of the orders rendetiog iium. uiapplwablo. ' 1 1 1 1 ^ 232 Ordur to ho made. Oral evi- dence to bo on oath. De&ults. County jud^e to be the sole judge. KQt'lTY EXTENSION ACT. prior to any hearing of liis intention so to do, exam- ine the other party upon tlic matters relating? to such claim; and the judge, on hearing the chiim, and what the plaintiff alleges in support thereof, and such other evidence, whether oral, or written, or by afli- davit, as he may produce in that behalf, and what may be alleged on the part of the defendant, and such evidence, whether oral, or written, or by affida- vit, as ho may produce in that behalf, or on produc- tion of an affidavit that the writ of summons and copy of claim aforesaid have been duly and personally served on such defendant, may, if he shall think fit, make an order granting or refusing the relief claimed, or directing any accounts or enquiries to be taken or made, (such accounts or enquiries to be taken or made before the judge, if he shall deem such course proper or expedient, or before the clerk of such court, at days or times to be appointed by the judge for that purpose,) or may direct such other proceedings to be had for the purpose of ascertaining the plaintiff's title to the relief claimed, or make such other order as, according to the nature and circumstances of the case, shall seem to be Just and proper; and further, the judge may direct such persons or classes of per- sons, as he may think necessary or fit, to be sum- moned or ordered to appear as parties to such claim, or on any proceedings with reference to any account or enquiries directed to be taken or made, or other- wise ; and all oral evidence given by any person be- fore such judge relating to such claim, shall be upon the oath of the person giving the same, to be admin- istered by or before said judge; and further, in de- fault of the appearance of either of the parties, the said judge may make such order as to the payment of costs by the party in default, as to him may seem meet. VIII. The said judge of the County Court shall be the sole judge in all actions brought in the said County Courts respectively under the jurisdiction EQUITY EXTENSION ACT. 233 given by this act, and shall determine in a summary manner all questions of law or equity, as well as of fact, arisinf^ therein, unless the said judge shall think uniPKuniury it proper to have any fiijt or I'acts controverted in *«npp"''t>for the action tried by a jury, or either party shall apply facts^ ns^it ti) have such facts tried by a jury; and upon order "'•y ^^ made, allowing a trial by jury, such trial shall take place at the then next ensuing sittings of such County Court, and be conducted in the same manner as other trials by jury in the said court are conducted; and the judge may, unless a new trial be moved for with-jj^^^^^ in ten days after verdict rendered, proceed to make such order and decree on the verdict of such jury as, according to the nature and circumstances of the case, shall seem just and proper. TX. The rules of decision in the said County Coiu'ts respectively, in respect to the matters afore- sion to be ns said, shall be the same as govern the said Court of'°^*^*°'^^'y- Chancery, (when not otherwise provided for by or under the authority of this act) so far as the same may be held to bo applicable to a court of summary jurisdiction. And the said County Courts rcspec- Certain pow- tively shall possess full power and authority to cn-J'|^^Q^^\^^j *° force and compel obedience to their orders, judgments and decrees, in respect to all and singular the matters hereinbefore and hereinafter set forth and contained; and all sheriflf's, gaolers, coroners, constables and other peace officers, shall be aiding, assisting and obeying the said County Courts respectively, in the exercise of their jurisdiction, when required by the County Court so to do. X. The judge of the said County Court may at any time, in furtherance of iustice, and on such terms , ^ „ 1 xi • 1 J 1 1 • n^ ^ J"dge may as he nmy think proper, amend such claim so nled as amend the aforesaid, and any and every proceeding relating nfj^a^"^"/^ thereto, by adding or sti-iking out the name of any Justice. party, or a mistake in any other respect, or by inserting other allegations material to the case, or by I '^ iif (11 «".ij!^jii v^ryff . ,if •» I j,u , ; m ifi ]jiu i v njupm.imn ■ How orders] may Ije en- forced. 234 EQUITY EXTENSION ACT. conforming such claim or proceeding to IIk f ,is proved, where the amendments shall not change sub- stantially the form of action; and may also, in any stage of the proceedings, disregard any error or defect which shall not affect the substantial rights of the adverse party, and may make any order for grant- ing time to the plaintiff or defendant to proceed in the prosecution or defence of his suit that to such judge may seem necessary for the ends of justice. XI. Every order hy the judge of the Cou .j Court, made upon the hearing of any such claim as aforesaid, or in respect to such claim and suit, or in respect to the matters hereinbefore or hereinafter mentioned, may be enforced in the same manner as any judgment or any order of a County Court is or may be enforced in the said County Court, under the existing provisions of law in relation to the said courts, so far as such provisions are applicable, or in such other manner as may be presf^ribed by rules to be made in the manner hereinafter mentioned. XII. The judge, before or upon anj'- hearing or trial, or upon taking any accounts or making any en- quiries, shall have the same powers and authority to order the parties to produce books, papers and writ- ings, as is posse sed by the Court of Chancery, and may cause advertisements for creditors and next of kin, or other unascertained persons, and the repre- sentatives of such as may be dead, to be published in the usual forms or otherwise, as the circumstances may require; and in such advertisements, appoint a time within which such persons are to come in and prove their claims, and within which time, unless they so coine in, they arc to bo excluded from the benefit of the order. , , XIII. No order, direction, verdict, decree or iud";- No order, &c , ,, ',.',' . *' '> to bi> (luash- ment, or other proceeding made concerning any or of fo?m!""^* ^'^® matters aforesaid, shall be reversed, quashed or vacated for want of form. .Tudgo to have tho same power na Coxirt of Chanp«ry to order pro- duction of books, adver tisements, &c. EQUITY EXTENSION ACT. 285 } same manner XIV. Every summons, (except the summons at S"""""""' the commencement of the action), order, notice, or served." other proceedings, shall be served ten days at least hetbrxj the day on which the same is returnable, or the iiction thereunder intended, except where otherwise directed by the said judge. XV. The costs in every action or proceeding brought or had under the authority of this act in the said County Courts respectively, shall be paid by or apportioned between the parties in such manner as the judge shall think fit, and in default of any special directions, the costs shall abide the event of the action or proceeding. XVI. All affidavits to be used in the said County ,„, ., . , , , „ .J Affidavits. Courts respectively, may be sworn before any judge or clerk of the said courts, or before any commis- sioner for taking affidavits in the superior courts at Toronto. XVII. Any claim as aforesaid entered in a County Court, under the provisions of this act, shall be re- fn*certain"^ movable by either party into the Court of Chancery, t«si's be re- by order of the said court, to be obtained on a sum- chancery. ** mary application by motion or petition supported by affidavit, of which reasonable notice shall be given to the opposite party, and the said order shall be made on such terms as to payment of costs, giving security in respect to the relief claimed and costs, or upon such other terms as to the said Court of Chancery shall seem reasonable, just and proper; but no claim shall be so removed as aforesaid, unless the said Court of Chancery shall be of opinion that the same is of such a nature as to render it proper that the same should bo withdrawn from the jurisdiction of the said County Court, and disposed of in the said Court of (.'hancery. XVni. I']ithov party may appeal to the said Court Appeal t;iven of Chancery against any order or decree made by the ^° Chancery, judge in any County Court, under the provisions of 236 EQUITY EXTENSION ACT. ^» It ■ i 41 111' 1 1 'M m\ '■ 11 III 1 ' I'Rlj] si • 1 11 III i- Proviso. Chancery may make regulations. this act ; and the said Court of Chancery shall make such order thereupon in respect to costs or otherwise, or for referring back the same matter to the judge before whom the same has been first heard, as shall be just and proper: Provided always, That before the County Court judge shall be called on to certify the said order or other matter appealed against to the said Court of Chancery, the party appealing shall enter into a recognizance, with sufficient bail to the satisfaction of the said judge, to pay the sum decreed, in case no relief shall be had on such appeal, or to obey the said order (or as the case may be); and when the party appealing appears by attorney, an affidavit shall be made by such attorney that the r, )peal is not intended for delay, as he believes, and that t^ere is in his opinion probable cause for revers- ing the order or decree against which the appeal is made ; and the said Court of Chancery shall specially make the necessary regulations for the practice to be observed in proceedings under this and the next pre- ceding section. XIX. And in order that procedure under this act frame*''? -° ^"^^ ^^ ^^^^-^ ^''^c^d out, and from time to time be erai rules improved, and rendered as simple, speedy and cheap fo"r**carryi'nK ^^ "^^^ be— Uc it enacted, That it shall be the duty tj^j^s act into of the judges of the said Court of Chancery, and they are hereby authorized and empowered to frame such general rules and orders, and all such forms, as .^ them shall seem expedient, for and concerning the practice and proceedings in the said County Courts in relation to the powers conferred on such courts by this act, and for the execution of the orders and pro- cess under this act, and in relation to any of the pro- visions thereof as to which there may arise doubts; and from time to time to alter and amend such rules, orders and forms, and also the forms and mode of procedure prescribed by this act; and such rules and orders and forms as shall be made and framed by the effect. And may amend the same. EQUITY EXTENSION ACT. 237 said judges, or any two of them, (of whom the Chan- Icellor of Upper Canada shall be one), shall, from and lafter a day to be named therein, be in force in every ^^gj^ gg^ ICounty Court in Upper Canada, and shall be of the Isame force and effect as if the same had been em- |bodied in this or some other act of parliament. XX. There shall be payable on every proceeding Ifor equitable relief, or other proceeding under this to feo^'fu^j, ® [act in the said County Courts respectively, the fees Iwhich are set down for such proceeding respectively lin the schedule to this act marked C, and the clerks lof the said County Courts respectively shall keep la separate account of such fees, and shall render Ian account to the Receiver General of fees in his Icounty, and shall pay over the amount of such fees Ito such Receiver General, under the same liabilities, ji^y^ ^^ ^^ Isecurities and conditions, and to be accounted for in "^;''J.°*'** llike manner as the present general fee fund of the Icounty, and that the several provisions of the act Ipassed in the eighth year of her Majesty's reign, and lintituled. An Act to amend, consolidate and reduces linto one Act the several laws noic in force, estahlish- liiir/ or regulating the j^ractice of District Courts in Ithe several Districts of that part of this Province for- |me>'(y Upper Canada, in relation to the receiving, accounting for and paying over fees, and in relation |tn the responsibilities and duties of county treasurer and clerks, shall apply to the fees under this act as ^ally as if the said provisions were herein contained and re-enacted. XXI, There shall bo payable to the clerk of every Jounty Court, and to the sheriff of every county res- ^*^®'' ^^^^' peetively, the fees which are set down for such pro- ceedings respectively in the schedule to this act annexed marked B, and the scale of costs to be paid Ito attorneys and counsel in the said County Courts, b between party and party, for proceedings under pis act, shall be according to schedule E to this act anuexe(J. for, &c. V. e. 13. WWf|i«l3»i,^*J«llW<^(|M'"pp/l|PWl!lf !'•'■'.•'! AI*iW»' 238 EQUITY EXTENSION AcT. Exception. This act in- corporated with other County Court acts. pMnm t^o- XXII. If any action or proceeding be commenced ceedinpc m in the Said Court of Chancery, after this act shall stead*^of un^ comc into forcc, for any cause or claim which might der this act. have bccn entered in a County Court under this act, no costs shall be taxed against the defendant in such action or proceeding, and the defendant, if he shall succeed in his action, shall be entitled of right to a decree against the plaintiff for his costs, as between attorney and client, unless the said Court of Chancery shall be of opinion that it was a fit cause or claim to be withdrawn from a County Court and entered in the said Court of Chancery. XXIII. This act, and the several acts of Parlia- ment now in force relating to County Courts, or affecting in any way their powers or practice, shall be read and construed as one act, as if the several provisions therein contained, not inconsistent with the provisions of this act, or inapplicable to an equit- able jurisdiction, were repeated and re-enacted in this act. XXIV. In construing this act and the schedules thereto, the following words shall have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be some- thing in the subject or context repugnant to such construction, viz. : — The words "person" or "party" shall be understood to mean a body politic or corpo- rate as well as an individual ; and every word import- ing the singular number shall, when necessary to give full effect to the enactments herein contained, be un- derstood to mean several persons or things, as well as one person or thing; and every word importing the masculine gender shall, when necessary, be un- dersood to mean a female as well as a male; and the word "affidavit" shall include affirmation, and the word " legacy " shall include an annuity and a specific as well as a pecuniary legacy; the word Logatae, ic. "legatee" shall include a person interested in a Interpreta- tion clause. Person. Singular number. Gender. AlHdaTit. Legacy. XT. g be commenced er this act shall im which might t under this act, efendant in such dant, if he shall ed of right to a costs, as between 3urt of Chancery iause or claim to and entered in KQUITY EXTENSION ACT. 239 legacy; and the words "residuary legatee" shall in- eludo a person interested in the residue 5 and the hvoid " County " shall include any two or more Coun- County. [tics united for judicial purposes. XXV. In citing this act in other acts of Parlia- short utie of ment, and in legal instruments, and other proceed- ^^^^^ *"*• ings, it shall be sufficient to use the expression, ' The County Courts Equity Extension Act." XXVI. This act shall commence and take eflfect cominence- i on the Thirty-first day of December next after thementofact. passing hereof. 1 acts of Parlia- unty Courts, or 3r practice, shall IS if the several nconsistent with ;able to an equit- id re-enacted in id the schedules liave the several over and above 3s there be some- mgnant to such on" or "party" politic or corpo- ry word import- leccssary to give outaincd, be un- things, as well word importing cessary, be un- ?,H a male; and affirmation, and an annuity and acy; the word interested in a SCHEDULE C. FEES TO BE RECEIVED BY THE CLERK, AND TO BELONG TO AND TO BE PAID OVER TO THE FEE FUND. £ .s. d. Kvery claim filed 13 Every writ of summon.s, or other writ under the seal of the coui't 13 Every order or application for order 1 3 j Every hearing 6 To be increased in the discretion of the judge to a sum not exceeding 10 [ Every oath administered in court 10 Every certificate iiuiler seal of coui't 13 Every sitting in taking an account, or other sit- tings 5 SCHEDULE D. FEES TO THE CLERK. Receivin.2 and filing claim 4 j Every writ of summons, or other writ 10 Filing every separate paper 3 Preparing order 10 And for every folio over three 4 Taking any affidavit other than oath in open court 10 tTery search 6 1 '^' ! ' j. i 1 iP 1 mil i !;i, 240 EQUITY EXTENSION ACT. 4 £ B- d. Recording every final order or decree 1 Other orders 6 Every certificate, not exceeding three folios 1 Every special writ, writ of execution, or otlier special document (per folio) 8 Taxing costs 1 Every attendance on reference 6 Every verdict taken 2 6 FEES TO THE SHERIFF. Every summons or order served, including return 2 6 Every jury sworn 2 6 Every execution or judgment order received 13 Return thereof, money made, or party arrested 13 Necessary mileage, actually travelled, per mile 4 And for other services, a sum to be fixed by order of , the judge, not exceeding the present allow- ance by statute for similar services. SCHEDULE E. ATTORNEY AND SOLICITOR. Instructions to sue or defend 2 6 Prawingclaim 2 6 Fee on every writ or order 13 Common affidavits 10 Common notice or appointment 1 Every n3cessary attendance 6 Special affidavits, and other special documents, per folio 8 Fee on common motions 13 Copy of every paper, when necessary, half the amount allowed for the original. Bill of costs 1 Postages actually paid. COUNSEL. Fee on special applications, arguments, hearings, &c 10 To be increased at the discretion cf the judge to 16 DIVISION COUilT ilULES. \rii!;iii;A::3 by "Tlic3 Uppci' Canada Division Courts I'j.iteu-iou Act of 185u," it was enacted, That it slwuld bo lii'vyful i'ov tlio (Jovoi'uov-Genoval ol:' tliis proYuico to appoint and aiitliovizc live of the judges of the (vOunty Courts, in Uppcv Canada, to fi-uiue ,=aeu general rules, tis to them should sceai expedient, tor aiul concerning the practice i;nd proceedings of 'the courts holden under the autliority of '' The Upper Canada Division Courts Act of 1850/' iind ibr the execution of the process of such courts, and iu relation to a.ny of the provisions of the said last iiicntioned act, or of " The Upper Canada Division Courts Extension Act of 185;]," or of any act to he tbcreafter passed, as to v.'hieh iliore niight hav<; ari,>?n doubts, or might liave been connicthig deci- sions in the said Division Courts, or as to which there might thereafter arise doubts^ and also to IVame forms for every proceeding, for which they should think it necessary that a Ibrm should be provided : !uk1 that all such rules, orders and forms as aforesaid should bo certified to the Chief Justice of Upper C;i!!:ida, under the hands of the County .Judges so appointed and authorised, or of any tluce of them; ;uid should bo, by the said Chief Jurtlce, submitted to tiio jiulgos of the Su.perior Courts of Common Law lit Toronto, or any four of tlieni; and iliat such Judges of the Superior Courts (of whinu the said Ohiof Ju.itice, or the Chief Justice of the Court of Coannou Pleas at Toronto should bo one) miglit i'.pliruvo '.'' ^^ Jill suitors' moneys paid into and out of court ; which bijoks shall be according to the forms given in the schedule to those rules appended, and kept, as nearly i'-s mav bo, in the manner shown in the firms. ^ >ipiji,iv^w^iw«imB^ 1^ 7 I r I , 44 DIVISION COURT ui'Lr.s. 5. 'i'lio voturns vcf;mvLu lo i;o :.;rK;o l.y '•](•• ss u..fl. . H.'i-xo. rr. (.f tlio JlOtli f^ectifm of tho " t^'pcr (.'aiuu.a ^avh-i»,ii hdivaulo. (.,„^j.^^ y^.^ ,^^' |sr,()/' ,.],all Le ueconlin.f:' to llio fuim ;.',ivcii ia the scliudulL', miJ hiliiill Ik.* luiiuc; iiiiU.L'diatelv i;fu;r tlic ilOili tiny oi' June, tiiul iM^t diiy of JJcctiu- bov, ill (;icji year, v.'itliout imy special uruev iVoiu tin; 0. The list of i!'.iclali)!cd nunicys rc([iili'()d by tlio 1'llh .section of tlio "Upper Cnnntla JJivisiun Couiis f:;;^;;-,^ '•"Extension Act of 185^," bliall be accoraiii;^ to tlio form ii^ivon in tlic sehcditle; r.nd ti cojiy thereof shall, in the month of January in eacli year, l)e transmit- ted by tho Clerk, topelhev with the moneys therein mentioiied, to the treasurer of the county. 7. Ti|c returns mentioned in the twelfth rule, diall be liled l)y the elerk in liis oirice, and f;ludl bo open, without fee, to the inspoL-tiou of any person intei'e;;tcd, desirous of scarchin;^ the same; and it shall be tho duty of the clerk to examine Kuch returns, and if found correct and complete, within ton Ci-ajh after the receijit thereoi', to endorse tliercon a r.ieinoranduai in '"^^j" •'j'"- P '^f the f,)i!owin;j; words: — "I liave carefn'ly cxar.iincd tho widiin return, and find tho ranie to bo full, true, and correct in every particiilar, to the best of \r,y knowledfi'o and Ijoliev. Dated the day of IS , a". J 5., clerk." And if such returns be flanul by the clerk to bo ineoi'rect or incomplete, he shnl! foitliwith notify the jiul;.';e of tho ^;nne, and of the particidars there(/f. 8. The (Jlevk sliail number cxcvy demand, cuiim, or account, in tho order i;i ^diich it is received by liiin : the luunbc.-iup; to shov/ the standing of the suit, in respect to the vrhelo number of fc'uits entered in tho court for the then current year. Th'. cle:;: 'Lriual. sii;'.!! rnncx to c^■ery suuniionji t Sr^o \'>. n nf (vrhethei' (ri-ieiual, jijis.s or plujicM) I.ho copy of ac jTui?'' \I' 'Is' *-'''"" '''''^' denjand or claim, entered with liim accordii to the frnvt cent Ii rtde; in-.d to each cc]^' of sumiuo! •ding lis yi^ DIVISION COL'ilT llULtld. 215 p^lnluo!l^ to b'J «ci'vc(1, !-]i:illbo lilnYi>;o ;'niie>:(.'(l a ccpj tlic baililF e.ir eAec\iti(/ii. BAILTFr'S l)UTinS. 11. Yi>nv Civ.ya Ijefore llie lioldln;;' iiiij coiii't, the baiiiironiuit court ;-ludl deliver to the clerk ii retuvu of e;;('li suiuiuoiis i;"sued or delivered to liiiu, retuni- ;il)Io at sueli eourl, ;;iul rm-h return f-hall j-tate tlio lunilo oi' service; and if a summons has not been ;-arvcd, the reason d'haich non-service shall be stated ]'■] wr'.Unp; on tlic bael: tliereof. 12. ]'iVery l)aiiiff, levying and receiving any money ''''PiuIoXo.t by viituo Oi' a.ny proce;..'^, sliiiil, ■uitliin tlivee uayH i,rti!V lilt! receipt tbereoi', pay over or iun;;-iidt tlie Siiiiio to the proper cfi'icer; and at every court, and at pucii otlior times as the judge shall recjuire, thcLailifF ;-lu;ll deliver to the clerk of the court a statement or rc[ui';i on oa.th, pursuant to the form in the schedule, of v,li; t shall have been done since his last return, <..,,,, yo.os of vukIcv every warrant, ]irecept and writ of execution, •'-•'iHauio. v.liich he shall have been rcouired to execute. V], The bailifi', or other ofdeci', executing any war- rnnt of commitment, shall, at the time of delivering tlic party arre.'-tt;d with the v/arnuit to the jailer, in- dulge the number of miles, shovrin;.',' the amount of niiloago, and also state, in writing, the a.etual (hy of tlic arrest. DEScrdPTiox OF rARTii:;?. II. I'lvcry account, demand or claim, should shov/ llie names in full, and the p)rsci'-t or last known places I'f ali(ide of the p.'.rtics. and nai'.it I'C written in a leuible ■4 • wi <*v^mmmmn^f^Kfi^ ^ )i 240 ])1 VISION COUllT UUl.KS. ■1 i 1 •It it ■i j '1 il i m^ M ; in:uitjcr, !unl dulivoroil to tlu; dork, iit liisollico; pre. vidfil th;it if the pliiiiitilF is uiiiicijiuiinlcd with the (liilond;! Ill's christian iiiniio, tiio (Ict'ciidaiit imiy hu dcscriht'd by liis sunuuiic, or by liis suiiiaiuo and the initial (d' liis christian nanio, or by snch nanu; as lie Si'oNo (lof [^ iH'rallv known by: and tho ilcfrndant may be so dt'scnbiid nt tlie sununons, and the same may ht; taken to be as valid, as if the true christian nani(! and surname had been stated in the summons; and all subse(|uent ])roccedinj:;s there(>n may be tajven in mpii'trmm- (^<»'dbrmity with sutdi descriptidii ; or, wlien the mynciiiu' defendfliit's true name is discovered, tlic ]!rocee(liii;.s 3;j\"^'""' '"may be annMided aceordinp;ly, on such terms as the judge may tliink lit and direct. PARTICULARS OF CLAI3I. 15. The account, demand or claim shall, in every case admittinji; thereof, show the particulars in detail; and, in other cases, shall contain a statement of the particulars of the demand or claim, or the facts con- SeoXos.3& stitutiii"; the cause of action, in ordinary and concise 4ofscbcaulo. , " , . ' „ "^ , • 1 . lanjfuage, and the sum ov ^ums or money claimed in respect thereto : (tlic fornta In the sclicduh are (/icni h}j wai/ of t'nmfr((tio7i,) Provided always, that, in all cases, the judge, in his discretion, and on such toruis as he may think fit, may adjourn the hearinp; of the cause, for a statement of particulars, or further par- ticulars. 16. In all actions in Division Courts against offi- cers and their sureties (under the 22nd section of the " Upper Canada Division Courts Act of IS 50,") ^^K^Ilif *^^ on the officer's scruritii covcnanf, the particulars of schedule. i i, i i. i ,. the demand or claim shall bo according to the lorin in the schedule. The summons and subsecjuent pro- ceedings to bo the same as in ordinary cases. PARTICULARS OF JUDG3IEXT SUMMONS. 17. Where a party, having an unsatisfied jutlg- DIVISION COUUT lli;iiK:J. •J 17 is n gainst offl- ine! section of I, lent, iloslros to ]»ruc(!0(l undrr the Ol^tsoction nfdio <• rpp^v (lauiiUii Divisioti (!ouvts Act tii' 1S.")()," l^o shall oiituv with tlu! cleric ii minuto i writings Mcconl-^ hvs t't tho [oi'iii in tl)ii si-1i(.m!u1(>, ri* t ■ Uio like etfcft, si.i„.",iii"i'.'. \vUith shall bo nuniboictl in tho ui'ih'i' in which it -iiall ho rtjccivcj; hikI, if ho prcx-cctls in :i i>lvi.'-inM Couvt, otluM- tlian tho ouo in wliich tho jiul^^iucnt wa.i oiitvroJ, ho .shall, with tlui minute, deliver t.» tho flerlc ii cortiiiod copy of tlio jud^morit; and (hereupon II ^amnions, bearing' tho number of tho miniito, shall issue, which suininons shall bo aocordin"' to tho form f>.'' No. n.j d III tho solieaiilo, or to tho luco oJioct. S[L>LMOXS. I'v Tho ordinary Hunimons on dcmfvnd, account or claiia, sh;ill bo issued according to tlic form to those s,.,j ^o. n of rules appended, in lion of tho form p;ivcn in tlie scho- '"''> •'"'"• (lull! to the *' I'ppcr (Canada Division Courts Act of ls")0 ; " and the issuing thereof shall be the coni- moiicoaiont of the suit: and every summons shall bo nunihei'od b> corrcsnoiid with the doinand or claim, Oil which it is.uo-!, :;nd dated as of tho day on v»hii;h the same wn-i entered for suit, except in the case oi' a//Vfs' or jylnri''.-! summons, which shall be dated on the day on which it actually is^uos. 10. Whore tho plaintiff sues nvAev th> 00th sec- tion of tho " Upper Canada Division Courts Act of 1850," tho proceeding shall be the same as in ordi- nary cases; but, in addition' to the usual nf)tice on the originnl ■ nmeions to appear, there shall be added the following; — ''The dol'endant is informed and cautioned, that A. ]3. (the beneficial plaintiff) only has power to discharge Uiis suit, the subject matter . of thi,-; suit liaving been seized under execution." 20. Leave to issue a summons under tho Oth r-oc- tiou of the '' Upper Canada Division Courts J'^xtcnsion Act of 1853 " may be granted at any time by tho, ^, , ..-, juugc, on production oi an alnduvit ni tho form or tOoiM-hoduU "^'^' 1 m mMi, Irill 2!S DlViHION C'dl'llT ];"UL1S. tlio c'iccfc (>f llic; fiiviiis y-van in tllc r-clu'diile, ov tipon oTilli ti) tl\c t;;ii;;0 effect, ;)t :i)iy .slttiiiji;s of llio coiiit iu ^vlli(•ll tlic notion is to bo l)n;ii<;lit; juid v.'Leiv a f^un- luoiirf i,-;.'ues l»y leave of tlie jucl'','C, no v/viitcn uv(\y for siicli k'tiYo sli;ill 1)0 ncce;:S:!vy, bvit it ^;lulll le suflicient to insert in tlio luinuioiiu ''i,-Ly leave of tlie juclg'o." SiOr.MCE or SUMMONS. L'l. Wiiorc f5rininion!-!, or other proce:.', is rc(iuiveil to h'i Horvoil oTit of llio division of the court from "wliich the fciiuio i,'-;nic,'^ tlic papers nniy be tri'.nsiin'tlcd by ui;nl by the elerk is^uii;;;' the i-;!n;e, ((>n reeeivin;.'; the iiecessiiry postiu^^u and fees) to tl^.o elerk of ilsc division, v.'hero the sr.nio is re.-juired to be Kprvod; v.iA iucli hist niouiioned clerk fch:dl furtliAvith deliver riieh suunnons, or (ither proeess, to the bidiiii of hin division to- be e"ceutrd; and sneli biiiliif shall .'ervc the sp.nie, r.nd jbrtlnvidi liud'O return thereof to tho clerk of his ctar.t. in tho manner ret^uircd by tlio eleventh rule, ;i^>.d such last ineiviioricd clerk, on return niaale, shidl fovthv/iih tra.ns.niifc the papers, by mail, -with tlie nece.-s:ivy iiilldavils of service, if effect- ed, 10 the first mentioned clerk. 2:.*. J']very suniraons on account, deuiand or cl;;i]!i, must be served ten days before tlie holding of tlio court, at "which it is returnable, (ueitlier the day cf service, n(>r lhe day of holding the court, to be couid- ed,) c;^;ee])t vlien otherwise directed by the Upper (■anada JJivisiou Courts Acts; and v*'hcre aiiy sum- mons has not been served, iiiother sunmions, or successive summonses may bo issued. ,54& 2o. The .summons under the 91st section of tho '"" " Upper Canada Uivision Courts Act of jc^SO " may 1)0 served by deliveriii';' to tlie defendant a copy thoreo!'. and siuAving- the ovi':;inal, iC re(|U!rcd: au'.l shall ]k: served ton days at loDst before tlie day ui) v.liAh (he iiarfy is reiiuiredi to appi-ar : piinvidt'd dulo. Jjj VISION couiiT iu;li:,s. 240 f:iiiuiiioii,s, or ;'I\v-;i\s, ll';',i (lio service of such .smuuions, at any ti:;io uii'ore the day r.p})uiiiloJ for the a[)j)carauce of >utli p:iity, may ho dceiucd by the judj:e to ho a j;ood sfivico, if it shall he proved to his satisfaction, that Mich pa.rty was about to remove out of the jurisdie- !ii)ii (if tlie court. ATTACHMENT. l;4. Tile fovia of affidavit for an attachment shall Sc. no. -j;: of lie accordin.i;' to tlie form in the schedule, in lieu ofs^JK^Juk'. iho form iriveu in tho " I'^ppor Calladal>i^■jsiou (Courts Act of lNr){)," schedule i). 2;"). In all cases -where an attachment shall issue, j,-,,,. p„.„^„(. ( whcLlier the suit bo commenced by attachment in attuiiiiin'iii, the lirst iiistancc or not,) and the summons ajiainst \i., vh.%, the (lofendant sliall not be persoually served, the hear-'*''^^''^"^" ^• iiiu' (ir trial shall not talc'.' place until a month after the soi;;urc under the attachment. INSPECTION OF DOCL'MRNTS. 20. AVhcn in any actio?*; the defendant is desirous of inspecting any deed, bond or other instrument luulcr seal, or any written contract, or other instru- ment in which he lias an interest, .and which shall be in the possession, power ov control of the plaintiff, he may, within lour days from the day of the service of the summons, ^rive notice, by pre-paid post letter, or othcnvis(!, that he desires to inspect such instrument, at any place to be appointed by the pLiintilF, within the division in which the suit is lirought; and the plaiiitiff shtill a]»point aphiee ac( '.luingly ; and if the ]>!.iiiitlll' ;diall uc-iilect or refuse to a[)poiiit such phice, til' to allow the defendant or his agent to insp>.'et it within three days from the day of receiving such notice, the jnd'.ff Tiay, in his dis(-retion, on the day 'it'h'';;,ii.ii, ;,(ij. i\i I, the ctiuse, for the purjiose of such iii-jiv;,;ii(.n, and inahe such order as to costs, as he shall tliink lit. 'it n 1 H m 1 tm m Ip i! m 1 1 i 1 itiHi i« Pco 1:5 & 1 1 Vic. eh. 63, see, 48. 'J50 DIVISION COURT ilULES. WITHDRAWAL BY PLAINTIFF. -27. It' the plaintiff be des^irous of not proceeding in the cause, he shidl serve a notice thereof on the defendant, in the manner directed in the " Upper Canada Divif>ion Courts Act of 1850," for the service of a notice of set-off; and after receipt of such notice, the defendant shall not be entitled to any further costs than those incurred up to the receipt of sucli notice, unless the judge shall otherwise order: and where a cause is not withdrawn until after the opon- inji; of the court, the hearing fee shall be cluugcd, unless otherwise ordered. ADJOURNMENT OF SUIT. 28. Where a cause is adjourned, no order of ad- journment shall bo served on either party, except by direction of the judge; and where the adjournment is opposed by either party, a hearing fee, as for a defended cause, shall be charged, and the usual costs of the day, in the discretion of the judge. NOTICE OF DEFENCE. 29. W^hero the defendant is desirous to avail him- self of the law of set-off, the statute of limitations, or any other defence requiring notice to the plaintiff, under the 4ord section of the "Upper Canada Divi- p^ X'^s. s & sion Courts Act of 1850," the forms of notice in the sc 10 u c. gg|j(3(jyiQ jj^r^y ]j(. usod, to bc seiTed in the manner directed by the act. 30. W^ith a view to save unnecessary expense in proof, the defendant (or plaintiff) shall be at liberty to give the opposite party a notice in writing, that ho will admit, on the trial of the cause, any part of the claim or set-off, or any facts wo.ieh would otherwise recjuirc proof; and after such notice given, the plaiu- tift" or defendant shall not be allowed any expense incurred for (he purpose of such proof: the notice to W VISION COURT RULES. 251 yj\j - - - ■ - like cllbct, and served on the plaintiff or defendant, or left at his usual place of abode, at least six days buf'orc tlio trial or liearing. CONFESSION. [!l. Every confession or acknowledgment of debt, taken before suit commenced, must show tliercin, or by statement thereto attached at the time of the taking; thereof, the particulars of the claim or demand for which it is given, with the same fulness and cer- tainty as would be required, if such claim or demand were sued on in the ordinary manner; and unless application for judgment on such confeE.:.iou or ac- knowledgement shall bo made to the judge, within three calendar months next after the same is taken, or at the sittings of the court next after the expira- tion of such period, no execution shall be issued on the judgment rendered, without an affidavit by the plaintifi" or his agent, that the sum confessed, or some and what part thereof remains justly due; and appli- cations for judgment shall be made at a court holden for the division, wherein the ( tnfession or acknow- ledgment was taken. PAYMENT INTO COURT. 32. When the plaintiff sh: M, in accordance with the 4Gtli section of the " U} cr Canada Division Courts Act of 1850," signify to ^lie clerk his inten- tion to proceed for the remainder of his demand, and such signification shall be given within three days after ho received notice of the payment into court, but after the rising of the court at which the summons was returnable, the case shall be tried at tlic then next sittings of the court, and bo put upon the list for that court in the reu'ular order. •JO. AMENDMENT. Where a person, other than the defendant, X .,1 II i \ I.'.. i t!) I i u . :P 252 ])ivisioN couiiT ia'i,E,s. appears at the lieurliiii', i'.inl ailinits that he is tlio person wlioiu the plaintiff intondcd to chav<:e, his name may be substituted fur that of the delendnnt, if the plaintiff consents, and thereupon the cause shall proceed, as if such person had been originally rianiod on the summons ; and, if necessary, the hearing may be adjourned on such tern;s as the judfie shall think lit ; and the costs of the person originally uaiucd ;is defendant, shall be in the discretion of the judge. 3-1:. Where a party sues, or is sued, in a roprcson- tativo character, but at the hearing-, it appears, that he ought to have sued or been sued in his own right, the judge may, at the instance of chher party, and on such terms as he shall think fit, amend the proceed-rgs accordingly; and the case shall then proceed in all respects, as to set-off and other matters, as if the proper description of the party had been given in the summons. 35. Where a party sues, or is sued in his own right, and it appears at the hearing, that he should have sued, in a representative character, the judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly; and the case shall then proceed in all respects, as to set-oft" and other matters, as if the proper description of the party had been given in the summons. 36. Where the name, or description of VLphiintiff in the summons, is insufficient or incorrect, it may at the hearing be amended, at the instance of cither party, by order of the judge, on such, terms as he shall think fit : and the cause may then proceed, as to set-oft" and other matters, as if the name and descrip- tion had been originally such as it appears, after the amendment has been made. 37. Where the name, or description of a defendant in the summons, is insufficient or incorrect, and the defendant appears and objects to the description, it Jm VISION COURT RULES. 253 in:iy bo aiuondoJ ;:t the inst;;Mrc \ hold void, any of the i)roceedings, on -J I v'm TiaiJ iJiviyioN CUUI5T iiuli:h. 255 ;,ei'(.uiit (;f r.iiy invaularity or defect tlicieiii, wliicli (■luiii not, ill liis opinion, bo such r.s to intcrl'cio Avitli ilie ju.st trial and adjudication of tlio case upou tho liiorits. AFFIDAVITS. ■10. ]']very affidavit, in any proceeding in the court, must be entitled in the cause, (if a cause has been iijiaiuonced) stating the christian and surname of the parties as in the summons, and also that of the depo- iicut, and his place of abode and addition ; and if an niliriavit bo sworn by an illiterate person, the jurat must contain a certificate of the clerk or commissioner itdniinistcring the oath, that the affidavit was read in liis presence to the party making the same, and that racli party seemed perfectly to understand it ; and there shall be no erasure nor interlineation in any jurat : but the judge shall not be bound to reject, as insufficient, any affidavit not complying with the above requisites, or any of them, but may, in his discretion, receive the same. POSTAGE. 47. Postage necessary for the transmission of any process, order, notice, or other matter, by the clerk or judge, shall be paid in the first instance, by the party on whose behalf the proceeding is required, and bhali be costs in the cause. WITNESS FEES. 48. On application made to him in that behalf, the gee No. 14 of jndc'c shall determine, what number of witnesses *'<^'''°^'^'''- shall be allowed on taxation of costs ; the allowance for whose attendance shall be according to the scale in the schedule, unless otherwise ordered; but in no case to exceed such scale, except the witness attends under mipcnut from the superior courts; and, before allowing disbursements to witnesses, the clerk shall 2rA> DIVISION COUllT IIULES. ■li yi ' V I ])c; Miti.-iiicd Ui:it the witncs:i(js atteudctl, isiid that the fhiiiii iur Ices is jiisi. AUATEIMKNT. 40, Whore one or more of scverfil philntins or do- i'eiidaiit.s ..hall die before judgment, tlie suit shall uut abate, if the cause of action fJurviAc to, or against i^uch parties. 50. Where one or more of several plaintiifs or de- fendants sliall die alter judgment, proceedings theroiin may be taken by the survivors or survivor, without leave of court. JUDGMENT. i Si>oNo,s. ](!, 51 Every iudgnient, order, and decree of the ;!:i!;i^ J!:,,';!()' eoui't, shall be entered by the cleilc in the procedure J|"j' ^'^ ^'^- iJJ' book, according to the forms given in the schedule, f'l;', (11 iin.i oi or to the like effect; and when any order is made for ot Mchcduij. ^1^^ payment of any debt, damages, costs, or other sum of money, the same shall be paj-able at the ofiico of the clerk of the court forthwith, or at such periods as the court shall order. NEW TRIAL. 52. Application for new trial may bo made viva voce, and determined on the day of hearing, if both HchJduio. ° parties be present ; but if made when both parties are not present, it shall be in writing, and show briefly the grounds on which it is made, (which grounds, if matters of fact requiring proof, shall be supported by affidavit,) and a copy thereof, and of every sucli affidavit, shall be served by the party making the application, on the opposite party or his agent, or left at his usual place of abode or business, if within the division, — or if without the division, then with the clerk, who shall transmit the same forthAvith to the opposite party ; and the application and affidavits (if any) together with an affidavit of DIVISION COURT ULu(;.S. 257 ;tl, and that the the pcrvico thovcof, i^hjill be (.Iclivciod to the clfvlc, ^vilhiu ilui'tecn days vA'iQV the day (/!' iilal, to lo by hii;i, oil rccclvii^;;' the ices ai;d iiccci.-.«i!i'y pof-lMgo, {;;i:;!;v.iittcd to thu judp'o, v.illi a C(;;j)y of tlio ori<::iiial claiiu, at:d olliei' papers necessary to tlio piojuv n!;(.h;v3l:;iuliiig' of tlio cri^'O, -which di.Tivevy t(j the (]'.■■{]: fliail upovatc !'S a .str.y of proccodinjis, until the iu(:!.":;'y f nal decision on tlio application is coiiimniii- t:;tLa to the clevk ; and the judge ai'tcr icceivinjj,' tjueh v;;rev3 diall delay iov ^-ix days deoidint;,' upon the application, to enable the opposite pi^ity lo an^v-'er tlie same in writin;^' or by allidavit, if facts stated by {'. I'ppllcant in Ills allidavit are disjmted; and the decision or judg'n;cnt of the judge i^liali be tianhUiitted to t;!0 clerk by .inail, Avho thall, if a ucav tii;d bo or- ilcvod, notify the parties thereof by mail or (jthenvij^o, ;ai(l the suit shall be tried at the next titlings of the court, unle;>s the judge shall otlicrwise order; and if ;iio ;;}!plie;ition be refused, or if the party applying ::!ui!i lail to ceuiply v.ith the terms imposed by the ju(.];rc, the proceedings in the suit shall bo contir,ucd ;;s if no su';h applieati()n had boon made ; provided i.hvt'.ys, tlit'.t the iudiio, in!;*-cad o1' deeidiiu'' uron liie ;;ppl;c;!iion al'ter the end of tlie six days ribve--.: id, ninj', in his disereticai, decide to hear the I'lU'tics on the matter of such application, {'.tthe next ■'•ittia'.s (if tliG court, or at such other time and place iis lie iiiay appoint, ■\vhicli decision shall bi^ sent to tlic clerk, and be by him communicated to the pa) ties !.i lil:o manner as af<)resaid. IXTElirLEADElt. J'-k Vriicn any claim shall be made to, or in respect 'f) '''•}' goods or chattels, property, or security, tv.kcn ill execution, or attached under the process of any i''iv^ion t'oiirts or the proceeds or value therofif, |)y ■ '.;y landlord for rent, or by any person, not ])eing ''io party against Avliom such process has issm.'d and 1 258 DIVISIDN C(»U11T HyU'.b*. 'J',t,:; ) IS. L'S. ■Julo. sii;ir.nf)nsos liavo l)(;i-'!i issued on tho Jiiipli^ i'um ol tlic! otlicor, chavj^ed with tlio cxccxitiun of such pvoocHs, such MiiuiiKMisos sludl 1)0 served in 8ueh tiiin; iuid mnniier, its by llio *' Upper C-innda ])ivi,si(,!i ('ourts Aeti ui' l^.")l) " is dhvcted i'w service cf an ()ri;j:in:d sumiuoiis to a]>pr.ir; ;iirl tho claiiuuut sli;ill be (hrjiued the plaiatili', .iiul the exc.jution (a-cditir the defoiKlMit: and tlv*. clirnii'iiii shall, live eh:ar d;iv> before tho day on which the snin'nims(\-i are retm'iia- ble, leave at the ollice of the clerk of the court, ;i pu'ticular of any u;jijd^ or chattels, property or soou- rifcy, a!le:;'ed to be the property of the elai.nant, and the <;'rouiuls of his clam, set tbrth in ordinary aiiJ ooneise laii,:^.iii^j; or, in - j of a claiin Ibr rent, thu am )unt tiiereof, for what oeriod, in respect to what premi-^es the Ha:nj is idaimed to bo due, and tlie terms of holding. And any money paid into court shail bo retained by tho clerk, until the claim shall be adju'licatod upon; provided that, by consent, an iiiter(»leider idaim may be tried; although tlw; a.bovo rule may not have been complied with: and the suiu- lui'nses, the partictdars, and the ory him out ui the amount levied, unless the judge shall otherwise order. AVARllANT OF COMMITMEXT. 5:). "Warrants for connnitmcnt, whenever issued, '?7'\,^^,'^';52' of shall bear date on tin- day on -which the onJrr flir sohodiiie. coiumitment was entered in the procedure book, a;' shall continue in force for three calendar uioiith-* from such date, and no lunger j but no order foi' comiuitiuent .shall be drawn up or served. DIVISION (JdLllT IIL'LF.S. L'5'J of I'UOCEEDINOS ACAINST EXKCITOJIS AND AD.MINlSTilATOIlS. ,')(). A party suiiii;' an oxccutov or iulniiiiislnilor, «,,,, ,^^^ ^., iiiuY cli.'iv|^'«) ia iht! hiiiiiiiKiji.s, iji tlie I'urm in tliomi'i ..i.r" scIumIiiUn that tlio dolbii(,laiit li;is assct,^, uiid lias'''^'"^"'"' ffastod tlii'iu. ;')7, Til all cases, iC llio cmrt sliall ha of oijinion lliiit the (lelbiidaiit lias wa8t(;d the ai^sets, the judu'- mont ^^hall be, that tlie debt or damages and costs ^h\\\ be le\led (fr hoitia (fskitoris «/ d'v., rf.Kt Will, (•(-r'i?,)'iiit ; :ni(l tho pliiiutlfr .sluill pny tho cleilii (liuii't) costs (.i'])i'()viii<;' Ihe iuliiiiiii^trrtii..u oi' nf^.scts. (* 1. ^Vllcl■c tho dci'uiulii'.it iKlmlt.-i lii:< rcprosciitiitive cluiijutcv, but denies tlic UcDituul, iwA jilloj;;t:.s ii tutiil or pai'tiiil ;vliiiinisLV:itiou (;[' {'.:v'(.ts, v.ud tlio plaiiUift' ]M'0\' .shown to liavo cunic to the hands of tlu; doi'endant, or such aiiujunt iis is thown In have coiue to them, and costs, : I'Oji's pi-oi>rii.^: and as to tho vcsiduo ol the demand, li any, jud;.',uicnt oi !i:;sct«, ij^iiand'j (icct'dcn'iit. V)'2i AV'hcre thn defendant admits his rcprosontative character, and the plaintiiT's demand, but allejijcs a total or pavtiid admiiiistv.".t;<)n of tho ai-sct.'^, and proves the adiiilnistviiti(;n alleged, the judpiiicnt sluill lo for .«t;oN(>.;;o of;i.^;^(.,[,s ijiidndo (iccii^crinf, and ilie i.lahitiiV f-^hall ];av tho dolendant s cof.ts ol provmg the admin iKtratiou ( assets. G'5, AVliere a defendant admits his repre.seniativo character, and the plainlilV's demand, but allejivs a total or partial administration of the tisset.s, but does not prove tho administri'dion allejxed, the judgiucut .shall bo, to levy tlic amount of the demand, if fO much assets is sliov.u to have come to the defciulaiit'.'- bands, or so nmcli a;i is sluAvn to Imvo cor.ic to tlicm, and costs, de loitt'y, (cfffalon'y. ai cCr., it, si iicii, H.v Xo.40 of j;,^ to the costs, - 1'!^^ \ ll; >.^ DIVISION COURT JlULl^S. 2GI liuhi:t:triitiou ol' cu r.fj'ninst nn ■:cr'"t'ir ov n(linIiiI:.tr;itor since tlio jucl;j;iuciif, (ho i,'li: ;/.:•■•/ i\' lll.'it till! ucot. (.uui.i.iii^.-) J.hd Ju.lJ ::u Il'v'uhI i/c Ijoiu'h fai(((f"riH «/ i\ir., ct, ai uoii, as to thcg,,. ^o. 44of I'/.t', (f'i lioiiiii prnj^it'Hn; pvovieicil, that it .shall hu •"•i»<-''iuii'- cuiiipctoiit I'ui' tlio ptivty i'Pl'ljiii;? to cluivu;o iii iho sir.iuiinns that tlio executor ov tidniiuistnitor has wasted the jiHScls of tlio testator or intestate, in tho Miuo manner as in rule (t^) and the provi.sions of •i'u!o 57 hhall apply to such cufjuiry: and tho court iiuiy, if it appears that tho party chiiry,od has wasted tho tissots, direct a levy to bo made, as to tho debt iiiid costs, dc honhf tcsfdloriH ai iic, d, «,* von, dc (Jo, Where a defendant :idiuits his repvesenlativo [ ekimet'.M', and the pUiintiiV's denr.ind, and that ho is cliai;^'eable with any sum in respect of assets, lio shtdl [piy .such sum into court, subject to the rules relutiiif;- 111) })'iy:uout into court in other cases. (jlj. Ju actions np:ain:-jt executors and adnunisira- Ituis, lor whicli provision is not lieieiubcfure specially luailo, if tho defendant fails as to any of his defonces, the jiulguient shall bo for tho plalntiif, as to his costs liifi.iisproviug .sueli dei'euco, and such costs shall bo levied dc hoals icaiatoi'in ai cl'c, ct, io ^of. 45. __ OS, 'j'!;o nioi.lo ei' ro\ivinf;' a jiidj;-ii'.oiit:, under ^ho ;^j'|j* J| ^|j; ^^ "•v;d soclion of (ho "U[!pcr Canada JTivision OnurtSfcii'duie. WM •s J lli :?02 DJVisjoM (j()i;iiT r::i::;s. I ^W Mi. :|! Si'f \os. -S find 2t' of Pclll'Jl If. Act (if 1850," hIuiU be by suimuons on tho jucl<:;inciit, in tho ii:iturc of n sci. fa., the proccctling.s on wliicii .'■iliall bti tho ^^alnc -m in (jvdiiiary cases. GENERAL IIULE. (31). AVliei'c tho excess is abaiuloncd, it must bo (lone, ill the iiist instance, ou the claiiU or set-off. Claims by husbands in their owii ri«IV!HWI ""Wr lJlVlSi(.>N COfllT BULKS. INTEKPRETATION. 70. Til coustruinsii; llio.-o rules aii'.l fornip, the word ••poi'Koa" or "party" shall bo Tuulorf^tood to ii!(;an a budv |Kjlitic or corporate, as well as an individual ; tdul tlie \vt)rd "executor" or "executrix" or both (when used) .shall be held to embrace and uieau " ';T the last will and testament," and extend to parties actiiii;' as such ol" their own v/vong; and the Avord '•iuliiiiiiistrator " or "administratrix," or both (when used) shall bo held to embrace and express " of the uuoils and chattels, rights and credits, which were, IVc," ; and every word importing; the singular number sluill, where necessary to give lull effect to the rules :m(l Ibruis herein, bo understood to mean several per- •ims ur things, as well as one person or thing; and every word importing the masculine gender shall, wliei'o necessary, be understood to mean a female, as veil as a male; and the words "on oath" shall be iiiulorstood to mean viva voce, or by affidavit, or aliiniUition; and the Avords "judge" and "clerk," respectively (when used) shall be taken to extend iiiid be applied to the deputy judge or deputy clerk (as the case may be or reqiure) ; and the words "plaiiitifr" and "defcndant,'' respectively, shall be lautually transposed, where necessary, for the proper Kpplieation and construction of any of these rules or iliefunus herewith, or for giving ellcct thereto; and the Word "county" shall include any tAVO or more counties united for judicial purposes; aid in any i'li'iu or proceeding, the Avoids "united counties," ^ha]l and may be introduced according to laAV, and i:iainaslaiices rendering the sauio necessary. 208 i 201 i>ivi,-!i<)N (^ouiiT roaiNi;'. 1: t -'I 1 t 1 t;oiiiui.)iji.ji ii:s rOi;.'..o v:o. ■:*: Ml: I: * i, ■ ■.'■.■■fiif "00 ni 111;' X.). I. J//!'!arii Jul- '■((ty. (o sue c. iiarf'/ iwsidiiti/ la an adj'oiniiii/ (Ui-isio;!. Ill the lUvisiou Court ibv ihc Cuuuty of A. r»., dl' , yeoman, !!i;ilu(]i o,illi ;;ik.1 ,suitii, lli.it ho (or ]']. v., of , yodmaii, a^u'cnt for A. i)., or, ki'., luakoth oath and saitii, that the .said A. I>.) hatli a cause of action ar:aiii::t C. .]>. of , yeoiiyui, v/iuj rc.-Ides in the Division of t!io County of , tiiat this dopouoiit (or the ;^ai(l A. j>.) resides in the Division of (he County cf ; tli.'.t the distance from this doponoiit's vc Idonce (or IVom the siid A. 1).','! residence) to th place where tins ('ourti.-; held i-< ahout luik-. and to tiie place vriieie the (Jovirt i.-; held in the Division of the County of is ab ;ut miles; thnt tlie distance ivova the said C. D.'s vosldonco t > the I'laee where tlie court h held in the Division v.diere ho resides is about miles, and lo (lie ]daee Mdiere this c;)U)'t is held adxmt niile-i; that the said Division and this J)ivision rdjoiii cnili (ither, and that it v,-:!l be more e.isy and inexpousiM^ for the parties to haAO this cause tried in this Divi- sion, than elsewhere. 8 worn, kc- A. D. (or D. r.) l,.N(i.2 2. Aj]iilai'lt Jor Icncc fo nuc !:i a I'ii'i.doa ((■J/oiiiinr/oiiein :'.'Jti''!i. ilb'')rs I'e.-iLlc, wliere (here are .■ici'ci'u'. in the Division Court of the County of A. D. oi' , yeoman, midccth oath and saitli, DIVISION COURT FORMS. 265 Ithat he (or E. F. of , agent for A. 13. of, &c., makoth oath and saith, that the said A. B.) hath a cause of action respectively against each of the debtors named in the first colamn of the schedule on this affidavit endorsed; that the columns in the said schedule numbered respectively 1st, 2nd, 3rd, 4th, 5th, ()th, and 7th, are truly and correctly filled up, according to the best of this deponent's knowledgo and belief; that the Divisions named in the second and third columns of the said schedule, opposite each debtor's name, respectively, adjoin each other; and tliat it will be more easy and inexpensive for the parties to have the said causes respectively tried in I this Division than elsewhere. Sworn, &c. A. B. (or B. F.) y 1 ' '' ' ; ! ■ ■ 1 ii ' > m 266 S 5 o o 3 m 5 CO •a DIVISION COURT FORMS. ^ tit ,i4 *^ ai w c S o n « I- .S ■*' •3 I. J .g ^ 5 •''•ii . 1 ■* 5 •«3 S »2 gg e1 00 .2.3 c-Sg 00 It . .S f-) (^- H .Sao? O 0/ a X I c '^..a i3 a " d SB 9 a'c , i~i z> B h a ' d M O 3 a DIVISION COURT FORMS. 267 3. Particulars in cases of contract. A. ]3. of claims of C. D. of the sum If ^"1° No- of [the amount of the following account or the amount of the note (a copy of which is under- written) together with interest thereon :] or for that the said C. D. promised (here state shortly the pro- mise) which- undertaking the said C. D. hath not performed: — or, for that the said C. D. by deed under his seal, dated, , covenanted to, &c., and that the said C. D. hath broken said covenant, whereby the said A. B. hath sustained damages to the amount aforesaid.] A, B. 4. Particulars in cases of tort. A. B. of states that C. D. of did, on gf ^"^« N"- or about the day of , A. D. 18 , at the township of , unlawfully [take and con- vert one cow and one calf, the property of the said A. B. : or break and injure a waggon of the said A. B. : or keep a dog, which the said C. D. knew was accustomed to bite mankind or sheep, and that the said dog did, on the day and at the place aforesaid, bite and lacerate the arm of the said A. B., or kill, or injure two sheep, the property of the said A. B. : or assault and beat the said A. B., (or, as the case may be, stating the tort sued for in concise language) ;] The said A. B. hath sustained thereby damages to the amount oV , and claims the same of the said C. D. A. B. «i 5. Particulars in actions against a clerk or bailiff, and his sureties. A. B. cf of (]. claims of C. D., clerk (or bailiff,) s«e Rule No, Division Court for the County of 10. T¥ 268 DIVISION COURT FORMS. i li' and of E. F. of , iind G. II. of , (sure. tios for iuid parties with the said C 1). to a covenant for the duo pcrforiaaiico of the duties of his said office) the sum of for moneys had and received by the said C. .1). as sucli clerk (wr bailifl") as afore- said, in a certain cause in the said Division Court, wherein the said A. U. was phiintiff, and one 11. H. was defendant, to and for the use of the said A. B., the payment whereof tlie said (). I), unduly with- holds. And also (statinu; in like manner any other similar claim) — [or, the sum of for damages sustained by i^-.o said A. 15. throuLi;!) the misconduct (or neglect) of the said (■. i). in the performance of the duties of his said office : For that on the day of , at , (describe in ordinary Ian- i^'uat^e the neglect or misconduct, whereby the damage was occasioned)]. A. B. ' > 8 ^m 6. Sununons to appear. In the Division Court for the County of No. , A. D., 18 . Between A. B., plaintiff; and CD., defendant. To C. D., the above-named defendant. lopRuioNos You are hereby [as before {<))', as often before) 111122. '"' yii were] summuiiod to bo and appear, at the sit- tings of this court to be holden at , in the township of , in the said county of , on the day of , A. D. 18 , at the hour of in the forenoon, to answer the above-named plaintiff in an action on contract, {or, in an action for tort) for the causes set forth in the plaintiff's statement of claim hereunto annexed; and, in tlio DIVISION COURT FORMS. event of your not so appearing;, the plaintiff may pro- ceed to obtain judgment against you by default. Dated tlie day of , A. D. 18 . By the court. , Clerk. Claim Costs, exclusive of mileage, . NOTICE. Take notice, that if the defendant desires to srf-nff t (inij demand cujalnsf the plaintiff, (if the action be for tort omit the words in italics) at the trial or heai'- iiiLi; of this cause, (or) to take the benefit of any Statute of Limitations, or other statute, notice there- nfiu writing, and if a set-off' containing the jxrrtiru- j iitrs of such set off (omit the words last in italics, if ! the action be for tort) must be given to the plaintiff, I or loft at his usual place of abode, if living within the division, or left with the clerk of the said court, if the plaintiff reside without tlie division, at least six days before the said trial or hearing. 269 7. Affidavit of service of summons. I In the Division Court for the County of Between A. B., plaintiff; and C. D,, defendant, E. r., bailiff of the Division Court of the siitl County of (or of the said court) maketh •lath and saitli, that he did, on the day of , l'^ , duly serve the said C. D. with a true copy of the annexed summons and statement of claim, by (lelivcring the same personally to the said C. D., (or if the service was not personal, state how and on J f 4 I ■t DIVISION COURT FORMS. whom served) and that ho necessarily travelled miles to make such service. E. F. Sworn before me at this day of ,18 Clerk Division Court. ^ Or, *i.i,: This form may be used, when the affidavit is endorsed on the summons : — I swear that this summons and claim annexed thereto were served by me on the day of , by delivering a true copy of both, personally, to the defendant, (or to the wife o?* servant of the defen- dant, or U) a grown up person, being an inmate of and at the defeudunt's dwelling), and that I neces- sarily travelled miles to do so. E. R, bailiff. Sworn, k(i. See Rule No. 29. 8. Notice of set-off. In the Division Court for the County of Between A. B., plaintiiF; and C. D., defendant. Take notice, that the defendant will sct-ofF the following claim on the trial, viz : — Dated this day of To A. B., the plaintiff. , 18 . CD. ..n;i DIVISION COURT FORMS. 271 I'cllcd E. F. 9. Notice of defence under statute. Ilii tlio Division Court for tho County of Between A. 13., plaintiff; and CD., defendant. The plaintiff is required to take notice, that upon Itlielioaring of tliis cause, the defendant intends to hrivo in evidence, and insist upon tho following; (.'round of defence, namely, that the claim, for which lie the defendant has been summoned, has been I liarrcJ by the Statute of Limitations (or as tho case may be.) Dated this day of C. D. To A. II, tho plaintiff. N. B. — This notice may be embodied with notice of set-off. Soe Rule No. 29. 10, Kotlce of admission to save unnecessary expense in jsoo uuio No. proof. 30. In the Division Court for the County of Between A. B., plaintiff; and C. D., defendant. The plaintiff is required to take notice, that the defendant will admit, on the trial of this cause, the first, second and third items of the plaintiff's par- ticulars to be correct [or, the signing and endorse- ment of the promissory note sued upon (or, as the t'use may be.) J Dated the day of , A. D. 18 . CD. N. B. — This notice may be embodied with notice of set-off, or of other defence. 273 DIVISION COURT FORMS. 11. Confession of debt after suit commenced. In tho Division Court for the County of Between A. 13., plaintiff; and C. 1)., defendant. I acknowledgo that I am indebted to tho plaintiff in tho sum of , and consent that judgment for that amount and costs may be entered against me in this cause. CD. Dated the day of , 18 . Witness , clerk (or bailiff.) y. !'■-■■ 1 12. Affidavit of execution of confession. In the Division Court for the County of Between A. B., plaintiff; and C. D., defendant. E. F., clerk (or bailiff) of tho Division Covrt for tho said of (or of the said court) maketh oath and saith, that ho did see the above (or annexed) confession duly executed by the said defen- dant, and that ho is a subscribing witness thereto, and that he, deponent, has not received, and is not to receive anything from the plaintiff or defendant, or any other person, except his lawful fees, for taking such confession, and that he has no interest in the demand sought to be recovered in this action. Sworn before me, at the day of E. F. on 18 Clerk, &c., or a Commissioner in B. R. in and for tho said DIVISION COURT FORMS. 13. Siimrnont to wifness, [a iLo Division Court fin- the County of Between A. B., plaintiff; and C. D., defendant. You are hereby rc(iuired to attend at the sittings of the said court, to be holden at , on the ]S , at the hour of in the forenoon, to give cvitlcncc in the above cause, on behalf of the above- naiiicd [and then and there to have and pro- iluco (state particular documents re 280 DIVISION COURT FORMS. M ■■: ,24. Bond on supersedeas to warrant of attachment. In tlio Division Court for the County of Between A. B., plaintiff; and CD., defendant. Know all men by these presents, that we, C. D., of (insert place of residence and addition) tho above- named defendant, E. F. of, &c., and G. G. of, &c., are, and each of us is, jointly and severally held and firmly bound to A. B. of, &c., the above-named plaintiff, in the sum of of lawful money of Canada, to be paid to the said plaintiff, his certain attorney, executors, administrators and assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, and each and every of us binds himself, his heirs, executors and administrators firmly by these presents. Setjed with our respective seals. Dated the day of 18 Whereas the above-named plaintiff hath sued out of the above-named court (or from a justice of the peace) a warrant of attachment against the goods and chattels of the above-named defendant, for the sum of , and under and by virtue o^ the said warrant of attachment, certain goods and chattels of the said defendant, to wit : (specify property seized) have been seized and attached; and the said defen- dant desires that the said warrant be superseded, and the said property, so attached, restored to him, under the provisions of the 67th clause of the "Upper Canada Division Courts Act of 1850." Now the condition of this obligation is such, that if the said defendant, his heirs, executors or admin- istrators, do and shall, in the event of the claim in the said cause being proved, and judgment being reoovered thereon, as in other oases, where proceed- DIVISION COURT FORMS. 281 \n& have been commenced against the person, pay tho same, or pay the value of the said property, so taken and seized as aforesaid, to tho said plaintiff, his executors or administrators, or shall produce such property, whenever thereto required, to satisfy such judgment; then this obligation to bo void, else to remain in full force and virtue. Scaled and delivered in presence of ! C. D. [L.S.] E. F. [L.S.] G. a. [L.S.] 25. Order of reference. In the Division Court for the County of Between A. B., plaintiff; and CD., defendant. By consent of the above-named plaintiff and defen- dant (or, agents, if so,) given in open court (or, pro- duced in writing to the court), it is ordered, that all matters in difference in this cause (and if consented to, add "and all other matters within the jurisdiction of this court in difference between the said parties ") be referred to the award of , so as said award be made in writing, ready to be delivered to tho parties entitled to the same, on or before the day of J and that the said award may be entered as the judgment in this cause (add any special terms as) " the costs of reference to be in the discretion of the arbitrator," (or) "the costs of the action to abide the event of the suit." ' S<« Rule No. Given under the seal of the court this of 18 . day Clerk. /■I 282 DIVISION COURT F011M8. !'. ( See Rule No. 00. 26. Award. The award shotild be endorsed on the order in (he follotcing form. After hearing and considering the proofs laid bo- fore me {or us) in the matter of the within reference, and in full determination of the matters to me (or us) referred, I (or we) do award, that the within named A. B. is entitled to recover from the within named C. D. the sum of , together with the costs of this suit, and also , the costs of this reference, (or as the case may be), and that the same shall be paid by the said C. D. within days, and that judgment bo entered in the within mentioned case accordingly. Dated this day of 18 Arbitrator. See Rule No. 61. 27. Minute in Procedure Booh of judgment on award. Judgment for the plaintiflF (or defendant) for costs (or for the sum of and costs) pursuant to award; to be paid in days. See Rule No. 68. In the 28. Summons to plaintiff on interpleader. Division Court for the County of Between A. B., plaintiflF; * and CD., defendant. Whereas of hath made a claim to certain goods, [or to certain securities or money (a3 the case may be,)] viz. : (here specify) which have been seized and taken in execution (or attached) under and by virtue of process, issuing out of this court, in this action (or, by a justice of the peace) ; you are therefore hereby summoned to be and appear before the judge of the said court, at on , r in the following ment on award. DIVISION COURT FORMS. at the hour of , when the said claim will bo adjudicated upon, and such order made thereupon aa to the court shall seem fit. Given under the seal of the court, this day of ,18 . 283 Clerk. To- The above-named plaintiff. N", B. — The claimant is called upon to give par- ticulars of his claim, which you may inspect on appli- cation at the oflBce of the clerk of the court five days before the day of hearing. 29. Interpleader summons to cl-imant. In the Division Court for the County of Between A. B., plaintiff; and C. D., defendant. You are hereby summoned and required to appear at a court, to be holden on at the hour of , at , touching a claim made by you to certain goods and chattels [or moneys, &c., or securities (as the case moy be), viz: (here specify) seized and taken in execution (or attached) under process issued out of this court in this action, (or by a justice of the peace,) and in default of your tnen establishing such claim, the said goods and chattels will be sold, (ovy the said moneys, &c., paid and delivered over) accord- ing to the exigency of the said process : and take notice, that you are required, five days before the said day of , to leave at the clerk's office a particular of the goods and chattels (or as the case may be) so claimed by you, and the grounds of your claim. Bee Rule No. 63. ..-^■-^ ... r* I , k 284 DIVISION COURT FORMS, Given under the seal of the court, this of , 18 . day Clerk. To- Of- -, (the claimant.) See Rulo No. 63. 30. ParticnJars of claim on interpleader. In tlio Division Court for the County of BctTvecn A. ]1, plaintiflF; 1 and 0. P., def-idant. To whom it may concern. E. F. of claims as his property the following goods and chattek (or moneys, &c.) seized and taken in execution, (or attached) as it is alleged, namely, (specify the goods and chattels, or chattels or moneys, dtc. claimed) and the grounds of claim are (set forth in ordinary language the particulars on which the claim is grounded); and this the said E. F. will maintain and prove. E. F. Dated this day of , 18 . N. B. — If any action for the seizure has been com- menced, state in what court, and how the action stands. See Rules Nos. 51 A 53. 31. Minute in Procedure Book of adjudication on interpleader. ^ ' Adjudged, that the goods [or the goods, chattels and moneys, or proceeds of the goods, &c. (as the case may be)] mentioned in the interpleader summons [if only for a part of the goods, &c., add the words " hereafter mentioned, that is to say (here enumerate them)] are {or are not) the property of E. F. (the claimant), or that rent to the amount of is due ./ )| ?i I ^ DIVISION COURT FOEMS. 285 ludication on to Vi. F. (the claimant) ; ordered that , tho costtf of thiH proceeding bo paid by (here inucrt such oidor as to the costs or the subject in dispute, if any, us the judge shall have made) in days. 32. Execution ayainsi the goods of claimant on interpleader. lu the Division Court for tho county of Between A. B., plaintiff; and CD., defendant, E. F., claimant. Whereas at the sittings of the said Court, holden on at by the judgment of tho said court, the said plaintiff recovered against the i'' *.d defendant the sum of for a certain debt, beil^ro that time due and owing to the said plaintiff (or for certain damages sustained by the said plaintiff) and costs of suit, which said debt (or damages) and costs were ordered to be paid by the said de^ndant at a day now past J and whereas the said sum and costs not being paid, an execution issued against the gooas of the said defendant, under which certain goods and chat- tels were seized [if the interpleader was in respect to goods attached, omit all the preceding after the word " claimant" and say in lieu thereof as follows — " whereas a writ of attachment was sued out of this court {or issued by a justice of tho peace) under which certain goods and chattels, &c. were seized and attached"] to "which the above-named claimant made claim, and which claim came on to be heard and decided, upon interpleader summons, at a sitting of this court held on at , and at such last mentioned court it was adjudged, touching the said claim, that the goods [(or the goods, chattels and moneys, or proceeds of tne goods, &c. (as the case may be)] mentioned in the interpleader summons S^^^^- character, and denies the demand. The s.une as in ordinary judgment against executor .Bg^porm j; or admiiiistrator. -in^ °'" I < '^i 288 DIVISION COURT FORMS. "I lA 1 f Nos. 5" &60. 37' Mlmite in Procedure Book of judgmeitt against exe- cutor or administrator, where he admits his representative cJiarader, hid denies the demand, and alleges total or partial administration of assets : and the plaintiff proves his demand, end tlie defendant proves administration. Judgment for the plaintiff for debt, and also costs, to be paid in days; the plaintiffs demand having been proved, which was denied, and full (or partial) administration also having been proved, which was denied, the said costs to be levied of the goods and chattelu' of the deceased; failing such goods, then of the defendant's proper goods; the said debt to be levied of the goods and chattels J of the deceased, hereafter to come to the defendant's hands to be administered; and ordered that , the costs of proving such administration, be paid by the plaintiff in days. N. B. — If the defendant is shown to have some assets, the judgment must be for the amount " de bonis testatoriSf* and for the residue, " quando acciderint." See Rules Nos. 51 & 01, 38. Minute in Procedure Book of judgment against execu^ tor or administrator, ivhere the defendant admits his representative character, but denies the demand, and alleges total or paHial administration of assets, and the plaintiff proves his demand, and the defendant does not prove adminisiraiion. Judgment for the plaintiff for , debt, and also , costs to be paid in days, to be levied of the goods and chattel!* of the deceased; failing such goods, then the said costs to be levied of the defendant's proper goods, and the debt to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to bo administered, the plaintiff's demand having been DIVISION COURT FORMS. 289 lit against exe- lis representatm alleges total or z plaintiff worn dministration. debt, and also ij the plaintiffs as denied, and a having been ista to be levied jceased; failing proper goods; is and chattels the defendant's ed that > iion, be paid by L to have some ae amount " de idue, " quando mt against execu^ ndant admits his the demand, and of assets, and the efendani does not , debt, and days, to be I the deceased; Is to be levied of Ithe debt to be If the deceased, It's hands to be Cd having been proved, which was denied, and administration, which was alleged, not having been proved. 39. Minute in Procedure Book of jxulgment against execu- tor or administrator, who admits his representative char- S«e Rules ader, and the plaintiff's demand, but alleges a total or partial administration of assets, and proves the admin- istration. Judgment for the plaintiflF for , to be paid in days ; to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be administered :— the debt not being denied, and full (or partial) administration, which was denied, having been proved, ordered, that the plaintiff pay , for the defendant's costs in days. 40. Minute in Procedure Book of judgment against executor or administrator, who admits his representative character, and the plaintiffs demand, bid alleges a total I^^bi'* 63 or partial administration of assets, and does not prove the administration. Judgment for the plaintiff for , costs, to be paid in debt and days; full (or j partial) administration, which was alleged, and dis- puted, not having been proved, ordered, that the said sums be levied of the goods and chattels of the deceased ; failing such goods, then the debt of the goods and chattels, hereafter to come to the defend- lant's hands to be administered ; and the said costs [to be levied of the defendants proper goods. |41. Summons to executor or administrator, where plaintiff intends to apply to the court, alleging that assets have come to the defendant's hands since judgment. \h the Division Court for the County of See Rule N 64. 290 DIVISION COURT FORMS. IJetwcen A. 13., plaintiff; v and C. D., executor, (or administrator,) Of E. F., deceased, defendant. The plaintiif having learned, that property of tl|c said deceased has come to your hands as executor (or administrator) since the judgment herein, to be administered (and that you have withheld and wasted the same) intends to apply at the next sitting of this court, to be holden at in on the day of at the hour of , for an order, that the debt, (or damages) and costs be levied of the goods and chattels of the said deceased, if you have so much thereof to be administered, (and that if you have not, then that it shall be levied of your own proper goods and chattels) and that the costs be levied of your proper goods and chattels. You are, thereupon, hereby summoned to be and appear at the said court, at the time and place afore- said, to answer touching the matter aforesaid. Dated this day of To- A. D. 18 . -, Clerk. The above named defendant. ■i III |jj See Rul6 No. 60. 42. Suggestion of devaslavit on original sximmona (Commence with forms of summons, same s in ordinary cases, but naming defendant as executor or administrator, and adding after the word " default") and the plaintiff alleges, that you the defendant have See Form No. jj^Qj^gy^ goods, and chattels, which were the property of deceased, at the time of his death, and which came to your hands as such executor (or administra- tor) to be administered ; and if not, that you huve withheld or wasted the same. idministvator,) lefendant. jvoperty of tl^c as executor (ov herein, to do beld and wasted t sitting of this on the or an order, that e levied of the ed, if you have (and that if you d of your own be costs be levied loned to be and and place afore- aforesaid. D. 18 . -, Clerk. linal summons. same as in )ns at as executor or I word " deiault") le defendant have rere the property death, and which kr (or administra- |t, that you We DIVISION COURT FORMS. 43. Sianmojis on a devastavit. In the Division Court for the County of Between A. B., plaintiff; ' and C. D., executor (or administrator) of E. F., deceased, defendant. To C. D. the above named defendant. You are hereby [aa before (or as often before) you were] summoned to be and appear at the sittings of this court, tp be holden at in the town of on the day of , A. D., 18 , at the hour of in the forenoon, to answer the above- named plaintiff in an action, for that you, the defend- ant, have withheld and wasted divers goods and chat- tels, which were the property of E. ¥. deceased, at the time of his death, and which came to the hands of you the defendant, as executor (or administrator) of the said E. F. to be administerea, whereby a cer- tain judgment recovered against you by the plaintiff at the sittings of this court on at for the sum of remains unsatisfied ; and in the event of your not appearing, the plaintiff may proceed to obtain judgment against you by default. 291 See Rule No, 50. Dated the day of ,18 Add notice as in Form 6. Clerk. 44. Minnie in Procedure Book of judgment against execu- tor or administrator on devastavit after judgment. ko*s^i&*c4 Judgment that the defendant has wasted goods and chattels of deceased to the sum of , whereby a judgment, recovered against him by the . plaintiff' in the Division Court for the county of on the day of , remains unsa- 1292 DIVISION COURT FORMS. tisfied ; and that the plaintiff now recover against tho defendant the first named sum, and also costs; to be paid in days. , Judge. Dated this day of , 18 . Seo Rule No. 68. 45. Summons on hehalf of executor o,' administrator to revive a judgment. In the Division Court for the County of No. A. D. 18 Between A. B., executor of C. D., deceased, plaintiff; and \ E. F., defendant. To E. F. the above named defendant. Whereas at the sittings of this court (or the Division Court, &c.,) held at on , the above-named C. D, in his life-time, obtained a judg- ment against you for the sum of , and costs, which judgment, a transcript of which is hereto annexed, still remains unsatisfied, and the said plain- Sea Form 52. tiff, as executor as aforesaid, claims to have execution thereof; you are liereby summoned to appear at the sittings of this court to be holden at on at in the forenoon, to show cause, if any you have, why the said plaintiff, executor as aforesaid, should not have execution against you of the said judgment, according to the force and effect of the said recovery : and, in the event of your not appear- ing, judgment will be entered against you by default. By the court. Dated this day of Claim , Costs exclusive of mileage ,18 Clerk. Division court forms. 2&8 Sno Ruto No. 68. 46. Summons to revive judgment against an executor. Ill the Division Court for the county of No. A. D., 18 . Between A. 13., plaintiff; and C. E.; executor of E. F., deceased, defendant. Whereas at the sittings of this court (or the Division Court for &c.) held at on ? &C'j the said plaintiff recovered against the said E. F., in his life-time, the sum of , which judgment, a transcript whereof is hereto annexed, still remains unsatisfied; and the said plaintiff claims to liaveg^j.^j.jjjjj^ execution thereof against you, as executor of the said 62. E. F. : you are hereby summoned to appear at the sittings of this court, to be holden at , on , at the hour of , to show cause, if any you have, why the said plaintiff should not have execution of the said judgu ent against you, as exe- cutor as aforesaid, to be levied of the goods and chattels of the said E. F. deceased, in your hands to be administered : and in the event of your not appearing, judgment herein will be entered against you by default. Dated this day of 18 By the court, Amount claimed , Costs exclusive of mileage Clerk. if 47. Minute in Procedure Book of judgment for executor to ^^ ■Rxx\Bi revive a judgment. ^^^- ^i & 68. Judgment for plaintiff, that he have execiAtion against the defendant of a judgment of this court (or -l 294 DIVISION COUllT FOllMtJ. I of the Division Court, &c.) whereby the said 0. 1). in his life time, on , recovered against the said defendant the sum of See llulcs Nob. 61 & 68, 48. Minute in Froccdurc Book ofjudf/ment to recive a judgment against an executor. Judgment for the plaintiff, that he have execution against the defendant, as executor of E. F. deceased, of a judgment of this court (or of the Division Court, &c.; whereby the plaintiff, on , recov- ered against the said E. F. in his life-time the sum of , to be levied of the goods and chattels of the said deceased, in the hands of the said defendant to be administered. 49. Exectdion against goods of testator. In the Division Court for the county of Between A. B., plaintiff; and C. D., executor (or administrator of E. F., deceased, defendant. Whereas at a sitting of the said court, holden on at by the judgment of the said court, the said plaintiff recovered against the said defendant as exe- cutor (or administrator) of E. F. deceased, the sum of , for a certain debt, with , for costs, to be levied of the goods and chattels of the deceased; failing such goods, the costs to be levied of the defendants proper goods and chattels, which said debt and costs were ordered to be paid at a day now past, and the defendant has not paid the same : these are therefore to command you, forthwith to make and levy, by distress and sale of the goods and chat- tels, which were the property of the said E. F. in his life-time, in the hands of the defendant to be admin- mmM DIVISION COURT FOllMS. 2D5 iritered, wheresoever the same may be found, the said ilcbt and costs, amounting together to the sum of , together with the costs of this execution ; and also, and if necessary for that purpose, t seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, special- ties or securities for money, which were the property of the said E. F. in his iife-time, in the hands of the said defendant to be administered, which may be found, or such part thereof, as may be sufficient for the satisfying of this execution, and the costs of making and executing the same, if the defendant have so much thereof in his hands to be administered ; and if ho hath not so much thereof in his hands to be aduiinistered then that you make and levy of the proper jjoods, notes and chattels, money, &c. [repeat] of the defendant the sum of for the costs aforesaid, and the costs of this execution and levying the Same, so that you may have the said moneys within thirty days after the date hereof, and pay the same over to the clerk of the court, for the said plaintiff. Given under the seal of the court this of ,18 .. ->-;~u Clerk. To- Bailiff of the said court. Debt Costs Execution Paid Levy N.B. — Warrants of execution upon the judgment e llulo No. C8. \ \ I • I . I -U n ■a >(t I 298 DIVIHION COURT FORMS. ♦ Given undnr the seal of the eourt, this of , 18 . day Clerk, To , ]Jailiff. I)uo on judf^iuent- Interest . Kxecution costs — Bailiff's foes In the 52. Transcript of judgment. Division Court for the County of Between A. B., plaintiff; and CD,, defendant. The following proceedings were had : On the day of , a summons, requiring the defendant to answer the plaintiff's claim, for a debt (or for damages) amounting to , was issued out of this court in this cause, according to the statute in that behalf: on the day of the said defendant was duly served with a copy of the said summons, and of the particulars of the plaintiff's claim : at the sittings of the said court holden on the day of , at , the said cause came on to be tried, and the following judgment was then and there rendered by the court (here copy the minute of judgment from the procedure book): on the day of , a writ of execution upon the said judgment was duly issued out of the said court by the clerk thereof, which said writ of execution was directed to , a bailiff of the said court, and commanded him to levy the sum of of the goods and chattels of the said defendant: on the day of , the said bailiff returned the said writ of execution, with a return thereto, in the juvisioN covin rortMs. I'i)ll()win^ words : (ccpy bailiff's return). J'urHuant to the ftltli scc'tio:i of tho " Upper Caiiuda Division Cotirts Act of 1850," I , clerk of tho said I)ivi,^ii)n Court for the , do hereby certify and tlciliirc, that tho lbrcgoin of the county of . J Cl&rk. 8ee Rule No. 61. 59. Minuti in Procedure Book of imposition cffine mi Witness. Adjudged, that H. H. was duly summoned to appear as a witness in this action, at the sittings of this court here this day [and also to produce (as the case may be)] that payment [or a tender of payment] of his reasonable expenses was made to him, and that he did not appear [or having appeared, did wilfully refuse to be sworn, and give evidence in this action (or to produce such, &c.)] Or adjudged, that H. H. being before this court, now holden, and called upon to give evidence in this cause, did wilfully refuse to be sworn and give evidence.] And further adjudged, v.'' DIVISION COURT FORMS. 805' that the said II. II. pay a fine of for such nctilect [or refusal] in days [or forthwith] ; and that the sum of , part of tne said fine, bo paid by the clerk to the plaintiff [jr defendant] being the party injured by such neglect or refusal. GO. Minute in Procedure Book of order for imposition of fine for contempt. It is adjudged, that E. F., at the sittings of this court now holden, in open court is guilty of a con- tempt of the said court, by wilfully insulting , judge [or deputy judge] of the said court [or " in view of the court, by wilfully insulting , clerk (or bailiff) of the said court, during his attendance at such court" (or "by wilfully interrupting the pro- ceedings of the said court ")] : and it is ordered, that the said E. F. forthwith pay a fine of for such oflfence, and in default of payment, be commit- ted to the common jail of this county, for days, unless such fine, the costs herein, and the expense attending the commitment, be sooner paid. See Rule No. 61. Gl. Minute in Procedure Boole of imposition of fine on a Soe Rule No. juror, for non-attendance. Adjudged, that G. H. was duly summoned to attend this court now holden, as a juror; that he hath made default therein; that he pay a fine of , fo • such default, in days [or forthwith]. G2. Warrant of commitment for contempt. In the Division Court for the County of To , bailiff of the said court, and to all con- stables and peace officers of the county of , and to the jailer of the common jail of the said county of See Rules Nos. 10, 13 and 55. p' m r I I nr '! 3U1) DIVISION COUllT roiiMS. I Whereas at the sittings of this court, hoklcn on , at , it was adjudged that E. F., did then and there in open court, wilfully insult iiic, , judge [or deputy judge] of the daid court, [<>/• did, in view of the court, wilfully insult , clerk Qj)' bailiff) of the said court, duiing his atten- dance at such court, (or did unlawfully interrupt the proceedings of the said court)] ; and it was ordered, that the said E. F. should forthwith pay a fine of , for such offence, and in default of payment, be committed to the common jail of the county of for days; and whereas the said E. F. did not pay the said fine, in obedience to the said order ; these are therefore to rcipire you, the said Jiailiff 1 and others, to take the said E. F., if he shall be found within the and deliver him to the said jailer of the common jail of the county of ; and you the said jailer are hereby required to receive the said E. F., and him safely keep in the common jail aforesaid, for the term of days from the arrest under this warrant, unless the said fine and costs, the costs amounting to , and also the expenses attending the commitment, amounting together to the sum of , be sooner paid. Given under my hand and seal this 18 day of Scaled with the seal of the court, [l. s.] Clerk, -, Judge [L. s.] . _ ■i. i j]8 !»!BwaH»i DIVISION COUllT FORMS. 307 03. yVarrant to levy Urn iipon witness. In the Division Court for the County of Between A. B., plaintiff; and C. D., defendant. Whereas at the sittings of this court, holden on , at , it was adjudged, that II. If. was duly sum- moned to appear as a witness in this action, at a sit- tings of this court [and also to produce (as the case may be)] ; that payment (or a tender of payment) of his reasonable expenses was made to him, and that lie did not appear [or having appeared did wilfully refuse to be sworn and give evidence in this action (or to produce such, &c.)] : [where a witness in court refuses to give evidence, instead of the foregoing, commence, "Whereas being before the court at a sittings thereof, and called upon to give evidence in the above cause, did wilfully refuse to be sworn and give evidence "] j and thereupon it was adjudged, that the said should pay a fine of for such neglect [or refusal] in days [or forthwith] : and whereas the said hath not made such pay- ment: these are therefore [as before or as often be- fore] to command you forthwith to make and levy by distress and sale of the goods and chattels of the said , wheresoever the same may be found, [except the wearing apparel and bedding of the said , or his family, and the tools and implements of his trade, if any, to the value of £5] the said fine and costs amounting together to the sum of , and your lawful fees on the execution of this precept; and also to seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the said , which may be then found, or such part thereof, as may be sufficient for the satisfying of this execution, , and the costs on the same ; so that you may have the i ( d08 DIVISION COURT FOllMS. said sura of within thirty days after the date hereof, and pay the same over to the clerk of the court. Given under the seal of the court, this day of , 18 By order of the judge, , Clerk. To , BailiflF of the said court. Fine, Costs, Execution,- I , See Rule No. 4. 04. Procedure Sook, Division Court for the- Ensuing sittings, 26th February, 1851. No. 1. A. D. 18—. John Doe vs. Thomas Rob Town of , Township of . 1851. 1st Jan. 11th " 24th " 28th " 10th Feb. Received particulars of plaintiff's demand (on contract) for £2, and plaintiff paid Is. od. towards costs. Issued summons to Bailiff, costs Is. 8d. and mileage. Summons returned served the day of — . Defendant paid £2 Is. 8d., demand and costs. Paid plaintiff £2 Is. 8d., demand and costs, deposited. T DIVISION COUET FORMS. 809 No. ; costs Is. 8d. and A. D. 18—. John Den vs. Township of — Thomas'Ten, Town of . Received particulars of plaintiflF's demand (for tort) for j£5; plaintiff paid on account of costs 15s., and directed two subpoenas, and gave notice to try by jury. Issued summons to bailiff, costs Ss. 9d., and mileage. Summons returned served the day of , Issued jury summons and subpoenas to bailiff. Jury siunmonses returned served, 10 miles travel, subpoenas served also. Botli parties appeared, cause tried, judgment for plaintiff on verdict for ten pounds, ten shillings and ten pence damages, and pounds shillings and pence costs, to be paid in days. Defendant paid pounds , , in full of judgment and costs. iNo. 3. A. D. 18—. James Jones Township of - vs. Thomas Thompson, Town of . 11th Jan. 12th " ]3t Feb. 3rd " 20th " 10th March Received particulars of plaintiff's demand (on contract) for £25, and 6s. 6d. on account qf costs from James Patton, plaintiff's attorney. Issued summons to G. G., bailiff; costs 6s. 6d. and mileage. Summons returned, served the day of , 9 miles travel. Defendant executed cognovit for £25. Judgment for plaintiff — twenty-five pounds debt, and pounds , costs, to be paid in days. Defendant paid £ debt and costs. X. B.— The proceedings in a suit may be continued from page to page, giving a reference from one to another ; and the sums of money may be in decimal currency, pursuant to 16 Vic. cap. 158, if so ordered. V m 810 DIVISION COURT FORMS. . I I ■t ' Ill 31 1 u '1 i 'h 't9' *#«'' i-'i 1 o s ta o s d I O in •5 ti 9 i 1^ o •a M ft.S 1 s i •a a . O 00 •£: fc" «S x OrH H if si -2 "3 a . d K. i o (Jl OP •»" -•n s o •J 'C '^ sag M 73 o I—* ^11 '>% § qPi'-s 2 9 o •4-* a I P4 O Q >i5 1^ "N r-« ^ a S-'J t^ 1 I -s b Seo Rule No, g 4. DIVISION COURT FORMS. nil GG. Clerk's return of emoluments. Kcturn of , clerk of the Division Court y the of all fees and emoluments from the (lay of , to the day of , both days iiit'lusivc, made in pursuance of the " Upper Canada Division Courts Act of 1850," section 110. Sue Rule No. 6. __ \ On ^Vhat. Kntevinj; every account and ) Not Kxcccding £2 itsulug summons. j Exceeding £2 Exceeding £5 Exceeding £10 Exceeding £15 Not Exceeding £2 Exceeding £2 Exceeding £5 Exceeidlng £10 Exct^diog £15 Copy of summons, and par- ticulars of demand or set- olT.wiicn not furnished by piaintilT or defendant. 1 Summnns to witness Adjouiumcnt of any cause Not Exceeding £2 Exceeding £2 Exceeding £5 Exceeding £10 Exceeding £15 Enterinj? setrofT, or other de-^ Not Exceeding £2 fonce, requiring notice to >- Exceeding £2 tho plaintiff. ) Exceeding £5 Exceeding £10 Exceeding £15 Entering erery judgment Not Exceeding £2 Exceeding £2 Exceeding £5 Exceeding £10 Exceeding £15 Kvory Siiarch into a proceeding over a year old I Taking confession of judgment-Not Exceeding £2 Exceeding £2 Exceeding £5 Exceeding £10 Exceeding £15 I Kvery warrant of attachment ) Not Exceeding £2 or execution. j Exceeding £2 Exceeding £5 Exceeding £10 , Exceeding £15 Kvery copy or certificato of judgment to another I I'ounty iPi'Hwin;,' affidavits, and administering oatlis to uiliil' No. ^ !j Amount §■ I Currency. At .d. « 1 1 3 1 e 6 a 3 6{ 0; 9! 9' 6, 9' 1 o; 1 oi 1 o; 61 9 1 Oj 1 1 f, f! P Oi 1 oi cl 1 1 6 1 6 1 6 1 3 — 9 I, ;, above named, make oath and say, that {; j I }U2 mviHioN comiT forms. ''I i '' : ;, W tho forcf^oinj:^ return contains a full und correct stato- ment in every particular, to tho best of my knowlcd<^o and belief, of the fees and enioIunicntH of my oHice, received or receivable on bu«incbs done during tjic period above mentioned. , Clerk. Sworn before me, at , itc. N. ]J. — The sums of money may be in dcciiiiul currency, pursuant to the IGth Vic., ch. 158, if 80 ordered. Soe rule No. 07. List of unclaimed money. t. List of all sums of money belonging to suitois in the Division Court for tho , which remain unclaimed for six years before the last day of Decem- ber last past, applicable as part of the (jencral Fee Fund of the Division (Courts. Published in pursuance of tho 13th section of the "Upper Canada Division Courts Extension Act of 1853." For whom or on whoso account money paid in to court, When Paid. Style and No. of Suit. Amount. * £ 8. d. Dated Clerk's Office, January, 18 . Clerk. * Or the amount may be in decimal currency, pursuant to 16th Vic, ch. 168, if so ordered. DIVISION COIJIIT VDllMS. lUli lection of the tision Act of 08. JJailiJ's return. I!,turii of A. IJ., baililT of llio Division Court for tlio , mmlc ill jtiirHUiiiico of tiio riilcH of prufticc, toiiciiin^ 111! wiirriints, ]>recci>tn iiinl writs of uxocutioii, iictotl on or ill imml, botweoii tlio day of , and tlio day of Nun. 7 .\s 12, 1 i 1 O a £ i! O o £ t 4) § O 1 .1 1 o -M 1 o O ■♦-• a a 2 a Ki:UARKM. A. B. above named maketh oath and saith, that the fore- going return is full, true and correct, iu every particular. Sworn bcforo mo at , in the ' , this day of ,18 E. P., Clerk. "1 Toronto, 28th Juno, 1864. (Signed) of<''"^'n«o within the body of any other district or county, the ua imiiirei^ last mentioned offence may be enquired of, tried, deter- ana counutB niiued and punished in either of such districts or coun- uccussory ties : Provided always, that no person who shall be in"either'*'^ once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence. 38. For the more effectual prosecution of acces- sories after the fact of felony, lie it enacted, that if Ancessoij af- any person snail become an accessory alter the lact nmy be tried to any felony, whether the same be a felony at com- wlSimju- raon law, or by virtue of any statute or statutes made rj.^'^"°° ,*° or to be made, the offence of such person may be in- cipai fuion.'^' quired of, tried, determined and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act by reason whereof such person shall have become an accessory, had been committed at the same place as the princi- pal felony, although such act may have been commit- ted either ci the high seas, or at any place on land, whether within her Majesty's dominions or without ; and in case the principal felony shall have been com- mitted within the body of any district or county, and the act by reason whereof any person shall have be- be con^mlt-'^ come accessory, shall have been committed within *^^*^^'1<|- the body of any other district or county, the offence or counties, of such accessory may be enquired of, tried, deter- ^^^y^^'^^^j^^ mined and punished in either of such districts or Jq either, counties : Provided always, tliat no person who shall be once duly tried for any offence of being an acces- sory shall be liable to be again indicted or tried for the same offence. Accessory 89. In order that all accessories may bo con- "'»y,be pro- ..1 1 .,,. , ii.'i Kecuted after victed and punished in cases where the principal conviction of felon is not attainted, He it enacted, that if any prin- thou''„h'*t|j^ cipal offender shall be in anywise convicted of any principal bo felony, it shall be lawful to proceed against any acces- ^* **'^°*" ■f.l'V: BIO CHIMIN AL LAW. ". I tiindpals in tho second dcgroo and acvussurius. hK Bory either before or after the fact, in the same man- ner as if such principal felon had been attainted thereof, notwithstandi:ig such principal felon shall die, or be pardoned, or otherwise delivered before attainder ; and every such acccssoiy shall suffer the same punishment, if such accessory be in anywise convicted, as such accessory should have suffered if the principal had been attainted 4 & 5 Vic. CiiAr. 25. — 53. In the case of every felony punishable under this act, every principal m the second degree, and every accessory before t:<-> fact, shall be punishable with death or otherwise, in tho same manner as the principal in the first degree is by this act punishable; and every accessoiy after the fact to any felony punishable under this act (ex- (Bept only a receiver of stolen property,) shall, on con- viction, be liable to bo imprisoned for any term not exceeding two years; and every person who shall aid, abet, connsel or procure the commission of any mis- demeanor punishable under this act, shall be liable to be indicted and punished as a principal offender. 54, If any person shall aid, abet, counsel or pro- cure the commission of any offence, which is by this act punishable on summary conviction, either for every time of its commission, or for the first and second time only, or for the first time only, every such person shall, on conviction before a justice or jus- tices of the peace, be liable for every first, second or subsequent offence of aiding, abetting, counselling or procuring, to the same forfeiture and punishment to which a person guilty of a first, second or subsequent offence as a principal offender is by this act made liable. Principals in 4 & 5 Vic. CiiAP. 2G. — 26. In the case of every the second felony puuishablc under this act, every principal in Qt?irrG6 find •/ x ^ %/ ± x accessoriM. the second degree, and every accessory before the fact shall be punishable with death or otherw'se, in the same manner as the principal in the first degree Abettors in misdomean- ors. Abettors in offences pun- ishable on summary conviction. S m CRIMINAL LAW. 317 i is by tliis act punishable ; and every accessory after tlic lUct to any felony punishable under this act, shall, on conviction, be liable to be imprisoned^ for any term not exceeding two years : and every person "who shall aid, abet, counsel or procure the commission of any misdemeanor, punishable under this act, shall be n,]^^*^" '° liable to be indicted and punished as a principal ors. offender. 4 & 5 Vic. Chap. 27. — 35. In the case of every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable ; and every accessory after the fact to any felony punishable under this act, shall, on conviction, be liable to be imprisoned for any term not exceeding two years, (a) 10 & 11 Yio. Chap. 4. — An Act for prcventinq^ ., ,.. .... 7 ,7/? Punlshmont malicious injuries to persons and proper tj by jirc, or of principals b>j explosive or destructive substances. dccr^^^^'^d* 10. In the case of every felony punishable under accessorieB. this act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this act punishable ; and every accessory after the fact to any felony punishable under this act, shall, on conviction, be liable to be imprisoned in any common gaol for any time not exceeding two years. 10 & 11 Vic. Chap. 9, relating to the crime of forgery, section 18, is verbatim the same as the one immediately preceding. (&) (ff) Vide post, title "Post-office," 13 & 14 Vic. ch. 17, s. IG. (h) Vide post, IG Vic. cb. 19, s. 11, title " Forgery." "l.f'V'l^ 318 CRIMINAL LAW. Recital. I \ ;! ; \ ADMINISTRATION (general law.) 40 Geo. III. Chap. 1. — An Act for the further introduction of the Criminal Lmo of England in this Province, and for the more effectual punishnent of certain off( uders. Whereas the criminal law of England was, by an act of the Parliament of Great Britain, passed in the fourteenth year of his Majesty's reign, intituled "An Act for making more effectual provision for the gov- ernment of the Province of Quebec in North Ame- rica," introduced and established as the criminal law of this Province: And whereas divers amendments and improvements have since been made in the same Criminal law^y *^^ mothcr^country, which it is expedient to intro- of England duce and adopt in this Province, Be it, &c., that the ^*^t''g^^'^on criminal law of England, as it stood on the seven- 17th Sept. teenth day of September, in the year of our Lord one thousand seven hundred and ninety-two, shall be, and the same is hereby declared to be the criminal law of this Province. Saving of or- 2. Provided, nevertheless, that nothing herein con- dinaneea tainod shall be taken or construed to vary, repeal, or 14. Geo. in. in any manner affect any ordinance of the late Pro- vince of Quebec, which may have been made since the said fourteenth year of his Majesty's reign. 7. Provided, nevertheless, that nothing herein con- tained shall be constnied in any manner to restrain or prevent his Majesty, his heirs or successors, to grant an absolute and unconditional pardon to such offender, and to allow of his or her return to this Province. 3 Will. IV. Ciiap. 4.— 15. (a) That so much of (rt) 3G Geo. III. ch. 1 is repoalea by 4 & 5 Vic. cb. 93, s. 1, and 38 Geo, III. ch. 1 by 13 & 14 Vic. ch. 35, s. 1. By reference to 40 Geo. III. ch. 1 it will be seen that little of that statute remains in force, and so much of the present Act as relates to forg;ery, and offences of that character, ia repealed by lO & 11 Vic. ch. 9, b. 22. ! i!-l CRIMINAL LAW. 319 an Act passed in the Parliament of this Province, in ^ the fortieth year of King George the Third, entitled, "An Act for the further introduction of the Criminal ^ Qg^ jjj Law of England in this Province, and for the more <^^v- 1- effectual punishment of certain offenders," and of the also so much several Acts of the Parliament of this Province, pas- ^l^^^^ ^^' sed for authorising the issuing of government deben- makes it cap- tures, as provides that any offence in any of those goTemmeT statutes respectively mentioned, shall be punishable debentures with death, shall be, and the same is hereby repealed; and that such offences shall continue to be of the degree of felony, and the persons convicted thereof shall be liable to the punishments, or any of them, which are by this Act provided in respect to felonies generally, which are not punishable with death. 16. — That if any person shall be indicted for any offence made capital by this or any other offence fessmg or made capital by this or any other statute, made or to ^"^^^l^'hed be made, such person shall be liable to the same pun- in the same ishraents, whether he or she shall be convicted by ^vkted^by verdict or confession, or shall be outlawed upon in- verdict, dictraent ', and this as well in the case of accessories as of principals. 3 Will. IV. Chap. 5. — An Act to ta/ce away cor- ruption of hlood, save in certain cases. (13th Feb., 1833.) Whereas it is expedient to mitigate the rigor of the _ . , . ■• /» 1 1 1 • 11 • T Proamole. law m respect to corruption oi blood in attainder for felony, Be it, &c., that no attainder for felony which shall take place from and after the passing of this Act, save and except in the cases of the crime of high treason, or of abetting, procuring or counselling the same, shall extend to the disinheriting of any No attainder heir; nor to the prejudice of the right or title of any ^^^^P5,y°^j,o„ person or persons, other than the right or title of the jhaii extend offender or offenders during his, her, or their natural heritun? of^ lives only ; and that it shall be lawful for every person ""^ ^•**"- or persons to whom the right or interest to or in any S20 CRi:>IINAL LAW. 1 , lands, tenements or hereditaments, after the death of any such offender or offenders, should or mip;ht have appertained, if no such attainder had been, to enter into the same. 6 Will. IV. Chap. 48. — An Act to allow persons Copy of in- indicted for fcloiiy a full defence, hy Counsel, and for dktment to other purposes therein mentioned. DO delivered ■' -'■ to prisoners 1. Superseded by 4 & 5 Vic. chap. 24, s. 9. of curtiiia'^ 2. That whenever any person shall be indicted in ciiarges. g^y of his Majesty's courts of this Province, for any felony or misdemeanor, and shall apply to such court for a copy of the said indictment, the same shall, with all convenient expedition, be made out and delivered to the person so applying : Provided, never- theless, that the clerk or officer shall be entitled to ) demand and receive for the same of such person the following and no other fee, that is to iay : at the rate of ninepence for every hundred words contained in such indictment: Provided always, that such copy shall not be received in evidence upon any trial for a malicious prosecution. 7 Will. IV. Chap. 4. — It is apprehended that no part of this Act remains in force. The 70th section of 4 & 5 Vic. eh. 25 repeals all Acts or parts of Acts or provisions of law in force in this Province, or any part thereof, immediately before the time when this Act shall come in force, which shall be contradictory to or inconsistent with this Act, '^or which make any provision in any matter provided for hy this Act other than such as is hereby made in such matter." Sec. 2 of the same Act abolishes the distinction be- tween grand and petit larceny, and generally gives power to the courts having jurisdiction in cases of petit larceny to try every case of larceny, the punish- ment of which cannot exceed the punishment there- inafter provided for simple larceny. 7 Will. IV. Chap. 6. — An Act to provide more effectually for the punishment of certain offences, and CaiMINAL LAW. 821 the death of or n»ight have been, to enter o^Jow 2)ersons insd, and for 4, s. 9. _e indicted in ince, for any Vb to such tit, the same nade out and ^'ided, never- e entitled to 1 person the : at the rate ontained in ' such copy ly trial for a ded that no 0th section ^rtsof Acts ice, or any ' when this iitradictory ma/ce any ' this Act ^ niatter." nction be- ally gives I cases of le punish- int there- ide more 'ices, and to enable the Governor, Lieiitenant-Governor, or Per- - Ron administeruKj the governincnt of this Province to commute the sentence of death, in certain cases, for other jninishinent in this Act mentioned. Whereas it is expedient to make further provision preamble, for the effectual punishment of certain offences here- inafter mentioned, Be it enacted, &c., that in case of the conviction of any person after the passing of this i^rceny and Act, of any larceny, or of manslaughter, or of anyo['ier assault with intent to commit any felony, or of felo- punished as nious rescue, or of assaulting with any weapon a ^"'■'■'^^"*^''"^- sheriff, or other peace officer, in the execution of his duty, or of any forgery which before the passing of this Act was not punishable with death, with or with- out benefit of clergy, or of perjury, or of fraud, or cheating, or conspiracy, or of being accessory, before or after the fact, to larceny, or any other felony; or of receiving stolen goods ; or of embezzlement; or of uttering or tendering in payment false or counterfeit money resembling any of the gold or silver coins cur- rent in this Province, knowing the same to be false or counterfeit; or of anv offence against a certain statute of this Province passed in the fiftieth year of his late Majesty George the Third, entitled, "An Act for preventinfj the forging and counterfeiting of foreign Bills of Exchange, and of foreign notes and, orders for the payment of money " ; or of assisting in or attempting to effect the escape of a prisoner confined for a felony or other crime, before or after conviction — the person convicted of such offence may be sentenced to such punishment as is now provided Or bj^impri by law for any such offence ; or if the court which is on°y"-'''wUh to pass sentence on such convict shall think fit, may or without be sentenced to be imprisoned only, or imprisoned in'i'lig*^^^ and kept to hard labour, or in solitary confinement in "»"" i-'aoi o? .1 '■ 1 . i. /• 1 p penitentiary tlio common gaol, or in any penetontiavy or liouse oi correction, that hath been or may be provided in this j,,,.^ ^^^ ^^ Province for such purpose, for any term not exceed- excjed soven ing seven years: Provided alwai/s, that where, for^"*"^^' p2 -JPTlff" I I I (If' 1 4 822 CRIMINAL LAW, "id'. 11 m h: 1 ;,>i[l N any of the olTcnecs above niciitionccl, a specified tcrjii of imprisonment in now nssi<:ned by law, no person aliall be sentenced, lor sucli oilence, to be imprisoned in a penetentiary, or other jilace of confinement for a longer period than such specified term : And j^ro- Convictions ^./jg^^ f_ii^Q that in case a conviction shall take place lor onent'i'S nirv ^ • ^ o t (except man- 01 any of the oucnces hereinbelore enumerated, ex- pu\"ishiibio cept the offence of manslaughter, which before the under 3 will, passing of tliis Act would have subiccted the offen- IV C 4 not ■ • to Ik^ nireeh-d der to any punishment provided by the Act of Par- by this Act. Jijixnent of this Province, passed in the third year of his present Majesty's reign, entitled, " ylw Act to reduce the nuinijcr of cases in which cajntal j^uninh- ment mxay be injiicted; to provide other punishment for ojfences v:hicli shall no louf/er he ca^ntal after the 2)ass{n(/ of this Act; to abolish the privilege called benefit of clerr/y ; and to mahe other alterations in certain crimiiial ptroceedinr/s before and after con- viction," such punishuient shall in no case be altered or affected by this Act. Sentence of ^- That it shall and may be lawful for the Gov- de.ifhni.iyb 3 crnor, Lieutcnant-Goveinor, or Person administering comuiu ei (Government of this Province, to commute the sen- tence of death, which may be passed upon any per- son convicted of a capital crime, other than higli treason or murder, and with authority from his Ma- jesty, upon any person convicted of high treason or murder for transportation for life, or term of years, to such place in his 3Iajesty's dominions as may be assigned for the reception of convicts ; or for banish- ment from this Province for life, or any term of years; or for solitary confinement; or confinement with or without hard labour in any penitentiary or house of correction that may be appointed for such purpose, either during life, or for any term of years; and that an instrument under the hand and seal of the Governor, Lieutenant-Governor or Person admin- istering the Government of this Province, declaring such commutation of sentence, shall be sufficient Ac, except for mnrder and Li;^li treason. ^^p •p c sufficient ' CRIMINAL LAW. authority to any of his Majesty's judc^cs or justices in this Province, having jurisdiction in such cases, to make such orders, and give such directions, under his hand and seal, as may be requisite for the change of custody of such convict, and for his conduct to and delivery at any penitentiary or house of correc- tion in this Province, and his detention therein, according to the terms on which his sentence may have been commuted. 4, That the time during which any offender shall have continued in any common gaol, tinder sentence of transportation, or under sentence of confinement in the penitentiary, shall be reckoned in discharge, or part discharge, of the term which shall be appointed by such sentence, (a) 4 & 5 Vic. Chap. 24. — An Act /or improving the administration o/ criminal Justice in this Province. 1. (h) Where any person shall be taken on a charge of felony, or suspicion of felony, before one or move justice or justices of the peace, and the charge shall bo supported by positive and credible evidence of the fact, or by such evidence as if not explained or contradicted, shall, in the opinion of the justice or justices raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices in the manner here- inafter mentioned; but if there shall be only one jus- tice present, and the whole evidence given before hiui shall be such as neither to raise a strong presump- tion of guilt, nor to warrant the dismissal of tlie charge, such justice shall order the person charged to be de- tained in custody, and such person shall be taken before two justices at the least; and where any per- son so taken, or any person in the first instance taken (a) Vide 4 & 5 Vic. cli. 24, s. -02, (iufra). (^) Vide IG Vic. ch. 179 which repeals many provisions relative to the duties of justices of the peace set forth in tlio first thirteen sections. 323 Imprison- iiiont aftor Fciitonce to 1)0 reckoned in the term of trtiUKpor- tiou . Who may bo aUinittt'd to hail on a charge of fe- lony, and who may not. •^m^mm^'^' '% II I ■11 -•« Wiii i— «^nP«IB 824 CRIMINAL TAW. Before any person cbars- eii with felo- ny, Ac, sliall bo bailed or coniniittod, the just ice ehall taku down in wri- tini; tho ex- amination, Ac, and bind witnesses to appear at trial. before two jiistiecs of tho peace, sliall be cliarfied with felony, or on suspicion of felony, and the evidence given in sujiport of the charge, shall, in the opinion of such justices, not to be such as to raise a stronf; presumption of the guilt of the person charged, and to require the connnittal of such person, or such evi- dence shall be adduced on behalf of the person charged as shall in tho opinion of such justices, weaken the presumption of guilt, but there shall, notwithstand- ing, appear to such justices, in cither of such cases, to bo sufficient ground for judicial inquiry into the guilt of the person charged, such person shall be admitted to bail by such two justices in the manner hereinafter mentioned : Provided always, that nothing liercin contained shall bo constioied to require any such justice or justices to hear evidence on behalf of any person so charged as aforesaid, unless it shall appear to such justice or justices to be meet and con- ducive to the cuds of justice to hear the same. 2. (a) Two justices of the peace, before they shall admit to bail, and one or more justice or justices, be- fore ho or they shall commit to prison, any person arrested for felony, or on suspicion of felony, shall take the examination of such person, and the infor- mation upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, in the presence of the party accused, if he bo in cus- tody, who shall have full opportunity aiforded him of cross-examining such witnesses, if he shall think proper so to do, and the two justices admitting to bail shall certify the bailment in writing; and every such justice shall have authority to summon any per- son within his jurisdiction, whom he shall have reason to consider capable of giving material evidence concerning any such felony or suspicion of felony, and to examine such person on oath, touching the (a) See 10 Vic. cli. 170, sec. 15, infra. SSR CniiMINAL LAW. 325 samo, and to bind by rccoji^nizanco nil such persons as know or docliirc anything nuitorial toucliiiiiif any sucli Iclony, or suspicion of felony, to appear at tho next Court of Oyer and Terminer, or (Jaol Delivery, or other court at which the trial of such ofiFencc is in- tended to bo had, then and there to prosecute and give evidence against the party accused; and such justices and justice, respectively, shall subscribe all such examinations, informations, bailments and re- cof^uizanccs, and deliver, or cause to be delivered, tho same to the proper officer of the court in which the tions" &c^, to trial is to bo, before, or at the opening; of the court : 1^" ti'-Hvcred 1 . ' ' 1 1, 11 r X t« tho court. and in case any person so summoned shall refuse to submit to such examination, or to enter into such re- cognizance, it shall be lawful for the justice or jus- tices to commit such person to the common gaol of tho district, county, city or town, until such person shall submit to such examination, or shall enter into such recognizance, or bo discharged by due course of law : (a) Provided that no such examination shall subject the party examined to any prosecution or penalty., or bo given in evidence against such party, save on any indictment for having committed wilful and corrupt perjury in such examination. o. Every justice of tho peace, before whom any nuty of jus- person shall be taken on a charge of mi.sdemeanor, or *''jj'^,f '^'|^^^^ suspicion thereof, shall take the examination of the muauor. person charged, and the information upon oath of those who shall know tho facts and circumstances of tho case, and shall put the same, or as much thereof as shall bo material, into writing, before he shall com- mit to prison or require bail from the person so charg- ed ; and in every case of bailment, shall certify tho bailment in vv'riting, and shall have authority to bind all pcivions by rocognizancG to appear to pro£:ecuto or (a) Sco Evan;^ v. Ptoes, 12 A. &. E. 55, as to poAvoi- of a justice to ooraiuit a -witness for not tippearlp.g to cuter into a rccojnizanco to give testimony. 4i 326 CRIMINAL LAW. i i l! i 1,1 ■ i ;i,i "I 'it' ••■I'''' ] give ovldcnco against the party accused in liko miin- ncr as in cases of felony ; ami shall subserihe all ex- aminations, iut'ormations bailments ami recognizances, and deliver or cause to be delivered the same to the proper ollicer of the court in which the trial is to he, before, or at the opening of the court, in like manner No tr.tvfrso as ill cascs of felony, and that no traverse or other postponement of any trial thereupon had, shall be allowed except upon special cause shown to the satis- faction of the said court, or by consent of the prose- cutor. 4. Every coroner, upon any inquisition taken bo- Duty of coro- fore him, whereby any person shall be indicted for ","'■• manslaughter or murder, or as an access' •^o murder before the fact, shall, in presence of th( y accus- ed, if he can be apprehended, put in writing the evidence given to the jury before him, or as much thereof as shall be material, giving the party accused full opportunity of cross-examination; and shall have authority to bind by recognizance all such persons as know or declare anything material touching the said manslaugher or murder, or the said offence of being accessory to murder, to appear at the next Court of Oyer and Terminer or Gaol Delivery, or other court, at which the trial is to be, then and there to prosecute or give evidence against the party charged; and every such coroner shall certify and subscribe the same evidence, and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper officer of the court in which the trial is to be, before, or at the opening of the court. 5. When and so often as any person shall bo com- mitted for trial by any justice or justices, or coroner, as aforesaid, it shall and may be lawful for such pri- soner, his counsel attorney or agent, to notify the of to forward saiu comuutting justicc or justices, or coroner, that tim's'to'rhllk ^^ ^^^'^' '^° ^^^''^ ^'^ counscl cau bc heard, move her of tiio crown. Majesty's Court of Superior Jurisdiction, ibr that part of the Province in which such person stands conniiit- Whon party (•onimitti'd wislu'.s to be btiilcMl. tho justices on noti'-o tln're- ; W sw- CRTMINATi LAW. 327 tt'd, or ono of the judj^cs tlicrcof, lur an order to tlio justices of the peace, or coroner li»r the district where .sucli prisoner sliuii be eonlined, to admit sudi prisoner to bail, whereupon it shall be the duty of such coni- lulttinjj; justice or justices, or coroner, wltli all conve- nient expedition, to transmit to the ollice of the Clerk of the Crown, close under the hand and seal of one of them, a certilied copy of all infunnations, examina- tions and other evidences, touching the offence where- with such prisoner shall be charoed, together with a copy of the warrant of commitment and incjucst, if !Uiy uch there be, and that the packet containing the same shall be handed to tlie person aji, iying therefor in order to such transmission, and it shall be certilied on the outside thereof to eontaiu the information touching the ease in ((ucstion. 0. Upon any application to her Majesty's Court of g^j,^^, ^^^j^.^^ Superior Criminal jurisdiction, for that part of the to ik* iiin held to bail, or committed to prison, on payment of a reasonable sura for the same, not exceeding three pence for each folio of one hun- dred words : Provided always, that if such demand shall not be made before the day appointed for the couiuiencement of the assi/e or sessions at which the trial of the person on whoso behalf such demand shall be made, is to take place, such person shall not ho entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial, shall be of opinion that such copy may bo made and delivered without delay or inconvenience to such trial, but it shall, nevertheless, be competent for such judge or other person so to preside at such trial, if he shall think fit, to postpone such trial on account of such copy of the examination of witnes- ses not having been previously had by the party charged, (a) (rt) A magistrate is not bciiml by law to return all tliat is «tatcil by tlio witnesses on a charge of felony, but only all tliat is material to the case, and though they ought to contain what was stated, that the prisoner may know what lie has to answer, there is a dilFcrcnce between a Avitness at tlie trial adding to his deposition and contradicting it, and it seems the chief object in granting the prisoner the dcpo- • sitious was to guard against nn attempt at such contradic- M ';■ 1 J 330 Porflons un- der trial may lu«iH«;t all dupusitiuus. A plea of not guilty, with- out nioro, filiall put thu Prisoner on 1h trial by jury. Ifhorefuso to pluad, the ( court may order a ploa of '• not >?uil- ty" to Iw en- torud. CRIMINAL LAW. 13. All persons under trial shall bo entitled, at the time of their trial, to inspect, without fee or re- ward, all depositions (or copies thereof^ which have been taken a<:!;ainst them, and returned into the court before which such trial shall be had. 14. If any person whatever, being arraigned upon any indictment for treason, felony or piracy, shall plead thereto a pica of "not guilty," such person shall, by such plea, without any further form, bo deemed to have put himself or herself upon the coun- try for trial, and the court shall, in the usual manner, order a jury for the trial of such person according- ly. (a) 15. If any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy or misdemeanor^ shall stand mute of malice, or will not answer directly to the indictment or informa- tion, in every such case, it shall be lawful for the court, if it shall so think fit, to order the proper oflBiccr to enter a plea of "not guilty" on behalf of tion. — 7 C. & P. 6G7-817. Where depositions are taken and returned by a coroner, the prisoner may obtain a copy of them. — R. V. Gi-eenacre, 8 C. & P. 82. A prisoner is not entitled to a copy of his own statement returned by the ratigistrato as made before him, but only to a copy of the depositions. — 11. v. Aylett, 8 C. & P. 6G9. Depositions taken before a magistrate cannot be read against a prisoner, where the witness has died since tl " examination, unless the depositions on cross-examination have been correctly taken and returned. Depositions in cross-examination taken at a subsequent time to those in chief, and not signed by the committing magistrates, aro so irregular as to pre- vent the whole depositions being road against the prisoner, although both are proved by one of the committing magis- ti'ates to have been correctly taken. — R. v. France, 2 M. & Rob. 207. The right to copies docs not attach until t'lc prisoner is held to bail or committed for trial. — Ex parte Fletcher, 8 Jur. 269 : 5 Q. B. 555. (a) A prisoner who has pleaded guil':y to a charge of lar- ceny, cannot, after sentence, be allowed to withdraw his plea, and plead not guilty. — R. v. Selbe, 9 C. & P. 346. WBBBP. CRIMINAL LAW. 331 such person ; and the pica so entered shall have the same i'orce and effect as if such person had actually pleaded the same. 16. If any person indicted for any treason, felony, Kvery chai- 1 11 I II i. -1 I *" lonKo beyond or piracy, shall ciiallenge peremptorily a greater num- the loxui ber of the men returned to be of the jury, than such ^"Jjj'^'"''^" person is entitled by law so to challenge, in any of the said cases, every peremptory challenge beyond the number allowed by law in any of the said cases, shall be entirely void, and the trial of such shall pro- ceed as if no such challenge had been made. 17. No plea setting forth any attainder shall be Attainder of pleaded in bar of any indictment, unless the attainder criniom)t be for the same offence as that charged in the indict- pi«'«^bi«- mcnt. 18. Where any person shall be indicted for treason jury f,i,„,i or felony, the jury impanelled to try such person »"* ""•i"''*© shall not be charged to inquire concerning his lands, hindKr&c!!^ " tenements or goods, nor whether he fled for such 2°''g^^'"*''°'' treason or felony. 19. Benefit of clergy with respect to persons con- Benefit of victed of felony shall he abolished ; but that nothing ^^"''Y ^^i- hercin contained shall prevent the joinder in any in- dictment of any counts which might have been joined before the passing of this Act. (a) 20. No person convicted of felony shall suffer ^yhnt f.io- death, unless it bo for some felony which was ex- J,>j'^^ ""'y eluded from the benefit of clergy by the law in force tai. in that part of this Province in which the trial shall be before the commencement of this Act, or which (a) A general judgniont for the crown on an indictment containing several counts, one of which is bad, and where tlio punishment is not fixed by law, cannot be supported.— O'Connell v. Reg. in error, 11 CI. & F. 155, An indictment contained four counts for extortion, and three for uttering forged licenses ; the jury returned a verdict of guilty on all the counts ; the court passed sentence of the same identical term of imprisonment on each count separately. — R. v. Car- ter, 9 Jur. 178. ■BJf^^piJI,I^HIutl^il||ff;iw^piHl|Him)l(ifJHIip«i(>._lji!Hi| iS{r\ ■'•?■ I.; t 332 CRIMINAL LAW. shall bo mficlo punishable with death by some Act passed after that day, Evory-pun- -^l' '^^ pi'cvent all_ doubts respecting the civil ishinont for rights of persuns convicted of felonies not capital [t h'iw boon who havo undergone the punishment to which they e"d"rt>d vfevQ adjudged ; Be it enacted, that where any offen- the offrtct of der had been or shall be convicted of any felony not «p:*[^^^,^^^j punishable with death, and hath endured or sliall seal. endure the punishment to which such offender liatt been or shall be adjudged for the same, the punish- ment so endured hath and shall have the like effects and consequences as a pardon under the great seal as to the felony whereof the offender was so convicted: Provided always, that nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any other felony. Nomisd '^^' "^"^ whereas there are certain misdemeanors meiinor(ox- which render the parties convicted thereof ineompc- shai/rendS'' *'^'**' witncsscs, aud it is expedient to restore the com- a party an potency of such parties after they have undergone wUness'aftor their puuislimont ; Bo it therefore enacted,'.that where dor'om" "in ^"^ offcndor hatli been or shall bo convicted of any puuishmeut. sucli misdomoauor (except perjury or subornation of perjury), and hath endured or shall endure the pun- ishment to which such offender hath been or shall be adjudged for the same, such offender shall not, after the punishment so endured, be doomed to bo, by reason of such misdemeanor, an incompetent witness in any court or proceeding civil or criminal. 24. Every person convicted of any felony not pun- Foionios not isliublo witli death, shall be punished in the manner iifinliio un " pi'cscribcd by the statute or statutes specially relating dor the Act to sucli fclouy J and that every person convicted of any felony fur which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this Act, and shall be liable, at the discretion of the court, to be imprisoned at hard rt'latin^ theroto, ' othcrwiso under this Avt. mmB^psesa-n CRIMINAL LAW. 'sn llabour in the Provincial Penitentiary for any term Inot less that seven years, or to be imprisoned in any jotlier prison or place of confinement for any term not I cveecdinii: two years, (a) 28. Where any person shall be convicted of any [offoncc punishable under this Act, for which impri-^^®^^!;',!^'^^^. sonmcnt may be awarded, it shall be lawful for the hard labour court to sentence the offender to be imprisoned, or to conflncmJnt hie imprisoned and kept to hard labour in the com- ?f p*""* "f " ^ , -I ,. .. 1 1 , T , "'« sentence uiou gaol, or house ot correction, and also to direct of imprison- Itkt the offender shall be kept in solitary confinement, ^^^^' I fur any portion or portions of the term of such im- Iprisonment or of such imprisonment with hard labor Inot exceeding one month at any one time, and not lexcceding three months in any one year, as to the [court, in its discretion, shall seem meet. 21). Whenever sentence shall be passed for felony if » person I 1 1 • • ^ \ ±_ o under son- lon a person already imprisoned under sentence tor tence for an- lanotlier crime, it shall be -lawful lor the court A„ other crime ''" is convicted lawarcl imprisonment for the subsequent offence, to of felony the Icommence at the expiration of the imprisonment to ^"sa second ivhich such person shall have been previously sen- sentence, to h ^ -f t I T11111 commence af- pced; and where such person shall be already ter the expi- nuder sentence of imprisonment, the court may j^gt^*^ °^ *^® bward 5uch sentence for the subsequent offence, to pominence at the expiration of the imprisonment to ifbich such persons shall have been previously sen- lonced, although the aggregate term of imprisonment aay exceed the term for which such punishment [could be otherwise awarded. 31. And whereas it is expedient to abolish thePuishment kisliment of the pillory; Be it therefore enacted, °JJ5^fi°''y mi from and after the commencement of this Act, judgment shall not be given and awarded against any |t*rson or persons convicted of any offence, that such «rsou or persons do stand in or upon the pillory, iy law, statute or usage to the contrary notwith- (a) See post, title *'punisbmeut." ill V J ) ■: fi 'i. ^ ■ { 834 CftlMINAL LAW. standing : Provided that notliing herein contained shall extend or be construed to extend in any manner to change, alter or afi'ect any punishment whatever which may now be by law inflicted in respect of any offence, excepting only the punishment of the pillory. 32. From and after the commencement of this No report to Act, it shall uot be necessary that any report should thoGovernor ^^ made to the Governor, Lieutenant (xovernor or oftbo case of Person administering the Government, in the case of couvict! any prisoner convicted before any court and now under sentence of death, or who may be hereafter convicted before any court and sentenced to the like punishment, previously to su*h sentence being car- ried into execution ; any law, usage, or custom to the contrary notwithstanding. 33. Whenever any offender shall hereafter be con- The courts victed before any court of criminal judicature, of any ^m pixH ^ crime for which such offender shall be liable to the ^"d'mento P^^^^^shment of death, and the court shall be of persons con- Opinion that, under the particular circumstances of crimes "liable *^^ ^^^® ^^^^ oflender is a fit and proper subject to to the pun- be recommcndcd for the royal mercy, it shall and death rand ^ay be lawful for such court, if it shall think fit so sam'^to'be *^ ' *^ direct the proper officer, then being present entered of in the court, to require and ask, (whereupon such officer shall require and ask) whether such offender hath or knoweth anything to say why judgment of death should not be recorded against such offender, and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judg- ment; the court shall and may, and is hereby authorized to abstain from pronouncing judgment of death upon such offender, and instead of pronouncing such judgment to order the same to be entered of record, and thereupon such proper officer as aforesaid shall and may and is hereby authorized to enter jndgment of death on record against such offender in the usual and accustomed form, and in such and the same manner as now used, and as if judgment of record. CEIMINAL LAW. 335 death had actually been pronounced in open court aotiinst such oiFender by the court. 34. A record of every such judgment so entered, pueh record as aforesaid, shall have the like effect to all intents, to have tho and be followed by all the same consequences as if ^f pronoim^ such judgment had actually been pronounced in open ^^ court. 25. Whenever any offender shall hereafter bec^urttodi- convictcd before any court of criminal judicature, of r^t execu- any offence for which such offender shall be liable to tain m^^ and shall receive sentence of death, and the court shall be of opinion that, under the circumstances of the case, the judgment of the law ought to be carried into effect, it shall be lawful for the said court, and such court is hereby required, to order and direct execution to be done on such offender in the same manner as any court is empowered to order and direct execution by the law as it stood before the passing of this Act. 30. Nothing in this Act contained shall effect Her E Xt"* Majesty's royal prerogative of mercy. Prerogative. 42. In any indictment of information for any in indict- felony'or misdemeanor, wherein it shall be requisite ^^p*^^°^°^' to state the ownership of any property whatsoever, mitted on whether real or personal, which shall belong to or be of pa^tXs/ in the possession of more than one person, whether }* ™?y ^ Bucn persons be partners m trade, joint tenants, one partner parceners or tenents in common, it shall be sufficient and^otberg. to name one of such persons, and to state such pro- perty to belong to the person so named and another or others, as the case may be ; and whenever in any indictment or information for any felony or misde- meanor, it shall be necessary to mention for any purpose whatsoever, any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them in the manner aforesaid ; and this provision shall be construed to extend to all joint- stock companies and trustees, (a) (fl) If tlie property be laid in " A. B. and others," and '6U CRIMINAL LAW. ■V^ ■ ,■ 1 i^ i" III Indict- 4y_ iji jjjiy indictment or information for anv lueuts for fo- „ , . •', • , , i • , i lonios, &c., lelony or misdeauicanor committed in, upon, or Avitli rhurl'hos*^" respect to any church, chapel or place of religious biiajsw, or worship, or to any bridge, court, court-house, kuoI, public build- 1 ^'n .'-^ '"•/ ,. '• « ' b "') in),'.s, propiT- house or correction, penitentiary, innrmary, asylum, IwHtah-dus ^^ other public building, cr any canal, lock, drain or buin;,' ia any sewer crcctcd or maintained in whole or in part at the pwsou. expense of the Province, or of nny division or sub- division thereof, or on or with respect to any mate- rials, goods, or chattels, whatsoever, provided for or at the expense of the Province, or of any divison or sub-division thereof, to be used for making, altering or repairing any bridge or highway, or any court or other such building, canal, lock, drain, or sewer as aforesaid, or to be used in or with any such court or other building, canal, lock, drain, or sewer, it shall not be necessary to state such church, chapel, or place of religious worship, or such bridge, court, court-house, gaol, house of correction, Penitentiary, infirmary, asylum, or other building, or such canal, lock, drain, or sewer, or any such materials, goods, or chattels to be the property of any person. 44. In any indictment or information for any turnpike ^^ fclony 01 misdemeanor, committed on or with respect trustees may to any housc, building, gate, machine, lamp, board, faoistees'&c.'' stone, post, fence or other thing erected or provided, ' in pursuance of any Act in force in this Province, for making any turnpike road, or of any conveniences or appurtenances thereunto respectively belonging, or any materials, tools or implements provided for making, altering, or repairing any such road, it shall be sufficient to state any such property to belong to the trustees or commissioners of such road, and it shall not be necessary to specify the names of any such trustees or commissioners. 45. No indictment or information shall be abated A.B. be proved to be in partnership witli one other only, defendent must bo acquitted. Archb. Crim. Law, 30. CRIMINAL LAW. 337 nnation for any 111, upon, or with lace of religious Durt-housc, gaol, itinnary, asylum, !il, lock, drain or or in part at the division or sub- set to any mate- provided for or f any divison or making, altering or any court or lin, or sewer as ij such court or r sewer, it shall arch, chapel, or bridge, court, 1, Penitentiary, , or such canal, aterials, goods, ierson. nation for any or with respect , lamp, board, ed or provided, this Province, y conveniences ely belonging, 3 provided for h road, it shall f to belong to h. road, and it ! names of any ihall be abated one other only, I. Law, 30. )V reason of any dilatory ploa of iinsnotncr, or of iTidictm.Mits want 01 addition, or ot wrong auuitiou oi any party bv diiainry (tiering such pica, if thu court shall be satisfied, by Jl'^^j^^,'',! '^[.^ atluliivit or otherwiso, of the truth of such plea ; l)ut in such case the court sliall forthwith cause the iiulictnient or inroriuation to be aujciidod according ) the truth, and shall call upon such party to plead thei'cto, and shall proceed as it' no such dilatory plea Iiad boon pleaded. 40. No judgment upon any indictment >u- infor-pJi|',"|'j'^'^^[^' '" iiiiition for any felony ur niisdcnieanor, whether after vjiiiituimin- venlict or outlawry, or by confessiun, default or J,f^!"'f(I,^(ij(f otherwise, shall be stayed or reversed for want of the '"' othuiwisi^. avonnent of any matter uunece.-'sary to be proved, nor for the omission of the words, '' as appears by the record," or of the words, "with force and arms," or (if the Avords, " against the peace," nor for the inser- tion of the words " against the form of the Statute," instead of the words, '* against the form of the Stat- utes" or rice rcrsia, nor for that any person or per- sons mentioned in the indictment or information is or are designated by a name of office or other (Icscriptlve appellation, instead of his, her or their l)Vi)|icr name or names, nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offoiico to have been committed on a day subscijuent to the finding of the indictment, or exhibiting the information, or on an impossible day, or on a day that never happened, nor f(jr a w^ant of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence. 47. No judgment after verdict upon any iiulict- ^jli* ^"u-ts itient or information for any I'elunv or misdemeanor, s'-!^''' ""t ^5liail be stayed or roversod lor want oi a .sy^i/Z/itv, vprk-jiuis- nor by reason that the juiy process has been awarded "'^^11* x'^'®'' to a wrong officer upon an insufficient suggestion, Q r 1 1 ■ • ■ i' ! 838 CllIMINAL LAW. Mi m %■ nor for any iniyiioiiior or misdoHcription of tho ofilcor n'turnlnu' such jjiot'css, or of jiiiy nf tho juiors itor 1) (I U] th oucauso any pcixtn has so lias not l)0(Mi rcturniMl as a juntr hy tlio sheriff' or other oUicor; and that \vh(Mc tho oflbnco tharirod shall l)(! an ofronco thcrctolnii! ( viitod hy any t .'utulc, or suhjoctt'd to a ^roator dc'j^rtH! of jmnishniont, or oxchidod iVoni tho honolit of < Icvniy, },y jmy statute, tho indictniont or information shall after verdict Ic held sullieient if it deseriho tho offeneo in tho words of tho stutiito oreatin;.-: tho olienoe, or prescrihinj;- llic ])unishniont, or oxeliidin;j: tho ofieinlor from tuo beiu'lit of doriry. 4S. AVhoro tho (}uoon',s Majesty, or tho tjovornor, Jiioutonant (lovornor, or Person adininisterini^ tlic ' frilMlroon.il- ^'''^^''^'*'""*^"^ ^^' *^^''=' l'»'r-"''''"K"''''".- '^ '^ . . , * ' * res 111 (•(•rliiiii iii-i to {H'oseinito oi* ^avc I'Vidcnco, or to answer lor lus.'siint t . I assault, or ill the other cases lionmiarter I:';,?'''.'.''!''' a coiMimji liccl « iilnaii :i 11(^1, h;is heeii i'oiiii(l in many iii.-l iiices |)r(i-JuiiM'''«<>i'J !scriimiiat (luctivo (if hardship to jd.rsons who have entered into such roc'();j;nizaiiees : JJe it enaeted, thatiii every case where any person bound hy recn.unizancc for his (iT her apjiearanee, ('or for whose apjieaianee any other person sliall be so bound) to jiroseeute or lajt i ,'s Superior Courts of Ixeeoid in this I'rovince, before om^ of the justices of those courts, rcspoetively, or if at a session of the petico, before two of the justices of the peace, who sliall h;ve attended such courts, Avho are respective!}- ;r.itliori.-jed and rcjuired to examine such list, and to iMidce such order touchiiiu' the cslrc^atinp; or j»uttin,t; in process a.ny sucli reco;i,nl.:;ince as shall appear to thci!i, respectively, to be ju;:t ; and it shall not bo l-^wful for the ofncer of any court to estreat or put in. nrocc--! any such recou'iiizanco without tho v.'i'lttcn 340 (UfMINAL LAW. W I- ]i,'', I , (n'(kn' «)(' llii> justice, or justices of the pojuc bc:fiiio wiiDiii ri'spcctively such list sli.iU l»:ivo bccu laid. Rill • for tiio '^'"' \\ h'^''^-"*'^'i' i'l ^I'i-"^ '^t't or in any other Act li)i.'i|.ti.i.i- rolati'ii;' t') any olVeiicc, whether jtuiiishablc u[)iiii ftiij n'l'i ,.,.'i,^,. iiiilictniciit or suuiinary couviction, in (h'scrihin^' (»i" liiiil Acts. i^'Ci'i'iin;.; to the ollcncc or tlu! subject matter on or uitii res])(jct to ^vhich it shall bo committed, or the oH'tMider or the party afVected or intended to bo alFect(;d by tlic otlence, any 'ord or words liave been or shall be used or emitloyed importing' tlio siiifiular niunber or the masculino irender only, every nich act shall bo understood to include several inattevs of the same kind, as well as one matter, and several persons as well as one jierson, and females as well as males, and bt»dies corporate as well as individuals, I unless it be otherwise specially provided, or there bo sonicthiu!;' in the subject or ct)ntext repuli:ill 1)0 icuiovod to tlio .'•tiid j'loviiiciid l*oiiit( iitiaiy f'oilh\\ itli, or }k! (Ii'faiiiod in custody in any other [irison or iilaco of conlliifniont, j)reviou.«ly to such rcniovid. 12 Vic. Ciiap. -1, Six*. 2. — And uhorcas a hili-H,.(.it„i. nrc (d'juslici! rrc((uently takes place in crinunal trials, hy reason of variances ))et\vocn writin<;s pi-oduced in evidence, and tlic recital or settinj;' foilh thereof in the indictment or ini'orniation, and llie san;e cannot now b(! amended at the trial except in cases of nds- demcanor; for remedy tlic'\of, J)e it enacted, that it i"'"''*"'^''^' shall and may bo hnvlul, tor any Lourt ol (^ueen s anKHKi. '.i i>y J'cnch, or otlier superior court of crinunal jinisdic-I,f,',',','.[ j;| .'nl,*^ tiun in JiOwer (Janadji, or of Oyer and Terminer and"* vmintKo (lencral Gaol Delivery in any part of this Province, wriUnl''i')i(H if such court sludl see fit so to do, to cause the in- 1','"',"' "!','' , dietnient or niiormation lor any oilonec Vviiatevcr, when any variance or variances shall appear between any matter, in writing; or in print, produced in evi- dence, and the recital or setting fortli thereof in the indictment or information whereon the trial is pending to bo forthwith amended in such particular or par- ticulars, by some ollicer of the court, and after such auiLtianu.'ut. aniendmcnt, the trial shall proceed in the same man- ner in all respects, both witli regard to the liability of witnesses to be indicted for perjury, and otherwise, as if no such variance or variances had appeared, ((t) {(t) A count for roecivinf!; stolen goods allcno., and inserting the name of the prisoner ; Held, by tiie Coiirt of Criminal Appeal, that tlio count was bae, ofoiTof Iho ^'^'^^^''--*^'^' '^^' jiiJ^tices of the peace, before v.'honi the ca.se sliall liavc been tried, may, in his or their dis- cretion, reserve any question c^f k\w \vhich tliall have arisen on the trial, for the consideration of the justices of cither of her Majesty's Superior Courts of Com- mon Law, and thereupon shall have authoi'ity to respite execution of the judgment on such conviction, or postpone the judgment until such (jucstion shall have been considered and decided, as he or they may think fit, and in either case the court in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail with one or two sufficient sureties, and in such sum as the court shall think (it, conditioned to appear at such time or times as the court shall direct and receive judgment, or to render himself in execution, as the case may be. 2. The judge, recorder, or Court of Quarter Sessions, shall thereupon state, in a case to be signed by such judge, recorder or the chairman of such court, the such supc- question or questions of law which shall have been nor Court. '■ i ^ •,! ,i -• i • so reserved, witli the special circumstances upon which the same shall have arisen; and such case shall be transmitted, by such judge, recorder, or Court of Quarter Sessions to one or other of the said Superior Courts on or before the last day of the first week of the term of such Superior Court next after the tinic when such trial shall have been had, and the justices of either of the said Superior Courts shall thercupnn jiui,i;osof have full power and authority to hear and fnally deternune the said questions, and thereupon to re- verse, affirm or amend any judgment Avhich Fh;ill have been given on the indictment or iiHjuis'tion on the trial whereof such question or questions have arisen, or to avoid such judgment, tind to order an entry to be made on the record, that in the judgment Caso to bo .stated and certified to KUi'h Supe- rior Court, i«:i' CRIMINAL LAW III' till) said justices the party coiivictcl ou^'lit not to hivc boon convietod, or to arrest tlio jud<:;aicnt. or order judgment to bo given thcre)n ;it some other session of Oyer and Terminer or ( iaol JJelivery, or other f-cisions of the peace, if no judgment shall have boo:i before that time given, as they shall be advised, or to make such other order as justice may require; and such judgment and order, if any, of the said jus- tices, shall bo certified under the hand of the Chief Justice or senior judge of such court, to the clerk of assize, or to the clerk of the peace, ov recorder's 'J"*'^'|"|^,"*,*^ clerk, as tiio case may be, ^yho shall enter the same to tin- c:tlccs of the said Superior Courts, Cafe may be Nvliou a casc lias beoii reserved for their opinion, ^ml^namcnt!^ '''^i^'^l ^^'^^0 powor, if tlioj tliiulc iit, to cause the case or certilicato to be sent back for aniendnicut, and thereupon the same shall be amended accordiiitily, and judgment shall be delivered after it shall have been amended. 5. AVhenever any writ of error shall be broujiht upon any judgment, on ;iny indictment, information, ai'uuitct prcL^entment or inquisition, in any criminal case, and '^'''"''' the Court of iOrror shall reverse the judgment, it shall be competent for *:ucli Court of Error either to pro- nounce the ]»roper judgment, or to remit the record to the court below, in order that such court may pro- nounce the proper judj,ment upon such indictmont, Exteat of iufnunation, presentment or iiujuisition. Act. I 7. This Act shall bo in force only in Upper Canada. KCIIEDULK. Whereas at the session of tlie peace for the county (or united counties or city) of , held on , before and others, their fellows, [or at the ses- sion of Oyer and Terminer and Gaol Delivery, hold for the county (o/- united counties) of on before the llonourable , one of the justices of the Court of , and others, his fellows, justices of Oyer and Terminer and (»aol Delivery] A. 13., late of , luiving been lound guilty of felony and judgment thereon given; that (sfafe the siihs/aiicc) the court \efore whom lie was tried reserved a cer- tain question of law for the consideration of tlio jus- tices of one o\' the Superior Courts of C(»mmon Liwy, and execution was thereupon respited in the mean- CiUMINAlj LAW. 845 Kxaminar liiuc: tills is t) certify that tlic justices of tho Court of Queen's Ijcuch (o;- (Juiiimon ricas; havirig nict at Toronto, in Term (m- the sittings after term) it was considered, by the said justices there, that the judgment aforesaid should be annulled, and an entry made on the record that the said A. 13. ought not, in the judgment of the said justices, to have been con- victed of the felony aforesaid, and you are therefore licrcby required forthwith to discharge the said A. li. from your custody. Signed E. F., Clerk of the Peace for the, &c. or " llecorder's Clerk of the city of &c. or " Clerk of Assize of &c. («s the case niay be.) To the sheriff of and the ~) gaoler of and all others v , whom it may concern. j IG Vic. Chap. 179. (a) — 9. In all cases where t»on and"do. 1 11 il 1- i-i I- i» • position of any person shall appear or be brought betore any jus- witnesses iu tice or justices of the peace charged with any indict- of thelccu^^ able offence, whether committed in this Province, or ed. upon the high seas, or on land beyond the sea, or whether such person appear voluntarily, upon sum- mons, or have been apprehended with or without war- rant, or be in custody 'or the same or any other offence, such justice or justices, before he or they shall com- mit such accused person to prison for trial, or before he or thi - shall admit him to bail, shall, in the pre- sence of > ch accused person, who shall be at liberty to put ([uc ions to any witness produced against him, (a) This Act relates to tho duties of justices of the peace out of sessions as to persons accused of indictable offences, and annexed to it is a schedule of forms to be used. It be- longs, however, more to a work compiled for the use of magistrates than to one of this description, and the compiler Las, therefore, only extracted those portions which are more immediately connected with the administration of justice in courts of criminal jurisdiction. By the last section, this Act camo into force from and after the 1st July, 1853. q2 346 CRIMINAL LAW. i; i r : ' I take the statement on oath or affirmation of those "who shall know the i'ucts and circumstances of the case, and shall put the same in ^Yriting; and such deposi- tions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking miuiskr the the Same, and the justice or justices before whom any or afflma^ sucli witness shall appear to be examined as afore- tion. said, shall, before such \yitness is examined, adminis- ter to such witness the usual oath or affirmation which such justice or justices shall have full power Deposition of and authority to do; and if upon the trial of the may*'hav'^''° pe^'son SO accuscd, as tirst aforesaid, it shall be proved, died, or who upou the oath or affirmation of any credible witness, aWetoa"" that any person, whose deposition shall have been ia'cerS?^' ^^^^^ ^^ aforesaid, is dead, or is so ill as not to be cases be road able to travel, and if also it be proved that such depo- at the trial, ^[^[qj^ yf^^ taken in the presence of the person so accused, and that he, or his counsel or attorney, had a full opportunity of cross-examining the witness, then, if such deposition purports to be signed by the justice by or belbre whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice pur- porting to sign the same. y^^ 10. After the examination of all the witnesses on inatbn is the part of the prosecution, as aforesaid, shall have depTsUious ^®^" completed, the justice of the peaje, or one of must be read the justiccs, by or before whom such examination accusedraud s^^^^ havo been so completed as aforesaid, shall, m nt**!!*^ without requiring the attendance of the witnesses, may then read, or causc to be read, to the accused, the dcposi- t^'teVaklTn '^^ *^o"^ taken against him, and shall say to him these down, he be- words, or words to the like effect: — "Having heard tioned^ &c^ the evidence, do you wish to say anything in answer to the charge ; you are not obliged to say anything unless you desire to do so, but whatever you say will '\^ ' i CRIMINAL LAW. 347 bo taken down in writing, and inny be given in evidence against you on your trial." And whatever tlie prisoner shall then say in answer thereto ^hall be taken down in writing, and read over to him, and shall be signed by the said justice or justices and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned, and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evidence against him, without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same : Pro- vided always, that the said justice or justices, before whom such accused person shall make any statement, shall state to him, and give him clearly to understand, that he has nothing to hope from any promise of favor, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of Iris guilt, but that whatever he shall then say may be given in evidence against him on his trial, notwithstanding such promise or threat : Provided nevertheless that nothing herein contained or enacted shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged made at any time which by law would be admissable as evidence against such person. 12. It shall be lawful for any such justice or justices, before whom any such witness shall be examined, as aforesaid, to bind by recognizance the prosecutor, and every such witness, to appear at the next court of competent criminal jurisdiction at which the accused is to be tried, then and there to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be, against the party accused, which said recognizance shall particularly specify the pro- fession, art, mystery or trade of every such person entering into or acknowledging the same, together I.rpnl cfTect cf Lis unE- wers. Proviso: he is to 1)0 cau- lior.cd ou certain points. I'roTiso : Certain statements made by the accused may be iif ed against him. Justices may bind over the prosecutor and witnes- ses to prose- cute and give evidence. w\ Ui I I i .', i ■ i >i i I! -i I 348 Rocogni- zniico, depo- eitiona, &c.., to 1)0 trans- mitted to the proper officer of the court in which the trial is to bo had. ■Witnesses re- fusiu Hi II seSBors or tion, or copy oi any assessors or collectors roll, or collectors shall wilfully and fraudulently insert the name of any f^^^^J^Y person who should not have been entered in such nssessmcnt, roll, or omit the name of any person who should have *"' been entered in such roll according to the true intent and meaning of this Act, or shall wilfully omit any duty required of him by this Act, he shall be guilty of a misdemeanor J and upon conviction thereof before any court of competent jurisdiction, he shall be liable to a fine not exceeding fifty pounds, (and to imprisonment until the fine shall be paid) or to imprisonment in the common gaol of the county or city for a period not exceeding six calendar months, or to both, in the discretion of the court, whose duty it shall be to pass the sentence of the law on such Evidence of offender, and proof to the satisfaction of the jury, such fraud. that any real property was assessed by such assessor at an actual or yearly value, greater or less than its actual or yearly value, by thirty per centum thereof, shall be prima facie evidence that such assessment wbs fraudulent and unjust, and the assessor convicted of having made any fraudulent and unjust assessment, shall be sentenced to the greatest punish- ment, both of fine and imprisonment, allowed by this Act. 352 ClllMlNAL LAW. i '•'jiiU • lui; ii: % hanking, de- clared illo'^al. BANKS. Uiidortak- SuJeol'*" 7 AViLL. IV. CiiAP. 13, 8£C. 1.— Aitor the pass. Lank bill or ing of tliis Act, (cxccpt in the cases licreinafter tmided'to " mentioned,) it shiill not be lawful for any person in ne'"'i>w'"^ this Provinec, or for any number of persons, either by porsms associiitccl without Icgisltvtivc authority or incovpo- datwj wuh- i''ited for any other purpose than banking, to maiic or outLof?i8iR- issue any bill, note, or undertakina; of any dcscrip- ty7orTuror- tion, or ill any form, in the nature of a bank bill or ^""**"i*"' note, and intended to pass as money; and that if purpose than any bill, uoto or undertaking, shall be issued or put in civ' Illation contrary to this Act, sneh bill, note or undc iking, shall be void; and any mortgage, or other deed, bond, note, bill or other security, which may be taken for securing any loan or advance made in such bills, notes or undertakings, shall be abso- lutely null and void. Person act- 2. If any porson, after tlie passing of this Act, dent, direc- shall act ES president, director, cashier, or other or'^other offl- "^fficcr of any Associations of persons, acting in cerofanyas- violation of this Act, such pcrsou shall, on convic- in^'ln viola- tioH thereof bcforc any court of Oyer and Terminer, Ac" to be*'^ ^^ General Gaol Delivery, be deemed guilty of a deemed misdemeanor. doSo?'" 3- If a"y person, after the first day of July next after the passing of this Act, shall knowingly utter, or tender in payment or in exchange, any bill or note in the nature of a bank note, which shall not have been issued by some person ur association of persons, or body corporate, legally authorized to issue such bill or note within this Province, or within the county in which such note or bill shall have first issued, such person shall be deemed guilty of misdemeanor, and liable to be punished as before provided for other persons offending against the pro- visions of this Act. 4. This Act not to extend to the Bank of British North America, the Farmers Joint Stock Banking M CIllMINAIi LAW. 853 security, which V advance made shall be abso* y of July next lowingly utter, :e, any bill or hich shall not association of authorized to Provijice, or or bill shall deemed pjuilty shed as before gainst the pro- ink of British tock Bankins: ('iiiiiiiariy, the .V,i;ncultar;il l>iiiik, the Bank of the |\'!>]ilo, «ir the Nia}j,!im Suspoii.^iun Bri(];:c B:;iik. i; ^'f(^ CiiAi'. L'(). — .!// Art to >.r/(:ii(i f/ic Chart' r I f fin: ('oiiniif n-iti/ JJdii/,- nf tin- Midlainl .hliitrnf, uiiil to I'lic'-cd^f its cdpitir/ afock, (^(/) l[' any cashier, iiiatjiijicr, clerk, or servant of Offiri'M (if I'lzzlliif;! illn ice. tliij said corj)urati(jn shall secrete, onilic/.zlc or abscond (i.t'imik \vitli, any bond, obligation, bill obli<:atory, or ol ( ivdit, or other bill, or note, or with any security I'.ir nionoy or moneys, or eftccts entrusted to him as such cashier, manager, clerk or servant, wliethcr the 'uiiio bclonj^' to the said corporation, or belonginfi; to ly otlier person or persons, ondy ( b' liod les, )liti( cDrporate, or institution or institutions, hv. ]i)dj2;ed ;ind deposited with the said corporation, the cashier, uiaiiuLvr, clerk or servant so olfending, and bein^ tliercof convicted, in due I'orin of law, :-hall be (lociiii'd uuilty of felony. (I Vic. Cfiap. 27. — Aji a 't to extend the Charter 'if llie Bank of lj>j)cr ('(Uiada, and to lucrca&v the iiijiital Kfock thereof. r.lDiffers oidy from r52 of Yic. Chnp. 20, in liavinu' the word '' oilicer" precede the word '• CMKhier" whenever the latter occurs. CE3IETEKIES. V?> k 14 Vic. CuAP. 7G. — An Act to authorise tiir forniafion of Cuvijxniics for the estahh'shment and liKnuKjement of Cemeteries In Upper Canada. 9. Any person who shall Avilfully destroy, mutilate, p,T!r„is(ie? deface, iiiiure or remove any tomb, monument, univc *\"''""' t™ stone, or ether structure piaced m any cemetery, or niiyiluee, rjulinu' or olhcr work for the protection or '•niament of any cemetery, or of any t(.(m]), monu- lacut, grave stone, oj' other structure aforesaid, or of inb- (/) Tjiis is ill lorco until Ist .June, IbCli. mm v\ U '^ kl I. !■ s \-', \: 51, 354 CIIIMJNAL LAW. iiny eiMucbvy !"t wltliin any coMictory, or .sls.-ill wii. I'ully (li'sh'oy, «.nit, brciik m' injure any tree, hIivuIj or pl.uit within tho limits of any ceniott'iy, or ]i!av iit any uanio or Kpoit, (U- di.scharuo iircarnin (savo fit ;i military i'nncral) in any s^ncli (■cmctcry, or wIid shall will'iiUy and unlawi'ully disturb any pi-rsons a.-seiii- ])1l'J ibr llio purpose ot'buryini;;' any body theri'in, or who shall conimil any nuisanco in any such (•oiuctcrv, whall b'.; dconiod uuilty of a misdemeanor, and slniil. upon I'onvii'tiou theioof, l)o[bio any justietj ol' tho pcaco, or other court (if compotout jurisdiction, be punisluul by a lino of not less than ono pound, iiur more than ten jmnnds, accordin;^ to ilic. nature of tlii' otVence, and such (dlendcr shall also bo liable to liii action of trespass to be brought aiiainst him in any court of coni))ctent jurisdiction, in tho name of niiy such corporation aforesaid, to pay all damages which shall have been occasioned by his unlawful act (ir acts, which money, wdien recoN'cred, shall be applieil, luider the dire;;tion of the director.';, far the repani- tion rrnd reconstruction of the property destroyed; and members of any such company may bo competent witnesses in such suits. ('ii:ill williuly (lisobi'V or coiitnivont! v.wy or tiio ])i'ov]-rfi.!.>:s".)i',i- qoiis of thi.s Act, or wilfully uiako tniy i;il.-o (lochua- J'",''!r,i"y,r|,''"" timi or roturii under the sanu;, ho shall be jiuiltv of a '•<"'<"'^'"- iiii,<(liM!ieanor, anu shall, on conviction tliercot, he lialile to a penalty not cxcceilini: twenty-five pounds, imr loss than live pounds, in the discretion of tlui coiut Itefm-e whom the conviction shall he had, and to iia))ris!(nm(!nt until such penalty he paid, and smdi pi'iKilty shill beloiif^' to tlio crown for tlu public Uic.s ut'tlie Province. CIIAWTABLi': ASSOCIATIONS. l.'JctltVio. Chap. 32.— J// Ad fi>r Incorpo- rntinij certain Choritabic, Phllanlhropic and Pro- fiiknt AsHoriati'ons, and for thc.eJfccliKd, j't'otrciiau fi'om fraud and mtsapproj^riation (f the fouls (f the iiumc. 5. If any officer, secretary, treasurer, trustee or J'y"'^'jp|j|"'^yj meiubcr of any society constituted in accordance inciniiiTs with this Act, shall obtain undue possession of, Hus-funj"f^''i'c5 appropriate, embezzle or withlxold from the other members, officers or other persons entitled to demand aiul receive the same, the wdiole or any portion of tlic funds, monies or other property of such society, nnd'shall continue to withhold such property gftcr duo dcuiaud sh;dl have been made for the restoration and payuicut of the samo by sonic one or more of the iii'jiiil)ors or offii'crs duly appointed by and on behalf oflli,' said body or society, every such olTendcr shall 1)0 fi'uilty of a raisdemcanor, and beinj^' convicted thereof, shall be liable, at the discretion of the court. 85G CFvlMlNAJj LAW. 1 1 'Wlml siuvll b.) I'viiloiK'u ill iir.icewl- tlu! ussoina- tioii. to be imprisoned at hard labour in the I'roYiiiciuil ]*euitenti;iry ibr an}' term not exeeedinL' throe ycar,« I or iiiiprisoned in any other })rison lu- place of ecu. iineuient for jiny term not exeeediiiji" two years, ortoi .sulfer such other punij-luuent by tine or imprison- ment or by both, as the eoiirt shall award 6. In any jiroceedings to be hereafter couniionccd or taken under the provisions of this* Aet, in imjl before any eourt of civil or criminal juri^^diction inc's'n.rdiiHt against any treasure!', trustee, secretary, ofliccr or ml'mN-iTnf "ther member of such herein recited •charitable jiiuli benevolent society, or provident association, fur obtaininsi; undue possession of, or withlioldinp;, embezzlini;- or misappropriating the whole or any I portion of the funds, monies or other property of such charitable and benevolent society, or provident association, it shall and may be lawtul to receive iu evidence the piinted or written rules of such society, body or association, for the time being in force, ami the appointment of any officer, secretary, treasurer, trustee or enrolment of any member, certified under the hand of the presiding officer for the time being, and the seal of tl e said society, and the books, minutes and other documents of such association, relative to the matter then in question. COINS AXD CURRENCY. Piinishmont ^"^ ^^^^- f'liAP. -0, ^v.c. 1. — If any person sliall nf|icr.so;is falsely nuike or counterfeit, or cause to be made or inn- fiuTout counte'-feited, any coin rosendjling or apparently ir- '^'^'"- tended lO resemble, or pass for any of the QuoenV current a'old or silver coin, made or declared to 1)0 lawfully current in this I'rovince, such ])ersoii shall bo guilty (jf a misdemeanor, and. on being duly con- victed tliereof, shall be liable to bo imprisoned and ihvto.Tuncu. ^*-^P^ at liard labour in the IVovinclal J'enitcntiary for not more than four years, and if such person sliall afterwards olfend in like manner, he or she shall, ibr certified under CRIMINAL LAW. sue!', .second, ov for any subsequent oiTeneo, be deemed 'guilty ul' I'eluiiy, and un beinji; thereof duly convicted, sl;;ill bo liable to punishnieut as in cases of felony Z. On the trial of any person accused of any oircnce alleged to have been committed against the t'.irm of the Act (4 & 5 Vic. ch. 'Jo) (a) or against llio provisions of this Act, no difFerence in the date nr vcar marked upon tlie lawfully current coin des- cribed in the indictment, and the date or year marked ii|Miii the ialsc coin counterfeited to reseudjlc or pass till' such lawfully current coin, or upon any die, plate, jiR'ss, t'jul or instrument used, constructed, devised, liijiipted or designed for the purpose of counterfeiting ill' imitating any such lawfully current coin, shall be considered a just or lawful cause or reason for ac(juit- tiiig any such person of such offence or accusation. 1(1 Yic. Chap. 158, Sec. 1, repeals 4 & 5 Vic. (Ii. !):]; ];} k 14 Vic. ch. U j 14 k 15 Vie., chapters 1" uad 4S, from the time this Act comes into iorce : I'l'ovidcd, that all Acts, or parts of Acts, and provi- sions of law repealed by any of the said Acts, shall iviaain repealed; and that all offences against any or tllortiie said Acts, committed before this Act shall coaic into force, may be trijd, punished and otherwise iloiilt with, as if this Act had not been passed. ~. The denominations of money in tln^ currency of this IVovince shall be pounds, dollars, shillings, pence, cents and mills, the pound, shilling; and penny sludl !i:ivo respectively the same proportionate values as they IK iw have; the dollar shall be one-fourth of a ]H)und, tiie cent shall be one~hundreth part of a dollar, j iiiid the mill one-tenth of a cent; and in any statement as to money or money value in any agreement, in- (lictinciit or legtd proceeding, the same may ))e men- tiv'iied ;.nd described in pounds, shillings ;iiid pence, Hi" in (lollai's, cents and njills, or in any or either of i-ucli denominations as may be considered expedient. (a) llepealod by 10 Vic. ch. 158. 357 Scronel or Hiilistqueiit oflouci'. DilTcienco of cl.ltfliL'UvCOU the forircd coin. die. kv. iiutl triK! coin not to Iju II tiioiiiul of acquittal. C'ertiiiii Acts rojioalcd. Provif ' . Lcpililonom iniitioii.s of current r'Oiioj-, 858 CHIMIN A]- LAW. i; ■ii i !l )^ Pound stor- ling. Proviso : n-< to iiirltish sovereign of lawful *\vei;iht shall p; current and bo a leu'ul tender for that sum, and t r.iitivili; sovereign. Public IV- 0. The public ac( ourits of this Province shall 1 kept in"sm*J^cp*^ ^'^ such of the dcuonunatiuiis of current ni(ia« ('.(Mioinin.a- of the Province horeinbetbre mentioned iis her Majes jiHli'csty ' shall from time to time direct, but all sums of nioii^ Bhii'.i tii^M't. .,nj accounts may be legally mentioned, dcscrib and stated in anv of the said denoiiiin-itions. 10. The copper coins of the IJnitod Kingdom slw s while lawfully current therein, pass current and be legal tender in this Province to tho amount of o shilling currency, Jind no more, in any one payinoi at the ibllowing rate-, that is to say: the cupi penny i',»r two cents, and the copper halfpenny i one cent, and any other subdivisions of the s;iid cc per penny for proportionate sum;.. Pi'(»vided idwaj that any Ci-t]>per coins al' lil.'o weights with tlu Coppor p'j of UhiKd Kingili'iii, LAW. II be licld to bo equal to four-pcuco, or fuiir dul- tliirds oi'a cent currcncv lawl'uHveiglit sluill p;i!« r for tliat .sum, and the xl Kingdoiu shall, whijo t and be a legal tcndci' iccording to the propor- i;^ value. all afibft the meaning- to I'liuu'," "stciling niuiicy ivords of liK'c import, in 'rovinco, or in any part Act (4 k 5 \iv. cliiip. y contract or aiiivemeiit y such lav,', contract or [ accordinp: to the inten- E" the parties vho made contract or a;:;recnient the said Act came into lii.s Act shall come into li be understood to have assigned to the ]>riti,>«h [' this Province shall bo ations of current money uentioned its her 3J;ije.sty t, but all sums of money y mentioned, described denominations. L'nitod Kingdom sh;!ll, n, pass current and be ;; 3 to the amount of one re, ill any one payment, is to s.iy : the cupper le copper halfpenny iv\' ivisions (»f the sai(l cop- uinifi; Pntvided sdvvays, ib'ii v.'oights with tlioi't' CRI.MIXAL L\\\. 350 ProviRo: her >lii!(\- ty ni.'iy . oiiior otl'ei' aforesaid respectively v.hich her ^Majesty may direct t(i bi! struck for the pui'pose, shall p)ass cuneiit an lieal.'gal tendc^r in this Province at tlic like lates ;';;\';;';;;;^;!;'; and to the like amount in any (uic payment, and that if such copper coins be struck, her Majesty nuiy, if .die sec ft, declare by pnjclanuitiiiu that the ccpper coins of the I'nited Kingdom shall not bo havful .lunev of this Province afi er a day to be ajipo intcd ; ; ludi proclamatif^u. 11. 1 he gold eaglo of the l.'^nited >^- talcs of .\mc-i!;itc i-;i coined before the 1st July, ]8-"!4, and wcighin jii i)cnnyweights six grains Troy -wciglit, shall "i '>'• I'icaii f.'( III liC\ r.ll i:s.-; currcni aid jc a leual tender in this ] rovmcc p:u? f.ir ten dollars and sixty six cents and U\o thirds of I cent, or two pounds tiiirtecu slullings and llur- .cucc currency ; 1 j.ropov nid the half cade of like date and tionatc weight for one half the said sum ; and the gold eagle of the said United States, coined alter the (l;!y L.st mentioned, and before the Ist January, IS.").?, uv after the said da}', but while the standard iffiaciicis then fixed by the law of the said United d weiuhinu' ten ..1, lail remain unclianf'ei an State {■eimy weights eighteen grains Troy weight, shall pi;s,-; current and be a legal tender in this Province fur ten dollars or two jMjunds, ten i hillings currency; and the gold coins of the said United Str.tes, being i.iultiples or halves of the said eagle and of like date ; ud proportionate weight shall pass current and be a legal tender in this l^rovincc for proportionate sums. 12. licr 3I:ijesty may at any time declare by pro- tlaiii: tion, tlmt any or all of any other gidd coins of 0tate, shall ixiss current and be a IcQal tender in tiiis ''"''^','''^ ''-' ]'n)vince at rates in currency to be assigned to them t ) rnc!au:n- lon. 10; ctively in such jiroclamation, when t fthe weights tn Le also assiu'ned therein, sucli rates being p^ropor- iiiiiat te to the ijuantity of r-ure uold in such coins, rcck- GO CRIMINAL LAW ,,|V I' I i^v ii i i lii runislimcut |;}, It'tiuv povsoii slutll coloyi' or "ikl, or ca.se over couutL-r- with gold or silver, or with any wash or material;' (•(lUutuiTcit coiu. m-'utf'!'''!''" pi'oilueiiiti' the colour oF p;old or silver, any coiu oi' '" coarse giihl ov of coar^^e silver or of base metal resembling any coin made or declared to bo cin'ront by this Act, or shall make or cause to bo made, or shall buy, sell or procnrc, for himself or for anothor. or shall knowingly bi'ing or import, or cause to bo brought or imjxirled into this J'rovincc, any foruud, fidse or etmnterfeit gn, coining or have been concerned in making, counterfeiting or * imitating any such coin, as aforesaid, by warrant, under the hand of such justice of the peace, to cause the dwelling-house, room, workshop, out-house, or other building, yard, garden, ground, or other place belonging to such suspected person or persons, or where such suspected person or persons shall be suspected to carry on any such making, counterfeit- inp: or imitating, to be searched for any such coun- terfeit coin, and if any such coin, or any such die, press, tool or instrument, metal or material, as afore- said, shall be found in the possession or custody of any person or persons whomsoever, not having the same fur some lawful purpose, it shall and may be lawful to and for any person or persons discovering the same, to seize and he or they are hereby authorized ml required to seize and carry the same forthv/ith «*s— sa 362 CRIMINAL LAW * Is \W 1^ ■■.,'1 ,4-!: ; ■ w ! '■;i li ' Counterfoit coin tender- ed may bo broke ;, 4c. Counterfeit coin produo- ed in court to be brolcen, &c. Wilfully ten- dering light coin to be a misdemean- or. Evidence in cases of of- fences against tiiis Act. before a justice of the peace, having jurisdiction within the locality in which the same shall be seized, who shall cause the same to be secured and prcducod in evidence against any person or persons who shall or may be prosecuted for any such offence, as afuic- said, in any court of competent jurisdiction, and the same, after being so produced in evidence, shall, by order of the court, be defaced or destroyed, or other- wise disposed of, as the court shall direct. IG. Any person, to whom any pretended gold, silver or copper coin, shall be tendered in paymcul, whicli shall, by the stamp, impression, colour or weight thereof, afford reason to suspect that the same Ih false or counterfeit, may cut or break such coin, ami if the same shall be counterfeit, the person who ten- dered it shall bear the loss, otherwise the person who shall have cut or broken it shall receive it for a sum proportionate to its weight; and if any question shall arise whether such coin be counterfeit, it shall be determined by any justice of the peace, who, if he entertain any doubt in that behalf, may suiniuon three skilful persons, the decision of a majority ol' whom shall be final, 17. If any false or (-mrterfeit coin shall be pro- duced in any court of law, the court shall order the same to be cut in pieces in open court, or in the pre- sence of a justice of the peace, and then delivered to or for the lawful owner thereof, if any such lawful owner there be claiming the same. 18. Any person who shall knowingly utter, attempt to utter, or offer in payment as being lawfully current, any gold coin of less than its lawful weight, or shall diminish the weight of any such coin, with intent to utter or offer it in payment as lawfully current, shall be guilty of a misdemeanor, and, on being duly con- victed, shall be liable to be punished accordingly. 19. On any trial for any offence under this Act, it shall not bo necessary to call any officer of the mint, or other person employed in producing the lawful CRIMINAL LAW. b63 coin, in order to prove any counterfeit to be such, but the fact may be proved by any evidence which shall be satisfactory to the jury trying the case. Commence- 20. This Act to take eilect upon, from and after n»ent of Act. the day to be appointed by her JMajcsty by procla- mation, (a) COMMON SCHOOLS. 13 & 14: Vic. Chap. 4S, — 13. Every trustee of aromityfora couimon school who shall knowingly sign a f''li^f^[''l'*ft[vust(*e report, and every teacher of a common school who or false refiis- shall keep a false school register, or make a f';,]se*''''0''''e*"''"- return, with the view of obtaining a larger sum than the just proportion of school monies coming to such common school, shall, for each offence, forfeit to the common school fund of the township the sum of five pounds, and may be prosecuted before any such jus- tice of the peace, by any person whatever, and con- victed on the oath of any one credible witness other than the prosecutor, and if convicted, the said pen- alty shall, if not forthwith paid, be levied with costs by distress and sale of the goods and chattels of the otFender, under warrant of such justice, and paid nvci by him to the said common school fund, or the ^aid offender shall be liable to be tried and punished for the misdemeanor. Punishment 4G. Any person who shall wilfully disturb, inter- "!ppr^,'^ns nipt or disquiet the proceedings of any school meet- nuetjngR.&c iiig authorized to be held by this Act, or any school established and conducted under its authority, shall fur each offence forfeit for common school pui'i)oscs, to the school section, city, town or village, within the limits of which such offence shall have been com- mitted, a sum not exceeding five pounds, and may be prosecuted before any justice of the peace by any person whatever, and convicted on the oath of one (a) A proclamation brinjTinj]; this Act into force on tho 1st of August,, 1854, issued on the 4th of .luly, 1854. 364 CRIMIXATi LAW. ti I \y- '■ ,< * : 1 iS V credible witness other than the prosecutor, and, if convicted, the paid pcnEilty yliall, it' not forthwith paid, be levied with costs by distress and sale of the goods and chattels of the offender, under a warrant of such justice, and paid over by him to the school treasurer of such section, city, town or village, or the said oflendi^r shall be liable to be indicted and pun- ished fur the same as a misdemeanor. CllOWX TLAIBEll. Timhor 12 Yic. (,'iiAi'. CO. — S. AVlienevcr satisfactory ^"'j^l'y'].^",^*' information, (supported by the affidavit of one or cMtmaybu more pcrsous made before a justice of the peace, or sutndori't* before any other competent party, shall be received affidavit, Ac. ])y ti,(. Cumuiissioner of Crown Lands, or any other officer or agent of the ('rown Lands' Department, that any timber or quantity of timber has been cut without authority, on crown, clergy, school or other public lands, and describing where the said timber may be found, it shall and may be lawful for the said Commissioner, officer or agent, or any one of them, to seize or cause to be seized, in her Majesty's name, the timber so reported to be cut without authority, wherever it may be fnind wuthin the limits of this Province, and to secure and place the same under proper custody, until such time as a decision can be iuid in the matter froiii compcfeiit authority : Pro- Proviso: as vidcd always, that whei'o tno tiuiber, so reported to to 1 1 in nor so *» ' ' i cut and 7iii"x- have bccu cut without authority on the public lands o^hertirabcr. ^^'*'^'*^^^^^^' without liconso, lias becii made up with other timber into a crib, dram or raft, ox in any other manner has been so mixed up at the mills or elsewhere as to render it impossible or very difiicult to distin- guish the timber 'diall be deemed to have stolen such timber being the property of her Majesty, and to be guilty of felony, and liable to punishment accordingly; and that whenever any timber shall be seized for non-payment of duties, or proof that for any other cause of forfeiture, or any prosecution b^e^npairon shall be brought for any penalty or forfeiture under whom to Ue. this Act, and any ([ucstion shall arise whether the dues have been paid on such timber, or whether the said timber has been cut on other than any of the public lands aforesaid, the burden of proving pay- ment, or on what land the said timber has been cut, shall lie on the owner or claimant of such timber, and not on the officer who shall seize and stop the same, or the party bringing such prosecution. 12. If any wilful false oath be made in any case. 3«a CIUMINAIi LAW. ii'i !' ■]• i ^ij j^^wliorc by tlii.s Act an oath is required or autlioriscd, iry. the party wiilully inakiiit; tlio same shall be guilty of AVIlfully (HIhu oatli bu porjury. wilful atul eorrujit perjury, and be liable to the jmn- ishinont i»rovided for that olVence; and any persons Forftituro of availiiisi; themselves of any false statement or oath to imy casoof cvade tho |)aymcnt of duties, shall forfeit the tiudjor on which duty is attempted to be evaded. 1;{. Parties maliciously cutting or looseninp; booms, or breakinn; up or cutting loose rafts or cribs, shall be guilty of ii misdemeanor, punishable with line and iJiiprisonment of not less than six months. CUSTOMS. Iniud. Maliciously booms, ito., to 111' a inis- Uumeanur. IVnalty for oouiitorfnit- Ini? or using counterfuit- ed papers, &e. Or forRlnj::; certiflcatos, Punishment of persons obstructing officer, Firing at II. 51. 's vessels. AVoundinp; persons in H. M.'s Sir- vice. 10 & 11 A'ic. CiiAr. ai.— aO. If any person shall counterfeit or f.tlsify, or use when so counterfeited or falsified, any paper or document required under this Act, or for any purpose therein mentioned, whether written, printed or otherwise, or shall by any false statement procure such document, or shall forg(> or counterfeit any certificHte relating to any oath, afiir- mution or declaration, hereby required or authorised, knowing the same to be so forged or counterfeited, such person shall be guilty of a misdemeanor, and being thereof convicted, shall be liable to be punishoti accordingly. 39. if any person or persons whatsoever shall, un- der any pretence, either by actual assault, force or vio- lence, or by threats of such assault, force or violence, in any way resist, oppose, molest or obstruct any officer of customs, or any person acting in his aid or assist- ance, in the discharge of his or their duty under the authority of this Act, or any other Act of this Pro- vince relating to customs, trade or navigation ; or shall wilfully or maliciously shoot at or attempt to destroy or damage any vessel or boat belonging to her Majesty, or in the service of the Province, or maim or wound any officer of the army, navy, marine or customs, or any person acting in his aid or assist- CRIMINAL LAW. aiico, ..liilo duly employed for the | revoiitlun ol' Miiujiuliiig, and in execution of Iuh or their duty ; or o hnvinn it'any pci'Hon or persons hhull be found with any goods f^'^^.l^^^g^" liable t'l selziii'o or ibif'cituro, under this i»r any other"'"' ''iog .',(( relatinj^' to customs, trade or na\ ."^aliun, and guinea, cuiryinjjc olfcnsive arms or weapons, or in any way ijis;:uiscd ; or shall stave, break, or in any way dc^^-Ordistroy- triiy ;;ny such L'ood-, bcl'oie or after the actual seizure g'^^^,*'"''''**' tlu'ii'iif; or shidl scuttle, sink or cut adrift any vessel, 1)1' dc-hall be punishable accordingly. 40. '''any liv(! or more persons in company be Coinp.iny of I'.iuad together, and they or any of them >hall have fi^,'in|j"J,ith any goods liable to forfeiture under this Act, every snjH'^fi'ed such per:3on shall be guilty of misdemeanor, and pun- Misdomean- ivhablc accordingly. °''- 45. If any person whatever, whether pretending to 1)0 the owner or not, shall either secretly or openly, of'^Vsons"'^ and whither Avith or without force or violence, take ^*'*'"s "'^*y 1 , . ' 1 goods, &c., or carry away any g'»i/as, vessel, carnage or other seized. thing which shall have been seized or detained on siispiclon as forfeited under this Act, before the Bame shall have been declared by competent authority to liavi. been seized without due cause, and without the |ionuission of the officer or person having seized the same, or of some competent authority, such person shall bo deemed to havt> stolen surh goods being the Such offence l)i'operty of her Majesty, and to be guilty of felony, * *'''°°y- and liable to punishment accordingly. To. All general regulations to be made by thcModoof pub- (lovernor in Council under this Act, shall have force ''™*'?'^ "*''*'■ and effect from and after the day on which the same shall bo published in the Official Trazettc, or from and after such later day as ,-hall be appointed for the ^J^^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 I^|2j8 |2.5 ■U 1^ |2.2 MUu lyii ^ III.S4 - 4 ■n "m 7 f .^ '^ V '/ ■s Hiotographic Sdences Corpomtion 23 WIST MAIN STREET WEBSTER, N.Y. 14S80 (716) S72-4903 o m m M 1^ c\ \ acs CRIMINAL LAW. ¥ purpose in Kuch regulations, and during such tilne as shall be ;her2in expressed, or if no time be expressed for that purpose, then until the same shall be revoked Revocation, or altered ; and all such regulations may be revoked How reguia- Varied or altered by any subsequent regulation ; and * roT* d'"^ '^ '"^ copy of the Official Gazette, containing any such regulation, shall be evidence of such regulation to all intents and purposes whatsoever. 74. Any copy of an order of the Governor in pies of orders Council made in any special matter, and not being a 1» ovi'den!»° S®"6ral regulation, certified as a true copy of such order by the Clerk of the Executive Council or his deputy, shall be evidence of such order to all intents and purposes whatsoever. 12 Vic. Chap. 1. — 19. If any person shall know- ingly and wilfully, with intent to defraud the revenue persons "^ of this Province, smuggle or clandestinely introduce g^f^us^L into this Province, any goods subject to duty, with- false invoices out paying or accouutini^ for the duty thereon; or "' shall make out or pass or attempt to pass through the custom-house any false, forged or fraudulent invoice; or shall in any way attempt to defraud the revenue, by evading the payment of the duty, or of any part of the duty on any goods, every such person, his, her or their aiders or abettors, shall, in addition to any other penalty or forfeiture to which they may be subject for such oflence, be deemed guilty of a mis- demeanor, and, on conviction, shall be liable to a penalty not exceeding fifty pounds, or to imprison- ment for a term not exceeding one year, or both, in the discretion of the court before whom the convic- tion shall be had. o O DESERTION.— (excouraging.) Vic. Chap. 3, Sec. 1, repeals Act of 44 Geo. III. chap. 2. 2. From and after the passing of this Act, if any sailors to "dc- person other than enlisted soldiers in her Majesty's Any person procuring soldiers or CRIMINAL LAW; 509 service, or sailors engaged in the naval seiTice of her 3Iajesty, shall, by words or with money, or by any ways, methods or means whatgoever, directly or in- directly, prevail upon, procure, persuade or encourage any such soldier or sailor to desert or leave her Ma- jesty's naval or military service as aforesaid, and shall be thereof lawfully convicted before any Court of Oyer and Terminer and General Gaol Delivei-y in this Province, such person so offending shall be deemed guilty of a niisdemeanor, and upon convic- tion shall bo liable to be punished by imprisonment in the common gaol of the District in which such con- viction shall happen, or by imprisonment in the Provincial Penitentiary in this Province, for such period as the court before which such trial shall take place, shall in their discretion adjudge, and shall be further liable to the payment of such fine as the said court shall impose upon and require to be paid by such offender. 3. If any person other than an enlisted soldier, or sailor engaged in the naval service of her said Majesty, shall, after the ppssing of this Act, harbor, conceal, receive or assist any deserter from her Majesty's naval or military service, knowing him to be a desert- er, such person so offending shall be deemed guilty ot a misdemeanor, and upon conviction shall be liable to the same penalties and punishments as are men- tioned and set forth in the preceding clause of this Act. Kert, to be liable to im- prisonment in tlie com- mon gaol or Penitentiary and to a fine, in the discre- tion of the court. Any person harbouring; a deserter, lia- ble to the same penal- ties. DOCKYARDS. 3 Will. TV. Chap. 4. — 14. And whereas by a certain Act of the Parliament of Great Britain, pas- sed in the twelfth year of the reign of King George the Third, intituled, " An Act for the better securing and preserving his Majesty's dock-yards, magazines, ships, ammunition and stores," it is enacted, that "if any person or persons shall within the realm, n2 Dritish sta- tute 12 Geo. III. ch. 24, respecting the hurting his Majesty's ships, naval arsenals, &c.. recited. 870 CRIMINAL LAW. ! V or in any df the islands, countries, forts or places thereunto belonging, vrilfnlly and maliciously set on « fire or burn, or otherwise destroy or cause to be set on fire or burnt, or otherwise destroyed, or aid, pro- Cure, abet or assist in the setting on fire or burning, or otherwise destroying of any of his Majesty's ships or vessels of war, whether the said ships or vessels of war be on float or building, or begun to be built, in any of his Majesty's dock-yards, or building or repair- ing by contract in any private yard, for the use of his Majesty, or any of his Majesty's arsenals, magazines, dock-yards, rope-yards, victualling offices, or any of the buildings erected therein or belonging thereto, or any timber or materials there placed, for building, repairing or fitting out of ships or vessels, or any of his Majesty's military, naval or victualling stores, or other ammunition of war, or any place.or places where any such military, naval or victualling stores, or other ammunition of war, is, are, or shall be kept, placed or deposited, that then the person or persons guilty of any such offence, being thereof convicted in due form of law, shall be adjudged guilty of felony, and shall suffer death, as in cases of felony, without benefit of clergy : " Be it therefore enacted, that no- thing in this Act contained shall be construed or taken to affect in any manner the provisions of the above in part recited Act. ELECTIONS. Keturnin^ 12 Vic. Chap. 27. — 52. It shall and may be law- offlcer or his n I n , . „. j i. j. • deputies may tul lor auv retummg officer or deputy returnmg 8u™ender*of officer, during any part of the days whereon any such au arms. election shall be to bo begun, holden or proceeded with, or on which any poll for such election Shall be to be begun, holden or proceeded with, to demand and receive from any person whomsoever, any ofifen- sive weapon, such as firearms, swords, staves, blud- geons, or the like, with which any such person shall CUIMINAL LAW. 871 bo armed, or which any such person shall have in his hands or personal possession, and every such person, who, upon such demand, shall decline or refuse to deliver up to such returning officer or deputy return- ing otHcer any such oflensivc weapon as aforesaid, shall be deemed guilty of a misdemeanor punishable |['/fus||j'[, Jo' by tine not exceeding five pounds currency, or im- surrender prisonment not exceeding three calendar months, or ® **™®* by both, in the discretion of the court whose duty it shall be to pass the sentence of the law upon such person upon his conviction. 53. Every person who shall be convicted of a bat- Certain bat- tery committed during any part of the days whereon eilcUonVime any such election shall be to be begun, holden or to be deemed proceeded with, or on which any poll for such elec-afs^a'uul* tion shall be to be begun, holden or proceeded with, within the distance of two miles of the place where such election or such poll shall be to be begun, holden or proceeded with, shall be deemed guilty of an aggravated assault, and shall be punished accord- ingly. 57. It shall not be lawful for any candidate for Entertain- the representation of any county, riding, city or town iS^^furnishcd in this Province, with intent to promote his election, to electors, or for any other person with intent to promote the election of any such candidate, either to provide or furnish entertainment at his expense to any meeting of electors assembled for the purpose of promoting such election previous to or during the election at which he shall be a candidate, or to pay for, procure or engage to pay for any such entertainment: Pro- Except at the vided always, that nothing herein contained shall be residence of construed to extend to any entertainment furnished nishing'u. to any such meeting of electors by or at the expense of any person or persons at his, her or their usual place of residence. 58. Except for the returning officer for such elec- with certain tion or his deputy, for such parish, township or union noltjanger of townships or ward, or the poll clerk for such parish, Bbaii come 372 CRIMINAL LAW. I •m armed into any parish, &c., wiiile tiio poll shall 1)6 opoa therein. Nor shall any armed person ap- proach with- in two milos of the poll. Party en- iFij;ns, flagR, &c., not to be carried dur- ing any elec- tion, or with- in eight days before it. |jj township or union of townships or ward, or one of thn constables or special constables appointed by such return' ng officer or his deputy, for the orderly con- duct of such election or poll, and the prccjervation of the public peace thereat, it shall not be lawful for any person who hath not had a stated residence in such parish, township, union of townships or ward, for at least six calendar months next before the day of such election, to come during any part of the days upon which such poll shall bo to remain open, into such parish, toAvnship or union of townships or ward, armed with offensive weapons of any kind, as fire- arms, swords, staves, bludgeons, or the like, or for any person whomsoever being in such parish, town- ship, union of townships or ward to arm himself during any part of either of such days with any such offensive weapons, and thus armed to approach within the dis- tance of two miles of the place where the poll for such parish, township, union of townships or ward shall be held, unless called upon to do so by lawful authority. 59. It shall not be lawful for any candidate for the representation of any county, riding, city or town in this Province, or for any other person, to furnish or supply any ensign, standard or set of colours, or any other flag, to or for any person or persons whom- soever, with intent that the same should be carried or used in such county, riding, city or town on the day of election, or within eight days before such day, or during the continuance of such election, by such person or any other, as a party flag, to distinguish the bearer thereof, and those who might follow the same, as the supporters of such candidate, or of the political or other opinions entertained or supposed to be entertained by such candidate, or for any person to carry or use any such ensign, standard, set of colours or other flag as a party flag wuthin such county, riding, city or town, on the day of any such election, or within eight days before such day, or during the continuance of such election CRIMINAL LAW. 373 ward, or one of GO. It shall not bo lawful for any candidate for the representation of any county, ridinsj^, city or town in this Province, or for any other person, to furnish or supply any ribbon, label, or the like favor, to or for any person whomsoever, with intent that the same gliould bo worn or used within such county, riding, city or town on the day of election, or within eight days before such day, or during the continuance of such election, by such person or any other as a party badge, to distinguish the wearer as the supporter of such candidate, or of the political or other opinions entertained or supposed to bo entertained by such candidate, or for any person to use or wear any rib- bon, label or other favor, as such badge, within such county, riding, city or town, on the day of any such election, or within eight days before such day, or during the continuance of such election. Gl. Every person offending against any of the pro- visions of the next four preceding sections of this Act, shall be deemed guilty of a misdemeanor, pun- ishable by fine not exceeding twenty-five pounds, or imprisonment not exceeding six calendar months, or by both, in the discretion of the court whose duty it shall be to pass sentence of the law upon such person upon his conviction, 62. If any person shall steal, or unlawfully or maliciously, either by violence or stealth, take from any deputy returning officer or poll clerk, or from any other person having the lawful custody thereof, or from its lawful place of deposit for the time being, or shall unlawfully or maliciously destroy, injure or obliterate, or shall aid, counsel or assist in so stealing, taking, destroying, injuring or obliterating any writ of election, or any return to a writ of election, or any indenture, poll book, certificate or aflidavii, or any other document or paper made, prepared or drawn out according to or for the purpose of meeting the requirements of this Act, or any of them, every such offender shall be guilty of felony, and being convicted Party badjres &c. not to be used during a liko time. Punishment for contrar Tening the four preced- ing sections. Persons stealing or destroying, &c., the writ return, in- denture, &e.f relating to any election to be guUty of felony. 374 CRIMINAL LAW. Puuiffhmcnt of such por- RODR. What need not be stated In the indict- ment. What suffici- ent to be stated in any indictment under this Act. thereof shall bo liable, at the discretion of the court whose duty it shall be to pass the sentence of the law upon such offender, to be imprisoned at hard labour in the Provincial Penitentiary for any term not ex- ceeding sev^n ycai-s nor less than three years, or to bo imprisoned in any other place of confinement for any term not exceeding two years, or to suffer such other punishment by tine or imprisonment, or by both, as the court shall award, and it shall not in any indictment for any such offence, be necessary to allege that the article, in respect of which the offence is committed, is the property of any person, or that the same is of any value. 64. It shall be sufficient in any indictment or in- formation for any offence committed contrary to this Act, to allege the particular offence charged upon the defendant, and that the defendant is guilty thereof, without mentioning the writ of election, or the return thereof, or the authority of the returning officer founded upon any such writ of election, nor shall it be necessary, on the trial of any suit or prosecution under this Act, to produce the writ of election, or the return thereof, or the authority of the returning officer founded upon any such writ of election, but general evidence of such facts shall be sufficient evidence : Provided always, that every action, suit or information given by this Act, shall be commenced within the space of nine calendar months next after the fact committed, and not afterwards. Registration of votes. 16 Vic. Chap. 153. — 9. If the clerk or secretary- orofflwre*"* treasurer of any Municipality shall, in making out deaiinR frau- any Certified list of persons entitled to vote at an respect of ** election of a member to serve in the Provincial Par- liament, wilfully insert or omit any name which ought not to have been inserted or omitted, or other- wise alter or falsify the same, so that it shall not be a correct list of all persons entitled to vote according Proviso : limitation of suits. spe icn such lists. Wi ClllMINAJ, LAW. 875 ition of the court jntence of the law ed at hard hibour any term not ex- three yeans, or to f confinement for or to suffer such risonment, or by and it shall not mce, be necessary ect of which the ty of any person, indictment or in- id contrary to this J charged upon the is guilty thereof, ition, or the return returning officer ction, nor shall it uit or prosecution rit of election, or y of the returning it of election, but hall be sufficient ^ery action, suit or all be commenced Qonths next after ards. clerk or secretary- 1, in making out ed to vote at an e Provincial Par- any name which omitted, or other- lat it shall not be to vote according to the assessment rolls, or to the proper list of voters (as the case may be) as finally revised and corrected, and if any clerk, secretary, treasurer, returning officer, deputy returning officer, registrar, or any other per- son, whose duty it is to deliver copies, or have the custody of any certified list of voters as aforesaid, .shall wilfully make any alteration, omission or inser- tion, or in any way falsify any such certified list or copy, every such person shall be guilty of a misde- meanor, and shall, on conviction thereof, be liable to ii line not exceeding fifty pounds, or to be imprisoned for a period not exceeding six months, or both, at the discretion of the court before which he shall bo con- victed. FALSE CERTIFICATE. 10 Vic. Chap. 19. — Law of evidence. — 10. If any officer authorised or required by this Act, or by punishment .any law or usage now in force in Upper Canada, toofofficorB fiirnish any certified copies or extracts, shall wilfully TOrtmcat«r certify any document as being a true copy or extract, knowing that the same is not a true copy or extract, as the case may be, he shall be guilty of a misde- meanor, and be liable, upon conviction, to imprison- ment for any term not exceeding eighteen months, (a) FORGERY. 33 Geo. III. Cn. 5. — 4. If any person shall, after the passing of this Act, make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or act or assist in falsely making, altering, forging or counterfeiting any such certificate of marriage as hereinbefore is required to be given, or shall knowingly and wilfully insert or cause to be nisorted in such register book, to be kept in each district, any false eiitry of any matter or thing relat- ing to any marriage, or act or assist in falsely making, altering or forging any such entry in such register, (a) Vide 10 & 11 Vic. ch. 9, sec. 2. Persons counterfeit- ing or pro- curing to be counterfeit- ed the evi- I dence of any marriage, to suffer on con- viction fine and impri- sonment. . i'5 iil ,',l;l 370 rill.MJNAL LAW. or iitl(>r, (tr publish !is true iiny Riu-h llilsoly for^iLMJ, altorinl ();• coiiiitoiTi'itcd cortiiifntc or re^■istor as tif'oresiiiil, or a copy thorool', Iviiowint^ wucli oertificiiti; or register of uiiirrinuc respectively to be talse, alter- ed, fbriieil or couiit(;r('eited, or shall wiltuUy dcstmy, or cause or procure to be destroycid, any rei:istcr book of inarri!ij;:es, or any part of such register book, ■with an intent to avoid any marriage, every person an oRendinu, and beinu; thereof hiwJully convicted, shall for such oiTenee sutler such line and imprisonment, as to the court shall seem meet, provided such iiupii- sonment be in the common gaol of the district for a term not less than twelve calendar months. Vie. CiiAr. ?A.—Rc,j!i^tr,/ Act.— 11. If any Punishment person or persons shall at any time forr^e or counter- for forging fpit any certificate by this Act authorised or directed, or any affidavit of the execution of any memorial, or any such memorial, and be thereof lawfully convicted, such person or persoas shall incur and be liable to the same pains and penalties as in and by an Act of the Parliament of Great Britain, made in the fifth year of the reign of Queen Elizabeth, intituled, uhi Act wjauist tlic forgers of fahe ilecda and writings, are imposed upon persons forging or publishing deeds, charters or writings, sealed court roils or wills, where- by the freehold inheritance of any person or persons, in or to any lands, tenements or hereditaments, shall or may be molested, troubled or charged. («) 10 & 11 Vic. Chap. 9, An Act to consolidate and amend the laws, and to rc^iccd certain Acts relating to the crime, of forgery. Whereas it is desirable that the laws concerning offences relating to forged writings, and to other forged and counterfeit matters, and to divers false personations, false oaths, false entries, and other false matter, should be amended and consolidated into this ia) Vide 10 & 11 Vic. ch, 9, goc. 14, infra. Pieamble. CUIMINAL LAW. 377 the UoTornor ho .seal at arms of any governor, lieutenant-governor pu^jc regil^ r ncrsun administering the Kovernment of this Pro- *«''> *•=• Act, and that none of tlioso ofienccs shall be here- •''"^|"''*"f |^^ .iftcr jmni.shablo with death : ]]e it tlicroforc enacted, Canada, or of ii'aiiy person shall Ibvgc or coiinterieit, or shall utter, {ji'^ur Can«r knowing the same to be forged or countericitcd, the ^a, to be fo- (ireat Seal of this Province, or of the late I'rovince how 'punish- of Upper Canada, or of the late Province of Lower "'''•'• Canada, every such ofl'enJer shall be guilty of felony, and being convicted thereof, shall be liable to be kept confined at hard labour in the public Penitentiary of this Province, for any time not less than seven years. 2. If any person shall forge or counterfeit, oi' shall p, ^^^ utter, knowing the same to be ibrged or counterfeited, nt arms of the or person aaminisicring tnc gov* vince, to any commission, grant, appointment, license, warrant, order or other instrument of a public nature appertaining or relating to the affairs of this Province, or to any instrument purporting to be a commission, grant, appointment, license, warrant, order or other instrument of a public nature appertaining or relating to the affairs of this Province, or shall forge any pub- lic register book, appointed by law to bo made or kept, or shall wilfully certify or utter any writing as and fur a true copy of such public register or book, or of any entry therein, knowing such writing to be counterfeit or false, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be kept confined at hard labour in the public Penitentiary of this Province, for any term not less than five nor more than fourteen years, (a) '\. If any person shall forge or alter, or shall offer, dispose of or put off, knowing the same to be forged ff^^'ing do- or altered, any debenture issued under the authority Kipnments of of any Act of the Legislatures of the late Provinces g^^'j^"^"^®'' of Upper Canada or of Lower Canada, or of any Act passed or to be passed hereafter by the Legislature of (a) Vide 16 Vic. cli. 19, sec. 10. 1 it. 1 I 1 !': i; 878 C'lUMINAL LAW. this 1*1*1 )vliK-o, or iiiiy st;iini» (tr ciKlur.scniciit on or ns.siuiiiiuMit ofiuiy .siu-li diiliciitiiro, or iiiiy s(;rij) issued by tlio Cnimnifij-ioiier of Crown lijuwls l'i»r tlio tiiiio bt'inn\ in lieu oi' or in s.itisliiction ol' ;iiiv riulit or Hank nntos. , . , ^ £• i i i- ji n -^^i • i. writK, ikvii- clitiui to !i ok whatsoever, every f(). An indictment for uttering a forged bill of exchange is su])portcd by proof of utteiing an iiititrumont in fuiui of a bill with a forged acceptance on it, though no person be named in the bill as drawee. — 11. v. II;i\vkc.s, 'J M. C. C. 11. ()(). (Sed vide I'oto v. JSeynolds, ]S Jnr. 47:', where this case is doubted.) A forged foreign letter ri'(iue.'. loi' order executrixes: indictment that prisoner forged on tho Iback of the bill n certain forged indorsement, which indorso- Jmcnt was as follows : (naming one executrix) ; Held, a Iforged indorsement. — R. v. Winterbottom, 1 Den. C. C. R. |41. A forged instrument, by which the supposed maker, lin consideration of goods to be sold to P., but so that the Isupposcd maker should not bo liable beyond £10, is a forged lunJertaking for tho payment of money. — K. v. Stowe, 2 C. & K. 3G4 ; 1 Den. C. C. R. 181. A. gave to B., his clerk, a [blank check, and directed him to fill it up with the amount of a bill and expenses (for which A. had to provide, and hviiicii amount B. was to ascertain,) and get tho money on the check, and pay and take up the bill, which Avas for UloD Us. Od., expenses 10s. ; B. filled up the check for £250, got the money and kept it, alleging it was due to him for salary ; Held to be forgery, even if tho £250 were really I due from A. to B— R. v. Wilson, 1 Den. C. C. R. 284. Putting an address to the name of the drawer of a bill of i exchange, while the bill is in tho course of completion, with intent to make the acceptance appear to bo that of a differ- ent existing person, is forgery. — R v. Blenkinsop, 1 Don. C. C. 11. 270. A forged order for tho payment of money need not disclose on the face of it the name of the party re- quired to pay, this may bo shewn by extrinsic evidence. — U. v. Saelling, 1 Den. C. C. U. 219; 17 Jur. 1012. 379 WluT« by any iitlior law »ln» fop- (Ti'T iif any ii li iimuiit or tvi'itlni; is nmdn pun> ishulile with (It'ittli. and tliu Kuiiu in !•■ till ';:i, '^1 u if I i 380 In law !i will, note, bill. &{'., within tho meaniiiK of this Act, the olTendt!!' may bo r"n- ished under this Act. Forging It't- .ars patent, or enrolment or replstra- tloa thereof, Ac. Fuulsbmcat Forging transfers of stock, or power of nttornoy to transfer, Ac, or personat- ing tho own- er thereof, in order to transfer tho samo, &c. il &. cniMINAL LAW. or description, and such instrument or writing, hov-i ever designated, is in law a will, testament, codicil i or testamentary Avriting, or a bill of exchange, or al promissory note for the payment of money, or an eii-[ doisement on or assignment of a bill of exchange, orl j>romissory note for the payment of money, witliinl the true intent and meaning of this Act, in cvm] such case the person forging or altering such instni- ment or writing, or oifering, uttering, disposing of or putting oft' such instrument or writing, knowing the same to bo forged or altered, may te indicted as an offender under this Act, and punished in the manner provided in the next foregoinj ution thereof. 5. If any person shall for<,, or alter, or shall in any way publish, put off or utter as true, knowing the same to be forged or altered, any copy of letters patent or of the enrolment or en registration of letters patent, or of any certiticutc thereof now or hereafter to be made or given, or purporting to be or to have ' been made or given, by virtue of any statute of Upper! Canada or of Lower Canada, or of this Province, every such offender shall bo guilty of felony, and being convicted thereof, shall be Ivible, at the discre- tion of tho court, to be kept confined at hard labour I in the public Penitentiary of tliis Province, for anyl term not less than three years, nor more than seven I years, or to be imprisoned in any common gaol for any term not more than two years. G. If any person shall forge or alter, or shall utter, I knowing the same to be forged or altered, any trans- fer of any share or interest of or in the capital stock I of any body corporate, company or society, which [ now is or hereafter may be established by charter or Act of Parliament in any part of this Province, or shall forge or alter, or shall utter knowing the wmie to be ibrged or altered, any power of attorney or other authority to transfer any share or interest of or in any such capital stock, or to receive any dividend or profit payable in respect of any such shai'e or interest, CRIMINAL LAW. 381 hr shall demand or endeavour to have any such share br interest transferred, or to receive any dividend or hrofit payable in respect thereof, by virtue of any L'h forged or altered power of attorney or other litliority, knowing the same to be forged or altered, irith intent in any of the several cases aforesaid, to flcfiaud any person whatsoever; or if any person Ikll falsely and deceitfully personate any owner of Iny such share, interest, dividend or profit as afore- aii], and thereby transfer any share or interest be- onglng to such owner, or thereby receive any money jue to such owner, as if such person were the true and lawful o.vner, every such offender shall be guilty of lelony, and being convicted thereof, shall be liable at lie discretion of the court, to be kept confined at [ard labour in the public Penitentiary of this Pro- P"«'«>»™ent lince, foi sny term not less than four years nor more ban ton years. _ Personating If any person shall falsely and deceitfully per- "^"j^^^^* onato any owner of any share or interest of or in the scrip, &c. tipital stock of any body corporate, company or ociety, which now is or hereafter may be established |y charter or Act of Parliament in any part of this Jrovince, or any owner of any dividend or profit pay- Ihle in respect of any such share or interest as afore- aid, or any person having a claim for a grant of land I'oin the crown in this Province, or for any scrip or Ither payment or allowance in lieu of such grant of |iul, and shall thereby endeavour to transfer any piarc or interest belonging to any such owner, or hereby endeavour to receive any money due to any wh owner us if such offender were the true and law- owner, or to obtain any such grant of land, or any crip or other payment or allowance in lieu thereof, if such offender were entitled thereto, every such llciuler shall be guilty of felony, and being convicted prcuf, shall bo li'»ble, at the discretion of the court, be kept confined at hard labour in the public Peni- punjshnini Intiary of this Prov nee, for anv term not loss than 382 CRIMINAL LAW. t'i ^\ n P ! I: Forging sig- nature of witnesses to power of at- ' torney, or other auttio- rity to trans- fer stock, &c. Punishment' prisoned in any common gaol for any term exceeding two years. 8. If any person shall forge the name or handl writing of any person as or purporting to be a wt-l ness attesting the execution of any power of attorney! or other authority to transfer any share or interest off or in any capital stock as is in this Act before men-l tioned, or to receive any dividend or profit payabiel in respect of any such share or interest, or to assign! or transfer any right to obtain a grant from the crown I of lands in this Province, or to obtain any scrip orl other payment or allowance in lieu of such grant ofl laud, or shall utter any such power of attorney or[ other authority with the name or handwriting of any person forged thereon as an attesting witness, know- 1 ing the same to be forged, every such offender shall I be guilty of felon}', and being convicted thereof, slialll be liable, at the discretion of the court, to be kepti confined at hard labour in the public Penitentiary ofl this Province, for any term not less than three yearsl nor more than seven years, or to be confined in any! common gaol for any term not exceeding two years. authorised to take any recognizance or bail, acknow-l (a) Indictment for uttering a forged receipt. Prisoneil being asked to pay a debt, said be bad paid it, and liad receipt signed by T. Afterwards he shewed the receipt td one F., but would not let it out of his hand. F. andTl afterwards asked prisoner to produce the receipt, and hi did, holding it up for theui to look at, but refused to let ii out of his hand ; F. however got it from him ; Held anl uttering. — R, v. Radford, 1 Den. C. C. R. 59. Ascripcerl tificate in a railway company is not an *' accountable receipt | nor an "acquittance or receipt," therefore forging such i certificate is not a felony. — Clark v. Nowsam, 1 Exch. Kl 131. An unsigned forged paper "Received from Mr. Hi due to Mr. W. 17s., settled," is a forged receipt.— R. vj Juda, 2 C. & K, 035, Whore a document is set out in hai verba, the description of it in nn indictment as a " warrnnti order nnd request " is immaterial. — R. Williams, 1 Tenipl & M. 382. A bill of parcels underwritten " I hope you mill excuse me for sending for such a triile," &c., and purport-! CRIMINAL LAW. 88a 0. (a) If any person shall forge or alter, or shall ofTor, utter, dispose of or put oiY, knowing the same to bo forged or altered, any notarial act or instrument or copy purporting to be an authenticated copy there- of, prorcs rt'rhul of any surveyor, or like copy there- of, any judicial record, writ, order, return, exhibit, report, certilicate or other document or entry made or tiled in any suit or proceeding civil or criminal, in any court of justice, or with any officer of such court, or any copy or p'.iper purporting to be an exempliti- catioii or authenticated or certified copy of any such judicial record, writ, order, return exhibit, rej)ort, certificate or other such document or entry as afore- said, deed, bond, writing obligatory or any assign- ment of a right to land, certificate of registration or affidavit of execution, or any memorial of any deed, will or other instrument, that may now or hereafter be registered by virtue of any statute in force in this Province, or any part thereof, or any acquittance or receipt either for money or for goods, or any account- able receipt either for money or goods, as for any note, bill or other security for payment of money, or any warrant, order or request for the delivery or transfer of goods, or for the delivery of any note, bill or other security for the payment of money, or any contract, promise or agreement with intent to defraud any person whatsoever, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be kept conlined at hard labour in the public Penitentiary of this Province, for any term not less than four years, nor more than ton years. 10. If any person shall knowingly and wilfully, before any court, judge or other person lawfully three years nor more than seven years, or to be im- ForRlng deeds, bonds, memorials, receipts, no- tarial instru- ments, pro- ces verliaux, or any judi- cial proceed- ing, or ex- emplification &c. Punishment Personatinp; parties piv- ins recogni- zances, cog- novit, Ac. iiur to bs signed by the party to -whom the money was duo, find presented to tlie debtor, is a "warrant," and seinik also an '• order.'"— 11 o,-' e 11. ii'iii" i' • fi)rei;rn bills, loraod or altered, any bill ot exchange, promissory notes, undor- note, undertaking or order for pa^-ment of money, in*'''''^'°Bf. Ac. Mhafcver language or languages the same may be expressed, and whether the same shall or shall not be under seal, purporting to be the bill, note, under- taking or order of any foreign prince or state, or of any luinistor or officer in the service of any foreign prince or state, or of any body (corporate or body of tho like nature constitntod or reco'rnizcd bv anv I I 1 88G CHIMIN AL LAW foreign Prince or state, or of any person or company Engraving of pcrsons resident in any country not under the e^uch notes, (joi^ii,iJon (,f Jigj. Majcsty; or if any person sliall engrave or in any wise make upon any plate Avhat- ever, or upon any wood, stone or other material, anj bill of exchange, promissory ]u)tc, undertaking or order for payment of money in whatever language or languages the same may ho expressed, and whether the same shall or shall not he intended to be under seal, purporting to be the bill, note, undertaking or order of any foreign prince or state, or of any minis- ter or officer in the service of any foreign prince or state, or of any body corporate, or body of the nh nature, constituted or recognized by any forcipi princo or state, or of any person or company of per- sons resident in any country not under the dominiuu of her Majesty, without the authority of such foreign prince or state, minister or officer, body corporate, or body of the like n-iture, person or company of pcr- sons, the proof i^-. which authority shall lie on tlie Having person accused ; or if anji person shall, without such pi"*"*'**^;. of authority, to be proved as aforesaid, use, or slial! bills, noto.^' without lawful excuse, to bo proved by the party *ossion'°^ accused, knowingly have in his custod^^ or posscs-sion nny plate, stone, wood or other material upon which any such foreign bill, note, undertaking or order, or any part thereof, shall be engraved or made; or if any person shall, without such authority, to be proved as aforesaid, knovv'ingly utter, dispose of, or put ofT, or shall, witiiout lawful excuse, to be proved as afore- said, knovringly have in his custody or possession any paper upon which any part of any such foreign bill, note, undertaking or order shall bo made or piintcd, every such offender shall be guilty of felony, and I'uniBhnicnt dicing convictcd thereof, shall be liable, at tlie discre- tion of the court, to be kept confined at hard labour in the public Penitentiary of this Province, for any I term not less than three vcars, nor more tlian seven years, or to be imprisoned in ;;!iy cuniinon guul tor anv term not e.vceedinu' two vc;.:s. CIllMiXAL LAW. ;i87 I'sou or com pan J not iindei" the ny person sliall any plate Avhat- lev material, any nndcrtakiug or ever language or ;cd, and whether dcd to be under , undertaking or or of any minis- breign prince or body ol' the \\h by auy Ibrcipi company of per- ;ler the dominiuii y of fiuch ft)rcigii ody corporate, or company of pcr- shall lie on tlie lall, without such [id, use, or shn!! cd by the party ody or possoi>sion ,erial upon Avhich lung or order, or or made; or if ity, to be proved PC of, or put ofT, proved as afore- or posscppion any (•;uch foreign hill, mr.do or })iinted, y of felony, and I fie, at the discrc- d at hard labour 'rovince, for any more than ecvcii 1 .(.;mmon gaol to 1-1. And whereas by an Aet parsed in the fifth r-ypj''''^^^''^*- year of the reign of Queen Elizabetli, intituled, u4n c. Urw'lted. Art tiijdiiisf J'oiycrs of Jr mure tlian seven years, or to be imprii^imed in Liny co'.nmon gaol for any torni not exceeding tv»'o yea vs. Jo. Y\"hevo the f.)r'i'in<>; or alterlnij; any matter ,^''">'*"*-*! "/' hVii'Usoever, or tho offering, uttering, dis])csing of, ori'Oiin onviKo putting off any vrriting or jnatter what.sejuver, know- AiV'^viipro'- iiiji' the same to bo fnvged or altered, is in this Act •■;•."*■ '; J' ^'^ ^ exnrosseel to be ;;n oiience, if any person shall in thisiiV:iy'"i,nii'iort ll'njvince forgo, or alter or offer, uttcx-, dispose of, ('0 l.xnivssc'a.''' (./) Yido suprn, tide "custonis'." 388 C'lUMlNAL LAW. Or in wh;it liinj;u:i^u so- ever. Abettors. Writini;s f:)r payiiii'iit of uioriey, ;uid lor fii lino othor pur- poso ; And whnro-j s lover t he nioniiy Juj made jviya- blo, or in what lau- guagj snpver coachi'il. Punislinicnt or put ofT, knowing the same to be furgcd or altered, any sut-li writing or inattcM", in Avhatsoovor place or country out of this J'rovince, whether untler the (lowunion of her .Majesty or not, fiuch writing or matters may purport to be made or may have been made, and in whatever language or languages the same or any part thereof uiay be expressed, every pueli person, and every person aiding, abetting, ur counselling such person shall be deemed to be an offender within the meaning of this Act, and shall be punishable thereby in the same manner as if the writing or matter had purported to be made or had been made in this Province; and if anj' person shall in this l*rovince forge or alter, or offer, \itter, dispose of or put oft", knowing the same to be forged or altered, any bill of exchange, or any promissory note for the payment of money, or any endorsement on or assiiin- ment of any bill of exchange or promissory note fur the payment of nu)ney, or any deed, bond, writiiiir obligatfjry for the payment of nu)ney (whether such deed, bond or writing obligatory shall be made only for the payment of money, or for the payment of money together with some other purpose) in what- ever place or country out of this l*rovince, whether under the dominion of her Majesty or not, the iiionoy payable or secured by such bill, note, undertaking, warrant, order, deed, bond or writing obligatory may be or may purport to be payable, ami in whatever language or languages the same respectively, or any part thereof, may be expressed, and whether such bill, note, undertaking, warrant or order be or be no; under seal, every such person, ami every person aid- ing, abetting or counselling such person shall he deemed to be an ofVendor within the meaning of-this Act, aiid shall be punishable thereby in the sanio' Liianner as if the money had been payable or had pur- ported to be payable in this Pi'ovince. 16. A\'hen by any law now^ in fuice in any part of this Province, any person falsely making, forging. CRIMINAL LAW. o8() tonntorreUin< ' (ir cndcavourin!.!; to receive (jj- liave anvtlniiti;, or to .-'^'l. '"''"" '"' :" , \ r' ..ill f-nvc. un- do or eause to ue done any act iijioii or hy virtue ot iIit smno 111) -matter ■whatsoever, knowing sueli matter to l>o !,,'„'i ',,,'^otiier raiscly made, forced counterfeited, erased or ahercd, I'linii-imivnt (IV where by any Jaw now in lurce as aforesaid, any imI i.y this lie'ixni falsely rtersonatiii"' another, or i'alsely acknow- f '''• ^"'^^' ^" k'duing anything in the name of another, or falsely Witd. ivpicHenting any other person than the real party to be such party, or demanding or receiving any inoiiey (ir (ither thing by virtue of any probate or letters of ;i(liiiinistration, knowing the will on wliich such pro- bate shall have been obtained to have been i'alse or fuvued, or knowing such probate or letters of admin- istration to have been obtained by means of any false oath or false affirmation, would be guilty of I'elony, ami be liable to any other punishment than is pro- vided by this Act; then and in each of the several cases aforesaid, if any person shall after the com- meiiceinent of this Act be convicted of any such felony as hereinbefore mentioned, or of aiding, abet- tintr, counselling or procuring the commission there- of, and no other provision is made for the punishment of any such offender under any other clause of this Act, such offender shall be liable, at the discretion of^'""''*'''^"^"* tlio court, to be kept eonlincd at hard labour in the public Penitentiary of this Province for any term not less than three luu" more than ten years, or to be imprisoned in any common gaol for any term not ProTiso: this exeeediiig two years: Provided always, that nothing _:f,5^*p"|^|,^!° lieiein contained shall affect or alter nny law relating '••w'-'nting to any coin lawfully current in this Province toin""''^ 17. Ifanv person shall commit any offence a- li 's ill llui MIllllO Jlhl.M. Aoci'ssorii's anil piiuci- ]i:ils ill tlio J.'1V0. llllW imiii.slK'd. AiTor.snrlcs after the fact, T\ic sim 111', not i'('f(uirL'd ill iiulict- lUL'tltS, ^Vll!l^ (li's- ciiptioiisliall bo sufiidfut. I 111. Ml N Ah LAW. iii^;', (lis]!iisiiii;'(irur jiuUiii^' (uTaiiy iiKittcr Avlnil.^nnvii', kiiowiiii:' the ,s;iiii(! to l)(! i'or^od or iiUcrt'd, ^vll(•lIlC'^• fill' oliciiri' ill iiiiy such enso .sliiill Ito iinlii'tablo ;;t roiiiiuoii l:i\v or l»y virliic ot' tmy s'iituti! or >t:itutc.s lIl.llK' Ol' to Ix' lll;nll', tlli! ollilllCO ol' CVt'iy Mill) oHi'IkIiM' iiiay br diMlt willi, iiulictcil, trii'd tiiid |iiiii. Islicd ;iiid laid and fliarj;ed to liuvo Wxn\ (toiiiiiiiUed In any district, or |»laro ill Avliicli lie sliall be a|i]U('- lu'ii. AVIii'U tho h;iviii If. V lliip any ih-cd, writlnji, iiistininciit ci* oilier ninttcf jrivcii dencoinust ill cvidciicL' (ill the Iriiil dl' iiiiy t^nvh iiulictnicnt or i"yoiluT'"" '''"'""•''"'"''"" '• •*>'"^''lfosc(.1 tu be iiitL'i'c'stctl sliiill in nuoiiM) ln' ilci'incd sMtlicicnt to mis- t;iin a (.•oiivictioii I'or aiiv of the ^^aid oneiici'S iiiilcvs tlio same bo corrolioratc d l»y otlur l('|.ial cvidiiu i' in ill support of t^iich prosocntion. 2.1 llopoals 4 .\: T) ^'ic. Cliap. 28, See. 7 ; -i k o >, {''c'c. o; tlu! ]ii flection (d'l iS: T) "\'i'. Cliaj). 1J.'>, cxccjtt so iiuich as applies to any od'tiKu relative to coin ; -i cS: 5 Xu-. ("hap, U-l, See. 21, 21, li;; ; 4 tS: f) Vie. ("Imp. DC, Hec. 4:1, 44, 45 ; 4 &: 5 Vic, Cliap. 07, Sec. >)2, :J;!, -'M ; 4 cl 5 \'ic. Chap. !l^ tc. 82, Dn, o4; 7 Vie. Chaj.. (il), See. J];), :J4, JIo; !) Vic. Chap. J)4, so imudi of section 17 as relate,'- tu the f'orfiin;;' or connteiieifiitj;' any ccrtilicate, ailidavit or inenioria! ; Vic. Chap. .'> ; !) \'ic. Chap. (>], Sec. 8; !) Vic. Chap. ('.2, Sec. 2S; <) Vic. Chap. (15, See. 4 ; 1) A'ic. Chap. 1)0, Sec. V, ; <) Vic. Chap. 74, See. 10; and the lolio^vill^■ Act of I'^pitcr Canada, 50 Geo. III. Chap. 4 ;^ J] AV'ill. IV. Chap, ;J, ,so niiicli of section 25 and 2() as relates to lbr<;ery or any other ofi'encc concerning ^vllich ]>ro-\ision is made by this Act; 7 Will. IV.' Chap. 14,_Sec. 8; and the followini:; Acts of Jiower Canada, o5 (jco. III. Chap. 8, Sec. 10; :50 Geo. 111. Chap. :{, See. 0; 51 (ico. III. Chap. 10; 'd k A Vic. Cha].. 31, Sec. 10; 4 Vic. Chap. 10, Sec. U ; 4 Vic. Chap. 17, Sec. IJO; 4 A'ic. Chap. oO; so inucli of section 51 as relates to the forginp; or coimterfeitina; of any ineniovial certifi- cate or endorsement therein mentioned, and all other Acts or parts fif Acts or laws now in force, at To pontir.uo variance with the provisions of tliis Act, or rospcct- aistD-K-em- mg matters Tor wliicn this Act ])roviucs, sliall coii- ;>«'^)f-j.1-""'^tinuc in force until and throughout the thirty-first be repeal d. day of Deccinher in the present year, one thousand rUI.MlNAI. LAW. yua (i'Jit Initidrt'd iiiul f()rty-:-o,vcii, nnd shall from imd ."t'icr Hial day )»(! rciicaicd, except mo Car .mm any of the Exreptlcn. •aid Acts may roj)cal the whole or any part of any (illicr Acts, and exceptas to otfeiicos conniiittcd beforo 111' upon the said thirty-th'st day of |)ecend)or, whicdi ^liall he dealt Avith and punished as if this Act had not boon passed : Provided always, that if any j)erson who shall before or upon the said thirty-lirst day oftopuu"gh." |),'('eMd)i>r, have conmiittcd any offence ajjainst anv'"""^ "' R*"^ (it'thn several Acts hereby declared to l)o no lon<^crcd afiur this ill I'uree or repeahul as aforesaid, sliall alter the <-*<-""- «.^*aKni'n»t"' iiiencenjerit of this Act bo convicted of the same, and Attn repealed ,os/, title "post-office." 14 & 15 Vic. Chap. 13. — G. Every person -wlio ruuisiimcnt shall f )rgc or alter, or shall ofter, utter, dispose of or filrsin^^cer- put olF, knowing the same to l:o forged or altered, li;;!l satir^l'y sucli jutlfrc or justice tluit the person recused f-taiids charged with some crime of the des- (.lijiti'jn hcreiiihei'ore specilicd, or thtit there is good irmuiid to suspect him to have been guilty thereof. .'). Nothing in this Act contained shall be con- ^tniod to affect the provisions of (37 Geo. III. chap. 15), or to make it incumbent upon the Governor niid Council of this Province to deliver up any person tluirged, if for any reason they shall deem it inexpedi- ent SI) to do, or to prevent the discharge of any per- son upon habeas corpus who, having been committed uiulor this Act, shall bo detained in custody beyond the time that may be reasonably required under the circumstances of the case for carrying the provisions of this Act into effect. G k 7 Vic. Chap. 7G. — (Imperial statute.) An Ad Jul' giving effect to a treaty btticeen her Majeaty and the Ciiitcd States of America /or the api^rchen- sioii of certain offenders, (a) - rni 1 V X 1 1 n , Iflo.allegis- 0. It by any law or ordinance to be hereafter made lature sub- by the local logiskture of any British colony or pos-oth^r Actf session abroad, provision shall be made for carrying "'-''■ '^'"J^sty into complete effect within such colony or possession theopenitToa the objects of this present Act, by the substitution of°*^*^'^°°''- some other enactment in lieu thereof, then it shall be competent to her Majesty, with the advice of her Privy Council, (if to her Majesty in Council it shall seem meet, but not otherwise^, to suspend the opera- tion, within any such colony or possession, of this present Act so ]ong as such substituted enactment shall continue in force there, and no longer. 0. This Act shall continue in force during the con- tiiuianco of the tenth article of the said treaty. 12 Vic. Cti. 19. — 1. Whereas by the tenth article Recital. ,(«) So long as the Provincial Statute 12 Vic. ch. 19 is in force, this Act is not, and it is therefore omitted. K ■, ^' ;v ■• m M ' I 400 CRIMINAL LAW. of a trcMlj bctwccii her Majesty and tho United Stat(>s (»r Aniovica, signed at Wasliiniiton v\i tlio Oth (lav oi' Auirust in the \x'J'i' f>"t! thousand eiuht luui- drcd and i'ovty-two, the Tatiiicati(ni,s wlicreof wore exchaniiod at London on the thirteenth day of Octo- ber in the same year, it was airrced tliat her jMajeslv and the said United States should, upon mutual rerjuisitioiis by them or their uiinisters, ofiiccr.s or authorities respectively nuule, deliver up to justice all persons who beinu; charged with the crime of murder, or assault with intent to connnit murder, or piracy, or arson, or robbery, or forg;ery, or tho utterance of forired paper, committed within the jurisdiction of either of the hi2;h contracting parties, should seek an asylum, cv should be found within the territories of the other; provided that this should only bo done upon such evidence of crir inality as, according to the laws of tho place where the fugitive or person so charged should be found, would justify his apprehen- sion and commitment for trial, if the crime or offence liad been there committed, and that the respective judges and other magistrates of tho two governments should have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, so that he might bo brought before such judges or other magistrates respectively, to the end that the evidence of criminality might be heard and considered ; and if, on such hearing, tho evidence should be deemed suf- ficient to sustain the charge, it should bo the duty of the examining judge or magistrate to certify the same to the jn'oper executive authority, that a warrant might issue for the surrender of such fugitive, and that the expense of such apprehension and delivery should bo borne and defrayed, by tlie party making the requisition and receiving the fugitive ; and it is by the eleventh article of tho said treaty further agreed, that the tenth article, hereinbefore recited, should continue in force until one or other of the li' . ' < \:\ y ?iiid the I'liitcd liiiiiitoii (111 the !)tli hou.saiid c'iulit liiiii- ;i(jn.s whereof were toonlh diiy ofOoto- ;tl that lior JMnjcsty uld, upon mutual ini.stcrs, officers or verup to justice all ic crime of murder, lurder, orp iracy, or [• the utterance of the jurisdiction of ties, should seek an n the territories of juld only be done ;y as, accoi'ding to gitive or person so istify his apprchcn- thc crime or offence [hat the respective 3 two governments id authority, upon 10 a warrant for the 'son so charged, so ch judges or other that the evidence onsidored; and if, d bo doomed suf- Id bo the duty of o certify the same that a warrant ich fugitive, and on and delivery 10 party making jgitive ; and it is d treaty further inboforo recited, or other of iho Ll CRIMINAL LAW. 401 high contracting parties should signify its wish to teniiinato it, and no longer: And whereas certain provisions of the Act (Ivij). Stat. (f- 7 IVf. (Jiap. 711) have been found inconvenient to ju'actice in this I'liivince, and more especially that provision which n'i(uires, that before any such offender as aloresaid should be arrested, a Avarrant shall come under the luiiid and seal of the person administering the g(A'- criinient to signify that such recpiisition as aloresaid h;ith been made })y thoauthority of the United States fur the delivery of such ofreiider as aforesaid, and to roi|uire all justices of the ])eace and other magistrates ;iii(l officers of justice within their several jurisdic- tiiiiis, to govern themselves accordingly, and to aid ill apprehending 4lio person so accused, and commit- ting such person to gaol, for the purpose of being (lolivered up to justice, according to the provisions of the paid treaty, inasmuch as by the delay occasioned by coin]>liance with the said provision, an offender jiiay have time afforded him for eluding pursuit : And whereas (rccitinf/ see. 5 of the ]nrp. Stat. qv. ride. Slip.') And whereas it is expedient to make provision for carrying the objects of the said Act and treaty into completo effect within this Province by the substitution of other enactments in lieu of the said Imperial Act; ])0 it, &c., that it shall bo lawful order and on fur any of the judges of her Majesty's Superior Courts j\!j"4*'TCr. in this Province, or for any of her Majesty's justices sons cLprKed of the peace in the same, and they are hereby sovo- commTtted'' rally vested with powder, jurisdiction and authority, >" bo deciiK'd .'^ullieiciit ])y him tu siis- (aiii llu- ( li:u';;c act'ordiiifj; to tho hiws of this J'l'oviiifc, il'tho olii'MC'O ;dk>;j,ed had boi'ii coiiiiuitti'd thmiii, it fdiall bo his duty to corlily tho .^aiuo, tojjtithii' wilhii copy of all tho testimony takon bol'uro him, to tho (!t»vornor, cvC, that a warrant may issuo upon the io(|uisition of tho i)ro[)or authorities of tho said UnitoJ t'tatos, or of any of such States, I'or tho surrender of tuieh person, according to the stipulations of tho said treaty, anil it shall bo the duty of the baid judge or of tho said justice of IIk; peace to issuo hiii warrant I'or ^ho commitment of the ])oi'son so charged to the proper gaol, there to remain until such surroiidor thall bo nuide, or until sucli person shall bo dis- cliariiocl uceordiny; to law. 2. I'rovided that in every ease of complaint as aforesaid, iind of a hearing upon the return of the warrant of arrest, co])ic,s of tho depositions upon which an original warrant in any of the said United States may have been granted, certiiled under the hand of the person or persons issuing his warrant, or under the hand of tho olHcer or person having the legal custody thereof, and attested upon tho oath of the party producing them to be true copies of the original dejiositions, may be received in evidence of tho criminality of the person so a])prehended. 3. It shall be lawful for the (Governor, kc, upon a ro(p.iisltlon made as aforesaid by tho autliority of the said United States or of any of such States, by warrant under his liand and seal to order the person so committed to be delivered to sucli person or per- son.s as shall bo authoriiccd in tlio name and on the behalf of the said United States, or of any of such States to be tried for tlio crime of wliich such ]ioi-,sou fjhall be so accused, aiid such person shall be dclivci't'd up accordingly, and it shall be lawful for the person or porsoJis authorized as aforesaid to hold such per- son in oustodv and to take hirn or her to tlic tonito- i:\ CUIMINAL LAW. 403 ul if, oil such licar- (•iciit ])y liiiii to siis- \vs ol'tliis ProviiK't', )imiiitti'(l (luTtiii, it nio, tofjdtlit r witlia bel'oro liiiii, to tlio Kiy issue upcn the \s ot'tlu)s;ii(l United Ibv tlio suiTonder of )uliitioiis of the said if the .saiil ju(],uc or issue hiii warrant ri so charged to tlic itil such surrender crsou shall be dis- ■>e of couijdaiiit as the return of the 3 depositions upon of the said United certitied under the linp; his warrant, or person liaviiip; the 1 upon the oath of true copies of the ved in evidence of )rehended. overnor, kc, upon ' the aiitliority of f such States, by order the person ch person or per- nauie and on the r of any of such which such ]K!r.'^on 1 shall bo delivered ul for the person to hold such per- liev to the tonilo- 1) ries of the 8aid United .States pursuant to the said treaty, and if the person so accused shall escape out of any custody to which he or she shall be coniniittcid, i)r to which he or she shall be delivered as afiircsaid, it shall be lawful to retake such person in the same iiiaiuier as any ])erson accused of any crime aj-ainst'^'^':'"''''''"'''- tiie laws 01 tins i rovince may be ictakea upon an bo ivtaUcn". esea})0. 4. When any person, who shall have been com- mitted under this act and the treaty aforesaid, to M.'Yimst^id" rcuKiin until delivered ui) in pursuance of a recaiisi- ",",'! ""'', t' • 1 1 n 1 1 1- 1 ' (IclivciiJ up tioii as aloresaul, sliall not be delivered up pursuant ^vitlJin two thereto and conveyed out of this Province within ,';i'|J'.||,',''|,i"''"^ two calendar months after such commitment over '''•""•'''""i-'^'' 1 1 .1 ,• .11 • 1 , ,1 unless f;nod and above the tune actually rcipiired to convey the cauw ivn- his prisoner from the tiraol to which lie or she may liave 'i",^^',T . I 'ill! T »l 1 '• -■ (li'tclltiuu 1)8 been committed by the readiest way out of this Pro- f^hi-w". viiico, it shall in every such case be hnvful Ibr any of the judges of Jler Majesty's Superior Courts in this province liaving a power to grant a writ of habeas corpus upon application made to him or them by or on behalf of tho person so committed, and upon proof made to him or them, that reasonable notice of the intention to make such application has been given to the Provincial Secretary, to order the person f^o coinmitted to be discharged out of custody unless suBleient cause shall be shewn to such judge or judgL'S why such discharge shall not be ordered. 5. (This Act is to come into force on a day to bcnK'nraud"^ announced by proclamation promulgating any order i',".':'l'"j' °^ of Her Majesty in council suspending tho operation of the imperial Act in this Province and shall con- tinno in force during tho continuance of tlie tenth article of the treaty. (f«) ((/) A proclamation, dated 28 starch, 1850, brou;j-lit this into I'orcu on Itjth April, 18j(), IU' orJer of Her :M!ijesty in council dated 8th .Tanuavy, 1850, tho operation oi' tiic Imperial Act in this Proviuco was suspended diiviag tha ooiiliuuanco of this Act. 404 (.lUMINAL JAW. Poiinltv fiir williilly lii- jiiriii^i nr (li'slrovinj; tli(> wiirUii, of Clrtsi. UAS AND WA'I'KH AVOIIKS. 11 Vic. ("map. IT,.— (77/<' CHi/ of KiiH/stnn dm Lii/hf ('i)iiip(ni//). — 'H\. It' any ])iM'son nr jicr.^oiis >^li;ill will'iiUy or maliriously l)roiik uj), |»ull ilowii, or (laiiuiize, injure, ])ut out (tt'onlcr or lU'.stmy any main j)i|((', }»i]ii', or otlicr works or aiiparatu.s, jijipinlcii- ances or ih'pondcnt'ics tlu'rooC, or any nialtcr or tiling alroady uv.ulo and provided, or uliieh shall be niiido and ])rovided, lor the ])uri)oses al'ore.said, or any of the materials used and ]»rovideil i'or the j^anu!, or ordered to be erected, laid down or belonginj^ to the said company, or .shall in any Avi.so will'ully do any other injury or damapje for the piirpo.so of ob.structinu:, hinderinas aLcretid „ . , , for with the said company l)y increasing tho number ly in.mising or si/e (»f the holes in tho gas-burners, or otherwise |ju".,'i}!',"„.*'' wrongl'ully, negligently or wastefully burning tho siiMc, or by wrongfully or improperly wasting the gas, every such person or persons shall be guilty of a misdemeanor, and on conviction thereof the court hofoie whom such por.son shall bo tried and convicted, shall have power and authority to condemn such person to pay a penalty not exceeding ten pounds, currency, or be confined in the common gaol of the district for a space of time not exceeding three months, as to such court nuiy seem meet, and such person shall defray the expenses attending the repair or rojdacing of such meter. 12 Vic Chap. 158. — (^Cltj/ of Kinr/slon Tf«^tr-,,^?r"ons, or ordered to be erected, hud down or belonging to the said company, or shall in imywise wilfully do any other injury or damage, for tlisj ])urpose of obstructing, hindering or embarrass- ing the construction, completion, maintaining or repairing of the said works, or shall cause or jirucurc i 1 I' ■'f 400 (JRFMINAL LAW. the siutio to bo (l(jno, or shiill IkiIIio or wash or cleanse any clotli, wool, Icttthor, «kiiis, iiiiiiiiiils, or nny nol- fomo or otron.sivc tliiii<;, or cnu.so, iieniiit or MiiVor the water of any sink, sower or drain to rnn or l)e con- veyed into, or eanse any other annoyance to be done to the water within any reservoirs, cisterns, ponds, courses or fountains I'roni which the water to su|ij)ly the said city is to be conveyed, or by wrongtuily or improperly wasting the water, every such j)erson or persons shall be gviilty of a misdenieanor, and, on conviction thereof, the court, before whom such per- sons shall be tried and convicted, shall have power and authority to condemn such person to pay a pen- alty not exceeding five pounds currency, or to be conlincd in the common gaol of the district for a space of time not exceeding three months as to sucL court may seem meet. 13 k 11 Vic. On a p. liKI.— (77/t' UamUtoa Gm L'ujlit Chmpunij.) — 20. (This section is a mere transcript of section 2G of 11 Vic. ch. lo — <]_n. vuk siq^ru.) 16 Vie. Chap. OCk—^TJic Jlommon V,a(rr-v:orh Parties wii- Comjxiii//.') — 5. If any person shall wilfully or iiiali- fuiiy hiiKKu-- ciouslv hinder or interrupt, or cause or procure to Ic Inu pompany , • i " , . , ,11 • ^ ,1 • inthooxir- liuulcred or 'uterrupted, the saul company, or tlicir powor 'sui" i'i«Tiii?crs. so 'vants, agents or workmen, or any of jert to poll- them in tin exercise of any of the powers and autho- rities in this Act authorised and contained, or if any person shall wilfully or malicio\isly let off or discharge any water, so that the same shall run waste or use- less, out of the works of the said company; or if any person shall throw or deposit any thing, or noisome or offensive matter into the water of the said com- p;my, or in any way foul the same, or commit any wlll'ul (hvniage or injury to the vrorks or water of ibo cojnpany, or encourage the same to be done, every person offending in any of the cases aforesaid, shall, being subject to an action at law I'or the dan;agcs alties. m i i M CUIMINAI, LAW. 407 or wash or cleanse liiiiiils, or any iioi- )cniiit or sulViT the to run (tr l)o I'on- loyaiK'o to bo (lone rn, cisterns, ponds, ho water to supply by wronj;' fully or ^ry such j)erson or lenieanor, and, on I'o whom such per- , shall have power .M'son to pay a pen- urrcncy, or to be the district ior a montliH as to sucli he Ilainilton Gas ioctiou is i\ mere |. ch. ];] — qn. viik i/lon Vi'dtcr-n-orks 11 wilfully or niali- c or procure to k company, or their rknieii, or any of powers and autho- iitained, or if any ot oft" or disclinrgc un waste or use- nipany; or if any thinjr, or noisome of the said com- , or commit ;iny ri or water of the be done, every s aforesaid, shiill, lor the dan);; i 1 'lip I : 408 I'uroli.'tsos of laud t'ruiu ]iulianj not valid with- out till! consi>nt of tlie crown. Such piir- clias'.) witli- out consent to bi! :i niis- doiut:anor. CRIMINAL LAW. burners, or by substituting a pipe or pipns of larger bore for the coiiveyanco of water, or otberwiso wrongfully, negligently or wastefully throwing away or wasting the said gas and water or either of thcni respectively, every such person or })ersons shall be held guilty of a misdemeanor, and on conviction thereof, the court before whom such pei'son shall be tried and convicted shall liave power and authority to condemn such per- son to pay r. penalty not exceeding ten pound.^: cur- rency, or to bo conlined in the common gaol of the city for a space of time not exceeding three montlu as to such court may seem meet. INDIANS AND INDIAN LANDS. lo & It Vio. Chap. 74. — 1. No purchase or contract for the sale of land in Upper Canada whicli may be made of or with the Indians or any of them shall bo valid unless made under the authority and with the consent of Her Majesty, her heirs or suc- cessors, attested by an instrument under the great seal of the l*rovince, or undci the privy seal of the governor thereof for the time being. 2. If any person Avithout such authority and con- son<- shall in any manner or form, or upon any terms whatsoever puixdiase or lease any lands within I'ppcr Canada of or fi'om the said Indians or any of thciu, or nudvo any contract Avith such Indians or any of them for or concerning the sale of any lands therein, or shall in any maimer give, sell, demise, convey or otherwise dispose of any such lands or any interest therein, or oiler so to do, or shall enter oi or take possession of, or settle any such lands by pretext (tr colour of any right or interest in the same in conse(juonco of any sucdi purchase or contra;-t made or to bo made Avith such Indians or any of them unless Avith such authority and consent as aforesaid, every such person shall in every such case be deemed guilty of a misdemeanor, and shall, tin conviction thereof l;eforc any court of competent I I CHIMIN Ar< LAW. 409 plpos of larger bore lorwi.so wrongfully, i; away or wasting 1' tlicui respectively, 1 bo bold guilty of I tbcreof, tlio couit tried and convicted condemn such per- ig ten pound.'-: cur- liinuon gaol of the ding tbree montlu ; LANDS. . No purcbase or pper Canada wbicli Liii.s or any of them ' tbc authority and •, ber beirs or suc- int under tbe great ! privy .seal of the autbority and Con- or upon any tonus jlaiid.s wi til in Upper s or any of tliciu, :b Indians or uny 8ale of any lands -iivo, sell, demise, such lands or any or shall cuter oi iiy such lands by lor intere.4 in the -ucb purchase or li sucb Indians or lority and consent Lu in every such [neanor, and shall, ourt of competent jurisdiction, forfeit and pay to Her Majesty, her heirs or successors, the sum of two hundred pounds, and be further punished by fine and imprisonment nt the discretion of the court. 16 Vic. CuAr. 176. — 9. Any person inciting Persona in- Indians or half-breeds frequenting or residing in such ^\''"^J°:. ,, n • ^ , •! dlans to the tracts 01 country as atoresaid (unorganized tracts oi commission country in this Province bordering upon and adjacent offencM^ow to lakes Superior and Huron including the islands on punishable. those lakes which belong to this Province, and all other parts of Upper Canada which are not now included within the limits of any county or township) to the disturbance of the public peace, or to the commission of any other indictable offence shall be guilty of a felony, and upon conviction thereof, shall be sentenced to imprisonment for not more than five years nor less than two years in the Provincial Peni- tentia: , and for and notwithstanding anything to the contrary contained in an Act, (9 Vic. Chap. 41,) or in any other Act or law in force in Upper Canada, persons accused of inciting Indians or half-breeds aa aforesaid, or accused or convicted of any other crime or offence in any such provisional district as aforesaid (governor mat/ by proclamation declare any part or the whole of the unorganized territory to he a provi- iional judic'al district) may be committed to any common gaol in Upper Canada. INNKEEPERS. 13 & 14 Vic. Chap. 27. — G. Whenever any per- Tavefn-Wp- son shall have drunk spirituous liquors in any inn or to*imp?uon? tavern with the permission or sufferance of the keeper ™n°l,*°^ . thereof, and shall, while in a state of intoxication or dents to in- drunkenness, arising out of the use of such spirituous *°''*<^"**'* liquors, come to his death by committing suicide or by drowning or perishing from cold, or any other acci- dent, such keeper of any such inn or tavern shall be guilty of a misdemoanor, and, being conTicted there* persons. V If i. 1 i \ WW ■ 1 , ■ .,' 1 t 1 1 It i ' J!; !M Fine to be paid to heirs 410 rniMiNAi. LAW- of, after having been indicted and tried for such oJBTence in duo course of law, shall be liable to be imprisoned in the common gaol of the district in Lower Canada, or county in Upper Canada, in which such offence shall have been committed, for a period of time not less than two nor more than six months, and to pay a penalty of not less than twenty-five pounds, ilor more than one hundred pounds, the amount of which penalty shall, by the court before which such conviction shall take place, be ordered to be paid to such one or more of the heirs, legal iorre- sentatives, or surviving relatives of the drccns \ the said court may consider to be most in need or deserving of the same. INSURANCE COMPANIES. 14 & 15 Vic. Chap. 1G2.— -{The Western Assw offlMr/gun- ranee Company). — 22. Any person who aa secretary, ty of fraud, clerk or other officer of the company, shall be guilty of any designed falsehood, or fraud in any matter or thing pertaining to his office, or duty, shall be guilty of a misdemeanor, and any person offering to vote in person, at any election of directors in the said com- pany, who shall falsely persoifN^te another, or who shall falsely sign or affix the name of any other person, a member of this company, to any appointment of a proxy, shall be guilty of a misdemeanor. 24 Officers or stockholders may be witnesses. Penalty on 14 & 15 Vic. CliAP. 163.— (27ie Canada WeU officers gull- Farmers Mutual and Stock Insurance Company),— haai in mt- 14. Any pcrson who as secretary, deputy secretary, Jnz uTtlwir ■ tTcasurer, clerk or other officer of the company, shall office. bo guilty of any wilful fraud, in any matter or thing pertaining to his office, or the duties thereof, shall be guilty of a misdemeanor, and any person offering to vote in person, at any election of directors, in the said company, who shall falsely personate another, or who shaJl falsely sign or affix the name of any other Mii.MiNAL Law. ill lid tried for sucli ill be liable to be of the district in ' Canada, in which litted, for a period ; than six months, 3 than twenty-five drcd pounds, the J the court before )lace, be ordered to ! heirs, legal vcr^re- if the dfccn.S'-'\ , Q most in need or lNIES. Vie Western Am^ )n who as secretary, ny, shall be guilty d in any matter or aty, shall be guilty oifering to vote in in the said coin- other, or who shall y other person, a appointment of a janor. be witnesses. \he Canada H'cs^ ince Company).— deputy secretary, the company, shall y matter or thing [>s thereof, shall be [person offering to 1 directors, in the [senate another, or lamc of any other person, or member of this company to .iny appoint- ment of a proxy shall be guilty of a misdemeanor. IG Vie. Chap. \U.—{The Erie and Ontario Inmrancc Company'). — 14. Verbatim as section 14 ofl4&15 Vie. Chap. 1G8. JURISDICTION, VENUE, &c. 59 Geo. III. Chap. 10. — 1. All crimes and offences committed in any of the said tracts of coun- \ Iloreafter oP fences com- „ , . ,^ -. , . ... , mitted inun* try, or parts 01 this rrovincc, not being wuthin the orKanized •" r. . .- - a - - parts of this limits of any described county or township, may be inquired of and tried within any district of this Pro- vince, and may and shall be laid and charged to have been cojumitted within the jurisdiction of the court which shall try the same, and such court may and shall proceed thereon to trial, judgment and execution, or other punishment, for such crime or offence, in the same manner as if such crime or offence had been really committed within the district where such trial may be had, any law, usage or custom, to the con- trary notwithstanding. 2. When and so soon as any new county or coun- ties, township or townships, shall be laid out, des- vi'ibod and established, in any of the tracts of country '; >'es ,id, and shall be so declared by law or by pro- ■ci' itjon, under the hand and seal of the Governor, Lie 't lant-governor, or Person administering the gov- ernnient of this Province for the time being, by and with the advice and consent of his Majesty's Execu- tive Council, all crimes and offences committed within the limits of any such new county or counties, township or townships, shall be enquired of and tried in the district or districts, wherein such new county or counties, township or townships, shall be respectively comprehended, in like manner as such crimes or offences would have been inquired of and tried if this present Act had not been made or passed. 2 Will. IV. Chap. 2. — 1. Tholakos, rivers, and IVovince may bo tried in any dis- trict thereof. W'lien Kuch unorganized parts of the Province shall be formed into townships, the provi- sions of this act shall not apply to them. V' i'i I ii w !; I tip: 1^ fii 412 CritMLVAL LA\V. Kayi^'abio other watcM of this Province, which are not com- waters tu 1)0 , ,, ... , ,, ,',.. „ trtkeutobo prehcnued •vvithin the derined hnuts oi any town, Bovorai'dis^'^ township or county, shall and may be taken to be, trictjs to and are hereby declared to be parts of that district we'opposiU). respectively within the exterior side lines of which any such lake, river, or other water would lie and be if such exterior side lines were produced in that direc- tion, to the utmost limits of this Province. 2. All crimes and offences committed in or upon mitted upon any of the said waters, may be enquired of and tried waters may within any district lying adjacent to such waters, and be tried iii shall and may be laid and charged to have been com- mitted within the jurisdiction of the court which shall try the same; and such court shall and may proceed thereon to trial, judgment and execution, or other punishment, for such crime or offence, in the same manner as if such crime or offence had been really committed within the district where such trial may be had, any law, usage or custom to the con- trary notwithstanding. 4 & 5 Vic. CiiAr. 24. — 40. And for the more any district (i'ljacent thereto. Offenocs com- effectual prosccutiou of offences committed near the mittoiiouthe, j • r. t . • . n .• ^i • boundaries boundaries 01 districts or 01 counties, or partly m one and'tounUes district or county and partly in another, Be it enacted, may b3 tried that where any felony or misdemeanor shall be com- "*" '"^' mitted on the boundary or boundaries of two or more districts or counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall be begun in one district or county and com- pleted in another, every such felony or misdemeanor may be dealt with, inquired of, tried, determined and punished in any of the said districts or counties, in the same manner as if it had been actually and wholly committed therefh. 41. And for the more effectual prosecution of oflfences committed during journies from place to place, Be it enacted, that where any felony or mis- inl^ooan- demeanor shall be committed on any person, or on ty or uigtriot or in lospcot of any property, in or upon any coach, Offences com- mitted dur- In^jajourney or voyage, CRIMINAL LAW. 413 ih are not com- s of any town, be taken to be, of that district ncs of which any lid lie and be if 3d in that dircc- ivince. ittcd in or upon ired of and tried such waters, and ) have been com- the court which ; shall and may nd execution, or ir offence, in the ffence had been where such trial torn to the con- nd for the more imitted near the ^ or partly in one Br, Be it enacted, or shall be com- is of two or more distance of five or boundaries, ounty and com- or misdemeanor determined and or counties, in lally and wholly prosecution of from place to felony or mis- person, or on pon any coach, waggon, cart, or other carriage, whatever, employed ^JP^^^v in any journey, or shall be committed on any person, coach, &c, or on or in respect of any property, on board any p'*^*'-"'^' vessel whatever, employed in any voyage or journey upon any navigable river, canal, or inland navigation, such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in any District or county through any part whereof such coach, waggon, cart, carriage, or vessel shall have passed in the course of the journey or voyage, during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such district or county ; and in all cases where the side, centre or other part of any highway, or the sir!e, bank, centre or other part of any such river, canal, or navigation, shall constitute the boundary of any two districts or counties, such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in either of such districts or counties, through or adjoining to or by the boun- dary of any part whereof such coach, waggon, cart, carriage, or vessel, shall have passed in the course of the journey or voyage, during which such felony or tnisdcmoanor shall have been committed, in the same manner as if it had been actually committed in such district or county. 12 Yic. Chap. 78. — 21. All actions, informations rrovifions as and indictments, pending at the time so appointed by *° nations, proclamation tor the disuniting such junior county at the disso- from such union, shall be tried in the senior county y^j'^p''*^""^ unless, by order of the court in which the same shall be pending in term time or of some judge thereof in vacation, the venue tlierein shall be changed to the junior county which change every such court or judge is hereby authorized to grant and direct either on the consent of parties or in their or his discretion on hearing such parties to the point by afiidavit or otherwise. 82. All actions, informntionp, indictments, inqui- to'pendlng*'' ii«iJ))JHi9WW»^ff|^flH •^■<> 414 CRIMINAL LAW. IS f I'fi If (,.•• actions and other pro- ceedings in the present districts. As tr) suits pending ■when this Act com- i mencos. Parties in prison or nn der bail at the time of the dissolu- tion of any unions may be tried, ic. in either county. sitions and other proceedings of what nature or kind soever whether of a judicial or any other character now pending in the several districts in Upper Can- ada shall from henceforth be deemed and taken to all intents and purposes whatsoever to be pending in the counties or unions of counties to which they are respectively transferred as respectively set forth iu the schedule to this Act annexed marked B, as if the same had been originally instituted and proceeded within such counties or unions of counties respect- ively, and the diiferent courts, officers and other authorities in which or before whom the same shall be respectively pending, .shall take such order respect- ing the same as may be necessary or expedient for the proper disposition of the same according to law without pi-ejudice to the parties interested or affected or any of them from the abolition of such division into districts, and the establishment of a division into counties in lieu thereof as herein provided. 14 & 15 Vic. Chap. 5. — 12. Notwithstanding any change made by this Act in the limits of any county or union of counties or township, all indictments, suits, actions and proceedings pending in any court at the time this Act shall come into effect (1st Jan- uary 1852) may nevertheless be continued to trial and judgment, and such judgment may be executed as if this Act had not been passed although the local jurisdiction of such court may be changed as to other matters. 10 Vic. Chap. 181. — 12. Any person charged with any indictable offence who, at the Ume of the disuniting of any junior county from any senior county under the provisions of the Act, (12 Vic. Chap. 78) or of any other Act of the parliament of this province, shall be imprisoned on such charge in the gaol in such senior county, or be under bail or recognizance to appear for trial at any court in such senior county, may be indicted, tried, sentenced and punished either in such senior county, or such junior CRIMINAL LAW. 415 comity as to the court before whom such person shall be tried shall seem meet. 1-^ JURORS, CHALLENGE, &c. & li Vic. Chap. 55. — 53. Nothing herein contained shall extend, or be construed to extend, to ai|cn*to^io anv iurv of matrons, or any writ de ventre inspicicndu, tried by jury or to deprive any alien not naturalized, mdictcd or ;,„^,^ saved, impeached of any felony or misdemeanor, of the right of being tried by a jury de medletate lingxise, but that on the prayer of every such alien, so indicted or impeached, the sheriff shall by command of the court return for one half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had, and, if not, then so many aliens as shall be found in the same town or place, if any ; and that no such alien juror shall be liable to be challenged for want of any qualification required by this Act, but every such alien may^be challenged for any other cause, in like manner as if he were quali- fied by this Act. 55. If any man shall be returned as a juror for the ^u*"*fi°ation trial of any issue in any cause civil or criminal, or on to be a oawe !Uiy penal statute In any of the courts hereinbefore °' *'^''"'°''®* mentioned, (her Majesty's superior courts of common law at Toronto, having general criminal or civil juris- diction throughout Upper Canada, and all courts of criminal or civil jurisdiction within any county, union of counties, city or other local judicial division of a county — see. 1 ; and the sittings or sessions of assize, nisi prim, oyer and terminer, gaol delivery, sessions of the peace or county courts — sec. 29,) who shall not be (jualified according to this Act, the want of such qualification shall be a good cause of chal- lenge, ami he shall be discharged upon such chal- lenge, if the court shall be satisfied of the fact : Provided always, that nothing herein contained shall ihoviso as to extend in anywise to any special juror. special juror. 56. If any man returned as a juror for the trial of ~ ••yf'ntw^va^n'^' Wi ■ if u h Iff V, i!M 41G CRIMINAL LAW. If.i Peremptory rh»lleii|j;es limited. Want of free- },ny siich issuc sluiU bc fjualilied ill other respects hold nor a •' ,. i • » i ,. <« i i i i n cause of cbai-accordnip; to this Act, the want oi irechokl fchall not, lewRe- Q,| such trial, ill any case civil or criminal, or on any penal statute, be accepted as a good cause of challcnpe, either by the crown, or by the parly, nor as cause i'or discharging the man so returned upon iiis own appli- cation; any law, custom or usage to tlic contrary not- withstanding. 58. No person arraigned lor murder or felony (a) shall bc admitted to any peremptory challenge above the number of twenty, and the defendants aiTaigned for any misdemeanor, if they, or such of them as may be tried together, shall unite in such challenge, may challenge peremptorily, without assigning any cause for the same, any two of the jurors who may be called upon to serve on such trial. (/>) 59. In cases in which the Queen shall be a party, those who sue for the Queen shall not be alioM'od a caiisooniy. challenge to any juror who may bc called to serve upon the jury in any such case, except for cause to be assigned, tried and disposed of according to the custom of the court. (<) Crown to challenge for 16 Vic. Chap. 120.— 7. The following d; mse 1 ^u ■ •i •- ■ i 1 ! m ^f ii (a) The riglit of challenge extends to all cases of felonv, whether capital or not.— Gray v. Reg. ] 1 CI. & F. 427. (6) If on a trial for felony the pi-isoner peremptorily challenge some jurors, and the counsel for the prosecution also challenge so many that a full Jury cannot be had, tbo proper course is to call over the -whole panel in the same order as before, omitting those whom the prisoner lias per- emptorily challenged, and, as each juror then jijjpcars, tie counsel for the prosecution must state their caii.se of clial- lenge, and, if not suificient, and the prisoner docs notclial- lenge, for the juror to bc sworn. After a prisoner lias challenged twenty peremptorily, he may examine otlicrs ■who are called as to their qualification. — R. v. (uacL, 1) C. & P. 490. (c) The provisions of sec. 7, 10 Vic. ch. 120 appear in- tended to supersede this section, but tlie £A)i\i sec. is never- theless therein mentioned, and also in tlio first section as repealed. CRIMINAL LAW. 417 in other rospecta freehold hhall not, riininal, or on any :;auKe of challenge, y, nor as cause ior pon his own appli- > the contrary not- rder or felony (a) y challenge above cndants arraigned ch of them as may :;h challenge, may signing any cause rors who may be 11 shall be a party, I not be allowed a be called to serve cept for cause to according to the following clause all cases of felonv, I I CI. & F. 427. ' soncr peremptorily for the propccutinn cannot be had, tbo panel in tlie same |o prisoner lias pcr- tlien nijpears, the heir cansc of tlial- ncr Joes notclial- fcr a prisoner 1ms V examine otlicrs 'R. v. (Itach, OC. Ih. 120 appear iii- IriDth sec. is ncver- llio first section iis shall be substituted for the repealed sixty-ninth sec- ^'""^dlfoj! tion of the Act first above cited, and shall be read as reuoaied «eo- a part of the said Act; That in all inquests to beA^Wv!?" taken before any of the courts of Upper Canada Chap. 56. wherein the Queen is a party howsoever it be, not- withstanding it be alleged by them that sue for the Quoen, that the jurors of those inquests, or some of them, be not indifferent for the Queen, yet such inquests shall not remain untaken for that cause, but if they that sue for the Queen will challenge any of those jurors, they shail assign of their challenge a cause certain, and the truth of the same challenge Cause to be shall be enquired of according to the custom of the chaUenges'on court, and it shall bo proceeded to the taking of the J^® ^%J,°' same inquisitions, as it shall be found if the chal- lenges be true or not, after the discretion of the court : Provided always, that nothing herein contain- ed shall affect or be construed to affect the power of any court in Upper Canada to order any juror to stand by until the panel shall be gone through, at the prayer of them that prosecute for the Queen, as has been heretofore accustomed. 8. After the passing of this Act, it shall not he a . good ground of challenge against any person who teri not to fce may be called upon to serve as a juror, that he be- J'jj'Jjyjl^^' longs to any religious persuasion or denomination allowed by law to affirm in civil cases instead of taking an oath, but every such person shall be as eligible and liable to serve on all juries and inquests on his being affirmed, as if he had been sworn in the usual way. (>« corporate, company or society, or to any deposit in (.,„, as cteai- any Savings Bank, or shall steal any debenture, deed, infc'Bocds. bond, bill, note, warrant, order, or other security whatsoever, for money or for payment of monies, whether of this Province or of Great Britain, or of any British Colony, or of any Foreign State or Colony, or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing, every .such ofTender shall be deemed guilty of felony, of the same nature and in the same degree, and punishable in the same manner, as if he had stolon any chattel of like value with the share, interest, or deposit to which the security so stolen may relate, or with the money due on the security so stolen or secured thereby and remaining unsatisfied, or with the value of the goods or other valuable thing mentioned in the warrant or order ; and each of the several documents hereinbe- ' 420 Rulonfln- t«rprotatlon. Ofrolibory Attondud with vijloncft PRIMINAL LAW. fore cnumoratod, shall throujjhoutthia Act, be deemed for every purpose to bo ineliulod under, and denoted by, the words " valuablo security." (5. Wiiosocvcr shall rob any person, aiul nt the ofrobboiy" time of or innnediatcly before or immediately after w'thcuttin' ^^^^^^ vobbcry, shall stab, cut, or wound any person, Ac. "'shidl be fjjuilty of felony, and being convicted thereof shall suffer death. 7. Whosoever shall, being armed with any offen- sive weapon or instrument, rob, or assault with in- tent to rob any person, or shall, together with one or more person or persons, rob, or assault with intent to rob any person, or shall rob any person, and at the time of or immediately bef )rc or immedia' 'y after such robbery, shall boat, strike, or use an} ^r per- sonal violence to any person, shall be guilt;, -lony, and being convicted thereof shall be liable, at the dis- cretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 8. Whosoever shall accuse or threaten to accuse, Punishment ^'^^ person of the abominable crime of buggery, cora- forobtainiai^mitted either with mankind or wi^Ii beast, or of any threatof^^ assault with intent to commit the said abominable aecusiDK of crime, or of any attempt or endeavour to commit the crimes. saul abominable crime, or or making or otiering any solicitation, persuasion, promise or threat to any per- son whereby to move or induce such person to commit or permit the said abominable crime, with a view or intent in any of the cases aforesaid, to extort or gain from such person, and shall by intimidating such person, by such accusation or threat, extort or gain from such person any property, shall be guilty of felony, and being convicted thereof shall be liable, at tho discration of the court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not loss than seven i, i CRIMINAL LAW. 421 years, or to bo imprisoned in any other prison or pliico of confinement for any term not exceeding two years. 9. Whosoever shall rob any person, or shall steal runinhmoni any chattel, money, or valuable security from the from tiie'* person of another, shall be liable, at the discretion ofP""""- the court, to bo imprisoned at hard labour in the Provincial Penitentiary for any terra not exceeding fourteen years nor less than seven years, or to be imprisoned in any other prison or place of confine- ment for any term not exceeding two years. 10. Whrsoever shall assault any person, with Punishment intent to rob, shall be guilty of felony, and being (l.TtS^intlnt convicted thereof shall (isave and except in cases *" •'o''- where a greater punishment is provided by this Act,) be liable to be imprisoned for any term not exceed- ing three years. 11. Whosoever shall, with menaces or by force, Attempting demand any chattel, money, or valuable security, of *° "*'*«'" any person with intent to steal the same, shall bemonaceg. guilty of felony, and being convi:;ted thereof, shall be liable to be imprisoned for any term not exceeding three years. 12. If any person shall knowingly send or deliver gg^^j j^^. any letter or writing, demanding of any person with ter contain- menaccs, and without any reasonable or probable cause, demandMoj any chattel, money, or valuable security ; or if any esttort person shall accuse or threaten to accuse, or shall °°* ' knowingly send or deliver any letter or writing, accusing or threatening to accuse any person of any crime punishable by law with death, or transportation, or of any assault with intent to commit any rape, or of any attempt or endeavour to commit rape with a view or intent to extort or gain from such person any chattel, money or valuable security, every such offender shall be guilty of felony, and L eing convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour at the Provincial Penitentiary for any term not less than teven years. 422 CRIMINAL LAW. Sacrilege when capital. Durglars using Tio laaoe to suffer death. PuQishment of Burglars. When break' Into a house conslde'.'ed burglary. Burglary. OX' to be imprisoned in any other prison or place cf confinement for any term not exceeding two years. 13. If any person shall break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel, money, or valuable security in any church or chapel shall break out of the same, every such offender being convicted thereof, shall be liable to be imprisoned at hard labour at the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, (a) 14. Whosoever shall burglariously break an^l enter into any dwelling house, and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike any such person, shall be guilty of felony, and being convicted thereof shall suifer death. 15. Whosoever shall be convicted of the crime of burglary shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be impri- soned in any other prison or place of confinement for any term not exceeding two years. 16 So far as the same is esssential to the offence of burglary, the nidit shall be considered and is hereby declared to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeding day : And it is hereby doclared that if any person shall enter the dwelling house of another with intent to commit felony, or being in such dwelling house; shall (a) The vestry of a parish church was broken open and robbed ; it was formed out of what before had been the chui'ch porch but had a door opening into the church-ynrd which could only be unlocked from the inside : held this vestry was part of the fabric of the church and within tho meaning of an indictment for sacrilegcously breaking and entering the church. — R. v. Evans, 1 Cor. & M. 028- ("RTMIXAL LAW. 428 cominlt any felony, and shall in cither case break out of the said dwelling house in the night time, such person shall be deemed guilty of burglary. 17. Whosoever shall steal any chattel, money or steniinp in valuable security in any dwelling house, and shall by house vlth any menace or threat put any one, being therein, in menaces. bodily fear, shall be guilty of felony, and being con- victed thereof, shall be liable to be imprisoned at hard labour in the Provincial Penitentiary lor any term not exceeding fourteen years nor ].ess than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 18. No building, although within the same curti- What luiid- lage with the dwelling house, and occupied therewith, j^ft If]^ "* shall be deemed to be part of such dwelling house for i^o".?®.*"'" the purpose of burglary, or for any of the purposes poses, aforesaid, unless there shall be a communication be- tween such building and dwelling house, either im- mediate, or by means of a covered and inclosed pas- sage loading irom the one to the other. 19. If any person shall break and enter any build- ing, and steal therein any chattel, money or valuable J'ny'j^i'[j^J{|,g secm'ity, such building being within the curtilage of "i'thin the a dwelling house, and occupied therewith, but nota^^as^he " being part thereof, according to the provision herein- Jj^"*®';^,"* , before mentioned, every such offender, being con- ed as part of victed thereof, (either upon an indictment for the **"' ***'"*^" same offence, or upon an indictment for burglary, house breaking, or stealing to the value of five pounds sterling, in a dwelling house, containing a separate count for such offence,) shall be liable to be impri- soned at hard labour in the Provincial Penitentiary, for any term not exceeding fourteen years, nor ,css than seven years, or to be imprisoned in any other prison or place of confinement for any term not ex- ceeding two years. -0. If any person shall break and enter anys bop, ^,"^^^'y ^'^ ■ M'areliouse, or counting house, and steal therein any iitais-e, ie. ■i^f ■L ' ■> »■ 1 li 424 CaiMINAL LAW. chattel, money or valuable security, every such offeni der, being convicted thereof, shall be liable to any o| the punishments which the court may award as here-] inbefore last mentioned, (a) 21. If any person shall steal any goods or mer-l goods°?om chandize in any vessel, barge or boat of any descrip-j a vessel in a tion whatsoever, in any port of entry or discharge, orl or ainar&c. upon any navigable river or canal, or in any creek f belonging to or communicating with any such port, river or canal, or shall steal any goods or merchan- dize from any dock, wharf or quay, adjacent to any such port, river, canal or creek, every such offender, being convicted thereof, shall be liable to any of the punishments which the court may award as herein- before last mentioned. 22. Whosoever shall plunder or steal any part or Punishment any ship or vessel which shall be in distress, o, orwrac «>«• ^j.e(5]£ed, stranded or cast on shore, or any goods merchandize or articles of any kind belonging to such ship or vessel, and be convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 23. If any goods, merchandize, or articles of any Persons in kind, belonging to any ship or vessel in distress, or Bh^wreckwi wrcckcd, Stranded or cast on shore as aforesaid, shall, goods, not by virtue of a search warrant, to be granted as here- faetofy*'* ^ inaftcr mentioned, be found in the possession of any ■ecountishaii person, or on the premises of any person with his knowledge, and such person, being carried before a justice of the peace, shall not satisfy the justice that he came lawfully by the same, then the same shall, (a) Breaking into a blacksmitli's shop, and taking goods, is within this section. — R. v. Carter, 1 C. & K. 173. A cellar used merely for the deposit of goods is a warehouse within this section.— R. v. Hill, 2 M. & Rob. 463, '1 M. kill il '' ■ 'mt ii: 1 ill I» fv. ity, every such offen- ill be liable to any of t may award as here- i any goods or mer- boat of any descrip- ntry or discharge, or nal, or in any creek with any such port, J goods or merchan- uay, adjacent to any every such offender, i liable to any of the lay award as herein- or steal any part or 11 be in distress, o, shore, or any goods nd belonging to such hereof shall be liable, to be imprisoned at -*enitentiary for any ears, nor less than n any other prison lerm not exceeding e, or articles of any ;^essel in distress, or e as aforesaid, shall, be granted as here- le possession of any ny person with his iig carried before a sfy the justice that en the same shall, jp, and taking goods, , 1 C. & K, 173. A roods is a warehouse Rob. 463, CKIMIXAI. LAW. 425 by order of the justice, be forthwith delivered over to, or for the use of, the rightful owner thereof, and the offender, on conviction of such offence before the justice, shall forfeit and pay such sum of money, not exceeding twenty pounds, as to the justice shall seem meet. 24. If any person shall offer or expose for saleifnnyiwrBon any goods, merchandize, or articles whatsoever, which wTecklT shall have been unlawfully taken, or reasonably sus-po«V. Stealini; dngg or itt alliit; beasts, or birds ordi- narily kept in confinn- ment, and not tlio Hub- jocta of lar- ceny. Stealing trues, hhrub«, 30. If any person shall steal any dog, or shall stl any beast or bird ordinarily kept in a state of confiii ment, not bcinj; the subject of larceny at coninil law, every such ofl'ender, being convicted there] before a justice of the peace, shall for every sud offence forfeit and pay, over and above the value the dog, beast or bird, such sum of money not eJ ceeding five pounds, as to the justice shall seel meet. 81. If any person shall Steal, or shall cut, breall root up, or otherwise destroy or damage with intei ftTwherBso-' to stcal, the whole or any part of any tree, sapling c ever growing gjjj-ub, or any undcrwood, wheresoever the same ma be respectively growing, the stealing of such articl or articles, or the injury done, being to the amoun of a shilling at the least, every such offender, being convicted before a justice of the peace, shall, for every such offence, forleit and pay, over and above the value of the article or articles stolen, or the amount of the injury done, such a sum of money, not exceeding five pounds, as to the justice shall seem meet. 32. If any person shall steal, or shall cut, break, stealing Ac. ^^j. throw dowu with intent to steal, any pait of any ATiv iiVB or * V X • dead fence, Uvo or dcad fonco, or any wooden post, pale or rail, rtiie^o^grt^e'sc^ up or used as a fence, or any stile or gate, or any part thereof respectively, every such offender, being convicted before a justice of the peace, shall for every such offence, forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury do!:c, such sum of money not ext^ecding five pounds, as to the justice shall seem meet. 33. It' the whole or any part of any ti'cc, sapling. Suspected ^'' shri'.b, or any undcrwood, or any part of any lire i»r.«)nsin or dcad fcncc, or iiiiy post, pale, rail, stile or gate, or wMdr.tc"not any pait thereof, being of the value of two shillings, McounUn"^ at the least, shall, by virtue of a search warrant, to for it. be granted as hereinafter mentioned, be found in the possession of any person, or on the premises of any f. ' AAV. I any dog, or shall steal spt ill a state of confine- of larceny at connuon ing convicted thereof,] , shall for every such nd above the value of mil of money not ex- he justice shall seem al, or shall cut, break, )r damage with intent of any tree, sapling or iresoever the same may itealing of such article i, being to the amount J such offender, being ■ the peace, shall, for 1 pay, over and above irticles stolen, or the jcli a sum of money, to the justice shall al, or shall cut, break, steal, any pait of any en post, pale or rail, y stile or gate, or any such offender, being peace, shall for every rand above the value n, or the amount of Inoncy not ex^jecding all seem meet. of any tree, sapling, any part of any live rail^ stile or pate, or ilue of two shillings, a search warrant, to ned, be found in the the premises of any tlUMlNAL LAW. 429 person with his knowledge, and such person, being carried before a justice of the poaco, shall not satisfy the justice that he came lawfully by the same, he ahall, on conviction by the justice, forfeit and pay, 1 over and above the value of the article or articles so found, any sum not exceeding two pounds. 34. If any person shall steal, or shall destroy or damage with intent to steal, any tree, sapling, shrub, of^any^T*^ I bush, plant, root, fruiter vegetable production grow- *f ^e produc- . '■ \ 11 - 1 ° 1 . Won in K gaf' ing in any garden, orchard, nursery-ground, hot- den &c. pun- house, green-house or conservatory, every such offen- i*Il!l^? °° dcr, being convicted thereoi before a justice ot the conTictioni peace, shall forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money, not exceeding five pounds, as to the justice shall seem meet; and if any person so convicted shall afterwards commit any of the said offences, such offender shall be deem- lod guilty of felony, and, being convicted thereof, lehall be liable to be punished in the same manner as I in the case of simple larceny. 35. If any person shall steal, or shall destroy or I damage, with intent to steal, any cultivated root orvegeteWe " I plant used for the food of man or beast, or for niedi- SS^growing Icine, or for distilling, or for dyeing, or for or in the in gardens, Icourse of any manufacture, and growing in any land "' lopen or enclosed, not being a garden, orchard or jnursery-ground, every such offender being convicted Ithercof before a justice of the peace, shall forfeit and jpay, over and above the value of the article or articles ISO stolen, or the amount of the injury done, such JBura of money, not exceeding twenty shillings, as to Ithe justice shall seem meet, and in default of payment Ithereof, together with the costs, if ordered, shall be Icommitted to the house of correction for any term Inot exceeding one calender month, unless payment |be sooner made. 36. If any person shall steal or rip, cut or break stealing Iwilh intent to steal, any glass or wood-work belong- SS?k orta- 430 CRIMINAL tAWi Bi'1 'I I vn ♦ '* turoa of any kind from buildings, and inutal fixtures from grounds. Tenants and lodgers steal ing any pro- perty from houses or| apartments lot to them. Clerks and Rervants stealing pro- perty of their mas- ters. ing to any building whatsoever, or any lead, iroiij copper, brass, or other metal, or any utensil or fix- ture, whether made of metal or other material, res- 1 pectively, fixed in or to any building whatsoever, or any thing made of metal fixed in any land, being | private property, or for a fence to any dwelling house, garden or area, or in any squaie, street or other place, dedicated to public use or ornament, every such offender shall be guilty of felnoy, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larcjny ; and in case of any such thing fixed in any square, street, or other like place it shall not be necessary to allege the same to be the property of any person. 37. If a»y person shall steal any chattel or fixture let to be used by him or her, in or with any house or with any house or lodging, whether the contract shal have been entered into by him or her, or by her husband, or by any person on behalf of him or her, or her husband, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ; and in every such case of stealing any chattel, it shall be lawful to prefer an indictment in the common form as for larceny, and in every such case of stealing any fixture, to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the pro- perty in the owner or person letting to hire. 38. If any clerk or servant shall steal any chattel, money, or valuable security belonging to or in the possession or power of his master, every such offender, being convicted thereof, shall be liable at the discre- tion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for any term not exceed- fourteen years, nor less than seven year- or to be im- ')risoned in any other prison or place of confinement for any term not exceeding two years. 39. If any clerk or servant, or any person employed fjRlM IN AL LAW. 431 tor tho purpose or in the capacity ol a clerk or scr-*^ ''"''''«>' vant, shall by virtue ot such eiuployincnt receive ortvivinKony take into his possession any cbnttol, money or valu- ",\"",^J,y m«». able security for, or in the name or on the account tor's account of his master, and shall IVadulently embezzle the iHnKit, Khaii gftUio or any part thereof, every such ofTender shall be h^vp^Xni-" dccuied to have feloniously stolen the same from his ousiy stolen luastor, although such chattel, money, or security was ''' not received into the possession of such master otherwise, than by the actual possession of his clerk, servant or other person so employed ; and every such oifoncier being convicted thereotj shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last men- tioned. 40. It shall be lawful to charge in the indictment, 01^,10^^ g^^g and proceed against the oflender for any number o'emboxzie- of distinct acts of embezzlement, not exceeding charged*n three, which may have been committed by him ^^^^^^ *"****'*' against the same master within the space of six calendar months from the first to the last of such acts; and in every such indictment, except where the offence shall relate to any chattel, it shall bo suf- ficient to allege the embezzlement to be of money, g^ti^n'^nd without specifying any particular coin or valuable proof of pro- security; and such allegation, so far as regards the ^^f *'"'^*' description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount although the particular species of coin or valuable security of which such amount was composed shall not be proved ; or, if he shall be proved to have em- bezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly. 41. If any money or security for the payment of>gentsem« nionoy shall be intrusted to any banker, merchant, n^a»y fp. 432 truKtod to them to Us omployud to any spuilal purpuras; u Or ombcK- lling any (?oods or val- uable securi- ty entrusted to thoin for safe custody, or for any special pur- pose, guilty of A misda- moanor. CUlMlN.Vi, LAW. broker, attoi'iiey or other a^ijent, with any direction iu w itiiig to apply such money or any part thereof, or the procectls, or any part of the proceeds of such security, for any purpose specifled in such direction, and ho shall, in violation of good faith, and contrary to the purpose so specified, in any wise convert to his own use or benelit such money, secuiity or proceeds, or any part thereof respectively, every such oftender shall bo guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the l*roviiicial Penitentiary, for any term not less than seven years, or imprisoned in any other prison or place of contine* ment for any term not exceeding two years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award ; and if any chat- tel or valuable security, or any power of attorney, for the sale or transfer of any share or interest in any public stock or fund, whether of this Province or of the United Kingdom of Great Britian and Ireland, or of Great Britain or oi Ireland, or of any British Colony or Foreign State or Colony, or in any fund of any body corporate, company or society, shall be intrusted to any banker, merchant, broker, attorney, or other agent for safe custody, or for any special purpose without any authority to sell, negotiate, trans- fer or pledge, and he shall in violation of good faith, and contrary to the object or purpose for which such chattel, security or power of attorney shall have been entrusted to him, sell, negociate, transfer, pledge or in any manner convert to his own use or benefit such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award as herein- before last mentioned. 1 I CRIMINAL LAW. 433 42. Nitfliinjj; hcrcinbcfovo contninod relating to a^'oiitfi, shall ailcct any trustee in or under any instru- ment whatever, or any iiiortifagco of any property, real or personal, in respect of any act done by such trustee or uiortgaj^eo in relation to the property com- prised in or aftectcd by any such trust or mortgage ; nor shall restrain any banker, merchant, broker, iittorney or other agent from receiving any money which shall be or become actually due and payable upon or by virtue of any valuable security, according t(i the tenor and effect thereof, in such manner as ho might have done if this Act had not been passed ; nor from selling, transferring, or otherwise disposing (if any securities or effects in his possession, upon which ho shall have any lien, claim or demand, entitling him by law so to do; unless such sale, transfer, or other disposal shall extend to a greater nuuibcr or part of such securities or effects than shall be requisite for satisfying such lien, claim or de- mand. 44. Nothing in this Act contained, nor any pre- ceding conviction or judgment to be had or taken thereupon against any banker, merchant, broker, fac- tor, ^attorney, or other agent, as aforesaid, shall pre- vent, lessen or impeach any remedy at law or in equity, which any party aggrieved by such ofltence might or would have had if this Act had not been passed ; but, nevertheless, the conviction of any such offender shall not be received ' i evidence in any action at law or suit in equity again^'t him ; and no banker, merchant, broker, factor, attorney, or other agent as aforesaid, shall be liable to be convicted by any evidence ■whatever as an offender against this Act, in respect of any act done by him, if he shall at any tiiue previously to his being indicted for such offence have disclosed such act on oath, in consequence of any compulsory process of any court of law or e()uity in any action, suit or proceeding which shall have ))oen bona fide instituted by any party aggrieved, or Not to alToct truHtooH or inortgaijuoH. Nor bankew, &c. ruceiviti;^ nwnuy dun on RuuurUies. Or dicposlnpf of SOCUI'itiuH on which thoy liuvo !i lien. Theso provi- sions, fts to agents, Bhnll not lesson any remedy which the party a;,'- grlovod now has. V 484 ClllMINAL LAW. ^ I Ohtalnlnp; monoy''uiider fiilse pro- ton w»,H mls- doincnnor. No acquittal on the ground that the caso pro- ved amonnts to larceny. Where the original of- fence is felo- ny, the re- ceiver of stolen pro- perty may be tried either as an accesgo- fy after the fact, or for a Bubstautivo felony, if ho sluill huvo disclosccl tlic saiuo in any cxainii tion or deposition beloie any commissioners of bai rupt. 45, And whereas a faihire of justice frequcn arises from the subtle distinction between hircenya fraud : for remedy thereof, be it enacted, that ii" a person shall, by any false pretence, obtain from ni other person, any chattel, money, or valuable sec rity, with intent to cheat or defraud any person the same, every such oflcuder shall be guilty rai.sdcmeanor, and being convicted thereof, shall liable, at the discretion of the court, to be imprisoiK at hard labour in the Provincial Penitentiary, for ar term not exceeding fourteen years, nor less tha seven years, or imprisoned in any other prison ( place of confinement for any term not exceeding tw years, or to suffer such other punishment, by line d imprisonment, or by both, as the court shall award Provided always, that if upon the trial of any pcrsoi indicted for such misdemeanor, it shall be proved that he obtained the property in question in am such manner as to amount in law to larceny, he sliall not, by V ison thereof, be entitled to be acquitted of such misdemeanor; and no such indictment shall be removeable by certiorari ; and no person tried for such misdemeanor shall be liable to be afterward!! prosecuted for larceny upon the same facts, {a) 46. If any person shall receive any chattel, nioncy, valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law or by virtue of this Act, such person, knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony, (rt) An indictment for obtaining goods by false pretences is bad on error, if it does not state to whom the goods be- longed.— Sill V. Queen, (Error) 1 Ellis & IJlackburnc. 552. ■ iJii. WW CllIMlNAL LAW. 485 saino in any cxaminu- ommissioners of bank- I of justice frequently DU between larceny and it enacted, that if any cncc, obtain I'roiu any ney, or valuable secu- defraud any person of ;r shall be guilty of a acted thereof, shall be court, to be imprisoned al Penitentiary, for anj 1 years, nor less than n any other prison cr ;crin not exceeding two punishment, by line (r the court shall award; 1 the trial of any person ior, it shall be proved ■ty in ((uestion in any law to larceny, he sliall itlcd to be acquitted of ch indictment shall Le lid no person tried for iable to bo afterwards e same facts. («) jive any chattel, money, |operty whatsoever, the ill amount to a felony, irtuc of this Act, such have been feloniously eiver shall be guilty of I ;id convicted either as ir a substantive felony, I goods by false pretencej to whom the goods bf-| hilUs & IHackburnc. Gut iiiul ill the latter case, whetluir the principal felon filiall or shall not have been previously convicted, or shall or shall not bo amenable to justice; and every such receiver howsoever convicted, shall be liable, at the discretion of the court, to bo imprisoned at hard labour in the Provincial Penitentiary, i'ot any term not exceeding fourteen years, nor less than seven years, or imprisoned in any other prison or place of conlineinent for any term not exceeding two years : I'lovided always, that no person liowsoever tried I'or receiving as aforesaid, shall bo liable to be prosecuted a second time for the same offence. 47. If any person shall receive any oh.ultel, mnnoy, whcro tiio valuable security, or other property whatsoever, tbe^J^'j.|j"j'^'|^'"" stealing, taking, obtaining or converting whereof is mii-aounnn- iiiado an indictable misdemeanor by this Act, such "^;iy7,^''prcH'' person, knowing the same to have been unlawfully "wuli'J for a stolon, taken, obtained or converted, every such re- or. coivor shall be guilty of a misdemeanor, or may be indicted and convicted thereof, whether the person ^'ailty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice; and every such receiver shall, on conviction, be liable, at the discre- tion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for any other term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding tv/o years, 48. If any person shall receive any chattel, money, ah rociivers valuable security, or other property whatsoever, know- w1ut« tiie iiig the same to have been feloniously or unlawfully }|I'uf,ii'"Vn''' stolon, taken, obtained, or converted, every such per- their posses- son, whether charged as an accessory after the iact as°wVi'(MMiio to the folony, or with a substantive felony, or with a Jl^'^'jf^)'",';^^, misdemeanor only, may bo dealt with, tried and pun- ished in any district, county or place in Avhich he shall have ov .shall have had any such property in his possession, or in any district, county or place iu >0i' m I 1 436 CRIMINAL LAW. Avhicli tlio party guilty of the principal felony or mis. demeanor niay bylaw be tried, in the same maniicrasl sucli receiver may be dealt with, indicted, tried and punislicd in the district, county or place where he actually received such property, (a) 40. If any person guilty of any such felony or Thoownorofmisdemcanor as aforesaid, in stealing, taking, obtain- pi'Tty^ prose- i'\? 0^" Converting, or in knowingly receiving anj ""♦'"K tiiii'f chattel, money, valuable security, or other propcrtv cnnvictioii wliatsoevcr shall be indicted for any offence by or on rosmjHmiof*^^*^ behalf of the owner of the property, or his heir, his property, curator, cxccutor Or administrator, and convicted thereof, in such case the property shall be rcstoroJ to the owner or his representative ; and the court, before whom any such person shall be so convicted, shall have power to award from time to time writs of restitution far the same property, or to order the re- stitution thereof in a summary manner: Provided ahvays, that if it shall appear, before any award or order made, that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or bein;; a negotiable instrument, shall have been bona, fide taken or received by tnmsfer or delivery by some per- son or body corporate, for a just and valuable eon- sidoration without any notice or without any reason- able cause to suspect that the same had by any felony or misdemeanor boon stolen, taken, obtained or con- verted as aforesaid, in such case the court shall not av/ai'd or order the restitution of such security, (h) 50. ]^]vcry pei'son v.dio shall corruptly take any money or reward, directly or indirectly, under pre- tence or on account of helping any person to any chattel, money, valuable security, or other property Exception. (o) Vide 12 Vic. eh. 21, iuiVa. (.'/) The property in n stolen clsattol revests in tho ovnc; on conviction of tlio tliicf, tind micIi owner may maintain ti'ovcr lor it, thou^ii tliovo has been no order for j'estitution. — Seiittor^'-ood v. SylvoKtcr, 1-") Q. 1'.. oO(J. iV. incipal felony or mis. 1 the same niiniiierasl 1, indicted, tried and y or place where lie (a) any such felony or iling, taking, obtain- dngly receiving anj i, or other property any offence by or on property, or his heir, ator, and convicted 3rty shall be restored ivo; and the court, liall be so convicted, time to time writs of ', or to order the re- manner: Provided before any award or Rceurity shall have id by some person or cnt thereof, or beinj; lavo been bona fide livery by some per- and valuable con- Avithout any reason- had by any felony en, obtained or con- the court shall not such security, (h) corruptly take any irectly, under pre- any person to any or other property icvcsty ill tho owic.' owner in;ij' miiiiituiii ■ oivlcr for I'estitutioii. CRIMINAL LAW 437 wlmtsoevcr, which shall by any felony or misdemeanor ^j!^|!.^"^ *, have been stolen, taken, obtained or converted, as luipinfr to aforesaid, shall (unless he cause tho offender to be of stokm pro- iipprehendcd and brought to trial fur the same) bept'rty yiih-^ cuilty of felony, and, being convicted thereof, shall tun o'iTm\d"r" be liable, at the discretion of the court, to be impri- **' *"'*'• goncd at hard labour in the Provincial Penitentiar}^ fur any term not less than seven years, or to be impri- ,soned in any other prison or place of confinement for any term not exceeding two years. («) '51. If any person shall publicly advertise fv I'OAvard ^^lYcHisin"' for the return of any property whatsoever, which * »t'ward for shall have been stolen or lost, and shall in such stolen pro-° advertisement use any words purporting that mo Pjj'J,Yn(^^/i|!; ([ucstion will be asked, or shall make use of any words in any public advertisement, purporting that a reward will be given or paid for any property which bhall have been stolen or lost, without seizing or making any inquiry after the person producing such property, or shall promise or offer in any such public / advertisement to return to any pawnbroker or other person who may have bought or advanced money by way of a loan upon any property stolen or lost, the money so paid or advanced, or any other sum of iiiohcy or reward for the return of such property, or (rt) On an indictment against A., framed on a similar enactment, for feloniously receiving from B., under pre- tence of helping B. to recover goods stolen from liim, and Avitli not causing the tiiicvos to ho apprehended, three ques- tions were loft to the jury : — 1st. Bid A. mean to screen f guilty parties, or to share the money "with them? 2i. \ Did A. know the thieves, and intend to assist then in get- ting rid of the property, by promising B. to buy it ? 55rd. Did A. know tho thieves, and assist B. as her agent, and at Lev request, in endeavouring to purchase the stolen pro- perty from them, not meaning to bring tho thieves to jus- tice ? Tlio jury answered the first qiiestion in the negative, and tho third in the affirmative : Ilehl, that the receipt of tlie money under such circumstances was a corrupt receiv- ing by A.— 11. V. Pascoc, 1 Temp. & U. 141. ! i -138 CR13IJNAL LAW. ? S I i'l m !l 1 .i a a A ppi'snn in tlio net of coiiiuiitting any olFonpo may lio ap- proliontlod without ;i warrant. A justii'o. upon ;rood frround of suspicion, proved on oatli, may firant a scarcli war- rant. Any persou to wlioui (stolen pro- l>erty is of- fered, may sei/.o the party olloiid- injr. if any person t^luill priiit or publish any .siich iulvcv. tisenient in any of the ahovo eases, every such per- son sliuU forfeit the sum of twenty pounds for every sucli olfence, to any person who will sue for the same, by action of debt to bo recovered with full costs of ' suit, (a) 55. Any person found connnitting tmy oifencc punishable either upon indictment, or upon sumiimrj conviction, by virtue of this Act, may be iniiuedi- ately apprehended without a warrant, by any pcact olhcer, or by the owner of the property on or witli respect to which the oflence shall betcommittcd, or by the servant of any person authorized by sucli owner, and forthwith taken before some neighbour- ing justice of the peace, to be dealt with according to law ; and if any credible witness shall prove upon oath, before a justice of the peace, that there is rea- sonable cause to suspect that any property whatso- ever, on or with respect to which any such oiFence shall have been committed, is in any dwelling-house, out-house, garden, yard, croft, or other place or places, the justice may grant a warrant to search such dwelling-house, out-house, garden, yard, croft or other place or places, for such property, jis in tlic case of stolen goods ; and any person to whom any property shall be oiFered to be sold, pawned, or delivered, if ho shall have reasonable cause to suspect that any such offence has been committed, on or with respect to such property, is hereby authorized, and if in his power is required to apprehend and . forthwith to carry before a justice of the peace, the party offering the same, together with such property to be dealt with according to law. 61. It shall be lawful for the Queen's 3Iajcstyand M (a) The law does not autliorize a private person to forego a prosecntion upou any terms, and if a promiso bo given ami brolvou iu such a manner as a jury would consider Rcandalous, yet in point of law that makes no diirorencc.— 11. V. Daly, b C. & P, 342. ClimrNAL LAW. 4;jo with full costs of icon's Majesty and f,i tlic lj''v\jinur, jiicutcrmnt (joveriioi- or person * "•"'ion for luliniiustorinp; tlio government ot this rrovinco, to of money, cxttiud the royal mercy to any person imprisoned by virtue of this Act, althouj^h he shall be imprisoned lov non-payment of money to some person other than tlie crown. ()8. If any person having stolen or otherwise unlawfully taken any chattel, money, valuable sccxx-'^^l^j^l^'lf. .•itv. i»r other property whatsoever, the stealing orfu"ceHcom- uiiliiwliilly taknig whereot is made punishable by of this Pro- iadictmeiit by any of the provisions of this Act, iii t'u",J^ca"s""'' any part of her i>Iajesty's dominions, shall afterwards have the same property in his possession in any part i)f this Province, he may Lo dealt with, indicted, tried and punished for such offence under this Act, ill that part of this Province where he shall so have such property, in the same manner as if ho had actually stolen or unlawfully taken it in that part ; and if any person in any part of this Province shall receive or have any chattel, money, valuable security, or other property whatsoever, which shall have been stolen or otherwise unlawfully taken in any other part of her Majesty's dominions, such person know- ing the said property lo have been stolen or other- wise unlawfully taken, he may be dealt with, indicted, tried, and punished for such ofFcnco in that part of this Province whc ' he shall so receive or have the .stolen property, in he same manner as if it had been originally stolen or i ilawfully taken in that part of this Province as afoi .said. GO. All sums of money mentioned in the Act to i^^curren^y be deemed currency. 70. All Acts and parts of Acts repugnant to this Act repealed. 8 Vic. CiiAr. 4. — 10. All books, papers, accounts punishment iind documents of what kind soever and by whom of officers or and at whose cost soever the paper and materials pi^iyeS in""* thereof may have been procured or furnished, which ^o^ecting 1111 *i 1 1 1 1111 1 1116 rovcniio lall liavn hoen kept by <>i' used or shall have boon nnd einbez- [ "I i ^V.ff: / ,■ 'y : \ , , ■' '■ '-). 1 ', 1 • M,^ Ht 11^9 % 1 M-: . , ,..,, I , 440 sainw or any iKKiks Ac thereunto relating. Proviso: otlier reme- dies uot to bo impaired. In an indict- ment for stealing, a count may 1;e inserted for receiving and vice versa. CIU.AUXAL LAW. received or taken into the popsessioii of any officer or person employed or liavirg been employed in the collection or manjigemcnt of the revenue, or in accountinp; for the same by virtue of liis eniployniont as such, shall be deemed to be chattels belonging,' to her Majesty, and all monies or valuable securities which shall have been received or taken into his posses.si(jn by virtue of his employment shall be deemed to Lo monies and valuable securities belonginp; to her Ma- jesty, and if any such officer or person shall at anytime fraudulently embezzle any such chattel, money or vr.l- uable security, (and any refusal or failure to pay over or deliver up any such chattel, mono}^ or valiuiblc security to any officer or person who being duly authorized by the governor in council shall deniaii'd the same after the passing of this Act, shall bo a i'raudulent embezzlement thereof) he shall be deenicd to have feloniously stolen the same, and may Ic indicted and proceeded against, and being convicted thereof, shall be liable to be punished in the same manner as any servant, who, having fraudulently embezzled any chattel, money or valuable security received or taken into his possession by virtue ol' his employment for or on the account of his master, and being in law deemed to have feloniously stolen the same, may be indicted, proceeded against, and punished. Provided always, that nothing herein contained shall prevent, lessen or impeach any remedy which her Majesty or any other party may have against such offender or his sureties or against any other party whomsoever, but nevertheless the coi- viction of any such offender shall not be received in evidence in any suit or action at law or in equity against him. 12 Vic. Chap. 21. — 1. From and after the pass- ing of this Act in any indictment for feloniously stealing property, it shall be lawful to add a count for feloniously receiving the same property knowing it to have been stolen, and in any indictment for fclo- ClllMlNAli LAW. 441 iioii ofniiy ofHccr or 1 cnii)lo}-od ill tlio 10 rovGiiuo, or in of his oinployniont lattels belongin.,^ lo bio .securities which into liis possession I bo deemed to Ic lonoiiirr to her Ma- on shall at any time attel, money or vnl- failurc to pay over money or valuable who being duly noil shall dcniaiul is Act, shall bo a he shall be detuned mie, and may Ic id being convicted shed in the same iving fraudnleutly valuable security ;ion by virtue ol' _t of his master, 'oniously stolen ed against, and nothing herein ■aeh any remedy arty may have or against any theless the coi- bo received in iw or in equity after the pass- for feloniously to add a count •operty knowing iclment for fclo- in to 1 per i r tt niously receiving property, knowing it to have boon f tolon, it shall be lawful to add a count for feloniously stealing the same property. And where any such iadictmont shall have been preferred and found against any person, the prosecutor shall not bo put to his election but it shall be lawful for the jury who shall try the same to find a verdict of guilty either of stealing the property or of receiving it knowing it to have been stolen, and if such indictment shall have been preferred and found against two or more per- sons, it shall be lawful for the jury who shall try the same to find all or any of the said persons, guilty cither of stealing the property, or of receiving it knowing it to have been stolen, or to find one or )aore persons guilty of stealing the property, and the other or others of them guilty of receiving it know- ing it to have been stolen, (a) LAWLESS AGGRESSIONS. o Vic. Chap, 12. — 1. Repeals 1 Vic. Chap 3. citizennor 2. If any person, being a citizen or subject ofsuiijectsofa any Foreign State or Country, at peace with the jj^we^ukcn (a) Where the stealing is in county Y, and the receiving in county L, both are triable in Y and the indictment may allege both in Y.— R. v. Henley, 2 M. & Rob. 524, In indictments under this Act there may be as many counts for felonious receiving as for larceny, and the prosecutor cannot be put to his election on what count or counts he will proceed. — R. v. Beaton, 1 Temp. & M. 87. Where a prisoner was indicted for stealing certain goods, and in another count for receiving said goods, "so as aforesaid feloniously stolen," and the jury acquitted of the stealing and convicted of the receiving , the conviction was affirmed upon a case reserved on a motion in arrest of judgment. But in such a case the judge should direct the jury to acquit of receiving, if they do not find prisoner guilty of stealing. — H. V. Craddock, 1 Temp. & M, 3G1. Neither upon an in- dictment for stealing nor receiving, can evidence be admitted that the prisoner had at the time or previously other stolen goods in his possession. — R. v. Oddy, 1 Temp. & M. 593. See also joosf title post office, 13 & 14 Vic. Chap, 17. u2 442 CRIMINAL LAAV. II I I i '.■• i 1: 1 Si i"'l' l^i^ i hi? R In arms la this Vro- vilico ; Or comintj; thorulii with iutent to lovy wiir; or To coininlt cortiilu folo uies; May be tried by IV Militiii Ooneral Court Miir- tiiil; And, If con- victed, to bo* Kontenced to death. Any subject levying wac in this Pro- vince with foreigners; Or entering the Province with foreign- ers with la- tent to levy war. Or to commit such felony ; With intent to aid such persons ; May be tried and punish- ed in like manner. ■P' United Kingdom of Oront liritain and Iiclaml, ►shall, after the passing of this Act, be or con- tinue in arms against her Majesty, her heirs or successors, within this l*rovince, or shall comnut any act of hostility therein, or shall enter this Province with design or intent to levy war against her said Majesty, her heirs or successors, or to commit any felony within the same, for which any person con- victed of such i'olony would by the laws of this Pro- vince be liable to suffer death, then it shall and may be lawful for the Governor of this Province to order the assembling of a Militia General Court Martial for the trial of sucli person, agreeably to the JMilitia Laws of this Province ; and upon being found guilty by such Court Martial of offending against this Act, such person shall be sentenced by such Court ]\Iartial to suffer death, or such other punishment as shall be awarded by the court. 3. If any subject of her Majesty, her heirs or suc- cessors, shall within this Province levy war against her Majesty, her heirs or successors, in company with any of the subjects or citizens of any Fo- reign State or Country then at peace with the United Kingdom of Great Britain and Ireland, or shall enter this Province in company with any such subjects or citizens of a Foreign State or Country at peace with the said United Kingdom, with intent to levy war on her Majesty, or to commit any such act of felony as aforesaid within this Province, or shall join himself to any person or persons whatsoeTei, whether subjects or aliens, who may have entered this Province with design or intent to levy war ou her Majesty, her heirs or successors, or to commit any such felony as aforesaid within the same, with the design or intent to aid and assist such last-men- tioned person or persons to levy war, or to commit any such Act of felony as aforesaid, then such sub- ject of her Majesty, her heirs or successors, shall aq liable to be tried and punished by a Militia Court 'I li: CUIMINAL LAW. 443 Miirti.Hl, in like manner as any citizen or subject of a Foreign State or country at peace with her iNFajcsty, licr lioirs or successors, is liable under this Act to 1)0 tried and punished. 4. The citizen or subject of any Foreign State or Country offending against the provisions of this Act, ^°Jj "^* shall be deemed guilty of felony, and may, notwith- may be tried standing the provisions hereinbefore contained, becou°?ofOyor prosecuted and tried before any Court of Oyer and and Termin- Tcrniiner and General Gaol Delivery in and for any district of this Province, in the same manner as if the offence had been committed in such district, and upon conviction shall suffer dca^h as in cases of felony. LIBEL. L3 & 14 Vic. Chap. CO.— 1. From and after thcSdlrocted passing of this Act, it shall and may be lawful on the ^ 'jj^^f* trial of any action, indictment, or infornuition for guilty on the the making or publishing any libel, on the plea of JY,o'^uw°Ja?*^ not guilty pleaded, that the jury sworn to try that tion, and of issue may give a general verdict of guilty or not ^crfbedf guilty upon the whole matter put in issue in such action, or upon such indictment or information and shall not be required or directed by the court or judge before whom such action, indictment or infor- mation shall be tried, to find the defendant guilty, merely on the proof of publication by such defend- ant of the paper charged to be a libel and of the sense ascribed to the same in such action, indictment or information, Provided always, that the court or judge, before whom such trial shall be had, shall according to their or his discretion give their or his opinion and direction to the jmy on the matter in issue as in other cases ; And provixied also, that the jury may on such issue find a special verdict, if they shall think fit so to do, and that the defendant if found guilty may move in arrest of judgment on '1^: 444 CRIMINAL T,A\V .!> \A VA ii'M^ **: n .siK'h ^I'ouiul niul in such uiannor as ho might hiivo dune bolbro iho passing; oi' this Act. ru.iisununt '^' li'»»y pt^ii'won jshall pubHsh or thro!i((Mi to \)\\h- ibroxfoiiinglish any hbol ii))on any other i)cr.son, or ^ liir llio iltiU'iulMiit ill plcadiiiji; to \ho. snid iiidietiiKMit or iiil'oniiatli)i» to allo' '"'7 11 1 11 1 1-1 1 U) goiiorul. jiloa tlie j»roseeutor shall uc at hberty to reply «j;encrally (loiiyinj; the whole thereof. And if after such plea ah to iiKgro- the d(!fendant shall bo convicted on such indictment ^"y""'"" or inlormation, it shall bo competent to the court in sucinriTouco. jironouncinfj; sentence to consider whether the f/;uilt of the defendant is aggravated or mitigated by the said plea and by the evidence given to prt)vc or dia- ])rove the same ; (ed with any oilencc shall bo brought betbre any court to bo discharged for want of prosecution, and such person shall appear to be insane, it sliall bo lawful ibr such court to order a jury to be cinpanncl- led to try the sanity of such person, and if tho jury .so euipannelled shall find such person to bo insane, it shall be lawful for such court to order such person to bo kept in strict custody, in such place and in such manner as to such court shall seem tit, until her Majesty's pleasure shall bo known, and in all cases of insanity so found, it shall bo lawful for the Governor of this Province to give such order for the safe cus- tody of such person so found to bo insane, during her Majesty's pleasure, in such place and in such manner as to him shall seem fit. :| 'Ifif jjjL wtt 1 MALICIOUS INJURIES TO PROPERTY. Setting Are to a church or chapel Seitinf? firo 4 & 5 Vic. CiiAP. 20. — 2. Whosocvcr shall un- housoTc."""^ ^'^^^^^I'y and maliciously set firo to any dwellinj]; house, any person being therein, shall be guilty of felony, and being convicted thereof shall .suffer death, (a) 3. Whosoever shall unlawfully and maliciously set fire to any church, chapel or meeting house for the house,' ware- cxcrcisc of any mode or form of religious worship ' ■ whatever, or shall unlawfully and maliciously set lire to any house, stable, coach-house, out-house, ware- house, office, shop, mill, malt-house, hop-oast, barn, (a) Where the floor o^tho house set fire to, liad been at a rodho at tho' not in a blaze, held, this was a sutficient burn- ing to sustain the indictment. — R. v. Parker, C. & P. 45. CKl.MJNAL I-A\V. 449 PROPERTY. c. (.;• ui'Miiiiry, or tn niiy ImiWinj.!; (»r crcctlitTi iiscil in (•;in_)iii,n" oil liny tnulo or luaiiulhcturc, or any Lrnncli tlu-ri'oi", wliothtT tho Kuno or any of tlioni, respcc- (ivt'ly, sliiill thcii 1)0 in tlio posKi'Shion ot'theoncnder, (ir in till! ]'o.-ses.sion of any other ])(;r.son, .shall bo ;j,uilty of fuloiiy, and boiiij^ convicti'd tlusrcof, shall bo liabK' at tho discretion of the court to bo iniprisonod !;t hard labour in tlu! Provincial IVnitentlary for tlio leriii of his natural life or lor any term n(;t less than seven years, or to bo ini})risoned in any other prison or place of confinonicnt fi»r any term not exceeding two years. ('S: tlio loom or frame, or on any machine or engine, or oa the rack or tenters, or in any .stage, process, or progress of manul'acture ; or shall unlawfully and maliciously cut, break, or destroy, or damage with iiitoiit to destroy or to render useless, any warp or sluitc of silk, woollen, linen, or cotton, or of any one or more of those materials mixed with each other, or mixed with any other material, or any loom, frame, machine, engine, rack, tackle, or implement, whether fixed or moveable, prepared for or em- ployed in carding, sjnnning, throwing, weaving, ful- ling, shearing, or otherwise manufacturing or pre- ])aring any such goods or articles : or shall by I'orec enter into any house, shop, building, or place with intent to commit any of the offences aforesaid, every such offender shall bo guilty of felony, and (a) In the impcvifil statute ; 1 Vic. Chhp. 89, Sec. .", after tho words "in the possession of any other pci'son" these words follow "Avith intent thereby to injure or defraud any person." ): ( li V m . */ ' /( h^h' -1 I, { ii. \ "(i I til t . 4kL i: ,!.(.■. 450 CRIMINAL LAW being cuiivictccl thereof, shall be liable, at the discre- tion of the court to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than .seven years, or to be imprisoned in any other pri,-on or place of confiuement for any term not exceeding two years, ivstrnying 5. If any person shall unlawfully and maliciuuslv ou?t^Ma!i- '''" cut, break, or destroy, or damage v.'itli intent to chiiic'fi ill dcsiroy or to render useless, any threshlnii' machine. liny I'tlirr "^ , . . i iV <• i '' i i rmiuiRicturoOV any maclime or eno-ine, whether nxcd or moveablo, fore''oiu'' prc[)arcd for or employed in any manufacture avIkU- Hoever, (except the manufacture of silk, woollen, linen, or cotton goods, or goods of any one or more of those materials mixed with each other, or mixed Avith any other material, or any frame-work -knitted piece, stocking, hose or lace,) every such offender shall be guilty of felony, and being convicted therc(ji', shall be liable at the discretion of the court, to be imprisoned .it hard labour in the IVovinci.'ii Peniten- tiary for any term not less than seven years, or in any other prison or place of conlinement ior any term not exceeding two years. •SL-ttiiiK firo 7. \V'hosocver shall unlawfully and maliciously f^ct ww'.'is with ^^'^ "-'^J ^'^^^ ^way, or in any wise destroy any ship or iiituut to vessel, cither with intent to murder any person, or '■""'""'""''"whereby the life of any person shall be endangered, shall 1)0 guilty of felony, and being convicted thereof shall .sufl'er death. Han-iiv,' out ^- AVhosocvcr shall uidawfully exhib't any false f;iise'ii;;iitK lu light or signal, with intent to bring any ship or vessel wivcii!'"'' into danger, or shall unlawfully and malicioush do any thing to the immediate loss or destruction of any ship or vessel in distress, shall bo guilty of felony, and being convicted thereof shall sulfer death. 0. Whosoever shall uidawfnlly and maliciously sot firo to, or in any wise destroy any ship or vessel, vessels with ^vhetlicr the sauie be completed or in an unfinished i'ltellt til ■, n II 1 !• • 1 n destroy till! stato, ov sliall unlawlufjy and maliciously set m'c to, "'"""■ cast awav, or in anv wise destroy miv ship cr vo.'^se], dur Sottlnj? firo toshipH or CRIMINAL LAW. 451 able, at the uiscre- at hard labour in •term iK)tk;ss than I any other prison L'Di not oxceedin"' o y HI id lualiciously L'O v,-itli intent to 'u-csliiiig iiiachiiie, tixcd or luoveablo, naniifacture Avlint- of silk, woollen, any one or jiioro I other, or niixed VaniG-worlv-kiiittcd cry such oifender : convicted thcrcdi", r the court, to be 'roviuciai Pciiitcn- ■.eveii years, oi* in ifinenicnt lor any uid nialicioufijy set stroy any sliip or er any person, or 1 be endangercJ, convicted thereof exliib't any fiilsc any ship or vessel id maliciously do destruction oi' any ;uilty of felony, ilFer death, id maliciously set y ship or vessel, in an unfinished iously set £i'o to, ly ship or vessel. with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, shall bo guilty of felony, and being convicted thereof shaM bo liable, at the discretion of the court, to be imprisoned at hard hbour in the Provincial Penitentiary for the term of his natural life, or for any other term not less than seven 3'ears, or to be imprisoned in any other prison til' place of confinement for any time not exceeding two years. 10. Whosoever shall bv force prevent or impede ^nipodino; 1 . '', 1 • vr /> any person any person endeavouring to save his lite Irom anycndoiivour- ship or vessel which shall be in distress, or wrecked, jlfijf^p^'"*^"^ stranded, or cast on shore, (whether he shall be onsiupwrockci board or shall have quitted the same) shall be guilty ^' of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. 11. Whosoever shall unlawfully and maliciously postioyinR destroy any part of any ship or vessel which shall bc^^'"^''''^'^,."^ in distress, or wrecked, stranded, or cast on shore, oriifiotitrin^' any goods, merchandize, or article of any kind belong- 1'^'-'''"'"- ing to such ship or vessel, shall be guilty of felony, and being convicted thereof shall bo liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, 12. If any person shall unlawfully and maliciously nostrnyins break down or cut down any sea bank or sea wall, or '^"^,^r wllrks^ the bank or wall of any riverj canal or marsh, where- on any river TT" ■ I III. iii«iiiiiiiui itjiw^mttmtr 452 C11J311NAL LAW. t . i. or canal, felony. E ( ha %p )(oinovinf; Uio pilfs of any so;i Iwink He. or (loinK iiiiy i];ini:i<;i.' to obstruct the naviga- tion of a rivoror canal IJi'pakin:; clown the (l.nii of a tinhory, &e. or mill dam. Killing or maiming cat' tlo. by any land shall be overflowed or damaged, or shall be in danger of being so, or shall unlawfidly and nia- licioiisly throw down, level, or otherwise destroy any loch, sluice, flood-gate, or other work on any naviga- ble river or canal, every such offender shall be guilty of felony, and being convicted thereof, shall be im- prisoned for any term not exceeding four years ; and if any person shall unlawfully and maliciously cut ojl", draw up or remove any piles, chalk or other niateriahs iL\ed in the ground and used for securing any sea baidc or sea wall, or the bank or Avail of any river, canal or marsh, or shall unUnvfully and maliciously open or draw up any flor 1-gate, or do any other injury or mischief to any navigable river or canal with intent, and so as thereby to obstruct ox prevent the cari-yinn; on, completing or mai; taining the navigation thereof, every such offender shall be guilty of felony, and being convicted thereof shall be imprisoned for any ter;u not exceeding two years. 15. If any person shall itnlawfully and maliciously brea]^ down or otherwise destroy the dam of any iisli pond, or of any water which shall be private property, or in which there shall be any private right of flshery, with intent thereby to take or destroy any of the flsli in such pond or water, or so as thereby to cause the loss or destruction of any of the Csh, or shall unlawfully and maliciously put any lime or other noxious nuito- rial in any such pond or water, with intent thereby to destroy any of the fish therein, or shall unlawfully and maliciously brea.k down or otherwise destroy tlio dam of any n»ill pond, every such offender shall be guilty of a misdemeanor, and, being convicted there- of, shall be punished accordingly. IG. If any perscn shall uidawfully and maliciously kill, maim or wound any cattle, every such oA'cnder shall be guilty of felony,'and bei"ig convicted tlicio- of, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the I'rovincial IVni- tentiary for any term not less than seven years, nr tn CRIMINAL LAW. 453 noxious niato- intcnt thereby hall unlawiiilly isG destroy the render shall bo eouvieted therc- and Mialicioiisly •y sueh ofifeiKlcr onvieted there- »f the court, to Voviiieial I'eiii- ,xni years, or in bo imprisoned in any other prison or place of con- liiiiMuent for any torui not exceeding two years. J7. Whosoever sliall unlawfully or maliciously set lire to any stack of corn, grain, pulse, peat, coals, charcoal or wood, or any steer of wood, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial l^enitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, (a) 18. If any person shall unlawfully and maliciously cut or otherwise destroy any hop-binds, growing on pf)les in any plantation of hops, every such oiTendcr shall be gudty of felony, and being convicted there- of', shad bo imprisoned for any term not exceeding four years. 11). If any person shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling or shrul^, or any underv.ood, respectively, growing in any park, pleasure-ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwell- ing house, every such offender shall be guilty of a mis- demeanor, and being c(Uivicted thereof, shall be pun- ished accordingly; and if any person shall unlaw- i'ully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling or shrub, or any underwood res- pectively, growing elsewhere than in any of the situa- tions hereinbefore mentioned, every such oifendcr (in case the anumnt of the injury done shall exceed tho sum of one pound) shall bo guilty of a misdc- m.oanor, and being convicted thereof, shall be pun- ished accordingly. ((/) 111 the J';ii;;'lish stututo 7 & H Geo. IV. t-h. 00, sec. 17, ' .«tr:iv/ ami hay " follo-\v " pulse."' The burning of staoks of : (rsnv or hay i.-! a capital felony liy Geo. I. cli. 22 s. 1. Settinp: flro to a^iricuUu- ral jiroduce. Destroying hop binds. Destrnying ordainaij;inK trees, sbruhs Ac. growing in certain situations. Tho nice ns to trees, Xc. (Trowing else- whero if tho damngo ex- ceed ono pound. I, If h ii ;.((!■ ''! ■;t', (i. 'li, I l-v :!■' 454 Dcsfroyinu; ordaniiifj;iiip; tn'c.'-', slirulis or under- wood, &c. wheresoever (irowiii); ia the iiuiouut of dtimniro puiiishai)l<> on suiiiuiMry I'onvictioii. Destroying iiiiy fruit or vegetiible yiroduction in a ^.'arden Destroy! ti}< Ac. vejjetiililo production not prowiug in gardens. Destroying &.<: any fence wall, slile or gate. CRIMINAL LAW. 20. If any person shall unlawfully and malicious^ly cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling or shrub, or any underwood, wheresoever the same may be respectively growing, the injury done being to the amount of one shilling at the least, every such ofl'on- der, being convicted thereof, before a justice of the peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding one pound, as to the justice shall scorn meet. 21. If any person shall unlawfully and maliciously destroy or damage, with intent to destroy, any plant, root, fruit or vegetable production, growing in any garden, orchard, nursery ground, hot-house, green- house or conservatory, every such oft'ender, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding two pounds, as to the justice shall seem meet. 22. If any person shtdl unlawfully and maliciously <]ostroy or daniage, with intent to destroy, any culti- vated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or enclosed, not being a garden, orchard or nursery ground, every such oflendor, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding twenty shillings, as to the justice shall seem niect. 2;}. If any person shall uidawfully and malicioii% cut, break, throw down, or in anywise destroy any foiKu of any description whatsoever, or any wall, stile or gate, or any part thereof respectively, every such offender, being convicted before a justice of the peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money, not oxcecdintr one pound, as tn the justice shall s*.!;) !,h (t (i CIlllMINAL LAW. 455 24. If any person shtill wilfully or nialiciuusly i''.':^?"'";''i'i- (■oinnut any damage or injury, or .spoil to or uponnmtroioiMo- aiiy real or personal property whatsoever, cither (»l'f,^siM,"t j"^ I public or private nature, fur which no remedy or viouniy pn^- punishment is hereinbefore provided, every such per- i,Iay iio^com- K.^n, bcini:; convicted thereof bei'ure ii justice of the r'"'!'"^ '7 " i\istic'6 to peace, shall forfeit and pay such sum of money as jiay compon- sluill appear to the justice to be a reasonable couipen- ^,xc"Jdiug*^ ivition for the damage, injury or spoil so committed, ^5- nut exceeding the sum of five pounds, which sum of iiioiiey shall, in case of private property, be paid to the party aggrieved, except where such party shall have been examined in proof of the ofience; and in Huch case, or in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in such manner as every pen- alty imposed by a justice of the peace under this Act i.s hereinafter directed to be applied ; l*rovided always, i>,oviso.' that nothing herein contained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right-to do the act complained of. 25. Every punishment and forfeiture by this Act jiaiieoatiho imposed on any person maliciously committing '"^"J ll^!^",*;!;""*,, oH'cnce, whether the same be punishable upon indict- any oiivnc.) nieiit, or upon summary conviction, shall equally ^'jt]'''' ^^"* apply and be enforced, whether the ofTencc bo com- mitted from malice conceived again>t the owner of iho ])roperty in respect of which it shall be counuitted or otherwise. 27. Where any person shall be convicted of any i''"'" •'""'•t UKlietable ollence punisliablc under tins Act, tor , i:, n.it which inn-yrisonment may be aAvavded, it shall bo law- \''','''" J'"-' lul tor the court to sentence the oilender to be nii|)ii-iiMi.njiiniur suned, or to be imprisoned and kept to hard labour |^!oniiu!"w™t. in the common gaol or house of correction ; an•., to extend the royal nun-cy to any person imprisoned by virtue of this Act, althoiurli he shidl be imprisoned lor non-payment of money to some party other tb:in the crown. 42. All Acts and parts of aVcts repugnant to thi.i Act repealed. ""^^^uvumu' ^^ ^ ^^ ^ ^^' ^'"^-^i'-'^- — ^- Whoever sliall unlaw- housB by ox luUy and maliciously by the explosion of gunpowuer i''°^'*'f !;"'„'■ or other explosivi! subst:inco destroy, throw down or stiiiice, any iii fin-i porsoii b.iii^' damage tlie whole or any ivAvt ot any dwelling liouso, ^uuTy ot"'^ " '^"J person being therein, shall be guilty of felony, toiouy. 2. Whoever shall unlawfully and m dicuously, by the And so if cxplosiou of guiipowder or oth r ''xjilosive substance, witbiiitL>at destroy or di-nume any buildinj;- with intent to iiiur- to destroy , »' >~ i/, ,~,.„„ lifo. Prerogative of mercy re- served ti) Crowu. Doinc; bodily der any person, or whereby the life of any person shall be endangered, shall be guilty of febjny. o. Whoever shall unlawfully and maliciously, lij harmtoliuy the explosion of gunpowder or other cxphisive siib- porsun. stance, burn, maim or disfigure, disidjle or do any grievous bodily harm to any person, shall be guilty of felony. (a) If a pa)'ty has arrested nnotlier as being found com- mitting an offence against this Act, mider circiuiiHt!)iicci wliicli alford rea;-;on for tliinkiiig that he was at the time committing sucli otfeiice, tliougli in reality lie was not, luiil an action is bi'ought for the arrest, tlie defendant is entitled to uoLieo of actioji. — Cun. v. Cli;incrton, ]() A. k 11. 5RJ.— 8ee al.=o 7 C. J'c V. S21 : '.) T?. .v^ {\ soc, ; <\ (\ .<;. ('. (i.-,l. nUMIXAl. LAW. 457 no tiiuo, and not 3 year, as to the icct. ttinpi; any offence uio l.)C punishiiblo ■y conviction, iiuiy tout a warrant, by c property injured, )rized by him, iiiul ibouring justice o[" iig to law. («) ueon's Majesty, ur lie royal mercy to this Act, althou^rh rment of money to repugnant to tliu lioever shall unlaw- sion of }i;unpow(!tv ■oy, thn^w down or nv dwellinu; house. guilty of felony. m diciously, hy the Ixjilosivc substance, til intent to niur- ifo of any person y of felony. |ul maliciously, ^^ icr explosive sub- Idisable or do any n, shall be guilty \s behifj; fomul coru- luulcr circumstance! 1)0 was at tie timo llity ho wii.s not, ami IdotVnil.'intis oiititled ),, lOA. &E, 582.- '.1 (\ S.. ['. <'')l. 4. Whoe ver shall unlaw fidly and maliciously cause i^ji«sing ox- v.ny gunpowder or other explosive substance to ex-fhrowinR iilode, or scud or deliver to or cause to *be taken oro°'7ic'\° I . ' fluids, .tc, iee;j!vcd L»y any person any explosive substance, or with liko in. iiiiy other dangerous or noxious thing, or cast or^''"'' throw at or upon, or otherwise apply to any person any corrosive iluid, or other destructive or explosive ^i^abstance, with intent in any uf the cases aforesaid to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to any person, .shall, although no bodily injury be elFocted, be guilty of felony, (o) f). \yhocvcv shall be convicted of any felony 5'p"j;J,^f* hereinbefore mentioned, thall be liable, at the convicted of V i- o J.1 J. J. 1 • • I • ii such offences di.scretion ot the court, to be imprisoned in the Pi-ovincial Penitentiary for any term not less than seven years, or to bo imprisoned in any common goal fur any term not exceeding three years. G. Whoever shall unlawfully and maliciously, place Throwingex- ,, ... • *' , ''■,'■ ., , plosive sub- or tlirow m, into, upon, against or near any build- stances into ing or vessel, any gunpoAvder or other explosive sub- °J^y "j^^jj^^ stance, with int:nt to do any bodily damage to anyings, &c. person, or to dostiuy or damage any building or ves- sel, or any machinery, working tools, fixtures, goods or chattels, shall, whether or not any explosion takes place, and whether or not any injury is effected to any person, or any damage to any building, vessel, machinery, working tools, fixtures, goods or chattels, Pvmishmont be guilty of felony, and being convicted thereof, shall !"'' ^^"^ ^' be liable, at the discretion of the court, to bo impri- soned in the Provincial Pcnitentinry for any time not exceeding seven years, nor less than three years, or to be imprisoned in any common gaol for any period not exceeding two years. 7. AVhoever shall unlawfully and maliciously, by Attempting any overt act, attempt to set fire to any building, ves- any'bu'udiDg {a) Boilinp; ^yater is n destructive matter within the meaning of this sectlon.—R. v, Crawford, 2 0. & K. 129. W m ^•f.H i )| j I 458 yeiiel, &e., the ofibnce not being couplet*. Punlahment' for such ofienoe. IlATing ex- plosire Bub- fitances with intent to commit aa offence Against this Punishment Male offen- ders under 18 years may be whipped. Court may order hard labour and scriitary punishment. CRIMINAL LAW. sel, or to any staolc, or to any vcj^ctablo produoo ol' such kind, and with such intent, that if the olFcnco were complete the offender would be guilty of Iblony, and liable to be imprisoned in the Provincial I'cni- tentiary for any term not less than seven years, shall, although such building, vessel, stack or vegetable produce be not actually set on fire, be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned in the Pro- vincial Penitentiary for any time not exceeding seven years, nor less than three years, or to be imprisoned in any common gaol for any term not exceeding two years, 8, Whoever shall knowingly have in his posses- sion, or make or manufacture any gunpowder, explo- sive substance or any dangerous or noxious thing, or any machine, engine, instrument or thing with intent by means thereof to commit, or for the purpose of enabling any other person to commit any offence against this Act, shall be guilty of a misdemeanor, and on conviction thereof shall be liable to be impri- soned in any common goal for a period not exceed- ing two years. 9. Every male person under the age of eighteen years who shall be convicted of any offence under this Act, or who shall be convic^^d of felonious!}' setting fire to any building, vessel pr to any stack, shall be liable, at the discretior) of the court before which he shall be convicted, in addition to any other sentence which may be passed upon liim, to be pub- licly or privately whipped in such manner and as often, not exceeding thrice, as the court shall direct. 11. When any person shall be convicted of any offence punishable under this Act for which impri- sonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, and also to direct that the offender shall be kept in solitary con' finement for any portion or portions of such impri- h. i ?; jtablo produpc of luit if the oironco ! guilty of felony, rroviticial I'ciii- icven years, shall, ack or vegetable e guilty of felony, be liable, ft the soned in the Pro- it exceeding se\cn ■ to be imprisoned ni not exceeding ive In his posses- ;;unpowdor, cxplo- noxious thing, or r thing with intent jY the purpose of mmit any offence pf a misdemeanor, liable to be impri- leriod not exceed- |e age of eighteen ny offence under (m1 of feloniously or to any stack, I' the court before ition to any other n him, to be pub- [h manner and as court shall direct. convicted of any for which impri- Ibe lawful for the imprisoned, or to hour, and also to >t in solitarjr con- IS of such impri- CRIMINAL liAW. 459 bonnient, or of such imprisonment with hard labour, not exceeding one calendar month at any one time, LimHatiou. and not exceeding three calendar months in any one vear, as to the court in its d'scretion sliall seem meet. 12. Any justice of the peace of any district, city, swirch war- town or place in which any gunpowder or other ex- ['»"♦« "i"^*" plosive, dangerous or noxious substance is suspected search for to be made or kept for the purjjose of being used in ^""I^J^siTo committing an offence under this Act, upon reason- substanco able cause assigned upon oath by any person or per-he''k^pt''for'' sons, may issue a warrant or warrants under his hand "''"K*' P""" and seal for searching in the day time any house, ^° '' " shop, cellar, yard or other building, or any vessel in whicii such gunpowder or other explosive, dangerous or noxious substance is suspected to be made or kept for such purpose as aforesaid, and that every person acting in the execution of any such warrant shall The same if have power to seize any gunpowder, cxiiUihIvo sub-beTdzod^r^ stance, or any dangerous or noxious thing, or aoyl'^V^'^u machine, engine or instrument or thing which he fihuU have good cause to suspect to be intended to bo used in committing or enabling any other person to commit any offence against this Act, and with all convenient speed after the seizure to remove the same to such proper places as they shall think fit, and may detain the same until ordered to restore it to the per- son or persons who shall claim the same by any judge of any of her Majesty's Courts of Queen's iJench ; and such searcher or searchers, seizor or seizors shall not be liable to any suit for such detainer, or for any Protection to loss of or damages which may happen to the same, ^irchfng. other than by the wilful acts or neglects of them or the persons with whom they shall intrust the keeping thereof 13. Any gunpowder, explosive substance, or any p^j^f^jty^g ^^ dangerous or noxious thing, or any machine, engine, guDpowder, instrument or thing which shall be intended to be with^'persons used in committing or in enabling any other person '^"'Y''^^. to commit any offence against this Act, and which Act* :, : fii * f m-\^ \>i •IfiO CHIMIN AL LA\V. Hhall be ;.ii~cd and tfikcu possession of under (Ik: provisions tlierootj shall, in tlio event of tlie person or persons in avIiosc possession tlie same shall be found, or the owner or owners thereof beinjj convicted for any oirenco under this Act, ])c forfeited; and the ^on»)?/d"r^ same shall bo sold under the direction of the court bclbrc which any such person shall be convicted, and the jjruceeds thereof shall be paid into the hands of tlie ileceivcr (jeneral to and for the use of the Pro- vince. 14. It shall be lawful for any constable or peace officer to take into custody, without a warrant, any person whoui ho shall lind lying or loitering in any highway, yard, or other place during the night, and whom he shall have good cause to suspect of having committed or being about to commit any felony under tliis Act, and to detain sueli pereon until he can be brought before a justice of the peace to bo dealt with according to law. 15. No such person, having been so apprehended, shall be detained after noon of the f(dlowing day without being brought before a juflicc of the peace. 10. Neither the justices of the peace acting in and for any district, division or city, nor the recorder of any city, shall, at any session of the peace, or at any adjournment thereof, try any person or persons for any ofiFencc under this Act. 17. Where any felony punishable iinder this Act shall be committed Avithin the jurisdiction of any Court of Admiralty in this Province, the same shall be dealt with, inquii'cd of, and tried and determined in the same manner as any other felony committed within that jurisdiction. 12 Vic. Chap. 20. — 3. Whosoever shall unlaw- fully and maliciously set fire to any school-house, lecture-room, seminary of learning, college or build- ing used for the purpose of education, or to any village, town or city hall, or to any railroad station house, steam or fire engine house, or toll booth, or to Persons loit- erliiK, Ac- and suspect- ed of iuU;ll- tion to com-" mlt olTonces against this Aot, may bo detained. Must lie brouiiht bo- forua ju.siico within ft cer- tain timo. Offender not to ho tried by juKticesof tho peace or rucorders. Offences within tho jurisdiction of Vice Ad- miralty, how dealt with. Setting fire to any gchoolhouso, seminary &c., tu be a felony. ?sion of under tlio ?nt of tlio person or vnic shall be found, )eiiip; convicted for forfeited; and the 2ctiou of the court 1 be convicted, and I into the hands of the use of the Pro- constable or peace out a warrant, any or loitcrino^ in any ring the night, and I suspect of luiving ammit any felony ill pcreon until he of the peace to be m so apprehended, the following day f'tice of the peace, peace acting in and or the recorder of le peace, or at any son or persons for jlc under this Act urisdiction of any ice, the same filiall id and determined felony committed )ever shall unlaw- any scliool-house, f, college or build- cation, or to any y railroad station Dr toll booth, or to CIlIMINAli LAW. :iny ])nilding i,-ed or employed as a niechanifN insti- tute, or as a public librar}-, or to any hall orbuilding used by any budy or society of persons by whatever name or designation they may be known, and \\licthor tiny be associated together fur educational, plilan- thvdpic or beiH'Volent purposes, or fur any oflier law- ful 1 urpose, or to any museum or repository of curi- osities, shall be guilty of felony, and being convicted thereof, shall 1)0 liable, at the discretion of the court, b) be imprisoned at hard labour in the ]*rovincial i'oiiitcntiary for the term of his natural life, or for any term not less than three yeans, or to be imprisoned in any other prison or place of confinement for any tci-in imt exceeding two years ; and further, that it shall nut be necessary to allege or set out in the in- diit:nent the name of the owner of any .such buildino-. l(i Yic. Cn.V,'. 113.— ( Thr. Broch Monument.)— 2. Whosoever shall wilfully set fire to any gunpow- der, or other explo.sive or combustible substance r material in or in contact with, or in close proximitv ti» the said monument, or any fence or work there- with connected, with intent to destroy or injure the said monument, fen':-e or work, .'^liall !•« ;:uilty of felony, and bein.: convicted thereof, siiall be liable, in the discretii u of the court, b(>fore which the conviction shall take place, to be impri- Svincd at hard labour in the Provincial I*cnitentiary fiir the term of his natural life, or for any term not loss than seven years, or to bo impri-oned in any dtluu" pri.son or place of confinement tor any term not oxet'eding tAVO years ; and if any other person be in the said monument at the time of the conniiission of pucli felony, or so near thereto tliat his life is endan- gc..,] by such felony, or ho be killed or maimed by re:!s .1 thereof, then the (tiTeiider, being convi.-ted, shiU suffer death, and any attempt to commit such felony, by ]ilacing in or in contact with or in close proximity to the said monumem, fence or work any gnnjiowdcr, or other esplosivo or cor.ibuslible 4C1 ttWf punUh- « »wnors nct'il not lie named 111 theiudiet- ment. Punishmpnt (if iHU'sons injuring or Httt'inptiiiK to injure tbo saitl mon«- luont. t?^^ IMAGE EVALUATION TEST TARGET (MT-3) // fe M/. v.. ill 1.0 I.I II.25 21 12.5 1^ 1^ 1^ mil 2.2 2.0 mil us lAO I. U il.6 J i J' • ii ^? V o 7 Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) S72-4S03 ? r^ ^ ^ :^ \ 462 CRIMINAL LAW material, or the doing of any wilful injury to same in any way, shall be a misdemeanor, punishal by fine or imprisonment, or both, in the discretion the court before which the ofibuder shall be convi( ed ; and in any indictment or prosecution or trial 1 tioM of p?». ^^y offence against this Act, it shall not be necessa perty in in- to allege OT to provc that the said monument, fen anyTuch ^'^^ or other work were the property of any person, or offence. describe the same otherwise than they are describf in this Act. (a) MILITIA. 9 Vic. Chap. 28. — 42. Every person whether li P'^nz'.ty on be or be not in the militia, and although he be als fa™funy*Ji'a. liable to be tried for the offence by court martia posi?B of 0*" who at any time whatever shall sell, barter or pledg( armsor"^ or tender in sale, barter or pledge, or unlawful! of the rnUiUa ^^^^ away with any part of the arms or equipment or stores or of the Said militia force, or any ammunition or stores ammunition. ^^^ evcry pcrson who shall buy, or by barter o pledge obtain, or who shall otherwise unlawfull) receive, take or detain any portion of the said arms or equipments or ammunition, or stores, shall b( deemed guilty of a misdemeanor, upon conviction foi such offence before any court of competent jurisdic tion, and be liable to be punished accordingly. MUNICIPAL OFFICERS. 12 Vic. Chap. 81.— 174. All the books of tb Books &c. of present district Treasurers and all books, papers district trea- accounts ov documents of what kind soever whiel darned* (*at- ^^^^^^ \iiiyG been kept by or shall have come into thi teis belong- posscssion of any person or officer to be appointed o different" employed by any municipal corporation by virtue c (a) In the preamble the monument is called " the mom mcnt to the late Geaenil Sir Isaac Brock on Queensto Heights ; " in all other parts of the statute it is spokea c as »' the paid monument." LAW CRIMINAL I AW. 463 y wilful injury to the lisdemeanor, punishable oth, in the discretion of Fender shall be convict- ' prosecution or trial for it shall not be necessary 3 said monument, fence rty of any person, or to than they are described f^ery person whether he d although he be also ence by court martial, .11 sell, barter or pledge, pledge, or unlawfully the arms or equipments ly ammunition or stores, buy, or by barter or 1 otherwise unlawfully rtion of the said arms, 3n, or stores, shall be lor, upon conviction for of competent jurisdic- ihed accordingly. FFICERS. All the books of the ind all books, papers, iat kind soever which all have come into the licer to be appointed or srporation by virtue of I ncnt is called " the menu- aac Brock on Queenstonl ho statute it is spoken of his office or employment, shall be deemed to be chat- "onicipai tcls belonging to such municipal corporation, and all ""p**'***"""- moneys or valuable securities which shall have been lawfully received or taken into his possession by vir- tue of his office or employment, shall be deemed to be moneys or valuable securities belonging to such municipal corporation ; and if any such officer or person shall at any time fraudulently embezzle any p^jg^ such chattel, money or valuable security, (and any of officers refusal or failure to pay over or deliver up any such o" refSiSJ chattel, money, or valuable security to such munici- *<> deHrer pal corporation, or to any officer or person by them the pr^ authorized to demand the same, shall be held to be a p*^»«- fraudulent embezzlement thereof) he may be indicted and proceeded against, and being convicted thereof, shall be liable to be punished in the same manner aa any servant, who, having fraudulently embezzled any chattel, money or valuable security received or taken into his possession by virtue of his employment for and in the name and on the account of his master, may be indicted proceeded against and punished. Provided always, that nothing herein contained shall Proviso .- prevent, lessen or impeach any remedy which such ^tes not"^ municipal corporation, or any other party may have •» lessoned, against such offijnder, or his sureties, or against any other party whomsoever, but nevertheless the con- viction of any such offender shall not be received in evidence in any suit or action at law or in equi^iy against him. 183. It shall not be lawful for any of the munici- Municipal pal corporations to continue or bo incorporated under S'Jttoact m thu authority of this Act to act as bankers or to bankers orto Issue any bond, bill, note, debenture or other under- to pass as^"* taking of what nature or wind soever, or in what™°'*®yr form soever in the nature of a bank bill or note, or for the payment of any money intended to form a cir- culating medium to supply the place of specie or otherwise pass as money ; nor shall it be lawful for any of such municipal corporations to make or «?, 464 ' 1 Penalty for I pont raven- Jn5< this sec- tion. Any person issuing, making or uttering bonds pon- trary to this Act, to be guilty of misdemean- or. CRIMINAL LAVv'. give Jiiiy bond, bill, dcbentui'o or other undcrtalciu! for tiic pnyiiient of any loan contracted by eucli corpol ration, or of any debt due by sucli corporation, or c| any part of such loan or debt of a less amount thani twenty live pounds of lawful money of Canada, and! if any such lirst mentioned bond, bill, note or debe»-| ture or other undertaking shall be issued or put in I circulation by any such municipal corporation or| under its direction or authority, or under .the direc- tion or authority of any of its officers or servants, or I of any other person or persons whomsoever, or if any such last mentioned bond, bill debenture or other un- dertaking shall be made or given by any such munici- pal corporation for the payment of a less amount of money tlian twenty-five pounds as aforesaid, every such bill, bond, note, debenture, or undertaking shall be absolutely null and void to all intents and purposes whatsoever ; l*rovided always, that nothinj^ in the section contained shall extend or be construed to extend to any bond, bill, note, debenture or other undertaking to be issued under the authority of any such by-law as shall or may be passed with the con- sent of the Governor of this Province in council fcr providing for the payment and satisfaction of certain debts mentioned in the last preceding section of this Act. 184. Every person who shall issue or make, or assist in the issuing or making of any such bonds, bills, notes, debentures or undertakings for the pay- ment of money contrary to the provisions of the next preceding section of this act, and every person Avho shall knowingly utter or tender in payment or in exchnnge any of such boiids, bills, notes, debentures or underta]:iiigs for the payment (»f money, shall be guilty of a niisdemcanor, as provided in and by the third section of the Act (of Upper Canada, 7 Will. IV. CiiAr. 1.').) v\v CRIMINAL La-W. 465 or other undcrtjikiixr tracted by such corpo! ucli corporation, or cf fa less amount than oney of Canada, and d, bill, note or deben- bo issued or put in :cipal corporation or , or under .the direc- )fficers or servants, or dionisoever, or if any lebenture or other un- 1 by any guch niunici- of a less amount of 3 as aforesaid, every we, or undertaking; iJ to all intents and always, that nothinj^ tend or be construed ;, debenture or other the authority of any )asscd with the coii- >vinee in council for atisfaction of certain edinj^ sectioii of this I issue or make, or of any such bonds, Ji kings for the paj- ■ovisiuns of the next 1 every person ^vho ^' ill payment or in «, notes, debentures _ of money, shall be ided in and by the Canada, 7 Will. IV. OFFENCES AGAINST THE PERSON. 2 Will. IV. Chap. 1. — 1. From and after the2ijameiL passing of this Act, no clause, matter or thing in the »<»* *» ^^ Act passed in the twenty-first year of the reign of p'^inoo. King James the First, (entitled " An Act to prevent the destroying and murthering of bastard children,") shall extend to and be in force in this Province. 2. From and after the passing of this Act, the™^*""*^' trial of any woman charged with murder of any issue butard chti- of her body, male or female, which, being born alive, t^^^ would by law be bastard, shall proceed and be gov- other trial* erned by such and the like rules of evidence and ' ™ *'' presumption as are by law used and allowed to take place in respect to other trials for murder, and as if the said Act passed in the reign of King James the First had never been made. 3 Will. IV. Chap. 4. — 4. If any person or per- Regcuing sons whatsoever shall by force set at liberty or^i^Jofo? rescue, or attempt to rescue or set at liberty, committed any person cut of prison, who shall be commit-**'""™^''* ted for or found guilty of murder, or rescue or attempt to rescue any person convicted of murder going to execution, or during execution, every person so offending shall be deemed, taken and adjudged to be guilty of felony, and shall suffer death. 20, Whenever any person shall be convicted of JJ"^«^^^ murder, and executed therefor, the body of suched,vide4ft5 murderer shall be delivered, by the sheriff or his^'^g^^^ig, deputy and his officers, to a surgeon, for the purpose of being dissected and anatomized. '^i Sentence shall be pronounced in open court ^jj^^j, lii. ■en- immediately after the conviction of such murderer, tence to b^ and before the court shall proceed to any other busi- P""** ness, unless the court shall see reasonable cause for postponing the same, in which sentence shall be ex- pressed, not only the usual judgment of death, but also the time appointed for the execution thereof, and the niark of infamy hereby directed for such offen- w2 .If hW!' 466 BMpit*. CRIMINAL LAW. ders, in order to impress a just horror in the mind of the offender, and on the minds of such as shall be present, of the heinous crime of murder. 22. After such sentence pronounced as aforesaid, in case there shall appear reasonable cause, it shall pectsoa murder. and may be lawful to and for such judge or justice, before whom such criminal shall have been so tried, to stay the execution of the sentence, at the discretion of such judge or justice, regard being always had to the true intent and purpose of this Act : Provided also, that it shall be in the power of any such judge or justice to appoint the body of any such criminal to be dissected and anatomized. Petit treason 4 & 5 Vic. CiiAP. 27. — 2. Every oflFence, which ^^1*^**^ before the commencement of this Act, would have amounted to petit treason, shall be deemed to be murder only, and no greater ofFence; and all persons guilty in respect thereof, whether as principals or as accessories, shall be dealt with, indicted, tried and punished as principals and accessories in murder. 3. Every person convicted of murder, or of being Punishment an acccssory before the fact to murder, shall suffer andao^ch dentil as a felonj and every accessory after the fact riesinmur- to murdcr, shall be liable, e.t the discretion of the court, to be imprisoned at hard labour in the Provin- cial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be im- prisoned in any other prison or place of confinement for any term not exceeding two years. 4. From and after the passing of this Act, sentence of death may be pronounced after convictions for murder, in the same manner, and the court before which the conviction may be had shall have the same power in all respects as after convictions for other capital offences. 5. Every person convicted of murder, shall, after ^attons wi'to judgment, be confined in some safe phce within the under sen- P^^'son, apart from all other prisoners, and shall be fence. fed with bread and water only, and with no other dar. Sentence of death to be pronounced. £ rtson regu- m CRIMINAL LAW. 467 •or ill the mind of such as shall be irder. need as aforesaid, le cause, it shall judge or justice, ive been so tried, , at the discretion ng always had to 3 Act: Provided iny such judge or such criminal to J offence, which Act, would have •e deemed to be and all persons 3 principals eras licted, tried and es in murder, rder, or of being rder, shall suffer ry after the fact liscretion of the ir in the Provin- natural life, or irs, or to be im- i of confinement I. lis Act, sentence convictions for lie court before 1 have the same 3tions for other 'der, shall, after hce within the 3, and shall be with no other food or Tkiuui', except in case of receiving tlie sacra- ment, or in cpso of any sickness or wound, in which , case the surgeon of the prison may order other neces- saries to be administered; and no person but the gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any such convict without the permission in writing of the court or judge before whom such convict shall liavo been tried, oi' of the sheriff or his deputy. G. Where any person, being feloniously stricken, prorision for poisoned, or otherwise hurt upon the sea, or at any ^u/j^'gn^^ place out of this Province, shall die of such stroke, mansiaught- poisoning or hurt, in this Province, or being i'eloni- jg^h^ortho ously stricken, poisoned or otherwise hurt, at any ?*"?? °^ place in this Province, shall die of such stroke, happenTin poisoning or hurt, upon the sea, or at any place out ^^^n*,^'"'*" of this Province, every offence committed in respect of any such case whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, en- quired of, tried, determined and punished in the district, county or place in this Province, in which such death, stroke, poisoning or hurt shall happen, in the same manner, in all respects, as if such offence had been wholly committed in such district, county, or place. 7. Every person convicted of manslaughter, shall punishment be liable, at the discretion of the court, to be inap"- slaughter, soned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, or to pay such fine as the court shall award. 8. No punishment or forfeiture shall bo incurred ab to homi- by any person who shall kill another by misfortune ^J„^°* ^*'°^ or in his own defence, or in any other manner with- out felonv. \ 408 CRIMINAL LAW. l! m ,i i ■^?,ii ■1 ) Ml'.' H\i ed. Punjshmont 9. (^a) Whosocvcr shall administer or cause to bo toiiiigpoiHon taken by any person, any poison or other destructive *"• thing, or shall stab, cut or wound any person, or shall by any means whatsoever cause to any person any bodily injury, dangerous to life, with intent, in any of the cases aforesaid, to commit murder, shall be guilty of felony, and, being convicted thereof, shall suffer death. 10. Whosoever shall attempt to administer to any for'ononces pcrsou any poison or other destmctive thing, or shall with Intent ghoot at any person, or shall by drawing a trigger or wurdor, in any other manner, attempt to discharge any kind inj'ury^effect- ^^* ^oadcd amis at any person, or shall attempt to drown, suffocate, or strangle any person, with intent in any of the cases aforesaid to commit the crime of mur- der, shall although no bodily injury shall be affected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be impri- soned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, (b) 11, Whosoever unlawfully and maliciously shall (a) Under this section the jury should be satisfied the prisoner had in his mind a positive intention to murder, not merely that it would have been a case of murder had death ensued.— R. v. Crease, 8 C. & P. 511. Though if it would have been a case of murder had death ensued, that fur- nishes evidence of the prisoners intent. — R. v. Jones, 9 C. & P. 258. (i) Indictment that prisoner " feloniously assaulted J. H., and by feloniously drawing the trigger of a certain pistol loaded with gunpowder and a leaden bullet, then and there feloniously did attempt to discharge the said pistol at the said J. II. with intent to murder him", is good without stating " that the said pistol" was " so loaded as aforesaid." Jiut if the jury think the pistol was not so primed and loaded that it could go off, they should acquit the prisoner, and not find him guilty of assault under section 37. — R. v. Baker, 1 C. & K. 254. CRIMINAL LAW. 469 idminister to any naliciously shall shoot at any person, or shall by drawing a triffffer, or Puniihnient ii. xi. i i 1 • L ''° , i , for cutting in any other manner, attempt to discharge any kind and unaiming of loaded arras at any person, or shall stab, cut or J,"^{2)!S?o* wound any person, with intent in any of the cases aforesaid to maim, disfigure or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hurd labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, (a) {a) To stab imports a wound made with a pointed instru- ment; to cut, a wound with an instrument having an edge; to wound, includes incised wounds, punctured wounds, lacerated wounds, contused wound'i, and gunshot wounds, but in all those cases the continuity of the skin must be broken.— R. v. Wood, 1 M. C. C. R. 278.— But if the skin be broken, the nature of the instrument used is immaterial. 11. V. Brigga, I M. C. C. R. 318 ; R. v. Withers, 1 M. C. C. II. 294. In a case of wounding with intent to do some grievous bodily harm, it is not essential that, if death had ensued, the crime would have been murder. — R. v. Griffiths, 8 C. & P. 248 ; R, v. Nicholls, 9 C. &. P. 267. On an in- dictment for wounding with intent to do grievous bodily harm, some of the prisoners may be convicted of the felony, and others of an assault (under sec. 37, post). Where a person having a deadly weapon lawfully in his possession, without previously retreating as far as possible, in his own defence cuts a person who is assaulting him, he is guilty under this section, if he intended grievous bodily harm. — R. V. Odgers, 2 M. & Rob. 479. A rifle, which is loaded, but not primed, and therefore will not go off, is not a load- ed arm within the statute ; and therefore pointing a rifle, so circumstanced at a person, and pulling the trigger of it, will not warrant a conviction either for felony or assault. — R. V. James, 1 C. & K. 630. Applying a lighted match to a loaded matchlock, or striking the percussion cap of a percussion gun is a sufficient attempt within these enact- 470 CRIMINAL LAW. a '•■ i! :i' l:in lit Punishment tor sending explosive substances or throwing destructive matter with Intent to do bodily harm. 12. Whosoever shall unlawfully and maliciously send or deliver to or cause to bo taken, or received by any person, any explosive substance, or any other dangerous or noxious thing, or shall cast or throw upon or otherwise apply to any person, any corrosive fluid, or other destructive matter, with intent in any of the eases aforesaid, to burn, maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, and whereby in any of the cases aforesaid any person shall bo burnt, maimed, disfigured, or disabled, or receive some other grievous bodily harm, shall be guilty of felony, and being con- victed thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provin- cial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be im- prisoned in any other prison or place of confinement, for any term not exceeding two years, (a) Punishmmt 13. Whosoevcr, with intent to procure the mis- procure"* carriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any in- strument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be impri- ments.— R. v. St. George, 9 C. & P. 483. On an indict- ment for cutting and wounding, prisoner will not be per- mitted to plead guilty of a common assault merely; he must plead to the felony ; and if no evidence of the felony be oiFered, he may be acquitted of the felony, and found guilty of the assault upon his own confession. — R. v. Cal- yerte, 3 C. & K. 201. (a) Vide 10 & 11 Vic. ch. 4, which apparently provides for every case falling within this section. (Ante, "Mali- cious injuries to property," page 466. abortion. CRIMINAL LAW. 471 soned in any other prison or pluco of conllnoment for any term not exceeding two years, (a) 14. If any woman Bhall be delivered of a child, i.„ni^hn,o„t and .shall, by secret burying or otherwise disposing of f'-rRecreiinK the dead body of the .said child, endeavour to conceal nn'fnJC'^t'tof the birth thereof, every such offender shall be guilty ^""'*»y*»« of a misdemeanor, and being convicted thereof, shall birth, bo liable to bo imprisoned for any term not exceed- ing two years ; and it shall not be necessary to prove wiiether the child died before, at, or after its birth : Provided always, that if any woman, tried for the p,(,^,go murder of her child shall bo acquitted thereof, it shall be lawful for the jury, by whoso vevdict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavour to conceal the birth thereof, and thereupon the court may pass such sentence as if she had been convicted upon an indictment for the concealment of the birth, (i) 15. Every person convicted of the abominable sodomy. (a) It is immaterial on the trial of an indictment xinder this section, whether the woman was pregnant or not. — 11. V. Goodchild, 2 C. & K. 294. (i) Some act of disposal of tho body, after the child is dead, must be shown. — II. v. Hunter 8 C. & P. 755. Tho indictment must set forth the mode in which the body was disposed of.— 11. v. Hounsell, 2 M. & Rob. 292. Placing the dcf'.d body of tho child between a bed and a mattress is a sufficient disposing of the body to warrant a conviction, for it is not essential that the body should bo put in a place intended for its final deposit, or be buried or destroy- ed.— Pv. V, Goldthrop, 2 M. C. C. R. 244. A woman was delivered of a child, which died : shortly after its birth tlio mother concurred with her paramour to endeavour to con- ceal the birth, and ho, by her persuasion, and while she remained in bed, took tho body and buried it in a field in order to effect the concealment : Meld, that she miglit be convicted of endeavouring to conceal, and he of counselling, aiding and abetting her (vide sec. 38). — R. v. Bird, 2 C. & K. 817 ; 11. V. Skolton, i\ C. & K. 117. This section is ver- batim the same as sec. 3 of 2 Will. IV. cb. 1. 472 CRIMINAL LAW. 1 m i'':f ! j ciues. crime of buf];j»ery, coinmittod uithor witli mankind or with any animal, shall suffer death as a felon, (a) Hjp^ 10. Kvcry person convicted of tho crime of rape, shall sufl'er death as a felon, (i) Carnaiknow- 17. If any person shall unlawfully and carnally Kirfunderio. know and abuse any girl under tho ago of ten years, iirUbov^'io^^*"^^ '^^'''^ oftendor shall be guilty of felony, and and under being couvictcd thereof, shall suffer death as a felon; *'*• and if any person shall unlawfully and carnally know and abuse any girl, being above the age often years, and under tho ago of twelve years, every such offender shall bo guilty of a misdemeanor, and being convicted thereof, shall bo liable to bo imprisoned for such term as the court shall award, (c) What shall ^^- Whercas upon trials for tho crimo of buggery, Wsuffldont and of rape, and of carnally abusing girls of the res- naTknow" pcctivc agos iiereinboforo mentioned, offenders fre- ledgeinsuchquently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes ; for remedy thereof be it enacted, that it shall not bo necessary in any of those cases, to prove the actual omission of seed in order to con- stitute a carnal knowledge, but that the carnal know- (fl) A married womnn who consents to her husband committing an unnatural offence with her, is an accompUco in the felony, and as such her evidence requires confirma- tion, although consent or nonconsent is quite immaterial to the offence.— R. v. Jellyman, 8 C. & P. 004. (i) An indictment is good which charges that A. com- mitted a rape, and that B. was present aiding, abetting and assisting him in his commission of the felony ; for the party aiding may be charged either, as he is in law, a principal in the first degree, or, as he is in fact, a principal in tlte second degi*ee.— fll. v. Cresham, 1 Car. & M. 187. (c) A prisoner cannot be convicted of an assault with in- tent carnally to know, &c., a girl above ten and under twelve years of age, nor of a common assault, if sho be consenting. The proper charge is of misdemeanor in attempting to commit a statutable offence. — -B. v. Martin, 2 M. C. C. R. 123. I I w. hor with maukind or til as a felon, (a) t' tho crime of rape, iwfully and carnally tho ago of ten years, uilty of felony, and Her death as a felon ; ly and carnally know tho ago of ton years, years, every such Icnicanor, and being to bo imprisoned for rd. (c) ho crime of buggery, nng girls of the res- ioned, offenders fre- ho difl&culty of the f the completion of thereof be it enacted, iny of those cases, to ed in order to con- hat the carnal know- sents to her husband I her, is an accomplice nco requires confirraa- is quite immaterial to P. 004. charges that A. com- nt aiding, abetting and e felony ; for the party e is in law, a principal ict, a principal in tlje ir. & M. 187. of an assault with in- above ten and under non assault, if sbo be of misdemeanor in ffonce.— R. T. Martin, CllI.MINAh LAW. loii'^o f^uall bo doonicd couipleto upon proof of pcne- triition only. I!>. WliLTO any Wdnuui fluiU Imvo sniy intcrrst, wlic'liicr \i".cA or o(|uil!ibk', jirchuut or I'utinc, abso- lute, cor'.ditioiiiil or t'oiiliiiucnt, in any renl or perso- nal ii.stiite, or shall be an hciretss prosuniptivc or next (ii'Kin to any otio haviii";' such interest, if iiny jjoison chilli, froMJ motives of lucre, take away or dc tiiin .such v.oiiian against her will, with intent to marry or delilo lior, or to cau.so her to bo married or deliled by any other person, every .such oH'onder, and cvjry pcsrson (ouiiocllin.'r, aiding or abetting such ollender, .shall be guilty (if felony, and being convicted tbereof, .shall 1)0 liable! to be injpri.^oned at hard labour in the l*ro- viiicial Penitentiary, Ibr any term n(»t less tlum seven yours, or to bo imprisuncd in any other prison or place of conlinement for any term i,(»t exceeding two yoav,s. (rt) L'O. If any person sh;ill unlawlully take, or ciiuso U) bo taken, any unmarried girl, being under the figc ol' ilxtcjen years, out of the possession and again.st tho will of her father or mother, or of any other per- son liaviiig the lawful cire or charge of her, every such (illoinlcr shiill be guilty of a misdemca.ior, and being coiivictovl thereof, f;hall be liable to suffer such pun- isluuont by line or iiuprisonment, or by both, as the cimrt shall award. 21. if any person .shall maliciou.sly, either by force or iVi'.ud, lo:id or talce away, or decoy, or entice away or detain, any child under tho ago of ten years, with 473 For. lM:i ul)- ilncilnii ol a wonmii (111 rici'iiiiiit of licr I'nrfurr! wUh iiituiit to liiiirry liur, &,c. Unlawful nb- ducllonof a jtirl from hor parents cr KUiirdlanN. C'liiM steiil- Inp. ((/) On an i!ulictin(!nt for abduction umlcr this section, tlm juvy outrlit not to convict tho person unless sntisfiod tli.'it lie coniniitted tho offence from motives of lucre, but rxprcpsions used by him respecting the Indy's property — Mii'h !\< tliat ho hud seen the will of one of I'.er reIation.s fniiniinn; him'), nn<\ that she would have £220 a year — arc evidence for the consideration of the jury in coming to a conclusion whether tb.e prisoner was nctuiited liy rcotivcs of liuTo or not.— R, v. liarrett, 7 C. & V. 387. \ • i ''\ \ \ n m i\ :« ! I IM t- i\ ', r 474 CRIMINAL LAW. intent to deprive the parent or parents, or any oth person having the lawful care or charge of such chil of the possession of such child, or with intent to ste any article upon or about the person of such chil to whomsoever such article may belong; or if person shall, with any such intent as aforesaid, r ceive or harbour any such child, knowing the sani to have been, by force or fraud, led, taken, decoyec enticed away or detained as hereinbefore mentioned every such offender, and every person counsellino aiding or abetting such offender, shall be guilty felony, and being convicted thereof, shall be liabl to be imprisoned at ^ ird labour in the Frovincia Penitentiary for any m not less than seven years or to be imprisoned in any other prison or place o confinement, for any term not exceeding two years Provided always, that no person who ghall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account Not to ex- tend to takin" their ^f his getting posscssion of such child, or taking such lUoBitimate child out of the posscsbion of the mother, or any other ' '*"■ person having the lawful charge thereof. Bigamy. 22. If any person, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in this Province or elsewhere, every such offen- der, and every person counselling, aiding or abetting such o^ander, shall be guilty of felony ; and being convicted thereof, shall be liable to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years; and an} such offence Place of trLii. may be dealt with, enquired of, tried, determined and punished in the district or county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that district or county: Exceptions, Provided always, that nothing herein contained shall .AW. r parents, or any other 31- charge of such child, I, or with intent to steal person of such child, nay belong; or if any intent as aforesaid, re- lild, knowing the same d, led, taken, decoyed, jreinbefore mentioned; ry person counselling, der, shall be guilty of ;hereof, shall be liable )our in the Provincial less than seven years, ler prison or place of exceeding two years : irson who shall have illegitimate child, or to on of such child, shall rtue hereof, on account h child, or taking such mother, or any other ;e thereof. rried, shall marry any the former husband or 'iage shall have taken lere, every such offen- ng, aiding or abetting of felony ; and being e to be imprisoned at Penitentiary for any or to be imprisoned ' confinement for any and any such offence tried, detenuined and ty where the offender stody, as if the offence hat district or county: lerein contained shall CRIMINAL LAW. 475 extend to any second marriage contracted out of this Province by any other than a subject of her Majesty, resident in this Province, and leaving the same with intent to commit the oiFence, or to any person mar- rying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time; or shall extend to any person, who, at the time of such second marriage, shall have been divorced from the bond of the first marriage; or to any person whose former marriage shall have been declared void by the sentence of any court of compe- tent jurisdiction, (a) 23. If any person shall arrest any clergyman or^"'estinKa minister of the gospel, upon any civil process, while during di- he shall be performing divine service, or shall, with ^'°® wrrice. the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such oflFender shall be guilty of a misdemeanor; and being convicted thereof, shall suffer such punish- ment, by fine or imprisonment, or by both, as the court shall award. 24. If any person shall assault and strike or wound „ , . • . i «• .1 1. . Punishment any magistrate, officer or other person whatsoever, for assaults lawfully authorized, on account of the exercise of his^^°*^J^'g,j. duty in or concerning the preservation of any vessel jndeavours in distress, or of any vessel, goods or effects wrecked, wreck^*pro^ stranded or cast on shore, or lying under water, every perty. such offender, being convicted thereof, shall be liable to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than seven years, (a) The prior marriage in a foreign country may be proved by prisoner's deliberate declarations or admissions. — R. v. Newton, 2 M. & Rob. 603; R. v. Simmonsto, 1 C. & K. 161; but not by pi'isoncr's mere statements while in custody without some additional proof. — R. v. Fisherly, 2 C, & K. 782, IS! '5*'if5 476 CRIMINAL LA.W. AssiiuUs •with iiitunt to commit felony ; assaults on peace ollicTP, or to be imprisoned in any other prison or place confinement for any term not exceeding two years. 25. Where any person shall be charged with anl convicted of any of the following oflFenccs as misdJ nieanors, that is to say, of any assault with intent t| commit felony ; of any assault upon any peace office oTtopiovent or rcvenuc officer in the due. execution of his duty! *ff'nd'^rs* "(f ^^' ^^P^'^ '^"y person acting in aid of such officer ; in pursuance any assault upon any person with intent to resist ol racyTo°ra/^ prevent the lawful apprehension or detainer of thcf wages; pun- party so assaulting, or of any other person, for ain hard labour, offcncc for which he or they may be liable by law tc be apprehended or detained , or of any assault com niitted in pursuance of any conspiracy to raise the rat( of wages : in any such case, the court may sentence I the offender to be imprisoned for any term not ex- ceeding two J ears, and may also (if it shall so think fit) fine the oifcnder, and require liim to find sureties to keep the peace. 30. When any person shall be convicted of any offence punishable under this Act, for which impri- sonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to bo imprisoned and kept to hard labour, in the eominon gaol or house of correction, and also to direct that the offender shall be kept in solitary con- finement for any portion or portions of such impri- sonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. 87. On the trial of any person for offences hereinbefore mentioned, or for Offences puQ' ishable by imprison- ment. Jury may at'(iuit of felony iind convijt of assault. any of the any felony include an any person mentioned, or whatever, where the crime charged f^hall assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault, against the person indicted, if the evidence shall warrant such finding ; and when such verdict shall be found, the court shall have power to LW. Criminal law. 477 ler prison or place of xcccding two years. 1 be charged with and ing offences as misde- assault with intent to upon any peace officer ;xecution of his duty; id of such officer ; of ith intent to resist or 3n or detainer of the other person, for any ay be liable by law to •r of any assault corn- piracy to raise the rate e court may sentence for any term not ex- 5 (if it shall so think e him to find sureties be convicted of any ct, for which inipri- dl be lawful for the o be imprisoned, or hard labour, in the ection, and also to kept in solitary con- ions of such irapri- t with hard labour, one time, and not )ne year, as to the meet. son for any of the or for any felony d f^hall include an be lawful for the to find a verdict of on indicted, if the g ; and when such diall have power to imprison the person so found guilty of an assault, for any term not exceeding three years, (a) o8. Nothing herein contained shall alter or affect ^<>^ ^o '^Gect any of the laws relating to the government of heriaung^o'iuho Majesty's land or naval forces. '°'"<=®^- .'{[). It shall be lawful for the Queen's Majesty, and for the Governor, Lieutenant Governor or person prUoT^*™' administering the government of this Province, to™»y^P*^ extend the royal mercy to any person imprisoned by (a) Burglariously breaking and entering a dwelling Louse with intent to commit a rape is not a crime wliich includes an assault, so that a prisoner can be convicted under this section. — R. v. Watkins, 2 M. C. C. R. 217. On a charge of manslaughter the jury ought not to convict a prisoner of an assault unless that assault conduced to the death of deceased, though the death was not by manslaughter. — • R. V. Crumpton, 1 Car. & M. 697. On an indictment for carnally knowing and abusing a girl under ten years of age, prisoner may be acquitted of the felony and convicted of an assault.— R. v. Folker, 2 M. & Rob. 460. cont. R. v. Hol- croft, 2 C. &. K., 341. If on the trial of an indictment for robbery with violence, the robbery be not proved, prisoner cannot be found guilty of assault only, unless it was com- mitted in the progress of something which when completed would be, and was done with intent to commit a felony. — R. V. Greenwood, 2 C. & K. 339. This section applies wherever the indictment charges an as|kult and the jury» negativing the felony, find guilty of the assault, provided the finding be in respect of that very same Act which is charged as felonious ; identity being the question and not the intent of the prisoner to commit a felony. — R. v. Birch, 1 Den. C. C. 185. A prisoner, indicted for manslaughter, was proved to have assaulted deceased some time before his death, but a surgeon proved the death to have arisen from natural causes. Held, he could not be convicted of tho assault. — R. v. Connor, 2 C. & E. 518. Two prisoners were indicted for murder ; the jury negatived that the assaults or any one or more of them laid and proved against the prisoner or either of them conduced to the death. Held, that the prisoners could not upon that indictment be con- victed of an assault, and that therefore upon a subsequent indictment for the same assaults (as assaults) the prisoners could not plead autrefois acquit. Eight judges to six. — R. V. Bird, 1 Temp. & M. 437. m \ m m CttlMlNAL LAW. • ( ■&', li. m '.'\ I-'' Wi !':■ •■. ( n i Kl virtue of this Act, although he shall be imprisonec for non-payment of money to some party, other thai the crown. Acts relating 43. Nothing in this Act contained, shall affect wn wreve^ alter any Act, so far as it relates to the crime of higl *»«enot to be treason, or to any branch of the public revenue. 6 Vic. Chap. 5. — 5. Whereas it is necessary tc Asgauitd determine the punishment to be inflicted upon cer with intent tain offenders, not provided for by the said before Si^Tr""" recited Act, (4& 5 Vic. Chap. 27.) intituled "An sodomy how jid for consolidating and amending the statutes in this Province relating to offences against the jperson," Be it enacted, that where any person shall be charged with and convicted of any assault with intent to com- mit rape, or of any assault to commit the abominable ^ crime of buggery, either with mankind or with any animal, the court in any such case may sentence the offender to be imprisoned at hard labour in the Pro- vincial Penitentiary for any term not exceeding three years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years. PATEIJTS FOR INVENTIONS. 12 Vic. Chap. 24. — 15. If any person or persons Penalty on shall Write, paint, print, mould, cast, carve, engrave, TOun^feit- or stamp upon any thing made, used or sold by him ing name of ^qj. the sole making or selling of which he hath not patentee, Ac. -i n i i • i i ^ or shall not have obtained letters patent, the name or any imitation of the name of any patentee for the sole making or vending of such thing without the consent in writing of such patentee or of his assigns or legal representatives, or if any person upon any such thing not purchased from the patentee or from his assigns or representatives, or from a vendee, or not having his license or consent in writing, shall write, paint, print, mould, cast, carve, engiave, stamp, or otherwise make or affix the word or words I l'3 shall be imprisoned Qie party, other than ained, shall affect or } to the crime of high public revenue. as it is necessary to e inflicted upon cer- ■ by the said before 27.) intituled "An nditig the statutes in 5 against the person'^ Brson shall be charged dt with intent to com- immit the abominable aankind or with any ase may sentence the rd labour in the Pro- term not exceeding in any other prison term not exceeding ENTioi;rs. my person or persons cast, carve, engrave, used or sold by hini which he hath not rs patent, the name any patentee for the 1 thing without the itee or of his assigns ny person upon any ;he patentee or from from a vendee, or nt in writing, shall ast, carve, engiave, ix the word or words CRIMINAL LAW. 47& " patent," " letters patent," by the " Queen's patent," '• patentee," or any word or words of like kind, mean- ing or import with the view or intent of imitating or counterfeiting the stamp, mark or other device of the patentee, or shall affix the same or any word, stamp or device of like import on any unpatented article for the purpose of deceiving the public, he shall be deemed to have committed a misdemeanor, and shall be punished by fine or by imprisonment in the com- mon gaol of the district or county in which the offender is brought to trial, or by both fine and im- prisonment at the discretion of the court trying the same : Provided the fine do not exceed fifty pounds cuirency in amount, and the imprisonment do not exceed three months in duration. 16. From the passing of this Act all patentees patentees to and assignees of patents hereafter to be granted shall stamp Ac stamp, engrave or cause to be stamped or engraved tlSitontta on each article vended, or offered for sale, the date of "*ide». the patent thereof, and any persons patented or assigned neglecting so to do shall be deemed to have committed a misdemeanor, and shall be liable there- Penalty foi- for to the same penalties as are provided in the nextuon*'"*'^' preceding section. PENITENTIARY. 1-4 & 15 Vic. Chap. 2.-37. No person shall, without consent of the warden, bring into or convey ^nTj^i^" out of the Penitentiary any letter, writing or other letter into of article to or from a convict, nor shall any officer or tentiai?^ any other person employed therein write any letter ^"emean- on behalf of a convict; and whoever shall violate or. either of the provisions of this clause shall be deemed guilty of a misdemeanor, and he shall be liable to be fined or imprisoned, or both, at the discretion of the court before which he or she may be convicted for the Bame. i".: ;m: , i 480 ('itlMTNAli \A\\\ POST-OFFICE. Cortaitiof- 1'^ ^ ^^ ^^I^- CflAl'. 17. lO. To Stoul, Ciubozzlo fotices to bo secreto or destroy tiny post letter, shall bo I'elony Rtoiiins lot- i>unishablo in the cliseretion of the court by imprison- tors ic. inent in the Provincial Penitentiary for not less than three nor more than fourteen years, unless such post letter shall contain any chattel, money or valuable security, in which case the oifence shall be punislia- T.)Htoaiaiiy blo by imprisonment in the said Penitentiary for fpasuo't't'o" ^'^'^ '--^'^^ ^^^^^ f^'O'" or out of a post letter any chat- tel, money or valuable security shall be felony, pun- ishable by imprisonment in the said Penitentiary for life : — To steal a post letter bag, or a post letter from a post letter bag, or a post letter from any post-office, nfn^^th ^^ ^^^^ ^"y office of the Provincial Post-office, or intoiittoro'o. from a mail, or to stop a mail with intent to rob or search the same, shall be felony, punishable by impri- sonment in the said Penitentiary for life : — To open unlawfully any post letter bag, or unlawfully to take any letter out of such bag, shall be felony, punishable by imprisonment in the said Penitentiary for fourteen years : — To receive any post letter, or post letter bag, or any chattel, money or valuable security, the steal- same'tcfhave iDgj taking, secreting or embezzling whereof is here- been stolon, jjy made felony, knowing the same to have been felo- niously stolen, taken, secreted or embezzled, shall be felony, punishable by imprisonment in the said Peni- tentiary for fourteen years, and the offender may be indicted and convicted either as an accessory after the fact, or for a substantive felony, and in the latter case, whether the principal felon hath or hath not been previously convicted, or shall not be amenable to justice, and however such receiver shall be con- victed, the offence shall be punishable as aforesaid : — To forge, counterfeit or imitate any postage stamp issued or used under the authority of this Act, or by or under the authority of the government, or proper authority of the United Kingdom, or of any British To receive a lettor bag or chattel, knowing the Porp^ing Btaoips &c, CRIMINAL LAW. 481 To steal, cail)o:' i>*8«- post letter bag, or any post letter, whether the same came into the possession of the offender by finding or otherwise howsoever, or after payment or tender of the postage thereon, (if payable to the party hav- ing possession of the same) to neglect or refuse to deliver up any post letter to the person to whom it shall be addressed, or who shall be legally entitled to receive the same, shall be a misdemeanor : — To steal or for any purpose to embezzle, secrete, destroy, wil- fully detain or delay any printed vote or proceeding, newspaper, printed paper, or book sent by post, shall X u I . f ;' 'I '^ '\!- E 482 Drunkenneu or neglect of carrier. Tollgate keeper revis- ing to allow mail to pass. EndeftTOur- Ing to caufea felony to be committed. CRIMINAL LAW. ■bo a misdemeanor : — To obstruct or wilfully delay the passing or progress of any nuiil, or of any carriage or vessel, horse, animal or carriage employed in con- veying any mail on any public highway, river, canal or water communication in this Province shall be a misdemeanor : — To cut, tear, rip, or wilfully to damage or destroy any post letter bag, shall be a mis- demeanor : — It shall be a misdemeanor for any mail carrier or any person employed to convey any mail, post letter bag or post letters to be guilty of any act of drunkenness, negligence or misconduct whereby the safety or punctual delivery of such mail, post letter bag or post letters shall be endangered, or con- trary to this Act or any regulation made under it, to collect, receive or deliver any letter or packet, or to neglect to use due care and diligence to convey any mail, post letter bag or post letter at the rate of speed appointed therefor by the regulations then in force, or the contract under which he acts : — It shall be a misdemeanor for any toll-gate keeper to refuse or neglect forthwith upon demand to allow any mail or any carriage, horse or animal employed in conveying the same, to pass through such toll-gate whether on pretence of the nonpayment of any toll, or any other, provided, that nothing herein shall aflFect the right of any officer or person travelling with any mail to pass toll free through any toll gate, but in any case where such officer or person would now pass toll free an officer or person in travelling with a mail after the passing of this Act shall in like manner pass toll free, but not otherwise or elsewhere unless it be otherwise provided by competent authority, but in any case he shall not be detained on pretence of demanding such toll but the same if due and not paid shall be recover- able in the usual course of law from the party liable : — Any wilful contravention of any regulation lawfully made under this Act shall be a misdemeanor, if declared to be so by such regulation : — To solicit or endeavour to procure any person to commit any act iii I CttlMlNAL LAW 483 or wilfully delay , or of any carriage I employed in con- hway, river, canal Province shall be a ip, or wilfully to bag, shall be a mis- eanor for any mail I convey any mail, »e guilty of any act lisconduct whereby of such mail, post endangered, or con- on made under it, etter or packet, or gencc to convey any r at the rate of speed ions then in force, or cts : — It shall be a keeper to refuse or allow any mail or oyed in conveying Igate whether on toll, or any other, 1 affect the right of th any mail to pass t in any case where V pass toll free an h a mail after the lanncr pass toll free, iless it be otherwise but in any case he of demanding such .aid shall be recover- _>m the party liable : J regulation lawfully a misdemeanor, H ,on : — To solicit or to commit any act hereby made or declared a felony or misdemeanor shall be a misdemeanor : — And every such misde- meanor as aforesaid shall be punishable by line or imprisonment, or both, in the discretion of the court before whom the offender shall be convictc : — And every principal in the second degree, and every fu'^a'd^d '° accessory before or after the fact to any such felony gree and as aforesaid shall be guilty of felony, and punishable "'='=*'*°'"'«'' as the principal in the first degree, and every per- son who shall aid, abet, counsel or procure the com- mission of any such misdemeanor as aforesaid, shall be guilty of a misdemeanor and punishable as a prin- cipal olFender : — And any imprisonment awarded under this Act shall be in the Provincial Penitentiary if for a term of or exceeding two years, and if the imprisonment awarded be for a less term, it may be with or without hard labour in the discretion of the court awarding it. 17. Any indictable offence against this Act luay^^g^^^jj be dealt with, indicted, and tried, and punished, and locality of laid and charged to have been committed either iQ«ny<"'fe'»e«' the district or county or place where the offence shall be committed, or in that in which the oflFender shall be apprehended, or be in custody, as if actually com- mitted therein, and where the offence shall be com- mitted in or upon or in respect of a mail, or upon a person engaged in the conveyance or delivery of a post letter bag, or post letter, or chattel, or money, or valuable security sent by post, such offence may be dealt and inquired of, tried and punished and charged to have been committed, as well within the district, county or place in which the offender shall be apprehended or be in custody, as in any district, county or place through any part whereof such mail, person, post letter bag, post letter, chattel, money or valuable security shall have passed in the course of conveyance and delivery by the post, in the same man- ner as if it had been actually committed in such district, county or place and in all cases where the side pj- it1l ••{, V) ■* :fi r: 484 CIUMINAL 1,A\V. P.M. a. • centre or other pait of ii liigliway or tho sidebank, centre or other part of a river or canal, or navigable water shall constitute tho boundary between two dis- tricts, counties or places then to pa.ss along the same shall be held to be ])assing through buth, and every acce.sHory before or after the liict, if the oftenco bo felony, and every person aiding or abetting or coun- selling or procuring the commission of any offence, if the same bo a misdemeanor, may be dealt Avith, indicted, tried, and punished as if ho were a princi- pal, and his offence may be laid and charged to have been committed in any district, county or place where the principal offence nuiy bo tried. Property of 18. In cvcry case where an offence shall be com- A*! stolon!' "fitted in respect of a post letter bag or a post letter, tob«ijaidi'a packet, chattel, money or a valuable security sent by post, it shall be lawful to lay in the indictment to be preferred against the offender the property of such post letter bag, po.st letter, packet, chattel, money or valuable security sent by post in the Provincial Postmaster Cireneral, and it shall not be necessary to allege in the indictment or to prove upon tho trial or otherwise that the post letter bag, post letter, packet, chattel or valuable security was of any value, but except in the cases aforesaid the property of any chattel or thing used or employed in the service of the provincial post-office, or of moneys arising from duties of postage shall be laid in her Majesty, if the same be the property of her IMajesty, or if the loss thereof would be borne by the Province and not by any party in his private capacity, and in any indict- ment against any person employed in the provincial post-office for any offence against this Act, or in any indictment against j*ny person for an offence commit- ted in respect of some person so employed, it shall be sufficient to allege that such offender, or such other person as aforesaid, was employed in the provincial post-office at the time of the commission of such offence, without stating further the nature or particr ulars of his employment. (MUMINAl, l,AW 485 or tlio sidebunk, imal, or mivigublo between two (lis- :<9 along the samo both, and every if the ofiencc bo iibettin*:; or coun- )n of any offence, y be dealt with, he were a princi- I charged to have II ty or place wliero ICO shall be com- ig ^r a post letter, iblc security sent the indictment to r the property of , packet, chattel, , by post in the md it shall not ment or to prove )ost letter bag, post ccurity was of any esaid the property oyed in the service oncys arising from n- Majesty, if the ty, or if the loss vince and not by lid in any indict- in the provincial lis Act, or in any n offence commit- ployed, it shall be r, or such other in the provincial 1 mission of such nature or partic- lu It). The provisions of the Act (10 k, \l Victoria, ^'!*'^*»'» P"" ch. iii, vide sui>r(t, title <' (\istonis,") relative to lhc&n"vic' publication and proof of regulations or orders made l''.T ill' m under it, and to the time ot their coming into force, ''■•'* »^f ''r"- shall apply to the publication and i)roof of regulations ofikc!'' '"""" and orders made under this Act, and to the time of their coming into force, and any bond or security required or authorized by any such regulations, or by any order of the Governor in Council, in any matter relative to the provincial post-ollice, or to the obser- vance of any provision of this Act, or of any regula- tion or order made under it, shall be valid in law, and nuiy bo enforced according to its tenor on breach of the condition thereof. 24. The Interpretation Act shall applv to this Act, which shall be cited and known as ^'Ae VW-0>\r KXu.^^. Art, and the following terms and expressions therein shall have the meanings hereinafter assigned to them, unless such meaning be repugnant to the subject, or inconsistent with the context: — The term " letter" shall include packets of letters; the term " postage" shall mean the duty or sum chargeable for the con- veyance of post letters, packets and other things by post; the term "foreign country" shall mean any country not included in the dominions of her Majesty; the term "foreign postage" shall mean the postage on the conveyance of letters, packets or other things within any foreign country; the term "colonial postage" shall mean the postage on the conveyance of letters, packets or other things within any of the British colonics in North America, which colonies when referred to in this Act shall be understood to be those only which being parties to the agreement aforesaid shall have accjxiired the right of estab- lishing and regulating inland posts under the Act of the British parliament, (12 & 13 A^'ic. Chap. GG,) the term "provincial postage" shall mean the postage on the conveyance of letters, packets and other things by post within this Province; the term "mail" shall 486 CUIMINAL LAW. ■•i H' include every convcyanco by which post k'tters jiro carrioil whether it bo by hind oi- by water ; the term " British piclcct postajfo" shall mean the postage due on the conveyance of letters by British packet boats between the United Kingdom and any British North American Colony; and the term " British postage" shall include all postage not being foreign, colonial or provincial ; the expression, ''employed in the provin- cial post-ortice," shall apply to any person employed in any business of the provincial postofhcej the term " post letter" shall mean any letter transmitted or deposited in any post office to be transmitted by the post, and a letter shall be deemed a post letter from the time of its being so deposited or delivered at a post-olhce to the time of its being delivered to the party to whom it is addressed, and a delivery to any letter carrier, or other person authorized to receive letters for the post, shall be deemed a delivery at the post-office arid a delivery at the house or office of the person to whom the letter is addressed, or to him or to his servant or agent or other person considered to be authorized to receive the letter, according to the usual manner of delivering that person's letters, shall be a delivery to the person addressed ; the term " post letter bag" shall include a mail bag or box or packet or parcel or other envelope or covering in which post letters are conveyed whether it does or does not actually contain post letters ; the terra *' any post office" shall mean any building, room or place whei'e post letters are received, or delivered, sorted, made up, or despatched ; the term " valuable secu- rity" shall include the ;vholc or any part of any tally, order or other security, or document whatsoever, entitling or evidencing the title of any party to any share or interest in any public stock or fund whether of this Province or the United Kingd ^ni, or any British colony or possession, or of any foreign country, or in any fund or stock of any body corpo- rate, company or society in this Province or elsewhere. II ; m I i- CUIMJNAL LAW. 4«7 icli post letters Hro jy Wiitcr ; the term can the postage due tiiti«h packet boats :1 any liritish North " British postage" X foreign, colonial or )loycd in the provln- y person employed )OHt office ; the term itter transmitted or transmitted by the I a post letter from i or delivered at a ig delivered to the id a delivery to any ithorized to receive led a delivery at the ouse or office of the essed, or to him or ' person considered etter, according to lat person's letters, ddressed ; the term mail bag or box or ope or covering in whether it does or ers ; the terra " any ng, room or place delivered, sorted, n " valuable secu- y part of any tally, ument whatsoever, of any party to blic stock or fund nited Kingdom, or or of any foreign f any body corpo- jvince or elsewhere, or to any deposit ill any savings bunk, or the whole or any part of any di'b<;nture, deed, bond, bill, note, choiiue, warrant, ur order, or other i-ecurity for the payment of money, or for the delivery or transfer of any goods, chattels or valuable thing, whether in this L*rovinco or elsewhere ; and the term, " between," when used with reference to the transmission of letters or other things, shall npply equally to such transmission fiom either place to the other. , 14 & 15 Yic. OiiAP. 71.— 23. If any officer of or KKibe««io- conneeted with the post-office department shall con- "'®?*' ?'''■*» vert to lus own use in any way whatever, or shall use by way of investment in any kind of property or merchandize, or shall loan with or without interest any portion of the public moneys entrusted to him fur safe keeping, transfer, disbursenjent, or for any other purpose, every such act shall be deemed and adjudged to be an embezzlement of so much of the said moneys as shall be thus taken, converted, invested, used or loaned, which is hereby declared to bo a felony ; and the neglect or refusal to pay over any public moneys in his hands, or to transfer or disburse any such moneys promptly on the requirement of the Post- master General shall be prima facie evidence of such conversion to his own use of so ranch of the public moneys as may be in his hands; and all persons advising, or knowingly and willingly participating in such embezzlement, upon being convicted thei'eof, before any court of competent jurisdiction, shall, for every such oftenee, forfeit and pay to her Majesty, her heirs or successors, a line equal to tlic amount of the money embezzled, and shall suffi)r imprisonment lor a term not less than three months and not more than seven years. IG Vic. OiiAP. 8.-5. Every United States' mail JJ- s- »»" to so carried or transported as aforesaid (over any part n. m. maiu or portion of this Province, by arrangement with "JJp^J^^/jj. the Postmaster General made with the approval ofmentof the Governor in Council, sec. 4,) shall, while within fitted* in"" ilr te f I , 488 CRIMINAL 1,AW. respect thereof. this l*roviucc, bo deeiiKcl :.ikI talcon to bo a mail her 3lajesty, so Jltr iis to uuiko any violiitiun tlioicc any tlcpredatiou thorooii, ur any Jici. or oli'ojito rospoct thereto, or to any part ihoitof, uhieh voul bo punishable under the existing laws uf this Vn vinco, in case the «uuo had bocn a mail or ]>art of mail of this I'rovinee, an oH'onec of the same degn and nuijrnitude, and punishable in the same mannc and to the same extent, as though the sunie were mail or part ol" a mail ol' this I'rovinee; and in im indictment for sueh act or oiience, such jiiail or pui of a mail may bo allcscd to be, and on the trial o such indictment, ahvAl be deemed and held to be ; mail or part of a mail of this I'rovineo; and in aii^ indictment for stealing, embezzling, fcctreting or do?;- troying any post letter, post letter bag, pucket, chattel ' money or valuable security sent hj post through am by all and every of the said United States' mail or mails as aforesaid, it shall bo lawful to lay in the indictment to bo preferred against the offender, the property of such post letter, post letter bag, packet, Property of chattel, mouey or valuable security sent by post, as may be laid herein mentioned, in the Provincial Postmaster Gen- inP. M. o. QYnl', and it shall not be necessary to allege in the indictment, or to prove upon the trial or otherwise, that the post letter, post letter bag, packet, chattel, or valuable security was of value. 6. If any person shall steal, purloin, embezzle or Punishment obtain by any false pretence, or shall aid or assist in of persons Stealing, purloining, embezzling, or obtaining by any counterfeit- ^^^^sc pretence, or shall knowingly or unlawfully mako, in?*c.keys loroQ or Counterfeit, or cause to be unlawfullv made. or locks used « ' i i r -l i i • i • i -^ . . ' ftirmaUs. lorged or counterieited, or knowingly aid or assist m falsely and unlawfully making, forging or counter- feiting any key suited to any lock which has been r^r shall be adopted for use by the post-office department of Canada, ami which shall be in use on any of the mails or mail bags of the said post-office department, or shall have in his possession any such mail key or w. taken to be a mail of iiiiy viohttlun llioicci', iiy Jict or oiliMitc in thoicof, uliicli would iiig hnvs of this ] 'ro- il a nmil or part of ji ;e of the sanie tlcfrrce I ill the stniie iiianucr mull the i^iinie wore ;i 'roviiicc ; and in any ce, such inuil or part , tmcl on the trial of ned and held to he a 'rovineoj and in any linj:, hocretinu; or des- ;r bag, packet, chattel, t hj post through ami 'nited States' mail or lawlul to lay in the iinst the offender, the ost letter bag, packet, urity .sent by post, as ial Postmaster Gen- isary to allege in the lie trial or otherwise, bag, packet, chattel, [purloin, embezzle ov shall aid or assist in or obtaining by any or unlawfully make, Jbe unlawfully made, |ingly aid or assist in forging or counter- Ik which has been or st-offico department use on any of the Ist-officc department, ly such mail key or ORIMIXAL LAW. 489 any such mnil lock with the intent unlawfully or improperly to use, sell or otherwise dispose of the same, or to cause the same to be unlawfully or impro- perly used, sold or otherwise disposed of, such person .shall, on conviction, be deemed guilty of felony, and shall be punished by imprisonment in the Provincial Penitentiary for a period not exceeding seven years. PUNISHMENTS. See the various offences under their respective titles. Vic. Ciur. 5. — 1. So much of a certain Act jiasscd in the session held in the fourth and fift^- 4 & 5 vi years of her Majesty's reign, and entitled, "An Actchap.24r for improving the administration of criminal justice in this Province," or of a certain other Act passed in the same session, and entitled, "An Act for consoli- 4 4 5 vir dating and amending the laws in this Province, rela- Chap. 25. tive to larceny and other offences connected therewith," or of a certain other Act passed in the same ses.sion, and entitled, " An Act for consolidating and amend- 4*5 v!c. ing the laws in this Province, relative to malicious "^" ^^' injuries to property;" or of a, certain other Act pa.ssed in the same session, and entitled, " An Act for consolidating and amending the statutes in this chap.^7.' rrovince, relative to offences against the person ; " or of any other act or law as shall be repugnant to or inconsistonl inconsistent with the enactments of this Act, shall be p^J^"* and is hereby repealed. 2. For each and every offence for which by any of cases in the Acts hereinabove cited, the offender is liable on ^hich or- conviction to be punished by imprisonment m thebecommifc- Provincial Penitentiary, but may, instead thereof and ^rovinJud i" the discretion of the court, be punished by impri- penitentiary sonment in any other prison or place of confinement noncM ihw for any term not exceeding two years, the offender three years, may, if colivicted after the passing of this Act, be puni.shed in the discretion of the court by imprison'- x2 .;« mi 1 i-i^i ■ ? 'If ? ■,' Ji' 1 '^■■f k I 'i!'' > ■; TT ! I: m it 400 other caKB In which offenders may beib committed. Purposes of the peniten- tiary. Who shall be sent there, « Tic. Chap. ClimiNAL LAW. nient in the Provincial Penitentiary for any term n less than three years, and not exceeding the longe term for which such offender might have becii so in prisoned if this Act had not been passed, or by inipi sonment in any other prison or place of continemei for any term not exceeding two years, in the mann( prescribed by such Act : Provided always, that m thing in this Act shall prevent such ^offender froi being punished by imprisonment in the Provinci; Penitentiary for life, if he might have been so pur ished if this Act had not been passed. 3. For each and every offence, for which by an of the said Acts, the offender may on conviction b punished by imprisonment for such term as the coui shall award, or for any term exceeding two yearg such imprisonment, if awarded for a longer term thai two years, shall be in the Provincial Penitentiary. 14 & 15 Vic. Chap. 2.-2. The said Provincia Penitentiary shall be maintained as a prison for th( confinement and reformation of persons male ant female lawfully convicted of crime before the dul} authorised legal tribunals of this Province, and sen- tenced to confinement therein for a term not less than two years, and whenever any ofl'ender, convicted aftei this Act sliall come into efl'ect, shall be punishable by imprisonment, such imprisonment shall, if it be for two years or any longer term, be in the Provin- cial Penitentiary, anything in the Act (6 Vic. ch 5) or in any other Act or law to the contrary notwith- standing : Provided always, that nothing herein con- tained shall prevent the reception and imprisonment in the said penitentiary of any prisoner or prisoners sentenced for any period of time by any military or militia court martial, or military authority under any Mutiny Act. IIAILWAY OFFENCES. 10 & 11 Vic. Chap. llS.—(B^tow7i and Brit- tania Raihcay.) — 24. If any person or persons shall iW. Criminal law. 401 tiary for any term not exceeding the longest light have becw so ini- sn passed, or by inipri- place of confinement ) years, in the manner ided always, that no- nt such ^offender from ent in the Provincial ^ht have been so pun- passed. nee, for which by any nay on conviction be such term as the court exceeding two years, for a longer term than incial Penitentiary. . The said Provincial ed as a prison for the of persons male and crime before the duly lis Province, and scn- br a term not less than fender, convicted after t, shall be punishable anment shall, if it be , be in the Provin- le Act (6 Vic. ch 5) the contrary notwitli- it nothing herein cou- ion and imprisonment prisoner or prisoners ne by any military or authority under any :nces. -(^Bytotcn and Brit- •jrson or persons shall wilfully and maliciously, and to the prejudice of the r«nisLment said railway authoi'ized to be made by this Act, bnJaking* break, throw down, damage or destroy the same, or ^^^4"^°^)^^ • any part thereof, or any of the houses, warehouses, damaging toll-houses, watch-houses, weigh-beams, cranes, car- "rany works riages, vessels, engines, inclined planes, machines or "^ *i»« com> other works or devices, incidental and relative thereto "^" or connected therewith, or do any other wilful hurt or mischief thereto, or wilfully or maliciously ob- struct or interrupt the free use of the said railway, vessels or works, or shall obstruct, hinder or prevent the carrying on, completing, supporting and main- taining the said intended railway, vessels or works, such person or persons shall be adjudged guilty of felony, and the court by and before whom such per- son or persons shall be tried and convicted shall have power and authority to cause such person or persons to be punished in like manner as felons are directed to be punished by the laws in force in this Province, or in mitigation thereof to award such sentence as the law directs in cases of simple larceny, as to such court shall seem fitting. 57. Any contravention of this Act by the said company or by any other party, for which no punish- ment or penalty is herein provided, shall be a misde- meanor, and shall be punishable accordingly; but such punishment shall not exempt the said company (if they be the offending party) from the forfeiture ofihisActand the privileges hereby conferred on them, if by the provisions thereof or by law the same be forfeited by such contravention. Gl. Nothing herein contained shall be construed to except the railway by this Act authorized to be made, from the provisions of any general Act relating to railwaj's which may be passed during the present or any future session of parliament. 10 & 11 Vic. Chap. Vl'6. — (^Toronto and Godcvicli ^^^^^^^^^^ Railway.') — 14. If any person or persons shall wil-ofi>erRons ful^ and maliciously, and to the prejudice of the ^own or^ob. 492 CRIMINAL LAW. i R' f :i l*i'''!' l) rtructing or gajj railway authorized to be made by tliia Act, break the railway tlirow dowii, daiiuigc or destroy the same, or ani ***• part thereof, or any of the hon«os, warehouses, toll houses, watch-houses, weigh-beams, cranes, carriages vessels, engines, inclined planes, machines, or othei works or devices, incidental and relative thereto oi connected therewith, or do any other wilful hurt oi mischief, or wilfully or maliciously obstruct or inter- rupt the free use of the said railroad, vessels, or works, or shall obstruct, hinder or prevent the carry- ing on, completing, supporting and maintaining the said intended railway, vessels or works, such person or persons shall be adjudged guilty of a misdemeanor, and the court by and before whom such person or persons shall be tried and convicted shall have power and authority to cause such person or persons to be punished in like manner as persons convicted of a misdemeanor are directed to be punished by the laws in force in this Province, or in mitigation thereof to award such sentence as the law directs in cases of simple larceny, as to such court shall seem fitting. 40. Any contravention of this Act by the said company, or by any other party, for which no pun- ishment or penalty is herein piovided, shall be a misdemeanor, and shall be punished accordingly ; but such punishment ihall not exempt the said company (if they be the offending party) from the forfeiture of this Act and the privileges hereby conferred on them, if by the provisions thereof or by law the same be fcnfeited by such contravention. 49. Nothing herein contained shall be constnied to except the railway by this Act authorized to be made, from the provisions of any general Act relating to railways which may be passed during the present or any future session of parliament. Penalty for 13 & 14 ViC. CiiAP. 182. — {Bi/town and Frescott ^^^"■"^'"Jy 7?a<7tfay.) 21. If any person shall by any means or in any manner or way whatsoever obstruct or interrupt the free use of the said railway, or the carriafes, }!i le by thiy Act, break, "f the ssaine, or any 's, warehouses, toll- uis, cranes, carriages, , machines, or other I relative thereto or other wilful hurt or sly obstruct or inter- railroad, vessels, or jr prevent the carry- and maintaining the works, such person Ity of a misdemeanor, lom such person or ;ted shall have power ion or persons to be sons convicted of a punished by the laws nitigation thereof to directs in cases of shall seem fitting. lis Act by the said for which no pun- novided, shall be a led accordingly ; but pt the said company Tom the forfeiture lereby conferred on or by law the same n. shall be construed ct authorized to be general Act relating during the present nt. i^town and Prescott 11 by any means or obstruct or interrupt r, or the carriages, CRIMINAL LAW. m Vessels, engines, or other works incidental or relative thereto, or connected therewith, such person shall, for every such offence, be deemed guilty of a misde- meanor, and shall, on conviction thereof, be punished by imprisonment in the Provincial Penitentiary for a term not to exceed five years. 22. If any person or persons shall wilfully and penalty fbf maliciously, and to the prejudice of the said railway, destroying authorized to be made by this Act, break, throw down, damage or destroy the same, or any part there- of, or any of the houses, warehouses, toll-houses, watch-houses, weighbeams, cranes, carriages, vessels, engines, inclined planes, machines or other works or devices incidental and relative thereto, or connected therewith, or do any other wilful hurt or mischief, or wilfully 01 maliciously obstruct or interrupt the free use of the said railway vessels or works, or shall ob- struct, hinder or prevent the carrying on, completing, supporting and maintaining the said intended railway vessels or works, such person or persons shall be adjudged guilty of a misdemeanor, unless the offence committed shall, under some other Act or law, amount to a felony, in which case such person shall be ad- judged guilty of a felony, and the court by and before whom such person or persons shall be tried and con- victed, shall have power and authority to cause such person or persons to be punished in like manner as persons guilty of misdemeanors, or felons (as the case may be) are directed to be punished by the laws in force in this Province. 51. Any contravention of this Act by the said pgn^jty on company, or by any other party, for which no pun- company isr ishment or penalty is herein provided, shall be a mis-tionofthis demeanor, and shall be punishable accordingly, but-^''*" such punishment shall not exempt the said company (if they be the offending party) from the forfeiture of this Act, and the privileges hereby conferred on them, if, by the provisions thereof, or by law, the same be forfeited by such contravention. .-.-J 494 CRIMINAL LAtV^ i'.: S 1 ■ ! ;i ^o execjition on behalf uf thjs com- pany. Penalty for obstructing company. Penalty for destroying works; &c. 54. Nothing herein contained shall be construed to except the railway, by this Act authorised to be made, I'roni the provisions of any general Act relating to railways which may be passed during the present or any future session of parliament. 14 & 15 Vic, Chap. 51. — (The Railway Clauses Consolidation Act. — 20. 2ndly. All persons by any means, or in any manner or way whatever, obstructing or interrupting the free use of the railway, or the car- riages, vessels, engines or other works incidental or relative thereto, or connected therewith, shall, for every such offence, be deemed guilty of a misdemean- or, and, on conviction thereof, shall be punished by imprisonment in the common gaol of the district or county where the conviction shall take place, or in the Provincial Penitentiary for a term not to exceed five years. Srdly. All persons wilfuUy and maliciously, and to the prejudice of the railway, breaking, throwing down, damaging or destroying the same, or any part there- of, or any of the buildings, stations, depots, wharves, vessels, fixtures, machinery or other works or devices incidental and relative thereto, or connected there- with, or doing any other wilful hurt or mischief, or wilfully or maliciously obstructing or interrupting the free use of the railway, vessels or works, or ob- structing, hindering or preventing the carrying on, completing, supporting and maintaining the railway, vessels or works, shall be adjudged guilty of a misde- meanor, unless the oflFence committed shall, under some other Act or law, amount to a felony, in which case such person shall be adjudged guilty of a felony, and the court, by and before whom the person shall be tried and convicted, shall have power and authority to cause such pei'son to be punished in like man- ner as persons guilty of misdemeanor or felony, (as the case may be) are directed to be punished by the laws in force in this Province. 5thly. All contraventions of this Act, or of the shall be construed 3t authorised to be jeneral Act relating during the present i. e Railway Clauses All persons by any hatever, obstructing railway, or the car- (vorks incidental or lerewith, shall, for Ity of a misdemean- lall be punished by ol of the district or ill take place, or in term not to exceed I maliciously, and to ing, throwing down, , or any part there- ns, depots, wharves, ler works or devices )r connected there- urt or mischief, or ng or interrupting Is or works, or ob- g the carrying on, aining the railway, guilty of a misdc- nitted shall, under a felony, in which guilty of a felony, m the person shall )ower and authority shed in like luan- mor or felony, (as e punished by the is Act, or of the CRIMINAL LAW. 495 special Act, by the company or by any other party i^«"»'^y «»> 1 ,.,'•'., ^ •' I. • 1 . *^ *' company for tor winch no punislunent or penalty is liciein pro-rontraven- vidod, shall be a misdenicanor and shall be punisha-'"'*^'*''''^'^*' blc accordingly, but such punishment shall not exempt the company if they bo the oHending party from the forfeiture by this Act and the special Act, of the privileges conferred on them by the said Acts if by the provisions thereof or by law the same be forl'eited by such contravention. Othly. Enacts that copies of by-laws, rules and copies of orders regularly made, being '' certified as correct by 1^'^"]^^^"^^^ the president or secretary, shall be deemed authentic, and shall be received as evidence thereof in any court without further proof." 21. 4thly. The baggage, freight, merchandize or where bag- lumber cars shall not be placed in rear of the passen- b^'S^",**' ger cars, and if any such be so placed the oflicer or agent directing or knowingly suifering such arrange- ment and the conductor of the train shall severally be deemed guilty of a misdemeanor and be punished accordingly. 7thly. All persons in charge of a locomotive Pei\"ity «"l engine, or acting as the conductor of a car or train intoxication, of ears, who shall be intoxicated on the railway shall be deemed guilty of a misdemeanor. 22. Othly. The offence of forging any debentures or a coupon of any debenture issued under thcfo^^nif °' authority of this Act, or of the special Act, or of «i'^*»'»t"""' uttering any such debenture or coupon knowing the same to be forged, or of being accessory before or after the fact to any such offence, shall be deemed felonyj and be punished accordingly, (a) IG Vic. CiiAP. 99. — r/te Great Western Railway ^^^^^^^ ^^^ Cumpany. — 11. * * * * All contraventions of this contraven- Act or of the Act incorporating the said Great '°"° 'Act. (a) Note. — The Railway Clause Consolidation Act, by section 1 applies '* to every railway which shall by any Act which shall hereafter be passed, be authorized to be con- structed, and this Act shall be incorporated with such Act." 4t)6 OlinilNAL 1,AW. n t r t • ^a Company to have power to expel pas- sun^ors refu- sing; to pay fare. I'enalty for displacing rails, &c., whereby any Krsoa is in-, red. ^ Wcstorn Kailroad Company, or any Act amciidliig the saiue, by any party for Avhich no puiiislimcnt or penalty is herein provided, shall be a misdemeanor, and shall be punishable accordingly, but such punish- ment shall not exempt the company, if they be the oil'ending party, from the forfeiture by this Act or other Acts applicable to them of the privileges con- ferred on them by the said Acts, if by the provisions thereof or by law the same be forfeited by such con- travention. 12. The said company shall have power and are hereby authorized to remove and put out of the cara by the conductor of the train and also the servants of the company, using no unnecessary force, at any usual stopping place or near any dwelling house as the conductor shall elect for stopping the train, all or any passenger or passengers refusing to pay his or their fare, and any person in charge of a locomotive engine or acting as the conductor of a car or train of cars who shall be intoxicated on the railway shall be deemed guilty of a misdemeanor. 16 Vic. Oiiap. 169. — An Act in addition to the General Railway Clatises Consolidation Act. 1. If any person shall wilfully and maliciously dis- place or remove any railway switch or rail of any railroad, or shall break down, rip up, injure or destroy any railroad track or railroad bridge or fence of any rail- road, or any portion thereof, or place any obstruction whatsoever on any such rail or railroad track or bridge with intent thereby to injure any person or property passing over or along such railroad, or to en- danger human life, every such person so offending shall be guilty of misdemeanor, and shall bo punished by imprisonment with hard labour in the common gaol of the territorial division in which such offence shall be committed or tried for any period not exceeding one year from conviction thereof, and if, in conse- quence of such act done with the intent aforesaid, any person so passing over and along such railroad CRI^MINAL LAW. 41)( i^liiiU actually yiiiror any bodily harm, or a n}^ property piissinj; over and iiloui;' siu-h railroad shall bo injured, Hiich suircrin<^ itr injury j^hall be an au'^ravatiun of the olR'nee, and shall render such oflenee a felony, and shall subject the said offender to such punish- ment by imprisonment in the Provincial I'cnitentiary i'ur not less than one year, nor more tlian two years ;;.s tlie cireumstanceKS of the case may in the oi>inion di' th(> court, before which he shall bo convicted, ;i[)|iear to be proportionate to the offeneo and the ralschicf occasioned ])y it. '1. If any person shall wilfully and maliciously l'^■n»l^v for displace or remove any railway switch or rail, of any Ji'^Tuho^ riiilroad, or shall break down, rip up, injure or destroy ["''■'' y"** any railroad track, or railroad bridge or fence of any injure any railroad, or any portion thereof, or place any obstruc- ^^Igreby^ tion whatever on any such rail or railroad track or anyone is biidiie, or shall do or cause to be done any act what- ' ^ " ever whereby any engine, machine t»r structure, or any matter or thing appertaining thereto, shall be stopped obstructed, impaired, weakened, injured or destroyed, with intent thereby to injure any person or property passing over or along sucli railroad, and if, in conse- ([uence thereof, any person bo killed, or his life bo lost, such person so offending shall be deemed guilty of manslaughter, and, being found guilty, shall bo punished by imprisonment in the Provincial Peniten- tiary for any period not more than ten nor less than four years. o. If any person shall wilfully and maliciously do X I 1 i. 1 A 1 I, rnialty for or cause to be done any net whatever, whereby anydoiuixnny building', fence, construction or work of any such"^"*^^^'T''^ niih'oau, or any engine, machine or structure oi any &n. is in- suc'i rallroisd, or any matter or thing ajipertaining to''""'''^" tlio same, shall be stopped, obstructed, impaired, weakened, injured or destroyed, such person, so olicnding, shall be guilty of a misdemeanor, and punished by imprisonment with hard labour, not exceeding one year, in the common gaol of the terri- ■I I- IP M'l I* t li II- *'■ « I, I ■))■'' I n i M ' ) - ■ * i • ii : w^ 1 :,««Pfc tt 498 ClUMlNAIi LAW Dcputios. ' ' torial (livisliiii in which .such uflciicc ^h;ill hiive bcc cuimiiitted or tried. ID. T\w provisions of this Act shMlI, IVoni °t«''s *» disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the Act made in the first year of King George, for preventing tumults and riotous assem- blies. — God save the King." *' And every such justice and justices of the peace, sheriff, under-sheriff, mayor, bailiff, and other head i V ' I I \ f I: I n ; i ( i i-\ ' 1 I I I ! S 'V' 1 III I : I I ii if ■J . 1 1 ! i 1 1 ■M , m •«r, » in 1 i'" 1 ; SI 600 CRIMINAL LAW. officer, nl'orosuid, within the limits of'tlieir vcspc jurisdictions nrc bv the said Act authorized, cm cred, and required, on notice or knowlcdp) of such unlawful, riotous, and tumultuous assembly resort to the place where such unlawful, riotous, tunudtuous assemblies shall be, of persons to number of twelve or more, and there to make cause to be made, proclamation in manner aforcsa And it id in the said Act further enacted, that such persons so unlawfully, riotously, and tumi ously avssenibled, or twelve or more of them, a proclanmtion made in manner aforesaid, shall conti together and not disperse themselves within one h that then it shall and may be lawful to and for ci justice of the peace, sheriff', or under-sheriff' of county where such assemblies shall be, and also to ' for every high and petty constable and other p( officer within such county, and also to and for cv mayor, justice of the peace, sheriff^, bailiff, i other head officer, high or petty constable, and ot peace officer, of any city or town corporate wh such assembly shall be, and to and for such ot person and persons as shall be commanded be assisting unto any such justice of the pea sheriff or under-sheriff", mayor, bailiff', or other Ik officer aforesaid, (who are thereby authorized £ empowered to command all his Majesty's subjects age and ability to be assisting to them therein) se?' e and apprehend, and they are thereby requi to seize and apprehend such persons so unlawfu riotously, and tumultuously continuing togeth after proclamation made, as aforesaid, and forthw to carry the persons so apprehended before one more of his IMajesty's justices of the peace of ' county or place where such persons shall be so apf hended, in order to their being proceeded against such their off'ences according to law ; and that if i persons so unlawfully, riotously, and tuniultuou assembled, or any of them, shall happen to be kill LAW (JIIIMINAL LAW. 601 ! limits of their rospectivel Act uuthorizcd, cmpow.l ice or knowlcdp) of any' tumultuous assemMy, u ch unlawful, riotous, and 11 bo, of j)crsons to the I and there to make, or I tion in manner aforesaid." iirther enacted, that "if| , riotously, and tumultu- or more of them, after) r aforesaid, shall continue cmselvcs within one hour,| )e lawful to and for every 1 , or under-sheriff of the ;s shall be, and also to and instable and other peace ind also to and for every ice, sheriff, bailiff, and tetty constable, and other )r town corporate where d to and for such other lall be commanded tol ih justice of the peace, or, bailiff, or other head thereby authorized and his 3Iajesty's subjects of I ng to them therein) to ey are thereby required persons so unlawfully, continuing together, aforesaid, and forthAvith rehended before one or CCS of tlie peace of the persons shall be so appre- ng proceeded against for to law ; and that if the usly, and tuniultuously lall happen to be killed. luaiiued, or hurt, in the dispersing, seizing, or ipprchending, or endeavouring to disperse, seize, or apprehend them, by reason of their resisting the per- 5IIIIH so dispersing, seizing, or apprehending, or endea- vouring to disperse, seize, or apprehend them, that tlieii every such justice of the peace, sheriff, under- ilieriff, mayor, bailiff, head officer, high or petty consta- ble or other peace officer, and all and singular persons being aiding and assisting to them, or any of them, shiiil be free, discharged and indemnified, as well ajiinst the King's Majesty, his heirs and successors, is ai^ainst all and every other person and persons, of, fir or concerning the killing, maiming or hurting of any such person or persons so unlawfully, riotously iind tumultuously assembled, that shall happen to be so killed, maimed or hurt as aforesaid." And it is ill the said Act further enacted, that "if any persons unlawfully, riotously and tumultuously assembled tuj^ether, to the disturbance of the public peace, shall unlawTuUy, and with force, demolish or pull down, or begin to demolish or pull down, any church, cha- pel, or any building for religious worship, certified and registered according to the statute made in the first year of the reign of the late King William and Queen 3Iary, intituled ' An Act for exempting their Majesties' Protestant subjects dissenting from the Church of England from the penalties of certain laws ; ' or any dwelling house, barn, stable, or other nut-house, that then every such demolishing or pul- lins: down, or beginning to demolish or pull down, shall be adjudged felony, without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony without benefit of clergy." And it is in the said Act further enacted, that ** if any person or persons do, or shall with force and arms, wilfully and knowingly op- pose, obstruct, or in any manner wilfully or know- ingly let, hinder or hurt any person or persons that shall begin to proclaim, or go to prpclaim, according \l <: ! ''Ill 1 ( ^■\i ■ r »; / 1 ' ■; ^r , .'il ! Vl ^'' *.; \X tr ri !i 502 The provi- sions of 1 Oeo. I. Chap. 5 (Riot Act) not to be re- pealed or affected by this Act. Churches and places of worship to be within Riot Act, thouj^h not registered. CRIMINAL LAW. to the proclamation thereby directed to be mad ■whereby such proclamation shall not be made, thj then every such opposing, obstructing, letting, hii dering or hurting, such person or persons so begii ning or going to make such proclamation as aforesaic shall be adjudged felony, without benefit of clergj and the oft'endors therein shall be adjudged felons and shall suifer death as in case of felony, withou benefit of clergy ; and that also everj^ such person o persons so being unlawfully, riotously and tnnulti ously assembled to the number of twelve as aforcsai( or more, to whom proclamation should or ought t have been made, if the same had not been hinderec as aforesaid, shall likewise, in case they, or any o them, to the number of twelve or more, shall con tinue together, and not disperse themselves withii one hour after such let or hindrance so made, havinj knowledge of such let or hindrance so made, shall b adjudged felons, and shall suffer death as in case o felony, without benefit of clergy." And it is in thi said Act further enacted, that "no person or personi shall be prosecuted by virtue of the said Act, for an; offence or offences committed contrary to the same unless such prosecution be commenced within twelv( months after the offence committed : " Be it enactei by and with the authority aforesaid, That nothing ir this Act contained shall affect, or be construed t( affect, or in any manner to repeal or vary any of th( provisions in the said Act contained, but the sanit shall continue and remain as if this Act had not beer passed : Provided nevertheless, and it is hereby en acted by the authority aforesaid, That the provisions in the fourth clause of the same Act shall apply and extend to ..11 churches or chapels, or places for reli gious worship in this Province, notwithstanding th( same, or any of them, shall not be certified or regis tered as provided in the said Act. 4 & 5 Vic. Chap. 2G. — 6. If any persons riotously and tumultuously assembled together to the distur directed to be made, diall not be made, that bstructing, letting, hin- un or persons so begin- oclamation as aforesaid, thout benefit of clergy ill be adjudged felons, case of felony, without 50 every such person or riotously and tunultu- r of twelve as aforesaid, m should or ought to had not been hindered, ti case they, or any of ve or more, shall con- Drse themselves within drance so made, havinjr ranee so made, shall be ^er death as in case of 'gy." And it is in the "no person or persons of the said Act, for any i contrary to the same, nmenced within twelve uitted : " Be it enacted resaid, That nothing in ct, or be construed to peal or vary any of the ontained, but the same P this Act had not been IS, and it is hereby en- id, That the provisions le Act shall apply and ipels, or places for reli- ve, notwithstanding the lot be certified or regis- ^ct. [f any persons riotously together to the distur; CHIMIN AL LAW fiO,-i banco of tlic public peace, shall unlawfully, and with ''uniBhineTit force, demoli.sh, pull down or destroy, or begin to d.'stroyint? demolish, pulldown or destroy any church, chapel or ''^"'"'^''^'^'^ *•'• meeting house, for the exercise of any mode or form of religious worship, or any house, stable, coach- house, out-house, warehouse, ofliicc, shop, mill, malt- house, hop-oast, barn or granary, or any building or erection used in carrying on any trade or manufac- ture, or any branch thereof, or any machinery, whether fixed or moveable, prepared for or employed ill any manufacture, or in any branch thereof, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for the term of his natural life, or for any term not less than seven years, or to be imprisoned in any other prison or place of confine- ment for any term not exceeding two years, (a) (rt) ^^ rioters have begun to demolish a house, but leave off of their own accord, and before the act of demolition is completed, this is evidence from ■which a jury might infer that they did not intend to demolish it; but if tliey were prevented from going on by the interference of the police, or any other force, that voiild afford evidence that they were compelled to desist from that which they had designed, ami the jury might infer that they had begun to demolish within the statute.— R. v. Howell, 9 C. & P. 437. Destroy- ing moveable shutters is not a beginning to demolish, as they are not part of the freehold. — lb. The jury ought not to convict unless they believe the prisoner's intention was so to destroy the house as in fact to leave it no house at all ; no injm-y, however extensive, short of the actual demolition of the very walls of the building, is within this section. — R. V. Adams, 1 C. & M. 299. If the house bo so far des- troyed as to be no longer a house, the fact that a chimney is loft standing makes no difference. But if the rioters really believe that the house is the property of one of them, and act bona fide in the assertion of a supposed right, this is no felonious demolition. — R. v. Langford, 1 C. & M. 002 ; R. V. Phillips, 2 M. C. C. R. 252. If rioters destroy a house by fire, this is a felonious demolition, and they may be convicted under this section, and need not be indicted 504 CRIMINAL LAW. .; ■!■; i .( ■: In.itfry to a public Destroy ing-n turnpike gate, toll- house, iiC. Penalty for wilfully, injuriui; bridge, &c. Proviso. ROADS, BRIDGES, TOLI^GATES, &c. 4 & 5 Vic. Chap. 2G.— 13. If any person shall unlawfully and maliciously pull down, or in any wise destroy any public bridge, or do any injury with in- tent and so as thereby to render such bridge or any part thereof dangerous or impassable, every such offender shall be guilty of felony, and, being convicted thereof, shall be imprisoned for any term not exceed- ing four years. 14. If any person shall vinlawfully and maliciously throw down, level or otherwi.so destroy in v.'hole or in part, any turnpike gate, or any wall, chnin, r .1). post, bar or other fence belonging to any turnp'' r gate, or set up or erected to prevent passengers pas- sing by without paying any toll directed to be paid by any Act or Acts, ordinance or ordinances relating thereto, in force in this Province, or any house, build- ing, or weighing engine erected for the better collec- tion, ascertainment or security of any such toll, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be punished accord- ingly. 10 Vic. Chap. 112.— ( The Nlwjnm Falls Sus- pension Bridge Company/. ^ — 8. If any person shall willingly do or cause to be done any act or acts what- ever, whereby the said bridge, or anything apper- taining thereto, shall be impaired or injured, the per- son or persons so offending shall forfeit and pay to the said corporation treble the damages sustained by means of such offence or injury, to be recovered in the name of the corporation, with costs of suit, by action, and shall be, moreover, guilty of a misde- meanor, and be punishable by line or imprisonment, or both, by any court having cognizance of such offence : Provided, that nothing in this Act contained shall be construed to exiend to take away the juris- \mder sec. 2 or 3 of 4 & 5 Vic. ch. 26, qu. vide sup., title "Malicious injuries to property." i ? -UATES, &c. f any person shall 3wn, or in any wise my injury with in- uch bridge or any 3sable, every such nd, being convicted ly term not excccd- illy tmd maliciously estroy in v/holo or ly wall, chnin, nil. ig to any frirnr.' ■: ent passengers pas- directed to be paid ordinances relating or any house, build- jr the better collcc- any such toll, every misdemeanor, and, 3 punished accord- 7(((/a}'a Falls Sus- If any person shall ny act or acts what- or anything apper- or injured, the per- forfeit and pay to :nages sustained by to be recovered in h costs of suit, by guilty of a misde- le or imprisonment, ognizance of such this Act contained alee away the juris- ), qu. vide sup., title I ' CRIMINAL LAW. 505 diction given to justices of the peace, by an Act passed in the fourth and fiflh years of her present Majesty, intituled, "^n Act /or consolidating and amending the laws in this Province relative to Mali' eious Injuries to Property." 12 Vic. Chap. 84. — (o) 4n Act to authorize the formation of Joint Stock Companies for the con- $(ruction of roads and other works in Upper Canada. 22. If any person or persons shall in any way injure, cut, break down or destroy any part of anyp^Sonfin" luch road, bridge or other such work as aforesaid, or ^J'^J^^^J'**'" any toll gate or toll house, building or otlier erection wopHa of toy in upon or near any such road or work, and belong- **°'**°y' iog to or used for the convenience of any such com- pany under the provisions of this Act, every suc|i person so offending, and being lawfully convicted thereof, shall be deemed guilty of a misdemeanor, and shall be punished by fine and imprisonment. 12 Vic. Chap. 157. — {The Markham and Elgin Mills Plank Road Company.) — ^22. If any person or persons shall cut, break down or destroy in any i^SJ^^ way any of the gates or toll houses to be erected by ^"""^ virtue of this Act, every such person so offending and, being lawfully convicted, shall be deemed guilty of a misdemeanor, and be punished by fine and im? rtisoRment. L 14 Vic. Chap. 134.— (3%« Vaughan Road •y.)— rl5. If any person or persons shall cut, brea; lown, or destroy in any way, &c. j (verbatim, as the section immediately preceding.) 14 & 15 Vic. Chap. 172.— J Ae Ihrt Erie and Buffalo Suspension Bridge and Tunnel Company.) —16. If any person shall wilfully do or cause to beiiJuSSiKrt done any act or acts whatsoever, whereby the flaidfjj^|^j^ bridge or tunnel or anything appertaining thereto fusion shall be impaired or injured, the said person or per-^"^**** (a) NoTi.— This Act is repealed by 16 Vic. Ch»p. 19() «xeept fti to eompaniea incorporated under it. T V? V Jf- jp." * 506 CRIMINAL LAW. t nil: I t ' r: } ■4 i • ' I SOBS SO ofTending shall forfeit and pay to the said corporation treble the damages sustained by means of such offence or injury to be recovered in the name of the corporation with costs of suit by action, and shall be moreover guilty of a misdemeanor, and be punishable by fine or imprisonment, or both, by any Proviso. court having cognizance of such offence ; Provided that nothing in this Act contained shall be constru 3d to extend to take away the jurisdiction given to jus- tices of the peace by an Act (4 & 5 Vic. Chap. 26.) 16 Vic. Chap. 141.— (TAc Pickering Harbour Penalty for and Road Joint Stock Company.^ — 16. If any per- iJbarvef, Ac. "on or pcrsous shall in any way injure, cut, break down or destroy any part of the said road, piers, wharves, storehouses or other buildings, erections or , improvements made or to be made by the said com- pany in upon or near the said road or harbour, and belonging to or used for the convenience of the said company under the provisions of this Act, every such person so offending, and; being lawfully convicted thereof, shall be deemed guilty of a misdemeanor, and shall be punished by fine and imprisonment. 16 Vic. Chap. 190. — {Consolidation of Act* for the formation of Joint Stock Companies for the construction of roads and other works in Upper Penalty for Canada.) — 47. If any person shall wilfully and injurit^g toll- maliciously burn, break down, injure, cut, remove, " "' " or destroy in whole or in part any toll house, turn, pike gate, wall, lock, chain or other fastening, rail, post, bar or other fence belonging to any toll gate or toll house set up, erected or used for the purpose of preventing the passing by such gate of persons, car: riages, or other property liable to the payment of toll at such gate, or any house, building, engine or weigh- ing machine erected or used for the better ascertain: ment or security of any such toll, every such offender shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished either by imprisonment in the Provincial Penitentiary for a term not exceeding gates, &o. CRIMINAL LAW. 507 id pay to the said usvaincd by means covered in the name mit by action, and sdemeanor, and be mt, or both, by any offence; Provided id shall be construed liction given to jus- fc 5 Vic. Chap. 26.) Pickering Harbour ^) — 16. If any per- r injure, cut, break lie said road, piers, lildings, erections or ie by the said com- ad or harbour, and venience of the said ' this Act, every such lawfully convicted of a misdemeanor, 1 imprisonment. \lidation of Ad* fox Companies for the er works in Upper shall wilfully and injure, cut, remove, ny toll house, turn, ther fastening, rail, »g to any toll gate or d for the purpose of gate of persons, car: the payment of toll ng, engine or weigh- the better ascertain: 1, every such offender p, and, on conviction r by imprisonment in J term not exceeding three years, or by fine and imprisonment in the com- mon gaol for any term not exceeding two years, at the discretion of the court before whom the offender shall be convicted. Mem. — By section 59, of this Act, this 47th sec- tion (among others) shall extend to and regulate all turnpike road companies in Upper Canada, whether under 12 Vic. Chap. 84 ; 14 & 15 Vic. Chap. 122 : 14 & 15 Vic. Chap. 57 ; 13 & 14 Vic. Chap. 72, or 12 Vic. Chap. 5 ; and also to road companies having private Acts of incorporation. 16 Vic. Chap. 191. — (River Navigation Im- provement Act.) — 28. If any person shall wilfully pen»ity for and maliciously burn, break down, injure, cut, *"i*"'"*[ . J. •LI • . 1 • pi6rS| 8liu6B« remove or destroy in whole or m part any dam, pier, booms, &c. slide, boom or other work of any such company, or any chain or other fastening attached thereto, or wilfully and ma'.iciously impede or block up any channel or passage intended for the transmission of timber, every such offender shall be guilty of a misr demeanor and on conviction thereof shall be punished by fine^and imprisonment in the common gaol for any term not exceeding one year, at the discretion of the coxj^Tt before \i^l^om the offender shall be convicted. SPECIAL CONSTABLES. 10 & 11 Vic. Chap. 12. — 9. If any person shall Punishment assai^lt or resist any constable appointed by virtue of ^[^'"i^ng this Act while in the execution of his office, or shall special con- promote or encourage any other person so to do, fn'j^ur^'jng every such person shall, on conviction thereof be- o*!**" to do fore two justices of the peace, forfeit and pay for such offence any sum not excee4ing ten pounds, or shall be liable to such other punishment upon con- viction on any indictment or information for such offence, as any persons are by law liable to for assaulting any constable in the execution of the du- ties of his office. i i'. 1 1 '■ i: I', -i H: I I I N Vi |,|! il 508 CRIMINAL LAW. SUBSEQUENT FELONY. 4 & 5 Vic. Chap. 24. — 30. And whereas it is PonUhment expedient to provide for the more exemplary punish- ouent of- ^ ment of oflfenders who commit felony after a previous fence. couviction for felony, whether such conviction shall have taken place before or after the commencement of this Act; Be it therefore enacted, that if any person shall be convicted of any felony not punisha- ble with death, committed after a previous conviction for felony, such person shall on such subsequent conviction be liable, at the discretion of the Cfourt, to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years ; \ and in any indictment for any such felony committed after a previous conviction for felony, i^ shall be sufficient to state that the offender was at a certain time and place convicted of felony, without otherwise describing the previous felony ; and a certificate con- taining the substance and effect only (omitting the formal part; of the indictmer.t and conviction for the previous felony, purporting to be signed bv the clerk of the court or other officer having the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or pfficpr (for which certificate a fee of five shillings and no more shall be demanded or taken,) shall upon proof of the identity of the person of (he offender be sufficient evidence of the first conviction,(a) without proef of the signature or official character of the person appearing to have signed the same ; and if any such clerk, officer, or deputy shall utter any false certificate of any indictment and conviction for a (a) A certificate of a previous conviction must state that juagment was given, though it is sufficient to allege in the 'indictment that the prisoner wan convicted of felony, with- iput Btatinf the judgment. — B. v. ^ckroyd, 1Q.&%. 158. CRIMINAL LAW. 500 )ny, j* shall be previous felony, or of any sentence or order of trans- portation or banishment, or if any person, other than such clerk, officer, or deputy, shall sign any such certificate as such clerk, officer or deputy, (a) or shall utter any such certificate with a false or counterfeit signature thereto, every such otfender shall be guilty of felony, and being lawfully convicted thereof, shall be liable,^iEit the discretion of the court, to be impri- soned at hard labour in the Provincial Penitentiary for any term not less than seven years, or to be im- prisoned in any other prison or place of confinement for any term not exceeding two years, (b) SUMMARY PROCEEDINGS. This title belongs more peculiarly to a work de- signed for the exclusive use and guidance of justices of the peace ; and besides that, it is beyond the design of the present compilation, its great bulk would create an almost insurmountable objection. Besides the clauses contained in the Acts of 4 & 5 Vic. chapters 25, 26 and 27, there is the long statute of 16 Vic. chap. 178, with the still longer schedule of forms 37 (a) Vide 10 & 11 Vic. c. 9, i. 9, title "Forgery," page 6. (6) The proper course under this section is, when a pri- soner is charged iHrith felony on an indictment containing also count charging a previous couTiction, to arraign him on the whole charge. After the jury are called, and before they are sworn, is the only time when the prisoner has the right of challenge. The*count stating the previoua convic- tion is not to bo stated to the jury when the prisoner is given in charge to them, but is to be reserved till they have found the prisoner guilty on the principal charge. Then they are to inquire whether he has been previously con- victed of felony or not, but they are^ot to be re-sworn, and there can be no challenge then. — R. v. Key, 15 Jur. 1066 ; R. V. Shuttleworth, 15 Jur. 1066 ; 1 Temp. & M. 623, 626, S. C. Any number of previous convictions may be alleged in the indictment, and if necessary proved. — R. v. Clark. 17 Jur. 582. 610 CRIMINAL LAW. ^ Attached thereto, and, in addition to these, there are tew of the Acts which give jurisdiction to courts over criminal matters, which do not also authorise sum- mary proceedings by justices of the peace, while there are also very many Acts giving this latter authority, which do not extend at all to courts of criminal juris- diction. For these reasons, the Acts which would range under this title have been omitted. \ c '1^ ■f ? SURVEYS AND SURVEYORS. 12 Vic. Chap. 35. — (An Act to repeal certain Acts therein mentioned^ and to make better provision rri^pccting the admission of Land Sun^eyors, and the Survet/ of Lands in this Province.) — 14. From and PuniRhnieut (^ftgr the passing of this Act, if any person or persons moWsTiu)? shall in any part of this Province, interrupt, molest, duty*^"" °" ^^ hinder any land surveyor, while in the discharge of his duty as a surveyor, such person or persons shall be deemed to have been guilty of a misdemeanor, and, being thereof lawfully convicted in any court of com- petent jurisdiction, may be punished either by fine or imprisonment, or both, in the discretion of such court, such] imprisonment being for a period not exceeding two months, and such fine not exceeding five pounds, without any prejudice to any civil remedy which such surveyor^or any other party'may have against such offender or offenders in damages by reason of such offence; and any land surveyor, when engaged in the performance of the duties of his profession, ^hall be and he is hereby authorised and empowered to pass over, measure along and ascertain the bearings of any township line, concession or range line, or other governing line or side line, and for such purposes to pass over the lands of any person whomsoever, doing no actual damage to the property of such person, any law to the contrary notwithstanding. S*° wm"* ^^' ^^ ^^y P^J^son or persons shall knowingly and remoTing or wilfully pull down, deface, alter or remove any such CRIMINAL LAW. 511 nlonUment su erocted as aforesaid, in Upper Canada, defocinsiand such person or persons shall be adjudged guilty ofu.c.orin felony, and if any person or persons shall knowingly ^- ^' and wilfully deface, alter or remove any other land- mark, post or monument placed by any land surveyor to mark any limit, boundary or angle of any town- ship, concession, range, lot or parcel of land in Upper or in Lower Canada, such person or persons shall be deemed guilty of a misdemeanor, and, being convicted thereof before any competent court, shall be liable to be punished by tine or imprisonment, or both, at the discretion of such court, such fine not to exceed twenty-five pounds, and such imprisonment not to be for a longer period than three months, without any prejudice to any civil remedy which any party may have against such offender or offenders in damages by reason of such offence : Provided, that nothing herein contained shall extend to prevent land survey- ors in their operations from taking up posts or other boundary marks when necessary, after which they shall carefully replace them as they were before. TELEGRAPHS. 10 & 11 Vic. Chap. 82.— (TAc British North American Telegraph Association.^ — 14. If any per- ^^JJ^ns *"* son or persons shall wilfully and maliciously, and to breaking the prejudice of the said telegraph authorised to be dams^'ing made by this Act, break, throw down, damage or*''***'^*«'"P^ destroy the same, or any part thereof, or any oi theofthecom- station houses, watch-houses, observatories, posts, ***°^'^ poles, wires, or other apparatus, works or devices incidental and relative thereto, or connected there- with, or do any other wilful hurt or mischief, or shall wilfully and maliciously obstruct or interrupt the free use of the said telegraph, or any of the appurtenances thereof, or obstruct hinder, or prevent the carrying on, completing, supporting and maintaining, using or working of the said intended telegraph, such person T^ w t * 1>. ft f f !■ f I 11 [it It, , i m m i f ii ■1 ! H "1^ ^1 \\ .:! ^i ■t I i:; rr; ! 1 • 1 !; i; ?! > !.l Penalty for Injuring talegrapli or work!. 512 CRIMINAL LAW. or persons shall be adjudged guilty of felony, and I the court by and before whom such person or persons shall be tried and convicted shall have power and authority to cause such person or persons to be pun- ished in like manner as felons are directed) to be punished by the laws in force in this Province, or in mitigation thereof to award such sentence as the law directs in cases of simple larceny as to such court shall seem fitting. 16 Vic. Chap. 10. — (^Incorporation of Electric Telegraph Companies.) — 6. Any person who shall wiliiilly and maliciously injure, molest, or destroy any of the said lines, posts, piers, or abutments, or the material or property belonging thereto, or in any way disturb the working of the said lines of tele- graph, shall on conviction thereof be deemed guilty of misdemeanour, and be pilnished by a'fine not exceed- ing ten pounds, or imprisonment not exceeding one month, or both, at the discretion of the court before whom the conviction shall be had. 11. Any operator of any telegraph line, or person employed by any telegraph company, divulging the contents of a private despatch, shall be deemed guilty of a misdemeanour, and on conviction shall be liable to a fine not exceeding twenty-five pounds, or to im- prisonment for a period not exceeding three months, or both, in the discretion of the court before which the conviction shall be had. TRANSPORTATION OF CONVICTS. Tnuuporti.. 7 WiLL. IV. Chap. 7.-— 1. Notwithstanding any- t'*tod for " thing contained in a certain Act of the parliament of teoidunent. this Province, passed in the 40th year of the reign of his late Majesty King George the Third, entitled " An Act /or the further introduction of the criminal law of England in this Province, and for the more effectual punishment of certain offenders" it shall be lawful aner the passing of thit Act, to sentence Penalty on operatora dlTUlging Mcrets. Criminal law. 618- lilty of felony, and b person or persons 11 have power and persons to be pun- are directedj to be his Province, or in lentence as the law ^ as to such court •ation of Electric person who shall nolest, or destroy , or abutments, or thereto, or in any laid lines of tele- •e deemed guilty of J a'fine not exceed- not exceeding one f the court before >h line, or person ny, divulging the I be deemed guiliy ion shall be liable pounds, or to im- ing three months, ourt before which )NVICTS. withstanding any- the parliament of ear of the reign J Third, entitled n of the criminal nd for the more ders," it shall be LCt, to sentence ijlVundera to transportation, not only in such cases where by any law now in force, or hereafter to be passed, it is expressly provided that such offenders may bo transported, but also in every case in which by the provisions of the said Act passed in the 40th year of the reign of his late Majesty King George the Tiiird, the person convicted would be liable to bo banished from this Province : Prooided always, proyino. nevertheless, that no offender shall, under the author- ity of this Act, be sentenced to be transported, except by such court, and in such cases, and for Ruch terra of time, as the same offender might, according to the said Act, be banished from this Province ; and that nothing in this Act contained shall extend, or be construed to take away or affect the power of sentencing offenders to be banished according to the Act hereinbefore recited, when it shall appear proper to pass such sentence. 2. All and singular the provisions now in force „ ■ v « which are contained m the said Act oi the Parlia- for retum- rnent of this Province, passed in the 40th year of '"f/^t^^. the reign of his late Majesty King George the Third, t'on. respecting persons returning to this Province before the expiration of the period for which they have been banished by sentence of a court, or have con- sented to be banished according to the terms of any conditional pardon granted to a convict sentenced to suffer death, shall equally extend to and be in force with respect to any person returning from trans- portation after this Act, whether such person sjiall have been sentenced to be transported, or having been capitally convicted, shall have been pardoned on condition of being transported. 3. The sentence in case of transportation shall be, that the offender shall be trdnsported for a time to Form of sen- be mentioned in such sentence, or for life, where ^J^po^rta- that may be lawful, and shall in the opinion of the tion. court passing such sentence appear proper, to such place as the Governor, Lieutenant Governor, or per- t2 014 dniMlMAL la¥. h I ' •; ::.:| i )*■ 'FhtMof tranaporto- Boil kdministering the government of this Proyince, bj and with the advice of the Executive Council thereof shall, appoint. 4. It shall and may be lawful for the Governor, Lieutenant Governor, or person administering the deSrmiMd government of this Province, by and with the advice brOorernor of the Executive Council thereof, to determine, ell.' ° '^°"°' upon reference to his Majesty's Government in Eng- land, to what foreign possession of his Majesty, con- victs shall be transported from this Province, under the provisions of this Act. 6. An instrument under the sign manual of the rut!*' ^*'' Ck)v6rnor, Lieutenant Governor, or person adminis- tering the government of this Province, ;tnd directed to the judges of the Court of King's Bench, declaring to what colony or place it has been determined to transport any convict, shall be sufficient aut^ ity for the judge who passed sentence on such coi or in his absence, for any other judge of the said court, to make his warrant, authorizing any person or persons to carry and secure such convict in and through this Province, towards the seaport or place from whence he or she is to be transported ; and if any person or persons skall rescue such convicts, or any of them, or assist tnem, or any of them in making their escape from such person or persons as shall have them in their custody, as aforesaid, such offence shall be pun- ishable in the same manner as if such convict had, at the time it was committed, been confined in a gaol or prison, in the custody of the sheriff pr gaoler, after sentence for the crime of which he shall have been convicted. 6. The time during which any offender shall have continued in gaol under sentence of transportation, shall be taken and reckoned in part discharge or sat- isfaction of the term of his transportation. 8. If by reaaon of any difficulty ocourring which ProvMonto may prevent the transportation or reception of any SStnufS^oonviot in any oolony <»: poMewioa <^ W Majettj, lUwQt. Impriioii- BMntto be nckoiMdM Mrt OftlM term of tnuaaporta- tton. i:i CRIMINAL LAW. 616 of this Proyince, ^xeoutiTe Council for the Governor, administering the nd with the advice of, to determine, »vernment in Eng- his Majesty, con< I Province, under ;n manual of the r person adminis- ince, ;»nd directed s Bench, declaring en determined to cient aut^ ity for suchcoi or in the said court, to person or persons and through this ace from whence ad if any person 8, or any of them, aking their escape all have them in ence shall be pun- ich convict hid, en oonfined in a 3 sheriff pr gaoler, ch he shall have ffender shall have of transportation, discharge or sat- tatioB. occurring which reception of any n of us Majflitj, the sentence which shall have been passed on any such ^*\'''J* '^°' convict cannot be carried into effect, such convict "a'rrifd into may be detained in prison, for a period not longer*"'*^ than that for which he shall have lieen sentenced to be transported, unless it shall appear expedient to pardon such convict, in which case it may be made a condition of such pardon, that the convict shall banish himself from this Province, for a period not exceed- ing the residue of the time for which he was to have been transported. 4 & 6 Vio. Chap. 24. — 25. If any person sentenced Perwni* or ordered, or hereafter to be sentenced or ordered to Jjj^™|!j^ be transported, or who shall have agreed or shall agree poruuon to transport or banish himself or herself, on certain when found conditions, either for life or for any number of*<=' years, shall be afterwards at large within any /art of this Province, contrary to such sentence, order or agreement, without some lawful cause, before the ex- piration of his or her term of transportation or ban- ishment, every such offender shall be guilty of felony, and shall be liable to be transported beyond the seas for his or her natural life, and previously to transpor- tation shall be imprisoned for any term not exceed- ing four years; jad every such offender may be tried either in the district, county or place where such offender shall be found at large, or in the district, county or place in or at which such sentence, or order of transportation, or banishment was passed or made. 26. !ui any indictment or information against any Allegation of offender for being at large in this Province contrary JJ^Sn^w^* to the provisions of this Act, or of any other Act tation suffl. hereafter to be in force in this Province, it shall be out reference sufficient to allege the sentence or order of transpor- ^^°f}'^' tation or banishment of such offender, without alleg- ing any indictment, information, trial, conviction, judgment or other proceeding, or any pardon or in- tention of mercy, or signification thereof, of or against or in any manner relating to such offender. 27. The derk of (he ooort or otler officer heviag 616 CRIMINAL LAW. ri ii !i ^ I -i m iy Certificate of the custodv of the records of the court where any the Buntenco , •' in. . ■ • i • v. by the clerk Sdch Sentence or order or transportat'un < banish* •ufflcle'liT"' '"®"*' ^^^'' ^^v® ^6®" passed or made, or his deputy, evidence, 4c. shall, at the request of any person on behalf of her Majesty, ma]:e out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of any indictment, information and conviction of such offender, and of the sentence or order for his or her transportation or banishment, (not taking for the same more than the sum of five shillings) which certificate sh«)ll be suffi- cient evidence of the conviction and sentence or order for the transportation or banishment of such offender; and every such certificate shall be received in evid nee upon proof of the signature of the person signing the same. Imprison- 6 Vic. Chap. 6. — 4. For each and every offence ^nitentiary for which by any of the said Acts, or by any other frosecuted if this Act had not been made, unless the offender shall have been prosecuted for fluch offence under this Act, and convicted or acquitted of such offence. 7. All justices of the peace in and for any district in this Province, shall have concurrent jurisdiction, as justices of the peace, with the justices of any other district, in all cases, as to the carrying in to execution the provisions uf this Act, and as to all matters and things relating to the preservation of the public peace, as fully and effectually as if each of such justices was in the commission of the peace for each of such districts. 10. No person shall be prosecuted for any offence p^J^®^**' done or committed contrary to the provisions of this under this act, unless such prosecution be commenced within '^'^ six calendar months afler the offence committed. WAREHOUSEMEN, FACTORS, AGENTS, &c. 4 & 5 Vic. Chap. 25. — 43. If any factor o' agent ,^5^™ entrusted for the purpose of sale with any goods or pledging fw merchandise, or entrusted with any bill of lading, u^'H^y ° warehouse keeper's or wharfinger's certificate or war- 8«>d«, « rant or order for delivery of goods or merchandise, rdattSgto shall for his own benefit and in violation of good (^^^/^^ faith, deposit or pledge any such goods or merchandise, them for tb« or any of the said documents as a security for any SSe!*pciiity money, or negotiable instrument borrowed or receiv-?f*n>»«<»^ ed by such factor or agent, at or before the time of *"**' making such deposit or pledge, or intended to be thereafter borrowed or received, every such offender shall be guilty of a misdemeanor, and, being con- victed thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labour in the Provincial Penitentiary for any term not less than seven yearsj 6t imprisoned in any other prison or place of oonfinement, for any term not exceeding two yean, or to suffer such otJier punisluaeBt by fin* 020 tiaiMlNAL LAW. 1. :j; r :i'^ * ■i; :!<: 51 ■] .-r'.'' Oontraots for the sale of goods mado with agents ea i i Proviso. Of iinpriaoninent, or by both, as the court shall award, but no such factor or agent shall be liable to any prose- cution for depositing or pledging any such goods or merchandise, or any of the said documents, in case the same shall not be made a security for or subject to the payment of any greater sum of money than the amount which at the time of such deposit or pledge was justly due and owing to such factor or agent from his principal, together with the amount of any bill or bills of exchange drawn by or on account of such principal, and accepted by such fac- tor or agent. 10 & 11 Vic. Chap. 10.^{An Act for the better protection of Merchants and others who may here- after receive Assignments and enter into Contracts and Agreements in relation to Goods and Merchan- trusted^ith f^tse entrusted to Agents.)-^\. It shall and may be aion^thereof lawful for any person to contract with any agent who I?f^J5i'*l,-> stall thereafter be entrusted with the possession of altnough the , i 1 . 1 •r purchaser any goods or merchandise or to whom the same may th^^s^ihjTto ^6 consigned, for the purchase of any such goods or be only an merchandise, and to receive the same of and pay for the same to such agent, and such contract and pay- ment shall be binding upon and good against the owner of such goods and merchandise, notwithstand- ing such person shall have notice that the person making and entering into such contract or on whose behalf such contract is made or entered into is only an agent. 2. Any such agent who shall be entrusted with the possession of goods and merchandise, or of the documents of title to goods and merchandise shall be deemed and taken to be owner of such goods and the purpose merchandise, and documents for the purposes of such mentioned sale or Contract of sale as in the first clause mention- tiou one, cd ; and also so as to entitle the consignee of such eatuie'a con- g'^ods and merchandise to a lien thereon in respect of Bisnee there- any moncy or negotiable security advanced or given fiN-moiuora, by such Mnsigneo to and for the uso of saoh agent, agent. Agents to b« deemed the owners of ?'ood3 en- rusted to them, for ill T !:t Criminal law. 52i or in respect of any money or negotiable security ^•'«*j">e- received by him to the use of such consignee in the agent: and like manner to all intents and purposes, as if such ^|^2id* person was the true owner of such goods and mer- contracts if chandise, and so far as to give validity to any contract ''^'^^* or agreement by way of pledge (^gage), lien or secu- rity bon§, fide made by any person with such agent so entrusted as aforesaid, as well for any original loan, advance or payment made upon the security of such goods and merchandise or documents, as also for any further or continuing advance in respect thiereof, and ^ such contract or agreement shall be binding upon and good against the owner of such goods and merchan- S'Jd^' *' dise, and all other persons interested therein, notwith- Notice pf standing the person claiming such pledge or lien not°to'affeet may have had notice that the person with whom such f JJ^^g*^"^" contract or agreement is made is only an agent. 7. If any agent entrusted as ^foresaid shall, con- Agent piedg' trary to, or without the authority of his principal in ^^^ 1°"^*' that behalf, for his own benefit, and in violation of own benefit good faith) make any consignment, deposit, transfer |nnj^„t^ or delivery of any goods and merchandise or docu- to instruc- ments of title, so entrusted to him as aforesaid, asguutyofa and by way of a pledge (jgage), lien and security, or Jjjj^^^ bhall, cobtfary to or without 6uch authority, for his own benefit, and in violation of good faith, accept any advance on the faith of any contract or agree- ment to consign, deposit, transfer or deliver such goods and merchandise, or documents of title as afore- said, every such agent shall be deemed guilty of a Punishment misdemeanor, and, being convicted thereof, shall be offence!* sentenced to suffer such punishment by fine or impri- sonment in the common gaol for any term not exceed- ing two years, or by both, as the court having juris- diction in such cases shall award; and every clerk or The like of other person who shall knowingly and wilfully act '"j,^n^*p^ and assist in making any such consignment, deposit, a^ttin^ in . « ji. ".•' .. ° 'v such offencf. transfer or delivery, or in accepting or procuring such advance as aforesaid, shall be deemed guilty of a mis- ? ,*: \.i r^i ti 522 Proviso: A^ent not liable to pro- flocutiou for 1 pl8dt(iag i;ood8 to an amount not 1 excottding that luo him. r*>TiHo. Persons gir- ' ina; false re- ceipts for goods, or making use of sucti false receipts, to be guilty of a misde- meanor. CRIMINAL LAW. demeanor, and, being convicted thereof, shall be liable) at the discretion of such court, to any of the punish* ments which such court shall award as hereinbefore last mentioned : Provided, nevertheless, that no such agent shall bo liable to any prosecution for consigning, depositing, transferring or delivering any such goods and merchandise, or documents of title, in case the same shall not be made a security for or subject to the payment of any greater sum of money than the amount which at the time of such consignmcDt, deposit, transfer or delivery was justly due and owing to such agent from his principal, together with the amount of any bills of exchange drawn by or on account of such principal, and accepted by such agent: Provided also, that the conviction of any such agent so convicted as aforesaid, shall not be received in evidence in any action at law or suit in equity against him; and no agent entrusted as aforesaid shall be liable to be convicted by any evidence whatsoever in respect of any act done by him, if he shall at any time previously to his being indicted for such offence have disclosed such act on oath, in consequence of any compulsory process of any court of law, equity or admiralty in any action, suit or proceeding which shall have been bond, fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commis- sioner of bankrupts. 12 Vic. Chap. 12.— 1. If the keeper of any warehouse, or any forwarder, common cairrier, agent, clerk or other person employed in or about any warehouea, or if any other factor or agent or any clerk or ether person employed in or about the busi- ness of such factor or agent, shall knowingly and wilfully give to any person a writing purporting to be a receipt for oi' an acknowledgment of any goods or other property having been received in his ware- house, or in the warehouse in or about which he shall be employed, or in any other manner received by him, roof, shall be liable^ any of the punish- ird as hereinbefore leless, that no such tion for consigniag, ing any such goods f title, in case the y for or subject to >f money than the mch consignmeDt, stly due and owing together -with the e drawn by or on pted by such agent: 1 of any such agent not be received in lit in equity against aforesaid shall be ence whatsoever in if he shall at any ted for such offence , in consequence of ourt of law, equity r proceeding which ited by any party iclosed the same in efore any oommis- he keeper of any common carrier, )loyed in or about ctor or agent or any or about the busi- all knowingly and iting purporting to ment of any goods leived in his ware- tbout which be shall lor received by hire, V CHIMINAL LAW. 628 or by the person in or about whose business he shall be employed before the goods, or other property named in such receipt, or acknowledgment shall have been actually delivered to him as aforesaid, with intent to mislead, deceive, injure or defraud any person or persons whomsoever, although such person or persons may be then unknown, or if any person shall knowingly and wilfully accept or transmit or use any such false receipt or acknowledgment the person giving and the person accepting such re- ceipt or acknowldgement shall severally be deemed guilty of a misdemeanor, and upon conviction thereof, shall be liable in the discretion of the court to be PuniiibmeQt. imprisoned in the Provincial Penitentiary and kept at hard labour for any period of time not exceeding three years, nor less than one year. 2. If any owner of merchandise or other person in whose name merchandise shall be shipped, or deli- frluduLntiy vered to the keeper of any warehouse, or other factor '*|^*|,'Jfg^ or agent, or carrier, to be shipped or carried shall having re- after the advancement to him of any money, or the ^'yances giving to him of any negotiable security by the con- «p^ them, signee of such merchandise for his own benefit andofam^de-^ in violation of good faith, and without the consent ™eanor. of such consignee being therefor first had and obtained, make any disposition of such merchandise different from and inconsistent with the agreement in that behalf between such owner, or other person aforesaid, and such consignee at the time of or before such money being so advanced or such negotiable security being so given with the intent to deceive, defraud or injure such consignee, such owner or other person aforesaid and each and every other person knowing and wilfully acting and assisting in making such disposition for the purpose of deceiving, de- frauding or injuring such consignee, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be liable to be, in the discretion of the court before whom the conviction shall take place, impri- 624 CRIMINAL LAW. c >h I Q u '1 I HliJ tntei tion irpn CU1 rata* lUse. Ptiniihmant. soQed in the Provincial Penitentiary and kept at hard labour for any period of time not more than three years, nor less than one year : Provided how- ProTiioMto ever, that no person shall be subject to prosecution coniSving"* under this section who shall before making such dis- position as aforesaid of such merchandise pay tender to the consignee the fall amount of any advance made thereon. 3. AH words in this Act importing the singular number only shall be construed as including the plural number also, unless there be somisthing in the context inconsistent with such construction, and if any offencd against this Act be conmitted by the doing of any thing in the name of any firm, company or copartnership of persons, the person by whom fiuch thing shall be actually done, or who shall hare * Connived at the doing thereof shall be deemed guilty of such offence, and not any other person. WITNESSES. 9 Vic. Chap. 35. — If any witness or witnesses in witneM may any criminal case cognizable in the courts of Queen's ed from any Bcnch, or bcforc any justices of assize, or commis- Kovinw'to sionera of Oyer and Terminer or Gaol Delivery in any attend cer- part of this Province, shall reside in any part of this courtB who** Province without the jurisaiction of that court of "J»y *°tto*8 Q^^cc^'s Bench, or of the justices of assize, or com- •noe. missioneri of Oyer and Terminer or Gaol Delivery, before which or whom such criminal case is or shall be cognizable, it shall be lawful for the court of Queen's Bench, or justices of assize, or commissioners of Oyer and Terminer or Gaol Delivery, before which or whom such criminal case shall be cognizable, to issue a writ or writs of subpoena, directed to such witness or witnesses in like manner as if such wit- ness or witnesses were resident within the jurisdic- tion of such court of Queen's Bench, justices of assize, or commissioners of Oyer and Terminer or Gaol Delivery, and in case such witness or witnesses I.I w. tentiary and kept at time not more than ^ear: Provided how- ibject to prosecution Pore making such dis- merchandise pay or fall amount of any nportlng the singular led as including the i be somiithing in the construction, and if le coiLmitted by the of any firm, company ;he person by whom le, or who shall have hall be deemed guilty ler person. IS. itness or witnesses in the courts of Queen's )f assize, or commis- Gaol Delivery in any le in any part of this ion of that court of es of assize, or com' r or Gaol Delivery, ninal case is or shall ful for the court of lize, or commissioners delivery, before which lall be cognizable, to directed to such mer as if such wit- within the jurisdic- Bench, justices of jr and Terminer or witness or witnesses CRIMINAL LAW. 525 shall not obey such writ or writs of subpoena, it shall ^„ *j52[ f* be lawful for such court of Queen's Bench, justices dulobedi- of assize, or commissioners of Oyer and Terminer or""*' Goal Delivery, issuing such writ or writs of subpoena, to proceed thereupon against such witness or witnesses for contempt or otherwise, or to bind over such wit< ness or witnesses to appear at such days and times as may be necessary, and upon default being made in such appearance, to cause the recognizances of such witness or witnesses to be estreated, and the amount thereof to be sued for and recovered by pro- cess of law, in like manner as if such witness or wit> nesses were resident within the jurisdiction of such court of Queen's Bench, justices of assize, or com- missioners of Oyer and Terminer or Goal Delivery ; any law, usage or custom to the contrary thereof in anywise notwithstanding. 13 & 14 Vic. Chap. 56. — 6. Whenever it shall a m^joritj appear to the majority of the jurymen sitting at toymen m*/^' coroner's inquest, that the cause of death has not been requiro th* satisfactorily explained by the evidence of the medical SSmmon" practitioner, or other witness or witnesses, who may be *'»^*^ examined in the first instance, suc)i majority of the prseuuoMr. jurymen are hereby authorized and empowered to name to the coroner in writing any other legally qualified medical practitioner or practitioners, and to require the coroner to issue his order in the form hereinbe- fore mentioned fbr the attendance of such last; men- tioned medical practijtioner or practitioner^ as a wit- ness or witnesses, and for the performance of such post-mortem examination, as in the fifth section of this Act mentioned, whether such examination has been before performed or not: And if the coroner, hav- ing been so required, shall refuse to issue such order, he Penalty on shall be deemed guilty of a misdemeanor, and shall JSSri^f ' be punishable by a fine not exceeding ten pounds, or by imprisonment not exceeding one month, in the discretion of the court trying such ofience, or by both, aa to the said court shall seem fit. '! i ADDENDUM. 1 i ,^ Michaelmas Term 18th Victoria, 2nd December, 1854. It is ordered, that the 18th Rule of Court of Hilary Term 13th Victoria, be rescinded so far as regards the opening of the offices of the Clerks of the Crown and Pleas, and that from and after the end of this present Term the offices of the Clerks of the Crown and Pleas be kept open as follows, that is to say ; during Term from 10 o'clock in the morning until 4 o'clock in the afternoon, and except between the first day of July and the 21st day of August, at other times from 10 o'clock in the morning until 3 o'clock in the afternoon, Sundays, Christmas Day, Good Friday, Easter Monday, New Years Day, and the birthday of the Sovereign, and any day appointed by general proclamation for a general fast or thanks- giving excepted, and that between the first day of July and the twenty-first day of August the said offices shall be open from 11 o'clock in the forenoqn until 2 o'clock in the afternoon, (a) (a) See Rulo 1, page 56, tit "Crown Office." ' 1 1 ' I/' INDEX, i;i rown Office." 1. P«gt, Abatement. Form of deoldration, after plea of non joinder in ... 110 How suit revived in cases of 164 When one or more of several plaintiffs or defendants die before judgment 256 Wliere one or more die after jii'lgmcnt lb. Plea of misnomer in indictment not allowed in 83/ Abduction. Forcible 473 Unlawful lb. Abettor. In misdemeanors, how punished 316,817 In Bumn^ary offences, how punished 816 In forgery, how punished 388, 890, 896 In fraudulent transfer of goods, &c 521 Abohtion. Trying to procure 470 ACOESSOBT BEFORK THE FACT. May be tried as a substantive felon 314 In what district may be tried 316 May be convicted when principal is not attainted ... lb. Punishment of under 4 & 5 Vic. ch. 25 816 ♦• " 4&5Vic. ch. 26 lb. *• " 4&6Vic. ch. 27 817 <« " lO&llVipch. 4 317 " " 10 & 11 Vic. ch. 9 lb. Confessing or outlawed, how punished... ., 319 To forgery, how punished , ,. 390, 396 Accessory after the fact. By what court to be tried .,. 315 If offence committed in different counties, may be tried in either lb. May be prosecuted after conviction of principal lb. funishment of under 4 & 5 Vic. ch. 27 317 " " 10 & 11 Vic. ch. 4 lb. •J 'f 10 & 11 Vic. ch. 9 l\f. 'I I 1 I p I •;] ■')' |i INDIZ. ACCKSSORT ATTEK THK 7ACT — continued. Confodsing, how punished 819 To forgery, how puninbed .......•., 8^0, 896 Accounts. Judge may order reference to tnke 187 Mode of proceeding thereon lb. Costs of proring items of, by whom to be paid 189 To be brought in in form of Dr. and Cr. 190 Accounting party to reoeiTO notice in oertaip cases.. lb. How references to be proceeded with ., 191 Officer to certify state of proceedings 191 To whom carriage of decree may be entrusted ...... lb. Advertisement! for creditors, &c 102 How officer to proceed in taking lb. " " " account of personal estate of deceased 198 Judge may take „ „.,.. 196 Proceedings thereon 'vrfr lb. In what currency public, to ba kep( 868 Account and Enquiry. Form of 228 Account Statkd. May be Joined to any other money demand 87 Accountant. Judge, &a. may obtain assistance of 200 ACCOUNTINO }.iRTT. Tq receive notice of furth«r charge 190 How accounts to be brought in by -. 195 Actio :;on. Form of, dispensed with in certain cases Ill Action. Commencement of ^ 1 Adjournment. No order for, required unless by judge's direction... 260 Administrator. When character of, to be in issue ......,.., 64 APMINISTRAT'ION. Decree fqr, how ol^tained .,,.„.....,.. 200 Form of notice of mqtion for ,,'. 224 ApMIRALTf. Offences committed in jurisdiction of, where tpf^b^®* i^^ Admission. Qf documents, bow pbtained, ai|f4 ^P^' ••■• rrr ^^ '■\ I.I iNbF.X. Ill 819 890,896 187 lb. be paid 189 r. 190 certaii) cases.. lb. 191 ,... 191 ntrasted lb. 192 lb. lat of peTsonal , ,,.... 198 • ■#•••#••••• ffvf** X vO (•••tt«»i« ••••••••• *"• ,....: 868 , 228 nand 87 200 190 195 tes.. Ill 1^ 1 le's direction... 260 V...... «* 200 ,;.."....... 224 where liable. i^O B .........,::.v 20 r«g«. Admission — continued. Of prisoner, may bo uaod ngaiDHt him 847 Advertisemknt for Creditors. What necessary in 101 Mode of proceeding thereon 192 Oostd of, in discretion of oiiicer lb. For return of stolen goods without enquiry 437 Penalty for printing, &c., in above case 438 Am davit. When deputy clerk of the crovrn may tiiko 1 To contain christian and sirnnmo of defendant 2 For summons under 12 Vic. ch. 63 lb. For discharge ftom. execution lb. Form of, to entitle officer to milage on ineffectual attempt to serve process 83 Form of, at foot of bill of costs 65 Of service, form of in quo warranto 148 Copies of, to be had on payment 146 Judge may require furtaer 146 Particular facts may be proved by 174 Witness making, may be cross-examined lb. To be in first person, or else no costs 176 Must be read over to deponent lb. Form of, as to production of documents 221 Form of jurat of 222 Requirements of, in Division Court 266 Form of, for leave to sue in adjoining division 204 Form of schedule referred to 266 For attachment, form of. 277 Agent. Papers must be service on 8 Aqent (See Warehousemen). Name of, for country attorney to be entered in C. 0. 8 " "for attorney in Home District do lb. Duty of attorney suing out writ as lb. Business in Crown Office to be transacted by lb. Effect of " non assumpsit^' in actions against 102 Embezzling money 431 " goods 482 Certain descriptions of, not affected 483 Other remedies against, not affected lb. Agricultural Produce. Setting fire to 458, 458 AOEICULTUEAL SoCIETT. Penalty on Treasurers of 850 I IT INDIt. . ? Amen. Page: Extract of inquisition against 4 May be tried by jury de medietate linguce.... 415 Amendment. Of declaration, requires no ncTv demand of plea 4 Costs of ^ 2b Of nisi pi'ius, clause 114 Order for, on prcecipe before answer IG^ " " "when need not be served lb. " " to correct errors in names, &c. 163 " " may be granted at any time lb. " " how obtained .• 164 Directions to be given in granting lb. How soon to be made r 164, 173 After entry of default. 168 After answer .- 173 In case of misjoinder 180 Whsn Judge of Division Court may order 261 to 264 Of indictment in case of variance 841 Effect thereof lb. An 8 WEE. Defence mtist be by, or demurrer 165 Forms of 166,219 Time for 166 Must be signed and sworn <.... lb.' Judge may grant relief on case made by lb. Judge may permit supplemental 167 Supplemental, when to be deemed filed lb; Form of endorsement on 219 Form of jurat to .• 220 ,„ „ of illiterate person lb. Effect of prisoner's .^ 347 Appeal. Time for making ....' 195 To Court of Chancery *... 205 Form of notice of .' lb. Bond to be given for lb. Sureties to bond must justify. 206 Time for objecting to bond , lb. When to be argued lb. Stay of proceedings lb. Pleadings, &c., to be transmitted 208 Form of Bond to 227 Form of petition to lb. Appearance. Memorandum of, how entitled 4 'n,. •!'i ;■; INDEX. !Pi« I' I Page; 4 05.... 415 d of plea 4 25 114 ica lb. fee. 163 , lb. 164 lb. ..r 164, 178 168 na 180 [er 251 to 254 341 lb, 165 166,219 166 lb. •y lb. 167 i lb. 219 .• 220 lb. 347 195 205 lb, lb. 206 lb. lb. lb. 208 227 lb, 4 Appsaiiance — continued. Tage. Form of, in que warranto 142 " «' ondefj^ult 143 On default in, how judge may proceed 145 Form of enlargement of time for lb. Not required in equity suits 165 Appellant. Form of bond 227 Aequment. Of demurrers, &c 59 Duty cf party setting down case for 61 Of demurrer, in equity suits 166 Arms. Unlawful training to 517 Jastice may disperse unlawful training 518 Arrest. Of defendant by initials ^ Of oflfender in the act 488 Arsenals. Destroying 369 Arson. Punishment of 448 Articled Clerk. Duty of, previous to admission 6 Questions to be answered by 7 Assault. During elections 871 With intent to rob - 421 On officers saying shipwrecked property 475 With intent to commit felony 476 On peace officers lb. In pursuance of a conspiracy to raise wages 476 Jury may acquit of felony and convict of lb. With intent to commit unnatural crime 478 On Bpecial constable 507 Assessment. Penalty for fraudulent 851 What evidence of such fraud lb. Assizes. Rules of H. T. 13 Vic. rescinded 5 Time for delivering records at 5, 6 How records to be numbered at "... 6 Judge may order entry of record lb. Assumpsit. Effect of plea of *< non assumpsit " 401 Picas of confession and avoidance in 103 1 ri I »•: 1 ; Attachment. rage- Original rule must be shewn on service 116 Form of affidavit for 249 When trial to take place, after lb. Form of affidavit for ....^ 277 Attainded. No cause of disinheritance <..<.. 310 Of another crime not pleadable 881 Attorney. Duty of, suing out writ as agent 8 Admission of , ..i ....<. 6 Questions to be answered by 7 When struck off the rolls 8 Tariff of fees to 28 Power of, penalty for forging * 380 " " " signature of witness to 382 Avowry. When not more than one allowed <..< 85 Award. Objections to, how stated 4 9 Duty of clerk when award filed 262 Form of, in Division Court 282 B. Bail (Civil). ^ Effect of omission in affidavit to hold to 6 How country bail to justify 9 Certificate of filing recognizance of, how obtained ... 10 Commissioner may not issue recognizance of 13 Not waived by changing venue in declaration 76 Bail (Criminal). Who admitted to in felonies .>..> 823 Manner of examination before taking 824 Information to be forwarded to Clerk of the Crown.. 826 Same order as in Habeas Corpus 327 How felons admitted to 849 One justice may bail for a misdemeanor lb. County Court judge may admit felons to 850 In cases of murder and treason lb. As to parties on, on dissolution of unions 414 Bailiff of Division Court. When to deliver his returns 246 When to pay over r^oneys lb. To indorse mileage on warrant of commitment lb. Form of return 813 m nfvKX. vii Page. 115 249 lb. 277 319 331 3 6 7 8 28 380 t' witness to 382 85 9 262 282 ? 9 obtained ... 10 )of 13 btion 75 , 323 324 ;he Crown.. 826 327 , 349 , lb. 850 lb. 414 245 lb. ment lb. 813 BaiIPIECE. Page. Form of n Banishment. Substituted for transportation 512 Punishment for return from 513 Transportation may be substituted for 512 Bankers. Municipal corporations acting as 463 Bank Notes. Forging 373 Having possession of lorged 384 Engraving without permission lb. Possessing platefe of. 385 Uttering forged lb. Engraving foreign 386 Possessing plates of foreign lb. Banks. Notes of unauthorized, illegal 852 Penalty for acting as officer of unauthorized lb. " for uttering notes of unauthorized lb. Certain banks exempted lb. Officer embezzling property of 353 Of rivers, canals, &c., destroying 451 Bastaed. Trial for murder of 465 Concealing birth of 471 Benefit of Clekoy. Abolished 331 Bigamy. Punishment of 474 Bills of Excu.vnge. Forms of decbi '-ation on 94 "Nonassumpfc " not pleadable 103 Forging 378 Forging or utteri 15 foreign 385 Biuds, Beasts, &c. Stealing 427 Bodily H.^km. Doing, by means of explosive substance 456 Sending explosive substance with intent to do 470 Bond. Form of, from appellant 227 On seizure of perishable goods 278 On supersedeas to warrant of attachment 280 ^'■1 I' I i V ui M ; II r. '! ▼iii i-vDEX. Books and Papers (order for production of). JPuBe. How obtained 170 Affidavit of party served -with .' lb. Need not be served f ersonally lb. Judge at trial may grant , lb. Bridge (public). How property stated in indictment 336 Destroying 501 Niagara Fall's Suspension! ^^• Fort Erie and Buffalo Suspension 506 British Gold Coin. Value of 358 Brock's Monument. • Penalty for injuring '. 461 BtraGERY. Punishment of 471 Assault with intent to commit 475 Buildings (public). How property stated in indictment 836 Setting fire to 468, 460 Burglary. With violence, howpunished 422 Punishment of lb. What to be considered lb. . What considered part of a dwelling house 423 C. Canals, Rivers, &c. Destroying banks of. 451 Capias ad Satisfaciendum. AVhen commission may not issue 13 When plaintiff may declare, if defendant not in custody 75 How plaintiff may declare in certain cases lb. Capital Offences. What to be considered 831 No report to be made in case of 333 Carriers. Effect of "non assumpsit" in actions against 102 Effect of *'not guilty" in case against 108 Case (actions on the). Effect of " not guilty " in 106 How matters in confession and avoidance to be pleaded in 108 f I!?DEX. !x Cash Book. ^'"^* Mode of keeping 310 Cattlm, Stealing 427 Killing or maiming .., 452 Cause. State of, to be certified ...,, 25 Cemeteuies. Defacing tombstones iu ..,. 353 Census. Neglecting to comply with certain requireraeats 854 Officers contravening Act 856 Certificate. What insufficient grounds for.. 25 Of judgment for registration .„ 299 For discharge of a party from custody ?04 Of criminal case for superior courts 844 Forging 395 Cebtiorari. Form of writ of „ 151 Challenqe. — See Jurors. Beyond legal number of jurors, void . 831 Want of qualification 415 Want of freehold 416 Peremptory, limited lb. By the crown 416,417 Other grounds for lb. ClIANCEKY (Court of). Removal of suit into 204 Appeal to 205 Piraotiee of, to govern certain eases 209 Charitable Association. Officers embezzling funds of 355 Evidence in such cases 35G Child. Secreting dead body of 47I Stealing .,.. 473 Churches. How property in, laid iu indictment 336 Setting'fire to 448 Riotously destroying 503 Claim. Contents of 161 '; i\ \ i ^^■ 1 X INDEX.. ♦.'1.AIM — continued. Forms of 101 Clerk to file nnd enter lb. Mode of service of lb. Mu't shaw case within jurisdiction lb. Proceedings to take, pro coufesso 167 How dismissed 17S Forms of ., 211, 217 Form of endorsement on 218 Must show particulars in detail.... 246 'When against an officer lb. Of husband may be joined to wife's 262 €tERGY (Benefit of.) Abolished 381 Clergyman. Arresting during divine service 475 CtERKs AND Servants. Stealing their master's property 430 Embezzling " " 431 Distinct acts of embezzlement may be laid in same indictment ,...., lb. Clerk of Assize. When to receive records 5 How to number records Certain rules regarding, superseded ., 11 Clerk op the Crown. When deputy, may not take affidavit 1 Articles of clerkship to be left with 6 Fees to 80 To supply deputies with writs 66 Information to be forwarded to, on application to bail 326 Clerk in Chambers. Fees to 3t Clerk of Division Court. Duties of 24S To keep Procedure and Cash Books lb. To make half-yearly returns 441 To transmit lists of unclaimed moneys lb. To file and certify returns , lb. To number every demand lb. To annex copy of account to summons lb. To indorse debt and costs on warrant of commitment 245 Duty of, on filing award 202 To make return of emoluments 311 N'! !?' ■ INDEX. XI IGl lb. lb. lb. 167 173 211,217 218 246 lb. 262 381 475 430 431 aid in same lb. 5 •• .- 11 1 6 80 56 )lication to ... .^.... ..^ ..,, 326 •••". 31 24a lb. 441 lb. lb. lb. lb. immitment 245 262 311 Pagn. CiiERK OP THE Peace. Fees to 42 COONOVIT. How obtained 12 When judgment on, not to be entered lb. Personating party giving 384 Coin. Counterfeiting 350 Difference in date of forged and true, no ground of acquittal 357 Proviso as to certain Acts lb. Legal denomination of current lb. Value of British 358 Meaning of word "sterling" lb. Value of copper lb. Value of American gold 359 Other foreign gold, may be made current lb. Counterfeiting or uttering false 360 Counterfeit, must be defaced 362 Suspected, may be broken lb. Counterfeit, to be broken in court lb. AVilful tender of light lb. Evidence of coin being counterfeit lb. Commercial Banks. Officers of, embezzling bills 353 Commissioner. Not to take recognizance of bail in certain cases ... 13 Not to issue ca. sa. in certain cases lb. Commission. May issue to examine witnesses 180 May issue under order of reference 193 Of sequestration, to be directed to sheriff 202 Commitment {Warrant for). Date and duration of 258 Form of, in default of appearance 301 " " after examination 302 " " forcontempt 305 Common Schools. Trustees of, giving false reports 363 Disturbing meetings of lb COMPDTATION. Rules and summonses for 13 How made in equity suits 203 Months to be lunar months , 204 552 '% Mi J i: wt XU INDEX. Concealment ov liiiiTif. Punishment for 471 Concilium. llulcs for, abolished „..,... 5& Conditional Okdek. When waived , „. 181 Conditional Pardon. Effect of 338 Conditions of Salr. Form of 224 Confession. Must shew particiilnrs of demand ', 251 When judgment on, must be applied for lb. Form of 272 Form of affidavit of execution of lb. Punishment on conviction by 819 Conspiracy^ To raise wages in pursuanco of 476 Constable. Fees to 31 Contempt. How certified ., ..^ 157 Party refusing to attend 179 Continuances. No entry of, required ..^.... ....... .........> 63 Contract. Several breaches of may be joined in one count 87 Copy. Of all pleadings to be served ,... 117 Coroner. Allowed same fees as sheriff's 16,17 Tariff of fees 33, 40 Duty of, on inquests 326 Not delivering examinations, &c 327 May bo required to summon further medical evi- dence Penalty for refusing 525 Corporation. Form of process to abolish U Posts. How regulated 15 When only District Court, allowed lb, Only two counsel ffces allowed lb. i;i INDKX. xni Pago. Costs — co7itiimcd. AVhen counsel fee not taxable 15 When fee on testatum rot allowed lb. Bill of, to be certified 16 Counsel fee, how increased lb. Of issues, how taxed 17 In consolidated actions 20 Of documentary evidence lb. Of declarations exceeding certain length lb. Of special demurrers 25 When certificate, not granted lb. Of making judge's order a rule of court lb. Table of, in civil suits 28 " "in Chambers 30 " " in County Courts 49 Bill of, how to bo made out 61 Form of bill of 62 General directions 65 When not allowed on several counts 85 When judgment for, may bo entered 161 Entry of judgment for lb. Form of execution for 165 Table of, in quo warranto 158 Of affidavits, when disallowed 176 Of pleadings not legibly written 185 Of creditors proving claims 192 Table of, under Eq. Ex. Act 239 Not allowed after notice of withdrawal 250 Bailiff's costs on interpleader 258 COUXSEL. Signature of, not necessary to pleadings 77 Need not sign pleadings 160 Allowed to felons 328 Allowed in cases of summary conviction lb. Counsel Fee. Only two allowed 15 Not taxable on certain rules lb. IIow increased 16 In criminal cases 24 Counts. When several not allowed on taxation 85 Form of common 100 Counterfeiting. Punishment for C60 Making dies, stamps, &c S61 mm ■ ■: sJj I xiv INDEX. Covenant. ""g*. Effect of " lion est factum " in 104 CiiEDiTona. ^ Ailvortiscmcnts f(ir 191 Costs of proving claim of IU2 CiiiEn. Tees to 34 Criminal Law. Of Engliind introduced 818 Interpretation of 840 Cross Examination. Of witnesses malting affidavits 17o To follow examination 177 Crown Office. By wliom business may bo transacted in 3 Hours to be observed in 50, 626 Crown Timdep ^ee Timber. Customs. Counterfeiting or using counterfeit papers 3GC Obstructing officer of lb. Firing at II. M.'s vessels lb. Wounding men in II. M.'s service lb. Having goods liable to seizure 367 Destroying vessels or goods lb. Destroying custom house lb. Five or more persons having smuggled goods lb. Taking away goods seized lb. Regulations of, how published lb. " «' how proved 368 Copies of orders in council to be evidence 368 Smugglers using false invoices lb. CrxTiNO and Maiming. Punishment for 409 D. Date. When pleadings to bear date 57 De Bene Esse. Vv'hcn plaintiff may declare 75 When there are several defendants lb. Death [Sentence of.) jMay be commuted by Governor, &c 222 I\Iiiy bo entered of record 334 Effect of such record 835 When to bo pronounced 465, 466 1,1 INDEX. »T Page. Debkntures. Forging government 819 " railway 395 Debt. Effect of "non est factum" in actions of 104 Form of plea in denial lb. When "nil debet" allowed lb. Declaration. To bear date when filed Gl Form of commencement of lb. Time for declaring after arrest 75 Difference in venue, no waiver of bail lb. Only two copies required against prisoner lb. Time for, after process returnable lb. De bene esse lb. Must have a venue in margin 83 Not to exceed certain length 92 Costs in excess of length not allowed 93 Forms of, on notes and bills lb. •♦ " on common counts 100 Conclusion of, in assumpsit lb. Decree. Motion for, after default 168 " " when and how made 171 When notice of motion for, to be served lb. Time for answering lb. Time for replying lb. Judge may grant or refuse lb. When notice of motion for, allowed 172 Duty of judge on hearing motion for lb. Prosecution of 191 Effect of serving copy of 194 Notice to bo endorsed on lb. Directions in, to bo numbered 195 To administer, how made 200 •« how obtained 201 " how enforced 202 Form of notice to be indorsed on 203 For payment of money, how enforced lb. Notice to be endoi'scd on office copy of 222 Dkeds and Papers. Order for production of 170 Where party admits possession of 178 Defaii.t of Defendant. Ilov. judge to proceed on 145 XVI INDKX. Si 1 ::?r I '.A rJt Default or Defknoant — eonliiueJ. Pip. Form of enlargement nftor 145 Claim to bo taken as confessed by 1G7 Form of entry of lb. Wlien decree may bo moved for 108 When entry of, to bo invalid lb. Subsequent proceedings after entry of lb. Amendment after entry of lb. Answer permitted after entry of lb. Defendant may appear at hearing.: lb. " may require notice of proceedings 1G9 Decree thereon lb. Judge may order receiver or sequestration lb. Rights of parties to extend to n-prosentatives lb. Defence. Must be by answer or dcmurrei* 166 Forms of set-off 250 Notice of intention to admit lb. Defendant. Conclusion of judgment for 150 May obtain relief at hcarin ; 166 Demand. Of plea, time for pleading after 76 Joint and several, who to bo defendants 163 Demurrer. Costs of special 25 Marginal notes in 59 Frivolous, may be set aside lb. How set down for argument lb. Notice of exceptions may bo delivered with 60 Form of CO Form of joinder in lb. Defence must bo by answer or 166 Time for lb. When to be argued 1C6 Demurrer Book. When to be delivered to judges 61 Omission of exceptions lb Omission of oyer in 77 Depositions. Prisoner entitled to copy of 329 Persons under trial entitled to inspect 330 Of witnesses may be read in certain cases 346 Must be read over to accused lb. To be given to proper officer of court 348 Defendant entitled to copy of 850 »'■ .-^iie,,**; • :i fNOKX. XVU 146 1G7 lb. 108 lb. lb. , lb. lb. lb. ngs 169 lb. n lb. ives lb. 105 250 lb. 180 166 76 Uii 26 69 lb. lb. Ith 60 GO lb. 1G6 lb. 106 61 lb 77 329 330 846 lb. 348 850 UKi'inr Olkuk ok tud Chow.n. P«s««. Not to take fcrtalii nflidavits 1 Appenranco to bo delivered at office of 4 When to roceivo rccorda 5 To mimbor records Must transmit bailpieco and affidavit to Toronto Duty of, wiu-n certiflcato of recognizance of bail required 11 Hours to bo kept in office of 50, 5'J*> Duty of, in transmitting papers to Toronto 01 May demand fee before entering record 08 Description of Parties. Claim must give full 21'i Deserter. Persuading soldier or sailor to desert 808 Harbouring .'JOO Dktinue. Effect of plea of "non detinet" 100 Devastavit. Form of suggestion on original summons 270 Form of summons on 291 DiSOLAIMEB. Provisions of 13 & 14 Vic. ch. 64 to be observed ... 146 Dismiss. When defendant may move to 172 Misjoinder of plaintiflF's, no ground to 180 Dissection. Body of murderer to be given for 465 Power of judge to order 46G Division Court. Forging seal of S95 Documents. Form of affidavit for production of 221 Notice of inspection of documents, ■when given 24'.> Dogs. Stealing 427 Dower. Practice in, superseded 02 Drunkenness. Of mail carrier 482 Of railway engineer or conductor 495 Dwelling House. Destroying, by explosive substance 456 '* with intent to take life lb. xf "(• i; S'f XVlll INDEX. E. Ejectment. ^ Practice in, superseded 62 Elections. When objections to, not allowed 146 Not to bo set aside for irregularity 157 Duty of returning oflBcer at 370 Assaults during 371 Furnishing entertainment during lb. Coming armed into parish during 372 Carrying flags, &c., during lb. Using party badges 373 Stealing writ or returns lb. Statements in indictments , 374 Making false lists of voters , lb. Embezzlement. By officers of bank 353 Of funds of charitable association 356 What is evidence in such case 350 By clerks or servants 431 Distinct acts of, may be laid in same indictment ... lb. By agents 432 Trustees and mortgagees, &c., not affected 433 Bankers not affected lb. Other remedies not affected lb. By officers of the revenue 439 Of post-office moneys 487 EsaiNEEBS. Of railway, being intoxicated 495 Enqi-and. Criminal law of, introduced 318 Entky. Of continuances, not required 63 Of pi'oceedings for trial or judgment 64 Equity Extension Act 229 Equity Extension Act Hules 160 Error {Court of.) Judgment of, in criminal matters 344 Escape. Effect of " not guilty " I.n actions for 108 Estate. Account of deceased persons 192 Decreo to adaiinistcr, withput claim filed 200 Ir s |- -, ^'! '4! '■ 'M m 'W INDEX. %ix Page. • ■... 62 146 157 370 371 lb. 372 lb. 373 .... lb. .... 374 lb. .... 353 .... 355 .... 356 .... 431 ... lb. .... 432 .... 433 .... lb. .... lb. .... 439 .... 487 .... 495 .... 318 .... 63 ... 64 .... 229 ... 160 ... 344 ... 108 ... 192 ... 200 EVXDENCK. J'aKe. As to admission of documents in 20 Judge may require further 146 On motions and interlocutory proceedings 18(> On claim pro intcresse sno ,,, 200 Justice to take, in writing 324 Of fraud against assessors, &c 351 Against offioers of charitable associations 350 Of coin being counterfeit 362 Certified copy of order in council .. 368 Giving false certiticate 375 Forging seal of document admissible in 394 Against fugitive offenders 402 Railway by-law to be 495 Of sentence of transportation 515 Examination. — See Parties to Suits. Party to suit may be examined 177 Time when party may be examined 179 To be delivered to the court 825 Not to subject party to prosecution lb. Justice, &c., not delivering 327 Of witnesses, in indictable offences 345 Duty of justice on completion of 346 Defendant entitled to copy of 35Q Excess. .When to be abandoned 262 Execution. Form, against goods of defendant , 275 '« «' «• plailititr 276 Against claimant in interpleader 28& Against goods of testator 294 For an executor on judgment revived 296 On judgment revived against executor 297 Executors and Auminisi-ratohs. AVhen character of, to bein issue 64 Jlay be charged with having wasted assets 259 Various judgments for and against, in Division Court 259, 26Q Payment into court by 261 Judgment where defendant fails in any of his defences lb. Exhibits. May be proved by affidavit 17-4 Explosive Substance. Destroying dwelling house by 45G The same, with intent to take life lb.. 'M ;; t . \ti |«i;: f-r IX INDEX- Explosive Substance — continued. Doing bodily liarm by 456 Causing to expluJe or sending 457 Throwing into buildings lb. Having possession of , 458 Search warrants may be granted for 459 Forfeited in certain cases ,. lb. Sending or throwing with intent to do bodily harm.. 470 F. Fac Simile. Not required in indictment for forgery 390 Factou. — See Warehousemen. Facts. Affidavits of particular, aowtakcn 174 May be tried by jury 179 No state of, to be brought in 190 False Cehtificate. Punishment of officers giving 875 False Light?!, Hf-nging out to cause shipwreck 450 False Pretencee. Obtaining laoney under 434 Felony. Persons tried for, allowed counsel ,.... 328 What to be capital 331 Effect of punishment for 332 How punishable lb. Who may be admitted to bail in 323 Judge of County Court may bail in 350 S'ences, Gates, &c. Stealing 428 Destroying 454 Fiat. Form of judge's, in quo Avarrauto „ ,„,„ 140 Fi. Fa. Form of, endorsement to levy on 04 " against defendant for relator's costs 155 '• against relator for defendant's costs 150 Filing. Time of, to be endorsed on writ 64 Fisii Dam. . Destroying. .........^... ^, .». ,,,., 463 'm mmmmmm Page. ..; 456 457 lb. 458 r 459 lb. do bodilj harm., 470 ery 390 174 179 190 375 450 434 328 331 332 lb. 323 SoO 428 464 - 140 64 oi-'s costs 155 ijt'.s costs 160 64 452 INDEX. «ii Page. Fixtures. Stealing 429 FOUECLOSUUE. When possession delivei'cd in suits of 181 Sale may be directed 182 Surety tor mortgage debt may be made party lb. How proceedings stayed in suits of 183 Decree may be enforced on subsequent default lb. Proceedings after entry pro confesso lb. Forces of Her Majesty. Laws relative to not affected 477 Foreign Commission. May be issued 186 " " under order of reference 193 Forgery. Of government debentures 319 Of marriage certificate 375 Of registrar's certificate or memorial 376 Of Great Seal of Canada 377 Of seal at arms of Governor, &c lb. Of debentures, scrip, &c lb. Of bank notes, wills, bills, notes, &c 378 Punishmeint of death for, abolished 380 Of letters patent lb. Of transfer of sto'jk, power of attorney, &c lb. Personating owner of stock, scrip, &c 381 Of signature of witnesses 382 Of deeds, bonds, memorials, receipts, &c 383 Personating party giving recognizance, cognovit, &c. lb. Being possessed of forged bank notes 384 Engraving bank notes, &c., without permission lb. Having plates of bank notes, &c., in possession 385 Uttering forged banlc notes lb. Forging or uttering foreign bills, &c lb. En^^raving foreign notes, &c 386 Having plates of foreign notes, &c., in possession ... lb. Punislunent in Penitentiary substituted for ancient punishment 387 Place where thing forge. I purports to be made, ira- nuiterl))! lb. The same as to language 388 Of writings for the payment of money lb. When no punishment distinctly assigned 889 Where offenders may be tried lb, Fac simile not required in indictment 390 ! ir:j> f\ iv 1 i i:,. ill ) <^. ZZll INDEX. Pag«, FoRQEny — continued. What to be a having in possession 391 The word person interpreted lb. Allegations as to defrauded party lb. Who not incompetent witnesses lb. Certain acts repealed 392 Of stamps, &c., on weights 393 Of seal or signature to certified copy 394 Of seal of Division Court 395 Of certificate of Chief Justice, &c lb. Of railway debentures lb. Of documentary evidence, &c 39G Forms. Judge may alter to suit particular cases 157 FcaiTiVE Offenders. Proceedings to arrest 397 Province to be indemnified lb, Government may deliver up 398 May be committed until application for delivery can be made lb. Act not compulsory on government 399 Local legislature may substitute an Act lb. By whose order and on what evidence to be crrested 401 Proceedings to be certified to Governor 402 May be committed until discharged lb. Whatevidcnce of criminality lb. Governor may order delivery of, to U, S lb. May be retaken if escaped 403 May be discharged in certain cases lb. Commencement and duration of Act lb. G. Gas and Water Works. Injuring works of Kingston Gas Light Co 404 " " Consumers' Gas Co lb. »• " Kingston Water Works 405 «« " Hamilton Gas Co 406 " «< " Waterworks lb. " «« Brockvillc Gas Co 407 " " Metropolitan Gas Co lb. General Issue. When pleaded "by statute." 79 General Ori/i^rs. Effect of 160 When to go into operation .... 210 * Page. 391 lb. lb. .. lb. 392 393 394 395 lb. lb. 39G ses 157 397 lb. 398 for delivery can lb. 899 A.ct lb. ?e to be arrested 401 or 402 lb. lb. S lb. 403 lb. lb. lit Co 404 lb. orks 405 406 I'orks lb. 407 Co lb. 79 160 ... - .... 210 INDEX* xxin Page. GENERAt Rule. In Division Court 262 Gold Coin. Value of British 858 " American 859 " Foreign lb. Goods Sold and Delivered. EflFect of " non assumpsit " in 103 Governor. Forging seal at arms of 377 Great Western Railway. Injuring works of 495 Guardian ad Litem. Attorney may be assigned as 164 How appointed 165 Gunpowder. Destroying house by explosion of 456 The same, with intent to destroy life lb. Doing bodily harm by explosion of lb. Causing explosion of 457 Throwing, into a building , lb. Having possession of, with intent 458 Search warrants may issue for 459 forfeited, if found lb. H. Harbour. Pickering Harbour Co < 506 Hearing. When completed how officer to proceed 194 Homicide. Justifiable, no penalty for 467 Hop-binds. Destroying 452 Horses, Cows, &c. Stealing 427 Husband. Claim of, may be joined with wife's 262 I. Illiterate Peescns. Form of jurat to answer of 220 :(♦ m I- f h Ixiv IS'DeX. Pag«. Imparlance. Abolished 76 " ia certain sci. fu.'s > 117 Impkisoxment. In Penitentiary, how reckoned 340 Indebitatus Assumpsit. Effect of " non assumpsit " in 103 Indians. Purchases of land from, invalid ; 408 Inciting, to commit offences 409 Indictment. Prisoner may have copy of.. « 220 How property of partner- laid in 835 Property in -hurches. bridges, &c 336 ISo*, to abate by plea of misnomer 337 Certain defects not to vitiate lb. Effect of formal defects ... lb, 'May be amended in case of variance 341 Effect of such amendment i lb. As to difference between dates of coins 367 For election offences 374 Pending on dissolution of counties 413 Count for receiving may be joined to count for re- ceiving, and vice versa 440 Indoksement. Form of on writ of summons 141 Of name of attorney on pleadings 184 Of address for service lb. Infant. To have guardians ad litem 164 Secreting dead body of 471 Injunction. To stay waste 202 Form of 225 Innkeepers. Liable for accidents to drunken persons 409 Insanity. When prisoner acquitted on grounds of 446 Insurance. How interest of assured averred 104 Western Assurance Co 410 Farmers' Mutual and Stock Co ,. lb. Erie and Ontario Co 411 Officers of the above, guilty of fraud 410, lb, iNTfEt. xxt Page. 76 ;;;;;;;;'.3 117 340 ;.. 103 ....... 408 ■•;;;;'.".*■' 409 220 ?^35 336 ' 337 lb. lb, ® lb. ;i;;";;;.;;; 357 '""^ 374 "."."!!.*.'.*.'*.'..* 413 to count for re- 440 141 184 ;***".*.'.' lb. 164 ;;;;;;;*." 471 202 ■"■■*]".■" 225 ons 409 sof 446 ... lOi ,... 410 .... lb. 411 iKTERtOCUTORY JuUOMENT. How signed C7 After delivery of particulars 73- Interlocutory PRocEEDiNas. Evidence and mode of proceeding on , 185 Interpleader, In Division Court 257 As to costs of bailiff 258 Form of summons to plaintiff 282 " " claimant 283 Particulars of claim in... , < 284 Interpretation. Of words, &c. (Eq. Ex. Act) 209 " " (Division Court) 263 Of criminal law S4p Invoice. Using false .• 868 Irbeoularity. Filing demurrer without marginal notes 69 Omissions in writ 65 App ications to set aside proceedings for lb. In quo warranto proceedings 157 Judge may refuse to set aside proceedings for 254 Issuu. In fact, form of 66 Form of, to be tried by County Court Judge 122 " when i^^Hues to be tried and damages asses- sed 128 Form of .rit to try, and assess damages 130 Indorsement of verdict thereon 182 Form of nonsuit on writ to try 133 Form of entry after return of writ to try lb. Judge may order trial of 146 When cause considered as (Eq. Ex.) 172 Defendant may move to dismiss alter lb. Issue Book. Abolished 65 Joint and Several Demand. Who need be defendants 168 JoDQE.I Duty of, in delivering judgment 148 May adapt forms to particalar oases 157 1 i '. 'i Xxvi INDKX. I g. Punishment for .jOy Malicious Injuries to Propeuty. Malice at owner not e-sential 455 What punishment court may inflict lb. Persons may be apprehended in the act 45G Prerogative of mercy reserved Xb. Certain offenders may be whipped 458 Suspected parties may be detained }G0 Limitation of time ij). Offenders may not be tried by justices or Recorder's ^ Court [b. Mandamus. Forms of writs of 152 155 MaNSLAI OHTER. Proviso fur trial of. in certain cases 467 Punishment of lb. Marriage. Forging certificate of 575 " license of 373 Measures and Weights, Forging stamps on 393 Medical Practitioner. Jurymen may require coroner to summon 526 Penalty on coroner for refusing lb. Mercy. Prerogative of, not affected ^35 Militia. Disposing of arm:- or equipments of 402 Mt.l-dam. I'realiing down ^jfjo Minute of Service. To be endorsed on writ of summons 140 yd* IMAGE EVALUATION TEST TARGET (MT-S) k A /S^ /^^S' Z ^ !!l 1.0 j.l ms <^ Hi 12.7 Eu* ' IS IM 2.0 ^ U 11.6 .1, v: d^ .^h j>> %'^^./ > Hiotographic Sciences Corporation \ ^^ ^ :\ \ % 6^ 23 WEST MAIN STREET WEBSTttR, N.Y. MS80 (716) 873-4503 r § \ ^ ^ lI r: f) 1 I I' > "1 < t ZXX INDEX. MlSI>EMZAKOR. Punishment of abettors in 816, dl7 Duty of justices on charges of 825 No traverse allowed in 826 Effect of punishoient for 882 One justice may bail in cases of... ., 849 Misjoinder. Of plaintiff's, eflFect of 180 Misnomer. Effect of plea of 837 Money. Effect of " non assumpsit " in actions for 103 Payment of, in nnd out of court 181 Order for payment of, how enforced 203 List of unclaimed -... 312 Months. To mean lunar month 204 Monument (^Brock's). Sfinalty for injuring 461 Motion. Service of notice of, after claim filed 171 Mode of proceeding on lb. For decree after time for answering lb. For decree, when permitted 172 Proceeding thereon lb. Witnesses compelled to attend 176 Evidence and interlocutory proceedings 186 When affidavits in support of, to bo filed 187 Mcnicxpal Corporations. Property of books of treasurer 462 Officers of, embezzling > 4P3 Not to act as bankers lb. Issuing bonds contrary to Act , 464 Murder. Rescuing perso'js convicted of 405 Person convictsd of, to be dissected lb. When sentence to be passed on lb. Petit treason to bo treated as 466 Prison regulations as to parties convicted of lb. Provisions for trial of, in certain cases 467 Attempting to commit '. 468 Mute. Plea of "not guilty" i^ be entered for person standing 330 tNDBXi XXXI 316,317 325 326 332 849 180 837 • 103 181 203 312 204 461 171 lb. lb. 172 lb. 176 186 187 462 4P3 lb. 464 405 lb. lb. 466 iof lb. 467 ::.... 468 for person ;. 330 N. Navigable Waters. Parcel of district to ■\^hich thoy are opposite 412 Crimes committed on, where triable lb. New Trial. Rule for, how discharged , 63 When and how applications for, made 251 Form of order for 274 Niagaea Falls Suspension Beidge. Penalty for injuring 594 Nil Debit. When plea of, allowed 104 Nisi Itbius. Form of record of gg Clause of, how amended 114 NoN Assumpsit. Effect of plea of .,.. iqI When plea of, not allowed ....!.!!! 103 NoN EST Factum. EflFect of plea of , IO4 NoN Obstante. When motion for judgment, allowed , 68 NoN Pe:s. ♦ How judgment of, signed 57 Nonsuit. When judge may order 352 Not Guilty. Effect of plea of 33Q Plea of, to be entered for mute ** ib. Note. lor liquor, gambling, &c., cannot be tried in Divi- sion Court ORO Forging.... ;:.:;::;::;:::::::::.::: 3?8 Notice to Admit. Form of 23 Notice of Admission. Form of, to save expense 271 Notice of Assessment. May be given with joinder in demurrer 112 How reckoned in certain cases lb. Notice of Defence undee Statute. Form of, in Division Court 271 xxxn INDEX. ;li rage. Notice of Enqviht. ?>Iust bo accepted in certain cr.sos 112 Notice of Exckptions. When to be delivcretl 60 I'enfilty for delault in delivering 61 NoiicK OF Motion. .Service of, after claim filed 171 By ■whom to be given 186 Two days required for lb. Admission of service of, on attorney lb. When affidavits to be filed 187 How copies of affidavits obtained lb. For administration, form of 224 Notice of Set-off. Form of, in Division Court 270 Notice of Taxation. Practice reg-irding 69 Notice of Trial. Meaning of short 69 When may be given 112 If defendant demur lb. Nuisance. Eflfcct of plea of " not guilty " in actions for 108 I 'i ii I M ■ \ 0. Offenders. — See Fugitive Offenders. Taken in the act, may be arrested 438 Under 18 years may be whipped 458 Offences against tiir Person. Act 21 James 1st not in force 4C5 Punished by hard labour, &c 476 Officer's Reports. IIow to be made 192 Oroers. E:Tcct of general ; 160 For production of documents, how obtained 170 Waived, if condition not performed 181 Of course, how obtained 185 Process to enfovce obedience to , 202 For payment of money, how enforced 203 To be entered in a book kept by clerk 209 Not to affect proceedings pointed out by statute lb. Time limited by, may be extended lb. )i, )l tNDKX. XIXIU rage. 112 60 Gl 171 186 lb. lb. 187 lb. 224 270 69 69 112 lb. ifor 108 438 458 405 47G 192 160 led 170 181 185 202 203 209 statute lb. lb. Okdkrs — continued. When to come into operation 210 Form of, for new trial 274 In council, to be evidence 068 Order of IIeferknce. Foreign commission rnay issue on 193 Creditors advertised for, on „. lb. What enquiries to bo made unda* lb. Form of, in Division Court ,. 281 Outlaw. How punished 819 OVERHOLDING TENANf. Costs of dispossessing 26 Oyer. When omitted by defendant 77 P. Taieu Days. What days are 09 Taruon. Her Majesty may grant ,...*..• 318 Punishment to have effect of 332 Effect of free or conditional 338 For non-payment of money 439, 478 Particulahs. Summons for, how obtained 70 When to be delivered with declaration lb. Effect of demand of 72 When interlocutory judgment may be signed after delivery of 73 When improperly demanded lb. Of claim must be in detail 246 •' " against officers lb. Of judgment summons lb. In cases of contract 267 " oftort lb. In actions against clerk or bailiff lb. Of claim in interpleader 284 Parties to Suits. No objection for want of 161 Judge may require other 102 How added and effect of lb. Whom trustees to ropreaeat Ih. 5 I I ) Mii i: i XZXIT t.NOEX. Pagei. Parties to Suits — eontinued. When demand is joint and several ......' 163 Riglits of, to extend to representatives 169 May be examined as witnesses 177 May be re-examined 178 Result of, refusing to attend 179 Names of, to be endorsed cu pleadings 184 To have address for service lb. Copy of decree may be served on persons not being. 1 ^4 Partnehs. How property of, laid in indictment....* 235 Patentee. Counterfeiting name of 478 To stamp date of patent on articles 479 Payment. If admitted, need not be pleaded 77 To be always pleaded in bar , 79 Payment into Court. Costs aMowed up to time of 20 How pleaded , 80 Replication to 82 In County Courts Equity suits 181 Plaintiff to signify his intention of proceeding for balance 251 Where money is payable when order for, is made ... 256 Peace Officer, Penalty for assaulting 476 Penitentiary. Conveying letters in or out of 479 Purposes of 490 . Pickering Harbour Company. Injuring wharves, &c., of » 506 Piers, Slides, Looms, &c. Injuring or destroying 607 Pillory. Punishment of abolished 833 Plea. Cannot be waited without leave 76 Several, not allowed on taxation 87 Form of commencement of 112 Not necessary to state that second plea pleaded per statute lb. Requisites in plea of judgment recovered 113 Penalty for neglect or false statement in lb. 4 INDEX. XXXV Page. 163 169 177 178 179 184 lb. t being. 1 ^4 835 ' 478 479 77 79 20 80 82 181 iing for 251 made ... 256 476 479 490 506 507 333 76 87 112 ded per lb. 113 lb. Page. Ple.\dino. Coun»ol need not sign .v« 77 To bear dito when filed ». h.. ....<. 83 When served before vacation 112 Counsel need not sign in equity suits 160 intituling in equity suits lb. Address for service to be indorsed on 184 Copies of, how demanded lb. " how and when delivered lb. No costs allowed for, unless legibly written lb. Poison. Administering ..'.....;....; 468 Possession. Where ordered in foreclosure suits 181 How obtained under siles by court , 199 Postage. By whom to be paid 255 Post Office. Certain offences to be felonies 480 Principles in second degree and accessories 483 LocaUty of offence lb. Property of letters 484 Proof of regulations or orders 485 Intcrpr- tation clauses lb. As to U. S. Mail 488 Stealing or counterfeiting mail keys or locks lb. Power of Attorney. Forging 380 " signature of witness to 382 Practic 3. To bo regulated by English practice 73 Of County Courts, Equity side 209 Peecludi Non. Form of, dispensed with Ill Prisoner. Time for declaring against »>:.;;«... 75 Only two copies of declaration ;..:...;...; lb. Time for proceeding to trial against 113 When to be charged in execution k lb. Entitled to copy of indictment 820 Court may order delivery of 328 Entitled to copy of depositions 329 Effect of plea of " not guilty " by 330 To be cautioned before making statement S46 aa2 XZXVl INDEX. L^ll il,: '■>= Peisoneb — continued. Effect of answer of 847 Statements of, may bo used against lb. PUIVILKOE. Not to exempt plaintiff from costs 25 Pboceedikgs. How entitled in County Court Equity salts IGO State of, to be certified 191 Pbocedure Book. Clerk to enter all summons in 243 " " " judgments in 250 Forms of minutes to bo entered in 274 to 808 Process. Suing out, to be commencement of suit 1 Eight days between teste and return of ..^ 113 To enforce obedience to decree or order 202 Pbo Coxfesso. Proceedings to take claim 167 Time for moving for decree after 168 If defendant an infant , lb. Amendment may be made without prejudice lb. Defendant may answer after lb. <' " appear at hearing lb. " *' require notice of proceedings 169 Decree to be made thereon lb. Receiver or sequestration may be directed lb. AVhen claim may be taken 179 In foreclosure suits 183 Peoduction of Documents. Ordered on proecipe 170 Affidavit by party served with order for lb. Order for, need not be personally served lb. May be ordered at jury trial lb. " " when party admits them to be in his possession ,...; :.. 170 Form of affidavit for, under order 12 221 Peo Intebesse Sco. Mode of obtaining relief 200 Practice in granting motion lb. How proceeded with lb; Pbomissory Note. Forms of declarations on 93 Peotestation. spensed pleading 1; Pig*' 847 25 IGO 191 , 243 250 . 274 to 308 1 113 202 167 168 lb. lb. lb. lb. 1 169 lb. lb. 179 183 170 lb. lb. lb. be in his ;.. 179 221 200 lb. lb. 93 114 iNDEi. xxxvii PPBIIO BcitDXNOS. Pago How property laid in indictment 836 Setting fire to 468,400 Puis DAnniEN Continuance. When pleaded lyid how verified G3 Punishment. For felony, effect of. ggo For felony " [[[ [."."*'**'.' {u Court may order hard labour or solitar^confiiVenicut 333 >viien second sentence to commence lb Of the pillory abolished lb, Hard labour or solitary confinement liiay be added *o 47(3 419 When oflFenders may be sent to Penitentiary ..... 489 Other cases _ ' ^qq Questions of Law. Maybe reserved for courts above 342 Case to be stated and certified ib" Powers of the judge's ...!!!.!..!! Ib! Judgment to be certified to court below ...!...."!].... 843 How such judgment delivered ] .. '"! ib Case may be amended ...'.....'.!.. 344 Judgment on writ of error ..'.".....'.'..!.'.*.!.'.* Ib Form of certificate of case ....*.......!....... lb Quo Warranto. Motion for, when to be made 135 " founded on what ............!!.".!'. ,.' Ib Summons, how issued [['[ 100 Form of recognizance for summons ...*.'.".'.'. 139 Form of judge's fiat for '.'.'.'.''.'.'."" 140 Form of summons '.'.'.'.'.'.'. Jb Form of notice to be indorsed* thereon....... '.".'."*.'* 141 Minute of service to be written on .,,„] 140 Affidavit of servicff of '.'.'.'.'.'.'. 143 Form of, to returning officer *..!....!!!!!.....!] 144 R. Rafts, Booms, Cribs, &c. Cutting loose or>^ Railway. ^^^ Forging debentures ggg Bytown and Britannia, injuring ..' 400 Toronto and Goderich " 4m Bytown and Prescott «• ...!..!!]!!]!!!!!!*.'."."/" 492 xxxvm INDBX. Page. Railway — continued. Obstructing free use of 494 Destroying ^vorks of lb. Company contravening Act 496 Copies of by-laws to be evidence ^. lb. 'Where baggage cars to be placed lb. Conductor, &c., being intoxicated lb. Forging debentures of lb. Great Western w lb. Kxpulsion of passengers 490 Displacing rails, &c lb. llemoving switches 497 Injuring engine lb. Rape. Punishment of 472 Of a girl under ten lb. Of a girl above ten and under twelve lb. AVhat sufficient proof lb. Assault with intent to commit 478 Real Actions. Form of writ of summons in 114 Real Estate. Stealing writings relative to 426 Other remedies not lessened 427 Conviction not to be evidence lb. 0£fender not to be convicted on his own disclosures., lb. Receiver. May be ordered by judge 169 Mode of appointing 185 Of stolen goods, when a felony 484 '< '* when a misdemeanor ....r. 485 " <' where triable lb. On conviction of, owner to have restitution 486 Recognizance. , Of bail, how certificate of filing got 10 Commission may not issue 13 Form of, for quo warranto 139 How estreated 839 To whom delivered 848 Witnesses refusingto enter into lb. Personating party giving 883 Recoud. When to be delivered to clerk 6, 6 How numbered lb. May be entered any time judge thinks fit lb. «»■' *-, ind::x. XXZlt ... 494 ... lb. .... 496 .... lb. .... lb. .... lb. .... lb. .... lb. .... 496 .... lb. .... 497 .... lb. .... 472 .... lb. .... lb. lb. 478 114 426 427 lb. sures.. lb. 1G9 185 434 435 lb. 436 10 13 139 339 348 lb. 383 6, 6 lb. lb. ^ UECORD — eonttnued. Of nisi prius, form of 66 Need not bo repassed 114 Of certain dimensions lb. Stealing 425 RKconuER's Court. Not to try certain offenders 460 llEnEMPTION. When possession ordered in suits for 181 Reference. May be ordered by judge 187 Officer to keep reference book 190 How accounts brought in lb. No state of facts to be brought in 190 When party sought to be further charged lb. How proceeded with 191 Mode of taking a'^counts 192 Foreign commission may issue 198 Creditors advertised for under lb. What enquiries to be made lb. Form of order of, in Division Court 281 Register. Forging public 877 Registrar. Forging certificate of 876 Guilty of undue practices 498 Registration op Votes. Officer making false lists 374 Relator. Application for summons by 135 Contents of statement of 136 Form of statement of 137 Statement of, to be attached to summons 138 AM objections must be in statement of l46 No formal answer required to lb. Form of judgment for 148 Relief. When granted 166 Removal op Suits. Into Court of Chancery 204 Proceedings to effect lb. Plaintiff cannot apply for 205 Report Of officers, bow made 192 f 1 •■ i. r kH INDIX. Page. Report — continued. AbHoluto in ten daja i, 105 AVhcn appcnl from mny bo made lb. Of ciipital case, not to be made 884 REPLEViN. ri'occcdinf;^ on 115 REPREaENTATlVES. Rights of parties extend to their 100 Returning Officer. May be joined in quo warranto 144 Revenue. Officers of, embezzling 430 Laws relating to, not affected 478 Revivor. In case of abatement 164 Reward. For recovery of stolen property 487 Advertising, for return of stolen goods lb. Right of Way. Effect of plea of , 110 Riots and Tumults. British Act recited 408 Proclamation to disperse 400 Rivers and Lakes. Parts of districts to which they are opposite 412 Offences committed on, where triable lb. Destroying banks of 451 Roads, Bridges, Toll Gates, &c. Destroying 504 Niagara Falls Suspension Bridge lb. Markham and Elgin Road Co 505 Vaughan Road Co lb. Fort Erie and Buffalo Bridge Co lb. Robbery. With cutting 420 With violence lb. Within the curtilage 423 In a shop, warehouse, &c lb. Rules. To set award To compute 14 When judge's order mauj, of court 25 For new trial on payment of costs 68 1 page* . 195 .lb. . 384 . 115 . 160 . 144 ,. 439 . 478 .. 164 .. 437 .. lb. .. 110 .. 498 .. 499 .. 412 .. lb. .. 451 .. 504 lb. ,.. 605 .. lb. ,.. lb. ... 420 ... lb. ... 423 ... lb. ... 9 ... 14 ... 25 ... 68 I J INDEX. ^ xU » IlVLES — continued. ' To plead, &c., nbolishod 76 Mfty bo i«8ued in term or vacation 115 When original to bo shewn Jb. To declare peremptorily lb. To discontinue lb. To plead, &c., in scire facias 117 Seryice of 118 S. Sacpileqe, When capital 422 Sales of Property. Mode of conducting jgg Advertisements of !.*.!!!!!.!!.* 197 Upset price may be fixed at ....!!!.'.'.!.. 198 Contract to be signed by purchaser lb. When confirmed jb. Purchaser to pay money into court , 199 Proceedings when enquiry into title directed lb. Form of standing conditions 0'' 224 School Housk. Setting fire to , 4gQ Scire Facias. To revive judgment more than a year old 116 Where to be brought on a recognizance lb. Judgment for non-appearance to lb. Appearance to lb' Rules to appear to lb! No imparlance allowed in [ 117 To revive judgment in Division Court 261 Scrip, Debentures, &c. Forging 877 Personating owner of 331 Seal. Forging Great, of Canada 377 Forging seal-at-arms of Governor lb. Forging, of certified copy of documents 394 Search Warrant. For counterfeit coin 36I May issue on good grounds of suspicion 438 Sentence of Death. May be commuted by Governor 322 xlii INDEXs .5;.'l' f liiil 'i, • i v. *K'. Pago. Sektence of Death — eontmued. !'iE±. xliii 334 335 4C5, 466 118 142 143 161 184 186 169 202 270, 250 31,38 117 118 lb. I to 202 450 451 475 449 66 108 507 ,.;..; 471 478 ..;. 507 110 Btabbinq. "*''* Punishment for 4g9 SiATE OF Facts. Not to be brought into ofiBco 190 State of Proceedinqs. Officer to certify jgj Statement of Relator. Contents of 13g Form of '" 137 To be attached to summons 133 SlAY OF PkOCEEDINGS. When declaration of attorney to be 118 Appeal to Court of Chancery to bo 206 Stock. Forging transfer of 330 Personating owner of 331 Forging signature of witness to transfer of '. 382 Stolen Goons. When to be restored to owner 436 Taking reward for helping to recover 437 Advertising reward for n,. Person otfering for sale, may bo arrested 438 SCBPCENA. Any number of names may be included in 119 How obtained, for witness residing out of county ... 176 Subsequent Felony. Punishment for 508 Suggestion. Of devastavit on original summons 290 Summary Conviction. Accused allowed counsel.... 328 Summary Proceedings. Acts relative to, not inserted „ 509 Summons of Judge. How attendable '. hq Summons (Writ of.) To be signed by Clerk of the Crown 56 Blanks, to be supplied to deputies lb. Effect of omission in [ g5 No indorsement of debt and costs on ......'..*..! 73 Must contain names of all defendants lb. But not names of defendants in more actions than one lb. 4- xlW l^JDl^S. -it vf: Pogo. Summons — continued. To state in margin wlionce issued 73 Alias 01' pluries, may ij^suc into another county lb. " " form of 74 «* " how to be marked lb. *• " whence to be issued lb. Sheriff must indorse date of service on 118 In quo war. how applied for 135 " motion for, how founded 13G ♦♦ statement of relator to be attached to... 138 " form of 140 ^* form of notice on 141 " minute of service of 142 •* copy of to be served lb. " appearance to lb. '•* affidavit of service of , 14o ** when no appearance to lb. " form of to returning officer 144 •Contents of, in Division Court 247 Notice on, where plaintitF sues under 90th section of Act of 1850 lb. How issued under 9th section of Act of 1853 lb. Service of, out of original division 248 When to be served lb. Service of, where issued under Gist section of Act of 1850 lb. To appear, form of 268 Foi-m of notice to be indorsed on 269 Affidavit of service of , lb. Form of, to witness 273 " to juror lb. " to plaintiff in interpleader 282 «' to claimant " 283 " to executor or administrator 289 " on a devastavit «.... 291 " for executor, &c., to revive 292 " to revive against executor, &c 293 " to defendant after judgment 800 SuPPLEMENTAIi ANSWER. May be permitted by judge 167 Surcharge. Mode of 190 Surveys and Surveyors. Molesting the latter 510 ■Removing landmarks 11/ ^. ^-'i^''^^- ^