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I'm,' 7 ''"-"'^y^ ^"^ both parties appeared, bu,. ,he plaintiff not ov.ng for tnal the. cause was struck off, hold that the defendant was entitled to th costs of the day and that he was not bound to have the jury called • the Si :;;s::r^;::?'?.sr'""""" ''-'-' '^'^ "-' <-''-'^" One of the effects of the rule of Mich. T. .872 (/,./. ,64) is to render it unneces- ha nofce of tr.al was given. ,f it appears that the cause wa. entered on the docket fu nal. an ,tseen,s that the plaintiff will not be pcrnutted to shew that the « c wt Z':^:i'u/rvTr "r "-f ""-"'-^ '-^ "^^- -"- -^ -• - •- trie ruing '^''!''"^^"°"« f"-- J"''g'"'-'nt as in case of nonsuit would be within this Page 50.-42 \-ic.. c. 8, is repealed by 44 \-ic., c. .2. .Sees. .0 and u are how- ver. re-enacted .hereby (ss. 3, 4). with the exception of the alteration of ..wods " intir;. '" '•^"""" '""'^•^-— --' the omission of the provt nnl'T n'T^^''"" f ''"'"' "'■' '" '''■ "^"' "" '-' ■"°"'^" '■"^ '^ "'••vv- trial they nee.i no. be hied or served as part of the grounds, but the Court will on the hea, ng i necessary, g.ve the opposite party tin,e to answer then, (../W,v-... v. .1/...,,. M T. P.age 65.— The rule laid down in (Wrvr v. Camfbcl! -> Ilnn 2Ci « , • o(r. . • .e.ms had elapsed, the plaintiff having had only one opportunity to try Page 66.-In Cyr v. 0;«y/..A. (4 p. & h. 264) a rule for judgn.ent as in case of nonsutt was made absolute under the following circun.stanci :' Notice of tr .Iw once g,ven. and after ent,-y of the cause on the docket the trial was postponed on th u.sua terms of payn,ent of the costs of the day, but the cause was not mad a remanet • a subsequent not.ce of tr.al was given, but the plaintiff did not go to trial. It is , „' Ti^t^l rr" "!f"" ''*-' P"^''^""--"' -- "-'•^■. bm fron, the case of r/.v.;.,. v VK/// (6 All 509) bemg oted as supporting the defendant's contention it may be in- ferred that the plaintiff was in default, as in that case. And it is to be noted t ,aUl e motion was unopposed. of^'Zn?^'^''? ''''''"■"!•"" *""'''""' '"" "''■■' ''""^y '■'^^-''"g -'"'«" notice o abandonmen . a notice of .lefence which denied the notice of abandonment, but d.d not allege facts shewing the necessity of the notice or that the loss was a con- structive total loss, w-as held good (^/,CWa' v. /-..,.,/,/,.;,,,■/... C... K T 188.) ™dTf°H l''^''-'"'^'--.::''!:'^ "°"''' '^ '^'-^ •- bad as being foun,led on the same before Allen, C.J., at C/iamlvrs). Page I4S -The form of offer to suffer judgment and the notice thereof should be subscribed by the cie/enJanfs and addressed to /lahuirs a ttorney. Page 225.-Last line of note-add to order for appe.iranoe " publislied under s. 18 of C. .S., c. 49." Andr plaintiff not as entitled to ; the Kngiisli (Mt/iy V. er it unneces- ntul or (st'm/i) he (locket for the cause was to lie tried at )e within this II are, how- >( '.lie words r the proviso al they need le hearing, if WW//, M. 'l". i afTirmed in though two i in case of yf trial was loned on the a remanet ; • It is not TlioiiKon V. maj' be in- ted that the ilten notice )nment, but ' was a con- ;\ 1881). )n the same n Ills. Co., should lie undei b. iS TABLE OF CASES. Abl>ot V, Krink, 31 Abhott V. Hopper, 74 ^'. I.fdden, 7 Abel V. I.ighi, iSS Adams v. liiown, in, Ahitbol V. Heneiiilli), 56 All>ert Mining Co., Ex ^arte, 7;, Ml . *'• '''PUrr. 47 Aiderley v. Storey, 38 Alexander v. Cowie, 191 V- I'ixon. 57 V. Ilaitt, 153 V. Mills, i6o V. I'orler, 75 Alivon V. Kurnival. 126 Allen V. IJank of N. I)., 40. 07 V. Sharpc, iS V. Taylor, 1.S4 ... ,"•'■ 'fri'iholm, 159 ■ V enby v. Pn.udlock, 61, 63 Alhson h',\ ikS V. Kobinson, 1S3 V. Smith, 15, ,,3, ,7S Allott V. IJearcrolt, 38 Anderson v. Allison, 94 V. Maker, 182 V. KM, 121 V. Kawcelt, 24, V. Shaw, 138 V. Smith, 133 Andrews v. Hanson, 5, 71 V. .McKenzie, 27 ;•■ Wilson, 80, 178 Angel V. Ihler, 1S3 Anon.d Chit. K. 493). 49 I Chit. k. 7,4,, 42 (2 Chit. R. 37), 3 (2 Chit. R. 150), 109 (2 Chit. R. ICC), i^ (I Dowl. 6i),42 •* (I I'owl. 126), 43 (I Dowl. 127 , 45 (. I)..wl. ,83), 42 (o .Mod. 25), 49 (7 Mod. iQ], 113 (2 Ves. Jr. 45,), ,3 3U,l.s. is?).54 ^. thiistopher, 119 V. kemiolls, 56 Ansley v. I'eters, 23 Arbouin v. Anderson, 97 'I4. 125, 200 191 •SO Archer v. (;arrard, 179 Ar, liaillie v. Deliern.ales, no Uailey v. Cathrey, 181 V. Klgie, 67 Baker v. Jupp, 66 Hale V. Hodgetts, 86 I Halmain v. I.ickfold, 57 ! Hank of N. S. v. Estabrooks, 97 Barham v. Lee, 32, 121 ■* Barker House Foreclosure, 227 Barlow v. O'Donnell, 27, 32 Barnes v. Williams, 58 Barrett Nav. v. Shower, 7c Barry v. Hegan, 98 I Bass v. Clive, no Ba.stard v. iSmith, 158 Batt V. Vaisey, 120 Baxter v. Bailey, 89 V. Johnston, 104 V. Morgan, 109 Bayard, In ;v, 13 Beal's Case, 13 Beardslyv. Dibblee, i, ,5, 52. ,,5 Beauchamp, Ex parte, 35 ' K TAUI.E or CASKS. lUMiinionl V. I)ca?i. 120 iJll'Inli V. Jiipi), 06 Ikt,'^; V. l''(irl)i's, 106, lOj Hell, Jix /'eTastet, 57 ISligli V. Hrewer, 81 Molirs V. Sessions, 1 10 Hold's Hail, 42 liolo^Mie V. Vautiin, 42 lloltenhouse v. HIack, 196 Hoodie V. Davies, 61 Hooth V. Howard, 71 Boston Helling Co. v. Gabcl, 79 Hotsford V. 'I'rites, 175 Bourgeois v. Gilbert, 162 V. Hamilton, 163 Bowen v. Evans, 99 Bowes V. Sutherland, 30 Boyd V. Durand, 15 V. McLauchlan, 97 V. Sharkey, 127 Boyne v. Elston, 30, 31 Brackenbury v. Pell, 102 Brandon v. Payne, 108 Branscomb v. IJridges, 19 Breeze v. Stockford, 18 Brennan v. Howard, 74 Brett V. .Stone, 38 Brewer v. Eaton, 76 Brick wood v. Fanshaw, 12 Bridge v. Wiighl, 73 Briggs' Hail, 42 Brigg* \. .Mcliiidf, 30 J V. Sljaip, 99 V. Wrn'tLnifli, 24 liinrlu-au V, De^brisay, 6, 164 lirockluirst, /,.i /arte, 13 Card well v. Bayncs, no Carmichael v. Houchen, 61 Carr v. Cooper, 5 I TABLE OF CASES. \i 104 <■ '<-. 159. a72 , 120, 121 o, 140 ■ o., 97 1 r.-iir V. Shaw, icx) V. Stiinjjfi, i6j <"arrick v. Alkinson, 72 V. McI.cimI, 146 <'atlci V. Adiiiii, (12 raitwii;;lit V. iTdst. 74, 167 (.'nrvill V. St. |,,|,n Kile Ins. ( f a.sli-y V. Siiiilli, jSj (.'ass V. (ass, I So (-'aughiy V. Inman, 266 (-'avL- V. i'lirc, 112 Cawloy V. KiKiwks, 37 Cazncaii v. Murrirc, 179 (liacc V, Kawccll, 125, 126 '-liainlifilain, /;'.i/v ;;-/,■, iH (."liaiiilKTs V. liaiiiaid, 121 ('lianipion v. i.on^,', .So (.'lianiKin v. I'arkliotist, 167 Cliapt-l V, Hicks, 54 C'liapman v. Davis, 57 V. Kiiijjiii, 197 V. I'KJVidt'MCC U •77 Clia|)|)cll V. Walls, 109 (Jliaifjt; V. i'arliaii, 74 (Jhast, /;'.( Z,;//,-, gy (Jhaso V. Hiijjgs, 221 (Jlicil V. Oldllfld, 125 C'lR-valici- V. l-'innis, ioo Chiltdii V. Kllis, 200 Cluircli V. lianictt, 167 Cluiicliej- V. Kdssc, Si Clark V. Kenrick, iSn V. I-aiirance, 56 V. Manns, 74 Clarke v. Dimsford, 165 V. K;ist India Co V. (Jolilsniid, 65 • Hardin^', 97 V. Scottish Imperial Ins, ( V. Stocken. 73 V. Thompson, 57 Claudet v. Prince, 37 Cleaver v. llaifjrave, 126 Clement v. Weaver, 73 Cliff. Ex parte, 163 Cliff V. Gunter, 18 Clothier v. Kss, 32, 121 Cliilee V. Bradley, 166, 167 Cliitterbnck v. Combes, 13 Col)b V. Bryan, iS Cobbett V. Old.leld, 121, Cobiiin V. Taylor, 97 Cockman v. Hellyer, 123 Coftin V. Marsh, 28, 36 Cohen V. Williams, 183 (^ole V. Beardy, m Coleby V. Graves. 07 Colletl V. Curling, '10, 28 Collins V. Aaron, 75 V. Hall, xbl \()b Ins. Co., 127, 99 ^Zl •83 Collins V. Jenkins, 165 V. johnsdii, -j^ V. Kerliii, 37 V. Mc( artl'iv, 5!; ' ^'^ '}li-".iiinill,"97, loS, 114 I _ V. Kybol, 54 I Colwcll V KoIhiIs,,!,, 149 Commercial Bank v. Kiirupean A. S„c,.l>, ! 24, 135, 1^0, 192 , "• '■'"•'•. 7 J Conncll V. Haley, 70, 260 V. Miller, 102 V. .Sissoii, 36 Connick v. Wilson, 125 Connors V. Mcl.a«>.an, 153 Cook V. l'o«ler, 24 ( o.JinK V. Gl. Northern Ky. (•„., ,«, Coombes v. Caldwell, -jx Cooper V. Blick, 34 V. Holluw.ay, 66 Copp V. Read, 155, 16a Corbet v. Brown, 113 Cormier v. Tliibideaii, 131 Corner v, .Shew, 53 Cory V. llotson, 37 Costar's Bail, 49 (^'olesworlh v. .Spokes, 76 Colter y. Brownell, 119, 121, ,50, ,Sj I Cotteiill v. Dixon, 167 Cotton v, Browne. iSo V. Stack, 136, 177, ,83 Coiilan V. Campbell, 94, 135 Cox V. Cannon, 81 Coy V. toy, 162, 266 V. Gardiner, 119 Craig V. Kvans, 40 V. (Jlasier, 97, 166, 167 Crane v. Clarke, 192 V. Carenove, !2i V. Taylor, 7 Craske v. Smith, 74 Crawford v. Satchwell, 55 (.rawley v. Wilson, 96, 115, 179 Cioiner V. Brown, 65 Crompton v. Steward, 81 Crone v. Goodine, 147 Crook V. Dow ling, 158 Crcokshan!. v. tiiberson, 234, 261, 261 V. McFailane, 32, 125, 126 Cross V. lordan, 76 ^ V. Robertson, 67 Crowder v. Shee, 12 Criiikshank v. McAvity, wi Cudlipv. St. Martins, 126 Cully V. Doe,/. Taylerson, 113 Cunard v. Fr.iser, 9, 73 C-'unliffc V. Morehouse, 264 Curran v. Gilmour, 68, 69 Currier v. Crosby, 196 Curtis V. Drinkwater, 165 wm XII TAHI.K OK CASES, r Ciirii- V, ralii.iiii. (>S (.iisliiiin V. (iordoii, \, 150 Dajili'y V. Kciui^li, I.J l)'Ai^;itU V. Viv.iiit. iSj Dailmi! v. (imiuy, 97 l>avcy V. Iliiuvii, 74 |)avi('lMm V, Kiii^;, |S, 19, 55 \. OCi.mall, 2.S, 120, 150, 183 Davis V. I'lisliiii;;. H) V. lluulu>, S Dawson v. MiD..ri,\l(l, iSo V. WilU, 12a Dav V. SiiiciiU, 74 Dcil.iilloii V. 1,'Ai^K', 54 Do l.i I'l'Jiivf V. Ilui.ii, 109 Di'm!i«U-i V. Mowail, I<>S Dcii V. I'cii, 3i DeiiL'tiavf V. Kirlianlsoii, 70 Dfiiii V.' I'lilfoid, 109 DiMiiy V. Ilancoils, \(k> DcRoih^iliiia V. Scliilsum, 166 Dci'y V. Diiiy, 04, 126 Dfsliri-,ay v. llaMrtin, 167 V. r.iiu.i)taii iNt N. A. Ky., 165 V. l.iltli', uS V. l,ivinj;slunt', 6S V. MatUay, 20 V. Mil-co'il, 97 V. Miionoy, iS Desiiiiintl V. VcDiuans, 6S Dcvaiix V. Anstic.-, 97 DeVel>or v. Aih1ioa>, 150 V. (JuUinjj, 102 V. Oultun, 100 Devor v. \\ ilev, 106 Diblilee v. Wood, S,5. 196 DicUcnsim v. liowcs, 56 V. K-ctchuin, 1S8 Ulxiin V. Ia'c, 5S Docv. Cahil, 35 V. Cliallis, 35 V. Dc.lisoii, 10, 35 V. K^itahrooks, 35 V. '.<(>c, 60 Doc (/. All Saints Cluirch v. Crowley, 63 Andrews v. Scolye, 164 Anlrolnis v. Jcpson, 37 Alkins V, Roe. £9 Barnelt v. Roe, 5 baxter v. Haxter, 34, 153 IJealty v, Keillor, 80 V. Roe, 61 Birch V. I'hillips, 34 Bisluon V. Hughes, 34 Bixon V. Roe, 59 Blayney v. Savage, 34 Bowen v. Robertson, 162, 266 Boyd V. Roe, 76, 77 Brilton v. Clarke, 184 Burnham v. Lever, 34 Carr v. Jordan, 35 Doe y. Clinrles v. Hoc, 77 Chipnian v. Roe, 76 Clarke v. Thiimiison, 57, 58 Cliff V. Connaway, 59 C'ogsWfU V. Siiiitli, 58 Cole V. llariicr, 153 Crane v. Wry, 147 Crooksliank v. Denny, 59 CrotiuMs V. Rue, 61 Daniel v. Wocnlroffe, 60 DarlintjtiMi v. Cock, 59 Da\ies V. I'.Nton, 47 DeVel)er v. DeVeber, 1 36 Disbrow V. len, ()0 Katon V. Roe, >>o r.Uton V. riKinipMni, 162, 226, 263 [•■.stabriMiks v. Harris, 59 Kauls V. I'eii, 35 lell V. Roe. 75 l-ields V. McKay, 59 Knth V. McLeod. 64, 126 I'it/wyjjram v. Roe, 59 Kraser v. Roe, 59 tiaisfor70 llathewav v. Hatch, 35 Heathcoie v. Hughes, 79, I33 Hellings V. Bird, II 3 Heblethwaite v. Roe, 35 Hill V. Todd, 59- 74. "3 Holderness v. l.ittle, 59 Horton V. Rhys. 35 Howe V. Meally, 58 Hudson V. Jameson, 109 Jackson v. Roe, 59 James V. McLaughlin, 79 V, Roe. 60 Jardine v. Coigley, 2, 63 Jarvis v. Read, 259, 263 Johnston v. Jardine, 126 V. Roe, 63 Jones V. Roe, 60, 1 84 Jupp V. Andrews. 57 Kinnear v. Wiswell, 70 Kirk V. Roe, 60 Knight V. Smyth, 35 Langdon v. Langdon, 34 Lawrence v. Shawc-oss, 59 Livingstone v. Curry, 59 I TAni.K Ol- CASKS. XIII S7.58 . 59 to 9 '36 62, 226, 26j 59 126 59 59 „ M, 184 '3 ott, 35 , 170 35 s. 79. '33 3 :. 35 t. "3 > 59 109 in, 79 2,63 , 263 , 126 J <4 7 ■ 70 IS )n, 34 ross, 59 y. 59 Scotia i>i>f ^. Livinpston V. Corrle, 59 Mallei V. KoliiclKaii, 34 Masters v. (Way, ^6 McCiill.ij-l, V. Dowd, 67 Mct'ulliini V. koe, 121, 125, McKfiizie V, Moslier, \a Mc-Tavish V. Koulslin, 68, 69 McViy Daniel, 151 Met" V. l.iiheiland, 35 Morncev Roe, 35, 34, ;, Murray v. Miura-, 59 Nesmitli V. Willi'ston, 192 Ntw Hrimswjck and Nova Land Co, v. kw, 75 Oldham v. Roc, 59 Tarr v. Roe, 34 IVahody v. Rot-, 60 Fearson v. Roc, 35 IVters V. McGloyn, 153 J'ike V. 'I'iernay, 265, 267 I'oole V. Willis, 3i Tratton v. lioard, 34 Prescott V. Roe, 73 I'rior V. Sailer, 35 I'ryiiie v. Roe, 120 kicJiardsv. Day, 34, ,,3 Roberts V. Roberts, 36, 109 Rolnnson v. Chassey lej Sands V. Phillips, ^ Sargeant v. .Sarf,'earit I U, Scott V. King, 34, 35, 6«, , ,0 Scovil V Sentill, 66, 68, 69 Shepherd v. Roe, 59 Sherwood v. Stackhouse, iS Shore V. Porter, 59 V. Geaion, 162, 263 Simpson V. Donovan, 26 ? V. Kail?, 266 Somers v. Brood, 109 Spence v. Welling, 25S St. George's Church v. Sweeny, St John (Mayorof ) v. Christopher, St. John's Church V. Crawford, 16 136 ' J • Stephenson v. True, 32, 61. 76 Sullivan V. Currey, 162 laylor V. Roe, 76 Ihomson v. Barnes, 59 lilyard v. Cooper, 3c Fredwell V. Roe, 60 Trider v. Mcintosh, 121 True V. Fen, 60 Tubb V. Roe, 35 Vernon v. Roe, 34 Walsh V. Dalton, 192 Welchoiiv. Roe, ji White V. Cuff, ,',3* V. Roe, 77 Williams V. Williams, 33 126 Doe ,/. Williamson v. Ro,-, 120 Willis V. Birchmore 35 Wills V. Roe, II J Wilson V. R,,.e, 75 |Uoher(y V. Desbiisay, 37 ! V. ilogaii, 30 ; , V. Mc(iiath, 78 I Domville v. Keav.in, 19 { V. Keovan, 99, 27J V. Kevan, 97 il'onoghue V. Todd, 32 Doran v. O'Reilly, 54 ; Douglas V. Hinkley, 1 l>ow V. Black, '. 272 Howdell V, Au.s....aan Mail Co., 137 Dow.or V. Colhs, 166 bowling V. Hannan, no, 1S4 V. 'I'rites, I j5 Drew V. Clifford, 12 Driscoll V. Barker, 97 Driver v. Lawrence, 35 Drumniond v. Tellinghist, ioq Drury v. Howe, 49, 183 puBelloix V. Waterpark, 21 Duffv. Hunter, 44,45 "' Duke of Ormond v. Bierly 102 Duncan v. Barnes, 48 v. Reynolds, 160 V. Stint, 109 D'.incombe v. Brighton, aj Dunn v. Warlters. 61 Duppa v. Mayo, 76 Dune V, Mopwood, 167 Last lu.ii.i Co. V. I.utman, 54 Lastern U. R, Co. v. Symomis, 57 Katon V. Lawrence, 80 Lddowes V. Hopkins, 17S Ldgell V. Curling. 28 Kdinburgh Ry. Co. v. Dawson,, I09 tdmonds v. Challis, 102 Ldwards v. Martyn, 75 Egan V. Kensington, 13 Licke v. Nokes, 12 Ellis, Ex /•III/,; 163 v. .Morooney, 73, 102 V. Newton, 63 LIston V. Vance, 18 Embree v. Ilatheway, 66 I Lmpson v. Griffin, 178 Estabrooks, Ex pard, 163 V. Tapley, 68, 60 Estey V. Brown, 48, 123 V. Newcomb, 98 Evans V. Davies, yj, 181 Evans's Bail, 44 Evely v. Livermore, 12 Eyles v. Warren, 122 Fairbrass v. Pettit, 120 Fairclaim v. Shamtitle, 3? Fairweather v. Nevers, 19 Falls V. Sargent, 54 f'>ll 1: \iv '■irk-y V. J'liillips, 152 I'aiqiihar v. Morris, 2J I'.lr-am, A.r/'ar/.; 200 I'rtiilkner v. Whittnll, 67. 63 I'awcelt V. Alien, 99, 165 K-aron v. Mnriay, loj, 127 f*er^'us V. .Mclntorth, So Ferguson, Ex park, ibj V. Malion, 71 Hi.'rKiissun v. Fytie, 2; Fulletl V. Holtiwi, 118 Kinch V. focken, 56 V. Cocker, 5O Finn V, Hutchinson, 81 Kinn^ity v. Smith, 122 Pirloy V. KallotI, 56 Kirth V. Fitzpatrick, :7, 19 Fisher V. Diiscoll, 227 Haglorv. Richards, 126, 127 I'laherty v. McLardy, 31 . ">■ ■''ayre, 50 Heming v. Shaw, 33, 49 TARl.r OF CASES, Fletciier V. Bcsnard, 196 V. HippeslL-y, 69 Flight V. V. Flood V. Foi bcs V. V. Law, no Wilkins, 19 Cook, 75 Marriott, 159 Morrisey, 155 . Lord, 61, 62 Ford V. Boucher, 109 V. Ladd, 150 ■ V. Stock, 109 Ford's Estate, In re, 162, 236 I-oss V. Wagner, 109 Foster v. Amiraux, 75, \\\ V. Brown, 123 V. Haivey, 120 Foulis V. Kinncar, 62, 63 Fountain v. Steele, 1 10 Fourdvinier v. Bradbury, ^o Fowlie V. Stronach, 9, lo' 86 Fownes v. Stokes, 56 Fox, In re the goods of, 261 Foye, Ex parte, 163 Fralick v. Huffman, ic6 France v. Clarkson, 8l Francis v, Dowdswell, 196 Fraser v. Fothergill, 163 l-riar v. McCowan, 166, 1(57 Friend v. Butterfield, 97 Frodsham v. Myers, no Frost, /« ;-,', 259 V. Hayward, 121 Frowd V. Stillard, 12 Fry V. James, IS4 Frye v. Ficscott, 160 Fuller V. Prest, 41 Furlong v. Akerly, 79 (label V. Harding, 98 (iains V. Bils„n, ^7 Gales V. Holland', iSl jdantt V. McKenzie, 2? M.aidner v. Alexander,' iSo C.audin V. McKilligan, 125 I Gay V. Mathews, 19 1 Gent V. Cutts, 102 I George v. Chambers, 18 j Gilibons V. Spalding, 75 I Gibbs V. Ciookshank, 19 j V. ])eVol)er, no V. Steadman, 30 Gibson v, Bateman, 145 V- Doyd, iS, 19 V. North British M. Ins. (\ 97, 127, 177 V. \'arley, 27 Gilbert, Ex parte, 63 J' r V. 79. «40, 150, V. V. V. V. V, V. V. V. V. 153 Campbell, 58, 160, 1 84 Cyr, 136 Dunham, 66, 67 Endean, 184 (iooden, 67, 70 Graham, 98 McLaughlin, 45 Raymond, 26, 97 Sayie. 36, 76 .. Smith, 160 Gilbert's Will, In re, 162 Gilchrist v. Dom. Tel. Co., C;illespie v. Fogarty, 63 Gilling V. Dugan, 165 Gillman v. Hill, 81 Giilmorv. Liverpool Ins. Co, 95,^31 Gillmore v. Gilbert, 12? Gilman v. Phelan, 97 Gilmour v. Downes, 120 . V .Simpson, IS, 78 Gilpin V, Moor, 225 Gingeil v. ijean, 67 Giiaud V. Austen, 74 Glass, Ex parte, 31, 32 Glencross v. Wark, 47, 73 Goatley v. Emniolt. 109 Godard v. F'ton Boom Co. (ioffv. Mills, 58 Goodricke v. Turlay, 127 Goodright d. Ward v. Badtitle, xx Goodtitle V. Badtitle, 34, 59, 120 V. Herbert, 59 Gordon v. French, 90 V. Mayor of St. John, 98 V. Powell, 12 Gould V. Barnes, 56 Grace v. Wihner, 167 Graham, Ex parte, 63 V. Gilbert, 38 V. Sturt, 42 V. Wetmote, 18, 38, 66 '9. '35. '53 TAJU.E OF CASES. XV 180 '25 M. Ins. Cu., J.V, 8, 79, 140, 150, 67 o iS 97 '•. '53 Co, 95, ^31 ■ ^9, 135. '53 'tie, 34 >, 120 n, 9S I 1. V. Inelt, i6j f.riint V. Aiken, 72 V. Gil)l)s, 49 , Ml )6 f I 78,79 . '65 .Co., 97 n. 99, 109 >3 4 7.69, "S ♦4. 200 l.aing V, Stone, 23 J.ake V. Silk. 57 Lakin v. Nuttall, 72 l.a Massen v. Dixon, iS l-ainont v. Crook, 58 Laniler v. Gordon, 99 Lane v. Clenny, 12 V. Miillins 54 l.aney v. Siddall, 147 Lang V. Gill,ert, 63, 135 l.angf()i,l \'. Woods, 180 Law V. Harding, 197 j-awrence v. Iloglien, 99 I.awton V. Adams, 134 V. Cliancf, 138 V. Tarrett, 80 Lc'dden v. Hanson, 8i V. Rogers, 3 I-ec V. Angas, 58 V. Jlowe, 23 V. Simpson. 166 Leech V. Gibson, 38 l-tLMiian V. Lecnian, rsr I.i.-es V. Smilh, 109 [.e(;al V. DuCfy, 39, ,35, ,36 Lemon v. Hopson, 67 Lencli V. I'argiier, 99 Leonard v. Hanson, 178 Leslie V. Rae, 70 Lcvett V. kothwell, 125 Levi V. Miizorull, 142 Levy V. Lawson, 112 V. Rice, 167 Lewin, Ex parte, 163 V. Morris, 167 Lewis V. Gonipertz, 81 V. Holmes, 112 V. Weldon, 15 Light V. Abel, 79, 127 L.nerick Ry. Co. v. Fraser, 109 Linlon, h.x parte, 163 V. Wilson, 192 Lillle V. t'aie, 196 Livingstone v. li. of N. IJ. Lioyd, III re, 120, 121 V. Alien, 29 V. Union Ins. Co., 200 l^ocUwood V. lirown, 106 Lonchester v. Murray, 3 ''"'"''";g^;',J;'g'>"'n Ry. Co. V. Wilson, Lovelock V. Hancaster, -ic Lucan v. Smith, 180 LiMit V. Fstabrooks, 28, 80, 102 Luxmore V. Lethbridge, n Liiz.Tl.jtti V. I'nw,-!!, Ill Lviiibiiin V. DeVeb'er, n& LmkI, v. Keegan, 153 Lyi,..tt v. Seely, 20, 78, 192 Ly 'ns v. Ellison, 120 159 I Lyons v. Gorain, 18 Macarthy v. Smith, 71 MacDonald v. Mortlock, 56 MacLellan v. liaines, 72, 125, 150 .» w ^' I'owaid, 181 Mac.Monagle v. (Jrant, 197 Major V. (J.xenliam, 153 Malcolm V. Scott, 159 Mallory v. Jennings, 86 Mann v. Williamson, 67 I Margetson v. Tiigghc, 56 j Margettson v. Rush, 7 Marks V. CJillmour, 137, m I Marsh v. Carter, 12 V. Rose, 136 Marshall v. Winslow, 70 V. Vork, 58 Marter v. I'eters, 32 Martindale v. Harding, io8 Marvin v. liutteiwell, icj Masters v. Carter, 183 Matthews v. Matthews, iSo Maunsell v. Massaerene, 86 Mayhcw v. Locke, 12 Afazerol, Ex parte, 218 McAllister v. Day, 74 McAlpine v. Coles, 127 McAuley v. Cieddes, 78 Mclieath V. Cliatterly, :6, 57 McCaffrey v. lirennan, i^ McCann v. Riley, 94 McConnell v. Johnson, 108 McCullough V. Collins. loc McDade v. Peters, 159 " McDonald v. Cummings, 54, 108 V. Mclntyre, 67 V. Rider, 65, 68, 147 v. ihonipson, 70 \, V, ^- Upton, 10, 37 McKlroy v. tJetlv, 53 ■" Mctiarrigle v. Smith, 67 McGeehan v. Hale, 66 McGivern v. Styniest, 80, 140 McGlynn v. Falconer, 66 McGowan v. Ik-tls, 18, 19 McGuirk V. Richard, 184 Mclnerney v. Chandler, 1S6 Mc ntosh v. Hamilton, 30, 63, 64 Mclntyre v. McMonaglef 196 ^ McKay v. Commercial liank, 79, 80 ,ao Mckenzie v. Wiswell SS McLaughlin v. Ratchford, 91, 164 Mclenn v »/"< m'''""' '5' 52, 63, 136 ivici.ean v. Hubble, 124 xr I „ "■ McDonald, 30 McLelian v. Milmore cc c6 c -,, . McI.„and.Mason:•3^o^?•6Y,•/6V^° mcLeod v. Carman, 135, 114 V. Desbrisay, 146 V. James, 200 -Will TABLE OK CASES. Mcleod V. McMillan, 190 V. Thomas, 159 Mcl^cl's Estate, In n; 73, 162 McLoon V. Lowell, 55 McMillan v. Ritchie, 15, 178 McMonafjle v. Grant, 56, 197 McNamee v. O'lkien, 123 McNeil, Ex fiute, 98, 163 V. Moore, 153 Mcl'herson v. Hoskins, 15 Meagher v. Smith, 71 Meahan v, I^wthtr, 30 Mechanics VV. F. Co. v. Whitney, Mellor V. Leather, 18, 19 Meloney v. Morrison, 58 Metinie v. Hlake, 18 Mercer v. Cosman, 108, 135 Meredith v. Gitlines, 74 Messin v. Massaerene, 86 Mestaer v. Hertz, 56 Meyer v. Gardiner, 30 Middleton v. Bryan, 86 Miers V. Ixtckwood, loi Miller v. I^keman, 146 V. Weldon, 2, 66, 7S Mills V. I^ach, 66 V. Vail, 36 Milner, Ex parte, 184 V. Bridges, 32, 152 V. Gilbert, 118, 178 V. McKenzie, 73, 97 V. Mimes, 108 Milson V. Day, 57 Milton V. Griffiths, 67 Mitchell V. Astle, 91 V. Cuppage, 68 V. Lawther, 63 V. Long, 125, '260 " if w''?' ?S. 7«. 79 V. McMichael, 150 Montellano v. Garcias, 1 10 Montgomery, Ex parte, 163 Moody V. Pheasant, 86 Moore, Ex parte, 162, 163 V. Kenrick, 48 Morgan v. Alexander, 63 V. Bridges, 50 V. Fernyhough, 38 V. Griffiths, 102 V. Harris, 71 ., . "■ Higgins, 12 Morrice v. Wilson, 126, 146 Morrow v. Hamilion, 57 Morse, Ex parte, 121 V. Apperley, 181 V. Appleby, 99 Mortimer v. I'iggott, 5 Mostyn V. Mostyn, 13 Moulton V. Dibblee, 7 Mowatt V. Londesborough, 24 Muirhead v. Arbo, 99 96 'lay. Muldoon V. Beveridge, 78 Muller V. Gernon, no Mullett >'. Hunt, 58 Mullin V. Frost, 51, 150 Mullmgs V. J 17 Murchison v. Marsh, 52 Murphy V. Close, 7, 61; V. Donlan, 66 Murray v. Boucher, 181 V. Willislon, 126, 127 Myers v. Smith, 19, 190, 19, Nargett v. Nias, 19 Nash V. Lucas, 19 Nasori, Ex parte, 120 Nathan v. Cohen, 56, 1 19 National Park Bank v. Kills, -.50 Needham v. Bristowe, 74 Nevers v. Travis, 165 Nevins v. Cole, 74, 150 Nevius V. Schoheld, 97 New Brunswick K. R. Co. v. S 52. '40 Newman v. Payne, 12 Newnham v. Hanney, 56 Newton v. Boodle, 125 V. Farrell, 67 V. Harland, 58 V. Maxwell, 56 Nice V. Coyle, 64 Nice's Will, /;/ re, 254 Nicholson v. Marks, 68 V. Nowlin, ICO Noble V. Temple, 2 Nohro, Ex parte, 183 Nolleken v. Severne, 108 Northumberland (Duke of) v. Todd, 120 (Justices of) V. Russell, 37 Norton v. Scholefield, 180 Nowlin, Ex parte, 163 Nugent V. Adams, 120 V. Barron, 62, 200 Oake V. Moorecioft, 128 Gates V. Brydon, 113 O'Brien v. Clement, 181 n'r- ^- Tate, 3. 67, 71 I U Connor v. Mott, 123 Ogden V. Barker, 57 V. Bourgeois, 190 O'Keefe, Ex parte, 183 Oldershaw v. King, 74 Olilham V. Burrell, 41 O'Leaiy v. Graham, 95, 132 Olive V. Belyea, 138 Oliver V. Campboll, 65 Orchard v. Moxsy, 74 O'Regan, Ex parte, 163 V. Berryinount, 132 V. Robinson, 6-1, 6«. 70 Orgill V. Kemshead, 181 ^ Ormond v. Bierly, 102 TABLE OF CASES. XIX ■so V. Murr.iy, rm Co., 159 Wilbur V. Trites, 133, 153 Wiley V. ILisIip, 122 Wilkins V. Geddes, 164 Wilks V. Ixirck, 56 Willard v. Lodge, i9t, 192 Willasey v. Mashiter, 13 Willett V. Lockhait, 97 Williams, Ex parte, 23 V. African Steam Nav. Co., 181 V. Hiyanf, 55 V. Clougli, 121 V. Hockin, 120 V. Strahan, 5 V. St. Andrews I. M. Co . Oakley, 70 V. Cornwell, 183 V. Maws, 79 Wilson, Ex parte, 163 V. Andrews, 1, 6 V, Atkinson, 98 Willis V Wilmot 97 Wilson V. Hlakey, 119 V. Driscoe, 21 V. Gutteridge, 13 V. Maxwell, 45, 145, ,46 WiW:Har4'i3^'^7.99..35..44 Wood V. Critchfield, 32 V. Stymesl, 80, 146, 196 V. Ward, 73 ^ Woodman v. Town of Moncton, ci, cc , Wocxistock K. R. Co. V. Tunper, 52 I Worley v. Cunningham, 56 Wright V. Castle, 47 V. Hunt, 183 V. Levy, 42 V. Merrithew, 85, 170, 171 V. Stackhouse, 257 V. Stevenson, 74 York C. M, S. Co. v. Hartley, 6c, 171 Young V. Woodcock, 56 i. 150 52. '32 10 1, 102 ■i 1^' ENGLISH RULES OF COURT CITED. 1649 Hit.,.. «6S4 Mich., ■33 '■]i: 4a. 83 •o. 17 '5. Kast 8, Mich ,g, 16, Mich .g 18, Trill. Jac. 11. 2, Kast Win. III. S, 'I'rin., Ann. I, Trin., 4, Mich., Geo. II. 4. l-ast 8, .S 6, Tiin ,,2 14, -Mich., Ilil 15. I'^nst (Seo. III. 26' ''•'- 87. f<9. 90 31. l">St ,,g Tnn ,05 35. '"ti., 72 37, Mich., r. I, ,21 2 6? 38. Hil., 9^ 4i>. Mich., ,0 42. Mich 80 48, Ilil ,.g 59. Trin. (C. P.), ,„ r.eo. IV. 1, Mich., 2, East., 8, Kast 8-9. Hil Wm. JV. ■33 •97 .40 .29 •37 ..42 •29 .120 ■33 .61 •55 .40 I, Trin., r. i, 2, Hil., r. S. . 6. . 19. 32. 36, 65, 69. 72, 73.. 85. 3- 6,. 8,. 9,- ■43 ..71 .,70 •72 ,182 .120 •43 • 56 ,.88 ■S3 • 38 .81 122 .89 Win. IV. i, nil., VIII., . 3. nil :.;;;:;;87 3. Mich., I. I /, ij .'Mij 4. "'I-. !'!• I., r. 1 3j, ,0^ 2 96 6 115 ,„ ,, 7, 71. •14 "■ "•. r. 3 124 5 17S, 180 Vic. '7''^ '^^ '. J'il 33 ». Trin ^i 3- Trin. 200 ". I'll ,-s 16, Hil. (I'leadinjj Rules of 1853) f- ' 178 ? '79 3 178 '3 71 ".23 ,81 2fi 140 3' S 32 124 Trin. (Practice Rules of 1853) '6 71. "4 1^ 40 "8 165 '9 71 25 80 ^^> 122 27 80 32 158 55 10 S'' 10, 124 7^' >40, 192 82 56 '24 89 '32 112 '33 113 >34, los »36 72 '37 63 '38 ,83 '39. 140, 121 '41 119 '5.5. 72 '58, 159 200 •69 61 174 4 ,0 .- ^Schedule ,77, ,8s 18, M. v., r. 2, ,82 s GKO, A. KNODELl., PHINTEK, ST. JOHN, N. B. :d. 1 4 87 55 "J 3J. >o6 96 05 7«. M4 124 178, 180 94 33 94 200 158 of 1853) '78 •79 '78 71 181 140 S J24 of 1853) "S 7>. "4 40 165 71 80 122 80 <58 10 10, 124 140, 192 S6 89 112 "3 'OS 72 63 '83 121 ti9 7a 200 61 4 ....177, 18s 182 GENERAL RULES AND ORDERS ftp THE SXJI^REISaiE OOXJRT. Easter Term, 1785—25 Geo. Ill Parchment. 1. It is ordered. That all the processes, records, rolls, and judgments of this Court be made on parchment («), according to the usage of the Court of King's Bench in England. (") Otherwise they are not to be filed (R. Hil 1810 r 1 ^ a^./ w i.-i cc prohiHits the use ofp^ent p.chn.ent. 'a ^^^ oV^C^; is'no' v r^ an „sue upon a plea of „./ M r.ror, (A', v. ^parr.., , Han. 237). A rule " , r" s .tmgas.de proceed.ngs for irregularity is not a record, and cannot be en. id led as such (m^son v AVW, 3 Kerr. 509, and see Mls.n v. A„uJ^\ A 7.5.) Where judgment .s arrested, the arrest of judgment must l,e entered of record and a plea sett.ng out the order of the Court as matter/,. ,ais is bad (] 1 "^ ; V. Johns, I .Ul. 2S7). See as to trials by the record, R. Trin. 1S46, post. Mesne process.— Bill of York. 2. That the bill issued out of the Court of King's Bench in England, commonly called the bill of Middlesex, be the first process ad rcs/>onde,ul;on (6), where it is to be executed by the sheriff of the county where the Court sits ; and that the first process, going into other counties, shall be a common ca/las m form of the alias or lalitaf, leaving out the words "as before we have com manded you," except where it is actually the alias ^^^ And sec Dou,rJas v. ^^^^^^^^iv^T^^ toIe'fired"in"''',Ccfe;k's"officr S'SK'^'^t" ^^'^""''" '"'^ ^^^""^'^ ^y "- Act and must be so treated in a plek'^o a d.X nr""^ '^'""1 "" .'"^""^ °' ^ 9""^ ^'^<:""'. quisition (mevA-rr^-^rj;. 3 Pugs 3981" °" ' '"^ "" ''''"'' ^'"""« '"""^ '"' anJs^gSbttgelSthl^^^^^^^^^ not bee^ co^mpar^d with^^^hf oTg^Lr^l^^sTfio-^S 27V'"'^' ^"' ''' EASTKR TKK.M, 1785, R. 2. cnpias : the recital of the issu.v,. and returning a bill beinn now supposed unnecessary. ** (^) Mesne procfw !« now rt-Rulated by tl.c Con. Stat,, c. xj. Sec 2 aiv,., ,h, t .. wn. .rsu„..n..„, ,..,. ...vi. in the .....vince ; s.s. , , .6 n.nf/ f t^ ^ ^ ^ « >.oa.l , SC.C. .9. ,hc fo,.,n of ,„//„. for the con.n.encemcnt of an action : .ec 2I a Z <.Vp" ." actu-ns .„„u.cnc.i „y s„n.„,ons. anlishe(l by 31 Vic, c, 20, s, 2. SlicHffs.—Rctuni of Writx. 3. That the sheriffs indorse their returns V; r,n all processes deitvered to them by the day of tiuir returns respectively' . nd dehver them to the attorneys wh„ issued the same. That (// hey attend the Court every term, by the,n.seives or their un- der-sheriffs and that they appoint deputies respectively, who shall always reside in the district in which the Court sits, and as near as convenient to the court house ; who shall always attend the Court m the absence of the hij^h sheriff: and that all writs, rules and orders delivered to such deputy shall be of like effect as if served upon the high sheriff. (r) The rettnn ought to follow the usttal precedents, even a slleh, departure in this . Slu-nffoj Gloua-^ter Hert. p. ,89). A return '•<•,.// corpus," to a capias again, wo was taken to apply to both (/,/.). It „,us. not he uncertain or ar/u'inta ivT ml an .nsufficcnt return is as no return, and will subject the sheriff to an a " men; Ur..c,«89.99; AV/,/..«v. Mmcroll, 3 All. 347). A return that ■' Ian kreZn utjsol.! or wan. of buyers '• when they were never advertized or offered o al s r se return (>... v. MUlcr, He t. ,9,. KvcuUtioni c.p.nas not nec.ssa y, « ) As a general rule there can be no averment against the sherifTs return in the same at .0 , but . .s not conclusive in an action by the execution debtor for an excess! esae un or y. /,. (.WA„. v. IVcUon, 2 Han. ,88). Where a/. /. was re u n d sat hed, and a th.rd party (the owner of the goods levied on) afterwards rec vTred t^r value agatnst the sher.ff, the Court allowed the writ to be taken off file and he re u" o be amended (Acfck.an v. GMcrson, , Kerr. 5.9). Evidence will not bo Teceive" o con rad,ct he mdorsemeru under the Statute of Frauds (C. S., c. 76, s. u) of he im of dehvery of the wr.t ,0 - • s!,. ,i,T Ijoknston v. .AnsLno, Bert 3). The re um t:,Z\n '^•="^"^^">- '^ -de in th . ... ae of all of them ZT^ r .^/. I Han. 274). e. ,-. „ i., -he .•,.. of a ..w., which maybe directed to n returned by one coroner-C. S.. c. 45. s. .2, (3. Vic. c. 26, s. ,). In England it i S," 88 T^ , '/ *' '" "■'"' " "'"' '" '^' ''^'' °^ 'he Court (iratum, < if • ^ r ■ '"'"'"°"' '^ '° ^' '^'"^"^J "^'°"8h the office of the she iff of th^ CO nty m whtch „ .sseryed (C. .S., c. 37. s. ,3). The sheriff shall immediately (i e w Te u7tr'"'"' 't^' 'It ''"' ^- ^'"^^'^' 5 A"- S6l), on the service Jf th; wr.t, return the same, w.th an affidavit of service, to the plaintiffs attorney (sec 11) .'^ec. 25 contains a sin.ilar provision as to writs of .,/>«,, which by their form are re- ..f bill being now ec. 2 eivcs the form of writs for service ion J see, 27, a form of a writ ijf rc'plev- all processes > respectively, imc. That('. "'• 334^ A form of judgment roll is given by R. EASTER TERM, 1785, R. 6. 1 llil. 1S75, r. 2, Form No. 2, past. Omitting to declare in time discharges baiJ (^>to V. Bawcns, 2 New K. 404), and renders a prisoner super.sedable (R. Hil. 1839, r'. I, />os(). Rides to Plead. 7. That all defendants have twenty days to plead from the day of the notice in writing delivered of the filing such declara- tion (/;, except where the defendant is returned in custody (j) ; in which case the defendant shall have twenty days to plead, from the time of serving a copy of the declaration, and of the rule to plead, to be served on the sheriff or defendant. (0 See infra, r. 8, n. (k), (/) See as to proceedings against prisoners, R. Hil. 1839, post. Interlocutory Judgment. ■ H. That on filing a declaration in any action, the plaintiff be entitled to judgment, if the defendant doth not plead in twenty days after notice [k) of declaration being filed in the clerk's office, the rule to plead being first entered ; and if the defendant hath not entered his appearance in such action, the plaintiff may file a common appearance, and enter an interlocutory judgment for want of a plea as of the preceding term, without any imparlance, and proceed to a writ of enquiry as if the same interlocutory judgment had been rendered and entered the same preceding term (/) ; and the like proceeding to entry of judgment and exe- cuting writ of inquiry, where a defendant in custody (w) neglects to plead, pursuant to a rule served on himself, or the sheriff as aforesaid. (k) It was not usual in practice to serve this notice {Johnston v. Cornwall, i Kerr, 197; All. Rules, 3n. «). (/) By C. S., c. 37,5.38, "Immediatelyafter service ofa writ of summons not endorsed in the special form hereinbefore provided, the plaintiff may, on filing the writ of sum- mons with ar affidavit of the personal service thereof, or a judge's order for perfecting the service, or in case of service on a corporation, on filing an affidavit of service in the manner authorized by this chapter, and on due entry of the cause, file a declaration indorsed with a notice to plead in twenty days ; and in default of appearance within twenty days after declaration filed may sign judgment by default ; a defendantmay ap- pear any time before judgment by default," etc. By sec. 197 (enacting the provisions of the Practice Rules of 1853, r. 174— R. G., H. T. 2 Wm. IV., pi. 8) : "When any act is by this chapter, or by the rules and practice of the Court, directed to be done in any particul.-irnumhernfd.iysnot expressed to he cleai days, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall hap- pen to fall on a Sunday, Christmas day, Good Friday, or a day appointed for a public lie discharges bail ble (R. Hil. 1839, ead from the such declara- I custody (;•;; to plead, from )f the rule to EASTER TERM, 1785, R. 8. 5 e plaintiff be ad in twenty ; clerk's office, :fendant hath tiff may file a judgment for y imparlance, interlocutory ne preceding lent and exe- {in) neglects he sheriff as 7ormvall, I Kerr, ions not endorsed the writ of sum- er for perfecting t of service in the file a declaration ppearance within efendantmay ap- ng the provisions : "When any act be done in any all be reckoned ist day shall hap- ited for a public fast, thanksgiving, or holiday, in which case .he time shall be reckoned exclusively of that day aiso. •' Hy sec. 36 (C. I„ P. Act .852, s. 26,) it shall not be necessary in any case for the Plam.iff to enter an appearance for the defendant. This section is not applicable to .he cas^ of an .nfant defendan. i/„n„a« v. /.<•«., ,5 C. B., N. S. 474. and see Crr V. C,>o/,-r, I H. i: b. 230.) Ejectment was not affecte.l by 36 Vic, c. 31 {see s 202) or by C. S , c. 37 (see s. 199), and 2, Vic. 20, s. 4. is still in force in respect to th--t act.on It was he d by /-ur,.; /., at chambers, shortly after the passing'of the latt.; Act. that It applied only to substitute a notice of appearance for common bail in cases where the defendant appeared, and that it , d. Barmff v. AW, 3 I>. & « ,02 • ,2 Vic 39- s. 12. See as to the effect of omitting to file, A,ufre,,s v. ffanso»,'i All c^ • ^>.so„. Corn^oa^,, . Kerr. .9; ; ^u.is v. ^„,/.., ; T. R. 206 ; ^r///',., , S,.' ,S6; Aforn,n.r.. P,g,^tt, 2 Dowl. p. 6,6. As to the necessity of filing common l.,l ■„ the county court, see C. S.. c 5.. sched. A, « ; c ..S.'sub-s. 39 ; A^T .S.<../ 2 Han. 20 ; f,, part. J^oss, 2 P. S- li. 337 ; Taylor v. BurJ,n; 5 All Tgl' of imp^rla^ncf ^^ '" ^"^^''"^ '"'^ °^ ''^^' '^ ^"^ ^"""^"^ -"'^--es by 'Jay By sec 106 : "Judgment by default shall be final where it was heretofore final " Bv sec. .09 A./ R. East. ,848, r. ,, pl. 5), it is to be entered of record of the day"' 'he month and year when signed. ^ See R Trin. 1786, post, as to signing judgment upon an assessment bv writ of in -pury. and Rules Mich. ,833. r. 7. and Trin. .838, pit, as to assessment of^d::;:! by' (w) See R. Hil., 1839. r. 2. /<,,,/. Declaration de bene esse. J: r^'U''^u",f'!.'^''' ''^"■' ^ declaration is filed de bene esse udlenr H '"' ;'' ''" ^'^^"^^^^ °^ - interlocutory Jh^i^:rcnhtir;::ir ^° ^^^ '^^-^-^ '^ {«) Superseded by R. East. \;%(,, post. Appearance. 10. That where an attorney appears for the defendant, a copy of the declarattrn, with notice of the rule to plead, shall be served on htm. he paying for such copy at the rate of six pence per sheet ^nd Tw it of' ^^P^^^^'"^'" ^-ntydays.iudgmenttobr:: ered' and a wnt of inqu.ry may be executed as aforesaid, a plea beinj first demanded after the .aid twenty days {o). ^ M See R. Hil.. ,87s. r. i. pl. 3, p,,f_ substituted for this rule. It .s presumed that the copy of the declaration delivered is a true t.nscript of the i:asti:u term, 1785. k. 10. ilrclaiation on tile, aii iiinke i\ cnmimrison [lliv<)i,iiii V. Jh-sl,ns,n, 4 All. 122). In Ifihrni v. .-I iK/mi's, I All. 670, whnc tin- error oc- .iirrod ill the copy tli-livored, tlie Court (,'avo jmlKimnt on .liMiiurrer for tliv (K-fondnnl. Ilioiijjii till- (ii-clnrat Ion tiled was corrci-t. Hy C. S., c. .17, s. 57 (_{6 Vic, ,-. ^i, s. 58.) : " Wlu-iv iIil- defendant is within the jiirisdielion, the lime for pleadinj; in Imr, unless extended hy the court or a judj;e, shall lie twenty days, and the time for replyintj, "•' "'I'cr suhse(|iient plpadinj;, unless es- lended as uforeiiaiil, shall Ik- ten e endorsed on the deeliiration or delivered sep- arately." Ity sec. 5S : "a notii-e retpiirir;; the opposite party to plead, reply, rejoin, 01 otherwise, as the case nmy 1h-, as aforesaid, shall he sulTicicnt without any rule, mid such notice may be delivered sep.ualely or lie indorwil on any pleadint; which the other party is ie(|uired lo answer; Iml notl.iiij,' in this or the procedinj; section shall oliviale the necessity of a demand of plea 01 other sulisecpient pleading, accordint; to Ihe present practice of the C'oml, (see K. I 'lin. 1842, r. I ; Mil.. 18.59, r. 13, /,>.f/), or to the rules which may from time to lime he made by the C.iurt," Ami see C. S., c. J7, s. 82, for the lime for pleading tu amended pleadini;-, tihI K. Mich. 1843, /Huf, for tlie lime for pleading in abatemenl. Stn'ur of Notiics. 11. That all notices to be served on defciidants, or the attor- neys of either party, shall be deemed well served if left at the thvelling house, or last, or most usual place of his or their lodj,-^- iiiK's (/>). (/) See K. Mil. 1865, /i'y. Day's C. I,. 1'. Acts, 455). Ejectment. 12. That ((/) there be eight days exclusive between the time of serving and day of appearance in term in all actions of eject- ment, where the person to be served with such declaration lives within the county where the Court sits ; and fourteen days when such person lives in any other county. [H) Superseded by K. Mich. 1835, r. \i,post. Notice of Trial. 13. That (/') there be at least eight days notice of trial and for writs of inquiry in all actions where the defendant lives within the county where the court sits ; and fourteen days notice if in any other county. (r) Superseded by R. Hil. 1828, r. \,post. EASTER TKRM. 17S5, R, 14. nrison (/hvcliiiiii PIC till' crrcir nr- >r thv (U-fcnilnnt. nut is within the 1 1)1 ii jiulj;c, shall i(liu(;, unh'ss cn- (Iniit to pk'nd in or ilclivL'iril sc|i- , reply, rejoin, or )Ut any rule, nnd ailinj; wliic li the ,liii(; section sh;ill injj, accordiii^j to r. IJ, />r'j7), or to iceC. S., c. J7, s. 843, pttst, for the :)!■ the attor- f left at the r their \od^- >n the attorney ; ^. Kvery ajipear- ngs, &c.,iiiny he rd of, proof ttiat ;." (Styrliiif; \. :n the time of Dns of cjcct- aration Hves n days when ' trial and for lives within notice if in /)'(7/7— Justification of. 14. That (.. on exception to bail, the bail justify before one c.f ^ tl.e jucl.es at Ins cha.nbers within two days after no ,7" : 3--;;- P-^tin- be at liberty to proceec^ notwithstalidn,;; s:^; (v) Supcrsclcd by K. Hi)., ,83,, ,, 3^ ^^ ^„,, I Service of Notice on Aitcnicys. . 1". That (/) all notices be served on the attorneys fV,r the ,nr (/) Seethe Kn-lish practice, AV,.,,Av v. /•/// 2 V t I ,,« ir '-■ I. Kx. 172 "CI,!.; ™ ' ^ *• * J- 276; JArr.vAf,,,/ V. /iV/f// iK I 'iK- service being on the party, „n,st he't ike. h f ,1 '^'"'"" "" "''' «■■"""'' "^ -s the party's a,.,'„e; (/Jn^ l:^^?;'""''^^'" •''^' ''"'^ '''^^^"" --•■'' oftue, has authority tore'ceve ,n„ers Z , ^ ' ^^"'^^ '^ '^"'^^ ^^f'*''-' i" thi- "f -.vice o„ a student ''in X'ofl:ti''"^ '"'''■ '^«>- '"" - -^m-lavi. >l.at the service was at tlie ofl-K-e (G^^^ kTT "'T''^' " ''"'' '" "'" ■^•«'-« "H. anidavit should state the tia e of f 0!^ 7' ' ''''' '' '^ "•'^•'-"'^- "••^' -:ie..,aud Of securi,; z L:!:::':!, ';;;'::f X T:r '-'""' '^-- ^-^ (t;v,;,.-v. y;,,/,,,-, 2 Kerr, ,7,, />,,,, ,^ „ /If.'"^' '''•"' '^'°'" ""•■ <'""-■ of receipt, perhaps, where such mode of service' is ^^Z^l ",''375-notices of trial), .niess. '" ';■ Acts, 688). An affidavit den iV,;'':^' r: ^''"^ '^ ''"""'"^ "-• ^ -^ on the ,i,ee„.s ..Xlt::^:^, ?-: n^^ '^^ ^ -"'«■ A S It .s u. many cases advisable to serve a nofi ■ ■ , ^-f^"^""' ' ''• ^^ »• '92). tl-n,torney (//„,,,, ,, ,,„,,_ , "^^^^ " '- ';' P'-luce on the client as well as on <" l^e punishc.l l.yattachmon,, must bc"servei n !l ' '"■''"''^■'"^'"'^^' '" which is personal. '^"^'' "" tl'e party, and the service must be Hilary Tkrm, 178(>.— 26 Geo HT i mKnoeice: " ^'' l'™^''. '»"=.cribed „.ith the follow- " A. R. Tate „o,ice, .hn. „„,oss s,«i.I bail i. „„, i„ „,„,, ,,. „^ 8 Ml f HILARY TERM, 1/86. defendant in this cause within twenty days after the return of this pro- cess, the condition of the bail bond you have entered into will be for- feited ; and upon affidavit made and filed, together with a return of the process by the sheriff of the service of such copies as aforesaid, the declaration may be filed i/is scrvcil on tin- capias, the pl.-iintiff, (Ts return emlorsed, liavc been iHirfccteci, rked No. 3 in schc- defendant's appetir- . 53. The following I in Impey's K. li. :»d hereto in hveiiiy of bail, or of justi- of declaring against FASTER TERM, 1786, R. 2. sre no affidavit iff may file or such process, Jant doth not :ad within the n bail for de- ided that such :e with notice li process, and ■A Noda- of Trial. 2. That {b) all notices of trial in actions where the defendant l.vcs wtthin the county where the Court sits, be -ivcn at least eight days before the first day of the term at .vhich such case is to be tr.ed, and fourteen days if the defendant lives in any other county. ^ (/O Fourteen days notice is to be given in all cases (K. Hil. ,828, r. I, Au/) • n„,l see R. M.ch. ,835. f.'sf, by which Ni.i 1 Vius sittings were estabiishc-ci. ' TuiNiTv T;:i{.\r, IT.Si;— 2r. (Jico. m. Assessment of Damaocs. — Writs of luquiry _ TilE Court oKDEREi), That in causes where intc-locutory judgments have been signed, and the causes of action apt.ear to be upon complicated accounts, the same shall be referred to a jury of mquny {a), and judgment shall be considered to be entered as of the precedent term (/;). ear proper or ex|H;dien."(C S c .7 s .,r '" ,"''J"'>' "'>'-'" the same 7=6,. z:ts^ x^: ;-::■: -^ t: -r ■' " '" ""- ■■ ''■■"'■• a judge. ^ ^^^' ^'"'' ""' '° assessment by t le C'ourt or ^^:::^:ir::zt!zT'" '"''■'''' -• "'-' ^'-^^^ -"-^-^ "■^^ ---y Court or from a h, , " ^ 1 ' ""' '"''"'■'""'^'-' '^^^^ "^^ '- "'"-"«! f'om the ""'"" J""t'e upon summons 0//W,-,/ V. /vv/jvv- M T iS., «, iv 343) tl>at the writ may be executed befo e a judge at .C Pri "s ],^!r\ ^^' usual, and it would seen, nrn.v-,- . r . . ' '" ^^'"'^'' '^'''^'^ " i'* ^o-ms. .oed,.s; r :^; ,^ :^7-";'^ i";;«e am, the sheri.,Chit. writ so directed was held to be ^"^11;^^^^ ""'• "."'-- --^ sheriff, by whom the incmisit,, n . ^ ^' '"' ^' ^" ^^^'^'""' '" t'>e ^/;v„:./, ' ' '""™ ""^' ''^ ■•'-■'"■•"-'- '^■"l "ot I'y the judge (/.;../., V. The Stat. 8-q Wm ITT r ti o o ■ . enants. &c., where b";ache"s ;r: ' 77" ""■' '''"''' "^ '"'•"'^>- °" '-■■"'■^' --- and the I6t'h sec of 3 4 WnWV 7":'' ^ ^•":'^"'1 ^'"--^ ^ ^''^^^ =^' ^'^' ^''•'-• -- alone, has not^en ^iiu^Unfr- ^ I ^^ J^ rl^t^:!: "% ro TRIMTV TERM, 1/86. r ;fi I i; cases, proceed under C. S., c. 37, s. 115, 117, unless the defendant obtnins an order under those sections. Daniaijes may be assessed under the statute by the jury sum- moned to try the issues at the assizes, and the sheriff need not return any panel on the writ (see ll'/uder v. O'ctv, I Kerr, 580). Fourteen days notice of the execution of the writ is required by R. Mil. 1828, r, I, post, and ten days notice of countermand by R. Mich. 1848, />,■$/. See R. Mich. 1835, r. 7, n., as to the necessary evidence, and how far the judgment admits the cause of action. Where the evidence was calculated to confuse and mislead, and no loile was laid down by the sheriff as to the measure of damages, the Court quashed the inquisition {A'liiiioirv. A'mWhsjh, 2 Han. 73), The inquisition will beset aside if a verdict be given for the defendant {Dcv v. Dohson, 2 All. 456), and if no verdict l)e givtn, another writ may be issued without obtaining leave of the Court [Wardv. Doiv, Bert. 21). See .is to the effect of defendant's attendance at the in- ciuisition in waiving irregularities, FmMc v. Stronach, supra; McDonald v. Upton, 3 Kerr, 565, See further, as to writs of inquiry, note to Foodie v. Sii-oimch (Stockton's Bert 118). The following form of writ for ordinary cases is taken, with slight alterations, from Chit. Forms, 10 ed., 529 : Victoria (&c.) To the sheriff of Greeting. Whereas, A. B., lately in our Court before us, at Fredericton, sued C. D., and declared against him for (.Vc, state the substance of the declaration— see Kinnear v. Robinson, 3 Han. Ti—exclusive of the conclusion, and then proceed thus:) and the said A. B. claimed $ . And such proceedings were thereupon had in our said Court, ihat the said A. B. ought to recover agamst the said C. D. his damages on occasion of the premises. But, because it is unknown to our said Court what damages the said A. B. h.ath sustained in tliat behalf, therefore we command you, that by the oath of seven (,f,v C. S., c. 45 s. 15), good and lawful men of your bailiwick, you ddigently inquire what damages the said A. B. hath sustamed, as well on occasion of ilie premises aforesaid as for his cos's of suit in this behalf; and that you send to w,, at Fredericton, on the day of now next ensuing {any day certain, in Term or vacation, C. S., c, 37, s. 107 ; 36 Vic, c. 31, s. no; Stat. l VVm. IV. c, 7, s. l), the inquisition which you shall thereupon take under your seal and tiie seals of those by whose oath you shall take tha' inquisi- tion, together with this writ. Witness (.Vc, The writ mav, it seems, he tested iii va- cation—see Collet V. Curling, 5 D. ^-o /. 605 ; A'. Mich. 1825, r. l, n.post). (/') For the time and manner of entering up judgment on the return of the inquisi- tion, see C. S., c. 37, ss. 107-9 (36 Vic, c. 31, ss. no, n2 ; stat. i Wni. IV. c 7, s. I ; Practice Rules of 1853, rr. 55, 56). Eastkr Tkrm, 1788—28 Geo. 111. Terms for Trials at Bar. Ordered, That {a) in future the Easter and Michaelmas terms be considered as terms for bringing causes to issue, and that Trin- ity and Hilary terms for the trial of causes. [a] Omitted as obsolete, in the revised, and Allen's edition : see R. Mich. 1835, r, I, 2, post. t-- in tl pi ail if th Cou sum any (a). Oi this ( Saint and g agent be pu agent: as if s (a) Tl Rules, J Ori: as sooi Court I (a) See Ord: bill ofc as the c m t obtains an order e liy the jury sum- I any panel on the yll. Mil, 1828, r, far the judgment nfuse and mislead, images, the Court uisition will be set 1. 456), and if no :ave of the Court idance at the in- Donald v, Upton, (Stockton's Bert. alterations, from . B., lately in our im for (Ovic, state — exclusive of the , And such . ought to recover iut, because it is ed in that behalf, • 45 -f- I5)> goo'l es the said A. 15. is cos's of suit in ay of s. 107 ; 36 Vic, shall thereupon take tha': inquisi- , he tested in va- I. pest). n of the inquisi- I Wni. IV. c. 7, .elmas terms id that Trin- . Mich. 1835, r. TRINITY TERM, 1790. I 1 Trinity Tkum, 179U— 30 Geo. IH. Security for- Costs. _ ORDERED BY THE COURT, That {a) in all action.s commenced in this court by non-residents of this Province, and in which the plaintiffs are required to give security for the payment of costs If the said plaintiffs shall lay the venue in the county where the Court sits, such security shall be given and entered into in the sum of twenty pounds,, and no more ; and if the venue is laid in any other county, then in the sum of thirty pounds, and no more (a) Resanded, .and other provisions substituted, by R. Mich. 1844, r. I, pest. Michaelmas Teum, 1791—31 Geo. III. Age/Its at St. John and Frederidon. ORDERED BY THE CoURT, That («) all attorneys practising in this Court, who are non-residents of Fredericton, or the city of Saint John, do appoint an agent at one or other of the said places and give notice to the clerk or his deputy of the name o^ such agent and at which of said places he resides, which notice shall be put up m the clerk's office ; and that all notices, served on' uh as It served upon such attorney Michaelmas Term, 1796—36 (Jeo. III. S/>eda/ Bail Piece—filim^ ORDERED, That in future all special bail pieces shall be file,! as^soon^aftet the taking theteof as ™ay be, l,^. the c« :,f U,' {") See R. Hil. 1832, post. Michaelmas Term, 1800—40 Geo. III. Bill of Costs— delivery of. ORDERED, That every attorney of this Court deliver a regular the case may be. before he demands the expenses of the suit ; r J t rt iiii MirilAKl.MAS TKKM, | S(X1. and all ,vcci,.ls l.y attonuys (V..,n (I.oir dirnts, uithu.u tl.is "p.c- V.OI.S su.,, uill lH,< coMsi.k-a.d as a bread, of this Rule- ,V,^ ' Inisincss .lone in thy siipni.,!- nmits I /.,,,„■< v 1/ / In ^"^'Kes aic for /«.,„„„,,.. ,;„„,,„, ,, ,,ts ;"■'"■.::„:"', "■'' ""if '••' ■v-«, . II. s A.I. .f„i. Tho i.ii „ ,„ ,|.,.,f;,,,',, ",,:,"'■ "■ ■:•; '""■" - ".■■■:■■... . r.,K J. 5,,.; ',i:r;. ., ,' , "7^ ;:, '";"'""-';i' '-« v. »»y . I,, i„i,i.,, „,ci„is,i.. „,„„, „, ,„„„,, „„,,, .: ". ;2?^ ■ '• , ■■ ;""""•-' :i'£r:.;:t::•A^::^;^.:^■ -!.£'---" - *»'i '"i; .V„.<.«, , H. lil. 290). (C;.,.„/,.r V. .Vw, I C an,i,. 4 ,6 ; /,V„„^., v. riic statute ,m.st be specially pleade.l (see /„„„• v. o/,;,;/,. 7 A ^- F S. /• , *rac. C. 1. 109), pmmissoiy note (/,.//>v,,rv. /r-^,„ , . M v\V ,. .' '-"""^' ^''• •ns .0 r;.,n/,i« o. /,.,/.„; V. /•,.,„,'/, t\.;,l, u6 • Cu 1.' c, t, ' ' "'' '''""'■''■ Ab. •'A.tonK^y-',KOnnl//lrTV;v ' ' "'"""•'"■>•" <^'-) ' ^in. 359. It has been 1,01,1 ,1 utl,. .,.;,, •' \ ^l '' '^''' '^ ^'^'''' ' '^'- '^ '^"'•• client does no, waive the statu.J by no, o.^^t';^; H,; ';: f ,r,f''^'''''^'"^:'>- ■'''- !'-• 1-. of tlH- s.nn .lon.a.ul.l (a!vv .. /i^^!;,'; """-'"^"-'>'- -"' "'1--S .0 /r.^vv;,,;,;, , i,o„l = ,2) For , 1 'n.' , .'- "''' ^'^ '"'"" <^^"'"'^>-'"v'/5 v. 1 • u»i. 3jj;. i or inslances where Fnii iv vi-ni •■..i; ... for costs incurreil, see /•,„,..„ v. /,•..„.„,.. .S R ' „V U ' T'^' "'""'"'■^ SOU V. f;/,;,f,r, //. 206 • yVvAi,, V n„„i » -" ilcpiMulently of the sl.it 4 1!! C. C. 35". 'i'al- "tos 2 r.eo. ir. c. 23 and 6-7 Vic. c. 7J, the Court h as a M tllnllt this j)ic- iulo (fl). as a siilistitiitioii for tiii'li "all iittdrncys their assij;ns, of all il "ilh llirir hanils ■ (heir ilicnis with lio charges arc for 164 ; //r/ri-;,;:,,,/ o,- s. C, ; A'liyiiiil V. P. It will not siif- 1111 lift ween party "^ C. 54). Al)l)ie- V. .sy///,„y, 4 c. ^^. li the name of the nershi|) (Smil/i v. ncral accoiint, in- riliiifj, and heade.l ). The signature '. /('''('(i/'j V. lend to this I'ro- .essary to deliver iK. i;. S3 ; /tri'ois V, Kutlaml, I., i// V. C';/',/<•- ■ney" (C); Viii. 'd, but see .Vivr,/- S I M. iV Koh. IS upon a prom- '>;/o attorney in [bawmg. copying etc.. taxable to matl^ ntw/ T" ''i'"' "''' ^"'^^"' charges for into £rndra"":;^r :. 5[tS^fh.'^;:;."-T '^'°"r ^ '^ '"■^ ^"-' -'->> --- express^or implied (In n-'kaynr,/ \ M\ \^XZ """''-•^".-"t assent of the client, fees {,' ^'"i-- •"^" ■Ml. KuicsSi and.s,..as,.;,,,..,i„; J,. , ''''■''^^'^^■''^•' """''''• '^^ ' ■ ■^■■^- '.!" , V. ^v^^.. a All. ,o.;':'.s-;;:: .s'::'::;:":;;" '"^"''*="""" '■'•"^- - '''^•'^>^'" T') llK'j.nl,;„H„. ,„ll ,„„| II,, ,l.,rU.tn.,H,i,c,ri,vC '■ 'I'c .nn.. .,r si,ni„K j,„|„„,,„ .,,,1 „,;„,, ,, j; '^ ' • •^•' '■• -l^- ^- "4. aa. „l,,.,| .r 'I'l^l tl.at „c, rule to nk-Hl ! ■■ ■'"'^' "^ ^'"' ^""'■' ! cl'ivit i.s Miaclc, Ix- duly nicd. "• *'" ''"'- (• All. :.), i, was la.M ,„ 1„ sul nni i'r''l. . , ' ' "•^- '" ^'■'""' ^- ^''''■^-'•^/-' l'-"'-i I'V k. Mil. ,S,7. ^„„ f ; , , ■■""•'-"-- ,ilc.,l wi.hin ,1,0 .i,„. ,,,,. aOMavi, ...s no, ,:: ^I T,:^t:J::Z :; 7"''''-\ ' '"'- '5"- '^'" '^ •'• ' «i-l.ar«e,l (A-,,//,,. V. .WA^.vKvvr, ' ''" '7'''' ' "" "'-■'^■""•^'" ^-'''' '-' -H.n,c,U„-. TluH-Kh,,,,,,,,.;,;;, ' : ''" '"'^'■'"-"^ ■•"-' sa,isfac,o,i|j.n<> ,iu ^■in.iiM^ s)(.(i,u lia Was not n wn v..^ ,,f .i ■ . «no,c.ofi„s.n,c,ion,o.lK. d V S ' ' Z' '''"^^''■- ^ '^"- "5). I. is nuTcly ■styled hy.,/..,.^/, c-./. i ,;, j T''7: '"■ '""'"■ '"" "'^■«''' "'-■-^"■>'' Jtidment I'^olh—Efurrossu," ■>■ Thai all judgment rolls be engrossed ..^on parehment in a t! I« i :| ( HILARY TKRM, 1810, K. 3, fair Ic-^rjblc hand, with a mar^nii of not less than an inch in breadth, and a sumacnt space ;it the toj) for bindin^,^ up the same, and at tlie bottom for mmiberiii-;- the roll ; and that no roll bJ received or fdcd by the elerk that is not made up in the manner herein directed (<•). (/•) The roll h to l)o omlorscd witli llio lillc of llip trnii (K. Mast. 1X48, r. I, pi 5 A's/) ami of llic cnusr, aii.l witj, ,!,>. ;,iio,n,7\s ,„„„.•, ami is U, be folded to a wi'dlhOf! at least, two and a hilf inches (K. I |il, 1S75, r. j, / c next ensuintr t ■■ik^amst such der.iulant. '( corge the Third, i)y the C L-rm, in the (oil w- owinir r< irm .,,,, 'VT. Av. .v,, ToiheSherir.; ' ■'' '"'^V'' ''^ '•""'• We (oniMKuu voii tint ,.,„, . I V *'i^' '• "N'^. i.ailiwici<, and himlall^' t so [i. , "'• "' '•^' ^""" ''" ''"""' *" ^"". us, at FrederietoM, on the ' ■ i ^•'" '"">• ''•'^■^- '"^ body hel,„v of a plea, wherefore he took th.. '"■,''>' ") , 'i^'^'- t'- answer A. K.. •-'"'' 'I'^'-n unjt.stly ,lJ,„ " '!^,i,f;''''^ '"''' "'>»^l^ "f the sai.l A, 11, have you there iL t s w i'^'' "-l ,f *^^^ '""' !-'«-- '•« he ..it!,, .,,.1 day of i„ th, ' , ""^^-^ . „ •■■^ I'Vc'-ieri. ion, the >',ir o( our reign. ' such defbndant oH ' f' "''""^ T" ''"^"^'^ ""''^*^ ^" notice shall be in t "C ^Z .rM"'''" "' ""' ""^^'^ ^ ^^'^'^'^ tions in which no affniavk sit ' r'"'"' "^ I"'"'^'--^^- '" ''^- of action ; and if ^t^^^^C^Z T' ""' "^ ''^'^ ^■^^'^^■ ■such process or uffh .'"''^ '''•^" ""' -^Ppear at the return of tiff shX ; i^:'; :::^;>; ^'''>-^ f - --h .etum, the pl.i,,, fi-cdofthcper.or;J;!;s:;^::H1,:^:t.^:;:^;"-'^^ ance or filed cot^mcln Ldl "' '"' "^^^■'■^-•^' "'^ "■• '^^^ ■■'1^1'-"- "•ryaml expensive, cnaos by section ,, ■"•''' ""' '"^ ^''•^'"■^'y •"'r^' 'li'n- C"teeju,lKesc.,nfonnal,ly,.. ,"'7 l^;'"'';'"'-' '"■^' -■'-- shall ,.e fLn-.i behalf used In England; n's;;,":/"''^^"'-'^ •^■"' P'"™ i" ihar be- "•'■its as could l,e had in ca e 1 e Ks^'.d ^ r /■r'""'"''"''^ ^'•^" ''^' "•^'' "I"'" -<-h ^<>"- '3 Vic. c. S3 repealed ,;;;:^::;::::^^-;;;:;^^^ and .ncorporated the above forms as sche, ^,1 '. ■ , ""' '" ''""'• ''>' ^- '2. the al.eraiions made by i R s J ^ '' • ^ '"'' " •'' " '^''- '^- '«>• An.on,- in the Sup,en,e Court are re-en^u.^; ]^T"'""' "'"'"'^'^ ""'"""« '" "'''^ -'-" and the substitulion of a writ made u, .nsu-' " '"' ''n T' ""' '''''""''"" "f t'^^e fo,„,- - ror re,p,i,in, the appearanc. •:,;"■ ",7" '^^"- "^^' -l"->'"« "^ "- « b action of replevin, whether for the Z-SJ^ "", '°° "' ""-' '•^"" ••^^' ■ " ■'''-• 6 All. p. 355) "of any ,oods or 4 tt 1 , ' f' T"""^ ^''"' ^'^ '"''^^""•"^•• N". I in Schedule D) issued out o e'si ""^' ' '"""""""' "'>■ ^"" "•■--' at the time of seizin, the Tol l! , '''I.'"':"''" "'•>"""'>• ^-•-'t^ and the she.m; goods, shall serve tl 'f. which service shall be effectwi may appear within twenty days, ind he do so, the i)lr as m lie party 1" possession with t otiiei cases of non-bailal le copy there- laintifi' may pi usive of the day of iile writs, to which oceed as in personal act service, and nefjlectint; t( ions." iiefore the Revised S i m ^>"r ■rj tat. I8 EA.STER TERM, 1 8 10, R. I. m i the wnt wouia have been set asi.le, if it was issued against one not actually or con- structively the A,/vr {Cnnrs v. 6>#//,, Stev. Dig. 361; and see C/ifv. Guntcr, 2 Kerr, 493), and the sheriff could not take the goods unless they were in the possession of the defendant named in the ^uni [Wiggins v. Garrison, Hert. 17). Since that Act the party out of whose possession the goods were reple\ied becomes ,pso facto defend- ant, though he be not named in tlie writ (.see Wluxicr v. Shimrl, 3 Pugs. 398 • Van- wart V. Slu'thcni, 2 1>. & li, 225). It has been held, however, that it is no ground for settmg aside proceedings ; that the defendant was not the proper party to be served he not being in possession at the time of the issue or service of the writ [Davidson v. Aing, 2 Pugs, s), nor can the objection be taken by plea (/,/. p. 532). At common law, replevin in general lies in all cases where there has teen a wrong- ful takmg of personal chattels, where the party has in them either an absolute or spe- cial property (2 Saund. PI. &Ev., 76S ; 2 .Sel. \. P., ,185; Gcorg, v. Chambers, I, M. & W. 149 ; Ex ta,ie Chamberlain, i Sch. & Le, 320; La Massen v. D,xon, Sir W . Jones, 173 ; Ihshop v. Montague, Cro. Jac, 4 ed., 50 ; note to Roberts v. Snell, i M. & G. 577 J Alien v. Sharp, 2 Exch. 352 ; Mellor v. Leather, i E. & ]i. 619 • Jones S.Johnston, 5 Exch. 875 ; see Mennie v. Blake, 6 E. & H, 842), and it is a co- extensive remedy with trespass in such cases [Lyons v. Goram, M. T. 1831, Stev. Dig 361 ; see MeG.noan v. Betts, 2 Han. 321, /.;- Ritchie, C. J.). It lies by the owner of land for timber cut upon and taken away from it, and the proceedings will not be set aside, though the party taking the timber claims title to the land [Lyons v. Goram). The mortgagor of chattels, in possession by con^^ent of the mortgagee, may maintain the action [Elston v. Vauee, 5 All. 634), as may a pawnee, even against the jjawnor (Gibson V. Boyd, i Kerr, 150, the replication need not in such case shew the special property, but may take issue on the plea of property (/,/,). The property lequired in the plaintiff is the same as that necessary to sustain trover (Chitty on PI., 16 ed., 1S3) Where the defendant mixed the plaintiff's chattels with others belonging to himself' which he refused to point out, and which could not otherwise be distinguished, it was held that this- or ner';nmi!thr.ri-,v! 1,1 . > . interP.tPrl n/.I,» «; .uc r peisnn aiUhon,od by kw to act when the sheriff is intciested, or the office may be vacant "(C. S., c. n8 sub-s 37) 20 MICHAELMAS TERM, l8l6. n 414 IM ^IlillAKLM.VS VacATIoX, 181(3. Judges' Fees. The clerk havin-, by direction, furnished the Court with a state- ment of the arrears due from the several and respective attorneys, up to Kaster term, 18 15, inclusive, on account of fees remaining -n then- hands due to the judges {a\ It is ordered, that he forth- with g,vc notice to them respectively, that they be prepared to pay hnn then- respective balances at the ensuing Easter term in May next ; and that hereafter the rule entered at Easter term in the year 1785 (/;), be strictly and punctually enforced, in order to uh.ch the clerk is further directed not to tile any papers, nor sign any processes, for any attorney uho shall hereafter neglect to comply with the same rule {c). At Chambers, Fredeiicton, 26th January, 1816. J. Buss, John Saunders, Ward Chipman. (.0 Under the Ordinance of Fees- -Judges' fees"' (C. S., c. ,.9, p. 956). By C S., c 26, re.c„act,ng 32 ^'ic. c. .2. these fees arc payable to tl>e C erk of the Me-ts .■xcep. the tr,al fee, which is to be paid to the Clerk of the Circuits, .0 b by t " m p:ud over to the Receiver General. All rule., and orders to secure he payn^ ' '(^wi; r' ""' "^ '''" ' ^""""""" "' '^'^ ''^^'"-^ ^'- ^^^^z ■ ,K,':'!;^ror"' ""■ '^^^•'•^•^■'■''"- Where the plaintiir. aft. giving notice of settin. - no argun,ent a den.urrer. discovere^ -i-. thou rL'tLi"; tt did n ; \\: <"'■ '"" '• '^"'"""' '^ ''"«^- «2). it was held that ^n .ia o that >n sec. 4 of L. .-,., c. 34, to which the above cases. Voto v. Quin.la- e-xcepted, are applicable ( WMon v. //,,„;,. b,f.,re /f '„//,;•.,•./. C. C). inr.ARV TKR.M, 1819. 21 III. HiLAKY Tkrm, 1819.--r>f) Cko. IVn'ts of Assistance. as to the jurisdiction and practice of tl^'r ^' ' ' '^"■'■' '>43). ^ee Costs are recoverable by ad a '.i^ £ '" '' 'T'' ^ '"'• '^'*- 10. ss. 4, r (20 Vic c 6 ss i 1\ 1 "'" '" '""' "^^ "''^ Crown -C. S., c. MiejHAELMAs Tkum, 181!)— 59 Gko. III. Special Bail. ORDERED, That the time for putting in special bail. a<^rceablv to the rule made in Easter term, in the twenty-fifth y;^ of His present Majesty's reign, be enlarged to thirty days U) {''} % the form of (he notice .s«b,scrii,ed to the cony of the w,i, r .• • C. S., C.-37, sclied. A. No. 3 (see sec Kl) Inll I, T '""^""' S'^'^" ^V ti>e .lay of the arrest, incl.sive'of s ch '. W r^t ^ilv;"-^' " .""'i' ""^'■^ "^'^' sec in an action already connnenced, twemy^^ron; ra.";!": AnTj^^^'^ sufficient tin. to a.ioi '^ .Z^^i^t^ ^T^r::; ^i:"'";' 'I r '"" HiLAin- Tkum. 1820~G0 Geo. III. 1. It KS ORDER D That in future, no attorney of tho Tourt mi terS"/'''""''' """''"^^ "'^'^•" ^he Province, be' per mitted to act as an attorney of this Court (a). {") See as to re-admission, R. Mich. .837, rr. 6, 7, S, /„./. f "I '1.4 m^ l< :!S fvi- 22 IIILAKV TERM, 1820, R. 2. fl' ""li:i fill )■ Dockets and Fees. 2 Whereas, by a standing rule of this Court, made and en- tered of Laster Term, in the twenty-fifth year of His Majesty's reign (/;), It IS ordered - ^'' " That every attorney of this Court enter the return and file the writv or process m all actions which have not been agreed and in wJi ch Zv intend to proceed, and shall make a docket of all such^etu n aid r^^^^^^ And whereas, notwithstanding the repeated orders of this Court ^c) enjoining a strict and punctual compliance with the said rule the same has been in various instances violated and neglected • It IS hereby ordered, that in future, if any attorney of- this Court shall neglect a compliance with the said rule, in every respect agreeable to the true intent and meaning thereof, on or before the first day of the term next after the term in which such rule ought to have been complied with, every such attorney shall be considered as in contempt of the Court, on account of such ne-. lect of, and disobedience to the said rule. And the clerk of this Court IS hereby enjoined not to receive or file from, or for any such attorney, at any time afterwards, any writ, prx^cipe, process or any other paper or proceedings whatever, of a date subseouent to the term in which such rule ought to have been complied with until such contempt shall have been purged in compliance with the said rule. And the clerk is further enjoined, on the second day of the term next after the term in which the said rule ought to have been complied with, to prepare, and deliver to the Court the name or names of all such attorneys as shall be so in con- tempt as aforesaid. ?! ^' fff^' '^^^' '• '^' ""'' I'- 3- '^'''e words in italics are not in the rule. W R. Hil. ,810, r. s, an/, p. 16; Mich. Vac. 1816, a.Ke p 20. See R. Hil. 1837, r. 2, posf, raakiag new provisions for the filing of writs and enter- ing of causes, and R. Mich. Vac. ,8i6, an^., as to payment of judges and clerk's fee.. Hilary Ter.m, 1821—2 Geo. IV. Calculating Interest. Interest upon bonds, debts, and other securities for money, pay- -•■ 41 HILARY TERM, lS2I. 23 ab c w h .ntercst .), should be ascertained by addin. the inter- est to the principal at the time of each payment, and deducting' he payment wh.eh is the same thin, as first deducting the in terest from the payment, and then giving credit for the balance on account of principal ; and not by charging the interest upon th vvjole bond to the time of last payment, and interest'for he debto. on the several payments from their respective dates thereby mvertmg the principle of compound interest, and chare- .ngMnterest on his own debts, when a payment is made of lets than the uiterest due at the time. Nothing should be credited untdasum ,s paid equal to the interest then due, except by endorsmg ,t specially as a sum paid in part of the interest then - ' ' ' • "-^ "• S5S. sec CaUuw y, Ln-sou, 2 Cr. & M jo6) 330;- '^cc the cases cited, 1 Fish Dir ^-,-, .0,,, 1 , „ ■"'• .f-, o td., fused; A...... V. //.,, . Ker,, 9 Vv.- K.: S/T^v //:"' T k'"'-'^-" account stated-refused,; and W.vvL., v. 67/X ; 2 A l' 48 " 1 ail "' 'f l.able for the sum sworn to and costs, and theCou wll nn ,1 • ''"' ""'^ «y C. S.. c. 37, s. „8 (7 \Vm. IV. c. 14, s. 2,; 12 Vic c ^q s 27- .fi v s. .3, ; Stat. 3-4 W,n. IV. c. 43. s, 2S,, interest [na, (.l^Jr^^^f 'm! *^;: : payal ■)lll,c;asM„Kuf •''■'•vine- of New Iirm,swick Vny n e >? " ""l ' '"' '" ''^" ''^•"■"'■'"^•'' "' ">'■ upon." The ..I sec. e v ',".'; , "' '''"'"""" ^'■'^''^ '"■^>' '"= '^K--' gages of real estate. Coiuracts Mn.le I .".u. ' .7 ■ ' "" '*^' ''" '" "'"-''■"' "" """'- j:e._M....,c...c,;r^^^^^^ the sa,no rate of interest ier the X ^i" ^.L;;"",'"""'"' ""^^""""^ '^' '^^ awaraeaj;.the„o„-,,ay.ne„.,a„U the ^rl S^ ', :2;:;;7' T"'' "^ >"K the damages (Co.U- v. /;„,,/,,. l. k , h I IT /- '^ ' ' '" '''■"=''■ S., ,44; /,, ,,. ^.,A,.,,. ,,_ „ • • •' 7 H- I;- 27 ; see A,,/, v. AW„, 3 C. B., N. 46 and note). '- . 14 C h. 1 ). 49 , /.,, .v,r v. /( ,„s.,M, 30 Ana-ricau Kep. . A count (br interest is unnecessary, in cases where the law allows i. , . , • N. M.,n>.,, 2 1 ugs. p. 46,, and see t, S., c. 37, s. 40). HiLAuv Tkhm, 1822—;! (Jko. ly. Aitorney—Admission of. have serve, a regular apprenticeship of „o. less than .1 roe vea he Shan produce an authenticated c„;Tf' t I ::;^;ar7f T sorvce, by virtue of which he ,„ay ha've ob W J, S . aT^ attorney ,n such frovince, Colony, or hiand ; and ttesrc e," HILARY TERM, 1822. law in t]>is Province!" "^ "'''''' '^ apprentices to thJ (") See substituted rule. Hil.,s,3,,.,,,„^^^,_ i. II/LAiiY Tkkm, 1823—4 Geo. IV. theli: In r ^2:^^:':;::^^^^ "^ ^T"' ^^'^^ ^^^" -^>' attorney of thi.s Court 'h.I h ^'7'""' "^ ^''"^ ■-^^'"'"^d an so studfed with s're b hL' oTth rc'^'; r"'"^ '" ^'^'' ^^- years, if he be a iTraduate 1 ^ "'"' ^^^ ''^^ *'^'''" ^'^ ^"U'- for the term of five ytrf- pZ^'^": Z *' ?°^ "^'^ ^^^^-^^• to any person who shal hatr ' '^*' **"'" •''^"" "^^ ^'^^end barristeLr attJrne; o ths c::::Ter' .f ^'"''^'^ '^"^^^ ^">' the present term (a). ^"""^ '^' commencement of student has taken the degree of A " :• 'atZj,'"' '" ^' ""^ "^™ °^ ^'"''y- ^^cre a entered as a student, or of L I •} iJ ,^^^ "'"^'" ■mentioned, before being Jhree years; <" othe; ca Jstt .^t' I^te^ T '''r°" ''^ ^" -°-y-' discontinuance of study j and R Hi) \ll , ^ ^""- '^43. r. 6, as to effect of an^attornt Tf trs:prre"i\r'n^ °^ ^'^"^'-■^ ^^> ^ or Island, in His MaJestlT^n °^^"y °ther Province, Colony. sion and ^nro^ent 1 Tn atto"'"""? I" ''■'^'' ^° °^^^'" ^d-'- -itted and enrolled LeshlhS ha ^^T' ^'^" '^ ^° ^^■ ticeship in such ProWnce Colonv o ^r T'""^ ' ''^''' '^P''^' prescribed in the forcJnTrTfn^!!' ^^^-^^^^ly to the terms vince. nor unless he shal n h ''"'^""'^ ^' ^^^ '" this Pro- certificate of su h serw e'b^ v"r " T''^"^'^^^^^ -P>' "^ the tained admission as Ta;tlr^%f f"' ''"^ '"^>' ^^^ °b- Province,Colony.o Island norll .^"'""^ ^°"^^ °^ ^^^ the qualification^ as o a^e and " V".'^ '''''^'''' ^'^^^ '"^^^^^^ behalf to be included in'certL^^^^^^^^^^^^ '" ^^at the law in this Province ^'-^^^^ °' ''^'•^'^^ ^s apprentices to '' "' ""^^ "° ^^"-^ ^ -''^- - ^'^ --- Since »d.issio„. .d pass an 4 a ■ 26 irir.ARV TKRNf, r823, k. 2. ill ■ u exan„n«„on (K. M.ch. ,837, .. 5,/../). after .erving a. a st.uk-.U fur one yenr in .hi* rovince (/,/. r. 9), Imt niT.l not UM.Iorno the examinntion un.lcr K. Trin. i8a, vi-e arau-ry .0 ,vin, e.Ue... n. a .u.len,. ..e r. 5. He .„ay ,. a.h.u.te., l^'a '^S ont >cnr after n.lnus.s.on as an attorney (R. Mich. .840. r, 2, /„,,/). /i.,rnst,rs from terinin Colonies may t,e called to the Har under R, Kn»t, 1856, /„,/, ■S. Thiit after the rxpiration of two ycai-s (r) from the time of ftdmission as attorncy.s. such attorneys may be called to the Har provided there appears no just cause to prevent such call (. ) Now one year (C. S., c. jj. «, 7, 30 Vic, c. 7, s. z), provided he ha», inall other e.s,<' ""^^ but while it was in his hinds, by strik n/o 1 ,U T ""1" °" " ""^ ">•= '^'^^' ginal form, was refused, though tht sZt. I 1 , u" ^ "^ '■***°""« " '" *'« °ri. V. ^■Z>W/. . All. ,6a A writ Ccd an" %'"- *° ' '"^ ''«'°" <^-^- and returned, is a nulUty' and affn H. T "^ *"'" " ^^ ''«" onceissued /^^ Bert. S3,. '' """^ ""^'^^ no just.fication to the sheriff t/.^,„,,„ v. ^f^>,.. A writ . considered to be issued when it is sent from the attorney's office for the li ' 'm 38 AflCHAELMAS TERM, 1825, R. r. may bear teste on the day on which such writ, .h.ll i '■^"','-°»'^'^ '" 'h'* Province rr ;r:s s~';" •--■'=- r^r.= :; :;•; payment had been made. ^ ^^ """^'^ "f'" '•^'^ J~- Hi rP^s=h;s upon ss. 215, 221, m connection with the above sections, C S r ,, . , contemplates that some writs are to be tested in Term. Under the F^ A ^ ' ^' a subpoena tested in vacation is void (M^/ v. cj";,. , M i C ofsl ' n wnts of sd. fa. be so tested, ev. . after 2 Wm IV c U f^^f 'l^' .^ ,'* IVc. 7 s?t ,1 ."'■•' '• ■^:'V'"'' ' ^"■'■' ^^3. decided under the Act 5 Wm of executions at common law, ^ ' ^ ^^^"' '^^^' "^ '° '^^'^ Declarations de bene esse. 2. It is ordereJ, That the time for delivering or filinfj de- ir^Thr^S. r^'''''T;x'^'''''''^ '° '^' "-"'^ •^^d'^ '■" Easter Term ,M « ? c ^'°'"^' "^- ^" "'■^'^'■S^d t^ thirty days (i). W See C, S. c, 37, s, 38, an/e p, 4, "^ ^ ' Disc/large of Bail. 3. Ordered That if any person or persons who are, or who hereafter shall become bail in this Court for any defendant in any action whatever, shall be impleaded by action of debt upon the recogmzance in such suit acknowledged, such person or persons shall have liberty to surrender such defendant by the space of twenty entire days next after the return of the writ of capias ad respo^idcndum or other process sued out against such bail • and upon notice thereof given to the plaintiff or his attorney, in the suit aforesaid, all further proceedings against such bail, upon the recognizance aforesaid, shall cease (r). MICHAELMAS TERM, 1825, R- 3- 29 ^^^ (,-) men from R. G.. ,). ,,. T. T. , Ann., see noi.Z'^,,,,,,,, . cA^^aTc J. Hil. ,832. r. „, /,,,,, requires the costs „p ,0 tl« time of notice of render to be praaLf'"" " '''"""• ' '■ * "• '''' "-^ '" '^"'^ °f «!*-•«' "-' u-'er the existing Hilary Tkr.m, 182G— 7 Geo. IV. TrMs at Nisi Prius~Fili„g N. R Records causes at NiTl-^'T^"' inconvenience and delay in the trial of causes at iNisi rrius («) It is ordered, That no record of Nisi Prius shall be re- ce,ved at any Circuit Court in any county in this Province unless he same .) shall be delivered, to be entered with the cierko davortr?/^ '^'r ^'^ "^'^"■"^^ of the court, on the first day of the s.ttmgs, unless the judge, in his discretion, under spe- cial Circumstances, shall allow the clerk to receive a record and enter the cause for trial after the time above limited ("ad that rJLTr ^''" '^ ^^'■^'^ '■" ^'^^ "^^- '■" -'^->' it shall be so en > the fis?T"'"%'"u' """"'^' ^'^^ ""'^•'^^^ '^ '"^-'^ bo made out > the satisfaction of the judge, in open Court, that there is rea- orde. forT: '", ''T T'^''^ "'" ^'"^^"P«" ^^^ '-^- -^h "eem just (Z)'^"' ^^ ^'^ ^'^"-^^ '^^ ^° ^^ ^"^ ^'^^ - ^° '^- ^ha.l t.l '^"'!-'' " !";:'■"'"■ °''''"'"^' ■^'^"^ ^ ''^t of all the causes en- tered as aforesaid, shall be made by the clerk of the circuits, and eLy sotadr " ''' ^'"^^ ^ ^^ ^ ~^'^ ^^- ^^e («) See R. G., K. B. H. T., 14 Geo. 11 (^) Regularly and properly made up-R. Mich 1872, tost \c) ily C. S., c. 45, s. -jS (II Vic c ifi s f . ,c v * be entered on the Trill Docket on Lr/. V f ^^ ""^ '' 34)- "»*^ ^'* to At the Saint John Circuit, causes in whirh tt,<, j„r and on the trial the judge is satTsfied hat he /' T'"""'' ''" '""'"'^""' ''PP'^^^^' win^. discharge. aidL ^ S:^!^^^^!^^ ^^^^^^^^^^^^^ ^^^^ - -- The jury fees (C. S.. c. 45. s. 39) and the judge's trial f;e (Z;.f d ,2^. ^,., st. I Sflfi I'll m %' 30 HILAKV TERM, 1^26, R. 3. i merely .li.c.y J .. \,^ i!: z^:^ ^::r:'z'z ''i -' ""^ ""^^^ '* J 1st. when the ,lof,..,ce >»a.H ione in.., an.l >1 "' ''"^ "'"' ''"' "^ ""^ aj„r, 2 Han. 504). ■'•'"''•' '6). I-or the forme, practice see .1/,,,,. ,, the defendant, a ..w trial w.ll Z' T' lld^T "7 '•^"l',"' """' '" ""^ »''-"- "^ torily accounted for. and merits are swof-n^ '64 . mles. the absence is satisfac- S^.:,,„.,., , Kerr. 406; ../,./.:!:;v ^ l"' T r Ts."'.' "'"" "™' '^''^^^ ^• """' V. lloo./, 2 p. &!,. 3,9.. and see / „ ^ ""'"• ^'^^ ^«« ' ^>'"- •housh the cause 1. reached, by reason of iirj' ''''■''':"' ' ' ' * "• -*3>). even poned by the judge, under f e Lter part oT." ar" ''f"""« '^''^'^ " '^'"^ P^^'" Kerr, ,). P"" "^ "'« »bovc rule {Ji,,a,s v. .ii,«M.r/„W, 2 ^^^^:^::tti:z::^-'T^^r'r''' -"^^ »„ out of its t... and 429 ; //'«/ V. /i.„„./,A /,/. 246), as where i"t It ,', f '''*'''' "^ ^"'''"■" »» in r^;r\f :r /^/s^Tr w :;r'" r "'•"=™""' " "« "■>"'■'" "™; Pfc. .M., no,e (;■) ,Vi.„. • "'•'■ •"'• ""■' •" «" " ™'"Ki»e '.!.. o. ,h. f ■■ nil ii ■■'■'If ^1 It ■:' ! 22 HILARY TERM, 1826, R. motions for „/w tria , & .' t"; c u^t I' I" '',""• ''^"^ '' ^^ ^^ "^ -'-'"g tions are omitted in AllenWdition'^"'^"'' '''-""'"S 'o the latter mo (/) An irregularity in the copy of the rule serv^rl ;. ,„ • j u , entering the cause on the special »a,>eran7o . '''' ^ '^^ °PP°«"« P^'")' be at lii^rty to move to z:^:^::^::'^ :^' :!:' 'i '^"'""^ -'^'^ servng the rule being that the defendant's counseTwnl i^ Cou r T ' "'"" ^"^ ""' and the belief of the plainliff's attorney that the d^f!^ ?- "" " ^'' °^'"'"'''^' it was obtained (Z). J„. v. To,,, . 1 J cl b^' n fF^ ' "T"' ""' ^"^" ">^' .T/a^/.r V. /l.urs. 6 All. 327 where fro m n ''• '^''■'"'' 3 A". 2IS, and was not .rved. but the S:J:^2J^^^^:;^-^[ f --7. "^^ rule payment of costs. "' ""^ "^"''^ ^''s enlarged upon -:d^tt;jr;?E:.;t^:L::i;%:r "»'- ^^^ --'-- ranee of the terms of the rule (/^,.Ar..„ v Zlrs!', Tlu" """""' ""' "^ '^'^ 'g"°- V. /-.... June. .8;, Stev. Di; 38; Tss,- oCt^'J^ALf ' '^' ^ ^-^-'"« paper. ^ ^^' ' ""'^ "' '° re-entering a cause struck off the special (/) Now on the second day in each term ^R \t,vk ,q .oaper •• is to come on before'the spt . p pt' R H ^'^^V;^' 71' " '"°"°" tnal docket " is to be taken up i„„, ediately af r he mlr n '" '?u '^' " '"'°''^ post. ^ ^ '*"'^' '"^ motion paper" (R. Trin. 1846, Tkinity Term, 1826—7 Geo. IV. Consent Rule-To Confess Possession, Whereas, («) by the common consent rule (b\ fn ..f TRINITY TERM, 1826. 33 plaintiffs to be nonsuited ; ^^^^^^^^^^^^Z^li^p^^ to the true intent and meaning of such consent rule and of the nt,:r;r " -''--'' ^- ^^^ -^-^-t. ins^r;;!^ It is therefore ordered, That from henceforth, in every action of ejectment, the defendant shall specify in the consent rtW.f u^at premises he intends to defend' (,.Ld shI.Uo" e " "n ^uch^ ule to confess upon the trial that the defendant (if he defends as costs to the plaintiff in that case to be ta'ed M " '''" ^^^ («) Taken from R. G., K. B., M. T. i Geo. IV. W If the tenant in possession intends to defend hf mt,.f u^e .v MS. „.and enter into . ^^ J^^^ ^^S^^ - The defendant's attolv ^^^0^ and '°"''"'"^;^ "'^^ ^^^ generally adopted. delivers one copy to the plaintiff's IttaZT Tu i "' ""■ ^"'^ '">")« ''"d the other; either party theTobt ins 1™,"^'"^ ''^ ^'^^'"'^ *°' ^^ -'--' signed (see/... r^; ^t^,^:^^:^^ ^^ ^^^ '^ -' ^« gel?l?:e7:ndTa,^;:^^^^^ f was nec'es^ry that the plea (the " bers of one of the judg.. (E sS^l wh T /"'^'i''''"'^ ^e filed in the cham- ance was out. had'to LrchtMhel J SI f'?"!' T'*'" "'^ ''"^^ ^^ «PP-- r. I. requiring pleas to be deHv IT £ !?' '"f ''^ ''"'^ °^ ""• T^- 4 Wm. IV.. miliars, a A.'^. E. 38., ; tt i^ ihlf y ^/'r^ "„T'7^' ^^l'* ''^^^^^ ^ ^ ' ' ^- "• ^- ' Vic, after reciting the 2D. * L. 96). or .,« -^^:.,The rile^foV/ude^ient'hfv,-!, ^k' ''• ^""^^--"^ v. ^ may sign )udgment"-Z/«/4'x Pr led iLo» R,f i ^"§ ''^^" ^"*"«d. the plaintiff «a.d ifthe plea be not left wifh Ihe conS'ruIe^-the om' ^^f'- ^^ ^d-) 4. it is and then judgment m.ny )-.e entered fnr^^n e ' ■ P'^'ntiff must g,ve a rule tr. plead k. C;.. H. T.',649, aniT. l' 8 Car 11 'a edited' bu't^vi:^ "'^Z "'="°"^' ^°' ^^i^h m "'i: ^*^m i' ''. tf; m U.U n . i 34 TRINITY' TERM, 1 826. hi),I i-nicred with t 10 proper ollirer in 1if.r,.f,.f„r,. " Ti 1 ■ •„. ''''l'""'"^'- '"-"'K ... p-.. in .1. .LI or :".:,;;: ^^'^aL v '''• •'"^'•. « "A, 944), siKiie.l it, ■'""'■"«•• » ..■ ./.. !l C::';;.; .t;:" ; ."r;';"" r r';;' ' .V,,,,.,,. 4(J. n. 4i„|. ' 'J"'-""-""!!! /'.v. I. /,/„„,•,, ,. A |.™,,i,, .„ ,„„. ,„„„ ,„,. j„„„„||j, |„^,,^.,^,^, ^^, „,„i,i,rt„g „,, ,,,„,„, ,„ l:::r^";:'Tr :'y,:n--, -"-«■• ^,-". -»'• '«■• * -• (<•) In order to enable him to frame h.s consent rid.- h.> »„„ .r. :rr/;r';:;:"» ''"t'- --""'"'■•"«• -—^^^^^ ™;;;:;i.; ti^ ?:: s;: x;, irr""",'" ->- -^" -^ , * i' If .^'^l'^- h°«'fer, that the plaintiff should have the rule or at least th. arise. TRIMTV TERM, 1826. ^. pear (see /.w2vXi?'''''^J"'"'"«"'''''''^ '""'"' '^ ""-■ '<•■-"' «l- i>. appear. ju.,g,..::.MirSn .^;;.::;t ^i^'"^ r'^r "^" ^'^^^ "^-«'-' ance. hu. if ,he lan.llor.l shall ,le ■■ o e ." Z "'■"""' "' ^"^" *'"'"^■"• .he like rule the ,e„nn, n,„s, 1. Jen Li ,, ' " " ."?""' '" ^'"'^ '""" >»it hi.., 10 do so l.ul shall or,! . „ , r "PPfare'-' "'^<^"- 648; Av .1. //..M,/.;! V. ,. "; ^V';^' ;;f ;';;'^^-/ v-ant possession). Sel. N. i'.. V. /.awn;,r,; 2 W. I.I ,2Vo and M, ^'"jA"-'/ v. .SV<,«.. 3 rj. «. ,76; />,V.v- .0 .he sa.e 'effec. as .he a, v'e '^^1^ T/.'-Vm Tv' , ^'' ^^ '^^' ^'"^^ ''^ is ohtained by a party who is nmL In ^' > ' ' ''''"'•- P" 93)- If « M.Ie 1- set aside wi, l'tr(VJ /"„ T' "'""" "-^ '"^■""'''« "^ "'<= ^0., it will Adan,s' Kjct. (3 ed ) 26. A- d , " 1"'^"' '' ''"' ''• ^^'"^""'"^ ^- '•'>/''"-'. ./.>.,, 4 Scott. 70 „r f'hf ■• " :• ^'""' ^ V- & J- 88 ! ^"^ - low^Ut the't i'a? ; et pi Z^ZZ T ^t T "^''^""""•' "^ ^"' ""' '^ »'• necessary (/>.„ v. /W, , AI 6 ' > -.n^ ^ ^ '?' ^'"=" " ^"'"'"^"^ °' ^"'<= "'^i i« pie. Within the ti.e li.'i.fjfo^lf ' .^a; t^;;:'; '"^'^^" ^'' ''' ^^^^ ^"'« -' 65S II t£:;:: •; r:^:v^:;rr' ^ivt^ --"- <- ^idd. Kor.. ~ profits, in which . ey aHcovSr: K , J' "T'^ ' '^ ''^"°" ^- 650); orifhetln I,rtLTiaT'Z t ""'''■ """"' ' ^"• &c he proceeds on the con:;„?::,:'t I c 'n / :t'^;"Rlr^.8lr '^^ '^^^'' in lieu thereof, under C. S.. c. 38 s 36 ^ "' execution sucr::acte:f:rti;:r:,',i:h"'^"^"'' f" °"'^ '-^'-^^^ ^- '^'^ -- '« ^y against the nondnal ..air(Xt'.^/r4:7K:r:;'^S t'"/ .^ ^ ^ ^.•n 3 Taunt. 485). To obtain the ntfarhmenuh^'cos^ f ' ? ' . ""'' '^ ^'''' fees established by R Hil 187^ ^,./ _" ,"^ "'= ^^o^'^ (made up under the table of *Ji I I: 36 TRINITY TKRM, 1826. and ex nln.mR the ..r.Rinal, ,„ ,he party pernonnlly. nn.l ihe roMs „, ,hc «mr ,i„„. .lo,„«,ulc.,l. NVI,c„ ,hc action in ImoukIu I.y «„ infant, wlu,. it seems is not I Lie . an «t,;K-l.nu.n, (/•/....,„, v. /V,v,>..,/. ,U.n. ,8j,. procce-lin,,, will h ,„y I :^ ^ unty fo.. costs 1.0 g ve„. or „ s.,l.s,an.ial pcson .sul..sti.mcd Ir the ,„ , nl In iff • and .SCO Av. .1. .■„,..,. v. AW.r., 6 I, owl. 556). As a .Icfondant . „ r o wise obtain Ilk.. «,.,.i.,i.„ i V ^ ' ^^'' ''" ""'y- P^'f'inps. '" sucli , r l,r. I ^ ^ """' '""""'-■'' "'" '■'•"' <''■'■'•"<'«"'. ">'.UKl' 1.C I.C no party .. t.c .ecord nmylH. compelled ,0 ,. ay a.,,. s -see Chit. Ar.l,.. 8 nl., 956 • /i,7 TijixiTV Tkum, 1827—8 CJko. IV. H'n'/s of Error Coram Nobis. It I;o«U)Ekei>. That he.iccfcrth no writ of error coram nobis {a) shall be allowed but in open Court, and then on affidavit of the error to be assigned. (.0 The Court of Chancery out of which this writ, as well as that for the removii of causes from mferior courts (J/,7A- v. JW. 4 All 2w /<•/.«,,•.„ / '"\7'""^'" "^ K.n...r.. a.,U.^.r, . Kerr. 4.4; nvj^l /'; A ;:. '^Jvli^lr In the Roya „,struct.ons to CoIoni.I Ciovernors, issued prior to the Slat. 3-4 Wn, IV c^ 4.. .stabhsh.ng . the Judicial Connnittee of the hivy Council." „ cl use w nse ted gn.ng an appeal, in ,he nature of a writ of error. J, ,|,e Supreme Cm r. L the tourt of the tlovernor and Council (see C#« v. Af.,rsA, 3 Kerr. 427) butTthe .nstruct.onss.ncc issued no mention is „,ade of appeals (see' A//,, v." S^' "i ! /7.h L ,S« ;1 All ' \ ' ' '';" '■ ""' •■^"' ""• °'"*'- '" ^^-'-" "— HiLAUY Tkum, 1828—9 Geo. IV. JVo/ires of Trial and Inquiry, 1. It is ordered, That from henceforth there be at least (d\ fourteen days' notice of trial {b), and for writs of inquiry (.), in al cases, whether the defendant lives within the county where the Court sits or not ; any former rule {d) o{ this Court to the con- trary notwithstanding. imu " ,. J. • - v.. ^., L. J,, s. !57, rTrftr, p. 4.). East, , ; Hatckd.. Gnffiths, 2 Salk. 645). have been had within four tern.s (CoiJt i '.' i*l M HILARY TKRM, 1828, R. I. 37 J't |,.vcM .,r 1 K p,aint,n ,, .„t,.„tiun I.. pr-mMl („..te to R. (;., K. II., M T a Ann \ ..Mjo.^usc I. .„..„„ ,.,. ,„,, „, „„ „.„ ci J. «, which i, couhl . rU;r5,^S: ..f lonn nn.1 after the emi ..fthe tern, notice of trial may U- len (Chit A ch 1 7 V "ii^Tlt^^T '" '''"::• ;"""«'• ""^ "'"•^ •- »'-" -■"'« -^ --"•^^t (r;,,/,. 1 y .s CI... 1. Acts .23). or or-Ierof „ ju.l.e (r..V„, JT /V..,/,.., ,6t ].., N. S .„, 2 Kerr, 375; sec S/,,-/,/,,;;/ y. /{,„/,;■ i I) & R ,,v -pi, ' '"-"^ v- /^"'""A , where four terms have elapse.) (.]/■,/;„„„/,/ V. /■//,„ U . ' ' '^-''''"*'' -^^'i^". names, I-li; y^./j/^;-;/ /7 A. G V. .;.W^ 4 Kxoh. 502; C7.v«..,. V. /M.ns.,C. L.:r 745 Daytc L K Acts, 3 cd.. ,26), or the defendant .ay b. in default U'.,; y. /W^T^xch hi 38 HII.AKV TKKM, \»2H, U. 2. ¥W 249? .VAm,m v. 7-A.- OWen,or 6-- C„. of Ih, Cof,,,,,^, „ Kxch. 205; ,■„„/,„. ,//,/,.., v. //,.,„„.„... 4 l». \ k 327). or ,f the .lefemlnnt. nllhough present, neglects to have the jury sworn nm to c an„ a nonsuit ,/„.,.,/, v. r,VA,v„. ,0 W. K. K,,U., 354 ; .SV,„//, v. 'vL/,,,/, a 1.. J.. ..... 3,2; Day. C. I.. P. Acts. ,27 , Rose. Kv.. ,3 d.. 29S ; ^, how evn. / ,v V. .SA,././„w, 2 I-ugs. 298). Adefen-lant cannot move for ju.l^n.ent ,„. non- suit a.ul for costs for not procmlins to trial at the san,e tin>e ( //„„„„,.. v. /rV//,„„;,. 4 . * «... 2fK,). nor after moving for the forn.er is he. in general, allow.-.! t. apply (oy the latter on the same default ( /•/„-,„,„ v. ;»>//,;„„,,, Ti.UI. 9 d.. 789, .sy,vv„,. v. //,„„. ,//,.„. I Ian. 335 i ami see An„n„r y If.u,,, 3 Kerr. 300. where the motion for jvulKment ,/,/. nonsuU f.uled l^cause of a .lennnrer pe.ul.ng. an.l (,V„/,„„; v. ;/;/„„.,„ S All. 217 where, umlor siH;cinl circumstances, the Court it;fu*,l to .lisclmTKC the rule for costs of the , lay). Hcfore U. II. T.. 2 W„. IV. r. 69. the defen.l„nt coul.i. in the Kn,« s Bench, lu-st move for the co.sts ot the ,lay, and in.mcliately afterwards move for judgn.ent ,/„. nonsuu Clidd. 759 , 3 Chit. Cen. 1'. 782). In dischargiuB the rule for that judginent the Court will, in general, gnuu the co.sts of the day as pr.rt of the rule (,./.; /V,-,vr V. (W„, I Dowl. 3O2 ; .SW.'s y. r/,//v,/. 3 All. 262). Cos.s of the day are the san,e as ihos, which ane paid on the with.lrawal of the reco.xl ( ll<,Mrry. / „„, 3 Dowl S04). If cause has lxH;n made a ix-manet. the costs allowed are the costs of the Circuit only at which the .lefault was made ( Av d. .y/„v,.,W v. Sf.ui- /uu,.u 2 IVgs. 298). If a cause is postponed u,x,n payment of costs of the .lay. it is the duty of the plaintiff's attorney to use all reasonable efforts to prevent his witnesses attemlmg. but he is not bound to telegraph, unless the defen.lant otVers to pay the ex". l>ense. I he expenses of a witness (the plaintiff), who left Doston the day after the postix,nement to attend the trial, were allowed (OVA.v, v. AW/, yv,vy,>/, ^ ^/ /„, Co. I I. & H. 573), and see as to allowance of witness fees. R. Kast. 1849 r i » /H>st. The affi.lavit on which the moti.,n is ma.le need n.,t shew that costs have lieen actually .ncurrci by the .lefen.l.int (l\ncu-l v. /„m,s, 12 M. & W. loo). See the form of affidavit ^t „. to R. Mich. .859. C.sts of the day, awarded on .li.scharging a ™le f.>r judgment. y,.„.„ nonsut, cannot be taxe.l as ,«rt of the defen.lanfs geneml costs of the cause, in case be aftrrwar.ls obtains a verdict ; they must be taxed on the order discharging the rule {Sli/.s v. Gilbert, 5 AH. 166). Scire Fadas. 3. It is further ordered, That from henceforth all defendants in scifTfaaas have twenty day.s to appear from the return day of the scire fadas; and that, where a defendant appears in scire Av./., there .shall be the like time for pleading as in other actions m this Court (/); and that, in cases, where the plaintiff in scire faaas proceeds upon two ui/iils {g) returned, besides the entry of the rule to appear with the clerk, a copy of the said rule shall be ^^hu nil.AUY TKkM, 1828, R. 3. _ 39 affixed in s„mc cc,„.spicuo.s place in tlurclerk's office twenty ay on wh„.h such copy ,s so affixe.l shall be .narked thereon, in order to manifest the time ,*:-'::ira!i;;[;;:;i^:;:::;;''-';7'"'"'^'^*-"Mrt>..^ r,,. .touj,j„i e,i c Set', ,7, «;'",■;*'"■'""'''''' """"I''™ '•'»'' *.. 3-4 Wn,. ,V. c. 4,; \?34| " ' "' '' "' - "" " ^'«- «' 3'^. ~- '■ : Vic. c. 76, s. 128). •''^' ^' 35 Vic. c. 4 ; see 15-16 within .Icuy yeart!' ' ^ ^' •"""""" '"'«'" '"^^'^ ^^^•" '--' "« anytime Writs of revivor are also substituted for writs of sn f, i,, , ^ v wntis„owtobeservedi„therr.i„erdirecfe<; bye .Co ^^I'l:, l^J''.^ "^ such service is equivalent to a .^tum of ..../;v Z/ " Thl fV '."• >5»' '^. «"'l must proceed under these Acts (A-. v. //...wf ^Kerr! ,80 " '^ ""' ''' ""^ TaiNiTY TKiiAf, 1831-^2 Wm. IV. Demurrer Books, up'^Zcr'boorr " ""^ """^--"">' -«■•■•'= Exception to Bail. ofLT!oUce':f"bvVf '' '^' ^"""' twenty days, after servfce the notice of bail, to except a-ainst such bail ; and such ex cepfon shall be entered with the judge before whim bai was pu |n.or^towho.n the bail-piece has been transmitted, as the ca" ('•) By writing the exception, entitled in the Court and cause- I except against the.se hail. P. A., Plaintiff's Attorney ,« ., in this form, entitle.I in the Court ami ca'L ' '"" ' "°"" "^"'^"^ ^^:'^:''S''i:'r^^^!!^^:;i,^ <'e.ndant in this cause. Dated, on the defendant, his attorney, or the person who .rved the notice of hail ,R Fast R. a6,^ A^oticerfT::!!:::^?::!' ;/.;:;'''"; Tr ; '""''' ^ ^• not e.ept^;o ^^::::::::z:cz-.^^;t:^^^^^ '-■ '^ Justification of Bail. 3. That defendants shall be allowed twenty days, after service o notice of exception, to procure their bail to ju.fti y or to Idd (^/) other bail, who shall justify within the said tw n^days un less .„ either case, upon application made before the aid tw'entJ da^ys ^expire, the Court, or a judge, shall see fit to exten^^lli ('/) See Tidd (9 <-,/.), 258. 4. That bail shall justify (/) i„ open Court, or before the judge V .th who™ the exception is entered, notice Lf justiilTnl TI be,ng first duly (/,) given ; and that, in all cases, when The b^ res,de „ore than ten mile, from the place where they are to ,u ;, ^7 "T ' ' '"' '"^''''"' <'■' "■"«'■" P"»oriaLt,e„darce. ingll!"! """ "■"■"" '"»''"" '"'■"«- '» *• C™" «"-o. nn.l n copy «erve,l w.th Iho notice of Imil ( TM, 9 <•./.. 263 4 ; /W,r/,/. 342). ' * ."'. That bail must be housekeepers (y) or freeholders {k) ; aiKJ. Ill cases where the sum sworn to does not exceed three hundred pounds, must be worth (/) double the sum sworn to ; and in cases above three hundred pounds, must be worth three hundred pounds inorc than the simi swfirn to, over and above their just debts (/;/) and every oiiier sum for which they are bail (//), (/I See \\'it,o„\, IhuK 2 Dowl. 43,. The house, or sotne n.ain ,«rt of it. must be m the nciuni possession of the Lail (HM's Hail, . Chit. K. a88, 3,6. 502), ami within the J..r>sa.cl>o„ of the lourt (//,y^.. v. St^lin.^, ,, Pnce, ,58 5 ../„„„,. , ,)„^,. g,). (-f) The possession of long /.uuchoUs, of whatever vahte. is n.,t suflicient {S„nW. rliul, I Dowl, I). ' (/)Hail cannot justify on property which they hold in tru.,t ; it must Jhj proi«;rty wluch .s „l,sc^utey ami k-neticially their own (/Vr Chip,,,,,,,,/., at chambers , 7«. ./„/,•.//.»/, All R. ,8), an.l, at least in the cas.. of foreign Imil. it n.u.t bo within the jurisdiction of the Court (ChU. Ar.f,., 12 ed., 852). ("/)Circumstance^s raising reasonable suspicion of their solvency, render them inad- m.ssable (/.,u^, 618). An acceptor of a bill cannot be bail for the drawer (Anon., . r^owi. 183), but an indorser or drawer may be for the acceptor (/V/W v. B.tslty -i B N, C 391). •" •' (") Hail will Ik.- rejected if they are pers.ins having privilege of Parliament (Graham V .V//r/, 4 inunt. 249), practising attorneys (R. G., K. H., M. T. 1654 ; Anon 1 (-hit. R. 7,4), attorneys' clerks (A./,y,„-v. r„utrin, Cowp. 828), sheriff's officers. 'or persons concerned in the execution of process (R. G., K. U., M. T. 14 Geo II r 2) or bail who have before been rejected for insufficiency (SntlPs Bail, i Chit. R. 82). ' Form of Affidavit. tj. That the affidavit of justification shall be according to the following form, and may be made before a judge or a commis- sioner of this Court for taking affidavits. In the Supreme Court. Between, (S:c. A. B.{o) and C. p., bail for the defendant in this cause, severally make oath and say, and first this deponent, A. B., for himself saith, that he is a housekeeper (/) (,.r freeholder, as the case maybe), residing (q\^t (describ- tn^r^ructdariyinchiace 0/ residence) ; that he is possessed "of (r) property to the amount of ^^ (doub/e the amount of the sum sworn to, if under HILARY TKRM, 1 832. R. 6. 43 (<') The amil.ivit should now Ik; drawn In il„. c„ , Krn,,hH(«. Mil. .S;,. ,. ,, ,. '"" ' 'f firs. pors,,„. and divided in,,. ,,ara. or .1.0 .icpononts inir.cd /^ J;C.;';,^?':- ,:;;;;";;;:; -'•» ^^^'^ -^' "- -"".<..„, (/) HouHe-/W,/c7-.f, bad (,/«<„/„ , Dowl. 127). <-/) "Kesidinn," ma.erial (Mv,/,A //,„/, 3 „„^,_ ^^^, '*'iv',r™ ;;'.::■;;■• :;■■ •'■•;; -■■ -:::;rr:c; -«: °j.,tn"t l.owi.,t "" "™"' defendant" -.|,aa («.,.„,„ , ^^.^jj" ^ Cw/j of Justification. (") English R. G., T, T., i Wm. IV. pi. 3, (?') The rule will be satisfied by the delivery of a mf,,, k,,, .u ■ • . with the bail-piece the nnt.v ! '"-"^ery of a rr./)-, but the original must be filwl ::,*,« r.' 44 nri.ARV TKRM, 1832, R. 7. Ill; g! J w i! 5 1^ taxed from the cost* of the justification, which, tlierefore, Inicoine coiti in the cause, l)ut if the bail are rejectc.l, whether the nffKlavit, «tc., be right or wrong, the defend- ant pays the costi of opposition (/,//.(/;, 630 ; ATan'j Hail, I Dowl. 384!. Bail when pt-r/ecteJ. -Filin); Bail piece. 8. That, in cases of cxccjition, when bail have duly justified and been allowed, and a rule for an allowance {y) has been en- tered Jourt, or an order therefor made by a judge, and a copy of such rule or order has been scrv-cd on the plaintiff's attorney, the bail shall be deemed perfected ; and the attorney who puts in the bail shall forthwith obtain the bail-piece from the judge, with whom it lies, and file thr same with the clerk {z). \y) "Upon reading the affulavil of it is ordered, that the bail put in t.ir the (lefemlam in this cause, who h .ve thin day justified themselves in Court, be allowed, and the bail-piece filed. On notion of Mi. . . By the Court." (i) See r. 13, iiifiii. !>. That if the plaintiff does not except against the bail, within twenty days after service of notice of bail, the bail shall, in like manner, be deemed perfected {a) ; and the attorney who puts in the bail shall forthwith, after the expiration of the said twenty days, obtain the bail-piece from the judge, and file the same with the clerk (b). (.7) Hoiison V. Garrett \,\ Chit. R. 174) j TluivaUts v. Galliiigton (4 D. & R. 365). (^) See R. 13, infra, Exoneretur. 10, That in cases of render in discharge of bail (<:), the clerk, upon production of a certificate of the sheriff, to who.se cu.stody the defendant has been committed, that .such defendant is in his custody, together with an affidavit of the service of notice of render upon the plaintiffs attorney, .shall indorse upon the bail- piece an exomrctur, in the words following : " The bail within named are exonerated,"' and shall set down the day of the month and year of his so doing, and sign his name thereto ; and s-ich certificate and affidavit shall thereupon be filed with the bail- piece. (<•) See C. S., c. 37, ss. 28, 29 (Stat. II Geo. IV. and i Wm. IV. c. 70, ss. 21, 22), as to render. An Act in somewhat similar terms (12 Vic. c. 39, 3. 13), was held to empower sheriff's hail to render after the return of the writ (Jatr.es y. IVhite, 6 All. 431), Where an action was brought against the bail after the render, but before the service of the notice, the Court refused to stay proceedings, except on payment of costs (Dn^ V. Hunter, I Kerr, 499). An exoneretur will be entered, though the defendant escapes mi.ARY TERM, 1832, K. la 45 ^2;'; •^'>'owin« is Che .... of „„,ce o, .en.ler (^ c"... /;.., „,. ,.. ., \, .^. (/•///r ,///„. Coiof „m/ oiiw.) H J:;r """"• •'•;L:t?;;:^Z"f ;S£' -'^^ t '^'^ -v^ r- ""- the 10 [- " iM"J the comm,,; gaol, ?, .he o mv of " '''"'«'■ "^ '''' *""' '" """ "«'«"• the honorable ,Nfr. Justice 'h "7 ' .' P"""""' '^ an o„!er of l«en duly lo,lj;e.l will, the K'nl,, of 'the sii.l .,,„l , /, j,' ""'' "l!'' 'l""" ^''''' ""''-'r ''a- that the sai' ^' " "« ''f the It should, • , .„s, be signed by the defemlant or bad. as the chus. „, . ture by ati nn"v is ■■ -;»»»,! ■» .1,. /• •_•. clause as to sji-na- .'/<.W/, 6 AlK a,,,; ^ "• ••'*'''• '''=^>^^"" ^- ^''-^•. "'/'•" •• «^'/-/ V. 11. rhia hcrcai cr prncccclin^^s a-alnst bail, in any action u,)nn he ..CO,, .anc^, shall not cease, as provided for iu Tr2Z h.s Court .,. M.chachnas term, one thousand eight hundr d and wenty five (./). without the costs incurred in sucl^ction up to the time of notice of render beintj first paid (.). ^ ''' {<' ) rlH(,, p. 28. 1846 ; All. Rules, 20). -""V'//", K F. .846 ; .S«//„,„« v. .?,«„//, M. t. Inconsistent Rules. „f ',LI'"" ''"y/"™" '■'"'=■' "f *'■' Court, mconsistcnt with any of Acse present rule., relating to bail, shall be hereafter of no Filini^ Bail-piece. tho 1?"' ^"^ ^"u '"'^' ''^° ''^^" "'^^^''^^^ ^° ^■•^"••^•^■■f or to file the ba.l-p,ece, as the case may be, according' to the forelin ' '^:::7^:^. '' '' ■" -'-^^ ^^^^' ^-^^ ^- s": Tkinity Tekm, 1832—3 Wm. IV. Trials at Bar and Nisi Prius of !h.-' r''''?^''' "^^'i '" '"^"''^ ^" ^^"^^^ f- *"'-' -^ the terms of th.s Court be entered with the clerk at or before the opening •'f ) i' 11 11 11 \IU- 46 TRINITY TERM, 1 832. 11 '!' of the Court, on the first day of its sittings, in like manner as the rule is at the Nisi Prius.and that no such entry be made after the time so limited, unless the Court, under special circumstances, shall see fit to allow the same. And it is further ordered. That hereafter, as well at the terms as at Nisi Prius, trials shall be proceeded with on the first day of the sittings of the Court, in the order in which the causes are entered, any usage to the contrary notwithstanding ; the (a) first cause not to be called on before the expiration of one hour after the opening of the Court on such first day of the sittings. {a) This rule, with the exception of the concluding clause, has been superseded (A//. A'ules, 14 ;/. (r,); it is omitted in the revised edition. See R. Hil. 1826, r. I ant,- p. 29, Trinity Term, 1834—5 Wm. IV. Summary Actions (a), 1. IT IS ORDERED, That the writ in summary actions shall be on parchment, according to the usage in this Court in other ac- tions. 2. That in every action which has not been agreed, and in which it is intended to proceed, the plaintiff's attorney shall file the writ, and enter the cause at the term in which the writ is ic- turnable, and shall make a docket of such causes, and deliver the same to the clerk, and pay the fees in like manner as in other actions. 3. That in actions to be tried at Nisi Prius, the writ and plea shall be delivered from the files of this Court to the plaintiff's attorney, and shall form the record, and be filed as such, at the Court of Nisi Prius. 4. T'lat the result of trials at Nisi Prius shall be entered in a brief and summary form, according to the circumstances of each case, and endorsed on the writ, or annexed thereto, in the nature oi^postca, and returned by the clerk of the circuits accordingly. 5. That the clerk of this Court shall not, in any case, sign final judgment, unless the writ be on file in his office ; and in every memorandum of judgment there shall be reference made to such writ so on file. m TRINITY TERM, 1834. _ ^ 47 V. ^/.Z.«,, 3 All. .64,10 be nottnfireS to " " ^"''" "" "^'''^ '" >'"« it is. therefore, so far L it X " o ol r""' ''"""^ '" ''^ '"''^^""^ ^'°"«' judgment in that case, C.LrC, T ^ "IT' """'"''''''• '" ^^"-""B '^e have no doubt it wou d ^n ,e eitt'rT/". '' ; "^^ *" ^'^ ^''"' "^^'"^ <='-- - bro.,ht Without this aur -t :rs^rv^;L^r.5r rr''^"^^^^^^^ jDavi^s V. vfK/^w, I B. & Ad tSc . /f/ • < . ^^"'"/>^, '3 M. & W. 702 ; Doe d. »' «, 3 o. i Ad. 7S5 ; /f/;7,,,, V. Cas//e, 3 Meriv. 12."* If the plaintiff' after thtu" o th ."!: "'*' '"' ''^"''^^ «" ^'«'^^-^- the defendant ca'nn ^h e f^ a ieM^: T- "'I "''""''* ^"- °^"^-«o-ey. An application by a Dllimiff rn . ^'^^'^^'^'/Y"""'^^ ^"- "■ '^^'"^' =^ ^^ ^ B- 665). pass, ,. . / brought in li f ' ' * J"'^'"""' "^ "°"^"''' '« «" ^'"'on of tL- refuid^hoihTe'd/no 1^1^^^^ '^^''°'» '"= "^^^ ^^ 'he land, :Ss received the 'purchase mle^and" i JT ^r S^^^ '\ ''^"°"' ""^ ''-'"^ plaintiffon the record before thA! ^*''' '° '^'^ ^""^^X "^ the the bill of costs, pis^d to i '«::Z'"vn. i^'V"'""' r- ''^'" '-"^'^'"^ ^-^(^:ir^:-::7S^-----^-« - .. panels dence to the contrary, tL the attl l^ ^.P'-"»'"'=d. in the absence of evi- supra), ^' ' '^^ """"'^y ''^d * ^'-'"^n ^uthoHty i/ames v. ^.Z.«„. Michaelmas Term, 1834—5 Wm. IV. Speaa/ Bail— Commissioners s, \m 't -1 'i| 'WL ' ("i1 tf'il 48 MICHAELMAS TERM, 1 834, R. I. their place of residence ; and further, that always, during the sitting of the Court in term time, it shall be irregular to put in bail before a commissioner in the parish of Fredericton, in the county of York ; and that no judge do n-ceive any bail-piece, transmitted to him, in which the bail may have been entered con- trary to this rule {b). (a) Appointed under 4-5 W. & M., c. 4. County Court judges are, by C. S., c. 51, s. U, cons' ituted ex (J^/fw commissioners for taking bail in the Supreme Court, in the several counties for which they may be respectively appointed. (b) Special bail may be put in and perfected according to the established practice (C. S., c. 37, s. 30). See as to the time within which bail should be put in, and; p. 21, and as to the qualification of the bail, uiih; p. 42. For the purpose of rendering (see R. Hil. 1832, r. 10), one bail is sufficient [Duncan v. Barnes, 6 All. 172, overruling .Stt-imrd V. Bis/i>/<. Barnes, 60), but in other cases there must be two, and two only, unless where the .ebt is large {Jell v. Doui;lass, \ Chit. R. 601). The county, in the margin of the bail-piece, must be that into which the writ issued, but bail need not be put r: in that county \Moore v. Kenriek, 3 Bing. 603). The bail-piece is engrossed on parch- ment, in the following form (see as to amendment, Estey v. Bmun, 2 All. 527 ; Riorden V. Dunn, 3 All. 124) : 11 ., f In the Supreme Court. j On the day of A. D. 18 . , [The county in the writ) to wit. C. D. (defendant), is delivered to bail upon a eepi corpus to , ( E. F., of (residence and addition), . \ and ' _ { Ci.li.,o( (lesidenee and addition), i Oath for $ ) ' D. A. [ Attomeyfor the defendant. ) Taken and acknowledged, condition- ally, at my chambers, in the day of A.D. (or, if fie/ore a Commissioner), at in the county of , t'n day of , A.D. 18 Before me. A Commissioner. At the suit of A. B, 1 On attending the judge or commissioner with the bail and bail-piece, he will take the recognizance—see the fomi, C. S., c, 38, s. 3. ITie commissioner's fee is 2s. ster- ling. If put in before a commissioner, the bail-piece, and, annexed thereto, an affidavit of the caption stating— "That the recognizance of bail or bail-piece, hereunto annexed, was duly taken and acknowledged by E. F., of , and by G. H., of , the bail therein named, before , esquire, the commissioner who took the same in n»y nresenee, the day of , instant," is to be forthwith transmitted to a judge (R. Hil. 1832, r, I, ante, p. 40). The bail MICHAELMAS TERM, 1834, R- I. 49 having been thus put iii, a notice thereof, setting forth wi^hT^h T '■ names (SmM v. A/M,,,, r Taunt 8-^> 1h 1 ' T. ''"'' "dainty, the well when put in befon. a co.miLio'n^r R." HiM , " ^f "I ^'""•■\'''^' ^SU. in before a judge (R. G.. M. T 16 Or 11 \i^ ' P' '♦°>' =*' "•''^" ?"' ting in bail (sefA.,. J. ^^I^ D ^l 4' T" e .fTl ''"" ''^ ""'^ ^°^ P"'" plaintifrcannot,afternotice.reguladvTL^?' ^ ' "°' S'^'^" '" '''"^' '^"^ '■«'• 253). fegularly take an assignment of the bail bond (/>,/,/, g ( me of the court and cause.) ^^""^ '^ ^''"' "Take notice, that special bail was. on the ^ r for the abore named defendant, before the honor^hl. M ^ r"^ • ' '"^'^"'> P"' '» esquire, a commissioner annoinfwl tr^ t,b„ u '1 • , , '"'' l^eiore the names and additions TsuS baif are E F '"t ^ '^f •=°""'y "^ >• ''"d i^-^ 0^ (residence and aMitionS Xifh^fn^.^ i^. f., ot (residence and additum), and G. the affidavit of the taking Sfee^^rir'T:;' ""'"':""^ "'^ ''''"■P'^e, with . [//«r..;,,^„.wXV.tw//l?J!? .'° L^*' honorable Mr. Justice r. 7, onte, p. 43). ../. & W: 281). Notices of Motion for neiv Trials. 3. It is ordered fr). That in future, the attorney for the party intendin^r to move for a new trial, or for setting aside a verdict ("/), shall cause to be delivered to the judge before whom the cause was tried, a note, rn writing, specifying the name of the cause, the time and place of the trial, and the gaieral grounds (^) of the intended motion ; such note, in writing, to be delivered to the judge in causes tried in vacation, on or before the first day of the next ensuing term (/'),and in causes tried in term on or be- fore the Monday in the second weeic of term. (e) See R. G., K. B., M. T. 40 Geo. III. (/) Even though the point be reserved (flaherty v. Sayre, Bert. p. 84 ; and see Turner v. Hammond, 2 Kerr, 536). ig) The notice must now state particularly the grounds of the intended motion. See R. Hil. 1^67, post. 42 Vic. c. 8, s. 10, enacts : "In cases 'ried at the Nisi Prius sittings, or at any Cir- cuit Court, it shall not be necessary to move for a rule to set aside the verdict, or for judgment non obstante veredicto, 01 for a repleader, as is now the practice, but the party intending to move the Court shall give notice of motion to the judge who tried t'le cause and to the opposite party, or his attorney, and shall also deliver to the opposite party, or his attorney, a statement of the grounds of the motion, and the authorities relied upon, which shall be printed when the same exceeds five folio, and shall file with the clerk of the pleas five copies of such statement, for the use of the Court, on or before the first day of the term so next followir^,' the trial, provided always that the Court may, for good cause shewn, extend the time for the giving of such notice and statement to a later day in the term, or until the term following ; and provided fur- ther, that the party moving may, with leave of the Court, cite any authority which may have been given to the counsel or attorney of the opposite party before the cause comes on for argument. " Sec. II : "All causes in which statements have been filed with the clerk, as in the preceding section mentioned, shall be entered on the special p.iper, in the order in which the statements are so filed, and shall come on for argument in the order in which they are so entered, without any rule nisi having been granted, provided, that when the Court shall sit in two divisions, two special papers shall be made up, if necessary, so that each cause shall be heard before the division nf which the judge who tried the cause shall be a member, as herein provided " ' ■ • ... 2). Where a counsel fails to make out such .. ..»t- -3 ■ ..uld have entitled hirn to a rule nisi under the former practice, the motion wll he r • ed, without hearing the counsel for the opposite party (Peahody v. Norfh l"-sf Boom Co., 3 P, & B. 495). The Court has no power to extend the timt for giving the notice, &c., beyond the r'v MICHAELMAS TERM, 1834, R. 3- 5» term next after the : cause I new trial (A/u//,„ v. /■ros^, V. r.,„ ,y.,w„, , pt:;:f,^' ^'""" " *''■ .1.0?.:.™:,'; X'^'?,;r,SA;r;,r .t' "' " ™'" "■>• "-- -^ <7/'//^ ,//"///,. fo,^;.^ atidfxuse. ) following grounds : ' "'^' ""^ jutlgment may be arrested], on the ln\ lhi!"''"'°P' rejection of evidence. the evitli'nr.. nT (■ r> • ^n . ' . II. " n^Sl^^ioi "■ "•• '" ="' -^'"^ "- -'-- «o state (^..,. (rt) In telhng the jury that ' ^^c. ). J In not directing the jury that (&-<■.) V. -V^l^^^'SnSt^^llr J:- i:^Jj""«^ - P-""' - -endment by (^., '''• t-xcessive damages. Th'^V^''" ^""'"S the grounds, according to the facts \ The following authorities will be relied on. -^'"'^ (//) The remainder of this rule is obsolete. ^" ^" '^^''""'""''^ attorney. ' i< ♦ /fM Michaelmas Tkkm, 1835—6 Wm. IV. iV/« /V/Vj Sittings. say : S.tt.ng, after Hilary tern,, on the third Tuesdav n fI ary i sutings after Trinity terra, on the fourth TuetdTyin lune s,t,„gs after Michaelraas term, o„ the fourth Tuesda^,^ Octo-' afin IZ '''P^'f "'■"'■"^^ '° "^°"«""= fo' » long at le ^^^:t:rz;LZ^^!i^:^^ -- nt (a) Appointed under the authority given by <; Wm IV . „ a,. • Umes for holding the sittings were mL'e by R IZ^'Z, / f ,. f ""!""' '" ''* Vic c. 19, and 22 Vic c 2 nr,m ,k a 7 ^^' ^'■i*''^'^' ^"<^ ''' ' c's 17 c. 33. s. 2. under wl;:hth -si,':: y!ifcS:"^ "^'^f ,^^ '^^ ^°"- ^'" •• -'^- ^iiiiiijjb ar.n vircuits arc now held. 2. Ordered, That the sheriff of the county of York do „. and return grand jurors and petit jurors to 'atl^at fhe sTv^l I if w ^ r»3 MUHAF-:i.MA.S TKRM, 1835, R. 2. 1 4A" i- Irv 41 , fj 111 sittiii},'s ill that county, now appoinin! or h«rcafter to ho appointed, in like manner as has been hen; .ri,r<; ;,ccustoPic(l iih regard to the terms of this Court (/») ; and riiut hcreafttr no ivisjfs be sum- mosiod to attend at the terms without .spctia! )tdcr U). (**) Si'c C". S., c. 45, s, S. (r) Whc-n n trial at l!:;r may In- hnl mx i Ch. Arcl,. (I2 /.r, i Ilan. 437). the rr«//v i.s to be issued to one of the' coroners (C. S., c. 45, s. 12), or if all the coroners be disqualified by any of the above cau.ses to two elisor.s, to Ik- appoinf.'d by the Court ; in sufficient time before the Cir- t-uit to permit of six days notice being given to the jurors (Mw B/d. A'. A'. Co. v. Mur- niv, 2 \\ & H. 43 ; 3 Chit. dn. Pr. 799). The defendant cannot pray process to the coroner, because he can challenge {Co. Lit. 157); but the Court will, on his application, in a case where the objection to the sherilT is not a ground of challenge, as where he had married the sister of the person who was security for costs, and who aided the plaintifl' in carry! ; on the suit, award the vinin to the coroner (Mitnfiison v. Marks, sii/nt). If the defendant wishes to rely on his strict legal right to challenge the array, he should, on his challenge l>eing overruled, mos for a vtwn- cic ttovo instead of a new trial {M-!o fit A'. A', v. Murray). The writ in common use in this Provinc. . he following form (see Chit. Forms, 6 f,i., 73 . Tidd's Foifiis, 2S0; Hazftt v. /.■.■. «, t All. 580 ,^ 3 Chit. Gen. Pr., 707 '• ^ Hil. 187s, r. 2, Form No. 3, ; , ' ■■ MICHAFI.MAS TKKM, 1 835, K. 4. 53 •'•■•"■..el^-f..,.Mlu.|,..„..ml,K. J" I .rM-.i.^^^T;"'?"'' >""• "'"' y"" ^■•'"isf '"'I;' '1.0 ci...,i, (•„„, .„„, ,akJ H.i ^J;;:';^;? i';?' '-'^'j ""• '.'"<•-. n-itnc^l"" '"■'"■r l..•.*...., .he par.i.s nforcsaicl. i, ^!^-p;, ,.'- j..r.. .n., have .h.e .hi'iiijtr ^^ iis^-^ ^--;;: ";^;: «oul,l seen, sunnuon .won,y.,,„e (Z" j^J. '"' "' """ ''^'''''' '''"" ''^' ^'-"<'' i' suihcicn,. „n,: .ho plaim^ J U , rv T ' ' """'""" "■'"'■' '" "^ ""-■ '-^ '^ linn. 261). "'" ""• ''"'"»KM nssc-ssed (J/^A/niv v. C,//,, , 4o'lr^^nJ'''' ''' "^""^ ^""^^'""^^ ■•" ^^^^ Crown aj cr and .spec a 1 paper, respectively, shall come on to bcariTucd on the .second day ,n each term, any former rule (.'Mo the con trary notwith.standing. ^ U^to mc con- (,i') K. Hil. 1826, r. 3, j/. ' 1 J . *n(i see K. Hil. 1836, r. i. and K. Trin. 1846, Motions far new Trials (^) Sec Or/iWM'd v. Aforrhiy, I P & IJ 3 4. Vic. c. 8. ;j;o:;ri:r; s^ ■" '"'^ °"'" '" ^'"^" ^"•^^ «- -'---• «- ^^.n..j.. ,^^ .He Queen. Bench. pHo. judgment w..s actually .signed Ij^^^: fl f ^^"^ ^'" '"^''^ ^' ""y »™« before (r«y..v. '^'^.v.w. Dor;;;;^™;^', "''"" '"'" '"'' "^^^ ^'-'-««^ *or the time for moving to .t aside an award, se'e r. /;. note. /«/... ^.r.^.rf;/,«,/ ^/ Damases by Judge. made to a judge ,n vacation after judgment by default, to make '(. -Si* 54 MICHAELMAS TERM, 1 855, R. 7. ill!. ! . I" -If inquiry or assessment, under the Act of Assembly 5 Wm. IV. c. 37. »• 9 {i)> there shall be produced to the judge a certificate or memorandum of the day on which interlocutory judgment was signed, or judgment by default entered, signed by the clerk of the picas or his deputy ; and that no such inquiry or assessment shall be made, unless such certificate or memorandum be so pro- duced (/). (/) See this Act, /osf, K, Trin. 1838, «. Damages cannot be assessed /// caaition before the expiration of twenty days after judgment (C. S., c. 37, s. 115). (y) The cause of action itself, as stated in the declaration, and the right to some damage m respect of it, is admitted by suffering judgment by default (£„s( India Co. V. I.utimx,,, I Stra. 6i2, and see 2 Wms. Saund. 107, «. 2), consequently, if the de- claration set out a contract, whatever it be, the contract is admitted (McDonald v. Cumminss, 2 Pugs. p. 289). Thus, if in an action on a deed, agreement, &d., it be expressly declared on, it need not be proved {Hasluck v. McMasUn, A. C, MS. 5 ; Collins ^. Kyhot, I Esp. 157; Co'pery. /Hick, 2 Q. B. 915; Shf/uns ^. /',//, 2 Dowl' 629; DcGaillon v. VAigU, I B. & P. 368; Shepherds. Charter, ^1. R. 275), nor in an action on a bill or note, is it necessary to prove any allegation in the declaration, stating the plaintiff's right to sue (Cnw v. Heanu; 3 T. R, 301; Anon., 3 Wils. 155; Beiiis V. Lindsell, 2 Stra. 1149), nor, since the new pleading rules, even to produce it (Lane v, Mtdlins, 2 Q. B, 254), unless, perhaps, for the purpose of getting interest from the time it became due (Hutton v. Ward, 15 Q. B, 26). It has been held by the. highest authority (Doran v. ffRcihy, 5 Dow, 233),. that an averment in the declaration of the sterling value of an amount of foreign coin sought to be recovered, though under a videlicet, was admitted by the judgment. Where the claim is upon the common counts, the admission has very little effect (see Falls \. Sargent, 3 Kerr, 248 ; distinguishing DeGaillon v. L'Aigle), and it seems that in such actions "the plaintiff is not, in .strictness, rtleved by a judgment by default from the necessity of proving the delivery of each article, or the extent of the work done, or the particular sum of money paid, though certainly, in practice, when a de- fendant has not, by plea, denied the plaintiff's action, there is generally a strong feel- ing on the part of the jury, when executing a writ of enquiry, to be satisfied with slighter evidence than on a trial" (3 Chit. Gen. Pr. 673). In Falls v. Sargent, supra, where DeGaillon v. VAigle, I B. & P. 368, and Chapel v. Hicks, 2 C. & M. 214, were considered, the defendant was permitted to shew that he contracted merely as the agent of a third party, to whom the credit was given. See further as to the extent of the admission, Hasltuk v. McMasters, A. C. MS. 5, n. (a), and the cases on the effect of payment into court cited, Ros. Ev., 13 ed., 77; Tayl. Ev., 7 ed., 694; 2 Chit. PI.. 17 <•(/., 448; Bull. & Leake, 664. . When the amount of the plaintiff's claim is not admitted on the record, the necess- ary facts must be brought before the judge by affidavit. In Scoullar v. Wehh (I Kerr, 520), the affidavit, to which an account was annexed, stated that "the whole of the arUcles mentioned in the annexed account were soM and delivered to the above named defendant at the prices therein stated, &." (qn. by the plaintiff), "and that the MICIIAKLMAS TERM, 1835, R- 7- ant^s application, on his o;„ai::orn"s"T'"r° ^'^'^ '^ -*■ "^""^ "^f-'" thereon, on the groun.l of falsity „f ,h' ,ffi , ' •" , »^'*s»n'«'nt and procee™Pe' agal^t:^r^::^^f^^^;-;{^^^^ Clare against him by that name sEaS, L" "T '''' P'^'"''*^ ""E^t to de- writ. Adefendantisestoppedby h Sri!' « "'^'"f .'>- ^'^^'^ ^^ - sued in the 4 -ng name iCauforZ. slZ^rSu iTs r/^"" T' '^^^^ ^"«^ "^ . -! aira. 1218 ; />j>J«- v. A/aff„aj>, 5 M. & G. 5<5 MICHAELMAS TERM, 1835, R. 8. /7B): an.l, iti ar action against Mm by his true name on such a judgment, it is suffi- ci«jil to nvr that the defendant and "A. B." (the name in the judgment) are the same person ( 1 w/«,f v. mvilmk, j Kerr, 554). If the defendant do not appear, the \A An- tiff may, it sei-ms, declare against him by his right name, stating in th' declaration that he was sued by the wrong name (1 C/iit. Arch, 12 etf., 226). Where the process is bailable, and the defendant, in a case not within C. S., c. 37, ». 164, supra, is arrested by initials {A\y,wl,/s v. Hutikiii, 4 H. & A, 536; Parkir v.' Bent, I L J., K. B *' • " '<:t!li v. Chalterty, id. 56), or by a wrot^ Christian (CMim V. Ltvso, . 2. Duwi. 381; Smith v. Inn.s, 4 M. & S, 360; Wilkes v. l.onk, 2 Taunt. 399), or surname, not idem sonatts (IVebb v. Lrence, I Cr. & M. 806 ; Ahit- My. BenidUto, 2 Taunt. 401 ; IJomaii v. Tidmarsh. 11 Moore, 23 1 ; Di-kenson v. Bmues, 16 East, llo; R. v. Shakespeare, lo East, 83; v. Rennolls, I Chit. R. 659, »/.; Ma(dmald\. Mortloek, 2 D. & U 963; R. v. Calvert, 2 C. Ix. M. 189; SAaw V. Titherleigh, 2 Price, 328)5 or without a Christian name (il/a;-^vto« v. rugghe, i\~)o^\. 9), the Court, or a judge, will order him to be discharged out of custody, or the bail- bond, if any, to be delivered up to be cancelled (I Chit. Arch. 767 ; Ladbrooke\. Phillips, 1 II. & W. 109), and he may maintain an action for false imprisonpient (Pinch V. Cocken, 2 C, M. & R. 196; Clark y. Laurence, 3 Kerr, 152). Tlie application should be made, it seems, before the expiration of the time for putting in bail (Tucker v. Colegate, I Dowl, 574 ; Pirley v. Ralletl, 2 id. 708; Pimties V. Stokes, 4 /,/. 125 ; Netunham v. Hannv, 5 id., p. 263), on affidavit, entitled (as should be the summons Nathan v. Cohen, 3 Dowl. 370* in the defendant's rig' if name, "sued by the name of" the wrong name (Pine / • cker, 2 Dowl. 383 ; Junv v. Robinson, 8 D. & R. 423), and stating the misnomer with the same certainty i',i is required in a plea of abatement (Thompson v. Oviatt, 2 All, 118). The plaintiff may oppose it, by shewing that the defendant ha.l ntlowed himself to be called by the name used [Nf.oUm v. Alaxivell, a C. & J. 215), or has, on several occasions, gone by that name (Walker v. Willoughhy, 6 Taunt. 530; Mestaery. Hen., 3 M. & S., p. 453), or has representee! aich name to be his real one (Morgan, v! Bridges, I B, 6: A. 647 ; and see Brunskill v. Robertson, 9 A. & E. 840 ; Pisher v. Magnay, $ M. & G. 778), or the he was known as well by one name as the other (Finch V. Cocker, 3 1 )wl, 678. Evidence that he entered into the contract, which is the subiea matter r he action, in the name by which he is sued, is, it has been said, sufficient to support ilie latter allegation ( Walker v. Willoughby Vnoton v. Maxwell, supra -, Gould v. Barnes, 3 Taunt. 504), but see McLellan v. MUlmore, where an at- tarhment, designating the defendant as "A. P. Millmore," was set aside, because it .as /ot alleged in the iffidavit on wh - :i it was grounded that the defendant signed the note by that namt, .nd see Lush, 597, where there is a o'lMry, whether it must not be stated in the affidavit that the pa'iy signed his nar^ve in that way, citing Worley V. Cunningham, 8 Dc .139; HiUvrty. Wilkins, i'i ) The Court hel^', in McLellan v. Millmore, that they > ould not assume that either a vowel ora cr nt i-- il could be the def- "lant's name,* and that affidavits shew- ing that the n aed /as in fact so executed, could not be used to aid the origi- nal affidavit- & , jI. The English k. G., H. T, 2 Wm. IV. r. 32 ; Practice Rules, 1853, r. 82, has never • McMonagle v. Grant (3 Pugs. 231), contra, viras not cited. •ql MICHAKI.MAS TERM, 1.S35, k. 8. . 57 been acted on tliis I'lovince ami ii i« „^ , — " - -no..i.ove..u.e..e„:;:';;,:^r;:x:,^T^-'"^' "- '""'^-- - been th:i-;net;;:-:;;r'^r;;..:;:!:;'^^^'" -— -^-^ "^ is...,,,.., , or cancel,.,, „. baif bone,' a ',::" T''^ ".•ylischa,.,. .„„ ,, ,,,,,^,, also as sued by the wong one. H f ^ S n', nT " ""7* ''^"■"''-'« '"•"-•^ Christian name, and la- .xecmes,lu.b!irb. ' ;"■'"'"' ''^ ""= '"'""''^ "f his '"■'»'. 2 B. & P. 466,, the Court or jud.e JiH tten ^f''. "' ^ ""'''"■'■ '' ^'^'>'- l«s the case be wuhin the Stat." , ,-4 w, 'v ' " ""■ " '" ■"-' ""^•^'"'-''•. ""• (/) All the defendants, where the actio i"sn " " ''' ' "' "'''■'■" '''''• -''•'•^'- ^^^^ with the writ , K. Hd. .839. t .a Z;; 'n;" J"'"'.-'^btors. nee., not be served amended under C. S., c. 37. s! ,00 ,36 V c c ^ T'::fl "' ''^''^"''■^"•^ -^>- '- 37); see ./,vv v. .V.,^.,,,, All. c,6- !/,„■- . /, , •" ''• '5 '^' Vic. c. 76. s. beWm.,/u v. /.„-,, , u„,,,, ^i^- /'.,"';' '■^^.'"^' <''^"'^"" v. VA,,, 3 M. to attend the trial of a cause on the commird.fr''""' -''^""'"^ "'^ ^^^^ whole assizes, and it need not go on, to reauire Ins t "' T'"''' '"'""''^ '° "'« the cause be tried (S.,.o,-s v. i/..:^ .. M Iw .^ r.^^ 7" '"' '° '"^^ ""'^' be of use, as mjolu.shm v. /^y/;>/„„ ,3 *!! r„ I u ""* '"=>^ ^ometi^.es sertion distinguished that case fro^i W^ tt^T' , '"T '"'" '"^^ "-"• gramed an attachment, though the day for^^' " ^'"S" 3^6), and they terior to that on u hich it wa! served thvUneH"" "" "' '" ""^ "^" "^ - knowing that the cause was not Wed Vhe„ .tu"'.'""''' '"^"^^'^' "'''^^'-d r.T«.-j r-., - , "icu. >vnen the writ n so •"••■i.-a^ -r- 8 If ,1 1 ,s ••I , 1 f,1 ?leiify, with reasonable .iistinciness. (he par- ticular (l.tument r,..|uirf(I ; a Keneral direction to produce all paper. rel:.t.ng to the subject in -iispute will not W enforced (/.,, v. .7;^,/., I.. K. 2 Kq. 59 ; M/y. Ctn. v n'lh.'n, 9 Sim. 526). A (.ierk of the Peace cannot U- required, by virtue of this writ, to produce the original tecoixU of the sessicms ( /;■,////<./,■ v. Jf„r,ihi>,', 2 I'. & It 338)' When the Court is adjourned under C. S.. c. 27, s. 6 (,7 Vic. c.'lg), a subp.cna to atterKi the a,n„7, must, in order to ground an attach- ment, be produced and shown to him {n\„/y!tvrt/, v. Mar^luitl, i C. \- M. 87- Mar. Shalt y. YorkK. /'., „C. B. 398iy«r<.* v. iV/z/vaA'. 3 Uowl. 4s6;>/,„.„.« v. if ////./„„ skM), and this, whether he requires to see it or not (/'. v. Sloman, I Dowl. 618), but not for the purpose of sujjporting an action, unless it be demanded (Mntlctl v. Hunt, I C. & M. 752). His exjwnses must also be paid or tendered him, though, if he accepts the sum tendered without objecting to the amonnt, but refuses to attend on a different and untenable ground, he cannot urge, in answer to an application for an attachment, that he was entitled to a greater sum under the ordinance of fees {Gilbt-rt v. CamphelU I Han. 258; and see Dixon v. Lee, I t. M. & R. 645 ; Newton v. Ilnrlami, 9 Dowl. 16; Goffy. Mills, 2 I). & L. 23, there cited). The rule nisi for an attachment for disol)edience to the writ must be applied for at the term next after the contempt ( Thorf> v. Cmham, 3 Bing. 223; Av d. H,Kve v. Meally, Bert. 121 ; see R. Hil. 1852, post). It is not necessary to shew that the wit- ness was called on his subpoena, if it appear, by other satisfactory evidence, that he did not attend [Lamount v. Crook, 6 M. & W. 615; AMoney v. Morrison, I All. 241). Any matter which goes to negative the supposition of a wilful disobedience to the writ will be an answer to the rule, such as the dangerous illness of the witness (Re Jmobs, I H. A W. 123), or his being in custody (A*, v. IVetmore, Bert. 244). The excuse must be hona fide, not merely colorable (fohnston v. Williston, supra: Doe d. Cognvell V. Smith, 3 Pugs, 468). The duty of attending is paramount to the private interests of the witness (Gilbert v. Campbell, supra). If his disobedience is wilful, it is imma- terial whether he was a necessary witness or not ; that will not be enquired into (Doe d. CogsTMcll V. Smith; Melonry v. Morrison, supra). See as to issue of writs of attachment, R. Trin. i860, post. Ejectmeut. — Notice to Appear. 10. It is ordered, That in all actions of ejectment, the notice to appear may be for any return day («) specifically, but when the notice to appear is for the term generally, the day of appearance shall be the first day of the term {p). («) In the first week in term, R. Trin. 1836, post. [p) The proceedings in ejectment in this Province are by bill. By 36 Vic. c. 31, s. MICHAKI.MAS TKKM, 1 835, R. 10. 59 '•"■■' 7 <■• n. .34) by ,he service of „ cecla 1 V • . ' '^' ' "'' ''"" ''• '•''•^"" ^• :■''• •" -•-»> 'he notice reft,rre,l .„ ^2 ^r^T*^? T"^ ^'^-^^^ ''"'"'" ^>»> t.tlerl as of the preccliMB «fm,. ih„u.h ,1, 'ledaration u usually en- -tly when the appearance i. to Jl l^;:;;' ;;7"!'- '^ "^ -i- -^'e cor- oca), an.l shuul.i. ,t seems, be stated in the ,o.t u " ''"' ''"'" ^^'""^' '-^ as .0 the pany in whom the le.al tit e i 'vte.l i '^^'' ''"'"^' "'^ """'" ^^'^ nnct demises hyth. ^-v.-ral ,trs I l; ',"" .""'"'' '° <'<^<^'a.^. on several ,lis. 'heir authority for so -loin.Aen; L" ^r .T,;"'?'"^' '■'"''""■' '^^••' 3 ''< ^"). ■7. ; /W d. //„..,,, , ,^,,,,, « ; ;' •" ; -' (/^;'' <>^ S/,,.;,/..,.,/ V, AW. 2 Chit. K cover on any under which he c,;n p...?v: i, " ' ^ '.:;;':' 7' ''"' "' '"'' '"»'• - m common, a .^parate den.ise may be Hi, / u "^ J"'"' "^"•''"'^> "^ '^''•anls could be laid by joint .enanLTn'ly^be; re [/vi 'cT" ''"' '"" '^ ^'""' "-- wh.ch a joint demi.. ..shall, in all case b'^' . t ' "'• '■' ^^' " ""'«*• "^ Jomtorseveral,asthefactsof the ca™ '•■""'' '*'"'" ^ '''-■-"«^'' "' be effect that several demises now ^J^: I^Z:^:::::^^ '''' "" '^^ ^"^ -' ci;:;-rtt^-M The notice to appear is directed tTth tnt'in t:" '" "? ^ ''• ''• '3)- the subtenant, .„ the case of a sub-le e, " ell o^ ^7" "' "' '"'"'''"='' "■ ^'- '" ^•.-^■. 4 B. & C. 259,, and not to a me.^ b'hff rr . w ''' *'''"' '• ''"^^"'■^''"'' -• - .rvant (/.. d. .,...„ v. ,„, .";:. R ' ^k:?:- '^'"^'''^'•' ' "• * ^^ S^S). name of the tenant cannot be ascertained ... n , . P''°ceedintjs, where the S. 6;.). Where there is no tenant ot' mts and'Tr"""' ^- ''"' '^ '^°^'- ^• tually „/„„,/,„,,/, the claimant must proceed T ''°''"''°" ^''' ^''" "<^- tenant retains virtual possesion, the prrerd^LuTtbYiT '"r'"" ' ''"' '^ '"^ <2 ,v/., ,029 ; 8 .v/., 928). The name of ,h, , I. "^ "'"^' ^''^ ^^^''- ■■^'■^1'; »». .h, „™ „„u . :« ~' 1^ r:: ,■;',:; ""-'" -"'-■ ^-^ " *36i : R. Trin. 1845, «• A^/. ^' ^ "• 5°' ^"^ d. ^«rny, v. J/«;.;.„^^ 2 p^^f Jf ; 6o MICHAELMAS TERM, 1 835, K. lO. ':$■ i Si Ji; . i' „. l!ii! t.. or tenant in possession, ns ,:uri,/or" (Doc v. Roc, 2 C. & J. 45) ^vill not do. Nor is it suflFicient to state it arfjmnentatively (/,/., ami see />,• <1. /w.v v. AW, 5 Dowl. 226), nor "as deponent believes" ( but see Deed. Ccori^c v. AW, 3 Dowl. 22). See K. Tiin. i8j6, /,>.r/, as to the rule for judgment. Ejectment.- -Sot'ing Declaration. 11. It is ordered, That in all actions of ejectment, there shall be fourteen days exclusive between the day of serving {p) the declaration and the day of appearance, whether the person served with the declaration lives within the county where the Court siLs or not, any former rule to the contrary notwith- standing. (/) Service may be made (l) on the tenant personally, at any place, here or abroad (Av d. D^uiicll V. WoiHlroffe, 7 Dowl. 494), (2) on the tenant's wife on the premises, or at the husband's dwelling house (A.d. lUbcdy v Rcc, Bert. 347), or elsewhere, pro- vided she be living with lier husband [ThU, 1210; Chit, .hch., 8 ../., 923), (3) or on one of the tenant's family, or his servant, or, perhaps, any person on the premises, if the tenant can Ije shewn, by his acknowledgment [Doc d. Kirk v. Roc, 2 All. 453), or other sufficient evidence [Doc d. Kalon v. Roc, 7 Sc. 124), to have received the copy before the d.ay for .ippearance (/),/,/, 121 1). The affidavit of service should Ix; entitled in the Court and cause, "Between John Doe, on the demise of A. B.," or, "on the several demises of A. B., C. D.," &c., "plaintitr, and Richard Roe defendant," and may be as follows : . " I (&-C.) that I did, on personally serve [U, the wife of] E. F., tenant in possession (,;/,/,•, p. 59) of the premises mentioned in the declaration in ejectment hereunto annexed with a true copy of the said declaration and of the notice thereim- ler written [by delivering the same to the said G. upon the premises aforesaid," ,-;-, "at he dwelling house or place of residence of the said E. K, situate at "I, and at the same time read over to the said E. E. [,;;■ G.] the .said notice, and explained to mm |<./- herj the intent and meaning of the said declaration and notice, and of the ser- vice thereof.-' \lf the ,oifc he „ot ,c,'.-ct.icuuus part of the premises {Doe d. Tredwell v. Roe, l All. 585); or, where the tenant being in the house, but refusing to open the door, or listen to the explanation, by read- • i ' v.- MICHAKLMAS TERM, uSjS, R. n. g^ ing the declaration and notire in t Inn,I v, ,v i ^ ' ' (/^-v ,1. yw/. v. AW, a Ke,r 6g " , ', "^ '""'"^' ''"" -^"P^ "-'- 'he door stating the particular manner of llK-'seTc ' ,Tr" '" '" '" ^'°''''' "" ^" '^''''^''-'vit, ^7wr<.'.- a;; J mrrnnUs of Attormv. ('/) laken from R. G., K. IJ F T 2 f ',. , iv „ ■ with the exception ofso much as relates toil ' ";'"' '^"'" "'" '^5^- ^' '^9 <'-)This incudes the certiii l: r ^^r '^7 ^■''' ^"^^ (-f) In tlie note to Forbes v. /„;-,/ A CMS n aa ► • upon this rule have not been very uniform ", r", " '"''■■ '"'■'"-' ^'^'^'■''""^ ered not sunicient to state a ^en a I, ''l^" "^'-" '-'■■'■^-' '' ''a. been ronsid- should be specifically poi^^^^^ ^ ttCT^ 'r ''"■ "^ ''"" """-^ " that the arbitrator iL exceede«/m/,., was of opinion that 1 '11 ''"""V" ,",'"""' '" '''"■—<-'-" -xi ^-'^ plained the object.on 1 j y; t, in 7 */ "' ', """ ■'^«"">-". efficiently ex- construction of the rule, and ci; 7/ nt;^: ^7 "^'7 " ^'^^P' '^'^ say that A'.nosf/wn,, v //,-W/i. n , , -^' '*^'' ' ^ ''^"^ '"dined to However, in />..: 7 7 J .r'^ W "'■''^°" '■'''^'' ' '""^ ^"^""-'<' ^ -•'•" the rule „,V, that the arbit'a o "ha , ! '^ ' '' "'" '"''''' "^•'" '"^ -^''^'-"-t in -t'edtohim."wassuffi pec7. a:;7t 7 "7^ '" '"'^^^"" '"^■ vits direct the attention innned at y to .^ ^.^r'V^ ' ", '?" "" ''''''^'^■ •^y 'he rule, has not been awardci u , ' ' A I 7;'//""' n"'' " '^ ^"^S"' seemed ,0 consider that ;he affidavit migh be re7 1 ,7 T T'"' ^"''"-•/•. award. In St.p/,s v. //,„- , d & I v l " '" '"P'"'" *''^" "''J<=c"°" "> 'he ■•"le was, "that the arbitrator hiul e^iledhiT'auIf' " '' "T '""""'' ■''*'""' '" "^^ .0 ns being ,00 general. /^;,/,...;7 ,1 " T'dT ^ "' T "'^^^'^'' specitlcally pointe,>.//,.r. (he slali.te does not apply, and' the motion can be made any time l)efore j.idi,'menl, if within twenty days after the award is (;ie v. AV,,- »,■„,; liert. 26, before that Act). It was considere.l, in the carher case of JVu^r,,,/ ,. /Vnw« (2 All. 621), that where the order containe.l a clause for makiii- the .submis- sion a rule of Court, the case was within the .Stat., and the motion ou;,hi i„ be made betore the last day of term, and by the En,:?lish practice, where the reference is of the cause ,;//./<;// ,„aU,-rs ,n Jif.-r.na; the statutory limitali,.n is tlie proper «uide (All,,, In V, ProwiloU; 4 Dowl. 54). The submission nnist be made a rule of Court before mov- ing (Niignil V. Hrmm, sii/^ra). See further, as to setting' aside awards, notes to Forks v. /.,;;-,/, A. C. MS. 60. Admission of barristers.- Graduates. l;i It is orclcicd. That any attorney, who, on his bcin<,' ad- mitted an attorney, was a graduate of any coUcjre, may be called to the Bar after the e.xpiration of one year from the time of his adiTiission as an attorney (/). (/) See R. llil. 1823, r. 3, note, anh; p. 26. .1 i HibAHY TiCKM, 1H31J— () Wm. IV. Motion Paper. 1. It is ordered, That in future tlic clerk of the pleas do keep a paper, to be called the " Motion Paper," in which shall be entered all motions (rt) of which notice may have been given, such entries to be made on or before the first day of each term (4, and /to stand in the said paper in the order in which they may be made, and the matters contained in such motion paper shall come on to be heard on the second {c) day of the term, before the spe- cial paper {d) is gone into. 2. It is ordered. That if notice of any motion {c), and a copy {/) of the affidavit or affidavits, on which it is intended to be grounded, shall be served on the opposite party, his attorney or agent, as the case {g) may be, fourteen days {h) before the term at which the motion is intended to be made, a rule absolute may be made in the first instance, if the Court shall see fit, and in all such cases the cause shall be entered on the motion paper. Hll-AkV TKKM, 1836, R. 2. <'n where .here is an ...,,,„,.,•„ pa .y" , ^ 1 ' "'. I '""'.'*-' "' l"--''"*.' '".ly a,,li,.. -9). Sec crAV^,;j. ,,,iJi ; K;r,™ " " """-<^-A"^^ ^'v^''-, i All. '^^Tjurlgment. as in case ,.rn„Ms„i, '*' -^'■"' "' '"'• -'"^ '" '-•"'^'"''^ '"-lions l'ar.,MoUrnI,!^;i^":;2':;;';? '';;^ - l-'P- acc,„di„. ,„ „.,,,,, „,^ "'"ain COS.S, in.n.e.lla.ely after .1 , f '■";'" ^"^ '^■^^^' '" ->'- "- inor.ler,., '■on sl.n,I. he n,a.ie on >he Seconal; lin:;:;;'"'^''"'"^^ '"'" ""^' ^"'^" "W'"- p. 26). ''^ "'■"!^- l^y ^m alU.rney (k. Jiil. ^^^^^^ „„,^, K4"c:;;;!:ri:;:rr;;;xt;:;:;;:::--- to throw ''-na, that .i„,e (/.>^,.,, ^ISii: :;'" ^'^^r''"''"^' •'">-''' '-- '-" s.a.ed 'locunicnts and examination of witnesses on tin- t, ' r '"' '" ""-' I'™''""'"" of '74 S (.9 Vic. c. 4., .s. 2. « , 36 C rj" r,f \:"'^''""' ^'- •'^•. - 37. ss. - 46-47). Afo,^,„ V. ../,u-„./;,i. „:: io c' T' .T •^^' ■''"'• '^ '« Vic. c. ,23. COS. """'• ' l'"e>. 7), «t with- !l < ■ r l1i ri' si x^ 64 HILARY TERM, 1 836, K. 2. where the rule was . 324 ; see Mcintosh v. Hamitlon, supra). If the rule for a new trial is silent as to costs, the successful parly on the second tiial is not entitled to the costs of setting aside the first venlict (H'l'Uoii v, Wddoii, 3 All, 14S). Where the costs are "to abide the event of the suit," and the same parly succeeds on the second trial, he is not entitled to the costs of showing cause against the rule (Nice v. Covlc. II. 'P. 1832, Stev. Djr. 114). If a plaintiff consents to ref i \ . "•. 007)- b >-" 'I Ldse wneie tlie defendant was not entit ed fn mnvo ,\.^ (/) See «. (^.). su/ni, and .J/«;//f^, v. C/,..iv, 3 All 83 (/) See the form of a.T.davit, R. Mich. 1S59, /.osf iu, I, . 4 '^ Trir .^;:; ''""^^"^^' '"^ '^""-■"'^ '-^ ■'-^^""^ '-^^ ten.;, is now sufficient (R. («) The defendant must nioceed iindpr fl,;.: .-..i™ • • n.eir, 224, /,i^/, p. 70). I he motion cannot he made imlil thp f«,,„ ,r. ., • ■ '^ at which the plaintiff undertook to tiy ,6>.™ v. ^t:^: ^^T^'''' ''' ^'"'"^^ A counsel fee is taxable on the motion, thoueh the mninn u . M. I. Co. V. //..,,,, E. T. ,86s. Stev. \^rfo<^! """°" '^ "°' °PP-ed ( r,v-. C. The earlier Provincial cases (Stfv l >;,, -. -\ .l a neglect to brin, a causeTt/itac r^'in^t Til cVrZ/; '^ ^'^ ^T^^ (where notice of trial has not been given) cLl ( , "^ ' °^ "^^ ^°"'' mte the ,irf.„l„,., ™I, ri T , ' ' '"'"'°" *'""" J*' »« SIS.., ,i aot.to R. Mioh. ,«55, * "' "■^""'■1 '■ "■•I"; I Km, 9 i 65 mi.AKV JKKM, 1836, R, 4. motion, oiitheplaimifrtrivingaperL-niptoryiiivlortakint;, itappcarinj,' that he had a t;ood cause of action, and the defendant not stating anv defence ( Av d s' ■■■' v Vv/ ////, 4 All, 5S). ■ When: two defendants apix^ar l)y dilTerent attorneys, the motii.n mav b» made at the instance of one (/,«,./., S48', though the other has sufTere.i judgmJnt hy default (.)/»;///)■ V. D<>;/„n, 5 H. \ C. 178), whether in an action in contract (see Sf,t.,>-/ v A'.V;-.-, 4 M. \- W. 649) or tort (//.ur/./c v. //„,,/„/. 25 I.. J., (). 1!. 442), or has com" promised the suit w,th the i)laintiti- (see A;„a-/„ v. .l„./,rso„ 4 All. 635, where the rule was discharged on the plaintill paying costs and entering a ../, / //w. .r.w.rj ; and in such case the motion must U- for judgment generally, and not conlined to the defend- ant moving (A/.a/pu, v. /■■.,/,:•„.■■,; 5 All. 103 ; Xr,r.r v. //,„(^vs, I Dowl. N. S. 16; ./<-//.•,• V. (;,A>-,w, 5 B. 6i C. 768,. Hut whvre the defendants join in plea.ling, and raise' a joint issue, they put themselves on the same terms, and one having settle.l the suit, the other cannot move for judgment for not proceeding 10 trial {Md/vu,, v. /•;,/,•,>//,•;' ■rii/>>;i). ' ' A rule to discontinue on payment of costs is no stay of proceedings, therefor?, where such a rule, with an appointment to tax costs, uas served, and on the following day the defendant obtained a rule for judgment ch judgment (/A;Av, or /,'vAv/, v./,,//, ,5 M. &NV. ,49) ; and, it would seem, that taxation of costs alone, without payment, is no answer to the motion ( (r////,' v /,'„;■- y, X Han. I : but see,-,.///;,,, f,../,v v, Wlhuuu; I Hodges, 76. cited, tVih. .InA., n iv/., 1299). .^n oiler, under C. S., c. 37, s. 127 (R. Trin. 1859,/,,^/), t„ suffer judgment by de- fault, wluch tl^e r.lainti,l-.lid not accept, does not preclude the defen.lant from obtain- ing this judgment (///,.w„,v v. JXwi//, 3 All. 407). Where the cause hae>- Carter, C. ./.,and sse6///'//4,r,/v. //„//,■//, i Han. 43), and it makes no difference whether it is made a remanet by the distinct order of the judge or is oriiered to stand over among a num- ber of others, because there was not time to try them (,)////j- v, /„■„v, 5 All. 433), even though a subsequent notice of trial be given on which default has been made (Bennetts. St'">■ •-""- '""'-• '^"^' /'■'• • V, n,,.., 3 Kcr., 300:440) " '- '"'"""" ' """'• ^' ■'^ 433). an,l where he «avo notice of i ,' , 1, °' "':' r ''"'""" ^' ^''"■'■' 5 ^^"• ;He .>.n..in . ,..to,ice. co,„u:::;;,::> ir::;.:i. D"^';: r ^'^ '^"■ .ou., orsj, ...ions;!;; ;t::;:;:;::'^ ^rn''^;r'^'""^"' '''^ "^ the .-/....:.-::;; :::*^r:r ;"''"' ^""; ' "-^ ^'^'^-"-'-.-^ to ::;:::r::i;';:r;hr::.'^^ -^ --t^.:--— ^:: isted before actio the d- ti r „ H T T" '"" ''"'"■'"' '"• '^ ""^ '"-'^'-"'^y - the defendant cannot have this iu. J.rn. . ^^^'K^ees, ,t would seem that action ,a„-, .... .3;.^;;:;:'!;::: :^ ::;: : ?t: al^ 'rr' '- '^^ •■>; 2 Kerr, 569, it was trr-,nted for no ,, , "5- " ^^""'""""^v. UV^r/- would see; after trrbanCtcv '"i""'^^^"'"^' '" '-' ■— t ,„ notice, given, it waypreven such iudlent and f ""^ '""'^ ^^^'^'^ "^ "- P'aintiff will not in any ceed,ng to triaKc^?";.;!' 7^^;;^-— t. will not furnish an excuse for not pro' V^^^^l^^^^tt' ''''''-'''"' ''i-rtobeof age. induced the which the plaintiff joined iebm T """ """°" ''''''^'' ^'« '"^^'^y- - '?■ 1^: 68 irrr.ARv tvmm, 1836, r. 4. ■f>- 1^ if m m j: it. • tory undertaking by the plnintifTto try at tlie next, or i.tlu-r named oppcirtiinity, nn.1 where notice of trial has tn-en given, (layinent (tint not, however, as a c,i>ear that the plaintiff intends to proceed to tiial if the motion is dismissed (K„f/„im V. //„-i'l,\'s : /Lh- v. /h/'/.r, 2 All. 454 ; IK/itwn- v. IVo.'.i, I All. 703). The plaintiff need not state that he has a good cause of action {/umUn.rv. Wfiit- (.v d. Sanil v. SnitiH, 4 All. 58). An excuse will be admitted in a ,//// torn action, but the Court will not altogether lose sight of the nature of the action {C,„mn ,/. t. v. a,/m,mr, 2 All. 87 ; see /),v d. .SVwvV V. S,',ili/, sup;,, where two separate actions and a suit in Kijuity were brought in resi>ect of a mortgage security). It has been held to be sufficient cause -for dis- charging a rule for judgment for not proceeding to trial inirsuant to notice, that a material and necessary witness, who was named, w«s absent from the Province during the Circuit, and bis attendance could not l.>e procured (AV/vf' v, /',/)';/,•, I Kerr, 525); that the plaintiff was advised by counsel that the testimony of one A. H. was material and necessary, and that the said A. H. resi.led at BoMon, U. S, A., and th.- plaintiff hoped to procure his testimony at the next Circuit (A.fw.-W v. Kvw,;«.v, 3 Kerr, 7 1, and see S,imn,/ v. Sniimicn, Bert. 278, and .S(W7/ v. £„/,<„, 3 Kerr, 73, cited i„/r,i). The following excuses were held insufficient that a witness resided at Calais, and that the plaintiff was advised by his attorney not to proceed to trial without his testimony (Nic/iohvi, v. M,„h, 3 Ail. 21); that the plaintiff resided in a distant part of theProv- ince, and did not appear or send his witnesses [K.itham v. ILuvka, I Kerr, 525) ; that a material witness was absent, and the lielief of the deponent (the plaintiff's attorney) that his attendance would te procured at the next Circuit, without stating the grounds of belief, or that an attempt had been n-ade to procure the attendance (.1//V v. Port,-r, 2 All. 360). The absence of mate- rial documentary evidence, which belonged to a person who was willing to produce, but who could not produce it in time for the trial, is a sutlicient excuse (Doc d. Scolt v. A'in::, 3 Kerr, 72). So a mistake by the plaintiff's attorney, in lavmg the venue in a local ucvion in the wrong county {PcU-rx v. Drawya; 3 AH. 432), or in giving no- tice of tiial, the plaintiff being ready and willing to try {MiDoimld v. Kido; 3 Kerr, 218), or in directing the veiiirc to a coroner who was related to the plaintiff, but of which the attorney was ignorant, whereupon the defendant challenged the array (Styles V, Gilbert, 3 All. 262 ; see Oisltim v. Morse, 2 Kerr. 77. nnt,., n, 17, note ( V, H'„tts, 3 Kerr, 440) ; that the piaintiirinstrmted his attorney to send him .suhp.enns f.,r his witnesses after the ..iKMiing of the Circnit, ami that, in consenuence ofnotreceiMnnthcm, hewnsmiahle to get the necessary witnesses (C«,/v,« v. Gil. mo„r, 2 All. 87); an.l that the plaintiff's attorney was so much engaged in the House of Assembly as to he unal.le to attend the trial, and that the counsel spoken to on the previous day to try tlic cause was occupied in another court, it not apix'arinR that the counsel was prevente.l by any unforseen cans.., or that other suir.cient counsel could not he procured (/..V„/-;-,W.r V. /;,//,;,', 2 All. 454; st^e .S//,.//„r,/ v. //„//,f,, i Han. 43. "0"-"). Where the cause had been nt issue, and noticell, 4 All. 58). Hut it is no excuse that the defendant ex. zr: C7A;;To;t - ^"" "" '"'"^ -""^ ''"^"'"" " ^^ "^ '^'^' ^'''^ ..."i.;!;Vt n':!:!;?^'^'- "T^"' peremptory undertaking, either party may draw it -ut ,hc p,„.„tiff vnn« tudo SO, the defendant is In^und to draw up and serve • r/ r TTl f'^^ '""' P"'°^^'"""g •" "■'=''. "'herwise he cannot avail himself of It [L/iit. Arch., 8 ed., 1310 ; Mwyer v. Thompson, 9 M. & W, 248). i: "f 70 HILARY TKR\f, 1836, K. 4. iri; Jl: Ik W '\ ■■ * ifi ^t procee. IV' to tiiil r /i'„^/ ., -/■ i. . i"li:» >yiii(_n pievented him from the rule, .hat s.pi.ion attfchel to ^ Snda , h^' hHn f^'T' "'' ^'"'"f"^ ^.^ing a mateHa, witness .t of the .ay ,.,.Z. T^:2u::i:::7-:^ 1 Jrustc.. oj 6.,v«,W. V. L^c, 3 Kerr, .79). Or that the defendam gave ^ot^c'e of trTal ing gone out of the juris. It IS ordered, (.;) That demurrer books be delivered lo the judges on or before the first day of the term at which I do murrer .s to be argued, the books for the chief justice and en^o pu.sne judge to be prepared and delivered by (he phUntif t torney. and the books for the two junior judges by the defa d Sti-betH^e;:^::^' •::---^>^^'^epracLe. the K. Mich. i84s,/«/.-an,| see K T.in ,X„ ^ ^ ■" '''■■I'verini; ,i,.,m,nv, l,„„ks, W frml., by the recor.l exce,,t.,l-see K. T,i„. ,840, r. 4. ^J. ' ' ''• ^^'■''/■f of Particulars' Dlaint ff 's' T'''"'; "^'r' r '^"P^ "' ^"^^ ^'" °^ particulars of the plamtiff s demand, and also of the defendant'^ .^^ «• re .*a„ be filed b, .he plainuffs ...on,:' ^i'h ;.^ ^l "0?"!'; pnus, at the time of entering the same {t) {t) See thf English K. G., T '1" i Wm fv , /- i, pa„icula>s annexed and th.,se d.liv ,ed) B he , "' ", '' ^"™""' '"'^^'^ '^e part of the ni.si pnus record and inccrpo ate with n'r'' ""' "'" ""''■^''>' '"^''^ thus the plea of payment, or paynLt into Co m '.^^ ^^TT'l ' ^^'■"' '"^ = •ion in the declaration, but do.s not .dmit h ,7 < ' "^^ '='''"^« °' =>'=• ma,.. V. .^., 4 B. . Ad.- ,n xi::: r^v w -^r t 'r-'-'' /unterv. Col ns, 2 L. M & P ool lift..' . ' ^ ' ^^'^^ however, i.as been held, be' aided by te 1^J:^^^T^rt '1T ''"'-'^ '"^^' " -ith rule of the Pleading Ru.es J ^S^^^t^J^Si ' f ''''■'' "' ''^ he particulars for a part,, ular sun,, avt; J^/p / "a lr'3' '' '''"'"« ""'" '" was enacted in this Province by 36 Vic c ,, 86 , a ,r^^ "^ Payment or set-off, cases the,con, . Sel. N. P.. ,3^ ,60; Rose'. Ev n V et' \f\ '' ^'^^ '^" ""^ not annexed, the judge n, >y order the plaintiff to annex hprni • P'^"'^"''''^' =*''-' •iculars may refer to a fuller account 'already "el vered wUh ."" "'"■ '"''^ '^"• V. MarsAaU, Peak -. 2^ ; />.w v. ^.nW 3 > ,''' " t"' '^^'f "^ '' (^'"''•/-■' !!!^^^!i:^^-ount^.o.herecor^^ ■ •ilfM IMAGE EVALUATION TEST TARGET (MT-S) k A // ^ ^J^ A K ^ 1.0 I.I 2.5 ISO ™^" £ us 112.0 |l'25 111.4 i^ 1.6 fl._x l-V Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 '^b"^" n^^-o- A ty MP. U.i f2 HILARY TERM, 1 836, R. 7. Particulars which give substaritial inforn,atio„ of the plaintiff's demand, and do not confine the cla.m to any particular count, or n,islea,l the defendant, are sufficient tol m evidence under any count to which the same may te applic-ahle (Graut v. Aiken )ar.ive';h"^ "7; "'''''' •''''"'^'' " "' "•• ^^^' 397). Tho.,«h the partic '- lars g,ve the .terns of the account as the ground of the demand, the plaintiff can recover under a count on an account stated (Grant,. A,ken). A promissory n^ was received m ev.dence under the account stated, though no particulars thereof were attached under the su.n.nary practice, to the process (Stcadwan v. HolsUad, x Kerr 355). Parfculars. \\\ ,_ . /^. R \ r/r'l -^"- =^0' J tw,„«,r«^/^a«^ V. Price, I Pues 07 ' }„'!: pV J"' K., 2. J, C. App. lo6 : iP tf. Vmi/A I » .« r» ij r *, 9' ' ■''' '^' Pollard, . Han. 409. ^'"^' ^ ^- '° ^- *^- 604 ; In re Mcleod', Estate, 'en- L. 3 ■ 'ii 111. F 11 " i% n\ 10 HILARY TERM, 1 836, R. 8. J ' ^ ^- ^- '^^ ^<-'''' 350, but. in />V// V. Mofat, 2 F ^: 15 ,c, ii;:; t:tt ""*" "" '""■°"' •"""""" ■• ■"■'■« •'■'■*""■ ■''• In general, no JLuige w.ll hear a summons relating to the order of .n m judge or .naee. i.er.re in an, wa, with such or.ler , L.U^ :t,t, 7^ not in ; ' '■ '■■■"™"'' 5 ''*""'• «50). unless the judge who made th order t no town, or son.e new matter is to be considered, or whtn urgent or p culiate. c.mstances render ,t obviously necessary for the purposes of jusf.ce ,/y Jew 7:-. If the party elects to apply to the judge who made the order, in . to th. C urt to set .t as.de, no appeal l.es fron. Ins decision to the Court ( ZLp.. v ) -i "-ay 01 apix;al (see Jn /■<• .Strjtloii, 14 M. & W. 806) « u . . .. , „. ,,.^ ;^; ■ - ^ - s:irr»:;^i wit thi ' ;'^';'tf '•;•/"'''-• •» «^ H. 257), anl a refusal to make any order nad V 't-'" " '""''"' '''■"'"'■ '■ ^"■'''>- 1-'- -Jer need not be made a rule of Court preparatory to moving [yfluvr v. To// 2 C K- r ,fir. i V> wise in the ca^ of an order of Nisi Pnu' ^V.,^ v; ,^ 'i.^^''^ • ^r:' ^^. S. 6,6 ; //;v.^ v^ .U. ./..//.„. I,. R. ,0 C. V. 474), for which purpose notice of intention ,0 move should be Riven to the judge {A'wUn v. /),„i,i). Addition.! nv terials n,ay be used in renewing to the Court an application unsuc cessfully made at chambers (/;./.. v. ../,«.■„..,-. 2 All. 54, ; /.,,,,„„ v. A,./,- 6C li.23s;Mrso>,v. Pnn-f,r, lo Exch. 1S9; C/W.//. v. .S>,A//«c, i,M. & W. ,7/. 2^. V. ^... 6 M. ... W. 546, but .see .//...v,,.,/.. v. /',..,., , Dowl. N. S. 299: fi-/iir/'i V. GWs I D. .V L. 714 ; /^,/7i,„r,/s v. A/„rfn,, I7 O. B 693) A copy of the order should be verified by (,%/,/„, v. Pri'uAan/, 5 Dowl 300 • B,ir n-uA.n, V. M.,.,-r, 8 Dowl. ,73), or the substance thereof .stated in (5/.;>/.., v }„rofis 3 Dowl. 10 1) an aiTidavit. Where a defendant has been held to bail by a judge's order, made upon an insuffi- cent affidavit, the application should te ma^le to set asi.le the order, not merely the wnt (//„/^v„.,.,, V. S.,/erJ,rr, 5 M. ft W. 423 ; and see .)/,/„//^„ v. ^/,7„,„r, 1 P & D. A L f^'^'"^'''"'''" ^^'- ^"^ ^- '^^'-"^' " A. -t E. .67 ; mu,^so„ V. Z,»y^/,4,: 5 Where an application against a judge's order is successful, it is not the practice to give costs {//arj,rra^,, y. HoUc, 3 Dowl. 176 , but see Jackson v. ^kLdL, 3 P & B 493). and, as a general rule, where it is discharged, it is discharged with costs {Hawkins v. Carr, 6 B. & S. 995 ; Vammrt v. Shephey.l, .- P. & B. 225) Trinity Term. 1836—6 Wm. IV. Ejectmet:'. — Notice to Appear. It is ORDERED, That the notice to appear in ejectment, shall not be made in future for the return day in the second week {a) of the term, but for the ten., generally, or the Tuesday or Satur- day m the tirst week (1^). (") -''ee R. Mich. -835, r. 10, ante. p. 58. (/') Tlie plaintilTmust, in order to compel the tenant to appearand plead, orto obtain ludgment against the casual ejector, enter a nile for judgment at the term in which 'he tenant .s required by the notice to appear,* otherwise a fresh ejectment must be served Doe A IVilson y. Po,, 4 Dowl. 124 ; /;.. d. Morria- v. A',v. 3 All. 84). In Doe d. !^^v BrHn^.v:ck &^ Nova Scotia Land Company v. Roc, 6 All. 285, where he had omitted to do so, by reason cf negotiations for a settlement pending with the tenant the Court, on the authority of Do d. FM ^. /■., (, Dowl. N. S. 777), granted the rule at the next term. If the affidavit of service and declaration and notice be strictly correct, and in the ordinary form (ante, p. 60), the rule is a side bar rule (Doe d. Wdchon v. AW, 5 Dowl 271), obtamable on production of counsel's hand ("To move for judgment against the casual ejec.or, L. M.. Co/, for Plff.," endorsed on the affidavit of service), otherwise a moc.un must be made, and the Cdurt will, if they grant the rule, either make it abso- • By the Q. B. practice, a rule could have been obtained in countrv causes at th., ensuing term (Chit. Arch., 8 .-d., 932). 'uuniry causes at the \' ..i| m f 76 TRINITV TERM, 18^6, ShT"^°" "^ -"" ''•'"•^' "■" " » '«'= -r.;;;:;i;rir;.r: mon bail ™ust be Hied , y./,; T.lJ' rl.Tp ^T" " ' '""" °' ''' '•"'^' "■°'"- .9 (SO Geo. •;„, c. /,;.. J vi^ , " »»" - b^sh. ,m„e, C. S„ c. 83, ., H.e .S..,. 4 Co. „. c. .8. .. ., iu,U iitltlZ Sm'"",;' 6 V '• "*• T" '""" /> ,1. 1 '^' "y ""^ '"I'""" or a third nartv r /)„ , ^ /-/ ; Art, 2 Dow . 7C2). Th» f.iim „;.. . ■ .L . , '""" P'^"y (/w d. C//rt;/,',v V. unusual to issue a distress w-innn. .,l- " ^ "''"'• 5 i 't is not Paynent of which tl^^: i^ ^ 1"^^ ::7^^ '' '"''"^ ^ ^^ "^ "on- for goods and ifs.s:ds,t;;et;^r';r'^'"''"^^ -^^"^'-^ '° "-^ --'' half year'« rent, the 1 lord „o b .H T'"^ "" "°' ^"''"^'^"' '° '^'^^^^ ^^^'^ theact.on,A,,,d,/....;i; r,;r" :tirr,r:"^"^^ •49, Uiat the landlord could proceed und., h. I "\'''''' '" ^'"^ v../.r,/„.,, 8 Ex. sufficient to countervail all arr .rs'frm h ,"' 'T'"' *'"^ '^*^'^^" ^"^ ""' constructionhasbeengir; , .;;' '""" ! '^"'"'''"^ •^^'^^y--' ^-' » "ke notwithstanding the im, malt c'h n "^T" '' ,''"'' ^ '"^" ^^o) to i R. s., c. .26, -o this Act. 1... 2:r:: :;n:^: r wr^^rr;:":—- ^r-"- Province to use greater particular t^ .n . ^ u ' '"'"■• ^''" "^"='' '" 'his annex a cop,, as'.n A^rZl^f kwr/" ''' '""^'^^""^ °^ '^'^ '--' ^ ^ ( Tulc of the court and causf. ) 14 r T p e r^-..). severally make oath. and?ay ' °^ '^' ''^""'^ "^""'^ P'«'""«"' ''"^ I, P. A., of f "?iJ!^''i.'?!-"" ^;.^-j ^"^ '"y'^'^' -y - follows = co::tir;^:Sfour'!s:f';i:;rt:^^!^,;^^s^'^- adopted from the English practice, ^/^r/^S:^^'^^:'^^^^!^ "''"' "^""'^ TRIMTV TERM, 1836. 77 said declaration as aforesaid, I did make dllirr-nt ^^r,.\ 1 .br which the action is „ro.,„^,n,; ^ ^^^::.^^tz::^ ^^zS: r^:^ 'Mhat no sufficient di'tres! CO ddKn>u„don,,: ^7 "" ■''' r""'' PT'"''^ ' ' '■'■• and that the value of the whole imo mt of 1 V .! P'^'^^'^^^ "> ^^tisfy sai.l sun , distress did not exceed dolhr 'T, 'h ^" 1 the premises avnd.bl. f.,; And I. the said L. P., for n,yself s^ Is MlLw': ''"'"'■ '"'■' ^"/'■">^- previous arrears of rent of the said p«. l^f "ll sldf '""• " ^"'" "'• . '"' together dollars! un.'-r Tml iTv lifn r ^ ' '■'^"'=>"i"iK I'lp^i'l, making and ma ' '"^'I ro"er to re- Hilary Tkkm, 1837—7 Wm, IV. As;ents.~aerk's Office. I Whereas it is deemed impropcrthat any clerk intheoffice of the clerk of the pleas of this Court should act as an a-^ent of any attorney, with or without any remuneration or gratuity It IS ordered, That henceforth no attorney of this Court do employ any such clerk as his a^ent in any suit or matter pending m this Court, or m the transaction of any business in the office either of the clerk of the Crown or clerk of the picas ; and tha the clerk of the pleas do not allow or suffer any clerk or oth person employed m his office to act as such agent, under any pre' tence whatsoever. .^ h"^ Filing Entry Dockets, e>r. 2. It is ordered. That from and after this present Hilary term every attorney of this Court enter the return and file the writ or' process (^) m all actions which have not at or before such return been settled or discontinued {b), and make and file with the clerk a docket (. of all such returns and rules, on or before the last r turn day of the term at which such writs are returnable, or within thirty days thereafter (d) ; and that the clerk do not, in future re" ceive or file any docket, or enter any such rule after the said thirty days, without the special order of the Court or a judge to be -.d. nn affidavit or affidavits, properly accounting for the delay (, 'e). y * i '* ill • '.'i 7S HILARY TERM, 1837, R- 2. that the clerk sl.all „„i ,;ie ,l,e wnt after the thi-Kl -. , **' "°' '"y* as a .atter of co.ri. aft^ -tS';,!:;' ^t^i ^ ;; 1':!^^ '" "'^ '"Vt' entry docket has been ,luly filed ;" and see P.,/„,^.y n '"^ 'espect, ,f the T„y;o. V. Cr.. (., 364,. cases o'n the St^tLe Tu J;a2:r*' '^ '''^'^' '^°'' ^"' Compare R. Hil. ,820, r. 2. ,w,, p. 22, (/') If the plaintifr intends to proceed (see R Ilil iS^n r ,> u • ,. writ and enter tl,e cause even if tl, . •, . ' '' ''^ " ''"""^ ■» ^'^ the Pugs. ISO). " '•'' '"^' '^'•■'^" ■^"■'-■'^ ('W"""'- V. /^/«..v«..v, 2 (' ) " In the Supreme Court Mr. V. A. 'sentry docket. A. B. \ V. \ C. D. \ Victoria. Summons issued Served day of day of A. D. 1880. A. D. 1880. E. F. G.H. Capias to fSaint John|, issued Returned ["<•,// cnrf^iis"]. day of , A. 1880. ( Rule I for p . ( body <;„„/.• - „ ^- ^•> /''"""iff \t attorney." ' ■'"""'.//•' as to the form and sufficiency of the entry docket, c. 37. s. 48). The om.ssion to comply with tliis rule is to be considered in fl,„ Amrv. iy,U,„, I Han. 376; Mi/c/ul y. L„:Mer, i Pugs 70) / ,,lf. Tl "^' not, after unsuccessfully defending the action, apply to s f asLe the' 1 T "r non-compliance with this ^'^^^ iA'.., .. AaLZ aU. ^ ^^^^^^^ ''' and see A>,y„ v. /;,:///,, 2 All. „c, i„ / ,,„>, ' .. , f. ' " "".^; ^^"'^J'' "'■ 35 ! deprived of his costs. By R East ^L r , 7?': ' 7 '"'''^ ' "^ ment before entry. In \vi!^rt mu t ' ^'1' I" '^'«'""«" """«' «'gn judg- *ij, t aimer \, Viiismore, 2 Pugs. 150). Ali^I^'. ^/'7/ ""';';; "^'^^'^'^'"^^ '^^^°- ^^ '^e delay ( Wet.nore v. ^.V„ 4 All. 590 ; JA-^7,,/,^ V. Geddes, U. 59, ; z>,/,,;.^j, v. MeGrath 6 All do.) ^Zc t IS unwill ng to disturb the nrdrr -K ^ ■ a ii ■ *"""""' ° '^"' 403). The Court V. DiusJre, supll ZZl GerJ:^^ T. "" T'^' '""" ''" '""' <^"'"- HILARY TKRM, 1837, R. 2. 79 order, K\rlh, v. naiiih- (2 All. 115). See, as to proceedings under C. S., c. 37, s ic against nonresidents, Mitdiet v. iMWihcr, i Pugs. 79. Exa mini 111:; IVilnesses before Trial. 3. It i.s ordered, That the party applyin- for the examination of a witness, or witnesses, dc bene esse, under the Act 26 Geo. Hi. c. 20 (/), or for an order for such examination, or for the issuiiv a commission, under the Act 5 VVm. IV. c. 34 (g), do state in ih.o affidavit or affidavits upon which such application (//) is founded the nature of the action, the venue, and the state of the picadin .s or proceedings at the time of such application ; also the name of the opposite attorney or agent {i) ; and do also, whenever time will permit, j^ive notice of such application, to-cther with a copy of the affidavit or affidavits, to such attorney or agent (j). (/) 36 Vic. c. 31, s. 187-189 (C. .S., c. 37, s. 185-187). {g) 36 Vic. c. 31, s. 190-196 (C. .S.. c. 37, s. 1S8 -194). The first Provincial Act was 31 Ceo. III. c. 10, and see Sial. i VVm. IV. c. 22. (/') The application cannot he made until after issue joined, unless where a case of necessity IS m.adc out ; a„,l it should he made within a rcasonahle time thereafler (Cht. J^orn,s ,0 .,/ ,77-S). Under s. 185 of C. .S., c. 37, a judge may take the de- position "after declaration filed." (/) The affidavit should also, in general, slate the name of the witnesses proposed to be examme. & R 296), nor that they have been sworn (HVW v!''To ' ^^" ' "'"' ''"• ""^ '" P'"''"^' "'^ ^'l^^^"" °f "«= witness at the time of trial, i^^.A'.- V. CarvUl, 3 Pugs. ,4. ; Doe v. Hushes, sup-n. Ev-idence improperly received by the commissioner, but without objection, may be objected to on the trial (Boston BeUn,, Co. v. CaM, 4 P. & „. ,. E.xecution of commission by three o four commissioners (GMerr v. Cn.fiMl, , Ilan. 474)-Keturn of, by one of the com- missioners, B.rM' v. 0,rvi/l, .r^/n.-Kaurn and direction of, .0 the Court, Doe v liug/us snpra; IVaterJu^use v. Muri,. Ass. Co., 3 Ke.r, 639 ; Doe d. J.unes v. Mc- V £ '' ^w « S4-VVaiver of irregularity in, by examining witnesses under, McKay V. Commere^al Bank, i Pugs, ,-by not applying to suppress, Gilbert.. Campbell , ur' I ^''.' 8o IIILAKV TliRM, 1837, R. 3. 'I!- > ^••/'■./ ,• /.„!('/„ V. /;„v,// a All I V!, • ,' ^ ' '^"-'' ^- ^"""'Mrt'i/ Hank, A< V. C,„Tv//, .,„/;■„. ^ '" "■"'' '''-•'^^•"^''""•^evi.ience under. //«,-. in !»;';:;./■ m:;: 1,^,:;;^:: ;;.;^;;n'S/ ^^" "■ " ^' ■" ^"^ =*^'"'" ^•■"- «>lann .lecla,at,„„. wh.cl, shall \^ oh ''^"y- ;^^' ='"/ -"^'ter may In; j.roved by /-'".. H. T. iSj4, stcv. Dij;. ,Sa, ' '^"- "° ' ^'^"""A"" v. Wiintvits of Attorney.^ luling such vvarrint h.fn ", "^ " '""'^''' J"^^''"'-'"' without c Mvarrant ben. dchvcrcd to. and filed by the clerk (/) ^ (^Ma^en .... ,<, c,. K. U.. M. T. 4. Oeo. H,. , .e Practice R.^e! of .833, ^^■■^:^:r:T "^ "" ^'^"'' "^ '-^'^ -^ ^""'-^' -•• --^o belied ('') See /A,s/m-k v, /r,,^,.,, 2 Kerr, 362 /)i/-ni«fc »/ Allomty-^Diftazana. o. It is ordered (,„,, That every attorney of thi. Court who »ha 1 pr re „„y ,,„,„, ,, ,^ ^^^^^^ any ju^n^lt" «h,ch ,» ,0 be subject ,0 any defeasance, do cause st^ , dS war an tf r""' "", 'If k""" P^'"=' "^ P"'*'™" °" ""-h tte wri r , K 7 '*""' ''" ^"■"'™' °'- """"^ " ra=mora„dum in er^:;:„ehdet^nc:(r^™"•'°"""'"="•"'"^^'-«-^ ("/) Taken from R. G., K. B M T ^» r'or. iii ■ s. 4; Practice Rules ,853, r. a;'. ' "' ''"' "' ''=''• ^ «-• ^V. c. 39. («) The disregard of this rule subjects the attorney to censure but do« nn. -^ the security (Z«/,/ V. EUahrooks, ^ Kerr i.^'- /.„.'/ 1 "°' '''"'"^ -^-.0. V. Goo,,; . R. & A. 568 >f;. ^ S,! 'ol^ " ^''"P \ J^^'^- 307 ; Trt^ft", r- ''°"«^ "^^ ^^-"' - b:t^t"s;'o:;d t s : t:rr ^1 D::rNr.37'?:Tf" °" ^ '''''-'' pape^.nn^xed;i::iLt dispense with te nec'es^t v of a^.l r"? "''' " ""'"""' '^ ^° P'^''-"' - '<> '848, r r pl 2 afte h?i ^ r ""^ ''''' '" ^'«" ■'"^S'"^"'' ""'l- !*• East. ^'^i/^'k^L 680) Tel?"''"" ''^ '^'^ °f the warrant (5W„, K MicilAKi.MAs Ti;i■ "^ ^'-« dcl.t in tl.is action, tlic su n f /" , ' ""^''•' '" '^•'^"^■^•'- ''^^ Lis "•^-^ . for l,is debt so IS -^rM i' / ' '^/'•''•''"''/) ilio said sum and also, ^-c. (/m- J ' >; ^^^t';, !; ' f' '"^'f^'^^^'^ .'^>' "^^' ^"^^^^ ''^Te. and the said (.• I)., i„ nHT<^'rc '-^ ' ' '■''^'' '" ^^" "^"■'^M'''), -over interest on .„e ...U.! .• ; ;;:,;;" ^^ l'^ '-"• "- '^-0 .o„«,., .„ 'nslance. have l.ccn in.erh.cu.ory Zl hJ 1 ' ' "'^" J"''«"'^-'" '"">*'. i" 'lie (i.st S T. R. 8;). ^ ' * ^""" '• •'^""'"■'■'•"'•. 4 T. K. 4,,3 ; j/„„,,,,/ ,, .,/„„„,,^,„^_ Hut l)y 7 Win IV r 1 1 o /- ■• 'o be recove,cl, ,„ Jasi- . i, il ';.; ;^! Tf' li'' ""' "^ '" '"^'"'" "' '''^•^'' "'^ ~>' ami assesse,! either by .h C ,' . ' ^ "' ' "'■-"" ''"""■■"''' ^'""'''' I— ".>ine,l. con,lit,.,ne.l for .he pay, . en. Ly'"'' '"'T ^"'''"""" "^'""'' ^'^-"""^ "" '"'-'^ '-"" of an,l assess d ^ s o i; 'V""'' T' ''^ ' ^''-"^' '^' ^- 4- "^ <-'"'lui.e L in. s. „. whe,e such rt-,., '"^"•^'^'^'•\"«'«"'^'' ■"■ si.w'acs.e.I. u.ule, Hla.. 8 9 \V,n. cation, n,ake en,u y'a„ , as \i' "• '^ " ''• '• ^' ''' J"''"'"' '-■-'^'. - va- JU'lgmen. by .lef „l, 1 ' . , f'' "^ ' ""= ^"^ ''''»""" "^ '«^'"v(?,„„A-./., 6 Dowl. 7, 269). The rule only extends to warrants given by a defendant to a plaintiff at whose suit he is in custody (Holcon.te v. Wade, 3 "urr. 1792; Fin,, ^. Hutchinso,,, 2 lA. Raym. 797; Chunhcy y. Kosse, s Mod. .44; Gj^hnan v A^///, Cowp. ,42, SmM v. Burlion, , East. 241 ; lVeat,,eratl y. Lung, 6 Dowl. 267). ^'1 82 HILAr^Y TFUM, 1837, K- C 'II from a "^'""'« V. C„«,.r, 3 -|'. K. 616). (/Sil:,rr.S!!':':r\/'r.?''^'-"--" — ,,.r hi„;:houK, be present Michaelmas Tkrm. 1837—1 Yic. Admission of Atfomeys. J^'"^' '"' '■''^"■""P^'^''^^"^ '^'^' ^--'-y person desirous of bcin^ pose appointed by rule of Conrf in R.io . P- '^' ilpiiiiiP («) See R. H.I. 1867, Hye-law ai, /,,./. ^ ^ '' 2 It is ordered. That the said examination shall be held at uch t.mes and places respectively, and under such re 'u a tons TointV) '"' "'■ '^"' ''''' "'" '^^'"' "'■'' '-- '-- ^^^^^- (/')SeeR. Hil. ,867, Bye.Iaw2i,/<,,/. fusal oflhJ'r" '""^ """'""" ''^'" '^'^ dissatisfied with the re- usal of the exammers 10 grant such certificate, he shall be at ' iberty to apply for such admission by petition, in writ f to the judges wh.ch application shall be heard by no less tlu ^th ° If the judges, at such time and place as they' may appo f W see R. .V.C,.. ,8,, r. .-. a„d R. Ha. ,867. Z,.Z., Z- 4. That every person who may desire to be admitted an attor ney. shall, on or before the Thursday in the first week of ^h?. 'mmediatelv preceding th-it -^t whi-h u u ,,''^^^ of the term mitted r^^'mlb "-,.'"'^^"^^^'"^h he shall propose to be ad- mitted (^), make apphcat.on. by petition, to the Court, in the MICriAEI.MAS TERM, 1837, R. 4. 83 form hereunto annexed, or to the like effect (.), u^.^hV~eiit7on shall be accompanied by the requisite certificates of the a-^e moral character, and service of the applicant (/) ; and the certi ■' ficate of moral character shall be full, positive and explicit, and •shall contain particular testimonials to the sober and temperate habits of the applicant, and the Court, if .satisfied with the certifi- cates, will, durin- such term, make order for the examination of such applicant. term s notice must be given (R. Hil. ,867, Uye-law 21, /,,/). W This rule is considered to be stdl in force, and the form of petition here pre- ^TH'^rZ'' "^^^"'^' '^ ^'"^"'^ "''^'^-^ '- ""--" <^- - ^^• (/) See R. Mich. .878. /„,r/. requiring delivery of these certificates to the Court. Ationieys of other Courts. 5. That the foregoin-ruiestouchin- examination, shall extend to persons who may apply for admission upon certificates from any other part of Her Majesty's dominions (^), as well as to per- sons who may have pursued their studies in this Province • and any person coming from any other part of Her Majesty's domin- ions shall produce a certificate from the Court in which he may have become a practitioner, or one of the judges thereof, that he has conducted himself with credit and reputation since his ad- mission there. (a-) See R. Mil. 1823, r. 2, a„tc, p. 25 ; i„fra, r. 9. Re-admission of Attorneys. 6 That no attorney of this Court, who shall have been absent //) from the Province, or have discontinued (/) the practice of the law for the space of five years together, shall hereafter be per- mitted to commence or resume practice as an attorney until he be rc-admittcd and re-sworn. (//) See R. Hil. 1820, r. l, ante, p. 21. (/) See R. G K. B., M. T. 1654, as to the effect of discontinuance of practice on the privileges of an attorney. P'^mce on 7 That every attorney who may desire to be re-admitted shall apply by petition to the Court, .stating therein the place or . places m which he may have resided, and the business, profession or employment in which he may have been engaged or concerned i: > «4 Mil II All M v>^ TI'KM, iX^;. K ;. snuy his lirst a.lnnss,,,,, ; u huh pr.„i.,„ sh.ll 1... vmlicl I al) ■i\il ol ihr i)rlil li'llCI. ,IM(I s or hflorc Ihc llnirs,!, hall I )V II In- ly privctlin ; Ihat al which I i\ III the liisl \\ )(- pn'MMilc.l Id ihc (oiiil (in vrl .)( (In- iciin. iiiiiucdialc H- iiia\- (Icsiiv 1,1 In. ir-adinitlcd. '"^ I'hal rxfiy appluaiil (or re a«I l<> his litin am! ca iH-i as iCapplx ill;, lor a lirsl ad mission shall he p.uily lo a.( as an atlorncv, in ll ('\amint'd as ic same man tit. Ill am- mission, unless tin- Comi shall mal//, /.\ li.it iVom and alter the pivsi-nt Miehael ney ol any other part of ||er M mas term, no attor admitl(-d IS an attorney of" this Court, unl i.l''st\'s dominions (/) shalT i )e tored as a student with one oC tlu- atl o rank of harrislei, and resid li'ss he shall I lave eii- th nrne>s iA' this ( 'ourt, havi and shall have eontmiied «'( every such studiMit to I c.ise of other stiu! iMit and luaelisinn in the I 111. lovinee, IS such student Cor one year ; tlu< entry K- rc-istered with the clerk, as in tin- U" barrister with whom tin 'Ills ; .uul a lertilicateofsuel shal In) one oi' the testi ll year's study from iame may have been perrormcd such applicant. (/) Sec K. Mil. i.Sji nonials luve.s.sarv ("or the ad mi.ssion of" 1. i, / ■III ..'/ l\titi,Mi for ,(,f„ii! To the hom>ial)l sii'ii lis an .Iff, >nic\ 'I'lie petition ol" .\. 1!, your petitioner w.is iuirii in lo the Chict" justice and just (^•). i|)Iicant have ni)t studied in this I'rov- irucuiar gioimds on which he applies for may have resided and prac- HILARY -IKKM. I .S39, R. ;. «9 mnit {,/) vvitliiii tl,i(v Icmis next iin.-r the dHivcry or filinj' of ilrcl.ir.ition r), if l)y the cmiisc oftliis Court llir plaintiff t;u, s., proceed; of whjrli three Icriiis, the term wlierein such .lei hir,. li<.Msh,.Il he .lelivcrnl shall he taken to he one; or if. I,y t he- course of the Court, the plaintiff cannot so proceed to trial. .r final iiid;:inent within t' • time ahove limited ; then, unless th.- plain- lid shall pr... ccd to trial or final ji'd.injent. as soon after as hy the course of this Court he may so proceed, the prisoner shall he discliarKcl out of custody hy writ ..f sM/>,-rstWnn , to be Kninted as aforesaid. up<.n fdin^j C()mm..ii bail, utdess upon notice ^'iven to the idaintiffs attorn.-y. ^oo.! cause shall be sh.wn t.) the con- trary. (./) S«. R. (;.. K. H.. M, T. 26 Goo. lit. ,.2; II. T. 2 Wm. IV. r. 85; Pra.,i« Kulcs 1855, I. 124. ■^ (<■) //,,if,», V. Ii;/f,a;r, 4 Km. 549 ; /Am/^/- v. /l,„/n', 3 i,/. 415. Siif>crsc(h'(n for twt c/i(ttxin,i; in Kxrculwn. ;<. J'hat if) in all cases after final jud^^ment obtained against a prisoner, utdess the plaintiff shall cause such prisoner to be char^H-d ill execution, within three calendar months next after the day on which such Hnal ju.nU^tainec.. unless the p^^^^ lobecha.oed ,„ exeait.on uithin tinee calendar nmnths next ruulc, afte tr.al and before jtul^nK-nl. unless the plaintiff do P.oceed to .^c his j„d,„,ent entered up and si^nec w h t e t""o nn.ted by the last preceding rule, or withh, one i uj caJbeii^tt;:::";;:^'' '"^^^ i") K. c;.. K. H.. „. r. a6c;eo. ,n. r. . Seo.A...,„v. A„... , a,, ,,. //■.//■.vv oj Supersedeas to he in Hn/wt;. DrevLu^''*'' ^'^"^ "'^'V^ ""■ ■'^•^'■^'^''"^"t shall be sufficient cau.se to P vent a,v>. prisoner havin. the benetit of a ...Av.vv/.v.-. unle ^ the .same be „, wr.tn,,. si,.ned by the prisoner or his atto nev o son,e person duly authorised by such prisoner ^' wn;;::ir .;.r aL:*;.;: r t ";• ;^ .1 n "-^^ - r-' --'^ *- /fV// ./ .Si-//-^ Juia„s uuJer Act 26, Geo. III. c 24 \JL. Ordered. That the u-rit oUcirc f.ci.s, to be issued under ^e Act of A.s.sembly. .6 Geo. III. c. 34 (». shall be i„ the for" quisile. " " '" ^"'"'-'"'"' '"'^^^'^ '"^'>' '^'-^ ''^^-^-^ -•- plead dTo' and F F^'" "^ ^7" ^'^""'^ "^ '-»' ''^^^dencton. im^ been ■a.en a,.d >,™,Mi„,„'J„:„^ f, W™\"lf"LTl4Lr'„^rL' nilAKY TICKM, 1H39, K. ,2. p, ^:n-:i^,,!;;-,r::r^::;;;;>;::;;;,s;;;-' -''■--'- And now, on iK'luilf of ii.,. uii.i a n ■ iH'is.k.sironsof ONcr„iM,KancxcT„tion (or s.,.l, Md.t -.. .' ^amst tlu. 1,0, y, or ,lu. h.n.In or koo.Is. the- sol J^ L V'^S'f Ikuo yot. there the r .nies of those by whom von sh-i s .. a u to hini, an.l this writ. Witness, .W:. ^ '"'''''' ''""^^'" recoil™: :J:!,:t"1' '""' •''""'"" "" "'•^" •"" '" •^^^^'^ '-■"•'^ -" <"«^-"y in rec.vu.MK 'lel.ts ,l„e fr,.,,. j„>nt partners, the |.r.,ceecli„B t„ „,„|„„.ry n„„j„,, ,„,. ,;. " sm.s who cannot I.C taken l,y process not l.ein.- in u« in "/^ "^•"""'' ^'^ I'"- fence for hun Ml the orif-ina action. See as to .1,^ f,.rm r.u "»^e "een a lt is thou. .,,u.tc.l. with approval l.y the c:,n„t. fmn. whirl, the f.-IIow mKform w,lh alterations to a.la,H it to Iho preccUnts Kivon Wy K. ll.l. 1875./../, amlthclanKuaKoofC. S., c..,7. s. .ii, is taken: In the Supivnie I inn I. A It IwI^'a . ..''">' "f .i'llheyearofou, lx)r(l ,/^^,i/,./;), sms (.. 1, ;.n,l II. \., wlu. l.a.l ln..,.„ Mirnmone.l to answer the sai.l A II "Ml V ^ i' '"'■■."' ' ""■|,"M"-'''''""^. "t I're.lericlon, anainsl the sai.l C ». and II V .nth.sMut (the su.l H. V. not having K-en [arreste.l orl serve.l 'v.t 1, a"; th^^ren:;^^^^^ •■''''r''""'' -''^y"!-". «•><> >•>• f-^V ..f .l-e Staf e r AU of tht (,ene nl Ass^inhly .n snth tas<. ma.le an.l pr.)vi,kMl, the sanl A It om-hi a ^ he III 1 i'rZ n '"'"■""''• "r "'— " "f "- 1-"--. i" •!- s"."" ma, J as t(„ Mul II. V ha.l iH.en anvste.l o, .<.,ve .''I'l.c.rs t. he (0,1 lie eupon, an.l, n pursuance ..f the sani Statute or A..t of Assenl.lv i, such ease rn .'y 'IK,;; i^^:t''' •'" '"^ "'" ''• ": "■; -t-'- ^^^^^^^^ an.l ilso for ,1 . f ■. w . • ** "'*'='-'"»'"^-<' ""■" •■"•^sse.l l,y the Court. winch ■;; the whow ;,;^nr''""' '^ '!'f ^""' ""•= ''"j""«^" »" "'^ -■" ^^- »•' /uy K. K, jiis attorney (or nts. "in person," \-c.) and says {or in case it l/e pleaded as to part A. I!. I only, add "as to being part of the sum in the duciara- tiun, or " count of the dcclanition mentioned," or as to the residue of the sum of ") that the |)laintiff ought not further to maintain his action, because the dcf"en(l;mt now brings into Court the sum of , ready to !)e paid to the plaintiff; and the defendant further says, that the plaintiff has not sustained damages (or in actions of debt, " that he is not indebted to the plaintiff,") to a greater amount than the said sum of, •fee, in respect to the cause of action in the declaration mentioned" (or " in the introductory part of the plea mentioned") ; and this he, the de- fendant, IS ready to verify ; wherefore he prays judgment, if the plaintiff ought further to maintain his action thereof against him ;" And no other pica shall be pleaded to the said action, or to so much thereof as the said plea of payment into Court is appli- cable. , (a) I Vic. c. 13, s. 3. This Act, founded on the Stat. 3-4 Wm. IV. c. 42, s. 21, wa« repealed and re-enacted by 12 Vic. c. 39, s. 59. The C. L. P. Act 1852, ss. 70-1, which superseded the English Stat., was extended to this Province by 36 Vic. c, 31, Ss. 0/-(;, now C S., c. 37, ss. 66-8. Payment into Court is now seldom resorted to, defendants usually preferring to offer to confess judgment— see R. Trin. 1859, post. The Provincial cases on the subject t ' II •#■ I f 1(1 '"I --I 94 TRfMTV TDKM, iS^). U 1. «re, C'.'///,f// V. tV;wM//. 1 All i,o. „,. 402. •* • '"'♦ ' "•"' It'i'^.rx. /;■/„//,./,,„, 5 All. v^'Vn'rTsr.'r";;'- ■"'*''?; r^'" '■' - <■ <..:.. t,t. . 4 wm. IV. r. 17, ,s s„|K,-se.lc,l by that i.Mven in C. S c -,-, . fv of such ,,„y,„,nt in „,.■ ,„,rgi„ of ,|,, ,^ ' ■ ' hi" """""•' "lc-,n,„a,Klu„, .,f such payment 1, hi I ■''•"" «"'-' •' (') A rule of Court is not necessary -C, S., c. 37, s. 78. Mid* 'sU!/!;;.'' ''■ ' "'■ •'"• "' *" ""^ """'^ °f J-y'"^' "«>ney into Court, R. been paid i,r. and ho , rbe^r C.; i^r:' "' "'"■='■ '' ""' " th.f hiT ''^ °'^^"" ' °'' tlic plaintiff mav reolv that he has sustained dama-es" (or "thnf !k 4 r , ^ ^' covcable undo, rfunt yl ^-'r^lir ,,'r .t" r ™ey on. of C„u« In discha^. of .he atirnlh ,' o" : fn' Med ,0 more than summary costs, unless he obtain the order of irefr " ' ""'' ''' '"= ''''" ^°-' "p°" «.-" «":„' _»■ o.. T. T. . v,c., ., H.T. .w..7v.-,-;,: Si.^;i',Vvi^:;.',r- ■;"- TRINITY TKKM, iHyj, R. 3. 95 Wi,h,I,eoxcq„ionor ,l,is .l.-m,,..,, „„.| „„. proviso r.I«,inK ,0 costMhe" rule 7. enntted in the same (erms liy (hi- (,011. Slat. practice was al,.,li,lH..l «,y 3,. Vic. c. ,0. s. 38, a„,.; ,,. 47, ^' ^ """"^ TiiiMTY Ti:uM, 1810 -;} Vk;. hUfrlocutory /uJ^mfnt for unutt of A/^/>faranre. 1. iTisoRi.KkK,., That interlocutory judgment shall not be sitrncd in any case- for want of appearance until the process with the requisite affidavit of service, and (where the case re<,uires) the order of the Court or jud^^e fo,- perfectin;,^ such service, shall be hied (rtj, M If the .trndavi. of .service is insulTicient, the clerk shouUI not sign the judgment p. 1 10 ; an,l see K. hast. 1850, as to afTulavits of service). ^ Aw^^ ^' ^'' "' ^'' '' ^^' '""'' ''' "*' """" ''*'"'■'* "'"" '* ^'"efe'l-K. Kast. 1848, Sen'/o- of Process. ■ -Form of AJfidavit. 2. It is ordered (/,}, That from and after the first day of Mi- chachTias term next, when service of process is effected at the usual place of abode of the defendant, pursuant to the Act 7 Wm. IV. c. 14, s. I, the affidavit of such service shall be in the followm.^r form,or to that effect, in order to entitle the plaintiff to an order for perfectinjf such .service : saiui dniT H^i'^f ''''' rif^'''''/' '/ deponent) maketh oath and .sauh, that he, this deponent, did on the day of H.-liv^r a true copy of the annexe,! writ or process at the house of C. D the defendant, named m such writ or process (.r //,./,.,... ./^,,^,,/^/;;^;;; s t in ■; s' i 1 ' '"'•' ,^'f '^^""'^^"' ("'• to G. H., an adult person v.. siu.iig in uie said aou.se, and known to th s deponent as a member or s":;hihauhe%';iT'if °' ^"^' ''"^'^^'^^ ^"^ this^:;orn?fu:h: saith, that the .said house was, at the time of .such delivery the usual ace of abode of such defendant ; and that the said co^of the said process was accomi,an.ed with an linglish notice,* in iruL to the defendant, of the intent and meaning of the service of such process pursuant to the statute in such case made and provkled -and fhk dJ S;i:iS::L,^frSd^IS.:;?!' " ^"^ '^P°"^" ven,y beUeves, • The clause as to the notice may be omitted in the service of summary writ (*) Rescinded by R. East. .850, />../. by which a different form was prescribed. 1^^ 96 iKiNirv ti:km, 'S40. i<. 3. /)i-mt/fffrs. 'I It is f.irtluT ortlcnHl, That where a ui'Ufral il fti'icaftc IHitlnM^' in the same shall dclivri ,a tl parly .1 statoimut or mimite of thf|,M(iuiuls (,) of su. h il cimirriT s hall 1 he put ill to atiytlerla>- (tion,,r other pleadiii-, the party le same time to the opposite iiiul if the opposite party iiiteiul to rely leimirrer on any tiefects in llu II' joituler in tlemiirr- previous pleadin.^^ (t/).hc shall deliver with th cr a statement or minute of such aliened defects; and such par- ticulars shall be entered in the mar-in of the hooks delivered to the jiHi};cs (<•). This re-ulation to extend also to cases ,jf special ilemurrer (/) where other grounds are intended to be relieil on. than those specilically set out. (,) "A -tatomeiu of some sul)siamial nmllfr of law, inlomlcd lo l)c arniifd. shall be Mato.l ilifuon. or ^orvc.l on the opposite party, with the dcnuirvcr, and. if the opposite party mtciul to ivly o„ any doft-cls in the previous pleadinK, he shall deliver a statement theri.of, with the joinder in drnunrer. and if any demnrrer is .lelivercd withou' sucW Malonient, or with a frivolous statement, it may k- set aside by the Court or a judge, and leave may l.e given H) sign judgment for want of a plea" C. S , e. 37, s. ^)o { \6 Vic, c. 31. s. 93; and see Stat. 15-16 Vic. c. 76, s. 89. which re.,uircd the'sialen.ent to be inserted in the marf»in). There is an important dilVcrence between tl,is Act and the above rule, the one re- quiriiiK a st.itement of .>,.///<■ substantial matter of law int-nde.l to Ih.- ar^ue.!, to be de- livereil with the demurrer, the other a statement of the ,v/v/,//,A of the demurrer. It has been held, under the Ijitrlish Slat, and U. (1., II. T. 4 Wm. IV. r. 2, of which the Provincial Act is. in this it- spect, a copy, tnat only one groun.l need bj sj^cilied (A',.,ov. AW'.s,;,, 3 Dowl. 779; an.l see ll/„fm,<>, y. X/,M/s, ,/,/.. 521); but some »pecihc point should be stated, in or.ler to shew that the demurrer is a A,;,„ >,/,■ .lo- nn.rn;r, and the party demurring is not restricted upon the argument to the groiin.U so stated, the object of the statement being rather to give colour to the demurrer (Dor's C. I., r. Act,, 118). and that the want or insufficiency of the marginal state- ■nent is no giound for objecting to the ilemurrer K-ing argued, but only allords ground for setting it aside (/„„t v. Vmb.rs, 3 Dowl. 732; see l\,rinca„ v. Khw, 2 Dowl N. S. 228 s 7>/,Arv. B.,n,ts/n; 16 M. \- W. 56; //,/// v, C.',„ur, 2 c' B,, N. S. 22). One or two of the strongest points were usually stated (C/iit.,Jt., /',-,', 27)! The point is thus stated in the margin of the demurrer lx>ok, "A miite..' .)f i.w .,i tended to be argueil is " (Hull, i.^ /.. 822). See, as to stating the points in the demurrer Ixjok, iii/hi, note (, ), (,/) Where a plea to one count of a declaration is demurred to, the defendant can only rei.- on objections to that count, and the Court cannot notice defects in the other counts (Cn... ;v V. inhvn, I All. 704). Even before the abolition of special demurrers, the object -nu^t have been to the substance and not form of the previous pleading \.Ue- cha. i,-s '\ . V. IV'ulucy, 3 Kerr, 312). It was not necessary, under the English practir: re Vive/ it f > cne onijosite D«rtv f^'*-'' t--.-,-- .- j .. i u i. • l > 1-^ "*= r-".M'- "••'-". »o r./.. 495), but It had to ac- conjpr.iij tt- ■ ,miu::;r books (id.- Parka- v. RUey, 3 M. & W. 230). TRIM IV IKUM, l8,jr), R. 3 97 (c) See R. O., K. T. a Jac. II. ; M. 1. j8 (,ci. til. The iioints dilivered to the jiul^jcs with the 'K-murirr books were, by (Iw: Kiig- lish ptnctice, alti>j;etlKT(li'4iiict from the niar|;inal N Jur. Hjfi, «. ; /'m/ V. S(nv,/i, 9 Jur. 177; .h/>oiiin v. .Iw/./s,,,,, 1 (). I». 498; /',(/■/■,» v. A';/./, 3 M. A W. !/f, 2 U. N, C. 479, 1 .Scolt, 708; />»wl. 101 ; and see llWini'i^ v. .SA .Imtr.Tfs S. Af, Co., I All. 580). Hut the judtjes are n■<■;/,/ v. lUillofitU, II A. \ Iv 841 ; .SV(-// V. C/i,i/>f',l,ri,; 4 M. * (;, 336), aini it would scm that the Court would ndjudicnte, without nrjjunuiit, ui><>n a substantial poiirt which sutJKests itself to the judges though sueh i)uint is not stated {^*x .tihoiiiii v. .-tiu/.rsoH, sii/'/a ; t),Tan.\ v. .Ins/in; C. I'., 3d Dec. 1840, in which c.ise the Court considered they could not abstain from noticing n ground of giiierni demurrer, even by coi, ,ent). The Court of (Jueen's Heneh, in one instance iKistponwl n case, in order that nr ob- jection might be siatwl in the margin {CM;' v. 6V,mj, cited 3 M. He VV. 235; .md «ee Jiroois v. //u>,i/./„rys, 17 I. J., C. 1'. 34)— f/«V. /-orms, 495. Though tlie party cannot claim to be heard, the c:ourt may, in llicir discretion, give effect to appar-vnt faults {.S/iimi V. S/nm; 8 U. C. L. J. 122). in Siwcial demurrers were abolished by C. S., c. 37, »s. 92-3 (36 Vic. c. 31, ^ , 95-6; see 14 Vic. c. 20, s. I ; Stat. 15-16 Vic. c. 76, ss. 50-i), but objections which *ouM have U-en grounds of such demurrer only, may be taken on application to the Court or a judge, I'or instances of such objection.s see Cofiuni v. Tay/oi; 2 Kerr, 120; St. John Afiv/uniUi If. /•'. Co. v. Kirhy, i,i. 646; Jiaam v. /o/ms, I All. 257 ; IVihoH V. ^rett, 2 id. 629; Dabrisay v. McLcod, I Han. 122; Gthson v. North Ji. &' Af. I. Co. 3 Pug.s. 83 ; C/,iriv v. Harding, I 1'. & 11. 495 ; Driscolt v. Jiarker, 2 I*. & n. 407: duplicity, lioydy. AlclMu^hli'i, I Kerr, 210; Watson v. KoUrti, I All. 108; Collins \. AlcDonndl, id. 250; Kdchum v. Protictwn Ins. Co., id. 136; Gilmnn v. Phdan, 2 1'. & H. 340. A general demurrer is, as before the Act, admissable only when the pleading of the opposite party is bad in sul'stance. It lies for a deiiarture in pleading {St. John Ate- chanics W. F. Co. v. WhUncy, 3 Kerr, Wt,; James \. Koach, 6 All. 28; Domvillc v. Kci'an, 2 Han. 33 ; J//i» v. /iani 0/ N. B., I P. & li. 446 ; //,// v. Af offal, 3 /,/., 261 ; Calhoun v. Afutual I.. Ins. Co., id. 13 ; (Jiliert v. Raymond, 3 P. & B. 315 ; Hanington v. Girouard, 3 Pugs. 156). A misjoinder of counts in assumpsit and de tinue was considered a ground of general demurrer {Allen v. Hank 0/ N. B., supra). So the omission to limit a plea to that part of the cause of action to which alone it is an answer ( Willett v. I.ockhart, 3 P. & B. 637 ; Grattan v. Givan, I P. & B. 711 ; Ash V. Pouf>/<€7>ille, L. R. 3 Q. B. 86). A plea cS lien in an action of trover {Neviuty. S.h,>fitld, a P.& B. 435), and a plea of payment, substantially varying from the form given by the Act {Craigy. GlasUr, I id. 512) have been held bad on de- murrer. See Bank of X. .S\ v. Estabrooks, 3 Pugs. 71 ; and Daw v. Btotk, id. 433, where counts on a promissory note and a judgment of the Privy Council were held demurrable. See, as to striking out embarrassing or sham pleadings, C. S., c. 37, s. 88 (36 Vic. c. 3't s- 9' ; Stat. 15-16 Vic. c. 76, s. 52) ; Mtlntr v. McA'tnut, 2 P. & B. 383 j 13 n 9« TRr.vrrv term, 1840, r. j. r;.A/ V. /A^n//.J^ 2 K...rr, 7. ; //',/..;, v. A^hnso,,, 3 Kerr. 474; GM.rt y. Cra/.am, -»/(?_)'<■; ,)/ .V. /()//«, 3 Pugs, 226. If the objection be, that the pleading is open to general demurrer the case is not Withm the 88th sec. (/■. v, S.Mers Co., 3, L. J., q, b., p. 454) Tr/a/s by the Record.-^~Paper Book, \. It is furtlier ordc-red, That in any case of trial by the record, .t shai be sufficient for the p.rty to make up and deliver to the Chief Justice one paper book, instead of ddivering books to all the judges, unless the Court should otherwise order in any parti- cular case {g) ^ *^ (,^i See K. Trin- 1846, ^ost, establishing the - Record Trial Docket." Agents.— Stttdeiits. •>. It is- further ordered, That henceforth no attorney of this Court do employ any student in the office of a barrister of this Court, as h.s agent in any suit or matter pending in this Court or m the tran.saction of any bu.sine.ss before a judge, or in the office either of the clerk of the Crown or the clerk of the pleas • and that no barrister of this Court do suffer any one of hfs stu- dents to act as the agent of any other attorney. Provided, that th.s rule shall not extend to prevent the employment by a bar- rister, who may himself be the agent of any attorney, of any stu- dent m h.s office in the professional business of such attorney (/.) (//) See Estey v. iVtiMomb, Bert. 343. Practice at Chambers.—Siudents. 6. The judges will in future expert, that in the assessment of damages m vacation, as well as in olhe. matters brought before them out of Court (/), where the parties do not appear in person they be attended by a barrister or attorney of the Court • or where th.s cannot conveniently be done, that thr clerk or student employed to attend {j) on behalf of any attorney, be of competent expenence, skill and knowledge of the business entrusted to him (/) The common law appears to vest in a single judge the same equitable jurisdiction over iY. proceedmgs in a cause which it vests in the Court of which he is a cons t „t member , h.s act therein is potentially the act of the Court [Lush 700) He may extend the time for pleading in abatement (AW. v. //.,;,«.,./, 3 Kerr 111 493?. '""' ' "" '"^ ' "''"''"''"■''' '''""'''' '" '""^ <^" -"''■'' ''^''"'^ 3 Where a statute in general terms, and without any special limitation, either expi^ss TRINITY TERM, 1840, R. 6. 99 V. not le ill i- 1 r or to be inferred from its terms (see £x />„>■/,■ Innn, 2 All. 516; Sluno v. Roberts, 2 Dowl. 25 ; /otu's V. Fitzaddams, id. Ill ; Lauder v. Gordon, 7 M. i«i \V. 218 ; A'son, 4 P. & 15. 116). (/) 'Hie Act requires two sureties, and the sheriff, or defendant, may reject a bond with one only, but the objection cannot be taken by the obligor ( Taylor v. Burpee, 5 All. 191). (ff) It was considered by a majority of the Court, in IV/ieehr v. Strwart {3 Pugs. 398), that the bond should be taken before the delivery of the goods to the plaintiff, but after they had been seized by the sheriff, so that he may ascertain their value, and insert the name of the person in whose possession they were found, as defendant in the condition. The bond should not be taken for more than double the value of the goods (Miers v. Lockivood, 9 Dowl. 975). (//) "In all replevin bonds there are several independent conditions— one to prose- cute, another to return the goods replevied, a third, to indemnify t/te sheriff, and a '/;,/„/. 2 Car. .V K. 626 ; Tnnnnons v. t;./. 6 E .^ H . ^.,gs. ,55, ; and i, i, „„ ,,,f,„,^. ,,,^^ * was L,if r I T ;'<.'.;/, 3 I "gs. 398,. and a l,ond to prosecute, &c.. the .lefendant named n,^,;;ri' or some other person," is invalid („/.), and see . I'. & li. ,3. "' (/) Failure to prove title to ,>art of the goo.ls replevied under the writ ,!.• .,-, . forfeus the bond ^icry v. Miulull, 2 All. 380). ^ ' ' ^''''' (/«) The defendant, to avail himself of this condition, need not issue a writ ./• .. damages and s.gnmg judgment under t; Car. II. c. 7 (./. ; r.n.r v. wrrj wWcr^r' °f '^-■'^"''"g f --eturn, the judgment may be for the value of the goods for winch the obhgors are liable under the next clause of the condition. ^ /c> '"-""pit (K. llii. 1875, /vr«j A^o.,. 9, ,0), and {2) all actual tix^hV 1Z:'"^":A"^- 589) costs and expenses incurred by Vdefenl^ .V ^'^ ^>und under the writ ^,.. i... \. prosec:;:;^,^".^ n : ^ ':rt„:S;^e «^^..Av-v.^/....,.3P,g,398)ashe may have sustained by reason of the wi of rep evm and proceedings thereon. The remedy on the bond for the latter dH! and costs was hrst given (see PoUok v. Gar,i,u-r, 2 Kerr. 655) by ,3 V c c / T repealed and re-enacted, with some slight alterations, 1.; . r! S . c ,6, of S;i h c' S c 37. s. 204. js a literal copy. In the action for these damages, the n'rsi on (. conclusive as to the property in the goods ( Wheeler v. Stewart, supro) A^S AIL 'r;;." "''"''''' "°"'' """ •" "° ^"•^^""^'"S -'"- f^'"^/- V. Bur. MICHAKLMAS TERM, 184O, U. I. 103 (/) Al,oIisl,e,l by 30 Vic. c. 10, s. 37. Sr. .55 Vir. <:. 3 ; j6 Vic. c. 23 ; C. S., c. 5'. »• 7J. ns to issuirif; cxt'ciitiiMi "i^it s to >.l>"'-s<'ant to the Act of A.sseml.ly in such ease made and pro- vided, hesules Ins <-osts ami charges, .S:c. (<« /,, //,, usual form). ' ^_ (y) So. suhs,i„.,c.l f;,n,,. C. S., ,.. 37. Sd,o,l. - „.'■ No. 9 (.3 Vic. c. S3, Schet .s ft.rther .considered, that the .said defendant do recover agamst the said plaintiff his .said damages, costs and charges by the jurors afore.said, in form aforesaid .a.ssessed, and also ^"^ "'"'^^J-; his .said costs and charges by theClourt of otir .said La- , theOueen now here {or tn the Inferior Court "by the justices here'') adkSd of increase to the defendant, according to the form of the Statu e in sue h case made and provided; which .said damages, costs and charge in the whok amount to , and that the said defendant have Execution W Sec substitute.! for,ji, C. S., c. 37. Schcl. " I,," No. .0 (,3 Vic. c. 53, Sched. O; I K. S., c. 126, Schecl. " N "), .-ind note to for„, No. 2, supra. No. 4.~Entry of Verdict on Postea, where the value of the i-oods is assessed by the Jury {s). {Commence as in form No. 2.) In manner and form as the said hath complained against him {or in pleading alleged), and at the prayer 1 s.?!i ^'-''r^""> '^'>' ^""'^^'■- '^y "1^"" t'^^i' O'-^ths aforesaid! tha were worth' ' chattels ac the time of the replevying thereof, were worth . according to the true value thereof, which thev aT; of A ''' '^^.^^'^^t""' •" ^^'•"^^^'^^' '^^'^°^di"g '° the 'fornrof r Act of As.sembly in such case made and provided ; and they assess he de.endanl.s other damages by reason of the premises to ^ pur- suant to the said Act, besides his costs and charges, .fee, {as in the uZl ■ M m ! i1 104 MICHAELMAS TERM, lg40, R. r. W See substituted form. C. S., c. 37, Sched. "D,"No. u (.3 Vic. c. 53, Sched- "P '; I R. S., c. 126, Sched. "0").» No. s.—Entiy 0/ Judgment on the ahm'e (/). Therefore it is considered, that the said plaintiff take nothing by his suit, but that the said defendant do go thereof without day, kc And it !f. fH7.'l5y/^«"S!5ered, that the said defendant do recover against the said plaintiff the said sum of , being the value of the goods and chat- tels aforesaid by the jury m form aforesaid assessed ; and also for his said other damages, costs and charges, by the Court of our said Lady A- 9"^5"' "°^ '^'^'■e ('''' ^« *'*^ Itiferior Court, " by the justices here "> adjudged of increase to the said defendant, according to the form of the statute in such case made and provided; which said damages, costs and charges, in the whole amount to , and that the said defendant have execution thereof ^ (/) See substituted form, C. S., c. 37, Sched. "D." No. 12 (,3 Vic. c. 53, Sched. l^ ; I R. S.. c. 126, Sched. " P "), and note to form No. 2, supra. ^ Admission of Barristers. 2. It is ordered. That any attorney who may, before his ad- mission, have been an attorney of some other part of Her Majes- ty's dominions («), and who shall have been a student in this Pro- vince for one year pursuant to the ninth rule of Michaelmas term, 1st Vic, may be called to the Bar after the expiration of one year from the time of his admission as an attorney of this Court («) See R. Hil. 1823, rr. 2-3. Admission of Attorneys. 3. It is ordered. That the admission and enrolment of attor- neys may take place on the Thursday in the first week of the term, if there is no sufficient objection to the applicant {v) (v) See the former rule, Hil. 1823, r. 5, ante, p. 26. Hilary Term, 1841—4 Vic. Ex-Sheriffs.— Rule for Body. Ordered {a), That from and after the last day of this term. The defendant is only entitled to damages for the value of the goods replevied and delivered by the shenflF, and it should be left to the jury to determine what goods were «o delivered {Sleeves v. Wdso,,, i Pugs, 185 ; see s. c, 2 Pugs. 492). The plea of property in defendant is construed distributively, and the defendant is entitled to a verdict for such of the chattels as he proves property in {Hanington v. Corviier, x Pugs. 212). See the form, Read v. Botsford, 4 All. 476, where the defendant is succcMful as to part of the goods only. In such a case, if the plaintiff neelects tn ^nter up judgment withm a certain lime, the d'-fendant will be entitled to the poltea (id ] 'fhe defendant is, in strictness, entitled to recover the whole value of a chattel, thoueh he IS a tenant in common thereof with the plaintiff {Baxter v. Johnston, $ All 350) HILARY TERM, 1841. 105 When any sheriff, before his going^iiT^T^rshall TrVe^sHny defendant, and a ..// corpus shall be returned, he shall and may w,th.n the t,me allowed by law, be called upon to bring in the' body by a rule (^) for that purpose, notwithstanding he'may b out of office, before any such rule shall be granted {c) — (J V|<-. Delivery 0/ Pitas. OUDKUKi), That, in future, copies of all picas shall be deliv- ered ,/) to the plaintiff's attorney within the time allowed for pleading;, otherwise the plaintiff shall be at liberty (demand of plea bcin- duly made) (/;) to sign interlocutory judgment ; and that It shall not be necessary to search for a plea before such signing, after the expiration of the rule {c) to plead. [«) It was held before this rule, that where the defendant had filed the plea htil neglected to deliver a copy, judgment could not be signed (/.,-,v(7.„W v. /mJ.,,, 2 Kerr, 82). Delivery of pleadings was required in England by K. CJ., 11, T., 4 Wni. IV, r, I. The plea should be fded as well as served, and 36 Vic. c, 31 (C. S,, c. 37") does not alter the practice in this respect ( Av.v v. /r/Ar, I 1', \- B, 507), The fail- ure to file when it has been served is, however, merely an irregularity (/,/.). Placing a paper under the door of the clerk's office during office hours, or handing it to him m tht street, is not a sufficient fding. See O'r.T v. .S/,;„i', 10 U C I J 241- l-nilich y. Huffman. I Cham. R. 80. Where the aefendani's attorney i^ presenl at the ..[x^ning of the office in the morning, to fdea joinder in demurrer, and the plain- tift s attoi-ney is also present to sign judgment, the fomier is entitled to precedence (/./.)-//,?/•, C. I.. P. Aits, s. The copy of the plea delivered need not be signed in the actual haiulwriting of coun- sel (Outlon V. Patnur, 2 All. 364), (b) See R. Trin. 1842, r. i, aii/o-a, 105. (.) Now notice -see C, S., c. 37, s. 58, a„U; p. 6, Tkintty Teum, 1843— 6 Vic. Examination and Admission of Students. 1. Whereas, it is expedient that there should be an examina- tion of persons who tnay hereafter desire to enter upon the study of the law, in order to their admission as attorneys of this Court TRINITV TKkM. 1843 K. 1. 107 It is ordered, That such ami that purjjosc from time to time I so ma ny b; irristers as m a)- f( il)l)ointed by rule (jf Court or ... - , — '^ ..|'i/w,,,iv,u uy I me (Ji v^ouri, or any two of them shall be competent to conduct the exa.nination of any person who ,nay have made application t.. be admitted a student ; and u. order to such examination, application shall be made by pet.fon to this Court by such person, statinj, his a-.e' > ace of b.rth, and present residence ; the nan^eand place of rc^i- dcnce of ins father or .^uardian. and the several branches of edu- cation m wh.ch he may have been instructed ; and ,I,at proper c mhcates as to character and habits shall accompany every such petmon ; and th.s Court will thereupon nK.ke such order for the (<') See R. Hil. 1867, By-law 19-21, /„,/. ' ' ^ ' 2 That no entry shall be made in the clerk's book (/;) of an^- tudent, nor shall he be deemed to have commenced his study of the law w.th any barrister, until he produce the certificate of the cxammers bc^fore who.n his examination may be had. testifvin' his htness and capacity. ' '^ m See R. Mil. ,823, ,-. 7, „„/,. ,,. jg. J. That in case any person shall be dissatisfied with the refusal of the exammers to grant such certificate, he shall be at liberty to apply, by pet.fon. to the judges, who will make such order there- upon as the case may in their opinion require. 4 That every student who may be transferred from one barris- ter to another, during the progress of his studies, shall forthwith dchver to the clerk a memorandum of such transfer, accompan •ed by a certificate of the barrister whose office he may be de- sirous of leavmg; or, in case of his death, absence, or refusal to grant such certificate, the certificate of the barrister to whose office he IS transferred, of the cause and reason of such transfer." ->. That the aforegoing rules shall not extend to persons who may already have been admitted as attorneys in any other part of Her Majesty's dominions ; but that such persons, before bang regis ered as students under the ninth rule of Michaelmas term, . V.c. (c), shall apply, by petition, to the Court, accompanied by the^requisite certificates, and the Court will make order there- (e) Ante, p. 84. m ill m V % lOJ? TKINITV TKRNf. 184^. R. (^. ■s/ k: (■>. That if any person, who may, after his commcncinf,' to stiuly the hiw, have discontinued the same, shall be desirous of reHinnin^' his stuihes, he •^iiail apply, by petition, to the Court for that pur- pose, who will make such order thereupon in re^'ard to the time of his previous study, as may appear meet ; otherwise the time of such former stuily shall not be allowed to such student (,o,„/, 3 Kerr, 631, .-uiil see A/iliur v. Milms, 3 T. R. 631 ; .S.nc/,/- v, Diimtni, 6 I.. J,, K. «. 114 ; Mnsan v. I\,pf,U-,vdt, 3 C. & J. 544, /,,- Ji„y/n', ft.). If not pleaded within the proper time the plea is a nullity, ami the plaintiff may sign judgment (ftra„Uo„ v, PiUW, I T. R. 689 ; M,i,Un.UiU y. //<,„///;,c, I Chit. 716 ; NolUkn, v. Stx^crn, 2 C. '*' J- iii^> ""(I he does not, by keeping the plea, recognize its validity {Lush, 407). A notice to pleail shall Iw sufficient, without any rule-C. S., c. 37, -..'^8, nitte, p. 6. For the practice relating; to pleas in alwtement, see 2 C/iit. w/r//,, :a ',v/., 909. They must be verified by afiidavit - sec 4 Ann. c. 16, .s. n. Where a defendant pleaded in bar and also in abatement, he was not allowed to avail himself on the trial of the matter under the latter plea (Mener v. Cosman, 2 Han. 240). A misnomer cannot now lie pleaded in abatement (C, S., c. 37, s. 95 ; '""''•. P- 55. nor can the non-joinder of defendants, where one of them is out of the' jurisdiction (see C. S., c. 37, s. 102-7 Wm. IV. c. 14, s. 15,3 Vic. c. 31, s. 105 ; ^tat. 3-4 Wm. IV. c. 42, s. 8), and see as to adding defendants, anU, p. 57. See as to this plea for non-joinder, Collins v. McPonntll, I All. 250 ; Kdlv v. Ualloch, 2 Kerr, 699; M<: Donald v. Cxmmhigi, 2 Pugs. 282. Michaelmas Tekm, 1844—8 Vic. Security for Costs. I. Ordered, That the rule of Trinity term, 30 Geo. III., be rescinded, and that in future, where security for costs is ordered, such security shall be given in the sum of forty p nimrjc in all' cases {a), except in summary ; and that in summary cases, secur- ity shall be given in the sum of twenty pounds {b). {a) See note to Johnson v. Glazier, A. C. MS. 142. Security for costs may be ordered whenever the plaintiff, or if several, where all the plaintiffs {AfcConnell v. Join- MtrtlAKl.MAS TF.RM, 1844, R. I. 109 •v/», I hast. 431 , Thom,! v. AVv/.r/r/.r, a t:. ». 390), perrnxncnlly (//.nsf/un v. f../r;rs a H. |||. 3H3 , /.;„, v. /r,,,^/,.^ 2 l>owl. 499, /;„./,.,• V. /.>„„■;•./,/. 622 1 Drummoud v. 7;////,,^V;,.f/. 16 (.). H. 740, /v^,/ v. M>«r/t.r. I 1I„.Ikc,. 58, resi.le ftnywhcre out of thi- ji,ri«litiioii (IhxLr v. Mor^;,,,,, 6 Ini.nt. 379 , tV/rvW/W v /»«. «'.>, I H. * H. 277 1 AV/Xv„/„. .V.-. r,.. v. /•,,/,/,■«, 6 Kx. 8t , /;,«;/;„„ v. IWifuo, 7 Kx. 8i(,).« "Hut n.listinclion it mndt- l)etwcfn domicilod Kn(('p»hmen on the one l.an.1 ami other Itritish si.l.jectH nn.l foroiKtirr,, «. called, r,n tl .• other ( (7//,// v. |K,///.<. 3 K. & K. «79). i„ ti,e case of an iM.Klishinnn. the al.sciice that cntiilcs a tiefcndant to «.curity for costs must be voluntary, as di,tinK,.ishe.i from ah»cnce in the service of the Slate < «V,,/A,// v. f,,,*//.,//. 5 II. A W. Ool)" ^Dav's C. I.. /'. A,ls, 419, and ,^T the ca vs there cited. An.l if the plaintitl is a fo^-i^ner. the fact that he has pro,H-rty to a large amount it. thi« Province seems to afford no Krso„, 7 iJowl. 573). Security may Ik: required from forc.Kn companies (/,,V„,./,vi. A'y. Co. v. />„.„■,• ,,,/n, ; AV«r««v />. Co. v. /«/ I'.x. 81 5 (W/v, &- //. A^. .V. Co. V. ir,Uisto„, M. T. 1834, Stev. Dig. 115). Where (he Ics.sor of the plaintiff in ejectment resides abroad (/>«« v. /-«//,>,/, 2 see y^,/,!', 9,,/., 536), security may also be ol,lainef,V shews that it is not merely temporary {//.„r i/UTV. Af„„,:^A's, I D. & L 394; 12 M. & W. 313). According to the case o{ yoj',u-s v. CM„so», 13 M. & W, 558 (see Sam/ys y HohUr, 6 Dowl. 274, accord ; CardrvcU v. Bayncs, 2 C. L. R. 777, contra), it must l>e sworn positively that the plaintiff is resident abroad, and an affidavit that the defend- ant "has been informed and verily believes," &c., is insufficient. The same particular- ity has lately been required in such applications in this Province. The reason given by Parke, B., \n/oyncs v. ColUnson, for requiring a positive statement of the plain- tiff's absence is, that the defendant might, by Stat. 2 Wm. IV. c. 39, s. 17 (15-16 Vic. c. 76, s. 7) take out a summons to be informed of the plaintiff's residence, and therefore there was no difficulty in making a positive affidavit. Though it seems to have been in the power of the Court before the Statute to require the plaintiff's attor- ney to give the defendant information of the plaintiff's residence [%^t Johnson v. Bir- Uy, s B. & A. 540), yet such has not been the practice in this country, and, therefore it would profcably still be sufficient, in order to obtain security for costs, for the de- fendant to state his belief in the plaintiff's absence. But, in such case, the ■Affidavit should, at least, shew from what source his information was derived, -,A on what hi, belief 18 founded (2 Chit. Arch, 1059). See the observation ^,/. msv, Harman, 6 M. & W. 132, as to the difficulty of swearing positively ; (and see MICHAKI.MAS TKKNt, 1844, R. 1. Ill Av-a. Cot-f^y. A\'., 3 Dowl. 22, nnri /,',v v. BnuUhnw, I„ R. I Ex. 106) -Note to Johmm V. Ghuur, A. C. MS. 146. The nffiJavit should, it seems, shew in what stage the proceedings in the action are (aee Huntly v. liuhuf,; 6 Dowl. 633 ; LuzaUtl, v. /!t.'.//, I Mar.h. 376 j /,y«,.r v. Collinso,,, supr.i), but this does not appear to be clear (see Joua v. Joiws, a C. .V J. 207 i Cole v. AV,//,/)., 5 lA.wl, 161 j CInt. An/,. 12, v/., 1419; C/i,;. /-Wms, 838} D.,ys C. /,. /'. Arh, 419J note io JoAmon v. da- -iir ! Lush, 7V3). Where an application at chambers failed, on account of the insufficiency of the affidavit of plaintirt's residence abroad, a new application to the Court, on amended affidavits, was permitted (/'kf/./- v. .h,i,r„in; 2 All, 541). The form of affidavit by the defendant and liis attorney, given in CAi/. Forms lo <■(/., 829, states : ' .'ind first, I, C. !>., for myself, say — .. .'• ^'"^ '"'',"'•'•'"" "f "le ■il'ove named plaintiff is at , in the kinedom Ur ( /.v //„/».r // m/x'/if st/J/iiY to sp,;ik to iiiformatwN ivul /vli,/). And I, I). .\., for myself, say — the-sailrSdr*^ ^■"' °" '"' f"'' "'"^'^"' "J- «="'--' '" ""^ -''- '^^ HpLI^'^ ^"" 1 r i'^'i f'"' " '"'"*"' "^' ^"'' *"<* °" '''^ part and behalf of the said nn r • ?T"'' °^ ^r ^- B^""^"^*"' t'"' attorney in this action for the above ^isuch'^curUy!''"''"^ "'* '" '^" ""'°"' ^"' "'" ^'"^ ^^ ^' '^f"^'' '° S'^* The following form of bond, taken, with some slight alterations, from C//,V. Form^, 520, IS given in All. Rules, 48. ./efiZvU)-""''' ^^ '*"''*' '"'*''*"" ^^^" '•"""■'"' J'"-'" of a joint and several bond to the VV hereas, a certain action hath been lately commenced, and is now depending, in Her M^es^y s Supreme Court at Fredericton. wherein is plaintiff,^and th^e above hS .f ,u 'I Of fendant, and by reason of the plaintiff's residing out of the juris. fhe a?d nSnHffl^"""^' "^' '^'\ ''-1'"''='"' ^""^ "PP"^'^ '° <"'■ "Stained an order^ fCr) Iff ^h.ll'^ give security for the costs in the said cause, in case the said plain' Ser^a tl^.%!!M '^"/'; T'"""' °^" '"^'"' ""^ Siven for the defendant. ^ And curitTfor L ^„ * f 7* ^T "^'■";' ^^ '"*" '"'" '^^ ''^^^ written bond as se- cunty for the payment of such costs of the said defendant, with such condition as is hereinafter cont.amed Now, therefore, the condition of the above wrUten bond or eit£o?'Jh:i/"h ■' """ '^ "'^ '^°^^, ''°""''^" <''''^';^""-^'' °' *''her of them, their o either of their heirs, executors, or administrators, shall and do well and rulvDav or cause to be paid, unto the said (defendant), or his executors, administm or™ Kl case he shall discontinue, become nonsuit, or a verdict shall pass against him in the abovrnhr' T'' T^t '° ^f ^'"i "'^^'^ ''y '^^ ^'"^'^ '" tl^e "^"aJ manner Then he above obligation to be void, otherwise to be and remain in full force and virtue. On the Equity side of the Court the bond is to the clerk, and is in the sum of $500 (Walsh V. MrMamis, Palmer, J., October sth, 1880). See the form, I Grant, 438. If the defendant will not accept the security offered, it may be approved of by the clerk. For this purpose get an appointment from the clerk of a time for approving .of the security, and serve a copy on the defendant's attorney, with the names'o'f the sure- ties, and, at the time appointed, attend the clerk with an affidavit, to prove the suffi- ciency of the security offered, and if it is approved of, he will make an endorsement to i" 112 MICHAELMAS TERM, 1 844, R. r. '^LTSr '^' ^'"^' "'''"' """^ ""'" ^' '''"'""' '° '^" defendant's attorney {M/. abktif h'r"n"K 'V'?'''"f '^"'^^ "°' e'^-^ '•'^ security and proceed in a reason- able time, bail will be discharged (///// v. AVW, Bert. 281). W The summary practice was abolished by 30 Vic. c. 10, a,U,, p. 47. Side-bar Rules for Return of Writs. 2. It is ordered, That no side-bar rule shall be taken out for the return of any writ after six months from the day on which such wnt IS made returnable, and that after such six months mo- tion be made in open Court, or the order of a judge be obtained {c), before any such rule do issue (r,'ston v. O'Shea, I All 678) By the English practice, where the writ was returnable on a return day in term as .s still the case in this Province, with regard to executions (C. S., c. 37, s. ia4) the rule could not have been taken out before the return day (TiM, 9 .,/. co6 ,017 ' 7 ^. Sheriff of Cornumit, , T R. JS^ , ^. v. S.erif of lIL, ^LtZl ' ' ' In the case of a capias ad resp., under Stat. I--2 Vic. c. no, which, like that m.der U h., c. 37, s, 19, was retumable "immediately after the execution," the rule could have been taken out immediately after the arrest (see Hodgson v. Mee 1 A & E 770I In /.«./;'. />M .840) 640, it is said that the rule may be taken out immediately after the writ ,s lodged, or, it would seem, may be served at the same time, in order to hasten the arrest ; and at p. 507. the practice as to executions is stated in the same way Strictly speaking, no writ can be returned before it is returnable, though the Court or a judge may order a sheriff to return what he ha.s done upon it, and so, in some sense return the writ {Leivis v. Ho!mes^,,xo Q. B., p. 898). ' yl^T' T^''' ^' "'"'' P- ^' ^''^'^' "'''' ^^^''^' '"''°^* "'"^ returns on processes C* .'^°^"'"' '■"""'• ""^ '''"^'' '^^'^ '« ">« «"°™eys who issued the same. JXTfT °f^ ^ "''"^ ''*'''" '" °'^"' •"■ ^"^'" ^=' lunar months after hegoes 1 it ■ 1! T '• ^^' '• " ^^ '• ^"""^' ^ ''^"- 5°'. where a rule to com- pel him to hand over a wnt to the new sheriff was refused after that time). A copy of the rule must be served personally on the sheriff, or, jx-haps, his deputy appointed under C S c. 25, s. 6 ,^. v. Coles, Doug.4.0; C,J;. /'.V^Ba^esf «: 3)> and the original rule at the same time shewn (R. v. Smilher.; 3 T R 351) judge {Jarv,s s M^lUr, Bert. 19.), make his return within the time limited by the rule which m this Province is twenty days, instead of six, as in the Queen's Bench (R M. 1. 5-6 Oeo. II) ; even though the wiit be executed by his deputy, without his ex- pr«s authority (Armstrongs. Brcrwn, 3 AIL 399), but not when the plaintiff has ap- ll ' i MICHAELMAS TERM, 1844, R. 2. ,,3 M & (., 9,4). In the latter instance, it seems, the objection need not be taken, except or the purpose of obta.ning costs, by motion to set aside the mle. but may be uTedTn resistmg an attachment (M„,>;sto„ v. 0\S/u;,). When the^rule expire,! in vacation, the sheriff could, in the Queen's Bench, before Trinity Tkum, 1845—8 Vic. Special Consent Rule.~Co-tenants. ORDERED, That in every action of ejectment, when any per- son or persons shall apply («) to be made defendant or defendants m such action and to be allowed to enter into a special consent rule to adm.t lease and entry, but not ouster, unless an actual ouster of the lessor of the plaintiff by him or them should be proved (^), on the ground that the defence to the action will in- affidavit (d) on wh.ch such application is founded shall state the person or persons with whom the party so applying claims to be ptnt tenant or tenant in common; and that he is advised and be- lieves that he IS joint tenant or tenant in common with such per- son or persons. * («) To the Court or a judge (see Doe d. Richards v. Day, i All 440) See ., ». nrrs^tV:^""" ^^^'"'- -' '^^ confession^;? ousted d">;i:: (^) A demand of possesacn by one tenant in common, and a refusal by the other and VoTrin' T: ''\'' '^'^'""^^ ""^ -""'^ P-P-'y. - evidence of an out" e^an?;f "" \f ' ' ' '''''■ '' '' ""'' ^^ ^"^"^^^' ^ '° P-^f °f ouster by a cT enant (firowny. Afoon; 2 Pugs. 42 ; .mSon v. .S>«///,. , P. & b ,on ■ l,sj £ '3 <■'/., 980 ; J/ar. C. L. P. Acts, 537), ^^ ' ^'"'' ^'•' is rl// ?-f ^'^"'P- '73; ^/^-'/.. 7 Mod. 39, Do, d. /I^///. V. /.... 4 DoJ ('/) See the form used prior to this rule, r/.M's Forms 670 . ,. ,„j ^ thereon and the con^-nt rule. id. 640, ss. 72-73. ^'' ^ ' '"'^ '"''" ""^ ™'' Sill .p::^Sff s'j::t; s;':^ s;'^ a°a'"" ""'" ^^'''"''" ""*• • \ f 1 Li 114 MICHAKI.MAS TERM, 1 845. Michaelmas Tkum, 1845—9 Vk; Demurrer Books, -Deliverv of ORDEREn {a)^ That if cither party .nakcdcfault in the dehvery 6 Wm fm ^"t'" '•' '■"'"'^'^'^ ""^ ^'^^' ^"'^ ^^ "i'-'-y Term. 6 Wm. IV. (^), the other party who has comphed with the rule may move for judgment, without havinjr delivered books to all the judges {c). {b) An ,; p. 71. tuliZZ.^^/ofr'^'"''''-'^^^^^ ''— books to the senior instead of the junmr judges, in consequence of which the plaintiff got iudc- men under the above rule, the Court refused to set aside the judgment wi hout an affi- dav,t o ments, .t appearing that there was an issue in fact to be tied, in wi Vlsub tered, if the Court would permit {.4„e practice on trials by the record. 2 TM, ^ .t., 742, and see R. East. «78S. r. I. note, ante. p. ,, as .0 what constitutes a record. On a trial by the record eiir:?;?'"^ 7'"r";"" " '''' P"'"'' "^•^^"^^ 'h^ record tricrc;': ^sponded wuh the record set forth m the pleadings " (^>-«,. v. -r/<,<,a;/. Her.. .,3. An amendment may be allowed (AW.v/. v. IVatson, . All. 2 , C. S. c. 37 s .6,! If a proceeding be improperly enrolled as a record, in order to support n av 'rme t f See r'h ; "«T '" "' """ "" """"" ^'''"""" - ^'"^-'^. 3 Kerr. 509) See R. II.l. ,848. r. i. pi. 5, ..s ,„ pleading judgments. ^1 ^r' 7'k ^1." necessa,y--R. Trin. .840. r. 4. .;;/.. p. 98. Cou!,. ' • ^'' """ ""^ '° '^ '^""^-'^ ^-^-^ 'he opening of the /.. ///<• <:xa»,wa/,-<>„ of ptrson, as Students at Law and Attn, •' I. That before any person is pret;ented to the barristers' society for he purpose of bemg examined, in order to his being enl ^ed "^ a J" dent m he olhce of any barrister of this society, he Sia present i .u i' n.n to the benchers, setting ibrth his age. place of binS^Xe o. education, he braiuhes ,n which he is prepared to uuiergo .ai^Jx 'm .nation, and the name of the barrister with whom he purpoSs sU dvi'^ narnstt r, as to his character and habits, ami that he verily believes him tobeaproper|K-rson to be admitted as a student at law and u on such applicant bemg approved of by the benchers, he shalTle f" llv S tSton 'S ^ ' ^' "'" '"'^ ''^"''^'^"' "'• '^^y ""■'-''-' "f »'>-'»>. at i-'red- "2. That upon the applicant passing such examination and the .cnchers being satisfied as to liis moral character, good hab t's nnd fit n/J^^Ko?'"'''''''"''^ ''"^'-^"' '"'''''"K "Implication for admission as an attor- ney shall give a term's notice thereof to this society, and shall undergo a f 11 and strict examination before the benchers, or any thrJe of them n he eementary principles of the law of real and pcLnal p opS y' lorms of action, pleading, evidence, and practice (e). V^'^l^^riy, *'•♦•. 'I'hat upon the student passing such examination, and the bench ers being fully satisfied as to his moral character, habis and induct anS t m^ n?'^ rf -V ''-' '""f •" — --ded foriis^^n^a an attc uey (/); provided always, that in case any student shall not nass his examination before three of the benchers as aforesaid, sud benchers hall report the fact to the whole body of benchers, and he mav£ heard before them against die refusal of his certificate. ^ " 5. 'I'hat every attorney applying to be called to the Bar shall give MICHAELMAS TKKM, 1847, K. I. Ii; to this sccioty a tc-nn's noli<-,.. o{ such his int.-ntion ; unci if, .hiring the >fn<„J s>.,,:o h>s a,ln,iss>„n as an attorney, his ,>raost. {/) See R. Mil. 1867, Uy-Iaw 32, /os(. ig) See R. Hil. 1867, l)y-law 25, /,osi. J!^^z:::: """'^' '• ""• ''''• '■ '• "-"^ "• ^^ ' ^-'^ ^' ^-- '«s6././. Nisi Frius Sittings in the County of York (». 3. It is ordered, That after the present year there shall be sit- ■'An Il8 MICIFAFLMAS TKRM, 1847, R. 3, tm.tj.sofN>si Prius for the county of York after the Hilary and Inn.ty terms of this Court only, that is to say: Sittings after Hilary term on the third Tuesday in February in each and every year, and s.ttni-s after Trinity term on the fourth Tuesday in June m eacli and every year; the said respective sittings to con- tmue for so long a time as. in the opinion of the judge holding the same, may be necessary for the dispatch of business depend- And it is further ordered, That all the parts of the general rule of Michaelmas term, in the sixth year of the reign of King W.lham the Fourth, which relate to Nisi l>rius sittings for the county of York, shall remain in force, excepting the appointment of such sittmgs after the Michaelmas term of this Court. (>) See K. Mich. 1835, ante, p. 51. Papers annexed to Affidavits. 4. It is ordered. That from and after the last day of Hilary term next, the judge, commissioner, or officer taking any affida- vit to which any other paper or papers may be annexed, do at the time of taking such affidavit, mark every such annexed paper with his name, or the initial letters of his name (/{•). Kk) R. East ,848 /../, excepts afTulavits by shcrifTs, &c., of service of writs. See Mtlner v. OMct 3 Kerr, p. 619, Ijefore this rule. The affidavit shouM describe the paper as the rule. Ac. "annexed' (/.uiU-lt . BoL J«. 4 Dow 282). The English practice requires a certificate ,„ i,e written on he document {AV ^//,>„«, 10 Ex. 561). ^^^A^ocument may also be verified by referrinR to it in the affid.,vi, ns an exhibit. 2Si§|Sg|pHpS5 And the instrument is identified by a certificate thereon- for'e' mfoiMli: "'''' ":s'"« r""^' ^ 'ir' %v^'' •'^''■'^^'■'•' °^ ^'- "•• --- ^- Forms, ^. ^ • ^'^•'"('>mmtsswner,&'c."—Chit. This course is adopted for convenience, when it is desired to keep the document so sworn ,0. but though it is no. in such case required to 1. filed with' the al vT t s :»( IIIJ.AKY TKKM, 1848, K. I. Hir.AUY Tkum, 1K4H— 11 Vi Affiaavit of illiterate />erson. 119 1. It is okdkkk.i, (,/), That from an,! aft cr the first day of com I Kastcr "" "-^^^ "iiv-n. ,iiiy iiiruiavii IS tak( s.oncr of this Court (/;). made by any person imable to write (r) orappeann^^ tobe illiterate (./), the commissioner takin^r such affi- davit shall h.mself read over, and, if necessary, explain the affidav.t t<, the party makin,^ the same; and shall (.) certify or state m the jurat, that the affidavit was read by him ''thc- commissioner takinj^ the said ^(a) Taken from R. G., K. H.. K. T. 3, (ieo. I,,,, see Practice Rules of ,853, r. (<■) The words " unable to write " are not in the linglish ^ule. (d) In the Knglish iule, "who appears. />•.,/, tns signature, to be," Ac A marksman ought not to sign his name in full, though hi. hand be guided ( V. C/iristo/>/uT, II Smi. 409). b ^M An affidavit signed in a foreign character may be read, though the jurat does no, state the affidavit was inierprete.l (Nnl/.a„ v. Co/u-n, 3 Dowl .70) n Cotter y. Hnnvndl, , Pug. 356, the deponent signed his name to the affidavit b twasoherw-seunabh. to wnte , the objection, if at all available a g ound ^ rel evmg bad from the.r recognisance, was there waived by the delay. ' fJle. 1 All 47" "''^ "" '"'""'"' '° '*-■ ^"•'"g-'"-/'-CV./.-, C.y.. in I^. ^arte dal^'in' °"""w "/" """"^"■"' "^'^'"^' '" "'''"^'^ °"^'"«' '° ^'»"= that the affi. dav,t had been read /.. ttu- conu,nssion.r, was discharged without costs (E. parte M r\ ,. • ^^'' '"' '^ ^' '■ ^'^'-^'ffo/MMlese., 4 Dowl. 765). ^ .V^) If the jurat omits to state that the mark was made by the deponent it is bad but. may be amended, without re-swearing ( Ar,/... v. nialey, 9 Dow,. 3 V, ' ( //) The jurat may be as follows : ^ . y '• 35^;. " Sworn to at in ti,„ ■ - before me f c » ■ ' ^ day of A. D 18 thIrtL'M;ov;affida^irwTsTsrr::Vo:eVlr"'','^^ ^"^ ^ do' hereby «nif; A. B.,andthatheremed,4LtVv „ n,r 1'^'''.''^''' '''""'= '° '^"^ above named "C. C, a commissioner, &=€., Supreme Court" certl?; S;t walTe^dtert tXtZ '^^o^'^'^"^'^^^^ and made his mark there'" n the pre^nceofTleM "'^ «""«. R. at the Ron, ;th Aug., ^^P^'5::rR:lt\i^t.'^.^^^^^^^^^^ I20 HILARY TERM, 1 848, R. I. Jurats generally. ■\ See as to jurats, where there are several .leponents and as to alterations therein, r. 2, infnu The place where the alTulavit was taktn must appear .n the jurat (Cass v. Cass, , I). .>t l„ 698; K. ^. Juslkcs of \Whkire, 3 M. & H. 403 , A. V. Cockshaw, 2 N. & M. 378 i ,-,-;///■„, Symmcrs v. Wason, I B. .H: P. loc), or by reference to the bmly of ,he alTulavit (Grant v. />,■. 8 Dowl. 2,4; and see A', v. Bum, 7 A. iV L. 190), and this practice prevails here (Gihnour v. IKmnus, I Kerr, 88) ; see 3 Vic. c. 51 (C. S., c. 35), by which general commissions for the whole Province 'may be issued.* The jurat must state the date of swearing (Hhuhi'dl v. Allen 7 M & W 146; /« re /Joy,t, I I„ M. & P. 545! Ml v. Port of London A. Co., U. 691, Brnus^oic'k V. H,yrmer, ul. 505 ; Bnnmviek v, Shmman. 8 C. B. 617) ; and where the day stated IS a Sunday sembU; the jurat is v H'allace, 3 1. R. 403 j Jenkins v. Mason. 3 Moor, 325 ; Smith v. n'oodroffe, 6 Price, 230; Ex parte Brockhurst, I Rose, 145; see //ors/all y. Malthnvman, x M. & S IS4). and a rule obtained on an affidavit sworn before the attorney or his partner will be discharged with costs (Batt v. laisey, I Price, 1 16; llopkinson v B,uktey,%-Lxr.X. 74), but It may be sworn before the clerk to the attorney (Goodlitle v. Badtitle 8 T R. 638). If the commissioner acts as the attorney for the defendant, even before the appearance be entered, the affidavit cannot be used (Kiddy. Davis, 5 Dowl t68 de cided since the R. G. 11. T., 2 Wm. IV. r. ,, pi. 6 , see, however. Foster v. IvL;, 4 neG. J & S. 59,/,.r Turner, L. J ■ In re Gregg, U R. 9 Kq. 137 , Northumher- land, Duke of, v. 7W, L. R. 7 Ch. D. 777, Ross v. Skearmu,, 2 Cooper, 172) Affidavitf to hold to btiil are, however, an exception (R. G., K. B., T. T 15 Geo II), even though the affidavit be, improperly, entitled in the cause (Davidson v O'. Connelt, 3 Pugs. 684). To sustain an objection to the affidavit on this ground it must distinctly appear by affidavit (Hcdgsof, v. Walker, Wight. 62). or the statement of the party (Haddoek v. V,'illiams, , Dowl. 327) that the commissioner was the attorney of the party in the cause ( W,lliams v. Hockin, 8 Taunt. 435) "t the time he took it (K,dd y.Davts, 5 Dowl. 368 ; Beaumont v. Dean, 4 Dowl. 354). and the affidavit will not be rejected merely because it puqwits to have been sworn before a person of the same name (Hodgson v. Walker, supra ; see Doe d. Pryme v. Roe, 8 Dowl. 340, where the objection appeared on the declaration. The want of signature to the jurat of the affida- vit, upon which a warrant of attachment issued under the Absconding Debtor's Act 26 Geo. Ill, c. 13, was held to be a fatal defect, which could not be waived by applica' tion for ^supersedeas (Ex parte Mason, E. T. .833, Stev. Dig. 2 , see Bill v. Bament, 8 M. & W. 317 ; Ax parte Hymann, L. R. 7 Ch. 848 ;-omission in the copy served Ke Belyea v. //amm, 2 Han. 26). The authority of the commissioner must clearly appear (R. v. BloxAam, 6 Q. B. 528 ; Eairirass v. Rtit, 12 M. & W. 455 • ij^noald V. B^^.vn, 4 Bing. 393), .^nd the Court will not take judicial notice of the names of its •An affidavit, purporting to be sworn in the county of Halifax before a iud^e of .Mhe^T;of^:lmfni^S'&cf:Sr: L^^'B^Not State of Illinois." has bfen held to be suffident Jv/T' ^ '" ^''^ "*' HILARY l-\...n, 1848, R. |. 121 vit 10 hold to hail (CMr v Z'l/i' \ I ^'.' ' °" "" °"'''' '''''"•'' "" '""'""I*' tho>,«h ntt e„,i.;;;r ;: si;- '"^ ■'""'^'"'^" ^-^- •>-« ^- aiiowc. .„ be .ad. Sec us to .lefects in the formal requisites of alTuiavits sworn abroad C S c ,r 5 ; and see Cni/f v. Ci-c/w:/.- a MI r,8 1 , aoroad, c. S., c. 36. 9. s. 7. C--»• 456) by the alteration of a figure m the date, by wntmR one h^ure over another , nor by striking out the wonis " befo« me, a nd introducnig the words "by he Court " (..//,./,„ v. 6V„«;v. 4 Dowl C76) Ihe rule does not apply whe-e the jura, is altogether era«.d and a «w one written (Dmvson V. Wills, ao M. & \V. 663). 1.'; Easteu Tkum, J 848— 11 Vic. Clerk's Office. \ It IS ORDERED. That the following regulations be observed m the office of the Clerk of th? pleas : Entry of Cause. ■St. No judgment, interlocutory or final, to be signed in any cause until it is ascertained, upon search, that the c. use has been duly entered {a) ; provided, that where there is an interlocutory judgment, the search need not be repeated when final jud-- ment is signed ; and provided also, that entries may be made as heretofore accustomed in cases of warrants of attorney to confess judgment. I") See R. Hil. 1837, r. 2, „«/.., p, 77. Warrants of Attorney. 2nd. No judgment to be signed on a warrant of attorney after one year from its date without the order of the Court or of a judge {b). IvVZ ' r'^iV'P!' ' '-'"'• ■^'•^^'- "'■"'•. 967, and English rulesH. T. 2 Wm. V. pi 73 ; Pr. Rules of ,853, r. 26. If the warrant is above ten years old, there must .t would seem, be a rule of Court founded upon a previous rule .,W. .See R Trin '»S7. r. 3. pose. The affidavit on which the application is made should shew the due execu..o„ o the warrant, that the debt, or some part of it, is still due. and that the t'heTbrHTf '"'''^r'- "^= """"■ ^'""'^' "^ '"'■' S'^)- T^e affi avit of he debt should. ,n general, be made by the plaintiff, and, if made by another it should appear that the de,3onen; had means of knowing the facts : but if the ord^^r bl made by the judge, the judgment will not be set aside because of the insufficiency of the affidavt par .cularly where the defendant's affidavit supplies the defect (sjh v. leave on an affidavit which did not sta^'the deJdalt t^beThvl' at' Ity ti'thin'X tennj but the doctrine of relation having been abolished (C. S., c. 37. s .09. 1^-' EA8TKR TKRM, 1 848, R. I. 123 n. (//), tliis statement is now unnecessary {Cxhmin v. /////>.<■;•, I H. N. C. 3 ; A'ofiin- Sim V. /.,r/.v, 3 Ijowl. 531). U is still necessary to shew that the defendant was alive within a reasonable time before application! CA'// v. M//IM, 4 Dowl. 629). The defeasance may be so drawn a« to dispense with the necessity of making the •pphcation (see Shfnan v. Marshall, I 1), & L. 689). No one but the .Icfendant can object to the irregularity in signing judgment without leave [Jons -i. Jones, I I). & R. jsS ; see Kaymon.i v. AfcMackiti, 4 All. 524). As to signing judgment on warrants executed under an old power of attorney see R. Trin. 1857, r. 2, /<-,,/. ' Confession of Judgment 3rd. No jud{;mcnt to be .si "- r-Pec.ively («) .4«/<', p. 118. MicuAKLMAS Term, 1848—12 Vic. lVn( of Inquiry.- Notice of Countermand de L'l T'"""' ^'^'^ "'^ ""^'^^ °^ countermand shall be ceedTnl toth?"' ^° ^ ^'j--^'^ ^")- '^-y thee be.fornotpro! ceedmg to the execution of a writ of inquiry of dama-es pursu ant to not.ce unless it be given (.. at least ten days beL'e ThJ time appointed for such inquiry. ('») See I Tidd, 9 ed., l%o;a,ttc, p. 37, ^W The sheriff „ust also be notified of .he coun.er.and Watia. v. ScoU, , AIL Easter Term, 1849—12 Vic. Taxation Costs. in L'lr :?r Sei'^^r :k: ;ts""^' '=--°- "^ °^»-«' purpose. "■■ ■' '"-^^ ^°'' 'h^t ii KAHTKR TKK.M, 1849 R. i. 12: 2m\. The names of witnesses, the daysof attendancer-ind milca.^c of each witness, to be specilk-d in every bill of costs broudu for taxation (c). nol'h "n 'T """"^^^''''y "hewing cause ag.ins, a rule .<• «vie.v taxation, shouhl eallowec COS.. o opposing, He n,ie. if he ha, on.itt.l .0 f.le the am.lav.t (^ rJe^!,l!",l" "'" '7""".°Pi^°"*'"B P»«'es. that is, where the procee.lings are not by Jfaul there nu.st he no„ce of taxation of costs ( 7>..„.r v. Cr„„r ; Af,L,/ v /J' re tax the costs any^ charged (zWv. 7h4 3 A 1 505) So n affidavt, s.at.ng, "that the annexed list containsa true statement o the n mes o. the wtnesses subpoenaed, attending and examined at the trial " is insuffici nt ( Z hard^i. Mephard, 2 Pugs. 4i;2). "'xumcieni (.v/^/- Where issues are found for both parties, it must be clearly shewn by the affidavit hat the wtnesses whose expenses are claimed were material to prove the issue found Mne, 3 All. ,8 ; see /M,ert v. Nau.ngton, , Pugs. 324 ; and see as to the costs of wunesses ,n such cases, Read.. Botsford, 4 All. 476 ; Fearon v. Murray, 5 Al ,3) A party who ,s a necessary or (ut semi,.) material witness in his own cause and Iho attends the trial only for that reason, may be entitled to his expenses like anv orher witness (i%7(w V. ^ar^f.^ 18 O H eXS./i„,.y// '^/^P'^"'^^ "^e any other R ftr„> K . f u ^" ^ ' ^'""'^''^ "■ Australian Mail Co. -x E & wh^ H . ."' ': ""™'' "" ^'' """ ^'^'=°""'' ^' '^ -' -""'^d 'o conduct money lip). 1 he attorney .n the cause is not entitled to fees as a witness for it is I U !, . ^attend on the trial of the cause (/.,. v. B.sford, r P. TlHs; ) ^j^^L ^^ jO«^ //. mtmare, /., ..,/.„,, «, ^,, cJ^i P. .tt^LT""'^' T ""' '!:""' ""'" '"^'^"^"'''^ '° "»^"'' '^' ''i^l of a cause, but attended once only, was ordered to refund the fees paid him on the occasions he did not attend (/« re IVeimore, 3 P. & 1). 630). occasions he did It is a matter in the discretion of the Master, subject to the review of the Court whether he will allow the expenses of a foreign witness or only the costs of nZ mission (AfeAlplne.. Coles, 2 Dowl. 299. A. C. MS .C2) vVZl '°''; °' •\^°'"- from Boston (A,,.v v.. S7„.-*,,,H t iL Al Pul r' ^"P'"^" "^ "^ ^""«^ Ao 1/ / ^- n .. ., -'• • *• '344. All. Kules. 69; Gibson V North British I A T ?■ ,^ '• "" ^"*''''"'' '^''■^'^" ^- ■-^''"•/. 6 All. 406), have been all lowed. In the latter case, the affidavit of the pldntiff stated .< that he was a neceJ! fcw 9*.»-f--«^iiw(B. 128 EASTER TERM, 1849, R. i. lof t > 1 r" "" "" '""' "" •"' """ *"^''"'f ' """ •'« "-"vellod from Lon- bn t . at.on,l as a wuness on tho .rial, a,„I a„cn.l«I ,he numl«r of days hereinafter ta ed, and was exanuned as a w.lness .,n Lis own behalf ; that, in order to arrive e e n tune or t e tr.al. he was ohh«e.l to come out l,y the steanK-r ,0 New York, the y ak,n« hed,stanceh.wasohh«ed,o travel for the purpose of attending ad 11 3S0O m, es and upwar.ls ; that the distance he will have to travel in retur,ig by the way of Halifax, whieh is the shortest route, is. as he is informed and believ s nof le ^ . an ..00 miles." It probably ap,.ared by the affidavit that the ...id nee 'or su place of abode, of the plaintilf was at London. The Master's discretion in the allowance of witness fees is not to be brouRht into r.v,ewasamatter of course (.SA/.v, v. .S..,./, . Dowl; 4..,; but if he refuses to exercse any discretion, the taxation may be reviewed^ .S/,..„;/ v. .v/.,/,. 4 C B s6o (A. C. MS. 152 ; „„/,., note {/>] p. 1251. . t v-. 1 . 400 C>/',^.v. whether allowance n,ay be made for keeping a witness in the country who would otherwise have gone abroad (A. C. MS. 153). ^ Parties appearing:; in person. 2. It is ordered that where parties who arc not attorneys of this Court prosecute or defend any action in person (c), no papers writs or records be icceived or filed in the clerk's office, or entries made, without the fees being paid thereon at the time of such tilin.Lj or entering;. k) See C. S.. c. 37. ss. 5-35. as to suing or defending in person. An appearance m i^rson need not be m the own proper person of the defen That either party may give notice of tral by the record and enter the same pursuant to the rule of Tnmty te. n, 9th Victoria (.) ; but that if notice be given by both parties, the notice of the party seeking to perfect the record shall have precedence, provided he duly enter the case, and deliver the paper book to the Chief Justice. (rt) Ante, p. 115, ^^(^) Judgment, as in case of nonsuit, cannot be had (K'My ,. McLaughlin, 3 Kerr, (r) Ante, p. 115. Eastkr Term, 1850—13 Vic. Service of Process at Divellivi^. 1. Whereas, by the Act of Assembly lalh Victoria, c. ^g, s 44. the Act of Assembly 7th William IV., c. ,4, allowing seivice of process to be made at the usual place of abode of the defend- ants, ,s repealed ; and the said Act of 12th Victoria (a) limits and restricts service of process at the dwelling to cases where the de- fendant Shall be within the jurisdiction of the Court at the time of such service ; and the rule No. 2 of this Court of Trinity term 3rd Victoria, is thereby virtually superseded : It is ordered. That such "rule be rescinded, and that the affi- davit of such service shall be in the following form, or to that effect, in order to entitle the plaintiff to an order for perfecting such service ; " 'A. B. (/5). sheriff of ^^r A R of ^a . c .he .h„i«-„f ,, „,u„h Utl^SL, .ha. ha, .hU dlSm' EASTER TERM, 1850, R. T. ,3, process (.. the housro'fnV'tC^pS^ '" ^"^V^'' ^ in the i)arish of in the counn- ,?f ' 't T-'' '^'^^ '^""'''^^ of such defendant (or to G H T -1 ' ''"'° ^ ^ " ^'^' '^'^ ^'f^ fendant hn Ittn/ M "i^''''^^' ^'j^' "sual place of abode of such de- service, the defendant was within this Province'' ' ""^ '"'^^' ancdc fo. mak.n.n^ a service at the dvvellin^x j^ood service the wr,t shall be delivered to the sheriff of the county ir.to Xh i .s> sued for serv.ce, and that such service be efLted, and the amdavu therc.of.ade by the sheriff, or his o,neral or special de 3 It is further ordered, That these rules shall apply ,«„,«//, mnta,idis to writs directed to the coroner (/). 4. It IS further ordered, That these rules apply to every writ or process ,ssued after the end of the present ternf acco i nit he if of^^ ""'"' "^''" '^e jurisdiction of the Court, such bdief!" '""°" "'"•'"^ ^"'^'^ ^"«""«"^> ^'-""g his reasons for as to seivicc of process abroad. """ 'S^'»i ' ;.'!l i I'^l '32 EASTER TERM, 1850, R. 4. •erv.ce can be made on the agent, wheti.er the coq^ration be foreign or not. If the servce ■« on any other than a duly qualified officer of the company, proceedings may be stayed w.thout costs (.S>.,- v. .I/Aer, Ar,„h,,r Co., 2 Pugs. 260). See as to service on companies incorporated under Dominion laws, Stat, of Canada «-^7 Vic c 12 s. 4« ; 40 Vic. c. 43, s. 61. J JJ • • •■'. That service on a hmatic need not be persona?, see Day's C. L, P. Acts. 40 ; 4 Fish. Dtg. 6916 ; but see S -«. r- {c) Where the name of the person to whom the writ was delivered was omitted, the interlocutory judgment was set aside (S,iwi„i: v. GoJsoe, i All. 441). ( which a plea />.,.> ,/,,;vv/.; ,■.,;//,,«,,,;,, ^ heretofore pleadable the Court or a ju.lge otherwise order, such notice shall not l. ,1 lowed if Lt' cei'H!n ^' '?,?'""' '"'' '""' ^"''' "^"''"P''^'" 37 oHhe Consolidated Statutes of '. Pro .1.. -.CO,,, ,3 5„ «"' T w L ,h " 'h'^'Tk T""""'-' "' -'■'■"""1! " An,,ic..fo,r.„c.of U„,.Mfa„^ Kas >he „„ afc, .. . ,p„,„ p,„ ,„ ,„. * Oit(crr. whether !*■ "-i" infaj--i- i ii. • i and so entille a M^^^^^S':;,^^^'^ ''^T "^ ""^^ "^ '-^"«'^. 4 TRINITV TERM, 1850. i '35 '^-^S-PM o fun costs undev Stat. 22-23 Car. II. c. 9 ,.,/,„-/. v 6V/«.,„.. 3 All, 70). Ihe statements ,n one notice cannot be used as an mlmission on the issue ra,sec! by another notice (A>„/;, v. AV>v. 2 Pug. 3,2). A notice of tender as to pa.t of he «'">iS''l for defendant. Dated this day of ^ ^^.^ ^^^- "^-^ 'O'tnsel for defendant. Mr. P. A., plaintiff's attorney. Yours. A-'r " t\ k 1 ^ , . ■" -^ K ours, AC, y>' ^., defendant's attorney. '1 1 \[ H t *L ^1 1 1 {'<■ JH 'Pffl IH l>'J 9|S f!' 11 13^ TRINITY TERM, 1850. I m l-he notice cleliveied should, it seems, be signed by the counsel (?«*;v, whether the Act is applicable to sar, facias at the suit of the Crown ? I, does not take away the right of pleading ui such case (LeCat v, Duffy 3 All 57) i IIii.AUY Tkkm, 1852—15 Vic. Attachment— when to be taken aut._ It is ordered, That in future no attachmentToTissue unless taken out in the term during which the same may have been granted, or irt the vacation next succeeding the same, without the order of the Court or a judge (a). (<.) For the practice prior to this 'rule, see K. v. Sheriff of Glouccstn; Hert. ,87, and R. V. //„,/,v, 2 All. 433. An attachment, it seems, could not have been issued after one year from the date of the rule without an order to revive the attachment, obtain- able upon an afr.dav.t that the contempt for which the attachment was granted was not sat.sl.ed and accounting for the delay (2 Chit. Anh., ,2 ,v/., .7,9; L;,.rV Cr Pr. AtMul,x, 18 ; . G,.M\. Cr. Pr. 25.). Where a ,-, ;■/..„/•, was g.anted in Trinity erm, but the wnt was not taken out, the Court refused in Michaelmas term to en arge the rule, on an affidav.t of the attorney tha. he was not aware that, by the prac ..e, he ought .0 have taken out the w..i. befo,. Michaelmas term (/'. v. LrsLn, r 1?!' , ^^- '^^'- ^ ^"' of attachment was returnable on the first Tues- day ,n M.chaclmas .e.m. an alias was applied for in the following Hilary term • held there was no such delay as to justify the Court in setting aside the alias, the defendant not shew.ng that he was prejudiced by the delay (A', v. A/,,,//. , P. & b 2^8) An appl.cat.on fo, an attachment should be promptly made, or the delay explained by affidav.t [Cotton v. Slack, I P. & B. 515). *P"«.neu oy An attachment can only go with the consent of all the judges { Arr Ritchie C / in /ow^-j V. .yw/V//, 2 Pugs. 45). . -y.,"! f r! t -^u "■ J^^; ■"' ^' ^''"' "' '° '''" """'^'■y indorsements on the attachment, and R. M.ch. 1874. form No. 7. as to issuing an execution in lieu of an attachment. The cases on the recovery of costs by attachment a.e collecte/., 43/- Doed.St/oh,: s Church v. Cra../on.\ 3 All. 266; Docd.Sar,r,a„ty. Sar,^ca„t, 6 All. 67; A-. V. DeLa„ey. uf. 186; Athn^o,, v. A/itchell, iJ. 345 ; Gilbert v. Cyr, M. T. .870 Stev. D.g. SI ; A'obichcau v. Turner, T. T. 187., /,/.; Cott..n v. Stack, I P. & Ti.J,: Attachment for costs was abolished by 37 Vic. c. 7 (Doe d. OeVebery. DeVeber 2 Pugs. 4.7). and restored by 38 Vic. c. 4, s. 20. now C. S.. c. 38. s. 26 (Bishop y. Meehan, 2 P. & B. 328). Easter Term. 1855—18 Vic. Neiu Trials from York Sittings. 1. It IS ORDERED. That when a rule nisi for a new trial— or EASTER TF.RM, 1855, R. I. U7 It of the like kind-has been -ranted in a cause tried at the sittings for the county of York, the case shall be entered by the clerk on the special paper for the term at wiiicli the rule is tjranted with- out Its bcinjr necessary to serve the rule ;//>/, as in other 'cases unless the Court shall order the same to be served, and the cause -shall be called on for ar-umcnt in the order in which it is en- tered (a). {a) See R. Hil. 1867, /^j/, and n»/r, p. 50, as to motions f«r new trials, A'u/es under the Act relating to Jurors. 2. In reference to the Act of Assembly, i8th Vic. c. 24 (d) in- tituled " An Act relating to Jurors." it is ordered as follows :' FerJiet and Postea, where Jury are not unanimous. 1. The clerk at any Circuit Court or sittin-s shall enter o.-, the minutes the time when the jury retire to consider of their verdict, and also the time when the jury return into Court to deliver their verdict. 2. If they return within two hours, the verdict shall be taken and entered in manner heretofore accustomed. 3. If they return after the lapse of two hours, after they are called over by their names and answer thereto, they shall be asked thus-" Gentlemen of the jury, arc you all agreedon your verdict or how many, and which of you. arc agreed thereupon .'" If they shall answer that they are all agreed, the verdict shall be taken and entered in the usual manner. If they shall answer that they are not all agreed, but that five {or six) are agreed, the names of the jurors by whom the verdict is so returned shall be taken and entered in the minutes, and the verdict shall be re- corded (f) as follows : The jury having considered of their verdict, and not being able all to agree w.th.n two hours, five (.. six) of their nvnnber. namely. A B/2 .S] '^'''^^^^' ^"^ ''^ ''^'^ "-^'^^ ^° ^'"'^ {the finding to be here This entry shall then be read over to the jury distinctly, and shall be returned on t\\c postea as follows ; [Commencing in the ordinary form {d).] fhA"^?%\T'' °'" "'^' J"[^ ''^'"^' summoned, also come, who to speak the truth of the matters within contained, are chosen, tried, and sworn, 18 I, i m f ■■! us EASTER TERM, 1855, R. 2. and having retired to consider of their verdiVt ..n.i n^» k • vi Oa^/i ,>/ ConstaHe in cluir^e of Jury slvUI be 'x "m1 "*" "^' ''"'''^''" "'^^ '^'^"" '^■■'^"^ ''^^'^'^ °f ^'^^ J"'-y^ .siiiiii DC as l()li()\v,s : ' Vou shall keep this jurv toL'ether \n nn,. ,^( fi, ■ ^ ■ . ■".'<■ '"";*; '■;;■ '", * (•«■■ '^ ^n^;^^:^^i "^^^^ Tour! Js„ w;.".;':,i;s M. "" '"•■■" ''"''"^■' --i" >■>■ '''--'i"" »f "•» ■ , , ■' ''9«-2) , but ,///,r/v, whether he can so e»ect affer if .. pronounced, but before i, is .eco.led ? (/„,„,,,« v. a.,na, 4 All 4.", ('0 See the form post, U. Hil. 1875, I'orm No. 4. (.•) This oath omits the clause depriving the iuiy of food &c in nrr?.r .., . •. confo.. tothe practice introduced \, tsVic. \. ^ s.t C s'.; .Tj ^ o" '' '""^ It has been held in several of the Courts of the United S.n, . .1 . .^n r.0. t,>eH«e to thejur, n.de after the l!: ';:;:;^d ttSli^: ^ T^'u: b.„ce o the parties .s ,.ound for a new trial ,.V.,. v. C.^.^ ' 'o aI R p'' 690). ] he jury sepaTat:ng after the judge's charge, and before ver; it will not n ^aluLate e verd.ct, if there has been no tampering with then. „.r,n,X LT , ' H. T 1828, Stev. D,g. 296, Annleders. IMhcrnuu, 3. Am <*;» c,ol Wh.^l' after the jury retired from the bar. the defendant conversed wUI ttm • tc^ tlj cause and supplied them with victuals, the verd.ct was set aside f r V / .^ ^ J83.. Stev. Dig. 290, A.davits ofj.rymen. stating t:^:;^;^ ^^^ Sl^ after ret. .ng. can,K,t be received to impeach their verdict (.Zy G.ural v. ^^^ A ^e'rl^' ;l , T °'^^"'"" "''' '" «'^""=''' i-dmissabk on motions to set asid; erd.cts (fL,,,so,, y Carr, 3 Kerr, 499 ; BM.U v. CV.y^.vV/..., 3 All. 373 o^^" Michaelmas Term, 1855—19 Via Jtgui(y Appeal Paper. It IS ORDERED, That a paper be prepared by the clerk of the Court^on tne Equity side, and delivered to the Court on the first day . each term, conuininj. a li.,t of the causes in Equity in Which appeals are to be heard, which shall be called the "Equity MICHAF.[-MAS TERM, 1 855. U9 Appeal Paper." and the causes therein shall come on to be heard in order next after the Special Paper (a) of the same term (/>) { y .^ Her VTajesty's Colonies or poss- essions m North Americ. ...r-au,; , or the West Indies, and entitled to practice as such • .:; the Supreme Courts of that Colony or po.ssession in which he may have hccn ori-inally ad- mitted a hamster, mav, upon the recommendation of the Barri«. ters Society, be called, sworn, and enrolled a barrister of this Court, and entitled to the ri.^dns and pnvik-es as such, so lonj^ as he shall be a member of the said Harrister's Society ; provided always, that no such barrister of any other British Colony or possession shall be entitled to be admitted a barrister of this Court, unle..s it be proved to the satisfaction of this Court, that a barrister of this Court would be entitled to like rights and privi- Icjjes m ail the Superior Courts of that Colony or possession" in which the applicant may have been originally admitted a bar- rister ((/). mfv K^"^?"^"'^ ^''°' '"•■"'■' ''''' "'^""^''""' ^""^ "" ^'""■•"^y "f some Hritish Court may be called to the Ba.- one year nfter his admission, ante, p. ,04. He an not be admitted an attorney until he has studied one year in this pLince. "m ch 837 r. 9 [ante, p. 84). and ,«ssed an examination (/,/. r. 5, and .^e „.., ; 35) "' Michaelmas Tkkm, 1856—20 Vic. Judgmmt Roll~Intcrest~-Final judgmmt delayed. It is ordered, That where interest is awarded under the Act lt'^t^'"'l !"■ " ^^' '• '^ <"^' "^^ '^''y °" ^he judgment roll shall be in the form following, or to the like effect ■ thi'sSr^SJl^trtt '^SS.^^r^ ^° recover against the Court here to the caid plaintiKJ^ett upon ^ ^1^1^. 'Mi /si m 140 MICHAELMAS TERM, 1856. if (j^r debt) pursuant to the Act of Assembly in such case made and pro- vided because the final judgment has been delayed by the act ofTe defendant ; and also for his costs and charges, &c. &c. &c wh ch sa Id damages, mterest, costs, and charges, amount in the whole to . " {«] Repealed by 36 Vic. c. 31, and re-enacted by s. 123 (now C. S., c 37, s 120- .ee .Stat. 3-4 Wm. IV c. 42. s. 30; Pleading Rules of .853, r. 26. Where the judgment of the Court, setting aside a verdict for the plaintiR; was re- versed on appeal, the Court considered that the greater part of the delay was caused by the Court .n ordering a new trial, and refused to exercise the discretion given bv the Act m favor of the plaintiff (^/.^;,v v. Co,u,ueraa/ /,'„„,, 2 Pugs. 324). It wasdoubted m that case, winch was an action on the case for false representation, whether the Court cotdd allow interest in other actions than those brought for a liquidated sum of money where mterest was recoverable ; and in an action of trover {M.o Brun.^.uk R Co.y. Muyrav, 2 P.& ii. 412). and an action on the case for unliquidated damages, where mterest had been allowed by the jury [Burpee v. Carvill, 3 Pugs. 235), intere.l[ has been refused. But mterest was awarded in McGivcni v. Stywest 5 All .24 an action on a policy of insurance for average contribution-in the Connncnia! Ba^k ^ European Ass. Sy, 2 Han. 245, an action on a policy of guarantee-and in fZ/Vvr/ v Campie//, ,d. ss-60, an action for the breach of a special agreement. Where the ver- diet .s for both principal and interest moneys, interest will only be allowed on the obtamed to enter the judgment //«//<- /,ro tunc (id). Anr"r?«A T ^l ''"'"^ ""'•" "'"'"°" "P°" J"%nients signed since the 23rd of Apnl, 1862, If a direction to that effect be endorsed thereon (C. S , c ^7 s I2l-2e Vic. c. 25 J see Stat. 1-2 V.c. c. no, s. ,7 , Pr. Rules, .853, r. 76) " ^ Trinity Teum, 1857—20 Vic. Interlocutory Judgment.—Mcmorandum of 1. It is ORDERED, That from and after the present term in every memorandum ofinterlocutory judgment, the term at which the writ has been made returnable be specified on the margin or at the foot of the memorandum, and that it be also stated whether tl;e action is summary or not summar>- (a). (a) 30 Vic. c. 10, abolished the summary practice, ante, p. 47. Writs of mesne process are not now returnable at term. The date of the entry of the cause must be stated on the memorandum -R Hil '87S1 r- '. pl. 4, post. Warrants of Attorney executed by Agents. 2. It is ordc jd. That in no case where the warrant of attorney to confess judgment appears to have been executed, not person- ally, but by an attorney or agent in the name of the principal shall any contession be signed thereon by an attorney of this TRINITY TERM, 1857, R. 2. ^ 141 Court, unless the deed or other power conveying the~aut"h^"t^ execute the warrant, together witli an affidavit of the due execu- tion thereot by the principal, be produced to, and read and ex- amined by, the attorney who is apphed to to sign the confession, before s^^n.ng the same ; nor shall judgment be entered upon any such confession, unless such deed or other power, and affida- vit of execution, be produced to the clerk and filed with the war- rant of attorney and confession (/y . (b) In mMi,.s.n V Joln.on, 4 All. 40, decided before this n.le, it was held that, de endan might b.nd himself by a subsequent lecognition of a bond and war „ exe ant i to. ''"''""* '"°'™' ■""'' "^" ^ "'"• '''• »''• '837, r. 4, ?. It is further ordered. That if such deed or other power bear date, or appear to have been given more than a year and a day before the application to sign judgment, no judgment be entered thereupon without the order of a judge, nor after ten years with- out a rule of Court founded on a previous rule nisi, as is now the pi^^ct.ce (.) in regard to warrants of attorney of those respective k) See R. East. 1848, r. i, pi. 2, «„/,, p. ,22. Warrants and Powers of Attorney, —Date. 4. It is further ordered, That every warrant of attorney to con- fess judgment, and every deed or other power by which authority .s granted to execute the warrant, bear date of the day upon which the same are respectively executed ; and, if it should hap- pen that such warrant of attorney, deed, or other power, is to be g.ven by two or more persons who cannot conveniently execute the same on the same day, then the warrant, deed, or power shall bear date of the day on which it shall be first executed ; a'd the day on which any subsequent execution shall take place shall be peahed m the attestation of the subscribing witness or witnesses to such execution. Warrants of Attorucy.-Signing Judgment on 5. It is further ordered. That every attorney signing a conf.s- nil ;;; ^"'""r"^'°" ' ''"■'■""' of attorney, do annex to hissig- na ure the date of signing, and do mark with his name, or initial letters of his name, the said warrant of attorney, and also any * jf 142 % TRINITY TERM, 1 857, R. deed or power under which the warrant is executed, where the execution is not personal (a'). (./) The non-compliance by the attorney with these directions does not render void uJTl^T' '' /^' !',! "t' ""' '° "'^" J"^'^™'-'"' '^ ^'^ '* '^"•'^'•'^ °f 'he omission (/-«,7 V. Muzerall, 3 All. 598). 6"tw/V^ tf/ Process at place of business. 6. It is ordered. That where service of process is made on per- sons resident out of the Province, unde- the Act of Assembly 14 Vic. c. 2 (.). the nature and place of the business carried on by the defendant in the Province, and the particular nature of the agency or employment of the person with whom the copy of pro- cess may have been left for the defendant, be stated in the affi- davit of the sheriff or deputy she.. ff making such service, or otherwise proved by affidavit to the satisfaction of the jud-e -be- fore any order is made lor perfecting such service. {e) The provisions of this Act are continued in 36 Vic. c. 31, ss. lo-ii • C S c 37. ss 9-10. The agent, upon whom the Act authorizes the summons to be served! must be a th.rd person, whose interest is not. at all events, necessarily adverse to that of the defendant .n the suit. Service on an agent, who was himself the plaintifi. was held to be wholly defective and not merely irregular (/W.// v. Robert., 2 P. & B 300). see ante, p. 132. See R. East. 1850, ante, p. 130, as to service at defendant's residence. Hilary Term, 1858—21 Vic. Barristers and Attorneys. —Graduates. It ls ORDKRED That the privilege granted by the rules of Court to students applying for admission as attorneys, and to attorneys applying for admission as barristers, when such studen's and attorneys are graduates of some college or university, be con- fined to graduates of some university situate within the British dominions ; but that such order shall not apply to any student already entered {a,. (a) R. Hil. ,823, r. i. ante, p. 25 ; Mich. 1835, r. 13. ante, p. 62, Trin. 1842, r. 2, ante, p. 105. See C. S., c. 33. ^ r , 4-«. *> Michaelmas Term, 1858—22 Vjc. Replevin— Postea and Judgvient under i R. S., c. 126. It is ORDERED {a). That when, upon the trial of any action of MICHAELMAS TERM, 1858. H3 tioned in the said declaration as dL^'T ^°'''^' ""^ ^'^'''"'-^'•^ "^en^ enjoyed by the said plaintTund" r .nnt oVT' "^'"" '^'^""'" '"-^'"^'^^^ and that there was due to tl e def.wlfn? f r'"'^ "^^ '"^ ^^'rt^'" ''-'"t, making the distress, and^tilus d t f s ^^ if ""' ""' .^'T ^'"^ '^^ the damages of the said defendant 1 v reison nf th ' ^"'' l^'""^' ^'''^'' rent, and the costs and charges c^^^^aSZli'H''''''"''"-' for the said follows : aciendant, the pos/,a may be varied, as "And that there was due to the defendant C I) w r / /■ -> that the said defendant, E. R, was at tho hL / ' "}^ ^""^ ^"^"'''^^ ^"^ tress, the bailiff of the said G D ''^- " th^ f T p '".^ '^^ ^^''^ ^is- there present, aiding and ass sth^g th > said r n ' ^•,^- '"'' "^^^^ ^^"'^ tress, &c." ^ ^ ''^^ ^^'^ *^- ^^- "1 making the said dis- .r n^:^:^::r;^ ™- ;■: - -; - ^ to the circumstances of the case : according ^^stst iff sJSn^i '!:r u^?. t'"f "^f "-^'"^ by ^'« >s further considered, that the said d'InH ?['"'"?''"' ^'^J' ^^^- ^ ^"d it C- D.J do recover ag^i st the s 'id nh ntJ tl ^"' '^' '^' '^"'^ '^'^^^'"^^"t !V.s damages so assessed as aforesaid ndalo '"*". "^k- ■ ''"^ charges, by the ^ourt of our said Hdv tt On , J'"" ^''^ '-'"'^'^ ^^^ the said defendant, according to the said R^vted T. ^^ 't."^«^^ '« damages, costs and charges in the wiiole\mmntl '"'"' ^ ''"^''^ '^^'^ said defendant have execution thereof'' ' '"^ ^'^^^ 'he f if' i^ See the cases cited a„/c, p 97, for instances of duplicity in pleas ; and see, as to how far other grounds of special demurrer are available in the case of a notice VVi/s.m V. .Strec, 2 All. 63 ; Ln,i,h v. IWn.u, I Pugs. 350. See ,,///.■ p. ,35, as to setting aside notices defective in si;bstance. It is a proper cour.se to bring the question of the legality of the notice before the Court, and much more desirable than leaving it to l>e decided at the trial ( IVilson v. Street, supra ; see .I/,A/ v. Carman, I Han. 593), but if the notice is substantially defective, the point may be taken at the trial {ante, p. 135). Trinity Term, 1859—22 Vic. Judgmmt Roll.— Offer to siifftr jtidgmeut by defmilt. 1. It is ordered, That in any case (not summary) where, under the provisions of the Act of Assembly, i8th Vi.. c. 9 {a\ an offer and consent in writing has been filed by the defendant^ to suffer judgment by default, for a certain specified sum as debt or damages (as the case may be), and the plaintiff has not, after due notice thereof, Hied his acceptance of such offer, but has taken the case down to trial, and has recovered a verdict, but not for a greater sum than the sum so offered, the entry or suggestion on the judgment roll shall be as follows : "And now, pursuant to (/;) the Act of Assembly passed in the eighteenth year of the reign of Queen Victoria, entitled "An Act concerning Ten der m actions at Law and Suits in Kquitv," on the day of in the year of our Lord , the said defendant C. I)., files in the office of the Clerk of the Pleas of this Court, an offer and consent in writing in the words following -.-{insert the i^/e^;-]— which offer and con- sent the said plaintiff, A. B., has not accepted; therefore, 'J ,ae joined between the parties remains to be tried : 'I'herefo-:, .ti - • xy thereupon come, &c," \as in ordinary cases, to the conclusion of /he f-^'; \ and then proceed as foUozvs : " And inasmuch as it appears by the said return, that the debt [or damages] was not greater in amount than the sum for which the said C tl TRINITY TF.KM, 1859. R. ,. ,^j and charges to , wl,ich siid c].ht r "/ i ' '''"'^ ^"^ ^'^^"^'-^ ^««ts the whole amount to Vnd th t hi I'^TJ' '°'''^ ''^'"^ ^"^^^''8^^ '" And it is further considere^rtJat h s^^'c^if-r-'^^^^-^-^^'^'^^.^hereof sa\t\ A u <• 1 • '^"^ ^- ''• do recover aLM n^^f tUn ^ ' '^"^ ^"^' h*^ "'ive execution thereof." (A li) This Act was repealed bv -16 Vic c ii nnH ,>c • • . . tions. were enacted in ss, .29:.33, o whicl C S '\'"°"'"'"^ -'"> -"- --"t-a. latter Acts expressly empowe^hfdef ndan I .ito* .^^'■" '?^"'^' " ' ^^^''^^ '^"''^ held ( ,(,,„„„.,. V. /I./,.L,, , A , '';^^;' '»"' -»-ney to s.gn the offer, it having been o-iKina, Act that the <^e.:i:^"L^ ;:::Z;i^^7^'^ ' Z r T' ''■' the expression, " pending in anv con,-, " mc /" 'P "' ' t^ey do not contain filed before decIarlXn ^' ' ' "^^ '^ '''■ '^^' "'^ °'^«' ""'^ have been The ofier may be in the following form : ( TM- of the (otirt and anis-. ) ^^^'^^^:^^VS:^,£ll^^ su«.r judgment by nia-es] for the sum of linn, ,Jr, ■ '"""^^""^ "Samst him as debt [,;;• ,k- '/<■'■ .. ,^6a,i,/, in respect to thoi.^^f /aeon's r'7^'"7''''^''^''^^ count (s) of the (lecla/a.ion in tins cause! oum ' n, f T '" "r. '"'' <-'^"'' '"'^"'^' *c.) solidated Statutes. IXiled, &c l»"suant to chapter thirlyseven of the Con- To A. n., ilu above named plaintiff. ^' ^'' ^^'"'"''I'^ attorney. mU oft„eeourtandea.J''" " ^'""''^'^ "'''-"^■ ^^^^^^^£t^i::^r^ '^y "- clefbndan, to s„ffi.r judgment office of the Clerk of the Plca^ ' ' """^ " '''■■'■""'"'' «""'-''^"'. ''^s been filed in the Mr. U. A.,,/./.„,^,,„/',„,/ Vours. &c., . '^ • ^-y P'i'fS'""it roll on acceptance oj offer ■ . ' '"^ said defendant. C I) ,;1p» ;,. -i , «• ^ , . ,' '"^ day this Court, an offer and consent .n w itinl in the wn'I "r n" ^'"'' °^ '^'^ '''^«''' "f which olTer and consent the sai< , hin i ff A \ k "'' '^"''°^^'"B -'•■"■^'■'■' //'^ offer), Jidered that the said A. T do ^^ove J.fJ ■iTA"'. Tr''^'^^ ''''^' "'^'-'■<=' " '^ ^°n for which the said C D offered i,?c!,fl-^^i '^J'' ^- ^^' "^^ ''=^''1 ■""" of his costs of suit, by tht^C^Jrie "e "£"0^^ Ih'e' s'aifi'' ,?' ^,1". ■ u ' ^^ amount to ." J"%e(i to ttie said A. «., which in the whole J/')" Chapter thirty-seven of the Consolidated Statutes." •9 tr H' TRINITY TERM, I859, R. i. f.ndnn afterward, gave notice of set.oflr, which he proved at the trial, .„d .hereby reduced the pIa,ntilT-s demand l.-dow the amount tendered, the Court, ,.,, n,.'.,. to revew the taxation, considered th.t the defendant should have renewed hi, o!!c,- under the altered position of the parties, and allowed the ,.IaintilT costs (J////„ .. /,.4«,.,„, "All. 5.0 ; .J/./,.W V. .->,/„./,,y,, ,J. 5,7). I, i3 ,,i,lf„,„,t to ,;;.,o^„ ;,. ,,_,.. ^^^ _^ (hst.nct.on between the reduction of the plaintiff's claim by .ct-off and tn.t by par, imyment. Statute of limitations, Ac, but it is doubtful whether the defendant ;vould in the latter msiances, be bound to renew his offer to .U.nve the plainUT of his costs 1 he Act expressly provides for the alte. r .n of cire :,..-.' ,u>ces between the dnteof the offer and the time of trial by the ac nu„g of interest, or, according to /i,/,,a v. S(.. ZT'"' ^/^"- 5'3. damages in the nature of interest, '.'he h,,.lsh;r of the case in .W/rry /.Jrman, seems to have had m.c; weight, and were t not that the C.v.rt s.xMm md.sposed to put a sinct construction on this Act, much n.jus'.i- e would be in- Mieted on pl.-'iat.fTs. n.e judi;. . .,., tried the cause may make an order allowing tho plaintiff lull costs, nnd he clerk ^s dir^ofd >n future ; : be guided by such order (AA/..u^ v. D.sMs.y, All. 517). U h.,-e th.. plaintiff -KLcpts and signs judgement on an offer for a sum M,sufl,c,ent ,0 can. :^.u, h. .lo,, not thereby conclusively admit thr such sum i. his .eal claun, for waicn tW action .hould have been brought, thus he m. , shew that the sun, accepteu.sthe ralanee due, after giving the defendant credit for a set-off which hehadpcaded(yw.v, //Wa,«, 6 All. .56, under ,2 Vic. c. 40, - .8), or that h.s real c a™ was „,o..e than could be sued for in the County Court, a.K, that he ac cepted the tender because of the plaintiff 's insolvency (,lA,;v-//u,so„, iV.&li. 502), and s,.,^/,, that in all cases where the offer IS accepte.1, the plamtiff is entitled to full cc ts (see i,/., and R. Trin. 18.0 r , anU p. 94). •^-^ ■" """• Where the offer is made and accepted, after a verdict for the plaintiff has been set ...de, the plamt.ff ,s not entitled to the costs of the trial ( ir.,o,/ v. .SV>;«„/, c All. 420 • /yi'iu v /'////■,.', 4 All, 164). Summary Practice, (d) -. In summary caM-es, when one of the sevr-r-l p, . tiffs or defendants shall hap , ■ to die after the commev.cemptt of the ill ■H TRINITY TERM, 1859, R. 2. 147 action, the against the ants, 4s the survivor or mcncement ant therein, ( v. SnM. , All. 508). The affidavit must also state where the venue is laid (Voe d. Crane v. fVrj>, 2 All 311) There is a substantial difference between an application for judgment for not pro dav t;-'- :r ; ''' '°™" '"''^"" ^"^^ ^'^^^"''^"^ '^ «"»'"ed to cost of th day, but not m the latter. Where the notice of trial was insufficient, and the defend ant by objecting thereto, prevented the plaintiff, who was willing to go to trial f'om so do,ng, .t was held that a motion could only be sustained on I laUer groTnd, and the default al eged in the affidavit (not proceeding pursuant to notice) being answei'd k'^Ts)." "' '"' """''' "°'°""" ^*"""' WcLj.. n 2 ( Title of the court and cause. ) o2z^A ty- ' B*^""'^"'^"' ««°n'=y ^r the above named defendant, make 2' ThnI '!l!,''*'""^''^ this cause was, and is. laid in the county of 2. Tha «iue was jomed .n this cause on the day of last " 3.. That the said plaintiff hath not. as yet, proceeded to the trial of ,h -a or given any notice of the trial of the same." ^^ '""^ '=^"'*' If the application is grounded on an cmisuon to proceed to trial pursuant .0 notice substitute for the jrd paragraph— ^ "' "3. That notice of trial was given on the part of the above mentioned plaintiff for .,. J ; S m list. 148 MICIIALLMAS TERM, 1 859. *! :. ^ the last [Ciicuit Court! holden nt :« „ 1 / ., the said plainti(Tdi•../. 2 P. & B. 463 .nor .s .t nece..ry ,n such . ..^ co ..ate in ,he affidavit, that theanest isnotm.de forth purpo^ofv.x.ngor harassing' the defendant (/,',■//, v. fiamtain, 4 P. & B. 106). Where .1 judge's order is necessary under <=<■ i 'avif npp,I n ,, ii .u P..in.in-s belief.,,, .he de.ndant is^bou. . ,uit the P-ovi^ J 1 f^s^. va,,, 3 .^ .V B. 396. mu., V. 0-.V.//..,„, /,, 44,., The order may be made or the arrest of one of several defendants (/,/.) See the following cases as to the statement in the affidavit of causes of action ex ....... common counts. Gv.. v. /,V..W/. . Pugs. 336; narUso,... O'cZu, 3 Pu,v 684-.nterest i-,«,„W. v. S„>,o,„fs, 2 All. 468 ; 6ny- v. W/..n,. , P. «: « r /I'T "°'« '"T: ^^"''""' ' ^"- S^'^' ^-^"'^-" V. A'-../:.,, a Pugs." ro Mac elan v. A.v.. 3 P. & B. 374-SpciaI agreements, A^,./„. v. C./A Han. ' . "'."^' ' , * B. 58 ; WlutUmore v. A^^.^,,-/, 2 P. & B. 361- -f^scribine defend length (7;«, V. . //..r,,-!- ore.gn cunency. .V./.W /.„,.^. /;^„^. ^. ^/,. , p b! 460. ^>2.-I.ore,gn corp ation, , /r.„ .5/<,„. a. v. Z>««^<,^,, 2 . ^ Divorce and Matrimonial Appeals. 2. It is ordered, That the clerk of the pleas do keep a paper to be called the "Divorce and Matrimonial Appeal Paper." (<5) in which shall be entered all appeals from decisions (.fthe Court of p.vorce and Matrimonial C-^u.ses ; such entries to be made on or before (.) the first day of the term next after the decisions in the said Court ; such . -peals to be heav next after the Equity ap- peal paper („ v. Thompso,, 2 Chit Ren Ril w^ u ^ ^• Province, and had no known place of evidence rh .^^ '^^^^"'« ^""■""^y had id. the' a copy under the door of hi/ oL a e nl^H^^^^ \^ "--' "^^ P"«'"6 Io'''-''' "'•• An.../.. 43s; ^n//.;. IvL' s All 6^vTw;f '''■''; '^/"- "^' ^'•^^^'^' All ,.^8. // • „ * ^^^^ °^i' '^""''''"■'i "' Fnuh-i-itoH Boom Co 6 All., 448; Mai-vin V. Buttititifll T 'r iSA, c. r-.- „ ■i'i'<"« wc, o Cluu^cy Ulan ci- ^/ / „ ^' ^^"'- ^'K' ^^S! Z?^^ d. Robinson v. sou.ce. (7>7/o' v.>" I'f D ; '^^^^^ ,7" '^"^^ '''^^ '"f--'-" ""ly ^-m this /"-^, 3 P. &. B.. 458.) ' ' '''■""' "' ''"'"'"""• S Taunt. 340, Cop/^ v. >9)-Zar.v. anJ Jiegulaiions of tlu Barristers^ Society of New Brunswick n.ajeun^rt,e authority of t,e Acts .tk VictorLfckapterXZL 22nd Victoria, Chapter 28, ii rehtion thereto. rlsL^ SorrrrJ;'"^^'^-^'"' ""^ Regulations of the Bar- nsters Soc.etv^of New Brunswick (.), n^ade and passed on the ic authority of the Act of to incorporate nsuick," and the Act 22 eighth day of February, 1867. under tli , -— ^' ■— /. "wvicj lut- aumonty Assembly 9th Victoria, cap. 48, entitled " An Act the Barristers' Society of New Bru— •■-'- " i! ^7 1 ,'.# %f 20 '54 HILARY TERM, 1 867. R, 2. ml '•a i: 11 ' ! 'Ml Victoria, cap. 28, in relation thereto, having been submitted to the judt,rcs of the Supreme Court for approval and sanction, Ordered, that tlic same are hereby approved of and sanctioned, with the exception of the proviso contained in the 22nd Rule. {a) Of these by-laws, those relating to barristers, attorneys and students are as fol- lows : — A'i'/m/ offoriiu-r Jly-f.aws. 1. By the IJanisters' Society of New l$runswick, sanctioned by the Judges of the Supreme Court of this I'rovince, // /„ Onuunc./, tliat the J^-Laws ami Kegidations of this Socie.y, hitherto in force or use, excepting so far as may aii'ect anything hereto- fore done under the same, or any right ac(]uired thereby, are hereby repealed.* MilllthTS. 2. All members of the Bar of New Brunswick who have heretofore signified their assent, in writing, to the Secretary of the said Society, by respectively signing their names on a Roll, hither(o used for that purpose, and all other members of the said Bar who may hereafter signify their assent as aforesaid by signing the said Roll, or by writing to the Secretary of the said Society, authorizing him to sign the name of such member to such Roll, an.J which writing the said Secretary shall keep, and file, and sign the Roll accordingly, shall be deemed members of the Barristers' Society, and be subject to the By-Ijws and Regulations thereof. 0/}iccri: 4. The Officers of the Society shall be a I'resident, Vice I'resident, rrea^uier. Librarian, and Secrelary, to be elected annually by ballot, at a General Meeting, to be hokienon the first Friday in Llilary Term, in each year, in the Law Library Room, at such hour as may be appointed. A General Meeting of the Society shall also be hoklen on the first Friday of each Term respectively, at such hour as may be appointed by the Council. Council. 6. There shall be a Council, to be composed of the President, Vice President, and seven Barriaers, to be elected annually at the General Meeting as aforesaid. The Judges of the Supreme Court and Court of Admiralty, being members of this Society, shall be honorary members of the Council, Three members shall be a quorum. Aiithorily of Council, 9. The Council shall have the general management of the alfairs of the Society, and may, on due notice, with time and place of meeting, settle all questions between members relative to their /;•,?,//<•,■; and regulate all other matters which can come under the cognizance of this Society,t or may refer the same to the Court ; but an appeal shall in all cases be allowed from the Council to the next General Meeting, a notice of buch appeal to be given to the Secretary within twenty days after notice' of the decision. • See the. + See 2 Al ^yiaws, ante, p. 116, and R. Mich. 1878, r. I, fast, 533. HILARY TERM, 1867, R- 2. 15s CowHaints against Members— Hmv made. 10. A member complaining of any inf.inRement of the Rules or By-I aws of the Socety. or of any concUicl of another nK-n,ber, shall inform tl,e Couneil in writing of he natm-e of l,is complamt, and tl,e Council shall thereupon, after having given it least twenty .lays previous notice to the ix;rson complained of, of the time and place of meet.ng, together with a copy of sucli complaint, maUe sucl, decision thereon as they may deem right, and may also report ti,eir procee.lings to the Court if they deem it necessary so to do. ' Ohjcclions to Ailinissivn of Attoi-ncvs. M. It shall he the duty of the P.^sident, and, in his absence, of the Vice President, to enqun-e mto the regularity of every adn.ission to the office of liarrister or Attornev and to guard against and oppose, in the nauK- of the .Society, every irregular or im'- pn.,,er adm.ss.on, and to advance such objections, in every case, as may be thought exped,e,n or necessary for the honor or credit of the Profe.ssion, nnd to act as Counsel loi the Society on all occasions before the Court. Ej:avtiitcys, .S. In addition to the office-bearers enumerated in the fourth nde. and at the time of then- election, one or more memU-rs of this .Society, of the degree of lianister-.t- cri'i,h. r' r •'"'""" °' '^^ """"""'' ^'"" '^ --^"""^"^ ^PP°'"'-1 examiners of ca mi.lates for adm,..„on. as Siuden.s or Attorneys, an- M 156 HILARY TERM, 1S67, R. 2. 20. Upon the applicant passing such waminalion, and the Council beingsatisfied a» o Im moral character, good habits, and fitness to enter on the study of the Law. h. shall receive a certificate to that effect,* Ailmissioii of Attorneys, 2..^ Every Student making application + for admission, as an Attorney, shall tfive a the fi.-7r T' ''^/, "";;!'"« '"' '""' P"-'-- P«" "P *" •"« Law Library on or Lfore the fi..t Fnday of the lerm, and shall undergoan examination at such time and place as the Louncl or any two members thereof (an examiner being one) may appomt, by written questions j^reviously prepared, under the authority of the Ccunci wo may alter add .0, or amend the s,,me, for such Student or Students to answer shall t '"" "'Vrr'" ? ""'' ^""'""'^ '" "'"'"8. and during such e.aminafo.^ hall not be permuted to refer to any book, or person, or other source of information, ence of one of the sa.d Council, or the be...,.ry of the said Society, which wrUten answer, shall I. submiUed to the aforesaid two members of Co:ncil ior tl opm.on tjpon the same, who. after examination, shall submit them for the approval of one <^ the Judges such ans^vers to be so submitted and decided on without the said members or Judge knowing the name of the resj^ctive parties who ijave in the same such answers being designated by letters or numbers only; and if such Student.hali be deemed q„ahfied he shall ..ceive a first, second or third class certificate, accord ing to the merits of his written answers. 22^ That upon a Student passing such examination, and the Council being fully atisfiecl as to his moral character, habits and conduct during the term of his study, he hall be recommended: for admission as an Attorney, [provided S always, tha in case any Sudent shall not pass his examination before the said twomLbe^slf Council and Judge aforesaid, they shall repoit the same to the Society, and he may be fteard before such Society against the refusal of his certificate.] I'Ws on Admission. 23. Every candidate for admission as Student shall, on his application, pay to the Treasurer of the said Society the sum of ^4, and every Student, on °his application for admission as an Attorney, sh.ll pay to the said Treasurer the sum of /"e towards the funds of the said Society.|| Students not to recfive Remuneration. 24. And whereas it Is highly necessary, as well for the interest of every person entering upon the study of the I.-xw, as for •< securing to the Province and the Profes- lion a learne d andjiono^able^body^e^ci ally in the la te curtailed period of study. p. 107. See as to appeal, R. Trin. t843. r. 3, a"te,\,. loy. ^^ ' ' , •!• By petition accompanied by the requisite certificates of character (R. Mich, 1817 r l^iTrinPl's.r'' • '"'' '" 1'"-* ^^'^ °^ a graduate of the time of his coM g ite st^^i; (R. Trin, 1842, ante, p. 105). Sec as to filing the certificates. R. Mich. 1S78 r. i. po/t + See as to filing the recommendation. R. Mich 1878, post, S Not sanctioned by thp rule Sep R \\\rh iV/,/„// V. S./.o: /./.. 164; 2 ruv/. /.v.. 7.V/. .286-7; Practice Rules of 1853, r. 32 ; H. T. 11 Vic. ^ ' TuiNiTV Tku.m, 1808—31 Vic. Ii:(/ui(y Appcah.—Dccrecs (a). 1. When the minutes of any decree shall not be settled under the Act 17th Victoria, cap. ,8, s. 32. (^), more than fourteen day, before the first of any term, a party intendin- to appeal there- from shall enter the cause on the Equity Appeal Paper (c) of the term ne.xt after the settling of such minutes, but may obtain the order of a Judge to postpone the hearing of such appeal until the second term thereafter, which order shall be made unless good cause be shown to the contrary, and such order shall direct the tunc of serving the grounds of appeal on the opposite party. B^»i/y Appcals.—Ordcrs. 2. When an appeal is intended to be made from anv ord^r of a Judge in Equity in a cause where no decree is made,'and such order shall have been made within fourteen days before the first TRINITY TERM, 1 868, R. 2. J 59 tiay of any term, a like order may be made as is provided for in the precedinj,r ,-ule. ('0 HyC.S., C.49, S.6I, "Every appeal from any .lecree or order shall be m e w, „.„ twenty days afterthe settling of the minutes of such decree or ord a d shall be by not.ce, as m ca.e of new trial/ to b. served on the opposite party .s well as on the judge who n.ade the deeree or order, an.l such appeal s'h'all 1 e 1 d t enn next after the settling of such minutes, provided fou, teen .lays have ela e . ween the sett hng of such minutes and the first day of term. If such minute . ... settl..d more than fourteen days before the first day of term, the party intendinV o Bvcnto 7\.c., c. I8,sub-c. 2, s. 32, ,n.///,. (;,„. v. .V./.,/., 3 All. 207 and t:""f1 '• U- "":'r "^ ^- '■• '•' ' ^^"•' ''^'" - '" "- •-■'-' ^■- "^ch e twenty days allowed for apix-al run is adopted. t An appeal from an order do s o perate as a stay of proceedings (s. 62;. An appeal does not lie from an opin o of a J»dg , the decree not be.ng regularly entered up , //. / „• v. AV/,/, 2 Pugs., 26) The cou,t nas the san,e jur.s.hction in appeals as the chancellor had prior to' ; v' . c 8 (s. 4. It can hear the appeal though notice of the grounds of appeal I as no be „ served on the judge as directed by tl,e Act (.,./,.,,. v, /.,..,,. M. I! .8;., S e. " 26, lheplead,ngs,ev.dence and papers u.sed in any stage of rhe cause and tlfe jm^^e's notes, are to be produced on the hearing of the .appe.tl (s. 64 - . Vi'c sub-c. 2. s 34), but the court is not l>ound ,0 read or n,ake L of evidence 'e,™L ously rece.ved (A..:/., v. .,„,,„,,, , All.. 626,. If the.lecree or ord e reZd or var.ed on appeal the case n.ay be rcmUied to .he court below for the su el nt 623 , Ju^/a V. l/.;vv,V/, .2 Jur., 4S7 ; SaiLU v. /.n„sl.,n, , Mac. ^, (;., 25, • AfJ. utc, p, 50). .lo no't app!; n.i'"d^Kln^ Cd,:',in,^";r '"'■• ^" "'''f^ "I-™'- from the time it is pro- <" -.l,mit to th.. so 'ul he m nm ori,;?l.l""' " '^ T '!'^ '^"^'^"'^^ '^"- ""^ '^'-^'k K ■ L- t6o TRINITY TERM, 1 868, R, 2. Where the c,-.use was heard mv, voce and depen«;W v. ^r,„sOof»;, t r, 1S72. Stev. Dig. 27. /„„„ V, CM,,, 3 Pngs., 357 ; a,„y v. /•««,/;«//, L. R. 3 H. L. Sc. Ap. S3 ; see fl/^rsfiv v. D,ih„s„„, L. R. 4 Ch. D. 24. Where the judge, being satisfied that a breach of an injunction order by the defend- ant was not wilful, declined to make an order for his in.prisonment, the Court refused to disturb the judgment (.V.y/v v. //.,nwf, 2 P. ^t B., 677). A misjoinder of plaintifTs is not a ground of appeal (/,;„„ v, CnM/„, s„pra). "The costs of a successful appeal will not be given in the absence of misconduct on the pan of the resi>ondent. Any departure from this rule is exceptional " IW K.tchie, C. /., /r,Xy/,« V. //.■,„/,■/. ks, I Pugs., 152; De„„y y. Hi„,cock, L. R. 6 Ch 138; Slanna,-d v. Lee, id., 346; AU:x,vuW v. .)///,>, /,/„ 124). Bui see Gitbe,-t v Smith, 2 P. & B., 211; DeVeher v. O,.llon, id., 343; //„.,„ v n,„e„, 4 P. & B., 70' Costs on appeal refused to ap[«llant though he was substantially successful, his case not havmg been fairly stated in his bill and his conduct not appearing to have been ba„a Me (Ifillock v. /)■/,./,., 5 All-, 655). Costs on appeal are to be taxed accordine to the scale of costs in Equity (Haniu^^tm v. /Iars/,m,a,, i Pugs., 332) Where the same counsel ap}x;ars at the hearing and on ap,^al two copies of the abbreviation of pleadings will not be taxed (F,ye v. Piescott, Alleu, /., March 1869, Stev Dig uo s. 25; 6V/V/VV. L\nupM/, 5 AIL, 440; J/,;„/na-s v. //„//,//, , Han , 170) The costs where the api)eal is dismissed with costs are recoverable by attachment not by execution, under C. S., c. 49, s. 68 (17 Vic, c. 18, sub-c. 2, s. 39>, us„ua, v. Ann- stnnis, M. T. 1872, Stev, Dig. 113), If notice of appeal is given and the cause is not entered on the appeal paper, the opposite party may move to have it dismissed with costs (D„„am v. A',t/;. V.r 2 Han., 187. ■ ■' (/;) Repealed by C. S.. and re-enacted in c. 49, ss. 60. 61, except as to the clause abolishing re hearings, bills of review, etc, (an v. Curry, I Pugs., 1 75 ; in re Font's Estate, I P. & B . tc, ! see Hendricks y. Hallett, 1 Han., 206.) ' Where a decision of the Court refusing probate on the ground of the want of testa- mentary capacity in the testator was reversed, the cosis of the contestants of the will in the Court below and on appeal were ordered to be paid out of the estate (/« re Hazen's wilt, j Pugs., 329, («■) C. S., p, 1070. (/) See R. Mich. 1876, past. (S) See Skinner y. McLeod, 2 Pugs,, 131, and Bour^-eoisy. Gilbert, -iV &B p 353. as to appeals under the repealed Insolvent Act. The appellant hird to shew that all the necessary preliminary steps had been taken, otherwise the Court had, it seems no jurisdiction over the appeal or power to make any order with reference to it (//„/;;' ikon v. Bourgeois, 3 Pugs,, 232). An appeal never lies unless expressly given by statute [R. v. Cashiobury i D. ^: R 35 ; Ex parte Movrc, i Pug., 333J. An appellant is confined to the points taken ii the Court below (A', v. Steadman I Han,, p. 37, ; Coppy, Reed, 3 P. & B., 455 .«,e Hussey v. Payne, 8 Ch. D., 670). ( 1 HILARY TERM, 1869. 163 As to how far an ap,,eal tak.. away the writ of r^vZ/.r^.i^^T^^^.^^i^AlT 60.; E.p.rteJoc.t.,, ..,. 637; /.»...■ Uiff, M. T. .856. S.ev. Wg. 9,; I'^: L^pn,tcA.r,„n,, 6 AIJ.. ,4, , C.//.,. v. //.//, 2 Han.. 90, Ax ;,„.,, A].„nu U Z^lT^rr'/'T'Ti "'"""""■' ' '■ "" "•• ••• 356; /-.-./....z.; A". V. lUatlmnyt, 3 I). A I„ 542), . J • ^^ "., 425- That tl^ Supreme Court on dechning to hear an appeal for want of jurisdiction has power to award costs, see a,:U Nor„u.n d- /. Co,u„,nce v. I,utt, L. R. 2 Q. B D 284 ; Larr v. S.in^cr, E. B. .^ E. .23 ; see. however. Ru^tin v. //,..,// , All ' 96; E.pa^.Stoc,,,n,^^Ur..,^., Stev. Dig. „ , , and see / W v. /^M^^.' An *{i Eastek Tkkm, 1870—34 Vic. Money Paid into Court.—Dctailcd returns of, ORbEREI). That the Clerk in Equity do on the first day of each term furnish for the information of the judges and any parties interested a detailed return of all moneys, in the Bank of New Brunswick or elsewhere, paid in in this Court or in the Court in Equity, or by direction of either, with the name of the cause, the amount paid in each cause, whether paid in in every case to the credit of the specific cause or how otherwise, the date of payment, and the amount of increase or interest (if any) in each case and the amount (if any) drawn out in each cause, vvith the date or respective dates thereof and by what authority drawn, a copy of which return shall be entered at len-th in the minutes of the Term. Michaelmas Tekm, 1871—3" Vic, Paying Money into and out of Court, 1. IT IS ORDERED, That hereafter all nioneys paid into the Supreme Court or the Supreme Court m Equity shall, unless otherwise specially ordered, be paid into the Bank of New Brunswick to the c.edit of the Supreme Court or tho ^nn.eme Court ""^iquity and to the credit of the particular cause oTmat- ter in which the same shall be paid in, and a deposit receipt thereof shall be forthwith delivered to ^he Clerk of the Pleas or '■^ 11 * \n f/i| ... 4 M 1 64 MfCIfAKLMAS TKRM, fS/f. Clerk in E(,uity, as the case may be, and „o m(.nc> shall be con- sidered as properly paid in till such deposit receipt is so filed 'a). 2. No moneys paid into this Court shall be drawn out except by order of the Court or of a Jud^e thereof, to be sij^ned by the Clerk and countersigned by the presiding Jud-c of the Court or the Ji.d-ewho made the same, and no sucli order shall be made unless ,t be first certified to the (J.urtor Jud-e bv the Clerk that such money has been duly deposited and the deposit receipt filed and entered. 3 The Clerk of the Pleas and Clerk in Kquity shall keep books m which such receipts shall be entered immediately on the same bcin;j; tiled with him, and such books shall be open topub- he mspection at all reasonable times, (.OSee asto the liability of ,he clerk for interest received Sy him on money de- posited ( ///,«v/;.v V. 6\M's, 3 Duval, S. C. K, 203). i'*« Michaelmas Teu.m, 1872— 3G Vic. JVisi Pi'ius Records. It is ORDERKJ), That the clerks of the circuits shall not here- after enter any c.iuse on the docket at Nisi Prius («;, unless the Nis. Prius record is rc-ularly and properly made up {b). and duly filed with the clerk at the time of the entry, and that after b-in- so filed, no such record shall be altered or taken off the files during the circuit without leave of the Court {c). (a) See R. Hil, 1S26, aitlc, p. 29, (b) If the record is grossly imperfect the judge may refuse to fry the cause, (see R y. r,-c,„a;n, 8 D. & R. 590 ; B:nl v. He,,, on, 6 C. .V. P. 2,7), or if it is nnteriali; defect.veord.fi-ers materially from the pleadings a new trial may be granted Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 iV a>^ \\ % O^ '^ ^ %"■ 1 66 TRINITY TKRM, 1873. m Du,mn, I C. B. 8 /... v. S,„,^so>,, 3 C. b. 87.). The venue nay still be changed on the common affidavit, see i>,/hi. »-"^"tea .S>vv„/,#/„,v/] Where it appeared that the change would 1« a convenience to he defendant who.se w.tnesses all resided in the county to which he desired o g the venue but that ,t would be less expensive to the plaintiff to try the cause in hi county where he had laid the venue, the Court refused 'to interfere (Lnj;. S.yl ^n. Ins. C„.. 3 All 43.). On an application to set aside a judge's order changing he venue n-on, Chadotte to St. John it ap,>eared that seven of the defendant's witnL' resKled ,n A l>ert and a. least th.^e of the plaintiff's in Charlotte; and that the cau Jo action, a colhs.on at sea, arose near St. John and Charlotte, the Court refused to in- terfere ; a large and ht,eral allowance of $80 for expenses of witnesses was made he p am .ff by the order ,y,W™. v. ./, CV.//,,., . „an. 323). A motion on behalf of plamt.ff. made after not.ce of trial given and countermanded, to change the venue from York to Northuml^rland on affidavit that one material witness to p'ove his ca J "e" sided .a Restigouche and two others in Northumberland, was dismissed with costs, no other special reason being stated ( Commenia; Hank v. IViltislon; 2 Kerr 507). Practice since t/u- n.le.] It was thought that the effect of the above rule was to oblige a defemlant applying to change the venue in all cases ,0 produce an affidavit sat sfying the judge that there were sufficient substantial grounds for changing the venue but leresult o the authorities appears to be that in cases where the coiLon affidavit would formerly have suffice.l ,t may still be used as making a pri.,,, facie case but sub- ;7.;; ''^.""^"'^•■^'' .^^^"^^ Plaimlff showing grounds for retaining the venue (Sm.i/.j. 0'/inc„, 26 L. J. N. S.. Exch. 30 , J-Har v. McCanu,,,, 3 P. & B ,,) and that where the application is made at a stage at which the common affidavii would not formerly have sufficed the affidavit upon which the application is founded must be special as l)efore the rule (SmU,; L. C, 6.,6, citing A\u>,s,i.„ v. Sl-i/r 12 C Sc/ii/iio/t, 8 Ex. 503). An application to change the venue on the common affidavit cannot l^e made after plea (A.,,. V. Ms, 32 L. J. C. V. 222) , and it seems that in general an application on special grounds should not be made until after issue joined, or it can be clearly seen what the issue will be (/,/,- //„/,, v. CA.rcMaani, 5 C. B. 495; Z)o../er v CM,s, 4 M. & W. S3, : CM. An.',., 12 .,/.. ,354). ^^^ ' '^• Where the application is m^de on the common affidavit and the plaintiff in answer shews that the cause of action did not arise in the county to which the venue is sought to be changecl. but in a thiixl county, the judge has no right on that application to order a to be changed to such third county (C/v/V v. (;/„«„. V. //„^.,,w, 7 C. B. N. S. 835 , M„,„,.,„ ,, /,.„„/.,/,, •/ '•; ;. county where the cause can be n,„.st conveniently tne.l s in'g J,;^ hel/ be that in which the witnesses reside ( Vm/M v n'Ai. teneiai nelcl to be that e«-v, whether a defendant can. after obtaining an o,xler for leave to come in and davit, see a., v. ..,.,,, .3 c. B ^6:::.S^,r ^ Z^ 8 cTrT^;:- See as to reviewing, he order of the judge. .SWW,rv. /r/.v/«vvVM 8 C. b"n s" V. / /-.'J/, 3 H. & N. 278; PenhalUr,,, v. JAv^i' Z;. 6- // Co 18 L T K t of «.„■ ,„,„„„„„.• ,p„ K,„fci,, e, J., /„,,„„„ .. ,,,„,,„„^ ^ 1,™ , JtVl 353, cu.ng Cottcnll v. /;.>,,„, ^ Dowl. , „ , /„„,, ,. ,,/„,,.,^ iy., 60, An Mtorney suing in person has the right to lay the venue 'in fm., i. York, and the Court has no power ,0 change it ,ci:' :~ ^ ^J 17 I and see Dcslirisay v. BaUuun, 3 Kerr J79). ^^ ^' ^- ' " ' ' The statute 3-4 Wm. IV.. c. 42, s. «, by which the Court may order the issue ina Wact.on -o Ih; tned in a county ..ther than that i„ which the venue 7 wXT ! een extended to th,s Province, but independently of the e^alenTL C ur * Z I P ver at common law of award.g the .enire in such actions to the sh r'fo ,';» x • TddT:';^^^^ r :'""'" "'^' ^■^"""' '^' "■'•' - "^^ ^^-p^- --' '- J45 imaoos). "y C. S. c, 37. s. 40 (stat. 15-16 V.r.. r 76 s ^n „4.1 . local causesof action are joined the venue may b/lnid in ;,;her co'unty' '' " M ^«^ ' i.:i! 'j^ If, 168 EASTER TERM, 1 8/4. i'i \^tt» P:-vstk:{ TK.ni. 1874—37 Vic. Tad/c of Fees To be taken by the Attorney. Counsel, and Clerk, for all pro- cecd.ngs ,n rclat.on to matters referred to in "The Common lIw Procedure Aet .873;' as framed by the Couneil of the iHsters' Soc.ety and recommended for adopt.on '^y the Court, and wh-ch Table of Pees was filed in the Office of the Provincial Secretary on the tvvcnty.first day of February. A. D. ,874. and Ja o7 farmed by the Act passed on the 8th April, A. d' ,874. dtuled •An Act to amend the Common Law Procedure Act" t). To THE AlTORNEY. I.— Writs. ^^^ "'lou'tlio""'''''''"^. '^' '"""' '-^-''"'-'P''"^' ^"bpcenas under For every folio above four, twenty cents per folio " ' " ^ fcvery subpuina and engrossing same, Special indorsement of demand on writ, 2 00 I en I 00 2.- -Copy and service of Writs, ^c. For each copy excepting subpwna, including copy of all notices required to be indorsed, . b \y ^^ ^n nonces If more than four folio, for each additional folio Copy of supbcjena, . , 1 • • Notice of a writ for service out of' the jurisdiction ' ' When writ IS served out of the Province, correspondent's charc."es an^d actual expenses of service, in discreion of thc'VaxinI To the attorney, for service of subpc«na on each necessary wit- Agent's fee,'in cases where there is'no appearance, :: In all other cases, . . (No agent's fee to be allowed until after return of writ.) 3. — I/istructions, t^c. Instructions and warrant to sue or defend For instructing counsel ou drafting and signing pleadings (No fees for instrucc.ons to counsel are to be allowed wlien such ^^counsel, or his partner, is attorney in the suit.) (a) This table is copied almost literally byC. S,. ^lo („ nc,^ ril ~.' are pointed out in the notes 15v c » s ,.fi » ^ ■ ^ "^' ^."'- ^''' ^'"''"'""s . * ,, '^^' "y ^- 37. s- 216. Subject to review, thi clerk of the pleas shall tax co.sts according to the Table of Fees " The costs of the trial of election petition, are - > be taxed under this table and not under the ordinance (SU-vens v. A^rj, , p. ,><: y.^ 5^,^ * ""'^ ""' I 00 o 10 50 1 00 50 1 00 2 00 3 60 I 40 EASTER TERM, 1S74. 169 '"''™'^r^j:!:,:;r*™f-'i™. I'l- »/ .^^:u,„, ,„ defend 4- -Drawing Pieadiiiiis, d-r II above ten folio, for „,ch ajdilional folio ' fnl>ovc.,l„|,„,f,„„,.|,„dJitio„.-,l folio •" Joinder of issue, imludinBcnKrossinK, Uemurrer and ,„,„de, i„ ,|i,„„ jj ^ ' *'"?i,1';d™r' "' '■'™""* '■" """"-■■ =---:■ of copies Judgment, whether by defoult c.r fmal ' " " i>ugge,stions^ not exceeding 3 iblio, including enurossine If above 3 foho, for each additional folio, ^ ""^'"'■''"S' bpecial case record and roils per folio Particulars of ,)ren,ises in ejectment, ' ^ ^ , Lrein provided ^'r! pl"^^ "''" '"'"" "°' °'''"-- judge s summons, including engrossing ' ' Judge's order and engrossing, . ^ 40 00 20 1 00 o 20 o 50 50 1 40 I 40 20 1 00 o 80 20 20 00 20 50 S-~~Eii}rf.ossii,g and Copying. o 20 50 1 00 ^ '"'"iud^l'pifSfir "' '"■'- -1--^ "y the'Ccr, or Expenses of all necessary printing ordered by the Court. A— /)„„;■„• Naiica and Seme, ^i. "■"'"rjr^t'of s'-uSSr'"'.' *^="^""' ^---<> '-PP- • • r 00 22 o 10 O 10 ;^« ''■■ *J v+J ,< v; n.i] h' I70 EASTER TERM, 1 874. &y'i iif' ■ t ;l^ Notice of appearance, notice to plead, notice of declaration when necessary, and notice of objection for SoinS [^,^^-^t^'--°^;-'. -d notice of S'S Each necessary copy, Serving each paper on the opposite party's attorney, ' " «?• — Ejectment {O). Settling agreement for consent rule, 9- — Attendance. Attending Court on motion for rule nisi or absolute Attendmg Court on argument of motion for rule ' Attendmg Court on hearing judgment, ' (when same is not delivered at'the argument) " Attendmg judge on obtaining summons Attendmg judge on order without previous summons,' ' Attendmg judge on argument of summons, Attending judge on hearing judgment, when judgment not given at time of argument, ^ Attendingjo enter record for trial at each circuit and' attending Attending clerk of circuits for postea, Attendmg clerk on taxation of costs on postea Attendmg clerk on taxation of all other costs Attendu g to receive money out of Court or my money in Attending Court on trial of cause (not to bellowed i'f a^^torney IS counsel in the cause), . . ^--u'licy Attending on trial of writ of inquiry, or de prop probanda Attending clerk of peace (.) on striking spedT un- ' ' ' t^very other necessary attendance on a jud-e Mery other necessary attendance on the clerk (Not more than four attendances on clerk allowed, unless under special circumstances). 10.— Briefs.. Brief on argu'Tient of summons before judge at chambers, includ- ing copy. Brief on trial or argument before Court {d), II. — Miscellaneous. Postages in the discretion of the taxing officer 1 erm fees, not to exceed four each, Defendant on appearance, when only one, When more tJKm one, for each additional, '.'. " ' , (b) See Doe d. Harfl ^TB^w^Jcy^antl^^^, "~~ (c) " County Seae/nn'," C. S., p. 955 o 60 o 30 o 20 2 00 ' 50 5 00 '» 50 o 50 50 1 00 5^ 00 40 70 00 5 00 5 00 2 CO- o 50 o 20 00 00 CO 00 40 been o 60 o 30 o 20 2 00 I 50 5 00 I 50 50 50 I 00 50 00 50 40 70 00 EASTER TKRM, 1874. 171 Costs or judp.ent on bone, and warrant oratto;„ey. to inc.ud; f^etter before action, Fj:r:s to Counsef- r>„ „„ " J""(^i- ujion examiners certi ir'itp on peru.,,8 and sc.ling „„.„;„,„, „ ,„, 'J^-^ ,^^^ ^, ^^^^.^.^, •S.gn.ns^a„y .leading, „r paper, ,e,,„iring ,„c signature of coun. Officer ,,rel?,i^g:"^erlr""'°' "" ""''" °' special argument, ' ' *"' '^P'''-''''' o"- other njHs ma, be increased at the discretion of the presiding """ ''l!irl;^r" ^^"^^ "°' ^-^ -d -«"ovit given after Signing and sealing writ '^'•™''''^ ''"ES. '"'"'"^.irnTrgSa'n^et; 5";"?,™^'^ *""«"-• '■'- pros reiictn v^rlfi. . ' ^ '''-^''"''' discontinuance, non pms. reiicta venHcatione. retraxit, satisfaction on record? 25 I 00 00 2 50 5 00 50 25 00 IS 00 15 00 30 u) See y,ri c. Af. rEzrji:;;^;^^ o 20 (/) The fees to counsel allowed by the ordinance .re :- five guineas (see A.i.n v. ^..^3 w' 4,;,'.^ ^"''^' "°' ""^'''"^ ^o 6 8 IS o 'tl % ".'■ if ' ('* I i pi -n 172 KASTER TERM, 1874. On entry of every cause, Filing any affidavit, writ ( .0, declaration, or other paper, each.' hoj- moneys paid into Court, two and one half per cent laking special l)ail in Court, each person, Copy of all common rules, each, Searching the records. Entering the allowance of writ of error, certiorari ' or habeas cor|)Us, Copies of all papers other than common rules, rjer folio Certifying a judgment under seal. If above two folio, the same as for copying and for seal Judgment and taxing costs, . . , .. Filing the roil, Certified copy of judgment. Certified copy of satisfaction of judgment, '" " ' Memorial of judgment,, • Drawing a recognizance of each person, Entering bond of arl)itration and award, (Fifty cents to be [raid to the crier on every cause entered by the clerk of the pleas out of his fees). JNO. JAS. FRASE Provincial Secretary's Ofl^ce, 22nd April, 1874. o o o o o o o o o o o o o o o o 5^ 10 20 20 20 20 10 70 10 70 60 20 20 20 20 70 R. The ("ollowins examples of bills of costs under the alx,vc table were prepared b, «ne clerk of the pleas :— 117 IN THE SUPREME COURT. Cost on Judgmen! by default on Assessment. ! •'* r ff-- 187 Nov. Dec. Instructions and warrairt to sue, Writing letter .... Pr;\»cipe for writ and filing, .... Writ at)d coi)y, .... Entering cause and filing writ, Agent's fee, .... Declaration und filing, .... Notice to plead, .... Search, .... Signing and tiling interlocutory judgment, Ceititicate of interlocutory Judgment, Affidavit on which to obtain assessment. Attending before a judge, Assessment docket and filing. Entering warrant on roll, .... Suggestions and engrossing, Costs and copy (folio 2), .... Taxing costs and signing judgment. Attorney attending taxation Filing rol! and papers) .... ] {g) Printed "written," in C. S., p. 956. $3 60 I 00 40 3 30 I 10 I 00 4 10 60 20 I 10 20 so 2 50 40 10 80 60 7a 70 70 5c lO 2 20 o 20 20 o 70 EASTEk TERM. 1874. Jiulumfni (locket anri filing, Execution pnvciiK' ami filing, 'I'c'Pin fct's, Eoiir attendances, roslagc, HherilT's fees, 40 2 70 2 c» 80 45 $J0 00 Eoi convenience, costs may lie made out as follows SUJ'REME COURT. As per scale, Sheiid 's fees. IN Tllli SUPREME COURT. Costs on assessment. Cause entered 4th Nov., 1874. $30 00 i7i :1 m. «;.. ...H 4 vr'' *"' <■ 41 187 Costs on default. Special Indi>rsement, Instructions and warrant to sue. Writing' letter I'litciijc for writ and filing, ...'. Writ and copy, " ' ' " .S|)ecial indorsement, Entering cause and filing writ, Agent's fee, Search, , , _ ' " ' ' " ' ' Final judgment Docket and filing, [[]] "" Costs and copy Taxing costs and signing jud-^ment'. Attorney attending taxation,' Filing roll and papers, Execution praecipe and filing, I erm fees, .... _ ' ' ' ' Three attendances, [,\\ "" Postages, . . , , " " " ■ ■ Sheriff's fees, .... For convenience, costs may be made out as follows •— SUPREME COURT. $3 60 I 00 40 3 30 I OD I 10 I 00 20 I 80 40 60 70 70 70 2 70 2 00 60 40 $22 20 If Costs on special notice and default. As per scale. Sheriff 's fees, •74 MlCIfAKLMAS TERM, 1 874. ( f If' «, MiciiAi:i,MA.s Tkkm, IS74— 38 Vic. Tabic of fees, and Forms, Under the Act of Assembly ,37th Victoria, chapter 7, -To pro- vide for Proeess of Anachmmt in certain CivU Suits, and to abolish 1 mprisonment for Debt" {a). To riiK AriOKNKV. Drawing affidavit to obtain attachment, and particulars of plain- till s ileiuand, |)er folio, .... Copy thereof, per folio, Writ of attachment, . .. ' \ Each copy thereof, . . . . _ ' Attending judge (when necessary) to obtain order for attach- Drnwing order for attachment, . . ," . Execution for costs. To TllK Cl.KkK. Signing and sealing every writ, Filing eacli writ or jjajjcr. To TIIK SlliailKF. Executing writ of attachment, and return, Copy of attachment, .Vc, to sheriff of another county, with direc- tions indorsed, when property is attached thereunder, Memorandum of attachment of real estate, and filing same 'if not exceeding two folio, If over two folio, for each additional folio, [The like charge for a memorandum of the attachment of personal estate.] Bond from jjlaintiff, or defendant, or part owner Assignment of bond, . . . . . , ' Appraisement of property attached, and notices of same' to the parties, ••■..... Sale of property attached, [The like fees as on sales under executions 1 Filing a claini to property, and schedule, etc., with clerk of the County Court, Copy of attachment, etc., to file under section 21 If exceeding three folio, for every additional folio Notifying registrar to enter discharge of attachment " Levying money under execution, ' [The same t".*es as in executions in other cases 1 Mileage to execute attachment, for each mile, going and returning. $0 20 o 10 o 60 o 30 o 50 o 20 o 60 o 30 o 10 I 00 o 60 50 20 00 50 50 00 50 10 so o ro • 'r^/; !.■' ''•/'• '"'''"'' '""''^^'''^ ^'"t I- °f "">' Act, relating to attachment, and tncluded these fees and forms, is repealed by 43 Vic, c. I. $0 20 o lO o 6o 30 5° o 20 o 60 30 10 MICHAELMAS TFRM, 1874. Ai'PKAisiRs' Fi;r:s, '75 I 00 To each appraiser, .V,;. i.~Bond given by P/ainiif. Of to 1.0 ,,.li,| I,. Ihf Vli.l V riff , 1 ■ ' *■ '"-■"■'' ""'" "f bdng ; 'for wl,i, I, .-.v in c i , »™"T""' ,'" ""i"'"' ''"' "«-■ •™« W 'ea».n „f tho wrii „f .macli, ™i k™, i,, '^"'•i"^""^ may sustain cc.c.|,,«. .h„eo„; „..„ „„ o,„i -[J,Tf-'^; Sli-'S-tVi^nl:"; Signed, scaled, &c. A^^. 2.~.BonJ from DefeHda»t under Section 26 {b), {Obligatory fart, same as /-orm No / me.u issuc'd out o tl Wen '^r^^^^ slien under a writ of attach- said property, mtMUioned and H 1 ^ -''"^ . ^/^/^//^nt; [hen the Se ob74tbn o T' '' •^'^""u' ^y the said attach- force. ooji^ation to be void, otherwise to remain in Signed, sealed, etc. Schedule of PROPERxy referred to. [f/a-e destril>e the proper lv.\ No. 3.~Bond by part owner 0/ property, Section '33, .... f '^'" *^'''i'"^"n' part, the same as Form No. / ] Whereas _cer_tain property, described in the schedule hereunto M{ ■.MA rl IT* %Sa "1 i 176 MICirAKI.M.AS TKRM, I.S74. annexed, lias been seized I)y the said shcrifT under a writ of attachment issued out of the Supreme ( 'ourt, (rv, r/.v tlu- case mav l>t\\n a suit hrou-ht hy {lyUwitiff] ag:.inst [li;^or\ and has been delivered hv the said sheriff to the said {th,- prindf^al ,»/'//-, /•] : Now the condition ot" the above obliK.aion IS, that if the said ( /////.v/// ,>bli>^ot\ shall restore the said property to tiie said sheriff, or his successor in office for the t'iine being, in like j,'o()d order as the same now is, or pay to the said sheriff, or his successor in office for the time being, the ai)praised value of the said \i{fltnd,vit's\ share or interest thenin ; or satisfy all judgm.-nts to the amount of the said a))praised value, as shall be recovered in the suit or Milts in which the said jjroperty is attached ; provided the same he demanded within the time during which the said property would have been held by the resjuctive attaciimL-nts ; then the above obliga- tion to be void, otherwise to remain in full force and effect. Signed, sealed, A'c. \Scheduie of property referred A/.] No. 4.~Assi^n»h'nt of Bonds, Noi. /, 2 and 3. In obedience to the order of the Supreme Court, (or, of Mr. Justice , or, of the County Court of , as the cose mav be), I, A H sheriff of the county of , do hereby assign the within bond to the within named . Sealed with my seal, and dated the day of A. n. iS A. B. No. s. -Bond given h Claimant iind.'r Section 42. {Obligatory part, same as Form No /.J Whereas the above named \claimant\ has claimed certain prop- erty, described in the schedule hereto annexed, sei/.ed by the above named sheriff under a writ of attachment issued out of the Sujjreme Court, {or, as t/ie case way be), in a suit wherein is i)laintilf and is defendant, and the said prop^-rty has lx:en delivered by the said sheriff to the said [ciai/nant] : Now the condition of the above obligation is, that if the said [ciai/nant] shall pay to the said sheriff, or his successor in office for the time being, the value of the said i)roperty, and also the costs of contesting the claim to the same, in case the said claim is found against the claimant on the trial thereof; then the above obligation shall be void, otherwise the same shall remain in full force and effect. Signed, sealed, itc. [Sc/icdnle of property referred to.] No. 6. — Assignment of Bond. I, A. B., sherifT of the county of , do hereby assign the within bond to the within named [plaintiff in .f ////, 1 —Sealed with my seal, and dated the day of , A. D. 18 A. B., Sheriff. MICHAELMAS TF.Rm. 1874. B. ^71 !^o. 7- -Execulion/or Costs (<-J. „, „ ^., ^''^'■"«''^. IOthc..C;raceof(]o,|, .Vc. To the SherifTofthe County of 'or losts umKTthe provisions „f ihe'.' /' /' ''' '?f' !• "^ii''''^''J '« <^o.^s ,.erein, ,.,ore ..s . K^er^lllll^l-^^..^:^-,;;-^-'^^-.^ ^ J-tnes. .^„^„.,,„ Wn. J^Ki.,,.. c:,, rjns.i.:, at Treciericl, •' , in tne year of our Keign. V H A <-AkMAN. Judge of ihe Court ^ ' '" '*'' '^''^'^''^ '" ^^^ name of the FndencioH, jist October, 1874, KSii^ned by the Judges.) (c) This form was inserted inthfC.i. «.,► ^. 7. «. .') s.n.:,, „ ,7^. '''* ^""- ^''•'''' «» -^^hedule L ,„ c. 42. now repealed. Practice K.Hes ,853. sclLi..w;;,:o;K.:e;„^f;n " '''^- ^' "°' ^' '^^ for an attachment may obtain an order oZ ^^' ''"'°" ''"""'^'^ "^ "PP'y -l-lule to .hat chapL may K uet i s \h" ""?"" '" ''^ '°''" """ '" '"« necessary in order to obtain thl ex cZ 1 e'.'T ' f - "' ""^ P^^^^" ^' "" should have been made (CW.v, v C p ! ?'k^'' ^^8 Vic.) that a demand the Con. Stat. The Court refu Jd to n ;i,^ ^"«'-, ^"). but M.is is dispensed with by cution to issue again.st an attotry forcJ: i;";; l" TT T ''°"- ''''■ '^' " - .*r remedy being a rule nisi for L attachme P W iZr'l" " ''" ''' '""■ to the part.es to the action (GsAson v JV.r,/, //,;// J^IT' ^^ """ ""' '^ =°"'''"«'l Q^^rn; whether the same promptitude,-, ^''""' '^ ^^- ^'"- ^>. > P. & «.. 571). would be necessary in an'^^pUc^nfl IZ^i '" """'^'"^ ^^ -' execution a, 5.4). It appeared that a ruL Id " ^^^^^^^^ ^''''""' ^- ^'"^^^ • P- & B.. made in Hilary Ter,.. ,875. that .111 mi/l. V' "^ '^^^"'*'"" '=°'"^ -^ was made, and that the co s ad 1 et ttd ! ,""' ^'^ '" ''"='""''' ^'"" '"^^ -'<> and their agent in the Province-he^ o .^^ a "^ ?'"^ "'"^ P"'""^^' ^""^^ -as Term. .877. that the dela wiffiem.v'rT !,?.:" """"°" '" ^"^''-'■ be granted against a corporation for non Iv! T\ ^ '' ^" ""="""" '^*-'>' ^1 #1 ^1 H If *3 m 178 H f; HILARY TERM, 1S75, R. f. lIiLAHV I'kkm, 1875—38 Vic. General Rules. 1. The following Rules and Re-iilatinn.s. made pursuant to "The Common Law Procedure Act. 1873," shall be in force:— Sevrra/ Co mi is. I. Except as hereinafter provided, several counts on the same cause of action shall nol he allowed, and any count or counts used m violation of this rule may, on ..pplication of the defend- ant, within a reasonable time, be struck out or amended by the Court or a jud-e, on such terms as to cost.s or otherwise as such Court or judijc may think fit {a). M Taken from .la- Pleading R.,Ies of ,853, r. ,. See r. 2 infra ns -o strifcinK out counts 1„ ,„ac.ice it is a.lvisahte ,., insevt in . declaration as tnany difi-eant a.nnts as «,11 fauly n.chule the various causes of action resulting from all the facts relied upon ; but It .s useless ami objectionable to multiply counts by stating the same cause of aeon m various ways ( /W. .^ ^ /.,•„ , p. n ; sc-e tiie ca^-s on this rule colfccted \n Ha,: C. /.. /'. .7, A, p. 70S ; Chit. An/,., 12 ed., 235). n,e plaintiir is liable to have a verdict and judgn,ent against him ujx-n the counts m respect to wh.ch he fmls to establish a distinct ca.se of action (C. S , c .^ s 2K ■ see 36 Vic, c. 3'. s^ 3U, ; ,3 Vic. c. 32. s. 5. and R. c;. M. T. 4 Wm. ^^:^. 2.V 5. 1 leadmg Kules of ,853, r. 3). F„r tl>e practice at common law see .•/,./;-,■:,. v l\,ho,: 3 Kerr, ,27; iV.l.,, ^. Kuno.,,,,,-. ,:,fr,. Where alter a verdict T.r thJ pla.nfiron three counts he elects to proceerl upon one only, he is not entitled to the costs of the other two ,/;../• v. AV/„r, 2 I fan. 256*. If he obtains a verdict on one of several counts an.l there is no finding on the others he is only entitled to costs on the one count ( WM V. Fainocallur, 2 All. 423; «e .)/, .1/, /„,v v. AV/,/.„, id. 469, as to signing judgment .n such a case).* Where the plaintiff ir.scMte.l six cxnUs in a declaration in replevm for t^,e same proix-rly. costs for one count only were allowed (llauiu^ton y. G.ronnni 3 1 ugs. , . 5 „. In trover for several articles the plaintiif may give evidence of acts of conversion on .several days, though there be but one count, charging one convers.o„ WUiran v. .l/vAV. 4 All,, 2c;S,. If a plaintiiV enters a „„//,. ^V./ to one count, the defendant can not e.Uer up judgment for his costs under C S c .7 \ ! 'vV^' tv"' '^'' ' '°^ ■' " ''"•• " ^■^' -^^ ^° ' 7 Wm. IV., c. ,4, a. 25'; "sta,.' K^^ !'"», ;:n'' '^'•.'- ^^' ''" "'" '^'"-''' ^'"'""^ ^"'^ '•''^i^"^^''' "f ^■■^"'^"' ^- -^""w- ^ All., 23S). Where the nolle pn,,,;,ni is entered on a count upon which .he plaintilT has obtamed a verdict, the defendant is not entitled to the co.ts of the trial of the ■ssue on that count (/,■.;-.<■ v. AV/,..., , P»gs., 3 61). The counts are considered as dis- • Where a gener.il verdict ^s given on all the counts, some of which7aMx^l~ihZ ;.,." f.^' ^-'■'"'' :■ '^'':''-"'< l>--'l. M\^ ll-mierson v. St. Jotu, {.Mayor], , P,u,s 12 A. i\ 1:.. 331; hd.Ln..rs v. Hopkins, I Doug. 376). ini.Auv ricuM, 1875, R i- ,79 assessed bv U,^ (V,,,^ < ' ""^■J' ^. «//.>w,, i All.. 704). Where damages are c. 32, s. 6). ■•*'• 37. ^2'4(j6V>c., c. 31, s. 209; 13 Vic. Several Picas. 2. Several picas. rc,.Iication.s. or subsequent picaclincrs or sev- eral avownes or co^nizanees. founded on the same p- ^und of cafon to the Court or a JiKij,^e to strike out any count or on an objecfon taken before a jud.e on a summons for leave to p Ud suel lu t, f'-^;'"-^- -';-•- "■• cognizances, on the ..round of such count or other pleadm.^.s bein,i,r in violation of this rule the Court or jud^e may allow such counts on the same au;e of acfon, or such pleas, replications or subsequent pleLl " o' such avou..cs or cognizances founded on the sa.ne ' ound o answer or defence, as may appear to such Court or ud^e o be proper for determining the real question in eontrove sy'between tl e parties on ,ts merits, subject to such terms as to cost and otherw.se as the Court or judge may think fit {b) ^^":^tLt:i::^, '""-^ ''"• ^- ^' ^- ^-'^'^ ^ ^- --• -s^ Sec. 78 of 36 Vic. c 31 (corresponding to s. 81 of the sfxt ic ,fi v judge may seem best." "-neiwise as to the Court or ^The^practice as to pleading several p.eas is thus stated in BuHen & I.ake. 3 ed.. r^o'^^oZ:f;::Tr2.!'''' r/'''' ^^^^^ -tters does not ari. when iiiurc pieas. or no pleas except those mentioned in « 8^ • o,^ 1 j • pleading, and each p.ends o;./'.., 'iLar 7 h"T' "^'^"'^"''' "^" '" — - * !__ • . ' .• . C. S., c. 37, s. 79. M •'if i Ml 1 F i8o HII.ARV TFKM,,l875, R- '■ M II The word, used ,n the re,..aled r. 5. ... T. 4 Wm. IV.. were 'one and ,.,e same rrmcpal n...„cr.' for which ,he al.>vc expression, 'same ground of answer or defence ' has l.cen substituted , in the same way as with reference .0 dec.uratu.ns in r ,. the word ,h, ,,„, ^f ,^.,.^,^ , _^_.^ ,,„,^,i„„,.,, ^,,_. . ,„, .„^,„,^„^,^ ^^ ^^^^^ , .ha where a s,n,.e sta.e of facts produces severai lega. results, the .a.ter may ^ m.ul the groun.l o several counts, pleas, etc.. without a violation of .!«. rules , and the Court or a ju.ige has a discretion to allow even a violation of the rLilcs wlu-n it api^ars necessary for .letermining the real question in controversy on its merits. Where there, a reasonable doubt whether the pleas are founde.l on the same ground, they wdl be aIlowe•„„ v JTl'^'^'sf" ''; '''^' ' ^•"^" "• '''"•""'• ' ^- '*^ ^'- ^"S' *^" *•"■ ^""^"..fy. mods, 7 M..^ (..628, and see post. c:hap. VI.) , in an .action for mahcious pro^cution, not guilty, and a special plea of an absence of probable cause (Coffo,, v. Mn^onc, 3 A & fc..3.2); ".an .action for polluiing plaintilT's well, no, guilty, and a olea denying at the water w.as pollute.) (Xorron v. .SV/../,>/,/. „ .M. .v W. 465), in an action of hbel, a plea of the general issi,e, with a s|«dal pie.-, of circumstances showing that it «^s privdeged (/./„„/, v. .Vw/M, , n. .V N. 481, 26 . J Fx 94) Pleas suhstatUially founded on the s-. me ground, though varied in statement, a,* Ob ecttonable ; thus, four pleas, each atnouming to an allegation of the same fraud, only sl.>ting 11 with various circumstances, were disallowed (k'.U v. Nr.o, 2 Dowl. N. S- 543)- Also whenever the statement in one plea is included in the wider statement of an- other, they are consi.lered as fomided on the same ground ( /W.,-,-;; v. //,W/,;.,-,. i Bing. N. C. 326). As in an action on a bill, a plea that the IhII w.is not d.ily stampeti, and a plea traversing the acceptance (/)o-oso„ v. .y,n:Uu.,i.t, 2 M & W 26). So m an act, on for infringetnent of a patent, pJeas ,0 the whole patent with pleas of the same matter to the un.Iisc.aimed par, of the patent {t.WA- v. Anniri 1 D. & U 392) ; or a plea that the patent was not .1 new manufacture, with a plea that If was not an tnvention in res,iect of which a patent could be granted ( IVattou v. /,W.. man, 3 M. ."t G. 775)5 or a plea that the plainliflT was not the firs, inventor, with pleas that other persons were the f.r., inventors; bu, a pica th.a, the invention wa, not new was allowed together with a plea that part of the invention was not new be- cause the invention collectively might be new, though parts of it we.* not {JJeutLy v HILARY TKkM, |8;5, U. I. 181 ^SSi; t^-:'tS';, '" '7*^^ "^ ""^ "-''"''' ofah^nka,,.. the plea of no. payment .mo Court ( /X„w/,,v« V. /,„/.r„„ ,m *r ' , T, » ' "^ '" °' see ./.,_..,. ,..,,;,,i, ■:;J\^^; J-^^ ;;J;^;-. .5 m. . w. ,35. produce an incongruity on the reconl. see , Chi.. Pr' ..thoi p ,83 «a.n,ng a defence arising after the oon,n.enccn,ent of ,he action mav if: , T^"' eral ' able doubt on the subject U^,,,,. "If ;^>„' ' '"'V^V '^7 "^ ""^ "^^°"- S. 456). Leave will also bereft.sed top, a n l^.s w i ,' u': i:"/- ?/'?'• ' ''°*'- ^• on the face of them, ait; in fnct 1... 1,1 ,. •! . ' ^ ' "°' '"*'' "'^ ™'"aterial opponent iCU, v. ^^ !^ .^^ ' ^^ /T^ T:"". "'t" " ^"'^"^^^^^ "^«= 486 ; .5-.,,//, ^,„,„,, ^.,,. ^.„ ^,_ //,,^,^,/,^^,/,^.,,. ,^ ^ ^^ ^, 497) ■ • 5 Q. B. A pLiintilT has been allowed to plead a sneciil .-^..w.Vo. . denial of the plea, although it do'es n t rai^ i ,S Z'e "'^^^ T ' ^^""' plication enables the defendant to r-iise the m,. , ' "''"" '^^ '^'''^'^' ^^• ::j^ia,r^^S^^^^ . H. * N.T9; ' '" ""'' ''"'""" '''''■^'^'' •SeeC. S., c. 37, ss. 64, 65. itatns M 41 ' (I ill * j W H i " 182 ini.AKY TKUM, 1S75, R. I. Ancwa.ssig„nu-nt an.l a replication to the same plea, when admissible, may" be pleaded t igethor without leave. ' •See further as to pleading several pleas. I Chit. I'r., 12th ed., p. 278." Saving Dctlaratio)i. 3. VViicn a defendant appears, a copy of the declaration, with a notice to plead in twenty day.s, .shall be .served on hi.s attorney or on the defendant if he appears in person ; and on default of hi.s pleadtn- wthin twenty days after such .set vice, the plaintiff "lay s.^n jud.i^ment by default.- a plea bei.,^^ first den>a,ided after the .said twenty day.s (<-). to See the former rule. auU; p. 5, r. .0. an.l the cases there cited , and see € S c. 37. s. 38. m which this rule is incorporated. ' '' In tcrlocuiory Judgments. 4- From and after the present term, in every memorandum of interlocutory judgment, the date of the entry of the cause shall be stated m the margin, or at the foot of the memorandum {^O- (• ,• .,,..., ^' ^-t plnintiff's attorney, tau.sc entered and writ tiled on the day of A. D. 18 Affidavits. 5. From and after the first day of April next, every affidavit to be used m any cause or civil proceeding, either on the Common Law or Equity side of the Supreme Court, shall be drawn up in the first person, and shall be divided into parag-aphs ; and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject No costs .shall be allowed for any affidavit, or part of an affidavit" substantially departing from this rule (r), Entiv'^'fTr'' ''"'"'' ""• ""• ""• ^- "54' ■• ^- For the practice on the tqiiity side of the Court see C. S., c. 49, s. 52. It was held in ,,,• ;^„rf //v//,„,. 3 Pugs., 2,7, that an affidavit drawn in the third person could not be read; see .,./.„, Mar. C. L, P. Acts. 680; Finl. CLP Acts, 566 where it is said that loss of costs seems the only penalty for non-obierv* ance of tins rule ; and compare ex parte Hail, 19 C. B., N. S 369), CwTof"' '^"r" 'r,''"" "''^'^^" ""^^' '"£ "^"' becmitlcdof the Rolje V. Burk, 4 Dmg., ,0, ; //.„,/. y. Cenunts, . . M. .c W., 8.6,. An affidavi I" f "^i «'i3 HFI.AKY TKkM, 1875, k. ,_ J S3 the pa„ies .o the can. „„.t also ,. , . , t„ , ' ' ^''-'•-•■; -'' -'-n,.. of all Pl..minsas .'n..,s,ees.„.„„ .„e a'lU.: o"';' ;;X' 7^-"' '" ''--''- words "the estate and -llects of 'W /// n" ■''■'i'Uimhng ., 343; and see cau.ses the „,otio„ n ay h ndf , '' ! ? ^7'"''' '"''^ '^ '° '*-' """" ^'"- '" — ' An affidavit for an attachment under the renenUI k., c c have been entitled in the cinse nl <^- -S.. c. 42, ought not to the t.tle, however J s eat^. , ""' ""'" '"'"" "'^ "'" -^ '-«' ! ^7»). Where h„ appli at^on wt ' „ ^ 't ^'"•^'•'■:'"^' ^^ ^^"-•'- 5 1^-^: »• him to payshe^iff^fees...ffK^^vis^tm ' '' ■''^"'"'^' ^n attorney ,0 compel attornev ,.y name .ere hJirori:";,;::p,;rr,f ''"^ '"^••'"" "^"'"^' "'•= Court (Dnny v. //„„.,. 3 Kerr ,8S, V n r ''■ "'"' "" '"""^ '^'"'"^^ *" affidavit entitled " The Oueen v tl !" r-'^ r'v' 'T, ' ""'""'"""" "^''"'■""' °" =^n (/■. V. /.../,„ ., yj, ^' " ; '" '^"^^' "f ^ -•< ■• -as ^^;" ^-f , S- '^<^'- K-lesof .853. ^^■i-n.e irregular on the n,ce of it, J ^:,^ ' t^;' "^^ \ ^^^ ^\ ^'"^-i' n.dhty, see .,r ^,„y, ^y ,, f.. r. . (j p ,^ . /'';' ' '^ '^'- ^^ W., 469; but not a either part be falsified by affi.hvit it' will 7 l, ' "" '"'"'"' ' ^"- ^^^ ; and if n.le does not. however. ^XV^'is'^ I T"""*^.^ ''^^^^^^ ^'"■^"^ 764). The CA.V/. 2 l)o«l, 469» and i; suft-^i , , I '''""" '" "^^ '^""^^ '-/--f' "" v. (-• 'ierendant),"'vm;out ins r g he li:: ^.H 7 " """^^""^^ ""•^^'' "'■^-'•« V. /„/,„ ._.. , B me place of abode or any other .".ddition (.S W. 16 ). It is sulfi .•241 W'n'k-: M. A-c;. 91; '/",.r/ v. ////,. of the firm of H. C, of, ( 5 M. & icient to {Jive the .vidition : '■ A B of ^fr \ "r ' ^ ' of. (etc. ). attornev. fn,- .K„ .uly°^' }'\'-^' '^™^'-'y ^ '"^'nhe J/,-.v, W'', ^//A-<7). .See the decisions attorneys for the above named plaintiffs {l^'V'kof Nina on this rule, 2 C////. Arch., 12 «/., 1618 ^i*f| ,.i.|,,.J Ml ! 'f 12 I ' "1 ^4 ■It I 184 HILARY TERM, 1 875, R. i. IH ,r; Ev., 14 ed., 1 189; Har. C. L. P. and tlie cases under the Bills of Sales Act, Kos Acts 678. The omission of the words "make oath and say" (..///.,, y. Ta.Uv; I R ,0 Ea 52; ^y-PnrU- Torkn,^,,,, L. R. 9 Ch. 298). or '.oath" (A„d. lu-Uton.. Clark 2 OWL N S. 393 renders the affidavit inadmissible. So, it seems, the substitution of •• said for say { f{,uv.,rth v. Hnhhjrstv, 3 Dowl. 453) Dates and sums ought to be exp.^ssed in words at length, but the use of figures in an affidavit under the Attachment Act was held not to be a ground for setting aside the attachment (Gr„y v. Akovn, i P. & B. 555). ^ In 3 Chi, Gen Pr. it is said " Every affidavit should be in the genuine natural language of the deponent, and where there are several deponents each should swear m h.s own peculiar terms, and if several affidavits be precisely in the same words it W.I1 naturally excite suspicion that the whole were dictated by the practitioner or his elerk and are not the genuine statements of the deponents," and this is quoted ' with approval by AIL,,, C J in Ba.n.V v. S,niU„ , P. & «., p. 39, and by V. /•. in Bushv V. Maritime Bank, at chambers, Aug., 1880. m> j , » Prolixity in affidavits is remarked upon in Belts v. Cha;arte Mthur, 3 Pugs. 96. J ■> 1 As to swearing " on information and belief" see Cilh.rt v. EmLan, L R 9 Ch D 259 ; exPaiU MLucr, .„;,.„ ; AniJt v. JWt.r, 39 L. J. Ex. ,9 ; D„, d. /„.,,. v. AW,' S Dowl. 226 , n..,n,^ V. Harmon, 6 M, ^NV^.j. ; j),, d. George v. 'noe, 3 Dowl. 22; hoes.Bradshaw, L. R. i Ex. 106; Fry^James, I Fish. Sup. Dig « • ex parte Tighe, 2 Dowl. I48 ; ante, p. no. J B 3 , ^x Where a statute authorizes justices "on evidence " of a certain fact to issue a war- rant the fact cannot be proved by affidavit (McGuirk v. Richard, 2 Pugs. 240) Qitare, to what extent affidavits are admissible in proceedings under C S c 8^ s. 22, by a landlord against an overholding tenant, see ex parte Bell, i P. & B.' 355. Judgment Rolls. 6. No entry shall be made on any judi,'ment roll, of any war- rants of attorney to sue or defend (/). (/) See C. S., c. 37, s. iio, to the same effect. Nisi Prius Records. 7. No placita, jurata, or award of venire, shall be entered on the nisi prius record {g). ' (g) See C. S., c. 37, s, no, to the same effect. All rules of Court heretofore made, inconsistent with the pres- ent rules, are hereby rescinded. 2, The following forms of proceedings (//) shalj be used in the cases to which they are applicable, with such variations as the niLAKV TERM. 1875, R. 2. 185 hccTo™ „o h'" "■">''-™''" "-"-"y: but a„y variance («) See the cases cited, „«/.•, ,j. ,o,, „. (,.,_ IN THE SuPRKMK Court. hundred and yllf,;, ^^".t/rSvf "" "-"' ""^ '''°"^?"^ ^■^'^* one thousand eight hundred and L, ^ f u 1. ^.'''^'' '"'^ """" ^-"""^^ Court at Frcdcricton ■ (Z&cTo^v ,;,. , ?" "" ■ ""' ^^^)^^^f^ Supreme said E. F, has not a^pe'ed ("^t^f-^tetfth 'TLd f .T^-^ ,^"' ^'" cover against him on occasion rfVh 1? ^- ^- °"S'^' '« re- prays that the amount to b "recovered Ki':?. ^"' '^ '^^''' ^- ^ and assessed by the court and tht. *'"« a'^t'on may be ascertained the court that the said V B othf 7 ''°" " " ''™''^^' ^"'^ ^I'P'^^''-^ 'o sum of v/), Tlfere L it k f a '"""TV '§""'' ^f^*^ ^^'^ E. F. the against the said E rt e s^ d sum of "'' ''"' ''' ^^''^ \^- ^° ^^^-^^^^ by the court, and also for ht ! . c '° '^f ^^^'n^d and assessed iudge. ,. ,h; said Tb., wHi^^, ?^r:.°',rL^>„ '^LT^T ^"^- »-■ seals of the said jurorr-AMvSlvTP'^ under his seal, and the said A. B. by hii said attorn and lYe satl'riff "^ Court comes the t.on taken before lum in the iid co n v ^nl^^e 11 %' '"^•"'^'■ the year, .^-c, by which it is found that' the aid A nZf . ■ '!5 damages by means of the premises, to the sun of '^'^^ ^"^'%"^d It IS considered that the snid A « ^ ■ • Therefore said sum of so found bv^J^l ^°'f ''■''''' ^S^'"«' '^e said E. F. the his costs," &c. [.. alZf ^ ^" '''^ inquisition, and also for ^J /A' '"'''''''"' " '" '■->-■- («). pro.., as Moras afUr th. .eclara- And the said E. F. in person. K by his attorney, as tke case 24 ''ii f f 15 •If \n ■J :■; 1 86 '?(!'• HILARY TERM, 1 875, R. 2. entitled to recover against him the said E. F the m o Th for his costs, A , J.^""*" Victoria. A. D i8 ' ^^ °I judgment signed and tiled the V ^ . ( A. B., pliiintiflT, Venue, Saint John. } a,id ( C, D., defendant. , Judgment for plaimiff [by default or] on verdict in assumpsit [&c.J fop Damages, $ Cost Si $ ■J day of RoU Dated this day of («) Seert«/^^p, 82, 123, $ , A. D. 18 P« A., plaintiff's attorney." M. a.~Form of Judgment of Non Pros, (p) In the Supreme Court, u "^i^ J . r^'?y ^^ '" ^^^^ year of our Lord one thousanrf Piahf hundred and {date of signing judgment\ tnousand eight ( lcnuc)~Q. D. was served with a copy of a writ of summons (nr arrested by vtrttte of a writ of capias, aVthe case may i.) Wd out^ of HILARY TERM, l8;5, R. 2. 187 our Supreme Court at Frecicricton, on the div of in .k year of our Lord, Ac, in an action at the suit of \ n Un;,, , /V^", 7t>js arn-iM, staU •—•'•, lir<-rt,.,l «r. .i, vr ? , ''' '^'''^ defendant and the siiH C n" . '^"^'"'-f^^' ^ ' '^"^ sheriff o( the county of »] , juu mac tni. said C. D. have execution thereof, kc. a ,„,,„ of particulars of demand and set-off (,.«/. n ,m ,nH T' '^' ^'' ^^^ (-^^^•. p. .3i). are to be annexed ' • P" 7«) and a copy of notices of defence ^ro. 4— Form of Postea on a verdict for Plaintiff, (s) before the Honorable Chii^tL. (., n^of^rVs ^'11 I i. kill - ,i ;i'' '■ k\ (88 tfu.Miv Tf•:f!^f, (8/5, r. 2. >1 , >> hf-'Jbd assess tic (laina'^cs of the ^liil \ n , ' "_""".sf^ ini<.s\. And tluv (j) See the form of ^I|,',V7 where fhc Im v t- . ~,i hee as to aineiKliiig /.,.rA-^, „„^,,, p. ,^3^ joinod, .he jurors nr.msaid i, " ,!,« ,| i t^J\ 'r "="'"', '"".•-' f*'" the .um of . Therefore ifec ' '" '''P'^^' ^^^^'■^'°^' ^^ («) Sec. 7. of C. S.. c. 37, Thi, is « re-enactmen, of ,he statute, 2 Geo. II.. c. HILARY TKKM 1,^75, r. 2. 189 7^ s. 75, «itli an a.lditional ". s. .3 : S Ceo. ir,. c. 24. s. s. an.1 ,s_,6 Vic. c clause aiithoiiziim a verdict fur m.. 1 1 . fUl/M.t, 10 t:iiierjusti<:eassig„c(lt Id I ..^n ""',7'.''^' "^t Majesty's l-r..lc.ri,:,c,„, (or, ^ tl e c nl le "^■'' ^'^'^^i^'^? •^"I'renK- Court at prone ( :o„rt of our I a Iv , f > , ""^ '/ ''"' •'"^'"■^'^ "^ >l'^' -Su- <^nd take the assi/^. nndot' ?''"'''"' "V "^''' ''^^- ^''--^-"'^ (""" Jmher l,is record, ha , X h / in' i'"'"" "'T'" "^ '^>'''' '^'''^ sent [^vyir///^A;,/^,,] The.^i,r if- •/'"-'''' "^'"■^'^ = Afterwards, , ^c oc.(era«.^,st:e Ji K "t e%;i;nr'""''^^^'"^=''<^ ^- '^- '^^■ form aforesaid asses^n (or" / M ■ "/^' "'>; !'^'' J"^'""'^ "'"^-■^'"'l. in the defendant the sai^ t^^/ ^ 'n dtl fr " •' ',' ^".■"'^'^"ver against said assessed) ;" and also f damages by the jurors afore- adjudged of increase to the s-tid 7 h' "T1 '''" ^^ '''^ ^""^ ^^^'<^ "del., dan,ages and cost^^in'the^hoi^ ^^^^^^ ^"' ^^^'^' ^^'^ Juc.«a,ent is not to be signed ,,^.04 .^ent; days after verdict (C. S.. c 3; s n., U") "Commencement," C. S., p. 290. '' writ, and that the said K F do , .^ ^ f' ' "°^^'"^ '^^ '^'^ '^'^ further considered that the sa d 1 V T '"'''""' ^i'^' '^'^^ ^"^ *' i^ for lus costs and chants v in " 1'"?^ ^f^''"'^' '''^' ^'''''^ ^^- ^^• expended, by the Cour here' idiud S tlT ^''- f'l'"'' '" ""'^ ^'^^^^ said E F. have execution Z^ollttV'T' " '"^ "^'^ '^' (-^) Tl,is form is also applicable where_tl^p,ainti«-is nonsuited. Ttelry:oitid:St^-:j/:^ri; ^ i'- ^^--^^- ^--j together with or 1 fs "ost"; H '? "" f'^^" ^- '° ^''^ «-d E. F., to the said E. F., aZ^Sr^^^^^l^y ''' "-^""3 ^^^ ^^J"^^^^ E. F. have execution therefSr. ' '^^^ "^^' the saicj I .it J ''\l m t* m r<>i rrir.ARv tkrm, 1S75, r. 2. H 'I! I '111 I, j I ''1 i M M^. 9.~J^m,f/ Po.Ua on a verdict J\rr Defendm'. n RepMn, on a pUa a/ nun r^M, HuJer i Rei'. Slat. c. 136, j, IJ {x) Afterwards \-(:. [,/.. /// //,. /„-e,yJin^r rWm to the aster hL the,, ll„n •! IKU t K- sa.,1 .k...-mla>,t dul tak. ar.d detain the Kuodsan.l lu ^^ls .nen ...ruHl ,n tl,e .lerlarafon. as a distress n.r rent die f^^r certa n ^e> s^ held ,y I,. ,,lamull mnier a dennse at n certain rent ; and tl a cTe was due o tl.e defendant lor snci> rent at the tin.e of the dist es uu s^ I s due, the sun, ol and they assess the danu^es of the deSd Sn r- "'1; "If % "'^' "'^' "^^^ "' '-^"^ ^'- ^.stress at ;^ e ■■""^ "' . iK'sides hjs cost o( suit, >.vc. {Iftlte ha a iff of the landlord, or any one acting in aid of the landlord f' n.ade a defendant, the postea may be varied, as follow ^ " A n U , I here was due to the defendant C. 1). {the landlord \ for sich r.^ic (^.f r/Aw] an.l tiut the defendant H. K was at the t me of , nkim ' r ^i sa.d distress, the bailifi-of the said C. D. (.,-, "tlwu the ;:^id E ^ ^S present ^du,g and ass.stu^g the .aid C. 1). in making the said d£ (r) Sche,I. D. No. 7. to C. S..c. 37. Sec. 205 of that chapter re-enacts . R. •S.. c. 126, s. 15. See the former rule, ,;;;/,, p. 14... " It was necessary in the avowry or coyni.ance to shew that .he defemlant or some person from whom the reversion came to him was seized and the quantity of estate wlych he was se..ed of. and tl,at he made a lease to the plaintiff for hfe or years or at W.11. and the .lescent or grant of the reversion to the defendant (/.;/,, /'/„< 264 • Clift 640). So if tenant for years ha 1 letten the estate to another for a less term at a certnm rem. and distrained for the rem. it was incmhent on him i„ his avowry to shew tlie commence.nent of his estate l,y laying the fee in some person who ..anted the term and then deducing the title to it down to himself, from the grantee of the term, which was often a difficult ami impracticahle thmg to be done, especially in long terms for years, which are generally assigned tea great number of persons (2 Sa k. 562 ; Sal^ v. JXUk, S. C, Carth. 444. Comb. 476, , Ld. Raym. 33,, . B,o. 1 . C. 74). And !or the same reason an avowry for rent stating that A., hak-ns tnulu,,,, demised to ,he defeudant and that he made an underlease to the plaintiff was held bad on demurrer (2 Stra. 796; K.ynoUs v. Thorp)"-, Wms. Saund.. 5 .V„ To obviate these difficulties the stat. i. Geo. II.. c. ,9. s. 22, enacted in effect that the defendant should not be obliged to state in iletail the landlord's, title This stat was enacted in this I'rorince by 50 Geo. III., c. 21, s. 9, and ag^in hy xx Vic c' «' «. .9, but on the revision of the Acts in 1854 these provisions were omitted, and by . v.. S.. c. 126. s. rs, a!.ovc referred to, the defendant was permitted to give in evi- ^ence under a plea of . c.pit any matter which would support an avowry or cos- nizance. . «• Unless the pleader ,s '• .. -.s/me..: ihe difficulties referred to in ;r«,^ .SV,«„./ which ctoes not very /re.;>Knt;, .p.-^ m th.s Province) it is not advisable to pro- ceed under the Act, as tl.. .!,.., .g. gained by ,, -...g on the plaintiff the onus of proving the taking, whicii ,rom tht nature of the case is not disputed and is ea=ily proved (Mcl^, v. ^Jcmia„ 3 Kerr 64 , 0,,ten v. Hour.cois, 2 Pugs. 365), is more than counterbalanced by the loss of the right to begin {.Vyas v. SmUh, 4 All 207) niLARVTKKM, I.S;5,.U. 2.. «0» tiotbeturn...! r.,.,n,l at t e " o , ' T"'- '^^'♦'' ^ "'"««» <'cr.n.lnn. can- -sily l,ap,„.„ if ,,„ ,1 ' , ,' "' "",;""': l"""V'-'r« '- the (i.s, ,i,„e ..is.,1. as „,„y aor). ^ " ''"' '" "" "^""'l' •^'-•- ('^ee J/^.r. v. .SV«/M. 4 All. ... '; r:;.::^',,;;:!;:,::: :;,-;- ,;"; r-rr '•■■"■ "■ - -» -•" " rr:'; = - - ~: "r. ; 'ir' ™" "■"■■ As to what (Ifftnees art available mulcr Cf.-c*-, J I'. \ W. 599, i;nce under • '/.'// ../,/ al common law, mc Alcxumlc,- v. No. .o,^ro.;n of JuJ^n.nt for Defe.uiant in RepUr,,^ „,^,, , ^,, Statutes^ ,: /36, S 15, n.KT;olS:^r1iS':;rs:!d t ^^^ /....^.... .....] T:.ere. and that the said 2. F. do a tl ^rlf • ' '', "''''""« ''^ '"'^ '^''d ^vrit, -"n,idcred that tie .nS • do r ,' v'"' '^'^■' '^''\ ^"^' '' '^ ''^"•'''-^ said sum of by X i n /• , • ,"■ '''^'•""'' '''*• ^•■'''' A. i;. the his costs and ch:.r^\^\£2^^;^''''''^^^^^<} '^'-^^ <•- by the Court iKTe adjn i,o o t e . d F ^1'," T''^ '^ff'^\^^^<^-^. cmts ,n tile whole amount to '", " '"''' '^"^ dama.i^es and cution thereof, Ac. ' ^"'' ''^^''^ "^^^ ^^^ '^- I'- have exe- V.CTOK.., by to Crace of God, ..c. To the sherirf of (.) ;eetin,. yo^ixs: r^i;:^ ;!;rL;!s.rf^"f chatte.s(.)i;^. o. S Court recoveroc] ns^.Vinst him \v h V. Vl , V ^ri^- '" °".'' ^"Preme pear., Iv; the record, an 1 h vo r In n- T) ^^ ^^^ 'V^^^^^'^^^^'^I as ap. =n what n.anner'vou shaM I avt ev cute thi '" "^^ ''''^ '^^ ^'- ^^"^ us at the return' hereof -inrl 1,. ,^" "^'^ '''"^' '"ake a|)pear to &c., (.) [,/, d.l ./Vw;, (/) ] ''' ^'" '^'''' ^'''^^ ''^'^ -"'• Witness! All. 564). '• ■'^'^"""^"'. 4 All. 440, MA;,,so» v. A.„;.,„,/. j (--) Ground writs are abolished by C. S , c ^7 s ,,\ ,,fi v V'C. c, 39, s. 34 5 stat> .s-,6 Vic. c 76 s ,;,; c V^ ,y ' '' ^'' '' ''^ ' " - -d -etbe..o?-srrt:^';tcT^--^ l;1 192 HILARY TKRM, 1875, R- 2- w S''ff "' 7/?' ■' ''"""' "■ ■^'""''' ' '^"- '7'^' 'i'''"^'^'/ V. I/azen, 2 All. 254; /).„<} /f (;/j// V. /;,///„„, 6 All. 387. ^ (/') " Lands and Tcneme -.ts," C. S., p. 291. (c) A writ /. V. A,,7.;,. 6 All. 3S7 ; A'lv,,/ v /......r . ugs. ,22; C„«...„ V. ;/%.«, T. T. .864, otev. Dig. 207. If par.of the debt has been levied under a former execution the levy should l>c recited [Smiths yon.y, 2 All. 176). ' ('/) .See C. .S., c. 37, s. 124. W) The writ is tested on the day it is issued (C. S., c. 37. s. ,24. „;,/,■, p. 28). It should not be .ssiie.1 before judgment signed, see /^.^'Arv. CV//;/i^ II T l8.^ S Dig. 204 ; Si. St,fhm JhvU- v. A'. /,'. 6- C. A'. &- / Co s All fi,n." /' / ' " Latids are bound from the time of the delivery of the writ to the sheriff to be ex- ecuted ( Av d. AW. ..Williston, 2 Kerr, 459 ; C. S., c. 47. s. 3). So are goods .n the county .nto which the writ issues [C.nndl v. Milte,; I Kerr, 302 • Crl • v £rvso,>, I Han. 618; C. S., c. 76, s. 11 (stat. 29 Car. II., c. 3, s. ,6) Though the amount in the body of the writ must be that in the judgment, the writ must be endorsed to levy the sum really due (/./,„/ v. £s/„/,ro.:/.-s, 3 Ken- 144) On executions on judgment for debt or damages signed since 23rd April, 1862 a dnect.on may be endorsed to levy interest at 6 per cent, from the time of judgment C. S., c. 37 s. .2, ; 36 Vic, c. 3., s. ,24 ; 25 Vic, c. 25 ; see stat. ,-2 Vic, c i.o, s. .7 ; Pr. Rules 4853, r. 76). See as to entering judgment w,ur pro Innc in order to obtam interest {Com, nodal Bank v. European Assurance Sy., 2 Han. 245). The indorsement may be thus : — all incidenta'l expenses, and 'l'' ""■ 'for ' ''^^xtuliS' '"" '""""^'^^' ^''=' ^"'^ By stats. 2 Geo. II., c 23, s. 22, and ,2 Geo. II.. c .3, s. 4. every writ of execu- tion, before the execution thereof, shall be subscribed or endorsed with the name of the attorney, written in a common, legible hand, by whom such writ shall be so sued (/) C. .S., c. 37, s. 124. A'o. 12.^- Writ of Fieri Facias on a Judgment for Defendant (g). . cZST't' ';>■/': V''-''^''-'^ "'"/'"d' *'••' ['« '>' '/'^ preceding f„r,n^ to the aiernkl which lately in our Supreme Court were awarded to C D for he costs of defence m an action lately prosecuted in our said Cour't by the said A. B. against the said C. J)., whereof the said A. B. is con victed : [IJa verdict has been given in Javor 0/ the defendant for a balance on a plea of set-off, state thus .•] " were awarded to C. D. according to the provisions of ' 1 he Common Law Procedure Act, 1873' (//). as well for a ualancc found due to him irom the said A. B. in an action lately prosecuted in our said Court by the said A. B. against the said C D HILARY TERM, 1875, R. 2.. 193 ;f ^S'""^' him l,y the and ") "His," Con. Stat. ' ^""^ •^'«»- M K*u iM the Tau^e and the na,™ of'hc a^ '' 't""" """ "■■= ""--■ "f- be folded .0 a ..arj :it:'^z'uTz "h ?-■""• ""-^ '■•^" record or papa- »ubsta„.iaily « " "rilf .l"'"' '"*' ''^'' be received by the clerk. ^"'» "o'" "'is regulation shall i »5 ■' -I '94 u EAS'I'EK TKKM, r875. if •i i I? I II ■ • ■ I,' t' s-'^ Kastjou Tkum, 1875—38 Vic. Fees under the Attachment and Garnishee Acts {a) . yy iS OKOKR,,,,. That the tabic of foes and for.ns p,cscribcci on he 3.st day of October h.st. under the Act of Asse.nbly 3; V.ctona cap. ;, "To provide for Process of AttachuK-nt in cc-r tarn Cv.lbu.ts, and to abolish Imprisonment for Debt " • to-rcther w.th the Table of Fees under the Common Law Procedme tl y>^n, shal , so far as may be apphc-able. be used, taken and allou-cd under the Act 38 Victoria, cap. 4. intituled " An Ac -.end t e Attachment and Abolition of hnprisonn.ent for Debt Act, and undc.- the Act ^^ Victoria, cap. 5, intituled -An Act oprov,de for Garn.shee or Trustee Proce,ss." until the same be alte,ed under the authority given by the said last mentioned r\CtS. («) Obsolete, see 43 Vic, cc. i and 2. HiLAKY Tkrm, 1876—39 Vic. Motion Paper. It IS ORDERED. That .so much of the rule of Michaelmas Term 30 V .ctona, (..) as provides that causes entered on the motion paper shall come on to be heard immediately after the conclusion of the common motions at the beginninjr of each term, is hereby rescn^ded and that hereafter cau.ses and matters on the motion paper shall come on to be heard on the second day of each term as provided by the rule Hilary Term G Wm. IV. (^) {a) Anti\ p. 152. (A) Ante, p. 62. Michaelmas Tkum, 187G—40 Vic. Crown Cases Reserved. IT IS ORDERED, That cases reserved for the opinion of the Su- preme Court under the Revised Statutes, chapter .59. section 22. {a) shall come on to be heard immediately after the conclusion of the motions for new trials. \a\ This R/»rfinn »w!»K «■»- -*^ -, . « ^ *• j- ^ - n, ..!.n „., ^j, ^4_ and s. I of c. i6o C. S., pp. 1088-iooQl is ^ re-enactment of the Imp], Act n- 12 Vic c 78 s« . , . , 1 ^ '" V- .1 11 1.J VIC, c 7», ss. I, 2, 4, 5, the cases upon which MICIIAKLMAS TERM, I S76. ~ *y5 will bo found in 2 /•»/, /k,, 5«,,. , , , ., -> ^. "5. ^3^. .34; . 't^,;..? ;,; : : ' • . •■ '« '^^ ■, '^^- -« •' >^w. o. /r... "Pinion of , he Court a„.| not make ; SL , Tf ''''''"■■' "^ "«'''' ^^^ ''- <^ounty Court because thr - ^Houid he put upon the Act;, t i ,7.^ i;;;;:'"'^"';"'- ^ """-' ^""^'"-- •n the Court beh,w after the indictmr V ^ '^'''^ '" ''"^ "^ ''"-' P«'ceedings <->S.M The Judgment of he C r .J,';;: "'" ''""" '^'"^ ^- ^'"--. » l*- '^ "• -nts on which the convictio^r ^1 "^n''^';' '^ ^^'^'-^ " '" ^'^^ I^. & li. 168). J» Court Appeals (/;) P»pcr, of the term i,n,„odiato y Tu ccj ,„ T "" "' l"'^'' clerk of the picas, of the procccdin "fro n , ,, , T""'' '^ ""' -™ch proceeding, are reccLd duri.^, 7.=™ he'" ^ " u T.T entered by the appellant on .1^. appca , ':™; ' f *"" ^ LTLSr:;: VT" -^ "■= "--' - •" "•^- ' --• -vt r reTa" H.epl;:rordi:r.?;"Lr:;',r'-' - -- *c appeal on J / ^ ^ '• ""^ 'I'lviri}? entered i> >;hnli n^* ceed to amuc and m.mv.if .v, ? --'iii-rca it snail not pro- upon the pai^e dur ,«' te ,r"nh '" '1^"^ '" '"' '""'^ coed .„ .pp'or. the a^pel'l ^2lt T; Xt?"thrc'''°; made ,n respect thereof, then and i„ either of "u ease, ht" pondent in.ay upon the next or ,„„ ...k ' ""^ •■"■ day after any sneh Zhl ^ -"bscquent co,n,non motion with Jt"Z """'^ • '""' "W'™' ''' '>•""'"""''>■ entered pcllant, pc r n p,.„„__,,_^. . may be entitled in th (<*) The headings and the divis same way nto sections he Appeal Paper as A. B. Ap- aiiy affidavit used in such cases (uA \m i i' jfi i t.--^ am as in the original rules. m tQ6 MICFIAELMAS TKRAf, 1876. (f) See R. Ilil. 1869, nii/c, 161. (-/) The provisions of 30 Vic, c. .0, ss. 2,-24 ; 33 Vic. c. 20, s. 4. and 36 Vic , Q. 13, s. 3, relating to County Court Appeals, will be foun.l in C. S., c c. .s co C2 he ,ij.e within which an appeal may be ma.le is no, ,i„,ite./,, 3 Pugs. 6,0, see /V,,,./., v. ;;...te„,/, L. k\ c. V 24,) Where the County Court judge, under 33 Vic. c. 20, s. 4 (C S., c 5.. s.t) re- scmdedh.sor,Jer staying the proceedings till judgment on appeal and gave the re Z-; a« T \?"r'' """■' '"^ ^^""^'^'"^'-^ '"*' ''' ^'«'""S i-'S"-'. 'ho appe- lant s attorney attending without objection the taxation of costs.-hdd. that while the judge s or er setting asfde the stay of proceedings s,oo<. the appellan was bout^l by .t and could not proceed to have the appeal heard, and it was accordingly dismissed o have the appeal entered on the nppcnl paper and .lismissed on the ground that i, ha. not been entered by the appellant, who had given notice of appeal, cannot 1^ ustained if the proceedings have not been certified to the Court by the County cim judge iAj;,. V. /,.„,., 2 Han. 408 n.) ; an.l, ,...-,, whether the Court has any jui s d,ct.on .n the case nnt.l the proceedings are so certfied (/,/., and see 7',..^. CM. v hVn'f ■ 'V 5V 't"""''^3'- ^^'■'^'■'-'"^'=J"''K"^'""'edcopiesof the proceedings had before h.s deceased predecessor, the Court refused either ,0 dismiss or hear Z appeal and ordered the originals to be returned (/>>., v. >„«, 2 Han. 407 ; see as .0 appeals from decision of deceased judge A7...,. v. CWW,, ./., 483 /.VAv. tr ', '; ' '■ '"■ V"- ■"" ^"'^^ ^'■°"'" '^'^"'^^ '^ -Py °^ the pleadings. d whe e he ,1k not do so the return was referred back to him to l>e amended U/„^,r. V. .I/ returned (/.///,• v. C,u.; 3 Pugs. 386,, Where the proceedings certified by the judge were generally illegible the Court refused to hear the argument {/WM; v. lk,J I. T. .871, Stev. Dig. 1,7). An order to stay all proceedings and settle the cause on p-ayment of the amount of the /„./,. MC.W/n; 4 P A' H 87) An order of a judge setting aside a writ of capias for a supposed „,isnou.er of 'he plamt.ff has been reversed on appeal (,)/,„ .1/„„.,/,. v Onn,,, 3 Pugs 2,, ) Jhe judgn.entrnayl,eopposc.d on other grounds than those on which the judge C P 1) sosl ''''" "" '" "'"'""' '" '" ""'- (^•^"'/-'" V. A„i,,,, iJk's It was held in /..,vv. //„-,/..;, 4 P. ., u. „o, that where a nonsuit was set aside ^vuh costs on appeal, the costs were not recoverable by attachment or execution under ^-. rl., C. 2)0* See further as to these appeals, C/./A .M., ,2 ,,,/., ,725; , /»/. n,,. 2.97. , "/• 9373 K ' ■">'"/■ ^V. 1156. >^- ^'97. 5 M The co„n.^l for the ap,x.llant and respondent apf.ared in the case tefore it was reached on he paper, and when the respondent's counsel requested that the case bl heard out of ,ts turn the ap,.llant's counsel stated that he d.d not intend supporting the appeal; the respondent's coun«.l then asked to have it struck ofT th pa " wh.chwas ordered accordingly without objection, -held, that the respondentia nt.tled on the next common motion day to have the appeal dismissed wi ^coi W.r.s V. Bo.yor,, 3 P- ^^ «• S)- See as to dismissing appeal. />.« v. /.... su^ HiLAKY Tkkm, 1877—40 Vic. Common Motion Day. It is Ordered, That the Rule of Michaelmas Term, 2Qth V.ctoru, («) which provides that " Tuesday in the second week m each Term shall be the regular day for motions, instead of Saturday of that week," is hereby rescinded ; and that the second Saturday m each term shall be a day for such motions (b). (a) Ant,; p. I jr. (I,) Motions distinguished as "common motions," of which no notice has been given Ai?;5,."^ "°' ^""^'^ ''" "- -'- P-^P--.-" ^- heard on this day^2! Eastku Tkk.m, 1877—40 Vic. Fees under Attaekment and Garnis/iee Acts (a). In pursuance of the powers given by the Acts of Assembly 38 Vrctona, cap. 4, entitled " An Act to amend The Attachment and Abolition of Imprisonment for Debt Act," and 38 Victoria cap. 5, entitled " An Act to provide for Garnishee or Trustee I roccss. the following Table of Fees has been fixed and o«Jained :t\ m 1^ H I J. |> 198 EASTER TERM, lS;y. Debtor, $0 50 I 00 o 20 o 50 50 00 50 by the Supreme Court to be taken in proeeedin^s under the said Order to bring up a confined debtor for disclosure Holding examination, . . . . ■ Taking minutes of the same, per folioy Adjournment, when necessary. Order for discliarge or to remand, Attaching Order, Every other Order, .] " ' Order for the examination of a Primary or Judgment under 3.S Victoria, cap. 4, sec. 2c, . "' ^ Holding examination, Taking the minutes when required, per folio Garnisiiee, or other Summons, Hearing on Garnishee Summons, or Order " " laking minutes, per folio, .. . ' Examining and taxing cost.s, . TO THE SHERIFF OR GAOLER Bringing a debtor for disclosure ^''' oT/'of ;o?\"' Attachment for disobedience of Judge's order or to a subpoena, the same fees as are allowed for executing Writs out of the County Court. By the Court. w ^, i^\ riK 1 . ,, *^- Carman. {a) Obsolete, see 43 Vic. cc. i and 2 00 00 20 50 00 20 30 o 60 Michaelmas Term, 1878—42 Vic. Admission of Attorneys. asi'bYrr^lT "'' "''"T' '"'^"'^'"^^ ^° ^PP'^^ ^^ ^^'^--n a an a ttl ; ,T,''"'l"' '"^*^"''"^' ^° ^PP'^' ^- -Amission as an attorney, shall have been recommended for admission bv the Barristers' Society, pursuant to the rules of court of Mi- chaelmas Term .847 {a) ; such recommendation, together wTth the necessary certificates of moral character and term of strdy shall be delivered to the Court on the day preceding hat on which It js intended to move for their admi.4on ; and f he c " t ficates. &c., are satisfactory, the applicants may be admitted at the opening of the Court on the following day. («) Ante, p. IIS ; see R. Hil. 1867, a„t , p. 153. The following amendments ,0 the By-Laws of the Barristers' Society .„'■ p ,0 term m the fifth Ime and inserting the word "Trinity" in lieu nH MICHAELMAS Tl'RM, I.S;8. $0 5° I oo o 20 o 50 o 50 t 00 o 50 I 00 3 00 •o 20 o 50 2 00 o 20 o 30 o 60 'fJ9 yudseJ Orders, &c. oftil^t'or'ttf "'T' "'■'"■? '^' "^' ^^'■'■"^' '""^y b^-^dc rules of court on the product.on of counsel's signature, without any motion for that purpose, (b) ^ (/') For the former practice qpp 7v/,/ ^ .v o Henrv, 2 All. 94.. ' ^ "'•' ^^5. 486, 5,, ; U,uf,n,ood v. A/.. It was only intended by the above rule to obviate the necessi.v nf n,,!,' and not to «iv^a_ny„ew power or pe.^t of an orde;ti:rrr:r:7co:::: rule of Court by a side bar rule. ^'"""^ ""= ""'^ ''-'' ^^^en made a ^•'"1 m i»'i .ill ill «i t'H 4 !l J M^- i 200 MICHAKLMAS TlikM, 1 878. Cept in term [Ahr.cody. Jam.;, 2 I'. & li. 439 ; see /• v P.; ■ o c e m l^'.wl. 2,3 , ITnctice Rules .85J, r. 158). ' ^'- ^- ^- ^""- =» t.. & M. 2.2, 3 An onler „f ..isi prius. unlike a j,.,|ge's oder (see „/./., p. ,4 ; /,„^,,„,, , ,, , .,, ^Han. 3231. nu... he made a rule of Court ..(b.e n.ovil, ^ ^ ^^,1 1' i^!^ ? Ga<.., . PuKs. 430. ,>er .V//,v,. y.) Where an a„,endn,en. ha. been a owe; at lis! «t asule the < ■ le. fo, amendment must hrst take out the order and yet it n.ade . ru e 1- K. 2 C 1 285). A submission to arbitration under an onler of nisi prius must be made a rule of Court l.fo.. movmg to set aside the award .W.., v. yCr2 111 A judge'.s certificate under C. S., c. 60, s. 42 (i R s r ,„ v .u , B juie 01 t,ourt (iloimr v. trooh/uiiU; 4 All. 375) Cc^; a1 t'--ler indexed -remove to haJe the within o^er made a rule of Couit, A. U., ,.,/./<„. [^^],.. ^,th the clerk, he will draw up the nile and if ? •re to be taxed, append to it «n appointment for taxation. ^ ' '^ '""' HiLA»v Tkum, 18H0— 43 Vic. /f;/A7v>/^'- arusc-s at Circnit—DemHrrer pending IT IS ORi.HRKi, That no cause iti which issues in law and in fact a,-e jo.ned shall hefeafter be entered for trial at any circuit unt.l he tssues ,n law a,-e disposed of. unless the plaintiff, when he enters the cause, .ntends to try it in its order when it is reach- ed on the docket, {a) Ji ^ '""' 7'' ^' ''""' °'" "^^ '^^°"^' °'- --^ J"^e^> P'-'l -d demur to the same pleading .-it the s.-.me time (C. S., c. ^7. s 76- J. Vir ,. ,. IS-16 Vic, c. 76. s. 80). ^^ ^ ' ^ "■' '• 3'' =*• ri ; Stat. The dictum in /./,,,./ v. Union. Ins. Co., 3 Pugs. 78, that where a party has leave to plead and demur the issues in law are to be first disposed of unless the dt o de It is doubtful if a defendant can reply to a plea and afterwards denntr to boti the plea and rejomder (^,«/;,^7.>/, v. O/ron.in/, 3 Pugs. 15,), The costs cannot be taxed on 1 i'!/'crm.-r.f -^,,1 ■ •, , . ,. ,, , " ^ ^'^ Smi.nt on demurrer whie issue* in law are out standing (A,„/cTson v. /ui7ucv(f, 4 P. & 13. 82). Hir.ARV TICRM, 1 88 1. 200 rt Hii.AKv Ti.:km, 18HI.— 44 Vir. nquity Appcals.—Spcdal Cases .1.0 f,.. .ay of .,:'Te,';,^:: .^^r ';°'c':;:;,:v"^; '-'""^' -' and Ihal copies for each of the ,„,l , i tV f t"> a,t;i,c,l, Dcmurnr Books— delivery of. first day of ,cr,„ t^coo.t of ';'"-■"'"" ""^ ""•■ *-■'""■' "" ""^ 'V.»; and that no c^rXf . e t u c' , 7 ,'"'''' f ''" ^^■'"■ special paper until the parfy tiemurri , 1 f '?','''-■ °" ""•' deliver ™ore than thrt den;,:.' £l t' 7 , Lrr^^" W Kq'ealed by 44 Vic, c. 12. Probate and County Court Appeals until the^eturn If ,1° ud tt? heV' T "" ',""= ^'^P"'" '«"" on file ,„ the office of /he cLt of'lh'Xr ^ ^^ '""' "■^" '^^ ('T) Ante, i6t, 162. (<•) ^iu/f, 195. ^''^m«.- 6:«/...^/.r Z/.^^/;,^. ^, yv^,„ 4Jf,pXr, - r*: re tr z ™°"™" r- Court on the first day of each toZ a.u ''^''"'"S: of the -. . a,Wed, eLptrr '^t'r: ^J^t^d ^M f»i, 200 b HILARY TERM, 1881. ^f '1 upon motion made to the Court on one of the common motion' days (J ). (/) See the former rule, R. Mich. 1866, nn/^, 152. Crozvn Cases Reserved. 6 Crown cases reserved shall come on for arf,rument imme- diately after the crown paper ; or, if there should be no crown paper, then immediately after the conclusion of the motion paper {g). (g) See R, Mich. 1876, ante, 194. Eastek Term, 1881. —44 Vic. Adding Supplemental Statement to Bill. 1. It IS ORDERED, That where leave is given to introduce facts and circumstances into a bill filed, by way of amendment or where the plaintiff has liberty to state such circumstances on the record, pursuant to the provisions of the s6th section o.' chapter 49 of the Consolidated Statutes, .such amendment or statement shall be made by filing with the clerk a printed or written .statement thereof, to be annexed to the bill ; and such proceedings by way of answer, evidence, or otherwise, shall be had and taken thereon as \^ the same were embodied in a sup- plemental bill ; provided, that the judge may make such order for accelerating the proceedings as may be agreeable to justice {a) (a) Taken from the English Consol. Orel, xxxii., 2, the origin of which was the 44th Orel, of 2nd Aug. 1852. See 8th Orel, of July, ,853, ante, p. 210. Equity Appeals—setting doivn for hearing. 2. Whenever a judge receives notice of appeal under the 6ist section of chapter 49 of the Consolidated Statutes, he shall on the application of either party, order that the same be set down for hearing at the term of the Supreme Court next after such application, and the clerk shall thereupon enter the same upon the proper paper, and the same shall be heard when reached • and if not then prosecuted, such appeal shall be dismissed with costs, unless the Court shall, upon good cause shewn, postpone the hearing of such appeal (Ji). (*) See aute, p. 159, as to Equity Appeals. EASTKR TERM, 1881. I 'i 200 (• Eastkk Tkkm, 1881.— 44 Vic Attorniys and Students. hAilTa, ,'1 M, ' '?'? •■'"'' 1*™°"' examination as to the cliaracte the f/rst FrSof I>^ t '^^^^^^ "^"^^ '" ^^"^'"^^ «" or before shall be permit^d to refrr- tn nn I T^'""'^ ^PP'''"'" ^^ ^PP'^'^''^"' . .1: lit' '^^1 ■r^ ill .i.mi I III N ' ■iOO (f KASTKK TERM, |88l. «nher provisions above contained shall apply to su,h anDlicints • "nrM be admitted at the expiration of their ter.n of studv ' ''* adnnssion particularly what thi u-n; ^Si.';,'!^^ „':.;-';;;-; '- long he was engaged in it, and his petition shall' he aZ „ nnied Iv n Thc^fove^omg amendments and additions to the IJye-I aws and Regulations of the Jiarristers' Society of New Hrunsvvick having been submitted to the judges of the Supreme Court for approval and sanction, it was ordered that the same be approved and sanctioned. -ppruvca JOM .,prU, ,m. ^ Signed f.y theju,,..) Court! '"'"" "' '"'''•"''"" ''""■'"• "'° '"'"'• '9«'> "-- -' -ncioned by ,he I'. '( I J ai a b( m ur As Co (a* the GENERAL RULES AND ORDERS OF THE COURT OF CHANCERY AND OK lllK SUPREME COURT IN EQUITY.* Affidavits. Service of. Hilary Term, rS6o.~\i is ordered, that it shall not be neces- sary m any case where a defendant has not appeared, except in app hca ,ons or notice for an injunction, to serve a copy of any on suc^ Tr ,""' ", '"^ '"°^"" "^ ^'^^ "^'^'^^^ of anfpetition on such defendant, unless service shall be specially directed by any judye ; and it shall in no case be necessary to serve the opposite party with a oopy of any affidavit of service of process ordered ""'"' °' '""^ "°"'' °'' '''^''' ^'^''' ""'"« ^P-^'-"^ Answer-See Dku.KKV or P.-KAniNCS-ExCKmONS-lNTERROCA ioriks--Oaths-I'ro Confksso -Frolixitv. Exceptions — amended Answer. Jth 7uneiSjp, Ord /c^.-That where, upon exceptions to any answer, .t becomes necessary to put in an amended answer in case such amended answer be not put in in due time, it shall not be necessary for the plaintiff to proceed by attachment, but he m yg.ve not.ce o motion that the bill betaken proconfesso, un^the^amend^d an^r_be_piu^in_withi ten days after the In some instances Dror.isinn« .>.ii!in" -o TS .'r p .• ■„ . - Common Law Rules ; ' loi exam~Dl<"Thn«. ".2 '^"-'^i' 7^<:"cc will l>e found in the ["nte, ,58). Payment nto Court fc X> 3' r"*^ ^^^""''i' '"'"'/• '»^'- Appeal the Court (a»tc, 157). * ' ^*' ""'' Removing Papers from the fifw of 26 ^i •I'l 't|< >.,M r"" *^'l immediately ^//& e^ >^<7«iw mij Supplemnttat Bills, lb.. Ord. ^.=._That it shall not be necessary in any bill of re- vvor or supplemental bill to set forth any of the s.Lmen ts ^ asetav '" '" "° ""«'"" "'"■ ""'=»^ ""= cireunts.ances of the case may require it. Forms of Bilh. n any of the followmj,^ ca.sc3 may file his bill in the form and to the effect set forth in Schedule A hereunder written Tapph cable to the particular case :— ^^ 1st. A creditor upon the estate of any deceased person seek mg payment of hi. debt out of the estate of the deceased paymenfoT'T ""'"'';,"'"'' any deceased person asking payment of h,s legacy or delivery thereof out of the deceased't 3rd. A residuary legatee or one of the residuary lej^atees of any deceased person seeking an account of the residue 'andlay inent or appropriation of his share therein esttfe ollr"" "■ ';;^ "^ ^'^ P^'^"'^ ^"^'^'^^ *° ^^e personal estate of any person who may have died intestate and seeking- an account of such estate and payment of his share thereof ^ 5th. An executor or administrator of any deceased person rczr::: cour"^ "^-^^ "^^^^ ^*'^— --" *" 6th. A legal or equitable mortgagee or person entitled tea hen or security for his debt seeking foreclosure or sale, or other! wise, to enforce his security. Jilo^I^r ""T'^ '° '■'''^"" ^"y ^^^-'^ °^ ^q"'-table mort- gage or any lien .s. cking to redeem the same me'ntffr ""thT T''"^ '' u" '^^""^ P-formance of an agree- ^th^^Vp^rson entitled JO aa account of the dealings and • See note, anU, p, 20a. tr«ions of a partnership dissolved orexpired'^s^^km. ~h loth. A person entitled to an equitable estate or interest and eeK,n<, to use the name of his trustee in prosecuting an action for his own sole benefit. th^V.""" ^ ^"''"" '""""'^ '" '^""" *■' ""^^' ^'•"■'^'^^ appointed where th re .s no power .n the instrument creating the trusts to appoint new trustees, or where the power cannot be exercised, and Lk- ing to appoint a new trustee. /^., Orel 2.~\n any case other than those enumerated in Order ., or m any case m which the Forms in Schedule A are not ap- phcable, the party seeking equitable rehef may frame his bi 1 o'n the like prmcple as the Forms in the said Schedule /^., Schedule ^.-,. By a creditor upon the estate of a deceased person scekmg paymeut of his debt out of the estate. In Chanckry. ',- "• ^"»' '» 2. By a legatee under the will of any deceased person seekin? payment or delivery of his legaey out of the testator s assets ^ In Chancery. -,< , r jj HI I . . ^^ *^' address as usual 1 umbly complaining, sheweth your ontor A H t^,n^ ^ • a legatee to the amount of r .nH .i' •, '. ""] ^^"^ "'^^^r is of of f" I i In? \ -^ . ""'^'-'^ "^^' ^'" d^ted the dav ™ , of C U, late of , deceased, who died on the H? «/<« jor payment, or the expiration of tiuelve " 1 1 (fcS. 4 'r 1 ^?( 2o6 BILL. 1^1 taken ; and he pra^XprrssTthe cLun h^er^n' ""' ''^ ^^^^^^'^ is an annuityy'or fpedf!^'L'-TvWe'fh:"°; •''"^.'° .he circumstances, where ,he legacy t-ir claims is to be concisely stateflj character in which the plain- 3. By a residuary le<,ratce. or any of several residuary le.^atees of any deceased person. seel-'-". A. a, .bat your olt is "ibution of e"ifeitTf c^'an trr''"^ '" "^^r ,°' "r prays to have the personal estate of the said rn' y^^-'.^''^^^'- jherefore Court, and to hav^ his costfof th s snif nnH V /k '^'^^ '" ^^'^ proper directions may beXn and accnunK ^ f ^'' r"[P°-'" ''^^^ ^" the process of the Court herein '"'''" ' ''"^ ^^^ I^-'^y^ ^'^^ 5. ^y the executor or administrator of a deceased person Hi RILL. 207 In Chanckrv. ',. ,. . jj TT , , 1 O (fee, [rty,://-m <75 «.f//a/.l Humbly complaining, sliewcth your orator \ U ^Knf the executor [.,- administrator] of r^ a te ^f ' ^"""' r''°' '' deceased who departed this life on or about ,nH H /."''"' willing and desirous to account for any part of the estate' tim h\! " to his hands, of which he hnth n,, .. / ' ^ ' "' V''- estate tUat has come whole of the esta e o the S E F 1 jic,'-^"''*'" amount, and that the Court for the bcMufi? of nil ? • ^°"''^ ''*' '^"•v administered in this and t}^CD^f^t^jlrinT '"'T'^'^ therein or entitled thereto said F V 's 'ntertsted in the said estate as the next of kin of th^ Ihe said estate a, t,s(W,„,v 1' ^ """^ """f' ''"«""« i-'erested in of this suit mav k p o SS ?„T ."jt'li '" ''"■'"• ""'' "'»'■'"> '='>»« directions mav'te given and /"!,„„,, "['i""' "H?""" ""'. '" t""^' cess of the Court Iterein "='•'"'"'» '»'"=" i ""d !« P'ajs also the pro- 6. By a legal or equitable mortgagee or person entitled to a hen as seeunty for a debt, seeking foreclosure or sale or other! Wise to enforce his security. In Chancf:ry. t^ x r jj u , , 10 iszc. [address as usual.} Humbly complaining, sheweth your orator A R fhn* a virtue of an indenture f., „. „. IZ.TZ'y ^.fdi te'd he- '" '"'dav Cs^d£r''"St^t~^ ^i5:^£-iSHSS^be^;er^ plied in payment of his said deblSdis^s and for th'^ t '^''''''' 'P" have all proper directions given and aLu.Us taken ^nH^ P"''P°''\'° process of the Court herein accounts taken ; and he prays the 7. By a person entitled to the redeinption of any le-al or equitable mortgage or any hen seeking to redeem the same •t ? \ 1 I,'1 208 BILL. In Chancery. To Ac. [^yrf.... as usual.] Humbly complaining, sheweth your orator, A. B., that under and hv virtue of an indenture [.. ot/ur Jocununt, as \he case mav ^1 dated the ^ .M 1 '*^," ' ''^"'^ "^'''^'-' 'between Ulie parties] vour ornior i« ent. ed to the ecjuity of redemption of certain L^holi U XL ■perty as the case may be] therein comprised, which was orif^nal y mor gaged [.r pledged] tor securing the sum of ^ and tte est and that the defendant C. J), is by virtue of thetid indel e the Un gagee {or >y an assignment of the said mortgage dated t/u Zyof .nfUUA ^i" If"'^'"'' '-i '''f '''id nm-tgage\ {err holder of the said //.//land J.iH 1 7"r ''T' '"°"^>'^"d interest remaining due upon the sad mortgage {or hen]- your orator therefore prays that he may be ;tT ^° '■;.^^^'" ^h- ^^ d property, and that the same may be r/con r7?h Jn T^ "^J '° '","?' "^ '^^' "^°«g^S^- ^^"^^■"^d upon payment of the pnnc.pal money and interest due and owing upon the sa d mort gage [../....], and for that purpose to have all pr^r directi'^ns g yen and _accounts taken ; and your orator prays thl p'rocess of the Court 8. By a person entitled to the specific performance of an agreement for the sale or purchase of any property seeking such specihc performance. In Chancery. To &c. {address as usual.] ment"da^edTh7 ^'"'"^','"''7'^ y°"'' °^^'°'"' ^- ^^■' ^^at by an agree- ment dated he day of , and signed by the defendant C D,, your orator contracted to buy of him {or sell to him] certain freehold property {or other property, as the case n,ay be] therein described or re ferred to, for the sum of , and that he has made, or caused to be made, an apphcat.on to the said defendant, specificali; to perform te said agreement on his part, but that he has not done so ; your orato^ n.rI'5''';KPT/^^' '^^ agreement may be specifically performed on the part of the defendant, and to have his costs of this iuit, and for that purpose to have all proper directions giyen ; and he herebj offe s sped Coul^ Sr'eif ''' """ °" '" "'''^ '^"^ '^^ P^^>'^ ^"^^ process of'SL f>rJ^?a're:.™^5^^^ "'^ '^ ^'''^'^ '" ^" *S~' '° '-- - ^^ -ongage. with 9- By a person entitled to an account of the dealings and transactions of a partnership dissolved or expired seeking an account. In Chancery. To &c. {address as usual.] Humbly complaming, sheweth your orator, A. B , that from the fen^Hnnf C H i° '\ u ■ '^''^^ "*" y^"*" ""'^'^^ ^"d the de- fendant C. p. earned on the business of in co-partnership under certain articles of co-partnership dated the day of and made bctwer n {the parses], {or without articles, as the case may be] ^hich partnership was dissolved {or expired] or- ^-^e day of and m i?nj. 209 10. By a person entitled to an cc,uitab!e estate or interest and cla.mn,. to use the name of his trustee in prosecutin, an action Tor his sole benefit. In ("hanckrv. t v r , , your onto, i, cntUleJ tot'cli,,,,,,. ^iTt '''■'"r" i"" f"'-"'"l r. '.'■ "^ 'r'"^°" ""^'■^'•^^ t° '^«ve a new trustee appointed in a case where there ,s no power in the instrument crealim. the trust appo.nt,n, tl.e new trustee, or when the power cannot^ be Exer- cised, and seekincr to appoint a new trustee. In Chanckry. t^ s r jj is inter' stc'd fn certai^ Tru fT^rtrrul' -//'— -'-^/-O your oi^ator and that the defendant CI) kT ^ "■"" '"^""""'^d or referred to, ap,.oi,«od of .I,f4d',r ,7ro;„ ; *; E Ih^LT '""'" //J., 6>/'^. J.— The judge to whom the A viendtneni. bill may be amended same is presented upon petition, if the shall see fit, but every M'^rtfi 11 ■«'t;i %m ; N '(Hi 4', 1 i'l i 27 2tO BILL, Hi j -zf applicatioT) for leave to amend shall state The" nature orthe amendment proposed. ^"^ On/. //, j,icjt Ait or order for delivery of posse.ssioi,,_^a.id u,;ui, proof made of a demand and refusal to obey such order, the party pn.secutiu- the same shall be entitled to an order for a writ of assistance. PcrmHs not parties, fb Ord S-ThTii every person not bein- a party in any cause, who has obtained an or.ler, or in whose favor an order shall have been made, shall be enti.led to enforce obc<1iencc to such order by the same j.rocess as it he were a party to the cause ; and every person not beins a party in any cause af,.ainst whom obedience to any order of the Court may be enforced, shall be liable to the same process for enforcin- ob<>dicnce to such order as if he were a party to the cause. Delivery of Pleadings. 4t^i June, t839„ Ord. /j.-That the solicitors of the plaintiff and defendant, respectively, shall be entitled to furnish the oppo- site party with copies of the pleadings of which copies arc re- quired to be delivered. Demurrers and Pleas. Dimurre-r—iche/i to ha set down for argumenL ^f/if-'^^^^, Ord.j.-Th^t where a demurrer shall be filed by the defendant to the whole bill or to a part of the bill the demurrer shall be held sufficient, and the plaintiff be held to have submitted thereto, unless the plaintiff shall, within one calendar month after service of a copy of such demurrer upon him, cause the same to be set down for argument. Flea — iohe7i to be set dmim for armimrvf, lb., Ord. /^.-That when the defendant shall file a plea to the whole or part of a bill, the plea shall be held good to the same 'i n '11 4 , im '.fs 214 DEMURRERS AND PLEAS. extent and for the same purposes as a pica allowed upon argu- ment, unless the plaintiff shall, within one calendar month after the service of a copy of such plea upon him. cause the same to be set down for argument, and the plaintiff shall be held to have submitted thereto. Not coverinf/ so much of hill m thmf mvjht. lb., Ord. 75. -That no demurrer or plea shall be held bad and overruled on argument, only because such demurrer or plea shall not cover so much of the bill as it miyht by law have extended to, Extendin// to same matter its answer. ■ lb., Ord. 7(5.— That no demurrer or pica shall be held bad or overruled upon arfrumcnt.only because the answer of the defend ant may extend to some part of the same matter that may be covered by such demurrer or plea. Dismissing Bill.— See Hearing. For not delivering copy, ph Juuc, 1839, Ord //.-That in case the plaintiff's solicitor neglect to deliver to the defendant's solicitor a copy of the bill filed withm thirty days after the appearance u( the defendant shall have been put in and notice given, the defendant may move that the bill be dismissed, which may be ordered accord- ingly. For not proceeding to examine tvitnesses. lb Ord JO.— That in case the plaintiff shall neglect to pro- ceed to file interrogatories for the examinatic 1 of witnesses or to obtain an appointment to examine witne. cs thereupon ' in due tune, the defendant, on giving fourteen days notice of motion, may move that the bill be dismissed, which shall be or- dered accordingly, unless cause be shewn to the contrary English Practice, ph June, 1839, Ord /d.-That in all cases where, by the Eng- lish practice, a different time is allowed or prescribed for the performance of any act .- town causes and country causes, and KNGLISH rKACTlCE. 215 no p ov,,s,on -s made for the same by the practice of this Court, to fme for the performance of such act shall be the th^e allowed m country causes, without respect to residence Examination of Witnesses. Sc-o D.s.m.ss.nc; niu.-Sm^^sA. Examiner'H Oath. jyunc,iSj9,Ord..o.~T\,,, the oath to bc> taken by the masters ,„ ordinary, as examiners, shall be in the form pre. cr,bed m that behalf in the appendix to these orders, and that he same be ad.nmistered in open Court, and that the masters so sworn do subscribe their na.nes. to^^^ether with the day and year of bem, so sworn, on a roll to be kept by the register for hat purpose and that when examiners shall be specially ap ponued by order of the Court for takin,. the examinations Tn any cause under the provisions of the Statute of the 2nd Vi " ona entitled "An Act for the improvement of the Practice i^ open Lou. t o, before some person c ,, nvercd by commission case the oath be admm.stered in Court, an entry shall be made ordc, by which such person shall have been so appointed shall be annexed to the copy of the examinations to be by him taken and transmitted therewith ; and in case the oath shall blad m.nistered under a conun.ssion, then such comn.ission. wi h a ct tihcate indorsed thereon by the con,missioner that the oath has been duly administered, shall be annexed 'o the examina lon b: n r'f:"'-^' '^^T?- ''''^' '^"^'- -^^ -^ certificate Ti be n the fo.m prescribed m that behalf in the appendix to these orders, or as near thereto as circumstances may admit. J'otm of Examiner's Oatlu So help y0u God. Form of Oath where an Exa'"i"-^ .<• v*"^",. .\a„- » j ■ '^ >j-'--"2'0 appointed in « particular muse under Statute zni Victoria You do swear that you shall well and truly execute the duties of an 21(5 EXAMINATION OF WITNESSES. mi examiner of the Court of Chancery in a certain cause now depending therein, in which A. B. is plaintiff and C. D. defendant, without favor or partiality. So help you God. Form of Certificate of Commissioner, that Examiner specially appointed has been du.'y sworn. I, E. F., the commissioner named in the foregoing commission, do hereby humbly certify that A. K, therein likewise named, was this day duly sworn on the Holy Evangelists well and truly to execute the duties of an examiner in a cause pending in the Court of Chancery, in which A. B. is plaintiff and C. I), defendant, without favor or partiality. Dated the day of A. I). (Signed) E. F. Rule, to produce wUiiesHes ahdisheiL lb., Ord. 21. — That no rule to produce witnesses .shall be necessary. By Interrogatories and Cross Interrogatories. Id., Ord. ^^.— That interrogatories for the examination of wit- nesses be liled with one of the masters, and copies thereof de- livered to the opposite party, together with notice of the name of the master with whom the same were filed, iwithin thirty days after replication filed, in which interrogatories shall be specified the names of the witnesses to be examined, and the particular interrogatories to which each witness is to be interrogated. lb., Ord. 2j. — That the cross-examination of the witnesses may be conducted either on written interrogatories, to be filed in like manner with the master, or by interrogatories to be proposed at the time of the examination as hereafter mentioned. And that when the former mode of proceeding is adopted the cross interrogatories shall be filed, and a copy thereof delivered to the opposite party within fourteen days after receipt of a copy of the interrogatories in chief ; or in case the party intends to attend and propose cross interrogatories at the time of the examination, then notice shall be given to the opposite party of such his in- tention within fourteen days after receipt of a copy of the inter- rogatories in chief. lb., Ord. 24.. — That within fourteen days after the expiration of the time for filing cross interrogatories, the solicitor who tiled the interrogatories in chief shall obtain an appointment from the EXAMINATION OF WITNESSES. 217 examiner, fixing the time and place of examination, which shall be served on the opposite party fourteen days, exclusive, before the day of such examination. /6 Ord. ^^-That when the cross-xamination of witnesse, s to be conducted by means of interrogatories proposed at the time of exammation, counsel may attend for all parties, and each cross interrogatory shall be committed to writing and submitted to the exammer, who shall then propose the same, and in such case a reexamination in like manner as the cross examination, and confined to matters arising thereout, shall be permitted to the opposite party, such interrogatories to be afterwards fairly cop.ed, certified by the master, and annexed to the depositions. /j., Ord 37.-.That all objections to any interrogatory shall be made at the time the same is proposed, and in such case if the par y proposing the same submit to the objection, the question shall not be put. otherwise the same shall be proposed and the answer thereto taken, but at the same time the examiner is to note down the objection in connection with the deposition He .s also to note down in like manner any objection taken to the testimony o the witness, (as being hearsay, for instance), and the validity of all such objections, if persisted in, shall be decided at the hearing, at which time no objection not so made before the examiner shall be permitted. Filing Depositions. lb., Ord. ^c?.— That at the expiration of fourteen days after the day appointed for the examination, the examiner shall transmit the mterrogatories and depositions to the register under seal, unless he shall be of opinion that further time is necessary to take the depositions ; in which case he shall defer transmitting he same so long as he may find requisite, and certify his opinion to the Court at the time of transmission. Motion for PuUicatim. lb., Ord. ^p.— That on the depositions being filed with the register, either party may move for publication, (on six days notice of motion being givpn). which shall be directed to take place forthwith, or at such time as the Court, on sufficient cause shewn by affidavit, shall order. ■, '\ , r. ^. ■' I 1 i' 'i ..J li ^ m m 3l8 EXAMINATION OF WITNESSES. CouTiftel's Hifimxture to Cross Interrof/atories. Sth July, j8s3. Ord. // *-Wherc the cross-examination of witnesses ,s conducted by means of interrogatories proposed at the time of examination, no such interrogatories, and no inter- rogatory by way of re-examination, arc to be si-ned by counsel. Exceptions to Answer. Setting down for Hearing. Hilary Term, 1875, r. ^.f-Exccptions to a defendant's answer, or to a plaintiff's answer to interrogatories filed by the defendant, may, when submitted to a judge according to the directions of the Act 17 Victoria, cap. ,8, sub-chap. 2, section 10, be set down for argument on the order of the jud-e-four teen days notice of the time appointed for the argume^'nt to be given to the opposite party. Guardian. Appoinfm-ent of.\ _J'±^^y'" ^^^ "• ; 1 aken and acknow e' °' ""= ••="' P"P"' y """ -he value ot Doth classes be generally stated. /KOr^, 3-That no copy of such petition be made for the XiX^ii::"'"""^^-— " - p— /:;,:: f//"f^f' ^:~~u^T "° '*^*' "'^ ^"'=^"' °^her than is contained in IhLrbe'C^ '^'^ '^^^^^^ ^'^^ -ter to who. the referen:: bel;; ttf /■~'^'''' '^' ^ ition to confirm the master's report be ,n the form presr . at the foot of these orders, or as near thereto as the case ^ .Jniit. 3. "f ds near fr u i ^ ' '°'' P''°P"''>' ''^ ^he infant does not exceed three hundred pounds, a guardian may be appointed on the pre sentment of the petition, without reference, if the judge to Zm the same IS presented shall think fit so to order. Petitmis to confirm MaM^rs' Reports. sh^\\ ?ntf'~'^^^' '!^ ^'"'''■°"' '" '^""finn masters' reports it shall, m all cases, suffice to advert shortly to the order of refer- ence, and to state the fact and date of filing the report, without recitmg the particulars of such report. witnout Petition to confirm Retort. In Chancery. In the matter of A. B., an infant. ^ To His Excellency the Chancellor (.. His Honor the Master of the The humble petition of A. B.. an infant, of the age of years ftHEWETH : ° years, That by an order bearing date the dav of A n Chl'L'nLE'rthtSSdoT'' r . Esq.,the''m«er.^ certain en.,uirie; "rc.'pt"^ 'th "^'fo;: r''„rre1'?"'='' '", """■= n.de .d nied hi, r^rt t^'^^.'^.:^C^.SZZ^t """ m\ 220 GUARDIAN, J^^Z.^ Tu '^^'■^?"" P''^y' ^^^^ ^^^ '^^^ may be in all things ponfirmed, and that such further order may be made in the premises S to Your Excellency (or Honor) may seem meet premises as And your petitioner, as in duty bound, will ever pray &c Hearing.-See Examination ok Witnesses-Parties-Replica- TION, Notice ofbnnging came on to.—Setting dmon for Jth yune jSjc,, Ord. j/._That notice of bringing a cause on to hearing shall be served on the opposite party, and the cause set down for hearing with th register fourteen days before the day o. hearing ; and where publication has been ordered, no cause shall come on to be heard until the expiration of one calendar month from the day of publication. calendar Subpoena to hear judgment abolished. IK 0rd.32.-Th^t no subpoena to hear judgment shall be deemed necessary. I>ismissing cause for non-appearance of plaintiff ai. lb., Ord. jj -That if the plaintiff shall set down the cause and give notice of onnging the same on to be heard, and neglect to appear at the hearing, the cause may be ordered to be dismissed. When defendant may bring cause to.~Dism.issing Bill. 10 Ord j^.-That i( the plaintiff neglect to bring on the cause o a hearing at the earliest period at which, by the practice of the Court, tl . same might have been heard, the defendant may obtain an order upon aftid.wi. of the state of the cause, and of such default on the part of the plaintiff, that he may be at lib- erty to bring the same to hearing ; and if the defendant shall hereupon serve such order, set down the cause, and give notice to the plaintiff fourteen days before the day of hearing, and the plaintiff shall not appear at the hearing, the bill may be ordered to stand dismi.ssed. 1"^ Vic, c. 18, sub-c. S, s. H, rescinded. Trinity Term, 1856, r. j.*_The provisions contained in the fourteenth section of the second chapter of the Act relatin- to the administ ratjonff shall thereupon be at liberty, without order o fie such ■nterro-.atories as mioht have been contained in s ch b, 1 provid^^d th.s order had not been made, subject to the re^u- a.ons hereafter prescribed ; and such interrogatories. when"so filed, shall be deemed and taken to be part and parcel of the said Form, of. /d., Ord S.—That the interrogatories so to be filed under the 6th order shall be duly entitled in the cause, and shall be in the form or lo the effect following, viz. — spedS '•Tt^I?e^'^^"H"f '■' '■'' '''-'''' ^^'■^"dants hereinafter ants:l-ist WhellJ^c.'"' ^"'"1^'^'"«"^«' -"^ CD., &c., defend- Form of. —Note at foot.— Service of d/JlT'^' ^'~^^'^' l^^ '"terrogatories so to be filed shall be d.vded as conveniently as may be from each other and numbered consecutively. ,, 2, 3. &c., and the interrogatories which each defendant .s required to answer shall be specified in a note at the ootof the interrogatories, in the form or'to the ef?ect fo low .n.. that ,s to say : " The defendant (A. B.) is required to an w!r the mterrogatories numbered respectively i 2 x &c" An J with the copy of the bill to be served on'any defLan; or his soato, on appearing to the bill, shall b'e served coVrf such of the interrogatories only as such defendant is required to shall, at the t.me of guang notice of appearance, require to be furn,shed w.th a copy of all the interrogatories, i^ which case a copy of the whole shall be furnished. /A Ord /o.-That the note at the foot of the interrogatories speafymg which of them each defendant is required to'are' addiionof 'r' treated as a part of the bill; and the addition of any such note, or any alteration or addition to such ■ r ■ hf' 'H\ 224 INTERROGATORIES. note, or to the interronratories after the same shall have been filed, shall be considered and treated as an amendment of the Dill. No allegation in lill warrantincj 5th July, rSsj, Qrd. d*_It shall be no ob/ection to an inter- rogatory to any defendant that there is no special allegation in the bill warranting the same. Putting in defence where plaintiff does not Jile. lb., Ord. 7.— When the plaintiff does not think proper to file any interrogatories for any of the defendants, or for any one or more of the defendants, any defendant not interrogated shall be entitled, on being .served with a copy of the bill, to the like time for putting in a defence to the bill, if he thinks fit so to do as if served with a copy of interrogatories. Master (reference to).-See Examination of Witnesses-Guar- dian Master's Report not to recite state of facts, &c. 2nd Aug., 1842, Ord ^o.-That in the reports made by the masters of the Court no part of any state of facts, charge, affi- davit, deposition, examination or answer brought in or used be- fore them shall be stated or recited ; but such state of facts, charge, affidavit, deposition, examination or answer shall be iden- tified, specified and referred to, so as to .form the Court what state of facts, charge, affidavit, deposition, examination or answer was so brought in or used. Master's Report on reference to ascertain amount due on mortgage. lb., Ord ^/.— That when it shall be referred to a master to take an account of the amount due upon any mortgage, the master shall annex to his report and refer to therein a statement shew- ing the manner in which the amount reported to be due is made up and ascertained, which statement shall be deemed and taken to be a part of the report. Master's Report not to recite order of reference. cjk yufy, iSsj, Ord, is.*--\Vhi,tQ -^ reference is m ade to a •See note, ante, p. 202. ~ ' ~ ~ ' i MASTER. 225 ^^'•^^^^■««-.y inve.oty;atiou may he had hrforc. juclc,e ^'^*'^^'^^ ^0 co7i/irm Report—See " InfaMs," Notice of Motion and Petition. Time for serving. Hilary Term, 1875, r. I *~T)n^f ;„ ,11 .in.e is fixed b.an/^Ac. of A^CUor ui'r.ll'cln :"" heard ^'^"^ '^'^ '""^'°" ^^^ P^^'"tion is to be Oaths.~See Examination of Witnesses- -Pleadings. Order for Appearance.! -See Infants. Under 4^ Geo. If/., ,. r^, and 3 Wm TV. c 1% Master of the Rolls that I T I'r"''"' ""^ "'^ "°"°'' ^he * Ante, p. 210. ^ — — — — . . tThe plaintitT mav file his bi!! unrirr r q ■ me l.mitecl in the order for appearance Vnri n" ?' "^^^ '•."' ^' ""= expiration of the (G,ip,n V. Moor, Pahner, J., J Jne 2„ "sSo ^ "°' ^'r"" ""*" '""^'y 'lays thereafter W. can be .ade on defau^;/appe^?;rier^ar:;^;^r fo"r ap^Sn^^p^Sr^^ "''^ 29 ir^i 226 ORDER FOR APPEARAN'CL'. passed in the forty-eiirhth year of the Rei'j^n of His Majesty King George the Third, intituled " An Act for making process in Courts of Equity effectual against persons who reside out of the Province, and cannot bo served therewith," and also an Act m addition thereto made and passed in the third year of the Reign of His late Majesty Kin;:,^ William the I'ourth, or either of them, in case the appearance is not entered within thirty days after the last day on which the subpcena issued may be served, under the eighth order of this Court of the fourth day of June instant, the like proceedings may be had as are authorized by the said Acts, or cither of them, in case the appearance of the defendant be not entered within the time mentioned and pre- scribed in that behalf in the said Acts, or either of them respec- tively. Where defendant lias knmun place of residence (17 Vic., c. 18). Trinity Term, 1856, r. /.*— Upon any suit being commenced against any defendant, if it shall be made to appear upon affi- davit that such defendant doth not reside within the Province, but has a known place of residence without the limits thereof, an order may be made for the appearance of such defendant at a certain day therein named, and a copy of such order shall within one year be served upon such defendant, either personally or by delivering the same at the residence of the said defendant to some adult person belonging to his family, and if such defend- ant do not appear within the time limited by such order, or such further time as the Court may appoint, the plaintiff shall be en- titled to the like decree as in case of non-appearance when the defendant is served with process within the Province ; provided, that in case the defendant reside in any part of Europe or the West Indies, such service be made three calendar months before the day of appearance : and if such dcfendantieside in any part of the United States of America, or in any of the British North American Colonies, such service shall be made two calendar months before the day of appearance ; and if in any other part of the world, such service shall be made six calendar months before the day of appearance. • See note, ante, p. 220. ORDER FOR Al'PKARANCE. 227 Affiduvit of service. IK r. 2.— The proof of such service may be made by affidavit sworn before any jud^^e of any Superior Court in the country where the same is made, or the Mayor or other chief magistrate ot any city, borough, or town corporate, in any part of Her Majesty's dominions ; provided always, that where the same is sworn m any country not part of Her Majesty's dominions, it shall be authenticated by a certificate under the hand and seal of the British ambassador, envoy, minister, consul or vice consul- and If m any part of the British dominions, by a certificate under the hand and seal of a public notj.ry. Parchment Hilary Term. 1863, r.2.-li is ordered, that from and after the first day of Easter term next the article called and known as 'patent parchment' be not used for the writs, bills, answers or pleadings of this Court in Equity. Parties.* ferxom jointly and severally liable, J»dAug., 1842, Ord. /^.-That in all cases in which the plain- tiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the Court as parties to a suit concerning such demand" all the persons liable thereto, but the plaintiff may proceed against one or more of the persons severally liable. Hetting down cause on ohjectionfor want of. lb., Ord. /c^.— That where the defendant shall, by his answer suggest that the bill is defective for want of parties, the plaintiff shall be at liberty within fourteen days after a copy of the ansM^er delivered to him, to set down the cause for argument upon that objectionmily^nd the purpose for whichjhe same is so set he assignee of an insolvent to set aside a conveyTnce by the L S' and h s w.Y^ ' r if . f i M 228 PARTriLS. down shall i notified by an entry to be made in the register'* book, in the form cr to the effect followinj^, that is to say : " Set down upon the- defendant's objection |.,r wan^ of p.irties." And' that where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearinjr, notwithstanding^ an objection for want of parties taken by the answer, he shall not at the hcarinfr of the ( uise, if the defendaiirt's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties ; but the Court, if it thinks fit, shall be at lib- erty to dismiss the bill. Object imj to umnt of, at hearing, lb. Ord, ig. — That if a defendant shall, at the hearinjj of the cause, object that a suit is defective for want of parties, not hav- ini,^ by plea or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the Court (if it shall think titj shall be at liberty to make a decree saving the rights of the absent parties. Pleadings.— See Dei.ivkrv of Pf.kadings -Parchmknt. Oath to answers, &r,. — Indorsiwj P/enditu/s. 4tU Jioie, iSjQ, Ord. //.—That all answers and pleas may be sworn before any one of the ma.sters in ordinary or extraordi- nary, and that ail pleadings, as well as the bill, be filed with the regi.ster and indorsed with the name or firm of the solicitor or solicitors by whom the same are filed. Pro Confesso. -See Answer. For xoant of an appearance* _J^th^ne, i8jg, Ord. //.—That in case the defendatit neglects • The wording of C. .S., c. 49. s. 29, i, (liffeient from that of 17 ViZ, c7T87snl^c 2, s. 7 (under which an appearance could be entered at any time before motion made) and achnits of a ddierent construction, and the practice in future will be that an ap- pearance must be filed wiiliin the time required by s. 29 ; and if tho defendant seek to appear .ifter that tnne d before motion made he ought to offjr to pay the costs incurred in preparing lor the motion and to answer within the time he would have been allowed if he had appeared in proper time, or on special application, on such 'i''",-; "S'"*^ J"''ee "ifiy "'"''^i' "le circumstances direct (Per Palmer, J., in Smit/i v. Coiiimook A'. A/. Co., January, tSSo). It is not necessary to file the bill and summons under sec. 116 (where the amount daimecl does not exceed $300) before moving to take the bill pro confesso (Proud v Coles, Palmer, J., September, 1880). ni PRO CONFESSO. 229 to appear in due time after the service of the subp.t.na, on affi- davit of such service and default, an order may be made that the- bill be taken pro confcsso unless the defendant appear in tucnty days fro.n the date thereof exckisive ; vvliich order shall be in- serted m the Royal Gazette at least ten days before the day lim- •tcd for the appearance by the said order ; nn-^. '^^^^'' 'he service of this writ on you, exclusive of the day of such service, laying all other matters and excuses aside you do cause an appearance to be entered for you in our Com of Son" ;/ o'f.uf ^'"''""'A" "^^i'l" (--^ ^/'^ -- ^nav I "In orma agaikst ;:u by'""" '"' ^^"PP'--"'," .. "SupplenVental Bill,") f'.^! XeJJ^ti^yrsT'"^ ''t things^^,:;!^^ -r ^:i;t sam bill being taken against you firo confesso. Witness His Excellency ' at Fredericton, the aayot inthe year of our Reign. Robinson, Form of Sidtpoena for costs. Victoria, &c. To We command you (and every of you) that you adjud^:Srfef.id by yclu^^S SeTdd''^"" °^ ^''""^^^^ T ^''^*^'^^"^;- -^SSSi^^ Witness, itc. ^ Robinson. Form of Subp^na to testify viva voce in Court, or to testify before the ... . A/aster. Victoria, &c, u/ ° J Greeting : and eVcreTSi''"ou"ner'^rT '' ^.^^ "^^^' '^^''"g ^" ^'l^- "^-"ers ericton, .r before Mr "°"0' il>- r';f 'L°^ '''" ^°"'^ ^' Fred- Chancery, at his'office in on°"' °' ''^hf ''"' 3l;"of ''°"" °' Greeting : pay or cause to be or bearer of m • *[ 'ill 2^2 SUHIHKNA., next, nt of the rick in the- f,„vnno.,, to WsUI\ tlw Inidi an-onliiu' o your knowlodg. ,n n rcrtain s.m mow luMuling in o„r sai.r 5 ,'•,,„. (•>"'' "^''7.'^ '"■ ••■H'tlior) arc cloCcn.lanls. on tl..- pari hat you then an7. 18, «9. 20, 24. 2S, 26 29, 30. 3» .14. 3!>, 36. 37, Api)., 21 ' 3. 4> 5. 6. 7. 8-10, II. 12, •3. 14. I'AC.K 210 211 20) 230 231 20J 228 211 2'3 214 220 214 22H 201 230 2I.S 210 23" 217 214 22U 232 j 212 I 231 <2I.S 225 21K 212 213 223 202 223 203 227 213I 1853 -Sth July, Old. 1S42 -2iid Aug., Old. 15, 16, 17.' 18, 19. 20, 21, 22, 23. I, 2, 3. 4. 5. (>, 7. «, 9. 10, H. 18. 13. 14. «S. 16, 17. IS, .ScliL'd., 1856— Trinity Tcrni, rule i, 3. 3. 4i 1860-IIilary Term lS62--Illliiry Teini, rule 2, 1863 -Hilary 'I'emi 1868 -Trinity Term, rule 1875 -Hilary Term, rule 4. 5. I, 2, 3. 4. I'AOK ^'4 202 227 228 224 204 229 204 205 209 210 224 210 239 318 331 333 339 324 225 202 205 226 337 220 221 201 227 210 222 221 22; 21§ 210 211 GENERAL RULES '•>■ I UK. ELECTION COURT FOR THE PROVINCE OF NEW BRUNSWICK; M.'ulo un.lor .uul by virh,,. c,f (h. Art of the Doniinio,, ,.f C.,,;.,!, passed in the 37lh y.ar of H.,- M.j<-s(y'. Kci.n. Chapter ,o. bciiii,' " T/ie Domiinon CoiilrovcNnl lilcctiom Act, iSy^r * I. An KIcction Petition shall eont.ii.i ihe lollowin,; state.nents •^.. {a) rhc rif^^ht of the petitioner to petitio,, within section seven oi tiie Act ; {h) The hoklin- and result of the KIcction ; (r) A brief state.nent of the facts and ^;ronnds relied on to sus^ tain the firayer ; And shall conclude with a prayer for such relief as the peti. tioncr claims to be entitled to. il. The petition .shall be divided into para^r,,,phs. to be numbered con^cutively^ each of which, as nearly as may be. shall ^:Z^^ fined to a di.stmct portion of the .subject ; and no cost.; shall be aHowed for drawmf, or copyin,. any ,,etition not .substantially in compliance with this rule, unless otherwi.se ordered by the Court or one of the KIcction Judges. • See ValiH v. Unghis, 3 Duvnl .S. C. F<. i. V> m ft 2^4 ELECTION COURT RULES. III. The following form of petition, or to the like effect, .shall be sufficient : — In the Election Court, The Donmiion Controverted Elections Act, 1874. Election of ,1 member for the House of Commons for [state the county «r district'] in the Province of New Brunswick. The petition of A. of (or, of A, of and B. of as the case may be), whose name is subscribed {or, whose names are sub- scribed) : 1. Your petitioner is a j^erson {or, your petitioners are persons) who had a right to vote at the above mentioned election, {or, was a candi- date at the said election, as the case may be). 2. That the said election was held on the day of A. D. 18 , when A. B. and C. D. were candidates, and the returning officer has returned the said A. B. as being duly elected {or as the case may be). 3. Your petitioner savs t^n [here state the facts and grounds relied on\ Wherefore your petitioner prays that it may be determined that the said A. B. was not duly elected and returned, and that the said election was void, {or, that the said C. D. was duly elected, and ought to have been returned ; or as the case may be). Dated the day of , A. D. 18 [Sigfiature.] IV. Evidence need not be .stated in the petition ; but the Court, or one of the judges, may order such particulars to be given as may be necessary to prevent surprise and unnecessary expense, and • to insure a fair and effectual trial, in the same manner as in pro- ceedings in the Supreme Court, and upon such terms a.s to costs, or otherwise, as may be ordered. V. The petitioner shall, with the petition, leave a copy thereof with the clerk of the Court, to be sent to the returning officer, pursuant to section eight of the Act. VI. The petitioner shall leave with the petition at the office of the clerk of the Court a writing signed by him, or on his behalf, stat- ing the name of some person entitled to practice as an attorney, whom he .authorizes to act as his agent ; or, stating that he acts for himself, as the case may be ; and in either case, giving an ad- ELECTION COURT RULES. 235 dress at which notices addressed to him may be left • and if no such writin;:^ be left, or address given, then notice of objection to the petition, and all other notices, may be given by posting up the same m the ofSce of the clerk of the Court. VII. Any person returned as a member may at any time after he is returned file in the office of the clerk of the Court a vvritin- Signed by h.m, or on his behalf, appointing a person entitled to practice as an attorney to act as his agent in case there sh M be a petition against him, or stating that he intends to act for himself; and in either case, givin- an address at which noticrs m the matter of the petition may be left ; and in defaulc of such writing being filed within a week after service of the petition notices may be given and served by posting up the same in the' office ol thp clerk of the Court. VIII. When a petitioner claims the seat for an unsuccessful candi- date, alleging that he had a majority of lawful votes, the party complaining of, and the party defending the election and return shall each, seven days before the day ap, -"nted for trial, deliver to the clerk of the Court, and also at the address, if any given by the petitioner and respondent (as the case may be), a list of the votes intended to be objected to, and of the heads of objec- tion to each such vote ; and the clerk of the Court shall allow inspection and office copies of .such lists to all parties concerned • and no evidence shall be given against the validity of any vote' nor upon any head of objection not specified in the list except by leave of the Court or one of the judges, upon such terms as to amendment of the list, postponement of the enquiry, and payment of costs, or otherwise, as may be ordered. IX. When, in a petition complaining of an undue return, and claim- ing the seat for .some person, the respondent intends to give evi- dence to prove that the election of such person was undue pur- suant to the 66th section of the Act, he shall, seven days before the day appointed for trial, deliver to the clerk of the Court and 1 -J' 236 ELECTION COURT KCLES. also at the address, if any, given by the petitioner, a h'st of the objections on which he intends to rely, and the clerk of the Court shall allow inspection and office coi)ies of .such list to ail part!e.i concerned ; and no evidence shall be given by a resoondent of any objection to the election not specified in .uch list '•••,( cpt by leave of the Court or one of the judges, upon such term, as f,. amendment of the list, postponement of the enquiry, and pay- ment of costs s may be ordered, X. The clerk of the Court s,)„U! I,ee{> a bork or books in which he shall record all the procedK,g<^ . f the Court ; the date of filing each petition; notice of preU..r;r.ary objections ; withdrawal or substitution ; and the decision i;j each case tried ;— the proceed- ings in each case to be kept separately.' He shall also keep a record of the names and aadrcsses of the agents given by either of the parties ; which books sliall be open to inspection by any person during office hours, without payment of any fee. XI. Who it shall be made to appear to a judge by affidavit, with- in five days after the presentation of a petition, that there is reasonable ground to believe that such petition cannot be served upon the respondent within Ihe time limited by the ninth section of the Act, such judge may allow further time for effecting such service. And in ca.se service cannot be effected within the tim- so appointed, and the respondent has named an agent, or given an address, then the .service may be made upon such a-ent per- sonally, or by posting the copy in a registered letter to the address given, within such time as the judge may, on proof of the fact by affidavit, direct. XII. If no agent has been appointed, or address given by the re- spondent, and it is made to appear by affidavit to the .satisfaction of a judge that service of the petition cannot be made upon the respondent personally, or at his domirile, such judge may orde^ that a notice of the presentation of :: petition and the prayer thereof shall bg, affixed in a conspi u ., place in the office of th. clerk of the Court ; and such notice shall be deemed equivalent to personal service of the petition. ELECTION COURT RULES. ^n XIII. Preliminary objections to a petition under the tenth section of the Act shall be filed in the office of the clerk of the Court ■ and notice thereof, and that a copy has been tiled for the petitioner, shall be forthwith served by the respondent upon the petitioner or his agent. XIV. Either party may apply for an order fixing the time and place lor hearing the preliminary objections. XV. The answer of the respondent shall be filed with the clerk of the Court. It shall be divided into paragraph-s, numbered con- secutively ; and each paragraph shall be confined, as near as may be, to a distinct portion of the subject. Notice of the filing the answer shall be forthwith served by the respondent on the petitioner or his agent. XVI. The application to fix a time and place for the trial of a peti- tion shall be made in writing to the judge assigned for the trial of election petitions in the county to which such petition relates • and the application shall state the time when such petition was tiJed, and when it was at issue. %■ i ^m m -.1 XVII. The judge\s order fixing the time and place of trial .shall be delivered to the clerk of the Court, who shall post up the same in a conspicuous place in his office, and shall send a notice there- of by post to the sheriff of the county to which it relates, .so that he may receive the same at least fourteen days before the day appointed for trial ; and such sheriff shall forthwith publish the same m the said county. The cost of publication of this and any oihcr matter roquired to be published by the .sheriff shall be paid by the petitioner, or the person at whose instance the same is published, and shall form part of the general costs of the petition '.Hi I 238 ELECTION COURT RULES. XVIII. The notice of trial may be in the following form : — In the ELixnoN Court, The Dominion Conirm>erteJ Elections Act, iSy^. Election Petition for the County of Between A. B. i^naine of petitionet-] petitioner, and C. D. respondent. Take notice that the ahove petition will be tried at on the day of , and on such subsecjuent days as may be needful. Dated the day of , 1 8 . By order of Mr. Justice VV. C, Clerk of the Court. XIX. A copy of such notice shall be served upon the respondent or his agent, or upon the petitioner or his agent {as the case may be), by the party who obtains the order, at least fourteen days before the day appointed for the trial, XX, Notice of the time and place of the trial of each election peti- tion shall be sent by post by the clerk of the Court to the secre- tary-treasurer of the county for which the election complained of shall have been held, or to such officer as may have the custody of the poll books and check lists used at the said election ; artd the said secretary-treasurer or other officer shall forthwith deliver to the registrar of the judge who is to try the petition, or his deputy, the said poll books and check lists, for which the regis- trar or his deputy shall give, if required, a receipt } and the regis- trar or his deputy shall keep the said poll books and check lists in safe custody untnl the conclusion of the trial, and then return the same to the said secretary-treasurer or other officer. XXI. The judge assigned to try the petition, or, in case of his absence or inability, any other judge of the Court, may by order postpone the commencement of the trial til! such day as he may appoint ; and notice thereof shall be forthwith sent by the clerk of the Court to the sheriff of the county in which the trial is to take ELECTION COURT KULES. ^39 place, and the said .sheriff shall publish the same. Notice thereof sh.-.ll also be forthwith served by the party obtaining the same upon the opposite party. XXII. In the event of the judge not having arrived at the time ap- pointed for the trial, or to which the trial is postponed, the com- mencement of the trial shall, ipso facto, stand adjourned to the ensuing day, and so from day to day until the arrival of the judge. XXIII. No formal adjournment of the Court for the trial of an election petition shall be necessary ; but the trial is to be deemed ad- journed, and may be continued from day to day until the enquiry is concluded ; and in the event of the judge who begins the trial being disabled by illness or otherwise, it may be recommenced and concluded by any other of the judges. XXIV. All affidavits, notices and other papers in any matter in the Court for the trial of an election petition may be entitled as fol- lows : — "• In inK EuxTioN Court. The Dominion Controverted Elections Act, 1S74. Election Petition for the County of Between A. B. {name of petitioner^ petitioner, and C. D. respondent XXV. The judge assigned to try an election petition shall appoint an officer to attend at the trial, who shall be called the registrar of the Court, and who shall, in person or by deputy, perform all the functions incident to the officer of a Court of Record, and such other duties as may be prescribed to him. He shall keep a book in which shall be entered the proceedings of each trial, as in a trial at circuit ; and at the conclusion of the trial shall send such book, together -th any papers or documents filed with him during the trial, .0 the clerk of the Election Court. XXVI. At the time appointed for the trial of any election petition, the pf '!»(■ ?1i 240 ELECllON COU' petitioner shall leave with the reol till the said fine was paid ; These are therefore to comtr; ,i y the said sheriff, and all constables r.nd peace officers, to take t sai'u i D. into custody, and convey him to the said gaol, and deliver him into the custody of the ii-vper thereof ; and the said keeper is hereby required to receive the said C. D. into his custody and detain him in the said gaol for the times above specified, in pursuance of the said sentence — Given under my hand and seal this day of , A. D i8 A. B. [L. S.J ' Judge of the said Court. ELECTION COURT RULES. 241 xxrx. Such warrant may be directed to the sheriff and peace officers Of any county or place where the person adjudged cuilty of con- tempt may be found ; and may be executed by any or either of the persons to whom it is directed ; and it shall be sufficient authority to the said sheriff or other peace officers, and to the gaoler, without further particularity. XXX. All interlocutory questions and matters may be heard and dis- posed of be ore any jud^^e of the Court, who shall have the same control over the proceedings under the Act as a judge at cham- bers m the ordmary proceedings of the Supreme Court. XXXI. Notice of in application for leave to withdraw a petition shall be mwnt.n signed bv the petitioner or his agent, and shall be Idt at the offic of the clerk of the Court. It shall state the grounds on ^. ..h the application is intended to be supported and may be 111 the fol ving form :~ * In the Eleci. m Court, County of . TAe Dominion Controverted Elections Act, 1874. [names 0/ petitioners] presented The petition ot this day of Kro?ndsT./lt/r ^IT"".T ^.''^'^''"^ ^' P^^'^'«"' "PO" the following Eit hK;;LcnU"d^Er ''-' ' 'x'lr'' '''''''-' ^°' [Signature.] XXXII. On filing such application, a judge may appoint a time and place for the hearing thereof. XXXIII. n ^. '°^^ °n u^ """"''^ °^ '"''""■°" *° ^PPly to withdraw the petitionxs) Ul be sprv^H b" t^he npt\'-- . ■ < , . , , '" ' P^ti ""::-: ui;.jn inc respondent or his agent, and also upon the sheriff of the county, who shall pub- lish the same in the county to which it relates. 3» 242 ELECTION COURT RULfclS. XXXIV The said notice may be in the following form :— In the Election Court, County or- The Dominion Controverted Elections Act, 1874. In the election petition between petitioner a"d respondent. Notice is hereby given that the above petitioner did on the day of lodge at the office of the clerk of the Election Court notice of an application to withdraw his petition, on the following grounds \state the grounds, as in the application]. Also, take notice, that the said application will be heard before Mr. Justice . at "" '^le day of . Dated, &c. [Petitioner's signature.] XXXV. Notice of the abatement of a petition under the fifty-sixth section of the Act shall be given by the personal representative of the petitioner, or by some person interested, by serving a copy thereof on the respondent, or his agent, and also upon th'e sherifl" of the county, who shall publish the same in the county to which !t relates in the manner hereinafter described. Such notice may be in the following form : — In THE Elkciion Court, Countv of- T/ie Dominion Contro7>erted Elections Act, 1874. In the election petition between petitioner and respondent. Notice is hereby given that the above named petitioner {or, the above "^•"^d , the surviving petitioner, as the case may be), died on the day of , and that the said petition is thereby abated, according to the fifty-sixth section of the said Act. Dated the day of , A. D. [Signature.] XXXVI. Within one calendar month after the publication of such notice, any person intending to apply to be substituted as a petitioner may make a written application for that purpose ; and the judge to whom such application is made shall appoint a time and place for hearing the same, of which notice shall be given 'n the marr er directed in case of an application to withdraw a petition. [Rule xxxiii.] ELECTION COURT RULES. 243 XXXVII. If the respondent dies ; or is summoned to Parliament as a s^'r^H .t^ '^"^^^= ""''' ''^ "-^^^^ Comm: has re o ved that h.s seat is vacant ; any person entitled to be a pot - .oner under the Act in respect of the election to which the pe - t.on relates may give notice of the fact in the county by causing. such notice (statmg with reasonable particularity his right to be substituted), and signed by him. to be published in at least on newspaper published therein, if any. and by leaving a copy of ^ci^rof rco^rt^^^""^ " ''' --'- -' ^ '^^^ -p-'-^^ XXXVIII. Ele'ctrcrtThV'h"^' ^'--P-d-^ giving notice to the shall ThTr '^^^°^«"°t intend to oppose the petition hall be by delivering a written notice thereof, signed by him at the office of the clerk of the Court, seven days before thlcSav appointed for trial, exclusive of the day of Icav^g such notice "^ XXXIX. Upon such notice being left at the office of the clerk of the Court, he shall forthwith notify the judge assignedio try h petition, and also send a copy thereof by post to the petitfone or h|s agent, and to the sheriff of the county ; and the saS sheriff shall cause the same to be published in'^the county in the manner hereinafter directed. ^ XL. The time for applying to be admitted as a respondent in either Shan V''>v"''""°""' in the fifty-seventh section of the Act. hall bewithm ten days after the publ^catio. of the notices hereof respectively, as hereinbefore directed ; or within uch further time as the Court or one of the judges may allot XLI. When a petition is withdrawn under the provision - of the fif.y-ninth section of the Act. notice in writing of such with drawal. signed by the Petitioner, addressed to the clerk 0"^; Election Court, shall be nled in the office of the said clerk The ^^1 244 ELKCTION COURT RULES, notice shall be entitled in the cause, and shall briefly state the facts which authorize the withdrawal of the petition, XLII, Costs shall be taxed by the clerk of the Court, or by his deputy specially appointed, upon the rule of Court or judge's order by which the costs are payable ; and costs, when taxed, may be recovered by attachment or execution issued upon the rule of Court ordering them to be paid. If payable by order of a judge, then by making such order a rule of Court in the ordi- nary way, and issuing an attachment or execution upon such rule against the person by whom the costs are ordered to be paid, or against his goods and chattels ; or in case there be money in Court available for the purpose, then to the extent of such money, by order of the Election Court or one of the Elec- tion Judges. The oflice fees payable for inspection, office copies, enrolment, and other proceedings under the Act and these rules, shall ^be the 'ame as those payable for like proceedings in the Supreme Court, XLIII, Writs of subpiena ad testificandum and duces tecum, under the seal of the Election Court, may be issued at any time by the clerk of the Court ; which writs may be in the following form : — In the Election Court, Victoria, by the Grace of God, &c. Dominion of Canada. Province of New Brunswick. To-wit : To We command you that, all excuses being laid aside, you and every of you be and appear before our Election Judge assigned to try the elec- tion petition for \Ttame the county\ at , in the county of , on the day of , 187 , by o'clock in the noon, and so from day to day until the sai elec- tion petition shall be tried, or otherwise disposed of ; to testify what you {or, either of you) know in the .natter of the said petition, wherein is (or, are) petitioner, ard is {or, are) respondent, on the part of the , and at the Court for the trial of the said election petition for \nume the eoimty], at aforesaid, to be tried. [/« ease of a subpana duces tecum, add:\~h.n6. also, that you bring with you and produce at the time and place aforesaid [describ- ing what is to be produced in the ordinary imy]. ELECTION COURT RULES. 245 Wjhesubpcena is to attend before t/,e Election Cw/r/ :]— Before our said Election Court for the Province of New Brunswick, at Fredericton on the day of , 187 , by o'clock in the ' noon, to testify all and Singular those things which you, or either of vou know m the matter of an election petition depending in our said Court at l-redencton [Jesmbuig the petition as above, or other the matter in which the witness « ca/ied, as the case may be^ ; and also that you bring with you and i)roduce at the time and place aforesaid [describin^r ,„iuu % to be produced as aforesaid], and this you, cr anv of you, shall by no means omit, under the penalty upon each of you of one hundred pounds. Witness the Honorable [the senior Ejection /ud^e], one of the judges of our Election Court, at Fredericton, the day of 187 (Signed) A. B., C/erh of the Election Court. XLIV. The clerk of the pleas in the Supreme Court shall be the clerk of the Election Court. XLV. After the trial of an election petition, the judge shall deliver to the clerk of the Election Court the evidence and proceedings before the said judge, and his finding on the said petition, which shall be filed of record by the said clerk. XLVI. Publica -on of any petition, paper or notice by the sheriff shall, when it is not otherwise expressed in the Act, be by posting printed copies of such petition, paper or notice on the Courl Hou.se, in the offices of the secretary-treasurer and of the regis- trar of deeds for the county to which the petition relates, and by publishing the same once in a newspaper published in such county, if any. In the City of St. John, the notices shall also be posted in the common clerk's office. XLVII. The word " County," wherever it is used in these rules, shall also mean " City and County." or " Electoral District," if neces- sary to give effect to the provisions thereof. XLVIII. No proceedings under " The Dominion Controverted Elections 246 ELECTION COURT RULES. Act, ,874." or under these rules, shall be defeated by any formal objection. XLIX. Any rule made, or to be made, in pursuance of the Act shall be published by a copy thereof beins; out up in the office of the clerk of the Election Court. John C. Allen, Chief Tustice. J. W. VVfldon. Charles Fisher. A, R. Wetmore. Charles Duff. Frederidon, 2nd Nov., 1878. Table of Contents of the Election Court Rules. I. 2. 3- s- 6. 7. 8. 9- 10. II. 12. <3- 14- «s. 16. 17 18. 19. 20. para- , Petition— what lo contain. — to be divided into graphs. Petition— form of. — not to state evidence — par- ticulars. PetiUon— copy for returning officer. —'Authority to atlorney and address to be filed with. Meinber elect may appoint attorney and give address. List of votes, &c., objected fo&c — tiling and delivery. Objections to election of unsuccessful candidate, clerk of the Court to keep record of proceedings. Service of petition on respondent. ** ** (( Preliminary objections — filing and serving. Preliminary objections — tir.!" and place of hearing. Answer— filing— form of— notice of. Trial— fixing time and place for. —order for, how published, —form of notice of. •' —service of notice of. Poll books, &c., to be delivered to registrar. Trial— judge may oidtr postpone- ment of. 22. Trial— adjournment of, in absence of judge. 23. Trial- foimal adjournment unnecess- sary. 24. Entitling affidavits, &c. 25. Registrar— appointment and duties of. 26. Trial— copy of proceedings for judge 27. Witnesses— order for attendance of. 28. Commitment for contempt. 29. Direction and execu'ion of warrant. 30. Interlocutory questions— how disnosed of. ' 31. Withdrawing petition— application for 32. rune and place for hearing. 33. Service and publication of notice. 34. Form of notice, 35. Abatement of petition— notice of. 36. .Substituting a petitioner. 37. Notice where respondent dies, &c. 38. Notice of intention not to oppose. 39- Filing and publishing. 40. Substituting a respondent. 41- Withdrawing petition under sec. 59. 42. Costs — taxation and recovery of. 43- Subpoenas — form of. 44. Clerk of Court. 45. Judge to file evidence, Ac, 46. Publication— how made. 47. ■■ County"' — meaning of Word. 48. Formal objections. 49- Rules— publication of. brmal shall )f the Justice. GENERAL RULES AND ORDERS OF THE c i niu/ 1 nee of lecess- ies of. judge of. int. posed on for 59- July 19th, I79l.f Citations, &c. —direction of. JX'^^^l ^" ^'t^t'°"^ and other processes be directed tn thc^*^"^ shenff of the county in ^hich the defendant resides.!!-^ jfUd^T.],, See C. S.. c. 50, s. 7, (31 Vic, c. 20, s. i). See as to form of citation, rule 3 of Feb. 1869, post. ' Serving- Citation and Libel 2nd That all citations be served thirty days before the return and that a copy of the complainant's hbel be delivered to th" defendant at the time of serving the citation citrtio?'" "' "■"' ^"'^ ' "' '"^''- '^'9. post) must be filed befo ire serving the .0 th^e';^S'=oVEle&Lt?s'^i?r ,t^^ - -- - -^y be' to the provisions of C. S , c ?o and the n^i^n f "■• '» ^'V ^''-•- ^- ^S, subject therewith (s. 3 -23 Vic c ^^ s lo) rjfn "'' "l^ers of the Coun consistent An appeal lies to the Supreme Court; Se;l;^'p ,50 anr;5S^\,;:^^T^e£^-rtfd-;?' ^ ^°"" '^ '"^ ^--"- Gene.al Assembly cj th> said Province iZuTed'Ai a P"'^"'''"^ "^ =»" Act of the Divorce, and for pre.cM.ting ^d n;, '" 'S rJ^? Act for regulating Marriage and Present: His Ev.elk-ncy Thomas Cart n^ v ■' ^'1"'"^ ='"'' Fornication.' Commander in Chief- ft e fIo.Z.bl . r? ^'""'n^'^"'"'?' Lieutenant Governor and Wind,..., i„_..r' A'. ,,"^ "onoiabl,' George Duncan Ludlow. Uc^n aii„., t....... ^ the practice in the said Court " -1 "'"'^"s'^ed for the regulation and government of The table of fees given by these orders will be found in All. Rules XXIL «i 248 COURT OF DIVORCE Evidence to be %nva voce. 3rd. That all evidence touching the matters in controversy be examined viva voce in open Court. See C. S., c. 50, s. 13 (23 Vic, c. 37, s. 8). Attorneys^ malpractice as Proctors. 4th. That all attorneys of the Supreme Court be admitted to [)ractice as proctors and advocates in this Court. See C. S., c. 50, s. 4 (23 Vic, c 37. s. 15). Depositions — before whom sworn, oth. That the commissioners for taking affidavits in the Supreme Court be commissioners for taking affidavits in this Court, in all .such cases where depositions are to be admitted de bene esse under the Act of A.ssembly, See rule of Oct. i860, />03/. Filing Answer, and Trial. Gth. That on the return day of the citation the defendant file his or her answer and be ready with evidences for trial. See rule 6 of Feb. r86g, •Hn/ra. An appearance is entered in the same manner as in the Supreme Court, by filing a memorandum and serving a copy on the plaintiff's proctor. October 23rd, 1860. Affidavits, &c. — before whom sworn. It is Ordered, That all affidavits and petitions in matters and suits in this Court may be sworn before any commissioner for taking affidavits to be read in the Supreme Court, other than the proctors engaged in such matter or suit. Sec C. S., c. 50, s. 8 (31 Vic, c. 20, s. 2 ; 28 Vic, c 6). February 23rd, 1869.* Proxies to be filed. 1. Every proctor appearing for any party shall take from such "Whereas by an Act passed m the tv/ctity-(hird year of the Reign uf Her present Majesty, chapter 37, it is provided that there shall be a Court of Record to be called ' The Court of Divorce and Matrimonial Causes.' And wherea.s by the said Act it AND MATRIMONIAL CAUSES. rsy be :ed to> ti the 1 this ed de It file iling a itters ioner than such ifcscnt called Act it 249 T'^kTu^ ^y ^"'^""''^ '" """'^'"^^ authi^i.^Thii^'Tr'^t'^ whch shall be filed with the registrar at the tir.^ of fili ^ h ' libel or appearance, as the case may be. Seethe practice a.i to proxies, 2 67/// Ccn Py .s, . ■/ /"^rtjVx /„ h sfylcd Plaintiff „„d Dcfmdanl. reicttr'" '■'''•""' *^'' '^^'^'^^ -'-"ff -d defendant Citation to state relief sought &c New Ikunswick, to-wit : iml I^Jland. SS^e^i S th^ lSh''&^^ '" ^"'"^'^ ^'"S""- "^ ^--^ P''ain O-eeting : ""V^^ ^{^^^^^^ S-' John ^^ Rul. r of July, ,y„^. to be cited J. ^ M.'^''^" '"'"^f i,e IViTnr''^" •^'-''■'^'"l""'"y '" ^i.e or 'u,.se County of Saint John and Province of New f unswU ,n '," r'" '"''' <-'''>' ••^"'' Divorce and Matrimonial Causes at F ederir n,? . -) '".^''""•'Y.'''^^'^'^'-'-' ^»'r Court of the thirtieth day after he shall be ,x^ son-ill v^^°'. ^'. '^ P''-"^!^ "f udicaiure there, on day, otherwise at the Court day in n e i ' ,riTn ' '^ '/"'"""' '^ " ^"-' '-^ ^'""^t «uses and doing justice, there L answe 'the Sp^' ''''^;""''•' '^""'- "^ '^^■•'>""g iSKl J, Vf * . •* -I iv, ]Yj ^ wife (if J In* for adultery by him'committed .'nT^irlL^r^'o ltd?' ^""" ",'' '''^"'' "^ '"''"simony ■ce shall appertain, under the pain of the hw td ' T^''^' u""'"'" ""'" '^^^ ^"''' J"st- of the said E. m. ^ '"Tl w , ^ "''' *^'"''^' ^' '^e promotion the premises you shall duly certify to ouV s" d Cour77/'n '" '^""'^ ''^ '"•' ''""^- '" Causes, together with these presents. '^ Divorce and Matrimonial Witness (see C. S c ?o s fi ■,, \r (Indorsed.) Straton, Registrar. Issued the day of ,8 • ^ &B. , Proct ors for 'piaintiff. Act, and regulate the fees payabJrall nfri,- ', V "''•'° "'."^'^ ""-^^^ ^^e said the same or ar,y of them as may fo n- im^ .T; ■I'rr'!^' ""I^ '° """ ^"^ '"'^^^kc Now I the Honorable Charles p-i^her C ^ 5°"«'derH necessary :_ Divorce and Matrimonial Causes do S' m;."'' '#n°^ ««'■ Majesty's Court of regulations concerning the practi^o and pri '? ^'^ -'^following additional rules and Matrmionial Causes, and al o the followinP table'of f /'""^^°"'^ "^ ^'^°^« ^"^ to be taxed and allowed by the office-T^thl ilrl r ? '^°'' ^ ' proceedings therein this date. ^ "'"''^ °' "^« ^8"* Court, to take effect on and after FridtrictoH, ajrd Feb., iSdg." CHARLJis Fisher. 3a 250 COURT OF DIVORCE against "the saitl J. E. M. Libel— form of. 4. The libel shall, without any preamble, contain a brief state- ment of the material facts on which the plaintiff relies, in para- graphs numbered consecutively, and shall conclude with a prayer stating specifically the relief sought for. The libel in ,n suit for a drvoice is as follows : — " In the (Jourt of Divoice and Matrimonial Causes. Province of New l^runswick, ^ Before the Honorable the Court of Divorce and Matrimonial Causes of Her M.-'jtsty's Province of New Brunswick, lawfully constituted by an Act of the General .\ssembly of the said Province. Of 'I'erm in the year of the Reign of our .Sovereign Lady Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the P\utb, &c., and in the year of our Lord one thohsand eight hun- dred and '1 "he proctor of E. M, of the City of Saint |ohn in the City and County ol Saint John and Province of New Brunswick, wife of J. M. of the Parish in the said City and County of Saint John, , husband of the said and against any other person or persons lawlully intervening or appearing in judgment for him, by way of conplaint and hereby complainirig unto the said Court in this Ijehall, doth say, allege, and in law' articulately pi'opound as follows, that is to say : First \Set out the mmrin^'c' and the facts relied on as Jor/ii 4 Chit. Gen. Pr. /t^^] in numbered paragraphs. In the forms in common use the conclusion is asjollo^us : — ) That the said plaintiff, E. M. , hath rightly and duly complained of the premises in this Honorable Court, and the plaintiff doth propound and allege all things in this article mentioned jointly and severally as before. That all and singular the premises were and are true, public and notorious, and thereof there was and is a public fame and report, and of which legal proof being made, the plaintiff prays that right and justice may be effectually done and adminis- istered to her and her party in the premises, and that the said marriage contract had and solemnized between the said E. M. and J. M. as aforesaid may be admitted and pronounced void and of no effect in law, and that they the said E M and J M may be divorced and pronounced free from the contract and bond of matrimony entered into as aforesaid by her the said E M with the said J M her hu banu, by reason of the premises and the adultery by him commiited, and that she the said E ' ' may have the liberty and freedom of marriage with any other man ; and further that this Honorable Court will therein do and decree in the premises what shall be lawful and right in this behalf, not obliging her or her party to prove all and singular the premises or to the truth of superfluous proof against which the plaintiff protests, and saving to herself and her party all benefit of law, prays that so far as she shall prove in the premises so far she may obtain in this suit, humbly imploring the aid of this Honorable Court in this behalf. It is signed by the advocate for the plaintiff' and endorsed — ic citation grounds /or a divorce (see the I ne oeienonnr -.s i;-. t,,"_ j^njij answer to tills iit)« herewith, and be ready with [his] witnesses for trial uay ol ar as ac Wl he Ec all tei ini Co P. P.. Proctor for Plaintiff. i8 of AND MATRIMONIAL CAUSES. 251 Alhnony. 5. Every libel containing a claim for alimony shall state the- property or income of the husband. Time for answer in ir^ cfc. 6 Each party shall be allowed thirty days to file any answer Hlea, demurrer, or other proceeding. answer. ^^^^^^^^ ^.1^1 l:Toi;:::r°" "^^ °' ^" ^"^-'^ '- ^'-'^ ^- ^^'-^ - ^-^^ g^und or .du.. ^^^irr ( rule ofth, CouH an ^ T...n, see the for, n of litel, ante, p. ,jo. ) Ihe proctor of C. B., of the Parish nf • .u ^^ as folio,.;, to.wit , comphint of ihe sard A. B.. dolh say and allege Fi«. [&.,., frv.. *,,,/,f .. ,,,to/,f ,i,y„,, rf^ ^^ „,,, dis„isse';,"itrt:;re^^*r,r£t' '"V-' ^• „"" t:'c"",?;:r°r-;: —• •- -" -^ p^-ed „i. ,.0... Dismissing Cause. 7. If the plaintiff neglect to proceed to hearing or argument ac ordmg to the practice of the Court, the libel maybe dism'sed with costs, unless sufficient cause be shown to the contrary Ecc S7) ' """' '^""'^^ '''^ ="'' (^^-//-'^ V. Be„,L, L. R. 3 Paper, —entering cause on. alltltfofhr-''^'' '"P 'P'P" in which shall be entered all causes for hearmg or argument, or in which any motion is in- tended to be made, which entries shall be made before the op n- Court '' '''^ '"'""' ""^'" °^^^^^^'^^ ^"°^-d by the ':^f6 October Term, 1871. Filing Citation and affidavit of service. of matnmony shall be entered on the paper for hearing until the^*^^^/^'" 252 COURT OF DIVORCE, ETC. calendar ™„„s, except in ease of applr^ee ''"'"" '"" In this term the Court dirprfpri tu^ . • . insert the parish and counrw et tSV" " ''T'' "'^ P^"'^'"" '" ^"'"- 'o Which is not accompanied b, sth t .tZu '' ""^'' '"' ^^'"^ "^ ^'"^ ^^ «^"^'- 1 he affidavit of service may be as follows :- In the Court of Divorce and Matrimonial Causes Province of New Brunswick. Between A. R, plaintifT, and named defendant in this suit with tu ^' , personally serve C. B. the ahn^^ the said C. li. a true copj hereof Ind'aX"^ ""' "■■ '^"='"°" "^y delTverin'g to fS citation. P^ ''"^'^^°'^' ^"d «' the same t.me showing [her] the said writ "J ^d C.^.'^:jL;5^r- l--;;^;^^-ic3 ci^ - afbre^id I delivered to the writiLT'^ '"P^ ^ •■'^'^^'^^d from .ifeToveS p'p°''^ ^ V'^' u"^' '" "^'^ ^"i'- ""■tmg hereunto annexed marked h is a tn!e copy " *''''''' '''^ P^'Pe^ June Term, 1880. A^ file any citation ■e named p]ain- • B,, the above 'ering to [her] he said writ or slivered to the 3el in this suit, ch the paper , as stated in d in this suit, a true copy. es, unless shown to Petitions for Probate and Administration nuaren (it any) of the deceased, and their additions and nlarp« - , ana meir leprcsentatives, with their sevpr^* rv ,^„" t quired .0 be stated are married women or i„fa„ts, the na.,es a^d Mi}'- The Court of Divorce and Matrimonial Causes. FEBRUARY TERM, A. D. 1895. WHEREAS by Section fifteen of Chapter 60 of the Con- solldateii Statates, intituled ' Tha Court of Divorce and Matri- monial Causes,' it is provided inter alia tliat ttie Court skall have power to malce Rules and Kejrulations concerning tlie practice and procedure in the said Court, and also to alter and revolie some or any of them, as may from time to time be con- sidered necessary. Now, I, the Honorable .Tames A. VanWart, Judge of Her Majesty's Court of Divorce and Matrimonial Causes, do hereby alter the following Itules, namely :— Rule 1, promulgated on the 18th day of July, A. D. 1791, to be rescinded, and the following to stand in lieu thereof:— •' That all Citations and other processes be (i irected either to the party against whom Issued, or to the Sherill' of any County in the Province." The Rule promulgated in October Terra, 1871, to be rescinded, and the following to stand in lieu thereof:— " No cause in which the plaintiff prays for a divorce from the bond of matrimony, shall be entered on the papor for hearing until the Citation wit .^ affidavit of the due service thereof and of a copy of the tb i «hall have been filed with the Regls- fMi fae 23rd of February, A. D. 1869, to trar.' Rule 6, promulg ivi,t be rescinded. Rule promulgated io Jrjne Term, 1830, intituled "Notice of Trial," to be rescinded. And I do hereby make the following Rule ; — Fourteen days' notice of trial shall be given in all cases in which defendant appears ; and notice of trial may be served at the time of service of the Citation. Dated at Fredericton, the twenty sixth day of February, A.D. 1895. J. A. VANWART. I^TJT_,ES OF THE SURROGATE COURTS. Orders in Chancery, 9th October, 1840. Whereas, by an Act of the General Assembly made and passed mtne third year of the Reign of Her present Majesty Queen Victoria, entitled " An Act in amendment of the law rclatin^j to Wills, Legacies, Executors and Administrators, and for the set- tiement and di iribution of the Estates of Intestates," it is amon- other things enacted that the Court of Chancery shall and may from tune to time make, establish, alter and amend rules and forms of practice and proceedings, as well for that Court in mat- ters madr cognizable before it by this Act, as for the Surrogate ^ourt, in such manner as the Court of Chancery shall see fit provided that such rules and forms be in nowise repugnant to that Act. His I':xcellencythcChanc..,,r, byand with the advice and consent of His Honr - the Master of the Rolls, doth hereby order and direct as follows :— Petitions for Probate and Admitti miration. 1. That every petition for letters testamentary or of adminis- tration shall state the name of the widow (if any) and of all the children (if any; of the decea.sed, and their add-ions and places of residence respectively, and in case there shau be no children then the names and additions oi all the nearest of kin in equal degree, and their representatives, with their several places of residence, and in case any of the persons whose names are re- quired to be stated are married women or infants, the names and iv> t> ^/^. ^> IMAGE EVALUATION TEST TARGET (MT-3) // ^ .^^. J^>.%* 1.0 I.I 11.25 i^ IIIIIM ^ 12.0 1.8 U 111.6 V <^ ^ /^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 €S \ iV :\ \ L\ ) i/.x \ 254 RULES OF THE SURROGATE COURTS. additions of the husbands or [guardians of such infants (if any) shall also be stated witli their places of residence, provided that in case any of the above particulars are sworn to be unknown to the petitioner, and the surro<,'-ate to whom the petition shall be presented shall deem it unnecessary under the circumstances of the case that the same should be stated, such particulars may be omitted. See C. S.. c. 32, s. 9 (3 Vic, c. 61, s. 23 ; i U. S., c. Ij6, s. 8). The petition must state tlie time and place of the death of the deceased, and the amount of his estate, real and personal, and such other pariiculare as may be necessary (/,/.). Holding Courts. 2. That the surrogates in the several counties shall fix the time and place of hold-ng their Courts as the business of the Courts may require, and shall be attended at the times appointed by the registers of probates, who shall enter in a book the minutes of proceedings at such Courts. It will be presumed that the person acting has taken the oaths of office, but if he has not his acts will not be invalid, if he has been appointed to the office (Crookshank V. Gilvrsoii, 2 All. 544.) The title of the judge was by I R. S., c. 136, altered to "Judge of Probates," and by C. S., c. 52, he is styled "Judge of Probate." Pleadings. 3. That the allegations and proceedings in such Courts shall be oral, except in cases where the importance of the matters in question, or other circumstance, shall appear to the surrogate to render a more formal mode of procedure necessary, when they may, to such extent and subject to such limitations and regula- tions as the surrogate may prescribe, be required to be in writ- The following extract from a decree pronounced by W. B. Kinnear, Esq., Judge of Probates for the City and County of Saint John, in /n re Nice's IVi/i, Oct. ssiui, iS6d is taken from the minutes of the Court, Hook No. 3, p. 397. After referring at length to tht English practice and what were considered its de- fects, the deceee proceeds as follows ;— To adopt this practice in the Probate Courts of this Province would, I think, be productive of endless delay and expense, and in some cases might wreck a good cause upon some point or points, or some defect in acquiring the necessary information to frame a complete plea, or in obtaining an intimate knowledge licfnrehand of all the most minute details, or in being satisfied that the facts given in a law office, not _ __^_^^'^ O'-^ ™^^ SURROGATE COURTS. 355 but retaining the form of nleS.rilo ,"■"''"'"' ""'^ °' P^"'^^"^-^' ing that the object to be cai ecHnl- c T '"'"'^^ '"^"^S-^"""' ■->-' -"-de. ing a., the partL and .he :„:':'; 'V ^^.^^^^"^^ °^ '"^ ^^ "P°" "ear- means can shut out any p„nion of ThVL T u^ everything which by any neces.ty of gi.„, .^LZ t Z "j^r X: ^^^ ''"'' 'T' '" '^ ''' case, I feel constrained in this cause .sin V f , "'""■"' '^^'"'"■"^ "^ "'« rule for framing the >^ver.l . LlnHn . "^ "°"''''"^ '"'''' '° '^^ ^'"^n as a his case, whetl^r on^: ! ^"Z ^^ ^^.^ ''^^ ^''""'^ ^^ '''^ '-'"nc facts of will, can in general only be necesa when ' °'' ""'" "''^"^ ^^ - suit (which, if a is desirous of varying ilJZu^'l^^^^^^^^ he whateverthecasemaybe,b°n,Sno ''""'"''*•" '" '"'P^^ning it, o. counter allegation. L^ eadL 7' " Z "T"" ""'^^"'""' "^ °" P>--""R a place and otner minute dl ,0 J ^ d^^ ,""f ^'l' ^" '"" ^"^'-- "^ ''-- !' "^ -"'ence n.ent of facts should be so con c d „ h ,r "'"""''r °' "■'''^""- '^"•■'-- ^'^t- «.ounds of objection than one and what her T '" '"" "''^"""- '"^'■•^ "^ "-- rrom ...soundness of mind. ^ i ty nn T" ' r""';"' '°"' ^'^-^"P'^' '^-^P-''^' g.ound.. ,n gene,.l detail should b mC bv 7 I T""" ^"^•' =>"'' "-- fraud, coercon, etc., un.ler the res^c i e 1 1 ' '""'''' ^'"■8'^ "^ "soundness, facts d.scoveredsmcefihng the pi ' L ; '" ," '° "''"' '^^'''-- "^ other England after the most complL' ^ 'f' ;,r„'"^ '-"-n, may be done even in allegation should admit whalev: ^n l^' al. tS'": .^^^^''-^f ^^-" ---'". support the will, etc., according to circumsrZ ? """"^ °'' ^"P'"-^'" and hereafter to .state or repeat th wJl h "' ''"" " "'" ""^ ^""<^ unnecessary tional reason for ,al<,ng thi irstn ! ' "'; "'"' '"'°''°"^- '^'^- '^^ - -'di that this Court can ad',um .tTnv t in ' \ '""'"""• '' ""^^ ''^ remembered thus Obviate any inco^ ' JIL^L ZSn^ n^^" '"; T^'^ "^ ''--^'^"«. -^ indeed, unlike the ,„ .ctice in all other Co t he ,"?. "°"" °'' •^"'P"^^ ' ""d the cause is always in Court until ever> faais t . ' " ''"^^^ "P"^"' ^^ merits on both sides and ,lo ful ZLZ ^ ^^ "" "'""'^^ '° ^''^^ '->" ">« •vant of .special plea, or other .W Zt f ."'?''" "'"'°"' "°"^"''' ^»""- f"' on both Sides an'd the advott^t 7 en\:eI^r';h.n"^'T ^ '''' '^ ^'"-'^ not on a case presented whirl, , 1 , ' " ^^ ""^^ "PO" to decide Evidence to he viva voce su.tTat'a.'.d','^""""'"""' ^' "?'■•■">' »='"'ined before the rhe testimony is to be reduced into writing and fded (C S., c. 5., s. ja). Pronouncing Decision. 5. That when any ,natter is contested before the surrogate \ m .-56 RULEb OF THE SURROGATE COURTS. his decision thereujjon shall be openly pronounced in the pres- ence of the parties or on due notice given, and the same shall be entered in the minutes and a copy furnished to the party requir- ing the same at his expense. S«e Fonfs Estate, I P. & B. 552. The decision of the judge in a case within his jurisdiction is final, unless appealed from (ante, 162). Appeals. 6. That upon filing an appeal with the register of probates, the appellant do forthwith give notice thereof to the opposite party by serving him with such notice in writing, or in such other way as the Court of Chancery may direct. 7. That upon the transmission of the copy of an appeal from the decision of any surrogate to the Court of Chancery, on appli- cation of the appellant and proof of due notice of such appeal having been given, the said Court shall make an order for the hearing of such appeal on a day to be thereupon appointed, which order shall be duly served on the opposite party fourteen days (or such '-Miger time as the Court of Chancery may direct) before the d appointed. 8. That upi,.: th'j day appointed for the hearing on proof of the service of the order, the appeal shall stand to be heard unless the Court of Chancery, on special cause shewn, shall think fit to postpone the same, and in that case, on the day to which the hearing shall be postponed. 9. That in case the appellant shall not, within six weeks after :he transmission of the copy of the appeal, obtain an appointment of a day for hearing the same, and serve the same as aforesaid, the Court of Chancery may, in its discretion, on the application of any other party interested, by an order of the said Court, appoint a day for hearing the .same, which .said order shall be served on the said appellant such time before the day appointed as the Court shall^ direct, and in case the said appellant shall nake default in appearing and bringing on the cause to be heard on the day appointed, the said Court, on proof of due service of such order, may direct such appeal to stand dismissed. See C. S., c. 52, ss. 47-50, atttf, p. 162. RULES OF TUK SUKROGATK COURTS. ^ 257 I'onns. the case may render 1 .^,a'',f """■■"""" ""'' '"""^''i™' »^ ^ee C. S,, c. 52, s. 48. J. Harvkv, Chancellor. N. Pakkkk, M. R. To X B ^"' '•~^^^''"'">''^-''-^ 7>./....,,„^, and FrVvince oJ' NeVlSSTck'"''''' "' ^'''"'^''^'^ ^«^ ''^'^ -"""'v of C depa|2d ^h" ,i^: °':,;S;;r t "' ' • '"]!: T""^^' ^'^--d, yeoman, parish of F. aforesaid, having fint dulv mnl n h "'*' J"'*^ '-^^ "^^ and testament in due form oHaw be r^ " 1. ?? ''''"'^"^ ^'^ ^^^ ^^ill >n the year of our Lord and hT^ *" • '''^ '''-•)■ o*" sole executor thereof That ' imlShtdv befo^^fh^ ^'""^ '^^^'■''""^'- '^e the said (;. H. was an inhabitan of 1 u'l 'S '' '^' '""'"^ "<" h'"'* ^^^'ath died seized or otherwise ent t ed ./n n . ''"""'^' "'^ <^" ''^^ that he suuate within the said cou" 1^^//^^^ '''''" "'".''^*-' '«'"^ of £ *-?^ value or^:^^°::ii:' -^x' sii^:^ri^4^'«t-' k r^.-. />/'- Vour petitio ler therefore hunl)lv nrnv^i yt^/^^^^^^C^ C^ ^ul^. Q«. prove the said last will and testament' n,H H "" , '^^ "^">' ^'-" '-^^'"i'ted lb l^lT*' be granted thereof to himln' ue fom, o 1 w ''^''■' ''^^'•'^'»e"tary may "^.Ilfir! ^■ ever pray. Dated the ""^y T ' '"' n '" ^"^>' "^"""^ will^ Oated the day of a 1) (^"^'Sned) • " D p r See as to what should be set foith ;„ fi, • Je- should place soehat the sa.e nu.b'er shou M .^t 'is ' Tr^'T'" ^'""^ '" '"- the W.II died, and the survivors appointed wo Sier. h ' "''^'"°" "'""^^ '" and prob..,e granted to them by .re ] 1 "7^ t /"' ''"°'" '''^ ^«-"°« granted,-HeId.,hat these seven persons coud ^ ^' '"■ ""^ °"S''-' P-'obate ^"".., s All. 450). *''"°"' """''l ^"« »s executors ( /^^y./;, v. Stack- To A B fi'Tur^^C^ilZf ' ^''''''' "f '''^"""istration. in the ProWncerSev^'ZSick"'^^' °^ Probatt%for the county of C. ^^The^petition of D. E. of the parish of P. in the said county of C. Tu ^"""^^'y sheweth, That G. H. late of the parish of F. aforesaid a aioresaid , departed this life % 258 RULES OF TIIK SURROCiA'lE COURTS. "" .''l*-' day of ill the year of our Lord at the parish of F. aforesaui, without having, to the best of the knowledge and lidief of your petitioner, made anv will. That the said (). H. imme- diately before his death was an inhabitant (jf the said county of C, and that he died seized or otherwise entitled unto real estate of 'the vaiue of £ , situate in the said county {or as the case max be) and jjersonal estate^jf the value of £ ; that the said (1. H. feft a widow L H. and sons, namely, your petitioner the eldest, and {here insert the names ami additions of the otiier sons) and daughters, namely, {insert their names ami additions) him surviving, which said widow and children all reside at in the said county. Your i)etitioner jwiys that letters of administration of the estate and effects of the said C. H. may be granted to him in due form of law, and as in duty bound will ever pray. Dated the day of A. D. " (Signed) i). e. See as to what should be set forth in the petition, Rule I and note thereto, auits 253. A statement in a petition by defendant that certain land in his possession tielonged to the intestate, on which [petition letters of administration w^re granted to defendant, is a sufficient acltnowledgment of title in the heir of the intestate lo prevent the opera- tion of llie Statute of Limitations (l\v d. Sp.m;- v. Wcllini;, 6 All. 470). Administration is in general granted in the following order of precedence:—!. A husband or wife; 2. Children; 3. Crandchildren ; 4. Cireat-grandchildren ;' 5. Father : 6. Mother ; 7. Brothers and sisters ; 8. CJrandfathers or gr.indmothers ; 9. Nephews, nieces, uncles and .lunts ; 10. Gie.nt-gr.-indfathers or great grandmothers ; 1 1. Great nephews. With respect to the other next of kin, they take in their order, and it is the rule of the Court where there are several equally entitled, to make the grant to the first applicant without requirmg the consent or renunciation of those entitled in the same degree {/iriru'ii, 174). Primnxvnitnre confers no legal right to be preferred, yet, if the scale be exactly poised, the fact of being the elder brother would incline the balance ( IVnnvick v. Gn-oille, I Phill. 123.) The wish of the majority of interests gives a preference (/-'^<>fBondtoSurro,ateon,rantin,LettersofAdnunistration (See Appendix to Act 3rd Vic, c. 61, No. i.) See C. S., c. 52, s. 9, and the form of bond given by Schedule A. 36o \ivi.\:s (»!■ nil', st'KkocAi !•; (oi'rts. then- Ims lu'cn a l.n-aih of ilir l.nml ; if tin- api.liiimt ninkts <)i;t a /;„„„ /,„,;■ cnne of l)rcatli, ami llial In- is a propn- ihtmhi m sue fur ,1. Ii.' is .•htill.d to an asMKunirnt (/« /■,• //,n,/,r, I I Ian. 2j.,». A ropy of ll„- pr..c,-..lin>;s in tl ,- IVobai.. Touh mcl not Ih- prodiuT.I (;,/.). Si'c as to form of iK-claintion on llu- Ixm.l. .S'urAU- v. .1/,. (iiT, I All. _\4(t). AnassiRnment may heordciol tlioiigli the l.ond is not in tin- form given by the Act (A; /;• lliiii ,', \ Man. 2_5ji. No. ,„ull V. J/at'ey, 4 All. 636). Qiitciv, whether a certitied copy under that section has any other or greater effect than the original probate ? ' Compare sees. 25, 26. ''"'-'••'' '''^ "IK sn;;, '„ -^-^ v.;.- ■™.. «ic„, AT,: ,o. -*''''";-^«,./., „■*,,„„„„,„„„, „.,„„„„,.,,,„„ «t tho same time l.ul.lis,,: '*,''•, :'^'^" "'^' ^••"''-- >"'k.I I.c and testament l.nul ll, /.,. , r "'^; '"""'-•. '" 'h' ''is last will "•">H. is liknvisc suhs.rilH,! , Jll •■' 'i'^" ""^ .1- K., «h„so sai.K;. H. ' "^^^I'^^t'^^'),!.!!!,.- presence of earl, „ther and „f the See Vic. c. 9, s. 3i. P,o,.r in solcm, f..rn, /„ ,-,■ jjoo-Is „f F..x. ,4 ,.. .^ „. 1 rovinee of New Hriinswick, {'oiintv of ('. Me it ren.emhered, that <.,t the ,1.,,. „f , r •^ K. Ksciuire, Surro^r;ue f„r the .•o.mtv „f f ' ' „ '''^"'■'" "i^'' ■■^• ?"^1 K. K. whose names .u^ uEi; /.,;: 'irr'"' '!'''^"^^'' ^"- "• 'nstrument hereunto nnexed m^^^^^^^ '" "'« the parish of F. in , :"„t'v' /'(•''"£ 'V'^' T' ' "■^*'- "• '•^'^' "<" did (oarh for him.elf ) ( et ose-Vn 1 nv t h f h' ' 'I",'' ^'^y *'"'>' •"^^^'"^" «'Kn the said instritment/ami" rHe JU ' ^ <'• "• declare-. to he of I)."and"K. K/'land '• K'-l?^^^^ T^ f"'' that the names " C. the said C. D.. E. K fand T 1)1 '"'^l^-'jed to the said will i,y them other and of the iaid UH. ^^ '''P^'^^'^'h', >" the presence of each (Signed) A. „.^ ^^^^^^,^^^^ ^^^^^^ ^^^^^^^^ ^^ ^, ^^. /^. a,//, /„ ^, ^T; ""'' """ J"" "» Ih^ I' 262 Ki;i.i;s OK TiiM s(rr. 77. — Letters of Administration. Surrogate Court. County of C, Province of New Brunswick, By His Excellency , Lieutenant Governor and Commander in Chief of the Province of New Brunswick, ^:c., &c., A-c. ^ To T. S., of the parish of F. in the county of C. greeting : Whereas G. H., of F. in the county of C„ lately died intestate, as it is said, hav- ing whilst he lived, and at the time of his death, goods, chattels and credits within this Provinc<^ by means whereof the granting administra- tion of all and singular the said goods, chattels and credits, and also the auditing, allowing and finally discharging the account thereof, unto me only doth belong; in order, therefore, that the said goods, chattels and credits of the said deceased may be well and faithfully administered, applied and disposed of accc ding to law, I do by these presents grant unto you the said T. S. (in whose fidelity I do confide) full power and authority to administer and faithfully dispose of all and singular the said goods, chattels and credits of the said deceased, and to ask, de- RUI.KS OK Till.: SI'KI<().;atK (OUKTs. 2f'J niand, rorovcr and the *ai(I (I ri'< t*1vc' wli.ii C( wav l)el easid, uliili. living, ;u)(| ,inl I'MT ^'Odds < IwitiU, (Ii.Iii lie tiiDc u( his (Kath, (h'd in His (I( ath ; 'I' I, »v „r «„ , l,ar,..,l,l,. wi.l,. „, £,, ,, ,,„ ,, ** <»r I ri'diis t(» ;inv and cri-dits will tl L't'n already sw HTcnnio extend, and Uw U at the time of ir as sii.h K<'"ds, < hattels "HI we!) and fiiitlifnjlv l( w ( h :ir^'e you, vini havi tV' in you herel.y reposed, as hv I niak I.', ordain and (\f'nnc '\ ;i\v execiHi' the duties (if the triisl re.|iiired. And I d„ hy tl goods and eluittels, riKhts and , red "II administrator of In tc lesf prescnis ill and singular the stiniony whereof I |,a Court to i)f licrc \v unto ;ifli\t Its of the de( eased, 'iiiised the st-ai of the said S tl iira( ear of the kei-„ of oiir .So.,,,.,, (lav of urroj,'; Ad land, Queen. Defender of the ( mains Av (1. .s ministration irrogiiIa.lv I'rniite.l lith ; and in the y ereiiin I ;idy Victoria, hy tl . ,<>.; I Ilan. 144). VVh,.,c.id oiirt {(■t;>,'h/„„U- 'I'B llif next (,f ki n re- f//A ^ministration is gr.nntetj 2 All. " n wionj. inMson, voi.jalile (.Si/. A'. / in a wr All. st'condary evidence of letters of ad fxjil. 544 t ong 3'. 680; />,>, V. / ministration, see /W d, /„ Thiit letters of ad G/Mo/i, 4 All. 182 • •"••!■„„, 4 All. 116; /),„., I. /.•/,/, lministiT.iion arc evidence of tl "/ V. TV/i V. a;,,,/, t ■OH./'.WII, 4 All. 48 J. ,')//, The following form of ad •3 t.: alterations, fr 0111 4 /> '//"/'.. /:',,y. / ministration with the will annexed is t.i! " order, theiefoi-c, that the sairl faithfully adminisle Koods, cha eiils grant unto y:ni the sai i-fd, ni.plied and ilisj)osed of, ty to administer and faithfully d autho according to the tenor .nnd said deceased which he did ispose of the sair fIVct of the said will : And owe .-.t theli alien, with slight 'Itcls ami credits mav l,e well and according to lau, I .j./ I,y these |.res. conlide. full power and '», chattels ami credits in whose tidelitv I inieof his death, and aft good first to iKiy the dehts oft conla„ic-,i ami sjiecilied in the said will sn r-r ., V ,' - '— -«..<-.« theieto extend and the law re ires w, ha im/'l' ' ^'7^'' ."^"'"'''^ ""'' ^'■«'''' ""' fully to a f^i'h- «ute you administrator of all and inr h, ,^h T i"'7"' T'"'"' '''^^I""^' •■^"'1 C""*"" deceased, with the said will an^xed - .//J'^fS; ""j'''"^'^ ""^' '^'•'^-""^ "f the said 2Vo. r8.~0alh to h, Adminhfered to Administrator you do swear that you believe thnt f u i.,f r t- • , good.s or other asttsthich nnv r.^m '^' '"'^ '''Y '^''^ ^*^'^^'* ^" '"^^ ^^ his shail extend, and ttt you w m^ra trieCI ^''f\ '" '''''' >'"^P-^ estate, real and personal nnd r^nfl ^ Pf'^'^''' inventory of his administration intrtrt'roLe (t rt fnrV"^ *''"'■ "'^"""^ "^ >'°"^ required.~So help yo^ God ^ °' ''^^ """"^^ "^ <^'' «^ by law ^"^ ^9-~^yarrant of Appraisfment. (Jsee form, appendix to ^ Vic r fii M„ , „ . oath administered thereon; 36.) ' '*' ^"'^ '*''' nietnorandum of See C. S., c. 52, s. 14, and form given by .Schedule B. 2r,4 KII.CS ()|. THK SUKROCATK COURTS. JVi\ 30. Oath to /v tjiiministereJ thereon. VoiMlo severally swear thai you will truly an.l impartially ai.praise Hie real ami personal eMate of (1. II.. late of V. in the ( ,.untv of C , deceased, which may be exhibited to voii, according to the best ol your knowledge and ability. .So help you ( iod. iVo. II. Inventory. The following is an inventory of all the real estate, goods, chattels and ( redits of C. H., late of l-'. in the county of C, , deceased. Ki;ai. KsiAii;. Lot of land cjntaininn acres in the parish of i^ the county "f , with a house, barn and appurtenances thereon (iVc. iVc.) valued at £ (\(:. iVc.) 1'KKSONAI. ICslATE. SIOt.K. -Horses valued at £, — C 'ows —.Sheep ti -Table.s, -Chairs, HOU.SK.HOI.D KURNnUKK. £ (&c. &c.) («Sic. &c.) DKIJIH. 15on(l and mort},Mge from C. I), to the deceased, dated Penalty of bond, £ . Conditioned to pay £ and interest Paid thereon day of A. 1). £ judgment against K V. at the s.iit of the deceased, in Court signed day of A. I). for £ (doubtful.) ' 1 ronussory note made by R, S., payable to J. K. and indorsed to the deceased for £ (desperate.) I500K DK.ins, R. L., £ \'- ^' (doubtful.) ^^- ^•■> > (desperate.) .MONEY'. In specie, r Bank note, (Signed) A. 13., Executor or Administrator. The inventory, when duly returned and filed, beccnics a judicial writing or record, knd may lie proved by an examined copy (Ciiiilifc v. A/ui;twiis., 2 Kerr, 311), JVo. 22. — Petition to sell Real Estate for payment of debts. To His Excellency , Lieutenant Governor and Commander in Chief of the Province of New Brunswick, Chancellor of the same, &c., A'c, Ac. ; or. To His Honor the Master of the Rolls. The petition of J. W., executor of the last will and testament of G. 1! Rt)i.Es OF TiiK su,■ ^''^•"■^■"' ' cunie to ilic hands of your uetifion l . ''^•'^•ased. wl,i, |, has thai the del.ts of the e' • '''^^ ' "^'•^' •'•'"""ntcl to the sun, of /; ^ , . and that ;o!;r pe io ;;V uK tir ''^ "'^^"'"'"^•'' ^^-"' ^o pergonal estate, as aj.pear ^ .a ,n h'^'^^ "" "'^' ^^'''1 «h.ch said a.Tount contains ■, tn \^, '■''''"'• '•^■'■^•^''tli annexed. '»-ts of your petition oVa !,,;"" u? '" ■" "'^' ^-^''P'^-hI pay! estate of the deceased consitT, ,io' T^ '''^''' '''^" ^''-' ^^"^1 an. , that is to say, [here < e r 1 J h "? "''' '"'''' '^' ''^'^'•^''•^ '^^ land or pren>ises, uiti the val f el, h '' .''' '""'' "' ^"'''^^ "<■ same are occupied or not, e pec j'^ .\r,T^'::^'''''>- "'^x'^' ^vhether the the occupants, so far as t ev I u ' ' / *"'"i"^'' J- f>-. "'^ . , in the county of ( ' "1, ^' "V^*'^' ^^'^'^'ased are Vour petitioner therefore humhlv 'or-iv. H,', V ^ ' '^' -^ h'm to sell such parts of the re est'w of th T'i '"'''-' ''^' «'"'^"»^"d to Excellency (or Honor) ,„av see , 'It and n '" ''">'''^''' '"'^ '" >'>"^ of his debts ; and as in duty bouni wifl 'Str ?.ra?'''^ '" "''' ''^^>'"'^"'-^ (Signed) ' ^' , ^ day of ^ „ J- W. 1 he within named F \V wi« Hp.i.. „ . . " of the within petition; the ^ "'''''■'? ''^ '^ ''^'^ "<" 'he contents before me. "^>' "' A. I). Th. Ac. „o» in force ,™c,™ i^ ' ' r ^^' ^'"^ "'=■ "'l- C. S., c. J.. 1^™"* «"" ">' '"' «"' "nd„ licc„,c of ihc Co,,,, i, New BRUNswinK^I» Ctiancerv. Wherea, J. W., e«c«„, ofThe°'as. .ill a„d .«.a™c„.^f o. H., ,a,e 34 / 266 RULES OF THE SURROGATE COURTS. of P. in the county of C, , deceased, hath by his petition bearing date tlie day ot last, represented that the personal estate of the deceased which has come to his hands is deficient for the payment of the debts owing by the said estate, and hath prayed that license may be granted to him to sell such part of the real estate as may be deemed meet and necessary for that purpose. .•\nd whereas (due notice having been given to the parties interested) on examination into the matter of the said petition, it has been made to appear to the satisfaction of this Court that the personal estate of the deceased which has come to the hands of the petitioner is not sufficient for the payments of the debts, but that a further sum of £ over and aljove the amount of the said personal estate, will be required for that purpose. And whereas it is deemed necessary that the whole of the real estate of the said deceased should be sold for that purpose, it is hereby ordered that the said petitioner have license, and he is hereby qiii^owered and authorized to make sale of the real estate of the said deceased, for the purpose of paying his debts, the said petitioner pro- ceeding therein in all things according to law. By the Court. J. v., Registrar. [In case a part only of the real estate is intended to be sold, or any particular lot or parcel of land is designated for that purpose, the license will be varied accordingly.] The license to lease will contain similar recitals and may be framed m the same manner, with the necessary alterations. The license need not have been under seal (0?//,cM' v. Inman, 5 All. 399), and see U. as to proof of the license. A license granted by the Probate Court need only be signed by the registrar and not by the judge i,Doe d, Simpson v. Falls, 5 All. 540). See as to restraining the sale by injunction, Coy v. Coy, S. Dig, 346 ; 1 Han. 177. It may be shewn in an action of ejectment that the license was obtaintd by fraud or without complying with the provisions of the Act (Doe d. Elstou v. Thompson, 4 All. 483 ; see Doe d. Boxvcn v. Robertson, 5 All. 134, and cases cited, ante, p. 162. note (d). No. 24.~Noti(e of Sale. To be sold by public auction on the day of at of the clock , at the house of , in the parish of in the county of (or as the case may be) for payment of the debts of the late G. H., of F. in the county of C, deceased, in consequence of a deficiency of the personal estate of the deceased for that purpose, pur? jant to a license obtained from the Court of Chancery, the lands and premises following, th.at is to say, [describe particularly the lands and premises. J (Signed) J. W., JExec titer. RULES^F THE SURROGATE COURTS. 267 M of sale, both by p.tin, I, "o^i^ td b" 'p^L 1" ^ ^° '''" "^'"^'^ °^ not necessary to prove that the notices no,. J P"*^""""" '" "''-• "ewspapers. but it is. d. /-/A. V. 7ier4, Stev. Di^ ,", '^"''"^ "^ '^°""""^d "P '" "'« '^'^V -^ sale (A. ^^. 2s.-BonJ to be given by Executor on Sale of Real Estate. (See Appendix to Act 3 Vic, c. 6t, No. 3.) See the form given by C S., c. 52, Schedule F. No. 26.^ Appeal from decision of Surrogate respecting Sale of Real Estate That A. B., of the parish of F. in the coimtv nf r -,<■ • j ^^d^SX^tif --- - »^^ ::^3ts Of the the .a, estat^^Tl^^S^S^Hir -"'-^ "Srli^ ^^ -^^ application^'was TesLted by yCl tio^TX 'fiTr' ' ''^' *!^^ '^''^ said surrogate against erantinpJnEh ' ° '''^'^ '"* "^^^^^^ ^''h the annexed. ThatTotwifSndirfh^ v'\' """"n °^ ^^'^'^ ''^ "'^'^^i^e said Surrogate deS that Jeen e to siu t'L" °' /°"' P'^'^"^^' '^^ granted to the said A p '"' "^^Pf ^o sell the real estate should be fionerhullyrrpresents to YoTp ''?,'■' '' '^^^^'^- ^"^ y°"^ P^ti The following additional forms, founded on those of the , Vic c 6, and , p c c. 136, are given by C. S., c. 52:— ^ ' ' *"'' ' ^- S" Citation. Sched. C. ' Attachment, Sched. H. Subpoena, Sched. D. Execution, Sched. E. Bond on Appeal, Sched. G, Bond by Guardian, Sched. I, Attachment, Sched. K. 1^ in 268 RUI,ES OF THE SURROGATE COURTS. Table of Contents of the Surrogate Court Rules. 1. I'ctiti<,ns for Probate and Administialion ^^''^'' 2. Holding Couvis 2SJ 3. riendings ^^* 4. Evidence to be 7/mt voct ^54 5- Pionouncing decision ^55 6-9- Api.cals ^55 «o. Forms ...\. '5'' No. I. — Petition for Letters Testamentary. '^^^ No. a.-I'etition for Letters of Adminisir«tion.! j" No. 3.-0atl, to be adn,inis.ered to Petitioner for Letter's Tesian.ent- ary or of Administration No. 4.— Memoran(him of Jurat ^^* No. S-Form of Renunciation by pers<;n enVitledVo Adminisf-.ntion.' .' 259 INo. o.— Atlidavit in proof thereof Ao. S. -Form of Bond to Surrogate bv Executor }/ No. 9 — Letters Testamentary No. 10. -Oath to be administered to Witness on proof "of VVilV made ^^ l)efore ist January, 1839, in common form 261 No. Il.-IndorsementonWillofoath having been administered. '. i" ' 261 No. I2.-0ath to be administered to Executors. . . ' ' -I No. 13-Indor.sement on Will of Executor having been duly'.swom" ' 262 xvo. i4.-Oath to be administered to Witnesses on p.oof of Will made after 31st December, 1838 .g No. is.-Indorsement on Will made after sistDecember, 'i838," of oath (No. 14) l)eing administered ,£.. No. 16.— Caveat ^°^ No. 17 — Letters of Administration .."_ ^^ So. l8.-0ath to l)e administered to Administrator! L! No. 19. -Warrant of Appraisement ^6 No. 20.— Oath to Ije administered thereon L^ No. 31 — Inventory * No. 22.-Petition to Sell Real Esta'te "for Paymen't of iiebts". itt ^o. 23. -License to Sell Real Estate by Court of Chancery.. . " " " ' 26I No. 24.— Notice of .S.ile '' °^ No. »s.~B.'uJ to he given by Executor 0,1 Sale of A'eal £sfAie \ ,6t No. 26. -Appeal from decision of Surrogate respecting S.^le of Real Estate 267 SAINT JOHN COUNTY COU RT. GENERAL RULES. OcTOHKu Tkijm, 1870. In actions to be tnVH ^t fV.^ * from the files of tl'c Col o rte'S'"n iff'"' ',*"" ^ '^•^"""^'1 a cop, of ,He pica, shal, To™ tt ^i^r^.^'SraTiucll't;:'* also oWelfe^d'a «.f.cToff ;!rr' '^f if ?!"''"'' ■'-'"d and tiff's attorney, with he writ anri;^*^^ f\ ''" '"'^'' '>>' ""•■ Plain- <^ntering the cause for trS "' "^ ""= P'™' "t the time of the^'trt t%tfi';e*;'/,iroffice^">'"'= ■''^'" «-' -^S™-' -less ro^i'/eJ'lwroTf^'Acrnra'siS'i'" party intending to .ove after trial, cause to brdcKed tn ir'^'"'.''^"''' ^^''*^'" '^" ^^Y^ specifying particularly the Znndnf.K ^^^^'^ ^ "°^^ '" ''"'^^S, example : If on the"^ .rrnt'r"?^!^^^ •".*^"ded motion. Fo'; evamnin • Tf ru -^ yrounas of the nteni ad2 on . L?" .ff! .r-"d of misdirection admission or rejection of evidence Xnnf""". n"" "^" '"'^P'-Of^'^'* particular part or narts nf Vi „ ^ ' "P^*^ ^^^" ^et forth the ticular portion or no ons of th;""''-:,"" ""^^'.^''"^ ^° ^"^ the par- impropeV admitted or "dectedan'dt"fr"'^^'^ ^° ^^^^ b^^^" grounds, specifyincr the same ..n. . , ""^ T^""^"" °" ^" other particulari;as tL drcum UnLs o^tl "^'"^ distinctly and a., the party shall on the hearh- b/rnn« T "^''l ^^'"'"^ ^^' ^nd specified. And no motionTaonll.? "r'' '° '^^ ^^'■^""ds so made after the said ten days unfchr^"'" ^ "'^" ^''''^l '^'^^" be reason, shall see fit to allovv ihe iame ' "' J"'^^^"' ^°'- &°°d CHARLE.S WATTER3, /• c c. fl ( t t t «, CLERK OF THE CROWN may issue blank writs, 148 to keep 'crown paper,' 31 CLERK OF THE PLEAS. Set Clerk's Fees, entering causes with, 122 accounts of, of money paid into court, 163 clerk in office of not to act as agent, 77 endorsing and folding papers filed with, 193 returns of money paid into court, 163 removing papers from files of, 157 I CLERK'S FEES, ' payment of, 3, 16 M INDKX. 275 CLERK'S FEKS -,w////,W. effect of non-payment, 20, 22 where parties appear in i)erson, 128 CLERK. See Alt.'ni,y''s Clfik. COGNOVIT. See CoH/essioH. COMMISSION TO EXAMINE WIT- NKSSE.S, affidavit for, 79 COMMISSIONER FOR TAKING HAIL, 48 «^iiMi>u COMMON BAIL, when necessary, 5 COMMON CAPIAS, formerly first pro. cess, 1 ' COMMON MOTIONS, when heard, 197 COMMON PLEAS abolished, 10,3 execution on judgments of, 103 COMPUTATION OF TIME, 4 CONCILIUM, rule for, unnecessar)-, 114 CONFESSION. See IVarrant of At- tonuy. •' signing judgment on old, 123 form of judgment on, 185 by prisoner, 92 CONSENT RULE must admit possession, 33 special Ijetween co-tenanls, 113 now entered into, 33 CONSTABLE in charge of jury, oath of, 138 CONTINUANCES not to be entered on record, C, S c 37, i- no ' CORONER, direction of writs of replevin to, 19 mesne process, 133 venire, 52 return of writs by, 2 CORPOR.' ■ TON, service of process on, 131 COSTS. See S/ierilPs Fees ; S.ruritv for Costs ; Cost, o/tht Dav ; Appeal. bill of to specify witnesses names, 12."> examples of bills of, 172, 173 affidavits used on taxation to be Hied, delivery of bill to client, 11 execution for, 177 on motions and rules, 03 on rujj for new trial, (J4 on summonses and orders, 73 on discharging rule lor defect in jural. 12l~ '' taxation of, 124 notice of taxing, 125 reviewing taxation, 125 in crown suits, 21 COSTS OF THE DAY, for not proceeding to trial, 37, 14? on postponing trial, 190 on writ of inquiry, 124 COUNSEL, duty of, as to rules, 32 signature of, to pleas, lOfl .See Ban liter. COUNTERMAND of notice of trial, .37 execution of writ of inquiry, 124 ^ ' COUNTS, several, 178 COUNTY COURT APPEALS, when entered on appeal paper, 19,5, 200 <» proceedings when appellant neglects to proceetl, 105 title of affidavits in, 195 proceedings in, 190 COURT FEES. See A<4^.V />«. CRIER'S FEES, payment of, 3. 16, 20, 22 CROWN, costs in suits by and against, 21 CROWN CASES RESERVED, when heard, 194, 200 b CROWN OFFICE. See Clerk of tlu Cro^tJH. CROWN PAPER, clerk of the crown to keep, 31 when taken up, 31, 53 entry of causes on, 31. 200 iJ SGlo.^*^fi^ 276 INDKX. CROWN PA PEK~(o„/n,„U L'iilar{iin),' rules, ;jl DAMA(;i;.S. Seo .Ississiiuut 0/ Damagis. IJKIJT, assessment of , 18"2 on prisoner, 87, 88 dciiKinil of, 70 geveral counts in, 178 tie bene esse, .5, 8, 28 in bailable cases, 7 DEFAULT, See Inteilociitory /udgmeitt DEFEASANCE to warrant of ii I tor".-y, 80 DELIVERY OF PLEAS, 106 DEMAND OF DECLARATION, 70 DEMAND OF PARTICULARS, 71 DEMAND OF PLEA, 105, 182 DEMAND OF REJOINDER, 92 DEMAND OF REPLICATION, 02 DEMAND OF SECURITY FOR COSTS, 110 DEMISE, in declaration in ejectment, 59 DEMURRER, deliveiy of grounds, 90 special, 97 general, 97 time for joining in, 114 entering for argument, 114 rule for concilium unneci.ssary, 114 demurring and pleading, 200 ^'^'Vnoi' /^" ^'ATRIMONIAL APPEALS, entry of. on upjieal paper, 150 "hen heard, l.i() l)iinling |)roccedings, KiO copies o( libel, etc., to be tiled. ICO evidence on hearing, 150 ajipeal pa|)er, l')0 doc: K EI'. See Entry iMkd ; /u,h- till lit I\\k\t. meiiioianduni of interlocutory judgment, at nisi prius, 29, 164 DUPLICITY in |)lea. 97 in notice <>( defence, 144 EJECT.MENT, declaration in, return day in notice to appear. C8. 75 service of, (i, 60 rv , , t» requisites of, 59 rule lor judgment, 75 common bail in, 5 costs in recovery of, 35 consent rule, how entere,'{ entry of cause l)efore, 182 filing process, etc., l)efore, 7r> for want of appearance, 4, it,") for want of a plea, 0. lOi'i, 100 for want of a rejoinder, 92 INTERROdATOklES, affidavit to examine witnesses on, 70 ISSUE, terms for bringing causes to, 10 ISSUE ROLL not in use, 52 JOINDER IN DEMURRER, 114 JOINT DEHTORS, sci. fa. on judgment against, 90 JUDGE'S CHAMBERS, one summons sufficient, 72 summons, when necessary, 72 costs, 7.3 appeal, 74 students, etc., attending, 98 jurisdiction of judge, 98 making order a rule of court, 199 jui)(;mentas in case of non- SUIT---VW//;; /,•,/. serving nmit,- and aflidavil, (14 rule ail „liili (or, (14 form of notice, Cm atlidavil, 147 *hen obtainable, ((,5 ptremptoiy undertaking, «7 JUDGE'S t^L.-,, :, if. 20 JUDGE'S N'^C'S when coiii-luiin;, 153 J UDGE'S ORDER. See /wftre's Cham- bers. how made rule of court, 199 to hold to bail, 149 JUDGE'S SUMMONS, 72. Sec fudge's Chantbins, JUDGMENT, FOREIGN, arrest on, 149 JUDGMENT NON VKKEDICTO, when moved for, 5.3 OB.STANTE JUDGMENT BY DEFAULT. .See . Intcrlihutorv /iiih'iiicnt, JUfKJMENT OF NON PROS. See Noil J'ros. JUDGMENT ON CONFESSION. See Confession, JUDGMENT ON WARRANT OF ATTURNEV. See Wmranl of At- torney. JUDGMENT ROLI^ engrossment of, 15 endorsement of, 123 numbering, 124 pleading, 124 when to be tiled, 14, 15 only one in same action, 15 warrants o( attorney to be omitted, 184 forms of, in debt, 85 for defendant in replevin, 103, 104. 191 awarding interest, 1,39 for defendant in replevin, 103, 104 oil 1 lea of ;/()// <■(-//■/, 14J, 190 on offer to suffer judgment, 144 on plea of set-off, 189 for defendant on verdict, 189 for plaintiff on verdict, 189 on a non pros, 180 on judgment by default, 185 on confession, 185 against joint debtors, 92 JURAT, where deponent a marksman, 119 where several deponents, 121 alteration in, 121 erasures in, 121 JUDGMENT AS IN CASE OF NOV- JURATA to be omlUcd, 184 SUIT, notice of motion for, 64, 128 ehtry on motion paper, 64 J URV. See Ne^u Trial ; Postea; Venire; Verdict. ixnEX. ?79 jURV FKKS, p.iynicni of, '2ft JUSTIFICATION OF BAIL, 41 MIIUAKV FFKS, cftict i,( n.)ii-|)ii)ii\i.fii, 20 LIMIT HON!/, vfiiia- in anion on, .^.T MARKSMAN', nlTulavit l.y, IIU MEMOKANDUM ok |\ ri.| names of defendants in, ">3 MISNOMER of defemlm.'s 55 MOTION, notice of. 02 MOTION DAV, COMMON, 197 MOTION PAPER, established, (>2 when heard, 02, 194 entering causes on, 200 a MOTIONS, attorneys not to n ike, 20 MOTIONS FOR NEW TRIA S. See A'c-.i> Trinh. NAMES of all defendants in mesne process. 55 initials, 5.>-0 NISI PRIUS ! oitlei of, how ma/i.' a uile of court lilU whr« liisi cause to calicl on, 4« NISI PKll sKCOIil), hiing, 211 aniiiNinjr p. ,.u|g„ j^, -| Ml. - ot deftfice to, l;);j to ■• pro|)erly iii !• up MH f C. S., c. 37, s. 77, not repealed, 133 Act relating to, 133 form of, I.S") effect of, l.'{4 certainty in, 135 counsel s signature, 134-136 in sa. /(I., 130 duplicity in, 143 objections to, how taken, 144 of entry of demurrer for argument, 114 of executing writ of enquiry, 36 of motion, when rule .-.bsolute may be made on, o^ service of, 62 for new trial, 50, 152 of render, 4r) of special bail. 49 of taxation of costs, 125 of trial, 36 superseded rule, 28o INDEX. KOTlCE-con/iiiwi/. 14 days to he given, 30 wliL'ii necessary, 37 coiintermand of, 37 to appear in ejectment, 58, 75 to plead reply, etc., 6 stibslituted for rule, 6 NUL TIEL RECORM, issue on, 115 NUNC PRO TUNC, judgment, 15, 140 OFFER TO SUFFER JUDGMENT I!Y DEFAULT, judgment on, 144 ORDER OF NISI PRIUS, how made a rule of court, 199 ORDINANCE OF FEES, 171 OUSTER, what evidence of, 1 13 OUTLAWRY. 91 PAPER ROOKS. See Dcmumr Book. on trial by the record, 98 PAPER. Sen Af>/>eal ; Crmun ; Divorce unci Matrimonial Apfieal ; Ecjiiity Af'peal ; Motion ; Jiaorii Trial Docket; Special. PAPERS, service of on attorneys, 6-7 taking off tile. 157 endorsement on, 193 folding, 193 tt 1^ ■*'*• .U \ ^■\ d ji,^^l//\ s'gn"'g jutlgment, 88, 89 PARC^IMENTlA^-^A^U^»A.Wi*/yv^p froJ charging in execution, 89 processes, etc., to be on, 1^16 ' after render, 90 lllrltrmtint i-.^!It^ \,-. K,. -,« IK nrrrw»nipnf \r. uroiir.. fkA judgment rolls to be on, 15 pp-ent not to be used, 149 PARTICULARS to be annexed to record, 71 effect of annexing, 71 demand of, 71 what sufficient, 72 PARTIES IN PERSON, payment of fees by, 128 PAYMENT INTO COURT, form of plea, 93 money, how paid in, 94, 163 form of replication, 94 costs on, 94 account of moneys, 163 PEREMPTORY UNDERTAKING, 67 I PETITION, See Attornev ; Barrister ■ ittiulent. PLACITA, not to be entered on record, 184 PLEA. See Abatement; Payment into Court ; Interlocutory /udvment delivery of, 106 demand of, 105 counsel's signature to, 106 several pleas, 133, 179 time for ple.iding, 6 PLEADING AND DEMURRING, 200 PLEADINGS, striking out embarrassing, 97 POST, service of notice by, 7 * POSTEA. See Replevin. form of on plea of set-otT, 188 on verdict for plaintiff, 187 on nonsuit, 18*8 where jury not unanimous, 137 POWER OF ATTORNEY to execute warrant of attorney, 140 PR.-ECIPE, filing, 15 PRLSONERS, declaring against, 87-8 supersedeas, for not declaring, 87 proceeding to trial, 88 signing judgment, 88, 89 agreement to waive, 90 warrant of attorney by, 81 PRIVY COUNCIL, appeal to, 36, 271 PROBATE COURT, rules of the, 253 PROBATE COURT APPEALS, printing proceedings, 160 entry on appeal paper, 161, 200 a proceedings on, 162 PROCESS. See Mesne Process ; Service of Process ; IVrit. PROVISO, trial by. .30 QUEEN'S BIRTHDAY, serving papers on, 7 U A INDEX. 281 KECOGNIZANCE, when a record, 1 of bail, filing, 123 form of, 48 roll, filing, 123 KECORDS, removing from files, 157 to be on parchment, 1 KECORO TRIAL DOCKET established, 115 "^'^'^*' KE-ENTRY for non-payment of rent, 76 KEGISTRY, subpana to prove deed for, 128 REJOINDER, demand of, 92 REMAVET, cause how made a, / ,y,„,. ., judgment ^u. nonsuit where cause made ""^ o7S^U;;^f S« ^^OM FILES RENDER, relief of bail on, 28,44, 45 RENT, postea awarding, 142, 190 ejectment for non-payment of, 76 REPLEADER, when moved for, 53, REPLEVIN, forms of writs, 16, 17 when maintainable, 17. 18 damages, 19 notice of action, 19 oireclion of writ, 19 postea giving defendant damages, 103 judgment on do., I03 ^ ' ^ Post^^-i giving defendant value of goods. j'udgment on do., 104 postea on stat. w,, cepit, 142, 190 judgment on do., 142, 191 ' fieri facias in, 193 REPLEVIN BOND, form of. 99 REPLICATION, demand of. 92 RETAINER to be in writing, 47 RETRAXIT, signingjudgmenlonold, 123 I RETURN OF WRITS sheriffs to return, 2 ' by coroners, 2 side bar rule for, 112 jRETURN.S AND RULE.S I docket of, 3 ' I RULE for body, against ex-sheriffs, 104 'or a concibum unnectssai-y 114 for^udgment. C. S„ c .ST.'^s. 105 for judgment in ejectment, 75 msi waiver of irregularity in, 32 o plead, notice substituted for. 6 to^{:!?;;::^C5\^-"^'''"'edfor,92 to set aside award, 61 RULES, duty of counsel as to, 32 SAINT JOHN LAW .SOCIETY payment of fees to, 20 SCIRE FACIAS, proceedings in, 38-9 agamst joint debtors, 90 SECURITY FOR COSTS rescinded rule, 11 amount of, 108 when obtainable, 108-9 time for applying for, 109 demand of, 110 affidavit for, 110 form of bond. 111 ISERVICE OF NOTICES, &c., I attorneys, 7 ' at dwelling house, 6 SERVICE OF PROCESS at dwelling house, 130 on corporation, 131 on lunatic, 132 on agent. 132. 142 irregular service. 132 filinlTfflf •'•".''""^P. "^ """-resident. 142 hling affidavit and judge's order, 96 SET-OFF, postea on plea of, 188 judgment on plea of, 189 (SEVERAL COUNTS, 178 37 282 INDEX, SEVERAL PLEAS, 179 SHAM PLEADINGS, striking out, 97 S H E R I F F. See A'e/io/i of Writs. jury process to, 52 SHERIFF (EX), rule for body against, 104 SHERIFF'S BAIL, notice to, 7 SHERIFF'S FEES, enilorsement of on writs, 40 title to, 49 who liable for. 49 SIDE-BAR RULES for return of writs, 112 SITTINGS. See York SitHugs. SOLEMN DECLARATION, when evidence, 80 SPECIAL BAIL, when to be put in, 21 before whom, 47-48 number of, 48 qualification of, 42 when deemed perfected, 44 notice of putting in, 40, 49 form of, 49 is a sufficient appearance, 49 excepting to, 41, 44 affidavit of qualification, 42 justification of, 41 former rule, 7 costs, 43 affidavit, 42 rule for allowance, 44 bail-piece, form of, 48 transmitting to judge, 40^ 48 affidavit of caption, 48 filing, 11,44,45 entering exoneretur, 44 relief of, on render, 28, 44,^ 45 liability for interest, 23 waiver of, 8 SPECIAL CASE in equity, 161 entry for argument, 114, 2QQ <* notice of, 114 printing, 161, 200 a filing, 200 a SPECIAL CONSENT RULE, 113 SPECIAL DEMURRER, 97 SPECIAL DOCKET at St. John Circuit, 29 SPECIAL PAPER, established, 31 when heard, 31, 53 when court sits in divisions, 32 entering causes on, 200 a SPECIAL VERDICT, entering for argument, 114 notice of argument, 114 STATUTES CITED (English) 29Eliz., C.4, I 3Jac. I., c. 7, s. 1, • 17 Car. II., c. 7, 22-23 Car. II., c. 9, 29 Car. II., c. 3, s. 16, 4-5 W. & M., c. 4, 20, 8-9 \Vm. III., c. 11, s. 8, 9-10 VVm. III., c. 15, 4 Anne, c. 16, s. 11, 12 Geo, I., c. 29, 2 Geo. II., c. 22, s. 13, c. 23, s. 22, s. 23, 4 Geo. II., c. 28, s. 2, 5 Geo. II., c. 7, 8 Geo. II., c. 24, s. 5, 11 Geo. II., c. 19, s. 13, s. 19, s. 22, s. 23 12 Geo. II., c. 13, s. 4,' 14 Geo. II., c. 17, 20 Geo. II., c. 37, s. 2, 7 Geo. III., c. 36, ss. 10, 11, 3 Geo. IV., c. 11 Geo. IV. i. ss. 21, 22, 1 Wm, IV., c 39, s. 4, : 1 Wm. IV., 49 12 101 135 192 48 186 9, 86, 91 62 108 133 188 192 12 76 80 189 ;« 18 190 101 192 64 112 21 80 134, c. 70, 2 Wm. IV. 7. s. 1, c. 22, c 39, s. 2-3 Wm. IV., c. 92, 3-4 Wm. IV., c. 41, c. 42, 15, 17. 44 10 79 28, 55 112 110 5-6 Wm. IV. 8. 12, 16, 21. 22, 25, 28, 30, ?•% 34, c. 67, s. 2, c. 62, s. 15, 36, 272 108 55, 57 9 93 167 115 23 140 17ft 39 52 56, m \i \ I INDEX. 49 12 101 135 192 48 186 «, 86, 91 62 108 133 188 192 12 76 80 134. 189 35 18 180 101 192 64 112 21 80 70, 44 10 79 28, 55 112 110 272 36, 272 108 55, 57 9 i 140 'S 62 55, 8» \. } t ""'•^'v^J'^fVIJ''^*^"^"^'"-"'''"-''! 1-2 Vic, c. 110, 6-7 Vic, c 38, "3. 7-8 Vic, c. 69, 11-12 Vic, 13-14 Vic, 14-15 Vic, 15-16 Vic, 0. 17. 18. STATUTES CITED (I tiitiud. 5 \Vm. IV 283 rovincial)— cc«. 272 6 VVm. IV. I c. , c . c c. 16.17 Vic, 78, ss. 1, 2, 4, 3.), 83, ss. 15. 16. 76 (C. L s. 4, 7, 18, 26, 37, 38, 41, 45, 46, 50, 51, 52, 70. 71, 73, 75, 80, 81, 84, 86, 89, 95, 116, 121, 128, 129, 134, •72, 3i5 85 ^'''' .-"« 17-18 Vic.; c 125 (C. L. P. Act, 1854)" s. 45.47, 63 80-31 Vic, c .-,9, ^^' „, 34-35 V.c, c 91, 272 STATUTES CITED (Provincial). 26 Geo. III., c. 11, s. 18, 13, 20, 21, 24, c 10, c2, c 21, s. 7, 9, 10, 22 «Geo. IV., c4, |^j:™-|V..c20,s.2. » Win. IV., c 19, •^ VVm. IV., c .38^ s. 2, »Wm.IV.,c.s]:''^* 37, c. 37, s. 3, s. 9, 10, c. I, s. II, 7 VVm. IV., c 14. *"' s. 1, 8, 15, 18, ao, 21. 25, 26, II. 1 Vic, c 13, s. 1. 3, 2 Vic, c 35, 3 Vic, c. 51, 61, s. 23, 63, ss. I, 2. 9 Vic, c 48, 10 Vic, c 42, 11 Vic, c 16, s. 1, 12 Vic, c 39, s. 2, SI Geo. Ill 48 Geo. III. 30 Geo. III. 52 54. 86 28 49 60 130 95 85, 86 108 55 115 23 178 30 62 93 215 120 254 99 103 116, l.W 128 29 108 55 62 5 44 131 178 39 86 23 J 39 191 93 71 115 l.TO 47 133, 143 178 178 55 49 17 18 17 101 102 190 109 78 17 N)S, 104 14« 91 97, 99 2B4 INDEX, ; I STATUTES CITKD (Provincial)— w; tiuimti. 14 Vic, c. 20, s. 2, 1 R. S., c. 102, s. 18, 112, c. 126, ». 7, 11, 15, 16. 18. 24, Sch. M. N. O. 1 c. 131, s. 8, 9, c. 136, s. 8, s. 46, 137, s. 43, 141, 159, 22-24, 160, 1, 161, 2, 17 Vic, c. 18, I7Vic,cl8,sub-c. I, s. 1, 2, 3, 10, 14, 32, 34, 88. 59 24 129 17, 102 18, 19 101 143, 190, 191 103, 143 129 76 P., 103, 104 49 50 254 162 73, 200 91 194 194 99 159,226 36 222 21 S 220 158, 159 159 STATUTES CITED (Provincial)- timtcd. c. 19, 18 Vic. c. 9, 24, s. 16, 34 c 25, 1, ' 19 Vic, c. 40, s, 2, 41, s. 7, 20, 21, 22, c. 42, 20 Vic, c 6, ss. 1, 2, 21 Vic, c 20, s. 1, 2, 4, c. 25, 22 Vic. c. 2, 21, 28, Vic, c. 37, s. 8, 10, 15, 17, 26 Vic. c 25, 26 Vic, c 15, S3. 13-18, 23 27 Vic. c. 44! 28 Vic. c 6, 30 Vice. 7,s. 1, 2. 6, 160 51,58 144 137 138 29 55 52 121 63 99 21 28 2 6 67 51 24 20, 153 150 248 247 248 249 140. 192 161 25 161 248 25 26 ISfli 30 Vic c 10, 112 s. 21, 24, 196 37, 27 38, 47, 95 40, 196 31 Vic c3. 25 20, s. 1, 247 26, s. 1, 2 32 Vic. €. 12, 20 32. 99 33 Vic c. 20, s. 4, 196 26, s. 1, 157 35 Vic C.3, 103 4, .*?9 36 Vic c. 13, s. .S, 196 23, 103 36 Vic, c. 31 (C. L. P. Act. , 1873). 8, 28, 106, 133, 168, 178 S.4, 55 5, 28 8.9, 131 10. 11, 142 12, 2 18, 49 20, 28 62, 87 63, 8 68, 6 67-69. 93 « 70, 94 72. 188 77. 200 78, 81. 197 86, r. 9, 71 91, 97 93, 96 95, 96, 97 97. 71 103, 104, 57 105, 108 107. 30 110, 10 112, 10, 124 114, 186 118-120, 86 121, 23 122, 28 123, 140 124, 192 125, 91 126, 191 127, 28 129-133, 145 149-152. .39 155. 39 157, 158, 39 166. 55 174, 115 175-177, 63 ai) — con- 112 196 27 47,95 196 25 247 2 20 9» 196 157 10» 39 196 103 73), 168, 178 65 28 131 142 2 87 8 6 93 94 188 20O 197 71 97 96 97 71 67 108 30 10 10, 124 186 86 23 28 140 192 91 191 28 14» 89 89 89 05 115 68 INDEX. 285 STATUTES CITED (Provincial)— <-y«- tinucd. 36Vic., c. 31,s. 186, 187, 196, 197, 202, 205, 209, 210, 215, 221, 37 Vic, c. 7, 9, 16, 38 Vic. c. 4. c. 5, Con. Slat., c. s. 20, 22, 5. 10, s. 4. 5, 6. 25, s. 6, 8, 9. .26, 27, s. 6, 31, s. 3, 33, s. 1, 2, 3, 4, 6, 7, 34. 36. 36. s. 5, 37 (C. L. P, 8.2, 3. 6. 7. 8, 10, 9, 10, 11. 13, 15, 16, 18, 19, 25. 27. 28. 29, 30, 35, 36, 38. 40. 48. 48. S2. 62 79 123 5.58 178 179 178 28, 86, 131 28 89, 136, 174, 194 168 20 194, 197 136 177 194, 197 99 21 112 49 60 20 58 3, 28, 52 142 25 157 156 26 #20 ■120 121 Act), 2, 106, 133 2 55 128 131, 133 131 142 2 2,49 2, 55, 79, 131. 186 2, 131, 186 131 2, 112 2 2,27 44 48 6. 128 5 4, 28, 95, 182 167 3. 78. 187 24 87 «. 21 STATUTES CITED (Provincial)- <««■ iinued. Con. Stat., c 37, s. 57, 58, 64, 65, 66-68. 71, 76, 77, 78. 79. 82. 83, 88. 90. 92, 9.% 94, 95 100, 101. 102, 104, 106. 107, 108, 109, e, 92 e. 92, 106, 108 181 93. 94 94 188 73, 200 133, 153, U8 94, 133 133, 179 « 110, 111, 112, 114, 11.5. 116. 117. 118, 119, 120, 121, 122, 123. 124. 125. 126. 127-131, 147-152, 71 97 96 97 71 108 57 108 80 5, 86 10 5, 10, 15, 122, 124, 186 5, 184 186 188 15, 186 9, 10, 54, 86 86 10, 86 23 24 140 140, 192 91, 92 191 3, 112, 192 39 47 66. 145 39 154-158, 39 160, .39 161, 72, 115, 164 164, 55, 56, 183 172, 173-175, 184, 185-194, 195, 196, 197, 198, 199, 200. 202, a», 115 63 62 79 123 105, 112 4, 36 59 6, 10, 59 2, U 101 102 38 286 INDEX. SrATUTES CITED (Provincial) -c2 18, 19 61, 76 184 76 99 16, 101 W, W " SfJMMONS AND ORDERS, See SUNDAY, when reckoned a day, 4 SUPERSEDEAS. .See Prisoner. SUPREME COURT IN EQUITY rules of the, 201 ' SURROGATE COURT rules of the, 253 ' TAHLE OF FEES under C. L. P. Act, 168 TAXING COSTS. See Costs, 124 TERM'S NOTICE, when necessary, 36 TERMS for bringing causes to issue, 10 # TESTE OF WRIT, 28 TIME, comput.ition of, 4 TRAVELLING CHARGES, 14 witness fees, I2o-6 TRIAL at bar, 9, 45 at Nisi Prius. See Nisi Prius when first cause to be called on, 46 entry of cause for, 29, 164 jury fee, 2!) filing record, 164 by proviso, ,30 by the lecord, p.iper books on, 98 record trial docket, 115 what in issue on, 115 notice of by both parties, 130 failure to jjroceed to, 130 no judgment qu. nonsuit on, 130 VENIRE, when issued to coroner, 52 form of, 53 VENIRE DE NOVO, wheie cliallenge is overruled, 52 VENUE, change of, 165 in suits by attorneys, in local .actions, 167 167 VERDICT. Sec PosUa. wliere jury arc not unanimous. 137 record of. \T^ ' ' WARRANT OF ATTORNEY rule nisi to set aside, 61 ' filing before judgment, 80 defeasance, 80 by prisoners, 81 a year oKi, 122 executed by agents, 140, 141 date to, 142 initmls and date of signing judgmeni, Rtcurn pj WINDING UP ACT, appeals under, 161 WITNESS. See Suhpccta, WITNESS FEES, 125-126 WRIT. See Mesne Procees ■ IVnt. effect of alteration in, 27 issue and return of, 27. 28 teste of, 28 signing and sealing, 27 of assistance, 21 of attachment, 136, 148 of capias, common, 1 of error coram nobis, 36 of A/rt., 191, 192, 193 of inquiry, assessment of damages by 9 judgment on, 185 notice of execution of, 36 countermand, 124 form of writ, 10 of habeas corpus, 148 of mesne proce ss. See Mesm Process. of replevin, 16, 17 ofsubpa.ia, 57, 128 of supersedeas See Prisoner W R II S. See Relinn of Writs to be on parchment, 1. 16 blank, 1.3. 15, 148 signing and sealing, 27 YOR K NISI PRIUS SITTINGS, 61 new trials from, 85,*136 ERRATA. P. i6, II. IS, i6. For "payments" read "payment." P. 30, 1. 2. For " c. 47 " read "c. 45." P. 35, 1. 8 from bottom. For " s. 36 " read " s. 27." P. 47, I. 2 from bottom. For "Tenderden " read "Tenterden." P. 76, 1. 4. For "described " read " served." P. 78. Form of entry docket. Add date lo attorney's signature, " 18 ." P. 8i, 1. 27. For " M. T." read "H. T." P. 86, I. 27, For "s. II " read " c. 11." P. 88, 1. 5. For "three months" read "two months." P. 91, I. 10 from bottom. For "9-10 Wm. ly." read "8^ Wro. III." P. 93, 1. S from bottom. For " s. 59 " read '%. 39." P. 96, 1. 12. For " specifically " read "specially." P. 97, 1. I. For "M. T." read " H. T." P. 108, 1. 13 from bottom. For "3 Vic." read " 36 Vic," P. u6, 1. 5. For "c. 49" read " c, 48." P. 120, 1, 26, For "T, T." read " E. T." P. 161, I. II from bottom. For "Courts" read "Court." P. 161, II. 3, 4 from bottom. For "time prescribed by the rules of Court " read 'times now prescribed by the rules of this Court." P. 178, 1. 10 from bottom. For " 37 Vic." read " 36 Vic." P. 183, 1. 13 from bottom. For •' the addition " read " the true addition." P, 225, 1. 10 from bottom. For "c. 13" read " c. 9," 9 /