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Les diagrammes suivants illustrent la mithoda. 1 2 3 1 2 3 4 5 6 \ vV ALi Joi w. n THE vV DIVISION COURTS ACT, J/ RULES AND FORMS; WITH NUMEROUS PRACTICAL AND EXPLANATORY NOTES; TOOETBER TTITII ALL OTHER ACTS AND PORTIONS OP ACTS AFFECTING PROCEEDINGS IN DIVISION COURTS; AND MANY NEW AND USEFUL FORMS; AND A TABLE SHEWING ALL THE DIVISION COURTS IN UPPER CANADA, THEIR SEVERAL LIMITS AND NAMES OF OFFICERS. ■ffJTH A FULL AND COMPLETE. INDEX. ! BY HENRyVbRIEK Esq., BARRISTER-AT-LAW, Joint-eompller of " Harrison & O'Briew'g Digest," ai>d ono of the P:ditorK of tlio • Upper Canada Law Journal and the Local Courts' Gazette. TORONTO: W. C. CHEWETT & CO., PUBLISHERS, KING STREET EAST. .186 6. I « Low *^^ Con%i (I . 5^. 54 Entered tccording to Act of the Provincial Legialature, in the yenr of our Lord one thonsand eight hundred and sixty-Biz, by Henbx O'Bbieit, in the Office of the Registrar of the Province of Canada. 4 10 HIS HONOR JAMES ROBERT GOWAN, JUDQB or Tm OOVNTT OOUBT or THE OOUNTT Or 8U0OK, n the ye»r of our Lord », in the Office of the * THIS TOLUMB IS INSOBIBED, nr APFBXounoir or ibi talhits irmea asobr his rosmoir, aro or bis ixuinoiis 10 rOBWASD TBI DVZ IBS STSTUf AHO ASIOXISXBAnOIl Or ;! jusnoB nr oro smsioir cocbzs; AS WILL AS A 8U0HT AfKHOWLIItOKINI or BIS IBYALVABLI AID Of TBI rUPABAHON Or TBIS UTiu: iroBX, and or xmosBLiss oram kird acts or rBiimsaip to BIS BiRfsw Tsavn>, THE EDITOR. ■•?• ^ INTRODUCTION. *f>M *■• , ' ^l-. i^ A sketch of the legislation which has resulted in the present Division Court system may shortly be given as follows : — In 1792, Courts of Request were established by 32 Geo. III., cap. 6, which gave power to two or more justices of the peace to decide matters of debt up to forty shillings. This act was amend- ed in several particulars in 1816 by 56 Geo III., cap. 5, which also increased the jurisdiction of the courts to £6. By the 8 Wm. IV., cap. 1, the jurisdiction was further increased to £10 ; commissioners were appointed to preside in the courts in the place of justices of the peace; a clerk and bailiff wore appointed f each court, and the commissioners, clerks, and bailiffs were al'i paid by lees. ' In course of time, the large majority of the commissioners proved to be utterly unworthy of the confidence of the govern- ment or of the people, and the evil was so great that a commission was issued in October, 1839, to investigate the subject generally, and, if possible, suggest a better mode of recovering small debts. The statute of 4 & 5 Vic, cap. 53, was the result of this enquiry. The Bill was introduced by the then Attorney-General, Mr. Draper, and was based upon the report of the commissioners, of which he was one. To the sagacity and energy, therefore, of the present gifted Ohio*" Justice of Upper Canada do wo owe the establishment of our present adnirable system of local courts. This Act abolished the old Courts of Request, and in their stead established what wc now call Division Courts. The District Court judges, wore appointed to preside over these courts in each district, and were aulliorised to make rules of K i^^ fl INTKODUCTION. practice in their own courtM. The jurisdiction was further in- creased and various other improvements cficctcd. This Act, however, with others passed from time to time on the subject, was repealed by 18 & 14 Vic, cap. 53, which remodelled the courts, and gave them much more extended juris- diction, following, in a great measure, the provisions of the Im- perial Act of & 10 Vic, cap. 05. The subsequent statutes, 16 Vic, cap. 177, and 18 Vic, cap. 125, gave the courts further powers and remedied some of the defects of the then existing law. All these last mentioned statutes, together with parts of 16 Vic. cap. 180 ; 19 Vic cap. 48 ; 20 Vic, cap. 8 ; 20 Vic, cap. 58; 20 V'c, cap. 59 ; and 22 Vic, cap. 88, (1859) were, with some slight alterations that were necessary to carry out fully the spirit of the various enactments, consolidated by the commissioners appointed for the revision of the statutes. The result of their labors on this subject appears in chapter 19 of the Consolidated Statutes for Upper Canada. v - * ., . Further powers, referred to in the body ol this work, have since been given to the Division Courts, and it would not seera to bo going too far to say, that the law, as it stands, is, with a few im- perfections, as complete a system for the purposes for which it was intended, as could well be devised. > J ; ■ . It was not until 1846 that the system of local courts in England was established in the way in which it now exists. In their general features the English " County Courts" are the same as our Division Courts ; and most of the decisions on English acts are more or less applicable here Many of these cases arc noted in their proper places, whilst all the decisions in our own courts, which bear on the text, have been referred to at greater or less length as their importance deserved. Many of the provisions of the Act have also been examined by experienced County Judges in cases brought before them— of this the editor has also availed himself • . , '..;;; i.i , INTKODUCTION. Til Tho olgect which the editor had in view throughout was not to write a theoretical treatise on Division Courts, but to anno- tate the Division Courts Acts and Rules, by notes which it has been his endeavour to make explanatory of the text, as well as practically useful to professional men and others, and particu- larly to the officers concerned in the administration of the Courts. In addition to this, many of the notes will bo found not only explanatory but critical examinations upon many doubtful points which have not as yet undergone judicial exposition. With the view of making the work as complete and useful as possible, the editor has collected and brought into one book the Division Courts Act, — the Rules and Forms (adding a number of new Forms — over sixty in all), — an Appendix containing all the acts or portions of acts which in any way affect proceedings in Division Courts or the duties of Division Court ofBcers; together With a Table shewing the judicial districts (composed of a county or union of counties) with their sub-divisions into court divisions, with tho names of the County Judges, and the names and post-ofRco address of the various Clerks, which, it is thought, will be of much practical assistance to business men, and may be relied on as correct ; — the whole being supple- mented by a very full index. The editor therefore ventures to think that all the information which could have been given respecting these Courts, (within the scope of the work), has been given ; and when we consider that these courts now embrace a large portion of the whole civil business of the country, numbering about 270, and nearly 600 officers being connected therewith, and that an immense number of suitors resort to them, it can scarcely be doubted that even the collec- tion into one book in an accessible form, of information which could only heretofore be obtained from a variety of sources, at considerable trouble and some expense, will be in itself of infinite u.sc to all concerned. As to that part of the work for which the Tin INTRODUCTION. editor is alone responsible, he loaves it to the indulgent judg- ment of his readers, with the simple remark that he has spared no pains to make it as correct and as complete as possible. During the progress of the work through the press, two im- portant decisions affecting procedure on writs of certiorari have been given, which it will be advisable to note, — Barnes et al. V. Cox, 16 U. 0. C. P. 286, 2 U. 0. L. J. N. S. 67 ; and Gallagher v. Bathie, 2 U. 0. L. J. N. S. 73, 2 L. C. 0. 44. The latter of these particularly refers to Division Courts, and it was there held (in Chambers, by Adam Wilson, J.) that after the hearing of a cause has been proceeded with before the judge, though no jury is sworn, and after a cause has been heard, but judgment postponed to be given at the clerk's office on a future day, it is too late to serve a writ of certiorari. The reader is also referred to a correction of the report of the case of Watt V. Van Every, as given in 23 U. 0. Q. B. 196, which will be found in 2 U. C. L. J., N. S., 80. In conclusion, the editor has to thank many kind firiendr. for valuable information and assistance on various doubtful points — amongst these some of the most experienced County Judges, and especially Judge GowsCn ; the writer having had, in the first place, such advantage as could be gained from a p<;rsonal attendance for years in the well-conducted courts of his cocmty, and the free use of his notes and the benefit of his advice, the value of which in the preparation of a work of this kind cannot be too highly estimated, being founded on a large practical experience of the working of the Division Courts of Upper Canada. h , . , May, 1866. ^ *.v' ! TABLE OF CONTENTS. Division Coarts Act (Con. Stat. U. C. cap. 19) I Rules of Practtoe 117 Forme 148 Acts relating to Replevin in Division Goarti 201 Proceedings on attacliments of debts on Superior Courts judgment*. 215 I Proceedings on awards by Fence viewers 218 Proceedings on appeals, In matters pertaining to Common Seliools 220 I Proceedings on appeals from Assessment Act 222 I Stamp Act, so far as it affects Division Courts 225 [Table of Division dourts in Upper Canada, their several Limits, and the names and P. 0. address «f the County Judges and Division Court Clerks 229 [Index 268 \ » ■-*■ • « . " •. i h '^». ^'■, f-'.vi '.'"■■' >'• iv i •■ ■» ■- r< -.. . i s. . ■. ■ • t- , . ■ ' ■ •_-•... ' - -»■ ». i>- I • ■:. ... *- . - i' •■ .- -' ■ '•'.;- '■■* J - ■ .l::\^ ■ ^ ■■.,^* .''.^:.., , ... * ■ . ■■■'..■ - '-■.■■»■ - ■ ■ ', '.• .;-'. " ., ' . ..-v.^ -t:,-; ,.- ' ♦ ' r ^ ^ 1 , .^ ""yX- ' '^y '•':;?'.;■,-.: .,■' ,•■ :■'".'■ >. - ' »A.V - '?^i''i' •"■?!• ■''• :" '■■'■ : _• ', >'fi". 1 ,. »..-. =■«* >■:. n (',■' ■ '' ;:::.;;:-:^: •' ■ ■' ■ .-■-<- ».. ■ 1 i i • ' , I 1! 1 TABLE OF CASES CITED. Aberystwitli Pier Co, v. Cooper, 86. Anderson v. Grace et al., 96, 98. Aris V. Orchard, 26. Avard et ux. v. Ehodea, 27. Bacon v. Langton, 204. Barnes et al, v. Cox viiL Beard v. Knight, 89, Black V, Wesley, 33. Borthwick v. Walton, 85 Bo wen v. Evans Re., 31. Brasg V. Hopkins, 86. Buck V. Hunter, 97. Burns v. Butterfield, In re,, 20, Caghey v. McCoy, 23, Calverly v. Smith, 73, Cameron v. Thompson, 26, 27- {Campbell v. Davidson, 23, ICaron v. Graham, 106. Clark V, Orr, 106. Cool V, Switzer, 12. Corley v, Roblin, 32, 83. Corrigal v. L. & B. R. Co., 9 [ Culloden v, McDowell, 64. Dale V. Cool, 96, I Davidson v. Reynolds, 74, I Deens v. Lord Brougham, 7- 1 Dennison v, Knox, 32, Dews V, Ryley, 16. Dollery v, Whaley, 96, Dudley v, Lindsey, 139, I Duggan V, Kitson, 09, 73. Etiicry V. Barnet, 23. Farr v. Robing, 09. Ferric v, Cleghorn, 73. Ferris v. Fox, 29. Fiiilayson v. Howard, 87. Foster v. Geddes, 2, Francis v. Brown, 102, 103. Frazer v. Fothergill, 67. Gallagher v, Bathie, viii. Garton v, G. W, R. Co,, 33, Geroux v. Yager, 27, 30, Ginn v, Scott, 24, Grace v. Walsh, 29, Graham v. Smart et al,, 7. Gray v, McCarty, 98, 101, Great Northern Railway Co, r. MosBop, 66. Halford v. Hunt, 27, Harmer v. Cowan, 86. Harmer v, Gouinlock, 86. Harper et al. ex parte, 85. Harper v. Carr, 81. Hart V. Nash, 26. Help V. Lucas, 82. Hernaman v. Smith, 86. Higginbotham v. Moore, 21. Holmes v. Mentze, 42. Hyland v. Warren, 25. Jacomb v. Henry, 69. James v. Kynnier, 47. Jolly V, Baines, 21. Johnson v. Cook, 203. ^ ' Johnson v, Evans, 42. ' Jones V. Cook, 203. Jones V. Harris, 33. Judge of Co. Elgin, In re, 20. Kehoe v. Brown, 71, Kelly V. Gafney, 21. Kemp V. Owen, In re., 35. Kinning. Ex parte, 81, 84, luuiiiug V. Buchanan, 81. Lamb v. Smith, 86. Latliam v. Spedding, 22, 23. Liiwford V' I'arlridge, 67. \n TABLE OF CASES CITED. I Lille V V. Harvey, 23. Lloyd V. Jones, 23. Lockyer v. Jones, 46. Lucas V. Elliott, 24. Macnra v. Morrish, 21, 23. Maney v. IloUinrake, 83. May et al. v. Howland et al. 86. Mcilish V. VanNorraan, 36. Mercer v. Stanberry, 37. Middlefield v. Gould et al., 12. Miller v. Tunis, H. Morris v. Cameron, 26. Munsie v. McKinley, 23,86,87,88. Murray v. McNair, 90. Myers v. Maybee, 204. McArthur v. Cool et al., 10. McDonald v. McDonald et al., 76. Mcintosh y. Yansteinburgh, 96. McKenzie v. Keene, 31. McMnrtry V. Munro, 27. McPhatter et al. v. Leslie et al. 96. McPherson v. Forrester, 67. McWhirter v. Bongard, 88. Olipliant V. Leslie, 97, 98. ' Oswald et al. v. Legh, 140. Overholt y. Paris is Dandas Road Co., 22, 23. Palk V. Eenney, 96. Parks V. Davis, 11, 12. Pearson v. Rattan, 11, 96, 97, 98, Pease v. Howard, 139. Polglass V. Oliver, 46. Pousett and the Court of General Quarter Sessions for the County of Lambton, In re., 7- Pnidhomnie v. Lazure, 33 Purday, Kx parte, 84. Quackenbush v. Snider, 100. Reg. V. Davidson, 76. Reg. V. Doty, 54, 85, 88. Reg. V. Dnke of Richmond, 86. Reg. V. Evans, 91. Reg. V. Harwood, 69. Reg. V. Myott, 91. Reg. V. Richmond, 91. Reg. V. St. Paul's Covent Gari den, 2. Russell v. Williams, 33. Sayers v. Findlay, 98. Siddall v. Gibson, 21, 27, 31. Sloan T. Creasor et al , 11. Smyth V. KichoUs, 33. Soloman v. London C. , II. The Divbion Courts, and the limits and extent Oootinaing thereof existing at the time this act takes effect, ^'****^ sliali continue until altered by law ; all proceedings horetofore duly had shall remain valid, and all suits and proceedings heretofore commenced shall be con- tinued and completed under this act ; and all rules and orders made under the provisions of any former (a) The "Act respecting the tutes affecting Upper Canada Consolidated Statutes for Upper y/aa assented to on the 4th May Cinada," which gives vitality 1859. tu the consolidation of the sta- (ft) See notes to sees. 16, 17. THE DIVISION COURTS ACT. Division Court Act, and in force when this act talces effect, shall continue in force subject to the provi- sions of this act (c). 13, 14 V. c. 53, ss. 1, 2. III. There shall not be less than three nor more Nnmber^of tjjfji, twolvc Divlsion Goiirts in epeh county or union counAus and of counties (d) ; of which there shall be one Divi- cities. gjQ^ Court in each city and county town. 13, 14 V. c. 53, 8. 3. IV. Every court shall have a seal (c), with which Each court evcry proccss of the court shall be sealed or stamped, to hare a ^^^ ^^^-^ geal shall be paid for out of the fee fund. 13, 14 V. c. 53, s. 86. (c) The latter part of this sec- tion, and section 70, were intro- duced by the commissioners and confirmed by the legislature, as being necessary to maintain and protect the general rules and lorms framed and approved pur- suant to 16 Vic. cap. 177, sec. 10, and no further or other rules or forms have been promulgated un- der the provisions of the 62nd and following sections of the present act. Reference must therefore now be made not to the sec tions referred to in the rules and forms, but to the corresponding sections in this consolidated act ; and to facilitate this, the rules which refer to the various sections of this act, and vice versa, are referred to in notes to such sections and rules. (d) See sec. 8 and note thereto. See also the table at the end of tliis work, shewing the various Division Courts as at present es- tablished throughout Upper Can- ada, together with the names and post -office addresses of their res- pect ve clerks. («) In olden times, a seal would have been defined as an impres- sion made on paper or parchment with wax; and in fact in those days that was the only kind of seal known. It has, however, been held that it is now unneces- sary, in order to constitute a valid sealing, that an impression should be made with wax or wafer, but that an impression in ink with a wooden block will suffice. (Beff. V. St. PauVt, Covent Garden, 7 Q. B. 2S2.) It was also considered, in Foater v. Geddea 14 IT. C. Q. B. 289, that an impression on the paper, without any extraneous substance, would be a sufficient sealing. In addition to this, the word " stamped " is used in this section. It would, therefore, seem evident that a stamp or print made with colouring matter, or an impression made on the paper requiring to be sealed, by means of a die or press, without the ad- dition of wax or other matter, would be a sufficient " seal." The judge of the court should make choice of lUid appoint the seal for each court. The seal and process of the court are protected from forgery and abuse by sec. 3. of Con. Stat. U. C. cap. 101, which enacts that " Any person who forges the seal or any process of a Division Court, or serves or enforces any such forged process, knowing the same to be forged ; or who delivers or couses to be delivered to any per- son any paper falsely purportiiij^ to be a copy of any summons or 1 THE DIVISION COURTS ACT. 8 V. The said "Division Courts shall not be held to Not "^artB of constitute courts of record (/). 13, 14 V. o. 53, "^'*- s. 23. VI. A court shall be holden in each division once T«me and in every two months (jf) or oftener, in the discretion Fng^rouru. of the senior or the acting county judge ; and the judge may appoint and from time to time alter (Ji) the times and places (J) within such divisions, when and at irhich such courts shall be holden. 13, 14 V. 0. 53, 8. 3. YII. If the magistrates of any county in Quarter The Gover- Sessions assembled, certify to the Governor that in ^/tXciX any division of the county, from the amount ofregniatethe business, remoteness, or inaccessibility, it is ezpe- cottrta.*^ ° dien't that the court should not be held so often as once in every two months, the Governor in council may order the court to be held at such periods as to him seems meet, and may revoke the order at plea- sure, but a court shall be held in the division at least once in every six months. 13, 14 V. c. 53, s. 109. other process of any such court, knowing the same to be false, or who acts or professes to act under any false colour or pretence of the process of any such court, is guilty of felony." This section is taken almost ver- batim from the English act of 9 <& ip Vic. cap. i96, sec. 6*7. (/) Judgments, therefore, of these courts are not matters of record which constitute the high- est species of evidence. Sec. 42, however, provides a simple means of proving facts therein referred to. The En^ish county courts are made courts of record by statute. {g) Except in cases provided for by the next section. There would therefore be six courts in the year. They need not be held at any re- gular intervals, in fact it would be impossible to do so ; the sound dis- cretion of the judge must decide. (//) See sec. 8 and notes. (i) No provision has been made by statute for providing court room accommodation for these court.s. It was a strange over- sight on the part of the legislature, and has led to much injustice and mischief. Courts have occasionally to be held in inconvenient and out of the wav places, and even in tav- erns, to the great discredit of jus- tice. Clerks are often put to much trouble and expense in secur- ing a room suitable for the pur- pose, and the '*casional removal of a court-room from one building, and perhaps from one village to another, causes confusion and an- noyance to all concerned. Since the passing of 2*7, 28 Vic. cap. 27, it has become of the greatest im- portance that the place of holding the courts should not be moved from place to place ; for by that act such place of sitting regulates, in certain cases, the venue of a suit. (See section ^\, et scq.") 4 THE DIVISION COURTS ACT. Quarter VIII. The justices of the peace in each county StoJ^nur.'^ in General Quarter Sessions assembled, may, subject bersDd to the restrictions in this act contained, appoint, dtvUonf and from time to time alter the number, limits and extent of every division, (J) and shall number tho divisions, beginning at number one ; but a less num- ber of justices shall not alter or rescind any resolution or order made by a greater number at any previous session (A;). 13, 14 V. o. 53, s. 4. (j) By sec. 3 there cannot be less than three nor more than twelve in each county. There will be found on pages 112 and 146 of the U. C. Lau Journal, vol. 7, some excellent observations as to how the discretionary power of the magistrates in Quarter Ses- sions should be used. It there states that the population and ex- tent of the intended divisions should be a leading guide. That they should, if possible, be of such a size that suitors could go to and return from them in one day, and should be of as uniform a size as circumstances permit. No separ- ate division should be formed unless the probable amount of business would give a reasonable remuneration to the officers of the court, nor should divisions be multiplied without an evident necessity. That if possible each division should include some town, village or place of business resort, and the divisions should be fixed with precision, and follow the established territorial division of the county into townships and concessions. The case of a separ- ation of united counties, where a division consists of a part of each, is provided for by sec. 18. It would be well, however, for mag- istrates to keep that section also in view in appointing the divisions. (k) See note to sec. 15. A new mode of establishing additional courts has been intro- duced by the late Act of 29 Vic, which reads as follows : " Notwithstanding anything in the said Act respecting the Divi- sion Courts, it snail and may be lawful for any judge of a County Court, in his discretion, upon the petition of the municipal corpora- tion of any township or united townships in which no Division Court has already been establish- ed, praying that a Division Court may be established in and for such township or united townships, to establish and hold a Division Court therein, and the court so estab- lished shall be numbered and called the — — — Division Court of the county or united counties in which such township or united townships shall be situated, taking the number next after the highest number of the courts then existing in such county or united counties : and the courts so established shall have the same jurisdiction as Di- vision Courts established under the said act respecting Division Courts, and all and singular the provisions of the said act, not inconsistent with this act, shall apply to all courts established under this Act ; provided always, that no business shall be transact- ed in any such court until after the establishment thereof shall have been certified by the county judge to tho Governor in council. THE DIVISION COURTS ACT. ■^ IX. The court in eaoh division shall be called DniKnaUoii " the first Division Court in the county of ," *^' «'"'*• (or, as the case may be), 13, 14 V. o. 68, s. 6. X. When a junior county separates firom a senior omepan- county or union of counties, (T) the Division Courts g^^JJ^jJ' of the united counties which were before the 8epara-ooaiit7,eoiirt tion wholly within (m) the territorial limits of the;;;^{|i'i°'' junior county, shall continue Division Courts of thegjwj^^fcy junior county, and all proceedings and judgments shall be had therein, and shall continue proceedings and judgments of the said Division Courts respec- tively ; and all such Division Courts shall be known as Divbion Courts of such junior county by the same numbers respectively, as they were before, until the justices of the peace of the junior county in general Quarter Sessions assembled, appoint the number, limits and extent of the divisions for Divi- sion Courts within the limits of such junior county, as provided in the eighth section of this Act. 16 V. c. 177, s. 16. XI. Whenever the justices of the peace of anyOnaitoration county, in general Quarter Sessions assembled, alter jadge to*^ the number, limits or extent of the Division Courts ^^''J^^, within such county, all proceedings and judgments prooeedings had in any Division Court before the day when such ^^noed. alteration takes effect, shall be continued in such Division Court of the county as the judge directs ; and shall be considered proceedings and judgments of such court. 16 V. c. 177, s. 17. XII. In case a junior county be separated from acierksand union of counties, or the proceedings of any of the^^^*^ Division Courts of a senior county be transferred to p*i^' *<> any other Division Court within the county upon theHjad^^"' order of the judge, the clerks or other officers of ^''^^'' together with the petition praying for the same, and the passing of an order by the Governor in council approving thereof." (/) " In every union of counties the county in which the county court house and gaol are situate, shall be the senior county, and the other county or counties of the union shall be the junior county or counties thereof.'' (Con. Stat. U. C. cap. 64, sec. 36.) (m) See sec. 13. 6 THE DIVISION C0DBT8 ACT. Pffi 'I such Division Courts who hold any writs or docu- ments appertaining to any such courts or the business thereof, shall deliver up the same to such persons as the judge directs, and any person refusing to deliver up the same shall be liable to be proceeded against in the same manner aa persons wrongfully holding papers and documents under the provisions of the forty-eighth aeotion of this Act. 16 Y. c. 177, 8.18. J' fR II, After wpara* tlonofjunlor flrom lenlor coanty, proceeding! inoertaia cases to be continued in senior oounty. Quarter Sessions of senior ooaa- ty to regu- late divisiona of senior county after separation. Clerk of the peace to record time and place XIII. If, after the 'separation of a junior county from a union of counties, the territorial limits of any of the Division Courts of the former union are partly within the junior and partlv within the senior county, all proceedings commenced in such Division Courts of the former anion shall be continued to completion in the court where the proceedings were originally commenced, or in such other Division Court of the senior county as the judge thereof directs ; and the clerks and other officers of the said Division Courts of such senior county in possession of any Writs or documents appertaining to any such court or to the business thereof, shall deliver over the same to the clerk of such Division Court of such county as the judge thereof directs. 16 V. o. 177, s. 19. * XIV. At the first sittings of the General Quarter Sessions of the Peace for any senior county, after the issue of any proclamation for separating a junior from a senior county, the justices there present shall appoint the number, (not less than three, nor more than twelve,) the limits and extent of the several divisions within such county, and the time when such change of divisions shall take effect; but if the justices do not make such change at the first sittings they may do so at any other sittings of such court, and a less number of justices shall not rescind or alter any resolution or order made by a greater num- ber under the provisions of this section. 16 V. c. 177, s 20. XV. The clerk of the peace, in a book to be by him kept, shall record the divisions declared and appointed, and the time and places of holding the 4 THE DIVISION COURT ACT. courts, and tho alterations from time to timo made f >r hridins therein, and he shall forthwith transmit to the """"*•• Governor a copy of tho record (n). 13, 14 V. c. 53, s. 5. . 1 .. THB JUDOS, (o) , I XVI. The county court judge (p) shall preside county court over the Division Courts in their respective counties. »MidV" 13, 14 V. c. 53, s. 7. )IH- .]•.--• ^ ■\i (n) S«e also Con. Stat U. 0. c. 120, aa to the duties and emolu- ments of the clerk of the peace with respect to these returns. It has been decided that under the above section and the act re- ferred to, the clerk of the peace is required to record and notify to the government and to the clerks of each Division Court only the acts of the Quarter Sestiona with with regard to the limits of differ- ent diviedons, not the orders of the judge as to the times and places of holding the courts; (/» the matter of Pouasett and tlie Court of General Quarter Sessions for the County of Lambton, 22 U. C. Q. B. 412.) As under sees. 8, 10 and 14, a less number of magistrates cannot rescind or alter any order as to the appointment of divisions made by a greater number at a previous session, it will be also necessary for the clerk of the peace to keep a record of the magistrates present when such order was made. (o) The various duties of the judge with respect to Division Courts will hereafter appear throughout the work. As to his liabUities, it may be stated as a general rule, that he incurs no liability for giving a wrong judg- ment or making a mistake in law, or for being guilty of any mere irregularity, provided he acts with- in his jurisdiction {^Deem v. Lord Sroujham, 1 In. A Rol. 809). Nor even when acting without it, if the evidence given before him i'ustifies him in assuming that he tad jurisdiction. And the objec- tion to his jurisdiction should be taken at the trial (Oraftam v. Smart et al., 18 U. C. Q. B. 482). But there is a difference, as to liis liability, between his judicial and ministerial duties (Parks v. Davis, 10 U. C. C. P. 229.) See also notes to sec. 64. ' (p) The appointment of and other provisions respecting couuty judges are regulated by Con. Stat. U. C. cap. IB, sees. 2 to 12, inclu- sive. Section 6 provides, that " In case of the appointment of a jun- ior judge for any county, such junior judge may preside over all or any of the Division Courts Within the county, and shall, as regards any such Division Courts, have the same duties, powers and authorities as the judge," &c. But " the appointment of a junior judge shall not prevent or excuse the judge of the county court from presiding at any of the Division Courts within his county when the public interests require it," (s. 7.) Section 383 of the Municipal Institutions Act (Con. Stat. U. C. cap. 64), empowers the Governor, by letters patent, to appoint the recorder of a city to hold the Division Court of tho county \ 8 TIIB DIVISION COURTS ACTT. /■ Who to XVII. la ease of the illneai or nnaToidablo ab-| clSSoniill^sence of the county judge, the county judge of the or abMiMM of court of any other county may hold the court, or the '""*■•• first mentioned judge may appoint (q) some berris- 1 ter of the har of Upper Canada to act as his depu- 1 ty (r), and the person so appointed shall, as judge of j the Division Court, daring the time of his appoint* | ment, hate all the powers and privileges, and be i subject to all the duties vested in or imposed by lawj on the judge by whom he has been appointed. 13, ! UY. 0. 6d,s. 8. ' eovenorto XYIII. The oountv jadge or the barrister so ap.| JjJJjJjJ^ pointed deputy shall forthwith send to the Oovernor taigpatj. notice of suon appointment, specifying the name, residence and profession of svcn deputy judge, and] the cause of his appointment 13, 14 V . e. 58, s. 8. XIX. No such appointment («) shall be continued for more than one month without a renewal of the! like notice, and in case the Governor disapproves ofl such appointment, he may annul the same. 18, 14 1 Y. 0. 58^ 8. 8, Appoiiil. mratthoir long to oouUbim. which includes the city. In case of the illness or absence of the Recorder the coanty judge may officiate in his stead, or the Re^ corder may appoint a barrister for that purpose (sec. 886). iq) The appointment it ts said may be made by parol, hut the hotter opinion seems to he thi^t it should be made in writii^. (^ Co. Rep. 4.) (r) Con. Stat. U. C. cap. IQ, sec. 8, provides for the appointment of deputy judges who shall ||pld office during pleature, and ijrho shall, in case of the death, illness, or una- voidable absence, or the absence on leave of the judge, perform all the duties of and incident to the office of judge of the County and Division Courts, and all acts required to be done by such judge, aa effectually as a junior j ju^re. Thus the senior judge at the j Comity Court of the partleularl county, or the junior or deputy | judge thereof, the judge's deputy i or the judge of the court of another J county (as mentioned in above' section), are each allowed to act \ and are included in the interpre- tati<» clause (sec. 1). The distinction between them is > this : the senior and iunior judge ] of the county are cktbed with the \ absolute right to hold the courts \ not dependent upon any contin-! gency, whereas the deputy judge, | the judge's deputy, and the judge | of another county, act only on ' certain contingenciest, («) That is, an (^pmntmintt made 1 by the county judge iitdcr fcc. llf THE DIVISION 0OUBT8 ACT. 9 XX. In cane the jadf;;e or the acting jndge (Oci«rkaor fkom illness or any oasnalty, does not arrive in time, ei«rk«^niay or is not able to open the court on the day appointed "'^r? for that purpose, the clerk or deputy clerk of thej^g*doM court, shall, after eight o'clock in the afternoon, by JH'tjl^'/* proclamation adjourn the court to an earlier hour (ii) on the following day, and so fVom day to day adjourn- ing over any Sunday or legal holiday (v\ until the judge or acting judge arrives to open tne court, or until he receives other direction from the judge or acting judge. 18, 14 Y. o. 58, s. 8. THE OLIRKS AND BAILIIFS, AC. (u>) ' XXI. For every Division Court there shall bo a Erory court clerk and one or more bailiffs (x), who shall be Bri- |^>;*^„f^;;*' tish subjects. 13, 14 Y. o. 68, s. 9. stually as a junior j (<) See notes to sec. IV. (u) That is to some hour before eight o'clock in the evening, usn- allv till noon of the following day. All persons having business at the courts are bound to remain up to eight o'clock in the evening of the day appointed for holding the court, and to appear at the hour to which it may be adjourned the following day. (v)By the Interpretation Act (Con. Stat. Can. cap. 6), the word "holiday" shall include Sunday, New Years' Day, the Epiphany, the Annunciation, Good Friday, the Ascension, Cormts Chrinti, St. Pe- ter and St. Paul's Day, All Saints Day, and Christmas Day, and any day appointed by proclamation for a general ftist or tniinksgiving. It Is to be remarked, that the Queen's Birthday so genprallv kept as a holiday, and made such in certain cases under other acts, is not a "holiday" within the meaning of this section. (to) The common law requires persons holding any office to be (amongst other things) of sound mind, possessing sufficient skill and ability to perform the duties of the office, and not holding any office incompatible with such duties. The express disqualifications for office are, not being a British subject ; and, as regards a clerk, being a practising barrister or solicitor, as mentioned in the next section. The power of appointing to these offices was from the first vested in the judges, and it may not be out of place nere to say, that the result has been on the whole most satisfactory to all concerned. (x) If two bailiffs are appointed to a court they do not constitute one officer. They may therefore act independently of each other, and each may perform all legal acts required of hira, by himself and in his own naoie. {Corriqal V. L. ccomes resident out of Upper Canada, or insolvent !?!?.?L-. the county judge shall notify the clerk or bailiff W whom such person became surety, of such deatlii departure or insolvency, and such clerk or bailil shall, within one month after being so notified, gin furnished. suggestion is, in some respects, a good one, that instead of tlie judge being compelled to under- take the responsible and trouble- soh^e duty of looking after these securities, the officers of his courts should be required to furnish the guarantee of some recognized "guarantee company" authorized to grant indisputable policies. The principal objection to this would be the expense that it would entail on clerks already sufficiently taxed. As to the particulars of claim under this section and the form to be used, see rule 7 and form 5. (d) No duty is impo'^L-."' on the judge with regard tO this filing ; and he is not responsible if it is not filed. {Parks v. Davit[ ante.) The non-filing of the coTenan| will not relieve the sureties of i officer from their responsibility t such sureties. Jb. (e) There is nothing in the si tnte or in the form of the covenaii| which confines the benefit of it tol suitors only, ( Cod v. Switxer et dl 19 U. C. Q. B. 199,) and unde| this section, taken in connectioii| with sees. 61 to 63, the suretie of a clerk are liable on this cove'i nant to the bailiff for fees on thl service f summonses, executionsl and warrants received by 8ucli| clerk for the bailiff and not paii over. {lb. ; Middlefidd v. Goum et al. 10 U. C. C. P. 9.) {Parks V. Davii\ TUE DIVISION COURTS ACT. 13 lanew tbe like secnrity, and in the same manner as thereinbefore provided, or forfeit his office of clerk or Ibailiff. 13, 14 V. o. 53, a. 22, and Sch. C. XXX. Nothing hereinbefore contained shall dis- secnrities I charge or exonerate any of the parties to such forme' ri^;S"toron. Icovenant from their liability on account of any mat- tinaa in Iter done or omitted before the renewal of the cove-^"^ Inant as aforesaid. 13, 14 V. c. 53, s. 22. XXXI. The bonds and covenants given by clerks Exinting land bailiffs, before the passing of this act, shall ^^j^o^ IcoDtinue in force and have the same effect as if given under this act. 13, 14 V. c. 53, s, 22 ; 16 V. o. [177, s. 12. XXXII. The clerks and bailiffs shall be paid by cierks and Ifees, as by this Mt alloweJ (/). 13, 14 V. c. 53, Sd't/ftil Is. 12. clerks' duties, (g) XXXIII. The clerk may (^with the approval ofwhencierk the judge), from time time, when prevented from 5^^|*p"'°* acting, by illness or other unavoidable accident, ap- I point a deputy (h) to act for him, with all the powers (/) See sec. 49 and table of fees I at the end of this act. In the original act as introdac- I cd by the present Chief Justice of Upper Canada the clerks were remunerated by salary on a grad- uated scale, and there is now a growing feeling that the change from salary to fees was not a move [in the right direction. The fee collector of all grades has a direct I interest in promoting litigation, and in matters connected with I Division Courts, the clerk, if a dis- honest man, has peculiar facilities I in this way. It is believed that the great body of clerks would I willingly be relieved of the odium of the fee system, and accept sala- ries on a fair scale instead. (g) Besides the duties mentioned in this act and the rules, the clerk has other duties assigned to him by statute, and hereafter referred to. 1. In actions of replevin under 23 Vic. cap. 46. 2. Duties with respect to the debt attachment clauses of the Common Law Procedure Act. 3. Duties with respect to issu- ing execution on awards made by Fence Viewers under Con. Stat. U. C. cap. 57. 4. Duties under the assessment law (Con. Stat. U. C. cap. 55, sec. 63, ^c), on eppeal from the Court of Revision. 6. Duties respecting appeals from Division Courts in matters pertaining to common schools. (Con. Stat. U. C. cap. 64, sec. 108, Ac.) {h) For a form of this appoint- ment see form 68 (b). The deputy clerk, being an officer !'i''i in] «■• • til f. ;m it *'■■■ 111 I) ■1 u THE DIVISION C0URT8 ACT. and privileges, and subject to like duties, and may remove such deputy at his pleasure, and the clerk and his sureties shall be jointly and severally res-f ponsible for all the acts and omissions of the deputy, 13,14 V. 0.53, 8. 10. . ;,, .nr. : , cierktoiwne XXXIV. The clerk shall issue all summonses (i), I and furnish ^Mch summonses shall be by him filled up and shall I daSlSi'r'be without blanks either in date or otherwise, at the aeiroo. time of delivery for service; he shall also furnislij ' copies of the same with the notice thereon, accord- ing to the form prescribed by any rule respecting the practice and proceedings of the Division Courts (j). 13, 14 V. c. 53, ss 13, 40. Parties to XXXV. The plaintiff or defendant respectiveljl SaiStoSeSliall furnish the clerk with the particulars of the ciork. plaintiff's claim or demand {k), or of the defendant's] set-off (0 (as the case may 6e), and the clerk shall! annes the plaintiff's particulars to the summons, and! he shall furnish copies thereof, or of the defendant's set-off to the proper person to serve the same. 13,| 14 V. c. 53, ss. 13, 40. cierks^to^ XXXVI. The clerk shall also issue all warrants,! tiouR, tax precepts and writs of execution filled up and withouti ^gp^*„^j blanks, — he shall tax costs (m), subject to the revl-f of fees, Ac. sion of the judge, — register all orders and judgments! of the court, and keep an account of all court fees! and fines payable or paid into court, and of all suitor'sl moneys paid into and out of court, and shall enteil an account of all such fees, fines and moneys in a| recognized by the statute, should sign all necessary documents as such. The act makes no provision for the judge appointing a deputy clerk ; in case, therefore, of the inability of the clerk to make the appointment, it would be necessa- ry for the judge to appoint a new clerk to perform the duties of the office. (i) See rules 14 and 18, and form 6. {j) See form 6. {k) See rules 9, 14, 15, 18, andj forms 3 and 4, and notes. {J) See sec. 93. (m) The ordinary costs that a | clerk is required to tax are : the officers fees (clerks and bailiffs), fees to the fee fund and witness fees provided for by rule 48. It may also be necessary for him to fix the amount of costs to be paid by each party according to any spec- ial apportionment of costs by the] judge under sec. 114. THE DIVISION COURTS ACT. 15 book to be kept by him for that purpose (n), "which book shall be open to all persons desirous of search- ing the same, and shall at all times be accessible to the judge, who shall examine the same quarterly or oftener, and compare the accounts hereinafter men- tioned with such book, and shall certify on each such account that he has examined the same, and believes it to be correct, or if he does not believe it to be correct, he shall state his objections thereto, and the clerk shall thereupon forward the account with such certificate to the county attorney. 13, 14 Y. c. 53, ss. 13, 40. XXXVII. The clerk, at the periods from time to ciorks to time appointed by the governor, shall submit his said accounts to accounts to be audited or settled by the county attor- couo^y ney. 13, 14 V. c 53, s. 13. •*''"^^- XXXVIII. The clerk of every Division Court ciertato^ shall, from time to time, as often as required so to county attor- do by the county attorney of hi'i county, and at least "^y^*^^"^^^*"* once in every three months, iieliver to him, verified j-oos. by the affidavit of such clerk, sworn before the judge or a justice of the peace of the county, a full account in writing of the fees received in his court ; and a like account of all fines levied by the court, account- ing for and deducting the reasonable expenses of levying the same, and any allowance which the judge may make out of any such fine, in pursuance of the power hereinafter given. 13, 14 V. c. 53, s. 15; 20 V. 0. 59, s. 13. See s. 99, post. XXXIX. The fees from time to time received by Fee fund such clerks respectively, and payable to the general^^jYo^****" fee fund, shall be by them paid over from time to county time to the county attorney (o), and at least once in*"°'"°^y- (n) Besides the "Fee Fund Book," the clerk must keep the "Procedure Book" and "Cash Book " (rule 4) ; a book for enter- ing services, Ac, from foreign divisions (sec. 78) ; and tho tran- script of judgment book (sec. 143). (o) In case of tho resignation, removal from office, or c^eath of the clerk, the county attorney for the time being may sue and re- cover from such clerk, or from his executors and administrators, in case of his death, and from his sureties, all sums of money which may remain in tho clerks hands at the time of such resignation, IH ?>« ft if:-''' ii' i ■ ^M 5 i : >-b| A I'i^': I' i M. * • ■■ 3^ Clerk of DI> TMon Court to furnish Judge with a Yerlfled •oeount of moneys paid in and out ofooort. 10 THE DIVISION COURTS ACT. every three months, and shall form part of a fund, to be called the General Fee Fund, and shall be ap- plied towards the payment of the salaries of the judges of such courts. 13, 14 V. c. 53, s. 15 j 20 V. c. 59, s. 13. XL. The clerk of each Division Court, when re- quired by the judge, shall, from time to time, furnish him with a like account, verified by the oath of the clerk, sworn before the judge or a justice of the peace, of the moneys received into and paid out of the court, by any suitors or other parties under any orders, decrees or process of the court, and of the balance in court, belonging to any such suitors or parties. 13, 14 V. o. 53, s. 15. XLI. The clerk of every Division Court shall, half yearly at least, furnish to the judge of his court a detailed statement of all fees and emoluments of his court (p), which statement shall be sworn to before such judge, and it shall be the duty of such judge to require such statement and to file the same with the county rttorney. 13, 14 V. c. 53, s. 110. | Clerks to^^^ XLII. The clcrk shall cause a note of all sum- of^rits and monscs, ordcrs, judgments, executions and returns I judgment . jijejetQ^ jq |,e from time to time fairly entered in a book to be kept in his office; and shall sign his name | on every page of such book ; and such signed entries, or a copy thereof certified as a true copy by the clerk, shall be admitted in all courts and places as I evidence of such entries, and of the proceedings referred to thereby, without any further proof ($)• 13, 14 V. c. 53, s. 49. Division Court clerks to furnish the judge with semi- annual accounts of fees and emoluments, removal or death. (Cou. Stat. XJ. C. cap. 20, sec. 10.) These fees to the fee fund are now payable in stamps under 27 & 28 Vic. cap. 6, hereafter referred to. The returns to county attor- neys, are, as to fee fund moneys, virtually done away with . (/>) See rule 6, and form 66. (q) It has been held under the English act of 9 <& 10 Vie. cap. 96> sec. Ill, which is similar to the above enactment, that this entry, or a copy of it, is conclusive evi- dence of the proceeding to which it relates, and cannot be contra- dicted by a note or memorandum of the judge. {Dews v. JByfey, 20 L. J., C. P. 264; 11 0. B. 434.) TKE DIVISION COURTS ACT. 17 XLIII. The clerk shall, annually, in the month of ci«rk annn- January, make out a correct list of all sums of money ultofntit^ belonging to suitors in the court, which have been <>'•' money paid into court and which have remained unclaimed ° ^"^ fur six years before the last day of the month of December then last ^last, specifying the names of the parties for whom or on whose account the same were so paid (r). 16 V. c. 177, s. 13. XLIV. A copy of such list shall be put up andcopyofiint remain at all times in the clerk's office and during in cou'lt "'' court hours, in some conspicuous part of the court JCf^ce^ *° house, or place where the court is held. 16 Y. o. 177, 8. 13. DISPOSAL OP MONEYS PAID INTO COURT. XLV. All sums of money which have been paid Unclaimed into court to the use of any suitor thereof, and which olrried'to have remained unclaimed for the period of six years ^^^ "^ ^'^ iiftcr the same were paid into CQurt, or to the oncers thereof, and all sums of money when this act takes I effect or afterwards in the hands of the clerk or bailiff, paid into court, or to the officers thereof, to the use of any siiitor shall, if unclaimed for the iperiod of six years after the same were so pai^, be lappHcable as part uf the General Fee Fund of the [Division Courts, and be carried to the account of such i\ind and be paid over by the clerk or officer lolding the same to the county attorney of his Qounty, and no person shall be entitled to claim any Rum which has remained unclaimed for six years. 16 V. c. 177, s. 13. XLVI. No time durins which the person entitled CJaima of k 1 • , • e ^ J- . perhons un- p claim such sum was an infant or jtme covert, or derdisHbiuty jf unsound mind, or out of the Province, shall hOp^j^^^^ ^aken into account in estimating the six years. 16 '. c. 177, s. 13, DISPOSAL OF pOOI^S AND PAPERS WHEN CLERK CHANGED. XLVII. All accounts, moneys, books, papers, and Upon rerfg- [)ther matters in the possession of the clerk by virtue "movni or (r) See rule G and form 0*7. \- 'i-t: 11 \\]% it '■'■ M: ^i 18 THE DIVISION COUETS ACT. dMthof clerk, enanty attorney to bMom* po aw w e d of papera. Feiulty on person wrongfolly hoidtog mo- neyi, books orpepers. of or appertaining to his oflSoe, shall, upon his rcsij^. n&tion, removal or death, immediately become the I property of the county attorney of the county in which the division is situate, who shall hold the same for the benefit of the public until the appointment ofl another clerk, to whom he shall deliver oyer the sameJ but not until such clerk and his sureties have exe- cuted and filed the covenant hereinbefore mentioned! 13, 14 V. c. 63, s. 13. XLVIII. Any person wrongfully holding or getl ting possession of such accounts, moneys, books,! Sapers and matters aforesaid, or any of them, shalll e guilty of a misdemeanor, and upon the declarationl in writing of the judge presiding over the DivisioBj Court for the time being, that a person has obtaiDedl or holds such wrongful possession thereof, and uponl the order of a judge of either of Her Majesty's Suf perior Courts of Law, founded thereon, such personl shall be arrested by the sheriff of any county inl which he is found, and shall by such sheriff be conl mitted to the common gaol of his county, there to[ remain without.bail until one of such Superior Courts or a judge thereof be satisfied that such person had not and never had nor held any such matters on moneys, or that he has fully accounted for or deliver] ed up the same to such county attorney, or until hcf be otherwise discharged by due course of law. ISJ 14 V. c, 53, s. 13. FEES OF CLERKS AND BAILIFFS. XLIX. The fees of the clerks and bailTiTa of tlifl courts shall be those set down in the table of fees, ]]J and a table of such fees shall be hung up in soma conspicuous place in the offices of the several clerbl 13, 14 V. c. 53, s. 14 J 18 V. c. 125, s. 5, ajid Schl Feeitobe L. The fccs upon every proceeding shall, on oj plaintiffor bcforc such proceeding, be paid in the first instanel fl*^1^*ta *° ^y *^® plaintiff, or other party at whose instance tbi ns noe ^^^^ i^\^Qs placc («). 13, 14 V. c. 53, s. 30 J 16 YJ c. 177, s. 3. Feesofclerka andbisillffii. ^ («) This and the following sec- tion are designed for the protec- tion of the clerk. Of course a clerk may if he chooses to run the riskJ THE DIVISION COUBT8 ACT. 19 LI. If the fees ave not paid in the first instance iiow enforc- by the plaintiff or party on whose behalf such .pro- ®'*''""^ •"•'** ceeding is to be had, the payment thereof may by order of the judge(^) be enforced by execution in like manner as a judgment of the court, by such ways and means as any debt or damages ordered to be paid by the court can be recovered. 16 V. c. 177, s. 3. LIL At the time of the issue of the execution, BaiiKTifrM the bailiff's fees thereon shall be paid to the clerk, •j'eJ^ C^*" and shall by him be paid over to the bailiff upon execution the return of the execution («), and not before, but if **""** the bailiff should not become entitled to any part, or should be entitled to a part only of such fees, the whole or surplus shall, on demand, be by the clerk repaid to the plaintiff or party from whom the fees were received. 13, 14 V. c. 53, s. 14. LIII. If the bailiff neglects to return any process Baimr to or execution within the time required by law, he'^Jj^),*'*^/^ shall for each such neglect forfeit his fees thereon, return writ, and all fees so forfeited shall be held to have been received by the clerk, who shall keep a special account thereof, and account for and pay over the And racb same to the county attorney of the county, to form^^^^*** part of the General Fee Fund (v). 13, 14 V. c. 5S, s. 14. I r '{.m •( ■ ( I commence and carry on a suit without receiving a deposit of the fees, but he cannot be compelled to do so. If he does, and there are many cases in which it would be a h'krdslup on suitors to refuse, the cU rk should not suffer for the indulgence, and the next section is designed to prevent, if possible, any loss to him thereby. It is common in some of the large divisions, for the sake of convenience, to fix a scale of de- posits, proportioned to the amount of the claim to be sued, which will be sufficient, in the majority of oases, to cover the costs of the suit, up to the time of judgment, adding something additional for any special circumstance which would increase the costs. (t) But probably the judge would not grant this order without a summons to shew cause. («) We have already seen (note to sec. 27) that the bailiff can have the benefit of the covenant of the clerk and his sureties to recover the fees here alluded to. (w) As these fees go to the Fee Fund, no discretion can be used by the clerk as to their forfeiture. Such fees as the bailiff would have been entitled to in case he had done his duty as by law required, miust, in case of his default, be paid to the Fee Fund by means of stamps. i ■* J -fio THE DIVISION 00UBT8 ACT. JURISDICTION, (to) LIV. The Division Courts shall not have jurisdic- Juru'Sction **^" ^" ^^^ °^ ^^^ followiug cascs : Cnmsln wliich eourt 1. (w) It may be neeessary cither to compel Judges of inferior courts to perform a duty imposed upon them by statute, and tliereby nialie them act up to their juris- diction, or, on the other hand, it may he necessary to prevent them from proceeding in a cause which is beyond their jurisdiction. In tlie former case the remedy would bo by writ of mandamus, and in tlio latter by writ of prohibition. A mandamus is a high preroga- tive writ issuing from one of the Superior Courts directed to any person, corporation, or inferior court of judicature within the do- minions of the Crown, requiring such persons, i^. V THE DIVISION COURTS ACT. 3. On notes of hand given wholly or partly in coniiideratiou thereof, {y) 4. Actions of ejectment or actions in which the right or title to any corporeal or incorporeal heredita- ments (sf) ; or any toll, custom or franchise, comes in question ; or (y) "The court has no jurisdlc- ition to try on action upon a note of hand, whether brought by the payee or any other jjcrson, the consideration, or any »art of the consideration of wliich was any gambling debt, or for spirituoua or malt liquors, or otlier like liquors drunk in a tavern or ale- house." (Uule 69.) From which it would appear that it is not intended that the general rule of law — that an ille- gality in the consideration of a note does not affect the rights of a bona Jtde holder for value without notice— should apply, so as to put «nch a holder in a different posi- tion from .the payee as to liis right to sue in a Division Court. {z) An hereditament is an estate, of whatsoever duration or quality, which is carved out of the inheri- tance. It is a more comprehen- sive expression than either lands or tenements, and includes both of these as well as whatsoever may be inhea-ited. (2 Black. 17.) A corporeal hereditament is some- thing substantial and permanent, and consists of what is generally known as land, including ouildings thereon. An incorporeal heredit- ament is a right issuing out of a thing corporate, whether real or personal, or concerning, or annex- ed, or exercisable witlun the same, (Co. Litt. 19, 20,) and includes rents, ^ annuities, commons, ways, dignities, offices and fran'jhises. The words nsed in the act of 1860, (13 ") '« .t . f. 'I"'^ '.::;:l^: ■^<-,if \ 24 I In wbioh the eourt bH JurladlctI THE I)IVI8I0N C0UUT8 ACT. ho objects thereto (t> 13, 14 V. o. 53, b. 23 ; 10 V. 0.177,8. 1 ; 16V.0. 180,8. 9. LV. The judge of every Division Court may hold plea of, and may hear and determine in a summary fray, for or against persons, bodies corporate or otherwise : 1. All personal actions (c) where the debt or dam- ages claimed do not exceed forty dollars (d) ; and (6) Sec. 12. of Consol. Stat. U. C. cnp. 126, points out tlio time and manner in which tlie objection is to bo made, viz., " if within six days after being seived with a notice of any such action, such justice, or his attorney or aeent, gives a written notice to the plain- tiff in the intended action, tliat he objects to being sued in such [County or] Division Court for such cause of action, no proceed- ings shall afterwards be had in any such court in an such action," dec. (c) " Personal actions are those whereby a man either claims tlie specific recovery of a debt or per- sonal cliattel, or satisfaction in damages for some injury done to his person or property. (Ins. 4, 6, 16.) The forms of personal actions in use are debt, covenant, and as- iumpftit, founded on contract ; and detinue, trover, treapasn, trespass an the case, and replevin founded on tort, t. «., such wrongs as do not fall within breaches of contract. Debt lies for the recovery of a sura of money certain. Covenant, when redress in dam- ages is sought for the breach of an agreement oy deed. Assumpsit is the remedy assign- ed by low for the breach of a con- tract not under seal. Detinue lies when the object is to recover a chattel unlawfully detained. It seems to be the bet- ter (Jjiinion tliat an action of this nature may be brought in a Divi- sion Court, (See Wickam v. Lee, 12 Q. B. 021 ; 1 Cox. & Mac. 110; Taylor v. Addtfman, 22 L. J., C. P. 94 ; LucoM V. EUioU, 9 U. C. L. J. 1470 Trover lies to recover damages for the wrongful conversion of plaintiff's goods. In Oinn v. Scott, 11 U. C. Q.B. 642, the court inclined to the opinion that trover for a deed would not lie in a Division Court. But would it not lie for the paper or parchment upon which the deed was written ? Trespan lies when ihe plaintiff claims damages for an injury ac- companied with actual or implied force. It may be either trespass vi et armis, with force and arms, as a battery or imprisonment ; quare claumm /regit, breaking into an enclosed place ; or, de bonis aspor- tatis, seizing and taking away goods. Trespass on the ease lies in every case of damage to person or pro- perty not included in trespass. Replevin is the re-delivery by the sheriff or bailiff, as the case may be, to the owner, of goods un- lawfully detained, or unlawfully taken and detained, or distrained. Jurisdiction was not giyen to Di- vision Courts in replevin until the recent statute 23 Vic. cap. 45. The act is given in full hereafter. {d) A diversity exists ij> the ruling of the different county / THE DIVISION COURTS ACT. 95 2. AH claims and demands of debt, account or breach of contract, or covenant, or money demand, whether payable in money or otherwise, where the i: [idgea, M to tho intcrprctatioQ to le placed upon this section ; somo holding that it is only actions brought purely and simply to recover Hscertain damages on matters of opinion, whether for tort or breach vt contract, which are restricted to $40. (See Hyland V. Warren, 6 U. C. L. J. 116.) Others that no action for mere damages can be brought for more than tiiat amount, and others again that the first sub-section applies solely for all practical purposes to actions for torts. It will be seen th4t under 1 8 A \i Vic. cap. 68, sec. 23, the Divi- sion Courts had jurisdiction over all claims and demands whatso- ever of debt, account, breach of contract, covenant, or money de- mand up to £2d, " and in all torts to personal chattels to and includ- iD(r tho amount of ten pounds." Itt Vic. cap. 177, see. 1, recites tho expediency of extending the pro- visions 01 the former act to all personal actions (with certain ex- ceptions) not exceeding £10, and gives jurisdiction in " all personal actions when the debt or damages claimed is not more than £10." Sec. 55 is compiled from the sec- tions above referred to. It is difficult to say what class of actions besides actions for torts to personal property, or personal wrongs, the legislature intended to include in the first division of this section. The words used are so comprehensive that they include all the causes of action specified in the second division. But in deter- mining this point it is to be borne in mind that the object of the 16 Vic. cap. 177, was to increase and not to diminish the jurisdiction of 8 the courts, and to give them juris, diction in certain cases, where be fore they had none ; and it may fairly be presumed that any case which before that statute could have been brought up to the amount of £26 can still be so brought. The test, therefore, as to whether $40 or $100 would in any particular case bo the limit, would not bo whether it would come within the first sub-section, but whether it could not reason- ably be placed under one of the classes of cases mentioned in the second sub-section. There appears to be but one authoritative judicial decision on the question, that of Morris v. Cameron, 12 U. C. C. P. 422. This was an action brought for the recovery of the costs of a suit brought by the same plaintiff against a different defendant in the County Court of the United Counties of York and Peel. The defendant subsequently promised, on behalf of the defendant in the County Court suit, to pay to the plaintiff his costs of that suit. Tho declaration set out the promise, the breach, and averred that the County Court suit was not of the proper competency of the Division Court. The plea sot out the fact of the action having been brought for the breach of a warranty of a horse, and that only fifty dollars were recovered, and alleged thai the action could have been brought in the Division Court. The plain- tiff demurred to this on the ground that the action was of the proper competency of the County Court. Draper, C. J., said, " I thinlc the 64th sec. of the Division Courts Act has nothing to do with this l-i ■■ I ■' *■' fj'fi t'l ^f ^ * ;l 26 Tifi: Dn'isioN cDUiii'rf Airr. amount or balance claimed (c) does not exccerl one hundred dollars, and except in cases in which a (;ii; . < m 1 'I ^ '-a rt I'r hi I „>' I" . 28 TUE DIVISION COURTS ACT. judfi^ment and decree, shall be final and conclusive between the parties (A). 13, 14 V. c. 53, ss. 30, 84. Judge mAy LVI. Upon any contract for the payment of a order pay- .••ii_^ • i*jx» j mcntin sum certain in labour or m any kind oi goods or SthouBh commodities, or in any other manner than in money, oontrattnot the judge, after the day has passed on which the iD'money!°' goods or Commodities ouaht to have been delivered, or the labour or other thing performed, may give judgment for the amount in money as if the contract had been so originally expressed. 16 V. c. 177, s. 1 ', 13, 14 V. c. 53, 8. 23. to'exHm"*"" LVII. No privilege shall be allowed to any person purtiBR from to exempt him from suing and being sued in a Divi- of'court?''" si^Jii Court, and any executor or administrator may uniform and therefore more j^ene- rally satisfactory and beneficial. After all, certainty and uniform- ity in tfie administration of the laws are practically matters of primary importance, and cannot be too strongly insisted upon. The too numerous complaints on this head shew that something is wrong somewhere. To obtain certainty and uniformity, an intimate know- ledge of, and strict adherence to Jirst princ'ples on the part of the judge is indispensable, and this must be combined with the saluta- ry maxims of equity, which arc of universal application. Cases often occur in Division Courts where it is difficult to decide upon which side the equities lie, and in such cases the maxim, " when the equi- ties are equal, the law must pre- vail," would be a safe guide. With reference generally to this equi- table jurisdiction in Division Courts as compared with Couuty Courts it must be very perplexing to an uninitiated suitor to find that the judge who decides in his favor on a claim for one hundred dollars, on an exactly similar state of facts decides against him in an action for one hundred and one dollars. But so it must be in a greater or les? degree, accc -ding to the views of the judge, until such time as there is a fusion of law and equity. {h) It would be quite foreign to the object of this little work to dis- cuss the advisability of an appeal in certain cases from these courts, or the wisdom of preventing liti- gation by withholding such a pro- vision. The great desideratum of all laws.and one which can scarcely be expected in these courts under the present system, is expressly recognized in the " Upper Canada Common School Act," section 108, which says, " It being highly de- sirable that uniformity of decision should exist in cases within the cognizance of the Division Courts, and tried in such courts, in which superintendents, «fec., acting under the provisions of this act are par- ties," «fec. But the practical ob- jections to an appeal are so cogent, that those most conversant with the working of the system are entirely opposed to it. THE DIVISION COURTS ACT. 29 sue or be sued therein (/), and the judpjtnent and execution shall be such as in like cases would be given or issued in the Superior Courts. 13, 14 V. c. 53, 88. 28, 80. LVIII. A minor may sue in a Division Court for Minors may any sum not exceeding one hundred dollars, due loP'o^^cutetor him for wages, in the same manner as if he were of full age U)' 13, 14 V. c. 53, a. 27. LIX. A cause of action shall not be divided into Catmod of .. « .v i» 1. • • ii. action not to two or more suits tor the purpose of bringing the be divided, same within the jurisdiction of a Division Court (jk), :*^m law and equity. (i) The rules of practice, 66 to 66 inclusive, and forms 33 to 51 inclusive, make full provision as to proceedings against executors and administrators. {j) " This clause does not ap- pear to be by any means intended as a restriction upon the right of infants to sue in the Division Courts, but rather the contrary, — the object being to enable an in- fant to sue for his labor, contrary to the principle of the common law, which would give his earnings to his father. The clause leaves the right of infants to sue upon other causes of action as it stood before, and no doubt an infant may well recover any demand that h may have for goods sold, money lent, -0'I ';l*i/J \" • fii^rW \ ll 'I 30 THE DIVISION COURTS ACT. and no p;reater sum than one hundred dollars shall be recovered in any action for the balance of an unsettled account (/), nor shall any action for anj such balance be sustained where the unsettled account in the whole exceeds two hundred dollars. 13, 14 1 V. c. 53, s. 26. Judgment LX. A judgment of the court upon a suit brought disShMgi. for the balance of an account shall be a full discharge 1 delivered, and the like, are primd facie distinct, and need not in gen- eral be joined together in the samo plaint. 8. A tradesman's bill, in which one item is connected with another in the sense that the dealing is not intended to terminate with one contract but to be continuous, so that one item, if not paid, shall bo united with another and form one entire demand, forms one cause of action, and can only be the subject of one plaint. 4. Causes of action, originally separate, may, by act of the par- ties, (treating them as one demand) become so connected together as to form but one cause of action. 6. Where a bill or note is given for a portion of an account, such bill or note and the balance of the account form distinct causes of action. (See L'o^d's County Court Practice, p. 114.) (V) It is somewhat remarkable that the plaintiffs right of aban- doning the excess is nowhere ex- pressly given except ill section 205, which appears to refer exclu- sively to proceedings against absconding debtors. This is an alteration of the original enactment of 13 (fe 14 Vic, anu it is difficult to see the reason of it. It is, Iiow- ever, generally a, 11 W. Co. 10 W. II., Ex. 59.) To entitle a suitor to this \vrit it must be shewn that, 1. The amount claimed is l640 and upwards, 2, "That the cause is a fit one to be tried in one of the Superior Courtj, that it will, in all probfi- bility, bring up dKficult points of la'v at the trial, or that it presents some other circumstance which would render a trial in the court above advisable, and, ti. Thi; ave of a judge must be obtained. As a .^neral rule a certiorari only lies before jiidgment with a view to a trial of the caufc in a Superior Court {tiuUJalL v. Gibson, 11 U. C. Q. B. 98); and Robiimm, C. .1., in Mi'Kcnzif v. Jucii.c, ti U. C. L. J. 225, refuseil an order after judgment and execution regularly issued and money made and paid m • 1**' a u h '11' it'- ,ilif w i \ / 32 ITIE DIVISION C0URT8 ACT. into either of the said Superior Courts upou such terms as to payment of costs or other terms as the judge making the order thinks fit. V6, 14 V. o. 53, 8.85. over, although a new trial was Bnbsequently granted by the coun- ty judge. But generally when a new trial has been ordered, and the case is again coming on for trial, a writ may issue. (See Help V. Lucas, 8 U, C. L. J. 184 ; Corley V. Jioblin, 6 U, C. L. J. 226.) The 43 Eliz. cap. 6, provides that no such writ shall be re- ceived or allowed by the judge ex- cept it be delivered to him, before the jury, which is to try the ques- tion, has been sworn. " The mis- chief," said Richards, C. J., in Black V. .Wesley, 8 U. 0. L. J. 277, "intended to be cured by the statute arises when the cause is gone into before the judge alone, as Dcfore a jury ; for it enables the defendant, in the language of the statute, to ' know what proofs the plaintiffs can make for proving their issue, whereby the defend- ants that sued forth the writ may have longer time to furnish them- selves with some false witnesses to impugn these proofs, which the plaintiffs have openly made by their witnesses, which is a great cause of perjury and subornation of perjury.* I think the act in spirit applies to cases where plain- tiiTs witnesses are sworn although no jury is called." The removal of a cause under this section is entirely in the dis- cretion of the judge to whom the application is made, upon its being shewn to him that difficult ques- tions of law are likely to arise, and he may impose such terms as he thinks tit. Each case must there- fore depend on its own merits, and the circumstances attending it. With reference to the English cases as to the discretion of the judge, it is to be noticed that the wording of the analogous section of the English act is difi'erent from that before us. It is the practice in England to grant orders for writs of certiorari on ex parte applications. The prac- tice was formerly the same in this country, but of late years the practice has usually been to grant only a summons to shew cause, in the first instance ; and, as our Di- vision Courts are constituted, this seems the more correct course, as it certainly is the most advisable. The writer is not aware of any authority on the point. Nor has it yet been decided in the full court whether the plain- tiff' can, as a matter of right, remove a cause from a Division Court by certiorari. Some of our judges grant such orders whilst others refuse to do so. In JJenni- son V. Knox, 9 U. C. L. J. 241 ; 3 U. C. Prac. R. 151, Chief Justice Draper said, that a removal of a case from a County Court by a plaintiff was open to grave objec- tions, and that he should not facili- tate it. But there were circum- stances in that case, which would not apply to a similar application in a Division Court suit, such for example as the right of appeal from a County Court. The plaintiff makes his election with full knowledge in most cases as to what points will come up at the trial. He can discontinue if he chooses in the Division Court, and commence de novo in a Supe- rior Court at a trifling expense. THE DIVISION COURTS ACT. 33 PROCESS AND PROCEDURE. LXII. The existing appoiDttuents of County Board of Judges (o), with authority to frame general rules fran,e"ruieg respecting the practice and proceedings of the Divi- *^"**'"*®<*- sion Courts, shall continue until superseded or revoked by the Governor. 16 V. o. 177, s. 10 ; 20 V. c. 58, s. 8. LXIII. The Governor may from time to time The OoTern appoint and authorize five of the County Judges tOap^^ntfire frame general rules and forms concerning the P''8C-|'^'^'"^*y^^ tice and proceedings of the Division Courts, and thefirameruieo, execution of the process of such courts, with power ^^' also to frame rules and orders in relation to the pro- visions of this act, or of any future act respecting such courts, as to which doubts have arisen or may arise, or as to which there have been, or may be, conflicting decisions in any of such courts. LXIV. The County Judges appointed as in the wio Bhaii last section provided, or any three of them, shall, to'the^Ohief U '■i: ii -;.' .:!, But even if leave is granted to a plaintiff to remove his own suit, tiie difficulty still remains of forc- ing the defendant to appear in the court above. There would be more show of reason for the removal when the defendant pleads a set off, which is likely to bring up diffi- cult questions of law, as a set off is in the nature of a cross action, but an application of that nature was refused by Morrixon, J., in PrudHomme v. Lazure, 10 U. C. L. J. 330. It was subsequently ex- pressly held by Mr. Justice Adam Wilson, in Chambers, in Maney v. Hollinrake (not reported), that a plaintiff cannot remove his cause by certiorari. The plaintiff cannot be compel- led, when a cause is removed by a defendant, to follow his plaint into a Superior Court, nor is the de- fendant entitled in such case to his costs of removing it from the inferior court {Garten v. Great WcHtern R. W. Co. 5 Jur. N. S. 695 ; 28 L. J., Q. B. 103) ; though he is entitled to his full costs of suit without a certificate if success- ful in the Superior Court. { Corley v. Roblin, 5 U. C. L. J. 225.) An interpleader issue has been held not to be within this section, and cannot be removed by certio- rari, {Russell V. Williams, 8 U. C. L. J. 277; und see Jozies v. Harris, 6 U. C. L.J. 16.) The affidavits to be used on ap- plications of this kind must be entitled in the court to which it is desired to remove the suit. {Smyth et al. V. Nicholls, 1 U. C. Prac. R. 355.) (o) The judges appointed were, The Hon. S. B. Harrison, Geo. Malloch, J. R. Gowan, E. C. Camp- bell, and Miles O'Reilly. Of these, Judge Campbell is dead, and Judge O'Reilly has resigned. i";,' I V?l ^^p ■im \ M' 'f--'^% i>teilt.i:i»-v1 84 THE DIVISION C0URT8 ACT. jurttce to u under their hands, certify to the Chief Justice of UmjndSM. Upper Can.'ida, all rules and forms made after this I act takes effect, and the Chief J ustice shall submit the same to the judges of the Superior Courts of] Commou Law at Toronto, or to any four of them. suchruiBBto LXV. The judges of the Superior Courts (of I Sf by thT*^ whom the said Chief Justice, or the Chief Justice | judge*. Qf tijg Court of Common Pleas shall be one) maj approve of, disallow, or amend any such rules or | forms. And hare LXVI. The rules and forms bo approved of shall BUtute. * have the same force and eflfect as if they had been made and included in this act. The jndjices LXVII. The jadgcs who make any rules and foru)s copieii to the approved of as aforesaid, shall forward copies thereof Govornor, ^^ ^^q Govcrnor, and the Governor shall lay the same before each House of the Legislature. ExponscBof LXVIII. The Governor may by warrant direct provided for. ^yjg llcceiver General to pay out of the General Fee Fund, the contingent expenses connected with the framing, approval and printing of such rules. Practice of LXIX. In any case not expressly provided for by Court* to'iw ^^*^ ^^^ ^^ ^y existing rules, or by rubs made under followed In this act, the county judges may, in their discretion, cawB."^' * adopt and apply the general principles of practice iu the Superior Courts of Common Law, to actions and proceedings in the Division Courts. Former ruieB LXX. All rules and forms legally made and ap- proved under the former " Upper Canada Division Court Acta," and in force when this act takes effect, shall, as far as applicable, remain in force until otherwise ordered (»). 16 V. c. 177, s. 10 ; 20 V. c. 58, s. 8. . {p) See section 2. The rules now in force bear date the 28th June, 1-54, and wore approved on the 8th July, 1854, bv the (then) Chief Justice of Up- per Canada, the Chief Justice of the Court of Common Pleas, and three of the Puisne Judges. The rules and forms are subject to the provisions of the act, and the mo- difications necessary in using them are noticed in the proper places THE DIVISION COURTS ACT. 35 LXXT. Any suit may be entered and tried in the in what court holden for the division in which the cause of may'bo""'" action arose (y) or in which the defendant or any one •»n<'9»«<* of several defendants resides or carries on business '' " ' at the time the action is brought, notwithstanding that the defendant or defendants may at such time reside in a county or division or counties or divisions different from the one in which the cause of action arose. 16 V. o. 177, s. 8 ; 18 V. c. 125, s. 1. m " ■ ' 111 ' ' 'I ;■■ m (q) There has been and still is considerable difference of opinion as to the court in which an action may be brought under these words. The case of In re Watt v. Van- ever//, 23 U. C. Q. B. 196, (decided before the late act of 27, 28 Vic. cap, 27,) though only the judgment of the court on an ex parte applica- tion for a rule nisi, is an important judicial decision on the subject. The defendants, residing at Gode- rich, made a contract at Brantford with plaintiff to deliver to him certain goods at Goderich. The plaiatiff alleged that the defendant failed to perform his contract, and commenced an action against him in the Division Court at Brantford. The defendant then applied for a rule nisi for a prohibition. Draper, C. J,, in granting the rule, said : " The words, ' cause of action,' have, in the English County Court Act, been repeatedly determined in England to mean the whole cause of action: in other words, what- ever the plaintiff must prove to entitle him to recover. (See Borth- wick V. Walton, 16 C. B, 501 ; Hernaman v. Smith, 10 Ex. 659.) Now, what is the cause of action in this case? Not the contract only, but the contract and 'the breach, for which tne plaintiff claims damages. The first was made at Brantford, but the fisli were to be and were delivered to the plaintiff at the railway station at Goderich. The breach of con- tract alleged is, that the tiah there delivered were unsound, Ac, and if true, this breach occurred at the place of delivery stipulated for by the contract. The cause of action therefore arose partly at Brantford and partly at Goderich, and the plaintiff must bring his action according to the second al- ternative [as given in the statute, nan^ly, where the defendant re- sides or carries on business]. The rule nisi must issue." Where the defendant resided at G., at which place a bargain was made for the delivery of certain goods at W., and the bargain was fulfilled by such delivery and ac- ceptance, it was held that the cause of action arose partly at G. and partly at W., ond that the judge 01 the county in which W. is situ- ote had no authority in respect of the cause of action. {In re Kemp V. Owen, 1 U. C. L. J., N. S. 71 ; 1 L. C. G. 41 ; 14 U. C. C. P. 432.) It is difficult to give a defini- tion of the word " residence." A learned judge in England doubt- ed if a general definition could be found anywhere, and said he never could find or frame one satisfactory to his mind. Rohin^ son, C. J., in Mellinh v, VanNorman, 18 U. 0. Q. B. 455 savs, "The term ' resident' is differently con- strued in courts of justice, accord- ing to' the purposes for which t; i',- , , , .; v ■*■ \x ■^- ■i h' 1 H' . 1' '.' • i 1 ; '■S t X, 86 THE DIVISION COURTS ACT. Actof OT, 28 [Whereas (r) it is desirable to lessen the expenses ' IiiiMHnii o^ proceeding's in Division Courts in Upper Canada, DMKjon ot«. and to provide, as far as may be, for the convenience t^n\u^ot of parties having suits in these courts : Therefore, juriBdictioii. |ie|. Majesty, by and with the consent of the Legis- lative Council and Assemlly of Canada, enacts aa follows : — 1. Any suit cognizable in a Division Court may be entered, and tried, and determined in the court, the place of sitting whereof is the nearest to the defendant or defendants («), and such suit may be enquiry Is made into the meaning of the term. The sense in which it should be used is controlled by reference to the object." Residence is said to mean a domicile or home, (Lamb v. Smith, 16 L. J. Ex. 267.) and a man's home is where his wife and family reside. {Jiey. v. Duke of Richmond, 6 T. R. 561.) But this is oflly the case generally, because a man may reside in one place and his family in another. There is a difference between domicile and residence. The latter is more transient in its nature than the former, — and the cases shew that a person may have in fact two places of residence at the same time ( Withorn v. lliomas, 7 M. <& G. 1,) though he can have but one domicile. Practi- cally, however, the points which will generaliy be necessary to es- tablish are, that the " residence" (which may here be considered synonymous with " dwelling") is bona fide, and that, although it may be constructive, as by a family or servants, or even the possession of a domicile, which is not actually used, tliere must be a reasonable intention to reside whilst there, and a clear intention to return whilst absent. A public company is said to " dwell" where they h4ve their office for the transaction of their business. ( Aberyi^twith Pier Co. v. Cooper, 14 W. R. 28.) " Carrying on business" refers to a man's " calling" and not to an ac- cidental occupation, and t!;e words do not apply to a mere clerk in the employment of another. (r) The late Act of 27, 28 Vic cap. 27 (assented to 3()th June, 1864), is here inserted within brackets, for the reasons to be found in its third section. («) The two alternatives given to a plaintiff by section 7 1 have beeu already noticed. This act gives hira a third, namely, that he may bring his suit in the Division Court, the place of sitting whereof is nearest the residence of the defendant, and generally therefore the most con- venient court, and this without reference to where the cause of action arose, and no matter in what county or division the de- fendant may live. It is a provision of great benefit and importance to suitors ; for in the majority of cases the plaintiff lives in the immediate neighbourhood of the defendant, as also the witnesses likely to be called, and the expense of suing a defendant increases with the distance he may live from the court. THE DIVISION C0URT8 ACT. 87 entered, and tried, and determined irrespective of where the cause of action arose, and notwithstanding that the defendant or defendants may at such time reside in a county or division other than the county or division in which such Division Court is situate, aod such suit entered. 2. It shall be sufficient if the summons in such case be served by n bailiff of the court out of which it issues (t) in the manner provided in the seventy-fifth section of the Division Courts Act ; and upon judg- ment recovered in any such suit a writ of Jierl facias against the goods and chattels of the defend- ant, and all other writs, process, and proceedings to enforce the payment of the said judgment, may be issued to the bailiff of the court, and be executed and enforced by him in the county in which the defendant resides, as well as in the county in which the judgment was recovered. 3. This act shall be read as incorporated with and as part of the said Division Courts Act, and the foregoing sections shall be considered as inserted next after section seventy-one in the said act, and the authority from time to time to make rules and to '""^ »1 ;, ' ' ■•■J i, i ' 1 " \ M *> 1 Section 72 will, in a great raea- Burc, be superseded by this pro- Tision, although there may be cases where it will be necessary to obtain an order under that sec- tion, as, for instance, where there are two or more defendants, whose residences are not all nearest to one and the same place of holding a court, this act only speaking of " the defendant or defendants," without adding the words " or one of several defendants," as in sec- tion 72. The j udge can, under that section, exercise his discretion as to the court where the suit is to be entered, according to the facts of each particular case. It has been questioned whether proceedings by replevin or attach- ment, which are not for the pur- pose of enforcing payment of a judf/ment come within the meaning of the act. It may also be argued that a judgment summons does not come within the statute, as the means of enforcing the attendance of a debtor to be examined, name- ly by commitment, is in the nature of a punishment for contempt of court or fraud, as the case may be, and cannot therefore be called a proceeding to enforce payment of a judgment, but at the same time that it is such a proceeding, and an effectual one too, cannot be denied ; and much benefit to bo derived from the statute would be lost if the narrow view of it is to be talcen. No decision has yet beea reported on the points spoken of. (t) See section 79 and notes. 38 THE DIVISION 0OUUT8 ACT. Whon niiti may bo brought in othur than Ihn ruKular divirtiom. Where no special ordor, olerk to forward 8Uinmung«8. alter and amend the same (pivcn under the sixty- third uf the buid net) shall extend to the provisiuna in this act contained. 27, 28 V. c. 27.] LXXIL The places fixed for holdinp; the sittinirs of the courts and the offices of the clerks thereof, beinp; in soiuc instances situated at an inconvenient distance from the jilace of residence of cc-tain par- ties rcaidin{» iu such divisions, while a court is held in an adjacent division, in the same, or in an adjoin- ing county more convenient for such partios, and it being desirable that procedure in the Division Courts should be made easy and inexpensive to suitors ; therefore, in case any person desires to bring an action in a division other than that in which the cause of action has arisen, or in which the defendant resides, any county judj^e may by special order (m) authorize a suit to be entered and tried in the court of any division in his county adjacent to the division in which the defendant or one of several defendants resides, whether such defendant or defendants reside in the county of the judr («) Under 16 Vic. cap. Ill, sec. 9, it was held that the application should be made to the jii'lj^e who would ordinarily have cof^iizance of the cause, and not to the judge of the division to which it was desired to transfer it (AlcWhiricr V. liongard, U U. C. Q. B. 84), but under this section the order must be made by the judf^e of the coun- ty iu one of the divisions of which the suit is to be brought. See rule 20 as to the mode of proceeding to obtaiu leave under this section and the form of affida- vit required. THE division; CUUUTri ACT. 3l> fhnt, purpo?o (u). 13, 14 V. o. 53, s. 25; 10 V. o. 177, «. 20; 18 V. c. 125,8.3. LXXIV. The plnintiff blmll enter with the clerk nHintifft „ .^^, it DOccPHary, copies or hiM account, cl:um hiH cuimn or doumnd in writing in detail (and in cnses of tort, **'•' •''"''• particulars of his demand) (»/'), whi(!h shall bo num- bered according to the order in which the same uro entered, and thereupon a summona whull bo issued, bearing the number of the account, claim or demand ou the margin thereof (.r), and corresponding in subHtunce with the form or in such other form as may be prescribed by any rule respecting the prac- tice and proceedings of the Division Courts, accord- ing to tho nature of the account, claim or demand, and on the trial of the cause no evidence shall be given by the pluintiflf of any cause of action except : 1 I • \ ■ •' s' >% 4 (d) See rule 21, which onlnrges «pon tho mode of procedure under this section. TIio book here spoken of may be called the " foreign procedure book," and be in » form analngous to that of the " procedure book," required by rule 4 and form 64. It would seldom be possible and often inconvenient for the trans- mittuig clerk to know and send the exact euraa that would bo re- quired to pay for Bervicea in a foreign division ; it is therefore usual for each clerk to keep an account with other clerks, that he eends summonses or other papers to, in which to credit them the charges that they make against him, and which are endorsed on the papers returned. If he also keeps in his foreign procedure book, besides the index of the names of tho suits, an alphabetical index of the names of the clerks sending him these suits, referring to each as it comes to him and is numbered, he can iit anv moment see what any such clerk owes him. and so make out his account with him accordingly. This is tho course pursued by the clerk in Toronto, and answers all purposes. But where there is no such under- standing between clerks, a sum should bo sent on account of ser- vice, «fec. (it') See section 35, note {k). Rule Ifi provides that tho ac- count, claim, or demand, shall, whenever possible, contain detail- ed particulars. It would be un- reasonable to require less than this. The plaintiff, moreover, is bound by his own particulars, though he may in certain cases obtain leave to amend on terms. Suitors would do well to be very careful about the manner in which they put their claims into court, and thereby save much valuable time to the court and delay and expense to themselves. See forms .S and 4, for particu. lars of deiniind. (x) See rule 1 8. f '-.. ly' 40 THE DIVISION COURTS ACT. such as is contained in the account, claim or demand so entered {^). 13, 14 V. c. 53, ss. 24, 42. Berriee of LXXV. The Bummons with a copy of the account be ten"dayc <>' 0^ '^^ particulars of the claim or demand attach- ed, shall he served ten dajs at least (z) before the return day thereof. When ier- LXXVI. In case none of the defendants reside days^^nd* ^'^ »« the county in which the action is brought, but when 2« one of them resides in an adjoining county, the dayi. summons shall be served fifteen days, and in case none of the defendants reside in the county withia which the action is brought, or in an adjoining county, the summons shall be served twenty days at least before the return day thereof. 16 V. c. 177, s. 29; 18 V»c. 125,8. 1. When ser> pnr^onai or claim or demand exceeds eight dollars, the service otherwise. gij^U be personal on the defendant (a), and in case the amount does not exceed eight dollars, the ser- vice may be on the defendant, his wife or servant, or some grown person being an inmate of the de- fendant's dwelling house, or usual place of abode, trading or dealing (6). 13, 14 V. c. 53, s. 24. (y) The judge may, however, in his discretion, adjourn the hearing of the cause to enable a party to furnish particulars or further par- ticulars (rule 16). (2) That is, ten davs exclusive of the day of service and the court day (rule 22). It is laid down in the books of practice in the Superior Courts, that when practicable, the defend- ant, or each of them if more than one, should be served personally with a true copy of the writ. It is not necessary to leave the copy in his actual corporeal possession, and whether the party touches him or puts it into hia hand is immaterial. Personal service may be where you see a person and bring the process to his notice,, and if, after informing him of the nature of it and tendering a copy, he refuses to receive it, then, plac- ing it on his person, or throwing it down in his presence, would be sufficient service. But each parti- cular case must depend upon its peculiar facts. Where a writ was put through the crevice of a door to a defendant, who had locked himself in, the service was deemed insufficient. If the defendant conceals him- self to avoid service of process tlie plaintiff's course is to proceed against him by attachment under section 199. (a) See sec. 16 (note). (b) See sec. 71 (note). LXXVI be served < service, si 63, s. 88, ■ Lxxn sumraousci delivered i bailiffs' of not, and si the clerk ( bailiffs ; b beyond th oharjre mi! limits of 1 they are 14 V. c. t LXXVII. In case the amount of the account, H 125, s. 2. LXXX vice of al sent to hii served, tl bailiff nee the affida^ sumraons( the bailiff such ques service or (c) The note of th( out delay, to make t rule 11. : sonal the quiry as t( of the per process or to him, so fill in the perly, and to the jud under sect thl: division courts act. 41 LXXVIII. The postages of papers required topoBtajjes. bo served out of the division, and sent by mail fur service, shall be costs iu the cause. 13, 14 V. c. 63, s. 88, middle part, LXXIX. The bailiifs shall serve and execute all n«i!iffs to summonses, orders, warrants, precepts and writs **"^*^"* delivered to them by the clerk for service, whether bailiffs of the court out of which the same issued ur not, and shall so soon aw perved return the same (r) to the clerk of the court of which they are respectively bailiifs ; buf they shall not bo required to travel beyond the jimits of their division, or be allowed to oharjre mileap'o for any distance travelled beyond the limits of the county in whi<^h the court of whir-h they are respectively bailiil's is situated (d). lo, 14 V. c. 53, 8. 13; 16 V. c. 177, s. 29 ; 18 V. c. 125, s. 2. LXXX. The clerk shall prepare affidavits of sor- <'iork to prs vice of all summonses issued out of his court, orvuTof sent to him for service, stating how the same were "ivice, Ac. served, the day of service, and the distance the bailiff necessarily travelled to effect service (c), and the affidavits shall be annexed to or endorsed on the summonses respectively ; but the judge may require the bailiff to be sworn in his presence ind to answer such questions as may be put to him touching any service or mileage. 16 V. c. 177, s. 81. (c) The bailiff should make a note of the mode of service with- out delay, to enable him correctly to make the return required by rule 11. If the service is not per- sonal the bailiff should make en- quiry aa to the name and position of the person that he leaves the process or paper with, if unknown to him, so that he may be able to fill in the affidavit of service i)ro- perly, and to g;ive full information to the judge if required so to do under section 80, {d) By 27, 28 Vic. cap, 27, sec, 2, a summons in a suit entered aa there provided for may be served by the bailiff of the court from whence l ich summons issues, not- withstanding that the defendant may live in another county (sec. 1 ), and as this act is incorporated with tbo Division Courts Act, the bailiff would doubtless iu such case be entitled to his full mile- age, {e) See form 7. ^:-.i 'I r ij r. * -I I liii I ! '« jf ] \, 42 THE DIVISION COURTS ACT. One of MTe- LXXXI. In case of a debt or demand against two rai pjirtners qj. more persons, partners in trade or otherwise joiot- may be sued "*"";, r^ 'i . ,. .!••••' In certain ly liable (/), but residing m diiierent divisions, or *■'•"■ one or more of whom cannot be found, one or more of such persons may be served with process, and judgment may be obtained and execution issued against the person or persons served, notwithstanding others jointly liable have not been served or sued, reserving always to the person or persons against whom execution issues, his or their right to demand contribution from any other person jointly liable with him. 13, 14 V. c. 53, s. 29. Baniffmay LXXXII. Whenever judgment has been obtained J^'^^P^^P*'" against any such partner, and the judge certifies that on certificate the demand proved was strictly a partnership tran- of judge. aaction, the bailiff, in order to satisfy the judgment, and costs and charges thereon, may seize and sell the property of the firm, as well as that of the defendants who have been served (g). 13, 14 V. c. 53, s. 29. cierkB and LXXXIII. Every clerk or bailiff may sue and ^^Auibo l>e sued (^) for ^''^y u TUE DIVISION COURTS ACT. r Pro«eedingt in case (InfKDdant doea not appear. JuAf^e may adjourn bearing of cause. ther pleading or formal joinder of issue, proceed, in a summary way, to try the cause and ^'ive judgment; and in case satisfactory proof is not given to the judge entitling either party to judgment, he may nonsuit (^) the plaintiff; and the plaintiff may, before verdict in jury cases, and before judgment pronounced in other cases, insist on being nonsuited. 13, 14 V. c. 53, ss. 41, 84. LXXX V. If on the day named in the summons (J) the defendant does not appear, or sufficiently excuse his absence, or if he neglects to answer, the judge, on proof of due service of the summons and copy uf the plaintiff's account, claim or demand, may pro- ceed to the hearing or trial of the cause on the part of the plaintiff only, and the order, verdict or judg- ment thereupon, shall be final and absolute, and as valid as if both parties had attended ; and, except in actions of tort or trespavss, in case of the personal service of the summons and of detailed particulars of the plaintiff's claim, the judge may, in his discre- tion, give judgment without further proof (m). 13, 14 V. c. 53, 8. 45. LXXXYI- In case the judge thinks it conducive to the ends of justice, he may adjourn the hearing of any cause in order to permit either party to sum- is submitted, have the effect of throwing the business into the hands of those best able to conduct it, and at the same time be a mat- ter of justice to tlie successful suitor, who, under the present system, has to pay money for the recovery of a just debt, or for de- fending himself from an unjust claim, as the case may be. (k) A nonsuit only affects that particular action, but is not a bar to any further proceeding, or to another suit for the same subject matter. A defendant is in general enti- tled to his costs of defence on the plaintiff being non-suited, and section 114 authorises the judge in his discretion to award to the de- fendant his costs and other reason- able charges in satisfaction for his trouble and attendance. But some of the most experienced judges apply the principles acted on iu the Court of Chancery as to costs, and do not always award the costs according to the event of the suit. (l) The defendant is bound to be present at the time appointed for the opening of the court, and to remain in attendance till the case is called on. (m) Similar to the proceedings in the Superior Courts on a speci- ally endorsed writ. THE DIVISION COURTS AOl. 45 l*MiR>f mon witnesses or to produce further proof, or to serve or give any notice necessary to enable such party to enter more fully into hia case or defence, or for any other cause which the judge thinks reason- able, upon such conditions as to the payment of costs and admission of evidence, or other equitable terma ns to him seems meet (w). 16 V. c. 177, s. 26 ; 13, 14 V. 0. 53, s. 45; 18 V. c. 125, s. 1, the end. TENDER OR PAYMENT OP MONEY INTO COURT, (o) LXXXVII. If the defendant in any action ofPie»of debt or contract brought against him in any Division p«ymenTof Court, desires to plead a tender before action brought ™|^°^y'"*" of a sum of money in full satisfaction of the plain- tiff's claim, he may do so on filing his plea (/>) with the clerk of the court before which he is summoned • to appear, at least six days before the day appointed for the trial of the cause, and at the same time pay- ing into court the amount of the money mentioned in such plea, and notice of such plea and pay- ment ((y) shall be forthwith communicated by the clerk of the said court to the plaintiff by post (on receiving the necessary postage,) or by sending the same to his usual place of abode or business. 16 V. c. 177, s. 27. LXXXVIII. The said sum of money shall be Amount to paid to the plaintiff, less one dollar, to be paid over ^Jn|fff*'*4e to the defendant for his trouble, in case the plaintiff •f* li'l .'■1. i ' '; h- m I '\. (n) See rule 28. (o) A tender must be made to the person authorized to receive it, and it must be unconditional. A tender of more than a man ought to pay is good, but it is not so if change is required. The actual production of the money is. neces- sary, unless dispensed with. Bri- tish and Canadian silver coin is a good tender, up to ten dollars ; cop- per coin to twenty cents. Ameri- can gold coin and British gold find bilver coin are a good tender ac- cording to rates specified by act of Parliament (Con. Stat. Can. cap. 16). Country bank notes are, in England, a good tender, unless objected to at the time, {Polglasa V. Oliver, 2 C. l^'f 11 46 THE DIVISION COURTS ACT. Tbo rulo u to eosts in auch cues. do not further prosecute his suit, and nil proceedinpa in the said action shall be stayed, unless the plaintiff, within three days after the receipt of notice of such payment, signify to the clerk of the said court his intention to proceed for his demand, notwithstanding such plea (r), and in such case the action shall pro- ceed accordingly. 16 V. o. 177, B. 27. LXXXIX. If the decision thereon be for the de- fendant, the plaintiff shall pay the defendant hi» costs, charges and espenses, to be awarded by the court, and the amount thereof may be paid over to him out of tlie money so paid in with the said plea, or may be recovered from the plaintiff in the same manner as any other money payable by a judgment of the said court ; but, if the decision be in favor of the plaintiff, the full amount of the money paid into court as aforesaid shall be applied to the satis- faction of his claim, and a judgment may be pro- nounced against the defendant for the balance due and the costs of suit according to 'he usual practice of the court in other cases. 16 V. c. 177, s. 27. Defendant XC. The defendant may at any time, not less than nlc'lneyYnto ^ix days before the day appointed for the trial, pay court. into court such sum as he thinks a full satisfaction for the plaintiff's demand, together with the plain- tiff's costs up to the time of such payment. 13, 14 V. c. 53, 8. 46. mftiw-'of*''** ^^^- The clerk having received the necessary paympnt postage, shall forthwith send notice of such payment to the plaintiff by post or otherwise to his usual place of abode or of business, and the sum so paid shall he paid to the plaintiff, and all proceedings in the action staged, unless within three days jtfter the receipt of the notice, the plaintiff signify to the clerk his intention to proceed for the remainder of the demand claimed, in which cafie the action shall proceed as if brou' {t) The statute giving the right of eet-off ia 2 Geo. II. cap. 22, s. 13. It .enf^cts, " that when there are mutuajl. debts between the plain- tiff and defendant, or if either party sue or he sued aa executor or ad- ministrator, where there are mutu- al debts between the testator or intestate and either party, one debt may be set against the other, and such matter may be given in evidence upon the general issue," Ac. The subject matter of a set-off must be a debt due at the time the action is brought, but not a demand for uncertain damages, nor a claim on a guarantee for debt or against contingent dam- ages. A setoff under the statute cannot be had in actions for torts, nor when tlie demands are not mutual and in the same right. A debt barred bj' the Statute of Lim- itiitions cannot be set off, and the plaintiff may plead the statute. And it is presumed that he would be entitled to an adjournment iindur section 8H to enable him to give the necessary notice. A dofendiint is not bound to set off his claim against the plaintiffs', but he may do so, even though it is beyond the jurisdiction (provid- ed ho abandon the excess, sec. 96), but by section 96, the judgment of the court is a full discharge of the whole cause of action ; or he may shew a claim sufficient to over- balance the plaintiff's claim, and then demand that the defendant be non suited under section 96. It is said that Courts of Equity will grant relief in cases of mutual credit where there is an equitable, without a legal right to set off (James y. A'^wnw, 6 Ves. 108); and' in Switzer v. Wilson, Chan. Cham. Rep. 1 60, it is remarked that equi- ty professes to follow the law in allowing set-off, except where there are particular circumstances which ought in equity to make a differ- ence. As Division Courts have an equitable jurisdiction, tlie lati- tude allowed in courts of Equity would be applicable to them. liut when there are unconnected cross demands, equity does not in gene- ral interfere to set-off one against another, : in the absence of any special circumstance or agreement exj)res3 or implied. Nor unless it is shewn that the debts are duo from and to the same parties res- pectively. ■i^- ' . .1.1 ' *«"' I ''^'M 48 THE DIVISION C0UKT8 ACT. they, or one of them, shall, at least six days before the trial or hearing, give notice thereof in writing:; (w) to the plaintiff, or leave the same for him at his usual place of abode if within the division, or, if living without the division, shall deliver the same to the clerk of the court in which the action is to be tried, and in case of a set-off, the particulars thereof shall accompany the notice (y). 13, 14 V. o. 53, s. 43; 16 V. 0. 177, s. 29; 18 V. o. 125, s. 1. Noevideiico XCIV. No ovldence of set-off shall be given by allowed^ the defendant except such as contained in the parti- oulars of set-off delivered. 13, 14 V. c. 53, s. 42. piMi.MiT XCV. If the defendant's demand, as proved, inttod or"*"* exceeds tie plaintiff's, the court may non-suit the give^ftr* plaintiff; or if the defendant's set-off, after remitting his favour. 13, 14 V. c. 53, s. 43. XCVI. And where a set-off is set up, the judg- ment of the court thereon shall be a full discharge, as well of the amount allowed to be set-off as the amount by which such claim of the defendant ex- ceeded one hundred dollars, and the judgment shall be entered accordingly. 13, 14 V. c. 53, s. 43. Spt-olT to b* tt full diA- cbJirge. \\' SUBP(ENAS. Sn"'"*^ XCVII. Any of the parties to a suit may obtain, Biibpwnaf from the clerk of any Division Court in the county, er . ^ subpoena (a) with or without a clause for the pro- ■ (u) See rule 29 and forms 8 A 9. (v) A. set-off is in the nature of a cross action, and is therefore governed by the same rules that apply to the particulars and proof of plainti^s claims. (a;) In the majority of cases plaintiflFs know what defence is likely to be set up, but, unless the witnesses reside at a considerable distance from the court, it would be better for them not to get out their subpoenas, until the time has elapsed for defendant giving his notice of statutory defence, or pleading tender and paying money into court, for otherwise the judge might well refuse to allow the fees for a witness who might prove to be unnecessary. Any person present in court may be called upon to give evi- dence in a case without subpoenaed. being it ia court THE DIVISION C0UKT8 ACT. 40 duction of books, papers and writings, requiring any witness, resident within the county (y) or fierved with a subpoena therein, to attend at a specified court or place before the judge, or any arbitrator appointed by him'under the provision hereinafter contained (z) ; and the clerk, when requested by any party to a suit, or his agent, shall give copies of such subpoena. 13, 14 V. c. 63, 8. 48; 16 V. c. 177, s. 5; 18 V. c. 125, s. 3. XCVIII. Any number of names may be inserted Services of in the subpoena, and service thereof may be made by by ^om ' any literate person (a), and proof of the due service """da. thereof, together with the tender or payment of expenses, may be made by affidavit sworn before any county judge or the clerk of any Division Court, or before any person authorized to take affidavits in any of the Superior Courts, and proof of service may be received by the several judges of the said courts, either orally or by affidavit 16 V. c. 177, es. 5, 33 ; 13, 14 V. c. 63, s. 48. XCIX. Every person served with a copy of a Penalty for subpoena either personally or at his usual place of ]J|[^'jJ^^,iJ'g^ abode, and to whom at the same time a tender (b) of refuBingto payment of his lawful expenses (o) is made, who***'*"™* refuses or neglects without sufficient cause to obey the subpoena, and also every person in court called upon to give evidence, who refuses to be sworn (or affirm where affirmation is by law allowed) or to give evidence shall pay such fine not exceeding eight dollars, as the judge may impose, and shall, by verbal or written order of the judge, be, in addition, liable to imprisonment for any time not exceeding ten days; and such fine shall be levied and collected with costs, in the same manner as fines imposed on (y) See section 100 as to sub- poenas to witnesses residing out of the county. (2) See sec. 109 and notes. (a) Including either party to the suit. But no fees would generally be allowed for the service of sub- pa'naa unless made b}'^ a biiiliiF of the court. And with a view to facilitate proof of service it would be advisable in all cases to have the same made by the bn.ili£F or by some person not a party to the suit. (b) See sec. 87, note (o), {(;) Sec rule 46 and form H. .(. « k' i\ 'It f'i! \ 50 THE DIVISION C0UKT8 ACT. jurymen for non-attendance (c), and the whole or any part of such fine, in the discretion of the judge, after deducting the costs, shall be applicable towards indemnifying the party injured by such refusal or neglect (/), and tne remainder thereof shall form part of the General Fee Fund. 13, 14 V. o. 53, B. 48. ■ ^ ;; PartiM majr Q, Any party may obtain from either of the Su- jSniUfrom porior Courts of Common Law a subpoena requiring ^mu' ^^® attendance at the Division Court, and at the time mentioned in such subpoena, of a witness resid- ing or served with such subpoena in any part of Upper Canada (g) ; and the witness shall obey such subpoena, provided the allowance for his expenses, according to the scale settled in the Superior Courts be tendered to him at the time of service (h). 16 V. 0. 177, s. 6. (e) Under eeo. 126. See forms 69, 63. (/) It is supposed that this pro- -vision does not interfere with the right of the injured party to bring an action for damages against a witness, who when duly subpoena- ed, fails to attend. (ff) The mode of compelling the attendance of witnesses not resi- dent in the county is here pointed out. Should the clerk not keep a supply of these subpoenas on hand, they can be obtained from the deputy clerks of the Grown in outer counties. (/t) The fees allowed by rule of court are as follows : To witnesses residing within three miles of the Court House, per diem $0 16 To witnesses residing over three miles from the Court House 1 00 Barristers and attorneys, pliysicians and surgeons, wlien called upon to give evidence in consequence ol' aiii/ professional service rendered by them, or to give professional opinions, per diem 4 00 Engineers and surveyors, when called upon to give evidence of any profes- sional service rendered by them, or to give evidence depending upon their skill aim judgment, per diem . . 4 00 If the witnesses attend in one cause only they will be entitled to the full allowance. If they attend in more than one cause they will be entitled to a proportionate part in each case only. The travelling expenses of witnesses over ten miles shall be allowed according to the sums reasonably and actu- ally paid, but in no case shall exceed one shilling per mile one way (Har. C. L. P. Act, p. 716). Under this rule the taxing offi- cers of the Superior Courts of law at Toronto allow fees to witnesses coming over ten miles as follows : If they travel by railway or by other public conveyance, only the ordinary fare, but if tliey are TUE DIVISION COURTS ACT. 51 EVIDENCE AND EXAMINATION OP PARTIES AND WITNESSES, (t) CI. On the hearing or trial of any action or in parUM to any other proceeding, the parties thereto and oH 2^"^^ "J^! other persons may bo summoned as witnesses andnu»dM examined, either on behalf of the plaintiff or defen- *"°*"»^- dant, upon oath (or affirmation), to be administered by the proper officer of the court ; Provided always, that no party to the suit shall be summoned or obliged to pay anything extra owing to casualties, tlien such further sum as is reasonably and actually paid, not exceeding in the whole one shilling a mile one way. If they travel by their own con- veyance, then at the same rate per mile, as would be charged by stages in the vicinity, and which in Canada is generally three cents per mile (with any necessary ex- tras as already mentioned). The sum of one dollar per diem is to include all incidental expenses of food and shelter during the journey. (i) It would be impossible in a work of this kind to give even an outline of the principal rules which govern the law of evidence ; it may however briefly be stated that, As a general rule the best evi- dence, of which the nature of a case will admit, must be given. But, if it is impossible from the loss of documents or the death of witnesses, &c., or from the wrong- ful act of the opposite party, to produce the best or primary evi- dence, secondary evidence would become admissible, but only after laying a proper foundation for it to the satisfaction of the judge. Hearsay evidence is in general inadmissible. Witnesses are not incapacitated from j^ivinj; ovidence by crime or interest; but parties to the suit cannot, subject to the limitations in^the next sections, give evidence on their own behalf, nor can wives five evidence for their husbands, nt the plaintifiP as woU as the de- fendant may be called by the op- posite party or by the judge. Insane persons (except during lucid intervals) ; children who do not understand the nature of an oath ; atheists and other infidels, who profess no religion which can bind their consciences, are incompetent witnesses. BarristurD and attorneys and their clerks cannot be compelled to give, and may be prevented from giving evidence touching any communi- cations made to them in such character. See the " act respecting wit- nesses and evidence" (Con. Stat. U. C. cap. 32, sections 1 to 8.) As to the means of securing evi- dence the four preceding sections provide for compelling the at- tendance of witnesses. Rule 20 provides for the inspection of documents by one party in the gossession or control of the other, .ule 30 enables either party to the suit to give his opponent notice of his intention to admit any fact on the trial of the cause for the purpose of saving expense in proof, and form 10 itj the form given for this notice. % %'. . y • ^•Ei il w »' 52 THE DIVISION COURTS ACT. ozamined, except at the instanoo of the opposite paity or of the judge. 13, 14 Vc. 53, b. 81. Judge may dx. Tho judge holdiag anv DiviaioD Court may, •?tlVpMt7 whenever he thinkB it oooduoive to the ends of jus- •ridJaoa. *ioe, require the plaintiff or defendant in any cause or proceeding to he examined under oath or affirma- tion, and in any case of deht or contract brought for a demand not exceeding eight dollars, in which the plaintiff gives sufficient evidence to satisfy the judge that the defendant has become indebted to such plaintiff, but the plaintiff has not evidence to establish the particular amount, the court may in its discre- tion examine the plaintiff on his oath or affirmation, touching the items of such account, and give judg- ment thereon accordingly, and such iudge may also, under like circumstances, examine tne defendant as to the amount of any payment or set-off in any such case, and may give judgment accordingly for such defendant. 16 V. o. 177, ss. 22, 23. Judge mK7 OIII. In any suit for a debt or demand, not being eTidenM° ^or tort, and not exceeding twenty dollars, the judge, pinintiffe' Of on being satisfied of their general correctness, may books of receive the plaintiffs books as testimony, or in case •^'*°*' of a defence of set-off or of payment, so far as the same extends to twenty dollars, may receive the defendants' books, and such judge may also receive as testimony the affidavit or affirmation of any party or witness in the suit resident without the limits of his county, but before pronouncing judgment, the judge inny require any such witness or any party in a cause to answer upon oath or affirmation any inter- rogatories that may be filed in the suit. 13, 14 Y. 0. 53, ss. 31, 72 ; 16 V. o. 177, s. 28. AfFIDAYITS. (j) Affidavit CIV. All affidavits to be used in any of the Divi- ■worn before siou Gourts, or before any of the judges thereof, may S TOmmta-'^ be sworn before any county judge or before the clerk eioner. or deputy clerk of any Division Court, or before any judge, or commissioner for taking affidavits in any of (j) Sec rule 40. THE DIVISION COURTS ACT. 68 the Superior Courts. 13, 14 V. o. 68, ss. 11, 88 ;• ■ 16 V. c. 177, B. 33. C V. In ooBO any person in any examination, wil- ![",'^"4j^ fully and corruptly gives false evidence, or wilfully Srid«Dc«,— Bwcara (or affirms) falsely in any matter whore an V'riatr. oath, affidavit or affirmation is required or allowed in this act, he shall be liable to the penalties of wilful and corrupt perjury. 13, 14 V. o. 63, s. 47 ; 10 y. 0. 177| s. 6, latter part. JUDOB's 02CI8I0N. CVI. The judge, in any case heard before him, jadga may shall, openly in court, and as soon as may be after Slot iMUn- the hearing, pronounce his decision, but if he is nottar.or prepared to pronounce a decision instanter, ho may]j|^g^°nt. postpone judgment and name a subsequent day and hour for the delivery thereof in writing at the clerk's office ; and the clerk shall then read the decision to the parties or their agents if present, and he shall forthwith enter the judgment, and such judgment shall be as effectual as if rendered in court at the trial 18, 14 Y. o. 68, s. 89. CVII. The judge may order the time or times jnd«e may and the proportions in which any sum and costs ^^p^^lf recovered by judgment of the court shall be paid (k), tioni'in reference being had to the day on which the sum-j^^ttluiu'' mons was served, and, at the request of the party ^p*'<^- entitled thereto, he may order the same to be paid into court, and the judge, upon the application of either party, within fourteen days after the trial, and upon good grounds ,being shewn, may grant a new trial upon such terms as he thinks reasonable, and ''• I 4' ' i\ m (k) It is usual for judges, for the sake of convenience and uniform- ity, to make a standi npf rule on tluH subject, the time given for pay- iiit'iit (not being more than 5u daya h^f section 108) being in propor- tion to the amount of the judgment, exception however being made to the rule upon special circumstances being shewn to the iudge's satis- faction, either on oath in court or by affidavit. In cases where a judgment creditor can shew by oath or affidavit that his debt is in peril by delay, it is usual for the judge to grunt immediate exe- cution. ri^''»; 54 THE DIVISION C0UET8 ACT. 'in the mean time may stay proceedings {t). 13, 14 V. c. 53, 88. 50, 72, 84 ; 16 V. o. 177, ss. 11, 28. Execntion CVIII. Except in cases where a new trial is grant* postponed ed, the issue of execution shall not be postponed for ^jmMda ^^^^ ^^^^ fi% ^^J^ ^^^ servioB of the summong ^'' without the consent of the party entitled to the same (l) The right of a stiitor under certain circumstances to obtain a new trial is one of great import- ance, especially in courts from which there is no appeal. It gives the judge an opportunity of calmly reviewing his decision, without the unavoidable hurry and distraction incident to a crowded court and a number of cases, presented for adjudication in a crude state, and not brought to a simple issue by the science of ' pleading, and generally unexplain- ed by experienced counsel. It gives the suitor an opportunity of obtaining redress in a variety of cases and under various circum- stances. The following are the principal grounds upon which new trials are granted in the Superior Courts, and which are applicable to Divi- sion Courts : — Msitake of the judge; wrong non-suit; improper adtnission or rejection of evidence ; default or misconduct of an officer of the court; absence of counsel, upon its being clearly shewn that the defendant has a good defence on the merits ; default or misconduct of, or being misled, or taken by surprise by the opposite party ; ab- sence of material witnesses ; mis- conduct or perjury of witnesses ; discovery of fresh evidence that is material, &c. And to these may be added, in jury cases, misdirec- tion of the judge ; the improper discharge of a "jury; default or misconduct of jury ; perverse ver- dict, or verdict against law, or evidr nee, or judge's charge ; that the damages are excessive or too email, g<^i°st ^^^ collcctor by such means as are provided mfiMtor, ' for enforcing judgments in the Division Courts. 16 .hownforcedy^j 177^^21. , GXXX. The causes to be heard by the judge alone shall be set down for hearing in a separate list from the list of causes to be tried by a jury, which two lists shall be severallv called "The Judge's jndge'BiUit List"' and "The Jury List," and the causes shall be ud^a^:iiit set down in such lists in the order in which they were in the first instance entered with the clerk ;— ** The Jury List" ihall be first disposed of, and then "The Judge's List;" except when the judge sees sufficient cause for proceeding difiisrently. 13, 14 V. c. 53, s. 34. OXXXL Five jurors shall be empanelled and sworn to do justice between the parties whose cause they are required to try, according to the best of their skill and ability, and to give a true verdict according to the evidence (c), and the verdict of every jury shall be unanimous. 13, 14 V. c. 53, fl. 37. * GXXXII. In case the judge before whom a suit is brought thinks it proper to have any fact contro- verted in the cause tried by a jury, the clerk shall instantly return a jury of five persons present (d) FiTsJuron to be empiut- uclled, Ac. Verdict to be unanimonfl. Judge in«7 order jury to be empanel- led to try any diepntedfoct. JUDQMEN1 (c) After the oath is taken the clerk should call over the names of the jurors, who will say " sworn" if sworn. If persons allowed by law to affirm (as Quakers, Menon- ists or Tankers,) are on the jury, an affirmation is administered to them instead of an oath. See forms 16 (a), 16 (b), for forms of oath and affirmation. (d) This may sometimes be a delicate and difficult task for the clerk, and perhaps subject him to ill-natured remarks from disap- pointed suitors and others, he should therefore be careful to '!■« THE DIVISION COURTS ACT. 63 to try such fact, and the judge may give judgment on the verdict of the jury, or may grant a new trial on the application of either party in the same way and under similar oircumstances as new trials are granted in other oases on verdicts of juries. 16 V. 0. 177, s. 11. GXXXIII. If in any case the judge is satisfied jndM may that a jury, after having heen out a reasonable time, j^^°*'JJ* cannot agree upon their verdict, he may discharge »greciDg, Ae. them, and adjourn the cause until the next oour% and order the clerk to summon a new jury for the next sitting of the court for that division, unless the parties consent that the judge may render judgment on the evidence already taken, in which case he may give judgment accordingly. 13, 14 V. c. 53, s. 38. JUDGMENTS (e) AND EXECUTIONS. (/) CroM- Judgment*. CXXXIV. If there be cross-judgments between Cross-jndg^ the parties, the party only who has obtained judg- £J'^"off?' ment for the larger sum, shall have execution and » chooae men abQve suspicion, and, if possible, strangers to the dispu- tants, or at all events, entirely unconnected with them in business or otherwise. It will not be necessary to make out a written summons. The clerk, on the verbal order of the judge, writes down the names of five persons in the court room and calls them one by one to appear and be sworn as jurors. («) As to the duration of a Divi- sion Court judgment see note to ruled (/) Before considering the sub- ject of executions generally it will be necessary to see what provision has been made to regulate any conflict which may arise as to priority between executions issued respectively from the Superior or County Courts and Division Courts ujijairiBt the same debtors. Section 266 of the Common Law Procedure Act (Con. Stat. U. C, cap. 22) enacts, that "Where a writ against the gOods of a party has issued from any of such courts, and a warrant of execution against the goods of the same party has issued from a Division Court, the right to the goods seized shall be determined by the priority of the time of the delivery to be executed of the writ to the sheriff, or of the warrant to the bailiff of the Divi- sion Court ; and the sheriff on de- mand, shall, by writing signed by him, or his deputy, or a clerk in his office, inform the bailiff of the precise time of such delivery of the writ, and the bailiff on demand shall shew his warrant to any sheriff's officer ; and such writing purporting to be so signed, and the endorsement on Ihe warrant showing tljc precise time of tlio 4 II ; !^} tr-- "!»"•#. ill-: i, 4 64 THE DIVISION COURTS ACT. then only for the balance over the smaller judgment, and satisfaction for the remainder, and also satisfac- tioD on the judgment fur the smaller sum shall b« entered ; and if both sums are equal, satisfaction shall be entered upon both judgments. 13, 14 Y. c. 53, s. 51. wbw* GXXXV. In case the judge makes an order for SSpoSra- *^® payment of money, and in case of default of ant to order, payment of the whole or of any part thereof, the party in whose favor such order has been made, may sue out execution against the goods and chattels of the party in default; and thereupon the clerk, at the exeeatlon to Ittne. delivery of the same to such bailiff, shall respectively be snfficient jus- tification to any bailiff or sheriff acting thereon." (Slightly altered by the commissioners from 20 Vic. cap. 67, sec. 24.) The question was mooted by the court in Cvllodcn v. McDowell, 1 7 U. C, Q. B. 869, but neither argu- ed nor decided, as to whether exe- cutions from Division Courts bind the debtor's property from the time of the receipt of the writ by the bailiff, or only from the time of actual seizure. Chief Justice Eob- imon said, " The writ (of execution) indeed had issued in January, but that did not signify ; it could not bind the property before it came into the bailiff's hands, — ^if, indeed it could before an actual seizure was made under it ; for it is not to be assumed that an execution from an inferior court binds from the time of its delivery to the bailiff." Under sec. 16 of the Statute of Frauds, writs of execution bind from the time of the delivery thereof to the sheriff or coroner to be executed. This provision obvi- ously applies only to writs issuing from a Superior or County Court, and does not affect Division Courts — which are inferior courts having only a statutory existence, and whose officers have only the powers expressly given by statute. She- riffs, on the contrary, are officers having great powers and privi- leges under the common law ; tlie {trovision of the Statute of Frauds n fact limited the former opera- tion of writs. There seems to be no common law right, as there is nothing in the statute which would give bailiffs power to hold goods under executions from Division Courts until they had actually taken possession of them in the manner authorized by the statute. There seems, therefore, to be little doubt, and it is the generally received opinion, that Division Court executions bind from the time of actual seizure only. A dif- ferent rule would doubtless prevail in cases of a conflict between sher- iffs and bailiffs under the enactment above referred to. But it is thought that that provision cannot have the effect of altering or interfering with the law where there is no such conffict. The law in England as to Supe- rior Court writs has been altered by a late statute, by which executions only bind the debtor's property from the time of seizure. Tl request of the pur issue under the soi one of the bailiffs 8hall levy by disi chattels of saoh p within which the money and costs from the date of tl been so ordered, i same over to the 18.53. CXXXVI. No \jieri facias or atl 1 the limits of the (g) It is a comm( I all a plaintiff has to a claim is to leav< clerk, and prove it i the trial, and that J when the proper ti «ue execution for t the judgment. Th erroneous view, am I tico would lead to ■ All that the clerk I issue execution afte req>u»t of the judgi (A) See sec. 141 and 21. (t) See sec. 161 be taken in execut The act relating not ai^thorise \\v taking put of th bailiff any person^ ed under process Division Court. 46, sec. 8, and sec {j) Various ae< provide for some bailiffs in respect delivered to thei Section ISti, and 27 & 28 Vic. cap section 71, rcfpr 6 THE DIVISION COURTS ACT,. (>5 request of the party prosocuting the order (7), shall issue under the seal of the court & fieri facias (Ji) to one of the bailiffs of the court, who by virtue thereof shall levy by distress and sale of the goods and I chattels of such party (t), being within the county within which the court was bolden, such sum of money and costs (together with interest thereon j from the date of the entry of the judgment) as have been so ordered, and remain due, and shall pay the same over to the said clerk (J). 13, 14 V. c. 53, 8. 58. OXXXVI. No writ in the nature of a writ of Writs of ;^ \Jieri facias or attachment shall be executed out ofSnMuUil^ the limits of the county over which the judge of ' t, I (g) It is a common notion that I all a plaintiff has to do to recover « claim is to leave it with th o clerk, and prove it if necessary at ! the trial, and that the clerk will, when the proper time arrives, is- I «ue execution for the amount of ' the judgment. This is quite an erroneoas view, and such a prac- I tico would lead to much mischief. All that the clerk has to do is to I issue execution after default, at the rejuett of the judgment creditor. (A) See sec. 141, and forms 20 and 21. (t) See sec. 161 as to vhat may be taken in execution. The act relating to replevin does not aqthorise the replevying or taking out of the custody qf a hailiff any personal property seiz- ed under process issueq frqm any Division Court. (See 23 Vic. cap. 46, sec. 8, and sec. 208 and note.) (;') Various sections and rules provide for some of the duties of bailiffs in respect to writs oifi.fa. delivered to them for execution. Section 136, and the late act of 27 & 28 Vic. cap. 27, inserted after section 71, refpr to the locality of his jurisdiction. Section 188. to payment of debt and costs be o e safe. Section 141, to the time of return of the writ. Sections 1 5 ) and 161 to what may be seized under it. Sections 162, 168 and 164, to proceedings to realize securities for money under seizure. Sections 166 and 166 to the sale of goods under seizure. Section 176, to interpleaders. Sections 176 to 180, to oases where rent is due the debtor's landlord. Huie 12, to returns to be made to the clerk of what may have been done under the writ. It would be impossible in a work of this nature to give even a brief outline of the various important duties of bailiffs with respect to executions, or the responsibilities they incur in performing those du- ties, (be. Such matters as do come within our design will be referred to under the appropriate sections. For further infoi'mation the reader is referred to the pages of the Up per Canada Law Journal, where the siibjccta have beon from time to time carefully and fully discus- sed, M c« THE niVIfllON COURTS A(T. If d«f«ndMnt remoTe to another county, exe> entlon ob- talnHble In such oountj. the court from whioh such writ issues has jurifidlc- tion (k). 18 V. c. 125, s. 1, middle part. CXXXVII. In cdae any person against whom i judgment has been entered up removes to aaother county without satisfying the judgment, the count; judge of the county to which such partv has removed may, upon the production of a copy of the judgment duly certified by the judge of the county in which the judgment has been entered, order an execution for the debt and costs, awarded by the judgment, to issue against such party (I). 13, 14 V. c. 63, s. 55. CXXXVIII. If the party against whom an exe- cution has been awarded, pays or tenders to the clerk or bailiff of the Division Court out of which the execution issued, before an actual sale of his goods and chattels, such sum of money as aforesaid, or such part thereof as the plaintiff agrees to accept in full of his debt, together with the fees to be levied, the execution shall thereupon bo superseded, and the goods be released and restored to such party. 13, 14 V. c. 63, s. 65. Surt?n "' CXXXIX. The clerk of any Division Court shall, whichjudg- upon the application of any plaintiff or defendaot, to pro^'* (or his agent,) having an unsatisfied judgment in his transcript favor in such court, prepare a transcript of the entry tnuasmitio ofsuch judgment (m),and shall send the same to the If defendant, before sale, pay to clerk or bailiff of court out of which eieca* tion issued, •locution to ba super- seded. (k) Except in cases where the plaintiff has brought his action in a Division Court the place of sit- ting whereof is nearest the resi- dence of the defendant, under the provisions of 27 A 28 Vic. cap. 27, (inserted after section 71,) under which circumstances the writ may be executed in the county in which defendant resides as well as in the county in which the judgment was recovered. (/) This section is practically superseded by section 189. (m) The statute from which this section is taken was passed after the publicatiun of the rules and forms, the analagons ])roceeding being that under section 137. Form 62 is given in the schedule as the form for a transcript of judgment, but has especial refer- ence to the transcript permitted by section 142. It may, however, be useful in framing a rorm for use under this section. Form 62 (a) ia given as a form in common use of a transcript of judgment from ono Division Court to another, and may be relied upon as correct, except so far as it may be necessary to make a further statement in special cases, or of any revival of the judgment under rule 67. And THE DIVISION COURTS ACT. 67 clerk of any other Division Court in any other coun- nj other ty (n\ with a cortificato at the foot thereof, signed by £0^."" tho clerk who gives the same (o), and sealed with the seal of the court of which he is clerk, and addressed to the clerk of the court to whom it is intended to be delivered, and statine the amount unpaid upon luch judgment, and the date at which the same was recovered ; and the clerk tu whom such oerti6cate is addeeRcd shall, on the receipt of such transcript and certificate, enter tho transcript in a book to be kept in bis office for the purpose, and the amount due on with respect to this rule, if a judgment is more than a year old, it would be advisable that the transcript should shew whether an instalment had been paid on the judgment, or that an execution or warrant of commitment had been issued within a year from the time of obtaining the judgment. If one or other of these facts do not appear, the clerk before acting upon the judgment should be sat- isfied that the leave of the judge in whose county the judgment was originally recovered has been ob- tained. The writer does not see why, under this section, any number of transcripts should not be sent to as many counties, in analogy to the practice in the Superior Courts of issuing aa many writs of execu- tion 08 may be required to differ- ent sheriffs. Sending a transcript of a judgment is not transmitting the judgment \tael{; and in this res- pect this section differs materially from sec. 143, which provides that a judgment may be removed from a Division Court to a County Court, and become a judgment of the latter court. The use and inten- tion of this transcript is to give the foreign clerk all necessary in- formation as to the state of the cause, 80 as to enable him to en- force the judgment in his division. In tlie Superior Courts the attorney is the person properly cognizant' in the first place, of the position of the suit, but in Division Courts his place is, in the majority of in- stances, practically filled by the clerk. Of course a plaintiff who causes several transcripts of judg- ments to be sent to different coun- ties does so at his own risk of costs, and any damages which may accrue to the debtor by such a proceeding. It is right to add, that the views here expressed are somewhat at variance with those held by some of the county judges, (n) ffot to a clerk of a Division Court in the same county. Such a mode of proceeding is not war- ranted by tne act. (o) It is the practice in some coun- ties to charge for the certificate as well as for the copy of the entry of the judgment, or the transcript, literally speaking. This it is thought, is on improper charge ; in the first place, there is nothing in the tariff that warrants the charg; ing such certificate, the allowance being merely for " every copy of judgment to another county ; and in Uie next place, the simple copy of the entry would be useless without the derk's certificate au- thenticating it. The two things are required to make up what is tecliniuully called " a transcript of judgment." m • ffl ^ V . ..ti •* ti;i :-: i- \'--i m m¥' i« '* . . I' A & 68 THE DIVISION COUJBTS ACT. the judgment according to the certificate; and all proceedings may be taken for the enforcing and col- Icoting the judgment in such last mentioned Division Court, by the officers thereof that could be had or taken for the like purpose upon judgments recovered in any Division Court Q>). 18 V. c. 125, s. 3. Konewaiof CXL. In case of the death of either or both of MM SX»th *'^® parties to a judgment in any Division Court, the of party to party in whose favor the judgment has been entered, Judgment. ^^ j^jg personal representative in case of his death, may revive such judgment against the other party, or his personal representative in case of his death, and may issue execution thereon in conformity with any rules which apply to such Division Court in that behalf (g). 13, 14 V. c. 53, s. 73. (p) More practical difficulty arises in reference to the working of the act in cases of " foreign " summonses and transcripts of judg- ments to "foreign" courts than any other. In the case of a sum- mons sent from one court to another for service, there is no provision for the receipt of the money by the foreign clerk, if a debtor should desire to pay him on the spot. The clerk, if he re' ceives it, does so as the agent of the debtor, and in case of loss, the debtor would have to pay it a second time, and would have no recourse against the clerk's sure- ties. In the same way a bailiff has no authority to receive the amount of the claim endorsed on the summons which he serves, and the debtor, if he wishes to be per- fectly safe, must bring or send the money to the clerk, or wait till the* bailiff comes with an exe- cution instead. In the case of moneys being paid to the foreign clerk by a debtor, there is no pro- vision for a return of the amount to the "home" clork, with whom t,he creditor entered liis suit, and from whom he expects to get his judgment is sent oflF, the clerk to whom it is sent must deal directly with the plaintiff. But this course presents many difficulties, and the usual practice is for the foreign clerk to return the money, together with a formal return, (see form 62 (c), one in common use,) to the home clerk. But in doing this he undertakes a money. It is thought by some that the moment a transcript of responsi- bility, and may, if the money does not arrive safely, be called upon to pay a second time. One part - of the difficulty may be obviated by obtaining the plain- tiff's signature to a request or order (form 62 (d) ) to the foreign clerk to transmit the proceeds of the execution to the home clerk. This, however, might be no pro- tection to the plaintiff, for if the clerk is not acting in accordance with or under the act, his sureties would not be liable in case of loss. iq) Rule 68 directs that the mode of reviving a judgment shall be by summons on the judgment in the nature of n sci.fa,, the pro- ceedings on which shall be the same as in ordinary cases. Forms 45, 46, 4^7, 48, 50 and 51, are the necessary forms as given in this bc'lytlf in the sdiedule. ,1 ' ♦ -1 THE DIVIfJION COURTS ACT. 69 OXLI. Every execution shall be dated on the day Execution, of ita issue, and shall be returnable within thirty ^n^'j^^^^t^,*'^. days from the date thereof (r). 13, 14 V. e. 63, awo. 8.56. GXLII. In case an execution bo returned nulla if ezeention bona, and the sum remaining unsatisfied on the^t^ta^a, judgment under which the execution issued amounts P^rtje" m<^y to the sum of forty dollars («), the plaintiff or defen- transcript, dant may obtain a transcript of the judgment from the clerk, under his hand, and sealed with the seal of the court, which transcript shall set forth (<) : r h4 (r) In the Superior Courts a writ cannot be executed after it is re- turnable, and on this principle it was decided in Weston v. Thomas, 6 U. C. L. J. 181, by Logie, Co. J., with reference to this section, that an execntion from a Division Court cannot be executed after the expir- ation of thirty days from its date. And in Duggan v. KUson, 20 U. C. Q. B. 821, it was remarked that it would be a fatal objection to the title of any purchaser at a bailiffs sale, that nothing had been done towards seizing under the writ until after it had become return- able. («) The words, " the sum remain- ing unsatisfied," clearly indicate that the $40 may be partly made made up of costs and possibly interest also, though this is not so certain. Interest accruing subse- quently to an entry of judgment is no part of tha J ndgment, although the collection of it may be enforc- ed by execution. {t) This transcript is different from that referred to in section 139, and should be carefully drawn ia accordance with the act, follow- ing as far as possible the form (No, 52) given in the schedule. Ill Farrv. Robins, 12 U. C. C, P. 35, the clerk of the Dividiou Court who made out the transcript evi- dently acted under the 139th sec- tion, aof; omitted the statement of the issuing of the^. /a.*goodsand. the return thereof. The transcript was accordingly held to be infor- mal and insufficient to support a judgment in the County Court in which it had been filed. In giving judgment, Draper, C. J., said, " The Legislature have apparently adopted the principle that an exe- cution against lands must be found- ed on a record, and as Division Courts are not courts of record, they have provided a method by which their judgments may be made records of the County Court and thereupon that executions against lands may issue. But in order that the transcript* may become a judgment of record, th^y have required that it shouW, among other things, shew the date of issuing the execution against goods, and the return to that writ, in order to avoid any conflict with or departure from the 262nd sec. of ch. 22 of Con. Stat. U. C, which . enacts that no execution shall issue against lands and tenements until the return of an execution against goods and chattels." This case was followed in Jaeomb V. Henry, 13 U. C. C. P. 377, which decided that a transcript was de- fective Hud invalid whiih did not contain a statement of the proceed- ings ia the cause. ^^ i\^M 70 THE DIVISION COURTS ACT. 1. The proceedings in the cause; 2. The date of issuing execution against goods and chattels ; and 3. The bailiff's return of nulla bona thereon, as to the whole or a part. 13, 14 V. c. 53, s. 57. Upon filing CXLIII. Upon filing such transcript in the office 5fflMo?**°of the clerk of the Counter Court in the county County where such judgment has been obtained, or in the SmeKo county wherein the defendant's or plaiuLiff's lands ofthaSurt^'^® situate, the same shall become a judgment of """^ such County Court (m), and the clerk of such County Court shall file the transcript on the day he receives the same, and enter a memorandum thereof in a book to be by him provided for that purpose, which me- morandum shall contain : 1. The names of the plaintiff and defendant : 2. The amount of the judgment ; 3. The amount remaining unsatisfied thereon ; and 4. The date of filing; For which services the clerk of the County Court shall be entitled to demand and receive from the person filing the same the sum of fifty cents. 13, 14 V. c. 53, s. 57. County ' CXLIV. Such book shall at all reasonable hours b^.'kV i^' ^® accessible to any person desirous of examining accusBibie. the same, upon the payment to the clerk of ten cents. 13, 14 V. c. 53, s. 57. Parties may CXLV. Upon such filing and entry the plaintiff Judgment in 0^ defendant may, until the judgment has been fully County paij and satisfied, pursue the same remedy for the recovery thereof, or of the balance due thereon, as if the judgment had been originally obtained in the" County Court (y). (tt) See section 145. {v) Section 143 provides, that upon filing the required tranBcrijjt in the office of the County Court the Division Court judgment shall become a judgment of such County Court, and directs the clerk of the latter court to make certain entries in a book to be ])rovided for that purpose ; and this section enacts, THE DIVISION COURTS ACT. 71 CXLVI. [Repealed by 24 Vic. cap. 41, sec 2.] Certificate for '-'■'' * -■ registration. NEGLECT OP DUTY BY BAILIFFS IN RELATION TO EXECUTIONS, AC. CXLVII. In case any bailiff employed to levy an if bailiffs execution against goods and chattels, by neglect, J^^'*^ *'***' connivance or omission, loses the opportunity of so relation to doing (to), then upon complaint of the party thereby "®<'""<»°- aggrieved, and upon proof by the oath of a credible witness of the fact alleged to the satisfaction of the court, the judge shall order the bailiff to pay such damages as it appears the plaintiff has sustained, not exceeding the sum for which the execution issued, and the bailiff shall be liable thereto; and upon demand made thereof, and on his refusal to satisfy the same, payment shall be enforced by such means as are provided for enforcing judgments lecovered ia the court (x). 13, 14 V. c. 53, s. 101. that upon such filing and entry the plaintiff (or defendant) may pursae the same remedies thereon as if the judfjjment had been oric;i- nally obtained in such County Court. A judgment cannot be a judg- ment of two courts at the same time, if, therefore, a judgment, which was originally a judgment of a Division Court, has " become a judgment of a County Court," it necessarily ceases to be a judgment of the former court, and all pro- ceedings to enforce it must there- fore be taken in the latter court. What these proceedings are it is not our province at present to discuss, it may however be noticed, that it has been decided under these sections that a judgment debtor is bound to appear and be examincf^ as to debts and liabili- ties, Ac, under Con. Stat. U. C. ch. 24, sec. 41, and may be im- prisoned upon default, (Kchoe v. Brown, 13 U. C. C. P. 64!),) ami it is a matter of every day practice to obtain garnishing orders on sucb judgments. {w) This section applies where the bailiff has lost the opportunity of making the money on an execu- ♦'on. Section 148 where the bai- liif neglects duly to return any execution or makes a false return thereto; and section 185 to cases where the bailiff has made the money but has not paid it over. (a;) This is a summary remedy against the bailiff, entirely irres- pective of the right of an aggriev- ed party to sue the bailiff and his sureties on the security cove- nant, referred to in sections 24 and 25. The plaintifTs course under this section would be, to make a plain statement of the facts and hand the same to the clerk to be served on the bailiff, and produced before the judge on the next cou»** day, or such day as he might appoint for hearing the matter ; on which day the plaintiff should be in at- tendance with his witness or wit- t'i 72 Action against bailiff and sureties for neglect of bailiff in returning execution. Execution may issuo (nstanter, nnd if bailiff bun removed, hia Kureties iievertlielesf liable. The intereBt of a mort- gngor in goodH mort- gaged may be Bold in execution. THE DIVISION COURTS ACT. CXLVIII. If any bailiflF neglects to return any execution within three days after the return day thereof, or makes a false return thereto, the party who sued out such writ may maintain an action in any Court having competent jurisdiction against such bailiff and his sureties on the covenant entered into by them, and shall resover therein the amount for which the execution issued, with interest thereon from the date of the judgment, or such less sum as in the opinion of the judge or jury the plaintiff under the circumstances is justly entitled to recover. 13, 14 V. 0. 63, 8. 69. GXLIX. If a judgment be obtained in such suit against the bailiff and his sureties, execution shall immediately issue thereon, and in case of the depar- ture or removal of such bailiff from the limits of tho county, the action may be commenced and carried on against his sureties alone, or against any one or more of them. (^) CL. On any writ, precept or warrant of execution against goods and chattels, the sheriff or other officer to whom the same is directed, may seize and sell the interest or eqrity of redemption in any goods or nessfes to prove his case ; thobailifF and hia witnesses would then be Iieard, and if tho complaint was suatained an order would be made on the bailiff to pay such damages to the plaintiff, as the judge might think proper, and that in default thereof execution should issue against the bailiff. The plaintiff should then have a copy of this order served upon the bailiff, and at the same time demand from him the amount mentioned in the order (or what would be better, endorse on the order and copy a demand for the amount). Upon the refusal of tho bailiff, or his neglect, which would amount to the same thing, to satisfy the demand, the plaintiff siiould go to the clerk witli tho person who served tho order and made the demand, himself to make an affidavit thatthe bailiff had not paid the amount, and that it was still due to him, and the person effecting service and making de mand to make an affidavit of such facts, upon which the clerk would be justified in issuing an execution against the bailiff for the amount due. As the proceedings under this act are somewhat complicated and difficult, parties usually find it more to their advantage to pro- ceed by ordinary action against the officer and his sureties on the covenant. (//) Tliese very stringent pro- visions are intended for ensuring promptitude on the part of bailiffs in acting on executions placed in their iiauds, and if more generally known to suitors wo^ild be in/),n'. eilicacious. THE DIVISION COURTS ACT. 78 chattels of the party against whom the writ has issued, and such sale shall convey whatever interest the niort<;agor had in such goods and chattels at the time of the seizure («). 20 V. c. 3, s. 11 ; and see 12 V. c. 73, 8. 1. CLI. Every bailiff or officer having an execution vvhatmftybe agr'nst the goods and chattels of any person, may by IxmuHoq **' virtue thereof seize and take any of the goods and ^^""5^^ chattels of such person (a) [excepting those which chattb... (2) " If the mortgagor ia in possession there can be no ques- tion that the sheriff [bailiff] may seize the corpus of the projjerty [that is to say may make an actual seizure of it], and the interest of the mortgagor, together with the possession, would pass to the sherifTs vendee upon a sale made by him, and such purchaser would be subject to the rights of tlie mortgagee whatever they might be." {Burns, J., in Sguair v. Forbme, 18 U, C. Q. B. 547.) But 'if the mortgagee is in possession, the bailiff, although he appears to have the right to seize and expose the goods, in order effectually and advantageously to make sale of the equity of redemption, cannot sell the goods themselves or take them from the custody of the mortgagee and transfe* them to tlie purchaser. {lb. ; Swift et al. V. Cobourff and Pctcrhoro' R. W. Co., 5 U. C. L. J. 258.) In case of the sale of an "intcr- ,cstor equity of redemjition" in any goods, the builifFs advertisement aud proceedings should show tho fact clearly, and should refer to the chattel mortgage. Tlie interest of a mortgagee in goods is not an interest tliat can be sold under an execution. ( 7*17-- rie V. Cleghorn, 19 U. C. Q. E. 241.) («) That is to s-ay, the personal goods of the debtor; that is, as is said in Duggan v. Ktison, 20 U. C. 7 Q. B. 5} 16, "such chattels as are subject to distress and sale under warrants from justices or courts of inferior jurisdiction, and under by-laws or otherwise ;" in fact, " such things as he can deliver over to the purchaser, or such things as the latter part of the section expressly authorizes the seizure of," not mere claims or de- mands, or choses in action, which are not assignable or liable to seizure. The section does not authorize the seizure and sale of chattels real, as, for instance, a a lease or term of years, (/i.) But it would seem to include all instruments containing an uncon- ditional covenant to pay a specific sum to the judgment debtor for his ov/n benefit. In Calvcrhj v. Smith, 3 U. C. L. J. G7, the defendant, acknowledg- ing the correctness of the plaintiff's claim as to part, paid that sum into court. A Division Court bailiff, who held an execution against the plaintiff, was purposely present when the money was paid in, and seized it, after it had been laid on the table before the clerk, and receipt given for it to the de- fendant's attorney. The court held the seizure illegal, saying that under tho act the bailiff, etc., could only seize money which is in the hands of the defendant, and not in the hands of a tliird party. Ml \ • V Y 'V-^ ili 74 'I'lIK DIVISION COURTS ACT. are by law exempt from seizure (?>),] and may also seize and take any money or bank notes, and any cheque?, bills of exchange, promissory notes, bonds, specialities or securities for money, belonging to such person. 13, 14 V. c. 53, s. 89. (6) The words between brackets nre substituted by 28 Vic. cap. 26, sec 2, for the words " the wearing apparel and bedding of such per- son or his family, and the tools 0nd implements of his trade to the value of twenty dollars, which shall to that extent be protected from the seizure," which are the words of the original act. The articles now exempted from seizure by the fourth section of the same act are : 1. The bed, bedding and bed- steads in ordinary use by the debtor and his family. 2. The necessary and ordinary wearing apparel of the debtor and his family. 3. One stove and pipes, and one crane and its appendages, and one pair of andirons,Jone set of cooking utensils, one pair of tongs and shovel, one table, six chairs, six knives, six forks, six plates, six teacui>s, six saucers, one sugar basin, one milk jug, one teapot, six spoons, all spinning wheels and weaving looms in domestic use, and ten volumes of books, one axe, one saw, one gun, six traps, ond such fishing nets and seines as are in common use. 4. All necessary fuel, meat, fish, flour and vegetables, actually pro- vided for family use, and not more than sufficient for the prdinary consumption of the debtor and his family for thirty days, and not exceeding in value the sum of forty dollf.. s. 6. One cow, four sheep, two hogs and food therefor for thirty days. 6. Tools and implements of, or chattels ordinarily used in, the deb. tor's occupation to the value of $60. By the fifth section none of the articles mentioned in sub-sees. 3, 4, 6 and 6, are exempt from seizure in satisfaction of a debt contracted for such identical article, and by section 6 the debtor may select out of any larger number the several chattels exempt from seizure under the act. This act was amended by 24 Vic. cap. 27, sec. 2, which pro- vides, that " notwithstanding any. thing contained in the act of 23 Vic. cap. 25, the various goods and chattels which were, prior to the passing of the last mentioned act, liable to seizure in execution for debt in either Upper or Lover Canada, shall, as respects debts contracted before the 19th of May, 1860, remain liable to seizure and sale in execution, provided that the writ of execution under which they are seized shall have endorsed upon it a certificate, signed by the judge of the court out of which the suit issues, certifying that it is for the recovery of a debt con- tracted before the date above mentioned." In the course of a short time the reason and benefit of this act will cease, it will not therefore be necessary to refer at length to its provisions. It was held in Davidson v. Hey- nolds, 16 U. C. C. P., that a horse, sleigh, and harness of a farmer, ordinarily used ia his occupation, under the value of $60, were ex- empt under sub-sec. 6. THE DIVISION COURTS ACT. 75 CLII. The bailiff shall, for the benefit of the bsIiiit to plaintiff, hold any cheques, bills of exchange, pro- Jot^f H?' missory notes, bonds, specialities, or other securities "eized uDder for money so seized or taken as aforesaid, as a secur- for^n°flt of ity for the amount directed to be levied by the p''''"*'*^- execution, or so much thereof as has not been otherwise levied or raised, and the plaintiff, when the time of payment thereof has arrived, may sue in the name of the defendant, or in the name of any person in whose name the defendant might have sued, for the recovery of the sum or sums secured or made payable thereby (c). 13, 14 V. o. 53, s. 90. J ■ il' 'I m The arras, &c., of officers and men of volunteer corps are exempt from seizure in execution. (27 Vic. cap. 3, sec. 12.) Bees reared and kept in hives are exempt from seizure for debt, or for the discharge of any liability whatsoever, except the amount of their purchase money. (28 Vic. cap. 8, sec. 2.) The statute of 23 Vic. cap. 25 does not bind the Crown. {Reg. V. Davidson, 21 U. C. Q. B. 41.) As to exemptions when the defendant absconds from the Pro- vince. In certain property, which had been left by the defendant on his absconding from the Pro- vince in the possession of his wife and family, and all of which would, under ordinary circum- stances, have been exempt, was seized under the writ. The wife claimed the goods, and the ques- tion was submitted to the court, whether or not this exemption could be claimed by the wife, the defendant at the time being an absconding debtor. Bobinsoti, C. J., said, *' It is my opinion at pre- sent, looking at the whole statute, 23 Vic. cap. 26, that when a debtor has absconded from his dwelling in this Province, the bed, bedding, Ac, which would have been ex- empt from execution against him in ordinary cases, if lio had been residing with his family, will not be exempted when they are no longer in his use, but only in the use of his family whom he has left behind. There are several ex- pressions in the statute which lead to that conclusion, but perhaps on further consideration I might come to a different conclusion on that point, though it is material to consider that in cases of attach- ment against theii'onils of abscond- ing debtors therf i no exemption." This judgment ni's not given with any reference to the Division Courts Act, and the words in sec- tion 199 which empower the bailiff to make the seizure of the abscond- ing debtor's goods, are "all the personal estate and effects, Ac, liable to seizure under execution for debt." It may therefore be doubted whether the same conclusion would have been arrived at, if the ques- tion had come up on an execution issued from a Division Court. See section 1*76, as to whether the exemption given by the sta- tute doas or does not operate to exempt from seizure and sale the goods of a debtor in cases where his landlord has made a claim for rent under that section. (c) There is nothing in this sec- tion to warrant a practice which is said to prevail in soivr courts of suing in the name of the j)kiMi- 76 THE DIVISION COURTS ACT. Defendant CLIII. The defendant in the original cause shall SuSot to "0*^ discharge such suit in any way without the con- (Hjwharge sent of the plaintiff or of the judge. 13, 14 V. c. ■"'*• 53,8.90. The party CLIV. The party who desires to enforce payment TSl^mvMt 0^ ^^y security seized or taken as aforesaid, shall secure coats, first pay or sccure all costs that may attend the pro- ceeding (d), and the moneys realized, or a sufficient part thereof, shall be paid over by the officer receiv- ing the same to apply on the plaintiff's demand, and the overplus, if any, shall be forthwith paid to the defendant in the original suit, under the direction of the judge. 13, 14 V. c. 63, s. 90. Bailiff after CLV. The bailiff, after seizing goods and chattels gowiB'to'' ^y virtue of an execution, shall indorse on such Orerplns. tiff, or in fact in the name of any assignee, of ordinary book debts or other choses in actions of that nature. The action must be brought in the name of the defend- ant, and the notice required by rule 19 must be given on the summons to appear to warn the person liable on any such securi- ties, that the amount due must be paid to the beneficial plaintiff. But the defendant must, of course, in such cases, take any exception as to parties at the trial. This provision is different from the analogous proceeding in the Superior Courts, where tlie action may be brought in the name of the sheriff. See the case of McDonald v. McDonald et al.,2l U. C. Q. B. 52, as to the pleadings and evidence in actions brought in a Superior Court under these sections. (d) This is rather indefinite, and is remarked upon in McDonald v. McDonald et al., ante, where liob- inson, C. J., says, " I suppose it means what is not stated, that the payee or holder of the note, Ac, whose name is to be used in the action, as plaintiff, must be secured against liability for costs, if the defendant should succeed in the action. It may, however, mean that the real plaintiff shall make the defendant secure as to his costs, in case the action shall fail, for the person whose name is used may be worth nothing, and he is not in fact the real plaintiff ; or it may mean that both are to be secured in the costs, for the ex- pression is very general — that the person who desires to enforce pay- ment, (who may bo either tlie bailiff or the execution plaintiff,) shall first pay or secure, . ijr IMAGE EVALUATION TEST TARGET (MT-3) .V 4^ ^ 1.0 I.I 121 ISO Ki 2.2 ^ 1^ 12.0 us 11-25 i 1.4 III 1.6 6" ^ ^J> ^^' ^ PhotograiJiic Sciences Corporation 23 WIST MAIN STRUT WiBSTn,N.Y. MSSO (716)872-4303 .^ ^ ^ & 80 THE DH'TSION COURTS ACT. be examined upon oath, touchinjaj the enquiries authorized to bo made as aforesaid. 13, 14 V. c. 53, 8. 91 ; 16 V. c. 177, s. 30 ; 22 V. c. 33, a. 22. Theexarnin- CLXII. The examination shall be held in the iu'iadgo'a judgc's chamber, unless the judge shall otherwise «*^'»'- direct (o). 22 V. c. 33, s. 23, 1859. The costs CLXIII. The costs of such summons and of all proTiUea for. proceedings thereon, shall be deemed costs in the cause, unless the judge otherwise directs (;>). 16 V. c. 177, s. 30 ; 13, U V. c. 53, s. 91.. •• iur ^,. Party exam- ined and discharged not to be again aum- moned. except, &c. Conseriiience of ni'itlt'ct or rerui-al to attend, CLXIV. In case a party has, after his examina- tion, been discharged by the judge (j), no further summons shall issue out of the same Division Court at the suit of the same or any other creditor, withoat an affidavit satisfying the judge upon facts not before the court upon such examination, that the party had not then made a full disclosure of his estate, effects and debts, or an affidavit satisfying the judge that since such examination the party has acquired the means of paying. 22 V. c. 33, s. 23, 1859. CLXV. If the party so summoned, 1. Does not attend as required by the summons, or allege a suf- ficient reason for not attending ; or 2. If he attends and refuses to be sworn or to declare any of the things aforesaid ; or 3. If he does not make answer touching the same to the satisfaction of the judge; (o) The object of this provision is to obviate any unnecessary ex- posure and annoyance consequent upon an examination in open court. It would, however, be both useless and cruel to insist upon the attend- ance of a debtor before the judge at his chambers in the county town, it is therefore the usual practice for iudges to direct that these examinations shall take place in tlie court room of the court from whence the summons issues, or in some convenient place in the neighbourhood after the rest of the business is dispos- ed of. (p) There is no provision made for the payment of the debtor's expenses to the place of examina- tion. In the Superior courts some of the judges consider it only rea- sonable that such expenses shonld be paid, but it is not the usual practice to do so in Division Courts, and the latter part of sec- tion 1(56 seems to intimate that such payment is not contemplated by this act, (q) That is, discharged as not being in a position to make any payment on the judgmont recover- od against him. TIIE DIVISION COURTS ACT. 81 or 4. If it appear to the judge either by the exam- ination of the party or by other evidence, [a] that the party obtained credit from the plainti£f or incur- red the debt or liability under false pretences, or ft)] by means of fraud or breach of trust, or [c] that he wilfully contracted the debt or liability without hav- ing had at the time a reasonable expectation of being able to pay or discharge the same, or [d] has made or caused to be made any gift, delivery or transfer of any property, or has removed or concealed the same with intent to defraud his creditors or any of ' them ; or 5. If it appears to the satisfaction of the jadge that the party had when summoned, or since the judgment was obtained against him, has had suf- ficient means and ability to pay the debt or damages, or costs recovered against him, either altogether or by the instalments which the court in which the judgment was obtained has ordered, and if he has refused or neglected to pay the same at the time ordered (r), whether before or after the return of the summons, — the judge may, if he thinks fit, order such party to be committed to the common gaol of the county in which the party so summoned resides or carries on his business, for any period not exceed- ing fortv days («). 16 V. c. 177, s. 30; 13, 14 V. 0. 58, s.'92. CLXVI. A party failing to attend according to in what the requirements of any such summons as aforesaid, the^part'/ shall not be liable to be committed to gaol for the summoned default, unless the judge is satisfied that such non-mittedfor"*' attendance is wilful, or that the party has failed to »oo»ttend- (r) Either at the time judgment was given, or by any subsequent order under sec. 1 70. (s) But it appears to bo neces- sary that the debtor should bo called upon by summons to shew cause why he should not be committed to gaol for having made default in his payments; and tipon the return of this sum- mons the judge is to use his dis- cretion, and refuse to commit if any sufficient cause is shewn. (See Harper v. Carr, 1 T. R, 270 ; Kinning v. Buchanan, 8 C. B. 271 : 1 C. C. C, 504 ; Ex parte Kinning, 4C. B. 507; IC. C. C. 17.) A form of this summons is given in the schedule. No. 55 (a), being taken from one prepared by the late Judge Campbell. f ; ,'1 ii j 1; lill X- "'*'■• u si; ■'I 82 THE DIVI8I0N COURTS ACT. Commitment in ease of rtfrasal. anco : coRtH attend aftcr being twice so summoned (/), and if at "n wruin™ '^^ hearing it appears to the judge, upon the exam, ca^ea. ination of the party or otherwise, that he ought not to^have been so summoned, or if at such hearing the judgment creditor does not appear, the judge shall award the party summoned a sum of money by way of compensation for his trouble and attendance, to be recovered against the judgment creditor in the same manner as any other judgment of the court. 22 V. 0. 33, s. 21, 1859. CLyVII. Whenever any order of commitment as aforesaid has been made, the clerk of the court shall issue, under the seal of the court, a warrant of com- mitment (u) directed to the bailiff of any Division Court within the county, and such bailiff may, bj virtue of such warrant, take the person against whom the- order has been made. 13, 14 V. c. 53, s. 95. GLXYIII. All constables and other peace officers within their respective jurisdictions shall aid in the execution of every such warrant, and the gaoler or keeper of the gaol of the county in which such war- rant has been issued, shall receive (v) and keep the defendant therein until discharged under the provi- sions of this act or otherwise by due course of law. 13, 14 V. 0. 53, s. 95. GLXIX. Any person imprisoned under this act, who has satisfied the debt or demand, or any instal- di^charged. j^ient thereof payable, and the costs remaining due Constables, &e., to execute warrants. When debtor in custody shall be (0 If the debtor does not ap- Eear upon the first summons, the urthen of proof lies upon the creditor desiring to have him com- mitted to shew that sach non- attendance has been " wilful ;" but the failure to attend on being summoned a second time raises the presumption that such non- attendance was " wilful," thereby subjecting the debtor to punish- ment for non-attendance, (u) See forms 66 and 67. By rule 65 warrants of commit- ment shall bear date on the day on which the order for commitment was entered in the procedure book, and shall continue in force for three months. By rule 10 the clerk issuing the warrant must endorse upon it the amount of debt and costs, in gross, up to the time of its delivery to the bailiff for execution. (w) Rule 13 requires the bailiff, when he delivers the person arrest- ed to the gaoler, with the warrant, to indorse the number of miles, shewing the amount of mileage, and also to state in writing tiie actual <''\y of the arrest. THE DIVISION COURTS ACT. 83 at the timo of the order of imprison ment being made, together with the costs of obtaining such order, and all sabsequent costs, shall, upon the certificate of such satisfaction, signed by the clerk of the court, or by leave of the judge of the court in which the order of imprisonment was made, be discharged out of custody. 13, 14 V. 0. 58, s. 99. GLXX. The judge, before whom such summons Judges may ia heard, may, if he thinks fit, rescind or alter any ^a^a?" order for payment previously made against any ] >> . i CLXXV. la case a claim be made (z) to or in ciaimR of respect of any goods or chattels, property or securi- JjJSdl,"2iMd ty, taken in execution or attached under the process |u executioo, of any Division Court, or in respect of the proceeds adjusted, or value thereof, by any landlord for rent, or by any person not being the party against whom such pro- cess issued (a), then, subject to the provisions of the " Act respecting absconding debtors,'' the clerk of the court, upon application of the officer (&) charged with the execution of such process may, whether before or after the action has been brought against such officer, issue a summons calling'before the court oat of which such process issued, or before the court holden for the divii.ion in which the seizure under such process was made, as well the party who issued such process as the party making such claim (c), and (z) There ia nothing in the act expressly requiring a claimant to make his claim in writing, except a landlord under section 176, but such a coarse would be most ad- visable for all parties concerned. The claim should state not only that the goods seized are those of the claimant and not of the execu- tion debtor, but also in what way the party claims. {Ez parte Harper et a/., 4 C. C. C. 115.) See form 27 fa), as to this notice of cliaim. (a) No application for an inter- pleader can therefore be made until a claim has been made by a third party after an actual seizure of the goods. (6) This application should be in writing, addressed to the clerk, and should contain, as fully as pos- sible, all the facts with reference to the seizure and claim that are referred to in the form which is fluppliod. No. 27 (b). An interpleader summons issu- ed by a clerk without a previous request by the bailiff would be irregular if not void. (Req. v. Doty, 13 U. C. Q. B. 898. ' (c) An interpleader issue is not strictly a suit or action, it is in fact an interlocutory proceeding in another suit, wherein the court is subsequently to act in disposing of the rights of parties. The par- ties concerned are, the claimant, who is deemed the plaintiff, and the execution creditor, who is deemed the defendant (see rule 58), in the issue that is to be tried for the purpose of ascertaining which of them — claimant or judg- ment creditor — is entitled to the goods under seizure. The provisions of this section are intended solely for the protec- tion of bailiffs, though the bailiff is not bound to take advantage of them, and in many cases when he finds upon enquiry that the claim set up is clearly fraudulent, or with- out a shadow of right, he would not do so; and in such a case he might safely take a sufficient in- demnity from the plaintiff and pro- ceed to sell. If, however, he finds it necessary for liis protection to take out an interpleader summons, he should be prompt in making his 1 -fr: r m 86 THE DIVISION COURTS ACT. wbenac- thereupon any action vrhich has been brought io any SuSrio/*" of Her Majesty's Superior Courts of Record, or in a Coururtw- local or inferior court in respect of such claim, shall royw? **** be stayed ( acter of the parties and the nature of the goods will generally be a guide to him. In Harmer v. Cowan, 23 U. C. Q. B. 479, the defendant, a bailllf, seized certain goods under an exe- cution, which were claimed by the plaintiff. The bailiff, intending to apply for an interpleader summons, sold the goods subject to the claim. The price of the goods was not paid to the bailiff, and they were to remain in his custody until judgment should be given on an intended interpleader application, which was subsequently adjudi- cated upon. Hagarty, J., said, " However we may be inclined to agree with the plaintiff that a bailiff cannot make a conditional sale, we do not see how we can therefore turn his objectionable proceedings into an absolute sale, vesting the property in his ven- dee. We incline to consider the sale wholly nugatory, and that the execution was not executed, and the goods still remained in the words of the act, ' taken in execu- tion,' " Ac. {d) This application must be made to the court, or a judge of the court, in which such action is pending. Delay in making the application will not, it is said, de- prive the applicant of his rights, but will influence the court as tfl costs. ( Washington v. Webb, 16 U. C. Q. B. 232.) The questions that arose in seve- ral cases as to the position of the THE DIVISION COURTS ACT. 87 has been broujjht, or any judge thereof, Ofi proof of matter may the issue of such summons, and that the goods and ** '"*^*"*' chattels, or property, or security, were so taken in execution or upon attachment, may order the party bringing such action to pay the costs of all proceed- ings had upon such action after the issue of such summons out of ;the Division Court, and the county jadge having jurisdiction in such Division Court shall adjudicate upon the claim (e), and make such J ■ parties when the goods had been replevied from a oaiiiff under a Superior Court writ, are set at rest by the enactment of 23 Yic. cap. 46, sec. 8, that goods taken under process from a Division Court can< not be replevied. (See that sec- tion, and notes to it, in another place under the head of " Replevin in|Division Courts.") The court will not interfere if it appears that the Division Court judge has not awarded damages to the claimant for the seizure by the execution creditor. {Mercer V. Stanberry, 4 W. 11. 649 ; 2 U. C. L J. IVY.) An application under the sec- tions from which the one before US is compiled, was objected to on the ground, that although the in- terpleader was fully heard before the Division Court judge, no judg- ment was then given, nor was any subsequent day appointed for giv- ing judgment according to section 106, and that therefore there was no binding decision in the court below, whereby the action of the claimant against the bailiff for trespass in seizing his goods could be stayed. Draper, J., said, " On the face of the judge's adjudication there is nothing but what he had authority to do, and I do not feel at liberty to enquire, on this appli- cation, into the regularity or mode of the proceedings themselves which end in this adjudication." {Flnlayson v. Howard, 1 U. C. Pr. R. 224 ; 1 U. C. L. J. 94.) Rule 63 provides, that by con- sent an interpleader claim may be tried, though the requirements of the rule as to certain proceedings have not been complied with. (e) It was held in the late case of Munaie v. McKinley, 15 U. C. C. P. 60; lU. C. L. J., N. S. 12; 1 L. C. G. 8, that the words, ■■ The county judge, Ac, shall ad; . io.ate upon the claim," are impe; Ive, upon the judge to decide aii in. terplcader issues without the aid of a jury. It is submitted that there are other and stronger rea- sons than the mere words of the section above referred to, why a jury could not be called in inter- pleader issues by either one of the parties to the suit', such as, amongst others, the provisions as to jury cases under sections 119, <&c. The words referred to in the above judgment, are not very different from those in section 66, which certainly do not mean that juries cannot be had in ordinary cases ; and it may be remarked that the words, " the county judge having jurisdiction in such Division Court shall adjudicate upon the claim," are used in contradistinction to the application to bo made to a different court or judge in the previous part of the section. (See Washington v. Webb, iC U. C. Q. B. 232.) 5!' "i*'")*, ( »' '1* ^' V III 'j: ^1 : i % 88 THE DIVISION COURTS ACT. order between the parties in respect thereof, and of the costs of the proceedings, as to him seems fit, and such order shall be enforced in like manner as aa order made in any suit brought in such Division Court, and shall be final and conclusive between the parties. 13, 14 V. c. 53, b. 102 ; 16 V. c. 177, s. 7 ; 19 V. c. 43, s 56. RiaHTS OF LANDLORDS PROTECTED. ProTliiloni reUtlon to ronta due landlords. In CLXXVI. So much of the act passed in the to eighth year of the reign of Queen Anne, intituled, An Aft for the better security of rents and to pre- vent frauds committed hy tenants (/), as relates to the liability of goods taken by virtue of any execu- tion, shall not be deemed to apply to goods taken in execution under the process of any Division Court, but the landlord of any tenement in which any such goods are so taken, may, by writing under his hand, or under the hand of his agent, stating the terms of holding, and the rent payable for the same (g), and delivered to the bailiff making the levy, claim any rent in arrear then due to him, not exceeding the rent of four weeks when the tenement has been let by the week, and not exceeding the rent accruing due in two terms of payment where the tenement But however this may be, it is a very common and a very con- venient practice, and one which has received the sanction of some of the best of our county judges, for the judge to call to his assist- ance a jury under the provisions of section 182, to try "any fact controverted in the cause," adopt- ing or not their finding is his dis- cretion. This section does not appear from the report of Munsie V. McKirdcy, to have been referred to, either by the court or by coun- sel, on the argument. it is rather remarkable, that in this case no reference was made to the fact that a new trial had been granted by the judge of tlie Divi- sion Court, whereas it was decided in Reg. v. Doty, 13 U. 0. Q. B. 398, referred to in note (I) to section 107, that under such circumstances no new trial could be had. If this was not an oversight it would be an argument that the Court of Common Pleas did not agree with the Queen's Bench on this point. (/) Section 1 of this act (8 Anne cap. 14) provides that no goods shall bo taken in execution unless the execution creditor, before re- moval of the goods, pays to the landlord the rent due. But it will be seen that the following sections are substituted for the provisions of the statute of Anne. {g) See form 32 (a). ,., ,. bailiff's right to THE DIVISION COURTS ACT. 89 bas been let for any other term lesi than a year, and DOt exceeding in any case the rent acoruing due ia one year (A). 16 V . c. 177, s. 0. CLXXVII. In case of any such claim being 8oH»jfth^ made, the bailiff making the levy shall distrain as proovMi. well for the amount of the rent claimed, and the coats of such additional distress, as for the amount of money and costs for which the warrant of execu- tion has issued, and shall not sell the same, or any part thereof until after the end of eight days at least uext following after such distress taken. 16 V. c. 177, s. 6. (A) The exemption act (see sec* I tion 151 and notes) only relates to ! the seizure of eoods under a writ. It may be said, therefore, that \ these exemptions do not touch the case of a distress under a landlord's warrant, and it has been decided in Endand that if the proper claim be maae by a landlord, the bailiif may I distrain on goods that would be exempt from seizure under an exe- cution ( Woodcock y. Pritchard, 17 L. T. Rep., Q. B. 16) ; and section 179, which recognises the right of replevin in these cases, coupled with the subsequent act of 23 Vic. I cap. 46, sec. 8, supports this view. The act under which this case was decided did not contain, if it would malce any difference, any provision limilar to that of section 180. Woodcock V. Pritchard does not appear to have been expressly I Averruled ; but, on the other handf, the later cases of Beard v. Knight, 27 L. J., Q. B. 869 ; 4 Jur., N. S. 782, and Wilcoxmi v. Searly, 29 L. J. Ex. 164, to tlie effect, that the goods of a stranger on the pre- mises, which, as a general rule, are liable for rent in arrear, are notdistrainable under this section, are sufficient to found a strong argument against the former case, combined with the fact, that tlie bailiff's right to levy is derived 8 solely from the writ of execution, unless indeed it can be considered that he becomes, upon receiving the notice of claim, the bailiff of the landlord as well as of the court issuing the writ, as was sug- gested in Woodcock v. Pritchard. But again, can the mere direc- tion of section 177, that " the bailiff making the levy shall distrain as well for the amount of the rent claimed," «bc., make the bailiff enforcing the execution the bailiff of the landlord. It was necci^sary that such or similar words sliould be used for the purpose of direct- ing the bailiff to increase the amount of his levy, but the writer thinks it would require more ex- plicit words to clothe the bailiff with powers which he could only receive under his common law right from the landlord himself. The principle would seem to be, that the bailiff's right to levy arises by virtue of the execution, under which it is his duty to levy the debt out of certain of the debtors goods. Upon the claim being made for rent, the statute steps in and authorises him to make a further levy to satisfy the further demand, but his position as the bailiff of the court is not altered, and he is still acting under the writ of exectUum. r r I, I i n^ 90 THE DIVISION COURTS ACT. If roploTiu inada. Fowofbaiiiir CliXXVIII. For every additional distress for inH.KhcasoB.y^„^ in arreur, the bailiff of the cjurt shull bo enti. tied to have as the costs of the distress, instead of the fees allowed by this act, the fees allowed by tho act rei}icctin(j distrcascs for smalt rents and penal ties{i). lO'V. c. 177, 8. 6. GLXXIX. If any replevin bo made of the goods distrained, so much of the goods taken under the warrant of execution shall be sold, as will satisfy the money and costs for which the said warrant issued, and the costs of the sale, and the surplus of such sale, and the goods so distrained, shall be returned as in other oases of distress for rent and replevin thereof (J). IG V. o. 177, s. 6. CLXXX. No execution creditor under this act Kont'iJu» shall be satisfied his debt, out of the proceeds of be first paid, such exccution and distress, or ;,of execution only where the tenant replevies, until the landlord who conforms to the provisions of this act has been paid the rent in arrear for the periods hereinbefore men- tioned (A). 16 V. c. 177, 8. 6. When land- (»■) Con. Stat. U. C. cap. 123. The fees under this act are as follows : Levying distress under $80, one dollar. Man keeping possession, per diem, seventy-five cents. Appraisement, whether by one appraiser or more, two cents in the dollar on the value of the goods. If any printed advertisement, not to exceed in all one dollar. Catalogues, sale, commission and delivery of goods, five cents in the dollar on the net produce of the sale. Bailiffs have no right to charge poundage in cases of this kind. See Murray v. McNair, 2 L. C. G. — . Under section 11 of this act, every person who makes a distress shall give a copy of the demand, and of tho costs and charges of the distress, signed by him, to the person whose goods are levied upon. The strict letter of this would not include, perhaps, bail- iffs acting under sections 176 and 177, but it would be advisable for them as a rule to do the same thing. {j) Section 8, of 23 Vic. cap. 46, provides that the act relating to replevin shall not authorize the replevying out of the custody of a bailiff any personal property seized under Division Court pro- cess ; but this section is to be read as part of the Division Courts Aci, and a fair construction must if possible be placed upon both enactments; it is therefore thought that the lato act does not touch cases where the bailiff distrains for rent as well as on an execution. {k) The landlord, therefore, un- less the goods are replevied, is to be paid firat, and any balance is to go to the execution creditor ; anything more than this must, of course, oe returned to the debtor. THE DIVISION COURTS ACT. 91 PENAL CLAUSES. CLXXXI. Every person who forges the seal or Forgery of any process of the court, or who serves or enforces ^eai, proo«M, any such forced process, knowing the same to bo forged, or delivers or causes to be delivered to any person any paper falsely purporting to bo a copy of a process of the court, knowing the same to be false, or who knowingly acts or professes to act under any fulse color of process of the court, shall be guilty of felony (0. 13, 14 V. o. 53, s. 86. CONTEMPT OP COURT. CLXXXII. If any person wilfully insults the ^°^™p* ^' judge or any officer of any Division Court during his flitting or attendance in court, or interrupts the pro- ceedings of the court, any bailiff or officer of the court may, by order of the judge, take the offender into custody, and the judge may impose upon the offender a fine not exceeding twenty dollars, and in default of immediate payment thereof, the judge may by warrant under his hand and seal commit the offender to the common gaol of the county for any period not exceeding one month, unless such fine and costs, with the expense attending the commit- ment, be sooner paid (rri). 13, 14 V. o. 53, s. 75. BAILIFFS TO BE CONSTABLES. CLXXXIII. Every bailiff shall exercise theBaniirto authority of a constable during the actual holding ofofeonttabV the court of which he is a bailiff, with full power to JjrS^it* prevent breaches of the peace, riots or disturbances within the court room or building in which the court is held, or in the public streets, squares, or other < I (l) This enactment has been held to be confined to the use of false instruments, and does not apply to the mere verbal assertion of au- thority. (Reg. V. Myoit, 6 C. C. C.401; lU. C. L.J. 85.) In a prosecution under this sec- tion it is not necessary to show that the document used bears any resemblance to the genuine process of the court, {Reg. v. Evans, Y C.ox. 0. C. 293 : Reg. v. Richmond, 8 ib. 200.) (m) See section 189 for form of conviction, and form 62 for a form of warrant of commitment for con- tempt. 92 THE DIVISION 00UET8 ACT. If ba!Iifr usaultod. places within the hearing of the oourt, a may, with or without warrant, arrest all parties offending against the meaning of this clause, and forthwith bring such ofifcnders before the nearest justice of the peace, or any other judicial officer having power to investigate the matter or to adjudicate thereupon (n). 13, 14 V. 0. 53, s. 13. IF BAILIFF ASSAULTED. CLXXXIV. If any officer or bailiff, , or his de- puty or assistant,) be n^isaulted while in the execu- tion of his duty, or if any rescue be made or attempted to be made of any property seized under a process of the court, the person so offending hall be liable to a fine not exceeding twenty dollars, i » be recovered by order of the court, or before a ju< 'ice of the peace of the county or city (o), and to b^ imprisoned for any term not exceeding three month an4 the bailiff of the court, or any peace officer, r y in any such case take the offender into custody i nth or without warrant) and bring him before sue? jourt or justice accordingly. 13, 14 V. e. 53, s. 1( . MISCONDUCT OF CLERKS, BAi. ''FS, »0. Misconduftt GLXXXV. If any bailiff on officer, acting under ^l^^*""* colour or pretence of process of the court, be guilty of extortion or misconduct, or does not duly pay or account for all money levied or received by him by virtue of his office, the judge, at any sitting of the court, if a party aggrieved thinks fit to complain to him in writing, may inquire into the matter in a summary way, and for that purpose may summon and enforce the attendance of all necessary parties and witnesses, and may make such order thereupon for the repayment of any money extorted, or for the (n) This section is an amplifica- tion of the preceding one, and gives jurisdiction to justices of the peace, as well as to the judge of the court, to investigate and adju- dicate upon the offences referred tu in the section. The words, " other judicial officer, ' must refer to the judge of the court, who is specially n.jraed in section 182. Sections IS? and 188 shew how fines imposed under authority of the act are to be enforced. (o) See section 189 for form of conviction in such case. -:*i THE DIVISION COURTS ACT. 98 dao payment of any money so levied or received, and for the payment of any such damages and costs to the parties aggrieved, as he thinks just ; and in default of payment of the money so ordered to be paid by such bailiff within the time in such order specified for the payment thereof, the judge may, by warrant under his hand and seal, cause such sum to be levied by distress and sale of the goods of the offender, together with the reasonable charges of such distress and sale, and in default of such distress (or summarily in the fin^t instance) may commit the offender to the common gaol of the county for any period not exceeding three months (p). 13, 14 V. c. 53, s. 76. EXTORTION. dLXXXVI. If any clerk, bailiff or other officer Extortion, exacts, or takes any fee or reward other than the fees appointed and allowed by law for or on account of any thing done by virtue of his office, or on any account relative to the execution of this act, he shall, upon proof thereof before the court, be for ever in- capable of being employed in a Division Court in any office of profit or emolument, and shall also bo liable in damages to the party aggrieved. 13, 14 V. c. 53, s. 77. FINES HOW ENFORCED. GLXXXYII. In case a Division Court imposes Fines hov any fine un«icp authority of this act, the same i»ay DiWslon ^' be enforced upon the order of the iudge, in likeoourto. manner as a judgment for any sum adjudged therein, and shall be accounted for as herein provided. 13, * 14 V. c. 53, s. 82. CLXXXVIII. In all cases in wh\ph by this act how en- [ any penalty or forfeiture is made recoverable before ?^gy^cB of ! a justice of the peace, such justice may, with or the ixsace. i without information in writing, summon before him the party complained against, and thereupon hear (p) The judge has also power at ba:iUfF without assigning any roa- lany time to remove any clerk or son (sec. 23). it: ■* '1 94 Form of convietion. THE DIVISION COURTS ACT. and determine the matter of such complaint, and on proof of the oflFence convict the oflFender, and adjudge him to pay the penalty or forfeiture incurred, and proceed to recover the same. 13, 14 V. c. 53, a 104. FORM OP CONVICTION. CLXXXIX. In all cases where a conviction is had for any offence committed against this act, the form of conviction may he in the words or to the effect following, that is to say : 13, 14 V. c. 53, s. 105. ,*• . . , Be it rememhered. That on this day of . in the year of our Lord , A. B., is convicted before one (or two, a« the case may 6e,) of Her Majesty's justices of the peace for the countj of , or before , a county judge of the county of , acting under the Division Courts act, of having {note the offence^ ; and I, (or we) , the said , do adjudge the said to forfeit and pay for the same the sum of , or to be com- mitted to the common gaol of the county of for the space of ■ * . Given under year aforesaid. hand and seal, the day aod DISPOSAL OP PINES. FincB how CXC. The moneys arising from any penalty, for- dispoiwa of. feiture or fines imposed by this act, not directed to be otherwise applied, shall be paid to the clerk of the court which imposed the same, and shall be paid by " him to the county attorney of the county, to be accounted for as part of the fee fund. 13, 14 V. c. 53,8. 103. JUDGMENTS NOT TO BE REVERSED FOR WANT OP FORM. jud;imcnt CXCI. No Order, verdict, judgment, or other ?e"veMed'for Proceeding had or made concerning any matter or jraut of thing under this act, shall be quashed or vacated for any matter of form. 13, 14 V. o. 53, s. 106. < .! .! ':>'. %:: THE DIVISION COUBTS ACT. 95 LIMITATIONS AND NOTICE OP ACTIONS FOR TDINGS DONE UNDER THIS ACT. (q) CXCII. No levy or distress for any sum of money Distreis not to be levied by virtue of this act, shall be deemed {."^KfuTof unlawful, or the party making the same be deemed p^t'es tres- a trespasser, on account of any defect or want ofj^gou o/ form in the information, summons, conviction, war- p^J^^jJ,-,, rant, precept or other proceeding relating thereto, nor shall the party distraining be deemed a trespasser from the beginning (r) on account of any irregular- ^^ ^ ity afterwards committed by him, but the person trenpaRwra aggrieved by such irregularity may recover full «<^ *»»'«'• satisfaction for the special damage. 13, 14 Y. c. 53,8.79. CXCIII. Any action or prosecution against any Limitation person for any thing done in pursuance of this tij*''ga°Son7 act(s), shall be commenced within six months after undur ibu the fact was committed, and shall be laid and tried ^^' (q) It may be stated as a gene- ral principle that clerks and bailiffs acting in a ministerial capacity, and in the performance of a duty, are not liable for anything done by them in the performance of Buch duty. With reference to costs in ac- tions against Division Court offi- cers, it is provided by the Common Law Procedure Act, sec. 880, that in case any suit be brought in any Court of Record in respect of any grievance committed by any clerk, bailiff or officer under color or pretence of court process, and the jury shall find no greater dam- ages for the plaintiff than ten dollars, the plaintiff shall not have costs unlesB the judge certifies in court, on the back of the record, that the action was fit to be brought in such Court of Record. (»•) Trespass ab initio, or, from the beginning, occurs in this way, —When one, who has authority by law for doing an act, but, instead of acting lawfully under that au- thority, abuses it, such abuse turns the act into trespass, and the per- son becomes a trespasser ab initio, and this even though his conduct may have been lawful in the first place. The effect of this section is therefore, that a person s6 acting as to come within this definition, though liable for any special dam- age, would not be liable for acta originally lustifiable. («) A thmg is done " in pursu- ance of the act " when the person who does it is acting honestly and bond fide, either under the powers which the statute gives or in dis- charge of the duty which it im- {)oses, reasonably supposing that le has authority, though he may erroneously exceed the powers so given to him, yet if he acts bond fide in order to execute such powers or discharge such duties, he is to be considered as acting "in pursuance of the act," and entitled to the protection confer- red on persons whilst so acting. (See 10 U. C. L. J. 160.) h! mf, ■ M '' ( ' '* '1 ■ r-i 96 THE DIVISION C0UBT8 ACT. in tbe oounty vhere the fact was committed, and notice in writing of such action and of the cause thereof shall be given to the defendant, one moDth at least before the commencement of the action {t), 13, 14 V. 0. 53, 8. 107. Tho protection afforded by these sections does not apply to the defendant in an action brought against him for trespass in seizing the goods of A. on an execution against B., either as to venue or to notice of action (DoUery y. Wlidey, 12 U. 0. 0. P. 106 ; 8 U. C. L. J. 239), nor to a defendant in an action for maliciously suing out an attachment. (^Palk v. Kenney, 11 U.C.Q. B. 850). But it does apply when a bailiff and his sureties are sued under the statutory covenant for an exces- sive levy by the former and a sacrifice of the plaintiff's goods; and the bailiff may raise the de- fence both of want of notice, and that the action was not brought within six months under a plea of not guilty by statute. {Pearson V. Ruttan et al., 16 U. C. C. P. 19 ; 1 L. C. G. 26.) (t) That is to say, if the notice is served, for instance, on the 28th of March, the writ may bo taken out on the 29th of April. {Mc- intosh v. Vanateinburgb, 8 17. 0. Q. B. 248.) Bailiffs are entitled to notice if they believe they are acting in the discharge of their duty, even though the warrant under which they act be not under seal. {An- derson v. Grace et al., 17 U. C. Q. B. 96.) A bailiff is not entitled to notice in an action brought against him for money had and received to recover the excess levied by him under an elocution, but which he has failed to return to the plaintiff, as he is not acting " in pursuance of the act/' the charge being an omiuion not a concurrence in a positive tort {Dale v. Cool, 6 U. C. C. P. 644.) The reference in the next 8e^ tion to the act to protect justices of the peace and other officers from vexatious actions (Con. Stat. U. C. cap. 126), creates a difficulty as to whether the provisions of the latter statute are applicable to notices of action under this section so as to render it necessary to state certain facts in the notice which are required by that act. It would seem, however, from the language of Draper, C J., in McPhatter et al. v. Leslie et al., 23 U. 0. Q. B. 673, that a notice of action to a Division Court clci% is sufficient if it comply with this section. He says, "In Dale v. Cool, 4 U. C. C. P. 462, Macaulay, C. J., held, that on reference to 13 & 14 Vic. cap. 68, sec. 107, 14 «& 16 Vic. cap. 64, sec. 6, and 16 Vic. cap. 177, sec. 14, he thought the bailiff entitled to notice, and that the objection was open to him o4 the plea of not guilty per stat. The first of these three acts is the Division Courts Act, the second is the act for the protection of magistrates and others, and the third is the Division Courts Ex- tension Act. In Anderson v. Grace, 17 U. C. Q. B. 96, the Chief Justice says, it is the act of 14 & 16 Vic. that must govern, because the previous enactments giving protection are repealed by thut act. But the Con. Stat. U. C. cap. 19, sees. 193, 194, provide ex- pressly for notice and limitation ■nl? THE DIVISION COURTS AC5T. 97 CXCIV. If tender (m) of snfficient amends be Defendant made before action broaght, or if the defendant after ™J„^"JjJ4 action brought, pays a sufBcient sum of money into pJ,^^^}** court with costs, the pIainti£F shall not recover, and £ia«![ Ac. in any such action (v) the defendant may plead the general issue (to), and give any special matter in evi- dence under that plea(x). 18, 14 V. o. 53, s. 107. of sctioa for anythioe done under that act; and wongh the enact- ments of 14 A 15 vie. are re-en< acted by Con. Stat U. C. cap. 126, it appears to me we cannot hold that tne latter chapter was intend- ed to overrule or vary the pro- yiaions of chapter 19 of the same statute, bat that they were estab- lishing rales for distinct cases. I think, therefore, that the clerk in this case having been served with a notice of action, such as chapter 19 requires, cannot saccessniUy object to the want of additional formalities which chapter 126 re- quires." If the notice volunteers inform- ation which is incorrect, it will be bad. In Buck v. HmUer, 20 U. C. Q. B. 486, Eobiruon, C. J., says, " If this notice had given no in- formation whatever in regard to the court in which the action would be brought [necessary under chap- ter 126], there would be less difficulty in holding it to be suffi- cieat, tnough it is usual in all these notices to state the court in which the plaintiff intends to sue. But here the plaintiff has given incorrect information on a point on which the statute does not ex- Eressly require that he should ave given any, and we cannot say that we think the learned judge was wrong in holding it bad on account of its tendency to mis- lead." A notice of action stated a tres- pass on the 18th of October and on divers other days. The goods 9 ' were seized on the 18th October, but returned and again seized on the 18th November and sold. The notice was held snfficient. {Olu. phant V. Leslie, 24 U. C. Q. B. 898.) (u) See note (o) to section 87. (v) The words " any such ac- tion,^' have been judicially inter- preted to mean any action, and not only an action in which a tender or payment into court has been made, and they are to be read as a separate member of the section. By this construction the original intention of the act (sec. 107 of 13 judgment, 1. Absconds from this Province, leaving personal property liable to seizure under execution ' '' for debt(c) in any county in Upper Canada; or 2. ^'j "' , Attempts to remove such personal property, either ,L ; ., out of Upper Canada or from one county to another •' << therein; or 3. Keeps concealed in any County of Upper Canada to avoid service of process ; and in ^. , case any creditor of such person, his servant or (a) See sec. 194, notes (w), (x). (c) See section 151, note (6), as (6) See note to form 3 for con- to what goods arc covered by cise statements of various claims these words. on contracts. , ,(/ .- If clerk and ' m bailiff joint '■'m defendants, '^ bailiff enti- ' *v tled to ver- . ' 1, dict on ■ 1 vS • 1 producing warrant, and what coats ■' m plaintiffs ■•bI entttledto. f. w '^»'.. fi \ kM V ■ li'i h% tf: 100 THE DIVIBIOIT OOUKIB ACT. agent makes and prodaces an affidavit or afBrmatioo to the purport of the form prescribed by any rale respecting the practice and proceedings of the Divi- sion Courts (d)f (and the clerk of any Division Court of the county wherein the debtor was last domiciled, or where the debt was contracted, may administer such affidavit or affirmation (e\) and in case the said affidavit or affirmation be filed with such clerk, then such clerk, upon the application of such creditor, hb servant or agent, shall issue a warrant under the band and seal of such clerk, in the form C. directed to the bailiff of the Division Court within whose division the same is issued, or to any constable of the county, commanding such bailiff or constable to attach, seize, take and safely keep all the personal ' estate and effects of the absconding, removing or concealed person within such county, liable to seizure under execution for debt (/), or a sufficient portion thereof, to secure the sum mentioned in the war< rant (^), with the costs of the action, and to return (d) Rale 24 directs that this form shall be according to No. 22 in the schedale. The ttffidayit mast not be in the alternative, and must comply with the form. In QuacketUnuh et al. v. Snitkr, 13 U. C. C. P. 201, the affidavit, after stating the indebt- edness, farther stated that the defendant had good reason to be- lieve, (be, that the sud debtors had absconded from the Province of Canada with intent and design to defraad him of said debt ; or that the debtors were aboat to abscond from said Province; or leave the coanty of, <&c., with intent, " ,* i ,. i. f .>»* 102 THB DIVISION OOtmTB AOT. with refcarn the inveDtoiy attached to such appraisO' ment to the clerk of the ooart in which the warrant is made retornable. 13, 14 Y. o. 58, s. 64. PraeMdiBgi con. In any case oommenced by attachment, in ttnoed In"' * Division Oonrt, the proceedings m«y be conducted eonrt out of to judgment and ezecntion in the Division Court of rttoohmmt the division within which the warrant of attachment ^"^ issued. 18, 14 V. 0.68, s. 64. Proeeedlngf eommenced before attachment to continue. Property a^ taened maj be lold under execution. CCIII. When proceedings have been commenced in any case before the issue of an attachment such proceedings may be continued to judgment and exe- cution in the Division Court within which the pro- ceedings were commenced. 18, 14 Y. o. 53, s. 64. CGIY. The property seized upon any warrant of attachment shall be liable to seizure and sale under the execution to be issued upon the judgment, or in case such property was perisuible, and has been sold, the proceeds thereof shall be applied in satisfaction of the judgment (k). 13, 14 Y. c. 53, s. 64. {k) Oases of several attachments are provided for by sections 206 and 207, bat there is no express provision for any conflict between attaching and non-attaching credi- tors of the defendant. There can be no question but that an execution issued on a indg- ment obtained in the ordinary manner, and placed in the bailiff's hands, before an attachment from a Division Court, and necessari- ly, therefore, before an execution to be obtained in such attachment suit, has the priority. And, further than this, it seems to be the more general opinion, and that acted upon by the majority of the County judges, that, although the debtor's goods are seized under an attachment, they are neverthe- less liable to the execution of any creditor who may obtain a judg- ment, and deliver the execution issued thereupon to the bailiff be- fore judgment is obtuned and exe- cution issued by the attaching creditor. The case principally relied on in support of this view is that of Franeia v. Brown, 11 U.O. Q. B. 688; 1 U. C. L. J. 225, in which the above rule was laid down, but with this difference— that there, the execution of the non-attaching creditor was issued from a Supe- rior Court. If such be the rale respecting executions from Super^r Courts, there would seem to be no reason, particularly looking at the broad ^ound taken in the judgment in rVaruiB v. Brown, why n should not likewise be applicable to exe- cutions from Division Courts. Proceedings by attachment are either to compel the appearance of, or rather to effect service upon a defendant, or to obtain security to the plaintiff for his claim; in neither case, it is argued, would it be reasonable, that by taking a step for such a purpose a creditor THE DIVISION OOUBTB ACT. 103 CCV. No plaintiff shall divide any cause or action cimntifriiot into two or more suits for the purpose of brinRingJ|;,'u;i|*o," the same within the provision of the preceding sec- mi ion. tions, but any plaintiff having a cause of action above thonld obtain a priority over another creditor who commenoed proceedings before him, such pro- ceedings being finally carriea to jadgment and execution. Again, section 211 provides, tfaiat an execution shall forthwith issue upon a judgment obtained in e suit, wherein the summons was personally served before the seiz- ure of any property under any warrant of attachment, that is any warrant in some suit other than that in which the summons was personally served, (if such be the meaning of the section). If this is not intended to give the plaintiff who had commenced his proceed- ings by personal service the ad- vantage of priority of execution, what 18 the object of the provision that the execution shonld issue forthwith. The rule, — that laid down in Frandt v. Brown, — ap- pears to be, mii prior at in tempore, potior at in juire. On the other hand, it is urged with much force, that carrying out this doctrine to its full extent would work great hardship and injustice to attaching creditors; and it is argued in this way : Where proceedings are com- menced by an attachment obtained on the ground that the defendant is removing goods out of Upper Canada, or from one county to another, to defraud his creditors, another creditor may commence proceedings and serve the defend- ant with process personally, im- mediately upon the seizure of the property under the attachment, and ten days only before the sit- ting of the next court for the division. This creditor so effect- ing personal service may tlins obtain judgment and execution two months in advance of the attaching creditor — unless the attaching creditor succeeds also in effecting personal service of his summons. Again, it may happen, it is urg- ed, that several of a number of attaching creditors might be una- ble to prove their claims, as required W law, at the first court, ana an adiournraent be obtained until a following court. Execu- tions would issue on the judgments in favour of some of the attaching creditors, and property might be sold to realize the full amount of such execution, but the judge might direct that no distribution should be made until the other creditors, the plaintiffs in the adjourned attachment suits, had an opportunitv of obtaining judg- ment at the following court. In the meantime, other creditors at that court might obtain judgments in suits where the summons had been personally served, and if the executions on such judgments were allowed to attach upon the pro- perty in custody of the clerk under the attachment, the attachment creditors would be deprived of the benefit of the security obtained by their proceedings, and instead of saving the projierty for them- selves, they would merely have benefited a party who 'did not move in the matter until the pro- perty was in the hands of the law. If the ground upon which an attachment could be obtained in the Division Courts was only because the defendant had absconded, so that personal service could not be ! • t ! i ■ ! ';V 41 «f >■•* i'J"^ lOi THE DIVISION COURTS ACT. ilf tho valuo of one hundrod doUare, and not exceeding two hundred dollars, for which an attachment might be iHsued if the same were not above the value of one hundred dollars may abandon the excess, and n{.on proving his case, may recover to an amount not efTectod after the isnae of an attach- ment, no conflict could arlse.and all creditors wishins to obtain any- thine from the debtor's property would hare to proceed by attach- ment under sec. 207 in order to obtain Judgment and execution to be entitled to rate. It is also objected that there is a much stronger reason than the supposed equities of the case for thinking that attaching creditors have pnority, and that the princi- ple to be applied is that the goods when once attached and handed over to the Clerk are in the cub tody of the law and are not therefore liable to seizure under execution. It is contended that there is nothing in the act to interfere with wis principle, in fact that sections 199, 204 rooeed as if no attaohment had Bsued, and that he shall have exe. oution forthwith on his judgment. If it was intended tnat otiier creditors should be able to acqaire an advantage by obtaining jud^. ment on a personal service after the seizure of property under u attachment, it would have bets provided for. The silence of the act respect ing the rights of judgment credi- tors in the Superior Courts wu held not to deprive them of their rights to priority. When in a Division Court attaching creditors obtain by means of such attachments a security for their debts — ^the property being held in the custody of the law for that pu^ pose — unless the rights of others are provided for.where their claims conflict, the security provided to attaching creditors by the act must be upheld against the claims of others whose rights are not pro- vided for or referred to. It is also thought by some that after a seizure lias oeen made under an attachment, the non-at- taching creditor ought not, unless he should have had already com- menced his proceedings by person- al service, gain any advantage over the attaching creditor by subse- quently effecting personal service. The matter is one of considera- ble difficulty, and whichever may be the better opinion on these £oints it is quite evident that the legislature has carefully abstain- ed from throwing any unnecessary light on the subject debtor in the on obtaining iudg a memorandfum thereof and of th tified under the erery such cred tied to satisfactic THE nrVIBION COURTS ACT. 106 czeeedinf; one hundred dollan (/), and the judg- ment of the court in such case shall be in full dii- charge of all demands in respeot of such cause of Mtion, (m) and the entry of judgment therein shall be made accordinglj (n). 18. 14 V. o. 68, s. 64,— Set s. 26. OCVI. In case several attachments issue against ir MTfrsi iDjpartj, then, subject to the provisions contained in mued."""*" tht seventeenth section of the act respecting abscond- ing debtors, (p) the proceeds of the goods and chat- (/) See section R9 and notes. The reference to see. 26 means we. 20 of 18 A 14 Vie. cap. 58. Im) See section 60. (fi) See form No. 17. (o) Con. Stat. U. C. cap. 2S. The section provides, that if a sheriff to whom a writ of attachment has been delivered for execution, finds tny property or effects which have been sold as perishable belonging to the absconding debtor in the boods or custody of any constable, cleric or bailiff, under a warrant of attachment from a Division Conrt, the sheriff shall demand •nd take from such bailiff, Ac, all Buch property or proceeds thereof, which such Dailiff, Ac, is bound to deliver to the sheriff upon de- mand by him, and notice of the writ of attachment, under a penal- ty of forfeiting double the value of the amount thereof, to be re- covered by such sheriff with costs of sale, and to be by him accounted for, after deducting his costs, as lart of the property of the debtor ; nt the creditor who has taken out Bach warrant of attachment may Sroceed to judgment against the ebtor in the Division Court, and on obtaining judgment and serving a memorandum of the amount thereof and of the costs, to be cer- tified under the hand of the clerk, every such creditor shall be enti- tled to satisfaction in like manner I as, and in ratable proportion with the other creditors who obtain judgment, as mentioned in section 29, which enacts, that the proper- ty in the sheriff's hands shall be ratably distributed among each of the plaintiffs in such writs as obtain judgment and sue out exe- cution, in proportion to the sums actually due upon such judgments, and the court or a judge may de- lay distribution in order to give a reasonable time for obtaining judg- ment. Section 80 further enacts, that every creditor who produces a certified memorandum from the clerk of any Division Court of his judgment, shall be considered a plaintiff in a writ of attachment who has obtained judgment and sued out execution, and shall be entitled to share accordingly. In case the property Is insuf- ficient to pay all the creditors, section 81 provides that none shall be allowed to share unless their writs or warrants of attachment, as the case may be, were issued and delivered to the sheriff, or bailiff, or constable, as the case may be, for execution, within six months from the date of the first writ of attachment. The enactments in the Abscond ing Debtors' Act that have been referred to are intended to provide for cases where writs have been .1 • V ';i m ^*'"i ! ■ 106 THE DIVTBION COURTS ACT. tel8 attached shall not bo paid over to the attaching CTeditor or creditors according to priority, but shall be ratably distributed among such of the creditors suing out such attachments as obtain judgment against the debtor, in proportion to the amount really due upon such judgments, and no distribution shall take place until reasonable time, in the opinion of the judge, has been allowed to the several credi- tors to proceed to judgment. 13, 14 V. o. 53, s. 65. If jHwda Uf GCVII. When the goods and chattels are insuffi- ■utfdent ^.g^j jQ g^jjgfy ^jjg giaima of j^ii ^]jQ attaching credi- ton, no such creditor shall be allowed to share, unless he sued out his attachment, and within one month next afler the issue of the first attachment, gave notice thereof to the clerk of the court oat of which the first attachment issued, or in which it was made returnable (p). 13, 14 V. o. 63, s. 65. Clerk to teka CCVIII. All property seizcd Under tho provisions ^ge of Qf the preceding sections, shall be forthwith handed attached, over to the custody and possession of the clerk of the court out of which the warrant of attachment issued, or into which it was made returnable, and r-,u ^ such clerk shall take the same into his charge and K ' keeping (9) and shall be allowed all necessary dis- " bursements for keeping the same. 13, 14 V. c. 53, s. 66. 2* ^'"^ CCIX. In case any person against whose estate or attach^ may cfiects any such attachment has issued, or any person bereetored. on his behalf, at anytime prior to the recovery of issued from both Superior Courts and Division Courts ; but the pro- visions of the Division Courts Act only to cases of attachments from such courts. See note to sec. 204. (/)) If the bailiff seize "sufficient" foods to satisfy the warrant in his ands, and subsequently other at- tachments come in, but in the meantime the rest of the debtor's goods are not to be found; are these latter o:ec! ^ors entitled to share in the goods seized under first warrant? See note to 8e^ tion 204. (q) The goods so in the posses- sion of the clerk are in custody of the law, and the clerk would not be liable in an action of trespass, trover or detinue. ( Verrall v, Eobinaon, 2 C. M. «fc R. 495 ; Clark V. Orr, 11 U. C. Q. B. 436; Caron V. Graham, 18 U. C. Q. B. 316.) It was also debated in the last case whether replevin would lie ; but as to this now see sec. 8 of 23 judgment in 1 creditor who the court to v abond(r) wi approved of obligors, joint claimed, with fill, in the e^ meat recovei ^_. leadings h son, pay t^»6 taken and sc produce such to satisfy sucl the attachmei be restored. CCX. If w aforesaid, the ed, or son and give such judgment ha claims, and tt or attachment ment and cc thereof, accor previously so! hereinafter m maybe appli< 13, 14 V. c. I CCXL Wl seized under 1 and a summoi person before shall be proi attachment l execution sh ordered by th he attaching ty, but shall the creditors n judgment the amount distribution I the opiDion leveral credi- ■ 0. 53, B. 65. Is are insuffi. .ching credi- id to share, I withio one attachment, court out of which it was s. 65. Iio provisioQS iwith handed tho clerk of r attachment iirnable, and 1 charge and lecessary dig- 14 V. c. 53, lose estate or r any person I recovery of I note to see- in the posses- I in custody of erk would not in of trespass, ( Verrall v. R. 495 ; Clark i. 436 ; Caron I. Q. B. 316.) 1 in the last dn would lie; )e ace. 8 of 23 THE DIVISION COURTS ACT. 107 JUi .dgment in the cause, executes and tenders to the creditor who sued out the attachment, and files in the court to which the attachment has been returned, a bond (r) with good and sufficient sureties, to be approved of by the judge or clerk, binding the obligors, jointly and severally, in double the amount 1/ * ■ i ■ St 'St! I i '. 1 $ 4 proceedings have been commenced against the per- son, pay the same or the value of the property so taken and seized, to the claimant or claimants, or prodnce such property whenever thereunto required to satisfy such judgment, such clerk may supersede the attachment, and the property attached shall then be restored. 13, 14 V. o. 53, s. 67. GCX. If witb'n one month from the seizure ^uoMiOtiot foresaid, the party against whom the attachment does not 9SDed, or some one on his behalf, does not appear *'**""' and give such bond, execution may issue as soon as judgment has been obtained upon the claim or claims, and the property seized upon the attachment or attachments, or enough thereof to satisfy the judg- ment and costs, may be sold for the satisfaction thereof, according to law, or if the property has been previously sold as perishable under the provisions hereinafter made, enough of the proceeds thereof may be applied to satisfy the judgment and costs. 13, 14 V. c. 53, s. 68. GCXL When the property of any person has been ifsummoned seized under any warrant of attachment as aforesaid, pef«onaiiy. and a summons has been personally served on such person before seizure, (s) then the trial of the cause ' ill be proceeded with, as if no such warrant of attachment had been issued, and afler judgment execution shall forthwith issue, unless otherwise ordered by the judge. 13, 14 V. c. 53, s. 68. )♦' t f V^ic. cap. 45, hereafter given. (r) See form 24. H'ould this latter provision apply {») Rule 26 proyidea for casea property handed over to the where the aummons ia not person- ilerk under the above section ? ally aerved. See note to sec. 204. 108 THB DIVISION COURTS ACT. ProcewJingti CCXII. Subject to the provisioDs Contained In | •«J'^\^"J**" fifteenth and seventeenth sections of the act reap party who log absconding debtors, in order to proceed Id i ■*'**°*'*^'^ recovery of any debt due by the person against wh property an attachment issues, where process hasi. been previously served, the same may be Berrij either personally or by leaving a copy at the 1« place of abode, trade or dealing of the defendau with any person there dwelling, or by leaving d same at the said dwelling, if no person be thei found ; and in every case, all subsequent proceedii -may be conducted according to the usual course practice in the Division Courts; and if it appeant the satisfaction of the judge on the trial, uponi davit, or other sufBcient proof, that the creditor vin sued out an attachment, had not reasonable or proli ble cause for taking such proceedings, the jud^ <: T shall order that no costs be allowed to such creditt or plaintiff, and no costs in such case shall recovered in the cause. 13, 14. Y. c. 58, s. 69. GCXIII. Subject to the provisions contained i| the fifteenth and seventeenth sections of the respecting absconding debtors, in case any hon cattle, sheep or other perishable goods have taken upon an attachment, the clerk of the court ill has the custody or keeping thereof (the same haviij been first appraised) in the manner in the two h dred and first section of this act mentioned, may, the request of the plaintiff who sued out the wa of attachment, expose and sell the same at pobij auction, to the highest bidder, giving at least eigl days' notice at the office of the said court, two other public places within his division, of time and place of such sale, if the articles so seiie| will admit of being so long kept, otherwise he iii!| sell the same at his discretion. 13, 14 V. c. s. 70. Rive bond to CCXIV. It shall not be compulsory upon tin officer" a^d ^^'^^^0^^ constablc to scizc, or upon the clerk to sell to be filed, such perishable goods, until the party who sued oof Perishable goods, how disposed of. purposes, and ma \ (0 This marginal note is incorrect, struck out. The last five words should I \ • tl THE DIVISION COURTS ACT. 109 he warrant of attachment has given a bond (u) to he defendant therein, with good and sufficient sure- ^68 in double the amount of the appraised value of nch goods, conditioned that the party directing such eizure and sale will repay the value thereof, together Jrith all costs and damages incurred in consequence If such seizure and sale, in case judgment be not [btained for the party who sued out such attachment, iDd the bond shall be filed with the papers in the 3. 13, 14 V. c. 53, 8. 70. GGXV. The residue, after satisfying such judg-Roxidaehow nenta as aforesaid, with the costs thereupon, shall *''^'°"'^ "'• I delivered to the defendant or his agent, or to any ersoD in whose custody the goods were found, rhereapon the responsibility of the clerk, as respects |uch property, shall cease. 13, 14 V. c. 53, s. 71. CCXVI. Any bond given in the coarse of any May be laed Uceedings under this act, may be sued in any Divi- iTon cowt '' lion Court of the county wherein the same was [xecated, and proceedings may be thereupon carried [n to judgment and execution in such court, not- withstanding the penalty contained in such bond may |zceed the sum of one hundred dollars. 13, 14 Y. 1.43,8.70. CCXVII. Every such bond shall be delivered up Jod-e may lo the party entitled to the same, by the order and *""^" "^' It the discretion of the judge of such court, to be porced or cancelled, as the case may require. 13, 14 V. c. 53, s. 70. I ' PENDING PROCEEDINQS CONTINUED. CCXVIII. All proceedings, commenced before Pmding [his act takes effect, shall be valid to all intents and J^oWdSTr. Durposes, and may be continued, executed and en- forced under this act against all persons liable thereto, |n the same manner as if the same had been com- aenced under the authority of this act. 13, 14 V. 53,8.112; 16 V. c. 177, s. 32. (u) See form 23. ^ 'I 110 THE DIVISION COURTS ACT. iSnORT TITLE OP THIS ACT. Short title of CCXIX. In citing, pleading or otherwise referrio^ •**• to this act, and any other acts hereafter passed re* pecting the said Division Courts, it shall he sufficieot to use the expression " The Division Courts Act,' or words of equivalent import, which words shall le understood to include and refer to such and so mud of the said act or acts, as may he then in force touching or concerning, or in any wise relating to such courts. 16 V. o. 177, s. 32. CCXX. The following are the forms and table of fees referred to in the foregoing sections : f" ,f : ; , -; - FORM A. {See tec. 25.) ' . COVENANT BY CLERK OR BAILIFF. Know all men by these presents, that we J. B., clerk {or as the ease may le) of the [ ] Division Court in the County of , S. &., of , in the said County of ^ (Esqum), and P. M„ of , in the said County of , {Gentleman] , do hereby jointly and severally for ourselves, and for each of our heirs, executors and administrators, covenant and promise that J. B., clerk {or bailiff) of the said Division Court {oith case may be), shall duly pay over to such person or persons enti- tled to the same, all such moneys as he shall receive by virtue d the said office of clerk {or bailiff, as the case may he), and shaU and will well and faithfully do and perform the duties imposed upon him as such clerk (or bailiff) by law, and shall not miscon- duct himself in the said office to the damage of any person being a party in any legal proceeding : nevertheless, it is hereby declar- ed that no greater sum shall be recovered under this covenant against the several parties hereto than as follows, that is to say; Against the said J. B. in the whole. Against the said S. S Against the said P. M In witness whereof, we have to these presents set our hands and seals, this day of , in the year of our Lord one thousand eight hundred and . Signed, sealed and delivered, ) in the presence of j Feb Fun Entering accouni summons .... Hearing an undef Hearing a defenc increased by tl sees fit, to a si ing two dollar the amount of ages, or subjec tion. 16 v. c. Every order or ju be charged whe has given a con ment,) On every confess! (v) These fees 1 paid by stamps u Bions of the 27 & These fees are all by section 21, whi( all fees up to tei made and paid a from twenty cents at thirty cents, an Parties entering ly speaking bov THE DIVISION COURTS ACT. Ill B. {See tec. 49.) - TABLE OF FEES. Feb Fund(«). Entering account and issuing summons Hearing an undefended cause . Hearing a defended cause to be increased by the judge, if he sees fit, to a sum not exceed- ing two doUars, whatever be the amount of the debt, dam- ages, or subject matter of ac tion. 16 V. c. 177, s. 3. Every order or judgment, (not to be charged when the defendant has given a confession of judg- ment,) On every confession of judgment a I I I c. 10 10 20 10 10 10 20 40 10 10 si ee«» % c. 30 30 boa 40 60 80 20 10 1 00 80 10 I $ C. % C 60 60 1 50 40 10 («) These fees have now to be by stamps under the provi- sions o*f the 27 & 28 Vic. cap. 6. These fees are slightly increased by section 21, which provides that all fees up to ten cents shall be made and paid at ten cents, all from twenty cents to thirty cents at thirty cents, and so on. Parties entering suits are strict- ly speaking bound to furnish stamps to the clerk, but it is be- lieved that clerks generally, for the convenience of oultors, and at no little trouble to themselves and without remuneration, keep them- selves supplied with Feo Fund Stamps. The provisions of the stamp act which in any way affect Division Courts are hereafter given. i '% n \ t»' * ■■' 1 li-l 112 I' THE DIVISION COURTS ACT. TARIFF OP YEES— (Continued.) Fees and Allowances to be beceived BT Clerks of Division Courts (te). Entering every account and issuing sum- mons Copy of summons, particulars of demand or set-ofij each Every summons to witnesses with any number of names Preparing afiSdavit, and administering oath to bailiff of service of summons Entering bailiff's returns to summons to defendant Every copy of subpoena when made by the clerk Entering set-off or other defence requiring notice to plaintiff Adjournment of any cause Entering every judgment or order made at hearing Taking confession of judgment Every warrant, attachment or execution . Every copy of judgment to another county Entering and giving notice of jury being required Making out summons to jury, for each juryman For every affidavit taken and drawing the same Returns to treasurer, to be paid out of the Fee Fund, including attendance on judge to audit the same, each, and to be retain- ed from the Fee Fund in his hands {x).. Every search on behalf of a person not a party to a suit, to be paid by the ap- plicant * 16 V. c. Ill, 8. 11. t« $ c. 20 10 10 15 05 06 15 20 15 15 25 25 20 10 rj) 4 00 10 a o $ c. 80 15 10 15 05 06 20 20 20 15 30 25 25 10 20 4 00 10 $ c. 40 20 10 15* 06 06 20 20 25 15 40 25 30 10 20 4 00 10 (to) These fees, and those paya- ble to bailiffs, »fec., wliicli do not go to the government, are payable in money as heretofore. (as) This fee is owing to the introduction of stamps, now lost to the clerks. Fees and Allov BY ClE Every search fo the proceeding Transmitting pa county or di necessary pos return Receiving paper division for s( book, handinj and receiving 1 the claim is fil For returning a. The Bailiff Service of sui other proceed subpoena, on ( Service of subpo witness . . . For taking coi judgment. . Drawing and a swear to eve of service of when served division . . . Enforcing ever execution or i against the go § Note.— In tl reuilered 7 cts. t 10 V V. O40 20 10 15* 06 05 20 20 25 15 40 25 30 10 20 4 00 10 THE DIVISION COURTS ACT. TARIFF OF FEES— Continued. 113 Fees and Allowances to be received by eeedlng 1 1° :8 BY Clebks — Continued. 1^ 1 a- 1 $ c. % C. % c. Every search for a party to a suit when the proceedings are over a year old 10 10 10 Transmitting papers for service to another county or division, in addition to the necessary postage on transmission and ' return 20 20 20 Receiving papers from another county or division for service, entering same in a book, handing the same to the bailiif. and receiving his return, to be paid when the claim is filed or defence entered . . . 20 20 20 For returnincr a iudtre's iurv 25 25 25* * 16 Vic. cap. 1*77, sec. 11. TnE Bailiff^s Fees. Service of summons, or other proceeding, except subpoena, on each person Service of subpoena on each witness For taking confession of judgment Drawing and attending to swear to every affidavit of service of summons, when served out of the division Enforcing every warrant, execution or attachment, against the goods or body be a s ^ $0 07§ 07§ 07§ 20 30 00 «» a 8 $0 10 07§ 10 20 30 H S $0 15 07§ 10 20 40 i s £ a « $0 15 07§ 15 60 a 20 60 20 07§ 20 20 75 § Note. — In the repealed Tariff the item is 4rf. equal to 6| eta., but rendered 7 cts. to avoid the fraction. 10 J iM 11 : , I \ I i , 114 THE DIVISION C0UKT8 ACT. .1 TARIFF OF FEES— (Contimied.) The Bailiff's Fees. For every mile necessarily travelled from the clerk's ofiSce, to serve summons or subpoena, and in going to seize on execution or attachment where money made or case settled after the levy For every jury trial For carrying delinquent to prison, including all ex- penses and assistance, per mile, 20 cts. Every schedule of property seized, return, including afBdavit of appraisal . . , Every bond, including affi davit of justification Every notice of sale not exceeding three, under execution, on attachm't, 10 cts. each. That there be allowed to the bailiff upon the sale of property under any execution, the sum of two and a half per cent upon the amount realiz- ed, and not to apply to any overplus on the said execution. HI ri «» 9 a $0 08 JUBORS' Fe^S. Each juror sworn in any cause, out of the money deposited wi\ h the clerl for jurors' fee? *18V. c. 126,8.5. $0 08 10 $0 08 15 50 50 10 I at s «» be a $0 08 20 50 50 50 60 |0 08* 30 1 00 10 10 lot t 13, 14 V. c. 63, B. 36. Fees or App M o 1 00 lot THE DIVISION COURTS ACT. TAIIIFE OF FEES— {Continued.) 115 Fees or Appraisers of Goods, &c., seized under Warrant OF Attachment. To each appraiser, 50 cts. per day during the time actually em- ployed in appraising goods, to be paid in first instance hj plaintiff, and allowed in costs of the cause, 60 cts( - X 18, 14 V. c. 53, 8. 64. 0. (See see. 199.) County of )l [here insert the county To A. B., bailiff of the Division Court of the said county of (or to A. B., a constable of the county of , a« the ea»0 may le). You are hereby commanded to attach, seize, take and safely keep all the personal estate and effects (y) of C. D., (naming the debtor,) an absconding, removing or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the county of (here name the county) or a sufficient por- tion thereof to secure A. B. (here name the creditor) for the sum of (here state the amount sworn to he due), together with the costs of his suit thereupon, and to return this warrant with what you shall have taken thereupon, to the clerk of the {here state the number of the division) Division Court of the county aforesaid forthwith : and herein fail not. Witness my hand and seal, the eight hundred and . day of , one thousand E. F. [l. 8.] Judge, clerk, or justice of the peace (as the case may he). (y) Seo sec. 151, note (b), as to what goods are covered by these words. - ' It gene: A8 FRAMED AND CONFIRMED B TINQ THE PBJ UPPER vJANAI [NOTB.— Tho f nay he), aro no the judgeB. The marginal in Udich are alB( 1 . • J' Whereas by sioQ Act of IS for the Goveri authorise five ( Canada, to fra expedient, for i the courts hold Divisioa Courl process of sue! of the said la Division Court thereafter pass^ or might have Courts, or us and also to fra should think ii that all such i certified to th hands of the ( of any three o tice, submittec mon Lavr at Judges of the tice, or the CI Toronto shouL GENERAL RULES AND FORMS AS FRAMED AND APPROYED PURSUANT TO 16 TIO. CAP. 177, 8E0. 10, AND CONFIRMED BY SECTIONS 2 AND 70 OF 22 YIO. CAP. 19, FOR REGULA- TING THE PRACTIOB AND PROCSDURB OF THE DIVISION COURTS FOR UPPER OANADA. [NoTB. — ^Tho forms distinguishetl thus, *13 (ft), *fl8 (b) (a* the ease may be), are not given in tho Schedule of Forms as approved by the judges. The marginal references to the rules and forms, which are printed in Ualici, are also original.] Whereas by '* The Upper Canada Division Courts Exten- sion Act of 1853/' it was enacted, That it should be lawful for the Governor General of this Province to appoint and authorise five of the Judges of the County Courts, in Upper Canada, to frame such general rules as to them should seem expedient, for and concerning the practice and proceedings of the courts holden under the authority of " The Upper Canada Division Courts Act of 1850," and for the execution of the proces? of such courts, and in relation to any of tue provisions of the said last mentioned act, or of "The Upper Canada Division Courts Extension Act of 1853," or of any act to be thereafler passed, as to which there might have arisen doubts, or might hive been conflicting decisions in the said Division Courts, or us to which there might thereafler arise doubts ; and also to frame forms for every proceeding, for which they should think it necessary that a form should be provided : and that all such rules, orders and forms, as aforesaid, should be certified to the Chief Justice of Upper Canada, under the hands of the County Judges so appointed and authorised, or of any three of them ; and should be, by the said Chief Jus- tice, submitted to the judges of the Superior Courts of Com- mon Law at Toronto, or any four of them ; and that such Judges of the Superior Courts (of whom the said Chief Jus- tice, or the Chief Justice of the Court of Common Pleas at Toronto should be one) might approve or disallow, or alter or •hi i i mi 118 DIVISION COURT RULES. amend such rules or orders; and such of the rules as eliouM be so approved by such Judges of the Superior Courts, should have the same force and effect, as if the same had been made and included in •' The Upper Canada Division Courts Extcn- sion Act of 1853." And whereas by virtue and in exercise of the power for that purpose given to the Governor of this Province by the said recited act, " The Upper Canada Division Courts Exten- sion Act of 1853," The Honorable Samuel Bealev Harrison, Miles O'Reilly, Edward Clarke Campbell, George Malloch and James Robert Gowan (five of the Judges of the County Courts in Upper Canada), were on the twenty-fifth day of November, in the year of our Lord one thousand eight hundred and fiftj- three, appointed by his Ezoelleney the Administrator of ihh Government of this Province, to frame such general rules and orders as to them should seem expedient, for and concerning the practice and proceedings of the courts holden under the authority of the said Upper Canada Division Courts Act of 1850, and for the execution of the process of such courts, and in relation to any of the provisions of the said act of 1850, or of the above in part recited act, as to which there might have arisen doubts, or might have been confiicting decisions in the said Division Courts, or as to which there might there- afler arise doubts, and also to frame forms for every proceeding, for which they should think it necessary that a form should bo provided. In pursuance of the powers thereby vested in us, we, the said Samuel Bealey Harrison, Miles O'Reilly, Edward Clarke Campbell, George Malloch, and James Robert Gowan, have framed, the following Rules, Orders, and Forms, and we do hereby certify the same to the Chief Justice of Upper Canada accordingly. (Signed,) S. 13. Harrison, M. O'Reilly, Vj. C. Campbell, Gko. M\lloch, Jas. Rout. Gowan. ToaoNTO, 28lh Jane, 1854. m VISION COURT liULEfl. 119 RULES. TIME OP OPERATION. 1. All rules of practice and forni8, now in force In the several counties respectivelj in Upper Canada, shall, from and after the rules and forms hereinafter set forth come into operation, cease to be used in the several Division Courts of Upper Canada; and, in lieu thereof, the following shall be tbe rules of prac- tice and forms adopted and used in the said courts : and with reference to forms not continued in the schedule to these rules appended, where practicable, the forms prescribed in the said schedule shall be used as p^uides in framing the same, until forms shall be provided by the commission under the authority aforesaid. 2. It is'ordered, that the following rules and forms shall come into operation, and be in force, upon, from and after the first day of October, 1854(a), CLERK'S DUTIES. 3. The clerk of every Division Court shall have an ofBce at such place, within the division for which be is clerk, as the judge shall direct. 4. Two books (besides the account kept for the Fee Fund) (i) shall be kept by each clerk, and the necessary entries be fairly made therein, namel}', a book to be called "the procedure book," in which shall be entered a note of all summonses issued, and ^^^^^'^j^^ "' of all orders, judgments, decrees, warrants, execu- tions and returns thereto, and of all other proceed- ings in every cause, and at every court ; and a book to be called the "cash book," in which shall begeefjo. esof entered an account of all suitors' moneys paid into •ci»e) the forms of notice in 9 of Bdudnie. the schedule nday be used, to be served in the man- ner directed bytheact(«). ' : , ' 80. With a view to save unnecessary expense in proof, the defendant (or plaintiff) shall be at liberty to give the opposite party a notice in writing, that he will admit, on the trial of the cause, any part of the claim or set-off, or any facts which would otherwise require proof; and after sueh notice given, the plain- See No. 10 of ^^^ or defendant shall not lie allowed any expense Bcbeduie. incurred for the purpose of such proof; the notice to be according to the form in the schedule, or to the 30. (m) See sec. 93, and rules 29 *i ,1 .i£i (y) By sec. 11 7 a confession may be given before or after suit. This rule provides for the former case. Ttie form given in the schedule, No. 11, is of a confession after action, but will answer for one before action, by inserting in or attaching to it, the particulars required by this rule. The affidavit of execution by the officer would be the same in both cases. See form 12. (z) Sec. 91 of present act. «-■ rf r. if 1 [ 1 1 128 . DIVISION COURT EULE8. ,,, '. AMENDMENT. 33. Where a person, other than tho defendant, appears at the hcariug, and admits that he is the person whom the plaintiflF intended to charge, his name may be substituted for that of the defendant, if the plaintiff consents, and thereupon tbe cause shall proceed, as if such person had been onginallj named in the summons ; and, if necessary, the hearing mav be adjourned on such terms as the judge shall think fit; and the costs of the person originally named as defendant, shall be in the discretion of the judge. 34. Where a party sues, or is sued, in a represen. tative character, but at the hearing it appears that he ought to have sued or been sued in his own right, the judge may, at the instance of either party, and on such terms as he shall think fit, amend the pro- ceedings accordingly; and the case shall then proceed in all respects, as to set-off' and other matters, as if the proper description of the party had been given in the summons. /?( ,? » ,,5t,t ; > >. 35. Where a party sues, or is sued in his own right, and it appears at the hearing, that he should have sued, or been sued in a representative charac- ter, the judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly; and the case shall then proceed in all respects, as to set-off and other mat- ters, as if the proper description [of the party had been given in the summons. 36. Where the name, or description of a plaintiff in the summons, is insufficient or incorrect, it may at the hearing be amended, at the instance of either party, by order of the judge, on such terms as he shall think fit: and the cause may then proceed, as to set-off and other matters, as if the name and descrip- tion had been originally such as it appears, after the amendment has been made. ' ' ' , 37. Where the name, or description of a rf^/f?w<7aw< in the summons, is insufficient or incorrrct, and the .1 defendant appears and objects to the description, it M DIVISION COURT RULES. 129 may be amended at the instance of either party, by (Amend- order of the judge, on such terms as he shall think '»*"''•) fit ; and the cause may proceed as to set-off and other matters, as if the name or description had been origi- nally such as it appears, after the amendment has \)Qen made : but if no such objection is taken, the cause may proceed, and in the judgment and all sub- sequent proceedings founded thereon, the defendant shall be described in the same manner. 88. In actions by or against a husband, if the wife is improperly joined or omitted as a party, the sum- mons, may, at the hearing, be amended at the instance of either party, by order of the judge, on such terms as he shall think fit ; and the cause may proceed as to set-off and other matters, as if the pro- per person had been made party to the suit. 89. Where it appears at the hearing, that a greater number of persons have been made plaintiffs, than by law required, the name of the person improperly joined may, at the instance of either party, be struck oat by order of the judge, on such terms as he shall think fit ; and the cause may proceed as to set-off, and other matters, as if the proper party or parties only had been made plaintiffs. ; < - ; < 40. Where it appears at the hearing, that a less number of persons have been made plaintiffs than by law required, the name of the omitted person may, at the instance of either party, be added by order of the judge, on such terms as he shall think fit ; and the cause shall proceed as to set-off and other matters, and judgment shall be pronounced, as if the proper persons had been originally made parties } and unless the person, whose name is so added, shall assent thereto, either at the hearing or some adjournment thereof, personally, or by writing signed by him or his agent, proceedings on the judgment shall be stayed, until the court next after five clear days from the day of hearing; and if the person whose name ia added, shall at the hearing or an adjournment thereof, consent to become a plaintiff (such consent being in writing signed by him or his agent), execution shall (I t\ 5 It ■11 I"' ! I Ifl 130 (Amend- mtntt.) DIVISION COURT RULES. issue as the judge shall think fit ; but if such ^_.. shall not consent to become a plaintiff in manner aforesaid, either at the hearing or at an adjournment thereof, judgment of nonsuit may be entered. 41. When it appears at the hearing, that moit persons have been made defendants, than by hi required, the name of the party improperly joioej may, At the instance of either party, be struck out by order of the judge, on such terms as he slia] think fit; and the cause shall proceed as to se(K){ and other matters, as if the party or parties liable had been sued, and judgment shall bo given for the party improperly joined. . . . ,, 42. Where sereral persons are made defendaoti, and all of them have not been served, the name or names of the defendant or defendants, who have not been served, may at the instance of either party, be struck out by order of the judge, on such terms as he dhall thitik fit ; and the eau^e shall then proceed, in all respects, as to set-off and Other matters, as if all the d^fondants had be^n served. 43. Where, at the hearing, a variance appears between the evidence and the matters stated in any of the proceedings in the Division Court, such pro- ceedings may, at the discretion of the judge, and on such terms as he shall think fit, be amended. . y 44. In eases of amendment, a corresponding amendment shall be made, in the presence of tbe judge, in the proceedings of the court, antecedent to such amendment ; and the subsequent proceediogs shall be in conformity therewith : and all amend- ments shall be made in open court, and during the sitting of the court 45. The judge may, in any case, refuse to set aside, or to hold void, any of the proceedings, on account of any irregularity or defect therein, wmch shall not, in his opinion, be such as to interfere with the just trial and adjudication of the case upon tbe nierits. , . ; , Dl I 46. Every aEBd Ifflustbe entitled Icommenced), stat liiartieB as in the i |U, and his pla laffidavit be swor liDiist contain a oe KdminiBtering the Ihis presence to tl IguohpartyBeeme Ithere shall be n Ijorat : but the y 1 insufficient, any above requisites [diMtetion, reoer 47. Postage i process, order, or judge, shall party on whose I shftll be costs in 48. On appU judge shall de shall be allowe for whose attei in the schedule case to exceed under subptenc before allowing shall be satisfi( the claim for i (a) Form 7 the commeucem of affidavits in % See forms 7 (i jurats in differei (6) The fees given in note {i {bb) Sec. 86 a DIVISION COURT KULE8. 131 AFFIDAVITS. 46. Every affidavit, Id any procecdiDg in the court, lioust be entitled in the cause (if a cause has been loommenced), stating the christian and surname of the ■parties as in the summons, and also that of the depo- Inent, and his place of abode and addition ; and if an [affidavit be sworn by an illiterate person, the jurat Inrast contain a certificate of the clerk or commissioner jadministering the^ath, that the affidavit was read in his presence to the party making the same, and that Igaoh party seemed perfectly to understand it (a) ; and {there shall be no erasure nor interlinoatiou in any I joist : but the judge shall not be bound to rejoot, as 1 insufficient, any affidavit not complying with tho above requisites, or any of them, but may, in his [diBoretion, receive the same. POSTAGE. 47. Postage necessary for the transmission of any process, order, notice, or other matter, by the derk or judge, shall be paid in the first instance, by the party on whose behalf the proceeding is required, and shall be costs in the cause. WITNIiSS FEES. 48. On application made to him in that behalf, the judge shall determine, what number of witnesses see No. u of shall be allowed on taxation of costs; the allowance ""'''**'"• for whose attendance shall be according to the scale in the schedule, unless otherwise ordered; but in no case to exceed such scale, except the witness attends m^et tubpatna from the superior courts (&); and, before allowing disbursement^ to witnesses, the clerk shall be satisfied that the witnesses attended, and that the claim for fees is just (&6). 9 ^ .■i i •' (a) Form 7 shews sufficiently the commeucemcnt and conclusion of affidavits in general. See forms 7 (a), tfec, for special jarats in different canes. (b) The fees in such case are given in note (7i) to sec. 100. (bb) Sec. 86 authorises the clerk to " take costs subject to the revi- sion of the judge." Any person giving evidence be- fore the judge is entitled to his witness fees, whether attending under a subpoena or not. And if in the opinion of the judge, a wit< ness is material, he would, if at- 132 DIVISION COURT RULK9. ABATEMENT. 49. Where one or more of several plaintiffs or jJ fendants shall die before judgment, the suit shall nJ abate, if the cause of action survive to or agaiml such parties. 50. Where one or more of several plaintiffs or dJ fendants shall die after judgment, proceedings thereoij may be taken by the survivors (y survivor, miin\ leave of court. ■•;..; ,>ii . JUDGMENT. 51. Every judgment, order, and decree of tbil court, shall be entered by the clerk in the procedonl ;!■ tending on a subpoena, be entitled to be pud even though 't should not be found necessary to call him. The latter part of the rule gives the clerk a quan judicial position, and requires that he should act vrith judgment and caution. He must be satisfied, — Ist. That the witness for whom fees are claimed has actually been paid, not that he tt to be paid. 2nd. That he actually attended and was present in court when the case was under investie^ation, and ready to be examined if called, though he might not have been actually examined. 3rd. That he was a material and necessary witness, of which the fact of his being examined before the judge would be sufficient evi- dence, unless the judge should state that what he had to testify had nothing to do with the case, or for any other reason order that he should not be allowed witness fees. If the witness were not exomined, and no order made by the judge on the subject, it would devolve upon the clerk to exercise his judgment as to whether the evidence of the person could be considered material or necessary. To satisfy himself on this point it would generally be necessary ibr| him to have before him the Btat»| ments on oath of the plaintiff ot defendant, and such other CTidennl and explanations as could be »i\ dnoed. 4th. That he attended onlyii| the one case in which fees tti claimed, for if he was a witness ii more than one, the fees paid to bin should be apportioned amongtt| the different suits. 6th. That the sums paid are I within the scale allowed in the schedule (form 14), or in theSupe- rior Court tariff, as the case may be, or are in accordance with tbe terms of any special order thit] the judg^ might make. If the witness travelled by I rail or other public conveyance, the judge womd probably order that he should only be allowed bii actual travelling expenses, if snch ' sum were less uian the &d. a mile one way, allowed by the tariff. In nearly every case the clerk will find it to his advantage, both for his information and as a pro- tection against fraud to insist upon the production of an affidavit of disbursements by the plaintiff or defendant claiming witness fees. Such affidavit may be in the form 14 (a), given in the schedule. i DIVISION COURT RULES. 133 ^k according to tho forms givon in the schedule ; Sm noh. ia, r to the like effect ; and when any order is made for J^; JJ;S;aoI be payment of any debt, damages, costs, or ot^or 37, a«; 39,40, pm 01 money, tho same shall bo payable at the office w, ei'mid 64 f the clerk of the court, forthwith, or at such periods »' ■«»««»«»•• I the court shall order. - ' .. , (> NEW TRIAL. 52. Application for new trial (c) may be made viva ^^°-. ^' "' xe, and determined on the day of hearing, if both '^ artics be present ; but if made when both parties not present, it shall be in writing, and show Iriefly the grounds on which it is made (which roands, if matters of fact requiring proof, shall be ipported by affidavit), and a copy tnereof, and of Iverr such affidavit, shall be served by the part^, oakiDg the application, on the opposite party or his ^Dt, or left at his usual place of abode or business, within tho division,— or if without the division, ben with the clerk, who shall transmit the same brthwith to the opposite party; and the application [dcI afP.davits (if any) together with an affidavit of he service thereof, shall be delivered to the clerk, irithin fourteen days after the day of trial, to be by ^im, on receiving the fees and necessary postage, ansmitted to the judge, with a copy of the original balm, and other papers necessary to the proper koderstanding of tho case, which delivery to the llerk shall operate as a stay of proceedings, until tho judge's final decision on tho application is communi- ated to the clerk; and the judge afler receiving aoh papers shall delay for six days deciding upon jhe application, to enable the opposite party to answer khe same in writing or by affidavit, if facts stated by Ihe applicant in his affidavit are disputed; and the decision or judgment of the judge (d) shall be trans- mitted to the clerk by mail, who shall, if a new trial be ordered, notify the parties thereof by mail or btherwise, and the suit shall be tried at the next sit- "^ pgs of the court, unless the judge shall otherwise prder; and if the application be refused, or if the ■I il M '< I if {c) See sec. 107 and notes. {d) See form 19. ni I ^ i 134 DIVISION COURT RULES. ! A I i ' party applying shall fail to comply with the termj imposed by the judge, the proceedings in the 8uit shall be continaed as if no such application had been l made; provided always, that the judge> instead of deciding upon the application afler the end of tb six days aforesaid, may, in his discretion, decide to hear the parties on the matter of such application, at the next sittings of the court, or at such other time and place as he may appoint, which decision shall be sent to the clerk, and be by him communicated to I the parties in like manner as aforesaid. INTERPLEADER. 53. When any claim shall be made to, or in res. pect to, any goods or chattels, property, or securit;, taken in execution, or attached under the process of any Division Courts or the proceeds or value thereof, by any landlord for rent, or by any person, not being the party against whom such' process has issued, and ^^^<^ll*^^°'| be according to the forms in the schednje, or to the "^ ° ** like effect (/). 54. Where the claim to any goods or chattels, property or security taken in execution or attached, or the proceeds or value thereof shall be dismissed, the costs of the bailiff shall be retained by him out of the amount levied, unless the judge shall other- ^se order. WARRANT OP COMMITMENT. ijb. Warrants for commitment (jr), whenever issu- gee nos. 66 ed, shall bear date on the day on which the orckr for^^^^^ commitment was entered in the procedure book, and shall continue in force for three calendar months from suQh date, and no longer; but no order for commitment shall be drawn up or served. - - FBOC££PINGS AGAINST EXECUTORS AND ADMINISTRATORS. 56. A party suing an executor or administrator, g«e Noa. 42 may charge in the summons, in the form in the^^<>^^ schedule, that the defendant has . assets, and has wasted them. 57. In all cases, if the court shall be of opinion that the defendant has wasted the assets, the judg- ment shall be, that the debt or damages and costs shall be levied de bonis iestatoris 8«, dbcj etf «t norij s^ xo. 34 of de bonk proprti8(h)f and the non-payment of the "'^"x*''^®- amount of the demand immediately, on the court finding such demand to be correct, and that the de- fendant is chargeable in respect of assets, shall be conclusive evidence of wasting to the amount with which he is so chargeable. (/) No. 81 is the form of the (h) That is to say, of the goods minute in the procedure book, and and chattels of the testator, if he No. 82 of an execution against the has any, bat if not, then of the claimant for the costs incurred by goods of the defendant, the execn- hia disallowed claim. tor or administrator, himself. ig) See sees. 165, et seq. and ,» , : forms 56 (a) et seq. i' il' Hit 136 DIVISION COUET BULE8. ■chedule. See No. 83 of Bcbedule. I 58. Where an executor or admiDistrator denies his representative character, or alleges a release to himfielf of the demand, whether he insists on any other ground of defence or not, and the judgment of the court is in favour of the plaintiff it shall be, that ^^^'i.^^'the amount found to be due, and costs, shall be levied de bonis testatoris si, &c., et, si noUf de bonis propriit. 59. Where an executor or administrator admits his representative character, and only denies the demand, if the plaintiff prove it, the judgment shall be, that the demand and costs shall be levied (/e bonis testatoris si, &c., etf si non, as to costs, de bonit prcpriis. 60. Where the defendant admits his represoDta- tive character, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, and the defendant proves the administration alleged, the judgment shall be, a » of^to levy the costs of proving the demand de bonu schedule, testotoris », dsc, ct, 81 non, be boms propms ; and as to the whole or residue of the demand, judgment of assets quando acciderint (f) ; and the plaintiff shall pay the defendant's costs of proving the admin- istration of assets. ' !• :• 61. Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand^ but the defendant does not prove . ^ , the administration alleged, the judgment shall be, to t /i levy the amount of the demand, if such amount of assets is shown to have come to the hands of the defendant, or such amount as is shown to have come See No. 88 of to them, and costs, de bonis testatoris si, sons or things, as well as one person or thing; and every Word importing the masculine gender shall, where necessary, be understood to mean a female, as well as a male ; and the words '' on oath" shall be understood to mean viva voce, or by affidavit, or affirmation; and the words "judge" and "clerk," respectively (when used) shall be taken to extend and be applied to the deputy judge or deputy clerk (as the case may be or require); and the words plaintiff" and " defendant," respectively, shall be mutually transposed, where necessary, for the proper application and construction of any of these rules or the forms herewith, or for giving effect thereto ; and the word " county" shall include any two or more counties united for judicial purposes; and in any form or proceeding, the words "united counties," shall and may be introduced according to law, and circumstances rendering the same necessary. ■rt: . u\t'r (f^ci'n-'n ■'l'. ; -.J si. * .'■' if,:'.!" I-n**. [Note.— Sec th 1. Affidavit, »ii( t In the- Di A.B., of- he {or E. F., o niaketh oath s of action agait in the D deponent (or i of the County ponent's resid the place wh( and to the p] Division of th that the dista place where tl resides is aboi court is held and this Divis more easy an( cause tried in •.;^«» Sworn. &c. J' 1 • ^ 1 DIVISION COURT FORMS. 143 y-l » \ ..: 1 SCHEDULE OF FORMS. Uir* -f^r I iy-' ■ • I'-j -■ i .(♦;'• 1- [Note. — Sec tliG explanatory note at the commencement of the Rules "{ 4- ■. f 20. 1. Affidavit for leave to sue a party residing in an See rule No, adjoining division. In the Division Court for the County of ^— -, yeoman, maketh oath and saith, that -, yeoman, agent for A. B., of, &c.. A.B., of he(orE. P., of- maketh oath and saith, that the said A. B.) hath a cause of action against C. D. of . yeoman, who resides in the Division of the County of ^— , that this deponent (or the said A. B.) resides in the Division — , that the distance from this de- of the County of • ponent's residence (or from the said A. B.'s residence) to the place where this Court is held is abdtit miles, and to the place where the Court is held in the — — Division of the County of is about miles ; that the distance from the said C. D.'s residence to the place where the court is held in the Division where he resides is about miles, and to the place where this court is held about miles ; that the said Division and this Division adjoin each other, and that it will be more easy and inexpensive for the pPirties to have this cause tried in this Division, than elsewhere. A. B. (prK F.) Sworn, &c. ! I :fH (11 4 1^1 i % ^:^:^- ti mmi m : & 144 DIVISION COURT FORMS. ee rule No 20. 2. Affidavit for leave to me in a division adjoining one in which debtor* retide^ where there are several In the Division Court of the County of .. A. B. of ^ yeoman, maketh oath and saith, that he(orE. P. of -, agent for A. B. of, &&, maketh oath and saith, that the said A. B.) hath a cause of action respectively against each of the debtors named in in the first column of the schedule on this affidavit endorsed ; that the columns in the said schedule nuin> bered respectively 1st, 2nd, 8rd, 4th, 5th, 6th, and 7th, are truly and correctly filled up, according to the best of this deponent's knowledge and belief; that the Divisions named in the second and third columns of the said schedule, opposite each debtor's name respec- tively, adjoin each other; and that it will be more easy and inexpensive for the parties to have the said causes respectively tried in this Division than elsewhere. A. B. {or E. P.) Sworn, &c. ♦• ; ' ' i i I t OQ O d •* 09 S ^ 13 DIVISION OOUBT FORMS. 145 le B^ a«> 05 Si lillll •Si o S g a 111 5 iiii Pi! r ll * i 04 00 Ol ooo OQ ^ a s a'2 CO - o o ©a gg w -1^ •C-aoQ CO ■*> <♦' Vs aj I. I I. esJw S3 o 8 o ■*» II .1 146 DIVISION COURT FORMS. Km rale No. 16. 8. Pnrticvlnrs in eases of contract. A. B. (a), Hum of tho amount of- claims of 0. D., of , the 4. P [tho amount of tho following account, or of the note (a copy of which is under- written) together with interest tnereon] : or for that the said C. D. promised {here state shortly the promise) which undertaking tho said 0. D. hath not performed : —or, for that the said 0. D. by deed under his seal, dated, , covenanted to, &c., and that the said C. D. hath broken said covenant, whereby the said A. B. hath sustained damages to the amount aforesaid {h). A. B. (a) If the plaintiff sues in a npo- cial or representative character it should be bo stated. See note to form 22. (A) By rules 66 & 64, in actions against executors or administra- tors, the plaintiff may charge that the defendant has wasted tho goods of deceased, as in forms 41 & 43. The following concise forms will be found useful by non-professional persons, though the multiplicity of causes of action that are con- tinually arising prevents the pos- sibility of providing a form to meet every case. STATEMENTS OF CAUSES OF ACTIOX ON CONTRACTS. For that the defendant is indebt- ed to the plaintiff in the sum of $ for {general commencement). For goods sold.'] — Goods bar- gained and sold by the plaintiff to the defendant. For goods sold and delivered.] — Goods sold and delivered by the plaintiff to the defendant. For money on exchange of horses.'] — Money agreed by the defendant to be paid by the plaintiff together with a horse of the defendant, in exchange for a horse of the plain- tiff delivered by the plaintiff to the defendant. For crops sold.] — Crops bargain- ed ond sold by the plaintiff to the defendant. For outgoing tenants rtf/htn.]— For and in respect of tho piaintitfa having relinquished and given up to, and in favour of the defendant, at his request, the benefit and ad- vantage of work done and materi- als found and provided ond monies expended by the plaintiff, in and about the farming, sowing, culti- rating and improving of certain land and premises. Fiyr the use of a house and land.] — The defendant's use by tlio plaintiff's permission of meuBUOgos and lands of the plaintiff. For th% use of pasture land and eatage of grass,] — The defendant's use of pasture land of the plaintiff, and the eatage of the grass and herbage thereon by the plaintiffs permission. For wharfage and warehoime room.] — The wharfage and ware- house room of goods deposited, stowed and kept by the plaintitt" in and upon a wharf, warehouse, and premises of the plaintiff for the defendant at his request. For Jiorse keep, stabling, &c.]— Horse-meat, stabling, care and attendance provided and bestowed A. B., of- or about the ship of and one calf, the and injure a wag whch the said mankind or shec day and at tho pli of the said A. B., pcrty of tho said A. B., {pr^ as the by the plaintiff i keeping of horses fi «t his request. For work and ma done and materia the plaintiff for tl his request. ' For a witness's expenses necessari tlie plaintiff in attc ncss for the defer quest, to give evi trial of an actioi depending in the - the defendant wa vne E. F. defendat For money lent by the plaintiff to For money paid by the plaintiff fo at his request. For money reci received by the d use of the iilaintiff On an account found to be due f ant to the plaint stated between th Warranty of ah defendant by war to be then sound s sold the said horsi yet the said hors sound and quiet t( I)IV1810N COURT FORMS. 4. Partiettlara in eaaea of tort. A. B., of , states that 0. D., of , did, on or about the day of , A. D. 18 — , at the town- ship of • , unlawfully [take and convert one cow ind one calf, the property of the said A. B. : or break and injure a waggon of the said A. B. : or keep a dog, whch the said C. D. knew was accustomed to bito mankind or sheep, and that the said dog did, on the day and at the place aforesaid, bite and lacerate the arm of the said A. B., #r kill, or injure two sheep, the pro- nof the said A. B. : or assault and beat the said , (or, 09 the case may he, stating the tort sued/or 1 7 8«e rula No. 16. by the plaintiff in feeding and itcepiog of horses for the defendant «t his request. For work and materia^.] — ^Work done and materials provided by x\ie plaintiff for the defendant at his request. For a iBilness'a e^^tues,^ — ^For expenses necessarily incurred by the plaintiff in attendang as a wit- ness for the defendant at his re- quest, to give evidence upon the trial of an action at law then depending in the , wherein the defendant was plaintiff and vne E. F. defendant. For money lent.'] — Money lent by the plaintiff to tne defendant. For money paid.'\ — Money paid by the plaintiff for the defendant at his request. For money received.] — Money received by the defendant for the use of the plaintiff, On an account stated.] — Money found to be due from the defend- ant to the plaintiff on accounts stated between them. Warranty of ahorse.'] — That the defendant by warranting a horse to be then sound and quiet to ride sold the said horse to the plaintiff, yet tlie said liorse was not then sound ond quiet to ride. On a guarantee.] — ^That the de- fendant in consideration that the plaintiff would supply E. F. with goods on credit promised the plain- tiff that he, the defendant, would be answerable to the plaintiff for the same, that the plaintiff did accordingly supply the said E. F. with goods to tne price of £ and upwards on credit, that such credit has elapsed, yet neither the said £. F. nor the defendant has as yet paid for the said goods. Upon a lease for rent.] — That the plaintiff let to the defendant a house for seven years to hold from the day of , A. D. , at £ a year, payable quarter- ly, of which rent quarters- are due and unpaid. On a mortgage died for principal and interest.] — That the defendant by deed covenanted with the pifaintiff to pay to the plaintiff' £ on the day of , A. D. , together with interest tliereon at the rate of £6 per cen-- tum per annum, but did not pay the same. The above forms are given^ merely as forms of statement of causes of action, and the claim must state such further particulars' as the facta of the case require. "la M IMltiv^.lS us I Bee role Mo. DIVISION COtTRT POEMS. in coneiae langitagey] ; The said A. B. hath sustained thereby damages to the amount of — — | and claims the same of the said CD. A. B. 6. Particular in aetioni apainat a eUrh or haitiff, and hi» sureties. A. B., of , claims of 0. D., clerk (or bailiff), of the — — Division Court for the county of , and of E. F., of — — , and G. H., of — — ■, (sureties for and parties with the said G. D. to a covenant for the due performance of the duties of his said o£Bce) the sum of for moneys had and received by the said G. D. as such clerk {or bailiff) as aforesaid, in a certain cause in the said Division Gourt, wherein the said A. B. was plaintiff, and one H. H. was defendant, to and for the use of the said A. B., the payment whereof the said C. D. unduly withholds. And also (stating in like manner any other similar claim) — [or, the sum of ' for damages sustained by the said A. B. through the misconduct (or neglect) of the said G. D. in the per* formance of the duties of his said office : For that on the — — day of , at , (describe in ordinary language the neglect or misconduct^ wherely the dam' age was occasioned) \. A. B. -♦— In the 6. Summons to appear. Division Gourt for the county of No. J A. D., 18—. Between A. B., plaintiff; and G. D., defendant To G. D., the above-named defendant Seeroieii You are hereby [as before (or, as often before) you is'siV^ were] summoned to be and appear, at the sittings of * this court to be holden at—— *" **-- ^ ^'— -' -, in the said county of in the township of , on the day of ^ A. D. 18 — , at the hour of in the forenoon, to answer the above-named plaintiff in an action on contract (or, in an action for tort) for the causes set forth in the plaintiff's statement of claim hereunto an* nexed; and, in the event of your not so appearing, t1 ) plaintiff ma; default Dated the - Claim — Costs, ezcit Take noi any demand tort omit tl this cause, Limitations and %f a set (omit the m must be gi^ of abode, ii clerk of the division, at In the a, F., County of and saith, duly serv< annexed 6\ the same was not p< that he n( service. Sworn b< this- Clerk - This form on the su I sweai wereserv DIVISION COURT FORMS. 149 B. J and plaintiff may proceed to obtain judgment against you by default Dated the day of , A. D. 18—. By the court Claim . , Clerk. Costs, exclusive of mileage, . ironcB. Take notice, that if the defendant desirjBS to aet off any demand agaimt the plaintiff' (if the aeticn ie for tort omit the teordt in italiee) at the trial or hearing of this cause, (or) to take the benefit of any Statute of Limitations, or other statute, notice thereof in writing, and if a setoff containing the partieulare of»ueh »et-^ (omit the words Uui in italics, if the action be for tort\ must be given to the plaintiff or left at his usual place of abode, if living within the division, or left with the clerk of the said court, if the plaintiff reside without the division, at least six days before the said trial or hearing. 7. Affida/tit of service of summons. , . In the Division Court for the County of Between A. B., plaintiff; .,,, and C. D., defendant E. P., bailiff of the Division Court of the said 5^^. go. County of , (or of the said court) maketh oath and ndc 40. and saith, that he did, on the day of -*—— , 18 — ^ duly serve the said C. D. with a true copy of the annexed summons and statement of claim, by delivering the same personally to the said C. D., (or if the service was not personal, state how and on whom served) and that he necessarily travelled miles to make such service. , : , E. P. Sworn before me at this- Clerk. ' day of' 18—. Division Court Or, This form may be used, when the affidavit is endorsed on the summons : — I swear that this summons and claim annexed thereto were served by me on the day of ^ by delivering «), 150 DIVISION COURT FORMS. a true copy of both, personally, to the defendant, {or to the wife or servant of the defendant, or to a grown up person, being an inmate of and at the defendant's dwelling,) and that I necessarily travelled miles to do so. J- -Ml • :!) v' Sworn, &c E. F., bailiff. 9. i5 'i-' -I''"' ■'■- ^ Clerk, &C. ■^- '>"'' -'••'^ W 99VBJ yVVVWW VWVV ^ ^MVWJ% edat y) ii» ; ; i of , [ , .7 re me. ) • '*»f '«.' !. < Or as the ease may he. 8. Notice of aet-off. In the Division Court for the county of . Between A. B., plaintiff ; and C. D., defendant. See rule No. Take notice, that the defendant will set-off the fol- ^- lowing claim on the trial, viz. : Dated this day of , 18 — . CD. ' ToA.B.,theplaintiffi ^ ^'^ ^ i ' The plain hearing oft evidence, ai fence, name has been su Limitations Dated thi To A. B., tl N.B.—Th 10. Notice In the The plaii fendant will second and be correct [ missory not Dated th N. B.— 2! or of other < 11. C In the I acknoT the sum o amount ai cause. Dated t DIVISION COURT FORMS. 9. Notice of defence under statute. In the Division Court for the County of Between A. B., plaintiff; ; iiVA^h and C. D., defendant The plaintiff is required to take notice, that upon the hearing of this cause, the defendant intends to give in evidence, and insist upon the following ground of de- fence, namely, that the claim, for which he the defendant has been summoned, has been barred by the Statute of Limitations {or as the ease may be). ' <; i it ;,;:•; i Dated this dav of . . v - To A. B., the plaintiff. ♦ : - . ^ p i\r. B. — This notiee may he embodied with notice of setoff. 151 See rnle No. 29. •i j; ., 8m rule No. 80. 10. Notice of admission to save unnec^^ssary expense in proof. In the Division Court for the county of . Between A. B., plaintiff; and C. D., defendant The plaintiff is required to take notice, that the de- fendant will admit, on the trial of this cause, the first, second and third items of the plaintiff's particulars to be correct [or, the signing atid endorsement of the pro- missory note sued upon {or cm the ease may he)]. Dated the day of ^ A. D. 18—. CD. N. B. — This notice may he embodied with notiee of set-off^ or of other defence. 11. Confession of debt after suit commenced. In the Division Court for the county of . : r .- Between A. B., plaintiff; and /. !-K . C. D., defendant I acknowledge that I am indebted to the plaintiff in see tec. 117, the sum of , and consent that judgment for \}a3X°-ndru\tZ\. amount and costs may be entered against me in this cause. CD. Dated the day of , 18—. Witness , clerk {or bailiff). ■YV ;l: :* \ i ft %. : 152 DIVISION COURT FORMS. 12. Affidavit of execution of eor^emon. i In the Diyision Court for the county of •, Between A. B., plaintiff; and G. D., defendant Sfff re. 118, E. P., clerk (or bailiff) of the Division Court for and rate 31. ^jj^ ^^^ ^^f '^^ ^f the said court), maketh . oath and saith, that he did see the above (or annexed) confession duly executed by the said defendant, and that he is a subscribing witness thereto, and that he< deponent, has not received, and is not to receive any, thing from the plaintiff or defendant, or any other per- son, except his lawful fees, for taking such confession, and that he has no interest in the demand sought to be recovered in this action. E. P. Sworn before me, at , on the day of ^ 18—. Clerk, &c., or a commissioner in B. R. in and for the said Su $ee.Vt. 18. SummoM to witneas to attend aittinff of court. In the Division Court for the county of — — — . Between A. B., plaintiff ; and C. D., defendant Tou are hereby required to attend at the sittings of the said court to be holden at ■ ■ ■■ , on the , 18 — , at the hour of—— in the forenoon, to give evi- dence in the above cause, on behalf of the above-named [and then and there to have and produce (statt partiaUar doeuments required) and all other papers relating to the said action, in your custody, possession or power]. Given under the seal of the court ^^^^ ^^J ^^ , 18—. To Clerk. 8t uc. 07. * 13 (a). Summons to witnese to attend lefore arhitrator. In, &c., You aro hereby required to attend before , the arbitrator (or arbitrators) to whom this cause stands referred, at the on the i clock in the (j time appointee the said referi on behalf of t inform No, 1 Attendance Travelling < ♦14 In the, Ac A.B., ofA above nametS » as witnesses at the last si judgment an rial witnesse the said witr in coming t( said court y been paid oi shillini travelling es Sworn, &( In the You are juror in th the hour of Given ui , 18-] To — DIVISION OOUBT FORMS. referred, at the house of on the day of , in the township of , A. D. 18—, at of the clock in the {fore)noon of that day, being the place and time appointed by the said arbitrator for a meeting upon the said reference, to give eridence in the aboTe cause on behalf of Uie abore named , &c. {eonelude a§ inform No. 18.) 153 ' ' 1 * J 1 E ; j ■r • t * «v 14. Allowance to witneueB. Attendance per day in court 60 cts. Travelling expenses, per mile, one way .... 10 (t Sm ml* No. 48, and wo. lOOandflola. MS E. P. * 14 (a). Affida/tit of dv^urtemenU. In the, &C. Between A. B., plaintiff; V,, *nd 0. D., defendant A. B., of &c., Yeoman^ {or E. F. of &c., agent for the SfenHtii, above named plaintiff,) maketh oath and saith, That<*^*'o<<^ ^ , and , did attend under a subpoena as witnesses in this cause, on the part of the pkimtif^ at the last sittings of this court, and were each, in the judgment and belief of deponent, necessary and mate- rial witnesses on his (or the plaintiff's) behalf; that the said witnesses did each necessarily travel — — miles in coming to {or returning from) the place where the said court was held, and that the said witnesses have been paid on behalf of this deponent {or the plaintiff) shillings each for their attendance in court and travelling expenses. A. B. {or E. F.) Sworn, fto. m m 16. Summons to jurors. Division Court for the County of • In the - You are hereby summoned to appear and serve as a juror in this court, to be holden at ■ '■ on , at the hour of . Herein fail not at your peril. Given under the seal of the court, this day of , 18—. To . , Clerk. * I DIVISION COURT FORMS. ,131. * 15 (a). Oath to juror. You shall well and truly try the matters in difTerencel (or if jury caUed under sec. 132 aay, the facts contro.! verted in this cause), between the parties, do justice I between them according to the best of your skilUndl ability and a true verdict give according to the evidence; So help you God. ' * 16 (b). Affirmation to juror. You do solemnly, sincerely, and truly declare and affirm, that you are one of the Society called Quakers {or a* the case may he, see form 7 b), (substance ofoaM as above), and this to do you solemnly, sincerely, ami I truly declare and affirm. 16. Minute in Procedure Booh of judgment of nonsuit, j or dismissal for want of 'prosecution. See rule Judgment of nonsuit (or, that the cause be dismis- No. 61. ggjjj ^^Q^>^ (( nu(j tijj^j plaintiff pay for defendant's costs," {or) for defendant's trouble, and- fori his costs ; to be paid in days." '♦ ',i-«tfr i«ic t 'if; ».';>'' M ?ri' In the Di I It is ordere I cause, and all J a new trial be terms or cond made). Dated ■, 1^ 20. Execu -Di -.A See role No. 61. 17. Minute in Procedure Booh of judgment agaimt d^endantfor debt or damages. Judgment for the plaintiff for debt (or damages) and costs; to be paid in days (when an excess has been abandoned, add the words *' being in full discharge of his cause of action"). See rule No. 61. 18. Minute in Procedure Booh of judgment for defendant. Judgment for the defendant (or for the defendant for costs ; or for on set-off, or for his trouble and loss of time, and also for his costs ; to be paid forthwith,) (where an excess in the set-off has been abandoned, add the words ** being in full discharge of his claim, including the excess abandoned"). raVISION COURT FORMS. 19. Order for new trial. 155 [ jg the Division Court for the county of — . Between A. B., plaintiff; and 0. D., defendant It is ordered, that the judgment rendered in this See mie No. \ cause, and all subsequent proceedings, be set aside, and ^^ & new trial be had between the parties on (set out the terms or conditions, if any, on which the order i$ made). , Judge. Dated , 18—. :» ^ -4 20. Execution against the govds of defendant. In the Division Court for the county of . No. y A. D., 18—. Between A. B., plaintiff; C. D., defendant. Whereas, at the sittings of the said court, holden ste tea. iss on , at y by the judgment of the said court, the <'^161' said plaintiff recovered against the said defendant the sum of for a certain debt (or for certain damages) with for costs, which said debt {or damages) and costs were ordered to be paid by the said defendant, at a day now past; and whereas the defendant has not made such payment: these are therefore [as before, (or as often before)] to command you forthwith to make and levy by distress and sale of the goods and chattels of the said defendant, wheresoever the same may be found (except those by law exempt from seizure), the*«^^»c- said debt (or damages) and costs, amounting together *^^" '**"' to the sum of and your lawful fees on the execution of this precept, and also, and if necessary for that pur- pose, to seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the said defend- ant, which may be there found, or such part thereof as may be sufficient for the satisfying of this execution, and the costs of making and executing the same, so that you may have the said sum of , within thirty days after the date hereof, and pay the same over to the clerk of the court for the said plamtiff 1 I 166 DIVISION COURT FOBMS. .fen under the seal of the court, this — , 18—. ■Y^' •<•;, t' . . perty and the town, attachment ourtofthe 1 behalf of onal estate mber wag- » tei " B. P., DivisioQ Y appraise mentioned Jod. ventory. eing duly ihe goods, his inven- examined ttels, &ty T. T. N.N. DIVISION OOUBT FORMS. '^ 20(d). Notice t(f tale. 167 By virtue of—— execution issued out of the *««ec.iM. Division Court for the county of , and to me directed, against the goods and chattels of , at the suit of ->, I have seized and taken in execution AH which property will be sold by public aaction, lit ■, on the day of y at the hour of. — o'clock. Office of the Division Court, ) . — .^ day of , 18—. J , Bailiff. 21. Execution against goods of plaintiff. In the Division Court for the county of No. , A. D. 18—. Between A. B., plaintiff; and CD., defendant. Whereas at the sittings of this court, holden on ^ at , judgment was given for the defendant, and for the sum of costs (or, for the sum of on setoff, and for costs ; or, judgment of dismissal was given, and for the sum of for defendant's trouble, and for costs) to be paid at a day now past ; and whereas the plaintiff has not paid the same, these are therefore to command you forthwith to make and levy, by distress and sale of the goods and chattels of the plaintifi^ wheresoever the same may be found (except those which are by law exempt from seizure), su23Vie. the said sum of , or the said sum of — — and — — , cap. 26, lee. a amounting together to the sum of , and your lawful fees on the execution of this precept, and also, and if necessary for that purpose, to seize and take any money, or bank n )tes, and any cheques, bills of exchange, pro- missory notes, bonds, specialties or securities fur money of the said plaintiff, which may be found, or such part thereof as may be sufBcient for the satisfying of this execution, and the costs of executing the same, so that you may have the said sum of within thirty days after the date hereof, and pay the same over to the clerk of the court for the said defendant 4 I t: ■M I'll ill ill] - . ^ 158 iSSm nUt 12 and note. DIVISION count fORMS. Given under the seal of the court, this day of ,18—. To , , Clerk. Bailiff of the said court. Judgment . Execution ,;, w Paid . , Levy . — • — - ♦ 21 (a). Return of nulla hona. The within » hath no goods or chattels in th« county (or united counties) of ■ whereof I can make the debt {or damages) to bo levied as within com- manded. Dated, &c. -, Bailiff. 221 Sft ru7(! 12 andnoU. &•« rule 12 and n'/te. M ♦ 21 (b) Return of money made. By virtue of the within warrant to me directed I have made of the goods and chattels of ■ the debt (or damages) and costs within mentioned, and have the same to the clerk of the Division Court, county of as within commanded. Dated, &c. Bailiff. * 21 (c). Return of part made, and nulla "bona residue^ By virtue of within warrant to me directed I have made of the goods and chattels of , to the value of I — ^, and have paid the same to the clerk of, &c., and the said hath no more goods or chattels in the county of — —— whereof I can make the residue of the debt [or damages), or costs, or any part thereof. Dated, &c. —— , Bailiff. .^efM7«12 and nott. 176 to 180. * 21 (d). Return tehen payments have heen made hj hailiff. By virtue of within warrant to me directed I have made of the goods and chattels of the sum of $-; — , part whereof I have paid to -, landlord of said , for quarters rent in respect of premises when levy made ; and a further part I have retained a:; fees on execution, The residue, being $ , I have paid to the clerk of, &c. , _ . , j ; v Dated Bailiff. executor, or in what chai (c) The fol found useful truly indebti the 8um of ard delivere and one T. the said C. 1 Hmband wife of A. I DIVISION COURT FORMS. 150 22. J^davit for attaehment. If made after suit oommeneed, Insert style of court and caaie. A. B. of -, in tho county of • {or In. F' of, &c., agent for A. B. of, &c.,) maketh oath (or, Ibeing one of tho people called Quakers, &c., afflrmeth), land saith, that 0. D. of (or late of) , in the coun- jtyof^ — — , , is justlv and truly indebted to this deponent {or to the said A. B.) in the sum of [for goods sold and delivered by this deponent {or by the said A. B.) to the said 0. D., at his request {or other cause of action^ Hating the same in ordinary and eon- m^^^i^ eUe language)]^ and this deponent further saith, thatnofe(e)to ' I ho ha*h good reason to believe, and doth verily believe, /«»"» 3, anrf that the said C. D. hath absconded from this Province, •^JT**^^**' leaving personal property liable to seizure under execu- ion for debt in the county {or united counties) of — — or, hath attempted to remove his personal property, iable to seizure under execution for debt out of Upper Canada {or, from the county or united counties of to another county in Upper Canada) (or, from Upper to Lower Canada) with intent and desigii to defraud this deponent {or the said A. B.) of his said debt [or keeps concealed in the county or united counties of to avoid service of process (or a» the ea»e may he)] with intent and design to defraud this deponent {or the said A. B.) of his said debt ; and this deponent further saith, that this affidavit is not made, nor the process thereon to be issued, from any vexatious or malicious motive whatever. Sworn before me, at in the County of , this day of , 18—. ■ i ,J ' A. B. {or E. F.) Clerk, &c. J • . • ^. B, — If the party sues in a special character, as executor, or the like, it should be stated in the affidavit in what character he claims the debt (c). If.; M (<•) The following forms may be found useful : Surviving partner. — Is justly and truly indebted to this deponent in the sum of for {yooda ao>d and delivered) by this deponent and one T. T. since deceased, to the said C. D. at his request. Husband aud wife, — Mary B., wife of A. B., of, &c., maketh oath and saith that C. D., of, Ac, is justly and truly indebted to the said A. B. and this deponent in the sum of for {good* sold and delivered), by this deponent whilst she was sole and unmar- ried, to the said C. D. at his request. Executor or administrator. — A. B., of, tfec, executor {or adminis- ■If^S I » /, II ^ of lawful money of Oanada, to| be paid to the said defendant, his certain attorney, tsxecutore, administrators and assigns, for which pay< tnent well and truly to be made, we bind ourselves, our I heirs, executors and administrators, and each and every of us binds himself, his heirs, executors and administn- j tors, firmly by these presents. Sealed with our respective seals. Dated this day of A. D. 18—. Whereas the above named plaintiff hath sued out I of the above named court (or from a iustice of the peace) a warrant of attachment against the goods and chattels of the above-named defendant, and hath re- quested that certain perishable property, to wit {»pecif^ property) belonging to the above-named defendant, may be seized, and forthwith exposed and sold, under and by virtue of the said warrant of attachment [or whereas certain perishable property, to wit, ^ belonging to the above-named defendant, hath been seized under and bv virtue of a warrant of attachment, issued out of the I above.named court {or by a justice of the peace) in the above-named cause, and hath been dul;^ appraised and valued at the sum of ^ and is now in the hands of | the clerk of the said court ; and whereas the said above- named plaintiff hath requested the said clerk to expose and sell the said goods and chattels as perishable property] according to the form of the statute in t^a^ behalf. Now the condition of this obligation is s\ich, that if the said above-named plaintiff, hia heirs, executors or administrators, do repay to thQ Sftid above-named dcfen-. trator) of L. M., deceased, maketh oath and eaith that C. D., of, &c., is justly and truly indebted to this deponent in il\9 Wflx of -r'-r-. fop (goods sold and delivered) by the said testatop. (or intestate) L, M., in his life time, to the st^^ G, D, at his peqaest ''.<;.' ■" DIVISION COURT FORMS. 161 |[lant, his executors or administrators, the value of the paid goods and chattels, together with all costs and damages that may be incurred in consequence of the seizure and sale thereof, in case judgment be not ob- iained by the plaintiff, according to the true intent of the 70th section of the " Upper Canada Division Courts Act of 1860," {now tay, the 214th clause of "The Jyi-auiee.2U. rlsion Courts Act") then this obligation to bo void, else to remain in full force and virtue. Sealed and delivered in 1 ^' ?• l^" "-J presence of 1 E. P. L. s.j G. G. [l. 8.J I » 0. 24 Bond on auperaedeaa to warrant of attachment. \n the Division Court for the county of . Between A. B., plaintiff; and 0. D.., defendant Know all men by these presents, that we, C. D., of \in»ert place of retidence and addition) the above- named defendant, E. F. of, &c., and G. G. of, &c., are, iuid each of us is, jointly and severally held and firmly bound to A. B. of, &c., the above-named plaintiff, in the Rum of of lawful money of Canada, to be paid to Jthe said plaintiff his certain attorney, executors, admin- istrators and assigns, for which payment, well and truly {to be made, we bind ourselves, our heirs, executors and idministrators, and each and every of us binds himself^ lis heirs, executors and administrators firmly by these presents. i Sealed with our respective seals. I Dated the day of < 18—. Whereas the above-named plaintiff hath sued out of the above-named court {or from a justice of the peace) warrant of attachment against the goods and chattels of the above-named defendant, for the sum of , and jnder and by virtue of the said warrant of attachment, certain goods and chattels of the said defendant, to Iwit: {specify property seized) have been seized and jattached ; and the said defendant desires that the said [warrant be superseded, and the said property, so attach- led, restored to him, under the provisions of the 67th [clause of the '* Upper Canat^^a Division Courts Act of |1850," (mow say, the 209th clause of " The Division -*« ^^J- 2<»- (Courts Act") 14 id f I SI 163 DIVISION COURT FORMS. Now the condition of this obligation is such, that if the said defendant, his heirs, executors or administra- tors, do and shall, in the event of the claim in the said cause being proved, and judgment being recovered thereon, as in oUier cases, where proceedings have been commenced against the person, pay the same, or pay the value of we said property, so taken and seized as aforesaid, to the said plaintiff, his executors or admin- istrators, or shall produce such property, whenever thereto required, to satisfy such judgment ; then thia obligation to be void, else to remain in full force and virtue. Sealed and delivered presence of i •'■ ': r,- C. D. [l. s.] E. F. Ll-s.] G.G. [L.S.] 26. Order of r^erenee. In the — - Division Court for the county of . Between A. B., plaintiff ; and C. D., defendant Bf9 rale No. By consent of the above-named plaintiff and defen- **• dant (or agent, ifso^) given in open court (or, produced \ in writing to the court), it is ordered, that all matters in difference in this .cause (and if contented to, add "and all other matters within the jurisdiction of this court in difference between the said parties,") be refer- cd to the award of (d) so as said award be made in writing, ready to be delivered to the parties entitled to the same, on or before the day of (e) ; and that the said award may be entered as the judgment in (S) One impartial arbitrator will ^n general be more satisfactory and less expensive than several, but if it is desired to have two, with an umpire, the following forms, for insertion in this place, may be useful : " To the award of E. F. of, Ac, and O. H. of, a this cause {add any fecial term* as) " the costs of reference to be in the discretion of the arbitrator," {or) '4he costs of the action to abide the event of the suit" {g). Given under the seal of the court this [.day of 18—. . . , Clerk. * 25 (a). Appointment for meeting on reference. In the, &c. B. ) I appoint the day of next at the V. D. hour of- ference. To {loth parties). at , for proceeding on this re- , Arbitrator. » \ — •- ♦25(b). Oath, to he administered to witness ly suuciiz. arbitrator. The evidence which you shall give before me as arbi- trator touching the matters in difference in this reference shall be the truth, the whole truth, and nothing but the truth : So help you God. * 25 (c). Enlargement to he endorsed. I enlarge the time for making my award respecting the matters referred to me by the within order of refer- ence until the day of y 18 — . , Arbitrator. Dated, &c. . ^ ((/) Or if desired any of the fol- before the arbitrator all books of lowing clauses: "That the arbi- account, .- UK* C ■X'l -■'at M 3 \ 166 See rule No. 6a DIVIfSION COUET FORMS. 28. Summona to plaintiff' on interpleader. In the Division Court for the county of — -^— . Between A. B., plaintiff; and 0. D., defendant Whereas of hath made a claim to cer- tain goods, [or to certain securities or money (asthtl ease may ie,)] viz.: {here specify) which have been seized and taken in execution (or av 4,ched) under and | by virtue of process, issuing out of this court, in t\ action (or, by a justice of the peace) ; you are therefore I hereby summohed to be and appear before the judge of | the said court, at , on ^ at the hour of — ., when the said claim will be adjudicated upon, and such order made thereupon as to the court shall seem fit. Given under the seal of the court, this day of ^ 18-. • ' • •:! . .iii . , Clerk. To , The above-named plaintiff. iV. B. — The claimant is called upon to give particulars of his claim, which you may inspect on application at the ofBce of the clerk of the court five days before the day of hearing. See rule No. 63. In the 29. Interpleader summons to claimant. Division Court for the county of . Between A. B., plaintiff; • , ' and C. D., defendant You are hereby summoned and required to appear at a court, to be holden on at the hour of , at , touching a claim made by you to certain goods and chattels [or moneys, «&c., or securities (as the case may be), viz. : {here speicify) seized and taken in execu- tion {or attached) under process issued out of this court in this action {or by a justice of the peace), and in default of vour then establishing such claim, the said goods and chattels will be sold (or, the said moneys, d6c., paid and delivered over), according to the exigency of the said process : and take notice, that you are re- quired, five days before the said day of , to leave at the clerk's olfice a particular of the goods and chcttels {or as the case may be) so claimed by you, and the grounds of your claim. 31. Minute in 'I DIVISION COURT FORMS. Given under the seal of the court, this of , 18-. 167 day -, Clerk. To , Of- (the claimant). II ! ^Ii fv» SO. Particulars 0/ claim on interpleader. In the Division Court for the county ol ■. Between A. B., plaintiff; and CD., defendant To whom it may concern. E. F. of claims as his property the following see rnie Wo. goods and chattels {or moneys, &c. ) seized and taken <^^ in execution {or attached), as it is alleged, namely, {specify the goods and chattels^ or chattels or moneys, (fee, claimed) ; and the grounds of claim are {set forth in ordinary language the particulars on which the claim it grounded) ; and this the said E. F. will maintain and prove. E. F. Dated this day of ■ 18—. N. B. — If any action for the seizure has been commenced, liate in what court, and how the action stands. 31. Minute in Procedure Boole of adjudication on interpleader. Adjudged, 'that the goods [or the goods, chattels and see niie« moneys, or proceeds of the goods, &c. {om the. case may ^ot. 51 k 53. le)\ mentioned in the interpleader summons [if only for a part of the goods, <&c., add the words, " hereafter mentioned, that is to say" {here enumerate them)] are {or are not) the property of E. F. (the claimant), or that rent to the amount of is due to E. F. (the claim- ant) ; ordered that , the costs of this proceeding he paid by {here insert such order as to the costs or the sulject in dispute, if any, as the judge shall have made) in days. ^W '« >. H iW 108 DIVISION COURT FORMS. See rule No. 53. 32. Execution against the goods of claimant on interpleader^ In the Division Court for the county of . Between A. B., plaintiff; and 0. D., defendant, E. F., claimant Whereas at the sittings of the said court, holden on at , by the judgment of the said court, the said plaintiff recovered against the said defendant the sum of for a certain debt, before that time due and owing to the said plaintiff {or for certain damages sustained by the said plaintiff) and costs of suit, which said debt [or damages) and costs were ordered to be paid by the said defendant at a day now past ; and whereas the said sum and costs not being paid, an exe- cution issued against the goods of the said defendant, under which certain goods and chattels were seized [i/ the interpleader teas in respect to goods attached^ omii all the preceding after iJie word " claimant," and say in lieu thereof as follows — " whereas a writ of attachment was sued out of this court (or issued by a justice of the peace) under which certain goods and chattels, &c., were seized and attached"] to which the above-named claimant made claim, and which claim came on to be heard and decided, upon interpleader summons, at a sitting of this court held on at , and at such last mentioned court it was adjudged, touching the said claim, that th« goods [or the goods, chattels and moneys, or proceeds of the goods, &c (a* the ease may he)\ mentioned in the interpleader summons [if only for a part of the goods, &c., add the words — " hereinafter mentioned, that is to say {here enumerate them)] were not the property of E. F. (the claimant) ; and it was ordered that the sum of ^ the costs of that proceed- ing, should be paid by the said claimant to the cleok in days, for the use of the said plaintiff; and whereas the said sum of has not been paid, pursuant to the said order ; these are th^efore to require you to make and levy by distress and sale of the goods and chattels of the said claimant, wheresoever the same may be found (excepting those which are by law exempt from See 'a Re. seizure) the said sum of , and your lawful fees on c■•< A It ' I 170 DIVISION COURT FORMS. 85. Minute in Procedure BooJs of judgment against an executor or adminittrator, toho has denied his repre- sentative character, or pleaded a release to himself. 8m miei Judgment for the plaintiff for , and costs, Mo*. 61 Ji 68. jq Y)e paid in days, to be levied of the goods and chattels of the deceased ; failing such goods, then to be levied of the defendant's proper goods, the defendant having pleaded a release to himself (or " the defendant having denied his representative character") and this plea being found against him. 86. Minute in Procedure Booh of judgment against an executor or administrator, who admits his represen- 8m rniM tative eharaeter, and denies the demand. Nra. 61 1 60. See form Mo. ^^^ Bame as in ordinary judgment against executor 88. ' or adiAinistrator. 87. Minute in Procedure Book of judgment against exe- cutor or administrator, where he admits his repre- sentative duMracter, hut denies the demand, and alleges total or partial administration of assets: and the plaintiff proves his demand, and the defendant proves administration. Bm ruiM Judgment for the plaintiff for debt, and also *** *^ * **• costs, to be paid in days ; the plaintiff's demand having been proved, which was denied, and full (or partial) administration also having been proved, which was denied, the said costs to be levied of the goods and chatters of the deceased ; failing such goods, then of the defendant's proper goods ; the said debt to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be administered ; and ordered that , the costs of proving such administra- tion, be paid by the plaintiff in &ys. N. B. — If the defendant is shown to have some assets, the judgment must be for the amount '' de bonis testatoris,''* and for the residue, " quando aceiderint.^^ 38. Minute in executor or at 40. Minute in cutoror ad% DIVISION COURT FORMS. 171 38. Minute in Procedure Look of judgment against executor or administrator J where the defendant admita his representative character^ hut denies the demand^ and alleges total or partial administration ofassets^ and the plaintiff proves his demand, and the defen- dant does not prove administration. Judgment for the plaintiff for , debt, and also , sm rniei costs to be paid in days, to be levied of the goods Nob. 61 k 61. and chattels of the deceased ; failing such goods, then the said costs to be levied of the defendant's proper goods, and the debt to be levied of the goods and chat- tels of the deceased, hereafter to come to the defendant's hands to be administered, the plaintiff's demand having been proved, which was denied, and administration, which was alleged, not having been proved. 89. Minute in Procedure Book of iudgment against execu' tar or admininirator, who admits his representative character, and the plaintiff's demand, but alleges a' total or partial administration of assets, and proves the administration. Judgment for the plaintiff for — days; to be levied of the goods deceased, hereafter to come to the defendant's hands to be administered : — the debt not being denied ; and full {or partial) administration, which was denied, having been proved, ordered, that the plaintiff pay , for the defendant's costs in — — days. 1 - •' fl , ii -, to be paid in See rules and chattels of the Nos. 61 a 62. 40. Minute in Procedure Book of judgment against exe- cutor or administrator, who admits his representative character, and the plaintiff's demand, but alleges a total or partial administration qf assets, and does not prove the administration. Judgment for the plaintiff for , debt and , see rule"* costs, to be paid in days; full {or partial) adminis- Nos. 6i & i8. tration, which was alleged, and disputed, not having been proved, ordered, and the said sums be levied of the goods and chattels of the deceased ; failing such goods, then the debt, of the goods and chattels, hereafter to come to the defendant's hands to be administered ; and the said costs to be levied of the defendant's proper goods. '( i <»: 172 DIVISION COUET FORMS. 41. Summons to executor or administrator, whrc plaintiff intends to apply to the court, alleging that assets have come to the defendant's hands since judgment. Pco rule No. In the Division Court for the County of . Between A. B., plaintiff; ■ ••' and CD., executor {or administrator), Of E. F., deceased, defendant. The plaintiff having learned, that property of the said docoased has come to your hands as executor lor administrator) since the judgment herein, to be admm- istered (and that you have withheld and wasted tho same) intends to apply at tho next sitting of this court, to be holden at in — on the day of at the hour of , for an order, that the debt, {or damages) and costs be levied of the goods and chattels of the said deceased, if you have so much thereof to be administered (and that if you have not, then that it shall be levied of your own proper goods and chattels), and that the costs be levied of your own proper goods and chattels. You are, thereupon, hereby summoned to be and appear at the said court, at the time and place aforesaid, to answer touching the matter aforesaid. Dated this day of • A. D. 18 To -, Clerk. The above named Defendant. I ■f i 1 See rale No. 66. SMform No. 6. 42. Suggestion of devastavit on original summons. (Commence with forms of summons, same as in ordinary cases, but naming defendant as executor or administrator, and adding after the word "default") and the plaintiff alleges, that you the defendant h-ve money, goods, and chattels, which were the property of , deceased, at the time of his death, and which came to your hands as such executor (or administrator) to be administered ; and if not, t'u-^.t you have withheld or wasted the same. L DIVISION COTJKT FOKMS. 43. Summons on a devastavit. 173 In the Division Court for the County of . , , Between A. B., plaintiff; » and C. D., executor (or administrator) of E. F., deceased, defendant. To C. D. the above named defendant You are hereby fas before (or as often before) you see role No. were] summoned to be and appear at the sittings of m- this court, to be holden at ■ ■ ' , in the town of on the day of , A. D. 18 — , at the hour of in the forenoon, to answer the above-named plaintiff in an action, for that you, the defendant, have withheld and wasted divers goods and chattels, which were the property of E. P., deceased, at the time of his death, and which came to the hands of you the defen- dant, as executor (or administrator) of the said E. F. to be administered, whereby a certain judgment recovered against you by the plaintiff at the sittings of this court on at for the sum of remains unsatis- fied; and in the event of your not appearing, the plaintiff may proceed to obtain judgment against you by default. Dated the day of , 18 —. Add notice as in Form 6. -, aork. 44. Minute in Procedure Book of Judgment against execu- tor or administraiar on devastavit after judgment. Judgment that the defendant has wasted goods and See Ruiea chattels of deceased to the sum of , whereby ^°'- *^ * ®*' a judgment, recovered against him by the plaintiff in the Division Court for the county of on the day of , remains unsatisfied ; and that the plaintiff now recover against the defendant the first named sum, and also costs; to be paid in days. Dated this day of 18—. -, Judge. .. I nils iRi ^ii s^. ^ ^ <%^^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 tea 128 |2.5 l £o ■^" MiH ■^ 1^ IIIII2.2 ^. 1^.0 1^ L25 1 1.4 1.6 < 6" ► Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4303 \ (V ^t>^ l\ '>.V ? ,.<> 174 DIVISION COUST FORMS. 45. Summons on behalf of executor or administrator to revive a judgment. I I In the Division Court for the County of . No. , A. D. 18 — . Between A. B., executor of C. D., deceased, plaintiff; and E. F., defendant To E. F., the above named defendant 8MRai«No. Whereas at the sittings of this court (or the •'• Division Court, Ac.,) held at on , the above- named C. D. in his lifetime, obtained a judgment against you for the sum of ^ and costs, which judgment, a transcript of which is hereto annexed, still remains 8m Form 62. unsatisfied, and the said plaintifl^ us executor as afore- said, claims to have execution thereof; you are hereby summoned to appear at the sittings of this court to be holden at — — — on at in the forenoon, to show cause, if any you have, why the said plaintiff, executor as aforesaid, should not have execution against you of the said judgment, according to the force and effect of the sud recovery : and, in the event of your not appearing, judgment will be entered against you by default ,ofv , . By the court, , Clerk. Dated this — day of ,18 — , Claim ^—. ," , ^ Costs exclusive of mileage . 46. Summons to revive judgment against an exeeutor. In the Division Court for the county of . No. A.D., 18— . Between A. B., plaintiff; and C. E., executor of E. F., deceased, defendant ^ Bale Na Whereas at the sittings of this court {or the "*• Division Court for, ice) held at on ^ &c., the said plaintiff recovered against the said E. F., in his lifetime, the sum of , which iudgment a transcript whereof is hereto annexed, still remains unsatisfied; See form No. and the said plaintiff claims to have execution thereof against you, as executor of the said E. F. ; you are hereby summoned to appear at the sittings of this court, show cau should no you, as e« and chatU to be adi appearing by default Dated t Amount c Costs, ezc 47. Minu Judgm the defen Division ' time, on sum of - 48. Jfint Judgm against t1 ajudgme Ac.,) wh the said levied of the hand In the - to be holden at on at the hour of • to Whci at plaintiff cutor (( of , \ DIVISION OOUBT FORMS. 175 show cause, if anj you have, wh^ the said plaintiff should not have execution of the said Judgment against you, as executor as aforesaid, to be levied of the goods and chattels of the said E. F., deceased, in your hands to be administered; and in the event of your not appearing, judgment herein will be entered against you by default. Dated this day of ^ 18 — . By the oourt^ , Clerk. Amonnt claimed — — . Coats, exclusive of mileage — — . W. 47. Minute in Procedure Book of judgment for executor to revive a judgment. Judgment for plaintiff, that he have execution t^instS"* Rai«" the defendant of a judgment of this court (or of the ****• *^ * ••• Division Court, &c ) whereby the said C. D. in his life- time, on ^ recovered against the said defendant the sum of . 48. Minuie in Procedure Book cf judgment to revive a judgment againH an executor. Judgment for the plaintiff that he have execution Baa Roiaa against the defendant, as executor of E. P., deceased, of ''•'•" *•• a judgment of this court {or of the Division Court, Ac.,) whereby the plaintiff, on — — , recovered against the said E. F. in his lifetime the sum of , to be levied of the goods and chattels of the said deceased, in the hands of the said defendant to be administered. 49. Execution against goods of testator. In the — — Division Court for the county of . Between A. B., plaintiff; and G. D., executor {or administrator of K F., deceased, defendant). Whereas at a sitting of the said court, holden on at by the judgment of the said court, the said plaintiff recovered against tho said defendant as exe- cutor (or administrator) of £. F. deceased, the sum of 1 for a certain debt, with ^ for costs, to bo *■" 11 176 DIVISION COURT FORMS. ■> £ levied of the goods and chattels of the deceased ; failing such goods, the costs to be levied of the defendant's proper goods and chattels, which said debt and costs were ordered to be paid at a day now past, and the defendant has not paid the same : these are therefore to command you, forthwith to make and levy, by distress and sale of the goods and chattels, which were the property of the said E. F. in his lifetime, in the hands of the defendant to be administered, wheresoever the same may be found, the said debt and costs, amounting together to the sum of , together with the costs of this execution ; and also, and if necessary for that pur- pose, to seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money, which were the property of the said E. F. in his lifetime, in the hands of the said defendant to be administered, which may be found, or such part thereof as may be sufQcient for the satisfying of this execution, and the costs of making and executing the same, if the defendant have so much thereof in his hands to be administered ; and if he hath not so much thereof in his hands to be administered then that you make and levy of the proper goods, notes and chattels, money, &c. [repeal] of the defendant the sum of for the costs aforesaid, and the costs of this execution and levying the same, so that you may have the said moneys within thirty days after the date hereof, and pay the same over to the clerk of the court, for the said plaintiff. Given under the seal of the court this of , 18_. To . 50. Execui h l,- -, aerk. BailifFof tlio said court. You are h before) to m goods and c which are b which C. D. Division Coi defendant f whereof it \ Division Coi executor of together wi| fees ; and a are to seize bills of excl or securities part thereof this executi within thirt of the court as aforesaid Given ui of 18- To , Bailil Due on judg Execution - Bailiff's feei N.B. — "Warrants of execution upon the judgment given in other cases against executors may bo drawn from this form, with the requisite alterations. 61. Execui In the You are before) to goods and the said d DIVISION COTTRT FORMS. 177 t, , failing efendant'a and costs and the lerefore to J distress were the the hands soever the imounting le costs of ' that pur- lotes, and cs, bonds, were the the hands :h may bo nt for the aking and so much if he hath ninistered ods, notes ndant the ) costs of '< you may r the date the court, —, Clerk. ent given from tills 50. Execution /or mi exeaitor on judgment revived in his favor. In the Division Court for the County of . Between A. B., executor of 0. D., deceased, plaintiff; and E. F., defendant. You are hereby commanded {or as before or as often See Rule No. before) to make and levy by distress and sale, of the ***• goods and chattels of the said defendant (except those which are by law exempt from seizure) the sum of , ** 05 ^Jo, which 0. D. in his lifetime in this court {or the *" ' Division Court, &c.) on , recovered against the said defendant for his debt {or damages) and costs, and whereof it was on , &c., in this court {or the Division Court, &c.,) adjudged that the said plaintiff, as executor of the said C. D., should have execution, together with the costs of execution herein, and bailiff's fees ; and also, and if necessary for that purpose, you are to seize and take any money, or bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the said defendant, or such part thereof as may be suflBcient for the satisfying of this execution ; so that you may have the said moneys within thirty days, and pay the same over to the clerk of the court, for the use of the said plaintiff, as executor as aforesaid. Given under the seal of the court, this day of 18—. To . Bailiff. ' Dne on judgment Execution . Bailiff's fees , -, Clerk. V 1 ".• i' i ) .'i-j'!, and '. .nifcOflj! J. ri '1 jM - CD., executor of E. F., deceased, defendant. You are hereby commanded {or as before, or as often See Rule No before) to make and levy by distress and sale of the**- goods and chattels of E. F., deceased, in the hands of the said defendant, as his executor {or administrator) '%fl I i 178 DIVISION COURT FOEMS. to be administered, the sum of , which the said I plaintiff in this court {or in the — - Division Court, i &c.\ oA — — recovered against the said deceased in hit lifetime for the said plaintiff's debt (ar damages) uj costs, and whereof it was on adjudged in this court (or in the Division Court, &c.), that the said plaintiff should have execution against the said defen. dant as executor (or administrator) of the said deceased, to be levied of the goods and chattels of the said de- cease. 1^ in the said defendant's hands to be administered, together with the costs of execution herein, and baHlffi I fees ; and also, and if necessary for that purpose, yon are to seize and take any money or bank notes, cheques, bills of exchange, promissory notes, bonds, specialtiei or securities for money, which were the property of the said deceased, or such part thereof as may be sufficient for the satisfying of this execution ; so that you may have the said moneys within thirty days, and pay the | same over to the clerk of the court, for the use of the i said plaintiff, as executor {or administrator) as aforesaid. Given under the seal of the court, this dar of , 18—- , Clerk To , Bailiff. Due on judgment . Interest . Execution costs . Bailiff's foes . 9u tea. 142 «<«• in the said county, on the day of y A.D. 18 — , in a suit numbered ^ A.D. 18—. Between ^, plaintiff; '- «?i and AmoTint of Jadgment : Debt £ CmU£ AddiUoDtlooits: £ -, defendant Total.. Amount paid : 186 1<<6 Amoant dae, £ Judgment for plaintiff for — pounds shillings pence, and costs, to be paid in days ; execution issued — — day of y 18 — y and returned day of y 18 — y nulla bona, &c {or a» the ease may be). Pursuant to ■ the provisions of the Division Courts Act, I, y clerk of the said Division Court, do certify that the above transcript is correct, and duly taken from the procedure book of - the said court, and that judgment . in the above cause was recovered at ' the date above stated, viz., the 1 ', 1 ■•f %. 1 J w H Ml i ^ 180 DIVIBION COURT FORMS. day of , A. D. 18— ; nnd further, that the amount ' unpaid on the said judgment is pounds, shillings and pence, as stated in th'j margin I hereof. Given under the seal of the said court, this — . d»y of , A.D. 18—. f . :.wu£.hrf^; ■ .Clerk. .' .■<.■."!»'» »."'^>V '5110^) In the ,alV See tec. 189. S«' i.r<.'r [l. s.] Debt,$ "^ 52 (b). Execution on above transcript. Division Court for the county of — Between , plaintiff; OOBtS,! Y.( •iA .i=v-v. Paid, $ ,'j'li> Mf Levy,! with inter- See 2S Vic cap. 25, MC.2. ostlrom V/P'!15 A.D.18— . and '!. i.% defendant. Whereas at the sitting of the Division Court for the county of holden at in the said county on the day of 18 — , by the judgment of the sud court, the said plaintiff recovered against the said defendant the sum of for debt, with for costs ; which said debt and costs were ordered to be paid by the said defendant at a day now passed, as appears by a tran- script of the entiT of such judgment, attested by the seal of the said court, certified and signed by the clerk thereof, and sent and addressed to the clerk of this Division Court of the county of , pursuant to the provisions of section 139 of the Division Courts Act : And whereas it further appears, by certificate at the foot of the said transcript, attested, certified, signed, sent, and addressed as aforesaid, that the amount unpaid upon the said judgment is ^ which said transcript and certificate is duly entered in the book of this court. These are therefore to command you forthwith to make and levy, by distress and sale of the goods and chattels of the said defendent, wheresoever the same may be found (excepting those which are by law exempt from seizure), the said debt and costs amount- ing together to the sum of and your lawful fees on the execution of this precept ; and also, if necessary for that purpose, to seize and take any money or bank notes, and any cheques, bills olcxchang securities for ni be there found, for the satisfy making and cx< the said sum € hereof, and paj for the said pla Given under one thous To- la the Bail ♦5 -Di Received tn of the said cou sum of I ^» and handed t of the county 18—, the folio bailiff* viz. : Given unde county of— — * 62 (d). To- , Clerk < Sib,— Be pi OfiSce order a clerk Divisioi No. , ^ 53. Cer [Rendered away with tl t the amount unds, — th'j margin ;his — -d,/ -, Clerk. ript. of — Division — holden at tho day of the said 1 against the )r debt, ebt and costs lid defendant » by a tran- lent, attested JcrtilSed and !of, and sent his Division pursuant to the Division her appears, i transcript, d addressed lid upon the i transcript the book of ;o command by distress of the said le may be law exempt its amount- jrour lawful b ; and also, ze and take y cheques, DIVISION COURT FOKMS. « bills of exchange, promissory notes, bonds, specialities or securities for money, of the said defendant, which may be there found, or such part thereof as may bo sufficient for the satisfying of this execution, and the costs of making and executing the same, so that you may have the said sum of within thirty days after the date hereof, and pay the same over to the clerk of the court for tho said plaintiff. Given under the seal of tho court this day of one thousand eight hundred and . , Clerk. To . Bailiff of the said conrt. • < ^ , •.<, . •" 181 ■ § * 62 (c). Return of transcript. Iq tjjg Division court for tho county of . Between , plaintiff; and .: '■', defendant. Received transcript in above suit from , clerk ^ ^^ ^ of the said court, on the day of 18 — ^ for the sum of I ^, besides the interest Issued execution, and handed to bailiff of the Division Court of the county of , and on the day of , 18—, the following return was made by the said bailiff^ viz. : Given under the seal of this Division Court for the county of———, this day of , A.D. 18 — . ' ■"'♦• .""■•" , Clerk, ;-ft. * 62 (d). Plaintiff's order to remit money. To. Clerk of Division Court. Sir, — Be pleased to send as soon as collected, by Post'St«»wteto OflSce order or cheque, payable to the order of ' "" clerk Division Court, ^ the amount of suit, — tec. 139. No. -, A. D. 18—. ', Plaintiff. 53. Certificate of judgment for registration. [Rendered nugatory by 24 Vic. cap. 41, which does away with the registration of judgments.] « % I ^v ft; 182 DIVISION OOUKt FORMS. 64. Applieaiion for judgment summons. To R B., clerk of the Division Court for the county of . 8m role No. Be pleased to summon ^ of, &c , to answer i& No*Sf **"" cording to the statute in that behalf, touching the debt due me by the judgment of the Division Court on my behalf, a mmute whereof is hereunto annexed. "s . ^ ., ' ^ ' A. B., plaintiflf; S«e rule No. 17. 55. Summons to defendant qfler judgment. Division Court for the county of . A. D. 18—. Between A. B., plaintiff; and C. D., defendant To C. D., the above-named defendant Whereas, at the sittings of this court (or the — ■ Division Court for, Ac), held at ^ on, Ac, the above named plaintiff obtained a judgment against you for the payment of the sum of ^ which said judg« ment still remains unsatisfied ; you are therefore hereby summoned to appear \or if a second summons has htea issued under sec. 166, «ay, (as before you were)] at the sittings of this court, to be holden at ^ on the day of ^ at the hour of ^ to be then and there examined by the judge of the said court, touching your estate and effects, and the manner and circum- stances under which you contracted the said debt, (or incurred the damages or liability) which was the subject of the action, in which the said judgment was obtained against you, and as to the means and expectations yoa then had, and as to the property and means you still have of discharging the said debt {or damages, w liability), and as to the disposal you may have made of any of your property : And take notice that if you do not appear, in obedience to this summons, you may, by order of this court be committed to the common gaol of the county. Given under the seal of the court this of- 18—. By the court Amount of judgment — Costs of this summons ' aerk. ♦ 65(a). Sum pursuant No. 60 of 18{ Whereas holden at th county of — above named for the sum iart and cen costs to iDuned unsai And wher« day of ^ the then nex in the • < day of ^ . the forenoon judge of the i and the mai contracted til action in whi you, and as (at the time and means y ofdischargin may have va\ nU appear u\ reeUeaeeordi And whet examination the evidence the said ju( judgment ol ficient mean interest the and the sai( that you si debt, and also — to be paid i be paid on of to forthwith ( DIVISION COURT FORMS. 183 •55 (a). Summona to defendant on dtfault 0/ payment purtuant to order made on a judgment »ummon$. No. 60 of 1868, or No. 802 of 1857, or No. 192 of 1867. Between and -, plaintiff; -, defendant Whereas at the sittings of this court (or of, &c.), Ae«ee.i«6<« holden at the in the town of '—, in the"^ W- county of , on the- day of , 18—, the above named plaintiff obtained a judgment against you for the sum of pounds and shillings {or dol- lars and cents) for debt, besides interest thereon and . costs to be paid , and which said judgment re- mained unsatisfied. And whereas by a summons bearing date the — — (lay of 1 18 — , you were summoned to appear at the then next sittings of this court, holden at the in the of in the county of——, on the day of , 18 — , at the hour of of the clock in the forenoon, to be then and there examined by the judge of the said court touching your estate and effects, and the manner and circumstances under which you contracted the said debt, which was the subject of the action in which the said judgment was obtained against you, and as to the means and expectations you then (at the time of contracting) had, and as to the property and means you still had (at the said last day aforesaid) of discharging the said debt, and as to the disposal you may have made of any of your property. (Jlf debtor did not appear upon the jirti but did upon a second summons recite accordingly.) And whereas upon your appearing thereto, and upon examination and hearing of both parties {or of you, and the evidence, ifany\ it appeared to the satisfaction of the said judge, that you then had {or had since the judgment obtained against you, as the ease may be) suf- ficient means and ability to pay the said debt and the interest thereon, and costs so recovered against you ; and the said judge did then and there order and direct that you should pay to the said plaintiff the sum of debt, and interest then accrued, and costs, and also costs of the said last mentioned summons, to be paid as follows, that is to say, the sum of to be paid on the day of , 18—, the further sum of to be paid on the day of -, 18 — j or forthwith (as the ease may be). U i 'lit It, 4 ' t] ** J 1S4 DIVISION OOUKT FORMS. And whereas the plaintifT alleges that yo» have not paid the and instalments of each, [orl the said sums) so ordered to he paid. You are therefore herehy summoned to appear nt the next sittings of this court, to ho holden at the in the town of in the county of , on the day of , 18 — , at the hour of of the clock in the forenoon, to be then and there examined by the judge of the said court touching your estate and effects, and the manner and eireuvMtanee* under wMd you contracted the taid debt, which toas the auhject of the action in whieh the aaid judgment was ohtainei against you, and as to the means and expectations you then had, and as to the property and means you ttill have, of discharging the said debt, and as to the dispo- sal you may have made of any of your property, and as to the reasons why you have not paid to the plaintiff the said and instalments of each of the said debt, so ordered to be paid by you, as last above mentioned and recited, pursuant to the said order of the judge. And also to shew cause why you should not be committed to the common jail of the county for not complying with the said order of the said judge. Given under the seal of the court, this day of , 18—. By the court, •tf ' I f-t STf. Clerk. Amount of judgment, £ ^,,, ;,. , ,^,j .,,,,„ " instalment, £^— •• /..-i Coat of this summons, £ . ;.' i iToTE — The latter part in italics may be superflumis, hd cannot vitiate. Clerks may omit or adopt, as the judge of (he county directs. — -• — ,.,.■■1 ,...;'_F/v Or the following {which is used in some counties, though it is not considered so correct a form as that giizn above). In the Division Court for the county of . Between , plaintiff; and defendant. To , the above-named defendant. « You are hereby summoned to be and appear at the sittings of the court, to be holden at , in the said county of, on the day of , 18 — , at ' DIVISION COURT FORMS. 185 Ithe hour of o'clock in the forenoon, to shovr cauM Iwhy you should not be committed to the common jail Lf the wiid county for not complying with an order from |u»e court, of the —^—. Dated the day of ^ A. D. 18—. Bj the court Umount of Judgment, £ " inBtalmeot, £ ICosta of thli BummoM, X—. -.Clerk. I* 55 (b). Warrant of eotnmitment/or non-atUndanu on above summona. I Id the Division Court for the county of , Between ^ pluntiii ; and , defendarit I To > bailiff of the said court, and to all constables and peace officers of the county of and to the jailer of the common jail for the said County. Whereas, at the sittings of this court, holden at , Ion the day of ^ A.D. 18 — ^ the above named plaintiff, by the judgment of the said court, in a certain 8uit wherein the court had jurisdiction, recovered against the above-named defendant the sum of pounds shillings and pence, currency, for his debt, damages, and costs, which were ordered to be paid at a day now past ; And whereas the defendant not having made such payment, upon application of the plaintiff, a summons was duly issued from and out of this court, against the said defendant, by which said summons the defendant was required to appear at the sittings of this court, holden at , on the day of , A.D. 18—, to answer such questions as might be put to him, touching his estate and effects, and the manner and circumstances under which he contracted the said debt, or incurred the damages or liability which was the sub- ject of the action in which the said judgment was obtained against him, and as to the means and expecta- tions he then had, and as to the propertgr and means he might have had, and as to the disposal he might have made of any of his property : And whereas the defen- dant having duly appeared at the said court, pursuant to the said summons, was examined touching the said matters : And whereas it appeared, on such examina- tion, to the satisfaction of the judge of the said court, that the said did not incur the said debt or ^6 186 DIVISION COURT F0KM8. Susfe. 1C7 pliability under false pretences, or by breach of trust or i rM'« 10,13 fraud: and thereupon it was ordered, by the juJge of <055> - - . - ... the said court, that the said should pay the amount of the debt and costs, in monthly instalments of the first payment to be made on the , A.D, 18 — ; And whereas the defendant not having madel such payments, upon application of the plaintiff, a sum- 1 nions was duly issued from and out of this court against I the said defendant, by which said summons the defen- dant was required to appear at the sittings of this court, holden at , on the day of ^ A.D. IS-, to shew cause why the order of judgment, dated on the day of , A.D. 18 — ^ for the monthly pay. ment of was not obeyed : And whereas it was duly proved upon oath, that the said defendant was dul- servtd with the said summons : And whereas the defendant did not appear to shew cause as required b} such summons {or on appearing to said summons did not shew sufficient cause why an order of committal should not be made against him pursuant to said summons), and thereupon it>was ordered by the judge of this court, that the said defendant should be committed for the tei-m of days to the common jail of the ^id county, according to the form of the statute in that behalf, or | until he should be discharged by due course of law. These are therefore to require you, the said bailiff, and others, to take the said defendant and to deliver him to the jailer of the common jail of the said county. And you, the said jailer, are hereby required to receive the said defendant, and him safely keep in the said common jail, for the terra of days from the arrest under this warrant, or until he shall be sooner discharged by the due course of law,.according to the provisions of the Act of Parliament in that behaSf, for which this shall be you sufBcient warrant. Given under the seal of the court, this day of , A.D. 18-. ,_,,..._._., : ft ■ ■-';:• ■ -'■■,.;— .^ — , Clerk. i 66. Wa/rrant of eommitment in default of appearance. In the Division Court for the county of . No. —, A.D. 18—. Between A. B., plaintiff; ' I'U-;^ '.,> and *•■- 1 • ' C. D., defendant. To ■■ '' , bailiff of the said court, and to all constables and peace officers of the county of , and tp Wl ^veas DMsion Cc dayof— .-: of the said had jurisdi< fendant, th costs of su r ,< past; sa-ih paym mons was the said d< dant was r holden at - might be ] mans): am said last va defendant mons: an< as requiret cause for theui that < oy tec. It afpear\ oi h(M Veen w ot the said faction of attendance it was ord defendant days, to t1 to the for should be therefore i take the jailer of you, the £ said defei common J under thi charged b of the Ac shall be ) I- DIVISION COURT F0RM8. 187 the i'ler of the common jail of the said county WF -reas at the sittings of this court (or of the SeemiesNoB. DMsion Court for, &c.), holden at , on the 10,13 and &6. jjjy of , the above-named plaintiff, by the judgment of the said court, in a certain suit wherein the court had jurisdiction, recovered against the above-named de- fendant, the sum of , for his debt (or damages) and costs of suit, which were ordered to be paid at a day r ., past ; and whereas the defendant, not having made saoh payment upon application of the plaintiff, a sum- mons was duly issued from and out of this court, against tlie said defendant, by which said summons the defen- dant was required to appear at the sittings of this court, holden at , on, &c., to answer such questions as might be put to him, touching (set out a» in the »wn- mo^iiB) : and whereas it was duly proved, on oath, at the gee form No. Bald last mentioned sittings of this court, that the said ^^' defendant was personally served with the said sum- mons : and whereas the said defendant did not attend, as required by such summons, nor allege any sufficient cause for not so attending Utflen hy a similar recital ihew thai a second summonshas been issued as required oy sec. 166, upon which also the defendant did not appear\ or if the non-attendance on Ji/rst summons has teen wilfulj then say^ and whereas upon the return ot the said summons, it was proved on oath to the satis- faction of the judge of the said court that the non- attendance of the said was wilful)] : and thereupon it was ordered, by the judge of this court, that the said defendant should be committed, ioc the term of days, to the common jail of the said county, according to the form of the statute in that behalf, or until he should be discharged by due course of law: these are therefore to require you, the said bailiff and others, to take the said defendant, and to deliver him to the jailer of the common jnil of the said county : and you, the said jailer, are hereby required to receive the said defendant, and him safely to keep in the said common jail for the term of days from the arrest under thio warrant, or until he shall be sooner dis- charged by due course of law, according to the provisions of the Act of P^irllament in that behalf: for which this shall be your sufficient warrant. ^ Given under the seal of the court, this day of — , 18—. -, Clerk. 188 DIVISION OOUBT FOBMS. SoernlM Nm. 10, 13 aud65. I '} 67. Warrant of commitment c^fter examination. In the Division Court for the county of . No. — , A.D. 18—. ; , , Between A. B., plaintiff; and CD., defendant To , bailiff of the said court, and to all constables and peace o£Bcers of the county of . and to the jailer of the common jail for the said county. Whereas, at the sittings of this court (or the — . Division Court for, &c.), holden at ■■ , on the — - day of, &c., the above-named plaintiff, by the judgment of the said court, in a certain suit wherein the court had jurisdiction, recovered against the above-named defendant the sum of ^ for his debt {or damages) and costs, which were or^lered to be paid at a day now past : and whereas the defendant not having made such payment, upon application of the plaintiff, a summons was duly issued from and out of this court against the said defendant, by which said summons the defendant was required to appear at the sittings of this court, holden at , on, &c., to answer such questions as might be put to him, touching (set out a$ in the summons, and if defendant did not attend on first summons and a second uhjls issued upon which he did attend, recite accord' ingly) : and whereas the defendant having duly appeared See form No. at the Said court, pursuant to the said summons, was ^- examined touching the said matters: and whereas it appeared, on such examination, to the satisfaction of the judge of the said court, that \here insert the parti- vular ground of commitment in the language used in the statute, e. g., " C. D., the said defendant, incurred the debt {or liability), the subject of this action, under false s^tfom pretences," (or by means of fraud or breach of trust*')] : *o6(a)> and thereupon it was ordered by the said judge, that the said defendant should be committed for the term of days to the common jail of the said county, ac- cording to the form of the statute in that behalf, or until he should be dischai^ed by due course of law : these are therefore to require you, the sa'.d bailiff and others, to take the said defendant, and to deliver him to the jailer of the common jail of the said county ; and you, the said jailer, are hereby required to receive the said defendant, and him safely keep, in the said common jail, for the term of days from the arrest under this warrant, or until he shall be sooner discharg- ed by due course of law, according to the provisions of DIVISION OOUBT FOBMS. the Act of Parliament in that behalf; for which this shall be your sufficient warrant Given under the seal of the court, tkia day 189 • if I of- 18—. -, Clerk. — -4- 68. Certijteaie/or discharge of a party fhmmstodjf. jn the Division Court for the county of . No. — , A.D. 18— . Between A. 6., plaintiff; and G. D., defendant I do hereby certify, that the defendant, now in your an m. 109. custody under warrant of commitment in this cause, has, since the issuing of the said warrant, to wit, on the day of 1 paid and satisfied the judgment, for the non-payment whereof he was so committed, together with all costs and charges due and payable by him in respect thereof; and the said defendant may, in respect of such warrant, be forthwith discharged from and out of your custody. Given under the seal of the^court, this day of , 18—. ..:.i.'t«\ti' \ To the jailer of the common jail ? of the county of ■ ) Clerk. 59. Minute %nI)roeedure Book of imposition of fine on witness. Adjudged thnt H. H. was duly summoned to appear sm ml* as a witness in tiiis action, at the sittings of this court Mo. ti. here this day [and also to produce {as tJie case may he)\ ji^ ^ ^^ that payment (or a tender of payment] of his reasonable expenses was made to him, and that he did not appear [or having appeared, did wilfully refuse to be sworn, and give evidence in this action {or to produce such, &c)]. Or adjudged, that H. H. being before this court, now holden, and called upon to give evidence in this cause, did wilfully refuse to be sworn and give evidence. And further adjudged, that the said H. H. pay a fine of for such neglect {or refusal) in days {or forthwith) ; and that the sum of , part of the said fine, be paid by the clerk to the plaintiff {or defendant) being the party injured by such neglect or refusal. 190 DIVISION COURT FORMS. See rule Ko. 61. ^ GO. Minute in Piocedure Book of order for imposition nf fine /or contempt. It is adjudged, that E. E., at the sittings of this court how holden, in open court is guilty of a contempt of ^?M Mc». 182 the said court, by wilfully insulting , judge (or deputy judge) of the said court [or " in view of the court, by wilfully insulting , clerk {or bailiff) of the said court, during his attendance at such court" (or " by wilfully' interrupting the proceedings of the said court")] , and it is ordered, that the said E. F. forthwith pay a fine of for such offence, and in default of payment, be committed to the common jail of this county, for days, unless such fine, the costs herein, and the expense attending the commitment, be sooner paid. ■' .f-vi'tlT\ ■.( 5?,!l Jj!'? .',^::>'"' ''-'x-i'lt. ■: ■ ■ '•'♦ '- >■ 61. Minute in Procedure Book of imposition of fine on a juror fur non-atiendancie. Adjudged, that 6. H. was duly summoned to attend this court now holden, as a juror ; that he hath made Also see. i2fl. default therein ; that he pay a fine of , for such default, in days [or forthwith). S>-e rula No. 61. -,-iifiUi »vi 62. Warrant of commitment for contempt. I In the To — Division Court f«)r the county of ■ , bailifir of the said court, and to all constables and peace officers of the county of , and to the jailer of the common jail of the said county of . S « rnlen Nos. 10,13 Whereas at the sittings of this court; holden on at , it was adjudged that E. F., did then and there in open court, wilfully insult me judge (or !■■ if ': '.1 I !l l.v ^/^^l*"**^^^ deputy judge) of the said court [or did, in view of the court, wilfully insult ^ clerk (or bailiff) of tho said court, during his attendance at such court (or did unlawfully interrupt the proceedings of the said court)] ; and it was ordered, that the said E. F. should lorthwith pay a fine of , for such offence, and in default of payment, be committed to the common jail of the county of for days ; and whereas the said E. F. did not pay the said fine, in obedience to the said order ; these are therefore to require you, the said bailiff .ind others, to take the said E. F., if he shall be found within the , and deliver him to the said jailer of the com- mon jail of the county of ; and you the said jailer are hereby required to receive the said E. F., and >(.j DIVISION COURT F0KM8. 191 him safely keep in the common jail aforesaid, for the term of days from the arrest under this warrant, unless the said fine and costs, the costs amounting to , and also the expenses attending the commitment, amounting together to the sura of , be sooner paid. Given under my hand and seal this day of , 18-. -, Judge, [l. 8,] Scaled with the eeal of the court, [l. s. Clerk. "1 63. Warrant to levy fine upon witness. In the Division Court for the county of . Between A. B., plaintifiT; and CD., defendant. Whereas at the sittings of this court, holden on , set m. 99, at , it was adjudged, that H. H. was duly sum- moned to appear as a witness in this action, at a sittings of this court [and also to produce {as the case may he)\ ; that payment {or a tender of payment) of his reasonable expenses was made to him, and that he did not appear [or having appeared did wilfully refuse to be sworn and give evidence in this action {or to produce such, &c.)l : [where a witness in court refuses to give evidence, in- stead of the foregoing, commence, " Whereas , being before the court at a sittings thereof, and called upon to give evidence in the above cause, did wilfully refuse to be sworn and give evidence"] ; and thereupon it was adjudged, that the said should pay a line of for such neglect {or refusal) in days (or forthwith) : and whereas the said hath not made such payment : these are therefore [as before or as often before] to command you forthwith to make and levy by distress and sale of the goods and chattels of the said , wheresoever the same may be found, (excepting those which are by law exempt from seizure) fM 23 Tic. the said fine and costs amounting together to the sum of*'''^'-^^'*"'- • , and your lawful fees on the execution of this pre. cept ; and also to seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the said- ■ — , which may be then found, or such part thereof, as may be sufficient for the satislying of this execution, and the costs on the same ; so that you may have the said sum of within thirty days after the date hcroof, and pay the same over to the clerk of the court. 'h .i;iii .1 Mi 193 DIVISION OOCBT FORMS. Giren under the seal of the court, this day of , 18—. By order of the judge, To , , CJlerk. Bailiff of the said coart. Fine, ,_ CoBtfl, — .— — Execution, . lecml* Mo. 4. 64. Procedure Book, Division Court for the Ensuing sittings, 26th February, 1851. No. 1. A. D. 18—. John Dob vs. Thomas Roc, Town of , Township of . 1861. let Jan. nth " a4th " 28th " 10th Feb. Received particulars of plaintiff's demand (on contract) for £2, and plaintiff paid Is. 8d, towards costs. Issued summons to bailiff, costs Is. 8d., and mileage. Summons returned served the-^— day of . Defendant paid £2 Is. 8d., demand and costs. Paid plaintiff £2 Is. 8d., demand and costs, deposited. No. 2. A. D. 18—. JoHH Den vs. Thomas Fev, Township of , Town pf — 1861. 10th Jan. 12th " 20th " 8th Feb. 13th " 20th " 20th March Received particulars of plaintiff's demand (for tort) for £6 ; plaintiff paid on account of costs 1 6s., and directed two subpoenas, and gave notice to try by jury. Issued summons to bailiff, costs 68. 9d., and mileage. Summons returned served the day of . Issued jury summons and subpoenas to bailiff. Jury summonses returned served, 10 miles travel, subpoenas served also. Both parties appeared, cause tried, judgment for plaintiff on verdict for ten pounds, ten shillings and ten pence damages, and pounds — — shillings and pence costs, to be paid in days. Defendant paid pounds, , , in full of judgment and cqsts. DIVISION COURT FORMS. 1»3 No. 3. A.D. 18— . James Jonks v. Thomas Tiiompkoit, Township of , Town of nth Jan. I2th " l8t Feb. 8rd " 20tU " 10th March Received particulars of plaintiflTB demand (of contract) for £26, and 68. 6d. on account on costs from James Patton, plaintiflTs attorney. Issued summons to O. G.,baili£f; costs 6s. 6d. and mileage. Summons returned, served the — — day of , 9 miles travel. Defendant executed coraovit for £26. Judgment for plaintiff— twenty-five pounds debt, and pounds , costs, to be paid in days. Defendant paid £ debt and costs. jVfl. — The proceedings in a suit may be continued from page to page, gining a reference from one to another ; and the turns of money may be in decimal currency, pursuant to 16 Vie. cap. 168, if so ordered. 17 ''I m i i piiJi 194 DIVISION COUUT FOKM6. i See rule No. 4. I I <0 I •: I i B) 3 § .s •s 6 . O QO ■§" •S 2 ii Ba 3 a i a s o ooe-* ® o -»go iT it ri i-irH I 3 •5 «rt oo^oo oo « oooei-i oo o OUSOg s;Si o o «e o k» o M TH — — 1 , <3 ■a u- •g. Exceeding £2 the plalutifT. ) " £6 « £10 •• £15 Entering orery judgment Not Exceeding £2 « £5 " £10 « £16 Erwy nearrli into a protfedlng over a year old Taking confession of judgment-Not Exceeding £2 «' £6 " £10 " £16 RTery warrnnt of attarhmont 1 Not Exceeding £2 or execution j " £2 " £5 " £10 £16 Erery copy or certiflcnta of judgment to anotlier county Drawing aflidavltit, and adminifiteriug ouths to bailiff £ 11 Amount 5 'ICurren'y At 8. d 6 1 1 1 1 1 1 1 1 1 1 e 1 1 1 6 I 1 1 1 1 1 3 9 N. B. — The Slims of money may he in decimal currennj, pursuant to the 16/A Vie., eh. 168, if so ordered. m y % ! i til 'Si 196 8oeruI« DIVISION COURT F0BM8. I. -, aboTo named, make oath and say, that th« foregoing return contains a full and correct statement in every particular, to the best of my knowledge and belief, of the fees and emoluments of my office, receircd or receivable on business done during the period above mentioned. , Clerk. Sworn before me, at ' , Ac. 67. List qf unclaimed moneyt. List of all sums of money belonging to suitors in the Division Court for the which remain unclaim- ed for six years before the last day of December last East, applicable as part of the General Fee Fund of the livision Courts. Published in pursuance of the 18th section of the "Upper Canada Division Courts Extension Act of 1858*' [now sec. 45 of the Division Courts Act]. For whom or on whose account money paid in- to court. When Paid. Style and No. of Suit. Amount. «£ 8. d. * ■ ■' Dated Clerk's Office, January, 18 — . -, Clerk. * Or the amount may be in decimal currency, pursuant to 16/A Vic. eh. 158, if so ordered. ■o. s •8 1 a S5 •5 *< hi I II DIVISION COURT FORMS. 107 08. Bailiff'a return. Return of A. 15., baililF of tho Division Court F«« ruled f„f (^ho , made in pursuance of the rules of practice, '*'"''• ^ * ^'^ touohing all warrants precepts and writs of execution, acted on or in hand, between tho day of , and the t^ of • a a o 1 I a 1 a B I i a & e S RlMABta. A. B. above named maketh oath and s tith, that the foregoing return is full, true and correct, in every particular. Sworn before me at , in the ) ,thi8 day of , 18— . V E. R, Clerk. ) * 68 (a). Form of bond under Bection 24. Enow all men by these presents, that we, (1) of , clerk of the Division Court of the said of and of are held and firmly bound unto our Sovereign Lady Queen Victoria, her heirs and successors, in manner and in the sums following, that is to say : — the said (2) in the sum of (8) of lawful money of the Province of Canada ; the said (4) in the sum of (5) of (1) Here insert names in full of the clerk and sureties, p{f^io„g together with places of residence, (such as townsliip, town, /or execviion. Ac.,) and professions, callings, &c. (2) Name of the clerk. (8) Insert a sum double that of ordinary receipts for one year, more or less, at the discretion of the county judg^. (4) NaL&e of first surety. (6) One-half of the sum mentioned in note 3. ^1 I 'A 198 DIVISION CODRT FORMS. like lawful money ; nnd the said (0) in the ^ura at$i:c.2l. "f (7) of liko lawful money, to be |., i.l to oi;r Sovereign Liidy llio Queen, her heirs nn-l su .•e^so^. For which payments, to be well and fuithfully made, we severally, and not each for the other, bind ourselves, our heirs, executors and administrators, and e.ich or us binds himself, his heirs executors and administratora, firmly by these presents. Scaled with our seals, thi^ (8) day of , in the year of our Lord one tliou- sand eight hundred and . Whereas, the above bounden , as clerk of one of the Division Courts of the said county of . has been required, according to law, to give security for the due performance of the duties of his office ; Now the condition of this obligation is such, — That if the said (9) shall duly and regularly keep and render all accounts and returns, which, pursuant to any Act of the Legislature now passed, or hereafter to be passed, ought to be kept and rendered by him, and shall account for, and duly and regularly pay over to the parties entitled thereto, and particularly to the County Attorney, for the time being of the said county if authorized to receive the same, or to such other officer as mav by law in that behalf bo authorized, all and every such sum and sums of money as shall come into his hands as clerk of the said Division Court, and which should be so paid over, and shall well, truly and faithfully, in all other respects, fulfil, perform and • discharge all and every the duties of his said office, whether such duties be regulated or imposed by any act now passed or hereafter to be passed by the Legis- lature of Canada, and whether extended, increased or otherwise altered by any such act or acts then this obligation to be null and void, otherwise to remain in full force, virtue and effect Sealed and delivered in the ? " presence of (10) \ .^ . "' I—" Approved (11) . Judge o€ the county of . Directions for execution. (6) Name of second surety. One half of the sum mentioned in note 3. (8) Day on which bond is signed, in words at length, (9) Name of clerk. (10) To be signed in the presence of at least one witness, who must subscribe his name, place of residence and calling or profession. (11) County judge to certify approval. • DIVltilON coL'irr FOKMS. Afjiihuiit of sufficiency. 199 Provinoe of (,';inail.'i. County of (1)- Wo (2)- nnd the* suretius in tlio annoxid boii'l nanu'd, do scvcrnlly inako oath and say, as fol> {or United Counties of) To wit :— lows : — First, I, deponent (3) for myself, do make an form os oath, and say, that I am a (1) holder, residing ^•)' at (5) ■» and that I am worth property to the amount of (0) over and above what will pay my just debts. Secondly, I, deponent (7) oatli, and say, that I am a (8)- • for myself, do make holder, at (9)- and that I am worth property to the amount of (10)— over and above what will pay my just debts. (11) Sworn before me, at the of - coun (12) of , this 18-. -, in the said day of— — , A commiamner, B. R., &c. (I) County or union of counties. i2) Insert names in full of both sureties. 8) Name of first surety. 4) Insert whether a, freeholder or mere householder. (6) Some definite description, ns street, town or township. (6) A sum not less than that for which ho is surety. (7) Name of second surety. ?8) See note 4, above. (9) Sec note 5, above. (10) See note 6, above. (II) Signatures of deponents. (12) See note 1, above. Direciiont for txteuiion ♦ 68 (b). Appointment oj deputy clerk by tJie clerk. clerk ef the Division Court of the Se^ sec. 33 being prevented by Q^ illiiess" or'^"^^^ I, county of " unavoidable accident") from acting in my said oflBcc, do hereby, with the approval of , judge of the County Court of the said county, appoint of the of in the said county (" Gentleman, iS^c^ ) to be my deputy during the period of such (" my illness'^ or " unavoidable accidiUf'') according to the tenth sec- ^f 200 DIVISION COURT FORMS. ^ tion of the Division Courts Act of 1850 {noio sec. 3.3 of the Division Courts Act), Given under my hand this day of A.D 18~. Approved by me, , Judge, Ac. Clerk of the said cuur!. * 68 (c). Flea of tender and payment into court. (Style of court and cause.) *« »ee. 87, a The defendant says, that as to the sum of $ he ruieia'ank was always ready and willing to pay to the plaintiff the ^*^' said sum of , part of the plaintiff's claim, and that before action he tendered and offered to pay the same to him but he refused to accept it, and the defendant now therefore brings into court the said sum off , ready to be paid to the plaintiff. Dated, &c. CD. Toronto, 28th June, 1864. (Signed) S. B. Harrison, M. O'Rrillt, E. C. Caimpbell, Geo. Malloou, Jas. Robt. Gowan. Approval of Jtiilaand Furms. Approved as amended 8th July, 1864. (Signed) Jno. B. Robinson, C, J. J. B. Macaulay, C. J. C, P. W. H. Draper, J. Robert E. Burns, J. Wm. 6. Riobards, J. A limited Courts on t entitled " Ai The same st act relating any suit br( they formed therefore b< these two a< provisions i courts that framing an form of wri nam. The Courts, an( end of the Her M consent o: Canada, e I. Wh debentuTi APPENDIX. — »- PROCEEDINGS IN REPLEVIN IN DIVISION COURTS — ♦"— (CON. STAT. U. C. CAP. 2», 4 23 VIO. CAP. 46.) A limited jurisdiction in replevin was conferred on Division Courts on the 19th May, 1860, by 23 Vic. cap. 45, which is entitled " An Act to amend the law of replevin in Upper Canada." The same statute also provides that that net and the consolidated act relating to replevin (Con. Stat. U. C. cap. 29) shall, so far as any suit brought in a Division Comt is concerned," be read as if they formed pait of the act respecting Division Courts." It will therefore be necessary, to make the subject complete, to give these two acts in externa. It will be noticed that many of these provisions are not strictly applicable to the proceedings of the courts that we axe treating of, but they will be found useful in framing an analogous practice. The consolidated act gives a form of writ, bond and assignment thereof, and eapia* in wither- nam. These have been altered to suit proceedings in Division Courts, and appear together with some other useful forms at the end of the two acts, which are as follows : (CON. STAT. U. C. CAP. XXIX.) An Act relating to Replevin. Her Majesty, by and with the advice and con- consent of the Legislative Council and Assembly of Oanada, enacts as follows : WHEN GOODS REPLEVIABLB. I. Whenever any goods, chattels, deeds, bonds, when goodt debentures, promissory notes, bills of exchange, "pfe^ed. m I: ■ if 202 REPLEVIN IN DmSION COURTS. books of account, papers, writiii^s, valuable socuri-j i!eH or other persor);il property or elTects h';.ve lii^n wronf:;fully distrained under circunist:i:ices in wlidi by the law of England replevin might be nj:ide, the person complaining of such distress as unlawful mav obtain a writ of replevin in the manner prescribed by this act; or in case any such goods, chattels, property or effects have been otherwise wrongfully ' taken or detained, the owner or other person, or Cor- poration capable at the time this act takes effect of j maintaining an action of trespass or trover for per- sonal property, may bring an action of replevin fui the recovery thereof, and for the recovery of the damages sustained by reason of such unlawful cap. tion and detention, or of such unlawful detention, in like manner as actions are brought and maintained by persons complaining of unlawful distresses. 4 W. 4, c. 7, s. 1 ; 14, 15 V. o. 64, s. 1. GOODS IN EXECUTION NOT BEPLEVIABLE. 00^*8 seined II. The provisions herein contained shall not not to be authorize the replevying of or taking out of tbe replevied, custody of any sheriff or other officer, any personal property seized by him under any process issued out of any Court of Record for Upper Canada (a). 18 V. 0. 118. REPLEVIN IN COUNTY COURTS. Courumiy ^^^' ^° ^^^^ ^^® valuc of the goods or Other pro- gmnt. repie- perty or cffccts distrained, taken or detained, does va?uI^TO*8 ^^^ exceed the sum of two hundred dollars, and ia "«t exceed casc the title to land bo not brought in question, the writ may issue from the County Court of any county wherein such goods or other property or effects have been distrained, taken or detained. 19 V- c. 90, 8, 20 J 4 W. 4, c. 7, s. 7. PROCEDURE. ProceedinffB lY. Before any writ of replevin issues, the person entitle a Claiming the property, his servant or agent shall Sevy! "*^^^ ^" affidavit, entitled and filed in the court out (a) See sec. 8 of cap. 45 (nmendment act, post.) of vhich the entitled to at l,^,t. 'iliiit (6) The 1 he seen, r judge in o writ can isi But tlie ti section per a writ if what is rC' of that sec the requir< fore us), m out in thei See forr echeflule, The afF to euable REPLEVIN IN DIVISION COURTS. 203 of T^-liicli the writ issues, and sworn before any person entitled to adnnnister an riffidavit, therein, staling: 1st. That the person chiiming the property is the AffljHAitto owner thereof, or tlmt he is lawfully entitled to the possession thereof, describing the property in the a£5davit ; 2iid. The value thereof to the best of his belief; To state and such description of the property and the value '* "*' "' shall be stated in the writ (b). 14, 15 V. c. 64, s. 2. v. The writ shall be tested in the same manner How writii as a writ of summons, under the Common Law Pro- "**"**"• cedure Act, and bs returnable on the eighth day after the service of a copy thereof, and may bo in the form A, or otherwise adapted to the circumstances ofthe case(c). 14, 15 V. c. 64, s. 1. VI. A copy of such writ shall be served on the Copy ofwrit defendant personally, or if he cannot be found, by *°*^ "'"''^^ leaving the copy at his usual or last place of abode, with his wife or some other grown person, being a member of his household, or an inmate of the house wherein he resideS as aforesaid. 14, 15 V. c. 64, s. 1. VII. The sheriff (»y delivering a true copy, personally, to tho defendant, and that I neces- sarily travelled miloj to do so. , Bailiff. Sv>'orn at on the day of A.D. 186 . , Clerk. — ♦ 5. Eejilcvin bond. Know all men by these presents, that we, A. B., of itc, W. B., of &c., and J. S., of &c., are jointly and severally held and bound to W. P., of, &c., bailiff of the Division Court, in the county of , in tho sum of , of lawful money, to be paid to the said bailiff, or his certain attorney, executors, administrators or assigns, for which payment to bo well and truly made we bind ourselves, and each and every of us in tho whole one and each, and every of our heirs, execu- tors and administrators, firmly by these presents, sealed with our seals. Dated this day of ■ A.D. 18- The condition of this obligation is such, that if tho above bounden A. B. do prosecute his suit with effect, and without delay against C. D. for the taking and un- justly detaining (or unjustly detaining, as the case may be) of his cattle, goods and chattels, to wit : {here set forth the property distrained, taken or detained) and do make a return of the said property, if a return thereof shall be adjudged, and also do pay such damages as tho said 0. D. shall sustain by the issuing of the writ of replevin, if tho said A. B. fails to recover judgment in the suit; and further, do observe, keep and perform, all rules and orders made by the court in the suit ; then this obligation shall be void, or else remain in full force and effect. Signed, sealed and delivered, in presence of (1 or 2 icitnesses.) A. B. [u s.] W. G. [L.S.] J. S. [l. s.j I . 2U KEPLEVIN IN DIVISION COURTS. C- .f rm of assignment to be endorsed, if required, Jfbrm$. Know all men by these presents that I, , bailifT of the Division Court for the county of , have at the request of the within named {defendant), assign- ed over this replevin bond unto the said , pursu- ant to the statute in such case made and provided. In witness whereof I have hereunto set my hand and seal of oflSce this day of , 186 . Signed, sealed and delivered ) in presence of j II i 7. Heturn to writ. In the Division Court of, &c. Between A. B., plaintiff; and C. D., defendant. As bailiff of this court, to whom is directed the annexed writ of replevin, and in pursuance of sec. 11 of 22 Vic. cap. 20, and sec. 5 of 23 Vic. cap. 45, I have taken from said plaintiff a bond, conditioned as by said acts required, made by him and two sureties namely , of the of in the county of , yeoman {or an the case may be), or, of the same place, yeoman {or as the case may be), which bond bears date the day of , 18 — , and is witnessed by and (if more than one). And by virtue of this writ to me directed, I have seized and delivered to the plaintiff the goods mentioned in said writ, that is to say {describing the goods by num- ber, quantity and quality, or if only a part have been replevied say, a portion of said goods in writ mentioned, that is to say (describing them), and I cannot make replevin of the residue of said goods, namely {shortly describing them), as by said writ commanded by reason of the same having been eloigned out of this county by the defendant {or as the case may be). PROCEEDINGS IN DIVISION COURTS ON ATTACHMENT OF DEBTS IN JUDGMENTS IN SUPERIOR OR COUNTY COURTS. (COK. STAT. U. C. CAP. XXII. SEC. 293, tt Kg.) Ill it- ) ■li'. By a provision of the above act (Common Law Procedure Act) ft judgment creditor in the Superior and County Courts may obtain what is called a garnishing order, which has the effect of attaching debts due from a third person, called the garnishee^ to the judgment debtor to be applied towards satisfaction of the judgment debt. If any of these debts so attached are within the jurisdiction of a Division Court, the statute provides that any dispute as to whether such debts are really due or not shall be tried, and, if found to be due, the debts shall be recoverable as in an ordinary Division Court suit. The enactments are as follows : — CCXCII. In cases in the Superior Courts, when When va- the amount claimed as due from any garnishee is"pp^*r*^ within the jurisdiction of a County or Division Courf, fore county the order to appear made under the two hundred and in mees^u^** eighty-ninth section shall be for the garnishee to^^'P®{J[" appear before the judge of the County Court of the county within which the garnishee resides — at some day and place within his county to be appointed in writing by such judge — and written notice thereof shall be given to the garnishee at the time of the Bervice of the order. 20 V. c. 57, s. 16. CCXCIII. If the garnishee does not forthwith pay Kxecution the amount due by him, or an amount equal to the 'T'DiTisioii*' judgment debt, and does not dispute the debt due or <^»^>"J;^f^*he claimed to be due from him to the judgment debtor, dwa nor or if he does not appear before the judge named in ^^^p"** ***" the order at the day and place appointed by such >t: '- ^ , i : J i . i , ■ I IV fi l 216 riu)ci':EDiN(i8 in division couuts judf!;c, then such judge on proof of service of the Older and appointniciit having been made iuur CuwA previous, may make an order directing exocutiu'i to issue out of the County Court, or out of a Divii-ion Court, according to the amount due, and such order shall, without any previous writ or process, be suf. [ ficient authority for the clerk of either of such courts to issue execution for levying the amount due from such garnishee. 20 V. c. 57, s. 16. The sheriff CCXCI V. The sherifiF or bailiff to whom such I i*evy*the ^ ^"^ ^^ exccutioQ is directed, shall levy the amount amount with mentioned in the said execution, towards satisfaction msts uua ^j- jjjg judgment debt, together with the costs of the proceeding, to be taxed, and his own lawful fees, according to the practice of the court from which such execution has issued. 20 V. c. 57, s. 16. Proceediugi CCXCV. If the garnishee disputes his liability, tii9dlbr'"*^^en such judge of the County Court may order that the judgment creditor shall be at liberty to proceed against the garnishee according to the usua. practice of the County or Division Court, as the case may require, for the alleged debt or for the amount due to the judgment debtor if less than the judgment debt, and for costs of suit. 20 V. c. 57, s. 16. fnSt"*" CCXCVI. In cases in the County Courts when Courts when the amouut claimed as due from any garnishee is wuwn^he within the jurisdiction of a Division Court, the jmisdiction order to be made under the two hundred and eighty- Courts.* °° ninth section, shall be for the garnishee to appear before the clerk of the Division Court within whose Division the garnishee resides, at his office, at some day to be appointed in the said order by the judge of the County Court ; and the said order shall be served on such garnishee, and if the garnishee do not forthwith pay the amount due by him or an amount equal to the judgment debt, and do not dis- pute the debt duo or claimed to be due from him to the judgment debtor, or if he do not appear before the Division Court clerk named in the order at his office at the day appointed by £uch judge, then such judge, on proof of the service of the order having ON AlTACllMENT OF DEBT, AC. been mado four days previous, may make an order directing execution to issue out of the Division Court of the division in which such garnishee resides, according to the amount due, and such order shall without any previous summons or process, bo suffi- cient authonty for the olerk of the said Division Court to issue execution to levy the amount due from such garnishee, and the bailiff to whom such writ of execution is directed shall be thereby authorized to levy and shall levy the amount mentioned in the said execution towards satisfaction of the judgmjnt debt, together with the costs of the proceeding to be taxed, and his own lawful fees; but if the garnishee disputes his liability, then such judge may order that the judgment creditor in the said County Court shall be at liberty to proceed against the garnishee, accord- ing to the practice of the said Division Courts, for the alleged debt or for the amount due to iae judg- ment debtor if less than the judgment debt, and for costs of suit. 20 v. 0. 58, s. 4. 217 '.Hi '.ja 11 'M •J I 19 DUTIES OF DIVISION COURT OFFICERS WITH RESPECT! TO AWARDS BY FENCE VIEWERS. ' ' (CON. STAT. U. C. CAP. LVII.) The above statute provides for the inspection of line fences andj water-courses by fence viewers, who are authorised amongst oil er things to ascertain the amount payable to any person who, under j the authority of the act, makes or repairs a fence or water-course, which another person should have done. Sec. 16 of the act provides a mode of enforcing payment of the amount due. At the request of | the person claiming payment, a justice of the peace shall issue a summons to the person in default, which summons is to be served also upon the fence viewers, who shall thereupon award what sum (if any) should be paid to the plaintiff, and shall report their determination in writing under their hands to the justice who issued the summons. It is then provided by sec XVI., sub-sec. : — whoBhsii 10. The justice to whom the determination of the *amVto*the ^e^CB vicwers is returned, shall transmit the same to clerk of th« the clcrk of the Division Court having jurisdiction Court?" over that part of the municipality, and shall certify and transmit a copy thereof to the clerk of the mun- icipality, to be entered in the book in which the municipal proceedings are recorded; 8 V. c. 20, s. 7. 11. After the espirution of forty days, from the time of the determination, the clerk of the Division Court shall issue an execution against the goods and chattels of the defendant, in the same manner as if the party in whose favor the determination has been made had recovered judgment in the Division Court for the sum which the fence viewers have determined him to be entitled to receive with costs. 8 V. c. 20, s. 7. Who fttter forty days may Issue execution thereon. AWARDS BY FENCE VIEWERS. 219 XVIT. The following fees, and no more, may be Fees, received under this act, by the persona mentioned, that is to say : To the Justice of the Peace : For summons to fence viewers, twenty-five cents j For subpoena, which may contain three names, twenty-five cents j For transmitting copy of fence viewers* determin- ation to Division Court and to clerk of the munici- pality, twenty-five cents. ■ " To the Fence Viewers : One dollar per day each : if less than half a day employed, fifty cents. To the Bailiff or Constable employed : For serving summons or subpoena, twenty cents. Mileage — per mile, six and two-thirds cents. To witness — per day, each, fifty cents. 8 V. c. 20, B. 16. XVIII. Upon the party in whose favor the deter- Dig|,a,^ mination of the fence viewers has been made, m.aking menu, an affidavit, which the clerk of the Division Court may administer, that such fees have been duly paid and disbursed to the persons entitled thereto, the clerk shall include the amount thereof in the execu- tion, and when collected, shall pay over the same to the said party. 8 V. c. 20, s. 17. * i i ; i 11 ! I PROVISIONS RESPECTING APPEALS FROM DIVISION COURTS IN MATTERS PERTAINING TO COMMON SCHOOLS. tTnlfonnlty of (leciHloni In Divlition CourU. (CON. STAT. U. 0. GAP. LXIT., 8E0. 108 et Mq>) GX VIII. It being highly desirable that uniformity of decision should exist in cases within the cogni* zance of the Division Courts and tried in such courts, in which the superintendents, trustees, teach- ers and others acting under the provisions of this act are parties, the judge of any Division Court wherein any such action may be tried may, at the request of either party order the entering of judg' u ^irnen jjjgj,j. ^^ ^g delayed for a sufficient time to enable such party to apply to the Chief Superintendent of Education to appeal the case, and after notice of appeal has been served as hereinafter provided, no further proceedings shall be had in such cases until the matter of the appeal has been decided by a Su- perior Court. 16 V. c. 185, s. 24. I>iTiBion Court m%f be delayed. f%lef Bapar< intendent may appeal from euch court to Saperior Court! of Law. Title of appeal. CIX. The Chief Superintendent may, within one month after the rendering of judgment in any such case, appeal from the decision of the Division Court judge to either of the Superior Courts of Law at Toronto, by serving notice in writing of such appeal upon the clerk of the Division Court appealed from, which appeal shall be entitled, ** The Chief Superintendent of Education for Upper Canada, Ap- pellant, in the matter between (A. B. & C. D.)." 16 V. c. 185, s. 24. Judge to ex. The judge whose decision is appealed from t^'Sipel^t s^^iU thereupon certify und^3r his hand, to the Supe- Court. rior court appealed to, the summons and statement of claim and other proceedings in the case, together with the evidence and his own judgment thereon, and all objections made thereto. M APPEALS IN SCHOOL MATIERS. 221 ; uniformity the cogni> id in such itees, teach- ions of this sion Court nay, at the ig of judg- i to enable Dtendent of r notice of Tovided, no cases until d by a Su- CXI. The matter shall be set down for argument Snpmior I at the next term of such Superior Court, and such J5°^*oJJ5e^]2 court shall give such order or direction to the court i^w «nd Ibelow, touching the judgment to be given in the ^ref '*' tmatter, as law and equity require, and shall also in lits discretion, award costs against the appellant, Nhich costs shall be certified to and form part of the liadgment of the court below. GXII. Upon receipt of such order,, direction and ProMedinKa !rtificate, the judge of the Division Court s" Iforthwith proceed in accordance therewith. 'Court tbereon. ay, within tent in any le Division irts of Law of such rt appealed The Chief mada, Ap- k C. D.)." 'M mi 4W. ealed from the Supe- statement J, together t thereon, )•: II i DUTIES OF DIVISION COURT CLERKS UNDER ASSESS- MENT ACT, ON APPEALS FROM THE COURT OF REVISION, AND FROM MUNICIPAL COUNCILS, UNDER ACT OF 1861. Partlea dis- satiafledwlth decision of Court of R»> vision may appeal to Jadgeof Gonnty Ot, and in what manner and onwiiat terms. (CON. STAT. U. 0. CAP. LV., BEOS. 08, tt ieq.) • LXIII. If a person be dissatisfied with the de- cision of the Court of Revision, he may appeal I therefrom, in which case — 1. He shall, within three days after the decision, in person or by attorney or agent, serve npon the I clerk a written notice of his intention to appeal to | the judge of the county court ; 22 Y. o. 82, s. 4, No. 3. 3. The clerk shall thereupon give notice to all the parties appealed against in the same manner as Ib provided for notice of complaint by the sixtieth | section of this act. 3. The party appealing shall, at the same time and in like manner, give a written notice of hii appeal to the clerk of the Division Court for the division within the limits of which the municipality is situated, and shall deposit with him the sum of two dollars for each party appealed against as sectt-[ rity for the costs of the appeal ; 22 Y. c. 82, s. 4,| No. 3, at the end. 4. The judge shall appoint a day for hearing thej appeal ; 5. The clerk of the Division Court shall cause al conspicuous notice to be posted up at the place I where the Division Court is held, containing thcj names of all the appellants and the parties appealdl against, ranged under the several municipalities, ill there be more than one municipality in the divisiooT Ari'KALS FROM COURT OF REVISION, &C. 223 ARMMnent roll to b« produced to the Court of RoTlnion. And ftmond- ed arcording to the di4cU siun of thtt Judge. I tot^cthcr with the date at which a court will bo held to hear the appeal ; 6. At the court so holdcn, the judge shall hear i the appeals, and may adjourn the hearing from time to time and defer the judgment thereon at his pleasure, so that a return can be made to the clerk of the municipality before the fifteenth day of July. |22V. 0.82, B. 4, No. 3. LXIV. At the court so holden, the clerk of the I muDicipality, or other person having the charge of the assessment roll passed by the Court of Revision, shall appear and produce such roll, and also all papers and writings in his custody, connected with I the matter of appeal ; and when such roll is so pro- I duced in court, the same shall be altered and amend- ed according to the decision of the judge (if then given), who shall write his initials against any part of the said list in which any mistake, error or omis- sioo is corrected or supplied, or if the said roll be not then produced, or the decision be not then given by the judge, or if so ordered by the judge, such I decision and judgment shall be certified by the \ Division Court clerk to the clerk of the municipality, who shall forthwith, alter and amend the roll accord- ing to the same, and shall write his name against every such alteration or correction. LXy. [County judge to have power to examine on oath, &o ] : LXVI. The dost of any proceeding before the Cost" to be I county judge as aforesaid, shall -be paid by, or appor- by'the j*udgo tioned between the parties in such manner as the*°^^ judge shall think fit, and costs ordered to be paid by any party claiming or objecting, or objected to, or by any Assessor, clerk of a municipality or other person, may be enforced by execution from the Divi- sion Court in the same manner as upon an ordinary judgment recovered in such court. 20 V. c. 82, s. |4,No.3. LXVII. The costs shall be taxed according to the i schedule of fees under the Division Courts Act, us Amend- mentH how certified. if I ft a "til 't i I '**■' f 1$ A 224 APPEALS FROM COURT OF REVISION, AC. By what *Mieoff.«*i *" ^^^^ ^^^ '^® recovery of sums exceeding forty and 'not exceeding sixty dollars in the snid courts. 10 CORtM to b« Uied. V. 0. 182, s. 28. 1^ (24 TIC. CAP. XXXTIII., 8E0. 4.) IV. All decisions of municipal councils under jjpp«»i«fr<>» this act may be appealed from, tried and decided, as derthu'act! provided by the sixty-third and following sections of the said act, for appeals from Courts of Revision under the said act, which shall apply, as nearly as may be practicable, to appeals under this act, save and except the restriction as to the time contained in the sixth Bub-seotion of the said sixty-third section. ' ■ a; ACT RESPECTING STAMPS ON LAW PROCEEDINGS. (27 * 28 TIO, CAP. T.) • — . The following sections of the above Act are here inserted, as more or less affecting proceedings in Division Courts : I. Upon, from and after the first day of October *^]^p"*o next, stamps shall be issued bj order of the Governor under order in CoQDoil in such form and subject to suoh other *" ^'*'"'"* directions as shall be thereby and as shall thereafter be from time to Aime by the like order provided, for the purposes hereinafter mentioned. II. In Upper Canada such stamps shall be used In For what lieu and in payment of the law fees and "barges which theys^n h» are due and payable to the Crown under and by vir- """ij^P^ tue of the Consolidated Statutes for Upper Canada, ^' that is to say : chapters fifteen, sixteen, nineteen, &o. VI. It shall not be necessary that any account bej^oj^^*^"* rendered to the Minister of Finance, of any fees offms'iMridby office, taxes or duties collected by means of stamps "^"°p^ under the provisions of this Act. . i , ., XL Upon, from and after the day in the first No money to .. /'J 1. 11 t 'J i DO received section mentioned, no money shall be paid to orrorsuchfeea. shall be received by any court, or to or by any officer entitled to receive any such fees as aforesaid, for any such fee due and payable to the Crown, under any of the said Acts. XII. Upon, from and after the said day, no matter ^^ proceed- or proceeding whatever upon which any fee is due'ng^on or pa;pable to the Crown as aforesaid, shall be issued Ls are pay- or shall be received or acted upon by any court or "^}fj*^,^n by any officer entitled to leccive any such fee until a an dues are stamp or stamps under this Act f^r the sum oorres-^J^p^ ponding in amount with the amount of the fee so due or payable to the Crown as aforesaid, for, upon I, y.\ m W' 220 STAMPS ON LAW rUOCEEDINOS. or in respect of such matter or procecdiniij, and in lieu of such sum so duo and payable to the Crown, shull have been attached to or impressed upon the m ProeeKdingB nut duly RtAni|)ed to be vuld. same. XIII. Every matter and proceeding whatever, upon which any such fee is duo or payable to the Grown as aforesaid, and which is not so duly stamped shall, if not afterwards stamped under the provisions of this Act, be absolutely void for all purposes whatsoever. XV. No sheriff or other o£Scer or person shall unHUmpfd 8®'''^6 or ezeouto any writ, rule, order or proceeding, imx-isH, Ac. or the copy of any writ, rule, order or proceeding to b« wrvod. ^p^jj which any such fee or charge is due or payable, and which is not duly stamped undef this Act, and every such service and execution contrary to this Act shall be void, and no recompense shall be allowed therefor. XYI. No matter or proceeding which may have BtAmpra- been duly stamped for the purpose for which it may quired when- ]iave been uscd, shall be considered as stamped for ever another - ' . .1. « l • charge iadue. any Other purposo, in case another fee or charge is due or payable thereon for any other or further use of the same matter or proceeding. Ooartto stamp, thout;ii no objection in made. XVII. The court in which any such matter or take notice proceeding is, or is pending, which ought to be, but of want of jg jjQj. gQ ^,j|y stamped, shall not, nor shall any judge of such court take or allow any matter or proceeding to be had or taken upon, or in respect of such matter or proceeding, although no exception be raised there- to by any of the parties, until such matter or pro- ceeding has been first duly stamped. Court may XVIII. Any party to any matter or proceeding Riiow stamps in any court which ought to be, but is not so duly ^clr^n"** stamped, may apply to the court in which such mat- terms, ter or proceeding is pending, or to any judge having jurisdiction in the case, for leave to have the same duly stamped, and in case this act has not been knowingly and wilfully violated, the application shall on payment of costs be granted for the duly stamping XX. In bas or havC) pressed upc the duty of receive sue the issue oi same by wr Buch stami effectually ' as not to a< XXI. A time to be( act, or aft following be made a twenty cei to thirty < ner all otl shall be i cents ne: stated. XXV] to time, expediet under tl useless which 1 which 1 been it allowan stamps repayit dl |t?. and in JO Crown, |upoQ the whatever, |>Io to the stamped )rovi8ioDs purposes son shall oceeding, 'oceeding pajablo, Act, and to this aJlowed nay have it may aped for sharge ia ther use atter or be, but y judge ceediog matter I there- )r pro- eeding duly !i mat- lavinff same been 1 shall iping STAMl'S ON LAW PROCEKDlNUfi. 227 of such matter or proceeding with stamps of such amount beyond the fee duo thereon as may be thought reasonable, not exceeding ten times the amount of the stamp. XIX. The affixing of such stamp or stamps, under Rfltro«otivo any order made for that purpose, shall have the same*"^^*"' effect as if the said matter or proceeding had beeu duly stamped in the first instance. XX. In every case in which a stamp or stamps stamp uhoiI- has or have, under this act, been attached to or im-J^J^^!'"!*' pressed upon any matter or proceeding, it shall be uot to bi< the duty of the officer who may issue or who may "'**^ **"'"■ receive such matter or proceeding, forthwith upon the issue or upon the receipt thereof, to cancel the same by writing or stamping or impressing in ink on such stamp his name and the date thereof, so as effectually to obliterate and cancel the stamp, and so as not to admit of its being used again. XXI. All fees now payable or hereafter at any fms or dues time to become payable shall, after the passing of this jncr'^^d"]^" act, or after they shall become payable, be at the certain cases, following rates : all such fees up to ten cents shall be made and paid at ten cents ; all from ten cents to twenty cents, at twenty cents ; all from twenty cents to thirty cents, at thirty cents ; and so in like man- ner all other fees which are not multiples of ten cents, shall be stated and payable at the multiple of ten cents next above the sum at which they are so stated. XXVII. The Governor in Council may, from time Allowance to time, make such regulations as may be thought g^ifld'or expedient, for an allowance for such stamps issued returned under this act as may have been spoiled or rendered useless or unfit for the purposes intended, or for which the owner may have no immediate use, or which through mistake or inadvertence may have been improperly or unnecessarily used; and such allowance shall be made either by giving other stamps in lieu of the stamps so allowed for, or by repaying the amount or value to the owner or holder m or ( I r T' »;fi| 228 STAMPS ON LAW PROCEEDINGS. thereof, after deducting the discount (if any) allowed on the sale of stamps of the like amount. XXIX. Every person who shall knowingly issue, SuSg^Ac', 0' shall knowingly receive, procure or deliver, or mywAtot ^ho shall knowingly serve or execute any writ, rule, withont hir- Order, matter or proceeding upon which any fee is ■umMd'' due or payable to the Crown as aforesaid, without the same being first duly stamped under this act, for the fee payable thereon, shall be subject for the first offence, io a fine not exceeding ten dollars, for the second offience, to a fine not exceeding fifty dollars, and for the third and every subsequent offence, to a fine of two hundred dollars ; and in default of pay- ment of such fines to an imprisonment not exceeding one month for the first offence, three months for the second offence, and one year for the third and any subsequent o£fence. XXX. Every person who shall fail or omit to periyoblito^ obliterate and cancel any stamp in the manner and raUng stamp Qt (jjig time hereinbefore provided, shall be subject t.o a fine not exceeding twenty dollars, and in default of payment thereof, to imprisonment for a period not exceeding two months. >' •' '. 'J '. li i D 1.- IL- III.- VI.- Coun 1— Compr ship of Brai desoribed. II.— Comp west of the 1: cession of ihi the last menl IIL— Com and of the ] Samael Stan IV,_Com Burford, and Township of and that poi mentioned li V. Compr Bions of the tlie Ranges ship of Bran Foster, Scot TABLE OP DIVISIOK COURTS AND LIMITS IN UPPER CANADA. ALGOMA DISTRICT. Judge — Hon. John Pbincb, Sault Ste> Marie. CLBBKS Off DinSION COURTS^ t. — Wm. F. Moore, Sault Ste. Marie. IL — J. Coatsworth, Bruce Mines. III. — A. M. Ironsides, Manitowaning. VI. , Fort WilUam. COUNTY OP BRANT. County Judffe — Stbfhbit Jamks Jones, Esq., Brantford. DIVI3I0M COURTS AND LIMITS. 1 —Comprising the Town of Brantford and that part of the Town-^ ship of Brantford not included in the other Divisions hereinafter described. Clerk — Henry Racey, Brantford P. 0. II. — Comprising the Town of Paris, and that part of South Dumfries west of the line, between Lots 18 and 19, and that part of the Ist Con- cession of the Township of Brantford lying west of a continuation of the last mentioned line. Clerk — Henry Penton, Paris P. O. III. — Comprising the remainder of the Township of South Dumfries end of the 1st Concession of the Township of Brantford. Clerk — Samael Stanton, St. George P. O. IV. — Comprising the ten northern Concessions of the Township of Burford, and that part of the 2nd, 3rd, 4th and 6th Concessions of the Township of Brantford west of the line between Lots Nos. 10 and 11, and that portion of the Kerr tract west of a continuation of the last mentioned line. Clerk— Wm. H. Serpell, Burford P. O. V. Comprising the Township of Oakland, the four southern conces- sions of the Township of Burford, and Lots Nos. 1 to 6 inclusive, in tlie Ranges east and west of the Mount Pleasant Road, in the Town- ship of Brantford, adjoining the Township of Oakland. Clerk — Alonzo Foster, Scotland P. O. ■•'A 2t 230 DIVISION COURTS AND LIMITS. i 'i VI.— Comprising the Townships of Onondaga and TuBcarorn, ami that part of the Township of Brantford lying south of the main road from Brantford to uamilton, and east of Faircliild's Creek. Cltrk- Motthew Wliiting, Onondaga P. O. COUNTY OF CARLETON. County Judge-^CavtisTornEK Abmstboko, Esq., Ottawa. DIVISION COURTS AND LIMITS. I. — Comprising the City of Ottawa ; that part of the Township o{ j Jfepean, west of the River Bideau to the Concession line between the Ist and 2nd Concessions Rideau Front, and to the boundary line between Lots 26 and 26 Ottawa Front; the Township of Gloucester j to Lot 16 inclusive, Rideau Front, and Concessions 1 to 6 inclusive, | Ottawa Front, with the Islands in the Ottawa opposite thereto, Clerk— George R. Burke, Ottawa P. O II. — Comprising the Township of Goulburn ; tha 8th, 9th and 10th Concessions of the Township of Marlborough ; and all that portion of I Kepean south of the River Goodwood, and the 4th, 5th and 6th Con- cessions thereof, north of the same river to the boundary line between Lots 20 and 21 in the last mentioned Concession. Clerk — John A, | Bryson, Richmond P. 0. III. — Comprising the Townships of March and Huntley. Clerk— \ John Fenton, South Huntley P. O. IV. — Comprising the Towhships of Fitzroy and Tarbolton. Clerk— \ Wm. D. Pigott, Fitzroy Harbour P. 0. V. — Comprising the Township of North Gower, Long Island in the Rideau River, and the Ist, 2nd, 8rd, 4th, 6th, 6th and 7th Concessions of Marlborough. Clerk — Wm. Cowan, North Gower P. O. VI. — Comprising the Township of Osgoode ; the 'Jth, 8th and 9th Concessions, Ottawa Front ; and from Lots 16 to 80, inclusive, Rideau Front of the Township of Gloucester. Clerk — Ira Morgan, Metcalfe, Osgoode. VII. — Comprising that portion of the 2nd and 8rd Concessions Rideau front of Nepean lying south of the River Goodwood ; the 4th, 5th and 6th Concessions Rideau front, from Lots 21 to 86, inclusive; Concessions A. and B., and the 1st and 2nd Concessions Ottawa front to Lot 26, incluslTe, being all that portion of Nepean not included in the Ist and 2nd Divisions. Clerk — Frederick W. Ilarmer, BtU'a Corners P. 0. COUNTY OF ELGIN. County Judge — D. J, Hughes, Esq., St. Thomas. DIVISION COURTS AND LIMITS. I. — Comprising the Township of Bayham. Clerk — Simon New- comb, Vienna P. O. II.— Comprising the Townships of Malahidc and South Dorchester. Clerk — Henry C. Hughes, Aylmer P. O. mVlSION COURTS AND LIMITS. 231 III. — Comprisinff the Township of Yarmouth, and all that portion of the Township of Southwold which lies to the north east and east of the following line, that is to say, commencing on the Township ond County line between the Townships of Delaware and Southwold, where the Mill road meets the said lino ; thence along the Mill road Bouth-easterly to where it meets the road in front of the second range of lots north of the Union road ; thence easterly along the said road in front of the said second range of lots as aforesaid until it meets the River road ; thence southerly along ihe River road until it meets the north shore of Lake Erie. Clerk — James Farley, St. Thomas P. O. IV. — Comprising all that part of the Township of Southwold not included in the Third Division, together with so much of the Town- ghip of Dunwich as lies to the north-east and east of the side line or dividing line between Lots numbered six and seven in the said Town- ship of Dunwich. Clerk — Daniel Eccles, lona P. O. V. Comprising all that part of the Township of Dunwich not in- cluded in the Fourth Division, together Vith the Township of Aldborough. Clerk — Finlay MacDiarmid, Aldborough P.O. COUNTY OP ESSEX. County Judge — G. W. Leooatt, Esq., Sandwich. DIVISION COURTS AND LIMITS. I. — Comprising the Town of Sandwich and the Township of Sand- wich West. C/er*--Thos. McKee, Sandwich P. O. II. — Comprising the Town of Amhorstburg and Townships of Maiden and Anderdon. Clerk — A. Botsford, Amherstburg P. O. in. — Comprising Township of Gosfield. Clerk -^ James King, Kingsville P. O. IV. — Comprising Township of Colchester. Clerk — James Bell, Colchester P. 0. V. — Comprising Township of Mersea. Clerk — Jonathan Wigfield' Woodslee P. 0. VL — Comprising Townships of Rochester and West Tilbury. Clerk— F. Graham, Rochester P. O. VII. — Comprising Town of Windsor and Townships of Sandwich East and Maidstone. Clerk — James L. G. Elliott, Windsor P. 0. COUNTY OF FRONTENAO. CoHiity Judge — William Geo. Draper, Esq., Kingston- DIVISION COURTS AND LIMITS. I. — ^The City of Kingston, the Township of Howe Island, the Vil- lage of Portsmouth, and all that part of the Township of Pittsburgh south and west of the rear of the fifth Concession thereof. Clerk — Jolin DuflF, Kingston P. 0. ?i'i1 .a .J ! i M II t H w \ ! i 232 DIVISION COUBTO AND LIMITS. II. — ^The Township of Kingston, except that part of the wc8t«ni Addition lying north of Mud Lafe. Clerk — Peter McKim, Waterloo P.o ' III. — ^The Townships of Loughborough and Bedford. Clcrk^l Edward Upham, Sydenham P. O. IV. — The Townships of Portland, Hinchinbrooke, Olden, Oso, Clt I Irendon and Palmerston. Clerk — Samuel Stewart, Harrowsmith P. 0, V. — ^The Township of Storrinston and all that part of the Township of Kingston north of the rear of the fifth Concession. Clerk — T)tmi I J. Walker, Inverary P. O. VT. — ^The Township of Wolfe Island. CUrk — Thomas Dawaon, Wolfe Island P. 0. COUNTY OP GREY. Couniy Judge — Henrt MAcpnEBsoN, Esq., Owen Sound. DIVISION COURTS AND LIMITS. 1. — Comprising the Town of Owen Sound, Town plot of Brooke, and Townships of Derby, Keppel, Sydenham, and Sarawak. Clerk— Chas. R. Wilkes, Owen Sound P. O. II. — Comprising the Townships of Bentinck and Glenelg, and all that part of the Township of Normanby situate north of the centre of I the allowance for road between 11th and 12th Concessions, and between Lots SIT and 36 in the 2nd and 8rd Concessions, and between Lots 12 and 13 in the let Concession west of the Garafraxa road ; and all that part of the Township of Eg^emont north of the centre of the allowance for road between Lots 12 and 13 in 1st Concession, and Lota 28 and 29 in the 2nd and 3rd Concessions east of the Garafraxa Road, and between the 16th and 16th Concessions. Clerk — William Jackson, Durham P. O. III. — Comprising the Township of St. Vincent, and the west half of the Township of Euphrasia. Clerk — John Williams, Meaford P. 0. IV. — Comprising the Township of CoUingwood, the east half of Euphrasia, and east half of Osprey. Clerk — ^Thos. J. Rourk, CoUing- wood P. O. V. — Comprising the Townships of Artemesia, Proton, and Melanc- thon, the west hiuf of Osprey, and the ranges lying parallel to the Toronto and Sydenham Road, in the Township of Glenelg. Clerk— John W. Armstrong, Artemesia P. 0. VI. — Comprising the Townships of Holland and Sullivan. Clerk— Henry Cardwell, Chatsworth P. O. VII. — Comprising all that part of the Township of Normanby situate south of the centre of the allowance for road between the 11th and 12th Concessions, and between Lots 36 and 36 in the 2nd and 3rd Concessions, and between Lots 12 and 13 in the 1st Concession west of the Garafraxa road ; and all that part of the Township of Egrcmont lying south of the centre of the allowance for road between Lots 12 and 13 in the Ist Concession east of the Garafraxa road, and between the 16th and 16th Concessions of Egremont aforesaid. Clerk— ^. N. Yeomans, Mount Forest P. 0. ! .. DIVISION COURTS AIUD LIMITS. 233 COUNTY OP IIALDIMAND. County Judge — J. G. Stevenson, Esq., Cayuga. DIVISION COURTS AND LIMITS. I.— All the Township of Seneca except the first and second Conces- leions, the Young Tract, and the property of Richard Martin and Robert Wier ; all the Township of Oneida except the first range north of the Cayuga line, the Dennis Tract, and the lots southerly of said I Tra^t. CUrk — James Aldridge, Caledonia P. O. II.— The whole of the Township of MTorth Cayuga except that por- i tion thereof lying north-cast of side line between lots 12 and 13 ; the lirst and second concessions of the Township of Seneca, excepting that portion thereof lying north-east of the side line between lots 12 and 13, the Young Tract, and the lands of Robert Wier and Richard ! Mftrtin, Esquires ; the first range of Oneida north of Cayuga, also I the Dennis Tract and lots lying south. CUrk — George S. Cotter, j Cayuga P. 0. III.— The Townships of Moulton, Sherbrooke and Dunn. Clerk — I Jolm Armour, Dunnvilie P. O. IV. — The Townships of South Cayuga and Rainham. Clerk — Isuac [ Honsberger, Rainham P. 0. V. — ^The Township of Canborough and those portions of North [ Caynga and Seneca not included in the other Divisions. Clerk — Seth Smith, Canboro' P. O. VI. — Township of Walpole. Clerk — E. Bowen, Nanticoke. COUNTY OF HALTON. County Judge — Joseph Davis, Esq., Milton. DIVISION COURTS AND LIMITS. I. — Comprising all that part of the Township of Trafalgar from the line between the 5th and 6th Concessions of the new survey, west to the Township line, and from the line between Lots 18 and 19, in the old survey, also westerly to the Town line. Clerk — John Holgate, Milton P. 0. II. — Comprising the remaining part of the Township of Trafalgar. (?/erA— Robert Balmer, Oakville P. O. III. — Comprising the five easterly Concessions of the Township of Esquesing. Clerk — Robert Young, Georgetown P. O. IV. — Comprising the six westerly Concessions of the Township of Esquesing. Clerk — James Matthews, Acton P. O. V. — Comprising the Township of Nassagawcya. Clerk — Samuel R. Lister, Nassagaweya P. O. VI. — Comprising the Township of Nelson. Clerk — Algernon McCay, Nelson P. 0. 20 i w ni <^t X \ I if IS, r; •J. 234 DIVISION COURTS AND LIMITS, COUNTY OP HASTINGS. County Judfft—'Hoy. Gkobgk Sherwood, Belleville. DIVISION COURTS AKD LIMITS. I.— CompriBing the Town of BellevUle. C/«r*— Archibald Ponton, BelleviUe P. O. II.— Comprisiag the Township of Sidney. (7/«r*— N. Ketcheson, Sidney P. O. III.— <3ompri8ing the Township of Tyendinaga. Clerk— Eirm Holden, Shannonvillo P. O. IV.— Comprising the Township of Hungerford. <7/w*— Robert McCammon, Tweed P. O. v.— Comprising the Township of Rawdon. Clerk— yfm. Judd, Stiriing P. 0. VI.— Comprising the Townships of Madoc and Tudor. Clerk- Charles Turnbull, Madoo P. O. VII. — Comprising the Township of Huntingdon.* Clerk — James J Ryan, East Moira P. 0. VIII. — Comprising the Township of Thurlow. Clerk — John G. Farmer, CannifFs Mills P. O. IX. — Comprising the Village of Trenton. C/er A— Jeremiah Sim- mons, Trenton P. O. X. — Marmora. Clerk — Benjamin Beddome, Marmora P. O. XI. — Elziver. Clerk — James Maines, Bridgewater P. O. UNITED COUNTIES OF HURON AND BRUCE. County Judge — Robert Cooper, Esq., Goderich. DIVISION COURTS AMD LIMITS. I. — Comprising that part of the Township of Goderich to the north of the Cut Line and the Huron Road, until the same meets the road allowance between tlie 13th and 14th Concessions, then back along the Huron road to its junction with the Cut Line; then west by the road allowance between Concessions 11 and 12 to the River Maitland ; then along the River Maitland to Goderich, together with the Township of Colborne. Clerk — P. A. McDougall, Goderich P. O. II.— Comprising the Township of McEillop, all Tuckersmith south and east of the Mill road, and of the road between Lots 20 and 21 on the 1st and 2nd Concessions, which road runs from the Huron road to tlie Mill road. C/crA;— Ludwig Meyer, Harpurhey P. O. III. — Comprising the Village of Kincardine and the Townships of Huron, Kincardine, and that portion of the Township of Bruce lying to the west of the lino between lots 15 and 16. CVcrA— Joseph C. Barker, Kincardine P. 0. li 1 DIVISION COURTS AND LIMITS. 235 IV. — Comprising that portion of the Township of Bruco lying to the east of the side road between lota 15 and 16; that portion of Greenock north of the line between Concessions 11 and 12 ; that part of Brant north of the line between Concessions 11 and 12 ; the Town- ship of Elderslie ; and that portion of Sangeen to the south of tlie line between lots 28 and 29, and of the production of the town line be- tween Arran and Elderslie, to the Saugeen river. CVcrA;— llobert Gilmour, Paisley P. O. V. — Comprising the Townships of Stephen, Usborne, and that por- tion of the Township of Hay to the east of the 6th and 7th Concessions of the said Township of Hay. C/crA;— Thomas Trivitt, Devon, Lon- don Koad. VI.— Comprising the Townships of Ashfield and "Wawanosh. Clerk —John Cooke, Wawanosh P. O. VH, — Comprising the Township of Stanley, and that portion of the Township of Goderich to the south of the Cut Line and the Huron road, until the same joins the road between the 13th and 14th Conces- sions of the Township of Goderich; thence along the said Concession road until the same joins the River Bayfield ; thence along the said River to Lake Huron, together with all that portion of the Township of Hay to the west of the 6th and 7th Concessions of the said Town- ship of Hay. Clerk— D&vxd II. Ritchie, Bayfield P. O. VIII. — Comprising the Township of Carrick, and that portion of tlic Township of Brant south of the line between Concessions 11 and 12. C/«rA;— William Collins, Walkerton P. 0. IX. — Comprising the Village of Southampton, the Townships of Arran, Amabel, Albemarle, Eastnor, Lindsay, St. Edmond, and that portion of Saugeen north of the line between lots 28 and 29, and of the production of the town line between Arran and Elderslie, to the Saugeen river. Clerk — John Eastwood, Southampton P. O. X. — Comprising the Township of HuUet, and that portion of the Maitland Concession of the Township of Goderich which is bounded on the west by a portion of the River Maitland and the road between the 11th and 12th Concessions, extending from the junction of the Cut Line to the eaid River Maitland ; the 14th, 16th, 16th and I7th Con- cessions of the said Township of Goderich, and that part of the Town- ship of Tuckersmith, bounded on the west by the London road, on tlie north by the Huron road, on the east by the side lino between Lots 20 and 21, and on the south by the Mill road. Clerk — W. W Farran, Clinton P. O. XL— Comprising the Townships of Howick, Tnrnberry, and that portion of the Towhship of Morris, all north of the road allowance between the 5th and 6th Concessions of the said Township of Morris, and that portion of the Township of Grey, all north of the road allow- ance between the 9th and lOth Concessions of the said Township of Grey. Clerk — Benjamin Fralick, Ainsleyville P. O. XIT. — Comprising the Townships of Culross, Kinloss, and that jjor- tion of the Township of Greenock south of the li'ie between Conces- sions 11 and 12. Clerk — Thomas Corrigan, lUvcrsdale P. O. • ^ly :U I i i m ill t 236 DIVISION COURTS AND LIMITS. COUNTY OP KENT. County Judge — Wm. B. Wells, Esq., Cliatham. DIVISION COURTS AND LIMITS. I. — Comprising the Town of Chatham, the Townships of Raleigh, East Tilbury, and Romney, and those parts of the Townships of Har- wich, Chatham and Dover East, not included in the Third, Fourth and Fifth Divisions. C/erX;— Thomas Glendinning, Chatham P. O. II. — Comprising the south half of Orford, that part of Howard south of line between lih and 8th Concessions, and that part of Harwich south of Talbot Street. Clerk— J. Duck, Morpeth P. O. III. — Comprises the Township of Camden, with the exception of Tecumseth Village, and that part east of number one Concession B. and south of the base line of Camden aforesaid ; also all that part of the Township of Chatham east of the Lindsay road ; also the Gore of Camden, and that part of Dawn south of the side line between 10 <& II in each Concession. Clerk — D. Wallace, Dawn Mills P. O. IV. — Comprising all that part of the Township of Howard north of the lino between the ^th and 8th Concessions ; all the Township of Harwich north of Talbot Street, and east of the Communication Road, excepting that part of the same, north of the 4th Concession of Har- wich from the Thames and west of said road. Clerk — G. Young, Harwich P. O. V. — Comprising the Townships of Dover East and Dover West, north of the 4th Concession, all that part of the Township of Chatham lying north of 8th Concession, also the Gore of Chatham, including that part of Sombra lately annexed to the County of Kent south of the line between 4th and 6th Concessions, Clerk — Robert Mitchell, Wallaceburgh P. 0. VI. — Comprising the Township of Zone, the northern part of Orford not included in the 2nd Division, also that part of Camden not includ- ed in the 3rd Division. Clerk— J. Taylor, Bothwell P. O. COUNTY OP LAMBTON. Count}/ Jttdffe — Charles Robinson, Esq., Sarnia. DIVISION COITRTS AITD LIMITS. I. — ^Town and Township of Sarnia. Clerk — Peter T. Poussett, Sarnia P. 0. II.— Township of Warwick. Clerk— JaB. F. Elliott, Warwick P. 0. III. — ^Townships of Dawn and Euphemio. Clerk — Wm. Webster, Florence P. 0. IV. — ^Township of Sombra. Clerk — P. Cattanach, Sombra P. 0. v.— Township of Plympton. Clerk— T. R. K. Scott, Errol P. O. VI.— Township of Bosanquet. CVcrft- Jas. C. Wyld, Widder P. 0. VII. — Township of Moore. Clerk — Jas. F. Baby, Mooretown P. O. DIVISION COURTS AND LIMITS. 237 VIII. Township of Enniskillen. Clerh—deorge Adamson, Oil i Springs P. 0. IX.— Township of Brooke. Clerk — John W. Brcnnan, Alvin- Bton P.O. ... •wick P. 0. . Webster, 'a P. 0. "ol P. 0. dder P. 0. town P, 0. UNITED COUNTIES OF LANARK AND RENFREW. County Judge — J. G. Malioch, Esq., Perth. DIVISION COURTS AND LIMITS. I.— The Townships of Drummond, Bathurst, Sherbrooke, Bnrgess, I and all that part of the Township of Elmsley north of the Bideaa River, within the County of Lanark, and west of Lot No. 12 in each I Concession. Clerk — R. Moffatt, Perth P. O. II.— The Townships of Lanark, Dalhousio, Darling, Levant and I North Sherbrooke. Clerk — Wm. Robertson, Lanark P. O. III.— The Township of Beckwith, and Lots Nos. 1, 2, 8, 4, 6 and 6, in the 1st, 2nd, 8rd, 4th, 5th, 6th and Tth Concessions in the Township of Ramsay. Clerk — James Poole, Carleton Place P. O. IV.— That part of the Township of Elmsley north of the Rideau River, from Lot No. 1 to Lot No. 12 in each Concession, both inclu- sive, and the Township of Montague. Clerk — Robertson Harper, Smith's Falls P. O. v.— The Township of Pakenham, and those parts of the Townships I of Bagot and Blythefield, south of the River Madawaska. Clerk — { Richard H Davie, Pakenham P. 0. VI.— The Townships of Horton and Ross, the first three Conces- I sions of the Township of Admaston, and those parts of the first five Concessions of the Township of B^ot, north of Madawaska River. Clerk— Wm. Halpenny, Renfrew P. O. VII. — Those parts of the 6th to the 12th Concessions, both inclu- sive, of the Township of Bagot, north of the Madawaska River ; that part of the Township of Blythefield north of the said River Mada- waska ; the Township of Admaston, except the first three concessions ; the Townships of Broomly, Brougham, and the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Concessions, inclusive, of the Township of Grattan, and also that part lying east of the side lines between Lots Nob. 10 and 11 in each Concession, and north to the River Bonnechere in said Township, also all that part of the Township of Wilberforce lying east of the side line between Lots Nos. 10 and 11 in the let to the 17th Concessions, both inclusive. Clerk — Andrew W. Bell, Douglas P. O. VIII. — ^Townships of "Westmeath, Stafford, Pembroke, Alice, Pete- wawa, Buchanan, Rolph, "VVylie, McKay, and all that part of the Township of Wilberforce from the 18th to the 25th Concession, both inclusive. Clerk — Andrew Irving, Pembroke P. 0. IX. — All that part of the Township of Grattan coraprislng the Concession from No. 11 to No. 25, both inclusive, excepting that por- tion of each concession lying on the east side of the side lines between ■',■;. ' 1 ''■'In ■fit 238 DIVISION COURTS AND LIMITS. i Lots Nos. 10 and 11 in each Concession respectively. And also nil tfiit I !)ortion of the Township of Wilberforce comprising tlio concesBlotii rom No. 6 to No. 1*7 inclusive, excepting that portion of the ntli, 6tli 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 16th, 16th and 17th Coni cessions lying east of the said lines between Lots Nos. 10 and 11 ig each concession respectively, and also excepting those portions of the 14th, 16th, 16th and 17th Concessions lying north of the Snake River, And also comprising the following Townships, namely, Griffith, Sebag. topol. South Algona, North Algona, Fraser, Lyndoch, Raglan, Rad. cliffe and Bradenell. Clerk— ^. O. Lynn, Eganyille P. 0. X.«— The Township of Ramsay, excepting Lots Nos. 1, 2, 8, 4, 6 ard 6, on the 1st, 2nd, 8rd, 4th, 6th, 6th and 7th Concessions of the said | Township. C'^«r*---John Patterson, Almonte P. O. XI.— The Village of Arnprior and Township of McNab. Clerk" I James Bell, Arnprior P. O. UNITED COUNTIES OF LEEDS AND GRENVILLK. County Judge — Georok Malloch, Esq., Brockvillo. DIVISION COUBTS AMD LIMITS. L — ^The Ist, 2nd, Srd, 4th, 6th, 6th and 7th Concessions, and broken I front of the Township of Elizabcthtown, and the concession roads between them. Clerk — John B. Jones, Brockville P. O. II. — The 1st, 2nd, Srd, 4th and 6th Concessions and broken front, and that part of the 6th, 7th and 8th Concessions from the Town liae of Edwardsburgh to Lot No. 18, inclusive, of the Township of Augusta, and the concession roads between them. Clerk — ^Thomas Harrison, Prescott P. O. III. — The Ist, 2nd, Srd, 4th and 6th Concessions and broken front of the Townships of Leeds and Lansdown respectively, and the Con- cession roads between them. Clerk — S. McCammon, Gananoque P. 0. IV. — ^The Township of South Gower ; the Township of Oxford from thd west side line of Lot No. 11, in all the Concessions to the eastern boundary of the Township, and the Gore of land between South Gower, Oxford anfl Edwardsburgh. Clerk — Robert Leslie, Kemptville P. 0. V. — The Township of Wolford (except the 7th and 8th Concessions and the allowance for road between them) ; Lots numbered one to ten inclusive in the 1st, 2nd, Srd, 4th, 6th, 6th, 7th and 8th Concessions of the Township of Oxford, and the allowances for roads within or between them. Clerk — Michael Kelly, Merrickville P. O. "VI. — The Townships of Bastard and Burgess, and those parts of the Townships of Leeds and Lansdowne on the north side of the rear of the 6th Concession in each respectively. Clerk — Hugh McKay, Delta P. 0. VII. — The Townships of Kelley and Elmsley. Clerk — Hiram McCrea, Frankville P. O. VIII. — ^The Townships of North Crosby and South Crosby. Clerk— Horace Kilborn, Newborough P. 0. WVISION 0OUUT8 AND LIMITS. 239 rk — Hiram IX.— That port of the ToMrnships of Eseott nnd Yongo in rear of tlie 4th Concession of Yonge, and in rear of the 6th Concession of Eseott; that iM»rt of the Townsliip of Elizabethtown in rear of the 7th Concession of and west of Lota Nob. 18 in the 8th, 9th, 10th and 11th Concessions, and the allowances for roads embraced therein. CUrk— David Mansell, Farmersville P. O. X.— The Township of Edwardsburgh. 0/«ri— Thomas Robertson, Spencerville P. 0. XI. — That part of the Township of An^sta in rear cf the 6th Con- cession and west of Lots and Nos. 18 in the 6tb, Vth and 8th Conces- sions ; the whole of the 9th nnd 10th Concessions of the Township of Augusta, the Gore between the Townships of Oxford, Wolford and Augusta ; that part of the Township of Elizabethtown in rear of the 7th Concession, and east of the terminus between Lots Noa. 18 and 19 in the 8th, 9th and 10th Concessions, the Vth nnd 8th Concessions of the Township of Wolford; Lots Nos. 1 to 10 Inclnsivo in the 9th nnd 10th Concessions of the Township of Oxford, nnd the allowances for roads embraced therein. Clerk — Warren Lyman, N. Augusta P.O. XIL — The 1st, 2nd, 8rd and 4th Concessions and broken front of the Township of Yonge ; the Ist, 2nd, 3rd, 4th, 6th and 6th Conces- sions and broken front of tlie Township of Eseott, and the nllownncea for roads embraced therein. The said Ist, 2nd, 3rd and 12th Divisions respectively embrace and comprehend within their limits those por- tions of the River St. Lawrence and Islands therein within the exterior side lines of which such portions of said river and islands would lie and be if such exterior side lines were produced and extended in that direction to the utmost limits of the Province of Canada. Clerk — Alfred A. Munro, Mallorytown P. 0. UNITED COUNTIES OP LENNOX AND ADDINGTON. County Judge — J. J. Bvrrowes, Esq., Napanee. DIVISION COURTS AND LIMITS. I. — Comprises the Town of Napanee, the Township of Richmond, all that part of North Fredericksburgh lying north of Big Creek, and those parts of North Fredericksburgh and Adolphustown lying north of Hay Bay. Clerk — Charles James, Napaneo P. 0. II. — Comprises the Ist Concession of the Township of Ernestown, the Village of Bath, and the 2ud, Srd and 4th Concessions of the Township of Ernestown, from the west limits thereof to the west limit of Lot No. 21 in each Concession. Clerk — J. D. Noble, Bath P. O. III. — Comprises the Township of South Fredericksburgh and all that part of Iforth Fredericksburgh and Adolphustown not included in the limits of Division No. 1. Clerk — Edwin Mallory, Parma P. O. IV. — Comprises the 1st, 2nd and Srd Concessions of the Township of Camden and the Village of Newburgh. Clerk — Isaac J. Lockwood, Newburgh P. O. V. — Comprises all that part of the Township of Camden not includ- ed in the limits of Division No. 4. Clerk — William Whelan, Ceutre- \illo P. O. \i », *\ ; ff 240 DIVISION COUU-rS AND LIMITS. VI.— CJompTlses all that part of tlie Township of Ernestown not included in tho limits of Dlvieion No. 2. C7erA— Il«nry Tultz, Wilton P. O. Vil.— Comprisca tho Township of Amherst Island. C7«rA;— Capt. Skene, Amhurst Island P. O. VIII.— Comprises the Townships of ShofTiuld, Kaladar, Anclescn, Abinger, Effingham and Denbigh. C7«rA— D. Cameron, Tam worth P.O. COUNTY OP LINCOLN. * County Judge— J. M. Lawdkb, Esq., Niagara. DIVISION COURTS AND LIMITS. I.— Comprising Niagara Town and Township. C7rti()n of the Township of Lobo which lies north of the 6th Concession and west of the lino between Lots Nos. 12 and 13 of tlie said Township. Clerk — Jos, C. Small, Strathroy P. O. VII — The Township of Dorchester north and south of the River Thames, with that portion of the Township of West Nissouri which lies tioulh of the line uotweeu Lots Nos. 14 and 15, together with that portion of die Township of London lyin(r oast of the lino between Lots Nos. 4 and 5 from the line between the 4tli and 6th Concessions to the River Thames ; and with all that portion of the Township of Westmiaster lying south from the River Tliames, and east of the lino lictwcen Lots Nos. 16 and 16, on the line between the Ist and 2nd Concessions westerly to the lino between Lots SO and SI, thence southerly to the line between the 2nd and Srd Concessions, and thence south on the line between Lots Nos. 20 and 21 to the southern lintits of the said Township. Clerk — Henry LeLievre, Draney's Comers P.O. Yin. — ^That fdl that portion of the Township of London which lies north of the line between the 4th and 6th Concessions, with that por- tion of the Township of Lobo which lies north of the line between the €th and 7th Concessions, and east of the line between Lots Nos. 12 and 13 to the line between the 1 1th and 12th Concessions, and with all that portion of the Township of West Nissouri which lies north of the line between Lots Nos. 14 and 15. Clerk — Wui. B. Bernard, Ut. John's P. 0. •=* n..;|'. m k (I ,, : COUNTY OF NORFOLK. County Judge — William Salmon, Esq., Simcoc. DIVISION COURTS AND LIMITS. I. — Comprising part of the Township of Woodhousc, and the Town of Simcoe. Clerk — James Ennatinger, Simcoe P.O. II. — Comprising the Township of Townsend. Clerk — Edward Matthews, Waterfonl P.O. 21 w I i< I I. I i ;■ It ; . j m 1 - ij 1' i' ill 1 liii. 242f Divisfosr coukts and tisrits. III. — Comprising the Township of Windhaoi, Clerk — D. W, Fie* man, Simcoe P.O. IV, — Comprising the Township of Middleton. Clerk — T. Jenkins, Courtlaad P.O. V. — Comprising the Township of Charlotteville. Clerk — W. Hewett, Vittoria P.O. VI. — Convprising the Township of Walsingham, Clerk — Simoji Fitt Mabee, Port Rowan P.O. VII. — C(Hnprising the Township of Houghton. Clerk— Thoe. Chamberlin, Hoiighton Centre P.O. VII. — Comprising the Village of Pori; Dover, and part of the Township of Woodnouse, CUrk — Samuel Gamble^ Porti Dover P.O, UNITED COUNTIES OF NORTHUMBERLAND & DURHAM. Cmmfy JuAge — George W. Bosweix, Esq., Cobourg. ^ Janioir Judge — G. M. Clark, Esij., Cobourg, i DIVISION COURTS AND LIMITS. I. — Comprising Bowmanville and Township of Darlington. Clerk-^ Cliarles Clark, Bowmanville P.O. II. — Comprising Townships of Clarke and Manvers. Clerk — Samuel Wilmot, Newcastfe P.O. III. — Comprising Port Hope and the Township of Hope. — Clerk Jolm T. Day, Port Hope P.O. IV. — Comprising Townships of Cavan and South Monaghan. Clerk — Wm. Turner, Millbrook P.O. V. — Comprising Town of Cobourg and Township of Htmiilton. Clerk — ^Michael D. Cruso, Cobourg P.O. VI. — Comprising Townships of Haldfmand and Alnwick. Clerk — J. G. Rogers, Grafton P.O. VII. — Comprising the Townsliip of Cramahe. Clerk — Jas. IT. Reid Colborne P.O. VIII. — Comprising the Township of Brighton. Clerk — George S. Burrell, Brighton P.O. IX. — Comprising the Township of Percy. Clerk — J. Doudas, Warkworth P.O. X. — Comprising the Township of Murray, Clerk — A. W. Gerow, Murray P.O. XI.— Comprising the Township of Seymour. Clerk — Daniel Kennedy, Campbellford P.O. Xn.— Comprising the Township of Cartwright. Clerk— Wm. A. Loucks, Cartwright P.O. DIVISION COURTS AND LIMITS. 243 I' > k ^! I COUNTY OF ONTARIO. Counti/ Judge — Z. Burnham, Esq., "Whitby. DIVISION COURTS AND LIMITS. I.— Comprising the Town and Township of Whitby and Village of Oshawa. Clerk— L. Fairbanks, Whitby P.O. II. — Comprising the Township of Pickering. CTerA— Joseph Wilson, Pickering P.O. III. — Comprising the Townships of Reach and Scugog. Clerk — Richard Lund, Borelia P.O. IV.— Comprising the Townships of Uxbridge and Scott. Clerk— Joseph Dickey, Uxbridge P.O. v.— Comprising the Township of Brock. Clerk — H. Burnham, Carrington P.O. VI.— Composed of the Township of Thorah and the broken Conces' Bions A B and C, and Concessions 1, 2, 3 and 4 of Mara. Clerk — Clias Robinson, Beavcrton P.O. VII. — Composed of the remainder of the Township of Mara and tlio Township of Rama. Clerk— U. E. O'Dell, Atherley P.O. COUNTY OP OXFORD. County Judge — D. S. McQueen, Esq., Woodstock. DIVISION COURTS AND LIMITS. I, — Comprising the Town of Woodstock, the Township of Blandford, tiie Township of East Zorra, the Township of East Oxford, and that part of North Oxford situate east of Lot No. 16, and as much of West Oxford as lies east of Lot No. 7 to the Stage Road, thence on the north side of the Stage Road to where the said road intersects the Township of East Oxford. Clerk— EdiViVD. F. Gahan, Woodstock P.O. II, — Comprising the Township of Blenheim. Clerk — Wm. II. Landon, Princeton P.O. III. — Comprising the Townships of West Zorra and East Missouri. Clerk — D. Matheson, Embro P.O. IV. — Comprising the Township of Norwich. Norwichville P.O. Clerk — Jas. Barr, V. — Comprising so much of the Townships of North and West Norwichville, (Oxford not included in the Ist division) the Town of IngersoU, and that part of the two 1st concessions of the Township of Dereham west of the middle Town line. Clerk — David Caulield, IngersoU P.O. VI. — Comprising that part of the Township of Dereham, not iiicludodia t'u 5tlidivi.siuu. Clerk — Charles Iluwkiiis, Tilsunburg' P.O. \.i\ II I II' i. ' '.J 'i4 i .!■; l\ M 24-4 DIVISION COURTS AND LIMITS. COUNTY OF PERTH. County Judge — Daniel H. Lizars, Esq., Stratford. DIVISION COURTS AND LIMITS. I. — Comprising all that part of the Township of North Easthopc, west of the line belweea Lots 25 and 26, and south of the road between the 8th and 9th Concessions, and all that part of the Township of South Easthope west of the side line between Lots 25 and 26. All that part of the Township of Downie and Gore, north and east of the Concession line between the 10th and 1 1th Concessions and the Oxford road, and all the Township of Ellice from the 1st to the 13th Conces- sion inclusive. Clerk — David B. Burritt, Stratford P. 0. II. — Comprising all that part of the Township of Fallarton not included in division No. 8, and the Townships of Hibbert and Logan. Clerk — ^Thomas Mathieson, Mitchell P. O. III. — Comprising that portion of the Township of Downie west of the Oxford road and south of the Concession line between the 10th and 11th Concessions, the Township of Blanshard, all that part of the Township of FuUarton, comprising the 13th and Hth Concessions, and south of a road leading from the Mitchell road between Lots 24 and 25 east to Lot 3 in the 10th Concession, thence east along the line between the lOth and 11th Concessiona to the Town line. Clerk — J. Coleman, St. Mary's P. O. IV. — Comprising that part of the Township of North Easthope east of the line between Lots 25 and 26, and north to the 8th Concession inclusive, with the 9th and 10th Concessions, all that part of the Township of South Easthope not included in Division No. 1. Clerk — W. Cossey, Shakspeare P. O. V. — Comprising the Township of Mornington, and all that part of the Township of Elma from Lots Nos. 63 to 12, both numbers inclu- sive, of the 1st Concession, and from Lots Nob. 27 to 86, both numbers inclusive, in and from the 2nd to the 18th Concessions, both concessions inclusive of said Township of Elma, and Concessions 14th, 16th and 16th of the Township of Ellice, and Concessions 11th, 12tfa, 13th and 14th of the Township of North Easthope. Clerk — Samuel Whaley, West's Corner's P. O, VI. — Comprising the Township of Wallace, and all that part of the Township of Elma, from the 1st Concession to the 18th, both Conces- sions inclusive, and comprising Lots Nos. 1 to 62, both inclusive, of the Ist Concession, and Lots Nos. 1 to 26, inclusive, from the 2nd to the 18th Concesssions, both concessions inclusive. Clwk — D. D. Hay, Listowell P. O. COUNTY OF PETERBOROUGH. County Judge — R. M. Bouohes, Esq., Peterborough. DIVISION COUUTS AND LIMITS. T. — Comprising the Town of Peterborough, Village of Ashburnham, Townships of North Monaghan, Ist, 2nd, 8rd, 4tlj, 5th and 6th Con- cussions Townsliip of Smith, Tith, 13th, 14th, 15th, 16th and I'Jth DIVISION COURTS AND LmiTS. 245 Concessions of the Township of Otonabee, and the Townships of Douro and Dummer south of Lot No. 12 in each. Clerk — John J. Hall, Peterborough. II. — Townships of Asphodel and Belmont. Clerk — John A. Butter- field, Norwood P. O. III. — ^Township of Otonabee east of 12th Concession. Clerk — ^Thos. Campbell, Keene P. 0. IV. — Townships on east side of Bobcageon Road Clerk — S. S. Peek, Minden P. O. < ?■: .h ' * . ; * * V. — ^North parts of Douro and Dunamer, and the township of Smith north of 6th concession, and the Townships of Burleigh, Chandos, Anstruther and Cardiff. C/erA;— Edward Btintty, Lakefield, P. O. UNITED COUNTIES OP PRESCOTT AND RUSSF L. .. ^ ._ ^.,. County Judgt — James Danibll, Esq., L'Ori^naL '' ': ' ■■ DIVISION COURTS AND LIMITS. I. — Comprising the Township of Longueil and front Concession of the Township ot Caledonia, and north-east part of the Township of Alfred. C;«r*— John Millar, L'Original P. 0. II. — Comprising the Township of West Hawkesbury, from front of third Concession to rear of Township ; also the west part of Tovmship of East Hawkesbury, from front of 8rd concession, and bounded on the east by road allowance between Lots 30 and 31 to rear of Town- ship. Clerk— yfm. McRae, Vankleek Hill P. O. III. — Comprising the Township of East Eawkesbury — ^that part ex- tending from front of 3rd Concession, an 1 bounded on the west by road allowance between Lots 30 and 81 in each Concession to rear of Township. Clerk— AX&n. McBahi, St. Eugene P. O. IV. — Comprising the Township of North Plantagenet and western part of South Plantagenet, and south and north-west parts of Alfred. C/erA;— Albert Hagar, Plantaganet Mills P. 0. V. — Comprising the Townships of Cumberland and Clarence. Clerk — Wm. N. Dunning, Cumberland P. 0. VI. — Comprising the Townships of Russell and Cambridge. Clerk — James Keays, Russell P. O. VII. — Comprising the Townships of West Hawkesbury and East Hawkesbury, those parts comprising the two front concessious of each. C/crifc— Thomas White, Hawkesbury P. 0. VIII. — Comprising the Township of Caledonia (excepting 1st con- cession), and also that eastern part of South Plantagenet lying on the eastern side of the Nation River. Clerk — Henry Bradley, Caledonia FktsP. a ,^, •■,•;■: ^ - , . n-. ^■■. ■ • \m n ,i 246 DIVISION COURTS AND LIMITS. COUNTY OF PRINCE EDWARD. County Judge — D. L. Fairfield, Esq., Picton. 1.' DIVISION COURTS AMD LIMITS. ■ « I. — Coraprisinff the Town of Picton and part of the Township of Hallowell. C7/er*— John P. Downes, Picton P. O. II. — Comprising part of the Township of Marysbugh. Clerk— Thomas Cook. MiSbrd P. O. III. — Comprising the Township of Sophiasburgh. Clerk — Samuel Solmes, Northport P. O. IV. — Comprising part of the Township of Ameliasburgh. Clerk— Edward Roblin, Roblin's Mills P. 0. v. — Comprising part of the Townships of Hallowell and part of Hillier. derA— William Young, Wellington P. 0. YI. — Comprising the Township of AthoL Chrh — Sheldon Spafford, Cherry Valley P. O. VII. — Comprising part of the Township of Hillier, and part of the Township of Ameliasburgh. Clerk — Joshua M. Cadman. Consecon P. 0, VIII. — Comprising the eastern part of the Township of Marys- burgh. Clerk — ^Richard Hill, Bergeud's Corners P. 0. m II ; N COUNTY OP SIMCOE. r r County Jvdge — Jaues Robert Gowan, Esq., Barrie. '. DIVISION COURTS AND LIMITS. I. — Comprising the Townships of Vespra and Innisfil, that portion of the Township of Essa lying eastward of the 4th concession in the said Township, and also that portion of the said Township of Essa northward of Lots numbered 26 in the 1st, 2nd, 8rd and 4th conces- sions, respectively, of the said Township; that portion of the Township of Oro lying westward in the 10th concession of the said Township ; and that portion of the Township of Tosorontio lying northward of Lots numbered 26 in the Ist, 2nd, 3rd, 4th, 5th, 6th, and 7th concessions, respectively, of the said Township of Tosorontio. e^erA—Thomas Lloyd, Barrie P. 0. II. — Comprising the Township of West Gwillimbury. Clerk — John F, Davies, Bradford P. 0. III. — Comprising the Township of Tecumseth, and that portion of the Township of Adjala lying northward of Lots numbered 11 in the 6th, 'Tth, and 8th concessions, respectively, of the said Township of Adjala. Clerk — Frederick S. Stephens, Tecumseth P. O. IV. — Comprising the Township of Nottawasaga and Sunnidale. Clerk — Andrew Jardine, CoUingwood P. O. V. — Comprising the Township of Flos, and that portion of the Township of Medonte lying westward of the 11th concession of same Township. Clerk — John Craig, Craighurst P. 0. ■DITISTON C0UET8 AND LIMITS. 247 YJ, — Corapriainjf the Township of Orillia (Northern and Southi-in Divisions); the Township of Matchedash; all that ])ortlon of tlin Township of Oro lyin^ eastward of the 9th concession of tlic .suiii Townsiiip of Oro; all that portion of the Township of Medonte lyini; eastward of the 10th concession of theaaid Township; tlie Townsliips of Muslcoka, Morrison and Balaclava ; and also the Islands in Laktv; Siincoe and Huron, wholly or for the most part opposite to and form- ing part of the County of Simcoe ; also the tract of land northward of the said Townships. Clerk — ^Thomas Dallas, Orillia P. O. VII. — Comprisifig the Township of Mulmur ; that portion of tlw Township of Tosorontio Ijang southward of Lots numbered 26 in the 1st, 2nd, 3rd, 4th, 6th, 6tn, and 7th concessions, respectively, of tlie said Township of Tosorontio ; and that portion of the Township uf Essa which lies westward of the 6th concession of the said Townsliip of Essa, except those Lots lying northward of numbers 26 in the 1st, 2nd, 3rd, and 4th concessions, respectively, of the said Township of Essa. Clerk — John Little, Mulmur P. O. VIII. — Comprising the Townships of Mono and Adjala, except those Lots lying northward of Lots numbered 11 in the 6th, 7th, and 8t1i tioncessions, respectively, of the said Township of Adjala. Clerk — Oeorge McManus, Mono Mills P. O. IX. — Comprising the Townships of Tiny and Tay and the Islands a^'acent thereto in Lake Huron. Clerk — £ob«rt James Cattley, Penetangulshene P. 0, UNITED COUNTIES OP STOEMONT, DUNDAS AND GLENGARY. CowUy Judge — George S. Jxavis, Esq., Cornwall. DIVISION COURTS AND LIMIITS. C. — Coraprisiflg the Township of Charlottenburgh. Clerk — Charles Poole, Martintown P. O. II. — Comprising the Township of LochieL Clerk — Colin Chisholm, Alexandria P. O. III. — ^Comprising the Township of CornwalL Clerk — George Sherwood Jaxvis, Cornwall P. 0. IV. — ^(^omprising the Township of Ofinabruck. Clerk — John Bockua, Dickenson^s Landing P. 0. V. — Comprising the Township of Williamsburgh. Clerk — John W. Loucks, Williamsburgh P. 0. VI. — Comprising the Township of Matilda. Clerk — John Sylvester Ross, Matilda P. O. VII. — Comprising the Township of Mountain. Ckrk — William John Ridley, Mountain P. O. ^ VIIL — Comprising the Township of Finch. CUrk — John A. Cockburn, Berwick P. O. IX. — Comprising the Township of Lancaster. Clerk — Peter Stuart, Lancaster P. O. i m ft 248 DIVISION COURTS AND LIMITS. .iff X. — Compriaittg the Township of Winche»tor. Clerk — JoBo Mc(/uaig, WiuehcHter P. O. XI. — Comprising the Tovrnship of Roxborongh. Chrk — Jatneg McDonald, Athol P. O. XII. — Comprising tl»c Township of Kenyon. Clerk — John Angus McDongall, Kenyon P, O. > COUNTY OP VICTORIA. County Judge — James Smith, Esq., Lindsay. DIVISION GOCKTS AKD LIMITS. I. — Compri&ing the 15lh concession of the Township of Mariposa and the Townships of Eldon, Carden, Dalton, Ryde, Draper and Macaulay. Cleric— K. Ray, Goodville P. O. II. — Comprising all of the Township of Fenelon, except that portion lying east of Scugog River and south <^ Stargeon Lake and includio)^ all that part of Somerville lying west of Lots number twelve throogh- out the various concessions, and the Townships of Bexley, Laxtoo, Digby, Longford and OaUey. Clerk— ^. C. Fitzgerald, Fenelon Falls P. O. III. — Comprising the Township of Verulam ; that part of Somer- ville lying east o( Lot number thirteen throughout the various concessions; the Townships of Lutterworth, .Ajtson and Hindoo. Clerk— JameB M. Irwin, BcMbcaygeon P. O. IV,— Comprising the Township d Emily. Clerk— T. Matchett, Omemee P. O. V. — Comprising the Town of Lindsay and the Township of Ops and that portion of Fenelon lying east c« Scogog River and south of Sturgeon Lake. Clerk — James McKibbon, Lindsay P. O. VI. — Comprising the Township of Mariposa except the 15th con- cession. Clerk — Wm. Taylor, Oakwood P. 0. COUNTY OF WATERLOO. County Judge — ^William Miller, Esq., Gait. DIVISION COURTS AND LIMITS. I. — Compinsing nil that portion of the Township of "Waterloo lying north of the Block line on the west side of the Grand River, and that part of the Upper Block in the said Township lying on the east side of the Grand River north of Lots 116, 109, 104, 86 and 95, to the Guelph Township line, including the Village of Berlin. CUrk — Andrew Peterson, Berlin P. O. II. — Comprising all that part of the Township of Waterloo south of the Block line on the west side of the Grand River and that part lying on the east side of the Grand River south of the northern boun- dary of Lots 111, 109, 104, 86, and 95, to the Guelph Townrfiip line, including the Village of Preston. ^«r*— Otto Klotz, Preston P. O. I.— C( Baker, ( DIVISION COURTS AND LIMITS. 249 in. Comprising all that part of the Township of North Dimifries, lying east of Lot 19, in the 7th concession, and running a course with the eastern boundary of the said Lot in a loortheriv direction up to the 12th concession, thence along the eastern boundary of Lot 38, in the said 12th cmicession to the Township line, including the Town of Gait. CUrk—Veter Keefer, Gait P. O. IV, — Comprising all that part of the Township of North Dumfries lying west of Lot 18, in the Yth concession, thence along the western fimits of the said Lot 18 in a northerly direction to the 12th conces- rioD, thence aioiw the western limit m Lot 22 to the Township line, (7/ ' ■i.:i COUNTY OF WELLINGTON. County Jvdge — ^Archibald Macdomau), Esq., Guelph. DIVISION COURTS AND UHITS. I. — Comprising the Town and Township of Guelph CUrk—A. A. Baker, Guelph P. 0. ^i 250 DIVISION COURTS AND LIMITS. I! s' !• II li ! I! 1 ;^l II.~-Comprising the Township of Puslinch. Puslinch P. O. C/«-*— William Leslie III. — Comprisiiij^ the Township of Eramosa. Clerk — WiHiaa McCarthy, Rock wood P. O. IV. — Comprising the Township of Nichol, except the 11th and 12tli concessions, the first eight concessions, inclusive, of Garafraxa, Lots i > to 13 in the i4th, 16th, 16th, I'Tth, and 18th concessions, east of the . Saugeen Road, and Lots 1 to 18 inclusive in concessions A and B Township of Peel. Clerk — Alexander S. Cadenhead, Fergus P. 0. V. — Comprising the Township of Erin. Clerk — ^William Tyler Erin P. 0. VI. — Comprising the Township of Pilkington, with the llth and 12th concessions of the Township of Nichol. Clerk — John McLeao, Eiora P. O. Nil. — Comprising all west of the Saugeen Road in the Townships of Peel and Maryborongh. Clerk — Qeo. Allan, Allansville P. 0. VIII. — Comprising the Township of Arthur, the western portion of Township of Luther, from Lots 1 to 16, both inclusive, and those portions of Peel and Maryborough not included in Division Nos. 4 and 7. C/«!rA— Cornel. O'Callaghan, Arthur P. O. IX. — Comprising that part of the Township of Garafraxa, except the first eight concessions thereof, and including the Gore of said Town- ship, the Township of Amaranth, and the eastern part of the Township of Luther, from Lots 16 to 82 inclusive. Clerk— Qny Leslie, Orange- ville P. O, X. — Comprising the Township Harriston P. O. of Minto. Clerk — Wm. Yeo, V- ; -- COUNTY OF WENTWORTH. Cdwuiy Judge — A. Looik, Esq., Hamilton. DIVISION COURTS AND LIMITS. I. — Comprisi: g the City of Hamilton and the Township of Barton. Clerk — Andrew MUroy, Hamilon P. O. II. — Comprising the Town of Dundas and the Township of West Flamboro*. Clerk — Alexis Fidele Begne, Dundas P. O. III. — Comprising the Township of East Flamboro'. Clerk — James McMonies, Jr. Watertown P. O. IV. — Comprising the Township of Beverley. Clerk — Wallace Macdonald, Rockton P. 0. v.— Comprising the Township of Saltfleet. (7/cri— John J. Bradley, Stoney Creek P. O. VI. — Comprising the Township of Ancaster. Clerk — Lemuel A. Gurnett, Ancaster P. O. VII. — Comprising the Township of Glandford. Clerk — John Atkinson, GlandfordP. O. VIII. — Comprising the Township of Binbrook. (7/«ri— Heury Hall, Binbrook P. O, ^^ .. .. , DIVISION COURTS AND LIMITS. 251 UNITED COUNTIES OP YORK AND PEEL. County Judge — Hon. S. B. Harrison, Toronto. Junior Judge — John Botd, Esq., Marlcham. DIVISION COURTS AND LIMITS. I.— Comprising the City of Toronto. Clerk — Allan McLean How- ard, Toronto P. O. n. — Comprising parts of the Townships of Markham and Whit- church, clerk — J. J. Barker, Unionville P. O. ni.— Comprising parts of the Townships of Markham and Whit- church, and the 1st, 2nd and 8rd Concessions of Vaughan, and 1st and 2nd Concessions of King, from Lot 1 to 10 inclusive. Clerk — Alex. C. Lawrence, Richmond Hill P. 0. IV. — Comprimng the Ist and 2nd Concessions of King, from lino between 10 and 11 northward ; Whitchurcli from same line northward, and the Township of East Gwillimbury. Clerk — Geo.R. Hogaboom, Sharon P. 0. v.— Comprising the Townships of North Gwillimbury and Georgina. Clerk— Vfm. 'Etj, Sutton P. O. VI. — Comprising Srd to 12th Concession of Ring, and 8th to 11th of Albion. ClerkP-Arihxa Armstrong, Lloydtown r. O. VIL — Comprising 4th to 11th Concession of Yaughan, and the Northern Division of the Gore of Toronto. Clerk — ^Thornhill A. Agar, Burwick P. O. VIII. — Comprising part of the Township of York lying west of Yonge Street, the Township of Etobicoke, and the Southern Division of the Gore of Toronto. Clerk — John Paul, Weston P. 0. IX. — Comprising the Township of Toronto, son, Streetsville P. 0. Clerk — Adam Simp- X. — Comprising the Township of Chinguacousy. Clerk — T. McEen- na, Brampton P. O. XL — Comprising the Township of Caledon, and 1st to 'Tth Conces- sions of Albion. Clerk — Henry Pettigrew, Sandhill P. O. XII. — Comprising the Township of Scarboro' and that part of the Township of York East of Yonge Street. Clerk— W. H. Norris, LL.D., Scarboro' P. 0. I I !^ I'll /J i It- > ',■ (. /.'I ',-. ■■i :'.t' i ".'■) t' i r . I"' > >. r... ! Ti :s'u.; ;o /i .1 llili <;« .1/. ) I ■) V-' Ji .!.» ■,'' \f';r J. ,» . >J ^ -. 't '.) ;( i2 i' l)i !«'.: /. ri'-j ji.V • lUm'fii. 'fit ,) iij i'l 1»,', 'viil <1 .': -i. ».-! ;U. ..iljii' >)Uii 41 ;?;: !..^ C';t' i'H W ♦ilif,*;:-,-, I .'V 1 ■. !u. hr '<] !i.' )■ J^i^ii!'>:t- :T 'f!; *.■»';. -I fendant has assets and wasted them, 135, Judgment against, in various cases, 135, 136, 18'i. Minute in Procedure Book of judgment against, 169, 173, 1 Summons to, as to assets since judgment, 1 72. Suggestion of devastavit on original summons, 172. Summons on a devastavit, 173. Summons to revive judgment on behalf of, 174. Summons to revive judgment against, 174. Execution against goods of testator, 175. On judgment revived against executor, 177. For, on judgment revived, 176. ExEMrTioN — See Execution. ExTORTicN — By ofiicers, 93. i 75. I "I 260 INDEX. Fke Fvsh — Duties of clerks respecting, 15. Unclaimed mono5's to go to credit of, 17. BfiilifF's forfeited foes to go to, 19, Table of fees to. 111. Fees — Fee system objectionable, 13, To be paid in first instance by plaintiff, 18. How enforced if not paid, 18, Table of, to Fee Fund, 111. To clerk, 112, To bailiffs, 113. To appraisers, 115. To Avitnesses, 163. • ' Fence Viewers — Duties of officers on awards by, 218. Fines — Plow enforced, 93. Disposal of, 94. See Contempt ok Court — Jury — SuBr =, 2 Geo. II., cap. 22, sec. 18— 41 V . 5, 7 Wm. IV., cap. 8—138, 139. 4 A 5 Vic, cap. 63—78. 16 Vic, cap. 158— 193. u : >i v > .n Con. Stat. Can,, cap. 5 — 9. ..Orilt.i;^ cap. 15 — 45. Con. Stat. U. C, cap. 16—7, 8. cap. 20, sec. 10 — 16. cap. 22, sec 266—63. sec. 292, etseq.— 215. ' ,. sec 830, 96. cap. 24, sec 4 — 171. ... cap. 25—106. , \.. , cap. 29—201. cap. 31— 61. cap. 82—61. ■ , , ._,,. ^ cap. 54, sec 3 — 65. ! .; - sec. 383—7. ^ i ■ sec 386—8. cap. 66, sec. 63, c< scj'. — 222. ■■' . i _. ^ cap. 67, sec 16 — 218. • " ' N cap. 64, sec 108—28, 220. V V cap. 78. sec. 7 — 138. j>v i.. -cap. 101, sec 8 — 2. ' * ■• cap. 120—7. cap. 128—90. cap. 126— 24, 96,98. ' 28 Vic. cap. 26—74, 75. cap. 45— 24, 87, 89, 201, 207. 24 Vic cap. 27, sec 2—74. 27 Vic cap. 8, sec 12—75. 27, 28 Vic, cap. 6—16, 111. cap. 27—8, 86, 66, 66. cap. 28, sec. 80—77. 28 Vic, cap. 8, sec 2 — 76. cap. 18 — 21. ■[:■:- u- .i-.Ssi-r cap. 19 — 8g. . v-j,.'i liv 29 Vic, cap. 81 — 4. Statotoey Dbtenob — Notice of, 47, 126. SriTOEs' Money- Clerk to make and post up list of in court, 1 7. INDEX. 269 I therefor, 21. 5. SuBPfEVA — Clerk to snp{»ly to suitors, 48. •■ Service of may be inivde l)y any literate person, 49. Penalty for disobeying, 4'.>. Fine applicable to person thereby injured, 49. Minute in Procedure Book of imposilioa of tine, 189. Warrant to levy lino, 191. When may be obtained from Superior Court, 152. Scale of fees thereon, 50. Form of — To attend sittings of Court, 152. To attend before arbitrator, 1 52. Summons — How to be issued and numbered, 1 23. To be issued by clerks and copies made, 14, 89, 121, 123. Service of, by bailiff out of his county, 37. Clerk to forward to foreign division for service, 38, 124. Time of service before court, 40, 124. When service to be personal, 40. '= :., Service when defendant concealed, 40. • ■ Description of parties, 122. Under sec. 152, 128. Leave for issue of, under sec. 72, 123. .< ; Form of, 148. Affidavit of sei'vice of, 149. , ' SrMMoxs TO WiTNKss — Sce SunrcENA. • , ■ ; I. )urt, 17. Tender — ^■v'"-;v'-"''^ ^ ■ .s^'\ Plea of, and payment into court, 45. Form of, 200. How to be made, 45, 126. Term of Ykars — Not seizable in execution, 73. ' Title to Land — No jurisdiction when, comes in question, 22. Rule different in interpleader issues, 23. Does this include possession, 22. Proof of, required to oust jurisdiction, 23, AVhen landlord can deny landlord's title, 23. Transcript of Judgment — From one county to another, 66. But not to court in same county, 67. Clerk to prepare and forward, 66. AVhat it should contain, 66, 67. To be entered in book for the purpose, 67. Can more than one be sent from same division, 67. ('lerk's charge for certificate as distinct from transcript, 67. Difficulties as to receipt and transmission of moneys, 68. Form of transcript, 178. Return of, 181. Plaintiffs order to remit money, 181. To County Court, 09. Whon run be obtained. 69. Wiilit it must contain, 69, 70. Shall become juil^uunt of County Court for all purpoHe.s, 70. I Mi 270 indp:x. Tbanscript of Judgment — Mutuorandutu of, to be entered in book for the purpose, 7( Form of, 178. Trespass ab initio, 95. Trover — Will not lie for deed, 24. Unclaimed Moneys — To be carried to credit of Fee Fund, 17. Not to affect claims of persons under disability, 17. Return of, to be made to Treasurer, 120. Form of list of, 195. Unitkd Counties — Time and place of holding courts on separation of, 5, 6. Senior County where gaol and court house are, 5. Variance — May be amended, 180. Warrant — To levy fine on witness, 191. Warrants of Commitment — When to bear date, 135. To be in force for three months, 1 35. No order for, to be drawn up or served, 135. Shall shew debt or fine, und costs, 121. Of judgment debtor — See Judgment Debtor. Form of, on judgment summons — See Judgmrnt Summons. For contempt, 190. Will — No jurisdiction, when validity of, disputed, 23. Withdrawal of suit by plaintiff, 125. Witness — See Evidence — Subposnas. rm.Nriju bv \V. C. t'Hi.wwr & Co., 17 & ll> Kinu SxciiiET Kast, Toronto.