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Les diagrammes suivants illustrent la mithoda. 1 2 3 1 2 3 4 5 6 THE DIVISIOT^ COURTS ACT OF 1869; AND m THE EULES AND FOUMS PBOHULOATED BY m I 'if I THE BOARD OF COUNTY JUDGES, ON Oxn APRIL, 1869; WITH EXPLANATORY NOTES* m 111 I BY HENEY O'BRIEN, Esq., Barrister-r o of MaDo^^ Court of not ceces of the pi case npoi the lean ards) in § he enter such judj THE DIVISION COUETS ACT OF I860. — ■♦— - (32 yiOIOBIA, Gap. 28.) ♦ An Act to amend the Acta respecting Division Courts. Assented to 28rd January, 1869. Whereas it is necessary and expedient to amend Pteambie. the Acts respecting Division Courts : Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — I. All judgments in the Division Courts in this of i^?^ Province shall have, and continue to have, the same SUJ^^" force and effect as judgments of Courts of Record, (a) courts of (a) The writer took occasion in his edition of the Division Coorts Act and Rales, at p. 138 et $eq., to consider the duration of a Division Court judgment, uid especially with reference to the fact that by sec. 5 of the consolidated Act, Divi< sion Courts were not to be held to constitute Courts of Record. Since the note referred to was written, the questions there discussed came up tor consideration In the case of McDonald v. Jfb J^nnon, in the Court of Queen's Bench. It was not necessary owing to the passing of the present Act to decide that case upon the law as it stood, but the learned Chief Justice (Rich- ards) in giving judgment said that he entertidned the opinion that such judgments were u force for twenty years, thus bearing out the correctness of the opinions ex- pressed by the writer in the note referred to. It will be noticed that the pre- sent section does not constitute Divinon Courts Courts of Re- cord, but declares Uiat their judg- ments shall have the same force and effect as judgments of Courts of Record. This provision gives therefore no increased power or jurisdiction to the Courts until suits are reduce^, to judgments, when they become matters of re- cord. The principal feature of thU section b, as probably its inten- tion was, to remove any doubts as to the duration of Division Courts judgments and to establish a uni- form practice in all the Courts. 276 DIVISION COURTS ACT OF 1860. II. (b) Iq actions broagbt in any Division Court. Final judg- for the recovery of any debt or money demand, (c) tered by the where the particulars of the plaintiff's claim, with claim not^'^ reasonable certainty and detail is indorsed on, or disputed, attached io the summons, and a copy of sach sum- *^' mons and particulars, with a notice in the form A (cc) in the schedule to this Act, annexed to or indorsed on such copy, be duly served, according to the practice of such Oourts, then, unless the defen- dant shall have left with the clerk, within eight days after the day of such service when the service is required to be ten days before the return, and within twelve days after the day of such service when the service is required to be fifteen days or twenty days before the return, a notice to the effect that he dis- putes the claim, or some part, and how much thereof, (d) final judgment may be entered by the clerk on or at any time within one month after the return of Jb) This section, now that intel- ligible rules and forms have Leen given under it, will effect a much needed and useful reform in the working of Division Courts. Great loss of time and expense was occa- sioned by plaintiffs not knowing until the court-day whether their cases would be defended or not, or whether it would be necessary to prove the claim sued for, or what part of it, (c) The section only operates in cases where the claim is for "debt or money demand." The word "debt" has a technical or le^ signification, which carries with it its well known meaning, and if taken in its widest sense, and apparently what is intended here, may be defined as " a sum of money due by certain and express agreement: as by a bond for a determinate sum ; a bill or note ; a special bargain ; where the quan- tity is fixed and specific and does not depend upon any subsequent valuation to settle it." (Black. Com. It. 264.) The words " mo- ney demand" arc indefinite, and though they misht strictly be said to apply to uL actions where the recovery of money, as distin- guished fi^)m a specific chattel, is sought, it would seem to have in its present connection a less ex- tended meanir^, and to include claims whicli are not founded on damages foi* v/rongs done. In fact, reading this Act in connection with the Division Courts Act, it would seem that this section refers to cases covered by sub-section 2 of sec. 66 of that Act. (See notes to sec. 66, pp. 24 et aeg.) {ce) This summons is called in the Rules of April, 1869, "special summons," which provides a new form in place of notice A. (See this discussed in vol. 6 of JLocal Courts Gazette, 49.) (d) No form is given for this notice. It will therefore be suf- ficient if it comply substantially with the requirements of the Act. It should be properly entitled in the court ana style of the cause, and might run thus:— DIVISION COURTS ACT OP 1869. 277 BQcb summons (e) for the amount olaimed in such particulars, or so much thereof as has not been ois- puted, if the plaintiff is content with judgment j'or sach part ; (/) and execution may afterwards iss le " In the — the coanty of • Between Division Court for and ", plaintiff; , defendant. Take notice that I hereby dis- pute the claim of the plaintiff {or dispute the claim of tne plaintiff with the exception of the follow- ing items, amounting to | , namely : ; or dispute the fol- lowing items or part of the plain- tiff's claim, amounting to $ , namely: .) Dated, (fcc, , 186—. Yours, Ac. To the above named plaintiff, and to the clerk of the said court." The notice of defence under statute (set off, statute of limita- tions or the like, as to which see sec. 17 and note thereto, and rule No. 11 of April, 1869) may be con- veniently given with the above* notice of disputed claim, but the defendant will not be bound to (j^ve it at the same time, though he must do so at least six days before the day appointed for the trial, according to the provision of rule 11, which stands in the place of the repealed section 93. This notice, it would seem, need not be given to the plaintiff, who will therefore have to search at the clerk's office for it, after the expiration of the time. It is other- wise under section 4, when the de- fendant has neglected to give the notice in proper time. (e) This judgment may be signed by the clerk at the instance and request, it is to be supposed, of the plaintiff when the proper time arrives, and not by the clerk, as a matter of course. It might be that a request might be made on the entry of the claim that the clork should sign judgment if defen- dant should fail to give notice of disputed claim, but the clerk, if he consents to act on a request thus made in advance, should protect himself by having it in writing. The section speaks of the " re- turn " of the summons. Was this intended to refer to the court day, or to the time of service : that is, can judgment be signed on default of notice disputing the claim af- ter the time limited, or must the plaintiff wait until the court day ? There would seem to be no doubt that the words used would lead to the latter view, but it is almost eaually clear from the whole tenor of the Act that the former view expressed the real intention of the framer. Since the above was writ- ten, the rules of April, 1869, have been promulgated, which are con- firmatory of this opinion, as will be seen bv rule 3. However this may be, that rule settles the point in the manner most consonant with reason and in analogy to the prac- tice in like cases in the Supe- rior Court, and the section is there- by saved from being practically worthless. If the judgment is not signed within the month, the force of that summons will have been ex- E ended, and a fresh summons must e issued. (/) If he is not content, the parties must go to trial as to that item or part of the account which the defendant disputes, the remain- i \l n « j'^ i 978 DIVISION COURTS ACT OP 18«9. Proviso. thereon at the instanc<^ of the plaintiff: Frovided that the Judge may set aside such judgment, and permit the case to be tried, on sufficient grounds shown, on such terms as to costs and otherwise as he shall think just. (J) III. The final judgment so entered may be in the ?^rtteuu™ for™ B in the said schedule, {gg) but no such judg- and affidavit ment shall be so entered until the sundttons and par- te be Med. jiQ„igjg^ ^j^jj ^q affidavit of the due service of both, have been filed. lY. The Judge at any time before judgment Leave to dis- actually entered, although the time for giving such ?inie before noticc disputing the plaintiff's claim has expired, judgment, ^^y^ q^ guffieient grounds shown, and on such terms as he shall think just, {h) grant leave to the defen- * dant to dispute the plaintiff's claim, in which case the requisite notice disputing such claim shall im- mediately be left with the clerk, and also sent to the plaintiff, by prepaid letter through the post or other- wise. der of it being in e£fect admitteu by the notice as to a part. {g) A jadge would in eii casea require an affidavit of merits from the defendant, which should not merely state that he has a defence to the action, but disclose the na- ture of the defence (sue Bank of Montreal v. Harrison, 6 Prac. R., 831 ; and Wooster Goal Co. v. Nelson, lb. 843). and in some way account for his neglect in not giving the required notice. The affidavit of the defendant should be supported, if possible, by corroboratory affi- davits. One condition that might occasionally be imposed with fair- ness to the plaintiff would be to require the defendant to pay into court the debt and costs or some part thereof to abide the result of the suit as a security to the plaintiff. The plaintiff should properly in this case have notice of the ap- plication, and be given an oppor- tunity of opposing it. The rules of April, 1869, give full directions for working out this section; without them it would be almost valueless. {gg) The form B is not in ac- cordance with the enactment in the clause, and has been set right by a rule which gives a new form. See rules of April, 1869, post. {h) See section 2, note g. This is probably not intended to be an ex parte application, though the last part of the section provides that the plaintiff shall be served with the notice disputing the claim ; but whether ex parte or not, it would be quite competent for the judge to call the plaintiff before him to shew cause, if he should think it desirable. Division coubts act of imo. TO OABNISHEI DEBTS. 279 y. (t) When any debt or money demand of the To garnishee proper competence of the Diyiaion Court, and not'^^*'^' being a claim strictly for damages, is due and owing to any party from any other party, either on a judg- ment of any Division Court or otherwise, and any debt (k) is due or owing (I) to the debtor from any in (t) The power to attach debts- due to jadgment debtors to satisfy judements was given to execation creoitors in Superior and County Coart suits in 1866. It is there confined to the satisfaction of any clum that has been reduced to a judgment, whilst this section allows the attachment of debts to satisfy "any debt or money demand" not strictly a claim for damages, whe- ther on a Division Court judgment or otherwise; that is to say, the debt to be satisfied need not be a jadgment debt, but it must not be a daim for damages. Why this distinction is not apparent. Claims for unliquidated damages, or claims for breach of contract for unliquidated damages, cannot be attached until judgment has been obtained upon them ; nor does the recovery of a verdict on such claims alter the case, until the ver- dict has become a debt by means of a judgment. (See Boyd v. Haynea, 6 Prac. Rep. 16.) And it is also sud that a ver- dict on an insurance policy, other than a life policy, is not attacha- ble, the contract of insurance being looked upon as a contract of in- demnity. (i5. ; and see Dretier v. /oAfur, 6C.B. N.S.429.) {k) It is not every claim that can be attached ; it must be a debt, that is, a sum certain, something which comes within the meaning given to the word as used in section 2, (see note e thereto.) It has been laid down as a general rule, that any debt which can be the subject of a set-jif (see note t to sec. 98 of the Division Courts' Act) can be at- tached. (MeNaughton v. WAater, 6U.0. L.J. 17.) It must be a legal debt, due from a legal debtor to a legal creditor, and therefore a debt due by the garnishee to a person who is trus- tee for the iudgment debtor, and one who is tnerefore only the bene- ficial creditor cannot be attached to satisfy the judgment debt. {Sovd et al. V. Haynet, 6 Prac. Rep. 16.) Debts which have been assigned by the judgment debtor cannot be attached; out see further as to this, note n to this section. And so an unsettled balance due by one partner to another cannot be garmsheed ; but it is otherwise if the balance has been ascertained by a settlement of accounts. ( Cam*- hell V. Peden etal.Z U.C. L. J. 6d.) Where the garnishee had £iven the judgment debtor, or, as he is called in this statute, the primary debtor, a bond conditioned that an agent of the dobtor should pay over all moneys by him received, it was held that liabilities incurred by the gam^.shee, even if estab- lished, won?d not be attachable. {Qriamold v. B. B. & O. Bailroad Co., 8 U.C. L. J. 116.) The surplus money arising out of the sale o( mortgaged premises in the hands of the mortgagee, is a debt within the statute, and at- tachable on a judgment against the mortgagor. {McKay v. Mitchell, ill 280 DIVISION COURTS ACT OF 1869. 6 U.O. L.J. 61.) And bo is monoy made by and in the hands of a sheriff under an execution to satisfy the debt of the person for whom he has made the money. {Smart y. Miller, 8 Prao. Rep. 88S). And see Lockhart v. Orvy, 2 U. 0. L. J., N. S. 168, to the same effect; in which case it was intimated that money in the hands of a Division Court bidliff might also be attached. In Ward v. Vanee, 10 U.C. L.J. 269, it was held that an order would not be made on executors or administrt tors to pay a simple contract debt due by the deceased to the judgment debtor, as they might be liable on specialty debts, after satisfaction of which they mi^ht have no assets, and before satisfaction of which they ought not to be ordered to pay a simple contract debt. But m the recent case of Tiffany v. Bullen, 18 U. C. C.P.91,that opinion was questioned and the court decided ttiat if the debt Bouffht to be earnished is really a debt which the executors are bound to pay to the judgment debtor, there is no reason, in prin- ciple, why they should not pay it to h's creditor. This case was decided after referring to Burton v. Harriaon, 6 H. s the order does not pre- vent thbir paying the debt to the primary debtor until after service pf the order (sub-sec. 8). i 28^ DIVISION COURTS ACT OP 1869. is or a-e within this Province, (q) and is or are indebted (r) to the Primary Debtor, for an attach- ing order (which such Judge is hereby authorized to make), to the effect that all debts owing to the Primary Debtor, whether due or not due, be attached to satisfy such judgment; which order m»y be in the form C in the said schedule. 2. The service of such order on any Garnishee (s) shall have the effect (subject to th' rights of other parties), of attaching and binding in his hands (t) all debts then owing from him to the Primary ws^wn^"' Debtor, or sufficient thereof to satisfy such judg- ment, and a payment by the Garnishee into the Court, or to the Primary Creditor, (u) of the debt Service thereof to bind all debts, etc. Oamishee discharge. The requirements of the affida- vit are here much more precisely stated than in the analogous pro- vision in the Common Law Proce- dure Act. {q) It would seem that a debt due by a corporation having its head office in a fereign country cannot be attached under this Act, there being no provision for service on any agent in this coun- try. (See Bank B. N. A. v. Laugh- rey et al, 2 U. 0. L. J. N. S. 44.) But this is said not to be the case where a person living out of the Province leaves money in hands of an agent here to pay debts. {Brown V. Merrills, 3 U. C. L. J. 81.) (r) The nature of the indebted- ness should be fully stated in the affidavit, though the judge has dis- cretion to act upon such informa- tion, if within the Act, as he may think sufficient. (See Tiffany y. BulUn, 18 U. C. 0. P. 91.) («) Personal service is unneces- sary if it can be shewn that the garnishee had notice of the order. {Ward v. Vance, 9 U, C. L. J. 244). (<) " The judgment creditor who gets the first attaching order will gain the priority over other judg- ment creditors to be satisfied out of the debts attached, due to the judgment debtor : " {per Draper, C. J., m McKay v. Mitchell, 6 U. C. L. J. 61). And so in Tate v. Th City of Toronto, 8 Prac. Rep. 181 ; 10 U. C. L. J. 66, it was held by the full court, that where several judgment creditors proceed against the same garnishee, they are en' titled to be paid in the order in which their attaching orders were served, and not ratably. The word bind in this connec- tion has been interpreted to mean, "that the debtor or those claiming under him shall not have power to convey or do any act as against the right of the party in whose favour the debt is bound ; and we construe it as not giving any pro- perty in the debt in the nature of a mortgage or lien, but a mere right to have the security en- forced." {Holmes et al„ v. Tutton, 6 E. (& B. 80.) (u) It is submitted that it would in all cases be advisable that the money should be paid into court and not to the primary creditor. The garnishee certainly would ap- pear to be protected in paying it to the latter; (which would not be DIVISION COURTS ACT OP 1869. 283 so attAchcd to the extent ungatisfied on snch judg- ment, shall be a discharge to that extent of the debt owing from the Garnishee to the Primary Debtor, (y) 3. Any payment by the Garnishee, after service payment to on him of snch order, to any one other than the ^"^ ^"^ ^- Primary Creditor, or into Court, to satisfy the said torToid? judgment, shall, to the extent of the Primary Cre- ditor's claim, be void ; and the Garnishee shall be liable to pay the same again, to the extent of the Primary Cfreditor's claim, to satbfy his said judgment. 4. (a) Whether any such attaching order shall or Primary cre- shall not have been made, the Primary Creditor may "^'*°' "*y , 1 , n .t -wv* • • « o %'' summon cause to be sued out of the Division Court for the garnishee, division in which the Garnishee, or one or more of ^°' them, if there be joint Garnishees, reside or carry on business (6), a summons in the form D in said schedule, upon or annexed to which shall be a memo- randum showing the names of the parties as desig- nated in the judgment, the date when, and the Court in which it was recovered, and the amount unsatisfied; which summons shall be returnable the case in the other courts with- out a substautive order to pay over: (Clark v. Clark, 8 U. C. L. J. 107 ;) or by actual payment of the money, after an order or an execution levied for it : {Syket y. £rockville S. R. Co., 22 U. C. Q. B. 469.) But it is possible to conceive a state of circumstances where a payment to either party, until the judge had finally disposed of the case, would work confusion or injustice. (v) The effect would seem to be that such a payment could be set up as a payment on account in any action for the debt sought to be attached. (a) Where the garnishe'" pays the money directly to the primary creditor, the proceedings allowed by this and the following subsec- ^ioflB would seem to be unnecessary. But this is not likely to be often the case, and then the primary creditor must proceed as hereafter diriected to enforce his security (if an attaching order has been al- ready obtained) or statutory claim (if he has taken no previous pro- ceedings) against the garnishee. (b) The garnishee being in effect the defendant in the new proceed- ing, it is quite possible that he may reside in a county different from that in which judgment has been obtained, and from which execu- tion has been issued. But these sections appear to give jurisdiction t- the Judge of any county, wher- ever the garnishee may reside, and that it is not limited to the judge of the county where the original judg- ment was obtained ; but in such a case atranscriptof judgment should be filed in the office from which the garnishee summons issues. 284 DIVISION COURTS ACT OP 1869. How to bo served, &c. Judgment at hearing. either at any ordinary sittings of such Court, or at such other time and place (to be named therein) as the Judge shall permit or appoint, either by a gene- ral order for the disposal of such matters or otherwise. 5. A copy of such summons and memorandum shall be duly served on the Garnishee, or, if there be joint Garnishees, then on such of them as may be in reach of the process (&&) at the time and in man- ner required for the service of summonses in ordinary suits for corresponding amounts, and also on the Primary Debtor, if thought advisable, or if required by the Judge (c). 6. At the hearing of the summons, or at any adjourned hearing, on sufficient proof of the amouDt owing by the Garnishee to the Primary Debtor, and no sufficient cause appearing why it should not be paid and applied in satisfaction of the judgment (d), the Judge may give judgment against the Garnishee r which may be in the form E in the said schedule), tor the amount so owing from him, or sufficient there- of to satisfy the judgment; and execution against the Garnishee (e) to levy the same may issue thereon as of course if due, or when or as it becomes due, or at (hb) " In reach of the process." This is a very iadefinite expres- sion. Does it mean, "within tlie Province, or, who cannot be found to be served after due diligence, either because he keeps concealed or because he may have removed to some inaccessible place; or might it be held to apply to both states of facts? Neither is the expression a technical one, which would assist in its interpretation. Perhaps the view that would give the most latitude to a wise discre- tion on the part of the judge would be the best. (e) This should always be insist- ed on by the judge, and the pro- priety or doing so is found to be so great that the judges of the supe- rior courts havo laid it dowia as a rule that ijb must be done before an order to pay over is made, though there is nothing in the Common Law Procedure Act requiring it or even alluding to it. (See Ferguson V. Carman, 26 U. C. Q. B. 26, and see Form D.) (d) That it appears that it is such a debt as may be attached, and has not been assigned, <&c. ; and see sec. 8. (e) There is no power given to proceed against the personal repre- sentatives of the garnishee. In Wardy. Vance, 10 U. C. L.J. 189, a judgment creditor obtained a summons calling upon the execu- tors of the garnishee to show cause why he should not be at liberty to proceed by execution against the executors to recover the dubt due I DIVISION COURTS ACT OP 18C9. 285 sach later period as the judge shall order, which execution may be according to the form F in the said schedule. WHEN THE PBIMART CREDITOR'S CLAIM NOT A JUDGMENT. (/) VIL When judgment has not heen recovered for J^en no the claim of the Primary Creditor, he may cause aiui^ona'on summons to be issued out of the Division Court of ^^|^«»» the Division in which the Garnishee, or one or more issue, of them, if there be joint Garnishees, live or carry on business (/) in the form G in the said schedule. by the garnishee to the judgment debtor. Bat it was held by Draper, G. J., that he had no power to legalize execution against the re- presentatives of the garnishee; though it is doubtful whether this would be the case in these courts. (/) This is a provision hitherto unknown to the law, and will be advantageous in securing payment of debts to the primary creditors, though there may be cases where the working of it will be found complicated and troublesome. This section is intended to en- able a creditor, who has not as yet obtained a judgment against nis alleged debtor, to attach a debt due to such debtor by a third person. It makes no distinction between cases where proceedings have already been commenced by the creditor, or not. It must there- fore be meant to apply to all claims whether in suit or not, at the time the alleged debt is sought to be secured by the attachment of a debt due to the alleged debtor by a third person. But here diffi- culties arise which should be met as soon as possible by the pro- mulgation of some well considered rules and forms. (g) Under this section the resi- dence of the garnishee woiH'! appear to decide not only the court where the claim against the garnishee is to be adjudicated upon, but draws to the same jurisdiction the judi- cial settlement of the accoimt or dis- pute between the primary debtor and creditor. If the action between the latter has not been commenced, there could be no doubt as to this ; and both matters would come on together for trial at the same time and place (though not necessarily to be finally determined at the same time). If it were necessary or possible that both matters should be determined at the same court there would be no harm in the pro- vision, as it is lust as well that the cases should be tried where the garnishee resides, as where th« primary debtor resides, or as where the cause of action in the original claim arose. But there does not seem to be any such necessity, if the Act can be interpreted to allow the original claim to be sued in the court to which it would go but for this section ; a trial there would in most cases be most convenient and perhaps save expense in the shape of witness fees, which might more than compensate for the difference of expense in the court fees. If the suit for the primary debt has already been commenced, and not in the division in which the i :!! Berriee thereof. 286 DIVISION COURTS ACT OP 186?. upon or annexed to which shall be a memorandum, showing the names of the Primary Creditor, the Primary Debtor, and of the Garnishee, and the particulars of the claim of the Primary Creditor, with reasonable certainty and detail ; which sum- mons shall be returnable as required by the fourth sub-section of section six of this Act, in respect to summonses therein mentioned. 2. A copy of such summons and memorandum shall be duly served on the Garnishee, or if there be joint Garnishees, then on such of them as are within reach of the process (K) at the time and in the man- ner required for service in ordinary cases ; and also, if practicable, on the Primary Debtor, unless the Judge shall, for sufficient reason, dispense there- with. 3. If in such case the Primary Debtor has been Judgmentin duly Served with a copy of such summons and memo- ■linn naaa •' ,_ ••« ii» • i randum, judgment (m the usual form in other cases) may be given against him at the hearing for the Primary Creditor, for the whole or such part of the claim as shall be sufficiently proved, and execution may afterwards issue thereon as in other cases ; and whether such judgment be or be not given, the Judge, on sufficient proof of the debt due and owing from the Primary Debtor, and also of the amount oring to him from the Garnishee, may then, or at any adjourned hearing, give judgment against the Garnishee (which may be according to the form H in the said schedule) for the amount so found due from the Garnishee, to the extent of the amount so found due from the Primary Debtor, which sum the Garnishee shall pay into court, or to the Primary Creditor, towards satisfaction of such claim, or in default thereof, execution may issue to levy the same forthwith, or at such later period as the Judges shall such case. garnishee may happen to reside, it is equally clear that it must there remain, fiut at the same time the primary debtor should fur reasons already given be war- ned to appear at the court where the summons on the garnishee is returnable. (h) See note bb to sec. 6. sub- sec. 6. DIVISION COURTS ACT OP 1869. 287 direct, vhicli execution may be aocordiag to the form I in the said schedule (i). GENERAL PROVISIONS. VIII. In all casea under this Act, and whether aii parties the claim of the Primary Creditor be or be not a SSj^gJow judgment, the Primary Debtor, the Garnishee, and ^ause, &c. all other parties in any way interested in, or to be affected by the proceeding, shall be entitled to set up any defence, as between the Primary Creditor and the Primary Debtor, which the latter would be enti- tled to set up in an ordinary suit, and also any such defence as between the Garnishee and the Primary Debtor, and may also show any other just cause why the debt sought to be garnished should not be paid over or applied in or towards satisfaction of the claim of the Primary Creditor : PrDvided that as to any Proviso. statutory defence (X;), notice thereof shall have been given to the Primary Creditor at the time and in the manner required in respect to such notice in ordinary cases. IX. In all cases under this Act (except when an Service of attaching order has been served, already provided gam^hee *"^ for), service of the summons on the Garnishee shall Wnds debt have the effect of attaching and binding in his hands ing. (subject to the rights of other parties) the debt I ^ ■ '-J ■ ■ •1 ^4 (t) The effect of this section can scarcely have been fully considered before it was enacted, or it would not have legalized the payment of a debt due to the primary debtor by a garnishee to the primary cre- ditor before the latter had estab- lished his right to recover any- thing from the primary debtor. The service of the summons on the primary debtor should on no ac- count be dispensed with. Without notice of the proceedings, injustice would most likely be done him ; and even with notice, it would be only by the interposition of the judge that he would be safe; and the judge would probably, unless indeed the primary debtor admit- ted the claim of his creditor, ad- journ the hearing or postpone his judgment on the garnishee sum- mons until judgment had been finally recovered against the pri- mary debtor ; for the moment judgment is given against the gar- nishee, he can pay the amount of it to the primary creditor whether or not the latter has recovered judgment against the primary debtor. An attempt is made by sees. 14 and 16 to meet some of the difficulties likely to arise. Whe- ther they will do so eflfectually remains to be seen. {k) See sec. 11 and note thereto. iR 289 DiVISlOiT COURTS ACT OP 186d, And after judgment. sought to be garnished, from the time of BUch ser* vice until a final decbion made on the hearing of such summons ; and any payment of such debt by the Garnishee during such period, to any one other than the Primary Creditor, or into Court for satisfy* ing his claim shall, to the extent of such claim, be void, and the Garnishee shall be liable to pay the same again to the extent of such claim, to satisfy the same, unless the Judge shall othorwise order. X. If judgment be given for the Frimar; Creditor against the Garnishee, the debt garnisheed dhall, un- less the Judge shall otherwise order, continue bound in the hands of the Garnishee to satisfy the claim of the Primary Creditor ; and payment in such case by the Garnishee of such debt to the extent of such claim, either into Court or to the Primary Creditor, shall, to that extent, be a discharge to the Garnishee, as between him and the Primary Debtor; and any payment thereof, otherwise than last aforesaid,.except by leave of the Judge, shall be void, and the Gar- nishee in such case shall be liable to pay the same again, to satisfy the claim of the Primary Creditor. XI. The Garnishee shall not be liable for tho costs of the proceeding, unless and in so far only S£< f cca- sioned by setting up a defence which he kr. . ■., s t ought to have known, was unteDable; and 3i;);j«^ . this provision, the costs of all parties shall b a Jio discretion of the Judge. XII. Judgment shall not be given either against the Primary Debtor or the Garnishee until the said summons and memorandum, with an affidavit of the due service of both on the proper parties be filed, unless the Judge for special reasons shall order otherwise. XIII. No execution shall in any casp issue to levy tJon tuJ'^. the money owing from any Garnishee until, and so niflhee's far ouly as, such money shall have become fully due. XIV. Any party entitled to or interested in any money or debt attached or bound in the hands of the Garnishee by a proceeding under this Act, may, at Costd. Summons and memo- randum of particulars filed. debt due. DIVISION COURTS ACT OP 1809. 289 any time before actual payment thereof by the ^PP'.'cation Garnishee, apply to the Judge for an order (which debt'from*^* the Judge is hereby authorized to make), to the ****^''™®°*- effect that such money or debt be discharged from the claim of the Primary Creditor, and thenceforth such money or debt shall cease to be attached or bound for such claim ; and such an application and 8uch an order may also be made if the Judge shall think fit, after such money or debt has been paid over by the Garnishee, in which case, all parties shall be remitted to their original rights in respect thereto, (/) except as against the Garnishee having already paid such debt or money, whose payment shall not be affected thereby, but shall be and remain an effectual discharge to him. XV. If the Judge, on the hearing of any sum- Security mens under this Act, or on special application forp^jj^^^ the purpose, shall think proper, he may, before giv- creditor, . ing judgment against the Garnishee, or at any time before actual payment by the Garnishee, order such security to be given as shall be approved by himself or the Clerk, by or on behalf of the Primary Creditor, for the repayment into Court to abide the. Judge's order, in cvrne a Judge's ordbi: shall be made for such repayment ; (m) which bond shall be to the Clerk by his name of office,'and shall enure for the benefit of all parties inte ested in or entitled to the money, and may, by order of the Judge, and on such terms as to indemnity against costs and otherwise as ho shall impose, be sued in the name of the Clerk of the Court for the time being, for the benefit of the party entitled. 2. In case any one other than the Primary Credi- Casea of tor or Primary Debtor shall claim to be entitled tochamr the debt owing from the Garnishee, by assignnient thereof or otherwise, it shall be lawful for the Judge, when adjudicating in any of the cases aforesaid, or s-ltl fWI m {I) See sec. 7, sub-sec. 8 (note i). (m) This, and the previous sec- tion are intended to protect princi- pally the primary debtor or credi- tor as the case may be, from the consequences very likely to result from the effect of some of the pre- vious sections. 290 DIVISIOH COURTS ACT 07 1809. by calling the proper parties before him by SQmmons for the purpose, to enquire into and decide upon such claim, and to allow or give effect to it, or to hold it void as against the Primary Creditor for being a fraud upon creditors, or otherwise, as the justice of the case shall require ; and for such pur- pose he may require the attendance of such parties and such witnesses (their conduct money being first paid), as he shall think necessary, (n) XYI. It shall be lawful for the Judge to postpone po^t^ne^r or adjoum, from time to time, the hearing and other adjourn pro- proceedings in all Garnishee cases, to allow time for ce>. lugs. giyjQg omitted notices of defence, or to produce Airther evidence, or for any other purpose ; and to require service on, and notice to, other or additional parties, and to prescribe and devise forms for any proceeding, and to amend all summonses, memo- randa, claims, accounts, notices and other papers and proceedings, and copies thereof, as justice shall require. XVII. Section ninety-three of chapter nineteen of the Consolidated Statutes of Upper Canada, entitled, " An Act respecting the Division Courts," is hereby repealed, (p) and in lieu thereof it is here- by enacted, that when the set-off proved to the satis- faction of the Judge exceeds the amount shewn to be due to the plaintiff, the plaintiff shall be non- suited ; or in his election, judgment may be given for the defendant, in which latter case such set-off shall be thereby satisfied only to the amount found due the plaintiff, and no further; and the Judge in Sec. 93 Con, Stat. U. C. repealed. XIX. section, i and eze< poenas, p: thereof ^ on dems thereon : tion to a his sure parties subpoeni or relati bailiff. (n) It will not generally appear what persons are interested other than the primary creditor, debtor and garnishee, until after the gar- nishing process has come before the judge. The next section en- ables him to take the necessary steps to bring all parties properly borore him. (o) There is a mistake here. This section, instead of repealing and re-enacting sec. 96, as was doubtless the intention, repeals the section of the Division Courts Act respecting statutory defences. The rules (No. 11), of April, 1869, make a provision similar to the repealed section, with an addi- tional clause as to a defence of set-off. iP) 1 and exp ness, ho not bail be qnea bered 1 devote holding do the on then DIVISION COURTS ACT OF 1869. 291 BQch case may adjudicate that a specified amovnt of soch set-off be satisfied by such claim of the plaintiff, but such adjudication shall be no bar to the recovery of the residue of such set-off. XVIII. Notwithstandinipf any of the provisions of How pro- the said Act, when there is no bailiff of the Court miyw. in which the action is bror ^ht, or when any summons, ^^ ^^ ^ execution, subpoena, process or other document is required to be served or executed elsewhere than in the division in which the action is brought, they may, in the election of the party, be directed to be served and executed by the bailiff of the division in or near to which they are required to be executed, or by such other bailiff or person as the Judge, or Clerk issuing the same, shall order, and may for that pur- pose be transmitted by post or otherwise direct to such bailiff or person, without being sent to or through the Clerk, (jp) XIX. In cases mentioned in the last preceding Duties of section, it shall be the duty of such bailiff to serve Suty of and execute all such summonses, executions, sub- Bureties. poenas, process and other documents, and make return thereof with reasonable diligence, and to pay over, on demand, all moneys by him levied or received thereon ; and for neglect or default therein, in addi- tion to any other remedy against such bailiff, he and his sureties shall be liable, on their covenant to the parties grieved, as if such summonses, executions, subpoenas, process and documents had issued from, or related to some suit in the Court of which he is bailiff. (p) This will often save time and expense to suitors. The fair- ness, howeyer, of allowing persons not bailifis to serve papers, may be questioned when it is remem- bered that bailiffs are bound to devote the time more or less, to holding themselves in readiness to do the duties that may devolve on them, and are often obliged to incur expense in so doing. It is presumed that the fees of "such other person" will not be recover- able against the unsuccessful party, but must be paid by the person employing him out of his own pocket. Such is the rule with regard to services made b^ per- sons other than sheriffs in the Superior and County Courts. As 292 DIVISION COURTS ACT OP 1869. Debt attach- ^^" ^® Clerks of the several Division Courts mentbook. 'shall keep in their respective offices a Debt Attach* ment Book, according to the form J in the said schedule, in which shall be correctly entered the names of parties, the dates, (pp) statements, amounts and other proceedings under fSis Act, as indicated by the said form ; and copies of any entries made therein may be taken by any one, on application, free of charge. This and XXI. The Division Courts' Act and this Act shall former Act be read as one Act ; and the powers conferred on read as one jujggg ^nder the sixty-third section of the said Act as amended by this Act shall extend to the making and framing from time to time of rules and forms for the said Division Courts under this Act, and to alter- ing and amending the same* XXII. The Judges who may hereafter be appoint- ed to frame general rules respecting the practice and proceedings in the Division Courts, shall be styled < far aa hereby ball not FORMS TO ACT OF 1869. SOHEDULE. FOBM A. (v) And also take notice, that if the Defendant disputes Forms. the Plaintiff's claim, or any part of it, he must leave with the Olerk within (eight aay» when ten day$ iwviee it required, or twehe day» wJien fifteen or twenty daya teniee i$ required) after the day of the service hereof, a notice to the effect that he disputes the claim, or how much he disputes, if not the whole, in default whereof final judgment may be signed for the whole claim or such part as is not disputed, at any time within one month afterwards. In the . Form B. (») . Division Court of the County of Between A B , Plaintiff, and C D , Defendant. ) The Defendant ap- pearing, by afSdavit filed, to have been duly serv^ with a copy of the summons and particulars of the Plaintiff's claim (and not disputing the eame, or not die- mting $ parcel thereof ), it is adjudged that the Plaintiff do recover against the Defendant the said I ^1 with his cost of suit to $ , to be levied, &c. Entered the day of - A.D. In the — Between A of. FOBM C. Division Court of the County of . - B y Plaintiff, ) Judgment entered and > in the Division — D , Defendant ) Court of the County on the day of — — , A.D. . Amount unsatisfied, $- (v) This form, it is apprehended, was only intended to apply to oases covered by section 2 of the Act. See form 1 to the rules of April, 1869. (z) See form 3 and 4 of above rules. 296 Forms. t*ORMS to ACT OP 1869. On application of the Plaintiff it is ordered, that all debts now owing to the Defendant from any party in this Province, whether due or accruing due, be and the same are hereby attached, to satisfy the judgment in this case. Dated the day of -, A.D. -, Judge. Form D. In the — Between A- 0— E — Division Court of the County of — B ^ Plaintiff, I . Judgment recover- and ed on the — — day D , Defendant, (of , A.D. , and j in the — — Divi>.'on F , Garnishee. Court of the County J of . Amount unsatisfied., $ . (L.S.) You, the above named Garnishee and the De- fendant, are hereby summoned to appear at the sittings of this Court, to be held at , on the day of , A.D. {or before the Judge presiding at , on the day of , A.D.), at of the clock in the noon, to state and show whether or not you the said Garnishee owe any, and what debt to the above named Defendant, and why you should not pay the same into Court, or to the said Plaintiff, to the ex- tent due on the above mentioned judgment, to satisfy the same ; and take notice, that if you have any set-off or other statutable defence, as between you and the said Defendant, you must give notice thereof six days before you are so required to appear. You or any one inte- rested may also show any other cause why the said debt should not go to satisfy the said judgment. Dated the In the day of • A.D. Clerk. FoBu E. Division Court of the County of Between A B , Plaintiff, and C D , Defendant, and E F , Garnishee, Amount unsatisfied, $ . Judgment entered on the day of , in the Division Court of the County ot — — . 1 FORMS TO ACT OF 1809. 297 On hearing [all parties, or on hearing the above Forms- named {the parties appearing) the above named , having made default, although duly summoned], it is adjudged that the said Garnishee is mdebted to the said Defendant in $ , now due (or coming due as follows ) which (or $ of which) ought to be paid and applied in satisfaction of the said judgment, and which it is adjudged that the said Plaintiff do recover against the said Garnishee, for levying whereof execution may issue at any time (or \f the debt he not due, or time for payment ie given, add) after from this date, unless the said Garnishee shall sooner pay the said money inio Court or to the Plaintiff, to satisfy the said judffTient. Entered the day of , A.D. . Form F. In the Division Court of the County of Between A , Plaintiff, ^ , Defendant, Garnishee, Judgment recover- ed on the day - of , A.D. , in the Division Court of the County of . Amount unsatisfied, $ . (L.S.) Adjudged against the Garnishee on the day of J A.D. , $ . To any Bailiff of the Division Court of tho County of {or to G H , specially autho- rized to execute this writ), you are hereby required to levy of the goods and chattels of the above named Garnishee (not exempt from execution), $ , money owing from him to the above named Defendant, and which have been attached to satisfy the judgment ia this case ; and what you shall have done herein return with this writ immediately on the execution hereof. Dated the day of • A.D. Clerk. Form G. In the Division Court of tho County of Between A B , Primary Creditor, •, Primary Debtor, Garnishee. j 8 m m v. r m V 298 Forms. FORMS TO ACT OF 1869. The said Primary Creditor claims from the said Pri- roary Debtor the following {or annexed) account : {giving the account or claim in detail). (L.S.) You, the above named Primary Debtor, are hereby summoned to appear at the sittings of this Court, to be held at , on the day of A. D, A.D (or at on the day of — , before the Judge then and there presiding) to answer the above named Primary Creditor, who sues you for the recovery of the annexed (or above written) claim, and you, the above named Garnishee, are required to appear at the same time and place to state and show whether or not you owe any and what debt to the said Primary Debtor, and why you should not pay the same into Court, or to the said Primary Creditor, to the ex- tent of his claim in satisfaction thereof; and take notice, that if either of you have any set-oflP, or other statutory defence, as between you, or as between the said Primary Debtor and the said Primary Creditor, you must give notice of all such defences to the said Primary Creditor six days before you are so required to appear. You and all others interested may also show any other cause why the debt owing from the said Garnishee should not bo paid and applied to satisfy the said claim of the said Primary Creditor. Dated the day of ■ POKM H. A. D. Clerk. In the Division Court of the County of Between A- B , Primary Creditor, and D , Primary Debtor, and E P , Garnishee. On hearing (all parties, or on hearing the above, named Primary Creditor, or as the case is, the above' named Primary Debtor, or as the case is, having made default, although duly summoned), it is adjudged that the above named Primary Debtor is indebted to the above named Primary Creditor in | , besides the costs hereof allowed at $ , and it is further ad- judged that the said Garnishee is indebted to the said Primary Debtor in $ follows ), which to the extent now due lor coming due as of the e said first u-jn- tioncd sum ought to be applied In satisfaction thereof, FORMS TO ACT OF 18C9. 299 and which it is adjudged that the said Primary Creditor Forms. do recover for that purpose against the said Garnishee, for levying whereof execution may issue at any time {or if the debt he not due, or time for payment be given, add) after from this date, unless the said Gar- nishee shall sooner pay the same into Court, or to the said Primary Creditor in satisfaction as aforesaid. Entered the day of ■ A. D. In the Form I. Division Court of the Cou-^v of Between A B , Primary Creditor, and C D , Primary Debtor, and E F , Garnishee. Amount adjudged due from the Primary Debtor to the Primary Creditor the day of , A. D. for debt, $- for costs, $ • (L.S.) Amount adjudged to the Primary Creditor for money owing from the Garnishee the day of , A. D. $ . To any Bailiff of the Division Court of the County of • (or to G. H., specially authorized to execute this Writ.) You are hereby required to levy of the goods and chattels of the above named Garnishee (not exempt from execution), $ , money owing from him to the above named Primary Debtor, and which has been adjudged to the above named Primary Creditor to satisfy his said claim against the Primary Debtor, and what you shall have done herein return with this writ immediately on the execution hereof. : |.VS li I 300 FORMS TO ACT OF 1869. o o o EH » w o EH O o OS S5 S I c4 0*55 ?15 RULES AKD FORMS FRAMED BY THE BOARD OF COUNTY JUDGES, AKD PROMULGATED ON NINTH OP APRIL, 18G9 t^kk . RULES AND FORMS PROVINCE OF ONTARIO. By the Division Courts Act, it is enacted that the Governor may appoint and authorize five of the County Judges from time to time, to frame General Rules and Forms concerning the prac- tice and proceedings of the said Division Courts, and the execution of the process of such Courts, and with power also, to frame rules and orders in relation to any of the provisions of the said 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 ; that the County Judges so appointed, or any three of them, shall, under their hands, certify to the Chief Justice of Upper Canada all rules and forms by them made, and that the Chief Justice shall submit the same to the Judges of the Superior Courts of Common Law, at Toronto, or to any four of them, and that the Judges of the Superior Courts (of whom the Chief Justice, or the Chief Justice of the Court of Common Pleas shall be one) may approve o^ disallow, or amend any such rules or forms, and that the rules and forms so approved of shall have the same force and effect as if they had been made and included in the said Division Courts Act. And whereas by the Act passed in the last session of the Legislature of this Province, intituled " An Act to amend the Acts respecting Division Courts," it is enacted that the County Judges so to be appointed as aforesaid, shall be styled "The Board of County Judges," and shall have authority from time to time, in addition to their present powers, to make rules also for the guidance of Clerks and Bailiffs, and in relation to the duties and services to be performed, and to the foes to be received by them ; and that the said Board may, from time to time, alter and amend any rules or orders made for said Courts. And whereas the Lieutenant-Governor of this Province, in exercise of the power so given to him on the 24th day of March last, appointed James Robert Gowan, Stephen James Jones, David John Hughes, James Daniell, and James Smith, five of the County Judges of the Province of Ontario, to frame new rules and orders in relation to the Division Courts Act, and any subsequent Act or Acts 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, and also to make rules for the guidance of Clerks and Bailiffs, and in relation to the duties RULES OP APRIL, 1860. 303 and services to be performed, and to the fees to bo received by them. Now, in pursuance of the power vested in us, we, the said James Robert Qowan, Stephen James Jones, David John Hughes, James Danioll, and Jaihes Smith, have framed the following rules, orders and forms for present use in the said Courts, and to be in force until otherwise ordered as aforesaid, and we do certify the same to the Honorable the Chief Justice of Ontario accordingly. Jas. Robt, Gowan. S. J. Jones. D. J. Hughes. James Daniell. Toronto, 9th April, 1869. Jas. Smith. RULES. 1. The following Rules and Forms sball come into operation from and after the twentieth day of April, 1869, but are made only as temporary provisions until a full body of Rules and Forms can be settled and approved, and may be continued or may be altered or amended by the Board of County Judges at any subsequent meeting of the Board, subject to the approval of the Judges of the Superior Courts of Common Law, as provided in the Division Courts Act : — 2. The Summons to appear under the second section of the Act passed in the last session of the Legislature of this Province, entitled " An Act to amend the Acta respecting Division Courts" may be in the form set forth in the Schedule to these rules ; and the " Warning number 1 " therein shall stand in lieu of the ** Form A" in the Schedule to the said Act ; and the issuing of such Summons shall be the commencement of the suit. Such Summons shall be duly stamped, and shall be called " Special Summons;" and every Summons issued shall be numbered to correspond with the claim on which it issues, and dated as of the day on which the same was entered for suit ; and the return of such Summons shall be as provided in the rule next following. 3. Every such " Special Summons " shall be returnable on the eleventh day after the day of the service thereof upon the Defend- ant, in case the Defendant resides in the County in which the action is brought ; in case none of the Defendants resides in the County, but one of them resides in an adjoining County, the Summons shall be returnable on the sixteenth day after the day of such service ; and in case none of the Defendants reside in the County within which the action is brought, nor in an adjoining County, the Summons shall be returnable on the twenty-first day after the day of such service upon the Defendants. m i i ^nf 304 RULES OF APRIL, 1860, 4. The " Special Summons " shall not bo in force for mors than three months from the day of the date thereof inclusive, but if any defendant therein named has not been served there- with, the said Summons may, at any time before its expiration, be renewed by the Clerk of the Court from which such Summons issued, for three months from the date of such renewal, and so from time to time during the currency of the renewed writ, by being marked in the margin with a memorandum to the effect following : — " Renewed for three months from the day of 1 , A. D. 186 . , OlerJe." — and the writ so renewed I shall remain in force and be available to prevent the operation of any Statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of such ** Special Sitmmona" 5. The eleventh Rule of the General Rules of Practice shall not apply to a " Special Summ>ona" but the bailiff who serves the same shall forthwith make a return thereof to the Clerk, and such return shall state the mode of service. 6. In case a sole Defendant, or some one or more of several De- fendants, has or have given the necessary notice of defence required by the Statute, and the Plaintiff is not willing to take judgment i^ainst these Defendants only who have made default, the action shall thereafter be proceeded with as in ordinary cases, and the defa ult of those defendants (if any there be), who have not given the notice at the time limited (unless the Judge gives them leaye to put in such notice aftewards,) shall be considered as against them, a confession of the Plaintiff's claim. 7. In case the notice required by the said section has not been -given by a sole Defendant, or by one or more of several Defend- ants, and the Plaintiff is willing to take judgment against those only, and leave to dispute the Plaintiffs claim has not been given by the Judge, the Clerk, after receiving a return of the " Special Summons" with an affidavit of the service thereof, and of the notices and warnings therein, and of a copy of the Plaintiff's claim in detail, may, on the twelfth day after the service of the Sum- mons, where the return day is the eleventh day after service, and on the seventeenth and twenty-second days respectively, where the sixteenth and twenty-first days after the day of service are the return days of such Summons, or at any time within one month after such return day, enter judgment against the Defend- ant or Defendants so served as aforesaid, for the claim or so much thereof as has not been disputed, if the Plaintiff is content with judgment for such part If the Plaintiff is not content to take judgment for the part not disputed as aforesaid he must proceed to trial, as in ordmary cases, and the part of such claim not dis- puted as aforesaid shall be considered as admitted and confessed by the Defendant or Defendants. h »l !e for niorg f inclusive, rved there. expiration, 1 Summons i^al, and so Mi writ, by D the effect — day cf j so renewed operation of >ent of the m the dale ice shall not serves the Clerk, and several De- ice required J judgment i the action es, and the 'e not given them leaye as against as not been ral Defend- ;ainst those been given a ^^ Special and of the itiflTs claim ' the Sum- ervice, and ely, where service are rithin one le Defend- r so much atent with tt to take it proceed n not dis- confessed RULES OF APRIL, 18C9. 305 8. The judgment shall be entered by the clerk in the Procedure I Book, according to the form to these rules appended, in lieu of the ^''FormB^^ in the Schedule to the said Act (82 Victoria, chap. 23). 9. The execution to be issued on a judgment under the second section of the said Act shall be in the form set forth in the sche- dule of forms to these rules, No. 4. 10. In case the Defendant has given a confession or acknow- ledgment of debt and has not put in the notice disputing the plaintiff's claim, the plaintiff may either proceed on the confession OS in ordinary cases, or may obtain final judgment under the said Act (32 Vic, cap. 23) as he may elect The costs and disburs- ments of transmitting such confession to the Judge to obtain the order for entering of judgment, shall be costs in the cause. 11. In case the defendant desires to avail himself of the law of set-off, or of the statute of limitations, or of any defence under any other statute having the force of law in this Province, he shall, not less than six days before the day appointed for the trial, give notice thereof in writing to the Plaintiff, or leave the same for him at bis usual place of abode, if living 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 set-off he shall deliver to the Clerk a copy of the particulars of such set- off, to be kept with the papers in the cause, and also a copy for the plaintiff, if his usual place of abode is not within the Division. And the Clerk shall forthwith give to such Plaintiff a notice of such set-off, upon receiving the necessary postage, by mailing the same to him in a letter duly registered, addressed to his usual place of abode or business, according to the form number 6 of the schedule to those rules, together with one of the copies of the par- ticulars of such set-off. 12. So far as applicable these rules shall extend and apply to the District of Muskoka and the several courts established, or to be established therein, and to the proceedings in such Courts. 18. The provision contained in Rule 70 of the General Rules shall apply to these rules as if incorporated therein, unless there be something in the context indicating a different meaning or call- ing for a different construction. 14. Until other Rules or Orders be made in that behalf by the Board of County Judges, and duly approved, the rules and forms made and approved, under the Upper Canada Division Courts Act, and now in force, shall, so far as applicable, extend and apply to actions and proceedings under the Act passed in the last session of the Legislature of this Province, entitled ^' An Act to amend an Act respecting Division Courts ; " and the tariff of fees now iu force shall extend and apply to all actions and proceedings under the said last mentioned Act; and officers of the Courts and sui- tors therein shall bo governed thereby. 1^ n FORMS TO RULES OF APRIL, 1869. Forms. Seal. Stamp. SCHEDULE OF FORMS. 1. Special Summons. In the No. . A.D. 1869. Division Court for tho Count- of — Between and -, plaintiff; -, defendant To the above named defendant : You are hereby required to appear in the said Court on the eleventh [or sixteenth or twenty-first, according to the residence of the defendant] day after the day of the service of this summons upon you, or satisfy or con- fess the above named Plaintiff's claim against you, (the particulars of which claim are hereto annexed), or if you dispute the said claim, or some part thereof, you are to leave with the Clerk, within eight [or twelve according to the residence of the Defendant] days after the day of such service, the notice mentioned in " Warning No. 1" subjoined, otherwise judgment may be given against you by default. In case you give such notice disputing the claim, the cause will be tried at the sittings of this Court, to be held at , next after the return day first above named, at which time and place you are re- quired to be and appear. And in your not so appearing, the plaintiff may proceed to obtain judgment against you. Dated the day of 18—. By the court. Claim . Clerk. Costs, exclusive of mileage . NOTICES AND WARNINGS TO THE DEFENDANT. Warning No. 1.— If the Defendant disputes the Plain- tifi^s claim or any p&rt of it, he must leave with the Clerk within eight [or twelve, as the case may he] days after the day of service hereof, a notice to the effect that he disputes the claim, or if not the whole claim how much he disputes, in default whereof the final judgment may FORMS TO RULES OF APRIL, 1809. 307 be signed for the whole claim, or such part as is not dis- Forms. puted (if the plaintiff is content with judgment for such part) at any time within one month after the return of the summons. Warning No. 2. — If the Defendant desire.s to set-off any demand against the Plaintiff 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 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 Divison, not less than six days before the day appointed for the said trial or hearing. The two next ensuing sittings of the said Court will bo held as follows : — viz., On the day of 18—. On the day of 18—. 2. Affidavit of Service of " Special Summons.''^ In the Division Court for the — Count- of Between plaintiff; and defendant. E. F., Bailiff of the Division Court of the said Count— of {or of the said Court) maketh oath and saith, that he did on the day of 18 — , duly serve the above named Defendant with a true copy of the Summons, Notices and Warnings therein, and the particular of claim annexed thereto in this case, by de- livering the same personally to the said Defendant [or if the service was not personal, state how and on whom served) and that he necessarily travelled miles to make such service. E. F. Sworn before me at this day of 18— Clerk of Division Court. Or, this form may "be used when the affidavit is in- dorsed on the summons : I swear that this Summons and the Kotices and Warn- ings therein, and the particulars of claim annexed there- to, were served by me on the day of A.D. 18—, by delivering a true copy of each to the Defendant WA - M 308 Forms. Seal. FORMS TO RULES OP APRIL, 1800. personally, (or if the service teas not personal, state k\ and on whom served) and that I necessarily travelle<| miles to effect rch service. Sworn before me at this day of — E. P. 18-. Clerk of Division Court, (or Comiasioner, &c.) 8. Minute of Judgment in Procedure Booh tmder 33 FiC, Cap. 28, Sees. 2 and 3. The Defendant, appearing by affidavit filed to havel been dulv served with a copy of *^ Special SummonA and particulars of the plaintitPs claim, and not disputin;! same (or " not disputing $5 part thereof, and the pltiDl tiff being content with judgment for such part,*' a» th\ ease may be) it is adjudged that the plaintiff do recover I against the Defendant, $ — for debt, with his costs of suit | to % — , to be levied, &c. Entered the day of , 18 — . 4. Execution on a Judgment entered under the 2nd Set- tion of the Act 32 Vic. Ca2\ 23. In the Division Court for the Count- of — , | No. , A.D. 18—. Between plaintiff; and defendant Whereas on the day of • A.D. 18— , the Plaintiff, by the judgment of the said Court, duly re- 1 covered in the said Court, holden in and for the said- Division, judgment against the said Defendant for the I sum of $ for debt, with $ for costs of^suit. And whereas, the said Defendant hath 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 said Defendant — wheresoever the same may be found (except those bylaw exempt from seizure), the said debt and costs amounting together to the sum of I dollars and cents, and your lawful Fees on the Execution of this Precept, and also, and if necessary for j that purpose, to seize and take any Money or Bank Notes, and any Cheques, Bills of Exchange, Promissory FORMS OP RULES OP APRIL, 1809. 809 Notes, Bonds, Specialities or Securites, for money, of the P' said Defendant, which may there be found, or such part thereof as may be sufficient for the satisfying of this Execution, and the costs of making and executing the same so that you may have the said sum of dollars jnd cents, within thirty days after the date hereof, and pay the same over to the Clerk of this Court for the said plaintiff. Given under the seal of the Court this day of , A.D. 18—. To , Bailiffof the said Court. Judgment $ Interest Subsequent Costs This Execution orniit. Levy the sum of Besides you own lawful fees upon this precept. Clerk. Trarueript to County Court of Judgment under 32 Vic. Cap. 23, Sec. 2. Id the - Division Court for the County of Between A. B., plaintiff; and C. D., defendant. On the day of ■ -, a " Special Summons " sjal. requiring the Defendant to answer the Plaintiff^s claim for a debt (or money demand, as the case may he)y amounting to , was issued out of this Court in this cause, according to the statute in that' behalf, with the warnings required by law therein contained, and the particulars of the Plaintifi^s claim with reasonable cer- tainty and detail thereto attached ; on the day of the Defendant was personally served with a copy of the said summons, warnings and particulars of claim, the Defendant (or one of the Defendants), then residing in the said Coun*y (or the Defendant, or one of the De- fendants, then residing in an adjoining County, or none of the Defendants, then residing in the said County, nor in an adjoining County, as the case may &e), and the De- fendant did not leave with the Clerk a notice, as required by the statute in that behalf, that he disputed the Plain- 4 310 FORMS TO RULKS OF APRIL, IS'iH. Forms. tiff's claim or any part thereof, the said summons, warn- ing, and particulars, with an affidavit of the duo service of each, having been filed, final judgment was entered on the day of , by the Clerk, as follows: (here copy the minute of judgment from the Procedxnt Bool:, according to Form No. — herein. On the — day of , a writ of execution on the said judgment was duly issued {conclude as in Form No. 52, of General Rules and Forms. N. B. — The above form may be adopted with any necessary alterations m hen a transcript of judgment, under the above Act, is required to be sent from one Division Court to another. In the — No. , A.D. IH--. Betw^een 6. ClerFs Notice of Set-off. Division Court for the Count- of - and plaintiff; defendant. Th" above named Defendant has given notice that he will, on the trial, claim a set-off against your demand, and the particulars of such set-oflf are hereunto annexed. Dated this day of , 18 — . A. B. To , Clerk. the Plaintiff. Dated 9th April, 1869. Approved. Wm. B. Richards, C.J. John J, Hagarty, a J. a p. Jos. C. Morrison, John W. Gwynne, -Ias. Robt. Gowan. S. J. Jones. D. J. Hughes. James Daniell. James Smith. U INDEX Attachmknt of Debts — Under whsxt circumstances, 279. What debts may be attacbed, 279 et seq. Where primary creditor's claim is a judgment, 281. Kequircments of nflBdavit. 281. EflFect of service of order, 282. To whom garnishee must pay, 283. Garuifhee to be sumiooned, 283. S'rvice cf suminon^i, &c , 284. .Judgment at hearing, 284. , When chiim not a judgment, 28'>. Service of 6ummon<>, 286. Proceedings and judgment thereon, 286. All parties interested may shew cause, 287. Effect of attaching summon?, 287, 288. Costs in discretion of judge, 288. Summons to be filed upon judgment, 288. No execution till garnishee's debt due, 288. Application to discharge debt from attachment, 289. Primary creditor to give security, 289. Adverse claims to be decided, 289. .Tudge may adjourn proceedings, 290. Debt attachment book, 292. Forms to Act of 1869, 295 et seq. Bailiff — Execution of process from other Divisions. 291. Liabilities c sureties for duties of, 291. Board of Judoes — Appointment of, 292. Costs in garnishee proceedings, 288. Executions — Renewal of, 293. On judgment under see. 2, 308. Forms— To Act of 1869, 295 et seq. To Rules of April, 1869, 806 et seq. I; I 312 INDEX. QARNiaHKis — See Attacuubnt or Debts. Interpleader — See New Trial. JunOMBNTS OF DiyisioN CouBTfl — Effect of, 276. Where no notice of defence, 276, 278 Setting aside, 278 Minute of, 296, 808. New Trial — 'May be had in interpleader oases, 293, 294. Notice of Defence to Claim— In what cases may bo given, 276, 277, 278. Service of, 276. Form of, 277. Renewal of Execctions — 292, 293, 304. Rules of April, 1869 — Preamble to, 302. Board of Judges appointed to frame, 292. Sbbtioe of Process— At a distance, how effected, 291. Sbt-off — When it exceeds plaintiff's claim, 290. Clerks notice of, 310. See Statdtort Defence. Special Summons — See Summons (Special). Statutory Defence — Notice of, repealed by mistake, 290. Re-enaoted by Rule 11. 806 Summons (Special) — Nature and effect of, 276, 277, 808, 304. Form of, 806 Return of— when, 277, 804. Form of warning to be annexed, 296, 808, 806. Renewal of, 304. Procedure under, 804, 805. Affidavit of service, 807. Transcript of Judgment — May go to another division in same county, 293 To County Court, 309.