vr, w o^, \t>^..%. IMAGE EVALUATION TEST TARGET (MT-3) / O % '%/ ^. A C ^"^'^,\';7,^''' as well as set and let, with the approbation of the Master; and that in acting under such an order, it shall not be necessary that a petition be presented to the court, in the first instance, but the Master, with- out special order, shall receive any proposal for the management or letting of the estates from the parlies interested, and shall make his report thereon, which report shall be submitted to the court for confirma- tion, in the same manner as is done with respect to reports on such matters made upon special reference ; and until such report be confirmed it shall not give any authority to the receiver. XLIX. That all affidavits which have been pre- viously made and read in court upon any proceeding Afflda^iui^ in a cause or matter, may be used before the Master, the master. L. That where, upon an inquiry before the Mas- ter, affidavits are received, then no affidavit in reply Farther^ affl- shall be read, except as to new matter which mayrjiy^^or- be stated in the affidavits in answer, nor shall any vit.. Vlll CHANCERY. further affidavits be read, unless specially required by the Master. Sopiifato reports. LIV. That in all matters referred to him, the Mas- ter shall be at liberty, upon the application of any party interested, to make a separate report or reports, from time to time, as to him shall seem expedient : the costs of such separate reports to be in the discre- tion of the court. I LV. That when a Master shall make a separate The master rcport of dcbts or legacies, then the Master shall be may certify ', i ■ /. with respect at liberty to make such certificate as he thinks fit, to the state '' . ' of assBts. with respect to the state of the assets ; and every person interested shall thereupon be at liberty to apply to the court, as he shall be advised. # Ha^ ex amine a ere- LVI. That the Master shall be at liberty to ex- amine any creditor or other person, coming in to ^J,'"/^^'' ='•'«' claim before him, either upon tvritten interroga- eithOT°upon 'onc«* or vivd voce, or in both modes, as the na- torio7of b";> ^"'■^ of the case may appear to him to require, ""*• the evidence upon such examination being taken down at the time by the Master, or by the Master's clerk, in his presence.^ a; d preserved, in order that the same may be used by the court, if necessary. LVII. That if any parly wish to complain of any f^^M- ** '"atter introduced into any stale of facts, affidavit or ;^^j| pro- olhei proceeding, before the Master, on the ground mMter!"!!!- ^^^^ ^^ '^ scandalous or impertinent, or tha< any ex- SS^uon'^"^^"^*io" taken in the Master's office i^ insufficient, he shall be at liberty, without any order of reference" by the court, to take out a warrant for the Master to examine such matter; and the Master shall have authority to expunge any such matter which he shall find to be scandalous or impertinent. • S«e dSrd order of May iSSO.. ORDERS OF COURT. ix LIX. That in cases where estates or otner property s«ieB in th« are directed to be sold before the Master, the Mastei shall be at liberty, if he shall think it for the benefit of the parties interested, to order the same lo be sold in the couniry, at such pl^ce and by such person as he shall think fit. LX. That when the Master is directed to settle a Settlement ^^ ^ ■ of convey- conveyance, or to tax costs, in case the parties di«erance^8.^jTM- about the same, then the parties claiming the costs, or entitled to prepare the conveyance, shall bring the bill of costs, or the draft of the conveyance, into the Master's office, and give notice of his having so done to the other party ; and at any time within six days after such notice, such other party shall have liberty to inspect the same without fee, and may take a copy thereof if he think fit ; and at or before the expiration of the six days, or such further time as the Master shall in his discretion allow, he shall then either agree to pay the costs or adopt the conveyance, as the case may be, or signify his intention to dispute the same ; and in pase he dispute the- same, the Master shall then proceed to tax the costs, or settle the conveyance, according to the practice of the court. LXI. That whenever in any proceeding before the Master may ... . , , p require par- Master, the same solicitor is employed lor two or ties to ap- more parties, such Master may, at his discretion, tmct^^. require that any of the said parties shall be repre- sented before him by a distinct solicitor, and may refuse to proceed until such party is «o represented. LXXI. That every answer, deposition, or other Ap. 13, isao; proceeding in a cause which, by the rules or practice ^_^^^^^^^ of the court, is required to be transmitted to the«io^°'j^ registrar by post, by the officer of the court taking the"8*^"»- same, may in future be forwarded in a sealed en- velope to the registrar by a messenger, or deposited B CHANCERY. in the post office, as may be most convenient ; pro- vided, nevertheless, that in case such answer, ex- amination, deposition, or other proceeding as afore- said, shall be transmitted by a messenger, such mes- senger shall make oath before the registrar that he received the same from the hands of the officer of the court, and that it has not been out of his possession since he so received it, and that the same is in the like state and condition as when it was placed in his hands for transmission ; and the registrar shall forthwith endorse and sign a memorandum on the envelope, containing the name, place of residence, and description of such messenger, and the date when such oath was so administered. Aug.27,1839. LXXIII. That upon paying money into court, the p^ j^ solicitor shall furnish the bank with a correct copy monoy into of SO much of the ordcr of court as shall relate to court. such payment, which copy shall contain the names of the parties to the suit, and the date of such order. And it is further ordered, that all sums of money to be paid out under any order of court, shall be so paid out upon a check to be drawn out and signed by the registrar, and counter-signed by the Master, but not otherwise. July 12, 1841 LXXVIII. Whereas the order requiring pro- Aiimony. ccedings for alimony to be by libel and plea is at- tended with inconvenience, and it is expedient to alter the same ; It is therefore ordered, that suits for alimony shall henceforth be by bill for discovery and relief, or either; and answer and other proceedings in the same manner as other suits in this court. Provided, nevertheless, that such discovery shall be subject to the same objections as any other matters of discovery are by the rules and practice of the court. Iisil 1 ORDERS OF COURT. xi LXXXI. Whereas the sum of twenty pounds, Aug. i.iwi. required by the rules of practice in England to be j^p^^,^ ^^ deposited on petitions of re-hearing, is unsuitable to p!.'^','°,'J„°[ the circumstances of this province, and it is expedient to reduce the same ; It is therefore ordered, that henceforth it shall be sufficient to deposit with the ' registrar of this court, on every petition of re-hearing, the sum of ten pounds Halifax currency. LXXXV. That all writs, notices, orders, warrants, Jan. i, im. rules, and other documents, proceedings and written g^^^,^^^„ communications which do not require personal ser-»°'^;»°^°' vice upon the party to be affected thereby, shall be deemed sufficiently served, if such document, or a copy thereof, as the case may be, shall be served on the solicitor or his agent, to be specified, in the man- ner mentioned ii the first order, by the solicitor of the party serving the same or his agent ; and if any solicitor shall neglect to cause such entry to be made as is required by the said first order, then the leaving a copy of any such writ, notice, order, warrant, rule or other document, proceeding or written communi- cation for the solicitor so neglecting as aforesaid m the Registrar's office, shall be deemed sufficient ser- vice on him, unless the court shall under special cir- cumstances think fit to direct otherwise. LXXXVIII. That no writ of execution, nor any ser.i« of^^^ writ of attachment, shall hereafter be issued for the the^effect of purpose of requiring or compelling obedience to any execution. order or decree of this court, but that the party re- quired by any such order to do any act shall, upon being duly served with such order, be held bound to do such act in obedience to the order. LXXXIX. That, if any party who is by an ordercompuijor, or decree ordered to pay rr n^y, or do any other actjafurfng^ob. in a limited time, shall, afier due service of such order.. order, refuse or neglect to obey the same according to Xll CHANCERV- the exigency thereof, the party duly prosecuthig such order shall, at the expiration of the time limited for the performance thereof, be entitled to an order for a sergeant-at-arms,* and such other process as he was formerly entitled to upon a return non est inven- tus by the commissioners named in a commission of rebellion issued for non-performance of a decree or* order. '• K : •bii'r for "' ■ '^^' "^^^^ every order or decree requiring any m^nMr P.^'^'^ *° ^" ^" ^^^ thereby ordered shall state the order, Ac. time after service of the decree or order vdthin which the act is to be done ; and that upon the copy of the order which shall be served upon the party required to obey the same, there ohall be endorsed a memor- andum in the words or to the efiect following, viz. : "If you, the withm-named A. B., neglect to perform this order by the time therein limited, you will be liable to be arrested by the sergeant-at-arms attend- ing the High Court of Chancery, and also be liable to have your estate sequestered for the jjurpose of compelling you to obey the same order." XCI. That upon due service of a decree or order for dcilivery of possession, and upon proof made of demand, and refusal to obey such order, the party prosecuting the same shall be entitled to an order for a writ of assistance. u^At ■^^"' ^^^^ ^^^'■y person, not being a party iii *he'S'*°*"y ^^"^^' ^^° ^^^ obtained an order, or in whose favour an order shall have been made, shall be enti- tled to enforce obedience to such order by the same process as if he were a party to the cause ; and every person not being a party in any cause, against whom obedience to the order of the court may be enforced, shall be liable to the same process for en- forcing obedience to such order as if he were a party in the cause. Writ of BS- aistanoe • See Order 164 post. .1. ORDIERS OF COURT. xin XCVII. That in every case of plea* or deniur- Time lor «i^ rer filed, the plaintiff shall have ten days to submit^- »j;.i.- before the defendant shall be at liberty to set down the same for argunuMit, unless such period shall pre- vent such plea or demurrer being set down at the then next sittings, in which case the plaintiff shall either accept a subprena to hear judgment on such jj/ca or demurrer, returnable in two days, or shall undertake upon receiving two clear days previous notice in writing that the same may be argued in vacation.! CVn. That in all suits concerning real estate Trnatees^cf^ which is vested in trustees by devise, and such trus- i>«£Yj« p;j- tees are competent to sell ai.d give discharges for the joining per- proceeds of the sale, and for the rents and profits of ciauy mter- the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds of the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate or rents and profits parties to the suit, but the court may, upon the consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. CVIII. That in suits to execute the trusts of a when heir- 1 L • at-law party will, it shall not be necessary to make the heir-at- ^^^«^"^^«j^- law a party, but the plaintift c. dl be at liberty tdofwui."" make the heir-at-law a party where he desires to have the will established against him. CIX. That in all cases in which the plaintiff has vermna 1 agaiDst d joint and several demand agamst several persons, "bomjoint • Pleas abolished to bills of relief. See 25th order of May, 1850. tSl^^ t But see 26th order of May, 1850. : s XIV CHANCERY. either as principnis or sureties, it shall not be neces- sary to bring before the court, as parties to a suit coucerning such demand, all the persons liable thereto ; but the plaintiff may proceed against one more of the persons severally liable. or Domurrer or CXIII. That no demurrer or plea* shall be held plea not ba'l , j , , , for covering bad and overruled upon armiment, only because loss than it , , . . ., migiit. such demurrer or plea shall not cover so much of the bill as it might by law have extended to. Demurrer or CXIV. That no dcmuner or i/Zco* shall be held plea not bad i j j . , because an- Dad and ovcrruIcd upon argument, only because the to part. answ^ers ot the defendant may extend to some part of the same matter as may be covered by such de- murrer or plea.^ oHye^^' OXVI. That when the defendant shall by his wantoTpar-^"^^^'' ^uggest that the bill is defective for want of ""«• parties, the plaintiff shall be at liberty, within four- teen days after answer filed, to set down the cause for argument upon that objection only, and the pur- pose for which the same is so set down shall be noti- fied by an entry to be made in the Registrar's book, in the form or to the effect following, that is to say : '* Set down upon the defendant's objection for want of parties ;" and that where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled, as of course, to an order for liberty to amend his bill by adding par- ties, but the court, if it thinks fit, shall be at liberty to dismiss the bill. Decree sav- CXVII. That if a defendant shall at the hearine rights of ab-oi a cause Ob ect that a suit is defect 've for want of tent parties. . / . parties, not having by plea* or ans\ . taken the ob- • See 25th order of May 1850, aboluhing pleaa to bills for relief. Iiii. ORDEB9 OF COURT. jection, and therein specified by name or description the parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree, saving the rights of absent parties. XV CXX. That in cases in which any exhibit mayExfciMtm»y by the present practice of the court be proved viva affidavit. voce at the hearing of a cause, the same may be proved by the affidavit of the witness who would be competent to prove the same viva voce at the hearing. CXXI. That where a defendant makes default at Decree aw the hearing of a cause, the decree shall be absolute pW/^|»^- in the first instance, without giving the defendant aatjiw day to show cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shewn by the defendant. CXXIV. That a creditor whose debt does not intere^^t^jjn carry interest, who shall come in and establish the p'^^od of n» same before the Master under a decree or order in a suit, shall be entitled to interest upon his debt at the rate of six per cent, from the date of the decree [or order] J out of any assets which may remain, after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry interest. CXXV. That a creditor who has come in and cost« of c established his debt before the Master under a decree debts. or order in a suit, shall be entitled to the costs of so establishing his debt, and the same shall be taxed by the Master, and added to the debt. CXXVI. That in the reports made by the Master Documents -/. , nottobere- of the court, no part of any state ot tacts, ^"^''■g6,ritedki Mas- affidavit, deposition, examination or answer, brought in or used before him, shall be stated or recited ; but such state of facts, charge, affidavit, deposition, ex- Wii XVI CHANCERY. amination or answer, shall be identified, npeoified and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer, was so brought in or used. CXXVIII. That in any petition of rehearing* Tetitlon of rphearlnft - - o pr^°"°^^"y'^^"^^o''">'^'e'^of I'lf' court, it shall not be dec^e"'" necessary to state the proceedings anterior to the decree or order appealed from or sought to be reheard. ilH soii_ojtor,. CXXXII. That all solicitors practising by agents, en""d*^a'^ having offices ill the City of Toronto, and all solici- book!?"' |ors practising in the said court, not having an office in the said city, shall eii*°r their names in a book, to be called the solicitor's book, and to be kept pub- licly at the Registrar's Office, to be there inspected, without fee or reward ; in which book the solicitors aforesaid shall specify the name of an agent, being a solicitor of this court, and having an office of busi- ness, as such solicitor, in the said City of Toronto, by whom such principal proposes to transact his court business, and upon whom all writs, notices, orders, warrants, rules and other documents, pro- ceedings and written communications may be sei vei. Mar. 3, 1843. CXXXIV. That vt^hcreas, heretofore, jt has been offl« copies ^he practice for the Registrar of the court to supply aa/prS office copies of all proceedings and pleadings filed ror^m^aT^Jn his office, and it is convenient and desirable that registrar, g^.^ practice should be altered : It is therefore or- dered, that in future, copies of all proceedings and pleadings be made and delivered by the solicitor or agent with whom the draft or drafts thereof shall originate, and that such copies, before being de- livered, shal l be examined and certified by the •See ?2nd order of of January, 1851, and schedule E. t See 16th order of January 1851, as to solicitor ^nd agent's book in olnoe ot deputy registrar.'j. ORDERS or COURT. registrar, for doing which, the solicitor or agent pro- curing such certificate and examination shall, until further order be made in respect thereof, satisfy the registrar therefor ; the same, however, not to be al- lowed in taxation of costs. Provided, nevertheless, that this order shall not apply to office copies of minutes, decrees, orders, depositions, reports and certificates, in respect whereof the practice shall continue as heretofore. xvu CXXXV. That henceforth no answer, plea or de- no answer, murrer shall be deemed or considered .as duly filed murrcrtob* ' deemed filed until a copy thereof, authenticated as in the precedmg until copy order mentioned, shall have been served on the solici- tor or agent of the plaintiff in the cause. « CXXXVI. That from henceforth the original, orAffldavitg, originals, of any affidavit in support of, or in opposi- copies tion to, any application, by motion, petition or other- wise, to this court, may be read at the hearing thereof, instead of office copies as heretofore ; and that any party requiring a copy of any such affida- vit, or affidavits, shall be entitled to demand and receive the same duly authenticated by the registrar in manner before mentioned from the party filing suclf affidavit or affidavits, who shall be obliged to furnish the same within such time or times as by the present practice the same may be obtained from the registrar. CXXXVII. That from henceforth, it shall not he^a^ cop,™ necessary to file any affidavit of the service of aofserviM notice of motion, or any affidavit which proves the ^.°'°**' service of a paper, and to take an office copy thereof for use ; but the original affidavit ms' be read and used in the same manner as an office ,iy would be, and the said original shall be filed on the occasion of reading or using the same. 1" Xviii DcIWery of office copies. CHANOSRT. CXXXVIII. That in case the solicitor or agent from whom any office copy of a pleading or proceed- ing may be bespoken shall not deliver the same upon or before the expiration of two clear days from the day of the same being so bespoken (as on Thursday if bespoken on the Monday preceding), any further time that may elapse before the delivery of the same shall not be computed against the party to whom such office copy is due ; and such office copies shall be written in a clear legible character, and in man- ner as now practised in the registrar's office. No further CXXXIX. That no further fees or disbursements, Mqucnco'^f by Way of attendances, postages or otherwise, shall orjers a« to bc taxcd Of allowed in consequence of such altered office copies. . . r tr- practice in respect of office copies, than are now taxable under the present practice. Costs of CXL. That where a bill is amended, and a re- amendment i o In ease of re- engrossment tliereof filed, and a copy of such re-en- engrossment ^ ^ grossment served on the opposite party, under the foregoing orders, it shall not hereafter be necessary for the plaintiff to pay such opposite party the usual sum of twenty shillings, unless a further answer be required. Av 20. 1848. CXLI. That in all cases where, according to the Evidence of °°"''*^ ^"^ practice of the Court of Chancery, ac- 53s°<:ry"°'*'°""^^ ^^^ ^3'^^" ""der the direction of the court, it bef^e refer, shall uot be ncccssary, for the purpose of having such accounts taken with rests, or for the purpose of obtaining allowance for moneys expended in neces- sary repairs or lasting improvements, or for moneys properly expended, or claimed to be properly ex- pended otherwise, and which ought to be credited to ahe party expending the same, that any evidence should be given in relation thereto before the takirfg ♦ See also 76th order of May 1850. w ORDBRI OF COURT. *»* of such accounts shall be referred to the Master's office. CXLII. That in the taking of accounts in the Account, u, Master's office, it shall be within the cognizance of^^i^^M^.p. the Master to take the same according to the lawstioa... and practice of the Court of Chancery, without any specific direction in the decree or order referring such accounts to the Master, and therein to take the same with rests or otherwise ; to take account of rents and profits received, or that, but for wilful neglect or default, might have been received ; to set occupation rent ; to take into acconnt necessary re- pairs and lasting improvements, and expenses pro- perly incurred otherwise, or claimed to be so ; and generally in the taking of accounts to enquire and adjudge as to all matters relating thereto, as fully as if the same had been specifically referred ; subject, nevertheless, to the revision of the court upon ex- ceptions to the Master's report upon the matters aforesaid. ^ • Provided nevertheless, that no claim for improve- menls shall be entertained in the Master's office, unless the party making such claim shall, upon the pleadings, have made such a case in respect thereof, as was necessary under the previous practice of the court, CXLIII. That in order to prevent any inconve-g^p 23.1843. nience to suitors, during any absence of the Master ^^^^^^^ ^^ in ordinary from the seat of the court,-It is ordered, to u^^en that during any such absence, all answers, afhdavits,M»t,r. depositions and examinations, ordinarily taken be^ fore the said Master, may be taken before any Master Extraordinary for the Home Dist rict. • See also loth order of January 1861. ^ XX CIIANCCRY. 11 CLV II. Tliat no subpoena to hear judgment shall 5r^..u..., «"«J «"\i" «"y <'-a«e- but the party setting r,™ „ .. down the plea or] demurrer to be arqued, or the cau3e to bo heard, shall give a notiee in writing statmg that the plea, or demurrer or the cause has been euu-rcd in the eause book with the registrar, lor argument or hearii.g, and stating (he day on which the same is to be argued or heard ; and that such notice shall be served eight days before the day of argument or hearing ; and .hat it shall be the duty of the party rn.ering such plea or demurrer or cause to be argued or heard, at the time of entering thereof to furnish the registrar with the day on which the same is to be argued or heard, in order that the same may be en. -red in the cause book. ^unu. "' CLX. That, upon a reference to the Master to take accounts between parties, in all eases where there have been schedules of the accounts by the account- xng party annexed to the answer, there shall be no ^ warrants taken out to bring in any accounts, except such accounts as are subscquenfto the time of the schedules annexed to the answer. Charge and discharge. CLXI. That the party wishing lo proceed with the reference shall bring in his charge, or at once file tnterrogatoricsX for the examination of the ac counting party ; and thercu])on bring in his charge end the schedules to the answer shall be used to' Ylstantiate the charge in the same way that is now ^^t prcciice with respect to the accounts brou<-ht if-ro ti;e Master's office in the shape of debtor and Zli 'k'' f "'!/'""• f ^.'^''^'•g^ ^hall be brought in and shall be dealt With in the same manner as is now done in respect of the debtor and creditor account brought into the Master's office. ORDEHS or COURT. XXI CLXIV. That the sheriff in each diwtrict in tiuit shKritr to e , • . << I . . ,, (wifiirm tha part ol this province lormerly constitutiuff Upper doH'""' Canada simll, within the hmits ot his district, per- form the duties whicli, according to the pniclice of the court birctofore, have been performed by the messenger or sergeant-at-arms, and all writs or pro- cess of the court, whieii, by the law or practice of the court, have been directed to the messenger or sergcant-at-armw, shall be directed to the sheriH" of the district where the same is to be executed ; and in no case shall the sheriff, in executing such writ or process, bring the party to the bar of the court ; but he shall, instead thereof, commit the party to the gaol of the district, and the party so committed shall be dealt with according to the cour-se and practice of the court, as if he were brought to the bar of the court, and as provided for, or as may be provided for, by any order of this court. CLXV. Thai in no case shall the enrolment ofj,„^,^g„, any interlocutory order in a cause be deemed ne-""*'^' cessary for any purpose ; and that there shall be no enrolment of any proceedings or orders in any case, until after the final decree in the cause be pro- nounced ; and then, after the ex|)iration of thirty days from the time of the final decree being entered by the registrnr in the order book, the date of which entry the registrar shall stale in the margin of such book opposite the entry thereof, if no petition for a re-hearing dhall have been presented ; upon being required by any party in the cause, the registra,r shall attach together the bill, pleadings and other proceedings filed in the cause, and shall annex there- unto a fair engrossed copy of the decretal order or decree of the Vice Chancellor, signed by him and countersigned by the registrar, and the papers and proceedings so annexed and signed shall then be filed by the registrar, and shall remain of record in his office, and such filing shall be deemed and taken XXll CHANCERY. r.'-*n iiiil to be an enrolment of the decree and proceedings, and shall have the same force and efftct in evti'y respect as the former method of enrolling decrees. May 29, 1845 CLXXIX. It is hereby declared and directed by Order In re- the Vicc ChanccUor, that from and after Monday, ^'musion ofthe ninth day of June next, no persons be admitted chancery. '° to practicc as solicitors of the Court of Chancery except solicitors of the said court already admitted, or who may be hereafter admitted, as such solicitors ; and attornies of the Court of Queen's Bench admitted and sworn in before the said ninth day of June next. Persons admitted attornies of the Court of Queen's Bench after that period to be sworn in and admitted solicitors of the Court of Chancery before they can practice as solicitors of that court, either as princi pals or through agents.* jan.27, 1846 cLXXXl. It is Ordered, that the Master in ordin- Appiications ary of this court shall hear and determine all appli- »nd to an- cations for time to plead, answer or demur, and for b«niat)i)'to leave to amend bills, and for leave to withdraw replication and amend bills, and for enlarging publi- catic.i ; and either party shall be at liberty to appeal by motion to the Vice Chancellor from the order made by the Master upon such application. Appeal to court. [2.] That 'no such application shall be made to the Vice Chancellor except on appeal as hereinbe- fore provided. Howappiica- [3.1 That such applications to the Master shall tlon to bo ' ■■ ' ' made. bcmade by. taking out a warrant, which shall be underwritten, with the object of the application', and the same shall be served two clear days before the return thereof. J^'*how^'" [4-] That upon such applications aforesaid, the ^pHratioS* Master shall be at liberty to direct, and shall accord* to be paid, j^gly in the ordcrs made thereon direct whether the • See Pro. Stat. 12 Vic. ch. 63, sec. 45. ORDKRS or COURT. xxin costs of the application shall be costs in the cause, or V 'ether such costs or any part thereof shall be paid by any of the parties personally ; and in the latter case, the Master shall in such order either fix the sum to be paid for such costs or tax the same at his discretion ; and the party to whom such costs are directed to be paid, shall be entitled to sue out a subpoena for the same ; or the Master may at his discretion award costs to neither party. [6.] That the Master shall draw up the orders now^orden.^ upon such applications aforesaid in a short form, ^^^-^^^ and the same when signed by him shall be enter- ed in a book to be kept for that purpose in the office of the Master, and such orders shall then be binding (unless reversed or varied on appeal), and shall be enforced in like manner as if made by the court, and the original order or any duplicate thereof (which the Master is to grant on the application of any party) shall be a sufficient warrant to every officer of-the court to do the act therein mentioned, or to permit the same to be done, and each party #hall be at liberty to inspect the entry of all such orders in the said entering book without fee. CLXXXUI. That upon a reference to the Master Feb. i9,i847. for the appointment of a receiver, of a guardian* or Appoint. of a committee of the estate of a lunatic, the party Sivor.Vi*- T •»» dian, Ac. proposing such receiver, guardian or committee, shall bring into the Master's office a proposal for such appointment, and for the sureties of the person or persons so proposed ; and the Master upon approv- ing any such proposal shall (without first reporting such approval to the qjuirt), proceed in taking of the reoognizances of such^ceiver, guardian or commit- tee, and to report such appointment to the court in like manner as is now done after a report of the • Sm 2l8t order of May, 1850, as to th? appoiolpaent of a guardian. to a^ infant defendant. XXIV CHANCKRV. mm m AdvertUft- ments for sale of eatatus. eales of estates Master's approval of such proposal, and the confir- mation of such report by the court. CLXXXIV. That where advertisements are issued for the sale of an estate, for creditors, for- next of kin, or otherwise, it shall not in future be necessary to issue first a general, then a peremptory advertise- ment, but that one advertisement only shall be ne- cessary, which advertisement shall be peremptory. Provided nevertheless, that it shall be in the discre- tion of the Master to issue a general advertisement m the first instance, in cases where he shall deem it advisable so to do. SolhT CLXXXV. That in pi-oceeding before the Master r'^pnce"tofor ^ Sale by public auction, the party conducting such sale shall bring in before the Master a state of facts and proposal as to such sale, embracing therein a proposal for an auctioneer, or other person if con- sidered necessary for conducting such sale, together with the particulars and conditions of sale which shall be contained in one state of facts and proposal, and be proceeded upon together, except in cases' where the Master shall see fit to direct otherwise.* And further, that no report of the appointment of an auctioneer or other person to sell shall be necessary, but the Master shall, if required, certify that he has made such appointment, which certificate shall not require to be settled by warrants or otherwise. CLXXXVI. That the portion of the 75th order of this court, passed on the 20th April 1840, which relates to the setting down of exceptions to an answer to be argued before the court, be rescinded ; and that in future, exceptions to an amwer, as well for im- pertinence and slander as ^r insufficiency* be referred to the Master in like manner as before the passing of the said order ; and further, that no copies of pleadings shall b e allowed either for the Master's • See 30th order of May 1850^ ' Exceptions to answers for scandal. ORDERS OF COURT. XXV office or the parlies, their counsel or solicitors, upon the argument of such exceptions. CLXXXVil. That every peison, not being a party order for or *^ ' 1 ■ u against per- in any cause, who has obtained an order, or in whose sons notpu- favor an order has been made, shall be entitled to en- cause^how force obedience to such order by the same process as if he were a party to the cause ; and every person not being a party in any cause, against whom obe- dience to any order of the court may be enforced, shall be liable to the same process for enforcing obe- dience to such order as if he were a party to the cause. CLXXXVIII. Before a sequestration will be jun.zg.ww. granted on a return of non est inventus by the sheriff, ^^^^^^^^^ acting under the authority of the 164th order of thistion.whau^ court, passed the 28th January 1845, the party ap-owain. plying for such sequestration will be required to satisfy the court by affidavit that the party against whom the warrant was issued is resident out of the jurisdiction of this court, or that he hath absconded from Upper Canada, or is concealed within the same to avoid service or execution of process, or that he hath departed from Upper Canada for the purpose of residing out of the same, or that due diligence was used to ascertain the place where such party was at the time of issuing the warrant, and endeavoring to apprehend such party under the same, and that the party issuing forth such warrant verily believed at the time of suing forth the same that such party was in the district into which such writ was issued, and that in the case last aforesaid, either that the last known or usual place of residence in Upper Canada of the party against whom such writ had so issued, was either in the district to the sheriff of which such warrant was addressed, or in the district to the sheriff of which the writ of attaclimeut previously I XXVI ?! CHANCERT. issi ed was directed, or that such paMy hath no place of residence in Upper Canada aforesaid. j«.y=o.i84T. CLXXXIX. That upon the Master allowing time "la^go "7 **' ^"^^^^''' h^ "^^y allow the defendants such further forSTr^^'""®' ^'"^ °" ^"'^^^ (if any) terms as to him may ceeding. SCem jUSt. In all cases where the Master is authorised to ap- point the time for any proceedings, or to enlarge the time allowed for any proceeding by general order, he may further enlarge any time so appomted or enlarged by himself, and on such (if any) terms as to him may seem just ; provided the application for such enlargement is made before the expiration of the time previously allowed; and provided he is satisfied that such enlargement is required for the purpose of justice and not of delay* CXC. In order to remove doubts as to the course of proceeding m tlie Masler^s oliice in suits for the foreclosure or redemption of mortgages under the general orders of this court of the 28th January 1845, in cases where the defendant appears or answers by his solicitor,— it is ordered, that it shall be sufficient in such case to serve the warrant to proceed upon the solicitor for the defendant, or upon the agent of such solicitor; the warrant to settle the Master's report to be also served upon such solicitor or agent. Oct. 12, 1849. CXCII. Ordered that all bills* petitions, &c* Bill,, Ac, to ^'•'^^'^ft^^' to be filed, shall be addressed to "The J^,r/wSta Chancellor of Upper Canada :» !rr ^? That all writs shall be tested in the name of the Chancellor. Chancellor. ^ Warrants to proceed in tbreclosuro cases to b<" eerred on solicitors. Ja'nutySf' ^' '"'^'" "^ ^"^ *^°' -^^^^^^T^^^i^c h no place SCHEDULE OF FEES. .ving time ch further him may 3ed to ap- liarge the rai order, ointed or terms as cation for •iration of ed he is d for the 16 course ts for the nder the ary 1845, swers by sufficient ed upon agent of Master's or agent. ns, &(?., o "The le of the ) orders of SOLICITOR. Instructions for Bil! or Answer ^^ ^ 6 Letter ol Notice before filing Bill ..••••• n 5 Instructions lor Petition where no Bill filed .........-...; ••••••• ■ u "^ " DiuftingBills, Answers or other Pleadings, Petitions, Special Affida- viis and Interrogatories, including copy to keep, per toho.. ... . 1 u En-'rossing same, and making other copies when necessary (olher than office copies to be aulhe.iticated by Registrai), per lolio. • • • » Office copies to be authenticated by Registrar ...............•••• • " " ^ Affidavits of service or other common affidavits, including attendance 2 PrEEcipe for Subpoena or other process, entering appearance, including ^ ^ attendance • V-'C'CW-" Note.— One subpcena only allowed to each county, which shall in- clude the names ol all the defendants in such county. Every necessary attendance to surve process or for other purposes. .013 Special attendance on the Master's Warrant, or on Examination of Witnesses.oronHearingofCause, P/ca or Demurrer, or Special Jlotion „ K f, Instructions for Brief and for Interrogatories • ... " ° " Brief, per lolio, including fair copy, suhject to be reduced by the 6 6 Master if the same contain superfluous matter or be ol unneces- sary length .'• V ■ " ' 'i'l- n n fi Copy of Brief for second Counsel, when required, per folio. u u o Copy of Orders, Petitions, or other papers or documents (not office copies) required to be served, per toho U U C Fee on settling Minutes of Decree or Special Order, and attending the Registrar; and fee on passing same n k " Drawing Bill of Costs and attending taxation • " » ^ Postages actually paid Note.— The folio to consist of 100 words. COUNSEL. Fee to Counsel for settling and signing "eadings, Petitions, or Inter- rogatories • • • - , „ ~ Fee on Common Motions and Motions of Course wiu v Special Applications, Arguments, Hearing, &c ion Tobeincreased,at the discretion of the Master, to ^ ^ u MASTERS .1ND MASTERS EXTRAORDINARY. Every Summons or Warrant ^ | ^ Administering Oath or taking Affirmation " | " Marking every Exhibit . .' .•• " \ " Drawing Depositions, Reports, or Deeds, per folio w i " One fair copy, when necessary, per folio n n fi Copy ol papers given out, when required, per folio " w o Every attendance upon a reference ■ n k n For each additional hour ;■;•,•■■■• ; n ^ n Preparing, Engrossing and Signing, each Advertisement U o U Every Certificate " - . Filing each paper n fi O Taxing Costs, including attendance " " " Making up and forwarding Answers and Depositiotis. '' * * Every necessary special attendance out of office, within two miles • • ^ ft Every additional mile above two 1 U ill I xxvm SCHGDULE OF FE£S. \ BEGISTHAB. Entering parties' names and filing Bill, Answer, Plea or Demurrer 2 6 Lntering and filing all olher Pleadings, Interrogatories and Depositions, or other evidence ; _ q • „ Filing and registering Aifidavits, Exhibits, orother paper's" 4 Entering appearance ^ 5, A Every SubpcEiia ."..■.'.■.".'.'.■.■.■ 3 Special Writ, Writ of Execution or Commission ....'.'.'. 5 Office copy of papers required to be given out, per Iblio. ".'.'! 6 Examining and authenticating same when office copy prepared 'bv .Solicitor, per tolio _ _ ' ' 1 Attendance on appointment of Guardian '.'. 2 6 Amendment of Record when rii-e.igiossmeuinVtneVessary.' per folio 1 Drawing r ^'*> '^> }^? ^ot deemed to be liled till office copy served ■ • • ■ i^o Applications for time to ^^'' '°^ ASSISTANCE, writ of ^' BILL— ,. Subpoena to answer, how served • • -J^ Costs of amendment in case of re-engrossment ot J4U To whnm to be addressed ''*'' BOOKS, PAPERS, &c.— Production of CER'l'IFlCATES— „„ Of proceedings by Registrar j^ Of proceedings by Master ^' Of state of assets °^ CLAIMANTS— .- Examination of .„ COMPROMISE of suit ^° CONVEYANCE— .„ Settlement of "" COSTS- J , , . on Of proceedings of separate defendants |" Security for • • • • • _^ Of review of ex parte proceedings under decree dS Occasioned by non-attendance of parties under decree da Of separate reports ^ Taxation of , ?e Of establishing debts \'^ Of office copies of pleadings, &c Ja» Of amendment of bill in case of re-engrossment i w (See schedule of fees) COUNSEL— Fees of (see schedule of fees) XXX INOGX, jJIII m; lU-BTS— Interest on, from peritJ of proof Cnsts of istablishing l*'* DECREES— 125 Correction of errors in Proceeding ex parte !.'.'!!.' ?' Review o/ ex parte proceedings \\\ '^"^ Prosecution of. 38 Process to compel obedience to'.'.".'.".".','.'.'.'.".", wa "xcV on ' m " n"! Saving rights of absent pnrlies '*'''' ^^' ^'' ^^ Absolute, against parties making delViilt 'a't'heaVini'". ". I 'J Rnrolnient of " ^-i' DEFENDANTS- 165 Separate, costs of ... . • DEMURRER- 20 Time for submitting to Not bad for covering less than it'might .". .^^ Not bad because answer extends to part , , , Not deemed to be filed till office copy served \\- Setting down for argument. . . ' '" DEPOSITIONS- 158 T.A-r.^i^''f.°^*'''*'"S and transmitting oq n i^n ENROLIMENT— A 71, 143 Of decree EXAMINATION- 165 Of claimants In absence oi ^Master •''6 EXCEPTIONS- 1 13 EXHIBITf^''''' ''"'' ''"P"*'"""'^« (^«« «'==»"''a> a"d impertinence) 7, 186 Pioofof by affidavit GUARDIAN.. 120 HEARING— 183 Decree absolute against parties making default at . . i o, settnig down cause for ... . ' f 158 .7,8, IMPERTINENCE— In answer TXTTrlxrr'"'"*'^'^'""' ^^^°^^ liie Master INJUNCTION— iM-rRn r,'^"'^' '"'"■ <^'ssoIving common MASTER- °" '^"'' ^'■°'" ^'""^ °'' p'""^ •••■••••••••■•••";::.■:::::: : ."124 To keep a register of accounts Fees of (see schedule of fees). MESSENGER (see Sheriff). MONEY— ^ Payment of into court .. NOTICE— OFFfcF^^COPIEs"" °^ '^''"*^' ^^'"^ ^^^ ^°^'^ 57 17 40 . 73 .158 Of pleadings, by whom to be made , ,. Service of ' ■'* Of affidavits, how obtained .......... .\ \^1 Of affidavits of service not necessary . ." ] „ Delivery of, time for '^' Costs of 138 ORDER— 1 39 Of reference for scandal r.id impertinence 7, 8, 186 Correction of errors in i 89,""9p','9i,"29,'l87 Nisi for dissolving common injunction Correction of errors in Process to compel obedience to. ..... ,.', gg i INDEX. XXXI 124 126 31 S7 38 40 h 90, 91, 92 117 121 165 • 20 97 113 114 135 158 .23, 71, 143 165 56 113 . . . . 7, 186 120 183 121 158 .7, 8, ISG 57 17 124 46 73 158 134 135 136 137 138 139 7, 8, 186 17 31 , 29, 187 i Persons beneficially interested in trust estates, need not be made r)7 Heir-at-law, when will 'o be established 108 Aiiainst whom joint and several demands exist 109 Objeclions for wunt of 116 Orders against persons not 187 PLEA— Time for submitting to » ' Not bud lor covering less than it might 113 Not bad because answer extends to part 114 Not deemed to be filed till office copy served 135 Setting down for argument 158 PETITION- To whom to ho addressed »9^ PRODUCTION of books, papers, &c 44 PROOF— Of deV.t 124 RECEIVER- How he shall accouiil 47 Directions for appointment of 48, 183 REFERENCE— . Of answer for scandal and impertinence 7, 8 REGISTRAR— Fees of (see schedule of fees). RE-HEARING— Deposit on petition of 81 Pelition of, how framed 128 REPORT— , , . . Master's report on reference for insufficiency, scandal or impertmence . . 8 Separate reports 5'* Documents not to be recited in 126 On whom warrants to settle, &c., to be served 190 SALES in the country ^9 Advertisements for 184 Proceedings before Master in reference to 185 SCANDAL— In answer °> 186 In pri" (lings before the Master 5' SEQUE.Vl ..ATION— What is required to obtain writ of 188 SETTING DOWN CAUSE— Costs of, when struck out of paper by plaintiff's neglect 21 Procedure in 1^8 SERVICE— Ot subpcena, &c., on solicitor ' ? On solicitor of person not a party 30 SHERIFF— To ])erform the duty of Messenger or Sergeant-at-Arms 164 SOLICITORS AND AGENTS— When distinct' solicitors required 61 Names of, to be entered with Registrar 132 Fees of (see schedule ot fees). Admission of 1 '^ SUBPCENA- To hear judgment ■ 1^8 Service on Solicitoi" 1* WARRANT— Service of, on solicitor of defendant sufficient 190 writs- How to be tested 1^2 iiw I ORDERS OF THE COURT OF ERROR AND APPEAL PASSED 3bd JULY, 1860. Whereas, by an act passed in the twelfth year of her Majesty's reign, intituled, " An Act to make further provision for the Administration of Justice, by the establishment of an additional Superior Court of Common Law, and also a Court of Error and Appeal in Upper Canada, and for other purposes," it was enacted, that a Court of Judicature should be established in that part of this Province called Upper Canada, to be styled "The Court of Error and Ap- peal," and to be composed of the judges of the Court of Queen's Bench, the Court of Common Pleas, and the Court of Chancery ; and that it should be lawful for the said judges of the Court of Appeal, at any time within two years, to make ail such general rules and orders as to them might seem expedient for the purpose of adapting the said Court of Appeal to the circumstances of this province, as well in re- gard to the writs of Error or other process by which Appeals should be commenced, and the form and mode of suing out such process as in respect of the practice and proceedings of the said court, and also to regulate the allowance and amount of costs, and from time to time to make other rules and orders, amending, altering, or rescinding the same : Pro- vided always, that no such rules or orders should have the effect of altering the principles or rules of E xxxiv KRHOH AND APPEAL. dec fiy of tfiein ol any party to sue of •sioii of the said court abridging or affecting the riv.. .. «..y party ,o such ren^edy as before ,he parsing of that act mig av been obtained in the Court of Appeal thereby abohshed ; but .night in all respect'' exte u he manner of obtaining such remedy by regulutin. hi pract.ce of the said co..rt in whafever Jay rlijh to them seem expedient for better attaini.,g L ends of just.ce; and tat ail such rules, orders ot regulation should be laid before both hou.es of the pfovinei" Parl.ament ,f then in session, immediately upon tlL ma ...g ol the same, or if the Parliament should not be t en ... session, then within five days after the mec. ng thereof; and that „o such rule, order or regulat.on should have effect unMl within six weeks after the sa,ne should have been so laid before boh houses of the legislature, and that any such order so mace should, from a..d after such time aforesaid be bnd.ng a..d obligatory on the said court and all o^^her courts .n the said prov.nce of Upper Canada to wh.ch. the same should be made expressly to extend It IS therefore ordered- ^ ^' I. That the iir.t process!., appeal from judgments of the Courts of Queen's Bench or Com.ionTle shall be by a writ of appeal, which may be in the' follow.ng form :— ri S 1 r . ■ I ^''■'^'* CANADA. lL,.!i.i Victoria, i:c. orCP. " theConit of Common Pleas) betvve^, A B a^, W^P'^ .^"""1* (<" trespass on the case (or as the case imv I,JV"„ •. . ^•' '" " P'^^^ of hath intervened, as bV Ihe sai^l ranne^h^n, " " 'r"^ '^""''''«' ''""^ fore being willing; tlmt ,L e ror'^^f irv ,,.r!;' '" '"'Tf'" '' ^^^ '^ere. the laws of Upper Canada, be d nly cor^reS ^ «''""'''- "^--^ord'n.Mo without delay you send under iIiesLTtv.'-^ corrmand you that proceedings aforesaid, with all bin's ronll *""^,/=''"'-' 'he record and of Error and Appeal, that th^ai7court„r 2'""^'^ cord and proceedings aforesaid Mn°/i°^7°' ""'^ ^PP^''' ('here- cause to be done thereupon what of rWrn"nH"'"""r''^ may further aforesaid ought to be done. *= ""'' according to the laws Witness the Honorable , Chief Justice, &c In what ca- ses writ to ieiiue, and i..ue.and . "' ^hat such Writ may issuc in all cases where ^^-at by law an Appeal lies to this court from thc^udg' or of OHDGKS OV COURT. XXXV ment of either of the courts of Queen's Bench or Common Pleas, upon security being perfected as required by the statute in that beh'ilf, and upon a certiticate thereof signed by the chief clerk of the court appealed from, together with a pracipe for such writ being filed with the clerk of this court ; such writ to be issued under the seal of this court and signed by the clerk thereof, and to be tested in the name of the Chief Justice or senior judge thereof for the time being on the day of the same issuing, and to be made returnable op the fifleenlh day after Ihe day on which the same shall issue. III. That, unless otherwise specially ordered, such Natii^re^oi security shall be personal and by bond, and may be in the form prescribed in rule number five, and shall be filed in the principal office of the court appealed ^ from. IV. Thai the security for costs required by the sccuri^ty fo^^ statute 12 Vic. c. C3, sec. 40, shall be given by bondi2v.,eh.63. to the respondent Oi respondents in the sum of one hundred pounds, being the sum named in the statute, which bond shall be executed by the appellant or appellants, or one of them, and by two sufficient sureties, (or if the appellant or appellants be absent from or do not reside in Upper Canada, then by three sufficient sureties,) and the conditions thereof shall be to the effect that the appellant or appellants shall and will effectually prosecute his or their appeal, and pay such costs and damages as shall be awarded in case the judgment appealed from shall be affirmed or in part affirmed. The bond and conditions may be in the form given by rule number five. V That the bond for securing costs shall be in pormofbond ' " for Bwurity - " ■ '" - for corU. the following form : Know all men by these presents that we, A. B. of — — , C. D. of— - .nfvTol — are jointly and severally hoUl and firmly bonnd onto ^'^''h /— -inthepinal sum of lawfnl monry o^ Canada, for Ml xxxvi ERROR AND APPEAL, the Court of Common PJeas as th? '^^ ^°"'^ of Queen's Bp, ch for JVow the cond ton of this nhi;„n--"°'^""<' Appeal. ^^ «.»„ „ V,. That when the judgment t„ h, directs the payment of „,T . apPMled from ^■'curi.y aforesaid shall be douWe^V "'" ^"'^ "' judgment, unless the same shaU b ' °Tk"' '"' ™"' for a penal sum or ud„,, „ '" '''''" " '""•d the sum really due i„ „Zu',"^'"S'" ^""um in double .he true ir red r'ir'';'"' '""'' ^l""" ^ .he amount so reoTe^^' ^f' ""'' -* only; and deb. and eosts shall he's a"ed '"t """ "" '^^^ 'eoi.al.othe condition of 'he h V "°"<'"'°" ■" mediately after the statl .t f"'!" """'^' ™- action, and the condition t^ li., """'* "^ 'he 'he said (appellant) saTefl ^, '" "'" "^"^ "■« appeal, a„d"if the iaW j dt: ? 'T""'^ ^"'='' . f'-o'" or any part thereof shairL 2^ S'"'"'"'''''' •he amount directed .o be pai tf '""',' """" P-^ or the par, „f ,„,^ amouM !!*""''' ^"'^8"""". judgmem shall be affirmed flK" ^'""'' "'" «''d P«) and all dama^th^a;™' ""'''■'■ againsl the said apn^Pam in^h ^ """'^''d always, ,l,a, i„ eases whL."he:;''P^"' ' ^'-ided * 1 be in a sum above foe h nZd""'' ^° '" ^'"''' be m the discretion o'the J'l P™""*'- " ''hall a judge ,he«„f iuMaUor," T^'^" '"""' " "f given by a large number of "i , ""^ '""""'J' '« I* --amo„g^hemt"h:cr.r:;Mr'^' ORDERS OF COURT. XXXVU VII. That when the judgment appealed from shall J^J".'"'- be in an action of ejectment, the security required by the last precedmg rule shall be taken in double the yearly value of the property in question ; and in cases where the matter in question shall relate to the taking or question * 1 J reliiting to of any annual or other rent, customary or other duty rout, 4c. or fee, or any other such li'ie demand of a general and public nature, affecting future rights, the amount in which security shall be taken in addition to the security required for costs shall be fixed by order of a judge of the court appealed from. VIII. That the security required by the two last to be by preceding rules shall be given by bond, and the reci- oj^^^to tals and condition in such bond shall be such as shall conform to the provisions of the said two rules, with such further or other conditions, in cases where the judgmeut is not for the payment of a sum of money only, as the judge approving such security may think fit to order. IX. That the parties to such bond, as sureties, AfBdftvit of shall, by affidavit respectively, make oath that theyifUretiM. are resident householders or freeholders in Upper Canada, and severally worth the sum mentioned in such bond, over and above what will pay and satisfy all their debts ; which affidavit rcay be in the follow- ing form : — In the (style of court.) A. B., plaintiff, i E. F. of , and G. H. of—-, severally make «s > oath and say : and first this deponent E. F. for CD defendant.) himself saith, that he is a resident inhabitant of Upper Canada, and is a householder in, (or a freeholder m) ——, and that he is worth the sum of (the sum in which he stands bound by the Dsnalty) over and above what will pay all his debts ; and this deponent, G H for himself saith, that he is a resident inhabitant of Ui)per Canada, and is a householder in (or freeholder in) , and that he is worth the sum of (as the case may be) over and above what will pay all his debts. (Signed) E. F. 6. H. Sworn by the above named deponents E. F. and G. H., at — — , in the county of , the day of , 18— before me, X. Y. ^ CommiisioTur, i/e. xxxviii ERROR AND APPEAL. 14 (Jays no- tice of appli- r:ition f(ir nllowanri' of anciiritv. How allow- ance to be opposed. X. Tliat fourleen days' notice shall be given of the lime and place ;it which application will be made to the court from whose judgment it is intended to appeal, or to a judge thereof in vacation, for the allowance of such security ; which notice shall con- tain the names and additions of the obligors. XI. That the allowance of such security may be opposed by affidavit; but that in the absence of any such opposition, the affidavit above mentioned shall be sufficient, in the discretion of the judge, to warrant the allowance thereof. When XII. That, if allowed, the officer of the court shall endorsf on such bond the word " allowed," prefixing the date and signing his name thereto ; upon which, such security shall be deemed perfected. Security in XIII. That cascs coming within the Twelfth Vic- entes under ■ • i . , . ^ 12 Vic, ch. tona, chapter sixty-three, section forty, numbers two and four, shall be disposed of by special order, as the occasion may require ; except that the security thereunder shall be personal and by bond as aforesaid. ^nTa^"^' "^^^' •'^ ** '"■''^^'^^? I'^^t if ^" a^iy case judgment *'ve'nTn''a ^^^^^ ^^ hereafter given in any of the said courts S^t%°pea,r "P°" ^ question of law not appearing upon the ie«?d'.'*"' record, but which judgment would be subject to be reviewed in error, if the question thereby determined were presented to the court on a special verdict, or by bill of exceptions, or demurrer to evidence, then in every such case the judgment so given may be appealed from, notwithstanding the question shall not appear upon the record. Provided, 1st.— That before the expiration of three calendar months from the day on which the decision shall be pronounced, the party intending to appeal shall, by his attorney, file in the office of the clerk of the court in which the cause shall be or shall have OBDEUS OF COURT. XXXIX Jul, be given a, i„oa,« cases ot appeal. S.d,y._Tha. i„ case of any ;PP- ^^tru" "'^' ''^r/r^a:: a^dt''r :::tio„ ae.. statemeut ot the case, an thereon from • A ^,.A nf the iudc'ment or decision thereon mined, and o1 the juu ^^ _ which he aitpeals; ^^:^^^^^'' ^^^"f '^„f '^^^^^^^ and •nt of record certified by the clerk. ■ s->^-r ;:rr.;;:-'f.■5= judge of tne />«"" P^ ^^^ ^hich judge, on statement to be submitted to , ^^^_ .earing the "^^-r P^^^^^^^^^ ..y approve attendance, on heaiing he pi or modify the statement, as to him tion, remit such s atement t ^^^^.,^ the xl ERROR AND APHEAL. muo ^r- XV. That the v/rit of appeal from either of the derk'onhJ said common law courts, upon being presented to ed">om.'""''" the chief clerk of the court appealed from, shall, by endorsement thereon, be allowed by him if the ap- pellant has given the requisite security, such allow- ance to be as follows : Allowed the day of , 185 (Sigimlure of the Clerk.) And that when allowed, the said clerk, on payment of legal fees, shall proceed lo comply with the order of the writ, and the chief justice or some other judge of the court appealed from shall endorse a return thereon as follows : • By virtue of the within writ,, the record and proceedings therein mentioned, are sent under the seal of the Court of- , as within it is commanded ; such record and proceedings being contained in the trans- cript thereof hereunto annexed and signed by (officer's name), clerk of the said court. (Signed) Chief Justice, (or Judge.) S«ment "^^'' '^^^^ ^^^ ^^^^^ °^ ^^^ *'°"'t ^hall, in order to such return, cause a fair and full transcript of the judgment appealed from, certified under the seal of the court and signed by him, to be affixed to the writ of appeal ; which transcript, so certified and transmitted, with such further certificate as may be required in cases under the fourteenth rule, shall be deemed a sufficient compliance with the writ. of judRment appealed from to be made. Rule to return writ of appeal. XVII. That if any writ, of appeal be not duly returned, a rule to return the same may be obtained at any time as of course, on filing a motion paper therefor, with an affidavit of the allowance of the writ and the delivery thereof to the chief clerk of the court appealed from, at least fourteen days previous to such application and of its non-return. VZL^ XVIII. That if not returned within four days after ^ftm}L ^^'■^^c® °^ such rule on the Chief Justice or some other toCmJS". J"'^?^' ^"*^ °" ^^6 <^h'ef clerk of the court appealed xli ORDERS OF COURT. upon a special affidavit of the circumstances. 1 •♦ ^navJ'ur'hertliiw ^, X e ♦V.r.^ timp to return such wrU ma.V k, return XIX That further time lo reium •p,,r,r'"it.''°" be had upon application to the said Court of Error „,,^^ anil Appeal, or to any judge thereof. VY Kn rule to allege diminution, nor rule toNoj^^^ assign --^^^^,f„^Pn^^^^^^^ ano--. tionem non, shall be ndcessdrjr, assignment of errors. XXI. No rule to certify or transcribe the recordjp^^^ onH if the aDoellant does not, m* eai^rith- shall be necessary ; and it the appeu pf^ ^^^ eight days after the filing of the return of the writ ol appeal, file and serve a copy of his grounds of appeal rr:s;ondentmay,by notice in— ^^^^ same; and if the grounas of appea are n withii eight days after service thereof on the appel lant his attorney or agent, the appeal, on prool thereof by affidavit, shall be dismissed with costs. vxil That within eight days after the g-und^^^ of ;pp al shall be filed and served, ^^^ ^^^^^^\'''' V. liftlP and serve his answer or joinder there o , "n^TUmons-, and *e court " ' P'-^^^^ tion of the respondent. xlU Further tiffis. Notice to be given if ap- peal is not to be re- eited. When grounds of apprp] porv- cd witliin 8 days of the 1st day of July. ERROR AND APPEAXw Provided always, that either party respect ' .7 obtain further time to file the grounds of a, , or the answer or joinder thereto, by the order of the court or of any judge thereof, upon the return of a rule nisi or summons to be issued and served in that behalf. Provided also, thai if the respondent does not intend to resist the appeal, he may give notice thereof to the appellant ; and on proof of such notice, judgment of reversal shall be given for the appellant as of course. Provided also, that in case the grounds of appeal are not filed and served eight days next before the first day of July in any year, then the respondent shall be allowed as many days after the twenty-first day of August next following as will be sutficientto complete such number of eight days within which to file his answer or joinder thereto. wil eit' sai 8U en th th ai a I XXIII. That when the grounds of appeal and answer thereto are filed, the cause shall, on ,)lica?' tion of either party, be set down for argument by the clerk of this court, for a day to be fixed, of which notice shall be duly given to the opposite party, his attorney or agent, at least four days before the day appointed for the hearing of such appeal. Copies of XXIV. Four clear days before the day appointed KiTvorcd for argument the appellant shall deliver to the clerk days'before of thc Court of Error and Appeal, for the use of the pointed for judgcs thereof, two copies of the judgment of the court below, and of the reasons of appeal, and of the pleadings or answers thereto ; and in default thereof the appeal may be dismissed with costs. Eesuuofap- XXV. That the result of the appeal in this court peal tobe ii/>i. oertiflcdty shall be certified to the court appealed irom by the olerk. clerk, under the seal of this court, which certificate shall briefly state that the judgment has been affirmed, reversed or modified (as the case may be), with or xliii OBDEB9 OF COURT- ' A V\v «ubom co=u; and -j-jj;^„r:;:;,r„t'x *e either party, adng .0 the coarse .„, new ^<.--^°^:rs.t „tV-'» B-^- '» and practice ot me England. respondent, if tbe successful Provided that he '^ -a 'nt by execution, party, may P-^' Vo sec uUy re^--^^ ^°'^ ^T ::;:!r;cr«aC^:r;her remedy hy.aiver. delay or otherwise. „ •* on/l all rules and orders 01 ^,,j,t be ,r-^-.ri That all writs and au r"'^ Kpart-^'''*''*''" XXVI. inat au w ^^^^^^j ^r bear,^^^,^. rrd;":?^"-"'-'^*'^^^" clerk of the court. •, of appeal shall be a super- XXVII. That no wr U^ app^ ^^ ^^^ ,,,,,e of the -^^^^°?t;::erconUining a st-ment of sonie ,.^ allowance thereot .^^^^^^^ ^^ ^e argued ,« r::,::and::rC^-™e.hereo.hya.da..., mav order execalion to issue. f the Court of Chan- XXVIU. That in aPF"'''' fortieth section of the „.,„.,. eery, aU -uritles - - *e fortte ^__ ^ ^ .aid Act of 't-e P"""™; „f Her present Majesty, w,»^ , ,,,(,H year of *e etgn .__ ^^^ ^^^^ ^j hond, ,.._».,;» t"S,\oX^f-r:^tltStrrr-^ X^rof^reronCespondent, his solicitor xliv ERROR AND APPEAL. or agent ; and the same shall stand allowed, unless the respondent shall within fourteen days after ser- vice of such notice move the said court to disallow the same. A special application shall be necessary to slay proceedings under any of the exceptions in the said section of the said Act. XXIX. That the petition of appeal shall be in the Potitionof ^or'" set forth in the schedule to this order. The SFHindwuh petition of appeal shall be filed with the clerk of the whom filed. jjQjjj.j^ ^^^ ^ p^py thereof, together with a notice of the hearing of the appeal, shall be served on the respondent, his solicitor or agent, at least two months before the time named in such notice for the hearing of the appeal. Such petition shall not be answered, but at the time named in such notice the parties must attend to argue the appeal ; and upon the filing of the petition, and service of a copy thereof and of such notice, the appeal shall stand in the same plight as if the petition had been answered, and such time appointed by this court for the hearing thereof. T7te Schedule to the foregoing Order, IN THE COURT OF ERROR AND APPEAL. Between , appellant, and , respondent. To the Hotiourubk the Jvdgpa of the said Ctmrt. The humble petition of the said (appellant) sheweth : That a (decree or an order) was lately and on pronounced by Her Majesty's Court of Chancery for Upper Canada, in a certain cause depending in the said court, wherein your petitioner was and the above named was ; which said (decree or order) has since be»>n duly entered and enrolled. That your petitioner feels himself aggrieved by the said (decree or order), and he hereby appeals therefrom, and humbly prays that the same may be reversed or varied, or that your lordships will make such other order or decree in the premises as to your lordships shall seem meet. And your petitioner will ever pray, &c. (Certificate of Counsel.) XXX. That the printed cases shall be and are hereby abolished, but copies of the pleadings and printedcases evidence shall be printed, as is at present done in the butappen- appendix to the case, to which the reasons of appeal, lurnuhed. and for supporting the decree or order, shall be ap- pended ; and the same rules shall apply to such printed copies and reasons as now apply to the prir con res] thii pri St of di l( r t OBDEB9 or COURT. L.K.«ed .he P';";:f/Xl'd a JaV,*M no- respondent '"P""'^" > ;. „'° vent *e parlies from thing heroin conta.ne.l s all F^^'' P _^^^ ^^ ;„ joining in P'"""'^ '"^ ' ;°P^^;^°ii be so d.spo.ed. printing the W'^"''"''', "a^p^Ued ^vith the clerk rtr:::.'rthe'"::oru:3ndges,atiea.rour Cwore the hearing of the appeal. XXX^That.henit,haU^e — ,„ ber Majesty '" *;XXv'"'°™''*"P'""''''*';»"-'^"^ «,l„lred by the statu e twel h ^^^ ^^ .hree, sec.ton '"^ ^ '.e "p ndent^sueh bond to be.™^,^" ,„ the respondent or re p „, „„e of executed by the aPP'^l ^n or apP ,^^, thetrr, and two »f "="' '"^X „ot reside in Upper „, appellants '^^-^^^f sureties) in the penal Canada, then b) three sum ^^^|j,„ sum ot five hundred pounds tn cases . _ Tfirs. part ot the said sectto„fony.sx ^^^^ ^^^ tionof which bond *'" wi ,»d wiU effectually appellant (or aPP* f ^^ 'i,> pay such costs prosecute bts (or he ) PP J^^ .^ ^^^ ,;,, jg. and damages as shall ue affirmed or „ent (or decree "PP- ^ fr ™ si , ^^^^^ __^^ ^ ^ in part affirmed, and that exe ^^^ ,^^^ ,.;d in the origitia cause unUl^sec ^y^^^ ther be given bJ ^ond ^^^ ^^^ „^„,, „{ seventh and "SWl/*^- ,^„„ te requisite: .he case such f-'^"„"plication to the Court And in cases from Chancey^ Pl^ _^^,.^„ „, „{ Appeal to stay P.'«= f ' f ^^^^'shall be upon such notice-, -hichmouon gra ed^^^^^ „ otherwise, terms as to security ""^er l" ^^ i„. as the circumstances and nature vvvn That the bond or security referred to in .he^'S^le'^aUbeinthefoUowingform- xlvi ERHOR AND APPEAL. Know all men by these presents, that we, A. B., of , C. D., of , and E. F., of -, are jointly and severally held and firmly bound unto G. H., of , in the penal sunn ol of lawful money o' Ca- nadex, for which payiii nt well and truly to be made, we hind ourselves, and each ol us by himself, our and ea.-li of our heirs, executors aud adminislratoisre.speitivuly, firmly bythese presents. Witness our hands and seals rt'spcelively. the day of in the year of our Lord . Whereas (the appcllanl) alleges and complains, that in the giving; of Jud^'uient in a certain suit, in her Majesty's Court of Error and Appeal in Upper Canada, hetwct^n (the respondent) and (the appellant) manliest error hath intervened: wherefore the said (appellant) desires to appeal from the said judgment to her Majesty, in her Majesty's Privy Council : Now the condition of this obligation is such, that if the said (appel- lant) do and shall eHectually prosecule such appeal an