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<«r.
■%.'i
rj*
mmm
A LETTER .:
' ' ON THB SUBJECT OF THE
DIVISION COURTS:
iSS>
WITH
. r
PROPOSED ALTERATIONS
"^^ :'\. -;>;
IN THE
JTJRISDicflOF AND DETAILS
OF THE
SYSTEM.
FROM HIS HONOUR JIIDOE BURNS, TO THE ATTORNEY
GENERAIi, CANADA WEST.
'J 1
f fi
TORONTO:
PRINTED BY SCOBIE & BALFOUR, ADELAIDE BUILDINGS, KL\G STREET.
1847.
•^^WT:"^^"
-•■'■ T r™™^v ''■'^~?^!ir~"i
r«
T , ijv -■ >,
■,rit''<i'i.-::;r
A LETTER
ON THE SUBJECT 01' THE
DIVISION COURTS.
Sir,-— In addressing you on the subject of
the Division Courts, in respect to which I am
about to propose reforms and amendments, I
but follow the practice in England, which is,
whenever any gentleman thinks he can advan-
tageously suggest an alteration, reformation or
amendment, in any particular, to address his
remarks to some prominent leader in the pro-
fession, within whose province it would natu-
rally fall to inquire into the subject, and, if
worthy of attention, might afterwards take
measures before the legislature upon the sug-
gestions. For some time, I have observed
that many alterations and additions to the
Division Court might be introduced with great
advantage to the public; but what has more
immediately prompted me to consider the sub-
ject now, is, observing by an order of the Queen
m Council of the 19ih December last, that the
recent Act passed in the British Parliament,
entitled, "An Act for the more easy recovery
of small debts and demands in England,*' is
about to be called into operation, and thereupon
the former Court of Requests in many towns
and places will cease. From the experience I
have had in the working of our Act of 1841,
creating the present Division Courts and abo-
lishing the Court of Requests, and which Act
is similar to the one now introduced into Eng-
land, I think many amendments can be made
to our law, which will render the system more
perfect, and at the same time make it more
decidedly useful to those who feel themselves
compelled, from the nature of their dealings and
transactions, to enter the inferior tribunals of
the law.
I propose to lay the whole of the English
Act before the public, so that those who are
not called upon to legislate may have an oppor-
tunity of expressing their opinions to those
who may be so called upon, and thus that every
one may judge for himself as to the probable
advantages to arise or disadvantages attendant
upon it. Instead, however, of making any
connected dissertation upon the English bill, I
intend to add, by way of notes to each clause,
such remarks as may suggest themselves, and
to the whole add the clause;) of an entirely new
BiU to supersede the Act of 1841. To the
general reader, I am aware, such a course will
appear dull, tedious and uninteresting; but the
comprehensiveness in such a plan, and its prac-
tical utility to those who may be really desirous
of discussing the subject, is more than suffi-
cient to counterbalance the disadvantages.
I shall therefore ofier no more apologies, but at
once proceed to the task before me.
I have the honour to be.
Your obedient servant,
ROBERT E. BURNS.
An Act for the more easy Recovery of
Small Debts and Demands in England.
[28th August, 184G.]
Whereas sundry Acts of Parliament have
been passed, from time to time, for the more
easy and speedy recovery of Small Debts within
certain towns, parishes and places in England,
&c.
[The remainder of the Section is unimportant in
this country, for it is merely giving power to order
the Act to bo put in force.]
Section 2. That Counties be divided into
Districts.
Sectio7i 3. Courts held under this Act, to
have the same jurisdiction as County Courts,
and to be Courts of Record.
[Ilitlierto the Division Courts in this province have
not been tnndo Courts of Recoid ; but inasmucli as I
sliall pro[)ose to invest tiiese Courts with more exten-
sive powers, and authority to commit to prison in
certain cases, I tliink it would be proper to pince
them upon the same fooling as those in England.]
Section 4. Preserving the jurisdiction of
the County Courts.
Section b. Her Majesty may order any
Court under Acts in Schedules (A) and (B), to be
held as County Courts, and may assign a Dis-
trict to the same.
Section 6. When a County Court shall be
established under this Act, recited Acts, and
all other Acts affecting its jurisdiction repealed.
Section 7. Proceedings under former Acts
to be valid.
Section u. Orders in Council to be pub-
lished in the London Gazette.
Section 9. Appointment and qualification
of Judges. Proviso aa to Attornies acting as
Judges under Acts cited in Schedules (A) ond
(B).
Section 10. Judges at present acting in the
Courts of Bath, Bristol, Liverpool and Man-
chester, entitled to the appointment under this
Act for those places.
Section 11. Stewards of Manors of Shef-
field and Eccleshall, appointed under 48 Geo.
III. ch. 103, to be the first Judges under this
Act, for those Districts.
Section 12. The present County Clerk of
Middlesex, appointed under 28 Geo, II. ch. 33,
to be the iirst Judge under this Act, and may
continue to appoint a Deputy, subject to ap-
proval of Secretary of State. Present Regis-
trar to be the first Clerk.
Section irJ. Provisions for certain Lords of
Manors having rights of appointments under
the Acts licrcby repealed.
Section 14. Lords of Manors, &tc., may
surrender Courts, with con6,ont of persons
interested.
Section li>. Appointments of Judges who
Iiavc previously olficiated in any County Courts,
not subject to 5 and 6 Vict., ch. 122.
Section 16. For supplying vacancies among
the Judges of the County Court.
Section 17. That no Judge appointed under
this Act shall, during his contiuuance as such
Judge, practice as a Barrister within the Dis-
trict for which his Court is holden under this
Act, except those Barristers already appointed
to preside in or hold the said Courts in Bath,
Bristol, Liverpool, Manchester, Sheffield, Ec-
cleshall and Middlesex, and now practising in
chambers as conveyancing counsel, who may
continue such practice.
[Tho Judges, by this clause, aro only ^ostricted
from practising at the bar in the Distnctt; over
which they prositle ; and llioso who have been prac-
tising before the Act came into operation, are allowed
to continue. Having taken office upon the under-
standing that they were <-t liberty to do so, such
right is continued to them. If out Legislature had
done the same thing in 1845, to those who accepted
office after 1841, upon such an understanding, it
would have been doing only what the mother country
has deemed a just right to individuals. Instead,
however, of legislating upon this principle, a change
was suddenly made, without the least notice of it,
and without any lemuneration. Such is Canadian
opinion of what is right. J
Section 18. That it shall be lawful for the
said Lord Chancellor, or where the whole of
the District is within the Duchy of Lancaster,
for the Chancellor of the said Duchy, if he
shall think fit, to remove, for inability or mis-
behaviour, any such Judge already appointed,
or hereafter to be appointed.
Section 19. Provided always, that it shall
be lawful for the Lord Chancellor or the Chan-
cellor of the said Duchy, within their several
jurisdictions, to remove any Judge from any
District to which he shall have been appointed,
for the purpose of appointing him to any other
District in which tho salary of such Judge shall
not be less than in the District from which he
shall be so removed.
Section 20. As to the appointment of a
Deputy to a Judge.
Section 21. Judges may act as Juetices, if
in the Commission of the Peace.
Section 22. That the Judges and other
officers to be appointed under this Act shall be
authorised and required to perform all such
duties in, and relating to, any causes or matters
depending in the High Court of Chancery, or
before any Judge thereof, or before the Lord
Chancellor, in the exerciuO of any authority
belonging to him, necessary or proper to be
done in their respective Districts, as the Lord
Chancellor shall, from time to time by any
general order direct ; and for this purpose, and
subject to the general rules and orders of the
said Court, shall have and exercise all such
authorities as may be duly cxt»r?ised by the
Commissioners or other oflicers of the said
Court by whom such duties are now usually
performed, and shall be entitled to receive the
same fees and sums of money as are now pp"-
able in respect thereof, to be accounted for
and applied by them as the other fees authorised
by this Act to be received, are directed to be
accounted for and applied : provided always,
that the future amount of such feea shall
continue subject to the same authority for
revising the same to which it is now subject.
[Some years since, when changes were spoken of
with reference to the practice of the Court of Chan-
cery in this province, it occurred to me that the
Judges of the District Courts would be proper per-
sons to do all the duties of Master Extraordinary
and Examiner in each of the Districts ; and I mentio..-
eul the subject more than once to difierent memljers of
the profession. The change which I spoke of in this
country, has, as we see by this clause, actually been
made in England. I thought it then advantageous
to transfer these duties to a Judge, and it would, I
am sure, bo found equally so in this country, as
they seem to think in the Mother Country. By
such a system, I am convinced we might entirely
get rid of that useless system of written interroga-
tories, which only multiply and increase unnecessary
labour and expenses. It cannot be questioned, that
the Legislature contemplated there might be exam-
inations without written interrogatories; and un-
doubtedly the parties might exercise the right of
examination without written interrogatories if they
pleased. As to the expediency of such examinations,
none will deny who are in the habit of examiog wit-
nesses. Mr. HoflTman, in his work upon the practice
of tho Court of Chancery in tho State of New York,
lys : " Iher
le of wri'tei
ut tho rules
ai ever since
sen almost
lat disuse is
,ng interrog
B interlocut
nd become <
ind again h
ritness is o
icompetent,
s improper <
he question,
eem proper,
gainst the i
)roceed witl
avour of th
lown, if insii
tarty against
laso, the obj
he party mi
>n due notice
)d, or the ob
tre very bene
2efure the <
questions are
IMr. Hcffma
taken before
the witness
the Cica-Chi
usually adop
these Bugge
out by rule
to the one
taking evide
expenses gr
appointed by
purpoi>e at e
Section i
of Courts I
Section '.
authority i
who shall
jesty's su]
whom the
subject to
and in cat
move, sub
otherwise
advice of 1
shall be ]
and in cas
Clerks as
and paid b
Section
Chancello
appointed
Section
a deputy i
Section
[The du(
by our Act
payment t<
whereas ot
1 There is
'present, f<
lat it shall
tho Chan-
leir several
i from any
n
any other
Judge shall
n which he
tment of a
JuGtices, if
and other
ct shall be
all such
or matters
lancerj, or
the Lord
authority
oper to be
the Lord
ne by any
irpose, and
lers of the
le all such
jed by the
f the said
)W usually
eceivo the
i now ppy-
)unted for
authorised
:t6d to be
d always,
feefi shall
'lority for
subject.
spoken of
rt of Chan-
3 thai the
proper per-
iraordinary
1 mentio .-
neinl>er8 of
B of in this
Dually been
rantageous
I would, I
luntry, as
intry. By
lit entirely
interro^a-
inecessaiy
oned, that
be exam-
and un-
B right of
es if they
ninations,
ming wit-
e praotioe
ew York,
appointed) ^ys : " There is no oxpross provittiun prevonting tlio
of wri'.ten interrogatories before an Examiner,
ut tho rules are entirely uilent u|iun such a [)rBctice ;
id ever since the role of Dec. 1, 1825, thoy have
sen almost wholly disused. One good piTcct of
lat disuse is, the extinction of the practice of refer-
ing interrogatories, which nnay carry a cause upon
appointed, n interlocutory point through almost every stuge,
nd become a fruitful source of liiigution and delay
nd again he says: "Upon the examination, if a
itness is objected to as interested or otherwise
competent, or any interrogatory is objected to
s improper or irrelevant, the Examiner may rest^rve
ibe question, or decide upon the objection, as he mny
leem proper. If he reserves tho question, or decides
igainst the objection, he shall note the sunie, and
roceed with the examination. If he decides in
favour of the objection, the testimony may be taken
^own, if insisted on by the solicitor or counsel of the
)arty against whom the decision is made. In such
»so, the objection and decision shall be noted, ^d
he party making the objection may at the hearing,
)n due notice, apply to have the deposition suppress-
id, or the objectionable testimony expunged. These
ire very beneficial regulations, by which the course
}efore the examiner is rendered precise, and all
questions are reserved for the decieiun at the hearing."
Mr. Hcifman observes, that when the evidence is
aken before the Examiner, it is written out fairly, and
the witness signs it ; but when taken before one uf
the Cice-Chancellors, it is taken down in the mode
usuully adopted in trials at Nisi Prius. By adopting
these suggestions, which may be easily carried
out by rule of court, and enacting a clause similar
to the one in England, the whole system of
taking evidence would be much simplified, and the
expenses greatly reduced. There might be days
appointed by the judge of the District Court for the
purpose at each of the District Court sittings ]
Section 23. Treasury to appoint Treasurers
of Courts holden under this act.
Section 24. That for every Court under the
authority of this act there shall be a Cleili,
who shall be an Attorney of one of her Ma-
jesty's superior courts of common law, and
whom the Judge shall be empowered to appoint,
subject to the approval of the Lord Chancellor,
and in case of inability or misbehaviour to re-
move, subject to the like approval j and until
otherwise directed by her Majesty, with the
advice of her Privy Council, overy such Clerk
fihall be paid by fees, as hereinafter provided;
and in cases requiring the same, such assistant
Clerks as may be necessary shall be provided
and paid by the Clerk of the Court.
Section 25. In populous districts. Lord
Chancellor may direct two Clerks to be
appointed.
Section 26. lo case of illness, be ., of Clerk,
a deputy may be appointed .
Section 27. Duties of Clerks.
[The duties of the Clerk are the same as prescribed
by our Act, but the schedule of fees provides for the
payment to the Clerk for all duties required of him,
whereas our Act is greatly deficient in this respect.
There is much labour performed by the Clerk at
present, for which ho receives no compensation.
The Legislature, of cours.', did not intcn>l it shouM
bo so, but it in imp.issitiic fr)r any one to providii for
all ciinlingencicM, who in nut tiioroughly arqiinintcd
uith the pniciicul working of the tsy-iiem. The
present scale of remunPriition is not adequate to *he
duiiMs pcrformefl ; that i*, if it is to be taKen as being
the full amount lu be paid him. The fees allowed in
the schedule are snUicient for the duties prescribed
by it; but the Art ro^piires him to peiform a variety
of matters for the parties, for which he receives no
remuneration; and it is such mutters as operate
hardly upon the Clt-rk, and causes tiim by far the
most trouble. He is obliged from thu first stage of
suits to the last, to receive in and pay out all suitors'
moneys ; to do which, with any degree of regularity,
he must necessarily make a great many entries and
consume a good deal of time. The proposed Act,
from which our Act of 1841 was chiefly copied, pro-
vid'3d for the Clerk being paid for this duty, and so
doe? the present English Act. I shall propose that
the Clerk be paid by the Plaintiff in each case a small
remunerating fee for receiving, taking charge of, and
paying him his money and taking a receipt for it
When a Defendant pays the Clerk, which he may do
without judgment, the Clerk is not bound, nnr is he
bound after judgment, on payment being made, to
give the Defendant any certificate of payment. I
shall not propose to oblige the Defendant to take one,
but we know that most parties desire an acquittance
when they pay money; and to oblige the Clerk to
give one without being paid for so doing, is mani-
festly unjust ; I shall therefore propose that when-
ever a defendant desires an acquittance or certificate
of payment, he may have it by paying the Clerk a
small fee lor it. I have known many sums of money
lost, and 1 have reason to think from some cases
before me, that sums uf money have been exacted
twice for want of such vouchers. What has occurred
once may happen again ; but when the Defendant may
have such a certificate by paying for it, if such a
thing should happen, it would be his own fault.]
Section 28. Offices of Clerk, Treasurer, and
Bailiff, not to be conjoined.
Section 29. Officers not to act as Attornies
in the Court.
Section 30. Penalty of £50 on non-observ-
ance of the two previous enactments.
Section 31. Appointment of Bailiffs.
Section 32. Provision for the High Bailiff
of Westminster and Southwark.
Section 33. Duties of the High Bailiffs, he.
Section 34. Provision respecting Clerks and
High Bailiffs of Courts under acts cited in
schedules (A) and (B).
Section 35. Provision respecting the officers
of tho two Courts at Bristol.
Section 36. Treasurers, Clerks and High
Bailiffs, to give security.
Section 37. Fees to be taken according to
schedule (D), and tables to be exhibited in con-
spicuous places. Fees may be reduced. Ap-
propriation of surplus fees.
Section 38. Compensation for persons whose
rights or emoluments will be diminished.
J
Seclion JJl). Officers of Courts may be pnid
by salaries instead of fees. If Court abolished,
no compensation allowed except in certain
cases.
Section 40. Limiting amount of salaries to
bo paid under this act. To the Judge £1200,
and to the Clerk £600.
Seclion 41. That the Clerk of every Court
holden under this net, from time to time, as
often as he shall bo required so to do by the
Treasurer or Judge of the Court, and in such
form OS the Treasurer or Judge shall require,
shall deliver to the Treasurer a full account in
writing of the fees received in that Court,
under the authority of this act, and a like
account of all fines levied by the Court, and of
the expenses of levying the same; and shall
pay over to the Treasurer, quarterly o : oftener
in every year, by order of the Court, ihe monies
remaining in his hands over and abovo his own
fees, and such babnco as ho shall be allowed,
by order of the Court, to retain for the current
expenditure of the Court.
[TheClfrks in thu Division Courts of this province
ns the law stands, are compelled to furnish at their
own expense the books necessary for the records of
the Court ; and yet those books are made pui)lic
property. This has always appeared to mo to be
very unjust to the Clerks. Ir. will be soen that by
the English act, such an cspondiiurc can bo provided
for. There has been another oversight committed in
our act, in not allowirig the .lodges to permit the
Clerks to retain other current expenses of the Courts;
such ns fur fuel, lirfrhts, and the use of rooms to hold
the Court in. It has happened, that the Judgo has
been obliged to adjourn the Court after going to the
place appointed for it, because the person at whose
Louse it had been holden, look it into his head to
withhold the permission any longer. It has also been
the case that the Judge lias been obliged to pay out
of his own pockiit for fuel to warm the room ; and
when ho has been unable to finish his cause list before
dark, to pay for candles rather than adjourn over till
the next day. No one could imagine that either the
Judge or Clerk should pay these charges, or should
be obliged to furnish a room. It is true that the
hospitality of the people in the country is great in
respect of these accommodations; but it is not right
that the Courts should depend upon that, or that it
should be expected individuals should furnisii such
things gratuitously for the community. There must
have been an oversight in the Legislature, which I
should propose now be remedied by merely adopting
the provisions of the English act.]
Section 42. Clerks accounts to be audited
and settled by Treasurers, and Treasurer to
pay fees to the Judge.
[It has always appeared to me a cumbrous mode
of paying the salaries adopted in our act, that is, that
the Treasurer should half yearly make up the ac-
counts for the Receiver General, and if there be not
enough received to pay disbursements, then a warrant
shall issue for the deficiency. In such districts as
the fees are sufficient no inconvenience is felt, but in
those districts where the fees aio deficicit there is
great inconvenience and delay. It is often from two
to throo months after time for paymont, boforo t\ DUUty C
salary of the .Judge is fully sottlod. Why should th tions br
be so? All the Judges of tho urovlnco, except tl |ard and
District Court Judges, are paid tnoir salaries by wa jujt con
rant on tho consolidated fund every (juorter.
sensible reason can be given fur adopting the exoe|
tion. The consolidated revenue is chargeabla wit|
all ultimate deficiencies, but it is unjust to the Jud|
to make him wait till that bo ascertained before
shall he paid, besides undoubtedly the present sysieiiiall bO in
is complicated, both to the Ileneiver General and lb ly devisc
Treasurer. The certainty to the Judge of being pc!: rjll or set
his salary by warrant every riuarter, is of no smal mljcious
moment to him, and why he should be placed upoi „ qj ^q^
a different footing from all others, is a question m ' _ Uy^
one can answer. I shall therefore propose so ti '
alter tho 13th and 14th sections of our act, as tha [This cl
the Treasurer shall pay over the monies he receives jmmary
as ho receives them, to the Reojiver General, ant ^j Courts
that the Judges' salaries be paid as all other salarie ||| amount
are paid.] there can
{hero can
ourts of
ical Cour
Section 43. Treasurer of the Court to ren-l „ ^^^
der occounts to Audit Board. K'have'con
Sectiod 44. Commissioners of Treasury to mall matte
direct how balances shall be applied. ry such mo
" , Jourt of R(
Section 45. Accounts of Treasurers to be ay, from pt
audited under powers of SJS Geo. 3, ch. 52. irould have
Section 46. Clerk to send to CommissionersT ''geid^^^h
of Audit an account of all sums paid by him to
Treasurer
Section 47.
ixpense ai
jthers, in
he amount
mportanco
Accounts, when audited, to be
sent to Treasury.
Section 48. Treasurers, with approval of "p^'Jf^'cite
Secretary of State, to provide court houses, j„q person'
offices, &ic. four of his
Saciion 49. Where Common Gaols are
inconvenient, prisons belonging to Courts under
Acts cited iii Schedules (A) and (B) may be
used.
Section 50. Power for purchasing Land
Section 51. Treasurer empowered to bor-
row money for tho purposes of this Act.
Section 52. A general fund to be raised for
paying off money borrowed.
Section 53. Property of Courts in Schedules
(A) and (B) to vest in the Treasurer of the
County Court.
Section 54. Provisions for outstanding
liabilities. aiiogmi.c,
Section 55. Clerks to have the charge of lof £3 or
the court houses, Stc, and to appoint and dis- not feel c
miss servants, Sic.
Section 56. Judje to hold the Court where
her Majesty shall direct. Notices for holding
Courts to be put up in a conspicuous place.
Section 57. Process of the Court to be
under seal.
Section 58. That all pleas of personal
actions, where the debt or damage claimed is
not more than £20, whether on balance of
account or otherwise, may be holden in the
sight dollai
lestroying
)r £3, an(
remedy of
borrowing
ing them,
len to be I
antly are,
the ignore
lecause th
their cases
conferring
why they i
property c
sum of £l
deliver a i
boards, or
altogethei
have don
£20. Tl
of this CO
in such CE
value of p
is equival
gest that
damages
parties si
Courts,
so called
As we pi
lytnont, bororo tli)unty Court without writ ; and all such
Why should th tions brougiit in tho said Court shall bo
ovinco, oxcopi t\ ,ard and dotortnined in a eummary way in a
ir salarios by wa jurt constituted under thia act : Provided
optinlrThe'ex ^^7^ 'hat the Court shall not have cognizance
1 chargoabla wll ^^V ''^*'''" °^ ejectment, or in which tho
ijust to the Judi ^^ ^° ^"Y corporeal or incorporeal herodita-
rtained before h onlB, or to any toll, fair market or franchise
he present sy^ten lall bc in question, or in which the validity of
r General and tb ly devise, bequest, or limitation under any
idge of being pc!: ,,{1 or settlement may be disputed, or for any
"' '* *i^ "j *"""' lalicious prosecution, or for any libel or slan-
is^ que* iio"^° °'' °^ ^°^ criminal conversation, or for seduc-
propose »o" "( °"» °' breach of promise of marriage,
our act, ag tha [Xhls clause gives jurisdiction to dispose of in u
)nies ho receives jmmary way a great mass of casos which occupy
ver General, anc ,., Courts ; and in a great many instances to tho
all other salariei ,|| amount of the jurisdiction of the District Courts,
'hero can bo no doubt that since the abolition of the
! Court to ren- '<'"'''i °^ Request, and substitution of the piesent
[>cal Courts, it would have been found advantageous
have conferred a jurisdiction to entertain and try
af Treasury to mall matters of trespass and trover. The power to
lied. ry such matters was given in several of the English
, Jourt of Requests Acts ' ^ ♦he extent of £10. I can
easurers to U6 ay,frompractical observation, thatsuch a jurisdiction
3, Ch. 52. fould have been found beneficial, and of course will
ommissionerE * '"'' '" fuluro ; for I have in many cases been obliged
naid bv him t '"' ^°"*^ *^® parties to another Court, at a great
" J " ixpense and loss of time both to themselves and
jthers, in matters which, so far as regarded either
audited, to be he amount in disputo by way of damages, or the
mportance of the suit, might have been far belter
\l aoDroval of l'*P°*6'l "f '" 'heir own Division Courts at homo,
court hnii *^'"' ^^^^ as instances, casos of this description:
uses, jjjg person's dogs worrying and killing some three or
our of bis neighbour's sheep, worth some six or
m Gaols are iight dollars; or one farmer's cattle getting into and
) Courts under destroying another's grain, to tho value of some £2
d (B) may be '' ^^' *""^ ^^® party being unable to proceed by the
remedy of distress ; and tho more familiar cases of
borrowing goods and not returning them, or damag-
tsing L<ana. ng them. Whenever cases of this description hap-
vered to bor- f®" '" ^° brought to Court, and many of them ignor-
lis Act ' *"''y ''™' '■*''"''" •* loudly callpd for, and many of
' the ignorant feel disposed to blame the Judge,
I be raised for because they are made to pay costs, for his not trying
their cases, rather than blame tho Legislature for not
conferring the power; for they cannot understand
why they should not recoyer for a damage to their
property of a value of some £2 or £3, as well as a
sum of £2 or £3 for tho breach of an agreement to
deliver a thousand, or a couple of thousand feet of
boards, or the value of a cow sold, which may depend
altogether upon opinion as to her value, or for a sum
of £3 or £4 for goods sold or work done. I should
not feel disposed at present to go the length they
have done in England in actions of tort, that is to
£20. The time will arrive when tho transactions
of this country will warrant an increased jurisdiction
in such cases ; but at present it may be said that the
value of property here is such that a jurisdiction of £ 1
is equivalent to £20 in England. I shall therefore sug-
gest that in cases of trespass and trover where the
damages sought lobe recovered do not exceed £10, the
parties should be allowed to proceed in the Division
Courts. In actions of assumpsit and debt, technically
80 called, I should propose to go to the extent of £20.
As we proceed with tho bill, we shall find that the
3 in Schedules
jasurer of the
outstanding
he charge of
)oint and dis-
Court where
3 for holding
)us place.
Court to be
of personal
>;e claimed is
n balance of
>lden in the
provisions rospccting cnjia do not make it Cdmpul-
sory upon plaintifTs), except as to coitiiiii amounts, t<»
proceed in tho small courts. In liko manner, in our
law tho provision as to costs of suits uti(Ior£ 10 might
remain us it is in actions of contract; and might bo
applied to actions of tort, when ihu sum recovered
should not exceed JJCy. TliueiTuct of this would then
bo, that lilaintiiFd might, in actions of contract between
£10 and £20, and in actions of tort betwi^cn £5
and £10, resort to tho Division Court or to the Dis-
trict Court at thuir option. This option of tiiu plain-
tifl's could l;avo no injurious or ill etlect to thodufond-
ants, for I should [)ropo3o to ndojit, a» in England, a
provision that dofiindants might in casus of £10 or
£5 as ihu caso might be, apply to tho judge to removo
ilm case t.) tho District Court, if the judge deemed it
proper to bo more formally tried and disposed ut'than
in tho Division Court. This option would confer a
great benefit upon plaintiiTs, who merely seek to make
collections by giving them a speedy and inexpensive
tribunal, at tho same time would give the defendant
tho right to have tho cases more formally tried if they
wore disposed to do so. Tho Division Courts are
essentially courts for the collection of debts ; and to
show that to be so, 1 will state that 1 kept a register
of tho whole business of all tho Division Courts of tho
Homo District, for tho year 184G, and out of 4103
cases ponding for the year, only G&O were disputed,
2223 were undisputed and judgments given upon
them, and 1181 cases wero paid or settled by the par-
tics without going into court. The ^ame result would
happen, I have not the slightest doubt, if the facility
of enabling parties to collect their debts under
X'20 were given to the Division Courts. Tho prin-
ciple I propose to apply to the Division Courts
might bc applied to the District Courts, nnd tho
jurisdiction of that court be extended to £100 in
cases of contract, and £50 in cases of tort. The
option to the plaintiff, tho provision in favour of
defendants, and tho power of appeal, would aiTord
great convenience to parties, and effectually guard
every one against injurious or bad decisions. I
have given the matter a good deal of consideration,
and I am satisfied that the reform introduced into
England by tho Local Courts bill, might be extended
both to our Division and District Courts, with great
advantage to the public]
Section 59. Suits to be by Plaint.
[According to tht. provisions of this Act, no deposit
is required to bo made by the Plaintiff when com-
mencing his suit; all ho is required to do, is to pay
the fees in advance. During throe years past, I have
not once had occasion to make any intiuiry respecting
tho deposit money. It appears to me altogether a
useless provision; for the Judge is invested with
ample powers to award a Defendant compensation,
and to enforce payment of it. Obliging a Plaintiff to
make a deposit of one-twentieth part of the amount of
his demand, in addition to payment of fees, is not
only an inconvenience to him, but also to the Clerk
in keeping accounts with respect to it ; and 1 have
seen no instance, when there has been occasion to
make a defendant an allowance for his trouble and
expenses, that the deposit was adequate for the pur-
pose. I shall propose to omit this provision ; for
though, when the act was passed in 1841, it was
considered an additional safeguard against parties
bringing into Court unjust accounts and demands
against Defendants, it has failed in having such
eflbct ; and practical experience convinces mo of its
nutility.
i
Our Act profosiPi Jo give forms i)f procrndings
necosHary to the working of tho Act, but it hn« left
m/iny unproviflfil (or, nnd wlmt in proposed to Ho now
in respoct of ihi< Coiirli, would niHKo it inconvenient to
profess to (;ivti uli tlio necessary forrtiH ; liesidos, there
IS no necessity to give nny forrtm nt nil — iho Judges
hi'ing n()W professional persons, can fritmu the neccs-
sory forms by rule under authority given for that pur-
pose. It is better that it should be so, and we cannot
go wrong by following the Knglish Act in this respect.
I shall propose to limit tho personal siirvicu of sum-
mons to amounts above £5. No inconvenience can
arise to a Defendant for any intimation that tho
demand would be disputed, would cause the Judge,
IS he now frequently does, to adjourn tho cause, and
such nn alteration would be a great convenience to
Plaintiffs, and a great saving of expense and travel"
ling to the bailiifs.]
Section 60. Summons may issue though
cause of action may not aiise in tho District.
Section 61. Processes out of District of
Court, may be served by Bailiif of any other
Court.
Section 6S. Proof of service of Process out
of the District, or in the absence of the Bailiff.
Section 63. Demands not to be divided for
the purpose of bringing two or more suits.
Minors may sue for wages.
Cases of Partnership and in-
Section 64.
Section 65.
testacy.
[The effect of this clause is, to give the Judge zet-
tain of the powers of a Court of Equity iu matters of
partnership and legacies ; when the amount to bo
recovered does not exceed JC20, and to be settled in
a summary way, I must say that I am altogether in
favour of such a power being given to the Division
Courts, and I say so from practical observation. I
have occasionally met with cases which come within
these classes, and which I have been obliged to dis-
miss for want of jurisdiction . I can cite as instances,
persons entering into a partnership of making bricks,
and tho wholo amount of the balance in dispute
between them being only a few pounds; and again, a
couple of Shoemakers, after being in partnership a
short time, separate, and the one contends the other
has received too much for his share by some j£ 10.
To send such parties to the Court of Chancery is a
farce; and their not being able (o pay the expenses of
that Court, amounts to a denial of justice to them ;
for if they should be mad enough to do it, they would
be unable to pay the expenses of drafting the Bill and
Answer which would be required, to say nothing of the
expenses of the other interminable proceedings which
would bo required before it could be ascertained whe-
ther theone owed the other £5 or not. I have observed
an influential journal in England, advocating that such
equity powers ought not to stop there, but should be
extended to a variety o^ other cases, which, from the
amount in question is jnsidered beneath the dignity
of the Court of Chancery, or in which parties are
advised that the remedy would be worse than the
disease. I am satisfied the jurisdiction as given in
England, to say the least of it, is no more than what
parties having small demands against each other,
growing out of the settlement of their partnership
transactions or from small legacies left to them, have
a right to expect the Legislature should provide for,
when providing a remedy speedy and inoxpon«ive f(
other cases, and [ know there are a great many pe
suns to whom such a tribunal would be beneficial ao
highly advantageous. If we find, as we do, persoi
willing to try tho experiment of the Courts bavii
jurisdiction, we may well conclude that there a
hundreds of others, every year, '.vho know, or are to
that they cannot succeed, and consequently do ai
attempt it.
Section 6G. Executors may sue and be Bue(
[In thid Province, Executors have always bet
suffered to sue in the Division Courts, because tht
only sought to avail themselves of the jurisdiction
reduce to their possession what once belonged to the
testator, but which the law has vested in them ; bu
on the other hand, it has always been considered tbi
no suit could be there maintained against them i
their representative capacity. The Act is silent e
respects Executors; but as no execution could issu
de bonit teUatorii it must follow that no such judg
munt could be given . This state of the law is, an
is felt to be a great hardship. It is only within a fe
dsys past that a case occurred of a Defendant bein
sued in the District Court for s demand of £2. A
application was made to restrain the Plaintiff froi
recovering full costs, but it could not be grante(
inasmuch as he could not be sued in the Divisio
Court. An alteration of the law is very desirable i
this respect, and such an alteration, it is to be pn
sumed, will not meet with objection from any one.]
Section 67. No privilege allowed.
One of several persons liabl
Section 68.
may be sued.
Section 69. Judge alone to determine a!
questions, unless a Jury be summoned.
Section 70. Actions may be tried by a Jurj
when parties require it.
Section 7 1 . Party requiring a Jury, to mak
a deposit.
Section 72. Who shall be Jurors.
Section 73. Number of the Jury. Five t(
be sworn. Verdict to be unanimous.
Section 74. Proceedings on hearing thi
Plaintiff.
Section 75. No evidence of demand to bi
given not in summons.
Section 76. Notices to be given to th(
Clerks of special defences, who shall >^ommu
nicate the same to the Plaintifif.
[In the Schedule of fees, this duty to be performei
by the clerk is provided for. In this country he ha
never recei'ed anything. ] know no reason why h(
should be obliged to take such trouble for nothing
the pldintifF must pay the clerk for the steps in w
cause he wishes done, and upon the same principl(
so should the defendant. It a fee were given tfa<
clerk for performing this duty, we should find i
better attended to. I have known cases very fre"
quently adjourned, to enable a defendant to compl;
with the provision cf tho Act respectirig the giving
notices of defences. With respect to ',. »€ whicl
moy be adjourned, at present theclorkht. ^ f^ ^ oatdei
of trouble with the entering of the minultia i« i»' upoi
them, and again bringing the cases o >? n to t'»e nexl
court. Th
tho olork fc
expenses o|
so as in Er
tiie clerk fo
Section
tratiou.
[This pi
that the Ju
refer the s
mended to
Courts, anc
have retain
that way, 1
This clause
dor such a
Judgment,
on an appll
Section
to be fran
Section
not appea
Section
does not
judgment
[Every
want of a ]
a rehearin
trict, and a
to a defend
bo detaine
which he c
home whei
so when I
things ma^
to prove th
somewhere
the least O!
long, I do
only neccs
be remedic
in the Fro
ant proof i
that such
Section
Court. '.
Plaintiff.
[Our Sti
nature, bui
expenses
possibility
is, that at
trial, the c
is, he may
and their t
ment may
the return
that the cl
payment t<
within thri
notice, wh
I propose
to the clei
and then t
the notice.
Sectioi
examined
I inoxpoiuive f(
g.-eat many pt
)8 bonefioial ao
I we do, pertoi
e Count liavii
that there
<nuw. or are to
equontly do B^
le ond be suei
e always be<
ts, bocauie th<
a juriidiction
belonged to the
)d in them ; bu
I considered thi
igainst them i
^ct is silent b
tion could issi
it no such judg
' the law is, an
nly within a fei
Defendant bein
nd of £2. A
e Plaintiff froi
not be grantui
in the Divisio
ery desirable i
, it is to be pn
from any one.]
wed.
persons liabl
determine
loned.
ried by a Jut]
Jury^tomaki
Five ti
rors,
ury.
lOUS.
hearing th<
demand to b(
given to thi
shall oommu
to be performe(
I country be ha
) reason why h(
lie for nothing
he steps in m
same priocipl(
were given tbi
I should find
cases very fre
dant to compl;
iijg the giving
to ',,•*€ whicq
:hti fj , i^tdei
mleia I* J ii'upoij
;>wn to t^e nexf
court. Tho party nsklng for imlulKcnco ouglit to pay
tho dork for this trouMo, just an muoh uh paying ilio
expenses of tho opposite party. 1 slum proposiutodo
so as in Knglaod, provide for n sniiill foo to lio pui'J
tiie clerk for both the foregoing servicuM.]
Section 77. Suits may bo settled by rchi-
tratioM.
[This piovision I think a most excellent one, viz.,
that the Judge may, with the consent of tho parties,
refer the suit to arbitration. 1 havo often rucom-
mended to the parties such roferonce at tho Division
Courts, and they have frequently adopted it ; and I
have retained the suit, so that if they did not bouIo in
that way, I might afterwards hear ond dotormino it.
This clause, however, recognises an oward made un-
der such a reference, and gives it tho operation of a
Judgment, and is final unless the Judgo shall see lit,
on an application to !)0 made to him, tn set it aside]
Section 78. Forms of procccduro in courts
to be framed by the Judges.
Section 79. Proceedings if Plaintiff docs
not appear or prove his case.
Section 80. Proceedings if the defendant
does not appear, and power to set aside the
judgment, and grant a rehearing.
[Every Judge in (he Province will say that tho
want of a power to set aside the judgment, and grant
a rehearing, has been felt more or less in every Dis-
trict, and at every court. Some accident may happen
to a defendant to prevent hir getting to cour' ; ho may
bo detained and prevented by circumstances over
which he can exercise no control — or he may be from
home when the summons served, and continue to be
so when the judgment rendered. A great many
things may happen or take place which oro sufficient
to prove there should be a corrective power vested
somewhere. Why this evil — for evil I call it, to say
the least of it — should have been allowed to exist so
long, I do not understand ; and it appears to me it is
only necessary to mention it, in order that it should
bo remedied. I can say, and I am sure every Judge
in the Province will say the same thing, that abund-
ant proof is afforded, not once or twice, but very often,
that such a power sliould have existed long since.]
Section 82. Defendant may pay money into
Court. Notice of such payment to be given to
Plaintiff.
[Our Statute at present has a provision of this
nature, but is a very absurd one, and no guard against
expenses being entailed upon parties without the
possibility of being avoided. The law, as it stands,
is, thot at any time before the day appointed for the
trial, the defendant may pay money into court, tha:
is, he may do so after witnesses have been subpoonaed,
and their attendance cannot be prevented ; the pay-
ment may be made in the nftfi.Mon of the day before
the return day of the summons, and yet it is provided
that the clerk shall give immediate notice of such
payment to the plaintiff, and the plaintift shall signify
within three deyt after he shall have received the
notice, whether he intends to proceed fur any more !
I propose that the defendant shall make hi.> payment
to the clerk five days at least before tho return day,
and then time would bo afforded to give tho p'aintiffs
the notice.]
Section 83. Parties and others may be
{examined. •(-;•;• .,v ;..ji.. ,■
B
Section iii. Pcrtjona giving fuibo uvidonco,'
to bo guilty of perjury.
Section uH. Summonses to witnessed.
Section aO. Penalty on witnesses neglecting
summons.
Section 87. Fines, how to be accounted
for, and enforced.
Section 88. Costs to abide the event of tho
action, unless otherwise ordered by tho Judgc,^
and to be in his discretion.
Section 89. Judgmcdts, how far final.
Section 00. No action to be removed into
superior court but on certain conditions.
Section 91. Who may appear for any party
in the said courts, together with what fees and
costs shall bo allowed to Barristers and Attor-
nies.
Section 9£. Court may make orders for
payment by instalments.
Section 93. Provision where cross judg-
ments.
Section 04. Court may award execution
against goods, Uc.
Section 95. Execution not to issue till after
default in payment of some instalment, and
then it may issue for the wholo sum due.
Section 90. What goods may be taken in
execution.
Section 97. Securities seized to be held by
Bailiff, and if the execution bo not paid , the plain-
tiff may suo in the name of tho defendant on
the securities, when due.
[The Inw has always been considered by olmost
every one to be greatly deficient in giving tho plain-
tiff proper facilities and effectual remedies in reach-
ing the effects of tlio debtor after judgment has been
obtained, and rendering the same available to pay tho
amount. Tho debtor may havo tho means of suffi-
ciently and abundantly paying or securing tlio amount
of the judgment ngoinst him; but, unless his property
consists nf something which tho Bailiff could nxposo
for salo as well as seize, tlio writ of execution is per-
fectly useless. Those two clauses cnaUlc [ilaintiffs
to seize the monies and securities of the debtor, and
to hold them in payment, nnd towards satisfaction of
the judgment ; and if tho defendant does not satisfy
the demand, power is given to the plaintiff to collect
so much o" the securities, when they become duo, as
will satisfy the judgment. Why tho Inw should have
so long remained without giving creditors full right
and power to look tc, nnd make available all the pro-
nerty of the debtor, as well as a [)ortion, is not easy
to explain, and why a defendant's pockets full of
money, nnd securities for money and money duo to
him from others, should not be as available, as cir-
cumstances will admit of, to satisfy a debt which ho
owes, as his horse nnd carringe, is a question which
cannot admit of a negative answer. The alioration
in our law is loudly called for. Not n court is hold
that does not afford practical j)roof of tho necessity.
At every Division Court u multitude of questions are
10
put by suitors to iho judge, to know wiiolhei- parties '
connotseizo upon monies of ihcir doblors, which ihny
aoe paid befnrc their fures into tlie hands of tho cicik
or bailiiT, and wlioihor they cannot in some way get
at notes or securities, which are known to be in the
hands of tho debtor, luid which the debtor, doubtless,
could make avniliible to secure the amount due by
him, if he felt disposed to do so. ^ut enough at
present upon these .sections, for the matter is inti-
iHotely connected with those which follow.]
Sections 98 and 99. If the claim bo not
satisfied, or debt poid, the creditor may obtain
a summons, requiring the debtor to appear
again and answer such charges as are laid
against him, and as to his conduct in not pay-
ing the debt ; and if he shall not attend the
summons, nor allege a sufficient excuse, or
refuse to bo sworn, or make proper disclosure,
nor by his answers satisfy the Judge, or has
obtained credit from the plaintiff under false
pretences, or by means of fraud cr breach of
trust, or has wilifuliy contracted such debt or
liability without having had, at the same time,
a reasonable expectation of being able to dis-
charge the same, or shall have made, cr caused
to be made, any gift, delivery, or transfer of
any property, or shall have charged, removed,
or concealed the same, with intent to defraud
his creditors, or any of them ; or if it shall
appear to the satisfaction of the Judge, that the
party so summoned has then, or has had since,
the judgment obtained ogainst him sufficient
means and ability to pay the debt, or damages,
or costs so recovered against him, either alto-
gether, or by instalments ; and if he shall
negleet to refuse to pay the same as shall have
been ordered, it shall be lawful for such Judge,
if he shall think fit, to order that any such party
may be committed to the common gaol, or to
any prison which shall be provided as the prison
ef the court, for any period not exceeding forty
days.
[These powers not only are for the purpose of
extending the principle of making the property of tho
debtor available to the creditor, but nlso to punish
fraud committed Ly tho debtor. The want of such a
power in this country has been felt as a real griL'v-
ance by a large portion of the community. It is true
that the power to punish for fraud in certain cases
was provided for by the 8lh Sec- of Stat. 5, V, illiam
IV., and some convictions havo taken place under
that Act; but the provi.Vion falls far sho.n of what is
necessary to discover the truth, and affords no remedy
whatever to the creditor as to the matters complained
of. The whole of the circumstances of the fraud must
he provel by other than the testimony of the party,
for, unless the defendant seek tho protection or indul-
gence afforded him by different statutes providing for
such, no power is given to ask him a single question
about his property. Creditors feel that the act. is
almost a dead letter, for when property is to be made
nway with, concealed, &C5., tho intent constitutes the
crime, and that intent, unless indeed the patties
wished to run into the meshes of the law wilh their
oyes open as to tho consequences, would bo confined
Bs much as possible to tho immediate parties con-
cerned, who could not be examined as witnesses
nguinst each other, for as both arc rcndetred liable td'
misdemeanour, neither would be bound to criminate
himself. The small creditor would find, were he to
proceed under this Act, that it would cost him, to
follow up the tedious and troublesome remedy by
indictment, more than any benefit he would derive ;
besides, in case of failure, exposing himself to a mali-
ciotts prosecution in a case, too, perhaps where, if the
deiendant could havo been interrogated as provided
for by this Act, tho creditor might triumphantly hat«
succeeded in punishing the party, and have made such
discovery as would have led to the ultimate payment
of his debt.
I bad considered tho bubject upon this Act thus
far, and committed my views to paper, when, by the
kindness of a gentleman, I was referred to an article
in the January number of the Westminster Review
upon this subject, and I make the following extract
from it, the language of w}iich I think peciuliarly
applicable to thi?. Province.
"The most important change in a right direction^
that is, in the direction of public honour and hOne)ty»
is found in the Act of last sessioni entitled ' An Act
for the more easy Recovery of Small Debts and De-
mands in England,' 28th August,, 1846. But here let
it be observed, that the term small debts is likely to
suggest that the matter is one of but small and partial
importance, that it belongs but to a email and unirin-
portant section of commercial transactions ; it is not
so, but, on the contrary, it is one nf the greatest pos*
sible importance, becauce it affects the money affairs
of a very large portion (almost all) of the middle
classes of society, and, indirectly, of the humbler
ulassess too. If there be any truth in the aphorism
of Bentham — ' Maxima felieitns phirimorutn' — the
question of small debts, being a question of sulrais-
tence to nearly the whole people, and a question of
good morals into the bargain, it becomes, next to the
means by which men's lives and persons are secured
nsainat violence, a matter of grandest importance.
Poor-laws ore not mora vital to the existence of tho
working classes than are small debt iaws to the exist*
ence uf the same working classes, and the middle
classes as well. Great men can protect themselves;
great properties can protect themselves ; but smali
men and small properties (small debts especially)
mu8t bo protected by tho Ihw, or they all become
annihilated."]
Seclioii 100. P'jwer of Judge to resciad or
alter orders. .. ^.^ , ,
Section 101. Power to examine and oommit
at hearing of cause.
Section 10£. Mode of issuing and executing
warrants of commitment. ,-- <>■■■
Section 103. Imprisonment not to operatie
as a satisfaction of the debt.
Section 104. How execution may be had
out of the jurisdiction of the court.
Section 105. '•'^ower to Judge to suspend
execution in r-riaii cases.
Section lOt'. Regulating the sale of goo^
taken in execution.
Section 107. As to the liability of goods
taken in execution under 8 Ann«) chap. 17.
Lundlords may claim rent in arrcar. Bailiflb
u
ired liable i&
to criminate
, were he to
cost him, to
remedy by
ould derive;
elf to a mail-
where, if tlie
Bs provided
phantly havw
re made such
late payment
his Act thus
when, by the
to an article
ister Review
wing extract
ik peculiarly
ght direction^
and hOnelty,
tied ' An Act
abts and De-
But here let
Is is likely to
all and partial
all and uniili-
lons ; it is not
greatest poB<
money affairs
the middle
the humbler
:be aphorism
inioi-um'— the
ion of subsis-
a question of
8, next to the
3 are secured
t importance,
istence of the
rit to the exist*
d the middle
:t themselves ;
es ; but small
is especially)
!y ail become
o resciBd or
and oommit
id executing
t to operate
may be had
•
to suspend
ale of goods
ty of goods
\e, chap. 17.
!ar. Bailiflb
making levies may distrain for rent and costs.
In cases of replevin.
Section 108. No execution shall be stayed
by writ of error.
Section 109. Execution to be superseded on
payment of debt au^ costs.
Section 110. Debtor to be discharged from
custody upon payment of debt and costs.
{I may introduce here some remarks about the
facility of parties removing theii goods bofore any
judgment can be obtained, and so defeat the claims
of creditors. Instances have frequently occurred
where a defendant has either been served with sum-
mons or apprehended ha would, and packed up his
goods and removed them out of the province. One
of the first cases brought under my notice in the
Division Court, was of this description : the defen-
dant, a few days before the sitting of the court, re-
moved the whole of his effects to the States and
defrauded his creditors, who had sued hiiri for various
small sums, amounting in the whole to nearly j£50.
Other cases have come under my notice since that
time of a similar thing being done, and the number of
such cases it is impossible to say, inasmuch as when
plaintiffs find themselves placed in a position where
they incur expenses witliQut any prospect of payment,
they generally abandon further proceedings. I pro-
pose that the plaintiff shall be allowed, upon making
affidavit of the truth of his debt, and that the party is
about to remove his goods, which shall be cunfirmed
by some one not a creditor of the defendant, to obtain
from the Clerk a warrant of attachment, to enable
the Bailifi* to seize and detain the goods till judgment
given, or the Judge make other order in the matter.
If the defendant give security to abide the judgment,
to have his goods restored to him, and that the Judge
shall be invested with power to inquire, at the hear-
ing of the cause, whether there were grounds or not
to detain the defendant's goods, and if ho think not,
to compensate the defendant for any injury he has
sustained. The facility of removing goods and
effects beyond the power of the courts is so great iii
'^s country, and there being no right to arrest for
less than j^lO, it seems to be absolutely necessary to
protect creditors in small debts by some provision of
this kind.]
Section 111. Minutes of proceedings to be
kept..
Section 112. Suitors' monies unclaimed in
six years, tu go to the general fund.
Section 113. Power of committal for con-
tempt.
Section 114. Penalty for assaulting Dailiiftj,
or rescuing goods takon in execution.
Section 115. Bailifilr: made answerable for
escapes and negiect to levy execution.
Section 116. Remodie.s against, and penal-
ties on, Bailiffs ard oth«rotiicers for misconduct.
Section 117. Penality on otiicers taking fees
besidea those allowed. ^
Section 1.8. Claims as to goods t8!"n in
excRution to be adjudicated in court.
[This provision is of the nature of the interpleader
law, of which Sheriffs can avail themselves when
claims aro made (o goods seized by them, I consider
this a most excellent provision for all parties. Claims
are made upon goods seized by tho bailiff constantly —
the bailiff is unwilling tn proceed to sale without an
indemnity — the plainiitf does not know what to do:
he cannot learn the facts upon which the claim is
based, for the parties studiously avoid giving him any
information, and thus he is placed in the position a{
either being compelled lO give an indemnity, and run
tlie risk of being sued upon it ; or he must tell tho
bailiff to find out the truth of the claim in the b^st
way he can, and take his remedy against the bailiff,
if he thinks he can succeed. The plaintiff r^ay exer-
cise some choice, and abstain fiom pressing; but the
bailiff has no choice, he must necessarily expose him-
self tu the claims of one or other of the parties. Tho
interpleader Act affords the Sheriff a protection ; but
at present there is no protection or means given
of ascertaining the claims of parties upon a Division
Court execution. Suits and complaints are brought,
and made constantly in consequence of the want of
a summary power to settle these claims. It is
obvious that if it be necessary to protect small debts,
by giving an easy remedy for their recovery, it is
equally necessary to afford a summary remedy to
ascertain clnim.^ on the means of paying those debts
to the extent of tho demand.]
Section 119. Actions of Replevin may be
brought without writ.
Section 120. Plaints where to be entered.
Section 121. How actions of Replevin may
be removed.
Section 122. Possession of small tenements
may be recovered by Plaint in County Court.
If tenant, fac, neglect to appear or refuse to
give possession, Judge may, on proof of ser-
vice of summons, issue a warrant to enforce
same.
Section 123. The manner in which sdch
summons shall be served.
Section 124. Judges, Clerks, Bailiffs, or
other ofHcers not liable to actions on account of
proceedings taken.
Section 125. Where Landlord has a lawful
title, he shall not be deemed by reason of irreg-
ularity.
Section 126. How execution of warra.'t of
possession may be stayed.
Section 127. Proceedings on the bond for
staying warront of possession, fcc.
Section 128. Concurrent jurisdiction with
superior Courts.
[The foregoing ^eciions contain provisions with
res])ect to overholding tenants, and how landlords are
to proceed in such cases before tho small courts. We
have provisions bj c jr laws now in force for that pur-
pose, and ns I have not heard complaints against the
system, I suppose it has been found to be sufficient.]
Section 129. As to actions brought for
small debts in superior Courts.
[This section renders it compulsory at tlic risk of
costs, to bring suits, if founded on contract when the
verdict shall be less than £20 in the County Court ;
n
and actions if founded on tort when the verdict shall
ha leas than £5, The effect of this is, that plaintiffs
in actions of tort may go to the County Court, if they
please, for claims less than £20, but are not com-
pelled to do 80 for less than £5. I propose to leave
the provision respecting costs in actions founded on
contract as it is at present. This will not render it
compulsory upon plaintiffs to sue for demands be-
tween £10 and £20 in the Division Court — they
may do it if they please ; and I.shall propose a clause
giving the defendants a right to apply to the Judge
of the District Court, or a Judge of the Queen's
Bench, to remove the suit upon terms that may be
thought right between the parties. In like manner
with actions founded on tort, I shall propose it bo
compulsory in cases below £ 5, that they be sued in
the Division Court; but between £5 and £10, the
plaintiff may bring his suit there if he pleases, and the
defendant may remove the suit, as in other cases.]
Section 130. Penalties and costs to be
recovered before a Justice, and levied by distress.
Section 131. In default of security, ofTender
may be detained till return of w .rrant of dis-
tress.
Section 132. In default of distress, offender
may bo committed.
Section 133. Penalties not otherwise applied,
to be paid into the general fun do
Section 134. Justices may proceed by sum-
mons m the recovery of penalties.
Section I3b. Form of conviction.
Proceedings not invalid for
Distress not unlawful for
Section 136.
want of form.
Section 137.
want of form.
Section 133. Limitation of actions for pro-
ceedings in execution of this Act.
Section 139. Provision for the protection of
officers of the Court.
Section 140. Act not to affect rights of
Universities of Oxford and Cambridge.
Section 141 . Nothing to affect the Courts
of the Wardens of the Stanneries.
Section 142. Interpretation of Act.
Section 143. Act may be amended, &ic.
[I shall now lay before the public the draft of an
entire new bill, amending the Act of 1341 and subse-
quent Acts, upon the basis of the English Act, and
the observations 1 have made upon some of its clauses.
The clauses have been framed with reference to the
practical working of the present system, and I am
convinced the alterations will be found beneficial to
the commercial as well as every other part of the
community. My opinion, however, is but one among
thousands who may consider the question ; and for
that reason I place it before the public in order that
its various provisions may be well digested before
alterations be adopted. By way of illustration of the
practical use of the Division Court, and how it may
tend to assist in adopting provisions for extension and
amendment, I subjoin a statistical tabic, kept for tho
Home District, for tho year 1846 :—
Statistical Account of the business in the Divi-
sion Courts of the Home District, from 1st
January to 3lst December, 1846.
00--)0>&nrfkMtS>-
crB-B-sra-fcg,"
ooooDgqO
■*. *. £. ■*. ■*. ■*
o o 5' o' 5' 5' S
s a a s a 3 B
at
Number of suits coei-
tested when amounts
ordered to Plaintiffs.
CO
^9
to in io "^ tS io t-" V>
it>00N^tO'«<00^O>
The amount awarded
to Plaintiffs when
contested.
CO
• • t-» H-i-oa f to
Number of suits
contested when sums
ordered to Defendants.
it
to
Oi
i<5
0> Oi O CO tS O
O O CO O) CO cn
O O to W Oi OS
The amount so
awarded to Defendants.
69
a*
to ^ ea to (ji to to CD
cnoscoo9C;icicoo
Number of suits con-
tested when judgments
for Defendants.
CD
CO
to
OTOlOSODOSOOStO
OOOSOjOJ'^COtn
Total of contested suits.
CO
1)9 w ta h^ 63 00
oitnotocotoeoco
Orfki(k-vico©«ieo
Number of suits when
judgments for
Plaintiffs by default.
CO
o
to
_ — ^- CO
•-'tOi->i—COi*«.030i
COOOSOiCnt—OSia
OlOCn*^-^aOr-C/I
cotSMOi->Cnco^
H-00©CO«OOlOOOJ
The amounts so
awarded to Plaintiffs.
CO CO
tCi OQ i4^
Ul >-• o
h-i k-i 4^
o tu o
O *^ OJ
Number of suits when
the suits have been
paid or settled.
CO
CO
to
» ts
a> en
CO en
CO iCk tl^
C5 ^ ^
M en CO
o eoH-
en CO VI
ta CO >-i
en CO ,tk
to 1^ CO
en rfk CO
CO CO to
The amount of suits
so paid and settled.
Hi
CO
CO
CO
en
to
05 en
■(Ik o
•vi CO en
o en iCk
CO en oD
1 OS O M
' to to h'
Hi
H-' en
^ i*k »-
OS O itk
CO O CO
OS *^ CO
C3S CO CO
Total amounts.
S5
o
o o
Ks a a
»0 ffl «
Number of Jury cases.
aaaaaaasp
CD>0(DOA(DCrCr*
PSPPPPOO
>g <inen- • gH*
Proportion that
litigated cases Iwar of
those upon which
judgment rendered.
in Act t
Act,
part c
Can.a(
Debts
Wherea
iduce into
tat part
!anada, foi
lake othei
nacted by I
and wi
iCgislative
Assembly (
uted and t
uthority c
he Unite*
reland, inl
inces of t
[overnmer
y the autl
nay be lav
Ach Distri
Canada
imits and
nore than
istricts; t
he forego
liter the
livisions:
)De Divisii
rict Towi
inder this
very such
awful for
Courts res
ind the pli
it which s
ike roann
lame.
II. And
tach Dist
he times i
ind all alti
ime made
md record
took tc be
ihall be hi
)f this P
ecord as
nade.
III. An
UBsembled
lumber th
)er one ; i
» in the Divi-
iet, from 1st
)f suit8 COb-
BD amounts
Plaintiffii.
int awarded
Ts when
if suits
when sums
I Defendants.
nt 80
.0 Defendants.
f suits con-
en judgments
lants.
ontested suits.
if suits when
I for
by default.
ints so
to Plaintiffs.
if suits when
]ave been
ttled.
nt of suits
id settled.
lunts.
.. -'t?!.
f Jury cases.
I that
ises bear of
I which
rendered.
13
lD Act to amend and reduce into one
Act, the Laws now in force in that
part of this Province formerly Upper
CanadH, for the Recovery of Small
Debts.
Whereas it is expedient to amend and
iduco into one Act the laws now in focce in
lat part of this Province formerly tJpper
lanada, for the recovery of small debts, and to
lake other provisions therefor: Be it therefore
nacted by the Queen's Most Excellent Majesty,
J and with the advice and consent of the
egislative Council and of the Legislative
Assembly of the Provmce of Canada, consti-
uted and assembled by virtue of and under the
uthority of an Act passed in the Parliament of
he United Kingdom of Great Britain and
reland, intituled * An Act to re-unite the Pro-
inces of Upper and Lower Canada, and for the
overnment of Canada;' and it is hereby enacted
y the authority of the same, That it shall and
jay be lawful for the Justices of the Peace of
ach District, now or hereafter to be erected
Canada West, to declare and appoint the
imits and extent of not less than three, nor
nore than nire divisions within their respective
istricts; and from time to time, but subject to
le foregoing restrictions, in like manner to
Iter the number, limits and extent of such
ivisions: Provided always, that there shall be
>ne Division Court held in every City and Dis-
rict Town; and that a Court shall be holden
mder this Act once in two months in and for
(very such Division; and it shall and maybe
awful for the Judge presiding over the said
ourts respectively, to fix and appoint the times
,nd the places within such divisions when and
which such Courts shall be holden, and in
ike manner from time to time to alter the
ame.
n. And be it enacted, That the Divisions of
ach District so declared and appointed, and
le times and places of holding such Courts,
ind all alterations that may be from time to
ime made therein as aforesaid, shall be entered
ind recorded by the Clerk of the Peace, in a
look tc be by him kept for that purpose; and it
ihall be his duty to transmit to the Governor
>f this Province, a copy of such entry and
ecord as soon as the same shall have been
nade.
in. And be it enacted, That the Justices so
iBsembled as aforesaid, shall be required to
lumber the said Divisions, beginning at num-
ter one ; and that the Court to be held in each
Mvision shall be known by the name and style
The (first or other as the case may be^
!)ii»«ton Court for the District of -.
IV. And be it enacted, That the Judges of
le District Courts of the several Districts in
Canada West, shall preside over the Division
Courts within their respective Districts, and no
such Judge shall, during the continuance of
his appointment be capable of being elected, or
of sitting as a Member of the Legislative
Assembly of this Province ; and every Court
holden under this Act shall be a Court of
Record.
V. And be it enacted. That in case of the
illness or unavoidable absence of the Judge of
any such District Court, it shall be lawful for
such Judge to appoint some other person, who
would be otherwise qualified to be appointed a
Judge of such District Court, to act as hia
Deputy; and every person so appointed shall,
during the timo for which .-S shall be so
appointed, have all the powers and privileges,
and be subject to all the duties of the Judge
by whom he shall have been so appointed :
and notice of every such appointment shall be
forthwith sent by the Judge or Deputy Judge,
to the Governor of this Province, and such
notice shall specify the name, residence and
profession of the Deputy Judge, and the cause
of his appointment, and no such appointment
shall be continued for more than one calendar
month without a renewal of the like notice :
and it shall be lawful for the Governor to annul
any such appointment of which he shall dis-
approve.
VI. And be it enacted, That for every Court
holden under the authority of this Act, there
shall be a Clerk, and one or more Bailiffs ; and
the Judge of the District Court shall from time
to time appoint, and at his pleasure remove, the
Clerk and Bailiffs of the Courts holden by him.
VIL And be it enacted, That the Judges of
the said District Courts in their respective
Districts, shall be authorized and required to
perform all such duties in, or relating to any
causes or matters depending in the Court of
Chancery for that part of this Province formerly
called Upper Canada, necessary or proper to be
done in their respective Districts, as the Vice
Chancellor o*" the said Court of Chancery shall
from time to time by any general order direct,
and for this purpose and subject to the general
rules and orders of the said Court, shall have
and exercise all such authorities as may be
exorcised by the Examiners, Masters Extra-
ordinary and Commissioners, or other offirers
of the said Couit by whom such duties are now
usually performed ; and shall be entitled to
receive the same fees and sums of money as are
now payable in respect thereof, to be accounted
for and applied by them, bj the other fee»
authorized by this Act to be received, are
directed to bo accounted for and applied r
Provided ahcays, That the future amount of
such fees shall continue subject to the same
authority for revising the same, to which it is
now subject.
VIII. And be it enacted, That no person who
is an articled clerk, or a practising attorney
ii ii« «' i in iiii «'i i >' ' -n' . « ii i »
3EM
li
shall hereafter be appointed ag Clerk in any
Court holdoi? under this Act, and that every
Clerk of such Division Courts shall be paid by
foes, as hereinafter provided, and that it shall
be lawful for the Clerk of every such Division
Court [with the appro >'al of the Judge thereof]
to appoint from time to time a deputy to act
for him in the office of the Clerk of tlie Court, at
any time when he shall be prevented by illness
or other unavoidable accident from acting in
such office, and to remove such deputy at his
pleasure ; and such deputy, during the time for
which he shall be so appointed, shall have the
like powers and privileges, and be subject to
the like duties, as if he were the Clerk of the
Court for the time being, and the Clerk of the
Court shall be civilly responsible for all the acts
and omissions of his deputy.
IX. And be it enacted, That the Clerk of
each Division Court shall issue all summonses,
warrants, precepts, and writs of execution,
and register all orders and judgments of the
Court, and keep an account of all proceedings
of the Court, and shall take charge of, and
keep an account of, all Court fees and fines
payable or paid into Court, and of all suitors'
monies paid into and out of Court, and shall enter
an account of all such fees, fines and monies
in a book to be kept by him for that purpose,
which book shall be open to all persons desi-
rous of searching the same, on payment of
one shilling for each search ; and it shall be the
duty of the said Judges to mspcct and examine
the quarterly accounts [the said Clerks making
such quarterlyreturns as may be directed and ap-
pointed by tiie Governor] of the several Clerks
within the District of every such Judge, of the
fees and monies received by them, and to com-
pare such accounts with the book required to
be kept by the Clerk, and with the accounts,
papers, and minutes of proceedings ; and such
Judge shall certify, on each such account, that
he has examined the same, and believes it to
be correct, or if he does not believe it to be
correct, he shall state his objections thereto,
and the Clerk shall therefore forward the
account, with such certificate, to the Treasurer
of his District.
X. And be it enacted, That the Bailiffs shall
attemi every sitting of the Court, and shall
serve all summonses and orders, and execute
all the warrants, precepts, and writs issued out
of the Court ; and the Bailiffs shall, in the
execution of their duties, conform to all such
general rules as shall be from time to time made
for regulating tlie procedings of the Court, as
hereinafter provided, and subject thereunto to
the order and direction of the Judge ; and the
said BaililTs shall be entitled to receive all fees
and sums of money allowed by this Act in the
name of foes payable to the Bailiff; and every
such BailiflT shall be responsible for all the acts
and defaults of himself, in like manner as the
ShcrifT of any District ia responsible for tli , j^^y j
lessen th
acts and defaults of him-.oif and his officers.
XI. And be it enacted, That the Treasure
Clerk, and Bailiff of every Court holden und(
this Act, who may receive any monies in th
execution of his duty, shall give security f( g scale of
such sum, and so many sureties, and in sue jt be not ii
manner and form as the Governor of this Pr(
vince shall see reason to direct, for the du
performance of their several offices, and for th
due accounting for, and payment of all monic
received by them under this Act [or which the
the Clerk
him shall
any or eit
XIV. Am
every Dis
fees of th(
ietrict; an<
id a per c
may become liable to pay for any misbehavioi inured pou
in their office.] gg of the (
XII. And be it enacted, That there shall b eneral, an
payable on every proceeding in the Court irtain ealar
holden under this Act, to the Judges, Clerk ) case mor
nad Bailiffs of the several Courts, such fees a eluding th
are set down in the schedule to this Act ai Vic. ch.
nexed, or which shall be set down in any schfl ^^^} ^^ ^^e
dule of fees reduced under the power herein iving due
after contained for that purpose, and non iveral Dis'
other ; and a table of such fees shall be put u » the Judgi
in some conspicuous place in the place wher 'all occur
the said Court shall be holden, and also in th ithority b]
Clerk's office ; and the fees on every proceed 'e amount
ing shall be paid, in the first instance, by tb 'on the co
plaintiff or party on whose behalf such proceed XV. Ant
ing is to be had on or before such proceedin| ich Divisi
and, in default, payment thereof shall be en id as oftei
forced by order of the Judge, by such ways an te Traasui
means as any debt or damage ordered to b ( every th
paid by the Court can be recovered ; and th cciouht in '
fees upon executions shall be paid into Cour lourt unde
at the time of the issue of the warrant of exe ke accoun
cution, and shall be paid by the Clerk of tb nd of the :
Court to the Bailiff, upon the return of th ke accoun
warrant of execution, and not before. Providet eived out
a^ifa?/s, that if the BailiflT shall neglect or refaa 'laintiffs ii
to make a return within the time required b nd decree
law of any summons, order, precept, or war le Court,
rant of execution, or other process, he shall » Court be
for each such neglect, forfeit his fees on sue! nts; and t
summons, order, precept,' or warrant of execu f such fir
tion, or other process ; and all fees so forfeited och Clerk,
shall be accounted for, and paid by the Clerk o uch sum o
the Court to the Treasurer of the District, t y order of
form part of the general fee fund. xpenditur
XIII. And be it enacted, That it shall an ^^^^ ^^^^^
may be lawful for the Governor of this Provinci ^^^ ^^^^
at any time hereafter, whenever the aggregat ^^^ pund
amount of the fees payable into the fee funi ^^. ^
under this Act, in the different districts o - "f.
Canada West, together with the fees payabli 1® .1**"^
to the same fund under the present Diatrii**' *"* ^^^
Court Acts, or under any other Act now i
force, or hereafter to be passed, shall be naoi
than sufficient to pay the salaries of the differ]
ent Judges of the said District Courts ; i
lessen the amount of the fees to be taken foi
the Judges in the Courts holden under this Aci
in such manner as to him shall seem fit, «ni
qu(
lade by t]
e same t(
f this pro
iOnies are
to the 3(
rend(
ar,
vince a
eived (
15
ijn nffloAro '° ''^ °^°y '"''"^ ^^*®' *^° passing of this Act,
lessen the amount of the fees to bo taken
the Clerks and Bailiffs, or either of them, as
him shall eeem iit, and again to increase ail
any or either of the foregoing fees, so that
security f( g scale of fees given in the schedule to this
and in sue ;t be not in any case surpassed.
XIV. ^nd be it enacted, That the Treasurer
every District shall be the Receiver General
fees of the several Division Courts within iiis
lis officers.
he Treasure
holden und(
monies in th
r of this Pn
for the du
es, and for th
i-k°k" '8*"'^*'» *"^ every such Treasurer shall be
°^ -"hu • '^ ** P®*^ centage of three pounds on every
misbehavioi nyjred pounds of the gross produce of the
ea of the Courts of which he is the Receiver
there shall b eneral, and every Judge shall be paid by a
the Court irtain salary; the salary of a Judge being- in
idges, Clerki ) case more than £ or less than £
such fees a eluding the salary already mentioned in the
this Act an Vic. ch. 13, and the Governor in Council
in any sche i&ll ^x the salaries to be paid to the Judges,
power herein iving due regard to the population of tlio
se, and non iveral Districts; and the salaries to be paid
hall be put u • the Judges may be increased, or cs vacancies
le place wher »all occur may be diminished, by the same
nd also in th ithority by which they shall be first fixed, nnd
jvery proceed ie amount of such salaries shall be charged
stance, by th 'on the consolidated fund of this province,
such proceed XV. ^nd be it enacted, That the Clerk of
:h proceedinj ich Division Court shall, from time to time
' shall be en id as often as he shall be required so to do by
Buch ways an te Treasurer of his District, and at least once
ordered to b i every three months, deliver to him a full
n
ered ; and thi
iCouht in writing of the fees received in such
id into Cour ourt under the authority of this Act, and a
warrant of exe ke account of all fines levied by the Court,
Clerk of thi nd of the expenses of levying the same, and a
return of thi ke account of the monies paid into and re-
bre. Provider eived out of Court by the Defendants and
gleet or refub laintifFs iu the said Court, under any orders
le required b nd decrees of the Court, or under process of
cept, or war le Court, and of the balance then remaining
;ess, he shull i Court belonging to the PlaintiflTs or Defend-
fees on suci nts; and the amount of such fees and balance
rant of execu f such fines, from time to time received by
3S so forfeited uch Clerk, shall be paid over, after deducting
y the Clerk o uch sum or sums as the Clerk shall be allowed,
he District, t( y order off Court, to retlin for the current
xpenditure of the Court, from time to time
it sh 11 an ° ^^^ Treasurer (such payment being made at
jast
' , • p . sast once in every three months), and shall
iDis rrovinci ^^^ . ^j. ^ ^^^^^ ^^ ^^ ^^^^^^ ^^^ General
the'^fSTn! '^^ ^'""^ °^ ^^^ HWmon Courts,
t districts o ^^'' *^'"' ^^ *' enacted, That the Treasurer
fees payabli '"^very District shall, after the receipt by him
esent Distric ^ ^^'^ quarterly or other payments so to be
• Act now ii ""^^ ^y ^^^ Clerks as provided for, pay over
shall be mori '>6'"i'no to the account ofthe Receiver General
J (jf tjjg ^jflfgj f this province, in like manner as other public
t Courts • t( "*'*'®8 are paid over; and also shall, on or be-
be taken fo *^° *^® ^^^ ^""^^ *"^ ^^^* December, in every
nder this Act **""» ^^^^'^^ to ^^^ Inspector General of this
seein fit «!» ''^^'•'c® * true account in writing of all monies
' pceived on account of the Division Courts
liolden under this Act, during the period com-
prised in such account, in such form and with
such particulars as the said Inspector General
shall from time to time require, and shall within
ten days after the rendering of every such
account pay over the amount of any monies so
received as aforesaid to the Receiver General
of this province, in manner as aforesaid, which
mr:y then remain in his hands; and if default
shall be made in such payments, the amount
due by the Treasurer shall be deemed a speci-
alty debt to her Majesty.
XVil. And he it enacted, That the accounts
to be kept by the several Treasurers on account
of the said Courts, shall be deemed public ac-
counts, and shall be inquired into nnd audited,,
and shall be within any provision of law now or
hereafter to be in force for auditing public
accounts.
XVIII. And be it enacted. That if any person
havin^j; resigned, or having been removed from
the office of Treasurer, or of Clerk of a Divisioa
Court, shall neglect, after twenty-one day's
notice to such person, which notice the Judge
shall cause to be given, to account for and pay
to the Receiver General of this province, or the
Treasurer of the District for the time being,
all such sums as shall remain in his hands of
monies received under the authority of this
Act, it shall be lawful in the case of the Trea-
surer to proceed as in ordinary cases of debtors
to the Crown, and in the case of a Clerk of any
Division Court, for the Treasurer for the time
being, in his own proper name only, or by his
name a.id description of office, to sue for and
locover the same from such person, with double
costs of suit, in any Court of Record in this
])rovince having competent jurisdiction, by ac-
tion of debt; in which action it shall be suffi-
cient for such Treasurer to declare as for
money had and received to the use of such
Treasurer, for the purposes of this Act; and
the Court in which the action shall be brought
may, at the instance of either of the parties,
refer the account in dispute in a summary way,
to be audited by any officer of the Court or
other fit person, who shall have power to exa-
mine the parties and all witnesses upon oath;
and upon the report of the referee (unless either
of the parties shall show good cause to the
contrary), the Court may make a rule either
for the payment of such sum as upon the report
shall appear to be due, or for staying the pro-
ceedings in tho action, and upon such terms
and conditions as to the Court shall appear
reasonable; or the Court may order judgment
to be entered up as by confession, for such sum
as upon the report shall appear to be due.
XIX. And he it enacted, That in all actions
to bo brought, as well as in all proceedinga
whatsoever to be instituted or carried on by
any Treasurer, by virtue of this Act, proof of
IC
n
hie acting in the execution of the office of
Treasurer, shall be sufficient evidence of liis
holding Buch office, unless the contrary shall
be shown in evidence by the defendants in such
actions, or the parties against whom such pro-
ceedings shall be instituted and carried on.
XX. Jlnd be it enacted, That for every
Court holden under this Act, there shall be
made a seal of ihe Court, and all summonses
and other process issuing out of the said Court
shall be sealed, or stamped witii the seal of ihe
Court ; and every person who shall forge the
seal or process of the Court, or who shall serve
or enforce any such forged process, knowing
the same to be forged, or deliver, or cause to be
delivered to any person, any paper falsely pur-
porting to be a copy of any sumr.ions, or other
process of the said Court, knowing the same to
be false, or who shall act, or profess to act,
under any false colour or pretence of the pro-
cess of the said Court, shall be guilty of felony.
XXI. And he it enacted, That all pleas of
actions founded on contract, where the debt or
damage claimed is not more than ££0, whether
on balance of account or otherwise, and ail
pleas of actions founded on tort, respecting per-
sonal property, where the damage claimed is
not more than £10, may be holden in the
Division Courts under this Act without writ :
and all such actions brought in the said Courts
shall be heard and determined in a summary
way : Provided always, That the said Courts
shall not have cognizance of any action in
which the title to lands, or to any corporeal
or incorporeal hereditaments, or to any toll,
fair, market, or franchise, shall be in question,
or in which the validity of any devise, bequest,
or limitation under any will or settlement maybe
disputed, or for any breach of promise of mar-
rioge, or for any gambling debt, or for any
spirituous or malt liquors drunk in a tavern or
aJe house.
XXII, And be it enacted, That the plaintiff,
in any suit brought in any Division Court, shall
enter a copy of his account or demand in writ-
ing, wherein he shall state the defendant's
nanne at length, and his place of residence,
which shall be numbered according to the order
in which it shall be entered, and thereupon a
Bunnmons, stating the substance of the cause of
action, and bearing the number of the account
or demand on the margin thereof, shall be
issued under the seal of the Court, according
to such form as shall be directed by the rules
made for regulating the practice of the Court,
as hereinafter provided ; and a copy of such
summons, to which shall be attached a copy of
such account or demand, shall be served on the
defendant eight days at least before the day on
which the Division Court shall be holden, at
which the cause shall be tried ; and delivery of
such copies of summons and account, or demand
to the dcfondanS or delivery thereof to hi
wife, or servant, or any grown person, being o
inmate of his dwelling-house, or usual place
abode, trading or dealing, shall be deemed
good service of such summons. Provide
always. That personal service on the debtor
such summons shall bo ' necessary in all case
where the amount sued for exceeds the sum o vages or
five pounds. « the san
XXIII. And be it enacted, That all suit ^^Y\\
brought under this Act shall be tried at thi ege shall
Court holden for the Division, wherein th(
auso of
hall be m
XXVII
awful for
»ne years,
curt und
reater th
lira from
IS in the I
any super
XXXI.
)laintiffsl
ible unde
sons, par
Einswerabl
defendant, or where there shall be more thai 'y_'^_.
one defendant, wherein any one of the defend
ants shall dwell, or carry on his business at th(
time of entering the account or demand, or a jxtend to
the Court holden for the Division within whicl ceeding tl
the debt was contracted, or tort committed. )art of t
XXIV. And be it enacted, That any summoni ''^J™"^
or other process which, under this Act, shal ' " ^ "
be required to be served out of the Divison from ^"^ ^^^'
which the same shall have issued, may be ^~Ty
served by the bailiff of any other Division, and ^wful for
such service shall be as valid as if the same had '"^ "® ^^
been made by the bailiff of the Court out of ° "ke ma
which such summons or other process shall right and,
have issued within the jurisdiction of the Court
for which he acts.
XXV. And be it enacted. That service of
any summons or other process of the Court
which shall require to be second out of the
Division, may be proved by affidavit, purporting
to be sworn before any commissioner for taking ,
affidavits in the Court of Queen's Bench, in P^fsons n
Canada West ; and the fee for taking suchE'?*^
affidavit shall not be more than one shilling ;
and it shall be the duty of the Bailiff serving
such summons to state, in such affidavit, the
number of miles travelled to make such service,
and to transmit by the post the original dum
mens, together with such affidavit immediately
after the service thereof, ♦o the Clerk of the
Court from which the sa.ue was issued ; and
the expense of postage, and also postage in the
transmitting the summons for service, if any,
together with the fee for swearing the affidavit
of service, shall be costs in the cause, and be
allowed in any judgment to be rendered for the
plaintiff.
XXVI. And be it enacted, That it shall not
be lawful for any plaintiff to divide any cause of
action into two or more suits, for the purpose
of bringing the same within the jurisdiction of
any Divinion Court ; but any plaintiff having a
cause of action above the value of £20, for
which a suit might be brought under this Act,
if the same were not above the value of £S10,
may abandon the excess, and thereupon the
plaintiff shall, on proving his case, recover to
an amount not exceeding £2,0, and the judg-
ment of the Court upon such suit shall be in
full discharge of all demands in respect of such
the persoi
ing that c
served or
diction ol
against w
tained uni
tied such
md recov
Act, cont
iable wit
xxxu
oftheDi
shall be t
in the Di'
questions
Jury be s
and no si
to hold
olden ui
XXXI
actions ^
£2 10s.,
defendan
try the s;
Jury sha
visions h
Providei
horoof to hi
being n
irson
>
usual place
bo deemed
3. Provide^ne
1 the debtor
•y in all case
ds the sum
vages (
n
?hat all suit
) tried at th
wherein th
be moro thai
of the defend
jusiness at th
demand, or a
within whicl
committed.
any summoni
his Act, shal
) Divison from ^"^
3ued, may be
Division, and
r the same had
Court out
process shal
I of the Court
lat service o
of the Court
d out of the
fit, purporting
»ner for taking
n's Bench, in
' taking such
one shilling
kiliff serving
L affidavit, the
3 such service,
original dum
t immediately
Clerk of the
s issued ; anc
postage in the
ervice, if any
g the affidavit
cause, and
ndered for the
at it shall not
^ any cause ol
the purpose
jurisdiction of
intiff having a
! of £20, for
ider this Act,
ralue of £20,
bereupon tike
e, recover to
nd the jadf
lit shall be m
ispoctofsueh
It
lause of action, and toe entry of judgment
hall be made accordingly.
XXVII. ^Tid he it enacted, That it shall bo
awful for any person under the age of twenty-
years, to prosecute any suit in a Division
ourt under this Act, for any sum of money not
reater than £20, which may bo due to liim for
or piece-work, or for work as a servant,
n the some manner as if he were of full age.
XXVHI. winrf be it enacted, T^^at no privi-
ege shall be allowed to any person to exempt
lim from the jurisdiction of the Courts created
>y this Act.
XXIX. And be it enacted, That the jurisdic-
ion of the Division Courts under this Act, shall
ixtend to the recovery of any demand not ox-
seeding the sum of £20, which is the whole of
>artof the unliquidated balance of a partnersliip
iccount, or the amount or part of the amount or
distributive share under an intestacy, or of
legacy under a will.
XXX. And be it enacted, That it shall be
awful for an Executor or Administrator to sue
nd be sued in any Court held under this Act,
like monner as if he were a onrty in his own
right and judgment, and execution shall be such
IS in the like case would be given or issued in
any superior Court.
XXXI. And be it enacted, That where any
laintifF shall have any debt or demant' recover-
able under this Act, against two or more per-
sons, partners in trade or otherwise jointly
sinswerable, it shall be sufficient if any of such
jcrsons be served with process, and judgment
may be obtained and execution issued against
the person or persons so served, notwitljstand-
ing that others jointly liable may not have been
served or sued, or may not be within the juris-
diction of the Court; and every such person
against whom judgment shall have been ob-
tained under this act, and who shall have satis-
fied such judgment, shall be entitled to demand
md recover in the Division Courts under this
Act, contribution from any other person jointly
iable with him.
XXXII. And be it enacted. That the Judge
f the District Court, or his deputy as aforesaid,
hall be the sole Judge in all actions brought
n the Division Courts, and shall determine all
questions, as well of fact as of law, unless a
ury be summoned as hereiiiatter mentioned ;
nnd no suitors shall in any case be summoned
to hold or have any jurisdiction in any Court
' olden under this Act.
XXXIII. And be it enacted, That in all
actions where the sum claimed shall exceed
£2 10s., it shall be lawful for the plaintiff or
defendont to require a Jiry to be summoned to
try the said action ; and in every such case a
Jury shall be summoned according to the pro-
visions hereinafter contained to try such action :
Provided always, That if the Plaintiff require
be
a Jury to be summoned, he shall give notice in
writing to the Clerk of the said Court at the
time wlieii he shall enter liis account or de-
jmand; and the summons shall be marked in
! the margin thereof by the Clerk, with the
j words " Jur^'^ Case;" and if the defendant shall
j require a Jury to be summoned, he shall give
notice in writing to the Clerk, within five days
after service of the summons on the said
defendant, and the Clerk shall cause a copy of
such notice to be communicated to the plaintiff
either by post, or causing the same to be deli-
vered at his usual place of abode or business;
but it shall not be necessary to prove on the
trial that such notice was communicated.
XXXI V. And be it enacted, That any party
requiring a Jury to be summoned, shall at the
time of giving the notice hereby required, and
before he shall be entitled to have such Jury
summoned, pay to the Clerk of the Court such
sum of money as is set down in the schedule of
fees for the time being, for or towards the pay-
ment of the expenses of said Jury.
XXXV. And be it enacted, That the causes
which are to be heard by the Judge alone, shall
be set down for hearing in a separate list from
the list of causes which are to be tried by a
Jury, which two lists shall be severally called
« The Judfie's List," and " The Jury List;" and
and the causes shall be set down in such lists
in the order in which they were entered in the
first instance with the Clerk of the Division
Court; and "The Jury List" shall be first dis-
posed of, and then "The Judge's List."
XXXV I. And be it enacted, That the Clerk
of the Peace in every District shall deliver, or
cause to be delivered, to the Clerk of each
Division Court within his District, at the same
time and in like manner as Clerks of the Peace
arc now required by law to deliver lists of Jurors
to the severul Sheriffs, a true and complete list
of the Jurors residing within every such division
respectively ; and whenever a Jury shall be
required, the Clerk of the Court shall cause not
less than fifteen of the persons named in such
list to be summoned in rotation, to attend at
the time and place to be mentioned in the
summons ; and the persons so summoned shall
attend at the Court at the time mentioned in
the summons ; and in default of attendance,
shall be liable to a fine not to exceed ten shil-
lings to be set on each person by the Judge,
which fine shall be levied and collected as
other fines are hereinafter directed to be levied
and collected, and shall form part of the general
fee fund to be paid to the Treasurer of the
District.
XXXVII. And be it enacted, That each
Juror shall receive from the Clerk of the Divi-
sion Court, out of the monies so deposited
with him for that purpose, tlie sum of sixpence
for every cause in which such juryman shall be
sworn.
t!!i»W.,i
18
'ii
ii
J'
1^
XXX VIII. JIndbc it ciutdcd, That when-
ever there are any jury trials, five jurymen shall
be impannelled, and sworn to do justice between
the partieF, ncccordino: to the best of their skill
and ability, and to give a true verdict according
to the evidence : and either of the parties to
any such cause shall be entitled to his lawful
challenge against all or any of the said jurors
in like manner as he would be entitled in any
superior Court ; and the jurymen so sworn
shall be required to give a unanimous verdict.
XXXIX. Jlnd be it enacted, That on the
day named in the summons, the plaintiff shall
appear, and therefore the defendant shall be
required to appear to answer ; and on answer
being made in Court, the Judge shall proceed
in a summary way to try the cause and give
judgment without further pleading a formal
joinder of issue.
XL. >9nd be it enacted, That no evidence
shall be given by the plaintiff on the trial
of any cause as aforesaid, of any demand or
cause of action, except such as shall be stated
and contained in the account or demand
entered as hereinbefore directed.
XLI. Jlnd be it enacted. That all defendants
shall be allowed to set off any debt or demand,
not exceeding £20, claimed to be due from the
plaintiff, or to set up by way of defence, and to
claim and have the benefit of infancy, coverture,
or any statute of limitations, or of discharge
under any statute rcuaing to Bankrupts or any
act for relief of Insolvent Debtors, or of
any other relief or discharge under any statute
now or hereafter to be in force in Canada West:
Provided altvaijs, That if the defendant's
demand, as proved, exceed that proved by the
plaintiff, the Court may give judgment in favour
of the defendant for such balance as may be
due from the plaintiff, with costs of suit,
which shall be recovered by such ways and
means as any judgment rendered in favour
of a plaintiff may be recovered : Provided also,
That no such defence shall be admitted on the
hearing a trial of any cause under this Act,
unless notice thereof in writing shall have been
delivered to the plaintiff or left for him at his
usual place of abode or business within five
days after the service of the summons upon the
defendant ; and in cases where the plaintiff has
no place of abode or business within the Divi-
sion where the suit is commenced, or where the
p!aco of abode or business of the plaintiff shall
be unknown to the defendant, and he has been
unable to discover the same, then the defendant
shall deliver, or cause to be delivered, to the
Clerk of the Court within five days after the
defendant shall have been served with the
summons, the said notice, and the Clerk of the
Court shall, as soon as conveniently may be
after receiving- such notice, communicate the
tame to the phiintilfby the post or otherwise ;
but it shall not be necessary (or the dufcndant
to prove on the trial that such notice was com-
municated to the plaintiff by the Clerk.
XLII. And be it enacted, That when a
defendant hath any claim or demand against the
plaintitr exceeding the sum of £20, he may
abandon the excess, and on proving such demand
he shall be entitled to set off the same in like
manner as he would in case the same did not
exceed £20, and the judgment of the Court on
such set off shall be a full discharge, as well
of the amount allowed to be set off, as the
amount by which such claim of the defendant
exceeded £20, and such judgment shall be so
entered accordingly.
XLIII. And be it enacted, That the Judge
may in any case, with the consent of both par-
ties to the suit, order the same, with or with-
out other matters, within the jurisdiction of
this Court, in dispute between such parties, to
be referred to arbitration, to such person or
persons, and in such manner and on such terms
as he shall think reasonable and just: and such
reference shall not be revokable by either patty,
except by consent of the Judge. And the
award of the arbitrator jr arbitrators, or umpire,
shall bo entered {as the judgment in the cause,
and shall be as binding and effectual, to all
intents, as if given by the Judge : Provided,
That the Judge may, if he think fit, on applica-
tion to him at the first Court held after the
expiration of one week after the entry of such
award, set aside any such award so given as|
aforesaid, or may, with the consent of both par-
ties aforesaid, revoke the reference, of order
another reference to be made, in the manner
aforesaid.
XLI V. And be it enacted. That whenever the
Judge holding any Division Court shall be
satisfied that a jury sworn in any cause before
him cannot agree upon their verdict, after hav-
ing been out a reasonable time, he may dis-
charge them, and then order the Clerk to sum-
mon a new jury for the next sitting of the
court to be held in that division ; unless the
parties shall have consented that the Judge
may render judgment on the evidence already
taken before him, in which case he is hereby
authorized to give judgment accordingly.
XLV. And be it enacted, That every decision
of the Judge, in any case heard before him, shall
he openly pronounced in court, as soon as may
be after tlie hearing thereof.
XLVI. And be it enacted, That the Judge
of the District Court shall have power from
time to time to make general rules for regulat-
ing the practice and proceedings of the said
oFvision Courts, and also to frame forms for
eveiy proceeding in the said Courts, for which
he shall think it necessary that a form be pro-
vided: and also for keeping all books, entries
and accounts to be kopt by the Clerks of the
paid Courts, and from tinic to time to alter any
luch rule
luch rules
ihall not
ihall hav(
(y the Ch
ifQueen'i
brmerly
hem ; an
or herein
>rinciples
;ommon 1
liscretion
ceedings i
XLVII
Jay of th<
Eontinuati
or of the
shall hav
ippear
th
he shall a
demand,
shall be
plaintiff, <
and in cil
appear,
award to
satisHjctic
sum as th
fit, and 81
plaintiff, I
or damog
can be re
the plaint
and the d
on his bel
of action
the fees |
plaintiff, 1
ceed to
peared.
XLVII
so named
tion or a
which th<
shall not
absence,
called in
vice of tl
ing or tri
tiff only,
as valid i
tided alt
the sam
aside an^
the defe
and may
such tet
giving s(
terms as
shown t
XLD
ra»y, in
ICC was corn-
>lerk.
hat when a
d Bgainst the
-20, he may
such demand
same in like
same did not
the Court on
irge, as well
luch rule or form : Provided always, That
tuch rules or forms so made, framed and altered,
ihall not be brought into use until the same
hall have been submitted to and approved
»y the Chief Justice, and Judges of the Court
)f Queen's Bench, for that part of this province
brmerly called Upper Canada, or any two of
hem ; and in any case not expressly provided
or herein, or by the said rules, the general
rinciples of practice, in the superior courts of
sommon law may be adopted and applied, at the
;he defendant
shall be so
kt the Judge
of both par
vith or with
urisdiction of
[ch parties, to
ich person or
)n such terms
ist: and such
r either patty,
e. And the
irs, or umpire,
in the cause,
foctual, to alt
! : Provided,
it, on applica-
leld after the
entry of such
d so given as
it of both par-
jnce, or order
n the manner
whenever the
lurt shall be
cause before
ict, after hav-
!, he may dis-
I!lerk to sum
sitting of the
I ; unless the
at the Judge
lonce already
he is hereby
rdingly
J very decision
ore him, shall
I soon as may
It the Judge
5 power from
IS for regulat'
; of the said
me forms for
rts, for which
form be prO'
books, entries
Clerks of the
J to alter any
19
t oft, as the liscretion of the Judges, to actions and pro-
ceedings in their several courts.
XLVII. And be it enacted, That if upon the
day of the return of any summons, or at any
ontinuation or adjournment of the said court,
or of the cause for which the said summons
shall have been issued, the plaintiff shall not
ppear, the cause shall be struck out ; and if
he shall appear, but shall not make proof of his
demand, to the satisfaction of the Court, it
shall be lawful for the Judge to nonsuit the
plaintiff, or to give judgment for the defendant;
and in either case, where the defendant shall
appear, and shall not admit the demand, to
award to the defendant, by way of costs and
satisHiction for his trouble and attendance, such
sum as the Judge in his discretion shall think
fit, and such sum shall be recoverable from the
plaintiff, by sucn ways and means as any debt
or damage ordered to be paid by the same court
can be recovered : Provided always, That it
the plaintiff shall not appear when called upon,
and the defendant, or some one duly authorized
on his behalf, shall appear, and admit the cause
of action to the full amount claimed, and pay
the fees payable in the first instance by the
)laintiff, the Court, if it shall think fit, may pro-
ceed to judgment, as if the plaintiff had ap-
peared.
XLVIII. And be it enacted, That if the day
so named in the summons, or at any continua-
tion or adjourn. nent of the Court or cause in
which the summons was issued, the defendant
shall not appear or sufficiently excuse his
absence, or shall neglect to answer, when
called in Court, the Judge, upon due proof ser-
vice of the summons, may proceed to the hear-
ing or trial of the cause on the part of the plain-
tiff only, and the judgment thereupon shall be
as valid as if both parties had attended : Pro-
vided always, That the Judge in any case, at
the same or any subsequent Court, may set
aside any judgment so given in the absence of
the defendant, and the execution thereupon,
and may grant a new trial of the cause, upon
such terms, if any, as to payment of costs,
giving security for debt or costs, or such other
terms as he may think fit, on sufficient cause
shown to him for that purpose.
XLIX. And be it enacted, That the Judge
iwiy, in any case, make orders for granting
time to the plaintiff or defendant, to proceed in
the prosecution or defence of the suit, and also
may, from time to lime, luljoiirn any Court, or
the hearing, or further hearing of any cause, in
such manner as to the Judge tnay seem fit.
L. And be it enacted, That it shall be lawful
for the defendant, in any action brought under
this Act, at least, five days before tlio return
day of tiic summons, to pay into Court such sum
of money as he shall think a full satisfaction for
the demand or cause of action of the plaintiffs',
together with the cost incurred by the plaintiff
up to the time of such payment ; and notice of
such payment shall be forthwith communicated
by the Clerk of the said Court to the plaintiff,
by post, or by sending the same to his usual
place of abode or business, and the said sum
of money shall be paid to the plaintiff^ and all
proceedings in the said action shall be stayed,
unless the plaintiff shall, within three days after
the receipt of notice of such payment, signify
to the Clerk of the said Court his mtentiou to
proceed for the remainder of the demand claim-
ed ; and in such case the action shall proceed
as if it had been brought originally for such
remainder only ; Provided always, If the
plaintiff shall recover no further sum in the
action than such sum as shall have been paid
into Court under the provision herein bffore
contained, the plaintiff shall pay to the defend-
ant all costs, charges, and expenses incurred
by him in the said action, after such payment
as aforesaid, and such costs, charges, and
expenses shall bo settled by the Court, and
shall be recovered by the defendant by .such
ways and means as any debt ordered to bo paid
by the Court can be recovered.
LI. And be it enacted. That on tlio hearing
or trial of any action, or on any other proceed-
ing under this Act, the parties thereto, their
wives, and all other persons, may be examined
either on behalf of the plaintiff or defendant,
upon oath or solemn affirmation in those cases
in whicii persons are by law allowed to make
affirmation, instead of taking an oath, to be
openly administered by the Judge to each party
or witness at the time of his givmg his evidence,
without regard to any objection on the ground
of incompetence from interest or otherwise.
LII. And be it enacted, That every person
who in any examination shall wilfully and cor-
ruptly give false evidence, shall be deemed
guilty of perjury.
LIU. And be it enacted, That either of the
parties to the suit, or any other proceeding
under this Act, m.iy obtain, at the office of the
Clerk of the Court, summonses to witnesses,
to be served by one of the bailiffs of the Court,
or in a case of a witness residing in another
Division, then service thereof by the bailiff of
such other Division, shall be deemed good ser-
vice, and the service may be proved by affidavit
20
ST
'U
to be transmitted to the Clerk in the same man-
ner as herein ueforo rlirccted of summons to a
party, and such summonses (o witnesses may
be with or without a clause, requiring the pro-
duction of booiis, deeds, papers, and writings
in their possession or control, and in uny such
summons any number of names may be in-
cluded.
LIV. Jlnd be it enacted, That every person
on whom any such summons shall have been
served either personally or in such other manner
as shall he directed by the general rules or
practice of the Courts, and to whom, at this
time, payment, or a tender of poyment of his
cxpen.scs shall have been made on such scale
of allowance as shall be from time to time
settled by the general rules of practice of the
Court, and who shall refuse or neglect, with-
out sufficient cause, to appear, or to produce
any books, popers, or writings required by such
summons to be produced, and also any person
present in Court, who shall be required to give
evidence, and who shall refuse to be sworn and
give evidence, shall forfeit and pay such fine,
not exceeding £5, as the Judge shall set on
him ; and the whole, or any part of such fine,
in the discretion of the Judge, after deducting
the costs, shall be applicable towards indemni-
fying the party injured, by such refusal or neg-
lect, and the remainder thereof shall form part
of the general fund of the Court in which the
fine was imposed ; Provided always, in addi-
tion to the fine, such witness shall be liable to
be imprisoned by order of the Court for a term
not exceeding one Calendar mouth.
LV, ^nd be it enacted, That any fine im-
posed by any Court, under the authority of this
Act, may be enforced on the order of the Judge,
in like manner as payment of any debt adjudged
in the said Court, and shall be accounted for as
herein provided.
LVI. And be it enacted. That all costs of
any action or proceeding in the Court, not i
othervyise provided for, shall be paid by or i
apportioned between the parties in such maimer j
as the Judge shall think lit; and in default ofl
any special direction shallabide the event ofj
the action, and execution may issue for the
recovery of any such costs, in like manner as
for any debt adjudged in the said Court.
LVII. And be it enacted, That any order
and judgment of any Court holden under this
Act, except as herein provided, shall be final
and conclusive between the parties: but the
..udge shall have power to nonsuit the plaintiff
in any case in which satisfactory proof shall not
be given to him, entitling either the plaintiff or
u M *^?"* to the judgment of the Court: and
shall also in any case whatever, have the power,
if he shall think fit, to order a new trial to be
had on such terms as he shall think reasonable,
and in the mean time to slay the proceedings.
LVII I. And be it enacted, That no action
brought in any Division Court holden under
this Act, nor any order, verdict, judgment or
proceeding therein shall be removed into any
superior Court, by any writ or process what-
ever, unless in actions of contract where the
debt or damage claiincd shall exceed £10, or in
actions respecting personal property, when the
damiige claimed shall exceed £2 lOs. ; and then
only by leave of a Ju(lge of the said Court of
Queen's Bench, or a Judge of the District
Court, in cases which shall appear to the Judge ^^\^^Jl
fit to be tried either in the Court of Queen's
Bench or the District Court, and upon such
terms as to payment of costs, giving security
for debt and costs, or such other terms as he
shall think fit.
LIX. And be it enacted, That in all cases of
actions of tort where the damage claimed shall
exceed £2 lOs., and in all cases of actions of
contract, where the debt or damages claimed,
shall exceed £10, the plaintiff or defendant may
appearand prosecute or defend, by any Barris-
ler-at-Lavv or any Attorney of the Court of
Queen's Bench ; and in such cases it shall be
lawful for the said Judge in his discretion to
allow to either party obtaining Judgment, in
the taxation of costs, a sum not less than 10s.,
no more than £l Os. for fees and costs, to be
recovered in the same manner that other monies
ordered to be paid under this Act are recovered.
LX. And be it enacted. That the Judge ruay
make orders concerning the time or times, and
by what instalments any debt, or damages, or
costs, for which judgment shall be obtained in
the said Court, shall be paid ; and all such
monies shall be paid into Court, unless the
Judge shall otherwise direct: Provided always^
that in any such order for time, reference shall
be had to the day on which the summons was
served on tiie defendant, and issuing of execu
tion shall not be postponed without the consent
of the party entitled to the same for a longer
period than fit'ty days from the service of the
summons.
LXI. And be it enacted, That it shall and
may be lawful for the Judge, at any time after
the giving and recording of any judgment, upon
application being made to him by the party in
whose favour such judgment shall be given,
upon oath or other sufficient testimony to the
satisfaction of the Judge, that the party will be
in danger of losing the amount of such judg-
ment, if he be compelled to wait till the day of such dist
payment thereof, before any execution can issue w if the i
thereon, to order the issue of an execution at Miction of
such time as he shr!i think fit.
LXII. And be it enacted, That if there be
cross judgments between the parties, execution
shall be taken out by that party only who shall
have obtained judgment for the larger sum, and
for so much only as shall remain after deduct-
ing the smaller sum, and satisfactio.! for the
emaindei
ion on th
f both sn
intered u
LXIH.
he Jiidg
)ayrncnt
rerable, ii
hereof fo
he manr
gainst w
nl the C
if the par
inder th
facias, as
jf the C
empowen
distress a
such part
ordered, v
the distri(
Eind shall
and all (
their sev
cation of
LXIV,
may be
Court, to
be directe
any defer
this act, i
or chattel
in which i
to any .
within an
goods am
and such
ized and ;
the preci
(which s
administe
out of
3[oods an
be found
sion Cou
officer t(
Justice a(
such pre
thereupo:
the gooi
wheresoG
itables n
■equired
urisdicti
varrant t
LXV.
ihall hav
mm of r
at no action
lolden under
judirment or
ved into any
roccss what-
t where the
!od £10, or in
•ty, when the
Os. ; and then
said Court of
the District
to the Judge «''!"«^ ^^.^^ goods and chattels of the pruty
t of Queen's
upon euch
ving security
terms as he
in all cases of
of actions of
iges claimed,
iefendant may
)y any Barris-
the Court of
;8 it shall be
discretion to
Judirment, in
ess than 10s.,
are recovered.
the Judge may
! or times, and
■ damages, or
)R obtained in
and all such
rt, unless the
ovided always,
eference shall
summons was
ing of execu
ut the consent
for a longer
service of the
i it shall and
iny time after
idgment, upon
y the party in
hall be given
timony to the
J party will be
)f such judg
all the day of
ition can issue
execution at
21
emainder shall be entered, as well as satisfnr-
ion on the judgment for the sinullcr 8\im, nnd
f both Slims shall be oqiiiil, salisfactioii shull ho
jntered upon both judgments.
liXIII. Jind be it eiuictrd, That whonovcr
he Judge shall have mado an onlnr ("or the
)ayincnt of money, thn amount shall bu ri'co-
rerable, in case of default or failure of pnyrncnt
hereof forthwith, or at the lime or lisiios nnd in
he manner thereby directed, by execution
ffiii'h order shall not itisuo against the party,
until after dofiiiilt. in payment of some instal-
ment according to siicli order, and execution o;
successivo exccuiions muy then issue for the
vvliole of the said sums and costs then remaining
unpaid, or for siicli portion thereof as the Judge
shall Older, either at the time of making the
original ordin-, or at, any subseciuent time, under
tho seal of the com t.
I I
gainst whom such an order shall bo made
,ni the Clerk of the said Court, at the request
if the party prosecuting such order, shall issue
inder the seal of the Court a writ Jieri
facms, OS a warrant of execution to the bailiff
f the Court, who by such warrant shall be
mpowered to levy, or cause to bo levied by
claimed shall ^jg^^ggg ^^j g^i^ ^f the goods and chattels of
uch party, such sum of money as shall bo so
jrdered, wheresoever they may be found within
he district, and also the costs of the execution,
md shall pay the same over to the said Cleik ;
ind all constables and peace officers within
heir several jurisdictions shall aid in the exe-
lution of every such warrant.
LXIV, And be it enacted. That it shall and
d costs, to belmay be lawful for any bailiff of a Division
t other monies Court, to whom a warrant of execution shall
be directed against the goods and chattels of
any defendant, according to the provisions of
this act, in case he shall not find sufficient goods
or chattels of the defendant within tlie district
in which such Division Court is holden, to apply
to any Justice of tho Peace acting for and
within any other adjoining district in which the
goods and chattels of such defendant shall be,
and such Justice of the Peace is hereby author-
ized and required, upon such bailiff producing
the precept or warrant, and making oath,
(which such Justice is hereby empowered to
administer,) that the same has been duly issued
out of the said Division Court, and that the
goods and chattels of the defendant are not to
)e found within the district in which such Divi-
sion Court is held, but are believed by such
officer to be within the district where such
Justice acts, to sign his name on the back of
luch precept or warrant of execution, and
thereupon such bailiff shall have power to take
the goods and chattels of such defendant,
wheresoever the same shall be found within
such diiStrict, and deal therewith in like manner
IB if the same had been taken within the juris-
diction of the said Division Court, and all con-
stables and other peace officers are hereby
required to be aiding within their respective
urisdictions in the execution of the precept or
ivarrant so indorsed.
LXV. And be it enacted, That if the Judge
ihall have made any order for payment of any
lum of money by instalments, execution upon
it if there be
lies, execution
inly who shall
rger sum, and
after deduct
,ctio.i for the
liXVI. And be it enacted, That every bailiff
ir officer executing any process of execution
issuing out of the ^aid Division Courts against
the goods and chattels of any person, may by
virtue thereof, seize any of the goods and chat-
tels of such person, (excepting the wearing
apparel and beddirig of such person and his
family in actual use,) and may also seize and
lake any njoney or bank notes, and any cheques,
bills of exchange, promissory notes, bonds, spe-
cialties or securities for money belonging to
any such person against whom any such execu-
tion shall have issued as aforesaid.
LXVII. And be it enacted, That the bailiff
shall hold any cheques, bills of exchange, pro-
missory notes, bonds, specialties, or other secu-
rities for money, which shall have been so taken
or seized as aforesaid, as a security or securi-
ties for the amount directed to be levied by
such execution, or so much thereof as shall not
have been otherwise levied, or raised for the
benefit of the plaintiff: and the plaintiff may
sue in the name of the defendant, or in the
name of any person in whose name the defend-
ant might have sued, for the recovery of the
sum or sums secured or made payable thereby,
when the time of payment thereof shall have
arrived.
LXVIII. And be it enacted, That it shall be
lawful for any party who has obtained any
unsatisfied judgment or order in any Court held
by virtue of this act, or under any of the acts
held for the recovery of small debts hereinbefore
referred to, for the payment of any debt or
damages or costs, to obtain a summons from
any Division Court within the limits of which
any other party shall then dwell, or carry on
his business, or from the Division Court where
the judgment shall have been rendered, such
summons to be in such form as shall be directed
by the rules mado for regulating the practice
of the Division Courts as hereinbefore provided,
and to be served personally upon the person to
whom it is directed, requiring him to appear at
such a time as shall be directed by the said
rules, to answer such things as are received in
such summons : and if he shall appear, in pur-
suance of such summons, he may be examined
upon oath touching his estate and effects, and
the manner and circumstances under which he
contracted the debt or incurred the damages or
liability which is the subject of the action in
which judgment has been obtained against him:
iH
and as to tho means and expectations ho then
liad, and an to tlio |)ro|)crty nnd inoniiH lie still
hath, ofdischaryini,' the siiid debt, or diimiigca
ur liiibility, und us to the disposal he may have
made of any property, and tho poryon obtaining
such summons as aforesaid, and all other wit-
nesses whom tho Judge shuU think requisite,
may be examined upon oath touchinnr the imjui-
rins authorized to bo made as aforesaid : and
the costs of such summonses, and of all tho
proceedings thereon shuU be deemed costs in
the cause.
LX[X. And be it enacted, That if a party
so summoned shall not attend as required by
such summons, and shall not allege a sufTicient
excuse for not attending, or shall if attending,
refuse to be sworn or to disclose ony of the
things aforesaid, or if he shall not make answer
touching the same to the satisfaction of such
Judge, or if it shall appear to such Judge, either
by the examination of the party, or by any
other evidence, that such party, if a defendant,
in incurring the debt or liability which is the
subject of the action in which judgment has
been obtained, has obtained credit from the
plaintitf under false pretences, or by means of
froud or breach of trust, or has wilfully con-
tracted such debt or liability, without having
had at the same time, a reasonable expectation
of being able to pay or discharge the same, or
shall have made or caused to be made any gift,
deUvery, or transfer of any property, or shall
have changed, removed or concealed the same
with intent to defraud his creditors, or any of
them, or if it shall appear to the satisfaction of
the Judge of the said Court, that the party so
summoned has then, or has had since the judg-
ment obtained against him, sufficient means
and ability to pay the debt, or damages or costs
80 recovered against him, either oltogether, or
by any instalment or instalments which tiie
Court in which the judgment was obtained shall
have ordered, and if he shall refuse or neglect
to pay the same, as shall have been so ordered,
or as shall be ordered, pursuant to the power
hereinafter provided, it shall be lawful for such
Judge, if he shall think fit, to order that such
party may be committed to the common gaol of
the district for any period not exceeding two
months.
LXX. And be it enacted, That it shall be
lawful for the Judge of any Court before whom
such summons shall be heard, if ho shall think
fit, whether or not he shall make any order for
the committal of the defendant, to rescind or
alter any order that shall have been previously
made against any defendant so summoned
before him, for the payment by instalments or
otherwise, of any debt or damages recovered,
and to make any further or other order, either
for the payment of the whole of such debt or
damages and costs forthwith, by any instal-
ments or in any other manner, aa such Judge
may think rcasonablo and just.
liXXI. ./hid be it cnucfed, 'I'hat in every case
where tho doft ndiiit in any suit brought into
any Division (Jourt shall have been personally
served with tlic summons lo appear, or shall
pnrsonally appc r nt tho trial of tho same, the
Judge, at the iioaring of the cause or at any
adjournment thereof, ifjudgment shall be given
against tho defendant, shall have tho same
power and authority of examining the defend-
ant and the plaintiff, and other parties, touching
the several things heroinbeforo mentioned, and
of committing the defendant to prison, and of
making an order, as ho might have and exercise
under the provisions hereinbefore contained, in
case tho plaintiff had obtained a summons for
that purpose, after the judgment obtained, aa
hereinbefore mentioned.
LXXII. Jlnd be it enacted, That whenever
any order of commitment shall have been made
as aforesaid, the Clerk of the said Court shall
issue under tho seal of the Court a warrant of
commitment directed to tho Bailiff of the Divi-
sion Court, who by such warrant shall bo em-
powered to take the body of tho person aginst
whom such order shall be made : and all consta-
bles other peace othccrs within their several
jurisdictions shall aid in tho execution of every
such warrant : and the gaoler or keeper of every
gaol mentioned in any ?noh order shall be bound
to receive and keep the defendant therein until
discharged under the pcovisions of this act, or
otherwise by due course of law ; and no pro
tection, order or certificate granted by any
Court of Bankruptcy or for the relief of insol
vent debtors shall be available to discharge any
defendant from any commitment under such
last-mentioned order.
LXXIII. And he it enacted, That no ira
prisonment under this act shall in anywise
crm::i as t
inio to titi
roof as ;it
isability I
LXXV.
ny goods
ution sha
ays at Ir
uch good
he requef
arty whc
he liailifi;
is custod
hall endo
nd shall
idvcrtisen
hrce of t
vhere sue
)f the til
vhen and
vhich not
els taken
lays bcfoi
LXXVl
ioizure ar
he provis
Jpper Ca
yiajesty's
he costs
ind penali
J^XXV
3r other (
lirectly o
ihattels a'
ion, and (
)f this en
LXXV]
nnent or i
)r revers(
iupersede
LXXIJ
jvery war
oods and
he Clerk
operate as a satisfaction or extinguishment of ng of anj
tho debt or other cause of action on which a tnder the
judgment has been obtained, or protect the
defendant from being anew summoned and im-
prisoned, for any new fraud o: other default
rendering him liable to be imprisoned under thia
act, or deprive the plaintiff of any right to take . ,
out execution against the goods and chattels of ", '"^<"'^
the defendant, in the same manner as if such ""p^j ^
imprisonment had not taken place. nci eased
LXXIV. And be it enacted, that if it shall at .xecution
any time appear to the satisfaction of the mle of th(
Judge, by the oath or affirmation of any person )q paid c
or otherwise, that any defendant is unable, from ;;;ourt out
sickness or other sufficient cause, to pay or dis- yas issue
charge the debt or damages recovered against )f executi
him, or any instalment thereof ordered to be aforesaid,
paid as aforesaid, it shall be lawful for the mtitled ti
Judge in his discretion, to suspend or stay any ijg debt
judgment, order or execution given, made oi tie fees 1
issued in such action for such time and on such bn shall
s sucti Judge
t in every case
brought into
!cn poruonally
pear, or uhall
tho same, the
use or at any
dhali be given
ve tho same
ig the defend-
rties, touching
lentioned, and
prison, and of
2 and exercise
contained, in
summons for
t obtained, as
'hat whenever
ive been made
d Court shall
: a warrant of
(f of the Divi-
t shall be cm-
person oginst
ind all consta-
their several
ution of every
eepcr of every
shall be bound
t therein until
»f this act, or
; and no pro
anted by any
elief of insol-
discharge any
It under such
28
cimj as the Judge may Ihink fit, and so from
imo to time, uniil it shall iippcur by (ho like
roof as aforesaid, that audi Lcuipurary caudG of
isability has ceased.
LXXV. Jliul be it eimcted, That no sale of
ny goods which shall have boon taken in exo-
ution shall bo had until after tho end of liglit
ays at least next following the duy on which
uch goods shall have hacw tuknii, unless upon
he request in writing under tho hand of tho
)arty whose goods slinll have been taken ; and
he IJailift', after taking goods and chattels into
is custody by virtue of a writ of execution,
hall endorse thereon tho date of tho soizuro ;
nd shall imniedialely give public notice by
idvertisement signed by himself, and put up at
hree of the most public places in the Division
vhero such goods and chattels shall bo taken,
)f the time and place within such Division
vhen and where they will be exposed to sale,
vhich notice shall describe the goods and chat-
els taken, and shall be so put up at least eight
lays before the time appointed for the sale.
LXXVI. Jlnd be it enacted, That every such
icizure and sale shall be taken to be wi*I n all
he provisions of an Act of the Parliament of
Jpper Canada, passed in tho first year of her
Majesty's Reign, intituled, "An Acttoregult'te
he costs of levying didtresses for small rents
tnd penalties."
LXXVII. And be it enacted, That no Bailiff
jr other Officer of any Division Court shall,
lirectly or indirectly, purchase any goods or
ihattels at any sale made by him under execu-
ion, and every purchase made in contravention
)f this enactment shall be absolutely void.
LXXVIII. And be it enacted, That no judg-
ment or execution shall be stayed, delayed,
ar reversed upon, or by any writ of error, or
lupersedeas hereon, to be served for the revers-
inder the provisions of this Act.
That no ira
11 in anywise!
iguishment of ng of any judgment given in any Court holden
sn on which a
r protect the
noned and im-
other default
ined under thia
r right to take
and chattels of
iner as if such
e.
LXXIX. And be it enacted. That in or upon
svery warrant of execution issued against the
oods and chattels of any person whomsc ^ver,
he Clerk of the Court shall cause to be inserted
ir indorsed the sum of money and costs ad-
udged, with the sums allowed by this Act as
ncreased costs for the execution of such war-
ant ; and if the party against whom such
at if it shall at jxecution shall be issued, shall before an actual
action of the lale of the goods and chattels pay, or cause to
of any person le paid or tendered unto the Clerk of tuis
is unable, from [;ourt out of which such warrant of execution
to pay or dis- vas issued, or to the Bailff holding his warrant
>vered against )f execution, such sum of money and costs as
ordered to b« foresaid, or such part thereof as the persons
awful for the .ntitled hereto shall agree to accept in full of
nd or stay any jjg debt or damages and costp, together with
iven, made or tie fees herein directed to be paid, the execu
le and on bucb Ion shall be superseded, and th^ goods and
chattels of the said parly shall bo discharged
and sot at liberty.
liXXX. And he it cnadvd, That every writ
of exociition issued by the (."lerk of any l)iv>.'oH
Court shall be dated on ihi; day when it Hha!"
actually i^■Kuo, and shall be rptnrnablo '.vithi!!
thirty days from the date thereof, and the same
bo entirely filled and shall have no blank in th5
date or otheruise at tho time of its delivery to
a BaililVor other person, to be executed.
liXXXI. Andheitrnacted, Thatif any Ikiliff
shall refuse or neglect to return any writ of
execution within three days after the return
day thereof, or shall make a false return
thereto, the party having sued out such writ
may maintain an action of debt against such
Haitiff and his hail or sureties in the Division
Court, and upon proving his case, shall recover
therein the amount for which the execution
i.-sued, with interest from the date of the judg-
ment upon which such execution issued, or
such less sum as it may be proved to the satis-
faction of the Judge that the goods of the
defendant may have been or were worth ; and
if a judgment be obtained in such suit against
the Bailiff and his bail or sureties, execution
shall immediately issue thereon, anything in
this Act or in any other Act or Law to the
contrary notwithstanding.
LXXXII. And be it enacted. That any per-
son imprisoned under this Act who shall have
paid or satisfied the debt or demand or the
instalments thereof payable, and costs remain-
ing over at the time of the order of imprison-
ment being made, together with the costs of
obtaining such order, and all subsequent costs,
shall be discharged out of custody, upon the
certificate of such payment or satisfaction,
signed by the Clerk of the Court, by leave of
the Judge of the Court in which the order of
imprisonment was made.
LXXXIII. And be it enacted, That in every
case where any defendent against whom a
plaintiff has sued, out a summons upon a debt
or demand is or shall be about to remove his
goods, chattels and effects, ort of th^s Province,
to avoid his creditors, it shall Se . "' for the
plaintiff to make affidavit, to b«. swoi. before
any Commissioner for taking affidavits in the
Court of Queen's Bench, stating the amount of
the debt due and the cause thereof, and that he
has been informed, or has reason to believe, and
in either case that he does verily believe that the
defendent is about immediately to remove his
goods, chattels and effects, out of this Province
with intent and design to defraud his creditors,
and which statement of the defendent being
about to remove his goods, chattels and effects,
with such intent and design, shall be proved
upon the affidavit to be sworn in manner as
aforesaid of one other person not a creditor of
the said defendant, and upon the said affidavit
being filed with the Clerk of the Division Court,
f\
vmmau
» fl 8 ii l JH>. i l l MW
U
it sliall be lawful for the paid C!leik to issue a
warrant of attachment under the Seal of the
said Court, in such form as shall he rcifulalcd
by any order to be made for regulatinfj the
practice (if the paid Court, directed to the Biiiliff
of the said Court, commandiniJ: him to attach,
seize, take and safely keep all the goods and
effects of the defendant until the day named in
the summons for the trial of the said cause, and
until the said Court shall make further order
respecting the fame.
LXXXIV Jlnd be it enacted, That it siiall be
the duty of the said Bailitl', upon the receipt of
the said warrant, to seize, take, and safely keep |
all the goods, chattels, and efiects of the de-
fendant, until the day named in the summons
for ihe trial of the said suit, and until the said j
Court shall make further order conv,erninp- the i
same, and the said bailiff shall be allowed
all necessary disbursements for keeping the
same.
LXXXV. ^ind be it enacted, That if any per-
son against whose goods, chattels, and effects
such warrant of attachment may have issued,
or any person on his behalf shall execute to the
plaintiff a bond, with good and sufficient sure-
ties, to be approved of by the Clerk of the said
Court in double the amount claimed, with a
condition that the defendant will perform and
fulfil the judgment of the Court, or that the
sureties will pay the amount of any judgment
to be obtained in the said suit, it shall be lawful
for the Bailiff to restore to the defendant all
such goods, chattels, and effects as shall have
been seized and taken under and by virtue of
such warrant ; and such bond shall be in the
form to be prescribed by any orders regulating
the practice of the said Courts, and the defend-
ant shall pay to the Clerk the sum of five shil-
ling for preparing and filing the same, and the
said bond shall lemain in the Clerk s office,
until otherwise ordered by the said Judge, who
may order the same to be delivered to such
party as shall be entitled thereto.
LXXXV I. Jlnd he it enacted, That it shall
be lawful for the said Judge, upon the hearing
or trial of any suit wherein such warrant of
attachment may have issued, to hear and deter-
mine in a summary way whether such warrant
of attachment were or not issued upon good
and sufficient grounds, and it shall be lawful
for the said Judge either to continue the same
in force until the judgment be satisfied or to
discharge the same; and in case the same shall
be continued, the costs of obtaining and issuing
the said warrant, and the execution thereof,
shall be costs in the cause, and in case the
same shall be discharged, it shall be lawful for
the Judge to make compensation to the defend-
ant for his damages and costs incurred by rea-
son of such warrant of attachment, as the
Judge shall think reasonable and just, and the
Act pi
Judge may order the same to be set off against
any judgment which the plaintiff may obtain,
or tiie same; shall be recovered in the same
manner as other monies under this Act ordered
to be paid are recovered ; Provided always, if
the defendant intend to contest the sufficiency
of the grounds upon which the said warrant of
attachment s issued, he shall give notice of
such intention te the plaintiff at least three
days before the hearing of the cause.
LXXXVII. ^nd be it enacted, That the
Clerk of every Court holden under this
siiall cause a note of all demands entered and
summonses, and of all orders, and of all judg
ments and executions, and returns thereto, and
of all fines, and of all other proceedings of the
Court, to be fairly entered from time to time in
a Bank belonging to the Court, which shall be
kept at the office of the Court ; and such
entries in the said hook, or a copy thereof
bearing the Seal of the Court, and purporting
to be signed and certified as a true copy by the
Clerk of the Court, shall at all times be admit-
ted, in all Coi'rts and places whatsoever, as
evidence of such entries, and of the proceedings
referred to by such entry or entries, and of the
regularity of sucii proceeding without any
furllier proof ; and it shall be lawful for the
Clerk to take and receive for granting such
certified copy the sum of two shillings and
sixpence.
LXXXVIII. ^nd be it enacted. That the
Clerks of every such Court shal" in ihe month
of .Tune in each year make out a correct list of
all sums of money belonging to suitors in the
Court which shall have been paid into Court
and which shall have remained unclaimed
five years before the first day of the month of
January then last, specifyirg the names of the
parties for whom, o*- on who'^e account the same
were so paid into Court ; and a copy of such list
shall be put up and remain during Court hours
in some conspicuous part of the Court room
placT of holding the Court, and at all times
the Clerk's office, and all sums of money which
shall have been paid into any such Court, to
the use of any suitor or suitors thereof, an
which shall have remained unclaimed for '
period of six years before the passing
Act, and which are now in the hands of anj
Clerk, and all further sums of money whicl
shall hereafter be paid into such Court to
use of any suitor or suitors thereof shall,
unclaimed for the period of six years aflcr
samo shall have been so paid into Court,
application as part of the general fund of
Court; and shall be carried to the account
such funds ftid no person shall be entitled t(
claim any sum which shall have
unclaimed for six years ; but no time durinj
which the person entitled to claim such su
shall ha^e been an infant or femmc covert,
of unsound mind, or without this Provinc
for
J
hall bet
aid perioi
LXXXI
lerRon shi
uror, or
ny Divis;
is sluing
or rctui
litem' pt t
ithervviso
awful for
i:li or w
icrson, by
ifTender ir
ising of t
smpovvere
inder his
he Court,
oinmon (
!xceeding
ipon such
lach offeni
commit
he Distric
' idar n
XC. A,
)T officer
^ct shall
if his dut
ttempted
nder proc
I'arrant oi
hall be li
e recover
ustice of
nd it sh
curt, or
ike the o:
warrant)
ccordingl
XCI. ^
liffof s
eyed to 1
battels, o
battels u
y neglect
th( pportunit
ofthii s'zingant
pon comf
"such ne|
allege
Court,
'th*8s), the
bj ich damt
th^has sus
the SI
ition issi
remaineflfifeto, an
refusal
nt there
ans as
dgmcnt :
ot ai
in
th( 'Ct
ic
ise
in
ct off against
may obtain,
in the same
Act ordered
td altvaySf if
le sufficiency
id warrant of
jive notice of
least three
se.
•.d, That the
ider this Act vi:.li or vvithont the assistance of any other
entered and
d of all judg
s thereto, and
edings of the
me to time in
vhich shall be
; ; and such
copy thereof
nd purporting
e copy by the
mes be admit
'hatsoever, as
e proceedings
es, and of the
without any
awful for the
granting such
shillings and
led, That the
' in the month
correct list of
the month o
B names of the
:ount the same
jpy of such list
g Court hours
25
hall be taken into account In estimating the
aid period of six years.
LXXXIX. And be it enacted, That if any
leraon shall wilfully insult the Judge or any
uror, or any Clerk, Bailiff, or other officer of
ny Division Court for the time being during
lis silting or atlcrid:inL3 in Court, or in going
or returning from tiie Court, or shall wilfully
Dtcrri'pt the proceedings of the said Court, or
therwiso misbeliave in Court, it shall be
awful for the IkitifT or officer of the Court,
lerson, by the order of the Judge, to take such
ifTender into custody, and detam him until tiic
ising of the Court ; and the Judge Khah be
impowered, if he shall think fit, by warrant
inder his hand, and sealed with the Seal of
he Court, to commit any such offender to the
;oinmon (jaol of tlie District for any time not
ixceeding one calendar month, or to impose
ipon such offender a fine not exceeding £ 10 for
lach offence, and in default of payment thereof
commit the offender to the common gaol of
he District for any timo not exceeeding one
:a' idar month.
XC. ^nd be it enacted, That if the Bailiff
)r officer of any Court holden under this
kt shall be assaulted while in the execution
if his duty, or if any rescue shall be made or
.tlempted to be made, of any goods levied
inder process of the Court, or seized upon any
warrant of attachment, the person so offending
hall be liable to a fine not exceeding £10, to
' e recovered by order of the Court, or before a
suitors in the ustice of the Peace, as hereinafter provided ;
.id into Court, nd ^ shall be lawful for the Bailiff of the
unclaimed for ;ourt, or any peace officer in any such case to
akethe offender into custody, (with or without
warrant) and bring him before such Justice
ccordingly.
XCI. And be it enacted, That in case any
Court room oiB^'^'ff of any Division Court, who shall be em-
at all times in loyed to levy any execution against goods and
f money which hattels, or to seize and lake any goods and
uch Court, to hattels upon any warrant of attachment, shall
! thereof, am S^ neglect, or connivance, or omission, lose the
laimeJ for th( pportunity of levying any such execution, or
passing of thii ''zing and taking such goods and chattels, then,
! hands of any PO" complaint of the pari-y aggrieved by reason
money whicl such neglect, connivance or omiission, (and the
h Court to th( 'Ct alleged being proved to the satisfaction of
lereof shall, i '** Court, on the oath of any creditable wit-
^ears aflcr th( ^^s), the Juiige shall oider such Bailiff to pay
into Court, bj "''h damages as it shall appear that the plain-
al fund of th( ff'>*s sustained thereby, not exceeding in any
the account o '^^ the sum of money for whicli the said exe-
1 be entitled t( >ti<>n issued, an'? the Bailiff shall be liable
lave remainet '^reto, and upon demand made thereof, and on
10 time durinj ^ refusal so to pay and satisfy the same, pay-
laim such sun •''* thereof shall be enforced by such ways and
mmc covert, o P^^^ '^ "o herein provided for enforcing a
this Province ^?°iont recovered in the said Court*
XCII. And be it enacted, That if any Clerk,
Bailiff, or officer of the Court, acting under
colour or pretence of his office, or the process
of the said Court, shall be charged with extor-
tion or misconduct, or with not duly paying or
accounting for any money levied or received by
him under the authority of this Act, it shall be
lawful for the Judge to inquire into such matter
in a summary way, and for that purpose to
enforce the attendance of all necessary parties,
in like manner as the attendance of witnesses
in aay casfe may be enforced, and to mak'j sjch
order thereupon for the re-payment of any
money extorted, or for the payment of any
iiiOiioy so received or levied ns aforesaid, and
for the payment of such damages and costs to
the party aggrieved, as the said Judge shall
thing just ; and also if he shall think fit to im-
pose such fine upon the Clerk, Bailiff, or
officer, no. xceeding £10 for each offence, as
he shall deem adequate ; and in default of
payment of any money so ordered to be paid,
payment of the same may be enforced by
such ways and means as are herein provided
for enforcing a judgment recovered in the said
Court.
XCIII. And be it enacted, That every Clerk,
Bailiff, or other officer employed in putting this
Act, or any of the powers thereof, in execution,
who shall wilfully and corruptly exact, take or
accept any fee or reward whatsoever, other
than and except such fees ns are or shall be
appointed and allowed respectively as aforesaid,
for or on account of anything done or to be
done by virtue of this Act, cr on any account
whatsoever relative to putting this Act into
execution, shall upon proof thereof before the
said Judge, be forever incapable of serving or
being employed under this Act, in any office of
profit or emolument, and shall also be liable
for damages as herein provided.
XCIV. And be it enacted, That if any claim
shall be made to or in respect of any goods or
chattels taken in execution under the process
of any Division Court, or in respect of the pro-
ceeds or value thereof by any person not being
the person against whom such process has
issued, it shall be lawful for the Clerk of the
Court, upon application of the Bailiff charged
with the execution of such process, as well
before as after any action brought against such
Bailiff, to issue a summons calling before the
said Court, as well the party issuing such pro-
cess, as the part) ma' ing such claim, and there-
upon any action which shall have been brought
in any Court in respect of such claim, shall be
stayed, and the Court in which such action
shall have been brought, or any Judge thereof,
on proofof the issue of 3uch summons, and that
the goods and chattels were so taken in execu-
tion, may order the party bringing such action
to pay the costs of all proceedings had upon
such action, after the issue of such summons of
A.- m.
A'
ar
v.t
the Division Court ; and the Judge of the
Division Court shall uJjjdicate unnn such claim,
and make such order between the parties in
respect thereof, and of the costs of the nro-
ceedings, as to him shall seem fit, and such
order shall be enforced in lilce manner as any
order made in any suit brought in such
Court.
XCV. And he it enacted, That ii' any action
shall be comnionced after t!io passing of this
Act in Her Majesty's Court of Queen's Cench
or in any District Court for any cause, for
which a suit might have been entered in any
Court holden under this Act, and a verdict shall
be found for the plaintiff in any action founded
on'contract for a sum not exceeding £10, and
in action founded on fact for a sum not exceed-
ing £5, the said plaintitf shall have judgment
to recover such sum only, and no costs, and if
a verdict shall not be found for the plaintiff the
defendant shall be entitled to his costs as be-
tween attorney and client, unless in either case
the Judge who sliall try the cause shall certify
on the back of the record timt the plaintiff iiad
a probable cause of action : in cases of action
founded on contract, for tne debt or damages
sought to be recovered in such action to an
amount exceeding £ 10.
XCVI. And belt enacted, Tliat all penalties,
fines and forfeitures, by this Act inflicted or
authorized to be imposed, (the manner of re-
covering and applying whereof is not hereby
otherwise particularly directed), shall upon
proof before any Justice of the Peace having
jurisdiction within the District, City, Town, or
place where tha offender shall reside or be, of
the offence shall be committed, either by the
confession of the party offending, or by the oath
of any creditable witness, or levied, with the
costs attendmg the s..mmons and conviction by
distress and sale of the goods and chattels of
the party offending, by warrant under the hand
of any such Justice ; and the overplus (if any)
after such penalties, fines and forfeitures, and
the charges of such distress and sale are de-
ducted, shall he rcturnod, upon demand, unto
the owner of such goods and chattels.
XCVII. And he it enacted, That if any such
penalties, finco and forfeitures, respectively,
shall not be paid fr -thwitli upon conviction, it
shall bo lawful for such Justice io order the
offender so convicted to be detained in safe
custody until return can be conveniently made
to such warrant of distress, unless such offender
shall give sufficient security to the satisfaction
of such Justice for his appearance before him
on such day as shall be appointed for the return
of such vvarrant of distress, such day not being
more than eight days from the time of taking
any such security, which security such Justice
shall be empowered to take, by way of recog-
nizance, as otherwise to him shall seem fit.
XCVIII. And hell enacted, That if upon the
return of such warrant it shall appear that no
sufficient distress can be had thereupon, or in
case it shall appear to the satisfaction of such
Justice, either by the confession of the offender
or otherwise, that he hath not within the juris-
diction of such Justice sufficient goods and
chattels whereon to levy all sucii penalties,
forfeitures, costs and charges, ruch Justice may
at his discretion, without any warrant of dis-
tress, commit the offender to the common gaol
of the District, for any time not exceeding two
months, unless such penalties, forfeitures and
fines, and all reasonable charges attending the
recovery thereof, shall be sooner paid and
satisfied.
XCIX. And be it enacted, that the monies
arising from any such penalties, forfeitures,
and fines, a aforesaid, when paid and levied,
shall (if not by this Act directed to be otherwise
applied in aid of the general fund thereof.
C. And he it enacted, That in all cases in
which by this Act any penalty or forfeiture
is made recoverable before a Justice of the
Peace, it shall be lawful for such J^ nice to
summon before him the party complained
against, and on such summons to hear and
determine the matter of such "omplaint, and
on proof of the offence to convict the offender,
and to adjudge him to pay the penalty or for-
feiture incurred, and to proceed to recover the
same, although no information in writing shall
have been exhibited before him ; and all sue!
proceedings by summons without information
in writing shall be as valid and effectual to all
intents and purposes as if an information in
writing had been exhibited.
CI. And he it enacted, T^it in all cases
lect
ent, and
f the Die
moved,
e Clerk'i
e Judge
jirect, it si
t a warr
such Di
Iroceeding
such C
ts, and
h judgn
Ind as fuf
lurposes, a
idgment i
iken in tl
idgment v
ailiff, or o
id exercisi
lis Act up
filed in
which tl
ave been t
the Distr
ndered.
cm. An
rdict, or ji
Deeming ;
is Act, she
rm.
CIV. Am
r distress s
» be levied
self shall
irty makin
1 account
formation,
ecept or
r shall
where any conviction shall be had for any gspj^gg^^
offence committed against this Act, the form of
conviction may be in the words, or to the effect
following (that is to say.)
"Be it remembered, that on this of-
in the year of our Lord, -; , A. B. is convicted
before , of Her Majesty's Justices of the
Peace for the , of having (state the case) ay ho law
nnA ! ffw \\Tct\ tKo cfiirl .. A Ck niWwActf^ ihp ;,l r^ ^
and 1, (or we) the said do adjudge the
said ■ to forfeit and pay for the same the
sum of or to be committed to ——— fo
the space of given under hand- an
ly irregula
itted by th
irty aggrit
ay recove
mage in a
CV. And
id Courts
inowledg
Defendan
vision Coi
same, ai
nt, shall
iliffor Cl<
seal- this day and year aforesaid."
ClI. And he it enacted, That if any person
against whom a judgment may have been en-l
tered up in any Division Court in any Dis-|d upon th
trict shall remove to another District withoulfnowledg
satisfying the said judgment it shall be lawfu
for the party in whose favour such judg
ment was rendered to obtain from the Clerk
the Court where such judgment was renders
a copy of the same, to be certified under tl
Seal of the said Division Court, and signed '
)ved by t
' or Clerk
I such O!
not, and
intift'or ]
ing such
the said Judge, to be a true copy of such jadgBerest in t
if upon the
ear that no
upon, or in
ion of such
he offender
n the juris-
goods and
penalties,
Justice may
rant of dis-
mmon gaol
jeeding two
feitnres and
tending the
r paid and
the monies
forfeitures,
and levied,
je otherwise
lereof.
ail cases in
or forfeiture
stice of the
J,, nice to
omplained
to hear and
mplaint, and
the offender,
nalty or for
) recover the
writing shall
and all sucli
L information
ffectual to all
[formation in
27
in all cases
had for any
t, the form ol
r to the effect
lis of-
3. is convicted
lent, and upon production thereofto the Judge
the District to which the party may have
emovTid, and upon the same being filed in
e Clerk's office of such Division Court, as
le Judge shall by indorsement upon such copy
irect, it shall be lawful for the plaintiff to sue
ut a warrant of execution upon such judgment
I such Division Court, and to take all other,
roceedings and remedies whatsoever thereupon
such Court, against goods, chattels and
Rbcts, and against the person against whom
ich judgment wus rendered, in like manner
nd as luUy and effjctually to all intents and
urposes, as the party in wiiose favour the
idgment uas rendered, could or might have
ikan in the Division Court where the sai
idgment was rendered, and the Judge, Clerk,
ailiff, or other officer of such Court shall have
id exercise all the powers and authorities of
lis Act upon such transcript of the judgment
filed in the Division Court, in the District
) which the party has so removed, as might
ave been taken and exercised under this Act
I the District in which the said judgment was
jndered.
CUT. ^ind be it enacted, That no order,
erdict, or judgment, or other proceeding, made
jncerning any of the matters provided for by
lis Act, shall be quashed or vacated for want of
irm.
CIV. ^nd be it enacted, That when any levy
distress shall be made for any sum of money
be levied by virtue of this Act, the distress
self shall not be deemed unlawful, nor the
irty making the same be deemed a trespasser,
account of any defect or want of form in the
formation, summons, conviction, warrant,
ecept or other proceeding relating thereto
)r shall the party distraining be deemed a
espasscr from the beginning on account of
y irregularity which shall afterwards be com-
itted by the party so distraining, but that the
irty aggrieved by such irregularity, shall and
ay recover full satisfaction for the special
mage in an action on the case.
CV. And be it enacted, That it shall and
ay bo lawful for any Bailiff or Clerk of tlie
ustices of the
tate the case)
,0 adjudge ihe jd Courts to accept and take a confession or
"inowledgemcnt of debt from the Defendant
Defendants in any suit to be brought in any
vision Court, who may be desirous of makinc
same, and such confession or acknowledge-
nt, shall be in writing, and witnessed by the
liffor Clerk at the time of the taking thereof,
d upon the production of such confession or
the same the
to fo
hand- and
.1
shall bo lawf'-i
such judg
and signed h
I of such judg
it any person
have been en
, in any Dis-i
istrict without mowledgomonl to the Judge, and its being
ved by the oath or atiidavit of the said Bai
or Clerk, judgment may be entered thereon,
m the Clerk t' such oath or affidavit shall state that he
was rendered) ' ^ot, and is not to receive anything from the
ified under th( lintiffor Defendant, or any other person, for
ing such acknowledgment, and that he has no
erest in the demand sought to be recovered.
CVI. And, for the protccUon of persons act-
ing in the execution of this Act, be it enacted,
That all actions and prosecutions to be com-
menced against any person for anything done in
pursuance of this Act, shall be laid and tried in
the District where the fact was committed, and
shall be commenced within six calendar months
alter the fact committed, and not afterwards or
otlierwise; and the Defendant in every such
aciion or suit may plead the general issue, and
thiri! Act and the special matter in evidence in
nny trial to be had thereupon; and notice in
writing of such action, a;;d of the cause thereof,
shall he given to the Delendanl one calendar
month at least before tlio commencement of
the action ; and no Plaintitf shall recover in any
such action if tender of sulficient. amends shall
have been made before such action brought, or
if aiter action brought a sulficient sum of money
shall have been paid into Court with costs, by
or on behalf of the defendant.
CVII. And be it enacted. That if any person
shall bring any suit in any of Her Majesty's
superior Courts of Record in respect of any
grievance committed by any Clerk, Bailiff or
officer of any Court holdon under this Act,
under colour or pretence of the process of the
said Court: and the Jury upon the trial of the
action shall not find greater damages for the
Plaintiff than the sum of £lO; no costs shall be
awarded to the Plaintiff in such action, unless
the Judge certify in Court upon the back of
the record, that the action was fit to be brought
in such Court.
CVIII. And be it enacted, That when any
Clerk or Bailiff of any Division Court, by him-
self, or jointly with any other person, is liable to
be sued, or may sue any other person for a
debt or demand within the jurisdiction of the
Division Court, of which he shall he Clerk or
Bailift", then and in evei^> ...ch case such Clerk
or Bailiff may sue, and shall be liable to be sued
for any debt due to or by him, separately or
jointly with any ether person, in the adjoining
Division in the same District in which the
Court is held nearest to the Division of which
the party is so Clerk or Bailiff, in the same
manner to all intents and purposes, as if the
cause of action for which any such suit shall be
brought had arisen within such next adjoining
Division, or the Defendant were resident
therein.
CIX. And be it enacted. That in construing
this Act, the word " person," shall be taken to
comprehend a body politic or corporate, or col-
legiate as well as an individual; and every word
importing the singular number, when necessary
to give full effect to the enactments herein
contained, be understood to mean several per-
sons or things as well as one person or thing ;
and every word importing the masculine gender
shall, where necessary be understood to mean a
i^
wm
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28
female ds well as a male ; and that the words
" Canada West," shall be taken to mean that
portion of the Province formerly constituting
the Province of Upper Canada-
ex. ^nd be it enacted, That this Act shnlll
come into, and shall be in force and operatioiij
upon from and after the first day of
next, after the passing hereof.
SCHEDULE OF FEES.
' FEE FUND.
Entering account, and issuing summons
Hearing an undefended cause
Hearing a defended cause
Every order or Judgment, or application for an
order (not to be charged when the defendant
has given a confession of judgment)
THE CLERK'S FEES.
Entering every account, and issuing summons
Every summons to witness
Adjournment of any cause ,
Entering and giving notice of special defence
Entering every judgment
Paymerjt of money out of Court, and taking re-
ceipt
Every search
Taking Confession of Judgment
Every Warrant, Attachment, or Execution
For every certificate copy of Judgment to another
District
Supersedeas of Execution, or certificate of payment,
or withdrawal of cause
Deposit to be paid by party requiring Jury
Entering and giving notice of Jury being required.
Every summons for the Jury
TliE BAILIFF'S FEES.
Service of summons or other proceeding on each
person , . ,
For taking Confession of Judgment, 3d.
Affidavit of service of Summons, when served out of
the Division
Execution of every Warrant, P.ecept, or Attach-
ment against the goods or body
For every mile travelled more than two from the
Clerk's office, to serve Summons, or execute
Warrant, 4d.
For every Jury Summoned and Sworn, 2s. 6d.
For carrying delinquent to prison, including all
expenses and assistance, per mile, Is.
Not Exceed-
ing £2.
9 O
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