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Jurisdiction and pow. shall be a Court of Record of original jurisdiction, and shall possess all such

erg thereof.

Persons who shall preside therein, & place

where the same shall be holden.

Terms of sitting.

At what periods the

same shall commence respectively.

(a) See 31 Geo. III.

4, $3.

The Count may ad day to the next imme

journ from one return diate one.

Manner of issuing &

returnable.

powers and authorities as by the law of England are incident to a Superior Court of civil and criminal jurisdiction, and may and shall hold plea in all and all manner of actions, causes or suits, as well criminal as civil, real, personal and mixed, arising, happening or being within the said Province, and may and shall proceed in such actions, causes or suits, by such process and course as shall tend, with justice and despatch, to determine the same, and may and shall hear and determine all issues of law, and shall also hear, and by and with an inquest of good and lawful men, determine all issues of fact that may be joined in any such action, cause or suit as aforesaid, and judgment thereon give, and execution thereof award, in as full and ample a manner as can or may be done in His Majesty's Courts of King's Bench, Common Bench, or in matters which regard the King's revenue by the Court of Exchequer in England. And that His Majesty's Chief Justice of this Province, together with two Puisne Justices, shall preside in the said Court, which Court shall be holden in a place certain, that is, in the city, town or place where the Governor or Lieutenant Governor shall usually reside; and until such place be fixed, the said Court shall be holden at the last place of meeting of the Legislative Council and Assembly.

II. And in order that certain stated times be fixed for the sitting of the Court, Be it enacted by the authority aforesaid, That four periods of Session or Terms be appointed in each year, successively, to be known by the names of Hilary, Easter, Trinity and Michaelmas Term. That the Hilary do commence on the third (a) Monday in January, and end on the Saturday of the censuing week. That Easter Term do commence on Monday next after the sixteenth day of April, and end on the Saturday of the ensuing week(a). That the Trinity Term do commence on the third(a) Monday in July, and end on the Saturday of the ensuing week. And that the Michaelmas Term do commence on the first Monday in October(a) and end on the Saturday next ensuing. And that the first and last days of every Term, and every alternate day from the first, not including Sunday, be return days.

III. Provided always, and be it hereby further enacted, That when the Court shall have good reason to believe there will not be sufficient business to require their daily attendance throughout the term, they may be at liberty to adjourn the Court on any return day, to the next immediate return day.

IV. And be it further enacted by the authority aforesaid, That all Writs, to testing writs, and when be sued out of the said Court, shall issue in the King's name, and be tested by the Chief Justice, or in his absence, by the senior Judge of the Court, and be returnable on some return day in Term time, and that not less than fifteen days inclusive, shall always intervene between the teste and return of the first process that shall be directed to the Sheriff of the Home District, or (b) Fifteen-See 37 the District in which the Court shall be holden, and that not less than forty (b) days inclusive, shall always intervene between the teste and return of the first process into every other District.

Geo. III. c 4, s 2.

Original process.

V. And Be it further enacted by the authority aforesaid, That the original and first process of the said Court, shall be by writ of capias ad respondendum; and

and in order that the defendant or defendants may be immediately apprized of the cause of complaint against him or them, the said writ shall state the form of action, and refer to the declaration which shall always be annexed to, and served with the writ; and for that purpose it is hereby further enacted, That no process shall issue at the suit of any plaintiff, where the defendant is not to be holden to special bail, until the declaration on which it may be founded shall be filed in the office.

VI. And be it further enacted by the authority aforesaid, That no person shall be arrested or holden to special bail, upon any process issuing out of the said court in a civil suit, unless an affidavit be first made by the plaintiff, that the defendant is justly and truly indebted to him, in a sum certain, which together with the account for which it became due, shall be specified, and also that the deponent verily believes the defendant is about to leave the Province, with an intent to defraud his creditors, which affidavit may be made before any Judge or Commissioner of the Court, authorized to take affidavits as herein after is provided, or else before the officer who shall issue such process, or his deputy, which oath the said officer or his deputy are hereby authorized to administer; and for such affidavit one shilling shall be paid and no more; and the sum or sums specified in such affidavit, shall be indorsed on the back of the writ, or process, for which sum or sums the Sheriff or other officer to whom such writ or process shall be directed shall take bail, and for no more.

VII. And whereas by reason of the present want of a certain and ready communication throughout the Province, it may be practicable for fraudulent persons to escape from their creditors, before process can be obtained from the said court to prevent them, be it therefore enacted by the authority aforesaid, That it shall and may be lawful for any plaintiff having made such affidavit as aforesaid, to sue out from the Clerk of the Peace in each and every District, a writ of capias ad res pondendum, with which the said Clerk shall, from time to time be supplied, signed by the proper officer of the court, on which shall be indorsed the amount of the sum sworn to, and to which the said affidavit shall be annexed; whereupon it shall and may be lawful for the Sheriff to arrest the said defendant and hold him to special bail, to the amount of the sum indorsed.(a)

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Ordinary course of,

suits.

VIII. And be it further enacted by the authority aforesaid, That in all civil suits where the defendant shall not be holden to bail, by reason of such af- proceeding in civil fidavit, as aforesaid, the ordinary course of proceeding shall be by serving or causing the defendant or defendants personally to be served with a copy of the process and declaration, by some literate person; and if such defendant or defendants shall not appear at the return of the process, or within eight days after such return, in such case it shall and may be lawful for the plaintiff or plaintiffs, upon affidavit being made and filed of the personal service of such process and declaration, which affidavit shall be filed gratis, to enter service, a common appearance for the defendant or defendants, and to proceed thereon, as if such defendant or defendants had entered his, her or their appear.

ance.

IX. And be it further enacted by the authority aforesaid, That upon every copy of such process, to be served upon any defendant, shall be written a no

M

tice.

Affidavit of personal

Notice.

In the English tongue.

(a) See 37 Geo. III. 04, s 5.

tice in the English tongue, to such defendant of the intent and meaning of such service to the effect following:

"A. B. You are served with this process, to the intent that you may, either in person or by your attorney, appear in His Majesty's Court of King's Bench, at the return thereof being the in order to your defence in this action."(a)

day of

And when any party, defendant, is a Canadian subject by treaty, or the In the French tongue. son or daughter of such Canadian subject, the like notice shall be written in the French language.

Appearance.

Demand of a plea.

"A. B. Il vous est enjoint et ordonne de comparoitre personellement ou par procureur a la Cour du Banc du Roy a l'expiration de ce writ qui sera le

jour

pour repondre a cette action."(a)

X. And be it further enacted by the authority aforesaid, That it shall and may be lawful for each and every defendant personally to attend and enter his, her or their appearance at the office, on or before the day at which the process or writ shall be returnable, or to authorize any person to enter an appearance for him, her or them: and that in all actions or suits where the defendant or defendants have entered, or caused such appearance to be entered, the plaintiff or his attorney shall, by a demand in writing, call for a Time allowed for fi plea; and in all actions or suits where the defendant or defendants live within the Home District, or the District in which the Court shall be holden, four days shall be allowed after such demand, as the ordinary time within which they shall be required to file their plea to the action; and in all actions or suits, where the defendant or defendants reside without the limits of the Home District or District in which the Court shall be holden, eight (b) days shall be allowed after such demand, as the ordinary time within which they shall be required to file their plea and; if after the expiration of such times respectively, no plea be filed, it shall and may be lawful for the plaintiff or plaintiff's or his attorney to sign judgment in the cause.

ling the same.

(b) See 41 Geo. III. c

Judgment for want

of a plea.

XI. And be it further enacted by the authority aforesaid, That in all actions Judgment for want or suits where the defendant or defendants having been served with a copy of of appearance. process, with such written notice as aforesaid, shall neglect to enter their appearance at the return of the writ, it shall and may be lawful for the plaintiff or plaintiffs, having entered such appearance for the said defendant or defendants, as (e) See 37 Geo. III. c aforesaid, at the expiration of eight days after having entered such appearance, to sign judgment in the cause, without any demand of a plea.(c)

4,5 5.

First and last days to be inclusive.

Form of proceeding to issue.

XII. And be it further enacted by the authority aforesaid, That the first and last days of all periods of time limited by this Act, or hereafter to be limited by any rules or orders of Court, for the regulation of practice, be inclusive.

XIII. And be it further enacted by the authority aforesaid, That the form of proceeding in the said court shall be by a course of pleading to issue in a most compendious manner; and that in all actions founded on a common undertaking, the following form of declaration may be adopted :

"A. B.

"A. B. complains of C. D. late of on the sum of

day of

at

Form of a declaration on a common un

for that whereas the said C. D. was indebted to the said A. B. in the dertaking. (the consideration advanced) and being so indebted, he the said C. D. then and there undertook and faithfully promised the said A. B. to pay him the said sum, when he the said C. D. should be requested, and though since requested, doth now refuse so to do, to the said A. B. his damage of £ who therefore brings his suit.

XIV. And be it further enacted by the authority aforesaid, That each and every of the statutes of jeofails, and each and every of the statutes of limitations, and each and every of the statutes for the amendment of the law, excepting those of mere local expediency, which from time to time have been provided and enacted, respecting the Law of England, be adopted and declared to be valid and effectual for the same purposes in this Province.

XV. And in order to discourage vexatious suits, and to prevent additional charges upon any defendant or defendants, who may be willing to pay the sum which he or they admit to be justly due, Be it enacted, that in all cases where the sum demanded by any plaintiff or plaintiffs, is a sum certain or is capable of being ascertained by computation of numbers, it shall and may be lawful for any defendant or defendants, to move that he or they may be at liberty to pay into court such sum as he or they shall propose to pay in full discharge of the said demand; whereupon the court may order a rule to be drawn up to such effect, or in time of vacation, such order may be made by a judge of the court, and in case the plaintiff shall be willing to accept, and shall accept the same, together with all costs accruing to that time, to be taxed by the proper officer, the same shall be in full satisfaction of such his demand, and all further proceedings in the said action shall cease; and to the end that every plaintiff, or his attorney may know of such proceeding, the defendant or defendants shall, and are hereby required to serve a copy of the rule authorizing such payment to be made, upon the plaintiff or his attorney, at the time of filing his plea of the general issue, to such plaintiff's declaration.

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Poundage and fees of the officer receiving

XVI. Provided always, That upon payment of money into court, it shall and may be lawful for the officer receiving the same, to demand and take a the same. sum not exceeding twenty shillings, for every hundred pounds so paid into court, and at and after the same rate and proportion, for every sum of money so paid, and also to demand and take the sum of one shilling for every receipt by him given on account of money so paid in as aforesaid.

Commissions of as

size and nisi prins to issue, yearly, into the

XVII. And for the more convenient administration of Justice throughout the Province, Be it enacted, That it shall and may be lawful for the Governor, Lieutenant Governor or person administering the Government of this Province, to issue yearly and every year, in the vacation between the Trinity and Michaelmas Terms, such commissions of Assize and Nisi Prius, into the several Districts, as may be necessary for the purpose of trying all issues joined in the said Court, in any suit or action arising in the said Districts respectively; and that when a suitable communication by land shall be o- and oftener, when cirpened from the city, town or place, which shall be the Seat of Government, cumstances will per

several districts,

mit.

into the respective Districts, and the circumstances of the Province may require it, it shall and may be lawful for the Governor, Lieutenant Governor or Person Administering the government, likewise to issue yearly and every year, in the vacation, between the Hilary and Easter terms, such commissions of assize and nisi prius into each of the several Districts, as may be necessary for the trial of all issues joined in manner aforesaid; and to that end it shall and may be lawful for any person or persons upon reasonable notice given to the adverse party, or their attorney, to take and sue forth such writs and records Writs to be sued forth of nisi prius, as may be necessary for the trial of all issues joined in the said court as may be triable in the respective Districts of this Province, and thereupon sue out their jury process in such manner and form, and with such awards, as is (a) See 36 Geo. III. practised in the courts of nisi prius in England.(a)

accordingly by the par

Cies.

€2.

Special commissions

for the trial of offenders

to issue, notwithstanding, when expcdient.

Period and manner of trying issues joined

in the Home District.

XVIII. Provided always, That nothing herein contained shall prevent or be construed to prevent the Governor, Lieutenant Governor or Person Administering the Government of this Province, from issuing a special commission or commissions for the trial of one or more offender or offenders, upon extraordinary occasions, when he shall deem it requisite or expedient that such commission should issue.

XIX. And be it further enacted by the authority aforesaid, That upon all issues joined in the said Court in any suit or action which shall arise or be triable within the Home District, or in the District where the Court shall be holden, the Chief Justice, or in his absence, any other Judge of the said Court, shall, as Justice of Nisi Prius, for the said District, at their discretion, either in term time, or within ten (b) days next after the end of every Easter and Trinity term, respectively, try all manner of issues joined in the said Court, which ought to be tried by an inquest of the said District, and that Writs of nisi prius to commissions and writs of Nisi Prius shall be for that purpose from time to time awarded; and it shall and may be lawful for any person or persons, upon reasonable notice as herein after set forth, given to the adverse party or their attorney, to take and sue forth such writs and records of Nisi Prius as may be necessary, for the trial of such issues as aforesaid.(b)

be sued forth.

(b) See 37 Geo. III. 9, & 57, c 9.

Sheriffs to make re

turn of all writs of nisi prius, and to give their attendance upon the chief justice, or other judge of assize.

Home District

XX. And be it further enacted by the authority aforesaid, That the Sheriffs of the several Districts shall, and they are hereby required to make return of all writs of Nisi Prius which shall be delivered to them, or their sufficient deputy, before the said Chief Justice, and every other Judge who shall be assigned to execute such commissions of Assize and Nisi Prius, and shall give their attendance upon the said Chief Justice, and each other Jutice, as well for the returning of such tales de circumstantibus as shall be prayed for the trial of such issues, as for the maintenance of good order in the King's Court, and for the doing and executing of all other things to the office of Sheriff in such case belonging and appertaining.

XXI. And be it further enacted by the authority aforesaid, That no indictNotice of trial in the ment, information or cause whatsoever, shall be tried at Nisi Prius, before any Judge or Justice of Assize or Nisi Prius, or at the sittings for the Home District, or District where the said Court shall be holden, unless notice of trial, in writing, has been given at least eight days before such intended trial;

and

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