and in case any party or partics shall have given such notice of trial as aforesaid, and shall not afterwards duly countermand the same, in writing, at least four days before such intended trial, every such party shall, upon neglect of bringing such issue to trial, be obliged to pay unto the party or parties to whom such notice of trial shall have been given, as aforesaid, the like costs and charges as if such trial had not been countermanded. of. Countermand there.. Notice of trial in the other Districts. c9. (a) See 41 Geo. III. XXII. And be it further enacted by the authority aforesaid, That no indictment, information or cause whatsoever, shall be tried at Nisi Prius before any Judge or Justice of Assize or Nisi Prius, in any District, other than the Home District, or district where the Court shall be holden, unless notice of trial has been given, at least twenty (a) days before such intended trial; and in case any party or parties shall have given such notice of trial as aforesaid, and shall not afterwards duly countermand the same, in writing, at least fourteen days before such intended trial, every such party shall, upon neglect Counters.and thereof. of bringing such issue to trial, be obliged to pay unto the party or parties to whom such notice of trial shall have been given as aforesaid, the like costs and charges as if such.trial had not been countermanded. XXIII. And whereas it may in many cases be desirable for the furtherance of justice to obtain the depositions of witnesses in civil suits, which cannot be had by the ordinary process of subpoena, Be it enacted by the authority aforesaid, That where the cause of action arises without the jurisdiction of the Court, it shall and may be lawful on special application for that purpose made, to issue a commission under the scal of the Court, to take the examination of witnesses residing without the limits of the Province, due notice being given to the adverse party, to the end that he, she or they, may cause such witnesses to be cross examined, and also that when the testimony of any aged or infirm person, or of any person about to depart the Province may be required, it shall and may be lawful for the said court to issue a commission, in like manner, for the examination of such aged or infirm person, or of any person about to depart the Province, due notice being given to the adverse party for the for the purposes aforesaid. XXIV. Provided always, and be it further enacted, That the examination of such aged or infirm person so taken, shall not be admitted or read at the trial of any issue, in case he or she be living at the time of the trial, and that the examination of such person about to depart the Province, so taken, shall not be admitted or read at the trial of any issue, in case he or she shall be in the Province at the time of such trial. Costs of suit to be regulated by the statutes XXV. And be it further enacted by the authority aforesaid, That the allow and usages of England. ance of costs to either party, plaintiff or defendant, in all civil suits and penal actions, be regulated by the statutes and usages which direct the payment of costs, by the laws of England.(b) c 4. (b) (Sce 58 Geo. III. Commissioners to be XXVI. And be it further enacted, That the Chief Justice, and other the Justices of the said Court of King's Bench for the time being, or any two of favwered to inke af thein, whereof the Chief Justice for the time being to be one, shail, and may by one or more commission or commissions, under the seal of the said Court, from time to time, as need shall require, empower what, and as many per N sons sons as they shall think fit and necessary, in all the several Districts within this Province, to take and receive all and every such affidavit and affidavits as any person or persons shall be willing and desirous to make before any of the persons so empowered, in or concerning any cause, matter or thing depending, or hereafter to be depending, or in any wise concerning any of the proceedings to be in the said respective Courts, and that it shall and may be lawful for any Judge of Assize, in his Circuit, to take and receive any Affidavit or Affidavits as any person or persons shall be willing and desirous to make before him, in or concerning any cause, matter or thing depending, or hereafter to be depending, or in any wise concerning any proceedings to be had Force and effect of in the said Court of King's Bench, which said affidavits, taken as aforesaid, shall be filed in the office of the said Court, and there be read and made use of in the said Court, to all intents and purposes as other Affidavits, taken in the said Courts ought to be, and that all and every Affidavit and Affidavits, taken as aforesaid, shall be of the same force as Affidavits taken in the said Court shall and may be ; and all and every person or persons forswearing Pains and penalties him, her, or themselves, in such Affidavit or Affidavits, shall incur and be of perjury in making liable unto the same pains and penalties as if such Affidavit or Affidavits had been made and taken in open Court. Provided always, that for the taking of every such Affidavit, the person or persons so empowered and taking the Fee for taking affida- same, shall, for so doing, receive only the sum or fee of twelve pence and no such affidavits. such affidavit. vit. Commissioners to be cognizances of bails. more. XXVII. And be it further enacted by the authority aforesaid, That the Chief empowered to take re- Justice for the time being, and other the Justices of the said Court of King's Bench, or any two of them, whereof the said Chief Justice shall be one, shall or may by one or more commission or commissions, under the seal of the said Court, from time to time as need shall require, empower such and so many persons as they shall think fit and necessary, in all and every the several Districts of this Province, to take and receive all and every recognizance or recognizances of bail or bails, as any person or persons shall be willing or desirous to acknowledge, or make before any of the persons so empowered, in any action or suit depending, or hereafter to be depending in the said Court, in such manner and form, and by such recognizance or bail as the Justices of the said Court may hereafter take, or may think fit; which said recognizance or recognizances of bail, or bail-piece, so taken as aforesaid, shall be transmitted to any one of the Justices of the said Court, who upon Affidavit made of the due taking of the recognizance of such bail, or bailpiece by some credible person, present at the taking thereof, such Justice shall receive the same; which recognizance of bail, or bail-piece, so taken and transmitted, shall be of the like effect as if the same were taken de bene esse, before any of the said Justices; for the taking of which recognizance Fee for taking the or recognizances of bail, or bail piece, the person or persons so empowered, shall receive only the sum or fee of two shillings, and no more. Means of rendering ach recognizances of beil effectual. same. Rules to be made for which the cognizors XXVIII. And be it further enacted, That the Justices, respectively, shall justifying of bai!, but by make such rules and orders for the justifying of such bails, and making of shall not be compella- the same absolute, as to them shall seem meet, so as the cognizor o cognihle to personal appear- zors of such bail or bails be not compelled to appear in person in the said ance in court. Court, to justify him or themselves; but the same may, and is hereby directed to be determined by Affidavit or Affidavits, duly taken before the said commissioners commissioners, who are hereby empowered and required to take the same, and also to be examined by the Justices upon oath, touching the value of their respective estates. XXIX. And be it further enacted, That any Judge of Assize, in his circuit, shall and may take and receive all and every such recognizance or recognizances of bail or bails, as any person shall be willing and desirous to make and acknowledge before him, which being transmitted in like manner as aforesaid, shall, without oath be received in manner as aforesaid. XXX. And be it further enacted, That the several Acts and Ordinances of the Governor and Council, of the late Province of Quebec, whereby the several Courts of Common Pleas in this Province were constituted, and from time to time continued, be, and each and every of them are hereby repealed. Recognizances of bail before a judge of assize to be valid. Ordinances, constitus ting the former courts pealed. of common pleas, re Provision for actions courts of common pleas XXXI And be it further enacted, That all proceedings upon actions, instituted and pending in any of the late Courts of Common Pleas in this Province, shall forthwith be transmitted into the said Court of King's Bench, pending in the late there to be continued to judgment and execution, as if the same had been commenced in the said Court, for which purpose it shall and may be lawful for the Governor, Lieutenant Governor or person Administering the Government of this Province, to issue a commission for the trial of all issues that may be joined in any of the said Courts in their respective Districts, and to direct that the records thereof be returned into the said Court of King's Bench. XXXII. And be it further enacted, That all and singular the records of the several Courts of Common Pleas for the Eastern District, for the Midland District, for the Home District, and for the Western District of this Province, respectively, shall be transmitted to, and deposited in the said Court of King's Bench, and make a part of the records of the said Court, for all such purposes as to Law and Justice may appertain. XXXIII. And be it further enacted, That the Governor, Lieutenant Governor, or person Administering the Government of this Province, or the Chief Justice of the Province, together with any two or more members of the Executive Council of the Province, shall compose a Court of Appeal, for hearing and determining all appeals from such judgments or sentences as may lawfully be brought before them. XXXIV. Provided always and be it further enacted That when any person having given the judgment or sentence appealed from, shall be a member of the Court of Appeal, it shall and may be lawful for him to assign to the said Court his reasons for delivering such judgment, in case he shall be so disposed, but he shall not be at liberty to give his vote in the decision of the tion before the Court. ques XXXV. And be it further enacted, That an appeal shall lie to the Court of the Governor and Executive Council, from all judgments given in the said Court of King's Bench, in all cases where the matter of controversy shail exceed the sum of one hundred pounds, or shall relate to the taking of any annual or other rent, customary or other duty, fee, or any other such like demand, of a general and public nature, affecting future rights, of what value or amount soever the same may be, upon proper security being given by the appellant that he will effectually prosecute his appeal and answer the conSecurity to be given. demnation, and also pay such costs and damages as shall be awarded in case the judgment or sentence appealed from shall be affirmed, and that upon the perfecting such security, execution shall be stayed in the original cause. Majesty in council. XXXVI. And be it further enacted by the authority aforesaid, That the judg Cases of appeal to his ment of the said Court of Appeal shall be final, in all cases where the matter in controversy shall not exceed the sum or value of five hundred pounds sterling, but in cases exceeding that amount, as well as in all cases, where the matter in question shall relate to the taking of any annual or other rent, customary or other duty, or fee, or any other such like demand of a general and public nature, affecting future rights, of what value or amount soever the same may be, an appeal may lie to His Majesty, in his Privy Council, upon proper security being given by the appellant that he will effectually prosecute his appeal, and answer the condemnation, and also pay such costs and Security to be given. damages as shall be awarded by His Majesty, in his Privy Council, in case the judgment of the said Court of Governor and Executive Council, or Court of Appeals shall be affirmed, and upon the perfecting of such security, execution of the said judgment shall be stayed, until the final determination of such appeal to the King in Council. Provision for remov ing the court of King's Bench to another place of holding the same. Fees. Provided always and be it further enacted, That in time of actual war, and when there may be reason to suspect an invasion of the Province from the King's enemies, it shall and may be lawful for the Governor, Lieut nant Governor or person Administering the Government, by and with the advice and consent of the Executive Council, to issue his Proclamation to remove the place of holding the said Court, and to appoint and make known such other place, within the limits of the Province, as shall be deemed most safe and convenient for holding the same. XXXVII. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the persons hereinafter mentioned, to demand and take the following fees, and no more, for the services respectively set forth. XXXVIII. Provided always, That it shall and may be lawful for His MaIncreased feesallow jesty's Attorney General to demand and receive his fees in the increased proportion of one third, to the following table, to wit: ed his Majesty's attor ney general. £ s. d. Taking instructions to prosecute or defend with warrant of attorney, 0 50 050 Copy of the same, 026 Entering common appearance with clerk, 0 10 Pleading general issue, 030 Special plea, replication, or other pleading, Copy of the same, Drawing of affidavit, 0 10 0 030 050 Every special motion, Arguing demurrer, Fee with brief in matters under £ 30-10s. above Every necessary attendance at the office, or on adverse party, Attending taxation of costs, FEES to be taken by the CLERK of the King's Bench in Civil Causes. For sealing, entering and filing every writ or precipe, Drawing every order or rule of court, Filing every declaration, plea, demurrer, or any pleading or Attending and striking of special jury, with copies to each party, Drawing every postea and judgment, Writ of execution, Exemplifications and copies of all records, for each sheet con taining 72 words, Searching records for any one year, General search, 026 0 10 O 0 10 0 010 0 76 020 020 O 5 0 Calling Plaintiff on nonsuit, Proclamation calling any party on recognizance, Travelling per mile, Executing writ of inquiry, summoning jury, and return of in quisition, Attending view per diem, 050 0 0 6 0 10 0 0 10 (See 35th Geo. III. c 4-36, c 2,-37. 4 & 9, 0-38, c.6,-40, c 1-41 |