« PreviousContinue »
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 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 countermarded.
es without the Pro.
XXII. And be it further enacted by the authority aforesaid, That no indictment, information or cause whatsoever, shall be tried at Nisi Prius before Notice of trial in the any Judge or Justice of Assize or Nisi Prius, in any District, other than the other Districts. Home District, or district where the Court shall be holden, unless notice of
(a) See 41 Geo. III. trial has been given, at least twenty (a) days before such intended trial; and 69." 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
Counter.and thereof. of bringing such issue to trial, be obliged to pay unto the party or parties to whom such notice of trial shall bare been given as aforesaid, the like costs and charges as is such.trial had not been countermanded.
Commissions for the XXIII. And whereas it may in many cases be desirable for the furtherance examination of witnessof justice to obtain the depositions of witnesses in civil suits, which cannot
vince, and of persons, be had by the ordinary process of subpoena, Be it enacted by the authority aged, infirm, or going aforesaid, That where the cause of action arises without the jurisdictiun of 10 the Court, it shall and may be lausul on special application for that purpose made, to issue a commission under the seal 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 inanner, 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 purposcs aforesaid.
Esceptions in certain XXIV. Provided always, and be it further enacted, That the examination of cases to the evidence
i obtain. d by such esa. such aged or infirm person so taken, shall not be admitted or read at the trial minalivus.' 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 re
gulated by the statutes XXV. And be it further enacted by the authority aforesaid, That the allow- and usages of Englaud. 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 payınent
(6) (Sce 58 Geo. III. of costs, by the laws of England.(b)
XXVI. And be it further enacted, That the Chief Justice, and other the Commissioners to le Justices of the said Court of King's Bench for the time being, or any two of Gdavits:
empowered to inke a thein, whereof the Chief Justice for the time being to be one, shail, and may by one or more commission or con missions, under the seal of the said Court, from time to time, as need shall require, empower what, and as many per
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 Affida. vit 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 here
after to be depending, or in any wise concerning any proceedings to be had Force and effect of in the said Court 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 Atfidavits, taken in the said Courts ought to be, and that all and every Affidavıl 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 ba such affidavit.
maklig 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 afida- same, shall, for so doing, receive only the sum or fee of twelve pence and no
XXVII. And be it further enacted by the authority aforesaid, That the Chief Commissioners to be empowered to take re- Justice for the time being, and other the Justices of the said Court of King's cognizances of Lails.
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
dering Affidavit made of the due taking of the recognizance of such bail, or bailsuch recognizances of piece by some credible person, present at the taking thereof, such Justice beil effectual,
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 fec of two shillings, and no more. Rules to be made for XXVIII. And be it further enacted, That the Justices, respectively, shall justifying of bail, but by make such rules and orders for the justifying of such bails, and making of which the cognizors shall not be compella- the same absolute, as to them shall seem meet, so as the cognizor or cogni. hle 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, 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.
assize to b
XXIX. And be it further enacted, That any Judge of Assize, in his circuit,
Recognizances of shall and may take and receive all and every such recognizance or recogni- bail before a judge of zances of bail or bails, as any person shall be willing and desirous to make ass 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 Ordinances, constitus the Governor and Council, of thie late Province of Quebec, whereby the se- ting the former courts
of common pleas, re. veral Courts of Common Pleas in this Province were constituted, and from pealed. time to time continued, be, and each and every of them are hereby repeal
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 Pro- Pri vince, shall forthwith be transmitted into the said Court of King's Bench, pending in the late
? courts of common pleas there to be continued to judgment and execution, as if the same had been conimenced 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 The records of the District, for the Home District, and for the Western District of this Province, late courts of common
pleas to be deposited in respectively, sball be transmitted to, and deposited in the said Court of King's the court of King's Bench, and make a part of the records of the said Court, for all such pur- Bench. poses as to Law and Justice may appertain.
Court of appeals.
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
es The judges below, if having given the judgment or sentence appealed from, shall be a member of members of the court the Court of Appeal, it shall and may be lawful for him to assign to the said appeal, may hasian
their re:1sons, but not Court his reasons for delivering such judgment, in case he shall be so dispos- give their votes in aped, but he shall not be at liberty to give his vote in the decision of the question before the Court.
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 shall
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 allirmed, and that upon the perfecting such security, execution shall be stayed in the original cause.
XXXVI. And be it further enacted by the authority aforesaid, That the judg'Cases of appeal to liis ment of the said Court of Appeal shall be final, in all cases where the maiMajesty in Cuancil.
ter incontroversy shall not exceed the sun 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 takiog of any annual or other rent, customary or other duty, or see, or any other such like demand of a general and public nature, affecting future rights, of what value or amount soever the sanie may be, an appeal may lie to His Majesty, in his Privy Council, upon proper security being given by the appellant that lie will essectually prose
cute 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 aflirmied, and upon the perfecting of such security, execution of the said judgment shall be stayed, until the final deterinination of such appeal to the King in Council.
Bench to ano
Provided always and be it further enacted, That in time of actual war, and Provision for remov. ing the court of king's when there may be reason to suspect an invasion of the Provioce from the of bolding the same.
er place King's enemies, it shall and may be lawful for the Governor, Lieut-want Gor
ernor 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 :o 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 ed his Majesty's attordey general. proportion of one third, to the following table, to wit :
£ s. d. Taking instructions to prosecute or defend with warrant of attorney, 0 5 0 For drawing declaration
0 5 0 Copy of the same, Entering common appearance with clerk,
o io Pleading general issue,
0 30 Special plea, replication, or other pleading,
0 10 0 Copy of the same,
- 0 3 0 Drawing of aflidavit,
0 5 0
Notice of trial and all other notices,
Every motion of course,
FEES to be taken by the CLERK of the King's Bench in Civil Causes. For sealing, entering and filing every writ or precipe, - 0 For entering appearance,
- 0 1 0 Drawing every order or rule of court,
- 0 2 0 Filing every declaration, plea, demurrer, or any pleading or paper, .
0 2 0 Attending and striking of special jury, with copies to each party, 0 5 0 Every recognizance entered in court,
0 5 0 Drawing every postea and judgment,
0 13 4 Writ of execution,
- 0 5 0 Exemplifications and copies of all records, for each sheet containing 72 words,
- 0 1 0 Searching records for any one year,
- 0 1 0 General search,
0 2 6 Entering satisfaction on record,
- 0 2 6 Writ of execution, possession, restitution,
0 2 6
0 2 0 Calling Plaintiff on nonsuit,
0 1 0 Proclamation calling any party on i
• 0 1 0
0 5 0 Bail Bond,
0 5 0 Poundage on execution,
0 0 6
0 12 0
0 0 6 Executing writ of inquiry, summoning jury, and return of inquisition,
0 10 0 Attending view per diem,
0 15 0
C H A P. 9, 10,-5ỏ, c 19,268,