Читать книгу Documents Relating to the Constitutional History of Canada 1759-1791, Part II - Adam Shortt - Страница 31

Table of Contents

Preamble.

Whereas it is necessary for the Ease and Convenience of His Majesty's subjects who may have Actions to prosecute in the Courts of Civil Judicature established in this Province, that the mode of Administering Justice in the said Courts should be clearly ascertained, and rendered as plain as possible: It is therefore Ordained and Enacted by his Excellency the Captain General and Governor in Chief of this Province, by and with the Advice and Consent of the Legislative Council of the same, That

Manner of proceeding in Actions above the Value of £10 Sterling.

Art. 1. In all cases or Matters of Property, exceeding the Sum or Value of £10 Sterling, upon a Declaration presented to any one of the Judges of the Court of Common Pleas, by any Person, setting forth the Grounds of his Complaint against a Defendant, and praying an Order to Compel him to appear and Suing out the Summons. answer thereto, such Judge shall be, and hereby is empowered and required in his separate District to grant a Writ of Summons in the Language of the Defendant, issuing forth in His Majesty's Name, tested and signed by one of the Judges, and directed to the Sheriff of the District, to summon the Defendant to appear and answer the Plaintiffs Declaration on some certain future day, Regard being had to the Distance of the Defendant's abode from the Place where the Court sits; but if the Judges, or any Two of them are satisfied, by the Affidavit of the Plaintiff, or otherwise, that the Defendant is indebted to him, and on the point of leaving the Province, whereby the Plaintiff might be deprived of his Remedy against him; it shall be lawful for the said Judges, or Attachment against the Body where a Debtor is going to leave the Province. Declaration to accompany the Writ. any Two of them, to grant an Attachment against the Body of such Defendant, and hold him to Bail, and for Want of Bail to commit him to Prison until the Determination of the Action against him: The Declaration shall in all cases accompany the Writ, and the Plaintiff shall not be permitted to amend it until the Defendant shall have answered the matter therein contained, nor afterwards, without paying such reasonable Costs as the Court may ascertain.

Service thereof.

Art 2. Copies both of the Writ of Summons, and the Declaration, shall be served on the Defendant personally, or left at his House with some grown Person there, otherwise the Service shall be deemed insufficient.

If Defendant does not appear.

Art 3. If on the Day of the Return of the Writ of Summons the Defendant does not appear in Person, or by Attorney (Proof of such Service being produced or made in Court) the Plaintiff shall obtain a Default against the Defendant, and if on calling over the Action in the next Weekly Court Day the Defendant should still neglect to appear, without any good Reason for such his Neglect, the Court after hearing and receiving sufficient Proof of the Plaintiff's Demand, shall cause their final Judgment Judgment to be entered. to be entered against the Defendant, and shall award such Costs thereupon as they shall think reasonable, and issue such Execution as the Law, according to the nature of the case, may direct.

If Defendant appears, he is to answer the Declaration.

Art 4. If Defendant appears at the Return of the Writ of Summons, or, having made Default on that Day, pays such Costs as the Court may think reasonable, and appears on the next Weekly Court Day after such Return, he shall, either then, or on such other Day as he may obtain from the Court, make his Answer to the Declaration, either in Writing or Verbally as he thinks fit, provided that if his Answer is Verbal the Clerk of the Court shall take down the substance thereof in writing, and preserve the same amongst the Records of the Court.

If the Plaintiff does not attend, the action to be dismissed with costs.

If the Plaintiff does not appear, or appearing does not prosecute his Action, the same shall be dismissed with Costs.

Art 5. If upon the Declaration and Answer, or such further Pleadings as the Court may, if it thinks proper, permit or direct, the Parties shall appear to differ essentially in their State of If the Parties differ in their State of Facts, Court shall ascertain the Facts necessary to be proved. Facts, the Court shall ascertain and order the Clerk to take down in Writing, such Facts, material to the Decision of the Cause as it will proceed to receive Proof upon, and appoint a Day for hearing such Proofs as the Parties shall think proper to produce.

Art 6. In all Cases where Witnesses are produced they shall be examined and Cross Examined, viva voce, in Open Court, Manner of examining Witnesses; their Examinations to be taken down in Writing. English Rules of Evidence adopted in Commercial Cases. unless some good Reason is shewn to the Judges for departing from this Rule in particular Cases. The Examinations of the Witnesses shall be taken down in Writing by the Clerk, and filed among the Records of the Court.

Art 7. In the Proof of all Facts concerning Commercial Matters Recourse shall be had in all the Courts of Civil Jurisdiction in the Province, to the Rules of Evidence laid down by the English Laws.^[59]

Of Appeals.

Art 8. The Party meaning to Appeal from any Sentence or Judgment of any of the Courts of Common Pleas, shall sue Party appealing to sue out a Writ, commanding the Judges to send up the Record. out a Writ from the Court of Appeals, tested and signed by the Governor, Lieutenant Governor, or Chief Justice, stating that the Appellant complains of being aggrieved by the Judgment, and therefore commanding the Judges of the Inferior Court, or any Two of them, to send up the Original Papers and Proceedings in the Cause, and Transcripts of all Rules, Orders and Proceedings found in the Records or Registers of the Court concerning the same; such Writ, when presented to any of the Judges of the Court below, shall be allowed by him, if the Appellant has given the requisite Security, and when allowed, the Clerk of the Court shall proceed to comply with the Order of the Writ, and the Judges, or any Two of them, shall make their Return against the Return Day thereof.

The Appellant to file his reasons of Appeal in Eight Days.

Art 9. If the Appellant does not within Eight Days after the Return of the said Writ, and the Transmission of the Proceedings, file his Reasons of Appeal, the Appellee shall obtain a Rule or order, that unless the Appellant's Reasons of Appeal are filed in Four Days, the Appeal will be dismissed, and if the said Reasons of Appeal are not filed within Four Days after Service of the said Rule on the Appellant or his Agent, the Appeal shall accordingly be dismissed with Costs.

Appellee to file his answers in Eight Days.

Art 10. Within Eight Days after the Reasons of Appeal are filed, the Appellee shall file his answers thereto, or if he neglects so to do the Appellant shall obtain a Rule or Order, that unless the Appellee file his Answers within Four Days he will be precluded from filing them after that Period; and if his Answers are not filed within Four Days after Service of such Rule on the Appellee or his Agent, he shall accordingly be precluded from filing them, and the Court will proceed to hear the Cause on the part of the Appellant, and proceed to Judgment therein without the Intervention of the Appellee.

The Court, on good Cause Shewn, to prolong the Time above allowed

Art 11. The said Court of Appeals nevertheless shall and may, upon Application made, and good cause shewn by either of the Parties (Notice being given the other) prolong the Time allowed for filing either the Reasons of Appeal or Answers thereto, and in case the Court shall not be sitting at the Time when such Reasons or Answers ought regularly to be filed, the Party neglecting shall apply to the Court, at the next sitting thereof, and shew his Reasons for such his Neglect: and if the Court finds them insufficient, it will, as the case may be, either dismiss the Appeal, or proceed to hear it without the Intervention of the Appellee, as above directed.

Day to be fixed for hearing the Cause.

Art 12. When the Reasons of Appeal, and Answers thereto, are filed, the Court shall, on the Application of either of the Parties, fix on such convenient Day for the hearing of the Cause as to it may seem proper.

In Fifteen days after Judgment, execution to issue in case the Writ of Appeal be not allowed.

Art 13. If the Writ of Appeal is not allowed by one of the Judges of the Court below, and a Copy thereof served on the Appellee or his Agent within Fifteen days after any Judgment given in the Court of Common Pleas, Execution shall issue, and no Appeal shall be allowed or received from the Court of Common Pleas after the expiration of one Year from the Date, of the Judgment of such Court.

No appeal allowed after a Year from the Date of the Judgment.

Art 14. The Executions sued out from any of the Courts of Civil Jurisdiction shall be a Writ issuing in the King's Name, tested and signed, when issuing from the Court of Appeals, either by the Governor, Lieutenant Governor, or Chief Justice, and when issuing from the Court of Common Pleas, by one of the Judges of the Court for the District in which it is given, directed to the Sheriff of the District, setting forth the Judgment of the Of Executions, nature of the Writ, of Executions. Court between the Parties, and the kind of Execution which the Law, according as the case may be, shall direct, whether the same be to take the Body, or to levy a Sum of Money out of any one's Goods and Chattels, Lands and Tenements, or to do any Special matter or Thing whatever; the Date of the Judgment shall be indorsed on every Writ of Execution, and that Indorsement signed by the Judge.

Personals to be first disposed of, and if insufficient, Real Estate to be sold.

Art 15. In all Cases where execution shall issue against Real and Personal Estates, the Sheriff shall first dispose of the Personal Property, and if the Proceeds thereof fall short of the Amount of the Judgment the Real Estate, or so much thereof, as will produce the Amount, shall be sold for that Purpose.

Manner of selling Personals.

Art 16. Where Moveables shall be seized by the Sheriff under an Execution, he shall cause the seizure to be published at the Church Door, of the Parish, immediately after Divine Service, on the first Sunday succeeding such Seizure, and at the same time cause to be proclaimed the Day and Place when and where he intends to proceed to the sale thereof, provided that the Place of Sale shall be in the same Parish in which the Seizure is made.

Manner of selling Real Property.

Art 17. When Lands and Tenements shall be seized by the Sheriff under a Writ of Execution, he shall advertize the Sale thereof Three Several Times in the Quebec Gazette, to be on some certain Day after the expiration of Four Months from the Date of the First Advertisement, and proclaim the said Sale at the Church Door of the Parish in which the Premisses are situated, immediately after Divine Service, on the Three Sundays next preceding the same and Cause a Copy of the said Advertisement to be fixed on the Door of the Parish Church.

When Two or more Writs of Execution issue upon Judgments given the same Day, they are to be satisfied in the same Proportions.

Art 18. If Two or more Writs of Execution shall be issued upon Judgments given the same Day against the same Defendant or Defendants, and so marked on the Writs, such Executions shall have the same Privilege and be satisfied in the same Proportions, and the Sheriff, or other Person to whom such Writs of Execution shall be Awarded, receiving the same, is hereby authorized and Commanded, after the sale of the whole of such Defendant's Real and Personal Estate, where the Writ shall be awarded against both, in case the same should not be sufficient to satisfy the whole of such Judgments, to pay over and divide the Nett Produce of such sale or Sales, after deducting his own Costs and Charges, amongst the several Plaintiffs, in Proportion to the Amount of their Respective Judgments.

Allowance to the Sheriff.

Art 19. On every Execution the Sheriff shall be allowed all his Disbursements, and shall be authorized to charge over and above at the Rate of Two and an Half per centum, to be deducted out of the Money he levies.