in certain cases.

conveyances to the party or parties electing to take the same, subject nevertheless to a lien thereon, in favor of the others of the said parties, until payment be made to them of their respective shares of the money as aforesaid; and in case the said parties shall not agree who shall take the said Lands and Tenements on the terms aforesaid, then the said Court shall or may, at the instance of the Demandant in the said Partition, make an order for the Sale of the said Lands and Tenements at Public Auction Lands may be sold by the Sheriff, who shall have holden the said inquisition, or his succes. sors in office, after due and fair notice of the time and place of such Sale, by advertisements published and set up in the several Districts where the Lands lie; and also, in such public Newspaper as shall be most likely to give fair and full notice of such Sale to all parties concerned and others, which public notice shall be given at least twenty days before the time of Sale, in cases where the Lands all lie in the same District, and at least sixty days when the Lands lie in different Districts, and the said Sheriff is hereby authorised, empowered and ordered to execute Deeds to the purchasers of the Lands and Tenements so as aforesaid sold, on receiving payment of the consideration money, or taking sufficient security therefor to the satisfaction of the Court, which money or security shall be brought into Court before or at the time of the said Sheriff's acknowledging the Deed, in open Court to be distributed and paid by order of the said Court, amongst the several parties entitled to receive the same, in lieu of their respective parts and proportion of the said Lands and Tenements, according to their just rights and proportions.

When Partition raade, the same shall be

and bounds, and a

VII. And be it further enacted by the authority aforesaid, That when any Writ of Partition shall issue, or when the parties interested shall agree on some person or persons to make Partition, it shall be the duty described by metes of the inquest or persons so agreed on, to make a true and accurate plan Plan shall accompany or map, and field book of such Lands as may be so divided, and to de- the return to the Court having cogniscribe particularly the metes and bounds of all Tenements so divided and zance thereof. aparted, which plan or map, field book and description, the persons or inquest shall sign, and send under seal to the next Court having cognizance of the same, and after the division and return thereof shall be made to Partition, when apthe Court, it shall be examined by the Court, and if found justly and ac- corded by the Clerk. curately made, the Clerk shall record such return, which record shall be deemed valid and effectual in Law for the Partition of such Lands, Tene- Record to be deemed ments or Hereditaments, and thereupon the party or parties shall have and hold the Shares or Parcels to them respectively allotted in severalty.

VIII. And be it further enacted by the authority aforesaid, That the Court before whom any Partition shall be had, shall tax the costs and expences which may accrue on such proceedings, and shall issue Execu

proved of, to be re

an effectual Partition.

1

and Execution to is

Partition.

New Partition may ends of Justice shall

be awarded, if the

Costs to be taxed, tion therefor against such Person or Persons, their Goods, Chattels, sue therefor on a final Lands, Tenements and Hereditaments, interested in such Partition, as determination of the shall not have paid their proportion of the costs and expenses so taxed: Provided always nevertheless, that it shall be in the power of the Court in which any such proceeding for Partition is depending, to award a new Partition by another Jury, when it shall appear necessary for the ends of Justice, in the same manner and for the same causes as new trials are now grantable by Law, but that no new Partition shall be granted when all the parties interested are resident within the Province, unless the same is applied for before the end of the Term next after that in which the former verdict has been rendered.

seem to require it.

Guardians may act for infants.

three years, apply to

if they conceive

may be awarded.

IX. And be it further enacted by the authority aforesaid, That the Guardians of all Minors are hereby respectively authorized and empow ered on behalf of their Wards, to do and perform any act, matter or thing respecting the Partition of Land under this Act, and the same shall be deemed valid and effectual in Law, to every intent and purpose, as if the same had been done by such Minor after his arrival at full age.

X. And be it further enacted by the authority aforesaid, That if any Parties out of the Partner shall have a larger share set off than is such Partners true and Province may, within real interest, or if any share set off should be more than equal in value to the Court for redress, the proportion it was set off for, then and in every such case, upon comthemselves aggrieved, plaint to the Court, which caused such Partition to be made, within three and a new Partition years of the making thereof, by any aggrieved Partner or Partners, who at the time of making such Partition were out of the Province, and not notified thereof agrecably to the Provisions of this Act, the said Court shall cause Partition thereof to be made anew, and in such new Partition, so much and no more shall be taken off from any, than as such share shall be adjudged more than the proportion of the whole it was designed for, estimating such Lands or Real Estate as in the state they were in when first divided, and in case any improvements shall be made on the part that may by such new Partition be taken off as aforesaid, the Partner or his Assigns who made such improvements, shall have reasonable satisfaction made him by the Partner or Partners to whose share the same shall be added by the estimation of the Freeholders employed in making such new Partition, or the major part of them; and the same Court who ordered Partition, are also empowered to issue Execution for such satisfaction, and for costs in such new Partition, the same being first taxed and allowed by the said Court.

CHAP. III.

AN ACT relating to the Bailing and Commitment, Removal and Trial of Prisoners in certain cases.

[Passed 13th February, 1833.]

charges of Felony.

WHEREAS it is expedient to define under what circumstances persous may be admitted to Bail in cases of Felony or Misdemeanor, and Preamble. to make better provision for taking Examinations, Informations, Bailments and Recognizances, and returning the same to the proper Tribunals; and also, fer obtaining the evidence of Prisoners confined in any Prison upon the Limits thereof, without the necessity of suing out a Writ of Habeas Corpus. Be it therefore enacted, by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, entitled "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, entitled 'An Act for making more effectual provision for the Government of the Province of Quebec in North America, and to make further provision for the Government of the said Province," and by the authority of the same, That when any per- Duty of Justices beson shall be taken on a charge of Felony, or suspicion of Felony, before fore whom persons one or more Justice or Justices of the Peace, and the charge shall be may be brought on supported by positive and credible evidence of the fact, or by such evidence as if not explained or contradicted shall in the opinion of the Justice or Justices raise a strong presumption of the guilt of the person charged, such person shall be committed to Prison by such Justice or Justices, in manner tereinafter mentioned; but if there shall be only one Justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such Justice shall order the person charged to be detained in custody until he or they shall be taken before two Justices at the least; and where any person so taken, or any person in the first instance, taken before two Justices of the Peace, shall be charged with Felony, or on suspicion of Felony, and the evidence given in support of the charge shall, in their opinion, not be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced on behalf of the person charged as shall, in their opinion, weaken the presumption of guilt, but there shall notwithstanding appear to them, in either of such cases, to be sufficient ground for Judicial inquiry into his or her guilt, the person.

Justices to take the nesses, and reduce

Examination of Wit

presence of the accused.

charged should be admitted to Bail by such two Justices in the manner hereinafter mentioned: Provided always, that nothing herein contained shall be construed to require any Justice or Justices to hear evidence on behalf of any person or persons so charged as aforesaid, unless it shall appear to him or them to be meet, and conducive to the ends of Justice, to hear the same.

II. And be it further enacted by the authority aforesaid, That the two Justices of the Peace, before they shall admit the Bail, and the Justice or Justices, before he or they shall commit to prison any person arrested for Felony, or on suspicion of Felony, shall take the examination of such person, and the information upon oath of those who shall know the facts and circumstances of the case, and the particular grounds of suspicion, in cases where direct proof is not adduced, and shall put the same into writing in the presence of the party accused, if he be in custody, who shall have full opportunity afforded him of cross-examining such witnesses, if he shall think proper so to do; and the two Justices shall thereupon certify such Bailment in writing, and every such Justice shall have authoWitnesses to be bound rity to bind by Recognizance, all such persons as know, or declare any thing material touching any such Felony, or suspicion of Felony, to appear at the next Court of Oyer and Terminer and General Gaol Delivery, or Sessions of the Peace at which the trial thereof is intended to be had, then and there to prosecute or give evidence against the party accused; and such Justice or Justices respectively, shall subscribe all such Examinations, Informations, Bailments and Recognizances, and deliver, or cause the same to be delivered, to the public Prosecutor, before or at the opening of the said Court.

in recognizance to give Evidence.

persons brought be

of Misdemeanoi.

III. And be it further enacted by the authority aforesaid, That every Duty of Justices when Justice of the Peace before whom any person shall be taken on a charge fore them on charges of Misdemeanor, or suspicion thereof, shall take the examination of the party charged, and the information, upon oath, of those who shall know the facts and circumstances of the case, and shall put the same, or so much thereof as shall be material, into writing, before he shall commit to prison, or require Bail from the person so charged; and in every case of Bailment, shall certify the Bailment in writing, and shall have authority to bind all persons by Recognizance to appear to prosecute or give evidence, as in cases of Felony, and shall subscribe all Examinations, Informations, Bailments and Recognizances, and deliver, or cause the same to be delivered, to the public Prosecutor, or Clerk of the Court in which the trial is to be, before or at the opening of the Court, as in cases allowed in cases of of Felony; and that no traverse, or other postponement of any trial to be thereupon had, shall be allowed, except upon special cause shewn to

No traverse to be

Misdemeanor as of

right.

the satisfaction of the said Court, or by consent of His Majesty's Attorney or Solicitor General conducting the Prosecution thereof.

taking Inquests.

IV. And be it further enacted by the authority aforesaid, That every Coroner, upon any Inquisition before him taken, whereby any person Duty of Coroners in shall be indicted for Manslaughter or Murder, or as an accessory to Murder before the fact, shall, in presence of the party accused, if he can be apprehended, put in writing the evidence given to the Jury before him, or so much thereof as shall be material, giving the party accused full opportunity of cross-examination; and shall have authority to bind by Recognizance, all such persons as prove or declare any thing material touching the said Manslaughter or Murder, or the offence of being accessory to Murder, to appear at the next Court of Oyer and Terminer or General Gaol Delivery at which the trial is to be, then and there to give evidence against the party charged; and every such Coroner shall certify and subscribe the same evidence, and all such Recognizances, and also the Inquisition before him taken, and shall deliver the same to the Court at which the trial is to be, before or at the opening of the Court next ensuing the taking the same.

neglecting their duty,

V. And be it further enacted by the authoriy aforesaid, That if any Justice or Coroner shall offend in any thing, contrary to the true intent Justices and Coroners and meaning of these provisions, the Court of Oyer and Terminer or may be fined by the General Gaol Delivery, or Sessions of the Peace respectively, holden Court Over and Ferwithin the District where any party accused shall be liable to be tried, or Sessions of the shall, upon examination, and proof of the offence, in a summary way, set such fine upon every such Justice or Coroner, as the Court shall think meet.

miner, Gaol Delivery.

Peace.

Manner of procuring

direction of the Court

VI. And be it further enacted by the authority aforesaid, That when, and so often as any person shall be committed for trial by any Justice or Prisoners to be bailed Justices, or Coroner, as aforesaid, it shall and may be lawful for such by Justices, under the Prisoner, his Counsel, Attorney or Agent, to notify the said committing of King's Bench, or Justice or Justices, or Coroner, that he will so soon as Counsel can be the Judges thereof. heard, move His Majesty's Court of King's Bench, or one of the Judges thereof, for an order to the Justices of the Peace, or Coroner, for the District where such Prisoner shall be confined, to admit such Prisoner to bail, whereupon it shall be the duty of such committing Justice or Justices, or Coroner, to transmit to the Office of the Clerk of the Crown, close under the Hand and Seal of one of them, a certified copy of all the informations, examinations, and other evidences touching the offence wherewith such prisoner shall be charged, together with a copy of the Warrant of Commitment and Inquest, if any such there be, and that the packet containing the same shall be handed to the person applying there