CLASS D.

Relating to the administration of Justice, Judicature,
Courts, Practice, and proceedings for enforcing the
Law, Civil and Criminal.

An Ordinance to regulate the proceedings in the Courts of Ci- 25 Geo. III. vil Judicature, and to establish Trials by Juries in actions of Cap. 2. a Commercial nature and Personal Wrongs to be compensated in damages.

HEREAS it is necessary for the ease and conveniency of His Ma- Preamble. jesty's subjects who may have actions to prosecute in the courts of

Manner of

proceeding in

actions above the value of

£10 sterling.

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 :-Be it therefore ordained and enacted by his honour the Lieutenant-Governor and Commander-in-chief of this Province, by and with the advice and consent of the legislative council thereof, and by the authority of the same, it is hereby ordained and enacted, that in all causes or matters of property exceeding the sum or value of ten pounds 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 answer thereto, such judge shall be, and hereby is empowered and required, in his separate district, to grant such an order, whereby the plaintiff may have and obtain from the clerk of the court, a writ of summons, in the lanBut see Tables. guage of the defendant, to be issued in His Majesty's name and tested by the name of such judge, to be directed to and executed by the sheriff of the district where such court shall have jurisdiction and in which the defendant may be or doth reside, commanding such defendant to be and appear in such court, to answer to the plaintiff, on the day appointed by such judge in the order on the declaration, regard being had to the season of the year as well as to the distance of the defendant's abode or place of service, from the place where the court may sit.

Service of

summons.

execution

against absentees.

II. Provided always, that a copy 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, belonging to the family, and in so doing the Proviso, as to service shall be deemed sufficient: Provided nevertheless, that if the deservice on and fendant be absent in the upper country or lower parts of the Province, that is to say, when in or upon any place beyond the Long Sault on the Ottawa river, or beyond Oswegatché, in the upper parts of the Province, or in or upon any place below Cape Chat on the south side, and the Seven Islands on the north side, of the river St. Lawrence, and where such defendant hath not been personally served with such summons and declaration as abovesaid, that no execution shall issue, unless the plaintiff shall give good and sufficient security, to be approved by the court, to refund to But see Tables, the defendant or his legal representative, as much as the defendant, appearing by himself or his legal attorney within a year and a day, may be able to set aside and reverse of the said judgment, by such reconsideration of the said judgment in the court where given, as may be prescribed in the conditions expressed in the security to be given as abovesaid for rehearing of the merits of said cause.

Amendment of declaration.

Attachment

debtor is about

III. That the said declaration so to be filed shall not be altered or amended after being filed as abovesaid, unless upon rule of the court and upon payment of costs.

IV. That in all and every case where one or more judges of any court against the of common pleas is or may be satisfied, by the affidavit of the plaintiff or body, where a his book-keeper or clerk or legal attorney, that the defendant is personally to leave the indebted to the plaintiff in a sum exceeding ten pounds sterling, and may Province. also be satisfied by the oath of the plaintiff or some other person, that the But see Tables. defendant is immediately about to leave the Province, and whereby the

plaintiff might be deprived of his remedy against such defendant, it shall and may be lawful for one or more judge or judges of any court of common pleas, to grant a capias or attachment against the body of such defendant, to be directed to the sheriff in manner as aforesaid, to hold such defendant

to bail, for his appearance at the return of such writ; and in default thereof, to commit him to prison, there to remain until special bail may be given by such defendant, or until two days after execution may be obtained by the plaintiff, if judgment be in his favour.

a discharge of

V. Provided always, that if any defendant so bound in recognizance Proviso: what by special bail, shall or do surrender himself in open court, pending the shall operate as action, or at any time within one month after judgment obtained, or do the special bail. surrender himself unto the sheriff of the district where such court may have jurisdiction, at any time within fifteen days after the day on which the plaintiff night legally have and obtain execution, by capias ad satisfaciendum upon judgment obtained, that then and in such case such surrender of the defendant shall be held, taken, and considered as a discharge of the persons bound for such defendant on special bail.

VI. If on the day of the return of the writ of summons the defendant If defendant does not appear in person, or by attorney (proof of such service being does not approduced or made in court) the plaintiff shall obtain a default against the to be entered. pear, judgment defendant; and if, on calling over the action on the next weekly courtday, 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 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 But see Tables. nature of the case, may direct.

VII. Provided always, that every proof that may be offered by the Proviso. plaintiff, in support of his action and demand, shall be filed in court, and remain of record in the same manner as if the defendant had appeared and defended the action.

to answer the declaration.

VIII. Provided also that the defendant, upon his appearance at the If defendant return day of the writ, or in case of default, upon his appearance at the appears, he is next weekly court after such return, and after payment of costs of such default as abovesaid, shall 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; and if the answer be verbal, the clerk of the But see Tables. court shall take down the substance thereof in writing, and preserve the same among the records of the court and in the said action; and if the plaintiff doth not appear at the return day of such writ, or appearing doth not prosecute his action, the same shall be dismissed with costs to the defendant.

cases at the

IX. That all and every person having suits at law and actions in any of Trials by juthe said courts of common pleas, grounded on debts, promises, contracts ries in certain and agreements of a mercantile nature only, between merchant and mer-option of the chant, and trader and trader, so reputed and understood, according to law, parties. and also of personal wrongs, proper to be compensated in damages, may, at See Tables. the option and choice of either party, have and obtain the trial and verdict of a jury, as well for the assessment of damages on personal wrongs committed, as the determination of matters of fact in any such cause: Provi- Proviso. ded always, that the agreement of nine of the twelve jurors, who shall compose such jury, shall be sufficient and effectual to return a verdict, and that the same so made and returned shall be held as legal and effectual, to every intent and purpose, inasmuch as if the whole twelve jurors had agreed therein; and the clerk of the court shall set down the names of

English rules of evidence in

certain cases. See Tables. Where neither

party is desi

rous of the trial by jury,

formerly.

the jurors, on the register of the court, in every cause where verdicts may be returned as abovesaid: Provided also, that in all such causes and actions that may be between His Majesty's natural born subjects of Great Britain, Ireland, or the plantations and Provinces in America, the juries in such causes, shall be composed of such natural born subjects as abovesaid; and in all causes and actions between His Majesty's Canadian or new subjects, the juries shall be composed of such Canadian or new subjects; and in all causes and actions between natural born subjects and the Canadian or new subjects, the jury shall be composed of an equal number of each, if such be required by either of the parties, in any of the abovementioned instances.

X. In proof of all facts concerning commercial matters, recourse shall be had in all the courts of civil jurisdiction in this Province, to the rules of evidence laid down by the laws of England.

XI. Provided always, and it is ordained and enacted, that in all causes before the said courts of common pleas, where the parties, plaintiff nor defendant are neither of them desirous of a trial by the verdict of a jury, of proceedings as and respecting matters legally within the cognizance of such jury, but that such trial should be by the deposition of witnesses, and by proofs, as at present used in His Majesty's said courts of common pleas, the court shall, after issue joined on the merits of the cause, in the manner as hereafter expressed, appoint a day for hearing the evidence of the parties, plaintiff and defendant, and cause the same to be taken down in writing by the clerk of the court, in open court, and signed and sworn to by each respective witness, save and except as hereafter provided for witnesses absent by reason of sickness or of departing the Province.

Provision for examining witnesses, in case of sick

XII. Provided also, that in case of sickness and where the witnesses cannot attend the court, to be ascertained by affidavit, it may be lawful for the court, in such cases, and of evident necessity, after issue joined as ness or when abovesaid, to allow and permit that any one judge, in the presence of the about to depart the Province, parties, plaintiff and defendant, or their attornies, or in their or either of their absence, after due notice signified, may take the deposition of such witness, in writing, to be signed and sworn to, and certify and record the same in the said court, and there to be of legal effect; and moreover, that such deposition so taken, may be offered and read to the jury, as legal evidence, if such cause be to be tried by jury: and also in causes instituted in the said court, where any witness may be about to depart the Province, and by which means either party might be deprived of his testimony, to be ascertained by affidavit, it shall and may be lawful for any judge of the said courts to take the deposition of such witness in presence of the parties or their attornies, in the manner as above expressed, and the same shall be of legal effect, in every cause, in the manner as abovesaid.

Limitation of pleadings.

XIII. And it is further ordained and enacted, that every issue in law or fact to be formed in any cause in either of the said courts of common pleas, between the parties, plaintiff and defendant, shall be made and completed by the declaration, answer and replication, or by the plea, an swer and replication in cases of abatement and bar, of the said parties, plaintiff and defendant; and that no other or further pleadings or writings by way of plea upon such issue or matter in dispute, whether of law or fact, shall be received or admitted by the said courts of common pleas, as part of and to be put upon record, in any cause there instituted, and to be heard and adjudged upon; any thing to the contrary notwithstanding.

XIV. That every writ and process which ought to be served and execut- When the ed by the sheriff, where it shall happen that the sheriff may be personally sheriff is coninterested and concerned, shall be served and executed by the coroner of the district, in which such writ, process or execution may issue.

OF JURORS.

cerned, the coroner to act.

XV. That all mercnants or traders of lawful age, and also all persons Their qualifiof lawful age, being house-holders, or occupying lodgings of the value of cation. fifteen pounds per annum rent, shall be held and considered qualified as See Tables. jurors, and to serve on petit juries.

XVI. That the sheriff of each district shall make out lists of all persons Sheriffs to so qualified as abovesaid, who may reside in the cities of Quebec or Mont- make out lists of jurors. real, and within the vicinage or banlieu thereof, and return the same into the respective courts of common pleas of the district in which such sheriff may officiate, and in which return shall be set down the christian and surname, and also the profession, trade or calling, and place of abode of such persons so returned.

made from the

XVII. That from the said general list, the clerk of each court shall Two lists of make two separate lists or books, the one to contain the names of all mer- juries to be chants, persons concerned in trade, or qualified to serve on special juries, general list. and the other list or book to contain the names of persons of different occupations, so returned on the said general list by the sheriff as aforesaid : That the said lists or books, when so made shall be examined by the judges and sheriff, and corrected if needful, and shall be of record and open in the clerks's office, to the inspection of all persons, without fee or reward.

lists.

XVIII. That in all and every cause where a trial may be moved for, Juries to be and directed to be taken by the verdict of a jury, it shall and may be law-struck from the ful for the parties, plaintiff and defendant, or their attornies, to strike a jury from the above lists or books so returned into court, and completed as abovesaid, in the same manner and under the same rules as special juries are struck in the courts of record in England, that is to say; from the first list or book so formed by the clerk and approved by the judges as abovesaid, in all causes of mercantile dispute or actions of damages, where the total amount, sum, dealing or matter of account, agreement or transaction between the parties, may exceed fifty pounds; and from the second list or jury book where the total sum as abovesaid, may not exceed the said sum of fifty pounds.

tion.

XIX. Provided always, that the said juries so to be struck from either Juries to be of the said lists, shall be taken from the same in rotation and following taken in rotaeach other, by commencing at that part of the list from whence the former or preceding jury was struck or taken: And also, that in all causes that may appear to the court before which they are to be tried, to be of intricacy, and that ought to be tried by a jury from the first list, although the sum or total amount may not exceed fifty pounds, the judges of such court may permit and order the jury to be struck from the first list; the party applying for such jury paying the difference of fees between jurors from the first and the second jury list or book

XX. That all and every challenge or exception to the pannel, or any Challenges or particular juror returned thereon, shall be taken, made and determined upon exceptions to in open court and conformable to the laws of England: That jurors serv- determined jurors, to be ing on special juries as abovesaid, and struck from the first list or jury book, agreeably to