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Order in council, constituting the Supreme Court of Civil Justice of Vancouver Island; and rules of practice… 1858

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Array   XLV
An Act to provide for the Administration of Justice
in Vancouver's Island, [28th July 1849.]
"W"W"T"HEREAS an Act was passed in the Forty-third Year of
%/ %/     King George the Third, intituled An Act for extending 43 G. 3.
*       the Jurisdiction of the Courts of Justice in the Provinces of
Lower and Upper Canada to the Trial and Punishment of Persons
guilty of Crimes and Offences within certain Parts of North America
adjoining to the said Provinces : And whereas by an Act passed in
the Second Year of King George the Fourth, intituled An Act for 1&2G.4.
regulating the Fur  Trade, and establishing a  Criminal and Civil
Jurisdiction, within certain Parts of North America, it was enacted,
that from and after the passing of that Act the Courts of Judicature
then existing or which might be thereafter established in the Province
of Upper Canada should have the same Civil Jurisdiction, Power, and
Authority, as well in the Cognizance of Suits as in the issuing Process,
mesne and final, and in all  other respects whatsoever, within the
Indian Territories and other Parts of America not within the Limits
of either of the Provinces of Lower or  Upper Canada or of any
Civil  Government   of the   United States, as  the  said Courts  had
or were invested with within the Limits of the said Provinces of
Lower or Upper Canada respectively, and that all and every Contract,
Agreement, Debt, Liability, and Demand whatsoever, made, entered
5 K into,
c.66. 406
12° & 13° VICTORIA, Cap.48.
Administration of Justice (Vancouver's Island).
into, incurred, or arising within the said Indian Territories and other
Parts of America, and all and every Wrong and Injury to the Person
or to Property, real or personal, committed or done within the same,
should be and be deemed to be of the same Nature, and be cognizable
by the same Courts, Magistrates, or Justices of the Peace, and be
tried in the same Manner, and subject to the same Consequences in
all respects, as if the same had been made, entered into, incurred,
arisen, committed, or done within the said Province of Upper Canada,
and in the same Act are contained Provisions for giving Force, Autho-
ritv and Effect within the said Indian Territories and other Parts of
America to the Process and Acts of the said Courts of Upper Canada ;
and it was thereby also enacted, that it should be lawful for His
Majesty, if He should deem it convenient so to do, to issue a Commission or Commissions to any Person or Persons to be and act as
Justices of the Peace within such Parts of America as aforesaid, as
well within any Territories theretofore granted to the Company of
Adventurers of England trading to Hudson's Bay as within the
Indian Territories of such other Parts of America as aforesaid; and
it was further enacted, that it should be lawful for His Majesty from
Time to Time by any Commission under the Great Seal to authorize
and empower any such Persons so appointed Justices of the Peace
as aforesaid to sit and hold Courts of Record for the Trial of
Criminal Offences and Misdemeanors, and also of Civil Causes,
and it should be lawful for His Majesty to order, direct, and autho-«
rize the Appointment of proper Officers to act in aid of such Courts
and Justices within the Jurisdiction assigned to such Courts and
Justices in any such Commission, provided that such Courts should
be constituted, as to the Number of Justices to preside therein, and
as to such Places within the said Territories of the said Company,
or any Indian Territories or other Parts of North America as aforesaid, and the Times and Manner of holding the same, as His
Majesty should from Time to Time order and direct, but should
not try any Offender upou any Charge or Indictment for any
Felony made the Subject of Capital Punishment, or for any Offence
or passing Sentence affecting the Life of any Offender, or adjudge
or cause any Offender to suffer Capital Punishment or Transportation, or take cognizance of or try any Civil Action or Suit in
which the Cause of such Suit or Action should exceed in Value
the Amount or Sum of Two hundred Pounds, and in every Case
of any Offence subjecting the Person committing the same to
Capital Punishment or Transportation the Court, or any Judge of
any such Court, or any Justice or Justices of the Peace before
whom any such Offender should be brought, should commit such
Offender to safe Custody, and cause such Offender to be sent in such
Custody for Trial in the Court of the Province of Upper Canada \
And
fe» 12° & 13° VICTORIA Cap.48.
Administration of Justice [Vancouver's Island).
407
And whereas, for the Purpose of the Colonization of that Part of the
.said Indian Territories called Vancouver s Island, it is expedient that
further Provision should be made for the Administration of Justice
therein: Be it therefore enacted by the Queen's most Excellent
Majesty, by and with the Advice and Consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament assembled,
and by the Authority of the same, That from and after the
Proclamation of this Act in Vancouver s Island the said Act of the
Forty-third Year of King George the Third, and the said recited
Provisions of the Second Year of King George the Fourth, and the
Provisions contained in such Act for giving Force, Authority, and
Effect within the said Indian Territories and other Parts of America
to the Process and Acts of the said Courts of Upper Canada, shall
cease to have Force in and to be applicable to Vancouver s Island
aforesaid ; and it shall be lawful for Her Majesty from Time to Time
(and as well before as after such Proclamation) to make Provision for
the Administration of Justice in the said Island, and for that Purpose
to constitute such Court or Courts of Record and other Courts, with
such Jurisdiction in Matters Civil and Criminal, and such equitable
and ecclesiastical Jurisdiction, subject to such Limitations and Restrictions, and to appoint and remove, or provide for the Appointment and
Removal of such Judges, Justices, and such ministerial and other
Officers, for the Administration and Execution of Justice in the said
Island, as Her Majesty shall think fit and direct.
II. Provided always, and be it enacted, That when and so soon p0w
43 G. 3.
c. 138. and
Parts of
J&2G.4.
c. 66. repealed as to
Vancouver's
Island.
P to
T
ocal JLegis-
as a local Legislature has been established in Vancouver's Island it
shall be lawful for such Legislature, from Time to Time, by any Law make Pro-
or Ordinance made in the Manner and subject to the Conditions which v'sion for
may be by Law required in respect of Laws or Ordinances made tration of
by such  local  Legislature, to  make  such  Alterations  as  to  such Justice.
Legislature may seem meet in the Constitution or Jurisdiction of the
Courts which may be established in the said Island, and to make
all  such other  Provisions  as to such  local Legislature may seem
meet for and concerning: the Administration of Justice in the said
Island.
III. Provided  always,  and  be  it  enacted,  That  all Judgments Appeal to
aiven in any Civil Suit in the said Island shall be subject to Appeal ™"vy C°un-
r^. -t     • t        n/r 11- it* ClI 111 ClVU
to Her Majesty in Council, m the Manner and subject to the Kegu- Cases.
lations in and subject to which Appeals are now brought from the
Civil Courts of Canada, and to such further or other Regulations
as Her Majesty with the Advice of Her Privy Council shall from
Time to Time appoint.
w i
IV. And 408
Adjacent
Islands to
be deemed
Part of
Vancouver's
Island.
12° & 13° VICTORIA, Cap.48.
Adminisfration of Justice [Vancouver's Island).
IV. And be it enacted, That all such Islands adjacent to Van-,
couvers Island or to the Western Coast of North America, and
forming Part of the Dominions of Her Majesty, as are to the Southward of the Fifty-second Degree of North Latitude, shall be deemed
Part of Vancouver's Island for the Purposes of this Act
Act may be      V. And be it enacted, That this Act may be amended or repealed
amended,&c. fay anv Act to be passed in this Session of Parliament.
•■*w.rr#*WT *?n*»4*"w ,z
LONDON:
Printed by George Edward Eyre and William Spottiswoode,
Printers to the Queen's most Excellent Majesty.    1849.
rvwflj-
——*•-
■'Jm *s*s
THE   FOURTH   DAY   OF   APRIL,   1856
mtt—
/
ezr
S13
-THE QUEEN'S MOST EXCELLENT MAJESTY, His
Royal Highness PRINCE ALBERT, Lord Privy Seal,
Viscount Palmerston, Duke of Wellington, Sir George
Grey, Bart., Lord Chamberlain, Mr. Vernon Smith, Marquis of Lansdowne, Sir Charles Wood, Bart., Marquis
of Abercorn, Mr. Baines, Lord Steward.
Whereas by an Act passed in the Session of Parliament, held in the 12th and 13th
years of Her Majesty's reign, entitled : | An Act to provide for the administration of
Justice in Vancouver's Island," it is amongst other things provided that it shall be lawful
for Her Majesty, from time to time to make provision for the administration of Justice in
the said Island, and for that purpose to constitute such Court or Courts of Record, and
other Courts, with such Jurisdiction in matters Civil and Criminal, and such Equitable
and Ecclesiastical Jurisdiction, subject to such limitations and restrictions, and to appoint
and remove, or provide for the appointment and removal of such Judges, Justices, and
such ministerial and other Officers for the administration and execution of Justice in the.
said Island as ller Majesty may think fit and direct.
And whereas it is expedient that provision should be made for the administration of
Justice in Civil cases in the said Island.
It is therefore ordered, by the Queen's Most Excellent Majesty, by and with the advice
of Her Privy Council, that there shall be within Her said Island, a Court which shall be
called the Supreme Court of Civil Justice of the Colony of Vancouver's Island.
And the said Supreme Court is hereby constituted to be a Court of Record.
And it is hereby further ordered that the said Supreme Court shall be holden before a
Chief Justice, and that the said Chief Justice shall be called and known by the name and
style of " the Chief Justice of the Colony of Vancouver's Island," and shall from time to
time be nominated and appointed to such his office by Her Majesty, Her Heirs and
Successors by Letters Patent, under the Public Seal of the said Colony, to be issued in
pursuance of any Warrants or Warrant to be from time to time for that purpose granted
by Her Majesty, Her Heirs and Successors, under Her or Their sign manuel.
And it is hereby declared, that upon the death, resignation, sickness, or incapacity of
the said Chief Justice, or in the case of his absence from the said Colony, or in case of
any such suspension from office as hereinafter mentioned, it shall and may be lawful to
and for the Governor of Her Majesty's said Colony for the time being by Letters Patent **r~
to be by him for that purpose made and issued under the Public Seal of the said Colony,
to nominate and appoint some fit and proper person to act as and in the place and stead
of any such Chief Justice, so dying or resigning, or laboring under such sickness or incapacity, or being so absent from the said Colony, or being so suspended as aforesaid, until
the vacancy so created, by any such death or resignation, or sickness, or incapacity, or
absence or suspension, shall be supplied by a new appointment, to be made in manner
aforesaid by Her Majesty, Her Heirs and Successors, or until the Chief Justice so becoming
sick or incapable, or being absent or suspended as aforesaid, shall resume such his office,
and enter into the discharge of the duties thereof. And her Majesty doth further order,
that the said Chief Justice shall hold such his office during Her Majesty's pleasure. Provided nevertheless, that it shall and may be lawful for the Governor of Her said Colony
for the time being, by any Order or Orders, to be by him for that purpose made and
issued under the Public Seal of the said Colony, with the advice of the Executive Council
of Government of the said Colony, or the major part of them, upon proof of the misconduct of any such Chief Justice, to suspend him from such his office, and from the discharge
of the duties thereof. Provided that in every such case the said Governor shall immediately report through one of Her Majesty's Principal Secretaries of State, the grounds
and causes of such suspension.
\ /*~~ And Her Majesty doth hereby reserve to Herself, Her Heirs, and Successors, full
power and authority to confirm or disallow such suspension from office as aforesaid of
any such Chief Justice.
And Her Majesty doth hereby give,and grant to Her said Chief Justice, for the time
being, rank and precedence above and before all Her subjects whomsoever, within the
said Colony of Vancouver's Island, and the Territories and places dependent thereupon,
excepting the Governor thereof, and the Comma mliT-in-Chief of Her Majesty's Forces,
for the time being within the same.
And Her Majesty doth further grant, ordain and appoint, that the said Supreme Court
shall have and use as occasion may require, a Seal, bearing a device and impression of
Her Majesty's Royal Arms within an exerque or label surrounding the same, with this
inscription " The Seal of the Supreme Court of Civil Justice of Vancouver's Islan'd."
? *l And Her Majesty doth hereby ordain, grant and appoint, that the said Seal shall be
delivered to, and shall be kept in the custody of the said Chief Justice; and in case of
vacancy of, or suspension from the office of Chief Justice, the same shall be delivered
over to and kept in the custody of such person as shall be appointed by the said Governor to act as, and in the place and stead of the said Chief Justice.
And Her Majesty doth hereby order, that there shall be attached and belong to the said-
Supreme Court, such and so many other officers as to the Chief Justice of the said Court
for the time being shall, from time to time, appear to be necessary for the administration
of Justice, and the due execution of the powers and authorities which are granted and
committed to the said Court by this Order; Provided nevertheless, that no new office shall
be created in the said Court unless the Governor for the time being shall first signify his
approbation thereof to the said Chief Justice for the time being in writing, under the hand
of such Governor, and that all persons who shall and may be appointed to any such office
within the said Court, shall be so appointed by the Governor for the time being of the
said Colony. And Her Majesty doth further direct and appoint that the several officers
of the said Court, shall hold their respective offices therein during the pleasure of Her
Majesty, Her Heirs and Successors.
And Her Majesty doth hereby authorize and empower the said Supreme Court to
approve and admit such persons as shall have been admitted as Barristers in England, or
Ireland, or Advocates in the Court of Sessions of Scotland, or to the degree of Doctor of
Civil Law at Her Majesty's Universities of Oxford, Cambridge or Dublin^ to act as Barristers, or Advocates, in the said Supreme Court.
*
/a •«_
I [in.]
// And Her Majesty doth further authorize and empower the said Supreme Court to
approve, admit and enrol any persons being Attorneys, or Solicitors, of any of the Courts
of Record at Westminster or Dublin, or being Proctors admitted to practice in any Ecclesiastical Court in England, or Ireland, or being Writers to the Signet in Scotland, to act
as Attornies, Solicitors or Proctors in the said Supreme Court. And Her Majesty doth
further authorize Her said Supreme Court, in pursuance of any rule or rules of Court, to
be for that purpose made in manner hereafter mentioned, to approve, admit and enrol as
such Attornies, Solicitors or Proctors as aforesaid, such and so many persons as may be
instructed within Her said Colony, in the knowledge and practice of the law by any Barrister, or Advocate, Attorney, Solicitor or Proctor, duly admitted to practice in the said
Court.
/^ ^    And Her Majesty doth ordain and declare, that persons approved, admitted and enrolled
as aforesaid, shall be and they are authorized to appear, and plead, and act for the suitors
of the said Supreme Court according to their respective stations therein, and that no person or persons whatsoever, not so approved, admitted and enrolled as aforesaid, where
enrolment is required, shall be allowed to appear, plead or act in the said Supreme Court,
for or on behalf of any suitors in the said Court.    Provided nevertheless, that in case
there shall not be a sufficient number of Barristers and Advocates within the said Colony
competent and willing to act for the suitors of the said Court, the said Court shall and is
hereby authorized to admit any of the Attornies, Solicitors or Proctors thereof, to appear
and act as Barristers and Advocates, during the time of such insufficiency only; and in
case there shall not be a sufficient number of Attornies, Solicitors and Proctors within the
said Colony, competent and willing to appear and act in that capacity for the suitors of
the said Court, the said Court shall and is hereby authorized to admit any of such Barristers or Advocates to practice and act in the capacity of Attornies, Solicitors and Proctors
during the time of such insufficiency only.
/j %    And Her Majesty doth ordain and declare that the Governor for the time being of the
said Colony of Vancouver's Island shall, on the first Monday in the month of January, in
each year, by Warrant under his hand and seal, nominate and appoint some fit and proper
person to act as, and be the Sheriff for Her Majesty's said Colony of Vancouver's Island
and its Dependencies for the year ensuing, which Sheriff, when appointed, shall, as soon as
conveniently may be, and before he shall enter upon his said office, take an oath faithfully
to execute the duties thereof, and the oath of allegiance, before the said Governor, who is
hereby authorized to administer the same.
/U | And Her Majesty doth direct that the said Sheriff shall continue in such his office,
during the space of one whole year, to be computed from the said first Monday in the month
of January, and until another shall be appointed, and sworn into the said office, and in case
such Sheriff should die in, or resign said office, or depart from Her Majesty's said Colony
of Vancouver's Island, during the period of his office, then another person shall as soon as
conveniently may be after the death, resignation or departure of such Sheriff, be in like
manner appointed and sworn as aforesaid, and shall continue in his office for the remainder
of the year, and until another Sheriff shall be duly appointed and sworn into the said
office.
/S'Z" And Her Majesty doth further order, direct and appoint, that the said SheritLfor the
time being shall by himself, or his sufficient deputies, to be by him appointed and duly
authorized under his hand and seal, and for whom he shall be responsible during his continuance in such office, execute, and the said Sheriff by himself and his said Deputies are
hereby authorized to execute all the Sentences, Decrees, Judgments, Writs, Summonses,
Rules, Orders, Warrants, Commands, and Processes of the said Supreme Court, and shall
make a return of the same, together with the manner of the execution thereof, to the said
Court, and shall receive and detain in prisc% all such persons as shall be committed to
the custody of such Sheriff by the said Court or by the Chief Justice thereof; and Her
mama
—■ r
a
m
• t
Majesty doth further authorize Her Governor for the time being of the said Colony of
Vancouver's Island, in each succeeding year to re-appoint the same person to fill the office
of Sheriff, if it shall appear to the said Governor expedient so to do j provided, nevertheless, and Her Majesty doth hereby require Her said Governor in the selection of any
person'to fill the said office of Sheriff of Vancouver's Island, to conform himself to such
directions, as may from time to time be given in that behalf by Her Majesty, Her Heirs
and Successors through one of Her or Their principal Secretaries of State. And Her
Majesty doth further direct and ordain, that whenever the said Supreme Court shall direct
or award any process against the said Sheriff, or award any process in any cause, matter
or thing, wherein the said Sheriff, on account of his being related to the parties or any of
them, or by reason of any good cause of challenge, which would be allowed against any
Sheriff in England, cannot, or ought not by law to execute the same, in every such case
the said Court shall name and appoint some other fit person to execute and return the
same, and the said process shall be directed to the person so to be named for that
purpose, and the cause of such special proceedings shall be registered and entered on the
records of the said Court.
// T- And Her Majesty doth hereby further ordain, direct, and appoint thai the said Supreme
Court shall have cognizance of all pleas, and jurisdiction in all Civil cases arising within
the said Colony, with jurisdiction over Her subjects, and all other persons whomsoever,
residing and being within the said Colony, and shall have all such Equitable jurisdiction,
and all such powers for enforcing and giving effect to the same as the High Court of
Chancery hath in England, and shall have power to appoint and control Guardians of
Infants and of their Estates, and Committees of the Persons and Estates of Idiots, Lunatics,
and such as being of unsound mind are unable to govern themselves and their Estates,
and to institute all such examinations as the said Court shall deem necessary to ascertain
such idiotcy, lunacy or unsoundness of mind, and shall have exclusive jurisdiction in all
questions relating to testacy or intestacy, and to the validity of Wills of personal property
as fully as any Ecclesiastical Court hath in England, and shall have power to grant Probates of Wills, and Letters of Administration of the Estates and Effects of deceased
persons, being in the said Colony of Vancouver's Island, and to take order for the due passing
of the accounts of the Executors and Administrators of such deceased persons, and for
the proper custody of the Estate and Effects of such deceased persons, and for the delivery of the same to the person entitled thereto.
Ip And Her Majesty doth further give and grant to the said Supreme Court full power,
authority and jurisdiction to apply, judge and determine upon and according to the Laws
now or hereafter in force within her Majesty's said Colony.
// And Her Majesty doth further give and grant to the said Supreme Court full power,
jurisdiction and authority, to review the proceedings of all inferior Courts of Civil Justice
within Her Majesty's said Colony, and if necessary, to set aside or correct the same, and
in the exercise of such jurisdiction, power and authorities as aforesaid, Her Majesty's will
and pleasure is, that the pleadings and proceedings of the said Supreme Court shall be
carried on, and the sentences, decrees, judgments and orders thereof, pronounced and
declared in open Court, and not otherwise.
And it is hereby further ordered, that whenever any question shall arise before the said
Supreme Court, involving any issue or issues, of fact, or whenever it may become incumbent on the said Court to assess the amount of damages to be paid by a Defendant, in any
action or suit, || shall be lawful for the Judge of the said Court, in his discretion, upon
the petition of either of the parties, to summon a Jury to enquire into the disputed facts,
or assess the damages as the case may be, and that such Jury shall consist of such
number of persons, and qualified in such manner, as the said Court may, by rule or rules
to be made as aforesaid, establish; and that the verdict of such Jury shall be unanimous,
<* m
and the final judgment of the Court, if satisfied with the verdict, shall be in accordance
with such verdict; provided, always, that it shall be competent to the Court, if dissatisfied
with the verdict, to direct a new trial before a fresh jury.
£$ \ And it is hereby ordered, that it shall and may be lawful for the said Supreme Court,
by any Rules or Orders of Court, to be by them from time to time for that purpose made
and. published, to frame, constitute and establish such rules, orders, and regulations as
shall seem meet, touching and concerning the time-and place of holding the said Court,
and touching the forms and manner of proceeding to be observed in the said Court, and
the practice and pleadings, upon all actions, suits and other matters, indictments and
informations to be,therein brought, the appointing of Commissioners to take bail and
'examine witnesses who are out of the jurisdiction of the Court, the examination of
witnesses de bene esse, and allowing the same as evidence, the proceedings of the Sheriff,
and other ministerial officers of the said Court, the process of the Court, and the mode of
'executing the same, the summoning, impannellirig arid challenging of Jurors, the admission
of Barristers, Advocates, Attorneys and Solicitors, and Proctors, the fees, poundage or
perquisites to be lawfully demanded by any, and payable to any officers, Attorneys, Solicitors, and Proctors in the said Court, the granting of Probates of Wills, and Letters of
Administration, and the duties, remuneration and control of Executors and Administrators,
and of the Guardians of Infants, and of the Committees of the Persons or Estates of
Lunatics, Idiots, or persons of unsound mind; and touching and concerning all such
other matters and things necessary for the proper conduct and despatch of business in
the said Court, and all such orders, rules and regulations, from time to time, to revoke
alter, amend, or renew, as occasion may require.
^/~ Provided always, that no such rules, orders or regulations, shall be repugnant to this
Order, and that the same shall be so framed as to promote, as far as may be, economy and
expedition in the despatch of business of the said Court; and that all such rules and
forms of practice, process and proceedings, shall so far as the circumstances of the said
Colony may permit, be framed with reference to the corresponding rules and forms in use
in Her Majesty's Supreme Courts of Law and Equity at Westminster, and that the same
be drawn up in plain, succinct and compendious terms, avoiding all unnecessary repetitions and obscurity; and promulgated in.the most public and authentic manner in the
said Colony, for three months at least, before the same shall operate, and take effect. Provided.always, that all such rules, orders and regulations shall be approved by the Governor
of the said Colony in Council, arid shall forthwith be transmitted to Her Majesty, through
one of Her principal Secretaries of State, under the Seal of the said Court, for her final
approbation or disallowance.
£2^ And it is further ordered, that any bond which may be entered into to Us, Our Heirs and
Successors in pursuance of this Order, or of any such rule or order as aforesaid, may be
put in suit under order of the said Court in the name of the Attorney General for the
time being of the said Colony, or other officer authorized by the said Court in that behalf,
and not otherwise.
I J-7 And whereas, it is by the same act of Parliament provided that all judgments given
in any civil suit in the said Island, shall be subject to appeal, to Her Majesty in Council,
in the manner and subject to the regulations in and subject to which appeals are now
brought from the Civil Courts of Canada, and to such further or other regulationsas Her
Majesty with the advice of Her Privy Council, shall from time to time appoint..
b t And whereas, it is expedient that provision should be made in pursuance of the said
recited enactment to regulate appeals in civil causes from the decisions of the said Supreme
Court of Civil Justice in Vancouver's Island to Her Majesty in Council: It is hereby further ordered, that any person or persons may. appeal to Her Majesty, Her Heirs and Successors in Her or Their Privy Council, from any Final Judgment, Decree, Order or Sentence
of the said  Supreme Court, in such manner, within such time, and under and subject to,
.— ■T      ...     ...  -       -
i& US*
[vi.]
such- rules, regulations and limitation^ as a^-hereinafter mentioned, (that is to say) in case
any such Judgment, Decree,'Qrder or Sentence  shall be given or pronounced for or in
respect of any sum or matter at issue above the amount or value of £300 sterling, or in
case such Judgment, Decree, Order or Sentence shall involve directly or indirectly' any
claim, demand&or question to or respecting property in any civil right amounting to, or of
the value of £300 sterling, the person or "persons feeling aggrieved by any such judgment,
decree, order or sentence, may within twemty-one days  next after the same shall have
beempronounced, made or given, apply to the said Court by Petition for leave to appeal
therefrom to Her Majesty, Her Heirs and Successors, in Her or Their Privy Council, and in
case such leave to appeal shall be prayed by the party or parties who is or are directed to
pay any such sum, or perform any duty, the said fCourt shajl, and is hereby empowered,
either to direct that the judgment, decree, order or sentence appealed from, shall be carried
into execution, or that the execution thereof shall b$ suspended pending the said appeal, as to
the said Court may appear to be most consistent with real and substantial justice, and in case
the said Court shall direct such judgment, decree, order or sentence to be carried into
execution, the person or persons in whose favor the same shall be given, shall before the
execution thereof, enter into good and sufficient security, to be approved by the said Court,
for the due performance of such judgment or order, as Her IJajesty, per Heirs and Successors shall think fit to make thereupon.   And it is further ordered, that jn all cases security shall also be given by the party or parties appellant, in a bond or mortgage, or pergonal
recognizance not exceeding the value of £500 sterling for the prosecution of the appea^
and for the payment of all such costs as may be awarded by Her Majesty, Her Heirs and
Successors, or by the Judicial Committee of Her Majesty's Privy Council, to the party or
parties respondent; and that such security as aforesaid for the prosecution of the appeal,
and for the payment of all such costs as may be awarded, be completed within twenty-
eight days from the date of the petition for leave to appeal; and the party or parties
appellant shall then, and not otherwise, be at liberty to prefer and prosecute his, her or
their appeal to Her Majesty, Her Heirs and Successors in Her or Their Privy Council, in
such manner, and under such rules as are, or may be observed in appeals made to Her
Majesty from Her Majesty's Colonies and Plantations abroad.
if'' And it is further ordered, that it shall be lawful for the said Supreme Court, at its discretion, on the petition of any party who considers himself aggrieved by any preliminary
or interlocutary judgment, decree, order or sentence of the said Courj;, to grant permission
to such party, to appeal against the same to Her Majesty, Her Heirs and Successors, in Her
or Their Privy Council, subject to the same rules, regulations and limitations as are herein
expressed respecting appeals from final judgments, decrees, orders and sentences.
Provided always, and it is hereby ordered, that nothing herein contained doth or shall
extend, or be construed to extend, to take away or abridge the undoubted right and authority
of Her Majesty, Her Heirs and Successors, upon the humble petition of any person or
persons aggrieved by any Judgment or determination of the said Court, at any time, to
admit his, her, or their appeal therefrom, upon such terms, and upon such securities,
limitations, restrictions and regulations, as Her Majesty, or Her Heirs or Successors shall
think fit, and to reverse, correct, or vary such Judgment, or determination, as to Her
Majesty, Her Heirs or Successors shall seem meet.
And it is further ordered, that in all cases of appeal, made from- any Judgment, order,
sentence, or decree of the said Court, to Her Majesty, Her Heirs or Successors in Her
or Their Privy Council, such Court shall certify and transmit to Her Majesty, Her Heirs
or Successors, in Her or Their Privy Council, a true and exact copy of all Evidence,
Proceedings, Judgments, decrees and orders had or made in such cases, so far as the
same have relation to the matters of appeal, such copies to be certified under the Seal of
the said Court. And that the said Court shall also certify and transmit, to Her Majesty,
Her Heirs and Successors, in Her or Their Privy Council, a copy of the reasons given
<£-
A- [vii.]
by the Judge of such Court for or against the Judgment or determination appealed
against, and Her Majesty doth further direct and ordain, that the said Supreme Court
shall, in all cases of appeal to Her Majesty, Her Heirs and Successors, conform to and
Execute, or cause to be executed, such Judgments and orders, as Her Majesty, Her Heirs-
or Successors, in Her or Their Privy Council shall think fit to make in the Premises, in
such manner as any original Judgment, decree, or decretal order, or other order or rule
of the said Court shall or might have been executed.
£f And it is hereby ordered, that in this Order in Council the term Governor shall include
the officer for the time being administering the Government of the Colony of Vancouver's
Island.
j? * And the Right Honorable Henry Labouchere, one of Her Majesty's Principal Secretaries
of State, is to give the necessary directions herein accordingly.
(Signed,)
I
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MANNEE   OF   PEOOEEDING,
OP   THE
SUPREME COURT OF CIVIL JUSTICE, FOR VANCOUVER'S ISLAND.
WHEREAS, By an Order of the Queen's Most Excellent Majesty in Council, dated at
the Court of Buckingham Palace, London, the 4th day of April, 1856, Her
Majesty was graciously pleased to order by and with the advice of Her
Privy Council, that there shall be within Her Colony of Vancouver's Island,
a Court, which shall be called the Supreme Court of Civil Justice, of the
Colony of Vancouver's Island, and that the said Supreme Court shall be a
Court of Record.
And Her Majesty, amongst other things, was graciously pleased to order, direct, and
appoint, that the said Supreme Court shall have cognizance of all pleas, and jurisdiction
in all civil causes arising within the said Colony; with jurisdiction over Her Subject's,
and all other persons whomsoever residing and being within the said Colony, and shall
have all such equitable jurisdiction, and all such powers for enforcing and giving effect to
the same, as the High Court of Chancery hath in England, and shall have power to
appoint, and control, guardians of infants, and of their estates, and committees of the
persons and estates of idiots, lunatics, and such as being of unsound mind are unable to
govern themselves and their estates ; and to institute all such examinations, as the said
Court shall deem necessary to ascertain such i diotcy, lunacy, or unsoundness of mind;
and shall have exclusive jurisdiction, in all questions relating to testacy, or intestacy, and
to the validity of wills of personal property, as fully as any ecclesiastical Court hath in
England, and shall have power to grant probates of wills, and letters of administration of
the estates and effects of deceased persons being in the said Colony of Vancouver's
Island, and to take order for the due passing of the accounts of the Executors, and
Administrators of such deceased persons, and for the proper custody of the estates and
effects of such deceased persons, and for the delivery of the same to the person entitled
thereto.
And Her Majesty was further graciously pleased to give and grant to the said
Supreme Court full power, authority and jurisdiction to apply, judge and determine upon,
and according to the laws now or hereafter in force, within Her Majesty's said Colony.
And Her Majesty was further graciously pleased, to order and declare, that it shall
and may be lawful for the said Supreme Court, by any rules or orders of Court, to be by
them from time to time for that purpose made and published, to frame, constitute, and
establish such rules, orders, ^nd regulations, as shall seem meet touching and concerning
the time and place of holding the saicj Court, and touching the forms and manner of
proceeding, to be observed in the said Court, and the practice and pleadings upon all
actions, suits, and other matters, indictments and informations, to be therein brought, the
appointing of Commissioners to' take bail and examine witnesses de bene esse, and
allowing the same as evidence, the proceedings of the Sheriff, and other ministerial officers [2]
of the said Court, the process of the Court, and the mode of executing the same, the
summoning, empaneling and challenging of Jurors, the admission of Barristers, Advocates,
Attorneys and Solicitors, and Proctors, the fees, poundage, or perquisites, to be lawfully
demanded, by any and payable to any officers, attorneys, solicitors and proctors, in the
said Court the granting of probates of wills, and letters of administration, and the duties,
remuneration, and control of executors and administrators, and of the guardians of
infants and of the committees of the persons or estates of lunatics, idiots or persons of
unsound mind, and touching and concerning all such other matters and things necessary
for the proper conduct, and dispatch of business, in the said Court; and all such orders,
rules and reo-ulations; from time to time to revoke, alter, amend or renew, as occasion
may require.   ;.•'; ||&i
IT IS THEREFORE  ORDERED.
Rule 1st. That sessions of the Supreme Court shall be held four times during the
year, commencing on the second Monday in the" Months of January, April, July and
November, for trial-of all causes that may be brought before it.
Rule 2nd. The office of the Court at Victoria shall be open every day, Sundays
and Holidays excepted, and the Registrar and other officers of the Court shall attend
therein, from 10 o'clock in the morning to 3 o'clock in the afternoon, and on Saturdays
from 10 to 1 o'clock only.
Rule 3d. There shall be enrolled in the Court, to practice therein as Barristers, such
persons only as shall have been admitted as Barristers in England, or Ireland; or
Advocates of the Court of Session of Scotland, or to the degree of Doctor of Civil Law,
at the University of Oxford, Cambridge, or Dublin.:
Rule.'4th. There shall be enrolled in the Court, to practice therein as Solicitors,
such -persons only as' have been admitted to practice as Attorneys, or Solicitors of any of
the Courts of Record at Westminster or Dublin, or being -Proctors admitted to practice
in any ecclesiastical Court in* England, or Ireland, or being writers to the signet in
Scotland. ' If*'}§ -   -
Rule 5th. Every person who shall apply to be enrolled as a Barrister or Solicitor
of the Supreme Court shall make and sign a declaration in the form No. 1 or 2 (as the
case.'may be,) in the Schedule, hereunto annexed.
Rule 6th. The Barristers of the Court shall he allowed to act as Solicitors, and
the Solicitors of the Court to act also as Barristers, so long only as there is not a
sufficiency of Barristers or Solicitors competent and willing to act for the suitors of
the said Court, in these capacities, and during the time of such insufficiency only,
provided that nothing herein contained shall be construed to prevent the suitors in the
said Court from appearing and acting for themselves, if they shall so think fit.
Rule 7th. Any person having any complaint or demand of a civil nature, whether
of debt or damages, or personal chattel, or in respect of any matter of contract, or of
tort, or taking, or detention, or in any matter ecclesiastical, shall, and may enforce the
same, in an action, to be called a personal action; and all actions of ejectment shall be
commenced and prosecuted in the manner hereinafter provided.
Rule 8th. All such personal actions shall be commenced, by a Writ of Summons,
according to the form marked No. 3 in the Schedule hereunto annexed, and which shall
be authenticated by the seal of the said Supreme Court, to be thereunto set, by the Clerk
of the Writs, who shall not be required to sign such writ, but shall enter the particulars
thereof in the book to be kept for that purpose, and such writ shall bear date of the day
in which it is sealed, and may be sued out at any time.
Rule 9th.    In every such Writ of Summons, and copy thereof, the names of the [3]
plaintiff and defendant, the place of residence of the plaintiff, and the place of residence,
or supposed residence, or last known residence of the defendant, and such designation or
description of the parties respectively as the plaintiff, or his Solicitor, may be able to
give, shall be mentioned in such Writ, and shall contain a true and succinct statement of
the plaintiff's cause, or causes of action; and if the plaintiff shall sue, or the defendant
be sued, otherwise than in his own rights, shall also state the character in which, and the
title by which he sues, or in respect of which the defendant is sued, and shall also state
the relief which the plaintiff requires.
Rule 10th. The particulars of the plaintiff's demand, where the same shall be i
liquidated or money demand, and of all credits to which the defendant may be entitled,
and of the balance, if any, claimed by the plaintiff, shall be indorsed on the Writ, and on
the copies thereof for service, unless the said demand shall consist of so many items or
particulars that they cannot be conveniently indorsed thereon ; in which case the plaintiff
shall cause particulars to be annexed to said Writ, and to the copies thereof intended for
service to be incorporated therewith, by proper reference, and shall cause the same to be
served on the defendant; such indorsement on or paper annexed to the Writ shall be
considered as particulars of demand, and no further or other particulars need be delivered,
unless ordered by the Court, or Judge.
Rule 11th. Every Writ of Summons shall contain, or be endorsed with the name
and place of abode of the Solicitor actually suing out the same, and in case no Solicitor
should be employed to issue the Writ, then shall contain, or be endorsed with a memorandum expressing that the same has been sued out by the plaintiff in person, mentioning
the Town or District, and also the name of the street, and number, if any, of the house
of such plaintiff's residence; and also, in case the said plaintiff shallnot reside in the
town of Victoria, mentioning some place in the said Town at which the debt may be
paid; and all notices and other proceedings in the cause may be served.
Rule 12th. One duplicate or more of such Writ of Summons shall be sealed, with the
seal of the said Supreme Court, by the said Clerk of the Writs, on application of the
plaintiff or his Solicitor.
Rule 13th. Upon the Writ, and duplicate, or copy of any Writ, served for the
payment of any debt, the amount of the debt shall be stated, and the amount of what
the plaintiff or his Solicitor claims for the cost of such writ, copy and service, and
attendance, to receive debt and costs; and it shall be further stated, that upon payment
thereof, within six days, to the plaintiff or his Solicitor, further proceedings will be stayed,
which endorsement shall be written or printed in the following form or to the like effect, viz:
"The plaintiff claims £ for debt, and £ for costs, and if the amount thereof be
paid, to the plaintiff or his Solicitor within six days from the service hereof, further
proceedings will be stayed."' But the defendant shall be at liberty, notwithstanding such
payment, to have the costs taxed, and if more than one-sixth shall be disallowed, the
plaintiff or his Solicitor, shall pay the costs of taxation,  ^p
Rule 14th. No original Writ of Summons shall be in force for more than six months
from the day of the date thereof, including the day of such date, but if any defendant
therein named shall not have been served therewith, the original Writ of Smrirnons may
be renewed at any time before its expiration, for six months from the date of such renewal,
and so from time to time, during the currency of the renewed writ, by being re-sealed with
the seal of the said Supreme Court, and a memorandum of the date of the day, month and
year of such renewal, signed or initialed, by the proper officer of the Court.
Rule 15th. The person serving the Writ of Summons shall, and is hereby required
to serve on the defendant an exact copy of the original Writ of Summons, with the
particulars and other endorsement thereon, and at the same  time  to exhibit to  the [4]
»
defendant the original Writ of Summons, if so required, as his authority for the service;
and he is hereby required, within three days at least after such service, to endorse on the
writ the day of the month and week of the service thereof; otherwise the plaintiff shall
not be at liberty, in case of non-appearance to proceed, and every affidavit of service of
such Writ, shall mention the day on which such endorsement was made.
Rule 16th. Service of any Writ of Summons on the defendant, shall be effected
either by a delivery of a copy of such Writ to the defendant in person, if it be reasonably
practicable, and in other cases, and where it shall appear by the affidavit of service
hereinafter mentioned, that such defendant is personally within the jurisdiction, and that
due and reasonable diligence has been exercised in endeavoring to effect such personal
service and without effect; in such case it shall be sufficient to make service of such
Writ by leaving such copy at the defendant's house or place of residence, or at his office,
warehouse, counting-house, shop, factory, or place of business, with the wife, child, father,
mother, brother, or sister of the defendant,-or with any servant or clerk of the defendant;
the person with whom such copies shall be left being of the age of 16 years or upwards,
and showing to such person the original, or duplicate of the original, of such Writ of
Summons.
Rule 17th. In case it should be made to appear by affidavit, to the satisfaction of
the Court or in vacation to the Judge of the said Court, that any defendant in any
summons, the cause of action in respect of which the same shall have issued, having
arisen within the jurisdiction of the Court, has not been served with the Writ of Summons
in the manner hereinbefore prescribed, and has not according to the exigency thereof,
appeared and taken defence to the action, and that due and proper means were used to
serve such writ in the manner aforesaid, or that such defendant is out of the jurisdiction of
the Court, and cannot be properly served through or upon any agent or representative, or
any manager of the real or personal estate of such defendant, within such jurisdiction, or
has removed to avoid service or on any other good and sufficient grounds, it shall be lawful
upon an application made at any time while the said Writ shall be in force, for the Court
or Judge to authorize such substitution of service, through the Post Office, or in such
manner, and with such extension of time, for service and defence, as to the Court or Judge
shall seem fit, and the taxing officer shall allow reasonable costs on such proceedings, for
substituting service, or of effecting such service as the Court shall have directed, or deemed
good; and in default of an appearance and defence, by such defendant in due time, it
shall be lawful for the plaintiff to proceed thereon, as is hereinafter provided.
Rule 18th. An affidavit of the service of the Writ of Summons in the manner hereinbefore prescribed, or in the manner directed, by any such orders, for liberty to substitute
service as aforesaid, shall be made and filed in the office of the Registrar, in case it shall
become necessary, to enter judgment by default.
Rule 19th. The original or duplicate Writ of Summons, with the endorsements and
particulars thereon, shall in order to enforce a defence thereto within the period of time
in such writ mentioned, four days at least before the time for pleading thereto has expired,
be filed with the Registrar of the Court, and such writ shall be deemed to be a pleading
of the plaintiff; provided that in case such writ of summons shall not be filed within the
time aforesaid, it shall be sufficient for the purpose of enforcing a defence thereto, after
the filing of the same, to give notice of the filing to the defendant, and such defendant
shall have eight days from the service of such notice, to file his defence thereto; but in
no case shall the plaintiff be at liberty to proceed to enforce a defence after the expiration
of six months from the service of such Writ of Summons.
Rule 20th. In case the plaintiff shall neglect to file the original Writ of Summons
within two months after the service thereof on the defendant, unless the time for filing
such writ of summons shall have been extended, such defendant may on an affidavit of L5]
the service thereof, and a certificate of no writ of summons filed, enter a rule that the
plaintiff do file his writ of summons within four days after the service thereof, or pay to
the defendant such sum as shall be fixed by the taxing officer, as and for his costs,
occasioned by being served with such writ of summons; and in case the plaintiff shall,
after the entry of such rule, file his Writ of Summons, he shall pay to the defendant his
costs occasioned, thereby, upon demand, not exceeding the sum of one pound ten shillings,
or in default thereof, the defendant may obtain a rule for the payment of such sum, and
the costs of such rule.
Rule 2 1st. The defendant may, within the time specified in the said writ of
summons, or within eight days from the service of the notice of filing the said wri, tin
manner aforesaid, or at any time before judgment, or within such time as the Court or
Judge may permit, file with the Registrar an appearance and defence, or demurrer to the
said wTrit of summons, and such defence may be according to the form No. 4 in the Schedule
hereunto annexed, and shall contain at the foot thereof, the name and residence of the
defendant's Solicitor, where the same is pleaded by a Solicitor; and where it is pleaded in
person, the residence of the defendant, and in case such residence shall not be in the town
of Victoria, shall specify, by the name of the street and number of the house if any,
some place within the said town, whereat all notices and papers relating to the suit may
be served and delivered for the defendant.
Rule 22nd. In any case in which there are mutual debts between the plaintiff and
defendant, or if either parties sue or be sued, as executor or administrator, where there
are mutual debts between the testator or intestate, and either party, one debt may be set
off against the other, and such matter may be pleaded in bar of the action, or of the further
maintenance thereof, or so much of the debt as it covers, and the account upon which it
became due shall be alleged as in a Writ of Summons for the same debt.
Rule 23d. In case the defence shall insist upon any payment, or set-off, the full
particulars of the same shall be endorsed, in the said defence, and on the copies for service,
unless they are so many, that they cannot be conveniently introduced therein, in which
case they ,-shall be annexed thereto, and incorporated therewith by a proper reference.
Rule 24th. Where the defendant is within the jurisdiction, the time for the appearance and defence of the Writ of Summons shall be sixteen clear days from the day of the
service thereof, exclusive of Sundays; or eight days from tho service of a notice of filing
of a Writ ot Summons, whichever period shall last expire, unless the Court or Judge
shall extend the time; and the day for appearing to said Writ of Summons shall run as
well in vacation as during the sessions of the Court, excepting the days from the 24th
day of July till the 13th day of October inclusive.
Rule 25th. Notice of filing such defence, together with a correct copy thereof, shall
be served on the plaintiff's Solicitor, or on such plaintiff in case no Solicitor shall be
employed; and such defence shall be considered as filed, as on the day on wThich such
notice and copy shall be served.
Rule 26th. The Court or Judge may in any case, by an order made on motion,
direct a further or more detailed particular of the items of demand, or credits referred to
in any Writ of Summons, or of any payments or set-off, referred to in any defence to be
furnished; and in any action for an injury to person or property the Court or Judge may
order plans of the place in which the injury is alleged to have been committed, or as to
which any justification is pleaded, to be given or exchanged between the parties; and
the Court or Judge may extend the time for pleading or making up the issue, in consequence of the necessity of such particulars, or further particulars on such terms, as shall
appear to be just; and where any party shall require to amend his particulars, he shall
apply to the Court or Judge for the purpose. [6]
Rule 27th. In any case in which it shall appear to the Court, or Judge, that it
would be necessary, for the purpose of ascertaining the truth of any matter in dispute
between the parties in the action, that an inspection or examination of any premises or
chattels in the possession or power of either party, and in respect of which, or some right
or injury connected with which, the said action shall be brought, should be had by the
opposite party, his solicitor, agent, witnesses, or by the jury, it shall bo lawful for the
Court or Judge to order that the party in whose possession or power the same shall be,
shall permit an inspection and examination of the said premises or chattels by the jury,
or by such person or persons on behalf of the party applying, and at such times and under
such regulations as to the Court or Judge shall seem fit.
Rule 28th. There shall be no further pleading after the defence, except a demurrer
to the defence, or a replication to a defence of set off or plea of matter, occurring subsequently to the commencement of the action, unless by the special leave of the Court or
Judge on an application to allow such further pleading, which shall only be allowed in case
the real question or questions, whether of fact or law, between the parties cannot
conveniently be raised, and put in issue, by the amendment of the previous pleadings.
Rule 29th. Every replication and subsequent pleading shall be pleaded, and filed in
the office of the Registrar, and notice of the filing with a copy thereof shall be served*
and the particulars of any payments relied upon shall be endorsed or annexed thereto, in
a similar manner to that hereinbefore prescribed in respect of the defence, so far as the
same shall be applicable thereto.
Rule 30th. The defence and replication, and subsequent pleadings, if any, shall
state all facts which constitute the ground of defence or reply, in ordinary language, and
without repetition, and as concisely as is possible consistently with clearness.
Rule 3 1st. The forms of pleading contained in the Schedule hereunto annexed, shall
be sufficient in the cases to which they apply, and these and the like forms, may be used
with such modification as may be necessary to meet the facts of the case, but nothing
herein contained shall render it erroneous or irregular to depart from the letter of such
forms, so long as the substance is expressed without prolixity.
Rule 32nd. Any defendant served with any Writ of Summons in any action, shall
thereupon be deemed to be in Court, for the purpose of making application to the Court
or Judge; to compel the plaintiff' to give security for costs, and for other like purposes ;
provided, that no order for security for costs shall be made by reason of any plaintiff being
resident out of the jurisdiction of the Court, at the instance of any defendant, unless upon
a satisfactory affidavit, that such defendant has a defence upon the merits.
Rule 33d. The defendant may by leave of the Court or Judge, plead and demur, or
the plaintiff may reply and demur, to the same portion of the Writ of Summons or defence
at the same time, upon an affidavit by the party pleading or his solicitor, if required by the
Court or Judge, that he is advised and believes all the objections raised by demurrer are
good and valid objections in law, and it shall be in the discretion of the Court or Judge to
direct which issue, whether of fact or law, shall be first disposed of.
Rule 34th. The costs of every issue, whether of fact or law, shall follow the finding
or judgment upon such issue, and be adjudged to the successful party, whatever may be
the result of the other issues.
Rule 35th. When any party shall rely on any deed or document, or any portion
thereof, m his pleading, the said deed or document shall be produced upon every trial and
argument in the cause, unless its nonproduction can be satisfactorily excused; and in
default thereof it shall be lawful for the Court or Judge, before whom such trial or argument shall be had, to exclude the said party so in default from all benefit or advantage
of the said deed or document, or to make such order for the postponement of the trial or [7]
argument, and the payment of the costs occasioned by the said postponement, as shall
seem to be just; and the opposite party shall be at liberty, by notice in writing, to
demand of the parties so relying on the said deed or document, an inspection or copy, or
both an inspection and copy of the same, including the names of the witnesses, by whom
it is attested if any, and any indorsement or defeasance thereon ; and also the production,
inspection, or copy of any other deed or instrument, whereof inspection could be obtained
by a bill of discovery, and such copy when furnished shall be certified to be a correct
copy by the solicitor or party furnishing the same; and in case such copy shall not be
delivered, or such inspection or production shall not be granted, the party demanding the
same shall be at liberty to apply to the Court or Judge, for an order for such copy or
inspection or production, or copy and inspection and production, as such Judge shall think
fit; but such demand, notice or order, shall in no case operate as a stay of proceedings, except
when a special order shall be made by the Judge to that effect.
Rule 36th. All facts stated in any Writ of Summons, and not denied in the defence,
shall be deemed to be admitted for the purpose of the suit; and an action by Executors or
Administrators, or persons authorized by letter of attorney, or by act of Parliament, to
sue or to be sued as nominal parties, the character in which the plaintiff or defendant is
stated to sue or be sued shall not in any case be considered as an issue unless specially
denied.
Rule 37th. Any defendant in any personal action whatsoever, except actions for
assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution,
criminal conversation, or debauching the plaintiff's daughter or servant, and in any proceeding by Writ of Revivor, to have execution of any judgment, may pay into Court a
sum of money by way of compensation or amends, or in discharge of plaintiff's demand,
or upon any defence of tender, and such payment shall be made by lodging the money
with the Registrar of the Court, and the Registrar shall give a receipt for the amount in
the margin of the defence.
Rule 38th. At any time before verdict or judgment for the defendant, or peremptory order for payment of costs for not proceeding to trial, the plaintiff may in any case
in which money has been lodged in Court in discharge of the plaintiff's demand, or on a
defence of tender, apply to the Registrar for the sum lodged by the defendant; and the
said Registrar on being satisfied, by affidavit or otherwise, that a verdict or judgment, or
peremptory order for such payment as aforesaid for the defendant has not been had, shall
thereupon pay accordingly; but after verdict, or judgment, or peremptory order aforesaid
for the defendant, the money shall remain in Court to answer the defendant's costs, and
the plaintiff shall not be at liberty to draw the same unless by order of the Court on
motion.
Rule 39th. In case the plaintiff shall accept the amount lodged in full satisfaction
of his demand, the receipt for the money given to the Registrar shall state that it has
been so accepted, and the plaintiff's costs of suit shall be taxed and ascertained by the
Registrar, and in case of nonpayment thereof, within forty-eight hours after taxation and
demand, the plaintiff shall be at liberty to enter a peremptory order for paymen±-ot his
costs of suit so taxed, and for such further sum as shall be fixed by the Registrar, subject
to the approval of the Judge of the Court as and for his costs of obtaining such order.
Rule 40th. In case the plaintiff declines to accept the sum paid into Court to satisfy
the claim of the plaintiff, in respect of the matter to which the plea is pleaded, the
sufficiency of the payment shall be tried upon the issue raised for that purpose by the
said defence; and in case of such issue being found for the defendant, the defendant shall
be entitled to judgment and his costs of suit.
Rule 41st. Either party may object by demurrer to the pleading of the opposite
party, for that such pleading does not set forth sufficient ground of action, defence or /
p
[8]
reply as the case may be, and every such demurrer shall state concisely and explicitly
the legal points or objections to be relied on, and may be according to the Form No. 5 in
the Schedule hereunto annexed, and to such demurrer there shall be no further pleading.
Rule 42nd. No objection by way of general or special demurrer for formal matter
only shall be allowed, and wherever issue shall be joined on any demurrer the Court shall
proceed and give judgment according to the very right of the cause, without regarding
any imperfection, omission, defect in or lack of form; and every Writ of Summons and
defence or other pleading which shall; with reasonable clearness and distinctness, state all
such matters of fact as are necessary to ground the action, defence or reply, as the case
may be, shall be sufficient; and it shall not be necessary that such matter shall be stated
in any technical or formal language or manner.
Rule 43rd. Judgment on demurrer for defendant, aDd also for the plaintiff, in all
cases in which the action is for a liquidated or money demand, shall be final, unless the
Court shall .give liberty to amend the pleading demurred to, or to plead de novo on the
argument of the demurrer or by any subsequent order.
Rule 44th. If any pleading or demurrer be so framed as to prejudice, embarrass
or delay the fair trial of the action, the opposite party may apply to the Court or Judge
to strike out or amend such pleading, and the Court or Judge shall make such order
respecting the same, and also respecting the costs of the application, as to the Court or
Judge shall seem fit.
Rule 45th.   No plea in abatement for the nonjoinder of any person as a party,
fjfciilt'ffi nr defendant, shall be filed without the leave of the Court, but such defect, or
■oinder, or nonjoinder of any party, may be pointed out by either party, by notice
pthe wial, and such notice may be followed by a summary application to the Court
llpuugeIfr respect thereof, upon which application the Court or Judge may make such
iP^jpherein as shall seem to be just.
-Rule 46th. In default of such defence or demurrer filed as aforesaid, and where the
^plaintiff's claim is for a debt or liquidated demand in money, with or without interest,
arising upon a contract, express or implied, it shall be lawful for the plaintiff on filing an
affidavit of the service of the Writ of Summons in the manner hereintofore prescribed,
and certificate of no defence filed to sign a final judgment in the form 6 in the Schedule
hereunto annexed for any principal sum, not exceeding the sum claimed by the said writ,
with legal interest thereon, and a sum for costs to be fixed by the Registrar of the said
Supreme Court, subject to the approval of the Judge of the said Court, and the plaintiff
may upon such judgment issue execution, provided always that it shall be lawful for the
Court or Judge to let in the defendant to defend upon such terms as such Court or Judge
shall seem proper.
Rule 47th. In default of such defence or demurrer filed as aforesaid, in case of
judgment for the plaintiff on demurrer, where the plaintiff's claim is not for a debt or
liquidated demand in money; but it shall appear to the Court or Judge that the amount
of damages so to be recovered by the plaintiff, although not liquidated in its nature is
substantially a matter of calculation, it shall not be necessary to issue a writ of inquiry,
but the Court or Judge may direct that the amount for which final judgment is to be signed
shall be ascertained by the Registrar of the Court on affidavit, or by oral evidence; and
the attendance of witnesses, and the production of documents, before such Registrar may
be compelled by subpoena, in the same manner as before a jury, upon a writ of inquiry;
and it shall be lawful for such Registrar to adjourn the inquiry from time to time, as
occasion may require.
Rule 48th. In default of such defence or demurrer, and in case of judgment for the
plaintiff on demurrer, when the plaintiff's demand is not for a debt or liquidated sum of [9]
money, and when the amount of damages so to be recovered cannot be calculated as
aforesaid, it shall be lawful for the plaintiff to issue a writ of inquiry to the Sheriff of the
Colony, or other person thereunto lawfully authorized, to summon a Jury to assess
the same, ten days before the time when such jury shall be required; and the
jurors shall be summoned and taken from the list of persons liable to serve as jurors
in the District of Victoria; and the Sheriff shall cause so many of the jurors, as
in his opinion he shall deem sufficient to be summoned, but not less than eight of
such persons shall attend, and either party shall be entitled to his lawful challenge
against all or any of the said jurors; and a jury consisting of not less than four shall
be empanneled to try such fact or facts, or assess such damages, and such jury shall
be sworn and paid as a common jury, and such inquiry shall be holden at Victoria or such
other place as shall be agreed on between the Sheriff and the party delivering the writ to
him, who shall have ten days notice, in writing, of the time and place of holding such
inquiry; and notice of the holding of such inquiry shall also be given by the plaintiff to
the defendant ten days before the holding of the same; and the said writ of inquiry may
be made returnable, and be returned on any day certain in sessions or in vacation, to be
named in such writ, and upon the return thereof the costs may be taxed, and judgment
signed and execution issued forthwith, unless the Sheriff, or other officer, before whom
such writ shall be executed, shall certify under his hand upon such writ, that judgment
ought not to be signed, until the defendant or plaintiff, shall have had an opportunity to
apply to the Court to set aside the execution of such writ of inquiry, or unless- the Judge
or the Court shall think fit to order the judgment to be staid, until a day to be named
in such order. *   JM
Rule 49th.    It shall be the duty of the Registrar of the Court, before!
any such judgment by default to be marked, to see that a proper affida^ of i
of the Writ of Summons has been filed, and that according to such affidavit,!
such writ has been effected in the manner hereinbefore prescribed, or in the manH
stituted by the order of the Court or Judge as aforesaid.
Rule 50T& After defence or last subsequent pleading filed, and together with til
notice of trial, the plaintiff or his Solicitor shall furnish to the defendant or his Solicitor,
a draft of the abstract of the pleadings, and of the issues in fact to be tried, according to
the form No. 7 in the Schedule hereunto annexed, and in case the defendant shall not
return the same, approved olj within four days from the delivery thereof, the plaintiff may
take out a summons to settle the same before the Judge, who shall settle the same, and
shall also adjudicate on the costs of such settlement; and such abstract so agreed upon
or settled, shall be lodged with the Registrar of the Court, and an engrossment of such
abstract so agreed on or settled, and prepared by the plaintiff, shall be in the place of the
Record of Nisi Prius, and the Postea and all other proceedings of the trial shall be endorsed
thereon, and shall be returnable in the like manner as the Nisi Prius Record in England.
Rule 51st. Ten days notice of trial or inquiry shall be given, and shall be sufficient
in all cases, in Town or Country, unless otherwise ordered by the Court or Judge.
Rule 52nd. A countermand of notice of trial or inquiry may be given four days
before the time mentioned in the notice, unless otherwise ordered by the Court or-Jrrdge,
or by consent.
Rule 53d. A rule or order for costs of the day for not proceeding to trial, or inquiry,
pursuant to notice, or not countermanding in sufficient time, may be drawn up on affidavit
without motion, at any time within one month after the day of trial or inquiry, fixed by the
notice of trial or inquiry; and if such order or rule be not entered within said period, such
costs shall be costs in the cause; provided however that such rule shall, so long as it remains
in force, be an answer to any application, in respect to any default in proceeding to trial.
1 [10] ■    ^
Rule 54th. The plaintiff shall proceed to trial within three sessions from that in
which, or the vacation of which the defence or other subsequent pleading is filed; and in
default thereof, the defendant may enter a rule, that the plaintiff do proceed to trial, at the
sessions next after the expiration of twenty days from the service of such rule, and that
in default the defendant shall be dismissed with his costs of the suit; and if the plaintiff
neglects to proceed to trial in pursuance thereof, the defendant, on filing an affidavit of
the service of such rule, and that the plaintiff has failed to proceed to trial in pursuance
thereof, may enter a peremptory order for the payment of his costs of the suit, which
order shall be in lieu, and shall have the effect of a judgment as in case of a nonsuit, and
the defendant, on producing such order to the Registrar, shall have execution thereon;
provided, however, that the Court or Judge shall have power to extend the time for proceeding to trial with or without terms.
Rule 55th. Nothing herein contained shall affect'the right of a defendant, to take
down a cause for trial, after default by the plaintiff to proceed to trial as aforesaid; and it
shall be lawful for the defendant, after such default, to proceed to have the abstract of the
issues settled in the same manner as the plaintiff might have done.
Rule 56th. When a defendant shall be entitled to go to trial as aforesaid, he may
proceed without any rule or order for that purpose, and the same notice of trial shall be
given as in ordinary cases, and if abstracts are entered for trial, both by the plaintiff and
defendant, the defendant's abstract shall be treated as standing next in order after the
plaintiff's abstract in the list of causes, and the trial of the cause may take place
1*1. accordingly.
Rule 57th. No jury process shall be necessary or used in any action, but a precept
issued by the Judge of the said Supreme Court to the Sheriff of the Colony, to summon
a sufficient number of common jurors, shall direct that the jurors be summoned for the
trial of all issues in the said Supreme Court; and seven days before the first day of each
session, a printed or written pannel of the jurors so summoned, for the trial of causes at
such sessions shall be made by the Sheriff, and kept in his office for public inspection, and
a written or printed copy of such pannel shall be delivered by the Sheriff to any party
requiring the same, on payment of a fee of one shilling and six pence, and a copy
thereof shall be annexed to the abstract for trial, and it shall be the duty of the Sheriff
to apply for and procure such precept to be issued in sufficient time, before each session,
to enable him to summon the jurors in manner aforesaid.
Rule 58th. The precept issued by the Judge of the said Supreme Court, shall
also direct the Sheriff to summon a sufficient number of special jurymen to be mentioned
therein, not exceeding sixteen in all, and the persons summoned in pursuance of such
precept shall be the jury for trying the special jury causes at the Sessions, subject to such
right of challenge as the parties are entitled to by law, and subject to the liability as to
the payment of the costs of obtaining such special jury; and a written or printed pannel
of the special jurors so summoned, shall be made, kept, delivered and annexed to the
abstract for trial in like time and manner, and upon the same terms as hereinbefore
provided, with reference to the pannel of common jurors, and upon the trial the
special jury shall be balloted for, and called, in the order in which they shall be
drawn from the box, in the same manner as common jurors.
Rule 59th. The number of jurors in all trials before the said Supreme Court, in
consequence of the smallness of the population of the Colony, shall be eight jurors, and
no more, until further provision is made for increasing the number to twelve, as in England ; and the said eight jurors shall, in all cases, deliver an unanimous verdict.
Rule 60th. The plaintiff in any action, except for the replevin of goods, shall be
entitled to have the cause tried by a special jury, upon  giving notice in writing to the [11]
defendant, at such time as would be necessary for a notice of trial, of his intention that
the cause shall be so tried; and the plaintiff in an action for the replevin of. goods, and
the defendant in other cases, shall be so entitled, on giving the like notice within six days
before the first day of the sessions ; provided that the Court or Judge may at any time
order that a cause shall be tried by a special jury, on such terms as the Court or Judge
shall think fit.
Rule 6 1st. When notice has been given to try by a special jury, either party may,
six days before the first day of the sessions, give notice to the Sheriff, that such action is
to be tried by a special jury; and in case no such notice be given, or the notice has not
been given in sufficient time, no special jury need be summoned, or attend, and the cause
may be tried by a common jury, unless otherwise ordered by the Court or Judge.
Rule 62nd. A Writ of View shall not be necessary or used, but when a view is required to be had by a common or special jury, it shall be sufficient to obtain a rule of the
Court, or the Judge's order, directing a view to be had, and directing the Sheriff to have
four or more of the jurors named in the pannel, chosen by consent, or if the parties cannot agree, nominated by the proper officer of the Court at the place in question, some
convenient time before the trial, and the viewers shall have the place shewn to them by
two persons to be named in the order by the Court or Judge ; and the Sheriff, upon request, shall deliver to either party the names of the Viewers, and shall also return their
names to the Registrar, for the purpose of their being called as jurymen upon the trial.
Rule 63rd. Either party may call upon the other party by notice, to admit any
documents, or a copy thereof, saving all just exceptions, and in case of refusal or neglect
to admit within a reasonable time, the costs of proving the document, or copy, shall be
paid by the parties so neglecting or refusing, whatever the result of the cause may be,
unless at the trial the Judge shall certify that the refusal to admit was reasonable, and
no costs of proving any document, or copy, shall be allowed unless such notice be given.
Rule 64th An affidavit of the. party, or his Solicitor in the cause, of the due
signature of any admissions made in pursuance of such notice, and annexed to the affidavit,
shall be in all cases, sufficient evidence of such admissions.
Rule 65th. An affidavit of the party, or his Solicitor in the cause, of the service
of any notice to produce, in respect of which, notice to admit shall have been given, and of
the time, when it was served, with a copy of such notice annexed to such affidavit, shall
be sufficient evidence of the service of the original of such notice, and of the time when
it was served;
Rule 66th. Every Bill of Exceptions may be according to the form No. 9, in the
schedule hereunto annexed ; and it shall be lawful, by consent of the parties or order of
the Judge, to incorporate any Deed or Document therewith, by an appropriate reference
to such Deed or Document without setting forth the same.
Rule 67th. No judgment shall be arrested or stayed, or reversed, by reason of
any imperfection, omission, defection, or lack of form in any Writ of Summons, defence
or other pleading, or proceeding, nor by reason of any misnomer of any of the jurors
who tried the case, in name, surname, or addition, so as it appear to the Court to be the'
same man that was meant to be returned, nor by reason that the plaintiff or defendant
being under the age of twenty-one years, did sue or defend by Attorney.
Rule 68th. When it shall be required to sign any judgment, the party or his
Solicitor requiring the same, shall deliver to the proper officer a correct summary or recital of the proceedings, briefly stating the several pleadings, and the nature thereof,
fairly written out and signed by the party or his Solicitor, and thereupon the officer shall
take off from the Pleadings' File the several pleadings in the cause in which such judgment shall be required to be made up, and shall place them, together with the said sum- [12]
mary prefixed, in consecutive order upon the file of judgments, there to be kept as the
permanent records of the Court; and shall upon the said summary give the proper award
of judgment; and it shall in all cases of enrolling judgments, be sufficient to place on
the roll a correct copy of the said summary or recital of the proceedings according to fact,
together with the award of judgment in proper form, with a reference to the original
pleadings on the judgment file, whereby the same may be immediately found and inspected; and no judgment so enrolled, shall be liable to be disturbed on the ground of
error on account of any omissions hereby authorized; provided, always, that if it shall
be deemed necessary for the prosecution of any proceeding in appeal, or for any other
purpose, it shall be lawful for the Court to order, that the whole, or any part of the
pleadings, shall be transcribed upon the roll, and the same shall be transcribed by the
proper officer accordingly.
Rule 69th. In all actions where the plaintiff recovers a sum of money the
amount which he is entitled to may be awarded to him by the judgment generally,
without any distinction being made therein as to whether such sum is recovered by
way of a debt or damages.
Rule 70th. In all actions for a trespass on lands or tenements^ assault and battery, or for slander, the plaintiff in such action, in case the jury shall find the damages to be under the value of forty shillings;, shall not recover or obtain more costs
of suit than the damages so found shall amount unto, unless the Judge at the trial
shall certify under his hand on the back of the abstract, that the assault and battery
was sufficiently proved by the plaintiff against the defendant^ or that the freehold or
title of the land mentioned in the Writ of Summons was chiefly in question, or that
the trespass was voluntary or malicious.
Rule 71st. A plaintiff or defendant having obtained a verdict or non-suit, shall
be entitled to mark judgment and to issue execution in fourteen days after the trial,
unless the Judge or the Court shall order execution to issue at an earlier or later
period, with or without terms; provided, that notwithstanding any judgment signed or
recorded, or execution issued, it shall be lawful for the Court or Judge to order such
judgment to be vacated, and execution to be stayed or set aside, and to enter an arrest of judgment, or grant a new trial, or new writ of inquiry, as justice may appear
to require, and thereupon the party affected by such execution, shall be restored to
all he may have lost thereby.
Rule 72nd. It shall not be necessary before issuing execution upon any judgment,
to enter the proceedings upon any Roll; but on producing and lodging with the proper
officer, a certificate of the name, description, and address of the parties, an entry shall
be made in the judgment book, signed by the Registrar, shortly stating the nature
of the judgment, and thereupon the costs shall be taxed, and execution issued, and
such entry in the said judgment book shall contain a reference to the number of the
roll on which such judgment shall be enrolled, and shall contain a column in which
any satisfaction of the said judgment may be afterwards entered, if necessary.
Rule 73rd. When any execution is demanded, the party demanding the same
shall lodge with the Registrar, or officer required to issue such writ, a certificate
signed by the party, or his Solicitor, containing such sum as the party demands to
be in good couscience due to him, after all just and equitable deductions, which certificate shall be filed in the office, and the sum mentioned therein entered in the book
wherein executions are entered j and also, in the body of the said execution that shall
issue as the sum to be levied on foot of the sum adjudged by the judgment or order
ot the Court; and if tho party at whose suit such execution issues, shall appear wilfully, [13]
fraudulently, and maliciously, to have overcharged the party against whom such execution issues in such case, he shall forfeit to the party grieved treble damages.
Rule 74th. In every case of execution, the party entitled to execution may levy
the poundage fees and expenses of the execution, by law payable over and above the
sum recovered.
Rule 75th. Under a Writ of Execution, the Sheriff may seize and take any money,
bank notes, or specialties belonging to the person against whom such writ shall be sued
out, and if not sufficient to satisfy the judgment, then on the goods and chattels of the
said party ; and if the said goods and chattels shall not be sufficient to supply the judgment, then on the lands, hereditaments, or real property of the party, wherever they may
be within the jurisdiction of the Court; and if not sufficient to satisfy the judgment, then
the person of the party against whom the execution is issued, may be taken in satisfaction, if the debt or damages amount to not less than £20, exclusive of costs.
Rule 76th. A plaintiff or defendant arrested under any Writ of Execution, shall be
entitled to his discharge from such arrest, on payment or tender to the opposite party, or
his Solicitor in the cause, or to the Sheriff or Jailor in whose custody such person may
be under such writ, of the amount directed to be levied by such writ.
Rule 77til A Writ of Execution, if unexecuted, shall not remain in force for more
than one year from the date of such writ; but such writ may at any time before its
expiration be renewed by the party issuing it, for one year from the date of such renewal,
and so on from time to time, by being marked with the seal of the Court, and with a
memorandum signed or initialed by the proper officer, of the date of the day, month, and
year of such renewal; and a Writ of Execution so renewed, shall have effect and be
entitled to the same priority as the original writ would have had; provided, however, that
no writ shall be renewed without the special leave of the Court or Judge.
Rule 78th. It shall be lawful for the Court or Judge to order a memorandum of
satisfaction to be entered upon the Record of any Judgment, Judgment Roll, or Judgment Book, if it shall clearly appear to the said Court or Judge that the debt or damages
for which the said Judgment was obtained, have been fully satisfied and discharged.
Rule 79th. The death of a plaintiff or defendant shall not cause the action to
abate, but it may be continued as hereinafter mentioned.
Rule 80th. In case there be two or more plaintiffs or defendants, and one or more
of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs,
or against the surviving defendant or defendants, such death being suggested upon the
record, the action shall proceed at the suit of the surviving plaintiff or plalintiffs against
the surviving defendant or defendants.
Rule 8 1st. In case of the death of a sole plaintiff, or sole surviving plaintiff, the
Executor or Administrator of such plaintiff may, by leave of the Court or Judge, enter
a suggestion of the death, and that he is such Executor or Administrator, and the action
shall thereupon proceed; and if such suggestion be made before the trial, the truth of
the suggestion shall be tried thereat together with the title of the deceased plariitin^ and
such judgment shall follow upon the verdict in favor of or against the person making
such suggestion, as if he were originally the plaintiff.
Rule 82nd. In case of the death of a sole defendant, or sole surviving defendant,
where the action survives, the plaintiff may file a suggestion of the death, and that a
person named therein is the Executor or Administrator of the deceased, and may thereupon
serve such Executor or Administrator with a copy of the Writ of Summons and suggestion,
and with a notice signed by the plaintiff or his Solicitor, requiring such Executor or
Administrator to file a defence within twelve days after service of the notice, and that in
■a* ;»
[14]
default of his so doing, the plaintiff may sign judgment against him as such Executor or
Administrator; and the same proceeding may be had and taken thereon, after such notice,
as upon a writ against such Executor or Administrator in respect of the cause for which
the action was brought; and in case the plaintiff shall have issued his Writ of Summons,
but the defendant shall not have pleaded before the death, the new defendant shall plead
at the same time to the Writ of Summons and suggestion; and in case the defendant
shall have pleaded before the death, the new defendant shall be at liberty to plead to the
suggestion only by way of denial, or such plea as may be appropriate to, and rendered
necessary by his character of Executor or Administrator, unless, by leave of the Court or
Judge he should be permitted to plead fresh matter in answer to the Writ of Summons;
and in case the plaintiff shall recover, he shall be entitled to the like judgment in respect
of the debt or damages so ought to be recovered, and in respect to the costs prior to the
suggestion; and he shall be entitled in respect of the costs of the suggestion, and subse-
• •     •
quent thereto, to the same judgment as in an action originally commenced against the
Executor or Administrator.
Rule 83rd. The death of either party between the verdict or non-suit and the
judgment shall not be alleged for error, so as such judgment be entered within two
sessions after such verdict or non-suit.
Rule 84th. The marriage of a female plaintiff or defendant shall not cause the
action to abate, but the action may, notwithstanding, be proceeded with to judgment; and
such judgment may be executed against the wife alone, or b}' suggestion, judgment may
be obtained against the husband and wife, and execution issued thereon; and in case of
a iudgment for the wife, recovered before or after her marriage in an action commenced
by her when sole, upon which she would be entitled to execution if she had continued,
sole execution may be issued thereupon by the authority of the husband, without any
suggestion; and if in any such action, the wife shall sue or defend by Attorney appointed
by her when sole, such Attorney shall have authority to continue the action or defence,
unless such authority shall be countermanded by the husband.
Rule 85th. When any party shall claim possession of any lands, tenements, or
hereditaments, and shall be desirous of proceeding by ejectment for the recovery of the
same in the said Supreme Court, such party shall commence an action for such purpose
by a Writ of Summons, which writ shall be directed to the immediate tenant or party in
possession as defendant, with the addition of the words, " and all persons concerned," and
shall in addition to any particulars hereinbefore required, contain a description of the
property so to be recovered with reasonable certainty, and the County, or Parish, or
District in which the same is situated ; provided, however, that no want of " reasonable
certainty " in the description of the property in the Writ of Summons, or copy, shall
nullify them, but shall be ground for an application to the Court or Judge for better
particulars of the land claimed, which the Court or Judge shall have power to give in
all cases, upon the application of any person named as a defendant or interested in the
lands claimed, or supposed to be claimed.
Rule 86th. The Writ of Summons in ejectment shall state the names of all the
persons in whom the title is alleged to be, and command the persons to whom it is
directed to appear within sixteen days after the service thereof, at the office of the
Registrar, to defend the possession of the property sued for, or such part thereof as they
may think fit, and the writ shall be dated and endorsed and continue in force, and be
renewed, and shall be filed after service thereof in like manner as hereinbefore directed
with reference to the Writ of Summons in a personal action; and in cases of ejectment
on the title, it shall be lawful for the plaintiff by such writ to claim damages for the loss
of the mesne rates and profits of the lands so to be recovered; and in case of ejectment mmm
—~~—
[15]
for nonpayment of rent, such writ shall be endorsed with the full particulars of the rent
due, and of all credits to which the defendant shall be justly entitled, and may be in
the form No. 12 in the schedule hereunto annexed, or to the like effect.
Rule 87th. The venue shall be laid in the county or district in which the lands
are situate, but the Court or Judge may on the application of either party, order that
the trial shall take place in any county or district other than that, in which the venue is
laid, and such order being suggested on the abstract, the trial may be had accordingly.
Rule 88th. The writ shall be served by delivering a copy of it to the tenant
or party in possession, or his wife, or servant, or other person on the premises, or in
such manner as the Court or Judge shall order, and in case of vacant possession, by
posting a copy thereof upon the door of the dwelling house or other conspicuous part
of the premises.
Rule 89th. Every defence to a summons in ejectment on the title, shall be in
the form No. 13 as in the schedule hereunto annexed, or to the like effect; and every
defence to an ejectment for non-payment of rent, shall set forth the substantial ground
of the defence: as for example, whether the title of the plaintiff as landlord is disputed,
or the fact of the rent being due, if in dispute, and such defence shall be endorsed, with
the particulars of any payments made, and may be according to the form No. 14 in the
said schedule.
Rule 90th. Any person taking defence as aforesaid to an ejectment on the title,
shall be at liberty to limit his defence to a part only of the property mentioned in the
writ, describing that part, with reasonable certainty, otherwise the defence shall be deemed
to apply to the whole; but a defence to an ejectment for non-payment of rent shall
be a defence for all the lands and premises in the summons mentioned, and in case a
defendant shall desire to take defence for part only of the premises, upon the ground
that such part was not included in the lease or other instrument so ought to be evicted, he
shall make a special application to the Court for that purpose.
Rule 91st. Any other person not named in, or served with such writ, shall by
leave of the Court or Judge, be allowed to defend, on filing an affidavit shewing that
he is in possession of the land, either by himself or his tenant; and the Court or
Judge shall have power to strike out, or confine any defence, set up by a person not
in possession by himself or his tenants.
Rule 92nd. In case no defence be filed within the time appointed, or if the
defence filed be limited to part only, the plaintiff shall, on filing an affidavit of service
of the Writ of Summons, be at liberty to sign judgment that the plaintiff shall recover
"possession of the land, or of the part thereof to which the defence does not apply, and
such judgment, if for all, may be in the form No. 15 in the schedule hereunto annexed,
or to the like effect, without any award of costs, but without prejudice to the plaintiff's
right to have the costs taxed by the' proper officer, and to proceed by action for the
recovery of mesne rates and costs, or either of them, and the said judgment for part
may be in the form No. 16 in the said schedule, or to the like effect; and a memorandum of such judgment shall be recited in the abstract for judgment thereafter to
be made up.
Rule 93rd. In case a defence shall be filed, an abstract of the issue for trial
may at once be made up by the plaintiff, or his Solicitor, setting forth the writ, and
stating the fact of the defence, with its date, and the names of each of the persons taking
defence, so that it may appear for what defence is made; and such abstract may be in
the form No. 17 contained in the schedule hereunto annexed, or to the like effect; and
such abstract shall be lodged with the Registrar; and the question at the trial shall
be, whether  the statement of the   ttile   of the  plaintiffs in  the  Writ  of Summons
: 1 [16]
is true or false, and if true, then which of the plaintiffs is entitled, and whether
to the whole or part; and if to part, then to which part of the property in question, and
whether to any, and if any, to what damages by way of compensation for loss of mesne
rates and profits; and upon the trial of any issue in an ejectment for non-payment
of rent, the amount of the rent due to the plaintiff shall be found by the jury.
Rule 94th. The proof of the title in any one or more of several plaintiffs in
ejectment, shall be sufficient to entitle a verdict to be entered for such plaintiff or
plaintiffs; and it shall not be necessary to produce or prove upon any trial of an
ejectment the affidavit of service of the Writ of Summons.
Rule 95th. If the defendant appears, and the plaintiff does not appear at the
trial, the plaintiff shall be non-suited ; and if the plaintiff appears and the defendant does
not appear, the plaintiff shall be entitled to a verdict wiihout any proof of his title; and
in case of ejectment on the title, shall be entitled to prove the amount of damages
sustained by reason of the loss of the mesne rates and profits; and in case of an eject
ment for non-payment of rent, shall be entitled to prove the amount of rent actually due,
and to have a verdict for the same.
Rule 96th. Upon a verdict for the plaintiff, judgment may be signed, and execution issued for the recovery of possession of the property, or such part thereof as the
jury shall find the plaintiff entitled to; and in case of an ejectment on the title, for such
damages for loss of mesne rates and profits, as shall be found by the said jury; and in
case of ejectment for non-payment of rent, for recovery of so much rent as shall be^ound
to be due, and costs, within fourteen days after such verdict, unless the Court or Judge
shall order execution in a shorter time.
Rule 97th. Upon a verdict for the defendants, or any of them, or upon a nonsuit, judgment may be signed, and execution issued for costs against the plaintiffs named
in the writ within fourteen days after verdict or non-suit, or sooner if the Court or Judge
shall so order.
Rule 98th. Upon any judgment in ejectment, there may be either one or several
writs of execution for the recovery of the possession, and for the damages or the rent
ascertained to be due, and costs at the election of the plaintiff
Rule 99th. The death of a plaintiff or defendant in ejectment, shall not cause
the action to abate, but the suit may be continued to judgment and execution by the
Executors and Administrators of the parties in the same manner as is hereinbefore provided
in the case of the death of a plaintiff or defendant in a personal action.
Rule 100th. Where any party whose goods and chattels have been taken or-
distrained, shall dispute the validity of such taking or distress, and shall be desirous of
proceeding for the recovery of such goods and chattels in the said Supreme Court, such
party may commence a personal action for the recovery of the goods and chattels so
taken or distrained, by a Writ of Summons, which Writ of Summons shall, in addition to
any particulars hereinbefore required in an ordinary Writ of Summons, state the particulars of the property taken or distrained, and the place where such taking, seizure or
distress shall have been made, and shall be served by delivering a copy or copies thereof te
the defendant or defendants, or to any agent or other person acting for him, or them in
making such seizure or distress, or in keeping the goods and chattels so taken or distrained, in the manner hereinbefore provided in respect of an ordinary Writ of Summons
Rule 101st. When any such personal action shall have been so commenced, it shall
be lawful for the plaintiff therein, to sue out of the Court a Writ, to be called a Writ
of Replevin, m the form No. 18 in the schedule hereunto annexed, directed to the Sheriff,
requiring him to replevy the said goods and chattels; and the said Sheriff shall, and is
hereby required, upon good security, (by the bond of the  plaintiff and two responsible [17]
persons as sureties, conditioned as usual in such cases,) being given to him in double the
amount of the value of the property taken or distrained, to execute such writ, and to
return the said writ with a correct and proper statement endorsed thereon, of the
manner in which the same shall have been executed, or the cause why the same has not
been executed, to the Court within eight days, exclusive of holidays, next after such writ
shall have been delivered to him; provided always, that the value of the property so
taken or distrained, shall be ascertained by the said Sheriff, and that the said bonds shall
be assignable by the Sheriff under like circumstances and in like manner, and shall be
available to the assignee thereof, as by law now or hereafter authorized in respect of
replevin bonds.
Rule 102nd. If the plaintiff in any such action for replevin of a distress made
for rent, shall be nonprossed for not filing his Writ of Summons as aforesaid, it shall be
lawful for the defendant to file a suggestion in the nature of a plaint for rent, and praying'
the Court to enquire the cause of the distress, and thereupon, or in case judgment be
given for the defendant on demurrer, it shall be lawful for the Court to issue a Writ of
Inquiry to the Sheriff, or to the Registrar of the Court, to inquire touching the amount
of rent in arrear at the time of such distress being taken, and the value of the goods
or chattels distrained ; and such inquiry shall be taken in the manner hereinbefore provided upon judgment by default; and upon the return of such inquisition, the defendant
shall have judgment and execution to recover against the plaintiff the arrears of rent, in
case the goods and chattels shall amount to the value, and in case they shall not amount
to that value, then for so much as the value of the said goods and chattels shall amount
to, with his costs of suit in that behalf incurred; and in case the said plaintiff shall be
non-suited after issue joined, or if the verdict shall be given against the plaintiff, then
the jurors empanneled to try such issue shall, at the prayer of the defendant, inquire of
the amount of the rent due, and the value of the goods and chattels distrained, and the
defendant shall have judgment and execution for such arrears, or so much thereof as the
value of the goods and chattels distrained shall amount unto, together with his costs of
suit in that behalf incurred.
Rule 103rd. If any party against whom a verdict shall have been found, shall
desire to obtain a new trial, he shall move the Court accordingly within six days from
the date of the verdict.
Rule 104th. In every rule Nisi for a new trial, or to enter a verdict or non-suit,
the grounds upon which such rule shall have been granted, shall be shortly stated therein.
Rule 105th. When a new trial is granted on.the ground that the verdict was
against evidence, the costs of the first trial shall abide the event, unless the Court shall
otherwise order.
Rule 106th. Upon motions founded upon affidavits, either party may with leave
of the Court or Judge, make affidavits in answer to the affidavits of the opposite party,
upon any new matter arising out of such affidavit, subject to all such rules as shall
hereafter be made respecting such affidavits.
Rule 107th. Upon the hearing of any motion or summons, the Court or Judge
may at their or his discretion, and upon such terms as they or he shall think-~-reasonable
from time to time order such documents as they or he may think fit to be produced, and
such witnesses as they or he may think necessary to appear and be examined viva voce,
either before the Court or Judge or before the Registrar, and upon hearing such evidence
or reading the report of the Registrar, make such rule or order as may be just.
Rule 108th. If any person called as a witness, or required or desiring to make
an affidavit or deposition, shall refuse or be unwilling from alleged conscientious motives
to be sworn, it shall be lawful for the Court or Judge, or other presiding officer or person 1
[18]
qualified to take affidavits or depositions, upon being satisfied of the sincerity of such
b'ection to permit such person instead of being sworn to make his or her solemn
affirmation or declaration in the words following, viz : "I, A. B., do solemnly, sincerely,
and truly affirm and declare, that the taking of any oath is, according to my religious
belief unlawful; and I do also solemnly, sincerely, and truly affirm and declare," &c.
Which solemn affirmation and declaration shall be of the same force and effect as if such
person had taken an oath in the usual form.
Rule 109th. If any person making such solemn affirmation or declaration, shall
wilfully falsely, and corruptly affirm and declare any matter or thing which, if the same
had been sworn in the usual form, would have amounted to wilful and corrupt perjury,
every such person so offending shall incur the same penalties as by the laws and statutes
of the Kingdom are, or may be enacted or provided against persons convicted of wilful
or corrupt perjury.
Rule 110th. Every cause that shall be tried at any sessions of the Supreme
Court shall be entered by the plaintiff or his Solicitor in a list to be kept for that
nurpose by the Registrar; such entry shall be made at least three clear days before the
first day of the sessions, and if the plaintiff shall fail to make such entry, such default shall
be deemed equivalent to a countermand of notice of trial.
Rule 111th. Upon the trial of any cause, the addresses to the jury shall be regulated as fellows: The plaintiff or his counsel shall begin, and briefly state the facts
which he means to prove without comment thereon, and shall then proceed to the proof
thereof- likewise the defendant or his counsel shall, if he mean to call any witnesses,
state briefly the facts which he means to prove, without comment thereon, and shall then
proceed to the proof thereof; when the whole of the defence is closed, the plaintiff or
his counsel shall observe generally upon the case, and after him in like manner the
defendant or his counsel. The Judge shall then sum up the evidence to the jury. The
term plaintiff in this Rule shall mean the party on whom the proof of the affirmative
side of the issue shall lay; and the term defendant shall mean the party on whom lies
the proof the negative.
Rule 112th. All applications for relief in Equity, may be made at any time to
the Court or Judge, by filing a Bill or Petition supported by the proper affidavits with
the Registrar of Court, stating the cause of complaint, and praying the interposition of
the Court or Judge.
Rule 113th.    No motion other than a motion for an Injunction or for a Writ of
Arrest, shall be heard by the Court or Judge, unless notice thereof shall have been given
to the opposite party two clear days before  the day appointed for the hearing thereof
as aforesaid, nor shall any affidavit be read in support thereof, unless the same shall have
been filed in the office of the Registrar at least two clear days before the day so appointed.
Rule 114th. Any defendant or other person against whom an Injunction shall be
granted, may move the Court to dissolve the same upon affidavit; notice of such motion
shall be given to the opposite party two clear days at least before the day appointed
for the hearing thereof.
Rule 115th. Where an affidavit filed in support of, or in opposition to any motion,
shall contain irrevelant matter, or matter not being legal evidence, it shall be competent
for the Court or Judge, upon application made at the close of the argument upon such
motion to direct the costs of such affidavit to be paid by the party filing the same, whatever may be the result of the motion.
Rule 116th. Affidavits may be sworn before the Judge of the Court, the Registrar, or any Solicitor of the Court not employed in the suit; no affidavit shall be read
unless it is so sworn, or before some other person authorized by the Court to take affidavits-
.-£^: L19]
Rule 117th. When a fine shall be imposed upon any person for making default
in the discharge of his duty as a juror or witness, at any sitting of the Court, or when
any recognizance shall become forfeited, or a fine imposed on any person for any other
matter or thing, the Registrar shall on the direction of the Judge, issue a Writ of
Summons m the form No. 19 in the schedule hereunto annexed, requiring the person on
whom the fine shall be imposed, or whose recognizance shall become forfeited, to shew
cause why the same should not be levied; the summons shall be personally served six
days before the day fixed for shewing cause.
Rule 118th. In such case, cause must be shewn on affidavit filed one clear day
at least before the day fixed for shewing cause; if sufficient cause be not shewn, the
Judge shall direct the Registrar forthwith to issue a writ in the form No. 20 in the
schedule hereunto annexed to the Sheriff, to enforce payment of such fine or recognizance,
or of such part thereof as to the Judge may seem meet.
Rule 119th. Any party, plaintiff or defendant, feeling dissatisfied or agrieved with
any final judgment, decree, order, or sentence- of the said Supreme Court, in respect
of any sum or matter at issue above the amount or value of £300 sterling, or in case
such judgment, decree, or sentence shall involve directly or indirectly any claim, demand
or question to, or respecting property, in any civil right, amounting to, or of the value
of £300 sterling, such party, plaintiff or defendant, may, if they shall so think fit, appeal
therefrom, to Her Majesty, Her Heirs and Successors, in Her or Their Privy Council, by
petitioning the said Court for leave to appeal therefrom, within twenty-one days next
after the said judgment, decree, order or sentence shall have been pronounced.
Rule 120th. If such leave to appeal be prayed by the party or parties who is
or are directed to pay any such sum, or perform any duty, the Court may direct that
the judgment, decree, order or sentence appealed from, shall be carried into execution,
or that the execution thereof shall be suspended pending the said^appeal, as to the
Court may appear to be most consistent with real and substantial justice; and in case
the Court shall direct such judgment, decree, order or sentence to be carried into execution, the party or parties in whose favor the same shall be given, shall, before the
execution thereof, enter iuto good and sufficient security, to be approved by the Court,
for the performance of such Judgment or Order as Her Majesty, Her Heirs and Successors shall think fit to make thereupon.
Rule 121st. In all cases, the party or parties appellant shall also give security
in a bond or mortgage, or personal recognizance, not exceeding the value of £500
sterling for the prosecution of the appeal, and for the payment of all such costs as
may be awarded by Her Majesty, Her Heirs and Successors, or by the Judicial Committee of Her Majesty's Privy Council, to the party or parties respondenjt.
Rule 122nd. In all such cases, the party or parties, appellant must, within twenty-
eight days from the date of the petition for leave to appeal, complete the security
for such costs as may be awarded, and the party or parties appellant shall then, and
not otherwise, be at liberty to prefer and prosecute his, her, or their appeal to Her
Majesty, Her Heirs and Successors, in Her or their Privy Council, in such manner and
under such rules as are, or may be observed in appeals made to Her MajestyHfrom
Her Majesty's Colonies and Plantations abroad.
Rule 123rd. Any party, plaintiff or defendant, who considers himself agrieved by
any preliminary or interlocutory judgment, order, or sentence of the said Supreme
Court, may, if he shall so think fit, petition the Court to grant permission to such party
to appeal against the same to Her Majesty, Her Heirs' and Successors in Her or Their
Privy Council, subject to the same rules, regulations and limitations as are hereinbefore
expressed, respecting appeals from final judgments, decrees, orders or sentences. sr
I [20]
Rule 124th. In all cases of appeal made from any judgment, order, sentence or
decree of the said Supreme Court, to Her Majesty, Her Heirs, or Successors in Her or
Their Privy Council, the Court shall certify and transmit to Her Majesty, Her Heirs
and Successors, in Her or Their Privy Council, a true and exact copy of all evidence,
proceedings, judgments, decrees and orders, had or made in such cases, so far as the
same shall have relation to the matter of appeal; such copies to be certified under the
seal of the Court; and the Court shall also certify and transmit to Her Majesty, Her
Heirs and Successors, in Her or Their Privy Council, a copy of the reasons given by
the Judge of the Court, for or against, the judgment, decree, order or sentence appealed
against.
Rule 125th. The said Supreme Court shall, in all cases of appeal to Her Majesty,
Her Heirs and Successors, conform to and execute, or cause to be executed, such judgments and orders as Her Majesty, Her Heirs and Successors, in Her or Their Privy
Council shall think fit to make in the premises, in such manner as any original judgment decree, or decretal order, or other order, or rule of the said Court shall or might
have been executed.
Rule 126th. Every person who shall be named in any Will as Executor thereof,
and who shall apply for Probate thereof, shall file in the office of the Registrar, the Will
of. the deceased, and an affidavit in the form No. 21 in the schedule hereunto annexed,
made by some person acquainted with the testator, and his residence at the time of his
decease, and shall also make and file an affidavit in the form No. 22 in the said schedule;
Probate shall thereupon be granted in the form No. 23 in the said schedule, with a copy
of the Will annexed, unless a Caveat shall have been previously entered.
Rule 127th. If none of the Executors named in the Will shall apply for Probate
within one calendar month after the death of the testator, and if the residuary legatee^
widow, widower, or next of kin of such testator, shall apply for Administration within
two calendar months from the death of the said testator, and if the parties so applying^
shall file as aforesaid an affidavit in the form No. 21 in the schedule hereunto annexed,
and make and file as aforesaid an affidavit in the form No. 24 in the said schedule; the
party so applying shall thereupon be entitled to Letters of Administration, with the Will
annexed, in the form No. 25 of the said schedule, unless a Caveat shall have been previously entered.
Rule 128th. If there be no Will, or if there be a Will, but no Executor be named
therein, and if the residuary legatee, widow, widower, or next of kin of such testator or
intestate, shall apply for administration within two calendar months from the death of
the said testator or intestate, and if the parties so applying shall file as aforesaid an
affidavit in the form No. 21 of the schedule hereunto annexed, and shall make and file as
aforesaid, an affidavit in the form No. 24 or No. 26, the party so applying shall be entitled
to Letters of Administration, with the Will annexed, as in the form No. 25 in the said
schedule; or to Letters of Administration in the form No. 27, as the case may require
unless a Caveat shall have been previously entered.
Rule 129th. All Caveats against applications for Probates of Wills, or Letters
of Administration, shall be filed in the office of the Registrar; if the same shall be filed
by a Solicitor, the Solicitor shall annex to the Caveat his warrant for filing the same; the
party applying for Probate or Administration, shall be entitled to a summons upon the
party on whose behalf the Caveat is filed, calling upon him to appear before the Judge of
the Supreme Court on a certain day, and shew cause why the application for Probate or
Administration, as the case may-be, should not be granted; if the party so summoned
shall fail to appear accordingly, the Caveat shall be deemed to be abandoned, and the
party so applying for Probate or Administration, shall be entitled to the same as if no
Caveat had been filed. [21]
Rule 130th. Every person to whom Letters of Administration shall be committed
as a residuary legatee, widow, widower, or next of kin, shall, before obtaining the same,
give security by bond in the form No. 29 in the schedule hereunto annexed, to the Registrar, with two sureties to the satisfaction of such Registrar, who may require such
sureties to justify if he shall think fit; the penalty in such bond shall be twice the
amount of property to be administered, as sworn to by the party applying for Administration ; nevertheless, it shall be lawful for the Judge of the Court, upon application to
him, to moderate such sum in the following cases:
1st. Where the party taking the Administration is solely entitled to the property
to be administered, or where all other persons entitled in distribution shall consent
thereto in writing, such penalty may be limited to twice the amount of the debts of
the intestate.
2nd. Where some person so entitled shall consent, and others shall either dissent
or be legally incapable of consenting, such penalty may be limited to twice the amount
of the debts of the intestate, together with twice the amount of the shares of the person
so dissenting or legally incapable of consenting, the Registrar may allow the Administrator to give security by any number of sureties, so that there be two bound for each
portion of the amount.
Rule 131st. If no person shall apply for Administration of the estate and effects of
any person deceased, within two calendar months after such decease, or if every such
application shall have been opposed, and the opposition thereto shall have been considered
well founded, it shall be the duty of the Registrar to obtain and file an affidavit in the
form No. 30 in the schedule hereunto annexed, from some person acquainted with the
facts therein set forth; and also to make and file an affidavit in the form No. 31 in the
said schedule, whereupon Letters of Administration shall be granted to such Registrar
by the Judge of the Court; such grant of Administration to the Registrar shall not be
revoked or defeated, save only upon the production of a Will by an Executor therein
named.
Rule 132nd. Every Registrar who shall not, upon his appointment to his office,
have given general security for the true and faithful Administration of all Estates which
shall be committed to his charge, shall, before Letters of Administration be granted to
him in any particular case, enter into bond with sufficient sureties to the satisfaction of
the Judge of the Court, as is hereinbefore provided with respect to ordinary Administrators ; such bonds will be made to the Attorney General for the time being of the
Colony, or other officer authorized by the said Court in that behalf, and shall be assigned
by him to any person who may be authorized by order of the Court to sue thereon.
Rule 133rd. If any person deceased shall have left behind him property of a
perishable nature, and whereof the value may be greatly diminished in the interval before
Letters of Administration can be duly granted, the Judge of the Court may, upon application to him for that purpose, make an order authorizing the sale of such property by
some person therein named, and may direct the proceeds to be paid to the Registrar
on account of the estate of the deceased.
Rule 134th. Every Executor or Administrator shall, within three months from
the time of proving the Will, or from the grant of Letters of Administration, file in the
office of the Registrar of the Supreme Court, an inventory of the estate and effects of
the deceased; every inventory so filed, shall be verified by affidavit; if the inventory
be filed by the Registrar, the affidavit shall be made before the Judge of the Court, or a
Commissioner appointed by the Court to take affidavits, if filed by any other person, then
before the Registrar, or the said Commississoner, or any Justice of the Peace of the
district in which such person shall reside.
i=— [22]
Rule 135th. In all cases of official administration, the Registrar shall cause public
notice to be made in the district where the deceased was domiciled, or resident, at the
time of his death, and also in Victoria, for a space of one month at least, requiring-
the creditors of the deceased to come in and prove their debts before such Registrar,
giving notice that in default of their so doing within a time to be therein specified, they
will be absolutely excluded from any benefit to arise from the estate and effects of the
deceased.
Rule 136th. So soon as the estate and effects shall be wholly goturn^ and''con4'
verted into, money, the Registrar shall, in the first place, retain thereOut all costs and
charges which he shall have reasonably incurred, or which he sbalThave become--entitled
to in respect of such estate and effects, such costs and charges being 'first examined and -
allowed by the Judge of the Court; and in the next place, he shall proceed to pay the
debts proved before him in the lawful course of his administration, and the residue, if
any, he shall cause to be paid to the Treasurer of the Colony, who shall place the-same
to an account to be called—" The Registrar's Administratiori Account':" " The Estate of
A. B.;" there to remain until the said residue is claimed by the heirs of the deceased.
No money so paid to the Colonial Treasurer shall be paid out by him without the
authority of an order of the Court or Judge, and the Registrar shall publicly notify to
the heirs, and next of kin of the deceased, to come in and prove their claim or right to
the said residue before the said Court.
Rule 137th. Every Executor or Administrator shall, within twelve Calendar months
after the decease of the testator, file in the office of the Registrar a full and distinct
account in writing of his administration of the estate, which shall set forth the dates and particulars of all receipts and disbursements, which account shall be verified by affidavit; if
such account shall not then be exhibited, the Judge may fix a further time, at the
expiration whereof, if the Executor or Administrator shall fail to pass his accoimts, he
shall be chargeable with interest at the rate of six per cent, per' annum for the balance,
if any, remaining in his hands, unless he can shew good and sufficient cause to the contrary.
Rule 138th. Every account rendered by the Registrar as"'Official Administrator
shall be notified in some public place in Victoria,'as being open to* inspection in his office
for the benefit of all interested therein, during the s$ace of one calendar month from the
date of such notice.
Rule 139th. It shall be lawfnl for the Court to allow to the Registrar acting- as
Official Administrator, such commission or per centage out of such estate as shall be a
reasonable compensation for his. pains and trouble ; such per centage sliall in no ease
exceed seven pounds ten shillings per cent., and not less than two pounds ten shillittgs
per cent., as the Court in their discretion may allow, according to the nattfre and amount
of the property realized.
Rule 140th. The following days, and none other, shall be observed and Sept as
Holidays in the said Court and in the office of the Registrar, that is to say, every
Sunday, Christmas-day, and the seven days following that day, Good Friday, Easter Eve,
Monday and Tuesday in Easter week, Whit-Monday and Whit-Tuesday, and aSty "day
appointed for a Public Fast or Thanksgiving, the day appointed to be kept as the Birthday, and the Day of the Accession of Her Majesty the Queen, or any of Her Successors;
and the said Holidays shall not be reckoned or included in any notices or othe'r .proceedings in the said Court, except notices of Trial and notices of Inquiry; and Sunday shall
not be reckoned or included in any notice or proceeding whatsoever; 'and where the last
day included in any such notice of Trial or notice of Inquiry, shall happen to fall on any
of the days hereby appointed to be observed and kept as Holidays, in such case the
following day, or when there shall be consecutive Holidays, the day following1 the last of [23]
such Holidays shall be considered as the last of such days?and the days from and including
the 24th day of July to the 13th day of October, inclusive, in each year, shall not be
reckoned days within which any Writ of Summons, defence or other pleading shall be
filed, nor shall any such pleading be filed or received upon such days, except a plea of
confession or consent for judgment.
Rule 141st. The several fees mentioned and set forth in the schedule hereunto
annexed, shall be the fees chargeable against any party plaintiff or defendant in respect
of the specified items of proceedings to which the same shall be applicable, until the
same shall be altered or amended by any general rule to be hereinafter made by the
Court under the power hereinbefore given. A table of such fees shall be put up in some
conspicuous place in the Court House, and in the Registrar's office ; and the fees in every
proceeding shall be paid in the first instance by the plaintiff or party on whose behalf
such proceeding is to be had, on or before such proceeding, and in default, payment
thereof shall be enforced and recovered by order of the Judge, in the same manner as
any debt or damage ordered to be paid by the Court; and the Registrar will collect from
the suitors and receive for the Judge's use, the fees payable to him.
Rule 142nd. All costs between party and party, shall be taxed by the Registrar
of the Court, according the schedule hereunto annexed.
Rule 143rd. The Registrar shall keep a book, to be called the Minute Book,
and shall daily enter therein all the proceedings of the Court, or before the Judge in
vacation, The Judge shall, as soon as conveniently may be, examine and sign the entries
in such book relating to the business transacted on the previous days.
Rule 144th. In all matters of practice not hereinbefore provided for, the practice
of Her Majesty's Superior Courts at Westminster shall be followed, so far as the same
shall be applicable and consistent with the circumstances of the Colony.
DAVID CAMERON, C. J. . t I
NO. 1. —DECLARATION.
I, A. B., of , do solemnly and sincerely declare, that I am a Barrister
at Law, (or Advocate,) duly authorized to practice in the Superior Courts of England,
(Ireland or Scotland,) and that I was  called to  the Bar by the Honorable Society of
(or admitted, &c.,) on the day of
and that I am the person named in the Certificate now produced.
Made and declared at the day of
before me A. B.
NO.   2.—DECLARATION
I, A. B., of , do solemnly and sincerely declare that I am an
Attorney of Her Majesty's Court of at Westminster, (or Writer
or Proctor,.&c, as the case may be,) and that I was duly admitted an Attorney of the
said Court at Westminster (or Writer, &c.f) on the day of
and that I am the person named in the Certificate.
A. B.
Made and declared at the day
of before me
NO.   3. —WRIT   OF   SUMMONS.
Victoria, by the Grace of God, of  the   United  Kingdom  of   Great Britain and
Ireland; Queen, Defender of the Faith :    To C. D., of in
the district of
Greeting :-
We command you—That within sixteen days after the service of this writ on you,
inclusive of the day of such service, you do make, or cause an appearance to be entered for If
[26]
you in our Supreme Court of Civil Justice, in an action at the suit of A. B., the particulars of which are endorsed hereon; and take notice that in default of your so doing, the
said A. B. may proceed therein to judgment and execution.
, Esquire, Chief Justice at Victoria, the day of
in the year of our Lord one thousand eight hundred and
MEMORANDUM TO BE SUBSCRIBED ON THE WRIT.
Witness,
jsi j3 "phis Writ is to be served within six calendar months from the date thereof,
or if renewed, from the date of such renewal, including the day of such date, and not
afterwards.
ENDORSEMENT OF PARTICULARS.
Jan   1   1854 To amount of goods furnished as per account furnished 1st
December, 1853,       £200 0 0
Dec. 10, 1853.—By cash received on account,  60 0 0
Balance due plaintiff, .        .        •        •        •        . £14000
(Or as the case may be.)
Endorsement to be made on the writ before service thereof.
This Writ was issued by E. F., of
Solicitor for the said
plaintiff;  or this Writ was issued in person by A. B., who resides at, &c.
ENDORSEMENT TO BE MADE ON THE WRIT AFTER SERVICE THEREOF.
This Writ was served by X. T. on C. D., the defendant, or one of the defendants,
on Monday the day of 18
(Signed) X. Y.
NO. 4.—APPEARANCE AND DEFENCE.
In the Supreme Court of Civil Justice,
Monday, the 14th day of February, A. D. 1857.
"] The said Richard   Roe appears and takes
! defence to the action of the said  John   James,
John James,
Plaintiff.
Richard Roe, Executor of Henry Roe, f and says that the goods sold and  delivered to
Defendant. J Henry Roe, were of the value of £80, and no more
and that the said sum of £80 has been paid by the defendant to the plaintiff, and is
sufficient to satisfy the plaintiff's demand, and therefore he defends the action.
E. M., Solicitor for the Defendant,
Street, Victoria.
Endorsement of particulars of payment.
&ug. 1, 1851.—By cash paid plaintiff by the defendant,    .    .    .    .    .
I        By defendant's acceptance, dated at three months,- .    .
a     a
£45 0 0
35 0 0
£80 0 0 [27]
NO. 5.—DEMURRER TO A PLAINT OR DEFENCE.
John James,
In the Supreme Court of Civil Justice,
Thursday, the 11th day of February, A. D. 1857.
~\ The said Richard Roe, the defendant, appears
Plaintiff. I and says that the Writ of Summons does not dis-
Richard Roe, Executor of Henry Roe? j close any cause of action, good in substance, because
Defendant. J that no sufficient consideration for the alleged
promise of the defendant as Executor of the said Henry Roe is stated therein, to render
the said defendant liable to pay the debt of the said Henry Roe.
E. M., Solicitor.
NO. 6.—JUDGMENT BY DEFAULT FOR WANT OF DEFENCE.
In the Supreme Court of Civil Justice,
On Monday, the 9th day of March, A. D. 1857.
(Day of signing judgment.)
District of Victoria, j        John James, by William Thompson his Solicitor,
j sued out a Writ of Summons against Richard
Roe, claiming the sum of £140 for debt on account of a Bill of Exchange drawn by Henry
Jasper, dated the 15th day of October, 1853, and endorsed by the said Richard Roe,
And the said Richard Roe has not appeared to take defence, but the service of
such Writ, and the particulars thereof, have been duly verified ; therefore it is considered
that the said John James do recover against the said Richard Roe the sum of £140,
together with £ for costs.
I
Whereas John James, the plaintiff, has sued
Richard Roe, the defendant, and demanded the
sum of £150, as the price and value of 130 barrels
of wheat, sold and delivered to the defendant.
NO.   7.—ABSTRACT.
In the Supreme Court of Civil Justice,
Monday, the 20th day of March, A. D. 1857.
District of Victoria, 1
to wit:
John James,
Plaintiff
Richard Roe,
Defendant.
And the said Richard Roe has taken defence and admits the delivery of the wheat,
but has alleged that he paid the sum of £130 to the plaintiff before the commencement
of this action, and that such payment was a full satisfaction of the value of said wheat;
and that said Wheat was not sound and merchantable at the time of its delivery to the
defendant.
Therefore, let the Jury try-^-
1st.    Whether the said wheat was sound and merchantable at the time of its delivery.
2nd.    Whether the value of said wheat exceeded the sum of £130.
Robert Jones, Solicitor for Plaintiff.
Henry Green, Solicitor for Defendant. [28]
N0. 9.—BILL OF EXCEPTIONS.
In the Supreme Court of Civil Justice,
Monday, the 20th day of March, A. D. 1857.
John James, ] The Issues in Fact in the annexed Abstract,
Plaintiff. I having come to  be tried by a Jury on this day,
Richard Roe, \ the plaintiff produced and examined as a witness
Defendant. J one G. H., to prove the fact of (&c, &c); and
the said G. H. deposed that (&c, &c.,) which evidence the defendant objected
to as not being legal evidence of the Fact, and the plaintiff insisting to the contrary, the Judge, at the trial, admitted the evidence to be received accordingly, and
therefore, the defendant excepts, and prays that his exception shall be placed upon the
Record for the examination of the Court above.
(Signed^
L. M., Counsel for Defendant.
L. P., Judge.
NO. 12.—WRIT OF SUMMONS IN EJECTMENT.
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland,
and the Colonies thereunto belonging, Queen, Defender of the Faith:
To X. Y. Z., and all persons entitled to defend the possession of (describe the property with reasonable certainty) in the district of to the possession
whereof A. B. & C, some or one of them claim to be (or to have been on and since
the day of A. D. ) entitled, and to
eject all other persons therefrom : These are to will and command you, or such of you
as deny the alleged title, within sixteen days after service hereof, to appear in our Supreme
Court of Civil Justice to defend the said property, or such part thereof, as you may be
advised; in default whereof, judgment may be signed, and you turned out of possession.
Witness, &c.
NO. 13.—DEFENCE IN EJECTMENT ON THE TITLE.
In the Supreme Court of Civil Justice,
Thursday, the 20th day of April, A. D. 1856.
A. B., C. D. and E, F,
Plaintiffs.
G. H. and Others,
Defendants.
] George Hines, one of the defendants, appears
[ and takes defence for the said lands of Blackly acre, and says that the said plaintiffs are not
J entitled to the possession of them, and that the
said possession belongs to the said George Hines as of right, and therefore he defends
the action.
E. M., Solicitor for the said George Hines,
Government Street, Victoria. [29]
NO. 14.—DEFENCE IN EJECTMENT FOR NON-PAYMENT OF RENT.
In the Supreme Court of Civil Justice,
Saturday, the 22d day of April, A. D. 1856.
~] George Hines, one of the defendants  and
tenant to the lands of Blackacre, appears and
Y
A. B. a and D.,
Plaintiffs.
G. H. and Others, [ takes defence and says, that the rent of the said
Defendants. j premises is not in arrear, and that the defendant
paid the said rent and every part thereof to the said plaintiffs, before the commencement
of this action, and therefore he defends as aforesaid.
E. M., Solicitor for the said G. Hines,
No. 14 Government Street, Victoria.
ENDORSEMENT   OF   PARTICULARS   OF   PAYMENT.
1st June, 1854.—By cash paid by defendant, G, Hines, to plaintiff,
£140 0 0
NO. 15.—JUDGMENT BY DEFAULT IN EJECTMENT FOR ALL THE LANDS.
In the Supreme Court of Civil Justice,
The 26th day of April, A. D. 1856.
(Date of Writ.)
On the day and year above written, a Writ
of Summons issued forth, returnable into this
Court, in these words ; that is to say : (here copy
the writ); and no appearance and defence has
! been entered to the said writ; therefore, it is
J considered that the said (here insert the names
of the plaintiffs in the writ) do recover possession of the land in the said writ mentioned, with the appurtenances.
District of Victoria,
to wit:
a. m
Plaintiffs.
C. D.,
Defendants.
y
District of Victoria
NO. 16.—JUDGMENT BY DEFAULT IN EJECTMENT tfOR PART.
In the Supreme Court of Civil Justice,
The 26th day of April, A. D. 1856.
On the day and year above written, a Writ
of Summons  issued  forth, returnable  into  this
to wit: J Court in these words ; that is to say : (here copy
the writ); and C. D. has, on the first day of May, appeared by F. M. his Solicitor (or in person) to the said writ, and has defended for a part of the land in the writ mentioned;
that is to say : (here state the part); and no appearance or defence has been entered to the
said writ, except as to the said part; therefore, it is considered that the said A. B.
(the plaintiff) do recover possession of the land in the said writ mentioned, except the
said part, with the appurtenances, and that he have execution thereof forthwith ; and as
to the rest, let a jury come, &c. '
L3.0]
NO. 17.—ABSTRACT FOR NISI PRIUS.
In the Supreme Court of Civil Justice,
Monday, the 20th day of March, A. D. 1857.
"] Whereas, John James the plaintiff, has sued
j Richard Roe the Defendant, for the recovery of
I the possession of the lands of Blackacre, claiming
I title thereto from the twentieth day of January,
I one thousand eight hundred and fifty, aud the
j said Richard Roe has taken defence for the whole
of the land mentioned in the Writ of Summons; Therefore, let the Jury try whether
the plaintiff was entitled to the possession of the said lands, or any part of them, on the
said day, or at any time subsequent to such day, and before the commencement of the
action ; and whether the plaintiff is entitled to any, and what damages for loss of mesne
rates and profits.
District of Victoria,
to wit:
John James,
Plaintiff.
Richard Roe,
Defendant.
NO. 18.—WRIT OF REPLEVIN.
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland,
and the Colonies thereunto belonging, Queen, Defender of the Faith: To the Sheriff of
Vancouver's Island, Greeting:
We command you, that without delay you cause to be replevied to A. B., his goods-
and chattels, (and cattle) to wit: , which C. D. took
and unjustly detains, as it is said, and after what manner you shall have executed
this our writ, make appear to us, in our Supreme Court of Civil Justice, at Victoria,
and have there this our writ.
Witness, the seal of our Supreme Court of Civil Justice hereunto set, at
the day of
in the year of our Lord one thousand, &c.
Issued by G. F, Solicitor for said A. B.,
or, Issued by A. B., in person.
NO. 19.—SUMMONS TO SHEW CAUSE WHY A FINE SHOULD NOT BE LEVIED.
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland,
and the Colonies thereunto belonging, Queen, Defender of the Faith:    To
of in   the
District of Greeting:
Whereas, a fine of    (in words)    hath been set by
Esquire, Chief Justice, of our  Supreme Court of Civil Justice of Vancouver's Island,
upon you for (failing to appear in Court on the
day of when publicly called as a Juror);   Now, we hereby
command you that you appear personally, or by Solicitor, before the said Chief Justice
at on the
day of in the forenoon, to shew cause why the fine afore
said should not be levied by process of the Court.
Witness, &c.
N. B.—Cause is to be shewn upon affidavit filed one clear day before the said
day of 18
—ii     i
■a. [31]
NO. 20.—WRIT TO LEVY FlNft
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland,
and the Colonies thereunto belonging, Queen^ Defender of the Faith: To the Sheriff
of Vancouver's Island, Greeting:—
We command that of the goods and chattels of A. B., in your bailiwick, you cause
to be made the sum of     (in words)      being a fine set by
, &c, (as in No. 19,) and that immediately after the execution hereof,
you render that money unto us, and in what manner you shall have executed this our
writ make appear to us in our Supreme Court of Civil Justice, at Victoria, immediately
after execution hereof, and have you then and there this writ.
Witness, &c.
N. B.—The Forms Nos. 19 and 20 may be adapted to the case of Forfeited
Recognizances.
NO. 21.—AFFIDAVITS BEFORE THE GRANTING OF PROBATE.
In the Supreme Court of Civil Justice.
I, A. B., of swear that I knew C. D., of
when alive, and that the said C. D. was resident (or domiciled) at
within the district of
and that the said C. !D. died at on or about the
day of one thousand eight hundred, &c.
Sworn  at Victoria, this 18th day
of May, A. D. 1856, before me.
1 F.
A. B.
NO.    2 2. —AFFIDAVITS.
In the Supreme Court of Civil Justice.
I, of swear that I
believe the writing now produced, bearing date the
day  of and marked to
be the last Will and Testament of deceased, ancHhat I
am the Executor (or one of the Executors) therein named; I swear that I will faithfully
execute the said Will by paying the debts and legacies of the deceased, as far as the
property will extend and the law binds ; and that I will exhibit unto this Court a true,
full and perfect inventory of all the personal estate, effects and credits of the deceased
on nr before the day of ami
that I will file a true account of my Executorship on or before the
day of
Sworn at, &c. [32]
NO.    23. —PROBATE,
In the Supreme Court of Civil Justice,
Be it known to all men : That on this day of
in the year one thousand eight hundred, &c;        the last Will and
Testament of deceased, a copy, of which is hereunto
annexed, hath been exhibited, read and proved before
Esquire, Chief Justice,  and administration of the personal estate effects and credits of
the deceased, hath been, and is hereby granted to
the Executor in the said Will and Testament named, being first sworn
faithfully to execute the said Will, by paying the debts and legacies of the deceased, as
far as the property will extend and the law binds, and also to exhibit into this Court
a true, full and perfect inventory of the said property on or before the
day of and to file a true account of his Executorship on or
before the day of
(reserving nevertheless to this Court full power and authority to grant like Probate and
Administration to the other Executors named in  the
Will, whenever they shall appear before this Court and sue for the same.
Given under the seal of the said Supreme Court of Civil Justice, this
day of 18 A. B.
Registrar.
NO. 24.—AFFIDAVIT   BEFORE  GRANT   0£  ADMINISTRATION   WITH WILL
ANNEXED.
In the Supreme Court of Civil Justice.
I of swear that
I believe the writing now produced to me, bearing date the
day of and marked to be the last Will
and Testament of deceased.    I swear that to the best
of my knowledge, information and belief, the estate, effects and credits of the deceased
to be administered by me, are under the value of ; that I
will faithfully execute the said Will, by paying the debts and legacies of the deceased,
as far as the property will extend and the law binds; and that I will exhibhit into
this Court a true, lull and perfect inventory of all the estate and effects and credits
of the deceased, on or before the . day of eighteen
hundred and fifty ; and that I will file a true account of my Administratorship
on or before the day of
Sworn at, &c*
NO. 25.—LETTERS OF ADMINISTRATION WITH WILL ANNEXED.
In the Supreme Court of Civil Justice.
To widow, widower, or next of kin of
deceased:
Whereas, the said lately departed this life* leaving
a Will which has been duly proved in this Court, and whereas no Executor is named [33]
in that Will, you are therefore fully empowered and authorized by these presents to
administer the estate and effects of the said deceased, and to demand and recover
whatever debts may belong to his estate, and pay whatever debts the said deceased
did owe, and also the Legacies contained in the said Will, so far as such estate and
effects shall extend; you having been already sworn well and faithfully to administer
the same, and to exhibit a true and perfect inventory of all the estate and effects into
this Court on or before the day of next; and
you are, therefore, by these presents, constituted Administrator, with the Will annexed,
of all the estate and effects of the said deceased.
Given under the seal, &c.
NO. 26.—OATH BEFORE GRANT OF ADMINISTRATION WITHOUT A WILL.
In the Supreme Court of Civil Justice,
I, of sWear that to the best
of my knowledge, information and belief, the estate, effects and credits of the deceased
to be administered by me, are under the value of ; that I will
exhibit into this Court a true, full and perfect inventory of all the estate, effects and
credits of the deceased, on or before the day of ; and that I
will file a true account of my Administratorship on or before the
day of
Sworn at, &c.
NO. 27.—LETTERS OF ADMINISTRATION WITHOUT A WILL.
In the Supreme Court of Civil Justice,
'To widow, widower, or next of kin of
deceased :
Whereas, the said lately departed this life intestate,
you are therefore fully empowered and authorized, &c, &c, and to pay whatever debts
the said deceased did owe, so far as such estate and effects shall extend, you having
been, &c, &c, on or before the day of and
you are therefore by these presents constituted Administrator of all the estate and
effects of the said deceased.
Given under' the seal, &c.
NO. 28.—CAVEAT.
In the Supreme Court of Civil Justice.
J In the Will or Goods of A. B.
| late of deceased.
Let nothing be done'in the Will (or goods) of A. B., late of
Vancouver's Island, deceased, without notice to Solicitor u>
C. D.   of having interest, (or the widow or creditors of the deceased.)
day of
Dated
A. D. 18
Solicitor for C. D.
■&. r
[34]
NO. 29.—ADMINISTRATION BOND.
In the Supreme Court of Civil Justice.
Know all men by these presents, that We, of
, &c, are held and firmly bound unto
Registrar of the Supreme Court, (or to the Registrar for the time being,) in the sum of
pounds, for which payment well and truly to be made to the said
or to such Registrar for the time being, we do and
each of us doth bind ourselves, and each of us, and the heirs, Executors and Administrators of us, and of each of us, jointly and severally, firmly by these presents.
Whereas, by order of this Court of the day of , it
is ordered that Letters of Administration of the  personal  estate,  effects and credits of
of , deceased, be granted to the said
on his giving security for the due administration thereof;
And, whereas, hath sworn that to the best of his knowledge,
information and belief, the said personal estate, effects and credits are under the value of
pounds.    Now, the conditions of the above written bond are, that if the-
above bounden shall exhibit into this Court a true and perfect
inventory of all the personal estate, effects and credits of the deceased, which shall come
into the possession of the said , or of any other person by his
order, or for his use, on or before the day of , and
shall well and truly administer the same according to law, and
render to this Court a true and just account of his Administratorship, on or before the
day of ; then this bond shall be void and of none
effect, but otherwise, shall remain in full force.
[
Signed, the day of )
A. D. 18      , in presence >
A. B.
C. D.
E. F.
NO. 30.—AFFIDAVIT TO BE FILED BY THE REGISTRAR BEFORE GRANT OF
ADMINISTRATION.
In the Supreme Court of Civil Justice.
In the matter of , deceased, intestate.
I. A. B., of
said C. D.
about the
and
, swear that I knew C. D. when alive, and that the
at the time of his decease was resident (or domiciled) at
within this district, and that he died at. , on or
day of in the year one thousand eight hundred
I swear that to the best of my knowledge, information and belief
the personal estate, effects and credits of the deceased, are under the value of, &c.
Sworn at, &c. [35]
NO. 31.—AFFIDAVIT, &c.
In the Supreme Court of Civil Justice.
In the matter of , deceased, intestate.
I, , swear that I will exhibit unto this Court a full, true and
perfect inventory of all the personal estate, effects and credits of the said deceased, on
*or before the day of ; and that I will file a true
account of my administratorship on or before the day of, &c.
Sworn at,'!&c. /
d
if FOEMS   OF   PLEADINGS.
STATEMENT     OF    CAUSES    OP    ACTION.
ON CONTRACTS.
1. Money payable by the defendant to the plaintiff for (these words,
I money payable," &c, should precede the statement of causes of action like 1
to 9, but need only be inserted in the first,) goods bargained and sold by the
plaintiff to the defendant.
2. Work done and materials furnished by the plaintiff for the defendant,
at his request.
3. Money lent by the plaintiff to the defendant.
4. Money paid by the plaintiff for the defendant, at his request.
5. Money received by the defendant for the use of the plaintiff.
6. Money found to be due from the defendant to the plaintiff on accounts
stated between them.
7. A messuage and lands sold and conveyed by the plaintiff to the
defendant.
8. The defendant's use, by the plaintiff's permission, of messuages and
lands of the plaintiff.
9. The hire of (as the case may be) by the plaintiff let to hire to the
defendant.
10. That the defendant on the day of A. D.
by his promisory note, now overdue, promised to pay to the plaintiff
£ , (two) months after date, but did not pay the same.
11. That one A., on &c, (date) by his promisory note, now overdue,
promised to pay to the defendant, or order, (two) months
after date, and the defendant endorsed the same to the plaintiff; and the said
note was duly presented for payment, and was dishonored, whereof the defendant had due notice, but did not pay the same.
12. That the plaintiff, on &c, (date) by his bill of exchange, now overdue, directed to the defendant, required the defendant to pay to the plaintiff"
£ (two) months after date, and the defendant accepted the said bill, but
•did not pay the same.
Goods sold
Work and materials.
Money lent.
Honey paid.
Money received
Account stated.
For an   estate
sold.
For the use of
a house and
land.
For the hire of
goods, etc.
Payee    against
maker ol'note
Endorsee
against    K n-
dorser of note
Drawer against
acceptor o (
bill. [38]
Payee    against
drawer.
Breach of promise of marriage.
Warranty of a
horse.
Upon a lease for
rent.
Upon   a   covenant to repair
13. That the defendant, on &c, (date) by his bill of exchange,
directed to A., required A. to pay to the plaintiff £ , (two) months after
date, and the said bill was duly presented for acceptance, and was dishonored,'
of which the defendant had due notice, but did not pay the same.
14. That the plaintiff and defendant agreed to marry one another, and
a reasonable time for such marriage has elapsed, and the plaintiff has always
been ready and willing to marry the defendant, yet the defendant has neglected
%/ <-J v *  •/ O
and refused to marry the plaintiff.
15. That the defendant by warranting a horse to be then sound and
quiet to ride, sold the said horse to the plaintiff, yet the said horse was not
then sound and quiet to ride.
16. That the plaintiff let to the defendant a house street
for six years, to hold from the                          day of                           A. D.
at £ a year, payable quarterly, of which rent quarters are due
and unpaid.
17. That the plaintiff by deed let to the defendant a house, No. 40 Great
Britain street, to hold for seven years from the day of
A. D. , and the defendant by the said deed, covenanted with the plaintiff
well and substantially to repair the said house during the said term, (according to the covenant,) yet the said house was during the said term out of good
and substantial repair.
Trespass to land
Assault, battery
- and false imprisonment.
Criminal con1
versation.
Wrongful con-
version of
goods.
Wrongful detention ofproperty.
Defamation   Of
character.
FOR WRONGS INDEPENDENT OF CONTRACT.
18. That the defendant broke and entered certain land of the plaintiff,
called the Big Field, and depastured the same with cattle.
19. That the defendant assaulted and beat the plaintiff, gave him into
custody to a policeman, and caused him to be imprisoned in a police office.
20. That the defendant debauched and carnally knew the plaintiff's wife.
21. That the defendant Converted to his own use the plaintiff's goods,
that is to say, household furniture, (or as the case may be.)
22. That the defendant detained from the plaintiff his title deeds of
land called Belmont, in the district of , that is to say (describe
the deeds.)
23. That the defendant falsely and maliciously spoke and published of
the plaintiff the words following, that is to say: I he is a thief."
[If there be any special damage, here state it, with such reasonable particularity as to give notice to the defendant of the peculiar .injury complained
of; for instance—]
Whereby the plaintiff lost his situation as game-keeper in the employ of A.
24. That the defendant falsely and maliciously printed and published of
the plaintiff, in a newspaper called ll ," the words following,
that is to say—" he is a regular Prover under bankruptcies;" the defendant
meaning thereby that the plaintiff had proved, and was in the habit of proving
fictitious debts against the estates of bankrupts, with the knowledge that such
debts were fictitious.
COMMENCEMENT OF PLEA.
25. The defendant, by his Solicitor^ (or in person) says, (here state the
substance of the Plea.)
26. And for a second Plea, the defendant says, (here  state the second
Plea.) [39]
PLEAS IN ACTIONS ON CONTRACTS.
27. That he never was lent the money as alleged.
28. That he did not accept the bill as alleged.
29. That he never executed the alleged deed.
30. That the alleged cause of action did not accrue within six years,
(state the period of limitation applicable to the case,) before this suit.
31. That before action he satisfied and discharged the plaintiff's claim,
by payment of the said sum of £50, in the time and manner herein endorsed.
32. That the plaintiff at the commencement of the suit was, and still is
indebted to the defendant in an amount equal to the plaintiff's claim, for (here
state the cause of set-off, as in a Writ of Summons. See Forms ante;) which
amount the defendant is willing to set>off against the plaintiff's claim.
33. That after the alleged claim accrued, and before this suit, the plaintiff
by Deed released the defendant therefrom.
Denial of debt.
Denial of Deed.
Statute of limitations.
Payment.
Set-off.
Release.
PLEAS IN ACTION FOR WRONGS INDEPENDENT OF CONTRACT.
34.    That he did not assault the plaintiff as alleged.
35.
That he did what is complained of by the plaintiff's feavei
Not Guilty.
Leave  and License.
fence.
36.    That the plaintiff first assaulted the defendautywho thereupon neces- self De
sarily committed the alleged assault in his own defence.
37., That the defendant at the time of the alleged trespass, was possessed Eight of way.
of land, the occupiers whereof for twenty years before this suit, enjoyed as of
right, and without interruption, a way on foot and with cattle from a public
highway over the said land of the plaintiff to the said land of the defendant,
and from the said land of the defendant over the said land of the plaintiff to
the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged tresspass was a
use by the defendant of the said way.
38. That the defendant at the time of the alleged trespass, was possesed raght of com-
of land the occupiers whereof for thirty years before this suit, enjoyed as of
right, and without interruption, common of pasture over the said land of the
plaintiff for all their cattle levant and couchant, upon the said land of the
defendant at all times of the year, as to the said land of the defendant appertaining, and that the alleged trespass was a use by the defendant of the said
right of common.
REPLICATIONS.
39. The plaintiff takes issue upon the defendant's 1st, 2d, &c, Pleas.
40. The plaintiff as to the second Plea says, (here state the answer to
the Plea as in the following forms.)
41. That the alleged release is not the plaintiffs deed.
42. That the alleged release was procured by the fraud of the defendant.
43. That the alleged set-off did not accrue within six years before this
suit.
44. That the plaintiff was possessed of land whereon the defendant was
trespassing and doing damage; whereupon the plaintiff requested the defendant to leave the said land, which the defendant refused to do, and thereupon
the plaintiff gently laid his hands on the defendant  in  order to remove him,
Joinder of issue
Replication to
pleas containing new mat-
—ter.—
To Plea of Release.
To Plea of Setoff.
To self-defence.
~- doing no more than Was necessary for'tllat purpose, which" is the alleged first;
assault by the plaintiff.
to rightoiway. 45_    That the occupiers of the said land did not for twenty years before:
this suit enjoy as of right, arid without interruption, the alleged way.
NEW ASSIGNMENT.
T0Rtehttfwa°yf 46.    The plaintiff as to the and Pleas, says that
andcommon. jjg sues no^ f0Y the trespasses therein admitted, but for trespasses committed
by the defendant in exc6ss of the alleged rights, and also in other parts of the;
said land and on other occasions, and for other purposes than those referred to
in the said Pleas.
[If the plaintiff replies and new assigns, the new assignment may be
as follows:]
47. And the plaintiff as to the and Pleas, further
says, that he sues not only for the trespasses in those Pleas admitted, but also
for; &c.
(If the plaintiff replies and new assigns to some of the Pleas, and new
assigns only to the other, the form may be as follows:)
48. And the plaintiff as to the and               Pleas, further says,,
that he sues not for the trespasses in the Pleas (the Pleas ndt replied
to) admitted, but for the trespasses in the Pleas (the Pleas replied to)
admitted, and also for, &c.
il IN THE SUPREME COURT OF CIVIL JUSTICE,
The 26th day of April, A. D., 1858.
Whereas, by an order of the Queen's Most Excellent Majesty in Council, dated the 4th
day of April, A. D., 1856, Her Majesty was graciously pleased, to constitute
the Supreme Court of Civil Justice of Vancouver Island, and to order and
declare, that it shall and may be lawful for the said Supreme Court, by any
Rules or Orders of Court, to be by them from time to time made and published?
to frame, constitute, and establish such Rules, Orders and Regulations as shall
seem meet, touching and concerning all matters and things necessary for the
proper conduct and dispatch of business in the said Court, and all such Orders,
Rules, and Regulations, from time to time, to revoke, alter, amend, or renew as
occasion may require, And whereas Rules were made accordingly on the 12th
day of February, A. D., 1857, and it is now expedient to amend the same.
It is therefore ordered.
1st. That no person shall be summoned to act on a Jury, or special Jury, who is a
member of the Legislature, or Judge, or Officer of the Supreme Court, or Justice of the
Peace, or a Clergyman of any Religious persuasion not following any other secular
occupation than, that of Schoolmaster, or an Officer belonging to Her Majesty^ Army or
Navy, or a Barrister, Advocate, or Solicitor, or an Officer of the Customs, or who is below
t^e age of twenty-one years or above the age of sixty years, or who, not being a British
subject, has not resided; in the Colony for the greater of the last preceding twelve months.
And it shall be a good cause of challenge against any Juror, that he cannot read, or does
not understand English, or that he has been convicted of Felony at any time within the
last preceding five years.
2nd. The Sheriff shall keep lists of all persons qualified to act as Jurors, and shall
on the first Monday of July in each year submit such lists to the Chief Justice of the
Supreme Court; and the said Chief Justice may, with the approval of the Governor,
strike any name from suGh list, or insert any name therein, and may with, such approval,
declare which of the persons named in such lists, may be summoned for Special, and which
for Common Juries.
3rd. The form of the Writ of Summons in the Schedule hereunto annexed is hereafter
to be used, instead of the Form No. 3, in the Schedule of the said Rules of 12th day of
February, A. D., 1857.
4th. The 12th of the said. Rules is revoked and the following substituted for it, viz:
The Original or Duplicate Writ of Summons, with the indorsements and particulars
thereon, shall, in order to enforce a defence thereto, within the period of time in such
Writ mentioned, four days at least, before the time for pleading thereto has expired, be
filed' with the Registrar of the Court, and such Writ shall be deemed to be a pleading of
liMf   i    r ■■    -rrrrr.tt- [42]
the Plaintiff, and in lieu and stead of a Declaration: Provided however, that when the
Writ of Summons, as issued heretofore, does not contain the Plaintiff's cause or causes of
action as required by Rule 9th, it shall and may be lawful for the Plaintiff on filing an
affidavit of the service of the Writ of Summons, to file a Declaration indorsed with a
notice to plead in eight days; Provided always, that in case such Writ of Summons shall
not be filed within the time aforesaid, it shall be sufficient for the purpose of enforcing a
defence thereto, after the filing of the same, to give notice of the filing to the Defendant,
and such Defendant shall have eight days from the service of such notice to file his defence
thereto; but in no case shall the Plaintiff be at liberty to proceed to enforce a defence
after the expiration of six months from the service of such Writ of Summons.
5th. The 75th of the said Rules respecting Executions, and the I08th and 109th
respecting the substitution of affirmations for Oaths are revoked.
6th. So much of the said Rules as respect Appeals from the determination of the
said Supreme Court to Her Majesty, Her Heirs, or Successors, in Her, or Their, Privy
Council, shall remain in force till otherwise provided by Her Majesty, and no longer.
7th. If a Plaintiff in any action in the said Supreme Court, shall by affidavit shew
to the satisfaction of the Judge thereof, that he has a cause of action against the*
Defendant to the amount of £20 sterling or upwards, or has sustained damage to that
amount, and that there is probable cause for believing that the Defendant, or any one or
more of the Defendants, is, or are about to leave the Colony, unless he or they be forthwith
apprehended, the Judge may order such Defendant or Defendants to be held to bail, for
such sum as he shall think fit, not exceeding the amount of the Debt or Damages; and
thereupon such Plaintiff may, within the time which shall be expressed in such order, sue
out a Writ of Capias against such Defendant so directed to be held to bail; and which
Writ of Capias shall be in the form in the Schedule hereunto annexed, and bear date of
the day on which the same shall be issued.
8th. The Sheriff to whom such Writ of Capias shall be directed, shall within one
Calendar Month after the date thereof, proceed to arrest the Defendant thereupon. And
such Defendant when so arrested shall remain in custody until he shall have given a Bail
Bond to the Sheriff, or shall have made a deposit of the sum indorsed on such Writ of
Capias, together w7ith Ten Pounds for costs; And all subsequent proceedings as to the
putting in, and perfecting Special Bail, or of making deposit and payment of money into
Court, instead of putting in and perfecting Special Bail, shall be according to the practice
of Her Majesty's Superior Courts of Law at Westminster, or as near thereto as the
circumstances of the case will admit.
9th. Any such order may be made and the Defendant arrested in- pursuance thereof
at any time after the commencement of such action, and before final judgment shall have
been obtained therein; and a Defendant in custody upon any such arrest, and not
previously served with a copy of the Writ of Summons, may be lawfully served therewith.
10th. Any Defendant arrested upon a Writ of Capias may apply at any time to
the said Supreme Court, or to the Judge thereof, for a Rule or Order on the Plaintiff to
shew cause why the Defendant so arrested should not be discharged out of custody, and
jt shall be lawful for the Court or Judge to make absolute or discharge such Rule or
Order, and to direct the costs of the application to be paid by either party, or to make
such other Order therein as the Court or Judge may seem fit.
DAYID CAMERON,
Chief Justice. ■——5**5BSSH^■
l^Z-^/si/~Z^C—>->-
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SCHEDULE   OF  FORMS.
"WHIT   OF  SUMMONS.
Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland,
and the Colonies thereunto belonging, Queen : Defender of the Faith, &c.
To A. B.,
Greeting :
Victoria, to wit:
A. B., the Defendant, is summoned to answer
the Complaint of C. D., who complains that the
Defendant is indebted to the Plaintiff in the sum
IIP
of Victoria, Merchant,
Defendant.
CD.,
of Victoria, Broker,
Plaintff,   | of One Hundred Pounds, Fifteen   Shillings  and
Eleven Pence, money payable by the Defendant to
the Plaintiff, for money paid by the Plaintiff for
the Defendant at his request, the particulars of
which are endorsed hereon.
And the Plaintiff prays Judgment against the said Defendant to recover the said
sum of one hundred pounds, fifteen shillings and eleven pence, and interest thereon, and
his costs of suit.
Therefore the Defendant is hereby required to appear in the said Court, within
sixteen days after the service hereof, and answer the said Complaint, or in default thereof
Judgment shall be given according to Law.
Witness, Esquire, Chief Justice of Her
Majesty's Supreme Court of Civil Justice at Victoria.
Dated, Friday, the tenth day of July, A. D., 1857.
C. D., Plaintiff.
Endorsements to be made on the Writ.
N. B.—This writ is to be served within six calendar months from the date thereof,
or if renewed from the date of such renewal, including the day of such date, and not
afterwards.
Special Endorsement when the Writ is served for the Payment op a Debt.
The Plaintiff claims One Hundred Pounds, Fifteen Shillings and Eleven Pence for
Debt, and Two Pounds Twelve Shillings and Six Pence for Costs; and if the amount
thereof be paid to the Plaintiff or his Solicitor within six days from the service hereof
further proceedings will be stayed.
The particulars of Plaintiff's claim
1857, July 20th.    To Cash paid E. F., by your order, £100 15-11.
This writ was issued in person by C. D., who resides at No. 6 Government street,
Victoria; or this Writ was issued by G. A., of No. 16 Johnston street, Victoria, Solicitor
for the said Plaintiff.
(Endorsement to be made on the Writ after service thereof.)
'This Writ was served by I. J., on A. B., (the Defendant or one of the Defendants,)
on Tuesday, the Fourteenth day of July, A. D., 1857.
Signed,        I. J.
tfta
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[44]
!
WEIT   OF   C.AJPIA.S..
Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland,
and the Colonies thereunto belonging, Queen \ Defender of the Faith, &c.
To the Sheriff of Vancouver's Island,
Greeting :
We command you that you omit not by reason of any liberty in your bailiwick, but
that you enter the same and take A. B., of Victoria, Merchant, if he shall be found in
your bailiwick, and him safely keep until he shall have given you bail, or- made deposit
with you according to law, in a personal action at the suit of C. D., of Victoria, Broker,
or until the said A. B. shall by other lawful means be discharged from your custody.
And we do further command you, that on execution hereof you do deliver a copy hereof
to the said A. B. And' we do hereby require the said A. B. to take notice, that within
eight days from the execution hereof on him, inclusive of the day of such execution, he
should cause special bail to be put in for hiin in our Supreme Court of Civil Justice of
Vancouver Island to the said action, and that in default of so doing such proceedings
may be had and taken as are mentioned in the warning written or endorsed hereon.
And we do further command you, that immediately after the execution hereof you do
return this writ to Our said Court, together with the manner in which you shall have
executed the same and the day of the execution thereof: or that if the same shall remain
unexecuted, then that you do so return the same at the expiration of one calendar month
from the date hereof, or sooner if you shall be thereto required by order of the said
Court or the Judge thereof.
Witness, Esquire, Our Chief Justice, at Victoria, the thirteenth
day of July, in the twenty-second year of our Reign.
Endorsements to be made on the Writ.
Memorandum.—This writ is to be executed' within one calendar month from the date
thereof, including the day of such date, and not afterwards.
A WABJNTOG TO THE DBEENDA5T.
If a Defendant, having given bail on the arrest, shall omit to put in special bail as
required, the Plaintiff may proceed against the Sheriff or on the bail bond.
Bail for One Hundred Pounds, Fifteen Shillings and Eleven Pence, by order of
Esquire, Chief Justice, dated this thirteenth day of July,
A. D., 1857.
This Writ was issued1 in person by the Plaintiff within named, who resides at No. 6
Government street, Victoria: or this Writ was issued by G. H., of No. 16 Johnston street,
Victoria, Solicitor for the Plaintiff (or Plaintiff's) within named. latti, at $ fotona, tfo Bift £ag af g$ril, 1857.
-^~<*^^*^ ♦"
BEFORE DAVID CAMERON, ESQUIRE, CHIEF JUSTICE.
WHEREAS, by Her Majesty's Gracious Order in Council, of the 4th day of April,
1856, constituting the Supreme Court of Civil Justice, of the Colony of Vancouver's Island, it was ordered, "That the said Supreme Court should have cognizance of all Pleas and jurisdiction in all civil causes arising within the said Colony ;" and did further give and grant i To the said Supreme Court full power,
jurisdiction, and authority, to review the proceedings of all inferior Courts of Civil
Justice, within Her Majesty's said Colony, and, if necessary, set aside and correct
the same ;"
And Whereas, there are no Inferior Courts of Civil Justice in the Colony; and whereas,
the Practice of the Supreme Court, as published on the 18th day of February last,
is too slow and expensive to meet the exigencies of the numerous suitors in the
recovery of small debts and demands; it is expedient, therefore, that the said
Supreme  Court should frame other Rules of Practice, giving a cheaper and more
summary process for the recovery of such small debts and demands.
It is therefore hereby Ordered, that so much of the enactments of the Act 9 and 10
Vict. cap. 95, entitled, "An Act for the more easy Recovery of small Debts and Demands
in England," as are suitable to the circumstances of the Colony, shall be adopted by the
Court. And that the Chief Justice shall preside in a Court to be held monthly for adjudicating on such small Debts and Demands, in the same way as the judges appointed in
England under the said Act; and that the Registrar of the Court shall perform the duties
appointed to be performed by the Clerks of the Courts appointed in England under the
said Act; and that the Sheriff shall perform the duties of the High Bailiffs appointed in
England under the said act. And that all Pleas of personal actions, where the debt or
damage claimed is not more than fifty pounds sterling, whether on balance of account or [46]
otherwise, may be holden in this Court without Writ; and all such actions brought to the
said Court shall be heard and determined in a summary way, according to the provisions
of the said Act. And all summonses and other process issuing out of the said Court,
shall be in accordance with the said Act, and shall be sealed and stamped with the seal of
the Court.
And it is Ordered, that the following general Rules for regulating the Practice and
Proceedings, and the Forms of every proceeding in this branch of the Supreme Court,
and the fees payable on every proceeding, to the Judge, Registrar and Sheriff, according
to the scale hereunto annexed, shall be observed and used in the Court holden under this
order, and which Court, to distinguish it from the Supreme Court, of which it is, however,
a part, shall be styled, The Inferiob or Summary Court of Civil Justice of Vancouver's
Island.
gmiM RULES   OF   PRACTICE
For  the
INTERIOR  COURT  OF   CIYIL  JUSTICE.
SITTINGS OF THE COURT.
Rule 1st. A sitting of the Court will be held at Victoria, on the third Monday of
every month in the year, at ten of the clock in the forenoon, excepting in the months of
August and September.
REGISTRAR'S DUTIES.
Rule 2nd. The Registrar of the Court shall keep the Books mentioned in the Act
§ and 10 Vict. c. 95, sec. 27, in the form in the schedule; and every entry in such Books
shall have a number prefixed, corresponding with the number of the Plaint to which the
entry relates.
Rule 3rd. Whenever the Registrar or his lawful deputy, the Clerk of the Writs, is
absent from the Court, the Judge shall appoint a Deputy to act on behalf of the Registrar,
and an entry of such appointment and the cause of such absence (if known) shall be
made in the minutes of the Court.
Rule 4th. All duties required to be performed by the Registrar, except that of acting
in Court as Registrar or signing the minute book, may be performed by the Clerk of the
Writs, or assistant Clerks, provided by him.
Rule 5th. The money to which suitors are entitled shall be paid out upon demand at
any time when the Registrar's office is open.
Rule 6th. Whenever money is paid into or deposited in Court, whether before or after
judgment, an acknowledgment in writing of such payment or deposit shall be given by
the Registrar.
Rule 7th. All the Books of the Court, including the Cash Book, shall at all times be
open to the inspection of the Judge.
Rule 8th. Neither the Registrar nor Clerk of the Writs, assistant Clerk, Sheriff or
other officer of the Court shall sign the Ledger or receive money on account of suitors,
or otherwise act as an agent for that purpose. f
! ~ J
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[48] |   '.«     'I      |
Rule 9th. Neither the Registrar, nor the Clerk of the Writs, Assistant Clerk, Sheriff,
or other officer of the Court, or any Solicitor or Clerk of such Solicitor, shall become
surety in any cause where by the practice of the Court security is required.
% ■■
k
SHERIFF'S DUTIES.
Rule 10th. Whenever the Sheriff cannot attend any sitting of the Court, the cause
of his absence (if known) shall be entered in the minutes of the next succeeding Court.
Rule 11th. The Sheriff shall attend for the purpose of receiving Summonses, or for
the performance of other duties at the office of the Registrar, once every day.
Rule 12th. Eight days before the day of holding any Court the Sheriff shall deliver
to the Registrar a return of all Summonses on Plaints, before Judgment issued to him',
ten days before the holding of such Court, returnable at such Court, and such return shall
state the mode of service of each Summons, and the Sheriff shall at the same time deliver
to the Registrar the copy of every such Summons, endorsed as required by Rule 35.
Rule 13th. The Sheriff shall enter in a book, to be kept by him for that purpose, the
particulars of all orders for the payment of money or costs, or both, which he shall have
received, and of the mode in which he shall have served the same, and once in every
calendar month at least he shall lay the same before the Judge of the Court, who shall
sign the same and attest its having been duly laid before him.
Rule 14th. Once in. every calendar month or oftener, if the Judge shall so order, the
Sheriff shall deliver a return to the Registrar, pursuant to the Form in the Schedule, of
what shall have been done since his last return under every Process of Execution or
Commitment which he has been required to execute, and at the Court held next after the
delivery of every such return the Registrar shall lay the same before the Judge of the
Court, who shall sign the same and attest its having been duly laid before him.
Rule 15th- Whenever the Sheriff or his sub-Sheriff levies or receives an}' money by
virtue of any process issuing out of the Court he shall, within twenty-four hours from the
receipt thereof, pay over the same to the Registrar of the Court, and shall file and retain
such process in his custody.
ii
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!.
PLAINT,
Rule 16th. Every Plaint shall, on application at the office of the Registrar, be entered
in the form of the Schedule, and all particulars required by such form shall be entered by
the Registrar before issuing the Summons: Provided, that if the Plaintiff is unacquainted
with the Defendant's christian name the Defendant may be described by .his surname, or
by his surname and the initial of his christian name, or by such name as he is generally
knowm by, and the Defendant may be so described in the Summons; and in the event of
the Plaintiff or the Defendant not appearing, the proceedings under sections 79 and 80
of the 9th and 10th Vict. C. 95, may be taken as if the true christian name and surname
had been stated in the Summons, and all subsequent proceedings thereon may be taken
in conformity with such description.
Rule 17th. Claims by Husbands in their own right, may be joined with claims, in
respect of which, the wife must be joined as a party.
i
"arm* «*=
[49]
Rule 18th. Where an Infant applies to enter a Plaint for any cause of action, (other
than for wages or piecework, or for work as a servant,) he must procure the attendance
of a next friend at the office of the Registrar at the time of entering the Plaint, and no
Plaint shall be entered until the next friend has undertaken, in the form in the Schedule,
to be responsible for costs, and on entering into such undertaking he shall be liable in the
same manner and to the same extent as if he were a party in an ordinary suit, and the
cause shall proceed in the name of the Infant by such next friend, and such undertaking
shall be filed by the Registrar, and no order of the Court shall be necessary for the
appointment of such nexf friend. If the Plaintiff fail in or discontinue his suit, and shall
notTpay the amount of costs awarded by the Court to be paid by him to the Defendant,
such proceedings may be taken for the recovery of such amount from the next friend as
for the recovery of any debt or damage ordered to be paid by the Court.
PARTICULARS.
Rule 19th. On entering the Plaint the Plaintiff shall in all cases, if the sum sought
to be recovered shall exceed forty shillings, deliver at the office of the Registrar as many
copies of a statement of the particulars of his demand or cause of action as there are
Defendants, and an additional copy to be filed, and all such copies shall be sealed with
the seal of the Court, and such particulars shall be taken to be, and be treated, as part of
the Summons.
Rule 20th. In Actions for penalties to secure the performance of covenants within the
meaning of the 8 and 9 Wm. 3, C. n, the Plaintiff shall deliver particulars of the breaches
On which he relies, in the same manner as required by the last rule, which when delivered
shall be taken to be and treated as part of the Summons, and if the Court shall be of
opinion that the Plaintiff is entitled to recover judgment, shall be entered for the penalty,
not exceeding the amount over which the Court has jurisdiction, and an entry shall be
made on the minutes, of the damages awarded to the Plaintiff, and execution may issue
for the amount of such damages, and in case of subsequent breaches the Plaintiff may
enter a Plaint and sue out a Summons in the nature of a seire facias on such judgment,
and shall deliver particulars of such subsequent breaches in the manner before mentioned
and which shall be taken to be and treated as part of such Summons.
PLAINT NOTE.
Rule 21st. At the time of entering the Plaint the Registrar shall give to the Plaintiff
or his Agent a note under the seal of the Court, according to the form in the Schedule;
and no money shall be paid out of Court to the Plaintiff or his Agent, unless on
production of such note or by order of the Judge.
MILEAGE.
Rule 22nd.    The Mileage shall be ascertained and determined by the Registrar, by
such means as he shall think proper, and his determination thereon shall be final.
J m
[50]
SUMMONS TO APPEAR TO A PLAINT.
Rule 23rd. The Summons to appear to a Plaint shall be in the form in the Schedule,
and shall be dated of the day in which the Plaint was entered, and shall correspond in
substance with the Plaint, and the date thereof shall be the commencement of the suit.
Rule 24th. Such Summons may be returnable either at the next Court after the entry
of the Plaint, or at any subsequent Court within three months.
Rule 25th. The Registrar shall issue the Summons to the Sheriff forthwith after the
Plaint is entered.
Rule 26th. The Registrar shall, in cases where by these rules particulars are required,
annex to the Summons a copy of the Plaintiff's particulars, sealed with the Seal of the
Court, and shall also make and deliver to the Sheriff a true copy of the Summons for
endorsement as hereinafter required, and it shall be the duty of the Sheriff to ascertain
by examination and comparison with the Summons the correctness of the copy.
Rule 27th. Where a Summons has not been served, successive Summonses may be
issued by the Registrar on the application of the Plaintiff under the circumstances and
on the conditions following, unless the Judge shall otherwise order. If the non-service
has been caused by the defective description given by the Plaintiff of the Defendant, or
of his place of residence or business, or by any other act or neglect of the Plaintiff,
successive Summonses shall be issued only on payment of the poundage for a Summons,
and the Sheriff's Fee for serving the same. If the non-service has not been so caused,
and has not been caused by the neglect of the Sheriff, successive Summonses shall be
issued only on payment by the Plaintiff of the Sheriff's Fee for serving the same; if the
non-service has been caused by the neglect of the Sheriff!, the poundage for such Summons
(shall be paid by the Sheriff, and such successive Summons shall be served by him without
further fee. And the successive Summons or Summonses shall bear the same date and
number as the Summons first issued, and shall be a continuance of the first Suriimons,
provided that the costs of such successive Summons or Summonses shall not be allowed
against the Defendant, unless the Judge shall otherwise order.
I
SERVICE OF A SUMMONS TO APPEAR TO A PLAINT.
Rule 28th. A Summons to appear to a Plaint must be issued and served at least ten
clear days before the holding of the Court at which it is returnable, provided that a
Summons may be is.sued at any time before the holding of any Court on production by
the Plaintiff of an affidavit shewing that the Defendant is about to remove out of the
jurisdiction of the Court, and service of such Summons any day before the return day
may be deemed good service, if at the hearing it shall be proved on oath to the satisfaction
of the Judge that such party was about to remove out of the jurisdiction of the Court,
but in every such case the Judge may in his discretion, and on such terms as he shall
think fit, adjourn the hearing.
Rule 29th. The service of the Summons, except in the cases hereinafter specially
provided for, must be either personal or by delivering the same to some person, apparently
of sixteen years of age at least, at the house or place of dwelling, or place of business
of the Defendant; but no place of business shall be deemed the place of business of the
Defendant, unless, he shall be the master or one of the masters thereof. [51]
Rule 30th. Where a Defendant is living or serving on board of any Ship or Vessel,
it shall be sufficient service to deliver the Summons to the person on board who has, at
the time of such service, charge of such Ship or Vessel.
Rule 31st. Where a Defendant is working in any mine or other works under ground
it shall be sufficient service to deliver the Summons at such mine or works to the Ensine
man, Banksman, or other person in charge of such Mine or Works.
Rule 32nd. Where a Defendant keeps his House or place of Dwelling, or place of
business closed in order to prevent the Sheriff from serving the Summons, and such
"Summons shall have been affixed on the door of such house or place of dwelling, or place
of business, such affixing shall be good service.
Rule 33rd. Where the Sheriff is prevented, by the violence or threats of the Defendant, or of any other person or persons in concert with him, from personally serving such
Summons, and the Sheriff leaves the same as near to the Defendant as practicable, such
leaving shall be good service.
Rule 34th. Where the Summons has not been served personally, and the Defendant
does not appear in person, or by Solicitor or Agent, at the return day, it must be proved
on oath to the satisfaction of the Judge that the service of such Summons has come to
the knowledge of the Defendant before the return day, except in the cases specially
mentioned in the Rules 32 and 33.
Rule 35th. If the service of the Summons has been personal, the Sheriff who served
"the same shall endorse on the copy of the Summons hereinbefore directed to be delivered
to him by the Registrar, the fact of such service, and if the service has not been personal
he shall endorse on the copy of the Summons the statement which has been made by the
person to whom the Summons was delivered, or other circumstances from which it may
be inferred that the service of the Summons has come to the knowledge of the Defendant.
If the Summons has not been served, the reason of such non-service shall be endorsed on
such copy, and the Sheriff shall deliver such copy so endorsed to the Registrar at the
time of making the return required by Rule 12, and such copy shall be produced at the
time of the trial by the Registrar, and shall be filed by the Registrar.
Rule 36th. Whenever a Summons has been served in one of the modes hereinbefore
mentioned, but it appears has come to the knowledge of the Defendant less than ten
clear days before the day of hearing, the cause may, at the discretion of the Judge,
proceed or be adjourned whether the Defendant appears or not.
Rule 3.7th. When any Affidavit of service of a Summons is sworn before the Judge
of the Court the Fee on such Affidavit shall be taken and accounted for by the Registrar,
and shall be applied as the Judge's Fees are applicable.
Rule 38th. No Summons, Order, or other process of notice shall be served on Sunday,
Christmas-day, or Good Friday, or any day appointed by a Royal Proclamation for a
public Fast or Thanksgiving, but such day shall be counted in the computation of the time
required by these Rules.
Rule 39th. The above Rules as to the mode, but not as to the time of service of
Summonses to appear to a Plaint, shall apply to the mode of service of all Notices and
Processes whatever, except where otherwise directed by Statute or by these Rules.
—
-q [52]
PAYMENT INTO COURT, WHETHER BEFORE OR AFTER JUDGMENT.
Rule 40th. Where the Defendant is desirous of paying money into Court it must be
so paid five clear days before the return day of the Summons with costs proportionate to
the amount paid in, together with the Fee for paying in and for notice of payment to the
Plaintiff, and the Registrar shall forthwith send to the. Plaintiff notice of such payment,
provided that at any time before the hearing of the cause the Defendant may pay money
into Court with such costs as aforesaid, and the Registrar shall give notice thereof to the
Plaintiff as aforesaid; but where money is so paid in less than five clear days before the
return day of the Summons it shall be lawful for the Court to order the Defendant to pay
such costs as the Plaintiff shall have incurred in preparing for trial, or in attending the?
Court, before the notice of such payment was received by him.
Rule 41st. If the Plaintiff elect to accept in full satisfaction of his claim such money
as shall have been paid into Court by the Defendant, and shall send to the Defendant or
leave at the Defendant's place of dwelling or place of business a written notice, stating
such acceptance, two clear days or within such reasonable time as the time of payment
by the Defendant has permitted, before the return day of the Summons the action shall
abate and the Plaintiff shall not be liable to any further costs, but in default of such
notice of the Plaintiff the cause may proceed.
Rule 42nd. The Fee on paying money into Court shall be paid by the party paying
the same, and the Fee on paying money out of Court shall be paid by the party receiving1
the same.
INSPECTION OF DOCUMENTS.
Rule 43rd. Where in any Action the Defendant is desirous of inspecting any Deed,
Bond, or other Instrument under seal, or any written Contract or other Instrument in
which he has an interest and which shall be in the possession, power, or control of the
Plaintiff the Defendant may within five days from the service of the Summons to appear
give notice in writing to the Plaintiff that he desires to inspect such Instrument at any
place to be appointed by the Plaintiff, and the Plaintiff shall appoint a place accordingly,
and if the Plaintiff shall neglect or refuse to appoint such place or to allow the Defendant
or his Solicitor to inspect it within three days after receiving such notice, the Judge may,
in his discretion on the day of hearing, adjourn the cause for the purpose of such inspection, and make such order as to costs as he shall think fit.
WITHDRAWAL BY PLAINTIFF..
Rule 44th. If the Plaintiff be desirous of not proceeding in the cause, he may give a
written notice thereof to the Registrar and to the Defendant, and after the receipt of such
notice the Defendant shall not be entitled to any further costs than those iacurred up to
the receipt of such notice, unless the Judge shall otherwise order.
DEFENCES.
Rule 45th. Where the Defendant intends to rely on a set-off, Infancy, Coverture, or
statute of limitations, his notice shall contain the particulars hereinafter mentioned 1
Provided that in case of non-compliance with this Rule or those Rules applying to such
foregrounds of Defence, and the Plaintiff will not consent at the Hearing to permit the
——
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— [53]
Defendant to avail himself of such defence, the Judge may on such terms as he shall
think fit adjourn the hearing of the cause to enable the Defendant to give such notice.
Rule 46th. Where a Defendant intends to set-off any debt or demand alleged to be
due to him by the Plaintiff, he must give notice thereof in writing to the Registrar of the
Court, and deliver to such Registrar a particular of such set-off, at least five clear days
before the return day of the Summons.
Rule 47th. Where a Defendant intends to rely on the defence of Infancy, he must
give notice thereof in writing to the Registrar of the Court, at least five clear days before
the return day of the Summons, setting forth in such notice the supposed place and date
of his birfn.
Rule 48th. Where a Defendant intends to rely on the Defence of Coverture she shall
give notice thereof in writing to the Registrar of the Court, at least five clear days before
the return day of the Summons, setting forth in such notice the place and date of marriage,
together with the christian name and surname of her husband.
Rule 49th. Where a Defendant intends to rely on the defence of any statute of1
limitations, he shall give notice thereof in writing to the Registrar of the Court, at least
five clear days before the return day of the Summons.
Rule 50th. In all cases, unless otherwise expressly ordered, when any notice or
statement is required to be given by any party, such party shall at least five clear days
before the day of hearing, deliver to the Registrar as many copies thereof as there are
opposite parties, and an additional copy to be filed, and all the said copies shall be signed
by the party giving such notice, his Solicitor or Agent, and the Registrar shall, within
twenty-four hours from the time of receiving the same, transmit one copy of such notice
to each of the said parties.
Rule 51st. Where the Defence is a tender, such defence shall not be available, unless
before or at the hearing of the cause the Defendant pays into Court (which may be
without costs) the amount alleged to have been tendered.
EVIDENCE.
Rule 52nd. Witnesses may be summoned without leave of the Court, and the Regis-'
trar shall forthwith, on issuing the Summons, deliver it to the Sheriff. /
Rule 53rd. It shall be sufficient if a Summons to a Witness be served a reasonable
time before the actual hearing.
Rule 54th. Where either party proposes to give a Judgment of the Supreme Court
or any other document, whether printed or written, in evidence, he may by a demand in
writing made a reasonable time before the hearing, require the other party to admit
(saving all just exceptions to the admissibility of such document in evidence,) the
document to be read in evidence without proof, and if such demand be not made, no costs
of proving such document shall be allowed, unless the Judge shall otherwise order. If
such demand be not complied with, and the Judge think it reasonable that the admission
should have been made, the party refusing shall bear the expense of proving such document
whatever may be the event of the cause.
M it
[54]
Rule 55th. Either party may call the other or the wife of the other party as a witness
and appearance may be enforced by Summons as in the case of any other witness.
JURY.
Rule 56th. Every notice of a demand of a Jury must be made in writing to the
Registrar of the Court five clear days before the day of hearing, and the Summonses to
the intended Jurors shall be delivered to the Sheriff forthwith.
Rule 57th. Where notice of a demand of a Jury has not been given in due time, or
if at the hearing both parties desire to try by a Jury, the Judge may, on such terms as
he shall think fit, adjourn the case in order that the necessary steps for such trial may be
taken, and the trial shall take place accordingly.
Rule 58th. Cases of interpleader, and of replevin, may at the instance of either party
be tried by a Jury, and in the same manner as ordinary actions.
Rule 59th. The poundage fee upon Summonses shall not be payable upon any
Summons to a jury or juryman, but the Sheriff's Fees for service on each juryman shall
be payable as upon the service of a Summons to appear to a Plaint.
Rule 60th. In all cases to be tried by a Jury the number of jurymen summoned shall
be ten, unless the Judge shall otherwise order.
ADJOURNMENT.
Rule 61st. Where a Summons has been served, the parties may by consent, at any
time before the cause is called on, on payment to the Registrar of the fee on an adjournment, postpone the hearing to such subsequent Court as the Judge shall direct, but where
a cause is called on, the hearing fee shall be forthwith payable, and if the Plaintiff on
being required thereto do not pay such fees, he shall be deemed not to have appeared ;
and if the cause be adjourned after being called on, and the hearing fees paid, the fee on
an adjournment shall then be paid by the party requiring the adjournment, and at the
adjourned hearing or hearings of such cause no further hearing fee shall be payable, but
the cause may from time to time be adjourned, on payment of the fees on an adjournment.
Rule 62nd. Where a cause is adjourned no order of adjournment shall be served on
either party, unless by direction of the Judge.
Rule 63rd. When anything required by the practice of the Court to be done by either
party before or during the hearing has not been done, the Judge may in his discretion,
and on such terms as he shall think fit, adjourn the hearing to enable the party to comply
with the practice.
HEARING.
Rule 64th. Where a cause is struck out in consequence of the non-appearance of both
parties, no hearing fee shall be payable.
Rule 65th. If at the return day of the Summons, or at any continuation or adjournment of the Court at which it is returnable, the Plaintiff does not appear, the Judge may
in his discretion award to the Defendant costs, in the same manner and to the same [55]
<N
amount, as to Counsel, Solicitor, Witnesses and other matters, as if the cause had been
tried, but no hearing fee shall be charged.
Rule 66th. No Solicitor shall be allowed to appear in the Court for any person until
he has signed a Roll or Book, to be kept for that purpose by the Registrar, but no fee
shall be payable for that purpose.
Rule 67th. It shall not be necessary for either party previous to the hearing to give
notice to the other, or to the Court, of his intention to employ a Barrister or Solicitor to
act as his advocate at the hearing, and the allowance of costs for such Barrister or Solicitor
shall not be affected by such want of notice.
Rule 68th. The provisions of the 91st section of the statute 9th and 10th, Vict. C. 95,
shall be followed as to the persons who shall be allowed to appear for any party in any
proceeding before the Court.
Rule 69th. Where an Infant Defendant appears at the hearing, and names a person
willing to act as a guardian, and who then assents so to act, such person shall be appointed
guardian accordingly, but if the Defendant do not name a guardian, the Judge may appoint
any person in Court willing to become guardian, or in default of such person the Judge
shall appoint the Registrar of the Court to be guardian, and the case shall proceed thereupon as if another person had been appointed guardian, and the name of the guardian
appointed shall be entered in the form in the Schedule, and no responsibility shall attach
to the person so appointed guardian.
Rule 70th. Where a Plaintiff avails himself of the Provisions of Section 68 of 9
and 10 Vict. C. 95, and proceeds against only one or more of several persons jointly
answerable, the Defendant or Defendants sued may avail himself or themselves of any
set-off or other defence to which he or they would be entitled if all the persons liable
were made Defendants.
AMENDMENT.
Rule 71st. Where a person other than the Defendant appears at the hearing, and
admits that he is the person whom the Plaintiff intended to charge, his name may be
substituted for that of the Defendant, if the Plaintiff consents, and thereupon the cause
shall proceed as if such person had been originally named in the Summons, and if necessary the hearing may be adjourned on such terms as the Judge shall think fit, and the
costs of the person originally named as Defendant shall be in the discretion of the Judge.
Rule 72nd. Where a party sues or is sued in a representative character, but at the
hearing it appears that he ought to have sued or been sued in his own right, the Judge
may at the instance of either party, and on such terms as he shall think fit, amend the
proceedings accordingly, and the case shall then proceed, in all respects as to set-off and
other matters, as if the proper description of the party had been given in the Summons.
Rule 73rd. Where a party sues or is sued in his own right, and it appears at the
hearing that he should have sued or have been sued in a representative character, the
Judge may at the instance of either party, and on such terms as he shall think fit, amend
the proceedings accordingly, and the case shall then proceed in all respects, as to set-off
and other matters, as if the proper description of the party had been given in the
Summons.
-—
J [56]
Rule 74th.    Where the- name5 or description of a Plaintiff in the Summons is insufficient or incorrect, it may at the hearing be amended at the instance of either party by"
order of the Judge on such terms as he shall think fit, and the cause may then proceed
as to set-off and other matters as if'the name or description had been originally such as
it appears after the amendment has been made.
Rule 75th. Where the name or description of a Defendant in the Summons is insufficient or incorrect, and the Defendant appears and objects to the description, it may be
amended at the instance of either party by order of the Judge, on such terms as he shall'
think fit, and the cause may proceed, as to set-off and other matters, as if the name or
description had been originally such as it appears- after the amendment has been made;
but if no such objection is taken, the cause may proceed, and in the judgment, and all
subsequent proceedings founded thereon, the Defendant shall be described in the same
manner.
Rule 76th. In actions by or against a husband, if the. wife is improperly joined or
omitted as a party, the Summons may at the hearing be amended at the instance of either
party by order of the Judge, on such terms as he shall think fit, and the cause may
proceed, as to set-off and other matters, as if the proper person had been made party to
the suit.
Rule 77th. Where it appears at the hearing, that a greater number of persons have
been made Plaintiffs than by law required, the name of the person improperly joined may
at the instance of either party, be struck out by order of the Judge, on such terms as he
shall think fit, and the cause may proceed, as to set-off and other matters, as if the proper
party or parties only had been made Plaintiffs.
Rule 78th. Where it appears at the hearing^that a less number of persons have been
made Plaintiffs than by law required, the name of the omitted person may, at the instance
of either party, be added by order of the Judge, on such terms as he shall think fit, and
the cause shall proceed, as to set-off and other matters, and judgment shall be pronounced,
as if the proper persons had been originally made parties, and unless the person whose
name is so added shall assent thereto, either at the hearing or some adjournment thereof,
personally or by writing signed by him or his Solicitor, proceedings on the judgment shall
be stayed until the Court next after five clear days from the day of hearing; and if the
person whose name is added shall, at the hearing or an adjournment thereof, consent to
become a Plaintiff, (such consent being in writing, signed by him or his Solicitor,) execution shall issue as the Judge shall think fit; but if such party shall not consent to become
a Plaintiff in manner aforesaid, either at the hearing or at an adjournment thereof, judgment of nonsuit may be entered.
Rule 79th. When it appears at the hearing that more persons have been made Defendants than bylaw required, the name of the party irnproperly joined may, at the instance
of either party, be struck out by order of the Judge, on such terms as he shall think fit,
and the cause shall proceed, as to set-off' and other matters, as if the party or parties
liable had been sued, and judgment shall be given for the party improperly joined.
Rule 80th. Where several persons are made Defendants, and all of them have not
been served, the name or names of the Defendant or Defendants who have not been
served may, at the instance of either party, be struck out by order of the Judge, on such
terms as he shall think fit; and the cause shall then proceed, in all respects as to set-off
and other matters, as if all the Defendants had been served. [57]
Rule 81st. Where at the hearing a variance appears between the evidence and the
matters stated in any of the proceedings in Court, such proceedings may, at the discretion
of the Judge and on such terms as he shall think fit, be amended, and such amendment
as well as amendments as to parties, when ordered, shall be made in open Court, and
during the sitting of the Court.
Rule 82nd. In all cases of amendment, a corresponding amendment shall be made in
the presence of the Judge, in the proceedings of the Court, antecedent to such amendment, and the subsequent proceedings shall be in conformity therewith.
■. ]J COSTS.   •
Rule 83rd. All costs between party and party shall be taxed by the Registrar of the
Court, but his taxation may be reviewed by the Judge upon the application of either
party; and it shall not be necessary that the costs shall be taxed in Court, or during the
sitting of the Court at which judgment is given. ,^p
Rule 84th. The Judge shall in each case direct what number of witnesses are to be
allowed on taxation of costs, and their allowance for attendance shall be according to the
scale in the schedule unless otherwise ordered, but shall in no case exceed the allowances
therein mentioned.
Rule 85th. The costs of Witnesses, whether they have been examined or not, may,
in the discretion of the Judge, be allowed, though they have not been summoned.
Rule 86th. Money paid into Court on a judgment shall be appropriated—first, in
satisfaction of the costs, and afterwards in satisfaction of the original demand.
Rule 87th. The calculation of fees payable for the issuing and execution of warrants
shall be governed by the direction given in the table of fees ; that where the sum demanded is above twenty pounds the Poundage shall be taken on twenty pounds only.
Rule 88th. Costs of unexecuted or unproductive Warrants against the goods shall not
be allowed against the defendant, unless the Judge shall otherwise direct.
Rule 89th. Costs of Warrant of Commitment, on which the Defendant has not been
taken, shall not be allowed against the Defendant, unless the Judge shall otherwise
direct.
Rule 90th. Costs of executed Warrants, whether of Commitment or against the goods,
shall be allowed, unless the Judge shall otherwise direct.
ORDERS.
Rule 91st. Orders for payment of money, or costs, or both, and orders ofactjourmnent
when directed by rule 63 to be served, shall in all cases be served by the Sheriff, provided that in no case shall any mileage be allowed, but the Sheriff shall be entitled to be
paid only as upon a service within two miles of the Court House ; provided always that
it shall not be necessary for the party in whose favor such order was made to prove that
it was served previous to taking proceedings thereon.
Rule 92nd. Where the Court gives leave to take any proceeding, it shall not be
necessary to draw up any order, nor shall any order be drawn up to warrant such proceeding.
/ rnrmm
ii
[58]
INSTALMENTS-PAYMENT BY.
Rule 93rd. Where an order is made for the payment of any debt, damages, costs, or
other sum of money by instalments, such instalments shall be payable at such periods
as the Court shall order; and if no period be mentioned, the first shall become due on
the twenty-eighth day from the day of making the order, and every successive instalment
shall become due at a like period of twenty-eight days from the day of the previous
instalment becoming due; and such instalments shall be paid at the office of the Registrar, and not to the party in whose favor such order was made.
Rule 94th. When an order is made for payment by instalments or otherwise, the
Registrar shall give notice to the Plaintiff in writing, according to the form in the Schedule of every payment made, and the fee allowed for such notice may be deducted from
the amount paid in, whether such sum is paid out to the Plaintiff or not, and such fee
shall not be paid by the Defendant; provided that such notice shall not be given, nor the
fee taken, where the instalment does not amount to ten shillings, unless the Plaintiff
shall by writing, under his hand, require the Registrar to give him such notice.
PROCEEDING ON A JUDGMENT MORE THAN A YEAR OLD.
Rule 95th. No Warrant of Execution, or Summons for Commitment shall, without
leave of the Judge, issue on a Judgment more than a year old, (unless an instalment has
been paid on such Judgment, or a Warrant of Execution against the goods, or a
Warrant of Commitment has been issued within a year from the time of obtaining such
Judgment,) or if more than a year has elapsed since an instalment has been paid, or
since the expiration of the Warrant against the goods, or of the last Warrant of Commitment ; but no notice to the Defendant, previous to applying for such leave shall be
necessary, and such leave shall be expressed on the Warrant under the Seal of the Court.
■m
■:
1
n
EXECUTION.
Rule 96th. Warrants of Execution shall bear date on the day on which they are
issued, and shall continue in force for three calendar months from such date, and no
longer.
Rule 97th. Where a Defendant has made default in payment of the whole amount
awarded by the Judgment, or of an instalment thereof, execution may issue against his
goods without leave of the Court, an(^ such execution shall be for the whole amount of
the Judgment and costs then remaining unsatisfied, unless in the case of instalments the
Judge otherwise direct at the time of giving Judgment.
Rule 98th.    The Registrar shall, on issuing a Warrant of Execution, indorse on such
Warrant the amount to be levied, distinguishing the amount of the debt or damages and
. costs adjudged to be paid, the amount of the fees for issuing the Warrant, and the Sheriff's
fees for its Execution, including mileage to the place in which the  Sheriff is directed to
take the goods, and no further mileage shall be taken by the Sheriff.
Rule 99th. Successive Warrants of Execution against the goods may be issued
without leave of the Court, and they may also be issued under the same circumstances
and on the same conditions as in the case of successive Summonses to appear to a plaint,
except that the fee for issuing such Warrants shall in all cases be paid, and such successive Warrants shall bear date of the day on which they are issued.    See Rule 27th. [59]
Rule 100th. Successive Warrants against the goods may be issued when only a part
of the Judgment is satisfied, on payment of fees proportioned to the amount of the Judgment remaining unsatisfied.
Rule 101st. Warrants of Execution against the goods may be issued concurrently
into one or more districts, provided that the costs of more than one Warrant shall not
be allowed against the other party, unless by order of the Judge.
SUMMONS FOR COMMITMENT.
Rule 102nd. Every Summons for a party to appear, pursuant to the 98th section of
the 9 and 10 Vict. C. 95, may issue at any time without leave of the Court, except in
cases provided for by Rule 95, and shall be forthwith issued by the Registrar to the
Sheriff, and shall be served personally not less than three clear days before the day on
which the party is required to appear to such Summons, unless it be proved on oath at
the hearing, to the satisfaction of the Judge, that such party was about to remove out of
the jurisdiction of the Court, or was keeping out of the way to avoid service, in which
case, service upon the party at any time before the time appointed for the appearance of
such party shall be sufficient.
Rule 103rd. Successive Summonses for Commitment may be issued without leave of
the Court, and they may also be issued under the same circumstances and on the same
conditions as in the case of successive Summonses to appear to a Plaint.    See Rule 27th.
If     I H   . COMMITMENT. .    §
Rule 104th. Warrants for Commitment, whenever issued, shall bear date on the day
in which the order for Commitment was made, and shall continue in force for three
calendar months from such date, and no longer; but no order for Commitment shall be
drawn up or served.
Rule 105th. In cases of Commitment under sections 99 or 101 of the 9 and 10 Vict.
C. 95, the amount of the Judgment, and all costs payable by the Defendant, shall be
indorsed on the Warrant, and the amount due to the Sheriff for execution shall be stated
separately.
Rule 106th. Where an order is made for Commitment for non-payment of money,
the Defendant may at any time before his body is delivered to the custody of the gaoler,
pay to the Sheriff the total amount indorsed on the Warrant, and on receiving such
amount, the Sheriff shall discharge the Defendaut out of custody, and shall within twenty-
four hours from receiving the same, pay over the amount of the Judgment and costs to
the Registrar.
Rule 107th. In all cases of Commitment for non-payment, it may be made part of the
order, that on production of the Registrar's Certificate, stating that payment or satisfaction of the sum and costs remaining due at the time of making the order for imprisonment,
together with the costs of obtaining such order and all subsequent costs has been made,
the Defendant shall be discharged.
Rule 108th. Successive Warrants of Commitment may, by leave of the Judge, (without issuing a fresh Summons when no previous Warrant has been executed) be issued
under the same circumstances, and on the same conditions as in the case of Summonses BB
Iwi
) i
[60]
to appear to a Plaint, except that tfye, fee for issuing such "^arrant shall in all cases be
paid, and such Successive Warrants sha^l bear date of the day on which leave was given.
Rule 109th. Warrants of Commitment may be issued concurrently against the same
party into the same or different districts; provided that the cost of more than one
Warrant shall not be allowed against the other party, unless by order of the Judge.
NEW TRIAL. |;
Rule 110th. An application for a New Trial, or to set aside proceedings, may be
made and determined on the day of hearing, if both parties are present, or may be made
at the first Court held next after the expiration of twelve clear days from such day of
hearing, and the party intending to make such application shall, seven clear days before
the holding of such Court, deliver a notice in writing signed by himself, his Solicitor or
Agent, stating the grounds of his intended application to the Registrar at his office, and
give a similar notice to the opposite party, by service of the same personally on such
party, or by leaving the same at his place of abode or business, and such notice shall not
operate as a stay of proceedings, unless the Judge shall otherwise order, and if money be
paid into Court under any execution or order in the suit, the Registrar shall retain the
same, to abide the event of the application aforesaid, and if no such application be made,
the money shall, if required, be paid oyer to the party in whose favor the order is made,
unless the Judge shall otherwise order, and if such application be not maple at the Court
mentioned in the notice, no subsequent application for a New Trial, or to set aside proceedings, shall be made, unless by leave of the Judge, and on such terms as he shall
think fit
Rule 111th. The fee payable for an application for a New Ttial, or to set aside proceedings, shall be paid by the party intending to make such, application, a$ the time of
giving notice of his intention so to apply.
Rule 112th. Where a New Trial is granted, the Judge may in his discretion make it
a condition of granting such New Trial, that it shall take place before a Jury, although
the former Trial did not takg place before a Jury.
Rule 113th. In all cases where security is required to be given in any proceeding in
the Court, whether under section 127 of 9 and 10 Vict. C. 95, or in any other case, such
security shall be at the expense of the party giving it.
1
INTERPLEADER.
Rule 114th. Where any claim is made to, or in respect of any goods or chattels
taken in execution under the process of the Court, or in respect of the proceeds or value
thereof, by any Landlord for rent, or by any person not being the party against whom
such process has issued, and Summonses have been issued on the application of the officer
charged with the execution of such process, such Summonses shall be served in such time
and mode as hereinbefore directed for a Summons to appear-to a Plaint, and the claimant
shall be deemed the Plaintiff, and the execution creditor the Defendant; and the claimant
shall, five clear days before the day on which the Summonses are returnable, deliver to
the said officer, or leave at the office of the Registrar of the Court, a particular of any
goods or chattels alleged to be the property of the claimant, and the grounds of his
claim, or in case of a claim for rent, of the amount thereof, and for what period, and in
respect of what premises, the same is claimed to he due, and the name  and  description ~-^-
[61]
and address of the claimant, shall be fully set forth in such particular, and any money
paid into Court, under the execution, shall be retained by the Registrar until the claim
shall have been adjudicated upon : provided that by consent an interpleader claim may
be tried, although the above rule has not been complied with.
Rule 115th. Interpleader Summonses may be issued by the Registrar, on the application of the Sheriff, without leave of the Court.
Rule 116th. Where the claim to any goods or chattels taken in execution, or' the
proceeds or value thereof shall be dismissed, the costs of the Sheriff shall be retained by
him out of the amount levied, unless the Judge shall otherwise order.
•  '  . ' i ABATEMENT.
Rule 117th. Where one or more of several Plaintiffs or Defendants dies before Judgment, the suit shall not abate, if the cause of action survive to or against such parties.
Rule 118th. Where one or more of several Plaintiffs or Defendants shall die after
Judgmeut, proceedings thereon may be taken by the Survivors or Survivor, or against
the Survivors or Survivor without leave of the Court.
Rule 119th. Where a married woman is sued as a feme sole, and she obtains Judgment on the ground of coverture, proceedings may be taken thereon in the name of the
wife at the instance of the husband without leave of the Court.
APPLICATIONS OR PROCEEDINGS IN THE NATURE OF A SCIRE
FACIAS.    g§"   :| |jg
Rule 120th. Execution on a Judgment shall not issue by or against any person not
a party to such suit, without a Plaint and Summons upon the Judgment, the proceedings
in which shall be the same, and shall be subject to the payment of the same fees as in
ordinary cases.
Rule 121st. Where a Judgment has been given for or against a person deceased,
his Executors or Administrators may, in the same manner, sue or be sued upon the
Judgment.
Rule 122nd. In all proceedings in the nature of a scire facias, a Jury may be summoned in the same manner and under the like restrictions as are provided by sections
70, 71, 72, and 73, of 9 and 10 Vict. C. 95. [For proceeding on Judgments for penalties
under the 8 and 9 Wm. III. C. 11., see Rule 20.]
PROCEEDINGS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
Rule 123rd. In actions by Executors or Administrators, if the Plaintiff fail, the costs
shall, unless the Court shall otherwise order, be awarded in favor of the Defendant, and
shall be levied de bonis propriis.
Rule 124th. Where an Executor or Administrator, Plaintiff or Defendant, shall not
appear on the day of hearing, the provisions of sections 79 and 80 of the 9 and 10 Vict.
J of
[62]
C. 95, shall apply respectively, subject to the Rules applicable to Executors or Administrators suing or being Sued.
Rule 125th. A party suing an Executor or Administrator, may charge in the Summons, in the form in the schedule, that the Defendant has assets, and has wasted them.
Rule 126th. In all cases, if the Court shall be of opinion that the Defendant has.
wasted the assets, the Judgment shall then be, that the debt or damage and costs shall be
levied de bonis testatoris, si, &c, et si non, de bonis propriis, and the non-payment of the.
amount of the demand, immediately on the Court finding such demand to be correct, and .
that the Defendant is chargeable in respect of assets, shall be conclusive evidence of
wasting to the amount with which he is so chargeable.
Rule 127th. When an Executor or Administrator denies his representative character,
or alleges a release to himself of the demand, whether he insists on any other ground of
defence or not, and the Judgment of the Court is in favor of the Plaintiff, it shall be that
the amount found to be due and costs shall be levied de bonis testatoris, si, &c, et si non,
de bonis propriis.
Rule 128th. Where an Executor or Administrator admits his representative character,
and only denies the demand, if the Plaintiff prove it, the Judgment shall be that the
demand and costs shall be levied de bonis testatoris, si, &c, et si non, as to the costs, de
bonis propriis.
Rule 129th. Where the Defendant admits his representative character, but denies
the demand, and alleges a total or partial administration of assets, and the Plaintiff proves
his demand, and the Defendant proves the administration alleged, the Judgment shall be,
to levy the^ costs of proving the demand de bonis testatoris, si, &c, et si non, de
bonis propriis : and as to the whole or residue of the demand, Judgment of assets, quando
acciderint, and the Plaintiff shall pay the Defendants costs of proving the administration
of assets.   pp
Rule 130th. Where the Defendant admits his representative character," but denies
the demand, and alleges a total or partial administration of assets, and the Plaintiff proves
his demand, but the Defendant does not prove the administration alleged, the Judgment
shall be to levy the amount of the demand, if such amount of assets is shown to have
come to the hands of the Defendant, or such amount as is shown to have come to them,
and costs, de bonis testatoris, si, &c, et si non, as to the costs, de bonis propriis, and as
to the residue of the demand, if any Judgment of assets, quando acciderint.
Rule 131st. Where a Defendant admits his representative character, and the Plaintiff's
demand, but alleges a total'or partial administration of the assets, and proves the administration alleged, the Judgment shall be for assets, quando acciderint, and the Plaintiff
shall pay the Defendant's costs of proving the administration of assets.
Rule 132nd. Where a Defendant admits his representative character, and the
Plaintiff's demand, but alleges a total or partial administration of the assets, but does not
prove the administration alleged, the Judgment shall be to levy the amount of the demand,
if so much assets is shown to have come to the. Defendant's hands, or so much as is
shown to have come to them, and costs, de bonis testatoris, si, &c, et si non, as to the
costs, de bonis propriis, and as to the residue of the demand, if any Judgment of assets,
quando acciderint. [63]
Rule 133rd. Where Judgment has been given against an Executor or Administrator,
that the amount be levied upon assets of the deceased, quando acciderintj the Plaintiff or
his personal representative may issue a Summons in the form in the schedule, and if
it shall appear that assets have come to the hands of the Executor, or Administrator,
since the Judgment, the Court may order that the debt, damages, and costs be levied de
bonis testatoris, si, &c, et si non, as to the costs, de bonis propriis : provided that it shall
be competent for the party applying to charge in the Summons that the Executor or
Administrator has wasted the assets of the testator or intestate, in the same manner as in
Rule 125, and the provisions of Rule 126 shall apply to such inquiry, and the Court
may, if it appears that the party charged has wasted the assets, direct a levy to be made
as to the debt and costs, de bonis testatoris, si, &c, et si non, de bonis propriis.
Rule 134th. Where a Defendant admits his representative character, and thr
Plaintiff's demand, and that he is chargeable with any sum in respect of assets, he
shall pay such sum into Court, subject to the rules relating to payment into Court in
other cases.
Rule 135th. In actions against Executors or Administrators for which provision is
not hereinbefore specially made, if the Defendant fails as to any of his defences, the
Judgment shall be for the Plaintiff as to his costs of disproving such defence, and such
costs shall be levied de bonis testatoris, si, &c, et si-non, de bonis.propriis.
NOTICES.
Rule 136th. Where by these Rules any party is required to give notice according
to a form, mentioned in the schedule, it shall be sufficient if the notice given complies
substantially with such form.
Rule 137th. In all cases where any notice or thing,is required by-these Rules to be
given or done within a period, of ..twenty-four liours, such period shall be understood. to
mean forty-eight hours, if any part of Sunday, Good Friday, or Christmas-day, or any day
appointed by Royal Proclamation for a public fast or thanksgiving, is included in such
twenty-four hours.. . -,v    I^-W-n    :..-       .-«..,.
|. 1,1'|p    ■■<!    STATUTE OF LIMITATIONS.      <."    ^^^'j   -
RUle 138til Successive Summonses may be issued without leave of the Court,for
the purpose of preventing the operation of any Statute, whereby the time for the coni-
mencement of any action is or may be limited, and such Summonses shall be in force;for
four calendar months from the time of issuing the same, including the day of such issuing;
and shall be issued before the expiration of the previous Summons,, and entered in the
Plaint-book of the Court: provided, that .on entering the Plaint, in the first instance,, the
usual fees shall bo paid, as if the Defendant resided within two miles of thejCourt; but
for every Successive Summons, no further fee^ shall be paid, nor shall it be necessary that
any attempt be made to serve such Summons, unless the Plaintiff requires the same, when
the proper Sheriff's fees for such service shall be. paid in addition to those already
received; and such successive Summonses, when so entered, shall be a continuance of the
action from and inclusive of the day on which the first Summons was issued.
^^     -lif:     ■-§     ARBITRATION.-   "•    - '
Rule 139th. Where a Plaint is entered, the Judge may, with tne consent of the
parties, make an order for a reference under the provision of section 77, of the 9 and 10
■»-"• p~
—
[64]
Vict. C. 95, without awaiting the return of the Summons, and all the provisions in the
said last mentioned act contained, and all Rules of practice of the Court, as to references,
shall apply to a reference proceeding under such an order; provided that the same fees
shall be paid as on the hearing of the Cause.
REPLEVIN.
Rule 140th. In actions of Replevin no other cause of action shall be joined in the
Summons.
Rule 141st. On entering a Plaint in Replevin, the Plaintiff must specify and describe,
in a statement of particulars, the cattle, or the several goods and chattels, taken under
the distress, arid of the taking of which he complains.
Rule 142nd. All actions of Replevin, in cases of distress for rent in arrear, or damage
faisant, shall be-tried in a summary way, as other actions in the Court, held under the
authority of the said Act, of the 9 and 10 Vict. C. 95, and the Judgment therein, in
ordinary cases, whether for Plaintiff or Defendant, shall be according to the forms in the
schedule.
Rule 143rd. Where the distress has been for rent, and the Defendant succeeds in
the action, if the Defendant require, the Judge shall, if the cause is tried without a Jury,
and the Jury shall, if the cause be tried with a Jury, find the value of the goods distrained, and if the value is less than the amount of rent in arrear, Judgment shall be
given for the amount of such value; but if the amount of the rent in arrear is less than
the value so found, Judgment shall be given for the amount of such rent, and may be
enforced in the same manner as any other Judgment of the Court.
o
Rule 144th. When the distress was for damage faisant, and the Defendant is entitled
to Judgment for a return, if the Plaintiff require, the Judge shall, if the cause is tried
without a Jury, and the Jury shall, if the cause is tried with a Jury, find the amount of
the damage sustained by the Defendant, and Judgment shall then be given in favor of
the Defendant in the alternative, for a return, or for the amount of the damage so found.
Rule 145th. Where either party is desirous of removing any Plaint in Replevin to
the Supreme Court, in pursuance of section 121, of the 9 and 10 Vict. C. 95, he shall, at
least five clear days before the return day of the Summons, deliver to the Registrar two
copies of a notice, signed by himself, his Solicitor or Agent, stating the ground of such
retnoval, together with the names of the two sureties, whom he proposes to become bound
with him, in the form in the schedule, and the Registrar shall forthwith transmit one of
the said copies, of the said notice, to the opposite party or parties, and unless such notice
is given, the party removing shall pay all the expenses to which the opposite party has
been put in consequence of sueh non-compliance with this rule, unless the Judge shall
otherwise order; and in case a reasonable time has not been allowed to enable the Registrar
to ascertain the sufficiency of the sureties, the cause shall be postponed at the expense of
the party seeking to remove, or upon such terms as the Judge shall think fit.
Rule 146th. The amount of the sum for which the security is taken shall, unless
the Judge shall otherwise order, be the same as that of the security given to the Sheriff,
and such security shall be given at the expense of the party seeking to remove.
ft [65]
RECOVERY OF TENEMENTS.
Rule 147th. All Plaints for the recovery of the possession of Tenements shall be
brought in accordance with the 122nd section of the 9 and 10 Vict C. 95.
Rule 148th. Warrants for giving possession of tenements shall bear date of the day
named by the Judge for the issuing thereof, and shall issue to the Sheriff, requiring and
authorising him to give possession of the premises, within a period therein named, which
shall be a period commencing with the date of such Warrant, and ending at a time not
less than seven or more than ten days from such date; and the Sheriff may execute such
Warrant forthwith on the receipt thereof, or any time during the period therein named.
Rule 149th. Upon application of a tenant, who seeks under section 126, of the 9
and 10 Vict. C. 95, to stay execution of a Warrant of possession by an action of trespass
in the Supreme Court, against the person suing out the Warrant, he must apply for that
purpose in person, or by his Solicitor or Agent, to the Court, and the Judge shall then
fix the sum for which security is to be given, and the names and description of the securities shall be given to the Registrar within such time as the Judge shall direct, and the
giving such security shall be at the expense of the party applying.
FORMS.
Rule 150th. In proceedings for which forms are not provided in the schedule the
Registrar of the Court shall use, as guides in framing the forms required, those which
are prescribed in the schedule.
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4 [73]
Scale of Fees in Proceedings in Plaints Con
tinned
r  * 43?   • h]
SPECIAL DEFENCE.
In all cases
£,  9
2
d.
PAYING MONEY INTO COURT.
On each payment not exceeding 10s.	
Exceeding 10s., on the amount paid in the pound   -   -   -
PAYING MONEY OUT OF COURT.
On each payment not exceeding 10s.	
Exceeding 10s. on the amount paid in the pound   -   -   -   -
Notice of payment into Court    >-----	
Taking recognizance bond or security for costs on amount claimed,
in the pound	
Inquiring into sufficiency of sureties on amount claimed, in the
pound      ----    	
I
1 i
1
1
2
2
7
10
by
Defendant.
Payable
by
Plaintiff.
I
ALLOWANCE TO WITNESSES.
Gentlemen, Merchants, Bankers, and Professional Men
Tradesmen, Auctioneers, Accountants, Clerks, and Yeomen
Journeymen, Laborers, and the like	
Traveling Expenses, per mile, one way     -	
0
8
4
6
3
4
2
6
J .
[74]
GENERAL DIRECTIONS.
In calculating the Poundage, all fractions of a Pound to be treated as an entire Pound.
Where the Plaintiff recovers less than the. amount of his claim, so as to reduce the
scale of costs, the Plaintiff to pay the difference.
The several Fees payable on proceedings in Replevin to be regulated on the foregoing
scale, by the amount distrained for. And on proceedings for the recovery of Tenements
by the yearly rent or value of the Tenements sought to be recovered, but in neither case
to exceed the Fees payable on a demand for £20.
In cases of Interpleader, Summons to Sheriff to be issued gratis : poundage for hearing
to be estimated on value of Goods claimed, which, in case of dispute, is to be assessed by
the Judge. The costs of the Summons estimated on the above-mentioned value, to be
included in the general costs, which may, in the discretion of the Judge, be awarded at
the hearing.
The Fee Book shall be audited at the expiry of each quarter of the year ending on the
last days of the months of March, June, September, and December.
And the Registrar shall divide the total sum received during the quarter as Judges
and Officers Fees into fortieth parts, and pay the same to the Officers of the Court, and
for the use of the Court in the following proportions, viz:
To the Judge,
■■       Registrar,
|      Clerk of the Writs,
|      Sheriff,
I      Court Fund.
nineteen-fortieth parts.
• ten I
five I " |
• two I 1
.    •   four          I
and Office Books, Stationery and other incidental
To provide for the costs of Cour
expenses of the Court.
The Sheriff's Fees for the Service of Summonses, Orders, Warrants, &c, may be pan
by the Registrar on the Sheriff's return of the service or otherwise, as may be just.   I itf d les x:
RtriiE   79—Abatement of Action,
Page     1—Act of Council,
Rule    8—Actions- Personal,
8      "
130—Administration,
135 «
It <t
It tt
136 "
130—Administrator,
82
«
ti
tt
131
tt
tt
tt
134
tt
137
tt
138
te
139
«
116-
-Affidavits
64
tt
106
tt
64
it-
134
66
119-
-Appeal*
120
121
o
tt
tt
122
.c
CC
tt
124
tt
tt
it
tt
tt
125
tt
123
tt
21-
-Appearance,
76-
-Arrest,
70-
-Assault and Battery
3-
-Attorneys,
4
it
5
cc
6
"
3, 4, 5, 6—Barristers,
66—Bill of Exceptions^
80—Cause of Action,
81 "
110—Cause,
No, by death of Plaintiff or Defendant.
How- commenced.
What deemed to be sued.
Letters of, Bonds iu cases of, form of No. 29.
Official, Public Notice of, to be given.
Notice to Creditors by Registrar.
Creditors of, how notified.
Costs and Charges of, by Registrar.
"       ''       "       "      whom allowed.
Debts of, how proved and paid.
Accounts of Registrar, money remaining to be paid in to Colonial Treasurer,
when.
Registrar, when to be.
Bonds of, when to be moderated.
Penalty, of Bonds of.
Number of sureties of Bonds of.
When to recover Judgment and Costs.
On Notice of suggestions of Death of Plaintiff.
Or Defendant, must plead to Summons.
Registrar, when to be, duty of, to file affidavits, &c.
When to file Inventory of estate of deceased.
When to verify final account and exhibit, when to be charged interest per annum.
Registrar Official as, account open to public inspection, where, how long.
Commission of Official.
Before whom made.
When deemed sufficient evidence of admission.
In support of motions, either party may make.
When deemed sufficient evidence of Notice and Service.
Of administrator to inventory of estate and effects of deceased persons.
What parties aggrieved may.
From, what Judgment, decree, or order.
To whom, parties may.
Within what.time taken.
In case Judgment, decree, &c., carried out, party Appellee shall give security in.
Power of Court in cases above.
Appellant in all cases of, to give security, what amount.
Prosecution of, by Appellant.
Petition for leave to.
Perfection of security-in cases of, within what time.
Copies of- how made up for transmission.
Copies of papers, in how certified.
Reasons of Judge in cases of.
Order of Privy Council in relation to cases of, how executed.
Interlocutory Judgment may, from.
Of Defendant when.
Party under writ of Execution, when entitled to discharge of.
Actions for.
Who may become so, and how.
Forms of No. 9, how referred to in document.
To survive to surviving Plaintiff or Defendant.
In, Death of either party to be suggested on the Record.
To proceed by Execution or Administration.
Entry of, by Registrar.
t
Bit* ri [ii.]
;v
Rule    82—Cause,
126—Caveat,
127
128
129
7—Complaint,
68—Copy,
34—Costs,
54
tt tt
142
136       *'
135—Creditors,
110—Days,
75—Death,
81
83
35—Deed,
46—Default,
47
48 "
49 "
55
50—Defence,
111—Defendant,
32
CC cc
37 "
41—Demurrer,
tt a
42 "
43
44
100—Distrained,
35—Document*
63 "
85—Ejectment,
87
88
89
90
91
92
93
94
CC
tt
tt
95
cc
C<
tt-
96
tt
Cft
66
97
tt
98
66
tt
CC
3-
-Enrolled,
110-
-Entry of Cause,
112-
-Equity,
it
cc
82—Execution,
77
cc
CC
cc
71
cc
72
cc
73
cc
Service to be made in, on Executor or Administrator.
Effect of in case of will.
How soon to be made.
In what case to be filed with Registrar.
Who by.
When deemed abandoned.
Summons to Administrator on filing.
Of what nature.
Of Summons filed on Judgment Role.
When to follow, finding on issue joined.
When Defendant entitled to.
Rule for, when obtained, peremptory order for.
Registrar to tax.
-Of Adminstration by Registrar.
Of deceased persons, how notified.
Entry of cause for trial to be made three clear days before first of Session.
Of Plaintiff or Defendant, not to abate actions.
Suggestion of Plaintiff or Defendant, verdict for or against persons making it.
Of party between Verdict and Judgment, not to be alleged for error.
When to be produced on trial, how to obtain inspection of, copy of, production of.
Effect of in cases of debt or liquidated demand.
Judgment on, where claim is not for debt or liquidated demand.
Judgment on, when necessary for Writ of inquiry, how served, No. of Jurors,
where tried, before whom, effect of.
Duty of Registrar, in making up Judgment by.
Efiect of when made by Plaintiff.
When notice of trial, to be furnished after.
Who is, in this rule.
When deemed in Court.
When may plead and demur.
In what action may pay money into Court.
When either party may object by.
Form of No. 5.
For formal matter only not allowed.
Judgment on final, when.
When strike out or amend by order of Court.
Goods and Chattels, how to recover.
When to be produced on trial, how to obtain inspection of, copy of, production of.
Notice to admit, or copy.
How commenced.
Writ of Summons in, how endorsed.
Form of Summons in, No. 12.
Venue, how laid in actions of.
Writ of, how served, on whom.
Defence to action in.
Form of No. 13.
If title of landlord be disputed, to be endorsed on Writ.
Form of Endorsement, No. 14.
Defence to action of, may be for part only.
Persons not named in Writ of Summons, allowed to defend when.
If no defence in action of, when Plaintiff may sign Judgment for Recovery.
Form of Judgment in No. 15.
For mesne rates and profits and costs, or part recovery, form of No. 16.
Memorandum of Judgment in.
Defence of, when filed, abstract of.
Form of, No. 17.
Issue in what to contain.
Proof of Title in.
Proof of service of Writ of Summons in.
Parties failing to appear in actions of.
Damages in Verdict in.
Verdict for Plaintiff in action of.
When Execution may issue in.
tt a a
Judgment in, several Writs may issue.
Death of party to, shall not abate suit.
Attorneys.
By Registrar.
Application for relief in.
Bill or petition in, how filed.
• When to recover Judgment and costs.
Writ of, in force, how long.
How renewed, by whose leave.
Party to be restored to all he may have lost by, when.
Issuing upon Judgment, entry of to be made in Judgment book by Registrar.
Party demanding must lodge Certificate, what to contain, what if fraudulent
or malicious.
Body of, what to contain.
Book of, what entries in. •*„
[iii.]
Rule    74—Execution, Party entitled to may levy poundage fees and expense of.
78 " Satisfaction of, Memorandum when to be entered, on what
141—Fees, Table of, to be kept in Registrar's office.
"        '* To be paid by Plaintiff in first instance.
"        " How recovered.
"        " Registrar to collect for Judge's use.
84—Feme Sole, Attorney of; how continued after Client's marriage.
" " Effect of marriage of.
117—Fines, When imposed.
"        " Summons to shew cause why, should not be levied.
"       «« Form of, No. 19.
"       " Recognizance in case of, how levied.
Page    25—Forms, Declarations, Writ of Summons.
26 " Memorandum, endorsement of particulars.
"        " Appearance and Defence, endorsement.
"         " Of particulars of payment.
27 " Demurrer to Plaint or Defence.
"        " Judgment by Default.
"        " Abstract.
28 " Bill of exceptions.
"        " Writ of Summons in Ejectment.
"        " Defence in Ejectment on the title.
29 " Defence in Ejectment for non-payment of rent.
"        " Judgment by default in Ejectment for all the Lands.
"         ,f " " " for part of Land.
30 " Abstract for Nisi Prius.
"        " Writ of Replevin.
"        " Summons to shew cause, &c.
31 " Writ to levy fine.
"        " Affidavits before granting Probate.
"        " "     of Executor or Administrator.
32 I Probate.
"        " Before grant of Administration with Will.
" « Letters " " "
33 I Oath " " without Will.
I         I Letters          "            " "
"        " Caveat.
34 " Administration Bond.
" " Affidavit of Registrar.
"         " Affidavit of Registrar of faithfulness and as Administrator.
Rule 100—Goods and Chattels, How to proceed when distrained.
140—Holidays, What days deemed.
113—Injunctions, Motions for.
114 " "       to dissolve.
115 " Affidavits in support of, or in opposition, when to be paid.
48—Inquiry, Writ of, when necessary.
134—Inventory, When Administrator to file.
27—Inspection of Premises or Chattels,   When.
65—Issues of Trial, When Defendant can settle.
50—Issues of Fact, When Plaintiff and Defendant fail to settle.
26—Items of Demands, Sett-off, or when to be more detailed.
67—Judgment, Not stayed by imperfection of Writ, pleadings, &c.
" " Minority no defence to Judgment had.
68 " Roll, how made up.
" " Summary of, to be signed by party or Solicitor and filed.
" " Roll what to consist of, how filed.
« «« Copy of Summary on, Role.
Award of general, as to debt and damage.
What to contain.
Satisfaction of, how entered.
Parties may appeal from.
Vacated by the Court, when.
Precept for, how issued.
" " When summoned, pannel of.
" " Duty of Sheriff to apply for precept.
"        " Pannel of to be kept, where for public.
«« •« Copy of pannel, how obtained.
59        «« Number of.
««        " Verdict of.
60—Jury, Special, to try what actions.
f*      " Notice for.
61      " Common to try when, notice given.
HI       " Address to, Plaintiff shall begin.
"       't Proof before,
tf        ft Proceeding of Counsel before.
«        " Summing up of Judge before.
58—Jurymen, Special.
85—Lands, Possession of, Recovery of.
84—Marriage, Actions not to abate by reason of.
67—Minority, No defence, when.
143—Minute Book, Registrar to keep.
'
69         "
72—Judgmi
snt Book,
73
tt
123            "
Interlocutory,
71           "
tt
57—Jurors, [iv.]
f
r
I
it;
I
Rule  143—Minute Book,
tt it <<
37—Money,
38
tt «
39 "
<c f<
40 "
113—Motion,
107
106        I
22—Mutual Debts,
103—New Trial,
105       "      I
71—-Non-Suit,
51—Notice of Trial,
50        | I
52        I
56
25—Notice of filing Defence,
60        *.'    for Special Jury,
63        "
10—Particulars,
8—Personal Actions,
81—Plaintiff,
111
45—Plea,
31—Pleadings,
28 I
111 I
85—Possession,
74—Poundage Fees,
144—Practice,
126—Probate of Will,
132—Property,
54—Proceed to Trial,
136—Public Notice,
117—Recognizance Forfeited.
49—Registrar,
2 I        Office,
143
101—Replevin,
102
29-
30
53-
104
78-
121-
110-
1
23-
118-
61—
64-
3, 4, 5, 6
60-
110-
1
70-
87-
71-
62-
-Replications,
tt
-Rule,
1    Nisi,
-Satisfaction,
-Security,
•Sessions of Supreme Court,
tf .( tt
■Set-Off,
-Show Cause,
tt tt
Sheriff,
•Solicitor,
11
-Special Jury,
-Supreme Court,
■Trespass,
-Venue,
-Verdict,
-Viewers,
126—Will,
127
Entries in.
Judge to sign, when.
In what case Defendant may pay into Court.
When paid to Registrar.
When to remain in Court.
"    paid to Registrar by Defendant.
"    accepted by Plaintiff.
Plaintiff dissatisfied, issue to be tried.
Notice of, when to be given.
Affidavit of, when to be filed.
Hearing of.
S before Court or Judge.
When founded on affidavit may be opposed.
"   Set-off, how pleaded.
How soon obtained after verdict.
When verdict against Evidence.
Execution to issue on, when.
Ten days to be given.
When Defendant to be furnished.
Countermand,' when may be given.
When given by Defendant.
How Served, and on whom.
See Jury.
To admit Documents, &c.
Of Plaintiff's demand to be endorsed on Writ, when.
How commenced.
Death of Sole, Action to proceed.
Who is in this rule.
In Abatement.
Forms of.
After defence what.
When fresh matter may appear.
Of Lands how recovered.
To correspond with Courts of Westminster.
Perishable, of Deceased persons, how dealt with.
When Plaintiff shall.
To Creditors, how given.
Duty of in marking Judgment by Default.
When and where open.
To keep Minute Book.
Form of Writ in No. 18.
Sheriff how to proceed in.
Bond to Sheriff in.
Writ of inquiry in.
Plaint for rent in Action of.
Judgment in, how levied.
Notice of, copy of, when filed.
What it shall state.
For not proceeding to trial.
How soon obtained after Verdict.
Memorandum of, when entered.
When Appellee to give.
Appellant to give in all cases.
"        "   "   what amount.
Cause to be tried in.
When.
When insisted on by Defendant.
Well to.
Affidavit in support of.
Notice to for special Jury.
Affidavits of, when deemed sufficient.
Who may become so, and how.
Entry of cause to be tried in Session of.
Terms of.
When Damages less than forty shillings.
How laid in ejectment.
Execution to issue on, when.
No. of, who to be, names where.
Returned, when called as Jurors.
Probate of.
Executor of.
■   Affidavit of Executor on Probate of.
Form of Affidavit No. 21.
Some person knowing Deceased, at time of to file Affidavit.
Probate of, how granted, Form No. 23.
Who may apply for Administration of.
Form'of Letters of Administration of.
IV   , M
Rule 128—Will,
48-
■W
rit of
Inc
niry,
19
'«
S
timmons,
20
t I
cc
21
cc
cc
24
cc
36
cc
9
CC
cc
10
cc
cc
11
cc
cc
12
cc
tt
13
cc
tt
14
€i
tt
15
tt
c-c
16
tt
cc
17
tt
tt
18
tt
tt
82
"
tt
62-
-V
iew,
Deceased leaving no, Administration how obtained.
Forms of Nos. 21, 24, 25, 26, 27.
When necessary.
Original or Duplicate where filed.
Neglect to file at Plaintiff's cost when.
When Defendant may file appearance thereto.
Time when Defendant to appear to.
Facts stated in, and not denied by Defence deemed admitted.
What to contain.
Particulars of Plaintiff's demand endorsed on when.
Name of Solicitor or Plaintiff to be endorsed.
Duplicates to be Sealed when.
How Plaintiff's claim stated on.
In force how long.
How Served and Endorsed.
When Service effected.
". "       through P. 0. or otherwise.
"   Affidavit necessary.
"   to be served on Executor.
"   necessary, how obtained. §
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1  >I PPLEJfENT TO THE GOVERNMENT GAZETTE
of 15th M;iv. 1860.
ORDER OF1 COURT.
•:ooo:-
IN   THE   SUPREME   COURT   OF   CIVIL  JUSTICE   OF   THE   COLONY   OF
VANCOUVER   ISLAND.
Tuesday, the third day of April, in the Twenty-third year of Her Majesty's Keign, A   D. 1-SGO.
WHEREAS by an order of the Queen's Most Excellent Majesty in Council, dated the fourth day
of April, a. d., 1856, Her Majesty was graciously pleased to constitute the Supreme Court of
Civil .Justice of Vancouver Island, and to order and declare that it shall and may be lawful for the
said Court, by any Bides, or Orders of Court to be from time to time made and published, to frame,
constitute, and establish such Rules, Orders and Regulations, as snail seem meet, touching and concerning all matters and things necessary for the proper conduct and dispatch of business in the said
Court, and all such Orders, "Rules and Regulations, from time to time, to revoke, alter, amend or
renew, as occasion may require.
And whereas, by the Rules made and published on the 12th day of February, a. d., 1857, no
provision was made touching and concerning the Fees to be lawfully demanded by and payable to
any Attorney, Solicitor or Proctor, for the conduct of business in the said Court, and it is now
desirable to provide for the same.
And whereas it is also expedient to reduce, alter, and amend the Schedule of Fees which was annexed
to the said Rules, and are now payable and taken by the Officers of the said Court, and to substitute other Fees in lieu thereof.
It is therefore ordered, in pursuance of the authority given by Her Majesty's Order in Council
as aforesaid:
1. That the Fees, Perquisites and Poundage, now payable to and taken by the Judge, Registrar,
and Sheriff of the said.Court, in relation to such proceedings as are set forth in the Schedule mentioned in Rule (141) one hundred and forty-one, of the Orders of the twelfth day of February, A.
L\, 1857, shall cease and be abolished.
2. The Fees specified in Schedule A, annexed hereto, shall be payable and taken by thegUegis-
trar, and by the Judge's Clerk, in relation to all Common Law proceedings as are therein jm-nfiojiinl
And the Fees specified in Schedules C and 6, hereunto annexed, shall be payable and taken iVjJtm?"
said Officers in relation to all Chancery proceedings, and in relation to all proceedings as to Pront^s
of Wills and Letters of Administration of the Estates of deceased persons, respectively, as are
therein mentioned and set forth.
3. And whereas it is expedient that the Judge, Registrar, and Clerk of the Writs, should not
retain such Fees for their own use, but in lien thereof receive such salary, as having regard to the *m
ure and duty of their office, His Excellency, the Governor, shall think just. It is therefore
dered, that all Fees received by Officers of the Court under the preceding Orders, shall be accounted for and paid by them respectively, once in every month, unto the Treasurer of the Colony, to be
by him placed to an account entitled the "Suitor's Fee Fund Account," which shall be chargeable
with the said salaries, and the other expenses of the Gourt j and the amount so received and paid
by such Officers, shall be verified by the affidavit of the accounting party.
4. Every Court Fee mentioned and set forth in the Schedules aforesaid, and which shall be payable on the issuing, entering, or filing of any document to be used in any proceeding in the said
Court, shall be endorsed in red ink, in words aVlength, on such document, with the amount paid
therefor, by the Officer receiving the Fee, and subscribed with the initial letters of his name. And
no document shall be received or filed, or be used in relation to any proceeding in the said Court,
or be of any validity for any purpose whatsoever, unless the amount of the Fee shall be so endorsed
thereon. Provided always, that if it should appear that any such document has been filed or received, through mistake or inadvertence, without such endorsation, the Judge may, if he think fit, on
being satisfied that the Fee has been paid, order the endorsement to be made thereon, and such
document, and every proceeding in reference thereto, shall be as valid and effectual as if such endorsement had been made in the first instance.
5. The Fees specified in Schedule E, hereunto annexed, shall be the Fees to be lawfully demanded
and taken by the Sheriff of Vancouver Island, and his Deputies, for executing and serving the
various Writs, Warrants, and Process of the said Court, as are therein set forth.
6. The Table of Fees, or Costs, specified in Schedule B, and annexed hereto, shall be the general
allowance for Plaintiffs and Defendants in Common Law Proceedings, as well between Attorney and
Client, as between party and party. And the Fees mentioned in Schedule D, annexed hereto, shall
be the Fees, or Costs, to be allowed between Solicitor and Client in Chancery proceedings, as. well
as between party and party. And the Fees set forth in Schedule F, annexed hereto, shall be the
costs and charges to be lawfully demanded and paid to Attornies in Summary Suits, as well between
party and party, as between Attorney and Client.
7. Where Judgment for default of a defence is signed in the manner mentioned in Rule (46)
forty-six of the aforesaid Orders of the twelfth day of February, A. D. 1857, the sum fixed for
costs by the Registrar shall be according to the scale in Schedule H, hereto annexed.
8. In order to diminish, as much as possible, the costs arising from the copying of documents to.
accompany the briefs of Counsel, the Registrar is to allow only the copying of such documents, or
such parts of documents, as he may consider necessary for the instruction of Counsel, or for use at
the trial.
9. The Registrar in all cases shall have discretion to allow, as between party and party, the
Fees of Counsel for drawing pleadings, or other proceedings, whether special or otherwise, and
advising.
towed on the taxation
10. When Judgment is signed on a Cognovit; or on the Judge's order
to sign Judgment: no declaration to ground Judgment shall be necessary, or al
of Costs.
11. The Costs of attendance by Counsel before the Judge at Chambers, shall in no case be
allowed as between party and party, unless the Judge shall certify for such allowance.
12. And whereas permission was granted by the (6) sixth Rule of the aforesaid Orders of the
twelfth day of February, A. D. 1857, to the Barristers of the Court to act as Solicitors, and the Solicitors of the Court to act as Barristers, so long only as there were not a sufficiency of Barristers and
| Solicitors competent and willing to act for the Suitors in these capacities. And whereas there is now
a sufficiency of Barristers and Solicitors entered and enrolled, and willing to act in these capacities
fojpxhe Suitors therein: It is further ordered, That so much of the said (6) sixth Rule as permits
Barristers to act as Solicitors, and Solicitors to act asJBarristers, shall be revoked and annulled.
13. These Orders shall take effect and be in force from and after
next ensuing.
the third day of July,
now
DAVID CAMERON, C. J. Schedule
\.
TABLE OF   COURT   FEES.
Payable at the office of the Registrar, and at the Judge's chambers in the Supreme Court of Civil
Justice, in Common Law proceedings; pursuant to the order of the third day ot April, A. I)., 1860.
PAYABLE AT THE OFFICE OF THE REGISTRAR
Every writ except writ of subpoena -  •
Every writ of Subpoena before the Judge or Registrar
Sealing of every writ or other proceeding not specially mentioned
Every appearance entered        - - -
Every appearance entered, and for each Defendant after tbe first
Filing every affidavit, writ or other proceeding
Amending every writ or other proceeding
Every ordinary Rule - ...
Every special rule not exceeding 6 folios
Every special rule exceeding 6 folios, per folio
Note.—Plans, Sections etc., accompanying Rules to be pa
party taking the Rule according to the actual cost.
for
bv the
Every rule, motion or demurrer, set down for hearing, to include the fee for hearing
If continued more than one day, for every other day ...
Every Judgment, by default ....
Every final Judgment, otherwise than Judgment by default
Taxing every bill of costs, not exceeding 3 folios
Taxing every bill of cost exceeding 3 folios when taxed as between party and party,
per folio ......
Taxing every bill of costs exceeding 3 folios when taxed, as between Attorney and
client, or, when the Attorney taxes his own bill, per folio - * - .
Every reference, inquiry, examination or other special matter referred to the Registrar]
for every meeting not exceeding one hour - - -
Every reference, inquiry, examination, or other special matter referred to the Registrar]
, for every meeting, every additional hour or less ...
Upon payment of money into Court, viz: For every sum under £50 -
£50 and under £100
£100 and abovo that sum
Every certificate of payment or default ....
Office-copies of precipe, or other proceedings, per folio
Every search, it not more than two terms ....
Every search exceeding two and not more than four terms
Every search exceeding four terms, or a general search      ...
j Every affidavit, affirmation etc., taken before the Registrar
Filing every recognisance, or security in ejectment or appeal
Every allowance and justification of bail ...
For taking special bail as a commissioner ....
Filing affidavit and enrolling articles previous to the admission of an Attorney
Every re-admission of an Attorney .....
u
10
16
) 16
10   5 £
s.
d.
1
17
6
l
11
o
l
5
0
0
16
8
0
8
4
0
16
8
0
8
4
0
4
<?
0
8
4
0
4
4
0
8
4
0
8 4
0
16 8
0
1 i
0
0 6}
0
1 i
0
2 1
1
0 10
IN NISI PRIUS.
Every record or abstract of record of Nisi Prius delivered to be entered for trial
Every trial of a cause from Plaintiff -
Every trial of a cause from Defendant -
If the trial continue more that one day, from the plaintiff and defendant each
Returning the postea   - - - - . ' .    ."
Every cause made remanet at the; instance of the parties, to be paid by Plaintiff or
defendant as the case may be - - - -
Every cause withdrawn, to be paid by the party at whose instance it is withdrawn
Re-entering every record ofNisi Prius made- remanet, etc.
Every reference from plaintiff and defendant, each
Every amendment of any proceeding whatever -
Every order or certificate -
Every special case, or special verdict, in addition to the charge for engrossing and
copying at the rate of 9d per folio, from plaintiff and defendant each -       0 16    8
USHER AND COURT KEEPER
For attendance in Court during argument of any rule or motion
I For attendance in Court on every trial at bar or Nisi Prius
On the taking, adding, or justifying of bail       -
On every oath or affidavit.sworn in Court before the Judge or Registrar
On every writ - - - -
On the signing of every final Judgment -
On the admission of every Attorney or Solicitor
PAYABLE AT THE CHAMBERS OF THE JUDGE.
Every Summons, whether in term or vacation ... 0
Every order of an ordinary nature   - - - - -       0
Every order of a special nature; such as reference to arbitration, or attendance of
witnesses at arbitration; service of process on person resident abroad; reference
to the Registrar to fix sums for final Judgment, revisal of Judgment and the like
Every fiat, warrant, certificate, caveat, or the like ...
Every affidavit, affirmation etc., whether in term or vacation,  each deponent
Every affidavit, kept for the purpose of being conveyed to the proper office to be filed 0
Every proceeding filed        .....
Every admission of an Attorney        ....
Every approbation of Commissioners for taking affidavit or special bail
Every commission for taking affidavits, or special bail, and sealing
Every other commission for any purpose whatever, and sealing-
Every acknowledgment by married women, and sealing       -
Every other acknowledgment and sealing ...
Office copies of Judges notes, or of any other proceeding whatever, per folio
Evesy recognisance or bond of any description whatever
Every petition of appeal - - . -
Bail in cepi corpus, habeas corpus, or ejectment      -
Delivering bail piece off the file, or justification of bail       ...
Every committal .....
Every exhibit signed by Judge      .....
Producing Judge's note        .....
Bill of exceptions signed.by Judge ....
Order in Crown Revenue cases, from defendant ...
Attendance by Council, each side- ....
Note.—All plans, sections etc., accompanying any order or office copy, to be paid for by the
party according to the actual cost. In cases where the party has been allowed to sue
in forma pauperis, the fees are not to be demanded or taken; nor in cases where such
fees would be payable by any revenue or other Government department.
0
7
6
0
7
6
0
1
7
0
1
7
0
3
2
o
o
0
0
0
o
o
10
1
11
0
0
16
o
o
0
16
8
0
16
8
0
0
9
0
16
8
0
8
4
0
3
10
0
o
o
10
0
7
6
0
1
7
0
7
6
0
7
6
0
7
6
0
7
6 t-*(
It
TABLE   OF   COSTS.
Being the general allowance for Plaintiffs and Defendants, as well between Attorney and
client) as between party and party, pursuant to the order of Court, dated the third
day of April, A. D. 1860.
ON   WRITS  OF
Summons and Plaint
Renewed Summons
Capias ad respondendum
Capias ad satisfaciendum
Renewed capias ad satisfaciendum ,
Capias ad satisfaciendum for the residue
Renewed
Fieri Facias
Renewed
Renewed for the residue
Renewed,
Habere facias, possessionem and fieri facias, or capiat
in one writ *%M
Habere facias possessionem alone.
Writ of Revivbr
Ejectment
Supcena ad testificandum
Subpoena duces tecum ;>*.£*
If above 4 folios, additional per folio
Elegit No. 9,10 and 11 »P> *!
«'       •     12,18 and 14
Attachments ^V^
Detainer \^
Habeas Corpus
Venditioni exponas
Supersedeas, if not issued by a prisoner
0 1
satisfaciendum, for costs
0
14
0
0
14
0
0
14
0
o
1 I
o
o
1 \
o
o
14
0
o
14
0
0
14
0
o
14
0
o
1 I
0
0
14
0
0
14
0
0
1 t
o
0
1 1
o
0
9
0
9
3
o
0
9
0
14
0
0
14
0
0
1 1
o
0
14
0
o
14
o
A
14
o
o
14
o
COPY AND SERVICE OF WRITS.
Of summons, the defendant being served in Victoria,'or within two miles of the place
of business of the Attorney, for each defendant ..
If beyond that distance, additional for every mile
Of writ of revivor, the same as summons, of writ of ejectment, the same as writ of
summons, for each defendant, mileage as above.
Notice of writ for service on a foreigner out of jurisdiction &$£*>;
Agents charges according to circumstances, etc. )4vj
In cases in which the defendant shall avoid service, and an order shall be made to proceed, a sum will be allowed for attendances to serve according to circumstances.
B OP
10
1 0
Of subpoena ad testificandum
Of subpoena duces tecum
Mileage as before.
0 10
0 12
o
6
.INSTRUCTIONS.
Instructions to sue or defend; for pleadings, special affidavits where allow
Counsel on special matters,
To Counsel in common matters,      .
For Brief, .....
(If difficult, and many witnesses or documents, discretionary.)
For every suggestion, .
For plea of suggestion, .
For issue in fact by consent,
For suggestion to revive, or writ of revivor, when no rule necessary,  .
For rule for writ of revivor, when necessary,
For proceeding in appeal, .
To defend for Executor, after suggestion of death of original defendant,
For agreement of damages,
For confession of action in ejectment, as to the whole or in part,
ed, and to
0
12
6
,
0
6
o
1
5
0
0
12
6
,
0
12
6
1
5
0
,
0
12
6
0
12
6
0
12
6
0
12
6
0
12
6
0
12
6
DRAWING PLEADINGS, &c.
Plaint or Declaration,       .....
If above ten folios, for every folio, .
One or more pleas, if three folios or under,  exclusive of instructions, but inclusive of
ingrossing, .
If above three folios, for every folio, drawing,
Joinder of issue, inclusive of ingrossing, ....
Demurrer, inclusive of ingrossing, ....
Joinder in demurrer, inclusive of ingrossing,    .
Marginal statement of matter of law for argument, exclusive of copies for the Judge,
Replications, new assignments, and other pleadings, the same as the foregoing charges
for pleas.
Issue or demurrer-book,       .....
Postea, when drawn by Attorney, including ingrossing, per folio,
Judgment, whether by default or final,   . .
Authority to receive monies out of Court,        ....
Suggestions, pleas to suggestions, and subsequent pleadings, of three folios or under
inclusive of ingrossment, . .
If above three folios, for every folio drawing,
Issue for the trial of facts by agreement, for every folio,    «
Special case, per folio, . . (pj
Agreement of damages and copy, if five folios or under,
Above five folios, for every folio drawing,
And copy, per folio,      ....
Drawing writ of inquiry,      • • . .
Special particulars of demand, or set off and copy, per folio,
Short ditto, and copy,
Abstract of pleas, when necessary, and fair copy, and copy for Judge
Bill of costs and copy for taxation, per folio,
Copy for the opposite party,
Drawing bill of costs and copy, per folio 8d., not to exceed
1
5
0
0
2
1
0
8
4
0
o
1
0
8
4
0
8
4
0
8
4
0
12
6
0
12
6
0
2
1
0
6
o
o
0
6
o
0
8
4
0
2
1
0
Q
1
0
2
1
0
12
6
0
1
0
0
8
0
6
3
0
1
0
0
10
5
0
10
5
0
1
0
0
0
8
0
8
4
mm Drawing and ingrossing common cognovit, and attendance thereon
If special and long, . . t ,
Replication, accepting money out of Court, in full of demand, inclusive of instructions,
INGROSSING AND COPYING.
Plaint or Declaration, above ten folios, per folio,
Other pleadings before enumerated, above three folios, per folio,
Issue pleadings, if fifteen folios or under, F* W
If above fifteen folios, per folio, ....
All proceedings on paper, per folio, '"•t^i win*
The like on parchment, per folio,     . 'lfcra x Ja i iir ate
Judgments for non-appearance on specially endorsed writs, or writs of revivor,
and in ejectment, to be taken as nine folios, including the writ.   The length of
interlocutory and final Judgments, will be allowed.
0
0
8
0
0
8
o
10
5
0
o
g
o
o
V
0
1
o
NOTICES.
To defend, and subsequent pleadings, copy and service. '
By defendant to bring issue to trial, copy and service,
For special Jury, to opposite Attorney, copy and service,   .
The like to Sheriff,
To executor or administrator of sole defendant deceased, to appear to w
suggestion, .....
To Sheriff, of renewal of execution, exclusive of any payment, .
Of appearance, when appearance duly entered, and notice given on the
appearance, but not otherwise, .
Of appearance to writ of revivor,   ....
To plead, ......
Of declaration when necessary, copy and service,
Of objection for misjoinder or nonjoinder of plaintiff, copy and service,
To a Sheriff to discharge a prisoner out of custody, copy and service, .
Notice in ejectment to defend for part of premises, and service, .
If above three folios, for every folio additional,
Notice of admission of right and denial of ouster, by a joint tenant, &c,
If above three folios, for every folio,
Discontinuance by claimant in ejectment, and service,
Of trial, inquiry, demand of residence of plaintiff, of authority for issuing wr
all other common notices, ....
Of confession of action of ejectment as to the whole or in part, and service,
To admit or produce, if short, ....
The like„if long, .....
If very long and special, a larger allowance may be made.   Additional alto
%
o
8 4
o
8 4
o
10 5
o
16 5
rit and
o
10 5
o
10 5
day of
0
8 4
,
0
10 5
0
8 4
0
10 6
0
8 4
0
10 5
0
12 6
»
0
2 1
o
12 6
o
0 8
0
10 5
{Lb,-and
o
8 4
,
1
6 16
o
14 7
1
6 16
wance
for mileage, as upon the service of a
wnt.
COPY AND SERVICE.
Of special and common rules,
Of special rule above three folios, per folio additional,
Of summons or order of Judge,
Of order to charge a prisoner in execution,
Mileago on services, as upon a writ of summons.
6 10
0 0
0 6
0 16 R   '
8
EJECTMENT.
Instructions to sue, and examining deeds,
If a question of title, . •
17   0
2   18
ATTENDANCE.
To give undertaking to appear,       .
To' search for appearance to writ of summons,
Two searches will be allowed, if necessarily made.
To obtain undertaking to appear to process,
Deponent to be sworn (where allowed) for rules where no attendance in Court j to
enter exception to bail;  to leave writ at Sheriff's office;  to obtain return to
writ; to alter or amend pleadings; to file any proceeding; to obtain office copies :
consent to any summons; for postea, (if necessary) j to set down case or demurrer;
to deliver points to Judge; on Judge with demurrer-book or special case; to
ascertain if books delivered; and other like attendances,
To set down cause for trial -
On each Counsel with brief at trial,   fee under 20 guineas;   summons before  a
Judge; and to pay money into Court        -
On Counsel with brief fee 20 guineas and above -
1 To- receive money out of Court       -----
Counsel with'brief on motion, if above one guinea fee
If one guinea only .      -
Consultation with Counsel.     -
Conference, with Counsel .....
■ Fee on every abstract of record ....
For common jury panel .....
For special jury panel .....
To obtain names of .viewers .....
To enter any suggestion on roll when necessary .      -
Attending Court cause, made a remanet
Attending for fresh pannel after remanet as before
-Attendances incidental to agreement of amount of
circumstances.
Attendance in pursuance of notice to admit       -
For every hour beyond one ....
Attending making admissions except under special circumstances
On reference to Registrar upon common matters, such as to compute upon a bill or
bond. - - - - '
-Special Matters -
For every hour after the first -
If Counsel in attendance, Attorney attending.. ...
Above one hour ---...
On trial or writ of inquiry in Victoria when cause in paper and not tried, per day
On trial ------
If occupied the whole day, inclusive of all matters transacted,
Court on motion, rule nisi granted -
The like, on rule absolute, after rule nisi -
j The like previous to argument, per day ...
The like in cases set down in the paper not oxceeding for a whole term
1 Attending taxation,on postea #       - - . .
Attending taxation, costs of cause, otherwise than on postea f        -
More according to time occupied
damages according
to the
0 10
0    6
0 10
0
6
o
0
12
6
0
12
6
1
5
0
1
0
10
0
12
6
0
6
o
O
1
5
o-
0
12
6
0
12
6
0
6
O
O
0
12
6
0
12
6
0
6
D
1
0
10
0
12
6
0
8
4
0
12
6
0
12
6
1
0
10
0
8
4
0
10
5
1
0
10
1
0
10
1
9
2
o
o
2
6
0
12
6
1
0
10
0
10
5
O
o
2
6
1
5
0
1
5
0 9
Attending taxation, costs ot cause, otherwise than on postea
Attending taxation, costs of Judgment only, and ordinary int
BRIEFS.
Brief and one fair copy not exceeding fox drawing, per folio
Copying, per folio - - ***
{)       II       s
'ERM FEES, LETTERS, ETC
Proper business
Letters, when no term fee, proper business
Letters, in interlocutory matters proper
Letters before action, and other letters
Circular letters after the first
1 6 10
0 6   3
6 4   2
6 6   8
0 3   1
AFFIDAVITS.
Drawing special affidavit, per folio -
.Ingrossing same, exclusive of affidavits of increase
Common affidavits of five folios or under, including ingrossing and oath
(Ills
0 12   6
SEARCHES.
All common searches, exclusive of payment,
If very long,
iii,:;
1   0 10
COUNSEL.
To attend reference to Registrar not exceeding; except on examination of witnesses,
WARRANT Otf ATTORNEY.
Costs of signing Judgment-on warrant of Attorney or cognovit,
DEFENDANTS.
Appearance,
: For each additional defendant inclusive of payment,
0 14   7
0   4   2
COUNSEL'S   CLERK'S FEES.
GGo   tu  UtJ UllUWCU   IU
Lull
k not to exceed as under:
Upon a fee under 5 guineas,
c ppr-
10
5 .guineas, and under  10 guineas,
10       " "       "       20       H
20       " "       "       30       "
30       " «       "       50       "
50 guineas and upwards
0   5   3
0 10   5
0 16   8
1 0 10
2 10   0
ON CONSULTATION.
Senior's Clerk,
Junior's Clerk,
On general retainer,
On conference,
On common retainer
0   8
4
0   3
1
0 10
5
0   5
o
o
0   3
1
ALLOWANCE TO WITNESSES.
Common witnesses, such as laborers, journeymen, etc., per diem
Auctioneers and accountants, per diem,
Master tradesmen, yeomen and farmers, per diem,
Professional men, per diem, ' .
Ditto inclusive of all except travelling expenses, per diem,
Attorney's or other Clerks, per diem,
Engineers and Surveyors, per diem,
Notaries, per diem, ....
Gentlemen, Esquires, Bankers, Merchants, with subpoena, but no daily
allowance except after the first day, and then a reasonable sum for
refreshments and conveyance, per diem,
Females according to station in life, per diem, from
Police Inspectors, per diem, ,
Police Constables,
If the witnesses attend in one cause only, they will be entitled to the
full allowance.
If present
in
If resident
the Town
at a distance
in which
from the
the cause
is
place of trial.
tried.
(0   8   4
]      to
(0 12   6
0    8
4
("0 16
8
0 16    8
■<      to
to
(1    5
0
15    0
f 0 16
8
1   0 10
]    to
to
(.1   0
10
15   0
1 13
4
1 13   4
f 0    0
0
2    18
to
(o  0
0
4   3   4
(1    0 10
]     to
.(l    5    0
0 16
8
2   1   8
to
(4    3   4
1 13
4
1 13
4
1 13   4
1    5
0
15   0
(0   8
4
0 12   6
]      to
to
(0 18
9
1    0 10
("0 12    6
]     to
(l    0 10
0 12
6
f 0 10    5
to
0   6
o
o
(0 12   6 11
If they attend in more than one cause, they will be entitled to a proportionate part in each cause only.
The travelling expenses of witnesses^to be allowed according to the
sums reasonably and actually paid, but in no case to exceed Is. Od.
per mile, one way.
MISt5ELllANEblJS.
Close copy of proceedings in agency cases 8d. per folio according to actual
length.   For maps or plans When used from£1. 13s. 4., to J£5. 0. 0.,
When necessary other allowances will be made for any proceedings
not hereintofore mentioned, and conforming as nearly as possible
to the scale of fees now published. n
Schedule   O.
TABLE   OF   COURT   FEES.
In Chancery proceedings, payable, at the office Qfothe Registrar, and at'the Judge's Chambers of the1
Supreme Court of Civil Justice, pursuant-to the order of the third day of April, A. D. 1860.
PAYABLE   AT   THE JUDGE'S CHAMBER^
For
For
For
For
For
For
For
For
For
every original summons, for the purpose *Df proceedings originating in chambers
every duplicate thereof, .
every other summons, .....
every order drawn up by the Chief Clerk made upon application for time to plead,
answer or demur, for leave to amend bills or claims, or for enlarging publication, or
the period for closing evidence, ....
every other order drawn up by the Chief Clerk,
every advertisement, .....
every certificate or report, .....
every certificate upon the passing of a receiver or consignee's account, a further
fee in receipt of each £100 received of, .
every oath, affirmation, or declaration,
0 7 6
0 7 6
0   4   2
0   7   6
19   2
19   2
^92
0 16   8
0   17
PAYABLE AT THE OFFICE OF THE REGISTRAR:
For
For
For
For
For
For
For
For
For
For
For
For
For
tions,  or
every warrant or summons, -
every certificate or report^   -----
every certificate upon the passing of a receiver or consignee's account, a further
fee in respect of each £100 received, of -
every decree or decretal order made by the Court on a special case, or on the original hearing of a cause, or on motion for a decree,  and on further direc
further consideration not made on summons adjourned from Chambers,
every order, or petition, or motion of course,   -
every other order, -
every office copy of a Degree or order,
every reference, as in the common law side,
setting down every cause for hearing,    -
setting down every cause, or further directions,
setting down every claim for hearing,    -
setting down every set ef exceptions, ...
setting down every plea or demurrer,    -
Note.—The above fees are to include the charge for entry.
0   4   2
19   2
0 16   8
4 10 0
0 7 6
19 2
19 2
1 0 10
0 12 6
0 12 6
0 10 5
0 10 5
ON EXAMINATIONS.
For filing interrogatories,   -
For every witness sworn and examined, including oath, for each hour
For every witness sworn and examined away from the office, (besides reasonable expenses )
0 10
5
0    7
6
2    1
8 13
ii more titan nve mil
>tn the oflice, for the ft
For every other day, -
Upon every application to search book for causes, including search,
Upon every application to inspect depositions, including the inspection,
Upon every application to search book for depositions, including search,
1
8
o
TO RECORD AND WRIT CLERK!
For making all office and other copies, per folio, ...
For filing every bill or information,      .....
For filing every claim, .....
For filing every special case, .....
Upon entering every appearance, if not more than three defendants,
For entering appearance to Judge's summons, same charge as for appearing to a bill
i or claim.
If more than three and not exceeding six defendants, ...
And the same proportion for every like number of defendants.
For oven* certificate, ......
For making every copy of a bill, claim or summons, to be served,
For every writ of summons, subpoena or attachment, and sealing,
For sealing every other writ,       .....
For every oath, affirmation, or declaration, ....
For filing and entering duplicate of Judge's summons,   -
For stamping every copy thereof, ....
For examining every copy, or part of a copy, of a set of interrogatories, and marking same
as an office copy, ......
Upon every application for a search for a record, and for searching, -
Upon every application to inspect a record, and for inspecting the same,
Upon every application to inspect exhibits, if occupied not more than one hour,
If more than one hour, per diem, .....
Upon every application for the officer's attendance in a Court of Law, per diem, and for
his attendance, ......
Upon every application for the officer's attendance in a Court  of Equity, and for his
attendance, ......
For examining and signing inrollment of decrees and orders,
For filing caveat against claim to revive, or against decree, or order, or inrollment,
For filing supplemental statement, or statement for revivor,
For filing every affidavit, including schedules and exhibits,       . . -
For every application to inspect an affidavit, ...
For amending every record of a bill, claim, or special case,       ...
0 0
1 9
0 7
1 9
0 10
1 0 10
0 6 8
0 7 6
0 7 6
16 2
0 1 7
6 4 2
0 7 6
0 7 6
6 8 2
0 7 6
0 7 6
0 16 8
6 16
4 16
6 7
6 16
6 8
6 6
6 16
0
6
3
16
6
8
TAXING MASTER.
For every warrant or summons, but not more than one warrant or summons, is to be
issued on one bill, or set of bills, unless the Taxing Master shall think it necessary
to issue a new warrant or summons, ....
On signing every report and certificate,      s«8ft,
Upon the taxation of every bill of costs, as taxed, where the amount shall not exceed
£26, 5 per cent, on amount. WM
Upon every additional £20, or fractional part thereof, a further fee of 2J per cent, on
amount.
Upon every oath or affirmation, .....
D
0   4   2
19   2 14
MISCELLANEOUS.
On every petition set down for hearing, to include the fee on hearing,
On the petition for every order of course,
On the admission of every Solicitor,
19 2
0 7 6
3    0    0
USHER AND COURT EMPER.
For every cause heard on each side.
In every further directions     do
In every exception each set,
Every plea, demurrer, or rehearing one side,
Every Guardian assigned,
On Betting down every petition,
Every witness examined viva voce,
Setting down causes to be heard,
Setting down claims to be heard,
Every prisoner by Habeas Corpus,
0
12
6
0
12
6
0
12
6
0
12
6
0
12
6
0
O
O
1
0
1
Of
is      °
16
8
0
8
4
0
4
2 15
Schedule   13.
Schedule of Fees and Charges to be allowed to solicitors in Chancery Proceedings pursuant to the
order of the third day of April, A. D. 1860.
INSTRUCTIONS.
special cases, answers, exa
parties or witnesses
For claims, original  summons in chamber
demurrers, pleas and exceptions,
For Bills,
For amended, or supplemental bill,
For brief in moving for injunction,
For interrogations for examination of
For special petitions.
For special affidavits,
For brief in a suit by bill, on cause coming on for hearing, to be charged on
notice of motion for a decree, or on service of subpoena to hear judgment,
For brief on claim to include all observations,
For brief on claim to move for leave to file,
To defend proceedings commenced by bill, claim special case, petition, or ori
mons, .....
For instructions for order to revive or add parties,
mi nations,
i
5
0
ft
i
5
11
0
i
13
4
i
0
10
i
0
10
0
12
6
service of
i)
1
8
.
1
13
1
o
}-2
6
filial sum-
1
o
10
■
1
0
10
THE PREPARATION OF PLEADINGS AND OTHER DOCUMENTS.
(The Chancery Folio to be 72 words, and the Sheet 10 folios.)
For drawing bills, special cases, answers, pleas, demurrers, exceptions, interrogatories,
petitions and affidavits, per folio, ....
For ingrossing on parchment, per folio, ....
For ingrossing on paper, per folio, .....
For drawing statements and other documents, for the Judges' or Registrars' Chambers
when required, including the fair copy thereof to leave in chambers,
For fair copy thereof, to be left in Chambers, ....
For drawing all advertisements, to be signed by the Registrar or Judge's Clerk, including the attendance thereon, .....
For drawing caveat against signing or inrolling any decree or order,
For drawing special notice of motion,   .....
Or, per folio, ......
For drawing a claim, - i .
For drawing such observations for counsel, to accompany brief, (except on claims,) as
as may be necessary and proper, per sheet, .
For drawing the brief on further consideration, per sheet,
For preparing and filing replication,      . . . . .
For drawing statements on which counsel to move for order to revive or add parties,
and copy, • .
Or, according to circumstances, at per sheet, ,
For drawing petition to revive, at per folio,
For drawing and copying certificate to appoint Guardians, " ad litem,"
0 2   1
0 10
0 0   6
0 14
0 0   6
1 0 10
0 4 2
0 8 4
0 2   1
6
12
6
1
o
16
1
0
10
0
0
o
12
12
6
1
A 1G
For amending each copy of a bill, or claim, to serve,
For amending each brief, bill or claim,
For preparing an original
summons
for the purpose of proceedings originating in
Chambers,
For indorsing an original summons and the copies, and attending to get same sealed,  . %
For preparing every other summons, and attending to get same filled up and sealed at
Chambers, ■
If special, not to exceed, . • • • ,.
For drawiiig bills of costs, including the copy for the Registrar s Office, per folio, .
The fee for drawing a document in all cases, includes a copy if required, for the use of
the solicitor or client, or for the settlement of counsel.
1 0
10
1 0
10
1 13
-i
0 12
6
0 12
6
1 13
4
0 1
4|
11
-
FOR PERUSALS.
Perusals of all documents to be at the rate of, per folio, '
COPIES.
*
Copies of all documents are to be at the rate of, per folio,
Or per sheet, of ten folios at,       .
Having regard to the preceeding fees for perusal, no  copies  are to be allowed as of
course, but the allowance is to depend on the propriety of making the copy, which
" in each case is to be shewn and considered.
For each copy of a Judge's Summons to leave in chambers or to serve,
For each copy of a notice of motion, order or certificate to serve,
Or at per folio, ......
ATTENDANCES.
For attending on the Registrar's warrant,
Or according to circumstances not to exceed, per diem,
For attending each counsel with his brief, case or abstract, in a suit or other proc
ings in Court,
For the like when the fee amounts to five guineas and upwards,
When it amounts to 20 guineas and upwards,
When it amounts to 40'guineas or upwards,
For attending to present special petition, and for same answered,
For attending to present petition for order of course, and for order,
For attendance on counsel and Court on motion of course, and for order
For attending on the day in which a cause or petition stands on the paper for hearing
For attending when heard,
Or according to circumstances, not to exceed, per diem, .
For attending the Court on every special motion, each day
The like when heard,
Or according to circumstances, not to exceed,
For attending on  motion for or to discharge order for In
heard, per diem, . . ;
Or according to circumstances, not to exceed
For attending to get answer, or special affidavit, sworn,
For attending Examiner to procure appointment to examine witnesses
For: attending the examination of witnesses before Examiner
eed-
ijunction,  or Ne
Or according to circumstances, not to exceed, per diem
But if without Counsel, the fee may at the Registrar's'discreti
Exeat, when
tion, be increased to
0    0   4
0    0 6i
0    5
4
0 4 2
0 2 1
0    0 6}
0
10
5
o
2
6
0
12
6
1
5
0
1
13
4
o
o
2
6
0
12
6
1
5
0
1
5
0
0
16
8
1
13
4
o
2
6
0
16
8
1
5
0
9
1
8
1
9
9
o
2
6
0
12
0
0
12
6
1
0
10
tS*
9
6
4
o
o
4 For attending to settle, and afterwards to read over, tho ingrossment of an answer or
examination, ......
If tho same exceed 20 folios, and under 50 folios,
And for each additional 80 folios, .
For attending to insert an advertisement in " Gazette/*
For entering caveat with the Clerks of Records and Writs,
For attending to procure certificate of a caveat,
For attending Registrar to certify abatement or settlement of suit, and to have same
so marked in the cause book, -       .
For attending to get copies of bill, claim, or interrogatories, marked for service,
For attending to take instructions to appear, and to enter the appearance of one or
more defendants, not'exceeding three, ....
If exceeding three, for every additional number not exceeding three,
For attending at Chambers to get original summons and duplicate examined, sealed,
For attending at the Record and Writ office to file duplicate and examine copies, and
get same stamped,        .
For attending on a summons or other appointment, each day a fee of 12s. 6d., £1. Os. 10d.,
or £2. Is. 8d., according to circumstances, each attendance to be allowed by the
Judge or his Chief Clerk.
1 18
0 12
0 12
6 12
4
6
C
6
0 12 6
0 12 6
0 12 6
0 12 6
6 12 6
6 12 6
Note.—Whan from the length of the attendance, or from the difficulty of the case,
the Judge shall think the highest of the above Fees are insufficient remuneration for the services performed, or when the preparation of- the case to lay it
before the Jndge shall have required skill and labor, for which, no fee has been
allowed, the Judge may allow such further fee, not exceeding Twelve
Pounds Ten Shillings, as in his discretion he may think fit.
For attending for every order drawn up by the Chief Clerk, and at the Registrar's
Office to get same entered, . . • . .
For the plaintiff or party having the conduct of the order, attending the Registrar
with brief and papers to bespeak minutes or order, not being an order of course,
For the ditto for preparing list of evidence read (but only when required by the Registrar
and certified by him)     ......
Or according to length, at per folio, ....
-Attending to settle the draft or minutes of any decree or order,
Or, at the taxing master's discretion not to exceed,
Attending to pass any decree or order not being an order of course, including the entry
thereof, ......
N. B.—The Registrar will leave the order for entry. In case the Registrar shall
certify that a special allowance ought to be made in respect of any unusual
difficulty in settling and passing an order, the Taxing Master is to consider
the same, and make such allowance to all or any of the parties, as to him shall
seem just.
o
12    <)
0
12   6
o
12   6
o
1 6*
1
0 10
Q
2   6
1   0 10
For attending to procure certificate of pleadings,
For attending to give consent to take answer without oath, to hear cause as short, and
for other necessary or proper consents of a like nature,
For attending to procure such consents,        ....
For attending to obtain consent of next friend to sue in his name,
For procuring certificate of counsel to mark cause short, and attending Registrar thereon
For attendance in consultation or in conference with counsel,
For attending to set down cause or claim for hearing,
For attending to leave papers with Judge's Clerk, prior to hearing,
For attending Court on appointment of a guardian ad litem,
B
0 12 0
0 12 6
0 12 6
1 0 10
0 12 6
15 0
0 12 8
0 12 G
15 0 18
WRITS.
For every writ of Subpoena duces tecum, . • ■ •
For a writ or writs of subpoena, other than subpoena duces tecum if the number of
names therein shall not exceed three,
If exceeding three names, for every additional number not exeeeding three,
For preparing every other writ without order,        .
For every writ under order except special injunction,
For special injunction including ingrossnient and docket,
Or, per folio, . . • • • •
For inrolling a decree or order, . . . •
Or, per folio, ....••
0    8   4
0
8
4
0
8
4
0
12
6
1
5
0
2
1
8
0
2
1
1
9
2
0
2
1
NOTICES AND SERVICES.
For service of a notice of motion exclusive of copy,
For notice to a solicitor of appearance, answer, demurrer, plea, amendment, and replication, ......
For notice of evidence to be read in Judge's Chambers, . *
For notice of filing affidavit_or set-of affidavits filed, or which ought properly to have
been filed together to be read in Court,
For notice of appointment for settling and passing minutes,  decrees or orders,  before
the Registrar, ......
For copy and service of a warrant on a Solicitor,
For service of Judge's summons, exclusive of the copy,
For service of a petition, .....
For service of an order, exclusive of the copy,        ....
For other necessary or proper notices,
For service on a party, or witness, such reasonable charges and expenses as may be
properly incurred, according to the distance, or by the employment of an agent.
There is to be one notice only of settling minutes, and one notice of passing decree
or order, which, if necessary, are to be continued by adjournment, of which all
parties are to take notice.
TERM FEE.
0 4 2
0 4 2
0 4 2
0 4 2
0
4
2
0
4
2
0
4
2
0
4
2
0
4
2
0
4
2
For a term fee in all causes, for every term in which a proceeding by the party shall take
place, ••.....
And for letters, per term, .....
And if it be shewn to the satisfaction of the Taxing Master,  that there has been an
agency correspondence, and that the agency has been special and extensive, he is
to be at liberty to make a special allowance in respect thereof.
In addition to the term fee, the necessary expenses of the postage, carriage, and transmission of documents, is to be allowed.
The like term fee, and for letters in matters as in cases.
Where no proceeding'is taken which carries a term fee, a charge for letters may be
allowed, if the circumstances shall require it.
For any work or labor properly performed, and not herein provided for, such allowances are to be made as may be reasonable.
1   0 -10
0 10   5 19
idieclnle   E,
TABLE OF FEES
To be taken by the Sheriff, Sheriff's Deputies, Bailiffs and others, tho officers of the
Sheriff of Vancouver Island, pursuant to the Order of the third day of April, a. d.,
1860.
For every warrant which shall be granted by the Sheriff to his officers, upon any
or process in Victoria, .....
In all other Districts, where the most distant part of the District shall not exceed
miles from Victoria, .....
Not exceeding 200 miles,      .....
Exceeding 200 miles, . . h v<f:
For an arrest in Victoria, and not exceeding a mile from the Sheriff's office,
Not exceeding seven miles from same place, . mfti
In other districts, not exceeding a mile from officer's residence,
Not exceeding seven miles, . . ;.'-rg 'yi. a
Exceeding seven miles,        .....
For conveying the Defendant to Gaol, from the place of arrest, per mile,
For an undertaking to give a bail-bond,
For a bail-bond, or deposit in lieu of bail, one per cent, on amount of sum indorse
writ,
For receiving money under the statute upon deposit for arrest, and paying the i
into Court, if in Victoria, ....
If in any other District, .....
writ
o
4
o
166
Q
v
o
12
0
o
14
*?
o
1
16
1 Q
A
1
0
JLo
16
4
S
1
13
4
2
1
g
o
1
7
a oi
iam<
FOR FILING THE BAIL BOND.
If the arrest be made in Victoria,
If in any other District,
ASSIGNMENT OF BAIL OR OTHER BOND.
If in Victoria,
If in any other District, including postage,
For the return of any writ of Habeas Corpus,
And for each action after the first,
For the bailiff to conduct prisoner to gaol, per
And travelling expenses, per mile,
if one action,
6 8 4
6 12 0
6 16   8
0    4'
To the bailiffs
BAILIFFS EXECUTING WARRANTS, &c.
executing warrants of Fi. Fa.;   Ca. Sa.;  Ne Exeat; Attachment; 20
Elegit; Writ of possession; Forfeited recognizance; and other like matters,for each,
if the distance from the Sheriff's office or the bailiff's residence, do not exceed five
miles, ...••■•
If beyond that distance, per mile, ,
For each man left in possession, when absolutely necessary, if boarded, per diem, v     .
If not boarded, per diem, •
For every sale by auction, notwithstanding the  defendant should become insolvent,
where the property sold does not produce more than £300, 5 per cent; £400.  4, per
cent.; £500, 3 per cent.; and where it exceeds £500, 2i per cent.
Bond of indemnity, ...•<•
Certificate of execution having issued, for record,
1 13 4
0 10
0 6 3
0 10    5
2    18
0    8    4
ON WRITS  OF INQUIRY.
Sheriffs fee for presiding     ......
Bailiff for summoning jury and attendance in court,
And if not held at the office of the Sheriff, for hire of room if actually paid, not exceeding
For travelling expenses of Sheriff from his office to place where inquisition held, per mile,
To Bailiff from his residence, per mile, ....
The travelling expenses of the Sheriff from his office, and of the Bailiff from Ms residence, to the place "^jhere the inquisition is held, are to be apportioned rateably to
the parties, if more than one inquisition is to be held at the same time and place.
When there, are several defendants in a writ of capias, and warrants are issued thereon
by the Sheriff against more than one defendant, no more shall be charged in any
case for. each warrant after the.first than four shillings and two pence.
1
9
2
0
8
4
1
0
10
0
1
7
0
1
0
ON WRITS OF ELEGIT AND OTHERS OF THE LIKE NATURE.
For summoning the Jury, use of Room, presiding at the inquisition, etc.,
Jury, - -
For drawing and ingrossing the inquisition, per folio,
For a summons for the attendance of a witness,-
3   2 6
0 12 0
0    2 1
0    8 4
IN REPLEVIN.
Bond to Sheriff, - . . . . -150
Instead of the allowance of the fees upon the same scale as the bail bond, the fee of one
pound five shillings only is allowed whatever be the amount.
Precept to Bailiff ---...
Notice for service on defendant. -
Broker, when the sum demanded and due shall exceed £20, and shall not exceed £50
for appraisement and affidavit of value    -
Whore it shall exceed £50, -
And his travelling expenses from his residence to theplace where the goods are, per mile,
Bailiff for summoning parties and delivering goods Replevied, - -
And his travelling expenses same as broker, per mile,
For writ retorno habendo, .....
IN SCIRE FACIAS, SERVICE OF CAPIAS, SUPERSEDEAS, RETURN OF WRITS,
For each summons on a writ of sci fa, or for the service of writs of capias where no arrest        0
0
4
2
0
4
2
0
16
8
1
13
4
0
1
0
1
13
4
0
1
0
0
8
4
s,
&c.
0
8
4 21
And mileage,     --.-..
For any supersedeas, order   liberati, or discharge to any writ, or process, or f<
release of any defendant in custody, or for goods taken in execution,
For tli e return of any writ or process, and filing the same exclusive of the fee paid on
6   1
JURY
For panel of common and special Jurors,
For summoning common Jurors,
For summoning special Jurors,
Within two miles of Victoria,
Mileage beyond that distance one way, per mile,
Sheriff attending in Court when required,'
6   16
13   -I
ATTENDING A VIEW.
For travelling expenses to the Sheriff, showers and jurymen expenses actually paid if
reasonable.
Foe to tiie Sheriff when the distance does not exceed five miles from his office, -       19   2
When such distance exceeds five miles, - - - 2   18
And in case he shall be nccessarially absent more than one day, then for each day after
the first, a further fee of 19   2
Fee to each of the showers, the same as. the. Sheriff, calculating the distance from their
respective places of abode.
Fee to each common Juryman, per diem, - - - -       6   8   4
Fee-to each special Juryman, per diem, a - - - 1   0 10
Allowance for refreshment to the Sheriff,: she were and Jurymen, whether common or
special, per diem, - - - - - 084
To the bailiff for summoning each Jurymen whose residence is not more than five miles
distant from the office of the Sheriff, - - - -       0   4   2
And to each .whose residence does exceed five miles of such distance, - 0   8   4
For aoy  duty not herein provided for, such sums as the Registrar of the
Court may upon special application allow. m
22;
Schedule  F.
A Scale of Costs and Charges to be paid to Attornies in summary suits as well between
party and party, as between Attorney and client, pursuant to the order of the
third day of April, A. D., 1860.
Letter before suit, ------
Instructions to sue or defend,        - - - ■ "
Attendance and entering Plaint, including particulars of demand  and  copies,  such
particulars and copies being signed by the Attorney,
N. B.—The total amount of these items to be entered on the summons.
Examining and taking minutes of the evidence of each witness, if afterwards allowed
by the Judge ------
Attending Court and conducting cause where no Counsel employed,
Witnesses expenses in conformity with rule.
Attending taxing costs, - i$$®
0    4    2
0    8    4
0 16    8
0   4    2
2   18
t)    4    2
f
OCCASIONAL  COSTS.
If plaintiff abandon action, and give notice thereof, attending sitting,
Notice to produce, notice to admit, notice for application for a new trial, or to set aside
proceedings, including copies and duplicates, original and service, and notice of special
defence and copies including- particulars, and copies in case of set off and attending:
Registrar of Court therewith, and such notices, particulars* and copies-being signed
by the Attorney, ......
Attending and inspecting documents, ....
Mileage for each mile to inspect documents not exceeding 20 miles, per mile,
Preparing confession or agreement, where prepared by Plaintiff's Attorney, incidental
attendances, included,   ......
All necessary affidavits, including filing each,
Oath sum paid,
Attending to enter up judgment by default,     ...
Attending Court for an order to bring up a prisoner to give evidence,
Attending Court to support or oppose motion for new trial, or set aside proceedings,
Ditto when counsel employed, ....
Fee to Counsel and Clerk, ....
Any attendance at the office of the Registrar, which he may upon taxation think was
necessary, .....
rtions for, and drawing and copying brief where Counsel employed,  including
attendance, ......
Fee to Counsel and Clerk, sum paid not exceeding,
Attending Court or trial with Counsel,
0    4    2
0
8
4
0
8
4
0
1
0
0
12
6
0
10
5
0
4
2
0
6
3
1
0
10
0
12
6
2
1
8
0
4   2
2 10    0
3 15    0
0 12    6
NEW TRIAL,
Costs to be allowed on the same scale as the original trial. 23
cc
BE DAY ON ADJOURNMENT OF CAUSE
Attorney for attending Court, where no Counsel employed,
Attorney for attending Court with Counsel,
Witnesses expenses same as on trial.
1   0 16
6 12   6
ATBITRATION.
Attending reference where no Counsel employed,
Attending reference, for each sitting, where Counsel employed,
Note.—Costs of Counsel and Attorney attending on reference, shall not be allowed
without the order of the Judge; nor shall the costs of more than one sitting bo
allowed without the order of the Judge.
N. B.—The costs in every cause shall, upon the above scale, abide tho event, unless
the Judge shall make some special order with reference to such costs, or any part
thereof.
19   2
1   6 16
Sch.ed.ule  Gr.
Fees payable on the issuing of Probates of Wills and Letters of Administration, pursuant to tho
Order of the third day of April, A. D. 1860.
ON PROBATE.
For taking and filing affidavits and filing the original Will in the Registry of the Court,
and ingrossing, exemplifying, and collating Will for Grant of Probate.
Where the Estate shall be sworn under £50,
When £50 and upwards,
For filing every caveat,
For every exemplification of Probate,
3 15 0
0 4 2
2   18
ON LETTERS OF ADMINISTRATION.
For taking and filing affidavits and bond, and granting Letters of Administration.
Whe* the Estate shall be sworn under £50,
When £50 and upwards,      .....
For filing every caveat, • , i^;.    K. '   '
For every exemplification of Letters of Administration,
2 18
8 15 0
04 2
2   18. 24
Schedule H.
Scale of Costs to be allowed on Jud;
•ments by Default, pursuant to the Order of the third day
I of April, A. D. 1860.
Letter.before action,
Instructions to sue,
Writ and particulars of demand,
Drawing Plaint, .
Copy and service of writ,
Search for appearanpe and paid,
Affidavit of service and oath,
Drawing certificate of no defence filed,
Drawing Judgment,
Attending to file affidavit and certificate, and
Paid filing affidavit and certificate,
Paid entering Judgment,
Letters,
enter Judgment,
0
6
3
0
12
6
0
14
0
1
5
0
0
10
5
0
6
o
0
12
6
\ta                   .                   o
9
1
0
6
3
0
6
3
0
6
3
0
0
7
10
6
5  •/£*
'%^k
'-.A'.
,0
v/""
"'>*
*> '
fi\>
*V  yQ^ticnoC*.      To    fA*    (-&^nzrcT\ Krc±£c£     (Q£o I
MEMORANDUM AS TO PROCEDURE IN THE SUPREME COURT.
I. The local legislature has assumed the right to authorize the local executive to
make rules of procedure in the Supreme Court.
US'/fU' /'./'?''-It is considered that this assumption is unconstitutional.
It is so, unless conferred on them by s. 92, B. N. A. Act: for the local legislature
may not go beyond the letter of that section and its-sub-sections. Everything not therein
specified is exclusively of Dominion cognizance.    The only sub-section relied on by V/* /?&,
the local executive is sub-section L4. '
S. 92 gives the Provincial legislature power "to make laws in relation to matters
" coming within the classes of subjects enumerated in " the sub-sections. Sab-section 14
enumerates "the administration of justice, including the constitution, maintenance, and
" organization of Provincial Courts, and including procedure in those Courts." The
Supreme Court (dismissing the consideration of all other Courts) was "constituted"
long before confederation. It was before confederation "organized" by the Imperial
authorities, and after confederation (s. 96, B. N. A.) by the Governor-General. It is
maintained solely by the Dominion (Terms of Union, s. 10.) The Supreme Court, therefore, is not within the description of "those" courts in which alone procedure is controllable by the local legislature. And not being within sub-section 14, it is not within
s. 92 at all, and therefore, by the sweeping force of s. 91, is reserved exclusively to the
authority of the Dominion legislature.
II. Even if the procedure in the Supreme Court should be held to be within the
expressions in sub-section 14, it would be unconstitutional for the local legislature either
to make rules directly, or to delegate the making of the rules to any other body than to
the Judges: both of which errors are manifestly committed in s. 17,1879, and 1881, s. 32.
a. It cannot proceed directly—i. e., by its own deliberation and vote of its Members.
The same (Sec. 92, Sub-sec. 14) gives it authority to make laws, &c, ... in
relation to the Administration of Justice. But it will not be contended that that authorizes the House of Assembly to entertain suits, or deliver judgments, or decide rights
between man and man, either originally or by way of review. It must see that justice
is administered by the ordinary tribunals. That is the common law right of the suitor.
So as to procedure. By the common law, the Judges of Superior Courts have the power
of framing their own rules; and the suitors have the right of suing according to rules
framed so and not otherwise. When the Legislature does appear to touch this common
law right and power, as in the Common Law Procedure Act, 1852, Sec. 226, it does so
with a careful declaration of non-interference; it confers new powers on a quorum of
Judges, reserving to the Crown and to each House a right of vetoing what such
quorum may propose; not attempting to impose any fetters on the deliberations of
the entire body of Judges.
In the Dominion, there is a written, and also an unwritten constitution. The written
constitution is in the British North America Act. But beyond and above that there is
custom, the "jus et norma Parliamenti." What no Parliament ever did or attempted to
do, is unconstitutional, just as much as if it were forbidden in print. And this is
probably what Coke means when he says that an Act of Parliament is void which contradicts common sense or common law.
This power in the sub-section 14, section 92, is not " to make Rules of Procedure,"
or "to regulate procedure" in these Courts to which the sub-section refers, but "to
" make laws in relation to matters coming within the class of subjects " of whioh
Procedure in " those " Courts is one. The Legislature may say what number of Judges
of the Supreme Court may make rules for "those" Courts;—whether the Chief Justice
is necessarily to be one,—what power of vetoing they, the Legislature, desire to reserve
to themselves; when any such code is to come into force, &c, &c. But the power is not
by any means for the Legislature to make rules of itself.
Still less may it delegate such a power to any persons outside of the common law
authorities, the Judges of the Supreme Court. Where are we to stop? May they
authorize anybody? Lieut.-Governor alone without Council? Chamber of Commerce?
as to criminal affairs ? City Council? 

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